Appeal Federal Communication Commission’s Orders on Small Cells

Article Source: City of San Bruno CA

DATE: October 23, 2018

TO: Honorable Mayor and Members of the City Council

FROM: Jovan D. Grogan, City Manager

SUBJECT: Adopt Resolution Authorizing the City’s Participation in an Appeal

of the Federal Communication Commission’s Orders on Small Cell Deployment

BACKGROUND:

On September 26, 2018, the Federal Communications Commission issued orders that further limit the authority of localities to regulate cellular infrastructure. The orders would take effect in January 2019.

The FCC’s stated reasons for the orders is to remove “regulatory barriers” to “widespread” small cell deployment, which is “critical” for 5G wireless communications. Because of the very short range of wireless signals in the 24- and 28-gigahertz bands, where high-speed 5G will operate, a significant number of new cell sites will need to be built, according to the FCC. The FCC notes that because these sites will be more densely located, they will not need to be as large and obtrusive as many other cell sites. These facilities are expected to be placed on existing utility infrastructures, such as utility poles.

The orders:

• Impose shot clocks of 60 and 90 days for approval of small cell facilities, which will effectively reduce the amount of time available for City review and public input
• Limit the fees that cities can charge for processing approvals to actual and reasonable costs, with “safe harbor” amounts set at $270-1,000 depending on the type of application.
• Prohibit cities from requiring undergrounding, which is incompatible with small cell technology

• Current regulations provide for 90 to 120 days depending on the application type.
• Current regulations require use permit applicants for small cell facilities in residential areas to remit a $2,145 application fee.

• While undergrounding is currently incompatible with small cell technology, the proposed regulation could limit the ability of cities to require undergrounding if technologically feasible in the future, if undergrounding would result in an “effective prohibition” of service.
• Broaden the definition of “effective prohibition” to limit the ability of residents to object to many types of cell installations; for example, city regulations that would prevent carriers from densifying a network, or introducing new or improved service capabilities, could constitute an “effective prohibition.” Current regulations arguably impose a higher standard before reaching the threshold of an “effective prohibition:” cities could potentially require carriers to demonstrate that there is a significant coverage gap and that the facility is the only reasonable means of filling the gap....
• Current regulations allow for a broader interpretation of aesthetics for cities and, as such, provide more discretion to cities in regulating small cells within their community.

 Limit aesthetic regulations to those that are published in advance and “reasonable” as defined by the FCC, and no more burdensome that those standards applied to other infrastructure

DISCUSSION:

The law firm of Best, Best, and Krieger, at which the City’s outside counsel Gail Karish is a partner, has approached cities across the country to form a coalition that would oppose the most recent FCC order by filing suit in the 9th Circuit Court of Appeals and by engaging in advocacy at the legislative and administrative level to retain local regulatory control of wireless facilities. The Washington, DC branch of the firm will handle these proceedings on behalf of the coalition members.

To date, 44 cities and local agencies in fifteen states have agreed to join the coalition. In California, the cities include Burlingame, Pleasant Hill, Fairfax, Monterey, San Jose, and the Marin Telecommunications Agency, along with nine cities in Southern California, including the City of Los Angeles.

FISCAL IMPACT:

The total cost to the City to join the coalition will be $5,000, which will up to support the coalition’s efforts to file suit in the 9th Circuit Court of Appeals opposing the most recent FCC order as well as the coalition’s efforts to advocate at the legislative and administrative level to retain local regulatory control of wireless facilities. The City intends to fund this effort through existing budgeted resources, by utilizing a portion of the salary savings in the Community Development and City Manager’s departments.

RECOMMENDATION:

Adopt Resolution Authorizing the City’s Participation in an Appeal of the Federal Communication Commission’s Orders on Small Cell Deployment

ALTERNATIVES:

• Request additional information before adopting the resolution.
• Decline to adopt the resolution.

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FULL Council Agenda Packet WITH Staff Reports can be viewed and downloaded from:

https://sanbruno.ca.gov/gov/elected_officials/city_council_minutes_n_agendas.htm

This document should be available late Thursday or Friday before the Tuesday Council Meeting

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Robert Riechel

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