California’s “Broadband Permit Efficiency and Local Government Staff Solution Best Practices Act of 2023” (AB-965) Signed Into Law

California Assembly Bill 965, the so-called “Broadband Permit Efficiency and Local Government Staff Solution Best Practices Act of 2023” is now California law and will become effective on 1/1/2024.  The new law will live at California Government Code Section 65964.3.

On October 8, 2023, Governor Newsom signed into law Assembly Bill 965.  Introduced by Assembly member Juan Carrillo (D-Palmdale), the Bill purports to speed up broadband deployment by allowing for batched applications in units of up to 25 or 50 sites per batched application for “substantially similar broadband project sites”.

Please understand that this is actually a ‘small cell deployment bill’ that never once mentions small cells.

If you read between the lines–and it doesn’t take a powerful magnifying glass to do that–you’ll see (like we have) that this law will impact local Public Works agencies far more than Community Development Departments. Given, at least in our experience, that most California public works codes are lacking in wireless regulation, and especially in design standards for wireless facilities in the public rights of way, now is the time to update local PW codes.

Let’s do a preliminary section-by-section walk through the new law and see how it ‘works’ as written, but certainly not in practice. (Please note that TLF will be publishing a California-credit MCLE program at https://CLE.TLF.LAW in the near future that will deep dive into this law and how it may be implemented by local governments in California. Local government attorneys will have free access to that program…just send an email request to Jonathan.)

Note that SEC. 1 and SEC. 2 are the title and legislative ‘findings’, and not discussed here.

Now, on to the main event…

SEC. 3. Section 65964.3 is added to the Government Code, to read:

65964.3. (a) For purposes of this section, the following definitions apply:
(1) “Batch broadband permit processing” means the simultaneous processing of multiple broadband permit applications for substantially similar broadband project sites under a single permit.

Note the word “simultaneous” used here. Many local governments will have to adjust their processing procedures to meet the shot clock requirements discussed below.

(2) “Broadband permit application” means an application or other documents submitted for review by a local agency to permit the construction of a broadband project.

It will be very helpful for a local agency to create a standalone permit application for batched broadband projects. TLF is developing one for use by our clients.

(3) “Broadband project” means the proposed facility, including the support structure and any supporting equipment necessary for operation of the proposed facility. A broadband project may be comprised of one or more components, including, but not limited to, a wireless facility, a fiber optic connection, and other supporting equipment, each of which may require separate permits or authorizations by a local agency.

The definition of “Broadband project” is quite important. It’s a soup-to-nuts, kitchen sink definition that includes poles, wires, cables, electronic equipment, antennas, vaults, pedestals, and more. Additionally, expect to see franchised cable TV operators and non-franchised fiber providers claim rights under AB 965.

(4) “Local agency” has the same meaning as the term is defined in Section 65964.5, except that it does not include a publicly owned electric utility that is subject to Part 2 (commencing with Section 9510) of Division 4.8 of the Public Utilities Code.

Cal. Gov. Code 65964.5(a)(2) defines a local agency as meaning “a city, county, city and county, charter city, special district, or publicly owned utility” but as you see in AB 965, there is an exclusion fora  publicly owned electric utility that is subject to Part 2 (commencing with Section 9510) of Division 4.8 of the Public Utilities Code.  Essentially, for public power utilities, it’s status quo ante.

(5) “Presumptively reasonable time” means the timeframe, if any, specified in applicable law within which a local agency must review and resolve an application following submission of a complete broadband permit application. The presumptively reasonable time period may be modified by mutual, written agreement between the local agency and the applicant.

Applicable law? Okay, remember that California largely adopts the FCC shot clocks with a few wrinkles. This law, like state law and federal regulations, allows for tolling of the shot clock but “mutual, written agreement”. As always, be very careful when executing a tolling agreement given the industry proclivity to include terms that are damaging to local agencies.

(6) “Substantially similar broadband project sites” means broadband project sites that are nearly identical in terms of equipment and general design, but not location.

