ATTACHMENT 6
POST PACKET PUBLIC COMMENTS
DATE NAME COMMENT
11/14/2024 AT&T Dear Honorable Mayor and Councilmembers, Please find attached AT&T's comments to City of San Mateo's proposed small cell ordinance as presented on October 23, 2024 at San Mateo Planning Commission meeting.
AT&T is available to meet and/or answer any questions.
Sincerely,
Daren Chan
External and Legislative Affairs
AT&T California
See Attachment 6.1
11/15/2024 CTIA Mayor Diaz Nash, Deputy Mayor Newsom and Council Members Loraine, Hedges and Lee - I am submitting the following comment letter on behalf of CTIA, the trade association for the wireless industry, related to Agenda Item 19 due for consideration during the November 18 Council meeting.
Many thanks for your consideration, and please do not hesitate to reach out with any questions.
Sincerely,
Jeremy Crandall
AVP, State Legislative Affairs
See Attachment 6.2
1 DATE NAME COMMENT
11/15/2024 Paul Albritton Dear Councilmembers: Attached please find our letter prepared on behalf of Verizon Wireless regarding the draft policy regulating Verizon Wireless small cell wireless facilities in the right-of-way, to be considered at your meeting next Monday, November 18, 2024.
We urge the Council to direct staff to incorporate our suggested revisions before any approval of the draft policy. We ask that you pay particular attention to the GIS mapping consultant report attached to our letter showing that the new regulations will restrict and require the approval of an exception in over 85% of the City, materially inhibiting wireless carriers and severely overburdening City staff.
Thank you,
Paul Albritton
Mackenzie & Albritton LLP
See Attachment 6.3
11/18/2024 Paul Albritton Dear Councilmembers, today Verizon Wireless's mapping consultant prepared the below map (also attached) showing that small cells Verizon Wireless in the right-of-way would be permitted on only 24 miles of San Mateo streets, and restricted on 237 miles of streets, due to the proposed policy restricting facilities in all residential and mixed-use zones, within 300 feet of daycares and schools, and in certain fire severity zones (red shading).
We recommend that the Council postpone adoption of the small cell policy until these restrictions and other issues described in our attached November 15 letter can be addressed. Thank you.
Paul Albritton
Mackenzie & Albritton LLP
See Attachment 6.4
11/18/2024 Louise Bekins Dear Councilpersons
I believe you are considering pay raises for certain city employees like City Manager and City Attorney.
Please reimburse/pay all the attorney fees first for our No-Cell-Out Attorney who has done a fantastic job for San Mateo citizens. Up until now we individual citizens have had to foot the bill, unfairly.
Also, many, many thanks for approving the new cell tower rulings for us.
Louise Bekins
2 DATE NAME COMMENT
11/18/2024 SAMCEDA Dear Mayor Diaz Nash and Members of the Council, Please see the attached letter from SAMCEDA's President & CEO, Rosanne Foust regarding Agenda Item 19 for tonight's City Council meeting on Monday, November 18, 2024.
Thank you.
Larisa Ocañada
Marketing, Communications and Operations Manager
San Mateo County Economic Development Association (SAMCEDA) See Attachment 6.5
ATTACHMENT 6.1
AT&T Public Comment
Daren Chan AT&T Services, Inc. т 510-334-5839
Director 430 Bush Street [email protected]
CA Legislative & Regulatory Affairs Suite 500
San Francisco, CA 94108
November 14, 2024
The Honorable Lisa Diaz Nash, Mayor of the City of San Mateo and Members of the San Mateo City Council
330 West 20th Avenue
San Mateo, CA 94403
Re: Wireless Communications Facilities in the Public Right of Way; Proposed Changes to SMMC 17.10 and City Policy
Dear Mayor Nash and Members of the City Council:
AT&T appreciates this opportunity to provide comments on the City's proposed changes to its wireless ordinance and new city policy concerning small wireless facilities in public rights-of-way ("proposed policy"). AT&T has worked with City staff regarding the proposed policy, and we appreciate the time the staff has taken to consider the issues we have raised, but we remain concerned that several aspects of the proposed policy may lead the City to act in a manner inconsistent with federal and state legal requirements, lead to unnecessary disputes, and deter investment in small cells in San Mateo.
The legal concerns have been addressed in the comments submitted by the Cellular Telecommunications Industry Association, Verizon, and Joint Venture Silicon Valley, and, out of respect for the time of the Council members, we will not repeat those arguments. AT&T is most concerned, however, with the extremely restrictive location and design standards in Sections 10 and 11, the radio frequency regulations that are preempted by federal law in the proposed conditions of approval in Section 9, and the myriad of items that impose unnecessary costs and delay in the permitting process in violation of Federal Communications Commission ("F") requirements, including the FCC's Small Cell Order. See Accelerating Wireless Broadband Deployment by Removing Barriers to Infrastructure Inv., 33 FCC Rcd. 9088 (2018), aff'd in part sub nom. City of Portland v. U.S., 969 F.3d 1020 (9th Cir. 2020).
Most fundamentally, however, AT&T is concerned that the highly restrictive and costly siting regime may lead to something even more detrimental to the City and its residents than legal disputes. Small cells help bring customers faster download speeds, improved call quality and an overall better wireless experience for consumers and public safety, and they are particularly useful for adding capacity in areas with high wireless usage, providing coverage in challenging terrain (such as hilly areas), or providing both coverage and capacity in areas where it is impractical to place a macro site. For the council's consideration, I have attached a document that provides more information on the unique benefits of small cell technology. AT&T is concerned that the proposed 1 Daren Chan AT&T Services, Inc. т 510-334-5839
Director 430 Bush Street [email protected]
CA Legislative & Regulatory Affairs Suite 500
San Francisco, CA 94108
policy may end up reducing the investment and service improvements that small cells otherwise would bring to the City of San Mateo.
This draft policy is not the only way to address the issue of small cells. AT&T recognizes the the City has concerns regarding the design and placement of small cell facilities, and we have been able to address similar concerns with many other cities in a manner consistent with federal and state law. We urge the Council to send this proposed policy back to staff with instructions to work with the industry to avoid unnecessary conflicts with federal and state law while addressing the concerns regarding the design and placement of small cell facilities.
