City of San Mateo
City Council Meeting
POST PACKET
PUBLIC COMMENT
As of November 17, 2025, at 4:00 PM
1 Erin Fellers
From: Irena Mavridis
Sent: Monday, November 17, 2025 10:26 AM
To: Clerk; City Council (San Mateo); Sustainability & Infrastructure Commission Cc: No Cell Outs
Subject: Ariel Strauss Public Comment for Consent Item 4 re FCC Attachments: Public Comment re Consent Item 4- FCC.pdf
Follow Up Flag: Follow up
Flag Status: Flagged
Please see attached,
Thank you
Irena Mavridis and No Cell Outs
Sent from Yahoo Mail for iPhone
1 Law Offices of Ariel Strauss
Ariel Strauss
November 17, 2025
Re: Comment on Consent Calendar Item 4- FCC Rulemaking Addressing Wireless Facilities To: City Council of San Mateo
From: Ariel Strauss
Dear Mayor, Vice Mayor and Members of the City Council:
As prior attorney to No Cell Outs, in 2023 and 2024, I worked closely with the City Attorney’s office and the City’s outside legal counsel, Tripp May, to develop the City’s current wireless ordinance and design standards. This is a carefully-designed and thoughtful regulatory approach and commend the City Council for enacting it. I write today to urge you to protect this important legislation. In Proposed Rulemaking, Eliminating Barriers to Wireless Deployments, Docket No. 25-276, the Federal Communications Commission proposes to roll back local zoning authority in numerous ways that violate the Telecommunications Act of 1996 and constitutional Tenth Amendment powers retained by states. It also contemplates sidestepping the Ninth Circuit’s ruling in City of Portland v. U.S., 969 F. 3d 1020, 1042 (9th Cir. 2020) that the FCC’s prior restrictions were “arbitrary and capricious” because they did not allow cities to address the “intangible public harm of unsightly or out-of-character deployments.” My comment focuses only on the FCC’s proposal to limit the authority of localities to impose aesthetic requirements and setbacks for small cell facilities in the right of way and also, potentially, macro towers as well. (Proposed Rulemaking, ¶¶57, 58, 61.)
The City is authorized and expected to enact ordinances that “express community intentions regarding urban form and design” for “outdoor public areas, including streets.” (Gov.
Code § 65302.4.) The California Supreme Court recognized that a telephone corporation’s franchise responsibility to avoid incommoding a public street includes complying with “aesthetic conditions for land use.” (T-Mobile West LLC v. City & County of San Francisco (2019) 6 Cal.5th 1107, 1118.) The FCC’s power to interfere with the City’s traditional zoning-type regulation is based in the Telecommunications Act of 1996. Preemption applies only when regulations “prohibit or have the effect of prohibiting the provision of personal wireless services.” The U.S. Supreme Court has been explicit that preemption is narrow and limited. (T- Mobile S., LLC v. City of Roswell, 574 U.S. 293, 303 (2015).) Other than as specified in the Act, “nothing in this chapter shall limit or affect the authority of a State or local government or instrumentality thereof over decisions regarding the placement, construction, and modification of personal wireless service facilities.” (U.S.C. § 332(c)(7)(A).) For “cooperative federalism” to mean anything at all, a locality must have authority to reject those applications that do not qualify for federal preemption and, as a corollary, demand that applicants establish that the proposed facility qualifies for federal preemption.
It is entirely inappropriate for the FCC to cite to the San Mateo Daily Journal for a description of the City’s permitting regime instead of the text of the officially published
2 ordinance itself (Proposed Rulemaking, fn. 146). But that is exactly what it does. The Daily Journal article claims that San Mateo “will mandate setbacks of small cells anywhere within 300 feet of a housing unit[.]” There is no such “mandate” in the ordinance or design policy. The San Mateo ordinance, like virtually all modern wireless permitting regimes across the country, has an escape clause that allows “limited exceptions” to any of the City’s standards to avoid an effective prohibition. (See Municipal Code § 17.10.070(d).) The City should communicate to the FCC to correct the record.
The City’s ordinance allows the City to set the aspirational, aesthetic standards, such as setbacks to minimize new visual clutter in residential areas, and, appropriately, places the burden on applicants to show, that under specific circumstances these standards are technically infeasible or unenforceable. In this way, the City protects aesthetics and prevents property value harms that would be caused by careless siting while still complying with the Telecommunications Act and enabling residents to receive upgrades to infrastructure that are truly needed. Obviously, wireless providers are trying to sell their service at the greatest profit and cannot be relied upon to protect the public interest. It is impossible for the City to know which applications will qualify for federal preemption and which will not unless the City demands applicants prove this. When the City expeditiously acts on applications within the shot clock timeframes set by the FCC, it is not credible to claim that the process itself is so burdensome as to per se act as an “effective prohibition” of applicants’ rights. The City should tell the FCC that reasonable regulations that offer exceptions necessarily comply with federal law.
A primary motivation of the wireless carriers pushing for these new FCC rules is that many, if not most, new antenna installations in suburban areas are actually not needed for mobile calling but rather to force localities to subsize wireless carriers selling 5G plans for in-home broadband competing with fiberoptic home-based internet. Fiberoptic is much faster, more secure, more reliable and less energy intensive, in addition to being visually inconspicuous.
However, the purpose of the Telecommunications Act of 1996 was to use Congress’ Commerce Clause power to establish a seamless mobile phone network, not compel localities to approve facilities for other information services. (See FCC v. FCC (In re MCP), 124 F.4th 993, 998, 1012-13 (6th Cir. 2025), reh’g en banc den. (holding mobile broadband is not “personal wireless services”); (ACA Connects-America's Communs. Ass’n v. Bonta, 24 F.4th 1233, 1245 (9th Cir. 2022) (information services do not preempt local zoning); see also Mozilla Corp. v. FCC, 940 F.3d 1, 35 (D.C. Cir. 2019) (upholding prior FCC determination that broadband is not a “telecommunications” service).) The Ninth Circuit has explicitly ruled that antenna-delivered, in- home internet plans are not covered by the Telecommunications Act’s preemption. (T-Mobile USA, Inc. v. City of Anacortes, 572 F. 3d 987, 996 (9th Cir. 2009).) The City should communicate to the FCC that it retains the right to assess whether the 5G facilities provide covered services or not, and whether denial will result in an effective prohibition.
Thank you,
_____________
Ariel Strauss
Cc: Prasanna Rasiah, City Attorney (electronic-mail only) Linh P. Nguyen, Assistant City Attorney (electronic-mail only)