BILL ANALYSIS Ó
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|SENATE RULES COMMITTEE | AB 57|
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THIRD READING
Bill No: AB 57
Author: Quirk (D)
Amended: 8/18/15 in Senate
Vote: 21
SENATE ENERGY, U. & C. COMMITTEE: 8-1, 6/16/15
AYES: Hueso, Fuller, Cannella, Hertzberg, Hill, Lara, Morrell,
Wolk
NOES: Leyva
NO VOTE RECORDED: McGuire, Pavley
SENATE GOVERNANCE & FIN. COMMITTEE: 6-1, 7/15/15
AYES: Hertzberg, Nguyen, Beall, Hernandez, Lara, Moorlach
NOES: Pavley
ASSEMBLY FLOOR: 66-4, 5/22/15 - See last page for vote
SUBJECT: Telecommunications: wireless telecommunication
facilities
SOURCE: Author
DIGEST: This bill provides that a collocation or siting
application for a wireless telecommunications facility is deemed
approved if the city or county fails to approve or disapprove
the application within the reasonable time periods specified in
applicable decisions of the Federal Communications Commission,
all required public notices have been provided regarding
application, and the applicant has provided a notice to the city
or county that the reasonable time period has lapsed.
ANALYSIS:
AB 57
Page 2
Existing law:
1) Establishes that every county or city may make and enforce
within its limits all local, police, sanitary, and other
ordinances and regulations not in conflict with general laws.
(California Constitution, Section 7 of Article XI)
2) Requires every county and city to adopt a general plan that
sets out planned uses for all of the area covered by the
plan. (California Government Code §65000 et seq)
3) Requires cities' and counties' major land use decisions -
including development permitting - must be consistent with
their general plan.
4) Requires public notice to be given at least 10 days in
advance of hearings where most permitting decisions will be
made. Permits residents to appeal permitting decisions and
other actions to either a board of appeals of the legislative
body of the city or county.
5) Requires 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.
6) Requires wireless carriers to seek local approval to place
additional telecommunications equipment on structures where
that equipment already exists, known as "collocations."
7) Establishes specified limitations, preemptions and
preservation of local zoning authority in relation to the
siting of personal wireless service facilities as part of the
many provisions of the Federal Telecommunication Act of 1996.
(47 United States Code §332)
8) Provides that except as noted in the Federal
Telecommunication Act of 1996, nothing in the Act shall limit
or affect the authority of a state or local government or
instrumentality thereof over decisions regarding the
placement, construction, and modification of personal
wireless service facilities. (47 United States Code §332)
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9) Establishes that the regulation of the placement,
construction, and modification of personal wireless service
facilities by any state or local government or
instrumentality thereof - (i) shall not unreasonably
discriminate among providers of functionality equivalent
services; and (ii) shall not prohibit or have the effect of
prohibiting the provision of personal wireless services. (47
United States Code §332)
10)Establishes that a state or local government shall act on
any request for authorization to place, construct, or modify
personal wireless service facilities within a reasonable
period of time after the request is duly filed with such
government, taking into account the nature and scope of such
request. (47 United States Code §332)
11)Requires that any decision by a state or local government to
deny a request to place, construct, or modify personal
wireless service facilities shall be in writing and supported
by substantial evidence contained in a written record. (47
United States Code §332)
12)Provides that no state or local government may regulate the
placement, construction, and modification of personal
wireless service facilities on the bases of the environmental
effects of radio frequency emissions to the extent that such
facilities comply with the Federal Communications Commission
(FCC) regulations concerning such emissions. Allows any
person adversely affected by an act or failure to act by a
state or local government that is inconsistent with the FCC
compliance requirements related to radio frequency emissions
may petition the FCC for relief. (47 United States Code
§332)
13)Provides that any person adversely affected by any final
action or failure to act by a state or local government that
is inconsistent with this subparagraph may, within 30 days
after such action or failure to act, commence an action in
any court of competent jurisdiction. The court shall hear
and decide such action on an expedited basis. (47 United
States Code §332)
14)Limits the consideration of the environmental effects of
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radio frequency emissions by the city or county to that
authorized by Section 332(c)(7) of Title 47 of the United
States Code, as specified. (California Government Code
§65850.6)
15)Provides that no state or local statute or regulation, or
other state or local legal requirement, may prohibit or have
the effect of prohibiting the ability of any entity to
provide any interstate or intrastate telecommunications
service. (47 United States Code §253)
16)Provides that a state or local government may not deny, and
shall approve, any eligible facilities request for a
modification of an existing wireless tower or base station
that does not substantially change the physical dimensions of
such a tower or base station. (47 United States Code §1455
(a))
17)Provides that a wireless telecommunications collocation
facility shall be a permitted use not subject to a city or
county discretionary permit if it satisfies several
requirements, as specified. (California Government Code
§65850.6)
This bill:
1)Provides that an application for a collocation or siting of a
wireless telecommunications facility is deemed approved, if
specified requirements are met. Specifically:
a) The city or county fails to approve or disapprove the
application within the time periods established by
applicable FCC decisions.
