BILL ANALYSIS 1
1
SENATE ENERGY, UTILITIES AND COMMUNICATIONS COMMITTEE
DEBRA BOWEN, CHAIRWOMAN
AB 468 - Firebaugh Hearing Date:
June 25, 2002 A
As Amended: June 20, 2002 FISCAL/URGENCY
B
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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 provide compensation at fair market value.
This bill requires DGS to compile and maintain an inventory of
state-owned property that it manages and is available to lease
to providers of wireless telecommunications service and to post
this inventory on the DGS website. DGS is empowered to levy
fees for access to the inventory.
This bill allows DGS to negotiate agreements to lease
state-owned property to wireless telecommunications providers.
Such agreements shall provide for a rental fee at fair market
value, cannot be longer than 10 years, limit extensions to 5
years, 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 or Caltrans
are not subject to local zoning ordinances or regulation. The
department director shall provide reasonable notice and an
opportunity to comment by the city or county in which the
facilities are located.
This bill requires the director of DGS to develop and distribute
materials to encourage local governmental entities to compile
and maintain their own inventory of property available for lease
by wireless telecommunications companies.
This bill provides that 20% 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 20% requirement. The California Public Utilities
Commission (CPUC) will administer these funds in conjunction
with its existing California Teleconnect Fund.
This bill requires that the first four digital divide 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 put up 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). This list should meet the requirements of this bill.
2)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. 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 why 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.
3)"Encouraging" Local Governments To Do The Same . The bill
requires DGS to develop and distribute materials for use by
local governments to encourage them to provide a list of their
locally owned property that may be available to wireless
service providers (Page 7, Lines 3-8). It's not clear why DGS
should be required to develop materials for local governments
to use, or why local governments should be encouraged to
provide a special service for wireless telecommunications
companies.
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)Charging A Fee . This bill allows the director to charge an
application or access fee to use the inventory set up by this
bill (Page 6, Lines 11-13) and to charge an access or
subscription fee to view the inventory over the Internet (Page
6, Lines 15-17). Under California's Public Records Act, state
agencies have the authority to charge fees for access to
records. Therefore, giving the director discretion to charge
a fee for accessing public records in this statute is either
unnecessary or could be read to authorize the director to
charge a fee that's in addition to what's permitted under the
state's Public Records Act. As such, the author and committee
may wish to consider removing this separate fee authority.
6)Overriding Local Control . This bill will make it easier for
wireless companies to install antennas by eliminating the
ability of local governments to impose restrictions, or even
deny, such installations.
During the June 11 hearing on this bill, the sponsors of this
measure asserted that building a wireless structure on state
property for a private use was already exempt from local
zoning requirements and that the language in this bill
overriding local control was consistent with existing law.
However, a Legislative Counsel opinion finds this is not the
case. According to the opinion, the construction of private
facilities on state property is generally not exempt from
local zoning rules unless the entity owning the facilities was
furthering a state purpose or governmental function. The
opinion notes that construction of wireless structures for
private companies is a proprietary purpose, not a state
purpose, and therefore the construction would be subject to
local zoning rules. (see Sprint Spectrum L.P. v. Mills). The
League of Cities presents a similar view in its letter
opposing this bill, but cites a different case.
This committee has heard concerns about the quality of
wireless service in California. Addressing those concerns
will require, at least in the short term, more wireless
facilities to be built. However, overriding all local zoning
rules and ordinances, as this bill does, appears to be a harsh
remedy to the problem of wireless service quality. A better
solution might be one that jointly establishes with local
governments a threshold standard at which a wireless facility
located on state property wouldn't need local approval. There
may be other variations which facilitate the construction of
wireless facilities in a way that respects local values and
decision-making processes, but this bill doesn't appear to
strike that balance.
This bill requires the director to provide "reasonable notice
and opportunity for comment" by the local government officials
and residents of an area where a facility is proposed to be
located. This requirement raises a number of logistical
questions and considerations: 1) What is "reasonable
opportunity and notice?"; 2) If DGS opts to hold public
hearings, could those hearings be held in Sacramento, thus
requiring local officials and residents of the affected area
to travel to Sacramento to have their concerns heard?; and 3)
Doesn't this effectively transfer a specific set of zoning
hearings (locating wireless facilities on state-owned
property) that are currently conducted by local governments to
Sacramento? Given these questions, 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.
7)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.
8)Related Legislation . This bill is similar to AB 1150
(Firebaugh), which died in the Assembly Appropriations
Committee in February 2002.
9)Double Referral . Should this bill be approved by the
committee, the Senate Rules Committee has asked that it be
sent to the Senate Transportation Committee for further
review.
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
Cingular Wireless
Nextel of California, Inc.
Sprint
Oppose:
City of Santa Clara
League of California Cities
Randy Chinn
AB 468 Analysis
Hearing Date: June 25, 2001