HomeMy WebLinkAbout2017-11-28 - AGENDA REPORTS - WIRELESS SERVICE LEGISLATION (2)0
Agenda Item: 5
CITY OF SANTA CLARITA
Q:° AGENDA REPORT
CONSENT CALENDAR
7,
CITY MANAGER APPROVAL: 1 j4 _ "
DATE: November 28, 2017
SUBJECT: FEDERAL LEGISLATION: DISCUSSION DRAFT ON WIRELESS
SERVICE EQUIPMENT
DEPARTMENT: City Manager's Office
PRESENTER: Michael Murphy
RECOMMENDED ACTION
City Council:
Adopt the Legislative Committee's recommendation to oppose the Discussion Draft currently
being circulated through the Senate Committee on Commerce, Science and Transportation
related to reducing local discretionary zoning review and fees over the installation of wireless
service equipment in the public right-of-way.
2. Transmit position statements to Senator Dianne Feinstein, Senator Kamala Harris, Chairman
John Thune, Representative Steve Knight, members of applicable congressional committees,
other Members of Congress, administration officials, League of California Cities and other
interested organizations, as appropriate.
BACKGROUND
The telecommunication industry is circulating a Discussion Draft through the United States
Senate Committee on Commerce, Science and Transportation that proposes to reduce local
discretionary zoning review and fees over the installation of wireless service equipment on
publicly -owned infrastructure. The Discussion Draft currently does not have a sponsor for
introduction as a bill in Congress.
On April 25, 2017, the City Council opposed a similar State bill, Senate Bill 649 (Hueso), which
proposed to reduce local control and fees over small cell wireless equipment siting in the public -
right -of -way. The City of Santa Clarita was one of over 325 cities officially opposed to Senate
Bill 649. Although Senate Bill 649 passed the Legislature, Governor Brown ultimately vetoed
the bill on October 15, 2017, citing that the interest which local governments have in managing
rights-of-way required a more balanced solution than the one proposed in Senate Bill 649.
Page 1
PacketPg. 22
0
In establishing a federal framework for wireless service equipment deployment, this draft
proposal establishes limitations on the process, procedures and abilities of local governments to
site wireless service facilities. Additionally, the Discussion Draft proposes to require local
governments to act on a request for a wireless service equipment siting within 90 days and that a
request shall be granted on the 91" day from when the complete application was received by the
local government if the local government fails to act on the request.
A significant difference between this draft proposal and Senate Bill 649 is that this Discussion
Draft applies to all forms of wireless service equipment, including cell towers. The typical
timeframe for the City to review a new cell tower application is 4 to 6 months. If this Draft
Discussion is introduced as a bill and enacted into law, the City would be required to review all
wireless service equipment applications, including cell towers, in 90 days.
The City of Santa Clarita (City) currently regulates the installation and operation of wireless
telecommunications facilities within the public right-of-way and in commercial and industrial
zones. The City's Unified Development Code regulates the cell proximity to residential uses and
zones, underground of appurtenant equipment, and specified design criteria. Ultimately, the
City's regulations intend to preserve the health, safety and overall quality of life of the
community. If this proposal is introduced as a bill and enacted into law, the City will lose its
current ability to regulate the siting and design of wireless service equipment.
The City of Santa Clarita 2017 Legislative Platform (Legislative Platform) includes components
related to local authority regarding the siting of wireless service equipment. Specifically,
component 11 under the "Federal" section of the Legislative Platform advises that the City
Council, "Oppose regulatory efforts by the Federal Communications Commission to erode, limit
or eliminate local government authority regarding siting of cellular communications towers,
transmission sites or other infrastructure."
The City Council Legislative Committee met on November 21, 2017, and recommends that the
City Council adopt an "oppose" position on the Discussion Draft.