Whew. When we talk about “nearly identical” are we talking about 95%? 97%? 99%? The law does not give us guidance, but we’ll get into this key term in our MCLE program covering this new law. The location exclusion makes sense since two “nearly identical” sites cannot occupy the same location…at least in the same dimension in 3D space…it’s a physics thing.

(b) Subject to subdivision (e), a local agency shall undertake batch broadband permit processing upon receiving two or more broadband permit applications for substantially similar broadband project sites submitted at the same time by the same applicant. Batch broadband permit processing for wireless broadband projects shall be completed within a presumptively reasonable time pursuant to applicable law unless a longer period of time is permitted under the circumstances pursuant to applicable law, including Section 1.6003 of Title 47 of the Code of Federal Regulations.

Something to consider is, ‘who is the applicant?’ In most cases, the actual applicant in fact will be a permitting contractor (e.g., MD7 or Complete Wireless, etc.) or a tower/builder company (i.e., Extenet or Crown Castle), and far less often the carriers directly (such as AT&T, T-Mobile, Dish, and Verizon). This is important because, for hypo purposes, if XY&T Wireless were to use several different firms to submit multiple sites, the applicants in fact would be different firms…even if they all represent XY&T.

(c) If a local agency does not approve broadband permit applications for substantially similar wireless broadband project sites submitted for batch broadband permit processing pursuant to this section and issue permits, or reject the applications and notify the applicants, within the presumptively reasonable time or a longer period permitted under applicable law, all of the permits shall be deemed approved pursuant to Section 65964.1.

Local government attorneys will have to look at ALL of the requirements of Gov. Code Sec. 65964.1(a) to understand additional provisions to actually trigger the ‘deemed approved’ remedy.   This will be covered in depth in our MCLE program on this new law.

(d) The Legislature finds and declares that batch broadband permitting processing will allow local governments to still receive permit fees, but staff can more easily process routine, high-volume broadband permits as a group instead of individually to help bridge the digital divide and more quickly connect communities to high-speed internet. This will allow the state to meet the federal broadband funding deadline of December 31, 2024, while creating greater broadband equity amongst communities so more individuals can have access to high-speed internet for emergency response, remote work, telehealth, education, and commerce.

Oddly, this subsection (d) seems to be a legislative finding, not an enforceable provision. Weird.

(e) The requirements of this section shall not apply to eligible facility requests, as defined and governed by Section 1455 of Title 47 of the United States Code.

This little gem is very important as it means that existing sites up for modification that would qualify for 6409(a) treatment are unlikely to be subject to this new law. A first step, then, for any application is to ask whether the site being requested actually exists, and if so to likely deny the application if it would otherwise fall into 6409(a) territory. Moreover, if a batched site up for modification does not have a legal existence (and, in our experience, a fair number don’t have a legal existence), then should the local government deny the entire batch? Again, we’ll deep dive on this in our MCLE program.

(f) (1) This section does not preclude a local agency from requiring compliance with any requirements relating to the design, construction, or location of broadband projects that the local agency is otherwise authorized to impose or enforce under applicable law, including, without limitation, any generally applicable health and safety requirements.

Yup, this is a biggie. Local design regulations (wait…your jurisdiction HAS local design regulations, right?) and code compliance are still very much alive and viable. You don’t? Now would be a very good time to look at a design RESOLUTION (not an ordinance) to fill in some obvious holes.

(2) If a broadband permit application is denied, the local agency shall notify the applicant in writing of the reasons for the denial.

Good practice is to independently list every reason for a denial  but remember not to run afoul of the FCC’s  preemption of RF emissions standards. While it’s possible to deny a site for RF non-compliance, you’ll have to make sure you have the backup to make that finding and to make it stick. The section immediately prior makes clear that local governments can (and I assure you they should) ask for and carefully review RF compliance documentation for every new and modified site.

