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

Posted on by Dr. Jonathan L. Kramer

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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Dr. Jonathan Kramer, California Real Estate Broker

Posted on by Dr. Jonathan L. Kramer

Yesterday (February 27, 2021), I took and passed the California Department of Real Estate Broker examination. I am now licensed as a real estate broker in this state, and my license (No. 00698460) is now active. Securing this license has been a goal of mine for a number of years, and I have been a verifier of experience for three other licensees over the years (including two currently working at TelecomLawFirm.com).

Am I going to transition from being a telecom attorney to real estate?

Nope, but you should expect to see me expand in to real estate transactions going forward.

Jonathan

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Cell Site Landlords: When is an Entry also an Exit?

Posted on by Dr. Jonathan L. Kramer

Electronic direct deposits of monthly or annual cell site rent payments into a landlord’s bank account is a common enough practice.

Direct deposits saves the tenant the payment-related costs of:

  1. printing the check,
  2. getting it to and from the signer (if hand signed),
  3. putting the check in an envelope,
  4. running the envelope through the postage machine;
  5. getting the stamped envelope in the outgoing mail tray;
  6. getting the mail tray to the pick-up point or post office.

For the landlord, electronic payments are quick and relatively easy:

  1. You look online or check your statement to see whether the check hit, and when, and log that into your receivables as a payment.

So far, so good, but there’s a real stinker lurking. Read on…

Electronic payments are commonly describe in the lease agreement and commonly involve the landlord executing and sending the tower company a one-page form, often titled something like: “Electronic Payment Authorization” or “Direct Deposit Form”.

The authorization form will contain some legally-operative language, such as the language shown here:  “By signing below, I authorize [the tower company] to make entries to my account at the financial institution indicated on the attached voided check.”

All goes well for a while, and the deposits go in mostly on time.

But then something happens…the tenant and the landlord get sideways over some payment made by the tenant to the landlord, and suddenly there is a WITHDRAWAL from the landlord’s bank account for the amount disputed by the tenant.  Poof.  The money is gone.

Huh? How can that occur?  The landlord says that the direct deposit form was for, well, deposits.

The landlord contacts the bank and says, ‘Huh? What’s this withdrawal by my cell site tenant?!  I NEVER authorized it!!  You, my bank, has to fix this and put the money back into my account!”

The landlord’s banker looks through the account records, finds the electronic withdrawal, then goes into the account signature documents.  The call back  from the banker to to the landlord goes something like this: ‘Sorry, but you authorized your tenant to make account withdrawals.’  Then the banker tells the landlord to look at the clear and unambiguous words in the Direct Deposit Form signed so long ago and forgotten by the landlord.

Sadly for the landlord, the legally-operative words said something quite different from what the landlord understood: “By signing below, I authorize [the tower company] to make entries to my account at the financial institution indicated on the attached voided check.” (Emphasis added.)

Don’t think that an “entry” is a deposit…think about it like in accounting. An account entry can be–and in the case of monthly rent–is a deposit (called a credit in accounting talk).  But also in accounting, an account entry can be a debit (or a withdrawal).

By allowing the tenant to make “account entries” the landlord gave the keys of the account to the tenant.

Not such a hot idea, and one that in the hypothetical case above, would likely force the lawyers to get involved.

Conclusion?  Direct deposits are most often a very good thing.  Account entries? Well … not so much.  Words have legally-effective meanings, even on a simple form seemingly so straight forward and clear.  Fixing the particular problem shown in the example here, which used real words from a signed document we reviewed, is easy once you understand the issue and know how to resolve it to protect the landlord.

When in doubt, and most often even if you’re not, it usually pays to reach out to an attorney who has a practice related to your issue.  As the old Ben Franklin quote starts, “A stitch in time…”

Jonathan

 

 

 

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California: Senate Bill 378 Proposes Bill to Allow for Fiber in Microtrenchs in the PROW

Posted on by Dr. Jonathan L. Kramer

Our telecom friends have caused a new Senate Bill to be in the hopper in Sacramento.  SB 378 would require local governments to permit the use of microtrenching (add that term to your spellcheck dictionary now) for the installation of new fiber optic cables.

