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California: Every Municipal Light and Traffic Pole a Cell Site Candidate?

California Senator Bill Dodd (D., 3rd) has proposed legislation to make every municipally-owned street light and traffic signal a potential cell site, removing nearly all of the discretion California local governments have to decide whether they even want cell sites on their municipally-owned poles.

SB556, Senator Dodd’s Bill, if enacted, would extend existing state law impacting government-owned utilities to every City and County in this state.  Then, the proposed law would further extend the existing legislation to make it mandatory that cities and counties (yes, and towns, too) would be required to make every government owned street light and traffic signal available for use by cell phone operators.  The fees that a local government can charge for this imposed-occupancy are only those related to the cost to allow the attachment (one time) and then only reimbursement for the actual costs of the As a bit of icing on the cake, arguably the wireless operator can force the local government to rearrange the light on a street light, or the traffic control lights on a traffic signal to accommodate the cell site.

The law as propose is shown below.  Below that is the map of Senator Dodd’s District and his contact information.  Let him know if you like what he’s proposing…or if you don’t like it!


The heading of Part 2 (commencing with Section 9510) of Division 4.8 of the Public Utilities Code is amended to read:

PART 2. Street Light Poles, Traffic Signal Poles, Utility Poles, and Support Structures

SEC. 3.

Section 9510 of the Public Utilities Code is amended to read:

9510.

 (a) The Legislature finds and declares that in order  that,  to promote wireline and wireless broadband access and adoption, it is in the interest of the state to ensure that local governments and local  publicly owned electric utilities, including irrigation districts, that own or control utility poles street light poles, traffic signal poles, utility poles,  and support structures, including ducts and conduits, as applicable,  make available appropriate space and capacity on and in those structures to cable television corporations, video service providers, and telephone corporations under reasonable rates, terms, and conditions.
(b) The Legislature further finds and declares that the oversight of fees and other requirements imposed by local publicly owned electric utilities or local governments  as a condition of providing the space or capacity described in subdivision (a) is a matter of statewide interest and concern. Therefore, it is the intent of the Legislature that this part supersedes all conflicting local laws and this part shall apply in charter cities.
(c) The Legislature further finds and declares that local publicly owned electric utilities and local governments  should provide access to utility poles and support structures with a recovery of  street light poles, traffic signal poles, utility poles, and support structures, as applicable, with nondiscriminatory fees that allow for the recovery of reasonable  actual costs without subsidizing for-profit cable television corporations, video service providers, and telephone corporations.

SECTION 1.SEC. 4.

Section 9510.5 of the Public Utilities Code is amended to read:
9510.5.

As used in this part, the following terms have the following meanings:

(a) “Communications service provider” means a cable television corporation, video service provider, or telephone corporation.
(b) “Governing body” means the governing body of a local government or local  publicly owned electric utility, including, where applicable, a board appointed by a city council.
(c) “Local government” means a city, including a charter city, county, or city and county.
(c) (d)  “Street light pole” means a pole, arm, or fixture used primarily for street, pedestrian, or security lighting.
(e) “Traffic signal pole” means a pole, arm, or fixture used primarily for signaling traffic flow.
(d) (f)  “Utility pole” means an electricity  electrical pole, electrical transmission tower,  or telephone pole, but does not include a street light pole or an electricity electrical  pole used solely for the transmission of electricity at 50 kilovolts or higher and not intended for distribution of communications signals or electricity at lower voltages.

SEC. 5.

Section 9511 of the Public Utilities Code is amended to read:
9511.

(a) (1) (A) A local publicly owned electric utility shall make appropriate space and capacity on and in a street light pole, traffic signal pole, utility pole, and support structure owned or controlled by the local publicly owned electric utility available for use by a communications service provider pursuant to reasonable terms and conditions.