Sincerely,
such
Daren Chan
External Affairs, AT&T California
2 ATTACHMENT 5.2
CTIA Public Comment
ctia
November 15, 2024
San Mateo City Council
330 West 20th Avenue
San Mateo, CA 94403
Comments on Wireless Communications Facilities in the Public Right of Way - Update to SMMC Chapter 17.10 and City Policy
Dear Mayor Diaz Nash, Deputy Mayor Newsom and Council Members Loraine, Hedges and Lee:
CTIA®, the trade association for the wireless communications industry, is writing to respectfully express our concerns regarding suggested modifications to policies governing wireless communications facilities, which would hinder our ability to continue improving connectivity in San Mateo.
From supporting local businesses, schools, and families to ensuring public safety and resiliency of our infrastructure, strong wireless connectivity is essential to the San Mateo community, especially at a time when demand for wireless services has grown at historic rates. In 2023, Americans used more than 100 trillion megabytes of data, the largest single-year increase ever and double that of two years previous.' To meet this demand, the wireless industry invested $30 billion in private funds last year alone to improve the nation's networks. This also supports economic growth in California, where the wireless industry supports 580,000 jobs and generates $73 billion annually in GDP.? Unfortunately, CTIA is concerned that the proposed policies will impose a range of unjustified and burdensome requirements that will effectively halt further deployment as well as violate federal law.
We look forward to working with you to address these concerns and find ways to modify these provisions to advance high-quality wireless service in the City of San Mateo.
Requirements Inhibiting Deployment
While CTIA appreciates that the proposed City Policy expresses a desire to conform with federal law, in that no state or local regulation can have the effect of prohibiting the provision of personal wireless services or otherwise inhibiting deployment, the following provisions would do just that:
• (b)(3). Project Narrative
• (b)(10). Acoustic Analysis
• (b)(17). Coverage and capacity information
At a minimum, these and other requirements raise both legal and practical concerns that will ultimately hinder our members' ability to expand connectivity in San Mateo. In a 2018 order that was upheld by a United States appeals court, the Federal Communications Commission (FCC) held that state or local siting regulations that have the effect of inhibiting deployment violate Sections 253 and 332 of the federal Communications Act. Accelerating Wireless Broadband Deployment by Removing Barriers to 1 https://www.ctia.org/news/2024-annual-survey-highlights 2 https://www.ctia.org/the-wireless-industry/map/4g
1400 16th Street, NW • Suite 600 • Washington, DC 20036 • www.ctia.org Infrastructure Investment, 33 FCC Rcd 9088, 9102, aff'd in part sub nom. City of Portland v. U.S., 969 F.3d 1020 (9th Cir. 2020) ("State/Local Siting Order"). Conditioning approval on the applicant's demonstration of these and other elements to obtain permit approval will most certainly have a disadvantageous effect on deployment. The FCC's rules already impose service coverage and other related obligations on wireless providers, and the time and cost of conducting these and other analyses will be prohibitive. Requiring the applicant to provide this type and level of current and future evidentiary proof both violates federal law but also significantly discourages future investment.
Excessive and Unnecessary Requirements
There are also a range of provisions in the proposed City Policy that far exceed what is customary for effective local regulation of wireless infrastructure and are likely to halt further deployment.
Location Standards
Section 10 includes a range of location standards that, taken together, severely inhibit the ability to and utility of deploying small cell facilities in San Mateo. Small cell technology relies on small antennas - often no more than three cubic feet in size - that are placed close to the ground, typically on utility or light poles. While this technology helps address aesthetic concerns associated with large antenna towers or other structures, wireless signals using small cells cannot propagate as far. As a result, various location restrictions in Section 10 - 300-foot setbacks, front door and window and residential driveway proximities - would in practice prohibit the effective deployment of a technology that is specifically designed to both improve coverage as well as minimize visual impacts in a community.
Additionally, Section 6 and 13 related to Exceptions create even further challenges. First, these provisions would effectively always require an exception for the deployment of small cells in most City rights-of-way. Second, an exception request would be treated as a new application, deeming an existing application to be withdrawn. In practice, this policy approach is incompatible with and in violation of the FCC's regulations governing shot clocks for small cell facilities and creates a policy environment geared towards denying a permit and prohibiting service.
Design Standards
Given the technical nature of wireless technology, Section 11 of the City Policy presents some of the most challenging barriers to compliance for our members. By way of background, small cells constitute the physical backbone of our wireless networks, and by the end of 2023, there were approximately 432,000 operational cell sites across the nation. Put simply, our members have considerable knowledge and expertise about how to effectively and appropriately deploy them in communities to improve connectivity to meet demand. Unfortunately, Section 11 introduces a range of provisions that are far more granular and prescriptive than is necessary and would in fact deter our members from further small cell deployment. Whether it be antenna volume or shrouding, height, accessory equipment, orientation or other elements, many of the provisions in Section 11 are not reflective of standard industry practices and requirements for effective deployment of small cell technology. When deploying this and other kinds of wireless infrastructure, our members seek to work with local governments to ensure minimal community impact, and the City of San Mateo already retains the ability to implement a host of aesthetic requirements on our providers without this level of prescriptiveness. Taken together, many of these provisions are highly restrictive and unnecessary.
Peer Review Consultancy Cost
The proposed Policy enables the City to require providers to fund retainment of an outside consultant for the otherwise straightforward review of a wireless application. This provision is both unreasonable and likely unlawful. Federal law is clear that while localities are permitted to assess fees for management of their rights-of-way for wireless deployment, those fees must be cost-based.
Accelerating Wireless Broadband Deployment by Removing Barriers to Infrastructure Investment, 36 FCC Rcd 9088 at 99 72-76 (2018), aff'd in part sub nom. City of Portland v. United States, 969 F.3d 1020 (9th Cir. 2020). Absent any information otherwise, requiring providers to cover the cost of a consultant in the manner prescribed in the Policy suggests this fee is not cost-based.
Radio Frequency (RF) Compliance Requirements
Federal law is expressly clear related to issues surrounding radiofrequency (RF) emissions from wireless infrastructure. Section 332(c)(7)(B)(iv) states that a state or locality may not regulate the location of wireless facilities "on the basis of the environmental effects of radio frequency emissions." As such, local governments cannot base their permit approval decisions for a wireless site on radiofrequency concerns. The FCC has exclusive authority over RF emissions and has adopted rules that all wireless providers must meet. However, the City Policy contains a range of provisions directly or impliedly related to initial and ongoing RF monitoring and reporting obligations that go far beyond what the FCC's rules require. These provisions are disallowed by federal law and will hinder further deployment.