A microtrench is defined in the Bill as being “…a narrow open excavation trench that is less than or equal to 4 inches in width and not less than 12 inches in depth and not more than 26 inches in depth and that is created for the purpose of installing a subsurface pipe or conduit” where “[t]he provider of fiber facilities shall determine the method of the installation of fiber.”

Public Works Directors and City/County Engineers around the state are likely to have real problems with the text of the bill because of their experiences with microtrenching, including without limitation to the difficulties in achieving safe and long-term reliability of these small width and limited depth trenches. Even more troubling is the proviso that “[t]he provider of fiber facilities shall determine the method of the installation of fiber.”

Here’s the current proposed text of the legislation (as of the date of introduction, February 10, 2021):

CALIFORNIA LEGISLATURE— 2021–2022 REGULAR SESSION

Senate Bill
No. 378

Introduced by Senator Gonzalez
(Coauthors: Senators Hertzberg and Wiener)

February 10, 2021

An act to add Sections 65964.5 and 65964.6 to the Government Code, relating to local government.

LEGISLATIVE COUNSEL’S DIGEST

SB 378, as introduced, Gonzalez. Local government: broadband infrastructure development project permit processing: microtrenching permit processing ordinance.

Under existing law, the Public Utilities Commission has jurisdiction over public utilities, including electrical corporations. The commission’s existing Electric Tariff Rule 20 establishes policies for the undergrounding of electric facilities and includes, among other programs, the Rule 20A undergrounding program , which requires electrical corporations to convert overhead electric facilities to underground facilities when doing so is in the public interest for specified reasons.

This bill would authorize a provider of fiber facilities to determine the method of the installation of fiber. The bill would prohibit a local agency, as defined, from prohibiting, or unreasonably discriminating in favor of or against the use of, aerial installations, open trenching or boring, or microtrenching, but would authorize a local agency to prohibit aerial deployment of fiber where no aboveground utilities exist due to Electric Tariff Rule 20 or other existing underground requirements.

This bill would require a local agency to allow fiber to be installed in the same fashion as the existing aboveground utilities where aboveground utilities are present. The bill would provide that this provision controls over any undergrounding ordinance adopted by the local agency that requires all utilities to bury existing overhead facilities pursuant the Overhead Conversion Program established by the commission pursuant to Electric Tariff Rule 20. The bill would require a local agency to allow microtrenching for the installation of underground fiber if the installation in the microtrench is limited to fiber. By imposing new duties on local agencies with regard to the installation of fiber, the bill would impose a state-mandated local program.

Existing law, the Permit Streamlining Act, governs the approval process that a city or county is required to follow when approving, among other things, a permit for construction or reconstruction for a development project for a wireless telecommunications facility and a collocation or siting application for a wireless telecommunications facility.

This bill would authorize a city or county to impose on an applicant for a permit for a broadband infrastructure development project a reasonable fee for costs associated with the submission, and the expedited review, processing, and approval of an application, including, but not limited to, personnel costs as necessary, if the applicant elects for the expedited review and processing and agrees to pay that fee.
The California Constitution requires the state to reimburse local agencies and school districts for certain costs mandated by the state. Statutory provisions establish procedures for making that reimbursement.

This bill would provide that no reimbursement is required by this act for a specified reason.

Digest Key
Vote: MAJORITY   Appropriation: NO   Fiscal Committee: YES   Local Program: YES

Bill Text

The people of the State of California do enact as follows:SECTION 1. This act shall be known as the Broadband Deployment Acceleration Best Practices Act of 2021.

SEC. 2. The Legislature hereby finds and declares all of the following:

(a) Californians need improved access to high-speed internet now more than ever to meet a variety of demands including, but not limited to, remote work, distance learning, telehealth, emergency response and public safety, agriculture, innovation, and commerce.

(b) High-speed internet is delivered to Californians through wireline and wireless broadband infrastructure that is installed either aerially or underground. Wireless broadband service relies on wireline facilities, especially fiber backhaul lines.

(c) Deployment of fiber is critical to connect more Californians to high-speed internet.

(d) Quick and cost-effective ways to install fiber include trenching and boring, microtrenching, and aerially using existing utility poles or other vertical infrastructure along the intended fiber route.