(g) The provisions of this section shall not apply to poles located within the limits of the City and County of San Francisco, if the poles are used for the primary purpose of operating San Francisco Municipal Transportation Agency public transit vehicles.

This provision in this new law doesn’t take SF Muni poles out of the siting equation…it only makes them subject to a different process. Good work by CCSF here!

(h) Nothing in this section shall supersede, nullify, or otherwise alter the requirements to comply with safety standards, including, but not limited to, both of the following:
(1) Article 2 (commencing with Section 4216) of Chapter 3.1 of Division 5 of Title 1.
(2) The Public Utilities Commission’s General Order No. 128, Rules for Construction of Underground Electric Supply and Communication Systems, or successor rules adopted by the commission.

Okay, let’s break this apart a bit. Section 4216 is the code that sets statewide standards for digging, and DigAlert. CPUC GO 128 governs underground utility construction in California. Oddly, nothing is referenced here to CPUC General Order 95.  GO 95 controls and sets safety standards for overhead utility construction here in California. That’s omission is okay, however, since subsection (f)(1) of this new law above makes clear that a local government maintains its enforcement authority for “generally applicable health and safety requirements” and that certainly includes CPUC GO 95.

(i) (1) A local agency may place reasonable limits on the number of broadband project sites that are grouped into a single permit while undertaking batch broadband permit processing.

Well, what’s reasonable? I’m glad you asked because, well, its not the local agency that sets the minimum ‘reasonable limits’…

(2) A reasonable limit imposed pursuant to paragraph (1) shall be no less than either of the following:
(A) For a city with a population of fewer than 50,000 or a county with a population of fewer than 150,000, including each city within that county, 25 project sites.
(B) For a city or county with a population greater than the applicable population described in subparagraph (A), 50 project sites.

I’m fairly sure a lot over smaller jurisdictions will claim, rightly, that 25 batched application sites requiring the expediting of decisions or face a deemed approved remedy will disagree with the definition of “reasonable limit”.

(3) A local agency may only remove a broadband project site from grouping under a single permit under mutual agreement with the applicant or to expedite the approval of other substantially similar broadband project sites.

Subsection 3 is a double edged sword if I ever saw one.  First, the applicant determines whether a site can be removed from a batched application if requested by the local jurisdiction. Second, a jurisdiction appears able to remove an application on its own if it determines that the removal will expedite the approval of other sites in same batch. (Note the use of the ‘or’ connector in this section.)  Why might a local government not want to remove a non-qualifying site (or two or three or however as might be required) from a batch? Good question…but likely a complex answer.

(j) A local agency may impose a fee on batch broadband permitting processing consistent with Section 50030. Where limited resources affect a local agency’s ability to process applications for a broadband project, including batched applications, a local agency shall work with the applicant in good faith to resolve those resource limitations, which may include, but is not limited to, provision by the applicant of supplemental resources.

Cal Gov Code Section 50030 says that as to telecom facilities constructed by a telephone corporation that has obtained all required authorizations to provide telecommunications services from the Public Utilities Commission and the Federal Communications Commission, local governments permit fees “shall not exceed the reasonable costs of providing the service for which the fee is charged and shall not be levied for general revenue purposes”. Okay, no biggie there. It looks like the law adds a new layer of a good faith negotiation to add resources to expedite batched permit processing, and that the applicant will then have to provide “supplement resources”. This is not new, as a fair number of local governments have, in some cases for decades, retained outside trusted consultants to back fill where the local staff doesn’t have the knowledge or handling capacity to timely move applications through the process. What the industry is likely to claim is that THEY get to pick the consultants that a local government can use to provide that back fill. A more logical and consistent reading will be that if a local government needs help, and has a qualified consultant, the local government will be responsible for picking its advisor, and billing that cost through (without adding any pure profit for the general fund) to the applicant.

SEC. 4. The Legislature finds and declares that the efficient approval of broadband permit applications is critical to the deployment of broadband 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, Section 3 of this act adding Section 65964.3 to the Government Code applies to all cities, including charter cities.

