Regulating Small Wireless Facilities in the Public Rights-of-Way Danville, CA April 16, 2019

1. Town Council Regular Meeting Item 7.1 Regulating Small Wireless Facilities in the Public Rights-of-Way Danville, CA April 16, 2019

2. About the Presenter • admitted to practice in CA • practice areas include: • federal and state regulation of wireless infrastructure • small cell license agreements • local ordinances • disclaimer: • presentation for informational purposes only • no attorney-client relationship is formed by your participation in this presentation, or by your review and/or use of these materials Michael Johnston Senior Associate mjohnston@telecomlawfirm.com (619) 272-6200 TelecomLawFirm.com

3. Big Questions about Small Cells What Do These Facilities Look Like? How Does State and Federal Law Impact Local Authority? How Should Danville Respond?

4. What Do These Facilities Look Like?

5. power meter unconcealed antenna with exposed jumper cables weatherhead for utilities routed thru external conduits equipment cage RRUS, DC suppressor, fiber distribution optional backup battery distribution panel and disconnect switch

6. concealed antenna with tapered shroud utilities routed thru internal conduits equipment shroud RRUS, DC suppressor, fiber distribution flat-rate service obviates the need for an electric meter

11. How Does State and Federal Law Impact Local Authority?

12. Public Utilities Code • Section 2902 • municipalities cannot “surrender” police powers to the CPUC to regulate relationship between the public and utilities • Section 7901 • grants telephone corporations a state-wide franchise to access and use the public rights-of-way to the extent necessary to provide telephone services • providers cannot incommode the publics’ use • preserves aesthetic controlover ROW facilities • Section 7901.1 • preserves reasonable time, place and mannerregulations over how telephone corporations access and use the ROW • regulations must be applied equally to all providers

13. T-Mobile v. San Francisco (Cal. Supreme Ct. 2019) • facts: SF adopts new ordinance that requires a discretionary permit for ROW facilities; T-Mobile, Crown Castle and ExteNet sue under PUC § 7901 • held: localities can exercise aesthetic control through a discretionary permit scheme; the legislature intended state and local control to co-exist and did not preempt the field • takeaway: extreme positions prohibited – carriers cannot build whatever and wherever, localities must reasonably allow access to ROW

14. T-Mobile v. San Francisco (Cal. Supreme Ct. 2019) • unanswered question: how do local gov’ts reconcile state law authority with limitations in the federal Communications Act?

15. 47 U.S.C. § 332(c)(7)Substantive Limitations • cannot explicitly or effectively prohibit wireless services or wireless facilities • new FCC rules significantly alter the traditional “significant gap” standard • cannot unreasonably discriminate between functionally equivalent services or providers • factors: structure type, location and cumulative impact • cannot regulate based on environmental effects from RF emissionsto the extent such emissions comply with FCC regulations • localities can check for compliance with FCC regulations

16. 47 U.S.C. § 332(c)(7)Procedural Limitations • must act on wireless application with a reasonable time given scope and project type • new FCC rules include shorter shot clocks and all undertakings (pole licenses, appeals, etc.) • must issue a written decision based on substantial evidencein the written record • reasons for denial must appear either on the denial notice or in a contemporaneously available record • reasons for the denial must be rooted in some non-compliance with state or local law • evidence must be specific to the project and not a generalized complaint about wireless facilities

17. 47 U.S.C. § 253Additional Rules for ROW • § 253(a) preempts local regulations that effectively prohibit any entity’s ability to provide telecommunications services • § 253(c) preserves competitively neutral, non-discriminatory local ROW management rules • safe harbor: most ROW management rules OK even if it might have a prohibitory effect • rules can’t favor one provider/service over others