ALTERNATIVE ACTION
1. Adopt a "neutral" position on the Draft
2. Adopt a "support" position on the Draft
3. Take no action on the Draft
4. Refer the Draft back to the Legislative Committee
5. Other action, as determined by the City Council
FISCAL IMPACT
No additional resources beyond those contained within the approved City budget are required for
implementation of the recommeded action.
Page 2
Packet Pg. 23
ATTACHMENTS
Staff Discussion Draft on Wireless Service Equipment
0
Page 3
Packet Pg. 24
OLL17609 Staff Discussion Draft S.L.C.
1 SEC. 1. HARMONIZING SHOT CLOCKS; REASONABLE RATES.
2 (a) HARMONIZING SHOT CLOCKS.—Section
3 332(c) (7) (B) of the Communications Act of 1934 (47
4 U.S.C. 332(c)(7)(B)) is amended -
5 (1) in clause (i)(1), by inserting "the same serv-
6 ice or of" after "of";
7 (2) by striking clause (ii) and inserting the fol -
R ImvinCr.
9
"(ii) Regulation by a State or local
10
government or instrumentality thereof
11
shall be deemed to prohibit or have the ef-
12
feet of prohibiting the provision of wireless
13
services for purposes of clause (i) (II) if the
14
regulation consists of an action that -
15
"(I) restricts access to a pole,
16
right-of-way, or other facility owned
17
by the State or local government or
18
instrumentality to support equipment
19
for use by providers of wireless serv-
20
ices except in the case of insufficient
21
capacity, or for reasons of -
22
"(aa) safety;
23
"(bb) reliability; or
24
"(cc) generally applicable—
5.a
Packet Pg. 25
OLL17609 Staff Discussion Draft S.L.C.
2
1
"(AA) engineering pur-
2
poses;
3
"(BB) objective design
4
standards for decorative
5
utility poles; or
6
"(CC) reasonable con -
7
cealment requirements;
8
"(II) grants exclusive or pref-
9
erential use to a pole, right-of-way, or
10
other property owned or managed by
11
the State or local government or in -
12
strumentality to -
13
"(aa) a particular provider
14
of wireless service;
15
"(bb) a class of providers of
16
wireless service; or
17
"(cc) any entity or class of
18
entity to which access is provided
19
under section 224(f)(1);
20
"(III) requires a demonstration
21
of need for a wireless service facility,
22
or otherwise evaluates radio frequency
23
signal strength or existence, the ade-
24
quacy of or demand for service eov-
25
erage, capacity, or quality, or an ap-
5.a
Packet Pg. 26
E
CL
.E
a
w
as
th
th
W
as
0
w
L
0
0
N
th
0
0
0
cc
T)
as
J
W
as
w
5.a
OLL17609 Staff Discussion Draft S.L.C.
Packet Pg. 27
3
1
plicant's business decision on the
CL
2
technical or operational charaeteris-
a
w
3
tics, type, and location of wireless
CO
4
service facilities, support structures,
N
as
5
poles, or technology deployed;
6
"(N) limits the ability of a pro-
0
w
7
vider of wireless service to make tech-
L
o
0
8
nology or capacity upgrades, updates,
N
9
or enhancements to its existing wire-
o
10
less service, unless those limitations
c
11
are consistent with this subsection;
MA,
as
J
12
"(V) imposes an express or de
13
facto moratorium on the acceptance
as
14
or processing of permits or other per -
E
15
missions to deploy wireless service fa-
a
w
16
cilities;
17
"(VI) grants the State or local
CO
18
government or instrumentality discre-
L
19
tion to approve or deny permits or
3:
C
0
20
other permissions to deploy wireless
L
0
21
service facilities without reasonable,
c
22
objective, and non-discriminatory
.N
23
guidelines regarding the approval or
24
denial;
C.11)
Packet Pg. 27
OLL17609
Staff Discussion Draft S.L.C.
