BILL ANALYSIS Ó
AB 57
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CONCURRENCE IN SENATE AMENDMENTS
AB
57 (Quirk)
As Amended August 18, 2015
Majority vote
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|ASSEMBLY: |66-4 |(May 22, 2015) |SENATE: | 27-6 |(August 24, |
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Original Committee Reference: L. GOV.
SUMMARY: Requires a collocation or siting application for a
wireless telecommunications facility to be deemed approved, if
specified conditions are met, and applies these provisions to
all counties and cities, including charter cities.
The Senate amendments:
1)Declare that the provisions of this bill do not apply to
eligible facilities requests, and define the term "eligible
facilities request" to have the same meaning as in 47 United
States Code Section 1455.
2)Revise language in this bill to require a city or county to
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approve or disapprove the application within a reasonable
period of time in accordance with the time periods and
procedures established by applicable Federal Communications
Commission (FCC) decisions, and define the term "applicable
FCC decisions" to mean in re Petition for Declaratory Ruling,
24 FCC Rcd. 13994 (2009) and In the Matter of Acceleration of
Broadband Deployment by Improving Wireless Facilities Siting
Policies, Report and Order, 29 FCC Rcd. 12865 (2014).
3)Allow the reasonable period of time to be tolled to
accommodate timely requests for information required to
complete the application, or allow it to be extended by mutual
agreement between the applicant and the local government,
consistent with applicable FCC decisions.
4)Add, as a condition for the application to be deemed approved,
that the applicant has provided notice to the city or county
that the reasonable time period has lapsed and that the
application is deemed approved.
5)Allow, within 30 days of the notice required in 4) above, the
city or county to seek judicial review of the operation of
this bill's provisions on the application.
6)Declare that nothing limits or affects the authority of a city
or county over decisions regarding the placement, construction
and modification of a wireless telecommunications facility,
except the provisions contained in the bill that require a
collocation or siting application for a wireless
telecommunications facility to be deemed approved, when
specified conditions are met.
7)Declare that due to the unique duties and infrastructure
requirements for the swift and effective deployment of
firefighters that the bill's provisions do not apply to a
collocation or siting application for a wireless
telecommunications facility where the project is proposed for
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placement of fire department facilities.
EXISTING LAW:
1)Defines the following terms:
a) "Collocation facility" to mean the placement or
installation of wireless facilities, including antennas,
and related equipment, on, or immediately adjacent to, a
wireless telecommunications collocation facility.
b) "Wireless telecommunications facility" to mean equipment
and network components, such as towers, utility poles,
transmitters, base stations, and emergency power systems
that are integral to providing wireless telecommunications
services.
c) "Wireless telecommunications collocation facility" to
mean a wireless telecommunications facility that includes
collocation facilities.
2)Provides that a collocation facility shall be a permitted use
not subject to a city or county discretionary permit, if it
satisfies the following requirements:
a) The collocation of facility is consistent with
requirements for the wireless telecommunications
collocation facility pursuant to 3) below, on which the
collocation facility is proposed;
b) The wireless telecommunications collocation facility on
which the collocation facility is proposed was subject to a
discretionary permit by the city or county and an
environmental impact report (EIR) was certified, or a
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negative declaration or mitigated negative declaration was
adopted for the wireless telecommunications collocation
facility in compliance with the California Environmental
Quality Act (CEQA), the requirements of Public Resources
Code Section 21166 do not apply, and the collocation
facility incorporates required mitigation measures
specified in that EIR, negative declaration, or mitigated
negative declaration.
3)Provides that a wireless telecommunications collocation
facility, where a subsequent collocation facility is a
permitted use not subject to a city or county discretionary
permit pursuant to 2) above, shall be subject to a city or
county discretionary permit issued on or after January 1,
2007, and shall comply with all of the following:
a) City or county requirements for a wireless
telecommunications collocation facility that specifies
types of wireless telecommunications facilities that are
allowed to include a collocation facility, or types of
wireless telecommunications facilities that are allowed to
include certain types of collocation facilities; height,
location, bulk, and size of the wireless telecommunications
collocation facility; percentage of the wireless
telecommunications collocation facility that may be
occupied by collocation facilities; and, aesthetic or
design requirements for the wireless telecommunications
collocation facility;
b) City or county requirements for a proposed collocation
facility, including any types of collocation facilities
that may be allowed on a wireless telecommunications
collocation facility; height, location, bulk, and size of
allowed collocation facilities; and, aesthetic or design
requirements for a collocation facility;
c) State and local requirements, including the general
plan, any applicable community plan or specific plan, and
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zoning ordinance; and,
d) CEQA through certification of an EIR, or adoption of a
negative declaration or mitigated negative declaration.
4)Requires the city or county to hold at least one public
hearing on the discretionary permit required pursuant to 3)
above, and requires notice to be given as specified, unless
otherwise required.
5)States that the Legislature finds and declares that a
collocation facility has a significant economic impact in
California and is not a municipal affair, but is a matter of
statewide concern.