(a) (B)  A local publicly owned electric utility shall make appropriate space and capacity on and in a utility pole and support structure owned or controlled by the local publicly owned electric utility available for use by a communications service provider pursuant to reasonable terms and conditions.  Rates, terms, and conditions that are specified in a contract executed with a local publicly owned electric utility  before January 1, 2012, shall remain valid until the contract, rate, term, or condition expires or is terminated according to its terms by one of the parties. If an annual fee is included in a contract executed before January 1, 2012, but the amount of the fee is left unspecified, the requirements of Section 9512 apply.
(2) (A) A local government shall make appropriate space and capacity on and in a street light pole, traffic signal pole, and support structure owned or controlled by the local government available for use by a communications service provider pursuant to reasonable terms and conditions.
(B) Unless the communications service provider and local government otherwise agree, if the contractual rates exceed two hundred seventy dollars ($270) per year per pole, the rates, terms, and conditions that are specified in a contract executed before January 14, 2019, shall remain valid only for wireless equipment that has already been attached to a pole by a communications service provider before January 1, 2022, and only until the contract, rate, term, or condition expires or is terminated according to its terms by one of the parties.
(b) (1) A local publicly owned electric utility or a local government  shall respond to a request for use by a communications service provider of a utility pole or support structure  street light pole, traffic signal pole, utility pole, or support structure, as applicable,  owned or controlled by the local publicly owned electric utility or local government  within 45 days of the date of receipt of the request, or 60 days if the request is to attach to over 300 poles. If the request is denied, the local publicly owned electric utility or local government  shall provide in the response the reason for the denial and the remedy to gain access to the utility pole street light pole, traffic signal pole, utility pole,  or support structure. If a request to attach is accepted, the local publicly owned electric utility,  utility or local government,  within 14 days after acceptance of the request, shall provide a nondiscriminatory  cost estimate, based on actual cost,  reasonable actual cost, as described in the Federal Communications Commission’s Declaratory Ruling on Wireless Broadband Deployment (FCC 18-133, 33 FCC Rcd 9088 (2018)),  for any necessary make-ready work required to accommodate the attachment. The requesting party shall accept or reject the make-ready cost estimate within 14 days. Within 60 days of acceptance of the cost estimate, the local publicly owned electric utility or local government  shall notify any existing third-party attachers that make-ready work for a new attacher needs to be performed. The requesting party shall have the responsibility to coordinate with third-party existing attachers for make-ready work to be completed. All parties shall complete all make-ready work within 60 days of the notice, or within 105 days in the case of a request to attach to over 300 poles. The local publicly owned electric utility or local government  may complete make-ready work without the consent of the existing attachers, if the existing attachers fail to move their attachments by the end of the make-ready timeline requirements specified in this paragraph.
(2) The timelines described in paragraph (1) may be extended under special circumstances upon agreement of the local publicly owned electric utility or local government  and the communications service provider.
(c) A  Unless the communication service provider agrees to replace the street light pole, traffic signal pole, utility pole, or support structure, a  local publicly owned electric utility or local government  may deny an application for use of a utility pole or support structure  street light pole, traffic signal pole, utility pole, or support structure, as applicable,  because of insufficient capacity or safety, reliability, or engineering concerns. In denying an application, a local publicly owned electric utility or local government  may also take into account the manner in which a request from a communications service provider under this part could impact an approved project for future use by the local publicly owned electric utility of its  or the local government of its street light poles, traffic signal poles,  utility poles or support structures for delivery of its core utility or municipal  service.
(d) This part does not limit the authority of a local publicly owned electric utility or local government  to ensure compliance with all applicable provisions of law in determining whether to approve or disapprove use of a utility pole or support structure.  street light pole, traffic signal pole, utility pole, or support structure, as applicable.

SEC. 6.

Section 9511.5 of the Public Utilities Code is amended to read:
9511.5.

 (a) If a  A  local publicly owned electric utility or local government that  has the authority pursuant to other law to impose a fee to provide the use described in Section 9511, that fee shall be adopted and levied  9511 shall adopt and levy only the fee described in Section 9511,  consistent with the requirements of this part.
(b) The governing body of the local publicly owned electric utility or a local government  shall determine the fee pursuant to Section 9512.
(c) This part does not grant additional authority to a local publicly owned electric utility or local government  to impose a fee that is not otherwise authorized by law.

SEC. 7.

Section 9512 of the Public Utilities Code is amended to read:
9512.

 (a) (1) An annual fee charged by a local publicly owned electric utility or a local government  for the use of a utility pole  street light pole, traffic signal pole, or utility pole, as applicable,  by a communications service provider shall  for an attachment shall be imposed pursuant to reasonable terms and conditions, and shall  not exceed an amount determined by multiplying the percentage of the total usable space that would be occupied by the attachment by the annual costs of ownership of the pole and its supporting anchor. As used in this paragraph and paragraph (2), “usable space” means the space above the minimum grade level that can be used for the attachment of wires, cables, and associated equipment. It shall be presumed, subject to factual rebuttal, that a single attachment occupies one foot of usable space and that an average street light pole, traffic signal pole, or  utility pole contains 13.5 feet of usable space.
(2) An annual fee charged by a local publicly owned electric utility or local government  for use of a support structure by a communications service provider shall not exceed the local publicly owned electric utility’s or local government’s  annual costs of ownership of the percentage of the volume of the capacity of the structure rendered unusable by the equipment of the communications service provider.
(3) As used in this subdivision, the “annual costs of ownership” is the sum of the annual capital costs and annual operation costs of the pole  street light pole, traffic signal pole, utility pole,  or support structure, which shall be the average costs of all similar utility poles street light poles, traffic signal poles, utility poles,  or structures owned or controlled by the local publicly owned electric utility.  utility or local government.  The basis for the computation of annual capital costs shall be historical capital costs less depreciation. The accounting upon which the historical capital costs are determined shall include a credit for all reimbursed capital costs. Depreciation shall be based upon the average service life of the utility pole street light pole, traffic signal pole, utility pole,  or support structure. “Annual cost of ownership” does not include costs for any property not necessary for use by the communications service provider.
(b) (1) A local publicly owned electric utility or local government  shall not levy a fee that exceeds the estimated amount required to provide use of the utility pole or support structure  street light pole, traffic signal pole, utility pole, or support structure, as applicable,  for which the annual recurring fee is levied. If the fee creates revenues in excess of actual costs, those revenues shall be used to reduce the fee.
(2) A local publicly owned electric utility or local government establishes a rebuttable presumption that its fees are based on reasonable actual costs if they conform to the presumptively reasonable fees set forth in the Federal Communications Commission’s Declaratory Ruling on Wireless Broadband Deployment (FCC 18-133, 33 FCC Rcd 9088 (2018)).
(c) A jointly owned pole is not included within the requirements of this section, if a joint owner other than the local publicly owned electric utility or local government  has control of access to the space that would be used by the communications service provider.

