1 Attachment 5 – Federal and State Laws – Wireless Ordinance and Design Standards Update I. Federal Telecommunications Act
A. Radio Frequency Emissions
Congress delegated authority to the FCC to establish a national standard for human RF emissions exposure limits. In the TCA, Congress likewise preempted state and local regulations:
No State or local government or instrumentality thereof may regulate the placement, construction, and modification of personal wireless service facilities on the basis of the environmental effects of radio frequency emissions to the extent that such facilities comply with the [FCC]’s regulations concerning such emissions.
The Telecommunications Act also expanded the FCC’s authority to preempt state or local actions (or failures to act) that violate the statutory prohibition. Pursuant to its delegated authority from Congress, the FCC established rules and standards for human exposure to RF emissions (the “FCC Rules”). The FCC Rules occupy the field, which means that state and local governments cannot establish their own standards or engage in supplemental regulation.
The FCC Rules regulate exposure rather than emissions. Although the FCC Rules apply different maximum power levels for different frequencies, it does not distinguish between different frequency modulation technologies (e.g., “4G” versus “5G”). The FCC Rules also regulate thermal effects from RF emissions rather than non-thermal effects.
Site operators must continuously comply with the FCC Rules. At the federal level, the compliance evaluation process generally involves a demonstration through predictive models based on the proposed equipment’s maximum output power or a compliance certification by the operator for facilities that qualify for “categorical exclusion” from routine compliance evaluation. On-site tests are rarely required except in enforcement actions by FCC staff.
Although state and local governments cannot establish their own standards for RF exposure, local officials may require wireless applicants to demonstrate compliance with the FCC Rules. In the RF Procedures Order, the FCC acknowledged that state and local governments have a legitimate interest in compliance with the FCC Rules. However, the RF Procedures Order does not dictate any specific method for compliance demonstrations. Instead, the FCC encouraged municipalities and industry to establish best practices that resemble the FCC’s own compliance evaluation process.
B. Unreasonable Discrimination
Under the TCA, local governments may not unreasonably discriminate against providers of functionally equivalent services. “[F]unctionally equivalent services . . . refer[s] only to personal wireless services . . . that directly compete against one another.” Thus, different regulations for non-commercial facilities and commercial facilities would not be unreasonable discrimination. The standard permits reasonable discrimination and localities retain “flexibility to treat facilities that create different visual, aesthetic, or safety concerns differently to the extent permitted under generally applicable zoning requirements, even if those facilities provide functionally equivalent services.” To prevail on this claim, carriers must 2 show that the local government discriminated between two similar service providers who submitted two similar proposals in two similar contexts.
C. Actual and Effective Prohibitions
A single permit denial can cause an effective prohibition. However, the test to determine when a permit denial effectively prohibits personal wireless services is somewhat uncertain due to recent actions by the FCC to displace prior judicial interpretations.
In 2005, the Ninth Circuit federal appeals court adopted a test that requires the applicant to show that (1) a “significant gap” in the applicant’s service coverage exists; and (2) the proposed facility was the “least intrusive means” to mitigate the significant gap. Both elements require a fact-intensive analysis that courts undertake without deference to findings made by the local government.
In 2018, the FCC interpreted that an effective prohibition occurs when a city “materially limits or inhibits the ability of any competitor or potential competitor to compete in a fair and balanced legal and regulatory environment.” This test applies to an entity’s ability to provide a personal wireless service, a telecommunication service or both. This test also applies “not only when filling a coverage gap but also when densifying a wireless network, introducing new services or otherwise improving service capabilities.” The FCC Order that discussed this new interpretation was focused on small wireless facilities, and it was left unclear whether the new standard was intended to apply to other types of wireless facilities.
Although the Ninth Circuit affirmed the FCC’s authority to adopt the “materially inhibit” standard, the ambiguity remains, and it has not applied the test to a local permit denial for a wireless facility. As a practical matter, parties in litigation over these issues often argue both standards. This pattern will likely continue until there is further clarification.
D. Final Action within a Reasonable Time
The TCA requires state and local governments to act on duly filed applications within a “reasonable” time. FCC interpretations for what amounts to a reasonable time for local review, when applications may be deemed incomplete and what consequences arise from a failure to act within the applicable timeframe, differs based on the wireless facility proposed in each application. These FCC rules are known as the shot clock rules.