We appreciate the City's consideration of our feedback. The wireless industry strongly recommends greater flexibility in installation of small cell wireless facilities, which again are specifically designed to both improve coverage as well as minimize visual impacts in a community. We encourage the City to work with our members to explore potential solutions. Thank you again for the opportunity to share our feedback.
Sincerely,
Jeremy Crandall
Jeremy Crandall
Assistant Vice President
State Legislative Affairs
ATTACHMENT 6.3
Verizon Wireless Public Comment
MACKENZIE & ALBRITTON LLP
155 SANSOME STREET, SUITE 620
SAN FRANCISCO, CALIFORNIA 94104
TELEPHONE 415/288-4000
FACSIMILE 415 / 288-4010
November 15, 2024
VIA EMAIL
Mayor Lisa Diaz Nash
San Mateo City Council
330 West 20th Avenue
San Mateo, California 94403
Re: Draft Policy for Small Wireless Facilities in the Public Right-of-Way Council Agenda Item 19, November 18, 2024
Dear Chair Nash, Deputy Mayor Newsom, and Council Members:
We write on behalf of Verizon Wireless to provide comment on the draft policy regulating small cell wireless facilities (the "Draft Policy"). Verizon Wireless is concerned about a proposed location restriction that would prohibit small cells in most San Mateo rights-of-way, unless the City approves an exception with a finding, in each case, that denial would constitute a violation of state and federal law.
The attached report and maps show that restricting small cells in all residential/mixed-use zones, within 300 feet of daycares and schools, and in certain fire hazard zones would prohibit right-of-way facilities in 85 percent of the City's zoned area.
Requiring an exception to site in the restricted areas would inappropriately place the Public Works Director or an appeal hearing officer in the position of a judge deciding whether federal law compels approval, notwithstanding City restrictions. As we explain below, this prohibition/exception scheme would itself contradict Federal Communications Commission ("FCC") regulations and state law.
Instead of imposing broad location restrictions, the City should continue to rely on its current, reasonable location preferences for small cells, which were developed in collaboration with the wireless industry.
Other Draft Policy restrictions, such as height and equipment protrusion limits, should expanded to accommodate strict state safety rules. With reasonable standards that accommodate typical small cell designs, a single facility can serve a larger area and provide more data capacity, and fewer facilities would be needed overall. Verizon Wireless must continue to deploy small cells in San Mateo to meet rapidly-increasing user demand, San Mateo City Council
November 15, 2024
including in residential areas that comprise most of the City. We urge the Council to direct staff to incorporate our suggested revisions prior to adoption of the Draft Policy.
FCC Regulations and State Law
According to the FCC's 2018 Infrastructure Order, a local government's aesthetic criteria for small cell facilities must be "reasonable," that is, technically feasible and meant to avoid "out-of-character" deployments. See Accelerating Wireless Broadband Deployment by Removing Barriers to Infrastructure Investment, Declaratory Ruling and Third Report and Order, 33 FCC Rod. 9088, 191 86-88 (September 27, 2018). The FCC ruled that local standards that "materially inhibit" service improvements constitute an effective prohibition of service under the Telecommunications Act. Id., 19l 35-37; see also 47 U.S.C. §§ 253(a), 332(c)(7)(B)(i)(II). The FCC emphasized that "a legal requirement can 'materially inhibit' the provision of services even if it is not an insurmountable barrier." Infrastructure Order, 9| 35. 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).
California Public Utilities Code Section 7901 grants telephone corporations such as Verizon Wireless a statewide right to install their infrastructure along any public right- of-way, including new poles.
The Proposed Location Restrictions and the Exception Scheme Violate FCC Regulations and State Law.
Draft Policy Section 10(a) would prohibit small cells in the rights-of-way of all residential and mixed-use zones, within 300 feet of residences, daycares, and school structures, and within very high fire hazard severity zones, unless the City approves an exception.
Restricting small cells in the City's residential and mixed-use zones would exclude the rights-of-way in 77 percent of San Mateo's zoned area, according to the attached report by Geospatial Educator and Certified Urban Planner Richard Kos.
Adding restrictions due to the proposed 300-foot buffers around the City's 104 daycares and schools, plus in very high fire hazard severity zones, would in total exclude 85 percent of the City's zoned area. Notably, nearly all City streets are within this restricted area. (City staff provided a list of the 104 daycares and schools in San Mateo, attached to the report.)
For example, almost all of El Camino Real would be prohibited simply due to the residential/mixed-use zone restriction. Remaining stretches of El Camino Real, such as the sidewalks around the 17h Avenue intersection near Safeway, would be prohibited because they are within 300 feet of various residences on nearby streets.
The various location restrictions would create broad and overlapping exclusion zones, constituting a direct prohibition of service in violation of the Federal San Mateo City Council
November 15, 2024
Telecommunications Act. 47 U.S.C. §§ 253(a), 332(c)(7)(B)(i)(II). The restrictions would also pose a direct conflict with California Public Utilities Code Section 7901, which grants telephone corporations the right to install their equipment along any public right-of-way.
Almost all new small cells would be ineligible for straightforward administrative permit approval. To overcome the location prohibitions, applicants would need to secure a special exception under Draft Policy Section 13. The requirement for special exceptions would become the rule.
The exception scheme is problematic because of its extra findings, which require applicants to prove that denial would violate federal and/or state law. Draft Policy § 13(b).
This inappropriately places the Director (or a hearing officer on appeal) in a quasi-judicial position to make subjective legal determinations about telecommunications law. However, Congress tasked federal courts with evaluating whether a city's final permit decision constitutes a prohibition of service. 47 U.S.C. §§ 332(c)(7)(B)(i)(II), 332(c)(7)(B)(v).
The special exception findings are not based on reasonable aesthetic criteria, land use impacts, or safety factors, and they could lead to repeat unfounded denials. That would "materially inhibit" service improvements, and constitute a prohibition of service in contradiction of FCC regulations and the federal Telecommunications Act.
By granting an exception after an application is filed, the City would be correcting an unreasonable and prohibitive location restriction by consenting to a new standard on a case-by-case basis, violating the FCC's requirement that small cell standards be "published in advance." Relying on "exceptions" that would be required over and over, the City would concede that the proposed location restrictions are prohibitive and preempted. Section 10(a) regarding location restrictions must be deleted.