SEC. 8.

Section 9513 of the Public Utilities Code is amended to read:
9513.

 (a) A local publicly owned electric utility or local government  may require an additional one-time charge equal to three years of the annual fee described in Section 9512, for attachments reasonably shown to have been made without authorization that are discovered on or after January 1, 2012.
(b) A local publicly owned electric utility or local government  may remove an attachment made without authorization, if all of the following conditions are met:
(1) The owner of the attachment fails to pay the charge described in subdivision (a), if that charge is applicable.
(2) The owner of the attachment does not seek approval to attach pursuant to this part within a reasonable period of time.
(3) The owner of the attachment does not contest that the attachment was made without authorization.
(c) An attachment of a service drop wire is not made without authorization for the purposes of this section, if the owner of the attachment seeks approval to attach pursuant to this part within 45 days of the attachment.

SEC. 9.

Section 9514 of the Public Utilities Code is amended to read:
9514.

 Nothing in this  This  part shall not  be construed to prohibit a local publicly owned electric utility or local government  from requiring a one-time fee to process a request for attachment, if the one-time fee does not exceed the actual cost of processing the request.

SEC. 10.

Section 9514.5 is added to the Public Utilities Code, to read:
9514.5.

 This part does not prohibit a wireless service provider and a local government from mutually agreeing to a rate, charge, term, or condition that is different from that provided in this part. Either party may withdraw from a negotiation for an agreement upon written notice to the other party.

SEC. 11.

Section 9515 of the Public Utilities Code is amended to read:
9515.

 (a) In the event that it becomes necessary for the local publicly owned electric utility or local government  to use space or capacity on or in a support structure occupied by the communications service provider’s equipment, the communications service provider shall either pay all costs for rearrangements necessary to maintain the pole attachment or remove its equipment at its own expense.
(b) (1) If the communications service provider requests a rearrangement of the utility pole or support structure,  a street light pole, traffic signal pole, utility pole, or support structure of a local publicly owned electric utility,  and the local publicly owned electric utility has the authority to levy fees as described in Section 9511.5, the local publicly owned electric utility may charge a one-time reimbursement fee for the actual costs incurred for the rearrangement.
(2) If the communication service provider requests a rearrangement of a street light pole, traffic signal pole, or supporting structure of a local government, the local government may charge a one-time reimbursement fee for the actual costs incurred for the rearrangement.
SEC. 12.

No reimbursement is required by this act pursuant to Section 6 of Article XIII B of the California Constitution because a local agency or school district has the authority to levy service charges, fees, or assessments sufficient to pay for the program or level of service mandated by this act, within the meaning of Section 17556 of the Government Code.


Below is the District Map for Sen. Dodd.  If you have comments about his proposed legislation his contact information is below the map.

Online contact form:  https://sd03.senate.ca.gov/contact

 

Capitol Office
State Capitol, Room 2082
Sacramento,  CA  95814
Phone:  (916) 651-4003
Fax:  (916) 651-4903

Vacaville Office
555 Mason St., Ste 275
Vacaville, CA 95688
Phone: (707) 454-3808
Fax: (707) 454-3811

Napa Office
2721 Napa Valley Corporate Dr.,
Napa,  CA  94558
Phone:  (707) 224-1990
Fax:  (707) 224-1992

Santa Rosa Office
50 D St., Ste 300
Santa Rosa, CA 95404
Phone: (707) 576-2093
Fax:  (707) 576-2095

Vallejo Office
420 Virginia St., Ste 1C
Vallejo, CA 94590
Phone: (707) 551-2389
Fax: (707) 551-2390

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By Dr. Jonathan L. Kramer

I'm a broadband and radio frequency engineer who, after spending years as a technology advisor to hundreds of governments and firms around the country, went to law school and became an attorney. Not surprisingly, my area of law is telecommunications.

I have a Juris Doctor degree, a Masters of Law degree in Information Technology and Telecommunications Law, and a Doctorate in Law and Policy.

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