Loading...
HomeMy WebLinkAboutSupplemental - Item I, Verizon Wireless Letter Robin Roberts From: Paul Albritton <pa@mallp.com> Sent: Monday, August 13, 2018 12:01 PM To: Mike Varipapa; Ellery A. Deaton;Thomas Moore; Schelly Sustarsic; Sandra Massa-Lavitt Cc: Craig Steele; Robin Roberts;Jill Ingram; Steve Myrter Subject: Verizon Wireless Comments on Urgency Ordinance, Wireless Facilities in Rights-of-Way -Tonight's Council Agenda Item I Attachments: Verizon Wireless Letter 08.13.18.pdf;ATT00001.htm Dear Council Members,attached please find our letter prepared on behalf of Verizon Wireless regarding the draft urgency ordinance regulating wireless facilities in the right-of-way to be considered at your meeting tonight. We urge the Council not to adopt the urgency ordinance or conduct first reading of the regular ordinance,and instead direct staff to work with industry on reasonable regulations. A Verizon Wireless representative will be in attendance this evening. Thank you. Paul Paul Albritton Mackenzie&Albritton LLP 155 Sansome Street,Suite 800 San Francisco,California 94104 (415)288-4000 pa@mallo.com 1 MACKENZIE&ALBRITTON LLP 155 SANSOME STREET,SUITE 800 SAN FRANCISCO CALIFORNIA 94104 TELEPHONE 415/288-4000 FACSIMILE 4151288-4010 August 13,2018 VIA EMAIL Mayor Mike Varipapa Mayor Pro Tem Ellery Deaton Council Members Thomas Moore, Schelly Sustarsic and Sandra Massa-Lavitt City Council City of Seal Beach 211 Eighth Street Seal Beach, California 90740 Re: Urgency Ordinance and First Reading of Regular Ordinance Wireless Telecommunication Facilities in the Public Rights-of-Way Council Agenda Item I, August 13. 2018 Dear Mayor Varipapa, Mayor Pro Tern Deaton and Council Members: We write on behalf of Verizon Wireless to provide comment on a proposed ordinance regarding wireless facilities in the right-of-way(the"Draft Ordinance"). The Draft Ordinance appears to be a hasty effort cobbling together code provisions of other jurisdictions. There are provisions that repeat as well as conflicts between provisions of the Draft Ordinance and the proposed Rules and Guidelines(the"Draft Guidelines"). Numerous provisions contradict state or federal law. For example, the City cannot require a demonstration of need for right-of-way facilities as state law grants telephone corporations a statewide right to use any right-of-way. Requirements for undergrounding equipment contradict federal law requiring equal treatment of utilities using the right-of- way. The Draft Ordinance requires Council approval of all right-of-way facilities,but small cell facilities should be approved administratively as they pose little visual impact. At the outset,we wish to emphasize that there is simply no need"for the immediate preservation of the public peace,health, or safety"that would justify an urgency ordinance under Government Code Section 36937(b). There are no pending applications which pose any threat to the City, and the findings of fact in the urgency ordinance are overstated as there is no emergency,particularly as Verizon Wireless is willing to work with the City to craft workable regulations. We urge the Council not to adopt the urgency ordinance or to conduct first reading of the regular ordinance. Instead, Council should direct staff to work with industry stakeholders on a more thoughtful Seal Beach City Council August 13,2018 Page 2 of 6 drafting process to avoid conflict between the City, industry and the community. Our comments on the Draft Ordinance and Draft Guidelines are as follows. The City Should Encourage Small Cells through Administrative Approval. Wireless carriers developed small cells to provide needed network capacity with minimal visual impact. The Draft Ordinance requires Council approval of a major permit for all new right-of-way facilities regardless of size. Draft Ordinance § 6.10.070(D)(4), Table 6.10.070.D. To encourage carriers to deploy the smallest facilities, small cells that fall under certain dimension thresholds should be approved administratively by the Director. In contrast with contemporary right-of-way ordinances, the Draft Ordinance does not define or acknowledge small cells. We suggest adding a definition of small cell: one cylindrical antenna up to four feet tall plus associated pole-mounted equipment up to eight cubic feet. Small cells should be included in the list of facilities approved administratively. Draft Ordinance § 6.10.070(D)(5). The notice area for small cells should reflect their minimal impact. A 300 foot notice radius would capture properties fronting other streets that are not impacted by a proposed small cell. Draft Ordinance § 6.10.070(G)(1). Notice for small cells approved administratively should be reduced to 150 linear feet along the subject right-of-way, as is the practice for all right-of-way facilities in San Francisco. The City Cannot Require Demonstration of Need for Right-of-Way Facilities. Under state law, the City may not require applicants to demonstrate the need for their right-of-way facilities through coverage gap explanations, and findings cannot require showing of a significant gap. Draft Ordinance § 6.10.070(J)(1)(c), Draft Guidelines §§ 3.2.2(11), 3.2.4(A)(2)(a). Because Public Utilities Code Section 7901 grants telephone corporations a statewide right to use any right-of-way, the City cannot require Verizon Wireless to demonstrate the need for any right-of-way facility(through demonstration of a gap),nor can the City deny a right-of-way wireless facility over questions of need. As the result of recent court decisions, San Francisco was obligated to remove the"necessity"requirement from its right of-way wireless ordinance. See T- Mobile West LLC v. City and County of San