(e) By allowing these different methods of fiber installation and expediting fiber permit applications, local agencies will help promote the deployment of fiber for high-speed internet access across California.

SEC. 3. Section 65964.5 is added to the Government Code, to read:65964.5.

(a) For purposes of this section, the following definitions apply:

(1) “Fiber” means fiber optic cables, and related ancillary equipment such as conduit, ancillary cables, hand holes, vaults and terminals.

(2) “Local agency” means a city, county, city and county, charter city, special district, or publicly owned utility.

(3) “Microtrench” means a narrow open excavation trench that is less than or equal to 4 inches in width and not less than 12 inches in depth and not more than 26 inches in depth and that is created for the purpose of installing a subsurface pipe or conduit.

(4) “Microtrenching” means excavation of a microtrench.

(b)

(1) The provider of fiber facilities shall determine the method of the installation of fiber.

(2) A local agency shall not prohibit, or unreasonably discriminate in favor of or against the use of, aerial installations, open trenching or boring, or microtrenching.
(3) Notwithstanding paragraphs (1) and (2), a local agency may prohibit aerial deployment of fiber where no aboveground utilities exist due to Public Utilities Commission Electric Tariff Rule 20 or other existing underground requirements.

(c) Fiber installations subject to this section shall be subject to both of the following:

(1) Where existing aboveground utilities are present, the local agency shall allow fiber to be installed in the same fashion as the existing aboveground utilities. This paragraph shall control over any undergrounding ordinance adopted by the local agency that requires all utilities to bury existing overhead facilities pursuant to the Overhead Conversion Program established by the Public Utilities Commission pursuant to Electric Tariff Rule 20, except that the provider of fiber facilities shall underground its fiber at the time other utilities remove their aerial facilities pursuant to any undergrounding ordinance of the local agency.

(2)

(A) The local agency with jurisdiction to approve excavations shall allow microtrenching for the installation of underground fiber if the installation in the microtrench is limited to fiber.

(B) Upon mutual agreement, a microtrench may be placed shallower than 12 inches in depth in areas that are not beneath a paved roadway.

(d) For purposes of this section, the time periods established by the applicable Federal Communication Commission rules contained in Subpart U (commencing with Section 1.6001) of Part 1 of Subchapter A of Chapter I of Title 47 of the Code of Federal Regulations for a small wireless telecommunications facility using an existing structure shall apply to an application for a fiber installation.

(e) An application for a permit to install fiber shall include payment of a reasonable fee set by the local agency to cover the cost of processing the application.

(f) This section does not preclude an applicant and the local agency from mutually agreeing to an extension of any time limit provided by this section.

(g) The Legislature finds and declares that installation of fiber is critical to the deployment of broadband services and other utility services, is a matter of statewide concern, and is not a municipal affair as that term is used in Section 5 of Article XI of the California Constitution. Therefore, this section applies to all cities, including charter cities.

SEC. 4. Section 65964.6 is added to the Government Code, to read:65964.6.

(a) For purposes of this section, the following definitions apply:
(1) “Applicant” means a person or entity who submits an application.
(2) “Application” means an application for a permit to install fiber.
(3) “Local Agency” means a city, county, city and county, charter city, special district, or publicly owned utility.
(4) “Personnel costs” includes the costs of hiring or employing temporary or permanent local agency employees, consultants, or contractors.

(b) A local agency may impose on an applicant a reasonable fee for costs associated with the submission of, and the expedited review, processing, and approval of, an application, including, but not limited to, personnel costs as necessary, if the applicant elects for the expedited review and processing and agrees to pay that fee.

(c) This section does not amend or alter the civil service laws of this state or any local agency.SEC. 5. 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.

Public Works Directors and City/County Engineers should start discussing the bill text with each other with an eye to addressing key issues.

I expect that the LCC will get involved.  There’s a lot to talk about, and to talk about very soon.

Jonathan

 

 

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April Fools is NOT April Fools

Posted on by Dr. Jonathan L. Kramer

Today two big events (so far) have occurred.

First, the FCC published its new RF emissions safety standards in the Federal Register.  The new rules become effective on June 1, 2020.  In May I’ll be leading a webinar for our clients and friends on the new rules, and how to implement them.