This is a common provision that moves the issue to this statewide ‘solution’.

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.

Finally, because the law provides that local governments can charge the cost (including outside help) on the applicant to process these batched applications, no state reimbursement is needed.

Okay, that’s it for this first look, and my options about this new law.

Remember that TLF will be producing and making available a deeper dive review into this new law. That MCLE credit program will be available at no charge to local government attorneys…and, heck, to local government planners as well.



Lease Optimization – that old familiar story

Increasingly, wireless telecommunications landlords are being approached by firms representing their wireless carrier tenants for the purpose of securing a reduction in the rent and/or rent escalator the carrier pays to the landlord. Sometimes the demand is for a ‘rent vacation’ for up to several years.

Generally, the process described above is called, “Lease Optimization.”

Two well-known firms that perform Lease Optimization on behalf of the wireless carriers are Blackdot Wireless, and MD7.

In fact, Blackdot states on its website that it “pioneered the first expense reduction” program, also known as lease optimization. Lease optimization may seem innocent enough. After all, Blackdot is “substantially reducing carrier and tower company operating cost, while securing billions of dollars in rent guarantees for landlords.”

Securing billions of dollars in rent guarantees for landlords?

Lease optimization though results in substantially under market rents for unsuspecting landlords.

The approach is generally the same, as a landlord, you may be told that the wireless carrier is reducing the number of sites it operates and it has been determined that your site is one of those sites the carrier can live without.

That is, unless the landlord is willing to substantially reduce the monthly rent, and skip rent increases for some number of years, or even waive rent payments altogether for a period of years.

What’s in it for the landlord? Not much in reality. The usual ‘carrot’ is that if the landlord complies with the tenant’s demands, he or she will receive a ‘rent guarantee’ that will run for a few years. This is interesting, since the lease is the best indication of the rent that the landlord is supposed to receive.

I can see that a landlord is generally unwilling to lose all the rental income from the site and buys into the lease optimization story – at least there’s still some income, right?!?

If you are approached by a company interested in ‘optimizing’ your lease (and you), be suspect. Discuss the proposed terms with an attorney who is knowledgeable in the area to determine what the best step is forward for your situation. If you need a referral to a knowledgeable attorney to advise you, why not contact us.

In the end, don’t be afraid to trust your instinct: It’s usually the case that if a proposal doesn’t feel right to you, then it’s not right for you.


So, you don’t like your wireless store sales clerk?

J.D. Power and Associates has released their 2008 report on consumer satisfaction with wireless retail sales.  It turns out that if you’re with Verizon or its newly purchased (consumed?) Alltel unit, then you’re

JD Power 2008 Wireless Retail Sales Satisfaction Survey

among the happiest customers.  It’s another story altogether if you have Sprint Nextel.

But look closely at the scale: On the 1,000 point scale, Verizon/Alltel barely squeaked into the bottom of what would be called a “C” grade in school, and the industry averaged a high “D”.

Perhaps that why customers keep asking, “Can you hear me, now?”  “Huh?”

So, while Verizon may take the trophy for best in show, it was the prettiest mutt amongst a bunch of really mangy critters.


Lost the Edge?

Edge Wireless has been absorbed by AT&T Wireless when it purchased the outstanding 64% of the stock of the firm.

Edge was formed in 1999 by Wayne Perry (a member of the Board of Directors  and a former Vice Chairman of of AT&T Wireless), Cal Cannon and Donnie Castleman (alums execs of McCaw Cellular).

Edge had a roaming agreement with Cingular (later AT&T Wireless).  Lately, the large wireless carriers have been triggering buy-out provisions in the roaming agreements.  Whether that’s the case here is unknown, but I rather suspect it.