4
1
"(VII) requires removal or re -
2
placement of a wireless service facility
3
due to the passage of time or the
4
availability of alternative technology
5
or design, if the wireless service facil-
6
ity continues to be used by a provider
7
of wireless service for non -de minimis
8
purposes;
9
"(VIII) prohibits the placement
10
of an emergency backup power system
11
that otherwise complies with Federal
12
and State -
13
"(aa) environmental regula-
14
tions;
15
"(bb) safety regulations; and
16
"(cc) generally applicable -
17
"(AA) engineering
18
standards;
19
"(BB) objective design
20
standards; and
21
"(CC) reasonable con -
22
cealment requirements; or
23
"(IX) requires wireless service
24
providers to demonstrate an actual
25
prohibition of service.";
5.a
Packet Pg. 28
E
CL
.E
a
w
a�
as
CO
as
as
0
w
L
0
0
.N
0
0
0
T)
CM
W
J
as
w
OLL17609 Staff Discussion Draft S.L.C.
5
1 (3) by redesignating clauses (iii) through (v) as
2 clauses (vi) through (viii), respectively;
3 (4) by inserting after clause (ii) the following:
4 "(iii) The actions described in sub -
5 clauses (I) through (IX) of clause (ii) shall
6 not be construed to be an exhaustive list of
7 regulations by a State or local government
8 or instrumentality thereof that prohibit or
9 have the effect of prohibiting the provision
10 of wireless services for purposes of clause
11 (i)(11) of this subparagraph.
12 "(iv) (I) A State or local government
13 or instrumentality thereof shall act on any
14 request for authorization to place, con -
15 struct, or modify wireless service facilities
16 after, the request is duly filed with the gov-
17 ernment or instrumentality, taking into ac -
18 count the nature and scope of such re -
19 quest, in accordance with this clause.
20 "(II) A State or local government or
21 instrumentality thereof shall act on any re=
22 quest described in subclause (I) that con -
23 stitutes collocation of wireless service facili-
24 ties, as that term is defined by the Com -
5.a
Packet Pg. 29
E
CL
.E
a
w
a�
CO
0
w
L
0
0
.N
0
0
0
T)
CM
W
J
as
as
w
OLL17609
Staff Discussion Draft S.L.C.
6
1
mission, not later than 60 days after the
2
date on which the request is duly filed.
3
"(III) A State or local government or
4
instrumentality thereof shall act on any
5
other request described in subclause (I)
6
that is not described in subclause (II) not
7
later than 90 days after the date on which
8
the request is duly filed.
9
"(N) The timeframes specified under
10
subclauses (II) and (III) shall apply collec-
11
tively to all proceedings required by a
12
State or local government or instrumen-
13
tality thereof for the approval of the re -
14
quest.
15
"(V) The timeframes specified under
16
subclauses (II) and (III) may not be tolled
17
by any moratorium, whether express or de
18
facto, imposed by a State or local govern -
19
ment or instrumentality thereof on the
20
consideration of any request for authoriza-
21
tion to place, construct, or modify wireless
22
service facilities.
23
"(v) If a State or local government or
24
instrumentality thereof fails to act on a re -
25
quest to place, construct, or modify wire -
5.a
Packet Pg. 30
E
CL
.E
a
w
a�
CO
as
as
0
w
L
0
0
.N
0
0
T)
CM
W
J
w
OLL17609 Staff Discussion Draft S.L.C.
7
1 less service facilities within the applicable
2 period of time under clause (iv), or denies
3 such a request in a manner inconsistent
4 with clause (vi), and the applicant provides
5 written notice of the failure or denial to
6 the government or instrumentality after
7 the expiration of the applicable period -
8 "(I) the request shall be deemed
9 granted on the date that is 31 days
10 after the date on which the govern -
11 ment or instrumentality receives the
12 written notice; and
13 "(II) any additional rights an ap-
14 plicant may have under this section or
15 otherwise based on the failure or de -
16 nial shall be preserved.";
17 (5) in clause (vi), as so redesignated, by insert -
18 ing before the period the following: "that is publicly
19 released contemporaneously with the denial" and
20 (6) by adding at the end the following:
21 "(ix) Nothing in this subparagraph
22 shall be construed to affect the authority
23 of a State or local government or instru-
24 mentality thereof to—
5.a
Packet Pg. 31
d
E
CL
.E
a
w
a�
as
CO
as
as
0
w
L
0
0
.N
0
0
0
T)
CM
W
J
as
w
OLL17609
Staff Discussion Draft S.L.C.