Comments on Specific Draft Policy Requirements
Following are our itemized comments on the Draft Policy.
Section 6- Application and Review Procedures
(b)(3). Project narrative. This requires a statement about an applicant's planned deployments over a 12-month period after submittal. However, that is not pertinent to any Draft Policy standards or findings, and could lead to unfounded denials. This section should be deleted.
(b)(5). Photosimulations (of each alternative). A recent Draft Policy revision would require photosimulations for each feasible alternative site. However, this invites subjective review and is irrelevant to the design criteria and permit findings, which are objective in nature. This irrelevant requirement would add considerable expense for an application. The last sentence requiring photosimulations of alternatives should be San Mateo City Council
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(b)(10). Acoustic analysis. Some small cells operate nearly or completely silently, and there is no reason to request a costly engineer's acoustic analysis for noiseless installations. Many cities allow applicants to submit manufacturer acoustics information in lieu of a formal engineer's analysis. This section should allow an applicant to submit manufacturer specifications with any acoustics information for each piece of equipment, instead of an acoustic analysis.
(b)(13). Truth and accuracy statement. This requires an applicant to attest that all information is true and correct, under the excessive penalty of perjury standard.
However, applicants are generally wireless carriers or their site acquisition consultants, who cannot be held responsible for information prepared by third parties, such as architectural plans or compliance reports. Those are generally prepared by registered engineers who affix their professional stamp, which serves as a declaration that a proposed design complies with applicable regulations. This section should be deleted, and references to "penalty of perjury" should be scrubbed from the Draft Policy. (b)(16). Coverage and capacity information. This is also irrelevant to required permit findings and standards. This section should be deleted. (b)(17). Exception request. According to this provision, an applicant's request for an exception after submittal would be treated as a new application, with the existing application deemed withdrawn. However, a unilateral withdrawal by the City would be an effective denial of the application, and the City would lack substantial evidence to deny on the merits as required by the Telecommunications Act. 47 U.S.C. § 332(c)(7)(B)(iii). Further, the FCC's "Shot Clock" rules contemplate incomplete applications, and allow the City to deem an application incomplete and request missing information within 10 days after submittal of a small cell application, in which case the Shot Clock restarts at day zero upon applicant's response. 47 C.F.R. § 1.6003(d)(1). An applicant may overlook an exception request that is required in the City's opinion, particularly when the applicable standard is vague. The last sentence of this provision should be deleted.
(h). Incomplete applications deemed withdrawn. The City cannot terminate an application if an applicant does not respond to a notice of incomplete application within 90 days (or any period of time). FCC rules plainly state that the Shot Clock restarts or resumes running on the date an applicant responds to a timely notice. 47 C.F.R. $8
1.6003(d)(1), (d)(3)(ii). FCC rules do not allow early, unilateral termination. This provision should be deleted.
(k). Peer review costs. The FCC ruled that exorbitant consultant fees are prohibitive.
Infrastructure Order, 33 FCC Rcd. at 9116-17, 9| 56. Outside consultants should not be required for straightforward review of wireless facility applications, and certain tasks listed in this Draft Policy section do not require specialized knowledge, such as review of applications for completeness or compliance with the City's own policy. If conducted by a consultant, the various listed tasks could lead to runaway costs, in violation of the San Mateo City Council
November 15, 2024
FCC's order. Hourly rates should reflect standard amounts for municipal planners and engineers whose skills are relevant to review of proposed infrastructure. Verizon Wireless will not pay for review by attorneys or other professionals whose expertise is unnecessary for permit review. The City should bear its own legal costs.
The FCC determined that a "safe harbor" permit fee for a single application for up to five small cells is $500. Infrastructure Order, 33 FCC Rcd. at 9129, 19 78-79. According to the FCC, "...there should be only very limited circumstances in which localities can charge higher fees." Id. at 9130, 9 80.
The City's fee schedule currently specifies a "minimum deposit per location" for wireless permits of $4,500—a substantial reduction from the $7,500 deposit required in 2021-22.
Because City staff has already processed numerous wireless permits for various companies, and the Draft Policy does not introduce significant changes compared to the City's current policy (aside from the preempted location restrictions), wireless facility applicants would expect future permit fees to be similar to those for recent applications, and not excessive.
The FCC ruled that if a wireless carrier files a petition challenging a city's excessive fees, "...the locality, not the petitioner, has the burden of demonstrating to the Commission why fees above safe harbor levels should not be preempted." In Re: Petition for Declaratory Ruling that Clark County, Nevada Ordinance No.4659 Is Unlawful Under Section 253, 36 FCC Rcd. 278, 280, 1 7; see also Infrastructure Order, 33 FCC Rcd. at 9130, 9 80.
Section (k) regarding peer review must be revised to allow applicants to review and object to a consultant's proposed scope of work, personnel involved, hourly rates, and estimated total cost, before paying a deposit.
Section 9 - Conditions of Approval
(a)(16). Radio frequency standards compliance. This requires an annual affirmation by a radio frequency engineer that a permitted small cell complies with the FCC's exposure limits. However, after an installed wireless facility is shown to comply with those exposure guidelines, a local government cannot require repeat exposure reports thereafter, as that regulation of operational requirements is preempted by federal law. See 47 U.S.C. § 332(c)(7)(B)(iv); see also Crown Castle USA Inc. v. City of Calabasas (Los Angeles Superior Court BS140933, 2014) ("... the regulation of a facility's planned or ongoing operation constitutes an unlawful supplemental regulation into an area of federal preemption").
This condition also requires compliance with 47 U.S.C. Section 324, adopted by Congress in 1934, which requires "radio stations" to "use the minimum amount of power necessary to carry out the communication desired." However, this is preempted by the later 1996 Telecommunications Act, because the City cannot regulate the radio frequency emissions of a wireless facility that has been shown to comply with the FCC's exposure San Mateo City Council
November 15, 2024
limits. 47 U.S.C. § 332(c)(7)(B)(iv). The radio frequency emissions of a facility may vary within and up to those limits. As noted above, penalty of perjury is an excessive requirement. This condition must be deleted.