Second, the T-Mobile Sprint merger closed today.  Who will be the fool has yet to be seen, but Sprint AND T-Mobile cell site landlords (and especially cell site landlords with both Sprint and T-Mobile leases) must be very careful over the coming months.  When they get any papers from anyone representing Sprint, T-Mobile, or the New T-Mobile, they should take the time to carefully consider what’s before them before signing on ANY dotted (or undotted) line.

Jonathan

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Wireless Industry Trying to Add Small Cell Rules to Covid-19 Recovery Legislation

Posted on by Dr. Jonathan L. Kramer

Word from Capitol Hill is that wireless industry lobbyists are pushing hard for inclusion of the text of the STREAMLINE Small Cell Deployment Act in Covid-19 stimulus legislation.

The STREAMLINE Act (which is better called the Steamroller Act), has been sharply opposed by local governments and our national organizations.  That act would codify in federal law the Federal Communications Commission’s small cell preemption regulations.  It would include adding into federal law a “deemed granted” penalty for shot clock overruns essentially regardless of the reason for the delay.  This ‘Christmas Tree Ornament’ inclusion of the Steamroller Act into vital legislation to get the economy going again would permanently constrain local governments’ decision making authority over small cell infrastructure, and the ability of local governments to charge appropriate compensation for the use of the public’s local rights of way.

It is vital that citizens and local governments reach out to their congressional delegations in both chambers to oppose its inclusion.

The National League of cities has a template opposition letter that can be used: See www.nlc.org/takeaction.

TAKE ACTION NOW!

Jonathan

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Dr Kramer to speak at AGL Summit in Seattle on 1/30/20

Dr Kramer to speak at AGL Summit in Seattle on 1/30/20

Posted on by Dr. Jonathan L. Kramer

Dr. Jonathan Kramer will be the sole local government panelist at the “Muni Ordinances, Small Cell Designs and the Complexities of Density” panel this week at AGL’s Summit in Seattle.  Four industry reps against Jonathan…seems evenly balanced 😉

The day-long event will take place on Thursday, January 30, 2020.

The full introduction to Jonathan’s panel topic is:

“Wireless siting has long been a controversial topic.  With small cells, the wireless industry and municipalities have seen even more conflict.  Learn about the FCC’s rule changes, municipalities’ concerns about small cells, the public’s fear of 5G RF, and the industry’s’ response with aesthetically pleasing small cells.”    

Here’s a link to the information and registration page:

https://www.aglmediagroup.com/event/agl-local-summit-2020-seattle/

The AGL Summits are always interesting, and I recommend interested parties attend. I enjoy attending and speaking as a perceived enemy of deployment under this theory:

See you in Seattle (actually, Newcastle, Washington)…

Jonathan

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FCC Amends Small Cell Rules per DC Circuit Court

Posted on by Dr. Jonathan L. Kramer

Some commenters have described the DC Circuit’s decision in United Keetoowah Band of Cherokee Indians v. FCC, No. 18–1129, 2019 WL 3756373 (D.C. Cir Aug. 9, 2019) as being some sort of a magic bullet 5G/small cell killer.  They also claim that the decision nullifies much of the FCC’s small cell rules, citing primarily to the personal observations of a FCC Commissioner.

I wish all that were true.

In fact, however, those commenters are only expressing their wishful, non-lawyer’s reading of the limited scope of the United Keetoowah decision.  That’s why the ten local government cases now being litigated in the 9th Circuit remain the most important fights citizens have to truly set aside the FCC’s misguided, unjustified, industry-loving rules.

Lets take a look at what the FCC actually did to respond to the D.C. Circuit’s United Keetoowah decision:

First, the FCC amended 47 C.R.R. § 1.1312 to reduce the scope of the rule.  Here’s a before and after comparison of the existing rule followed by the replacement rule that becomes effective on 12/5/2019:

