Agenda Report
Fullerton City Council
MEETING DATE: june 21, 2022
TO: CITY COUNCIL / SUCCESSOR AGENCY
SUBMITTED BY: eric j. levitt, City Manager
PREPARED BY: STEPHEN BISE, CITY ENGINEER
Vincent FrEgoso, Contract planner
SUBJECT: SMALL WIRELESS COMMUNICATION FACILITIES WITHIN PUBLIC RIGHT-OF-WAY MUNICIPAL CODE AMENDMENT
SUMMARY
City Council adopted Ordinance No. 2982 in 2001 to regulate telecommunications facilities in the public right-of-way. Staff proposes updating Ordinance No. 2982 to accommodate technology advancements and new Federal and State laws and establish methods for review, process and control of wireless communication facilities in the public right-of-way.
RECOMMENDATION
Introduce Ordinance XXXX for first reading by title only and waive further reading of the ordinance.
ORDINANCE NO. XXXX - AN ORDINANCE OF THE CITY COUNCIL OF THE CITY OF FULLERTON, CALIFORNIA, ADDING CHAPTER 15.53 AND MAKING RELATED CHANGES TO CHAPTERS 15.55 AND 15.66 OF THE MUNICIPAL CODE to REVISE THE STANDARDS FOR WIRELESS communications FACILITIES and related infrastructurE WITHIN THE PUblic RIGHT-OF-WAY Adopt Resolution No. 2022-XXX.
RESOLUTION NO. 2022-XXX - A RESOLUTION OF THE CITY COUNCIL OF THE CITY OF FULLERTON, CALIFORNIA, AMENDING THE CITY’S SCHEDULE OF FEES AND CHARGES FOR MUNICIPAL SERVICES PERTAINING TO THE PUBLIC WORKS DEPARTMENT PERMIT PROCESSING AND REVIEW FEES FOR SMALL WIRELESS COMMUNICAITON FACILITIES WITHIN PUBLIC RIGHT-OF-WAY
PRIORITY POLICY STATEMENT
This item matches the following Priority Policy Statement:
Infrastructure and City Assets.
FISCAL IMPACT
Applicants will pay the cost of implementation of the ordinance via applications for all antennas. The Federal Communications Commission has limited the amounts of certain fees for small cell antennas.
DISCUSSION
Telecommunications advancements and consumer demand for network data capacity has led to the need for smaller and more densified wireless antenna locations. Wireless providers utilize different types of antennas to deliver various wireless coverages and capacities. Providers use a “macro cell” for larger coverage with a radius of several miles and typically locate these facilities on freestanding poles, faux tree poles, tall buildings, water tanks, church steeples, etc. Providers have traditionally used these macro cell facilities until very recently.
In recent years, wireless providers have proposed placing single, “small cell” antennas and equipment on existing infrastructure located within the public right-of-way. Typically, a provider attaches a small cell antenna to a streetlight or utility pole or placed mid-span on wires between utility poles. Providers place these small cells in heavily populated locations that need additional network capacity, such as downtown areas and around heavily used traffic corridors. Providers deploy the small cell antennas areas that they cannot effectively serve with a traditional macro cell or within areas that may have coverage but not enough capacity. A small cell is not intended to replace macro cell sites, but to fill in the gap in areas with insufficient capacity.
Wireless communications providers have expressed a desire to deploy small cell antennas in the Fullerton public right-of-way to accommodate increasing consumer demand for wireless capacity and faster speeds. The providers intend to place hundreds of these antennas and associated equipment throughout the City. Currently, the Fullerton Municipal Code (FMC) does not contain regulations specifically related to small cell wireless facilities within the public right-of-way.
Additionally, Congress has enacted the Middle-Class Tax Relief and Job Creation Act of 2012 (Spectrum Act) since the City adopted Ordinance No. 2982. Spectrum Act Section 6409 requires a local government to approve any eligible facilities’ request for a modification of an existing tower or base station that does not substantially change the physical dimensions of such facility and sets timeframes for the approval process. The Federal Communications Commission (FCC) adopted Declaratory Ruling and Order No. 18-133 (“the Order”) on September 26, 2018, implementing rules that limit the City’s ability to regulate the deployment of small wireless telecommunications facilities (“small cells”). The Order limits the timeframe within which the City must review and permit small cells, including all permits or permissions (the “shot clock”), and limits the fees the City can charge. The Order also limits the types of design standards or restrictions that the City can place on small cells. However, the City may exercise reasonable control as to time, place and manner of construction within the public right-of-way (ROW). The City may also impose aesthetic requirements as long as they do not result in the actual or effective prohibition of small cells and the requirements create no more burden than those applied to other similar infrastructure deployments. The proposed draft ordinance reflects this change.
Staff from the City Attorney’s Office, Public Works Department and Planning Division have prepared a draft ordinance to regulate telecommunications facilities in the public right-of-way. Staff has also coordinated with and received input from wireless telecommunication providers on the proposed set of regulations. The draft ordinance sets forth a streamlined procedure for wireless carriers seeking permits for small, low-impact, aesthetically acceptable wireless facilities in the public right-of-way. The proposed draft ordinance includes definitions consistent with federal and state guidelines, consideration of newer technologies and inclusion of provisions to restrict above ground utility meters. The draft ordinance also identifies standards for permit issuance, site selection, location criteria and design standards.
The draft ordinance specifies the information to submit with an application for a facility in the public right-of-way, including an alternative site analysis to show why the provided could not select other less intrusive sites. The draft ordinance requires the submittal of a RF exposure compliance report by a qualified radio frequency consultant. Future application submittals will also require photo simulations and a statement that the installation will comply with all applicable radio frequency emission standards. Ultimately, the draft ordinance provides the Public Works Department with the ability to effectively regulate telecommunications facilities in the public right-of-way.
The Community and Economic Development Department would continue to review wireless telecommunication installations proposed for installation outside of public street and alley right-of-way (such as within parks and on private property).
The Planning Commission held a public hearing on April 27, 2022 to accept comments on the proposed Wireless Ordinance and recommended adoption of the attached ordinance.
Attachments:
Attachment 1 – PowerPoint Presentation
Attachment 2 – Draft Ordinance No. XXXX (including design standards) Attachment 3 – Draft Resolution No. 2022-XXX Amending the Fee Schedule Attachment 4 – Planning Commission Resolution No. PC-2022-07 Small Wireless Communication Facilities Within Public Right-of-way June 21, 2022 - Page 3