(a)(17). Interference with City communication systems. Federal law preempts the City from holding permittees liable for signal interference, which is exclusively regulated by the FCC. See 47 U.S.C. § 303(f); see also Freeman v. Burlington Broadcasters, 204 F.3d 311, 320-21 (2d Cir. 2000) (permit condition preempted because federal law confers exclusive jurisdiction on the FCC to regulate radio frequency interference); affirmed by New York SMSA Ltd. Partnership v. Town of Clarkstown, 612 F.3d 97, 105 (2nd Cir. 2010). The FCC has established specific rules for identifying and abating interference, which preempt any local process. See, e.g., 47 C.F.R. § 22.972. Accordingly, the City does not have the authority to order that a facility be shut down due to alleged interference. This condition must be deleted.
(a)(21). Indemnification. Item (B) regarding indemnity from injury, death or property damage is unnecessary. For small cells on City-owned poles, indemnity from third-party claims of liability should be addressed in the City's master license agreement, not imposed separately via a permit. For other poles (joint utility poles or carrier-owned new poles), the City would not be liable for injury or property damage caused by a small cell.
Item (A) gives the City ample protection from any claims related to its approval of the permit, consistent with California Attorney General Opinion No. 01-701, which obliges permittees to defend, indemnify, and hold harmless the City in any action brought by a third party seeking to void the permit. 85 Ops. Cal. Atty. Gen. 21 (Cal.A.G.), 2002. Item (B) should be deleted.
Section 10 - Location Standards
The Draft Policy continues the City's current practice of providing clear location preferences and a reasonable search distance for preferred options (300 feet is proposed).
However, the Draft Policy introduces prohibitive new requirements that contradict federal and state law.
(a). Restricted site locations. As explained above, prohibiting small cells in any residential and mixed-use zone, or within 300 feet of residences, daycares, and schools, would violate federal and state law. The required special exception to overcome this prohibition is similarly unlawful.
Further, small cells pose no particular land use impact to daycares or schools, and imposing additional regulations near those facilities is clearly based on concern over RF emissions, but that is preempted by the Telecommunications Act. 47 U.S.C. § 332(c)(7)(b)(iv). The location preferences of Section 10(b) provide a reasonable means for the City to steer small cells to preferred locations, if feasible, without the City risking legal challenges due to unfounded denials. Section 10(a) should be deleted.
San Mateo City Council
November 15, 2024
(h)(1). Not in front of doors or windows. This could exclude numerous pole options in various rights-of-way, prohibiting small cells on both streetlights and utility poles in commercial and residential areas, in conflict with Section 7901. Many buildings are set well back from the right-of-way, with landscaping and/or parking lots in between, particularly in some commercial areas. In many cases, a small cell would not pose a visual impact according to the adjacent property owner, and could be considered an asset for connectivity and public safety communication. This section should be deleted. Otherwise, we suggest converting this prohibition to a less-preferred location under Section 10(b). (h)(5). Not within 15 feet of residential driveways. 15-foot buffers on either side of 15-foot driveways would create multiple 45-foot exclusion zones along residential or mixed-use streets. This could exclude numerous pole options in various rights-of-way.
Small cell equipment elevated on a pole does not pose a view obstruction to motorists entering or exiting their driveway. We suggest deleting this, or converting it to a less- preferred location under Section 10(b).
Section 11 - Design Standards
(h)(1). Position preference. This contemplates that all antennas will be installed at the same location on a pole. However, Verizon Wireless may employ different types of antennas for different frequency bands, which must be separated to avoid interference and optimize performance. For example, a cylindrical antenna may be placed on top of a pole, and small panel antennas mounted to the side. This list should be revised to allow multiple antenna locations.
(h)(2). Antenna shrouding. As noted above, Verizon Wireless may place different types of antennas at different locations on a pole. A cylindrical antenna is actually a concealing shroud with multiple small antenna elements inside, so it does not need additional shrouding. Small panel antennas that use higher frequencies such as C-Band cannot be shrouded, as that impedes signal propagation, and a shroud covering multiple small antennas would only add bulk. This section should be deleted. (h)(3). Antenna volume. Limiting antenna volume to only three cubic feet in residential areas would preclude a typical small cell design with a cylindrical antenna plus one or two small panel antennas that use higher frequencies. The volume limit would require these antennas to be distributed on multiple poles, leading to more facilities and permits overall. A slight increase from three to four cubic feet could accommodate this design.
For residential areas, we suggest an antenna volume limit of four cubic feet. (h)(4). Overall height. As drafted, this provision would limit the height of an antenna above a utility pole to 5 feet or 10 percent of pole height, "inclusive of any minimum separation between the antenna and other pole attachment required by applicable health and safety regulations." This language is unclear. A 5-foot extension could not accommodate both an antenna and the 6-foot vertical separation above electric conductors required by CPUC General Order 95, Rule 94.4(C). This provision should be revised to replace the phrase "inclusive of" with the word "plus." San Mateo City Council
November 15, 2024
The prohibition of antennas at the elevation of windows of the nearest residence within 50 feet could be prohibitive along certain rights-of-way. Small cell antennas are generally either cylindrical antennas mounted to the top of a pole or on a side-arm rotated toward the street, or very small panel antennas, none of which pose significant visual impact. This sentence should be deleted.
(i). Accessory equipment volume. This provision limits accessory equipment to a maximum of nine cubic feet in residential areas or 12 cubic feet elsewhere. A typical small cell on a utility pole includes radios and network gear concealed in a vertical shroud, plus a PG&E electric meter and disconnect switch underneath, which cannot be covered. The shroud includes multiple radios for different frequency bands, power supply units, and other network gear, plus space for cables, connections, worker access, and air circulation. Typical shrouds for utility poles may be up to 15 cubic feet. Limiting shroud volume would require removal of radios, and therefore elimination of frequency bands, resulting in less service coverage and data capacity. That could in turn require installation of more facilities to serve an area. We suggest an accessory equipment volume limit of 16 cubic feet for facilities on utility poles anywhere, to accommodate an equipment shroud plus a PG&E electric meter and disconnect switch. (j)(1). Undergrounded accessory equipment, where required. This requires that accessory equipment be placed underground in underground districts, or anywhere the Director believes that above-ground equipment would "incommode" the public use.