Original
Text		 Text Effective
12/5/2019		 Text
Difference
§ 1.1312 Facilities for which no preconstruction authorization is required. § 1.1312 Facilities for which no preconstruction authorization is required. None
(a) In the case of facilities for which no Commission authorization prior to construction is required by the Commission‘s rules and regulations the licensee or applicant shall initially ascertain whether the proposed facility may have a significant environmental impact as defined in § 1.1307 of this part or is categorically excluded from environmental processing under § 1.1306 of this part. (a) In the case of facilities for which no Commission authorization prior to construction is required by the Commission‘s rules and regulations the licensee or applicant shall initially ascertain whether the proposed facility may have a significant environmental impact as defined in § 1.1307 of this part or is categorically excluded from environmental processing under § 1.1306 of this part. None
(b) If a facility covered by paragraph (a) of this section may have a significant environmental impact, the information required by § 1.1311 of this part shall be submitted by the licensee or applicant and ruled on by the Commission, and environmental processing (if invoked) shall be completed, see § 1.1308 of this part, prior to the initiation of construction of the facility. (b) If a facility covered by paragraph (a) of this section may have a significant environmental impact, the information required by § 1.1311 of this part shall be submitted by the licensee or applicant and ruled on by the Commission, and environmental processing (if invoked) shall be completed, see § 1.1308 of this part, prior to the initiation of construction of the facility. None
(c) If a facility covered by paragraph (a) of this section is categorically excluded from environmental processing, the licensee or applicant may proceed with construction and operation of the facility in accordance with the applicable licensing rules and procedures. (c) If a facility covered by paragraph (a) of this section is categorically excluded from environmental processing, the licensee or applicant may proceed with construction and operation of the facility in accordance with the applicable licensing rules and procedures. None
(d) If, following the initiation of construction under this section, the licensee or applicant discovers that the proposed facility may have a significant environmental effect, it shall immediately cease construction which may have that effect, and submit the information required by § 1.1311 of this part. The Commission shall rule on that submission and complete further environmental processing (if invoked), see § 1.1308 of this part, before such construction is resumed. (d) If, following the initiation of construction under this section, the licensee or applicant discovers that the proposed facility may have a significant environmental effect, it shall immediately cease construction which may have that effect, and submit the information required by § 1.1311 of this part. The Commission shall rule on that submission and complete further environmental processing (if invoked), see § 1.1308 of this part, before such construction is resumed. None
(e) Paragraphs (a) through (d) of this section shall not apply: e) Paragraphs (a) through (d) of this section shall not apply to the construction of mobile stations. Rule changed to limit the scope of (a) through (d) to not apply to the construction of mobile stations.
(1) To the construction of mobile stations; or

(2) Where the deployment of facilities meets the following conditions:

(i) The facilities are mounted on structures 50 feet or less in height including their antennas as defined in § 1.1320(d), or the facilities are mounted on structures no more than 10 percent taller than other adjacent structures, or the facilities do not extend existing structures on which they are located to a height of more than 50 feet or by more than 10 percent, whichever is greater;

(ii) Each antenna associated with the deployment, excluding the associated equipment (as defined in the definition of antenna in § 1.1320(d)), is no more than three cubic feet in volume;

(iii) All other wireless equipment associated with the structure, including the wireless equipment associated with the antenna and any pre-existing associated equipment on the structure, is no more than 28 cubic feet in volume; and

(iv) The facilities do not require antenna structure registration under part 17 of this chapter; and

(v) The facilities are not located on tribal lands, as defined under 36 CFR 800.16(x); and

(vi) The facilities do not result in human exposure to radiofrequency radiation in excess of the applicable safety standards specified in § 1.1307(b).

 Text deleted

Then the Commission changed one small element of 47 C.F.R. § 1.6002 to delete the cross reference back to § 1.1312(e)(2).  Here’s a before and after comparison of the existing rule followed by the replacement rule that becomes effective on 12/5/2019:

Original
Text

Text Effective
12/5/2019

Text
Difference
(l) Small wireless facilities, consistent with § 1.1312(e)(2), are facilities that meet each of the following conditions: (l) Small wireless facilities are facilities that meet each of the following conditions: Deleted: “, consistent with § 1.1312(e)(2),”
(1) The facilities –

(i) Are mounted on structures 50 feet or less in height including their antennas as defined in § 1.1320(d); or

 (1) The facilities –

(i) Are mounted on structures 50 feet or less in height including their antennas as defined in § 1.1320(d); or

 None
(ii) Are mounted on structures no more than 10 percent taller than other adjacent structures; or