6)Limits the consideration of the environmental effects of radio
frequency emissions by the city or county to that authorized
by 47 United States Code Section 332(c)(7), as specified.
FISCAL EFFECT: None
COMMENTS:
1)Bill Summary. This bill requires a collocation or siting
application for a wireless telecommunications facility to be
deemed approved, if all of the following occur: a) the city
or county fails to approve or disapprove the application
within a reasonable period of time in accordance with the time
periods and procedures established by applicable FCC
decisions, as defined; b) the applicant has provided all
public notices regarding the application that the applicant is
required to provide under applicable laws consistent with the
public notice requirements for the application; and, c) the
applicant has provided notice to the city or county that the
reasonable time period has lapsed and the application is
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deemed approved. This bill also allows a city or county,
within 30 days of the notice that the reasonable time period
has lapsed, to seek judicial review of the operation of this
bill's provisions on the application, and declares that this
bill does not apply to "eligible facilities requests," as
defined in this bill.
This bill declares that a wireless telecommunications facility
has a significant economic impact in California and is not a
municipal affair, but is a matter of statewide concern, thus
applying the requirements of this bill to all cities,
including charter cities. This bill is sponsored by the
author.
2)Author's Statement. According to the author, "In order to
encourage the expansion of wireless networks, Congress passed
the Telecommunications Act of 1996, which requires a local
jurisdiction to act on a wireless facility colocation or
siting application within a 'reasonable period of time.' As
the entity charged with implementing the Act, the Federal
Communications Commission (FCC), issued a declaratory ruling
that a 'reasonable period of time' is presumptively 90 days to
process collocation applications and 150 days to process all
other applications.
"While the FCC's regulations 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.
"Instead of requiring the provider to seek a judicial remedy
to enforce the FCC's timeline, AB 57 would provide that a
wireless facility colocation or siting application that is not
acted on by the local jurisdiction within the timeline shall
be 'deemed approved.' Consistent with the FCC's finding that
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'wireless service providers have faced lengthy and
unreasonable delays in the consideration of their facility
siting applications, and that the persistence of such delays
is impeding the deployment of advanced and emergency
services,' this bill would close a loophole that allows a
local jurisdiction to effectively extend the timeline beyond
that established by the FCC.
"Nothing in AB 57 limits or affects the authority of a local
jurisdiction over siting decisions, as they still retain all
existing rights to deny applications that do not meet the
jurisdiction's lawful siting requirements. AB 57 simply
provides a workable remedy for a local jurisdiction's failure
to abide by existing federal deadlines."
3)Background on Siting of Wireless Facilities. In the
Telecommunications Act of 1996, Congress imposed specific
limitations on the traditional authority of state and local
governments to regulate the location, construction, and
modification of [towers and antennas], and incorporated those
limitations into the federal Communications Act of 1934.
Federal Communications Act, Section 201(b) empowers the FCC to
"prescribe such rules and regulations as may be necessary in
the public interest to carry out [its] provisions." The Act
imposed five substantive limitations codified in 47 United
States Code Section 332(c)(7)(B). One of those limitations,
Section 332 (c)(7)(B)(ii), required state or local governments
to act on wireless siting applications "within a reasonable
period of time after the request is duly filed."
On November 18, 2009, the FCC released a Declaratory Ruling
(In re Petition for Declaratory Ruling, 24 FCC Rcd. 13994
(2009)) in response to a July 11, 2008, petition filed by CTIA
- The Wireless Association, asking the FCC to clarify
provisions in Communications Act of 1934 Section 253 and
Section 332 (c)(7), as amended, regarding state and local
review of wireless facility siting applications. That
Declaratory Ruling found that a "reasonable period of time"
for a state or local government to act on a personal wireless
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service facility siting application is presumptively 90 days
for collocation applications and presumptively 150 days for
siting applications other than collocations, and that the lack
of a decision within this timeframes constitutes a "failure to
act" based on which a service provider may commence an action
in court under Section 332(c)(7)(B)(v). The 2009 Declaratory
Ruling noted that "by clarifying the statute in this manner,
we recognize Congress' dual interests in promoting the rapid
and ubiquitous deployment of advanced, innovative, and
competitive services, and in preserving the substantial area
of authority that Congress reserved to State and local
governments to ensure that personal wireless service facility
siting occurs in a manner consistent with each community's
values."
The Cities of Arlington and San Antonio, Texas, sought review
of the 2009 Declaratory Ruling in the Fifth Circuit. They
argued that the FCC lacked authority to interpret Section
332(c)(7)(B)'s limitations. Relying on Circuit precedent, the
Court upheld the presumptive 90- and 150- deadlines and
entitled to Chevron deference. The Supreme Court of the
United States granted certiorari to look at whether a court
should apply Chevron to an agency's determination of its own
jurisdiction. On May 20, 2013, the judgment of the Court of
Appeals was affirmed by the Supreme Court, thus confirming
that Congress has vested the FCC with general authority to
administer the Communications Act through rulemaking and
adjudication.