While there is a narrow exception for feasibility, any blanket mandate to underground is unreasonable in two ways. First, undergrounding generally is technically infeasible due to sidewalk space constraints, the large excavation area required, utility lines already routed underground, and undue environmental and operational impacts for required active cooling and dewatering equipment. Second, small radios are not "out-of- character" on the side of streetlight poles that remain in underground districts, so this standard is unreasonable per FCC regulations. For underground districts, the City should allow up to six cubic feet of associated equipment on a pole before any undergrounding is considered. The provision allowing the Director to require undergrounding anywhere should be deleted.
(k)(4). Horizontal projection. Item (A) limits protrusion of pole-mounted equipment to only 18 inches from the pole surface. Radios, other network gear, and PG&E electric meters cannot be flush-mounted to a utility pole, and instead must be mounted to a stand- off mounting bracket, which allows utility workers to safely climb the pole. To improve appearance, Verizon Wireless can conceal radios and other network gear in a vertical shroud, the corners of which may protrude up to 28 inches from the pole surface, inclusive of the required pole separation distance. For small cells on utility poles, the 18-inch limit should be expanded to 28 inches.
(k)(5). Orientation. For electric utility poles, General Order 95 and PG&E rules impose strict requirements for small cell equipment placement to avoid existing conduit risers and accommodate safe worker climbing space. This provision should acknowledge General Order 95 and PG&E rules with respect to equipment orientation on utility poles.
San Mateo City Council
November 15, 2024
(m)(1). Overhead lines. The City cannot regulate the electric and communication lines of other utilities through a small cell permit for a wireless carrier. The FCC regulates overlashing, so the City cannot compel other utilities to allow it. See, e.g., 47 C.F.R. § 1416. The second sentence regarding overlashing must be deleted.
Section 12 - Preapproved Designs
(d). Modified review process. Small cells with preapproved designs would eligible for expedited review only if in "preferred locations," defined in Section 10(c) as locations at least 300 feet from residences and not in residential/mixed use zones. Those limitations would exclude almost the entire City, as discussed above, so there would be little benefit to preapproved designs. The City should consider deleting the reference to preferred locations.
Section 13 - Exceptions
As discussed above, a special exception would always be required to install small cells in most City rights-of-way, including all rights-of-way within residential and mixed-use zones, and within 300 feet of residences, daycares, and schools per Draft Policy Section 10(a). The special exception findings violate federal law, as noted. Instead of requiring special exceptions to correct prohibitive Draft Policy restrictions, the City should ensure that that Draft Policy is reasonable and legally defensible prior to adoption. (c). Request for exception at time submittal. As explained in our comments on Section 6(b)(17), this contradicts federal law, notably the FCC's Shot Clock rules.
Conclusion
Verizon Wireless appreciates the opportunity to provide comment on the Draft Policy. The proposed restriction of small cells in almost all City rights-of-way is a step backward, and the City should instead continue to rely on its reasonable location preferences, which were developed in consultation with industry. We encourage the City Council to incorporate our suggested revisions prior to adopting the Draft Policy.
Very truly yours,
Saul Alrit
Paul B. Albritton
Attachment
cc: Prasanna Rasiah, Esq.
Jason Hallare
Matt Fabry
City of San Mateo, California
Geospatial Analysis: impacts of draft Policy Section 10(b) Rick Kos, AICP, GIS Consultant | November 2024
The draft policy lists the following restrictions on small wireless facilities in the right-of-way; the text in red is what was mapped for this report:
§ 10(b). Restricted Site Locations. The following locations will be deemed "Restricted Site Locations" that require an exception pursuant to Section 13 in this policy. (1) any location within a residential or mixed-use zone; (2) any location within 300 feet from an existing residential dwelling unit; (3) any location within 300 feet from an existing daycare facility or school structure; and (4) any location within a Very High Fire Hazard Severity Zone.
Note: item (2) can be mapped upon request, if it is assumed that a "residential dwelling unit" is any structure in (1) above. (or if the city has a more accurate definition or dataset defining this Methodology:
• To depict "any location within a residential zone", the following zoning districts were colored light red on the map (reflecting "restricted"): RIA, R1B, R1B/Q6, R1B/Q8, R1C, R2, R3, R4, R4-D, R4/SC, R5, R5-D, R6-D, R6-D/SC
As a result, a total of 14 residential districts were depicted in light red. • To depict "any location within a mixed-use zone", the following zoning districts were colored light red on the map (reflecting "restricted") - this information was provided by city Assistant Planner Luis Caro:
• Zones CBD, CBD/S, TOD, and /R overlays
TOD and BMSP are parts of specific plans that are mixed-use (special conditions apply to be by- right).
• Some other zones (E1, E2, Downtown residential) can be mixed-use, but they require special use permits.
As a result, a total of 23 mixed-use districts were depicted in light red. • All remaining 31 zoning districts are presumed to permit small wireless facilities and are depicted in light green on the map.
• To depict "any location within 300 feet from an existing daycare facility or school structure" a spreadsheet provided by the Small Cell Update Team was used. Addresses were geocoded and represented as points on the map. Next, the building footprints intersecting those points were selected - in some cases this had to be done manually for schools with multiple structures. Once all structures were selected, a 300-foot buffer was delineated in red around all structures. • To depict "any location within a Very High Fire Hazard Severity Zone" geospatial data from the Cal FIRE website was added to the map and filtered for this particular subzone; the result is shown in orange. • To depict rights-of-way, all parcels within the city limits were dissolved into a single shape, which was then clipped by the city limits shape - the resulting "voids" are the rights-of-way, shown in purple.
Mapping Notes:
The zoning GIS data provided by the city appears to be incomplete in some areas. • The areas shown below on the official zoning map have no corresponding information in the GIS file (i.e. they are blank). These areas appear to be mainly "Shoreline" areas, totaling approximately 0.017 square miles (~ 10 acres). Their absence in the GIS file will affect the calculations below to a degree.
CITY OF FOSTER CITY
• Parts of the waterway that extend south from San Francisco Bay into the eastern interior of San Mateo are depicted in the GIS zoning file as areas that are zoned; these are shown in light grey on the map (as "unzoned")
• The official city limits of San Mateo extend far into San Francisco Bay. Since this analysis only considers land area, the shoreline was manually digitized and two separate areas of city limits were measured:
"land" and "water".
