TOWN OF WOODSIDE. Report to Town Council Agenda Item 3 From: Jean B. Savaree, Town Attorney March 10, 2015 Approved By: Kevin Bryant, Town Manager

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1 TOWN OF WOODSIDE Report to Town Council Agenda Item 3 From: Jean B. Savaree, Town Attorney March 10, 2015 Approved By: Kevin Bryant, Town Manager SUBJECT: REQUEST TO JOIN REDWOOD CITY AND OTHER LOCAL JURISDICTIONS IN A COALITION TO APPEAL THE FCC S RULES CONCERNING WIRELESS FACILITIES RECOMMENDATION Staff recommends that the Town Council consider and decide whether to participate in an appeal to be filed by Redwood City and other local entities across the United States to appeal the FCC s latest regulations regarding wireless communication facilities. BACKGROUND Over the last several years, staff has periodically reported to the Town Council on the law as it relates to wireless facilities. Cities were stripped of the vast majority of their zoning authority in this area when the Telecommunications Act of 1996 was enacted. Cities zoning authority was further restricted in 2012 by the Middle Class Job and Tax Relief Act which requires cities to approve requests to upgrade existing wireless facilities when the proposed upgrade would not substantially change the site. Vague terms in the 2012 legislation like substantially change left cities with a number of unanswered questions when reviewing an applicant s request for colocation of wireless equipment and applications to construct new or alter existing wireless facilities. As a result, in late 2013, the FCC issued a Notice of Proposed Rulemaking related to wireless tower siting applications. The FCC has now completed its Rulemaking process, and published its final Report and Order ( Order ) in the Federal Register on January 8, The full Order is called Acceleration of Broadband Deployment by Improving Wireless Facilities Siting Policies and is 122 pages long. The rules expounded in the Order are fairly expansive and we are working with staff to insure that the new rules are understood and carefully followed. What Has Not Changed Under the FCC Order? The New FCC Order does very little to effect the substance of wireless facility regulation by municipalities, and instead focuses primarily on the timelines for processing and approving applications. To the extent that procedures for approving a project were valid prior to Town Council Meeting March 10, 2015 Page 1

2 this Order, they likely remain valid after the Order. Wireless carriers can still be required to obtain planning commission approval for their projects, but the Order requires the Planning Commission or Town Council act on the application prior to set deadlines. In addition, cities can impose conditions of approval which do not have the effect of discriminating against a particular carrier or limiting a carrier s ability to fill a gap in its coverage. For example, a city can impose requirements to meet aesthetic concerns by requiring the installation to be camouflaged, enforce its setback restrictions, impose facility maintenance standards and construction time limits. Cities can even request that a proposed facility be sited differently if the alternative site is shown to be less intrusive to the community while still addressing the carrier s coverage gap. What Has Changed Under the FCC Order? 1. Construction of New Facilities or Substantial Changes to Existing Facilities: Section 332(c)(7) The Shot Clock Rule Clarified A. Background Under 47 U.S.C. 332(c)(7), cities must act on applications to place, construct, or modify a wireless facility within a reasonable period of time The FCC adopted a Shot Clock rule in 2009 that gave cities 90 days to complete their review and then to act on a colocation 1 application. Cities were given 150 days to complete the review and act on all other applications for wireless facilities. If the permitting processing is not completed within these time limits, it is presumed to be an unreasonable delay and can open the city up to monetary penalties if the applicant sues. This rule was challenged in the Supreme Court by the City of Arlington in The Supreme Court upheld both the shot clock rule and the FCC s ability to impose substantive rules of this nature on cities. Perhaps emboldened by this ruling, the FCC has made some additional clarifications to the Shot Clock Rule in the current Order. B. Application Submittal First, cities have 30 days to deem an application incomplete and stop the shot clock. In order to deem an application incomplete, the city must provide the applicant with written notice that the application is incomplete and list what the application is missing. The notice must also specify the publically-stated procedures that require the 1 Co-location means mounting or installing additional wireless transmission equipment to a tower or base station where wireless equipment is already installed. Town Council Meeting March 10, 2015 Page 2