Francisco (2016) 3 Cal.App.5th 334,342- 343,on review by the California Supreme Court(Case No. S238001). Requirements for a coverage gap analysis and the finding of a significant gap must be stricken. Similarly, requirements for network master plans that imply a consideration of need for facilities must be stricken. Draft Guidelines §§ 3.2.2(F),3.2.2(G). With respect to any alternatives analysis required,the City must clarify that it is limited in scope to other sites in the right-of-way. Draft Guidelines §§ 3.2.2(H). Because Section 7901 grants telephone corporations the right to use the right-of-way,the City cannot require evaluation of—or relocation onto—private property. We note that the "least intensive means" standard referenced in Draft Ordinance introduces a federal case Seal Beach City Council August 13,2018 Page 3 of 6 law concept interpreting the Telecommunications Act which protects wireless carriers from unlawful denials but does not require carriers to establish a significant gap or least intrusive means to obtain local approval. Any review of alternatives should be restricted to consideration of feasibility and aesthetics. Provisions for Eligible Facilities Requests Must Comply with Federal and State Law The Federal Communications Commission(the"FCC") limits the scope of conditions the City may impose on eligible facilities requests to those related to health and safety. See In Re:Acceleration of Broadband Deployment by Improving Wireless Facilities Siting Policies, Etc., 29 FCC Rcd. 12865 (FCC October 17, 2014) ¶202. Certain conditions of approval including invalidation of Section 6409, indemnification and performance security must be stricken. Draft Ordinance § 6.10.075(F)(7). The Draft Ordinance does not provide for a full ten-year teen for eligible facilities permits in conflict with Government Code Section 65964(b)which states that permit durations of less than ten years are generally presumed to be unreasonable. Draft Ordinance § 6.10.075(F)(7Xa). Eligible facilities permits should be granted with a minimum term of ten years. We suggest that the underlying permit term also be extended to be coterminous for eligible facilities requests. The City Cannot Reouire RF Emissions Reports Every Five Years. The requirement for a technical report on radio frequency emissions every five years exceeds the City's authority. Draft Ordinance § 6.10.070(Q)(1). Recent case law has determined that repeat radio frequency testing requirements by local jurisdictions are preempted by federal law. See Crown Castle USA Inc. v. City of Calabasas(Los Angeles Superior Court BS140933,2014) ("...the regulation of a facility's planned or ongoing operation constitutes an unlawful supplemental regulation into an area of federal preemption.") Small cells involve only low-power antennas that fall well under federal radio frequency exposure limits at publicly-accessible areas. At most,the City should require one post-installation test of radio frequency exposure. Mock-Up Facilities Are Unnecessary for Evaluation of Visual Impact. Requiring a mock-up of each proposed facility is unnecessary and, for utility poles, infeasible. Draft Ordinance § 6.10.070(G)(4)(c),Draft Guidelines § 3.2.2(W). Photosimulations and photographs of built facilities provide sufficient representation of visual impacts for evaluation of proposed facilities. Because of strict state regulation of all equipment affixed to electric utility poles, Southern California Edison may not allow faux"equipment" on its poles, rendering the mockup requirement impossible. This requirement should be stricken. At a minimum,mock-ups should not be required for locations where a facility poses no visual impacts or encounters no opposition. Seal Beach City Council August 13,2018 Page 4 of 6 The City Cannot Require Concurrent Fiber Applications. The City should not require wireless facility applicants to submit fiber installation plans at the same time as wireless facility applications. Draft Guidelines § 3.2.2(D)(I). Wireless facility permittees should be responsible only for the installations that they will build and maintain. Fiber backhaul connections are generally provided by a different company that will build and maintain its fiber lines under distinct permits, and fiber networks are beyond the scope of the permits authorized under the Draft Ordinance. The City cannot subject Verizon Wireless to permit conditions of a different entity,such as indemnity and insurance. This requirement should be stricken. The Draft Ordinance Must Accord with Federal Shot Clock Rules. The Draft Ordinance ens in claiming the Shot Clock is 150 days for all new facilities. Draft Ordinance § 6.10.070(E)(5). The Shot Clock is 90 days for collocation of antennas on an existing structure(such as a utility or street light pole)and 150 days for other types of facilities. See In Re:Petition for Declaratory Ruling to Clarify Provisions of Section 332(c)(7)(B) to Ensure Timely Siting Review, Etc., 24 FCC Rcd 13994 (FCC November 18,2009) (the"Ruling")9 45. For purposes of the Shot Clock,the federal definition of"collocation"differs from that of the Draft Ordinance. In the Ruling,the FCC defined"collocation"to include any request to place antennas on an "existing tower or other structure"that does not involve a"substantial increase in the size of a tower"as defined in the Nationwide Programmatic Agreement for the Collocation of Wireless Antennas. Ruling,"46. In 2016,the FCC amended the Programmatic Agreement definition of collocation to emphasize that it means installation of an antenna on an existing structure"whether or not there is an existing antenna on the structure." See First Amendment to Nationwide Programmatic