8
1
"(I) manage access to and use of
2
poles, rights-of-way, or other property
3
owned or managed by the State or
4
local government or instrumentality
5
for wireless service facilities or to re -
6
quire fair and reasonable compensa-
7
tion for that access or use if -
8
"(aa) the compensation is
9
competitively neutral, technology
10
neutral, and nondiscriminatory;
11
"(bb) the government or in -
12
strumentality publicly discloses
13
the compensation;
14
"(cc) the compensation is
15
based on actual and direct costs,
16
except for compensation for a
17
pole attachment provided under
18
section 224, which shall be cal -
19
culated in accordance with that
20
section; and
21
"(dd) the management and
22
access, including the requirement
23
of fair and reasonable compensa-
24
tion, is not inconsistent with
25
State law; or
5.a
Packet Pg. 32
E
CL
.E
a
w
a�
as
CO
0
w
L
0
0
.N
0
0
0
T)
CM
J
as
w
OLL17609 Staff Discussion Draft S.L.C.
9
1 "(II) charge a fee to consider a
2 request for the placement, construc-
3 tion, or modification of wireless serv-
4 ice facilities within the jurisdiction of
5 the State or local government or in -
6 strumentality thereof if the fee is
7 based on actual and direct costs of -
8 "(aa) issuing and processing
9 permits;
10 "(bb) reviewing plans; and
11 "(cc) conducting physical in -
12 spections related to issuing and
13 processing permits.".
14 (b) DEFINITION OF WIFELESS SERVICE.—Section
15 332(c)(7) of the Communications Act of 1934 (47 U.S.C.
16 332(c)(7) is amended -
17 (1) by striking "personal" each place that term
18 appears; and
19 (2) in subparagraph (C)-
20 (A) by striking clause (i) and inserting the
21 following:
22 "(i) the term `wireless service' means
23 the transmission by radio communication
24 of voice, video, or data communications
25 services, including Internet Protocol or any
5.a
Packet Pg. 33
E
CL
.E
a
w
co
0
w
L
0
0
.N
0
0
0
LI)
as
J
as
as
w
OLL17609 Staff Discussion Draft S.L.C.
10
1 successor protocol -enabled services, or any
2 combination of those services, including
3 unlicensed wireless services;";
4 (B) in clause (ii), by striking "and" at the
5 end;
6 (C) by redesignating clause (iii) as clause
7 (iv); and
8 (D) by inserting after clause (ii) the fol -
9 lowing:
10 "(iii) the term `regulation' includes a
11 law, ordinance, rule, decision, policy, prac-
12 tice, franchising requirement, contract, re -
13 striation, or impediment, including the fail -
14 ure to act, or other legal requirement;
15 and".
16 (c) REMOVAL OF BARRIERS TO ENTRY.—Section 253
17 of the Communications Act of 1934 (47 U.S.C. 253) is
18 amended -
19 (1) by striking subsection (c);
20 (2) by redesignating subsections (b), (d), (e),
21 and (f) as subsections (c), (e), (f), and (g);
22 (3) by inserting after subsection (a) the fol -
23 lowing:
24 "(b) STATE OR LOCAL REQUIREMENTS IDENTI-
25 FIED.—
5.a
Packet Pg. 34
E
a
LU
a�
as
co
th
as
as
0
w
L
0
0
.N
0
0
0
T)
as
J
as
as
OLL17609 Staff Discussion Draft S.L.C.