b) The applicant has provided all required public notices
regarding the application.
c) The applicant has provided notice to the city or county
that the reasonable time period has lapsed and that the
application is deemed approved pursuant to this section.
2)Provides that the reasonable time may be tolled to accommodate
timely requests for information required to complete the
application or by mutual agreement between the applicant and
the local government.
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3)Defines applicable FCC decisions to include both the 2009 FCC
Declaratory Ruling and FCC Report and Order of 2014.
4)Provides that a city or county may seek judicial review of the
operation of the applicant's notice to the city or county that
the reasonable time period has lapsed and the application is
deemed approved.
5)Provides legislative findings that a wireless
telecommunications facility has a significant economic impact
in California and is not a municipal affair as that term is
used in Section 5 of Article XI of the California
Constitution, but is a matter of statewide concern.
6)Provides that this section does not limit or affects the
authority of a city or county over decision regarding the
placement, construction, and modification of a wireless
telecommunications facility.
7)Exempts from this section applications of collocation or
siting application for a wireless telecommunications facility
proposed to be placed on fire department facilities.
8)Exempts from this section eligible facilities requests, as
defined under federal law.
Background
As society becomes increasingly reliant on wireless
communications for business, education, safety, and leisure
activities, expansion of wireless infrastructure is needed to
keep pace with consumer demand for faster and more reliable
connectivity of mobile devices. A key component of the necessary
infrastructure is a network of wireless facilities, specifically
towers and other antenna, which utilize radio frequency to allow
users to connect with voice and data transfers on their devices.
Applications to site wireless facilities are among the many land
use permitting decisions made by local governments. In these
permitting decisions, local governments attempt to balance
competing concerns over wireless service adequacy, health,
safety, and aesthetics. With the adoption of the Federal
Telecommunications Act of 1996, the U.S. Congress established
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federal law regarding wireless communications that generally
preempts state and local regulation of wireless services. With
some exceptions, the Act largely preserved the authority of
states and local governments to determine decisions regarding
the placement, construction, and modification of personal
wireless service facilities. Among the exceptions, the federal
law requires local governments to act within a "reasonable
period of time" on permits for siting wireless facilities.
The shot clock - defining "Reasonable Period of Time." The
Federal Communications Commission (FCC) is responsible for
administering the federal communications laws. In 2009, the
FCC adopted a Declaratory Ruling in response to a petition by
the wireless industry requesting clarification of what
constitutes a "reasonable period of time" after which an
aggrieved applicant for a tower may file suit asserting a
failure to act by the local land use agency. The petitioner,
CTIA - The Wireless Association, had compiled more than 3,300
pending personal wireless service facility siting applications
before local jurisdictions and argued that the local
jurisdictions were hindering the pace of wireless communications
growth. The ruling concluded there is a need to establish
separate timeframes for facilities on pre-existing structures
(collocation) and those on new sites. The FCC noted that a
reasonable period of time, or a shot clock, is, presumptively,
90 days to process personal wireless service facility for
collocation applications and 150 days for the review of siting
applications other than collocations. These timeframes were
upheld in a related court case, City of Arlington, Texas vs.
FCC.
FCC provides local governments flexibility. In the Declaratory
Ruling, the FCC argued that some applications may require more
time for review and that such time should be granted. The FCC
further noted that the additional time could lead to
collaborative solutions among the governments, wireless
providers, and affected communities. The ruling further
clarified that the reasonable period of time may be extended by
mutual consent of the personal wireless service provider and the
State or local government, and that in such instances, the
commencement of the 30-day period for filing suit will be
tolled.
FCC rejects "Deemed Approved" approach. The ruling further
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stipulated that if a local agency did not act within those
timeframes then a "failure to act" has occurred and personal
wireless service providers may seek redress in a court of
competent jurisdiction. However, the ruling also stipulated a
rejection by the FCC for a presumption in favor of a
court-ordered injunction granting the application. Rather, the
FCC adopted an approach whereby the court would review the
record to determine the appropriate remedy. Furthermore, the
FCC explicitly rejected the petitioner's proposal that the
ruling go farther and deem an application granted when a state
or local government has failed to act within a defined timeframe
or adopt a presumption that the court should issue an
injunction.
