BILL ANALYSIS                                                                                                                                                                                                    Ó






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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: 








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          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







                                                                      AB 57  
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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


                                   ****  END  ****