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
Assistant Vice President
State Legislative Affairs