Need for more federal clarification. The Middle Class Tax
Relief and Job Creation Act of 2012 was signed into law by
President Barack Obama as an effort to extend a payroll tax
exemption, but the Act also included provisions regarding
wireless facilities. Specifically, the new law further limited
the ability of the state and local government in siting
collocation facilities that did not substantially change the
existing structures by deeming those applications approved,
based on specified criteria.
In 2014, the FCC published a final rule titled, "Acceleration of
Broadband Deployment by Improving Wireless Facilities Siting
Policies." The rule provided further clarification of the
telecommunications provisions of the Middle Class Tax Relief and
Job Creation Act of 2012, including more specific definition
regarding what constitutes a modification that "substantially
changes" the physical dimensions of an existing tower or base
stations, as well as, applying the provision to support
structures and transmission equipment in connection with a
wireless facility. The rule explicitly noted the need for a
state or local government to approve an application meeting the
specified criteria to be approved within 60 days from the date
of filing, accounting for tolling. Furthermore, the final rule
provided that states and local governments could continue to
enforce and condition approval on compliance with generally
applicable building, structural, electrical, and safety codes.
The FCC final rule also provided further clarification for the
2009 Declaratory Ruling by specifying a more specific timeline
for notifying an applicant of an incomplete application and
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opportunities to toll the shot clock (as noted below).
Moreover, the final rule stated that should a state or local
government institute a moratorium on wireless facility
applications for that jurisdiction, the shot clock will still
apply. However, the applicant may need to take the local
government to court to seek a remedy. Lastly, the FCC's final
rule noted the FCC "?concludes that the explicit remedies under
Section 332(c)(7) preclude adoption of a deemed granted remedy
for failures to act."
Summary 2015 final rule "Reasonable Period of Time":
1)Initial submission: The shot clock begins when the application
is filed.
2)Within the first 30 days: The local government must notify the
applicant if the application is incomplete and the specific
ordinance/provision/ application requirement.
3)At this point, the shot clock will be tolled until the
information is submitted.
4)Within 10 days from resubmittal: The local government can toll
the shot clock if the applicant is notified that the
supplemental submission did not provide the specific
information requested.
5)The clock can continue to be tolled should there be incomplete
information as identified within the first 30 days, but not
any newly identified incomplete information.
State Requirements for Local Decisions on Wireless Facilities.
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
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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.
Due to the 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.
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.
For whom the clock tolls. AB 57 is silent on several aspects
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relating to tolling the shot clock, including whether the shot
clock is tolled for:
1)Environmental review pursuant to CEQA;
2)Public notice as required by the state's open meetings laws-as
opposed to the notice that the applicants themselves are
required to provide;
3)Appeals of decisions on wireless facilities to the legislative
bodies of cities and counties.
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.
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.
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.
Prior/Related Legislation
AB 162 (Holden, 2013) would have prohibited a local government
from denying an eligible facilities request, as defined, for a
modification of an existing wireless telecommunications facility
or structure that does not substantially change the physical
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dimensions of the wireless telecommunications facility or
structure, and would have required a local government to act on
eligible facilities request within 90 days of receipt. The
measure was referred to the Assembly Local Government Committee
but was never heard.
SB 1627 (Kehoe, Chapter 676, Statutes of 2006) required that a
city or county to administratively approve, through the issuance
of a building permit or nondiscretionary permit issued by the
planning department, an application for a collocation facility
on or immediately adjacent to a wireless telecommunication
facility that complies with specified state and local
requirements for such projects. The bill expanded the definition
of the term "development project" within the Permit Streamlining
Act to include projects involving the issuance of a permit for
construction or reconstruction for a wireless telecommunications
facility. Additionally, SB 1627 prohibited a development project
for a wireless telecommunications facility from being subject to
a permit to operate.