3 information be submitted. The requirement that the procedures be publically-stated means that they must appear in the zoning code, other ordinance, resolution or some other written policy. We are working with staff to update the Town s ordinance to address this issue. The ordinance amendments will be coming to you for review later this Spring. Once an application has been deemed incomplete and the applicant submits supplemental documents to complete the application, cities must make a determination about the completeness of the application within 10 days. If the application is still not complete, the city must again provide notice within the 10 day period, listing the deficiencies in the application. However, the city cannot add new items to this list, as the original list (provided within the initial 30 day period) controls what the applicant must submit for a complete application. C. DAS and Small-Cell System Applications It was previously unclear whether general wireless siting rules, and specifically the shot clock rule applied to Distributed Antenna Systems (DAS). Unlike large, centralized wireless towers that provide service coverage to a very large area, DAS utilizes small, low-power nodes to provide coverage for an area equivalent to only a couple of blocks. These nodes are typically utilized in urban areas where they can easily be mounted to existing light poles and form a net of coverage over a specific area. The new FCC Order makes clear that general rules do apply to these systems as well. As such, cities should review and issue permits for these sites the same way they would larger, localized installations. D. Moratoria No Longer Viable After the Telecommunications Act was originally passed in 1996, a number of cities attempted to deal with the potential onslaught of wireless facility applications through moratoria. The courts quickly began striking down moratoria intended to halt development finding moratoria to be unreasonable and in conflict with the Federal directive to allow quick processing of applications. Generally speaking, local moratoria were found to be valid only in cases where cities truly intended a moratorium to be short in duration and used to allow for genuine study of how to correctly and efficiently process applications. The new FCC Order makes the use of moratoria by cities even more limited, as it indicates that the shot clock will run even if a moratorium is in place. It is not entirely clear at this point whether this renders moratoria completely toothless, but at the very least it makes moratoria a disfavored approach, as a delay beyond the Town Council Meeting March 10, 2015 Page 3

4 shot clock period is presumed to be unreasonable even with a moratorium in place. E. Municipal Property Preferences Many cities (including Woodside) have municipal property preference provisions built into their ordinances or general plans to push wireless facilities toward public property rather than private property. During the rulemaking, the wireless industry lobbied the FCC to find these preferences to be unreasonably discriminatory, in that they limit carriers ability to address network gaps efficiently and essentially force the carrier to work out land lease deals with municipalities rather than being able to take advantage of potentially better deals with private property owners. Municipal entities, including the California League of Cities, lobbied the FCC to approve these municipal property preference provisions, arguing that only municipalities are capable of taking the community interest into account when working with carriers on siting. In response, the FCC essentially punted on this issue and said that municipal preferences are best suited to resolution on a case-by-case basis. This effectively means that future litigation will be needed to fully resolve the issue. 2. Eligible Facilities Requests Section 6409(a) A. Background The 2012 Congress Middle Class Tax Relief and Job Creation Act included Section 6409 that deals with collocation of wireless equipment at existing wireless facilities. The key provision states: 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 the tower or base station. For context, a wireless tower is any construction built for the primary purpose of supporting wireless, while a base station is defined as any existing structure which is permitted for a wireless application subsequent to its construction. For example, a base station could be an existing telephone pole that had wireless antenna attached to it at some time after its construction, or a building that had wireless equipment installed on its roof. Per Section 6409(a), anytime carriers wants to add, remove or replace wireless equipment at an existing installation, they must be allowed to do so if the alteration to the site does not substantially change its physical dimensions. Since this statute was passed, local regulators, carriers and the courts have been struggling to determine: Town Council Meeting March 10, 2015 Page 4

5 (1) what does substantial mean; and (2) when does the cumulative effects of non-substantial additions to existing sites create a substantial change to the existing site. The new FCC Order addresses those issues. B. Substantial Changes Whether or not a change to the physical dimensions of a wireless facility is substantial is now an entirely objective determination. A site modification must be confined in six particular ways in order to be considered not substantial. These measurement elements are disjunctive, meaning that all six must be met or the project is deemed a substantial change. 1) Height a. For towers located on private property, a substantial change occurs when the height of the facility increases more than 10% or one additional antenna array not more than 20 feet (whichever is greater). b. For towers in the public right-of-way and all base stations, a substantial change occurs when the height of the facility increases more than 10% or 10 feet (whichever is greater). 2) Width a. For towers located on private property, a substantial change occurs when the width increases 20 feet or the width of the tower at the existing appurtenance (whichever is greater). b. For towers in the public right-of-way and all base stations, a substantial change occurs when the width increases six feet or more. 3) Equipment Cabinets For all types of facilities, a substantial change occurs when the request involves more than four equipment cabinets. 4) Excavation For all types of facilities, a substantial change occurs when the request involves excavation outside either the leased or licensed area or outside the proximity to the ground-mounted equipment. 5) Existing Concealment For all types of facilities, a substantial change occurs when the request would defeat the existing concealment elements incorporated into the design of the tower or base station. 6) Existing Conditions of Approval Except in instances where an existing condition of approval violates or is in conflict with FCC standards, a substantial change occurs when the request would violate an existing condition of approval. If a request is made to collocate or otherwise modify an existing facility and the request meets the above criteria, the request is Town Council Meeting March 10, 2015 Page 5

