BILL ANALYSIS 1 1 SENATE ENERGY, UTILITIES AND COMMUNICATIONS COMMITTEE DEBRA BOWEN, CHAIRWOMAN AB 468 - Firebaugh Hearing Date: June 11, 2002 A As Amended: June 6, 2002 FISCAL/URGENCY B 4 6 8 DESCRIPTION Current law directs the Department of General Services (DGS) to negotiate access to non-highway state-owned property. The Department of Transportation (Caltrans) is required to negotiate access to state-owned highway rights-of-way. Payments for use of land or facilities controlled by Caltrans are deposited in the State Transportation Fund. This bill provides that agreements negotiated by Caltrans to place wireless facilities on state-owned property or highway rights-of-way shall not be subject to local zoning ordinances or regulation. This bill requires DGS to compile and maintain an inventory of state-owned property that is available to lease to providers of wireless telecommunications service and to post this inventory on the DGS website. This bill allows DGS to negotiate agreements to lease state-owned property to wireless telecommunications providers. Such agreements shall provide for a reasonable rental fee, provide for use of the wireless providers facilities by state agencies if technically and economically feasible, and facilitate agreements by wireless providers to co-locate their facilities. This bill provides that wireless facilities installed on state-owned property pursuant to a lease with DGS are not subject to local zoning ordinances or regulation. This bill provides that 10% of the revenues from wireless provider lease fees shall be available upon appropriation by the Legislature to fund projects for bridging the digital divide, as defined. Revenues from wireless providers pursuant to leases with Caltrans in effect prior to January 1, 2003 are excluded from the 10% requirement. This bill requires the Governor's director of e-government to develop criteria for selecting projects eligible for funding. Such criteria shall be developed in consultation with representatives of community technology programs, advocacy groups, and community-based organizations, as defined. The first four projects shall include one each in cities in Orange County, southeast Los Angeles, a northern California bay area county, and one statewide program with centers in rural and urban communities. Funding for all digital divide projects shall be included in the Governor's annual budget proposal. This bill makes a number of findings and declarations regarding the problem of the "Digital Divide," the desire to resolve the problem, and the contribution that community technology programs, as defined, can make towards that resolution. BACKGROUND One of the barriers to higher quality wireless (cellular) telecommunications service is the difficulty in installing antennas. Negotiating leases and navigating through a wide variety of local government restrictions can make it difficult for wireless companies to erect an antenna. While there is some flexibility in where a cellular antenna can be located, that flexibility is reduced when cellular traffic is dense, such as in urban areas, and along major travel corridors. DGS currently has 299 leases with cellular companies, generating $964,000 annually for the General Fund. Caltrans has 100 leases with cellular companies generating $2.4 million which is deposited in the State Transportation Fund. COMMENTS 1.Creating A Master List. DGS currently has an inventory of state-owned property, known as the State Property Inventory (SPI), but the SPI doesn't contain information on state-owned highway property. Therefore, this bill will require DGS to supplement the SPI with information from Caltrans on the amount and location of state-owned highway property. 2.Duplicative Authority? As noted above, the bill requires DGS to compile an inventory of available state-owned property, including Caltrans property. The bill also creates duplicative authority in that both DGS and Caltrans are authorized to enter into leases for Caltrans property. The author and committee may wish to consider whether Caltrans - and not DGS - should compile the inventory of the state-owned highway property. The author and committee may wish to consider whether it's appropriate to allow DGS to enter into leases for state-owned highway property over the objection of Caltrans, which this bill would allow as a result of the duplicate leasing authority provision. 3.Why Just Wireless? This bill requires DGS to compile and make available a list of state-owned real property that may be available for lease to providers of wireless telecommunications services for location of wireless telecommunications facilities. However, other companies no doubt have a desire to lease state property. While existing law authorizes DGS to lease state property to any company, it doesn't require DGS to create an "industry specific" inventory of such property and publish its availability on a website. The author and committee may wish to consider whether it's appropriate to require DGS to compile and publish on its website a list of available property for one specific industry and whether this means DGS will have to evaluate each piece of property to determine whether it's suitable for use by the wireless telecommunications industry. 4.Database Availability . While state property records are public information, requiring a list of available property to be compiled and made available via the Internet raises a question about whether this makes it easier for that information to be used improperly. For example, does the state want to publicly post the location of the pumping stations for the State Water Project or the location of the women's dormitory for state institutions? 5.Overriding Local Control . This bill will make it easier for wireless companies to install antennas by making state-owned property available to them and eliminating the ability of local governments to impose restrictions, or even deny, such installations. While the benefit to the wireless companies, and wireless users, is obvious, it's not clear why they should receive such a benefit at the expense of local governments and residents who many not want to have wireless facilities located in their areas. The author and committee may wish to consider whether it's appropriate or necessary for this bill to override all local zoning laws and restrictions. 6.Digital Divide Pilot Projects . The bill specifies specific locations for the first projects funded by the monies set aside for digital divide projects - cities in Orange County, southeast Los Angeles, and the Bay Area. This prejudges where the most meritorious projects are. The author and committee may wish to consider deleting the references to specific areas and instead require the selection criteria to include a provision that the projects should be widely available. Also, the bill requires the Director of e-government to develop the selection criteria. This may not be appropriate, as this isn't a function the e-government department was set up to perform. As such, the author and committee may wish to consider having the California Public Utilities Commission, the State Librarian, or another entity perform this role. 7.Franchises . On Page 6, Lines 9-10 the bill uses the phrase "not subject to an existing state franchise." That language is intended to deal with concerns articulated by the wireline telephone corporations that this bill is a threat to their statewide franchise, as specified in Section 7901 of the Public Utilities Code, which, they argue, allows them to use state and local rights of ways without charge. That phrase qualifies the term "state property" so DGS can only offer leases on state property not subject to an existing state franchise. Because all state property is the subject of a state franchise granted to the wireline telephone corporations, this phrase renders the bill useless. Nothing in this bill infringes on the wireline telephone corporations' statewide franchise. Therefore, the author and committee may wish to consider deleteing the phrase "not subject to an existing state franchise." 8.Related Legislation . This bill is similar to AB 1150 (Firebaugh), which died in the Assembly Appropriations Committee in February 2002. PRIOR VOTES Senate Transportation Committee (13-0)* Assembly Floor (76-0)* Assembly Appropriations Committee (21-0)* Assembly Transportation Committee (18-0)* *Votes reflect a previous, unrelated version of the bill POSITIONS Sponsor: Author Support: AT&T Wireless Oppose: None on file Randy Chinn AB 468 Analysis Hearing Date: June 11, 2001