FISCAL EFFECT: Appropriation: No Fiscal
Com.:NoLocal: No
SUPPORT: (Verified8/19/15)
AT&T
Bay Area Council
CTIA - The Wireless Association
California Asian Pacific Chamber of Commerce
California Chamber of Commerce
California Hispanic Chamber of Commerce
California Manufacturers & Technology Association
California Wireless Association
CompTIA
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
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TechNet
Valley Industry and Commerce Association
Verizon
World Institute on Disability
OPPOSITION: (Verified8/19/15)
American Planning Association - California Chapter
Association of Environmental Professionals
Brentwood Community Council
Brentwood Homeowners Association
BVW
California State Association of Counties
City of Agoura Hills
City of Baldwin Park
City of Berkeley
City of Beverly Hills
City of Burbank
City of Calabasas
City of Camarillo
City of Cerritos
City of Corona
City of Costa Mesa
City of Culver City
City of Diamond Bar
City of Encinitas
City of Fremont
City of Glendale
City of Huntington Beach
City of La Cańada Flintridge
City of La Quinta
City of Laguna Beach
City of Lake Forest
City of Lakewood
City of Los Angeles
City of Norwalk
City of Ontario
City of Oxnard
City of Pico Rivera
City of Piedmont
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City of Rancho Cucamonga
City of Rocklin
City of Roseville
City of Sacramento
City of San Dimas
City of San Francisco
City of San Gabriel
City of San Jose
City of San Rafael
City of Seaside
City of Thousand Oaks
City of Torrance
City of Visalia
City of Vista
City of Walnut
City of Walnut Creek
City of Whittier
County of Alameda
County of Imperial
County of Lassen
County of Los Angeles
County of Marin
County of Monterey
County of San Bernardino
County of San Diego
County of San Francisco
County of Santa Barbara
County of Stanislaus
County of Ventura
Ecological Options Network
League of California Cities
Marin County Council of Mayors and Councilmembers
Marin Telecommunications Agency
Montecito Association
National Association for Children and Safe Technology
Pacific Palisades Community Council
Palisades Preservation Association
Rural County Representatives of California
SCAN NATOA
Town of Fairfax
Town of Hillsborough
Town of Moraga
Town of Tiburon
Urban Counties Caucus
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Several Individuals
ARGUMENTS IN SUPPORT: The author states that "consumers' use of
wireless broadband service continues to increase? putting
ever-growing capacity demands on wireless networks.
Consequently, providers are making massive investment in new
wireless cell sites, additional equipment at existing sites.
While the FCC's regulation were promulgated pursuant to the
agency's rulemaking and adjudicatory authority, thus carrying
the force of law, local jurisdictions charged with acting on
these wireless facility applications often ignore the FCC's
timeline. If the FCC deadlines are not met, the only remedy
currently available to the provider seeking the permit is to sue
the local jurisdiction in court."
"CTIA - The Wireless Association states that the demand for
wireless broadband is growing exponentially as new applications,
devices and technologies consume more bandwidth and attract more
subscribers. Wireless infrastructure is critical to meet the
public's increasing demand for wireless services. .. But, in
California, the local approval process for needed wireless
facilities is often unworkable. Decisions can take years and
halt needed improvements."
ARGUMENTS IN OPPOSITION: Local governments in opposition state
that AB 57 goes beyond the requirements of federal law and the
FCC's Declaratory Rule by deeming an application approved.
Wireless telecommunications companies are generally required to
obtain various state and local zoning approvals before building
a new wireless facility or collocating equipment at an existing
wireless facility. The local government associations also state
that the "FCC refused to adopt the industry's request to issue a
deemed approved rule." AB 57 "fails to include references in the
2009 Ruling," including tolling provisions. Wireless
telecommunications facilities are matters best addressed by
local governments."
ASSEMBLY FLOOR: 66-4, 5/22/15
AYES: Achadjian, Travis Allen, Baker, Bloom, Bonilla, Bonta,
Brough, Brown, Burke, Calderon, Campos, Chang, Chau, Chávez,
Chu, Cooley, Cooper, Dababneh, Dahle, Daly, Dodd, Eggman,
Frazier, Beth Gaines, Gallagher, Cristina Garcia, Eduardo
Garcia, Gipson, Gomez, Gonzalez, Gray, Grove, Hadley, Harper,
AB 57
Page 15
Roger Hernández, Holden, Irwin, Jones, Jones-Sawyer, Kim,
Lackey, Levine, Linder, Low, Maienschein, Mathis, Mayes,
McCarty, Medina, Melendez, Mullin, Obernolte, Patterson,
Perea, Quirk, Rendon, Ridley-Thomas, Rodriguez, Salas,
Santiago, Steinorth, Thurmond, Wagner, Wilk, Williams, Wood
NOES: Chiu, Gatto, Lopez, Mark Stone
NO VOTE RECORDED: Alejo, Bigelow, Gordon, Nazarian, O'Donnell,
Olsen, Ting, Waldron, Weber, Atkins
Prepared by:Nidia Bautista / EUC / (916) 651-4107
8/19/15 20:45:07
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