The URL can be used to link to this page

Home My WebLink AboutSupplemental - Verizon Wireless Letter Gloria Harper From: Paul Albritton <pa@mallp.com> Sent: Monday,January 28, 2019 3:15 PM To: Thomas Moore; Schelly Sustarsic; Mike Varipapa; Ellery A. Deaton; Sandra Massa-Lavitt Cc: Craig Steele;Gloria Harper;Jill Ingram; Steve Myrter; Amy Greyson Subject: Verizon Wireless Comments on Draft Ordinance and Guidelines,Wireless Facilities in the Right-of-Way-Tonight's Council Agenda Item K [Seal Beach] Attachments: Verizon Wireless Letter 01.28.19.pdf;ATT00001.htm Dear Council Members,attached is our follow-up letter prepared on behalf of Verizon Wireless commenting on the revised ordinance and guidelines regulating wireless facilities in the right-of-way. We urge the Council to decline adoption and direct staff to work with industry on needed revisions. Thank you. for Paul Albritton Mackenzie&Albritton,LLP 155 Sansome Street,Suite 800 San Francisco,California 94104 (415)288-4000 pa rr,mallp.com 1 MACKENZIE& ALBRITTON LLP 155 SANSOME STREET,SUITE 800 SAN FRANCISCO,CALIFORNIA 94104 TELEPHONE 4151288-4000 FACSIMILE 415/288-4010 January 28,2019 VIA EMAIL Mayor Thomas Moore Mayor Pro Tem Schelly Sustarsic Council Members Mike Varipapa, Ellery Deaton and Sandra Massa-Lavitt City Council City of Seal Beach 211 Eighth Street Seal Beach, California 90740 Re: Draft Ordinance and Guidelines Wireless Telecommunication Facilities in the Public Rights-of-Way Council Agenda Item K,January 28, 2019 Dear Mayor Moore, Mayor Pro Tern Sustaric and Council Members: We write again on behalf of Verizon Wireless to urge you to delay consideration of the proposed ordinance regarding wireless facilities in the right-of-way (the"Draft Ordinance")and related Rules and Guidelines(the"Draft Guidelines"). Verizon Wireless has participated in City stakeholder discussions regarding the draft regulations, and we have provided comprehensive comments describing conflicts with federal and state law. Nonetheless,the revised regulations are little changed. Notably,numerous subjective standards and public notice obligations continue to contradict the Federal Communications Commission ("FCC") Infrastructure Order that requires objective review of small cell facilities.' Other standards are unreasonable, including undergrounding and equipment placement requirements. The Draft Ordinance must be revised to eliminate legal issues. Further, for consistency, all design standards should be relocated to the Draft Guidelines. In turn,the Draft Guidelines should be revised and regularly updated by the Director, not the Council,to accommodate advances in small cell technology. The FCC allows cities until April 15,2019 to develop small cell design criteria. We urge the Council to decline adoption of these draft regulations and direct staff to work further with industry on needed revisions. See Accelerating Wireless Broadband Deployment by Removing Barriers to Infrastructure Investment, Declaratory Ruling and Third Report and Order,FCC 18-133(September 27,2018). Seal Beach City Council January 28,2019 Page 2 of 3 Numerous issues raised in our prior letter of November 30,2018 remain unaddressed in the revised Draft Ordinance and Draft Guidelines,and we emphasize several of the problematic provisions. There remain many subjective design standards: "minimize visual clutter,""as visually inconspicuous as possible,"and"compatibility with the community"are a few examples. Draft Ordinance § 6.10.070(G)(1),Draft Guidelines § 3.2.4(D)(1). Such discretionary standards contradict the FCC's direction to evaluate small cells under objective criteria that"incorporate clearly-defined and ascertainable standards,applied in a principled manner." Infrastructure Order,¶88. With objective standards,an applicant can design a facility that will surely comply—a predictable outcome, as the FCC encouraged. Subjective standards invite late-stage opinions and discretionary denials, leaving applicants to guess at the outcome,which the FCC disfavored. Ibid. By retaining subjective standards,the draft regulations clearly violate the Infrastructure Order. Public notice and comment windows also invite subjectivity. Draft Ordinance § 6.10.070(F)(1-2);Draft Guidelines §§ 3.2.2(E), 3.2.3. As with any ministerial permit,the Director of Public Works should have full expertise to evaluate compliance with objective standards without relying on public opinion. The persistent subjective standards compound the concern that public opinion would improperly sway the Director's decision. As it serves no purpose,public notice should not be required for qualifying small cells. According to the FCC,reasonable standards are those that are"technically feasible"and meant to avoid"out-of-character deployments." Infrastructure Order,¶87. Numerous design standards are unreasonable,notably the general undergrounding requirement. Draft Ordinance §6.10.070(G)(4)(g). The narrow exception for technical infeasibility does not avoid an overall contradiction with the FCC's guidance: small equipment boxes are not"out-of-character"among typical utility infrastructure in the right-of-way. Radio units should be allowed on the side of utility poles as they are not incompatible with typical utility pole features. Draft Guidelines § 3.2.7. Requirements to conceal such equipment within a narrow tubular shroud or bracket arm are unnecessary, if not technically infeasible given the limited dimensions. Similarly, mandating undergrounding if equipment cannot comply with infeasible standards is unreasonable. Draft Guidelines § 3.2.7(C). We note that because shrouds impede 5G signal propagation,any requirement to shroud 5G antennas is technically infeasible. The offer of an exception from strict standards does not excuse the numerous unreasonable design standards. To avoid challenges,the City should adopt small cell regulations only after they have been revised to comply with the Infrastructure Order. We have previously explained that the City cannot require wireless facility applicants to submit fiber installation plans at the same time as wireless facility applications. Draft Guidelines § 3.22(D)(2). Fiber backhaul connection is generally Seal Beach City Council January 28,2019 Page 3 of 3 provided by a different company under distinct permits,whereas wireless facility permittees should be responsible only for their own permitted facilities. The City cannot subject Verizon Wireless to permit conditions of a different entity,such as indemnity and insurance. This submittal requirement must be stricken. As the FCC has granted cities until mid-April to develop aesthetic criteria for small cells, there is no emergency warranting immediate adoption of the Draft Ordinance. The Council should direct staff to continue working with industry to develop workable standards that accommodate typical small cells required for service. For consistency and flexibility, all design standards should be placed in the Draft Guidelines, and those should be approved by the Director. Verizon Wireless looks forward to continued discussions with the City regarding the draft small cell regulations. Very truly yours, Paul B. Albritton cc: Craig Steele, Esq. Amy Greyson, Esq. Jill Ingram Steve Myrter Travis Brooks