 

 (ii) Are mounted on structures no more than 10 percent taller than other adjacent structures; or

 

 None

 
(iii) Do not extend existing structures on which they are located to a height of more than 50 feet or by more than 10 percent, whichever is greater;

 

 (iii) Do not extend existing structures on which they are located to a height of more than 50 feet or by more than 10 percent, whichever is greater;

 

 None

 
(2) Each antenna associated with the deployment, excluding associated antenna equipment (as defined in the definition of “antenna” in § 1.1320(d)), is no more than three cubic feet in volume;

 

 (2) Each antenna associated with the deployment, excluding associated antenna equipment (as defined in the definition of antenna in § 1.1320(d)), is no more than three cubic feet in volume;

 

 None

 
(3) All other wireless equipment associated with the structure, including the wireless equipment associated with the antenna and any pre-existing associated equipment on the structure, is no more than 28 cubic feet in volume;

 

 (3) All other wireless equipment associated with the structure, including the wireless equipment associated with the antenna and any pre-existing associated equipment on the structure, is no more than 28 cubic feet in volume;

 

 None

 
(4) The facilities do not require antenna structure registration under part 17 of this chapter;

 

 (4) The facilities do not require antenna structure registration under part 17 of this chapter;

 

 None

 
(5) The facilities are not located on Tribal lands, as defined under 36 CFR 800.16(x); and

 

 (5) The facilities are not located on Tribal lands, as defined under 36 CFR 800.16(x); and

 

 None

 
(6) The facilities do not result in human exposure to radiofrequency radiation in excess of the applicable safety standards specified in § 1.1307(b).

 

 (6) The facilities do not result in human exposure to radiofrequency radiation in excess of the applicable safety standards specified in § 1.1307(b).

 

 None

 

don’t believe me? Take a look at a PDF copy of the official FCC rule changes published in the Federal Register on November 5, 2019, and effective on December 5, 2019: Small Cell Rules Changes Effective 12-5-2019 – FCC2019-24071.

Are the new rule changes a small cell killer? Sorry…No.

…a 5G killer? Not even close.

…wishful thinking? Yup.

Let’s keep our eyes on the right Small Cell rules fight, being fought in the right venue…the 9th Circuit Court of Appeals.

If you’re a member of the public really interested in changing fundamental concepts of wireless rules to be set and/or enforced by the FCC, then you should also fight your fight in the right venue, which is not before a local government that is obligated to follow state and federal laws, regardless of how little some may think about following the laws that exist.  Consider visiting your Member of Congress and your U.S. Senators. Only they have the power to accomplish the fundamental changes that some members of the public wish to see happen.

Jonathan

 

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Coalition of Concerned Utilities Reply Comments in 6409(a) Petition

Posted on by Dr. Jonathan L. Kramer

Here’s a choice quote from the Coalition of Concerned Utilities who oppose the wireless industry’s attempt to get the FCC to change the 6409(a) rules:

Careless requests by Crown Castle and others to relax utility construction and design standards and to experiment downward is like asking the National Highway Traffic Safety Administration to order bumpers, airbags, head restraints and other safety gear to be removed to see whether cars can be built for less money without an increase in injuries.

If you’d like to read the entire reply comments from the CCU, please  CLICK HERE.

 

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Western Communities Coalition 6409(a) Reply Comments

Posted on by Dr. Jonathan L. Kramer

Last night the Western Communities Coalition, represented by Telecom Law Firm PC (San Diego and Los Angeles) and Kissinger and Fellman (Denver), filed lengthy and detailed Reply Comments with the FCC in the current Section 6409(a) proceedings.

The Coalition’s Reply Comments site widespread wireless industry misrepresentations and abuses of the current process, and how those misrepresentations and abuse has can only become worse if the Commission grants the industry’s petitions.

Unfortunately, the Commission’s reply period was far less than sought by local governments and others maligned by the wireless industry. We will be traveling to Washington DC to meet with the Commission armed with many, many more very specific and damming examples about wireless industry exaggerations and outright misrepresentations perpetrated against local governments, and now the Commission.

Linked below is a copy of the WCC Reply Comments.

Jonathan

JOINT REPLY COMMENTS (19-250)

 

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