ATTACHMENT G
Verizon Wireless Comments to City Council on Proposed
Ordinance Update and Policy
dated February 3, 2023
MACKENZIE & ALBRITTON LLP 155 SANSOME STREET, SUITE 800 SAN FRANCISCO, CALIFORNIA 94104 TELEPHONE 415 / 288-4000 FACSIMILE 415 / 288-4010 February 3, 2023 VIA EMAIL Mayor Rebecca Jones Deputy Mayor Sharon Jenkins Council Members María Nuñez, Mike Sannella and Ed Musgrove City Council City of San Marcos 1 Civic Center Drive San Marcos, California 92069 Re: Draft Small Cell Policy and Wireless Facilities Ordinance City Council Agenda, February 28, 2023 Dear Mayor Jones, Deputy Mayor Jenkins and Council Members: We write on behalf of Verizon Wireless regarding the draft Policy on Small Wireless Facilities within the Public Rights-of-Way (the “Draft Policy”) and the draft ordinance regulating wireless facilities (the “Draft Ordinance”). Verizon Wireless supports the City’s initiative to update its wireless facility regulations, appreciates staff’s outreach to industry, and looks forward to being of continued value to the community. Following the Planning Commission’s adoption of some of our recommendations, there remain a few additional issues for the City Council’s consideration. We respectfully recommend that certain Draft Policy design standards be revised to ensure consistency with Federal Communications Commission (“FCC”) regulations, which require reasonable aesthetic criteria for small cells. We further recommend that equipment dimension limits be expanded to accommodate the radio models available from manufacturers that are required for service. Lastly, we recommend that the Draft Policy include additional design standards for new carrier-owned poles, which may be required where existing poles are infeasible for wireless attachments. We respectfully ask the Council to consider and adopt our recommended revisions prior to final approval of the Draft Policy and Draft Ordinance. To assist staff with its analysis, we have attached a chart summarizing our recommended revisions. The FCC’s Infrastructure Order In its 2018 Infrastructure Order, the FCC confirmed that a local government’s aesthetic criteria for small cells must be “reasonable,” that is, technically feasible and meant to avoid “out-of-character” deployments, and also “published in advance.” See
San Marcos City Council February 3, 2023 Page 2 of 4 Accelerating Wireless Broadband Deployment by Removing Barriers to Infrastructure Investment, Declaratory Ruling and Third Report and Order, 33 FCC Rcd. 9088, ¶¶ 86-88 (September 27, 2018) (the “Infrastructure Order”). The FCC also found that that for small cells, local requirements that “materially inhibit” service improvements and new technology constitute an effective prohibition of service under the Telecommunications Act. Id., ¶¶ 35-37; see also 47 U.S.C. §§ 253(a), 332(c)(7)(B)(i)(II). Federal courts have upheld these FCC requirements. See City of Portland v. United States, 969 F.3d 1020 (9th Cir. 2020), cert. denied, 141 S.Ct. 2855 (Mem) (U.S. June 26, 2021). Our comments on the Draft Policy and Draft Ordinance are as follows, and summarized on the attached chart. Draft Policy – Small Cells in the Right-of-Way 10(b). Support structure preferences. This list prefers streetlight poles owned by the City over utility poles and new carrier-owned poles. However, if strictly applied, preferring City-owned poles would contradict Government Code Section 65964(c), which bars cities from limiting wireless facilities to sites owned by particular parties. Verizon Wireless may attach equipment to existing utility poles and place its own new poles along the right-of-way pursuant to Public Utilities Code Section 7901. This structure preference list would benefit from the same 300-foot search distance as the location preferences of Section 10(a). We suggest that the City simply prefer existing poles of any owner over a new pole, while permitting a new pole if there is no feasible existing pole within 300 feet. 11(a)(2). Least visible equipment. Requiring the “smallest and least visible” antennas and equipment places the City in the position to dictate the technology used by wireless carriers, given that larger antennas and radios are required for certain frequencies licensed by the FCC. Reducing antenna size would limit a facility’s coverage footprint, requiring more small cells on more poles. By dictating technology choices, the City would intrude on the exclusive federal authority over the technical and operational aspects of wireless technology, which are under the jurisdiction of the FCC. See New York SMSA Ltd. Partnership v. Town of Clarkstown, 612 F.3d 97, 105-106 (2nd Cir. 2010). To avoid legal conflict, the City should avoid this vague criterion. This provision should be deleted. 11(b), (c). Streetlight design standards. The referenced City Street Lighting Standards and Specifications require antennas to be attached only to the top of a pole and prohibit antennas attached to the side. Specifications, p. 10. However, that would unreasonably prohibit the side-mounted configurations shown in the example photos on Draft Policy Pages 26-27, which are commonly used for antennas that operate at higher frequencies. The Draft Policy should allow for multiple side-mounted antennas on streetlight poles and new carrier-owned poles. 11(d)(1)(B). Horizontal projection. As discussed above, side-mounted antennas may be required for certain frequencies. To deny them would be unreasonable, so they should San Marcos City Council February 3, 2023 Page 3 of 4 not be discouraged. The first sentence requiring that side-mounted antennas be “avoided” should be deleted. 