Here’s AT&T’s PR puff regarding the completion of the transaction:

AT&T Completes Acquisition of Edge Wireless to Enhance Wireless Coverage

Transition to Begin in the Second Quarter; Customer Benefits Will Include Improved Network Coverage and Access to Innovative Products and Services

San Antonio, Texas, April 18, 2008

AT&T Inc. (NYSE:T) today announced that the company has completed, through a subsidiary, the acquisition of Edge Wireless. Edge is a provider of wireless communications services in Oregon, northern California, Idaho and Wyoming.

The addition of Edge’s wireless network will allow AT&T to deliver broader wireless coverage to customers in the Northwest, including Edge’s existing subscribers. Edge customers will also gain access to AT&T’s portfolio of products and services, as well as to the nation’s largest voice and data network, which covers more than 290 million people.

The two companies have a long-standing relationship as roaming partners, and AT&T expects a smooth customer transition. AT&T will immediately begin to implement a carefully planned process to integrate the AT&T and Edge Wireless networks, combine product portfolios and merge customer care initiatives.

The acquisition of Edge Wireless follows review and approval by the Federal Communications Commission.


Wireless Carterfone Policy Paper from New America Foundation

The New America Foundation has released an interesting policy paper regarding Carterfone-type competition in the wireless sector. The following is from the New America Foundation website:

Working Paper

Wireless Carterfone

A Long Overdue Policy Promoting Consumer Choice and Competition
Rob Frieden, Penn State University
New America Foundation | January 2008


Wireless carriers in the United States operate as regulated common carriers when providing basic telecommunications services, such as voice telephone service, text messaging and speed dialing to services and content. Remarkably, stakeholders debate whether this clear cut regulatory status requires wireless carriers to provide service to any compatible handset, subject to a certification process to ensure that such use will not harm carrier networks.

Thirty-nine years ago the Federal Communications Commission (FCC) established its Carterfone policy establishing such a right for wireline subscribers. Consumers now take for granted the right to purchase their choice of telephones and other devices (e.g., computer modems, answering machines) and to attach them to wireline networks without carrier-imposed limitations. After announcing its Carterfone policy, the FCC identified ample consumer benefits and applied this fundamental right in several instances so that consumers can freely use their handsets to access services, applications and content. This fundamental right has accrued unquestionable benefits to consumers and the national economy.

Wireless operators have vigorously opposed efforts to convince the FCC that it should establish a wireless Carterfone policy. Opponents claim that Carterfone offered an industry-specific remedy to a monopoly environment where the Bell System controlled both the manufacture and distribution of telephones and telephone service. They assert that the lack of such vertical integration and the existence of robust competition in the wireless marketplace obviate the need for rules requiring carriers to unlock the handsets they sell and to open their networks for access by any compatible handset.

This paper explains why wireless Carterfone policy constitutes a long overdue policy response to carrier practices that often have nothing to do with protecting their networks from technical harm or other legitimate network management needs. For example, blocking the implementation of wireless Carterfone enables carriers to continue locking subscribers into two-year service contracts with substantial penalties for early termination. In exchange for the service commitment, consumers acquire a carrier-subsidized handset, but they also consent to carrier-imposed restrictions on the use of the handset they bought, including the ability to access telecommunications and content services of competitors even after the carrier has recouped its subsidy.

This analysis explains how wireless carriers benefit financially by avoiding Carterfone obligations and refutes the rationales and justifications for this behavior. The paper also demonstrates that the FCC has ample statutory authority to apply wireless Carterfone policy based on the largely ignored fact that when wireless cellular telephone companies provide telecommunications service, they remain subject to most common carrier regulations regardless of the fact that they also may offer less regulated information services. Finally, this report explains that wireless carriers must comply with public interest regulatory mandates even though they might conflict with carriers’ preferred business plans. The Commission has undertaken a number of analogous initiatives to protect consumers from mandatory bundling arrangements, such as its 2005 order mandating alternatives to cable set-top box leasing, which underscore the continued importance of Carterfone principles to protecting the public interest.

For the full working paper, please see the attached PDF below.

Wireless Carterfone Policy Paper from New America Foundation