11
1 "(1) IN GENERAL.—For purposes of subsection
2 (a)-
3 "(A) the term `State or local legal require -
4 ment' includes any law, regulation, decision,
5 policy, practice, franchising requirement, con -
6 tract, restriction, or impediment, including the
7 failure to act, of any State or local government
8 or instrumentality thereof related to the use of
9 or access to a pole, right-of-way, or other prop -
10 erty owned by the State or local government or
11 instrumentality, by a provider of telecommuni-
12 cations service, including a provider of wireless
13 service; and
14 "(B) a State or local legal requirement
15 shall be deemed to prohibit or have the effect
16 of prohibiting the ability of an entity to provide
17 any interstate or intrastate telecommunications
18 service if the legal requirement constitutes an
19 action that would be described in section
20 332(c)(7)(B)(ii) if that section were applied by
21 substituting `interstate or intrastate tele -
22 communications service' for `wireless service'.
23 "(2) LIST NOT EXHAUSTIVE.—For purposes of
24 paragraph (1)(B), the actions described in sub -
25 clauses (I) through (IX) of section 332(c)(7)(B)(ii)
5.a
Packet Pg. 35
E
a
w
as
Co
Ch
as
as
L
0
w
L
0
0
.N
0
0
MA
CM
W
J
as
as
5.a
OLM7609 Staff Discussion Draft S.L.C.
17 less service facilities; or
18 "(3) require fair and reasonable compensation
19 for access or use described in paragraph (2), con -
20 sistent with section 332(c)(7)(B)(ix).";
21 (5) in subsection (e), as so redesignated, by
22 striking "subsection (a) or (b)" and inserting "sub -
23 section (a), (b), (c), or (d) of this section or section
24 332(c)(7)(B)(i)(II)"; and
25 (6) by adding at the end the following:
Packet Pg. 36
12
1
shall not be construed to be an exhaustive list of ac-
E
2
tions that prohibit or have the effect of prohibiting
a
3
the provision of interstate or intrastate telecommuni-
co
4
cations service.";
th
5
(4) by inserting after subsection (c), as so re -
as
6
designated, the following:
w
L
7
"(d) RULE OF CONSTRUCTION.—Nothing in this sec -
0
8
tion shall be construed to affect the authority of a State
9
or a local government or instrumentality thereof to—
o
10
"(1) apply and enforce its zoning and other
11
land use regulations to the extent consistent with
MA
J
12
this section and section 332(c)(7);
13
"(2) manage access to and use of poles, rights -
as
14
of -way, or other property owned or managed by the
15
State or local government or instrumentality, for
a
w
16
telecommunications service facilities, including wire-
17 less service facilities; or
18 "(3) require fair and reasonable compensation
19 for access or use described in paragraph (2), con -
20 sistent with section 332(c)(7)(B)(ix).";
21 (5) in subsection (e), as so redesignated, by
22 striking "subsection (a) or (b)" and inserting "sub -
23 section (a), (b), (c), or (d) of this section or section
24 332(c)(7)(B)(i)(II)"; and
25 (6) by adding at the end the following:
Packet Pg. 36
5.a
OLL17609 Staff Discussion Draft S.L.C.
Packet Pg. 37
13
1
"(h) DEFINITIONS.—In this section—
a
2
"(1) the term `pole' means an upright pole or
3
structure, used or capable of being used in whole or
y
4
in part to provide electric distribution, lighting, traf-
5
fie control, signage, or a similar function;
aa
6
"(2) the term `telecommunications service pro-
0
w
L
7
vider' includes a provider of wireless service;
0
8
"(3) the term `wireless service' means the
N
9
transmission by radio communication of voice, video,
o
10
or data communications services, including Internet
11
Protocol or any successor protocol -enabled services,
T,
as
J
12
or any combination of those services, including unli-
13
censed wireless service (as that term is defined in
aa
14
section 332(c)(7)(C)(iii)); and
15
"(4) the term `wireless service facility' means a
a
w
16
facility for the provision of wireless service.".
