BILL ANALYSIS                                                                                                                                                                                                    Ķ



          SENATE COMMITTEE ON GOVERNANCE AND FINANCE
                         Senator Robert M. Hertzberg, Chair
                                2015 - 2016  Regular 

                              
          
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          |Bill No:  |AB 57                            |Hearing    |7/15/15  |
          |          |                                 |Date:      |         |
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          |Author:   |Quirk                            |Tax Levy:  |No       |
          |----------+---------------------------------+-----------+---------|
          |Version:  |7/8/15                           |Fiscal:    |No       |
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          |Consultant|Favorini-Csorba                                       |
          |:         |                                                      |
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              TELECOMMUNICATIONS: WIRELESS TELECOMMUNICATIONS FACILITIES



          Deems approved applications for wireless facilities if local  
          governments do not approve or deny the applications within a  
          specified time period.


           Background and Existing Law

           Land Use Regulation. The California Constitution allows a city  
          to "make and enforce within its limits, all local, police,  
          sanitary, and other ordinances and regulations not in conflict  
          with general laws, known as the police power of cities."  It is  
          from this fundamental power that local governments derive their  
          authority to regulate land through planning, zoning, and  
          building ordinances, thereby protecting public health, safety  
          and welfare.  

          The Planning and Zoning Law requires every county and city to  
          adopt a general plan that sets out planned uses for all of the  
          area covered by the plan.  Cities' and counties' major land use  
          decisions-including development permitting-must be consistent  
          with their general plans.  The Planning and Zoning Law also  
          requires public notice to be given at least 10 days in advance  
          of hearings where most permitting decisions will be made.  It  
          also allows residents to appeal permitting decisions and other  
          actions to either a board of appeals or the legislative body of  
          the city or county.  Cities and counties may adopt ordinances  







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          governing the appeals process.

          Providers of wireless telecommunications services ("carriers")  
          must apply to cities and counties for permits to build  
          structures or other wireless facilities that support wireless  
          telecommunications equipment, like antennae and related devices.  
           Similarly, wireless carriers must seek local approval to place  
          additional telecommunications equipment on structures where that  
          equipment already exists, known as "collocations."

          Federal Requirements for Local Decisions on Wireless Facilities.  
           Two federal laws, the Telecommunications Act of 1996 and the  
          Spectrum Act, require local governments to act within a  
          "reasonable period of time" on permits for siting wireless  
          facilities.  The Federal Communications Commission (FCC) is  
          responsible for administering these laws and implementing this  
          requirement.  Accordingly, in 2009 and 2014, the FCC issued two  
          decisions to clarify, among other things, the definition of a  
          period of time that is presumed to be reasonable for various  
          categories of wireless telecommunications facilities.   
          Specifically, the FCC established a so-called "shot clock" by  
          ruling that local governments should generally approve or  
          disapprove applications for projects within:
                 60 days for a project that is an "eligible facilities  
               request" under Section 1455 of Title 47 of the United  
               States Code.  An eligible facilities request is defined by  
               the FCC as a collocation on an existing facility that does  
               not substantially change its physical dimensions. In  
               practice, these types of applications could include  
               locating additional equipment cabinets on a rooftop that  
               already has wireless facilities.
                 90 days for a project that is a collocation that  
               substantially changes the dimensions of the facility, but  
               do not substantially change its size.  For example, this  
               could include a project that increases the height of a  
               tower in a public right of way by more than 10%.  
                 150 days for projects that are new sites for wireless  
               facilities.  

          The FCC also identified remedies in cases where local  
          governments do not act within those periods.  For collocations  
          that do not change the physical dimensions, the application is  
          "deemed approved"-the permit is automatically granted if a local  
          government has not acted on the application.  However, for all  








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          other types of applications, the FCC specifically declined to  
          adopt a deemed-approved remedy because the circumstances of  
          wireless facility applications can vary greatly.  Instead, the  
          FCC specified that if a local government does not act within the  
          reasonable time period for collocations that change the physical  
          dimensions or for new sites, an applicant may bring an action in  
          federal court within 30 days of the reasonable time period  
          elapsing.  The court then determines whether the delay was  
          unreasonable under all circumstances of the case and, if  
          necessary, identifies an appropriate remedy.