The Middle Class Tax Relief and Job Creation Act of 2012
(Spectrum Act) was signed into law by President Barack Obama
on February 22, 2012, and included provisions regarding
wireless facilities deployment. Section 6409(a) of the
Spectrum Act states 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."
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In a report released by the FCC on October 21, 2014, the FCC
interpreted and implemented the "collocation" provisions of
Middle Class Tax Relief and Job Creation Act of 2012, Section
6409(a). The report noted that Spectrum Act Section 6409(a)
included a number of undefined terms, and the FCC adopted
rules to clarify many of the terms and enforce their
requirements. Among other measures, the FCC:
a) Clarified that Spectrum Act Section 6409(a) applies to
support structures and to transmission equipment used in
connection with any Commission-licensed or authorized
wireless transmission;
b) Clarified that a modification "substantially changes"
the physical dimensions of a tower or base station, as
measured from the dimensions of the tower or base station
inclusive of any modifications approved prior to the
passage of the Spectrum Act, if it meets specified
criteria;
c) Provided that states and localities may continue to
enforce and condition approval on compliance with generally
applicable building, structural, electrical, and safety
codes and with other laws codifying objective standards
reasonable related to health and safety;
d) Provided that a state or local government may only
require applicants to provide documentation that is
reasonably related to determining whether the eligible
facilities request meets the requirements of the Spectrum
Act Section 6409 (a);
e) Required, within 60 days from the date of filing,
accounting for tolling, a state or local government to
approve an application covered by Spectrum Act Section 6409
(a);
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f) Provided that an application filed under Spectrum Act
Section 6409 (a) is deemed granted, if a state or local
government fails to act on it within the requisite time
period.
The 2014 FCC report also clarified Communications Act Section
3329(c)(7) and the FCC's 2009 Declaratory Ruling, as follows:
g) Clarified, with regard to the FCC's determination in the
2009 Declaratory Ruling that a state or municipality may
toll the running of the shot clock, if it notifies the
applicant within 30 days of submission that its application
is incomplete, that:
i) The timeframe begins to run when an application is
first submitted, not when it is deemed complete by the
reviewing government;
ii) A determination of incompleteness tolls the shot
clock only, if the state or local government provides
notice to the applicant in writing within 30 days of the
application's submission, specifically delineating all
mission information, and specifying the code provision,
ordinance, application instruction, or otherwise
publically-stated procedures that require the information
to be submitted;
iii) Following an applicant's submission in response to a
determination of incompleteness, the state or local
government may reach a subsequent determination of
incompleteness based solely on the applicant's failure to
supply the specific information that was requested within
the first 30 days;
iv) The shot clock begins running again when the
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applicant makes its supplemental submission; however, the
shot clock may again be tolled if the state or local
government notifies the applicant within 10 days that the
supplemental submission did not provide the specific
information identified in the original notice delineating
missing information.
h) Clarified that the presumptively reasonable timeframes
run regardless of any applicable moratoria;
i) FCC declined to adopt an additional remedy for state or
local government failures to act within the presumptively
reasonable time limits.
On March 6, 2015, Montgomery County, Maryland filed a lawsuit
in the United States Court of Appeals for the Fourth Circuit,
petitioning for review of the 2014 FCC Report that made
federal rules implementing Middle Class Tax Relief and Job
Creation Act of 2012, Spectrum Act Section 6409(a), stating
that the Report is inconsistent with the United States
Constitution; an unlawful interpretation of Spectrum Act
Section 6409(a) and other statutory provisions; arbitrary and
capricious and an abuse of discretion; and otherwise contrary
to law.
4)Policy Considerations. A joint coalition of the California
State Association of Counties, the American Planning
Association, California Chapter, the Urban Counties Caucus,
the League of California Cities, the City of Los Angeles, the
City and County of San Francisco, Los Angeles County, and the
Rural County Representatives of California, in opposition the
bill, raise the following concerns:
a) Clarity on CEQA. The joint coalition notes that the
bill is silent on whether review must be completed during
the shot-clock period.
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b) Deemed Approved Rule. The joint coalition points out
that the FCC refused to adopt the industry's request to
issue a "deemed approved" rule, and therefore the bill goes
beyond the scope of federal law and regulations.
c) Matters of Municipal Concern. The joint coalition is
concerned that the bill provides wireless
telecommunications facilities a higher priority under state
law than other broadband providers using different
technologies, ties the hands of municipalities, and sets a
dangerous precedent of removing localities' power to make
key land use decisions.
5)Arguments in Support. Supporters believe that this bill
provides important guidelines and the appropriate balance to
keep the permit process moving and promote needed wireless
service improvements for consumers, business, government and
public safety.
6)Arguments in Opposition. Opposition argues that this bill
effectively eliminates the ability of local agencies to meet
the needs and best interests of local communities on
determining the siting and collocation of wireless facilities.
Opposition notes that federal law and regulations are
sufficient on the matter and no change to state law is needed.
Analysis Prepared by:
Debbie Michel / L. GOV. / (916) 319-3958 FN:
0001469
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