18. FCC Orders August Order • primarily addresses two unrelated issues: • preempting de jure and de facto moratoria by local governments • one-touch/make-ready rules applicable to joint pole attachments • adopted on Aug. 2, 2018; effective now September Order • broad preemption over state and local authority • abrogates proprietary/regulatory capacity distinction • restricts all compensation to cost recovery (or less) • re-writes judicial interpretations for effective prohibitions under two different provisions in the Communications Act • new “shot clocks” requiring local gov’ts to do more with less time and fewer resources • new evidentiary presumptions and remedies • adopted on Sep. 27, 2018; partially effective Jan. 14, 2019, fully effective on Apr. 15, 2019

19. What’s a Small Cell? Small cells are the size of a pizza box! FCC Chairman AjitPai

20. What’s a Small Cell?

21. How Big is 28 Cubic Feet?

23. AT&T

25. Effective Prohibitions General Rule a state or local requirement effectively prohibits deployment when it “materially limits or inhibits any competitor’s or potential competitor’s ability to compete in a fair and balanced legal and regulatory environment.” Fee Requirements must be (1) reasonably approximate to cost; (2) objectively reasonable to pass to applicant; and (3) no higher than fees charged to competitors in similar circumstances Non-Fee Requirements (e.g. Aesthetics) must be (1) reasonable (i.e. technically feasible); (2) no more burdensome than those applied to other infrastructure deployments; (3) objective and (4) published in advance

26. New Shot Clock Rules

27. Events on the Horizon FCC Order on GWTCA’s Recon Petition • possible delay tactic Legislative Repeal Efforts • H.R. 530 (Eshoo)[introduced Jan. 14, 2019] • S. _____ (Feinstein)[anticipated in April] Congressional Investigations • House and Senate investigating “collusion” between FCC and industry • Chairman Pai deflects; ball back in Congress’ court OTARD NPRM • extend same rules on customer-end satellite TV dishes to provider-end fixed wireless antennas

28. How Should Danville Respond?

29. Small Cell Policy Why an Urgency? Why Not Apply Existing DMC Provisions? • preemption by FCC regulations – subjective standards, local process, local moratoria • indications of impending deployments Why a Policy? • technology and law in flux balanced against nature of an ordinance • changes must still be approved by City Council How Was the Small Cell Policy Developed? • considered: (1) local values expressed in DMC; (2) federal and state regulations; and (3) approaches by similarly situated communities • consulted with outside counsel

30. Small Cell Policy Applicability • applies to all small wireless facilities and similar infrastructure deployments in ROW • pole licenses for attachments to City-owned poles do not displace public notice, design review and appeals Process • applications submitted by appointment • Planning Dept. reviews for completeness • complete applications evaluated for approval or denial by Chief of Planning • appeals • appealable action letter issued with notice of decision to the applicant and property owners within 350 feet from proposed site • anyone may appeal within 10 days from approval or denial • direct appeal to the Town Council • all approvals subject to standard conditions

31. Small Cell PolicyLocation Requirements Two-factor Location Analysis Based on Road and Support Structure Type • applicants must use most-preferred locations/structures within 250 feet from proposed site • strong preference against sites close to residences unless no other technically feasible alternative exists Additional Aesthetic and Health/Safety Restrictions • rear yard property line placement, between two parcels • right-of-way medians • adjacent to mature street trees • avoid sight distance triangles at intersections and other sight lines for motorists and pedestrians

32. Small Cell PolicyDesign Standards Drafted to Reduce Impact on ROW • reduce new obstructions • shroud antennas and accessory equipment • underground whenever permissible/feasible • facilitate future undergrounding programs Narrow Exceptions for CPUC Safety Regulations (GO 95) • minimum separation requirements between pole attachments for operational and worker safety

33. Staff Recommendations INTRODUCE and WAIVE reading of Ordinance No. 2019-03 exempting small wireless facilities from § 32-70 ADOPT Resolution No. 26-2019 regulating small wireless facilities by Town Council policy ADOPT Resolution No. 27-2019 approving a pole license agreement for small wireless facility attachments to City-Owned poles