SAN MARCOS CITY COUNCIL MEETING
MARCH 14, 2023
SUPPLEMENTAL INFORMATION
ITEM NO. 5 - ORDINANCE NO. 2023-1530 - SECOND READING OF
WIRELESS TELECOMMUNICATIONS FACILITIES ORDINANCE
UPDATE OF CHAPTER 20.465
1 AT&T Comments – City of San Marcos
Wireless Facilities Ordinance and Small Cell Policy
Introductory Comments
• AT&T appreciates the city’s efforts to revise its wireless facility regulations to accommodate small wireless facilities (a/k/a small cells) in the PROW.
• Small cells are low-profile, low-power wireless facilities that provide and improve vital wireless services for residents, businesses and visitors. They offer a win-win solution by providing and improving wireless services without cluttering the public rights-of-way.
• With more than 81% of California adults, and more than 98% of Californians under age 18, relying exclusively or primarily on wireless communications,1 and 74% of 911 calls made from cell phones,2 it is especially important to encourage responsible deployments consistent with applicable law.
Important Legal Concepts
• The Federal Telecommunications Act of 1996 (“Act”) establishes key limitations on local regulations. Under the Act, the city must not prohibit or effectively prohibit wireless services. See 47 U.S.C. §§ 253(a), 332(c)(7)(B)(i)(II).
• The Act requires the City to act “within a reasonable period of time” on wireless facility applications. See 332(c)(7)(B)(ii). The FCC has codified “shot clocks” – presumptive maximum timeframes for processing applications. Applications that are not acted upon within the FCC shot clock may be deemed approved under state law. See Cal. Gov. Code § 65964.1(a).
• To avoid unlawful prohibitions, the FCC’s 2018 Infrastructure Order established an aesthetic standard for small cells. To be lawful, aesthetic requirements must be reasonable, i.e., technically feasible and published in advance.3
• AT&T has a statewide franchise right to install poles and construct telecommunications facilities in the public rights-of-way under Public Utilities Code Section 7901.
1 See Wireless Substitution: State-level Estimates from the National Health Interview Survey, 2019, available at https://www.cdc.gov/nchs/data/nhis/earlyrelease/Wireless_state_ 202108-508.pdf.
2 See Thirteenth Annual Report to Congress on State Collection and Distribution of 911 and Enhanced 911 Fees and Charges (Dec. 31, 2021), at 12, available at https://www.fcc.gov/sites/default/files/13th-annual-911-fee-report- 2021.pdf.
3 See Accelerating Wireless Broadband Deployment by Removing Barriers to Infrastructure Investment, Declaratory Ruling and Third Report and Order, FCC 18-133, 30 FCC Rcd 9088 at ¶¶ 132-137. (September 27, 2018) (“Infrastructure Order”) at ¶ 50.
2 AT&T’s Specific Comments
• The City’s application process risks shot clock compliance and, therefore, deemed approvals. Wireless Ordinance Section 20.465.060(C) and Small Cell Policy Section 6(c) provides that “applications must be submitted to the City at a pre-submittal review appointment scheduled with City staff.” The FCC has made clear that the shot clock begins to run once the applicant takes the first required step in the City’s process. Under the City’s process, the shot clock will begin once the applicant contacts the City to request a pre-submittal appointment. This is particularly problematic for the City given the 10-day timeframe to review small cell applications for completeness. And it cuts into the shorter (60-day or 90-day) shot clock for each small cell application. We recommend the City revamp this process to ensure City staff has sufficient time to review and act all on wireless facility applications.
• AT&T echoes Verizon’s comment that the City should eliminate the “significant gap” tests used throughout the Wireless Ordinance and Small Cell Policy. The FCC has rejected these significant gap tests as inappropriate for wireless siting decisions, explaining that those tests “reflect both an unduly narrow reading of the [Act] and an outdated view of the marketplace.”
4 The City should eliminate its requirements for
applicants to prove a significant gap, including in Wireless Ordinance Sections
20.465.030(B)(1), 20.465.040(D)(1), and 20.465.050(B).
• AT&T also echoes Verizon’s concern that the City’s listing of preferred and discouraged locations should not mix location types with facility types. Federal courts and the FCC have rules that localities are preempted from dictating technology (i.e., small cells versus macro sites).5 Wireless Ordinance Section 20.465.050(A)&(B) should be revised to eliminate references to small cells as location types. Likewise, the City should eliminate preferences for attachments to City-owned property. Steering applicants to attach to City- owned poles will violate Cal. Gov. Code § 65964(c).
• Wireless Ordinance Section 20.465.060(A)(8), which requires proof that a proposed facility “has been designed to the minimum height required,” should be deleted because it contradicts other ordinance provisions that prefer collocations.
• Finally, AT&T requests that the height dimension for cabinets under Small Cell Policy Section 11(d)(2)(A) be expanded to 47 inches in order to accommodate real-world designs.
4 Infrastructure Order at ¶ 40, n.94 (“prior approaches erred by requiring coverage g aps”).
5 See, e.g., N.Y. SMSA Ltd. P’ship v. Town of Clarkstown, 612 F.3d 97, 105 (2d Cir. 2010) (city preempted from requiring deployment of specific alternative technology as FCC has exclusive authority over technical and operational matters concerning wireless communications); Bennett v. T-Mobile U.S., Inc., 597 F.Supp.2d 1050, 1053 (C.D. Cal. 2008) (FCC has regulated “every technical aspect of radio communication”); Public Utility Comm’n of Texas Petition for Declaratory Ruling and/or Preemption of Certain Provisions of the Texas Public Utility Regulatory Act of 1995, Opinion and Order, 13 FCC Rcd 3460, ¶¶ 13, 74 (FCC rel. Oct. 1, 1997) (FCC ruled it is unlawful for a state or locality to specify the ‘means and faci lities’ through which a service provider must offer services).