6 governed by Section 6409 and must be dealt with differently and more quickly than other requests. C. 60-Day Shot Clock and Deemed Granted When a Section 6409 request is made, the municipality only has 60 days to act on the application. In addition, unlike requests under Section 332, applications under Section 6409 will be deemed granted on day 61 if action is not taken. This means that if cities fail to either grant the necessary permits (any and all permits required to begin construction) or deny the application outright for a clearly articulated reason within 60 days, the applicant can proceed with the project as proposed in the application upon notice to the city that it intends to commence work. The 60 day shot clock is not tolled for moratoria. The shot clock is only tolled by mutual written agreement between the city and the applicant or by clear notice that the application is incomplete and requires additional submittals. At this point it is not entirely clear what conditions of approval will be acceptable when granting permits per Section The best understanding we have is that conditions can be imposed so long as they do not equate to a denial to the application. We suspect that these sort of acceptable conditions include building and construction guidelines, indemnity, maintenance, lighting, fencing, drainage and landscaping, and compliance with other generally applicable laws of the city. The prior conditions of approval can also remain in effect as long as they are not voided by a conflict with FCC regulations, as discussed above. The key point here is that cities must act extremely quickly in order to grant the necessary permits with conditions within 60 days or they will lose the ability to do so. D. Cumulative Effects One of the few aspects of the FCC Order that is of benefit to cities is that the characteristics of a substantial change above are applied cumulatively. For example, if a wireless tower is initially constructed in the public right-of-way to be 30 feet high, it can only increase by 10 feet, being capped at 40 feet. It is possible that multiple requests for modification will occur, but the determination as to whether the change is substantial will always be based on the initial height, meaning that in the example above, the tower can never grow taller than 40 feet without being considered a new or substantially-changed construction. E. Propriety Versus Regulatory Capacity It is particularly important to note that the Telecommunications Act, the Tax Relief Act and FCC Regulations only usurp authority from Town Council Meeting March 10, 2015 Page 6

7 municipalities in their capacity as regulators. Municipalities still have full control over their proprietary interests in land. For wireless facilities on public land which are built subject to a city land lease, the city can still control the facility through the lease. As such, cities should be particularly careful when entering into leases with wireless carriers to ensure that they maintain control over the size and characteristics of the facilities that can be built. DISCUSSION The outcome of the FCC s Order is somewhat bleak for cities and other local jurisdictions that already felt somewhat helpless in exercising control over wireless installations. The Telecommunications Act is a strong congressional statement in support of removing any and all barriers to wireless facilities development. Congress and the FCC have repeatedly batted down attempts by cities to work-around this loss of control and this Order is the next step in that movement. On March 3, 2015, the City of Redwood City requested that the Town consider joining it and a number of other local jurisdictions across the United States in an appeal of the FCC s latest Order to protect land use and zoning authority. The letter from Redwood City identifies four (4) of the most troublesome aspects of the Order, which are discussed in greater detail in the Background section of this staff report. They are: No local control. Local approval must be granted for any modification which falls within the FCC rules (that is anything that is not a substantial change according to the FCC rules). There is a reasonable argument that mandatory approval is inconsistent with the Tenth Amendment, the Due Process Clause, and Section 6409(a) itself. Unreasonable interpretation of substantial change. The FCC standard for what constitutes a substantial change permits, among other things, an automatic 10 ft. x 6 ft. increase in the physical dimensions of any facility, whatever its current size might be, so long as the modification complies with safety codes and preserves any existing stealth features. In other words, a city must approve any change up to that dimension. The FCC standard for what constitutes a substantial change is not reasonable. Short time to act. If a local government does not grant or deny a covered Sec. 6409(a) modification within 60 days, it is deemed granted by FCC rule. This does not provide local jurisdictions enough time to engage our communities and protect local land use and zoning authority. Town Council Meeting March 10, 2015 Page 7