The shot clock encompasses all the authorizations necessary for the deployment, including discretionary zoning and ministerial building and safety permits. The shot clock may be tolled by mutual agreement between the applicant and permitting agency. Special rules exist to toll the shot clock for applications that are incomplete. Some key rules are also summarized in the list below:
•General Shot Clock Timing:
o60 days to collocate a small wireless facility on an existing structure. ▪Or an “eligible facilities request” under “Section 6409” (described below) o90 days to process a small wireless facility that is not collocated. o150 days to process most other facilities, such as a new cell tower. 3 •Shot Clock Commencement: The shot clock begins to run when an application is submitted whether the application is complete or not.
•Publicly Stated Rule: Application requirements must be in some publicly stated format (e.g., municipal code, wireless policy, online materials, handouts, checklists, guidelines, etc.). Local governments need not codify application requirements to enforce them for FCC shot-clock purposes.
•One-Bite Rule: The first incomplete notice must contain all the missing or incomplete items for a complete application. Subsequent incomplete notices toll the shot clock only when the response by the applicant fails to meet the criteria identified in the first incomplete notice.
The ability to meet shot clock deadlines is important because failure to act within them gives rise to a claim for unreasonable delay. Compliance is especially important in California because, as discussed in Part IV.B below, failure to timely approve or deny may result in an automatic approval.
E. Written Denial Requirements
Denials—and the reasons for the denial—must be in writing. Although the reasons need not appear in the same writing as the denial itself, the reasons must be “contemporaneously available.” Moreover, the writing may take various forms, such as a formal resolution, approved meeting minutes or a letter from staff, so long as the reasons for denial are sufficiently clear to enable judicial review.
F. Substantial Evidence Standard for Denials under Judicial Review All wireless permit denials must be supported with “substantial evidence in a written record.” “Substantial evidence” refers to the legal standard judges use to evaluate agency decisions and requires:
(1) an authorization in local law to deny the application on the basis cited by the local government and (2) reasonable evidence to support the local decisionmakers’ conclusion. Although the standard is deferential towards the agency, courts have held that speculative or generalized concerns do not constitute substantial evidence.
G. General TCA Remedies
Any person aggrieved by a final action or failure to act in connection with a permit application may seek expedited review in federal district court within 30 days from the final action or failure to act. If the matter relates to preempted RF regulations, aggrieved parties may petition the FCC for relief as an alternative to judicial review. Federal courts retain discretion to craft appropriate remedies but an order to issue permits to the applicant is an increasingly common result for TCA violations, and the FCC encourages courts to issue injunctions even for procedural violations. However, plaintiff-applicants generally cannot recover damages, attorney’s fees, or costs for TCA violations by a state or local government.
II. Federal Laws for “Small Wireless Facilities”
On September 27, 2018, the FCC adopted a Declaratory Ruling and Third Report and Order, FCC 18-133 (the “Small Cell Order”). The Small Cell Order covered many topics but the key changes in the law included: (1) a reinterpretation and new legal test for an “effective prohibition” that abrogates the 4 significant gap element in prior judicial tests; (2) defines a new regulatory classification for “small wireless facilities”; (3) limited the fees that can be charged for small wireless facilities; (4) described specific limitations on local aesthetic regulations for small wireless facilities; and (5) established new shot clock rules specific to applications for these facilities. Portions of the Small Cell Order were invalidated by the Ninth Circuit, as noted in the second bullet point below.
The FCC’s new test for effective prohibition was discussed in more detail in Part I.A above. The other key changes are summarized below:
• Fee Limitations: The FCC limits fees for small wireless facilities to costs. Fees effectively prohibit small wireless facilities unless: “(1) the fees are a reasonable approximation of the state or local government’s costs, (2) only objectively reasonable costs are factored into those fees, and (3) the fees are no higher than the fees charged to similarly situated competitors in similar situations.” “Fees” include both one-time charges (such as an application fee) and recurrent charges (such as a pole attachment fee or rent). However, limitations on recurring fees do not apply to facilities placed outside the ROW, such as a small wireless facility installed on the rooftop above city hall.
• Limitations on Aesthetic Regulations: Aesthetic requirements must be (1) reasonable and (2) published in advance. In this context, “reasonable” means “technically feasible and reasonably directed to avoiding or remedying the intangible public harm of unsightly or out-of-character deployments are also permissible.” The FCC Order also required aesthetic requirements to be no more burdensome than those applied to other ROW users and objective, but the Ninth Circuit invalidated those two requirements on judicial review.
