Author: Dr. Jonathan L. Kramer

AB 57, which should be called the “Cell Site Gift Act of 2015” was amended yesterday in the Assembly to add real fangs intended to bite Californians in favor of the wireless industry.

The bill by Assembly Member Bill Quirk (D, 20th) now simply says the following:

(a) A colocation or siting application for a wireless
telecommunications facility, as defined in Section 65850.6, shall
be deemed approved if both of the following occur:

(1) The city or county fails to approve or disapprove the
application within the time periods established by the Federal
Communications Commission in In re Petition for Declaratory
Ruling, 24 FCC Rcd. 13994 (2009).

(2) All public notices regarding the application have been
provided consistent with the public notice requirements for the
application.

(b) The Legislature finds and declares that a wireless
telecommunications facility has a significant economic impact in
California and is not a municipal affair as that term is used in
Section 5 of Article XI of the California Constitution, but is a
matter of statewide concern.

The Plain English translation of what Assembly Member Qurik now proposes on behalf of his wireless industry supporters is this:

‘Any wireless siting application of any kind, if not either approved or disapproved by a city or county after public notice in the time limits set by the FCC, shall be DEEMED APPROVED.’

Essentially, Assembly Member Quirk extends the deemed approved remedy greatly benefiting his wireless industry supporters to every kind of wireless project in California, which goes far beyond what the FCC has done.

The timing of this bill is very interesting.  At the very moment that Assembly Member Quirk is trying to super-bootstrap a portion of the FCC rules to all wireless projects in California, those federal rules are under attack in a federal law suit filed in the 4th Circuit Court of Appeals.

Now is the time to start writing to your Assembly and Senate members to tell them that you don’t want the wireless industry to have super-rights not intended by either Congress or the FCC, and special state-level rights intended to make it almost impossible for the public to effectively argue against cell sites that detrimental to community aesthetics.

As I predicted in yesterday’s post, AB 57 was, in fact, amended to start adding teeth.  The first tooth is a innocuous…adding a representative of the League of California Cities and a representative of the California State Association of Counties to the board of the California Broadband Council.

But in the best hide-the-ball tradition, the real bite of this legislation, yet to be added (but surely it will), is related to this intent:

Existing law declares the intent of the Legislature that, consistent with this authorization, municipalities have the right to exercise reasonable control as to the time, place, and manner in which roads, highways, and waterways are accessed, but that for the control to be reasonable it must, at a minimum, be applied to all entities in an equivalent manner.

The “all entities” language just above suggests that a tooth about to pop through the gums will be a legislative requirement that telegraph or telephone corporations be treated like all entities in the right-of-way, which would include gas, water, sewer and most importantly electric utilities.  If this is the goal of AB57, yet to be disclosed in this legislation, then it does not well serve Assembly Member Quirk’s constituents or property owners in California.  The various utilities each have unique technical requirements for installation, operations, and the like for their equipment.  It is illogical to equate any of the utilities to any of the other in the right of way.  Trying to do so would only encourage the installation of cell sites in residential areas without suitable aesthetic controls simply by saying that 100 years ago PG&E installed a pole, overhead lines and facilities in the area, 100 years later a wireless carrier should be able to do the same thing.  There is a substantial difference between a 32,000 volt electrical circuit in the right-of-way and a cell site in the right-of-way.  Hopefully this legislation, as it continues to be amended, will not try to make them the same.

So far, the first amendment to add a representative of the League of California Cities and a representative of the California State Association of Counties to the board of the California Broadband Council is innocuous, but more teeth and sharper teeth are sure to come…soon.

Here is the bill as it stands today, March 28, 2015:

BILL NUMBER: AB 57 AMENDED
BILL TEXT

AMENDED IN ASSEMBLY MARCH 26, 2015

INTRODUCED BY Assembly Member Quirk

DECEMBER 2, 2014

An act to amend Section 8886 of the Government Code,
relating to communications.

LEGISLATIVE COUNSEL’S DIGEST

AB 57, as amended, Quirk. Broadband communications infrastructure.