Calculations (all units in square miles):
• City Limits:
• Land area: 12.379
• Water area: 3.075 (SF Bay only, not including water areas interior from the shoreline) • Very High Fire Hazard Severity Zone: 0.44
• 300-foot distances from all school structures and daycare structures: 1.739 • Zoning Districts (total land area zoned; i.e. excluding rights-of-way)* • Residential: 6.36
• Mixed use: 0.809
• Permitted: 2.035
• Sum of all zones: 9.206
*see note above re: missing zoned areas in city-provided GIS file • Rights-of-way: 2.85
===
Analysis (all units in square miles):
• Percentage of City zoned area prohibited/restricted due to:
• residential/mixed use zone restrictions (see Map 1)
(6.36 + 0.809) / 9.206 = 77.87%*
*This value does not include consideration of rights-of-way • Percentage of City zoned area prohibited/restricted due to:
• residential/mixed use zone restrictions plus
• very high fire hazard severity zones plus
• areas within 300 feet of school/daycare structures.
• (7.828/9.206) = 85.03%
* Many of these restricted areas overlap (shown in Map 2) though the overlap is non- duplicative in this calculation. All restricted areas - with overlap removed - are depicted in Map 3. Also, note that many school/daycare 300-foot buffers extend across nearby rights- of-way - these areas are included in this calculation.
Map 1
San Mateo City RightsOfWay
San Mateo City Limits
| Land
Г J Water
Zoning
Restricted: (Mixed Use; Residential)
Permitted
Unzoned
Map 2
San Mateo City RightsOfWay
300-foot distances from school and daycare structures
Very High Fire Hazard Severity Zones (within City Limits) San Mateo City Limits
- Land
T J Water
Zoning
Restricted: (Mixed Use; Residential)
Permitted
Unzoned
Map 3
AllRestrictions_Zoning_Schools_Fire
Name Type Address TAPN
Laurel Elementary School 31636* Ave 042061260
Sunnybrae Elementary School 1031 S Delaware St 035013610 College Park
Elementary/Turnbull Children's School 715 Indian Ave 033041050 Center
North Shoreview Montessori School 1301 Cypress Ave 033192190 900 Alameda De Las
Aragon HS School 034440010
Pulgas
George Hall Elementary School 130 San Miguel Way 040063030 Parkside Elementary School 1685 Eisenhower St 035282350 San Mateo HS School 506 N Delaware St 033010020
600 Alameda De Las 034062190
Baywood Elementary School
Pulgas
Hillsdale HS/Stella Piccolo 3115 Del Monte St
School 039410010
Preschool
Borel Middle School School 425 Barneson Ave 034394250
Beresford Elementary School 30028* Ave 039325190
Bayside Academy School 2025 Kehoe Ave 035160050
Meadow Heights Elementary School 2619 Dolores St 039125150 Abbott Middle School School 600 36 Ave 042050010
Fiesta Gardens International School 1001 Bermuda Dr 035340220 LEAD Elementary School 949 Ocean Ave 033371360
Park Elementary School 161 Clark Dr 032091240
039040170
039040180
Junipero Serra HS School 451 W 20" Ave 039040190
039040200
Pacific Rim International School 2600 Campus Dr 041521040 St. Gregory Elementary School 2701 Hacienda St 039383010 Centennial Montessori
School 6 10th Ave 034283140
Elementary
Centennial Montessori School School 27 10 Ave 034277060 Montessori Children's House School 315 Tulane Rd 034013050 Stanbridge Academy School 515 E Poplar Ave 032186110
San Mateo Montessori School 1514' Ave 034301110
Serendipity School School 3172 Clearview Way 041332030
Grace Lutheran 2825 Alameda de Las
School 039321010
School/Welcome Amigos Pulgas
Highland Montessori School 614 Highland Ave 032152250
Sonrisas Spanish Immersion School 1632 Newbridge Ave
033361150
School
Shu Academy Preschool School 211 S Delaware St 034187110 El Camino Wonderschool School 1108 S Norfolk st 035097010 Nueva School School 131 E 28" Ave 040030870
2000 Alameda de Las
Fusion Academy School 039501140
Pulgas
UP Academy School 2040 Pioneer Ct 039060050
The Burkard School School 12333 Palm Ave 7039081030
St. Matthew Catholic Elementary School 910S El Camino Real Bright Beginnings Montessori School 30 Hobart Ave 034381140 Papillon Preschool School 1311 S El Camino Real
034301200
Universe of Colors School 178 South Blvd 035211060
Episcopal Day School of St. School 16 Baldwin Ave 032313010 Matthew
1515 Dolan Ave 033241780
St. Timothy Elementary School
033241790
Building Kidz of San Mateo |120 Lindbergh St, Unit 033194270 School
North
319 E Santa Inez Ave 032201070
Petite Sorbonne Preschool School
Kinder Academy Montessori School 300 E Santa Inez
Kids Konnect School/Daycare 137 N San Mateo Dr 032292040 Guidepost Montessori School 77 N San Mateo 032311150
Intercommunal Preschool School 713 2nd Ave 034163150
Little CAM Daycare & Preschool School/Daycare 120 S Humboldt St 033151050 Safari Kid School 521 E 5th Ave 034186090
Joyce Kids Care Daycare 1215 Birch Ave 035065310
Playful Learning
Preschool/Daycare School/Daycare 627 Harrow Ave 035056200 Lucy's Learn and Play Daycare Daycare 618 Folkstone Ave 035077040 Jani's Family Daycare Daycare 613 Guildford Ave 035077180 Grow with Us Daycare Daycare 615 S Idaho St 033305170
Happy Kids Daycare and
Preschool School/Daycare 733 Rand St 033272170
4-KIDS Family Daycare Daycare 756 Kathryne Ave 033343040 Nicer Bilingual Family Daycare Daycare 1857 Evergreen St 033383130 Glo Family Day Care Daycare 10 s Rochester St 033214030 San Mateo Parent's Nursery 1732 Monte Diablo
School School Ave 033184240
1318 Monte Diablo
Little Scientists Nursery School School/Daycare Ave 033172040 Happy Little Hearts Daycare 231 N Humboldt
Cookie's Care Daycare 1900 S Norfolk St 035391090
Super Munchkins Academy Daycare 1810 S Norfolk St 035361430 Magical Education Bilingual
Child Care Daycare 2314 S Norfolk St 035401110
Les P'tits Copains French
Preschool School 2327 S Norfolk St 035405030
Michelle's Explorers Daycare 2284 Kent St 040023140
1856 El Parque Ct, Unit
Big Sis Daycare Daycare B 040402190