• Batched Applications: State and local governments must allow applicants to submit “batched” applications. A “batch” means either multiple applications submitted at the same time or a single application that covers multiple facilities. The FCC does not mandate which approach state or local governments adopt. The longest shot clock applicable to any site in the batch defines the shot clock for all other sites included in the same batch. For example, if a batch includes three collocations and one installation on a replacement pole, the 90-day shot clock applies to all four facilities.
III. Federal Laws for “Eligible Facilities Requests” (EFRs) Section 6409(a) requires that State and local governments “may not deny, and shall approve” any “eligible facilities request” for collocation, removal, or replacement of transmission equipment on an “existing wireless tower” or “base station” so long as it does not cause a “substant[ial] change in [that site’s] physical dimensions.” A “tower” means any structure built solely or primarily to support transmission equipment, whether it actually supports any equipment or not. A “base station” means a non-tower structure in a fixed location approved for use as a wireless support by the local jurisdiction that actually supports transmission equipment at the time a collocation or modification request is submitted.
FCC regulations and orders adopted in 2014 and in 2020 interpret key terms in this statute and impose certain substantive and procedural limitations on local review. Localities must review applications submitted for approval pursuant to Section 6409(a), but the applicant bears the burden to show it 5 qualifies for mandatory approval.
a. Substantial Change Thresholds and Timing
The FCC created a multi-part test to determine whether a “substantial change” occurs or not, which involves thresholds for height increases, width increases, new equipment cabinets, new excavation, changes to concealment elements and permit compliance. Thresholds differ between towers and base stations. For example, a height increase of a base station or right-of-way facility of up to 10 feet or 10% (whichever is greater) would be considered a ministerial “eligible facilities request.” So too would a width increase of up to 6 feet for the same facility. Other thresholds apply in the context of additional equipment cabinets (generally, four), changes in concealment, and compliance with prior conditions of approval.
A project that exceeds any one threshold causes a substantial change. Additionally, the FCC considers a substantial change to occur when the project replaces the entire support structure or violates a generally applicable law or regulation reasonably related to public health and safety. State and local jurisdictions cannot consider any other criteria or threshold for a substantial change.
If the local government fails to approve or deny an EFR application within the 60-day shot clock, federal regulations deem the application granted upon a written notice from the applicant. Local governments may challenge the deemed granted notice in federal court within 30 days from the notice, but otherwise the applicant may proceed with construction.
IV. California Wireless Siting Laws
A. Public Utilities Code Sections 7901 and 7901.1
California Public Utilities Code Section 7901 provides that telephone corporations may construct facilities along public roads in ways and locations that do not “incommode” the public use of the road. In 2019, the California Supreme Court held that incommode means “to disturb or give inconvenience to public road use”, which preserves local authority to regulate on the basis of its traditional police power.
Thus, while local governments cannot require telephone corporations to obtain a local franchise, rules related to aesthetics, noise, health and safety are fair game under Section 7901.
Public Utilities Code Section 7901.1 affirms local authority to regulate the time, place and manner in which telephone corporations access the right-of-way. These regulations relate to temporary construction activities and must be applied in a nondiscriminatory manner.
B. Deemed-Approved Remedies for Failures to Timely Approve or Deny Applications In addition to any federal remedies, California law provides for a “deemed approved” remedy for certain applications for wireless facilities when the city or county fails to act within the FCC shot clock. This remedy is available for macro facilities, small wireless facilities, and collocations, but not for eligible facilities requests (which already have a federal deemed granted remedy) or any facilities proposed to be installed on properties or structures owned or controlled by fire departments.
To be deemed approved, the city or county must have failed to act within the shot clock period, all public notices required for the application must be given, and the applicant must provide written notice 6 to the city or county. Cities and counties may challenge this determination by seeking judicial review within 30 days from the applicant’s written notice.
C. AB 965 (Carrillo) [Cal. Gov’t Code § 65964.3]
Effective January 1, 2024, state law requires local public agencies to process substantially similar “broadband projects” (e.g., wireless facilities, fiber optic cable lines, etc.) submitted at the same time by the same applicant simultaneously under a single permit application. These batches must be processed within the “presumptively reasonable” timeframe under applicable law, which includes timelines under both federal and state laws.
A batched application is deemed approved when the local public agency fails to approve or deny the application within the presumptively reasonable timeline. With some caveats, and subject to compliance with certain health and safety rules, an application may be “deemed approved” if the City does not issue the permits or provide a written decision with the reasons for denial within the presumptively reasonable timeline. The maximum limit is 50 projects for cities with populations over 50,000, and the batched application generally stands or falls as a group.