The existing federal Telecommunications Act of 1996 preempts any state or local statute or regulation that may prohibit or have the effect of prohibiting the ability of any entity to provide any interstate or intrastate telecommunications service, but service. However, this provision does not prohibit a state from imposing imposing, on a competitively neutral basis, requirements necessary to preserve and advance universal service, protect the public safety and welfare, ensure the continued quality of telecommunications services, and safeguard the rights of consumers. The prohibition also contains a “safe harbor” that does not affect the authority of consumers, nor does it prevent a state or local
government to manage from managing the public rights-of-way or to require requiring fair and reasonable compensation from telecommunications providers, on a competitively neutral and nondiscriminatory basis, for use of public rights-of-way on a nondiscriminatory basis.

Under existing law, telegraph or telephone corporations may construct lines of telegraph or telephone lines along and upon any public road or highway, along or across any of the waters or lands within the  state, and may erect related poles, posts, piers, abutments, and other necessary fixtures of their lines, but may not incommode the public use of the road or highway or interrupt the navigation of the waters. Existing law declares the intent of the Legislature that that, consistent with this authorization, municipalities have the right to exercise reasonable control as to the time, place, and manner in which roads, highways, and waterways are accessed, but that for the control to be reasonable it must, at a minimum, be applied to all entities in an equivalent manner.

Existing law establishes the California Broadband Council in state government for the purpose of promoting broadband deployment in unserved and underserved areas of the state and broadband adoption throughout the state, imposes specified duties on the council relating to that purpose, and specifies the membership of the council.

This bill would state the intent of the Legislature to enact legislation to promote the deployment of communications infrastructure by removing barriers to investment. The bill would add the President of the Board of Directors of the League of California Cities and the President of the Executive Committee of the California State Association of Counties, or their respective designees, to the membership of the council. 

Vote: majority. Appropriation: no. Fiscal committee: no
yes. State-mandated local program: no.

THE PEOPLE OF THE STATE OF CALIFORNIA DO ENACT AS FOLLOWS:

SECTION 1. The Legislature finds and declares all of the following:

(a) California consumers and businesses have adopted new, Internet-based technologies and mobile connections at an unprecedented rate. Internet-based products and devices, including smartphones and tablets, are providing consumers everywhere with new choices to connect, to communicate, and to access information and entertainment.

(b) The deployment of faster, more robust, and advanced wireless and wireline broadband infrastructure is essential to ensuring there is sufficient capacity and coverage to support the increasing reliance of California residents on broadband services.

(c) State and local review of broadband infrastructure deployment serves important interests, but at the same time, California must take steps to ensure that requirements do not hinder investment.  State and local permitting processes should be designed to eliminate unnecessary barriers and spur deployment of infrastructure. This includes streamlining permitting requirements to reduce delay and cost, and the creation of uniform processes.

(d) New and upgraded infrastructure delivers a vast array of consumer and community benefits, including important improvements to public safety, education, and healthcare. The power of mobile communications is a critical tool for first responders in emergency situations. According to the Federal Communications Commission, nearly 70 percent of 911 calls are made from mobile telephones, and that percentage is growing.

(e) As we continue the transition to a knowledge-based, technology-driven economy, California must invest in students and provide them with the proper tools and technologies to bolster academic achievement, starting with expanding access to high-speed broadband Internet and next-generation Internet Protocol-based networks.

(f) Facilitating broadband deployment additionally plays a key role in advancing telemedicine and mobile health applications, which can help Californians remotely monitor their health while reducing medical costs.

(g) Wireless broadband is also key to economic development and a driver for new business and jobs. Businesses increasingly depend on strong wireless broadband service to carry their employees through the work day. An estimated 94 percent of small businesses surveyed use smartphones to conduct business and mobile technologies are saving the country’s small businesses more than sixty-five billion dollars ($65,000,000,000) a year.