11(d)(2). Pole-mounted accessory equipment. For new, stand-alone carrier-owned poles, the radios and other accessory equipment can be concealed within a shroud surrounding the pole base. We suggest adding a provision for stand-alone poles allowing a base equipment shroud up to 48” H x 20” W x 20” D. 11(d)(2)(A). Preferred stealth/concealment techniques (equipment shroud dimension limits). For facilities on utility poles, Verizon Wireless typically places radios and other accessory equipment within a concealing shroud. However, the proposed maximum dimensions of 46” H x 18” W x 14” D could limit the number and size of radios, given that a shroud must also enclose power supplies, other network components and cables, while providing room for air circulation. With adequate radio power, a small cell can serve a larger area. For a reasonable criterion, we suggest expanding the allowed shroud dimensions to 72” H x 20” W x 20” D. 11(e)(1). Ground-mounted stealth/concealment (pole-mounted equipment volume limit). The first sentence would limit pole-mounted accessory equipment to 12 cubic feet, but that would curtail the size of concealing shrouds, thereby limiting the number and size of radios, as discussed above. The FCC’s definition of small cell provides for accessory (non-antenna) equipment up to 28 cubic feet. 47 C.F.R. § 1.6002(l)(3). We suggest increasing this volume limit to 20 cubic feet. 11(f). Underground accessory equipment. This requires undergrounding of accessory equipment in underground utility areas (where generally the only poles are streetlights) or anywhere the Director believes that above-ground equipment would “incommode” the public use. However, that would contradict the City’s Street Lighting Standards and Specifications, which allow pole-mounted equipment enclosures up to six cubic feet. Specifications, p. 10. For new, carrier-owned poles that may be required in underground utility areas, radios and other accessory equipment can be concealed within a shroud surrounding the pole base, as discussed above. Undergrounding requirements are unreasonable in two ways, both in conflict with the FCC’s Infrastructure Order. First, undergrounding generally is technically infeasible due to sidewalk space constraints, utilities already routed underground and undue environmental and operational impacts for required cooling and dewatering equipment. Second, small cell accessory equipment is not “out-of-character” among other right-of-way infrastructure. Leaving the choice of undergrounding to the Director at the decision stage poses another conflict with the Infrastructure Order, which requires that small cell standards be published in advance so applicants can plan their designs accordingly. This provision should allow up to six cubic feet of accessory equipment on a streetlight pole, or equipment concealed within a stand-alone pole base shroud, before undergrounding is San Marcos City Council February 3, 2023 Page 4 of 4
considered. The provision allowing the Director to require undergrounding anywhere should be deleted. Draft Ordinance 20.465.030(B)(1), 20.465.040(D)(1), 20.465.050(B). Effective prohibition standard (significant gap). Revisions to these sections would require applicants siting in discouraged areas or on parcels less than one acre to prove that those limitations would result in an effective prohibition of service, essentially continuing the code’s requirement to prove a “significant gap” in service. However, this would place the City in the position to disagree with an applicant’s gap data, which could lead to court challenges. There is no reason to require the extra hurdle of a “significant gap” determination because the ordinance already imposes strict camouflaging requirements that would apply in discouraged areas, and it requires applicants to prove that no preferred alternative locations are feasible. For small cells, including those on private property, the FCC has disfavored the “significant gap” standard and instead adopted the “materially inhibit” standard. Infrastructure Order, ¶¶ 37, 40. References to “significant gap” should be deleted. 20.465.050(A). Preferred locations. As revised, this preference list mixes small cell and macro facility types as well as right-of-way and private property sites. As noted above, a city cannot dictate the technology used by wireless providers, so San Marcos could not deny a macro facility needed for broad coverage due to a preference for one or more small cells. The proposed references to small cells (Items 2, 3 and 7) should be deleted. This preference list would generally apply to macro wireless facilities, and it would benefit from a reasonable search distance for any preferred locations, similar to the Draft Policy location preferences. This would provide clear direction to applicants and staff alike. We suggest revising Section 20.465.050(A) to limit the search distance for any preferred locations on private property to one-quarter mile. The City could consider a lesser search distance for small cells on private property under Section 20.465.050(D). Verizon Wireless appreciates the opportunity to provide comment on the Draft Policy and Draft Ordinance. We urge the Council to incorporate our suggested revisions prior to final adoption. Very truly yours, Paul B. Albritton Attachment: Summary of Suggested Revisions cc: Helen Holmes Peak, Esq. Sean del Solar Verizon Wireless Summary of Suggested Revisions San Marcos Small Cell Policy and Wireless Facilities Ordinance February 3, 2023 Section Description Suggested Revision Small Cell Policy 10(b) Support structure preferences Prefer existing poles of any owner over new poles. Allow new pole if no feasible existing pole within 300 feet. 11(a)(2) Least visible equipment Delete 11(b), (c) Streetlight design standards Allow multiple side-mounted antennas on streetlight poles and new poles 11(d)(1)(B) Horizontal projection Delete first sentence 11(d)(2) Pole-mounted accessory equipment Allow base equipment shroud for new poles up to 48” H x 20” W x 20” D 11(d)(2)(A) Preferred stealth/concealment Expand allowed shroud dimension to 72” H x 20” W x 20” D 11(e)(1) Ground-mounted stealth/concealment Increase volume limit to 20 cubic feet 11(f) Underground accessory equipment Allow up to six cubic feet of accessory equipment on a streetlight pole. Allow equipment within base shroud for a new pole. Delete Director discretion provision. Wireless Facilities Ordinance 20.465.030(B)(1) 20.465.040(D)(1) 20.465.050(B) Effective prohibition standard Delete references to “significant gap”
20.465.050(A) Preferred locations Delete references to small cells in Items 2, 3 and 7. Limit search distance for private property sites to 0.25 miles.