Ding Jia Chinese Bilingual 1856 El Parque Ct, Unit
Davcare Daycare A 040402190
Genius Learning [school 3080 La Selva St 040161120
Bright Star Child Care Daycare 144 E Hillsdale Blvd 7040053240 Little Flowers Daycare Daycare 3805 Casanova Dr 040123200 TippiToes Daycare & Preschool School/Daycare 341 E 39th Ave 040201120 At Immersion Preschool School 30 W 39th Ave 042165110
Talita's Daycare Daycare 201 36th Ave 042113250
Magic Land Childcare Daycare 831 Laurelwood Dr 042012070 Nikko's Playhouse School 1206 31 st Ave 039232210
3900 Alameda de Las
Transfiguration Nursery School School Pulgas 042095170
Dragonfly Family Daycare Daycare 4300 Edison St 042254050 Little Wild Ones Daycare 234 22nd Ave 039052090
All About Me Daycare Daycare 1710 Dewey St 035304020
1700 Alameda de Las
Bright Horizons Daycare Pulgas 039501120
Firefly Academy Daycare Daycare 405 Heather Ln 039471070 Little Bloom Child Development
Center School 1911 Elkhorn Ct 039030220
Buddie's World Child Care Daycare 912 9th Ave 033321030 Lil Cubs Playschool Daycare 114 Chukker Ct 039024110
Kids' Club Family Daycare Daycare San Miguel Way
Mighty Tiger Preschool School 2575 Flores St 039371370
Kubo Montessori School 2821 Flores St 039384120
Masterminds Child Care and
Preschool School/Daycare 1790 Hamlet St 035363040
Bermuda Montessori & Daycare School/Daycare 700 Bermuda Dr 035335260 Zhang's Bilingual Family Child
Care Daycare 1780 Rex St 035362030
Little Angels JJ Daycare Daycare 2009 Ginnever St 035335250 Lakeview Montessori School 31 Vista Ave 040231010
2727 S El Camino
Glorious Academy School/Daycare Real, Ste F 039351220
Happy Yogis Nursery School Daycare 12 Nadina St
Adi Home Daycare Daycare 1540 Jasmine St 034412160
Creative Learning Preschool School 3399 CSM Dr 041330020 The Carey School School 1 Carey School Ln
L'Academy Language
Immersion Preschool School 1608 N El Camino Real |032141320 San Mateo Nippon Gakuyen School 2 S Claremont St 034156010 ATTACHMENT 6.4
Verizon Wireless Public Comment
Streets Restricted Бу -
Proposed San Mateo
Small Cell Policy
Impacted
Permitted
Restricted
AllRestrictions_Zoning_Schools_Fire
- SanMateoStreets_Clipped (freeways/ramps)
ATTACHMENT 6.5
SAMCEDA Public Comment
BUSINESS ¡ SAMCEDA
San Mateo County Economic Development Association
EXECUTIVE COMMITTEE November 18, 2024
ARIANE HOGAN
Chair of the Board
Mayor Lisa Diaz Nash and Members of the Council
Genentech
City of San Mateo
WILLIAM GRAHAM
Vice Chair 330 West 20th Avenue
Sequoia Hospital, A Dignity Health Member San Mateo, CA 94403 FRANK R. PETRILLI
Vice Chair
Coblentz Patch Duffy & Bass RE: City of San Mateo - Small Cell Wireless Facilities Ordinance
ROBERT WEBSTER
Vice Chair
Dear Mayor Diaz Nash and Members of the Council,
Bohannon Development Company
PAUL CASIAS
Vice Chair of Finance For seven decades, the San Mateo County Economic Development Association (SAMCEDA) has My-Business-Advisor LLP been a leading voice for the economic engine that is San Mateo County. SAMCEDA believes in the power of a
ELAINE BREEZE
Secretary strong economy driven by an appreciation of what that engine provides to our ecosystem on the Peninsula.
SummerHill Apartment Communities
STEVE MINCEY By working with employers of all sizes and industries, engaging with our public sector and elected leadership, Past Chair of the Board recognizing that we have 21 individual jurisdictions (20 cities and one county), and collaborating and DES
ROSANNE FOUST communicating with the Chambers of Commerce, non-profit organizations, and educational institutions, President & CEO SAMCEDA tackles the most difficult challenges through goal-oriented solutions.
SAMCEDA
SAMCEDA recently hosted its inaugural Industry Series, spotlighting the telecommunications sector and its
DIRECTORS
critical role in driving economic growth. The event brought together leaders, innovators, and stakeholders to
SHASTA ADDESSI
Kaiser Permanente discuss the transformative impact of telecommunications on industries. With rapid advancements in FRANK BARTALDO connectivity and infrastructure, the series underscored the growing importance of telecommunications in Heritage Bank of Commerce fostering economic development, creating jobs, and enhancing access to resources and services. This insightful
KEN BUSCH
gathering set the stage for ongoing conversations around the sector's future and its pivotal role in shaping our Sares Regis Group of Northern California
digital economy.
Carol Donnelly
Embarcadero Capital Partners
GREG HURD For the upcoming City Council Meeting, we encourage the Council to direct staff to incorporate Verizon's BKF Engineers
revisions before the approval as this will avoid severe limitations for carriers and will overburden staff with the
JENNIFER JOHNSON
exemption process.
Lathrop GPM
RICK KNAUF • Robust connectivity is not optional, it's essential for economic growth and competitiveness.
Colliers Proposed city rules stifle innovation by creating unnecessary roadblocks to building wireless MICHELE LEW infrastructure. These regulations prioritize unfounded fears over concrete economic benefits and Stanford Medicine Children's Health
CARL MENNIE
Recology • We can achieve both technological advancement and aesthetic considerations. Reasonable siting standards, guided by scientific understanding, will allow us to deploy critical infrastructure responsibly.
JNIL PANDY Let's embrace the future and build a connected San Mateo that fosters innovation, economic growth, alls Fare
and a thriving community for all.
LUAN SALAZAR
CHRIS WEBER Thank you for your consideration.
Oracle
LUCY WICKS
Stanford University Sincerely,
He S. Foret
Rosanne Foust
President & CEO, SAMCEDA
1900 O'Farrell Street, Suite 380 | San Mateo, California 94403 | P 650.413.5600 | F 650.413.5909 | www.samceda.org