BILL ANALYSIS �
AB 57
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ASSEMBLY THIRD READING
AB
57 (Quirk)
As Amended April 6, 2015
Majority vote
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|Committee |Votes |Ayes | |
| | | | |
| | | | |
|----------------+------+--------------------+----------------------|
|Local |7-0 |Maienschein, | |
|Government | |Gonzalez, Alejo, | |
| | |Cooley, Holden, | |
| | |Linder, Waldron | |
| | | | |
| | | | |
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SUMMARY: Requires a colocation 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. Specifically, this bill:
1)Requires a colocation or siting application for a wireless
telecommunications facility to be deemed approved, if both of the
following occur:
a) The city or county fails to approve or disapprove the
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application within the time periods established by the Federal
Communications Commission in In re Petition for Declaratory
Ruling, 24 FCC Rcd. 13994 (2009); and,
b) All public notices regarding the application have been
provided consistent with the public notice requirements for the
application.
2)States that the Legislature finds and declares that a wireless
telecommunications facility has a significant economic impact in
California and is not a municipal affair as that term is used in
California Constitution Article XI, Section 5, but is a matter of
statewide concern.
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.
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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 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
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
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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 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.
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FISCAL EFFECT: None
COMMENTS:
1)Bill Summary. This bill requires a colocation or siting
application for a wireless telecommunications facility to be deemed
approve, if both of the following occur: 1) the city or county
fails to approve or disapprove the application within the time
periods established by the FCC 2009 Declaratory Ruling; and, 2) all
public notices regarding the application have been provided
consistent with the public notice requirements for the application.
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
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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 '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."
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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 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.
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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."
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 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 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;
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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 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 Section 6409 (a);
f) Provided that an application filed under 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;
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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 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, Section 6409(a), stating that
the Report is inconsistent with the United States Constitution; an
unlawful interpretation of Section 6409(a) and other statutory
provisions; arbitrary and capricious and an abuse of discretion; and
otherwise contrary to law.
4)Previous Legislation. AB 162 (Holden) of 2013, would have
prohibited a local government from denying an eligible facilities
request, as defined, for a modification of an existing wireless
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telecommunications facility or structure that does not
substantially change the physical 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.
5)Policy Considerations. The Legislature may wish to consider the
following:
a) Specific Examples. The author notes that local jurisdictions
charged with acting on these wireless facility applications
often ignore the FCC's timeline. The Legislature may wish to
ask the author for specific examples in which this has happened
in California, and to determine whether this is a widespread
practice that warrants a legislative fix.
b) "Deemed Approved." According to the American Planning
Association, California Chapter (APA), the California State
Association of Counties (CSAC), and the Urban Counties Caucus
(UCC), in opposition, "In 2014, the FCC determined that under a
new federal law (47 U. S. C. 1455 (a)), applications for
modifications to wireless facilities would be "deemed approved"
in 60 days provided those modifications not substantially
"change the physical dimensions" of the existing wireless
facility. The FCC's 'deemed approved' requirement doesn't apply
to new wireless siting applications, which require more time for
important environmental and esthetical review and permit
processing, nor does it apply to colocations that involve
substantial increases in the size of the permitted facility. In
AB 57, however, the state would apply this remedy to both new
applications and all colocation applications."
The Legislature may wish to ask the author why it is necessary
to go beyond the requirements and regulations promulgated by the
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FCC.
c) Incentivizing Denial? APA, CSAC, and UCC note that "adding a
'deemed approved' rule to state law where none presently exists,
as proposed under AB 57, could incentivize local jurisdictions
to deny new siting or colocation applications in order to avoid
allowing the shot-clock to run out before the local agency has
been able to effectively negotiate on environmental and
aesthetic matters that are at the heart of community concerns.
In this way, AB 57 could promote litigation rather than
successful deployment of new or improved wireless
infrastructure."
6)Arguments in Support. Supporters argue that the current remedy in
which the wireless provider may sue the locality for unreasonable
delay in any 'court of competent jurisdiction,' is not a meaningful
remedy and that California's courts are already overburdened.
Supporters note that the inherent delay in bringing a lawsuit over
a single application, when a wireless provider may have hundreds of
applications, make the FCC rule all but meaningless in this state,
and that as a result, local governments can, and often do, get away
with violating federal law.
7)Arguments in Opposition. Opposition argues that this bill goes
beyond the requirements of federal law and regulations, and that
this bill effectively eliminates the ability of local agencies to
meet the needs and best interests of local communities and
determining the siting and collocation of wireless facilities.
Opposition notes that federal law and regulations are sufficient on
the matter and moreover that the state should not enact statute
that expands the rights of wireless carriers beyond what is
provided by federal law.
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Analysis Prepared by:
Debbie Michel / L. GOV. / (916) 319-3958 FN: 0000417