(h) Broadband infrastructure deployment creates jobs. A 2013 study conducted by the research firm Information Age Economics projects that wireless infrastructure investment will generate as much as one trillion two-hundred billion dollars ($1,200,000,000,000) in economic growth while creating over 1.2  million new jobs, nationally, over the next five years.

(i) It is the intent of the Legislature to enact legislation to promote the deployment of communications infrastructure by removing barriers to investment. Removing investment barriers is critical to meeting the surging demand by California residents for advanced wireless and wireline broadband technologies and services, supporting  and enhancing critical public safety needs, and bridging the digital divide by increasing access for more Californians to improved education, health care, and economic development opportunities.

SEC. 2. Section 8886 of the Government
Code is amended to read:
8886. (a) The membership of the California Broadband Council shall include all of the following:
(1) The Director of Technology, or his or her designee.
(2) The President of the Public Utilities Commission, or his or her designee.
(3) The Director of Emergency Services, or his or her designee.
(4) The Superintendent of Public Instruction, or his or her designee.
(5) The Director of General Services, or his or her designee.
(6) The Secretary of Transportation, or his or her designee.
(7) The President of the California Emerging Technology Fund, or his or her designee.
(8) A member of the Senate, appointed by the Senate Committee on Rules.
(9) A member of the Assembly, appointed by the Speaker of the Assembly.
(10) The President of the Board of Directors of the League of California Cities, or his or her designee.
(11) The President of the Executive Committee of the California State Association of Counties, or his or her designee.
(b) Members of the Legislature appointed to the council shall
participate in the activities of the council to the extent that their
participation is not incompatible with their positions as Members of
the Legislature.

If you’re wondering about Government Code Section 8886, here’s what it says as of today:

8886. (a) The membership of the California Broadband Council shall
include all of the following:
(1) The Director of Technology, or his or her designee.
(2) The President of the Public Utilities Commission, or his or
her designee.
(3) The Director of Emergency Services, or his or her designee.
(4) The Superintendent of Public Instruction, or his or her
designee.
(5) The Director of General Services, or his or her designee.
(6) The Secretary of Transportation, or his or her designee.
(7) The President of the California Emerging Technology Fund, or
his or her designee.
(8) A member of the Senate, appointed by the Senate Committee on
Rules.
(9) A member of the Assembly, appointed by the Speaker of the
Assembly.
(b) Members of the Legislature appointed to the council shall
participate in the activities of the council to the extent that their
participation is not incompatible with their positions as Members of
the Legislature.

Bill Quirk’s, the California Assembly Member serving the 20th District has had a mysterious bill, AB 57, in the hopper since December 2, 2014.  It appears that AB57 is the newest push by the wireless industry to move towards some level of wireless site deregulate regarding the location and installation of cell towers and cell sites.  AB57 is now back in action, and it has been referred to the California Assembly’s Committee on Utilities and Commerce.

While the teeth of the bill have yet to be disclosed we have just the original ‘sense of the Legislature’ language.  You can reasonably expect those teeth to come out in print just before the Assembly’s Committee on Utilities and Commerce considers action on AB57.

YOU SHOULD BE WATCHING WHAT’S HAPPENING ON AB57, especially if you live in Assembly Member  Quirk’s district (see the inset map).

If Assembly Member Quirk puts teeth in his legislation that will protect Californians and our community aesthetics, that would be great. More likely, however, is that AB57 will remove to some degree city and county authority to determine where cell sites should be installed, and the aesthetics of the cell site.  Hopefully Assembly Member Quirk will be promote the interests of local control and his own constituents over the the wireless industry.

I’ve had a chance to talk with wireless industry members off-the-record.  They seem to have an inside peek at AB57 and seem excited about it. That should set off alarm bells with community members who care about community aesthetics.

Assembly Member Quirk’s district, the 20th Assembly District includes the cities of Hayward, Union City, the northern portion of Fremont and the unincorporated communities of Ashland, Castro Valley, Cherryland, Fairview, and Sunol.

Finally, for those of you living in Assembly Member Quirk’s district, ask him why he has omitted information about AB57 from his web site.

Jonathan