          The FCC decisions also clarified procedures for pausing, or  
          tolling, the shot clock by specifying circumstances when the  
          passage of time counts against the time that a local government  
          has to act on an application and when it does not.   
          Specifically, the decisions provide that:
                 When the application is filed, the clock begins to run.
                 Within the first 30 days, the local government must  
               notify the applicant if the application is incomplete and  
               must reference the specific ordinance or other policy that  
               established the requirement for that information.  At that  
               point, the clock will be tolled (stopped) until the  
               information is submitted.
                 Once the applicant submits additional information, the  
               local government has 10 days to review the new information  
               and notify the applicant that the supplemental submission  
               did not provide the specific information requested.  At  
               that point, the clock is tolled again until the requested  
               information is submitted.  The clock can continue to be  
               tolled if subsequent information provided by the applicant  
               does not address the deficiencies identified within the  
               first 30 days, but not for any newly-identified incomplete  
               information. 
                 Once the applicant has submitted all of the requested  
               information in the initial request by the local government,  
               the clock runs until it reaches the deadline for that  
               particular type of wireless facility.

          The decisions further clarified that the reasonable period of  
          time may be extended if the carrier and the local government  
          agree.  In those cases, the 30-day period for the applicant to  
          challenge the local government's action is tolled as well. 

          State Requirements for Local Decisions on Wireless Facilities.  








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          State law also specifies timelines for approvals of wireless  
          facilities.  Specifically, the 1977 Permit Streamlining Act  
          requires public agencies to act fairly and promptly on  
          applications for development permits, including wireless  
          facilities.  Public agencies must compile lists of information  
          that applicants must provide and explain the criteria they will  
          use to review permit applications.  Public agencies have 30 days  
          to determine whether applications for development projects are  
          complete; failure to act results in an application being "deemed  
          complete."  However, local governments may continue to request  
          additional information, potentially extending the time before  
          the shot clock begins running.

          Once a complete application for a wireless facility has been  
          submitted, the Act requires local officials to act within a  
          specific time period after completing any environmental review  
          documents required under the California Environmental Quality  
          Act.  Specifically, local governments must act within (1) 60  
          days after completing a negative declaration or determining that  
          a project is exempt from review, or (2) 180 days after  
          certifying an environmental impact report (EIR).  If the local  
          government fails to approve or disapprove the application in the  
          applicable time period, the application is deemed granted, and  
          the applicant may file suit in state court to order the local  
          government to issue the permit.

          Interaction between Federal and State Requirements.  These state  
          and federal processes run separately, such that the shot clock  
          may run under one law, while not running under the other. For  
          example, under the Permit Streamlining Act, all CEQA work must  
          be completed prior to the start of the shot clock.  By contrast,  
          under the FCC decisions, some CEQA work may need to be completed  
          while the clock is running, such as in a case where a local  
          government suggests a new location to a developer.  In addition,  
          an application must be complete before the shot clock starts  
          under the Permit Streamlining Act, while under the FCC decisions  
          the shot clock starts when an application is filed. 

          Because of these differences in the way the shot clock runs  
          under state and federal law, federal law is more frequently used  
          by wireless carriers to compel local government action on  
          wireless facilities, even though the remedy is stronger under  
          state law.  Some lawmakers want to change the remedy that  
          wireless carriers may invoke when local governments do not act  








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          on wireless facility applications.

           Proposed Law

           Assembly Bill 57 provides that an application for a collocation  
          or new siting of a wireless telecommunications facility shall be  
          deemed approved if all of the following conditions occur:
                 The city or county reviewing the application does not  
               approve or disapprove the application within a reasonable  
               period of time, as defined by the applicable FCC decisions  
               and any updates to those decisions.  
                 The applicant has provided any public notice that it is  
               required to provide under applicable laws.
                 The applicant has notified the city or county that the  
               reasonable time period has lapsed and that the application  
               is deemed approved.