8 The rules are too broad. The rules permit modification of small cells and underlying support structures, not just cell towers. The appeal coalition currently includes: Apple Valley, CA; Bellevue, WA; Boston, MA; San Jose, CA; Ontario, CA; Los Angeles, CA; McAllen, TX; and the Texas Coalition of Cities for Utility Issues (TCCFUI), an association representing more than 110 Texas cities. The appeal is being filed by Best Best & Krieger, LLP. The cost to participate is $15,000. CONCLUSION Staff recommends that the Town Council consider and decide whether to participate in an appeal to be filed by Redwood City and other local entities across the United States to appeal the FCC s latest regulations regarding wireless communication facilities. The cost to join the appeal is $15,000, which can be supported by the Town s litigation budget. ATTACHMENTS 1. Redwood City s letter dated March 3, 2015 Town Council Meeting March 10, 2015 Page 8

9 Mayor Jeffrey Gee Vice Mayor Rosanne Foust Council Members Alicia Aguirre Ian Bain Diane Howard Barbara Pierce John Seybert City Hall 1017 Middlefield Road Redwood City, CA Voice (650) Fax (650) March 3, 2015 Re: FCC Wireless Order Appeal Coalition Dear Honorable San Mateo County Mayors: I am writing to request that you consider joining the City of Redwood City and other local jurisdictions from across the nation in a coalition to appeal the FCC's latest rules preempting local authority over certain local land use decisions concerning wireless facilities. The FCC adopted rules late last year, In re Acceleration of Broadband Deployment by Improving Wireless Facilities Siting Policies, WT Docket No Portions of the FCC rules just came into effect and the remainder will take effect in the coming months. The deadline for filing an appeal is March 9, The rules are intended to implement a federal statute adopted in 2012, and codified as 47 U.S.C (commonly referred to as Section 6409(a)). The FCC suggests the rules accelerate broadband deployment. Our city strongly supports broadband and new technologies, but not at all costs. The City of Redwood City, along with other local jurisdictions believe the rules go too far and we owe it to our residents to protect local zoning and land use authority. Last year, our city participated in the FCC rulemaking which led to these rules as part of a coalition of 16 cities and 4 associations representing local government interests. Though we believe filings by our coalition attorneys, Best Best & Krieger, LLP, presented a strong challenge to the FCC s proposed rules, the FCC adopted final rules that generally mirror the proposed rules, preempting local authority to apply local zoning laws and policies to the review of certain types of wireless facilities. Some of the most disturbing aspects of the new FCC rules include the following: No local control. Local approval must be granted for any modification which falls within the FCC rules (that is anything that is not a substantial change according to the FCC rules). There is a reasonable argument that mandatory approval is inconsistent with the Tenth Amendment, the Due Process Clause, and Section 6409(a) itself. Unreasonable interpretation of substantial change. The FCC standard for what constitutes a substantial change permits, among other things, an automatic 10 ft. x 6 ft. increase in the physical dimensions of any facility, whatever its current size might be, so long as the modification complies with safety codes and preserves any existing stealth features. Page 1 of 2

10 In other words, a city must approve any change up to that dimension. The FCC standard for what constitutes a substantial change is not reasonable. Short time to act. If a local government does not grant or deny a covered Sec. 6409(a) modification within 60 days, it is deemed granted by FCC rule. This does not provide local jurisdictions enough time to engage our communities and protect local land use and zoning authority. The rules are too broad. The rules permit modification of small cells and underlying support structures, not just cell towers. In addition, wireless industry lobbyists are expressing a desire to see the scope of the rules broadened, according to recent telecommunications trade press reports. The City of Redwood City feels strongly that local governments must take a firm stand to try to stop this unlawful federal encroachment on local authority at the request of the wireless industry, and for this reason we urge you to consider joining our appeal coalition. Right now in addition to the City of Redwood City, the coalition includes: Apple Valley, CA; Bellevue, WA; Boston, MA; San Jose, CA; Ontario, CA; Los Angeles, CA; McAllen, TX; and the Texas Coalition of Cities for Utility Issues (TCCFUI), an association representing more than 110 Texas cities. Our coalition is seeking contributions of $15,000 from individual communities. Contributions are capped and as more local jurisdictions join in, the individual out-of-pocket costs may go down. Recently, the City Council of the City of Redwood City approved Redwood City s participation in an appeal of these rules and approved a contribution of $15,000 toward the litigation. I urge you to join our effort to protect local control. To learn more about how your city may participate, please contact Gail Karish with Best Best & Krieger, LLP at Should you have any questions please do not hesitate to contact me at I trust you understand the importance of this matter and we look forward to your affirmative response to this request and join other local jurisdictions in supporting this appeal. Sincerely, Jeffrey Gee, Mayor C: Members, City Council Robert Bell, City Manager Page 2 of 2