Agreement for the Collocation of Wireless Antennas, § I(B). Verizon Wireless will calculate a 90-day Shot Clock for applications to collocate antennas on any existing poles. The Draft Ordinance requires both a pre-submittal conference and an application appointment for all facilities. Draft Ordinance §§6.10.070(E)(2),6.10.070(E)(3);Draft Guidelines § 3.2.1. This could lead to substantial delays of several weeks for applications that are ready for filing. The Shot Clock encompasses any mandatory review procedures related to a wireless facility siting request. Verizon Wireless will consider the Shot Clock to commence upon the first mandatory milestone related to a wireless facility siting request,that is,the date it requests a pre-submittal conference. We note that Section 6.10.070(E)(1)regarding rejection of applications considered incomplete at submittal directly contradicts Section 6.10.070(E)(6) as well as FCC rules regarding tolling of the Shot Clock due to incomplete determinations. Seal Beach City Council August 13,2018 Page 5 of 6 Antenna and Equipment Standards Must Be Feasible. The City should avoid the overly subjective standard to use the"least visible antennas possible." Draft Guidelines § 3.2.4(A)(I). Rather, the City should accommodate a single cylindrical antenna up to four feet tall for each facility. Often, four-foot antennas are deployed for small cells on utility poles. When well-elevated, four foot antennas pose little additional impact compared to shorter antennas, and they provide expanded coverage,requiring fewer facilities to serve an area. Limiting height to seventy-two inches above a utility pole will contradict Public Utilities Code General Order 95 (referenced in the Draft Ordinance)which requires that antennas and associated elements such as antenna mounts be elevated at least six feet above electric supply lines. Draft Guidelines § 3.2.4(A)(2)(a). This unclear provision apparently limits the height increase above utility poles to only six feet, leaving no room for the antennas and mounts(note, referenced Subsection 3.2.4(A)(3)does not address utility poles and 3.2.4(A)(4) does not address height at all). To accommodate optimal four-foot antennas and two-foot antenna mounts plus the required six-foot separation distance,this provision should be restated to allow an increase of 12 feet over pole height. As discussed above, no demonstration of a significant gap can be required. The requirement that wireless equipment be mounted no less than 24 feet above the road surface only serves to increase visibility of such equipment. Draft Guidelines § 3.2.4(A)(2)(b). Further,radio equipment generally cannot be placed at such heights on a utility pole as it would conflict with existing utility lines and their clearances required by General Order 95. Typically,wireless ordinances require equipment to be placed above seven feet on a pole for pedestrian safety clearance. Because Section 7901 grants telephone corporations the right to place new poles if aesthetically preferred, the City should not subject new pole applications to more onerous permit requirements such as the exception process. Draft Guidelines § 3.2.4(B)(5). New poles should be approved if there are no available structures that pose less visual impact. Undereroundin2 of Eauipment Cannot Be Mandatory. Requirements to place equipment underground are generally infeasible and contradict federal law. Draft Guidelines § 3.2.4(G). When placed underground,radios and backup power equipment require noise-generating cooling equipment and sump pumps with storm sewer connections. Vaults of the size required for all of this equipment are often infeasible due to various factors such as existing underground utilities or narrow sidewalks that restrict placement. If the broad discretion to require equipment underground is exploited,the City would run afoul of federal law requiring equal treatment of communication facilities Seal Beach City Council August 13,2018 Page 6 of 6 using the right-of-way. Federal law recognizes the authority of local governments to "manage the public rights of way" though on a"competitively neutral and nondiscriminatory basis:' See 47 U.S.C. § 253(c). The FCC has stated that local governments may impose conditions only if they are applied"equally to all users of the rights-of-way"and may not impose conditions on one user,such as a telecommunications company,in a different manner than imposed on other users. See Second Report and Order,CS Docket 96-46,§209,FCC 96-249,adopted May 31, 1996. If the City has allowed other utilities using the right-of-way to place equipment above-ground,Verizon Wireless must be afforded the same right. Rather than requiring undergrounding of equipment with overly strict exceptions,the Draft Ordinance should include standards to minimize visibility of pole-mounted equipment, such as painting to match and rotation on a pole away from dominant sight lines. Conclusion There is no pressing emergency warranting adoption of an urgency ordinance to address small wireless facilities in the right-of-way. The Draft Ordinance and Draft Guidelines include numerous unlawful provisions that may lead to challenges by wireless carriers if applications are denied. The Council should direct staff back to the drawing board to develop workable regulations in consultation with industry. Verizon Wireless would be pleased to discuss its network plans with staff. Verizon Wireless's typical small cell designs are unobtrusive and should be approved administratively. We urge the Council to defer adoption of any new right-of-way ordinance. Very truly yours, Q<Pdeia rT Paul B. Albritton cc: Craig Steele, Esq. Jill Ingram Steve Myrter