          A local government, within 30 days of receiving the  
          deemed-approved notice, can ask a court to review the  
          applicant's use of the deemed-approved remedy.  AB 57 also  
          allows the shot clock to be tolled as described in the FCC  
          decisions and allows the reasonable time period to be extended  
          if both the applicant and the city or county agree.  Finally,  
          the bill specifies that it does not apply to eligible facilities  
          requests, as defined under federal law.

           State Revenue Impact

           No estimate.


           Comments

           1.  Purpose of the bill  .  Demand for wireless service and the  
          associated bandwidth is rising rapidly. For example, between  
          2012 and 2013, transmission of wireless data grew by 120%, and  
          more than 1 in 3 California households use only wireless  
          devices.  Additional antennae, cell towers, and other wireless  
          facilities must be built to meet those needs.  However, wireless  
          carriers face significant challenges and delays while navigating  
          local governments' permitting processes for these facilities.   
          AB 57 is a straightforward solution to these challenges.  By  
          deeming applications approved if local governments fail to  
          approve or deny the application, AB 57 provides certainty about  








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          timing to wireless carriers that seek to build additional  
          wireless facilities.  Local governments retain their ability to  
          deny permits for legitimate reasons and impose aesthetic  
          requirements or other conditions on cell sites.  In addition,  
          because local governments can still deny permits, it is in the  
          best interest of carriers to take advantage of AB 57's provision  
          to extend the shot clock by mutual consent in order to work out  
          viable compromises with carriers or complete environmental  
          review under CEQA.  AB 57 simply provides important guidelines  
          and appropriate balance to keep the permit process moving.

          2.  Home rule  . The collocation and siting of wireless  
          telecommunications facilities are matters best addressed by  
          local governments.  When considering the siting of wireless  
          facilities, local governments must balance competing concerns  
          over wireless service adequacy, health and safety, and  
          aesthetics.  In addition, local governments must make decisions  
          on many types of development permit applications within the  
          timelines specified by the Permit Streamlining Act and other  
          state laws-not just wireless sites.  AB 57 significantly reduces  
          local governments' flexibility to balance these various  
          considerations by going beyond what federal law requires.   
          Specifically, the FCC declined to adopt a "deemed-approved"  
          remedy such as the one in AB 57 precisely because of these  
          considerations.  Moreover, AB 57 does not contain the same  
          protections of local government's land use authority that are  
          included in federal law.  The Committee may wish to consider  
          amending AB 57 to codify similar protections in state law.   
          These amendments could include provisions that clearly state  
          that the bill does not prohibit local governments from approving  
          or denying permits, imposing conditions on permits, or  
          regulating the placement of wireless telecommunications  
          facilities on public buildings. 

          3.  For whom the clock tolls  . AB 57 is silent on several aspects  
          relating to tolling the shot clock, including whether the shot  
          clock is tolled for:
                 Environmental review pursuant to CEQA; 
                 Public notice as required by the state's open meetings  
               laws-as opposed to the notice that the applicants  
               themselves are required to provide;
                 Appeals of decisions on wireless facilities to the  
               legislative bodies of cities and counties.
              








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          However, local governments may not be able to complete those  
          activities before an application is deemed complete under AB 57.  
           As a result, they face the difficult choice of cutting short  
          these important processes, reducing the time that they have to  
          review applications, or denying permits and facing litigation.   
          In order to ensure that there is adequate time for these  
          processes to proceed and for local governments to consider  
          applications, the Committee may wish to consider amending AB 57  
          to allow the shot clock to be tolled while these processes  
          occur.

          4.  Burden shifting  .  Federal law places the burden on carriers  
          to bring suit in federal court if a local government does not  
          act within a reasonable period of time to prove that there was  
          an unreasonable delay.  AB 57 would shift that burden to local  
          governments to file suit to prevent a permit from being deemed  
          approved.  Thus, legislators are being asked to decide whether  
          the burden of proof and responsibility for seeking a remedy  
          should fall on private industry or public agencies.  The  
          Committee may wish to amend AB 57 to specify that in order for  
          an applicant to act on a permit that has been deemed approved,  
          the applicant must file suit to demonstrate that the permit  
          process was unreasonably delayed.  Such an amendment would still  
          allow for the use of the deemed-approved remedy by applicants.

