BILL ANALYSIS Ó ----------------------------------------------------------------- |SENATE RULES COMMITTEE | AB 57| |Office of Senate Floor Analyses | | |(916) 651-1520 Fax: (916) | | |327-4478 | | ----------------------------------------------------------------- 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) AB 57 Page 3 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 AB 57 Page 4 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. AB 57 Page 5 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 AB 57 Page 6 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 AB 57 Page 7 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 AB 57 Page 8 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 AB 57 Page 9 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 AB 57 Page 10 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 AB 57 Page 11 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 AB 57 Page 12 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 AB 57 Page 13 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 AB 57 Page 14 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 **** END ****