          5.  Charter cities  . The California Constitution allows cities  
          that adopt charters to control their own "municipal affairs."   
          In all other matters, charter cities must follow the general,  
          statewide laws.  Because the Constitution doesn't define  
          "municipal affairs," the courts determine whether a topic is a  
          municipal affair or whether it's an issue of statewide concern.   
          AB 57 includes a legislative finding and declaration that a  
          wireless telecommunications facility has a significant economic  
          impact in California and is a matter of statewide concern.   
          Accordingly, the bill's provisions apply to all cities and  
          counties in California, including charter cities and counties,  
          although the bill does not explicitly state it. 

          6.  Incoming!  The Senate Energy, Utilities, and Communications  
          Committee passed AB 57 by a vote of 8-1 on June 16th, 2015. 


           Assembly Actions









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           Assembly Rules Committee:                         11-0
          Assembly Local Government Committee:              7-0
          Assembly Floor:                                   66-4

           Support and  
          Opposition   (7/9/15)

           Support  : AT&T; Bay Area Council; California Asian Pacific  
          Chamber of Commerce; California Hispanic Chambers of Commerce;  
          California Chamber of Commerce; California Manufacturers &  
          Technology Association; California Wireless Association; CTIA -  
          The Wireless Association; California Chamber of Commerce; Los  
          Angeles Area Chamber of Commerce; National Emergency Number  
          Association - The 911 Association; Orange County Business  
          Council; PCIA - The Wireless Infrastructure Association; Silicon  
          Valley Leadership Group; Southwest California Legislative  
          Council; Sprint; T-Mobile; TechAmerica; TechNet; Valley Industry  
          and Commerce Association; Verizon; World Institute on  
          Disability.

           Opposition  : American Planning Association - California Chapter;  
          Association of Environmental Professionals; Brentwood Community  
          Council; BVW; California Professional Firefighters; California  
          State Association of Counties; Center to Keep Healthy Families;  
          City and County of San Francisco; City of Berkeley; City of  
          Beverly Hills; City of Burbank; City of Calabasas; City of  
          Camarillo; City of Cerritos; City of Corona; City of Culver  
          City; City of Diamond Bar; City of Fremont; City of Glendale;  
          City of Huntington Beach; City of La Caņada Flintridge; City of  
          La Quinta; City of Laguna Beach; City of Lake Forest; City of  
          Los Angeles; City of Norwalk; City of Ontario; City of Oxnard;  
          City of Pico Rivera; City of Piedmont; City of Rancho Cucamonga;  
          City of Roseville; City of San Dimas; City of San Gabriel; City  
          of San Rafael; City of Seaside; City of Thousand Oaks; City of  
          Torrance; City of Vista; City of Walnut Creek; City of Whittier;  
          County of Alameda; County of San Bernardino; County of Imperial;  
          County of Marin; County of Monterey; County of Los Angeles;  
          County of San Diego; County of Stanislaus; County of Ventura;  
          Ecological Options Network; Intersight, LLC; League of  
          California Cities; Los Angeles County Firefighters Local 1014;  
          Marin County Council of Mayors and Council; Marin  
          Telecommunications Agency; Mast Victims; National Association  
          for Children and Safe Technology; North Hollywood Neighborhood  
          Watch; Pacific Palisades Community Council; Palisades  








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          Preservation Association; Rural County Representatives of  
          California; San Francisco Firefighters, Local 798; Stop Smart  
          Meters!; Town of Fairfax; Town of Hillsborough; Town of Tiburon;  
          Urban Counties Caucus; Windheim EMF Solutions; Wireless  
          Radiation Alert Network; Dr. Cindy Russell; Elizabeth Skolnik;  
          Ellen Marks; Jenny Miller; Larry Parish; Mark Graham; Shelley  
          Masters; Virginia Farver; Virginia Arnold; Kathy Zavada; J.  
          Petzold; Cheriel Jensen; Gerry Gras; Deborah Kopald; Jon  
          Newland; Victoia Hoekstra; Shannon Bishop; Alex Stadtner; Jerry  
          Cady; Sabine Dherbecourt; Kim Johnson; Lousie and Jay Stanphill;  
          Rola Masri.





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