17
SEC. 2. GAO STUDY OF BROADBAND DEPLOYMENT ON
y
18
TRIBAL LAND.
w
L
19
Not later than 1 year after the date of enactment
�
0
20
of this Act, the Comptroller General of the United States
0
21
shall—
c
22
(1) study the process for obtaining a grant of
.N
23
a right-of-way from the Bureau of Indian Affairs to
24
deploy broadband infrastructure on tribal land;
co
Packet Pg. 37
5.a
OLL17609 Staff Discussion Draft S.L.C.
14
1 (2) in conducting the study under paragraph
a
2 (1), consider the unique challenges involved in
3 broadband deployment on tribal land; and
co
4 (3) submit to Congress a report on the study
5 conducted under paragraph (1) .
6 SEC. 3. PROMOTING DEPLOYMENT OF BROADBAND INFRA- o
r-
7
7 STRUCTURE.
0
8 It is the sense of Congress that State and local gov- N
9 ernments should consult with local and national tele- o
10 communications providers, including telecommunications c
11 service and equipment providers, and other stakeholders 2A,
as
J
12 before beginning a highway construction project to deter -
13 mine whether to install broadband conduit under hard sur-
14 faces as part of the highway construction project.
E
15 SEC. 4. ENSURING A LEVEL PLAYING FIELD FOR CABLE E
16 FRANCHISES.
17 (a) GENERAL FRANCHISE REQUIREMENTS.—Section
18 621 of the Communications Act of 1934 (47 U.S.C. 541)
19 is amended -
20 (1) in subsection (a)(2)-
21 (A) by redesignating subparagraphs (A)
22 through (C) as clauses (i) through (iii);
23 (B) in the matter preceding clause (i), as
24 so redesignated, by striking "except that" and
25 all that follows and inserting the following:
Packet Pg. 38
OLL17609 Staff Discussion Draft S.L.C.
15
1 "(B) In using easements under subparagraph
2 (A), the cable operator shall ensure—";
3 (C) by striking "Any franchise" and all
4 that follows through "compatible uses," and in -
5 serting the following: "(A) Except as provided
6 in subparagraph (B), any franchise shall be
7 construed to authorize -
8 "(i) the construction of a cable system and
9 any facilities for the provision of telecommuni-
10 cations services or other services that may be
11 attached to the cable system over public rights -
12 of -way, and through easements, that -
13 "(I) are within the area to be served
14 by the cable system or facilities; and
15 "(II) have been dedicated for compat
16 ible uses; and
17 "(ii) the operation of the system or facili-
18 ties described in clause (i) to offer cable service,
19 telecommunications service, or any other service
20 or capability over the cable system or through
21 the facilities."; and
22 (D) in subparagraph (B) (i), as so des -
23 ignated, by inserting after "cable system" the
24 following: "and for the provision of tele -
5.a
Packet Pg. 39
E
CL
.E
a
LU
as
CO
Ch
0
w
L
0
0
.N
0
0
0
MA
CM
W
J
as
as
OLL17609 Staff Discussion Draft S.L.C.
16
1
communications services or other services that
2
may be attached to the cable system";
3
(2) in subsection (b)(3)-
4
(A) in subparagraph (A)-
5
(i) in the matter preceding clause (i),
6
by inserting "or other services or capabili-
7
ties" after "telecommunications services";
8
(ii) in clause (i), by striking "a fran-
9
chise under this title for the provision of
10
telecommunications services" and inserting
11
"any additional franchise for the provision
12
of telecommunications services or other
13
services or capabilities"; and
14
(iii) in clause (ii), by inserting "or
15
other services or capabilities" after "tele -
16
communications services";
17
(B) in subparagraph (B)-
18
(i) by striking "under this title"; and
19
(ii) by inserting "or other service or
20
capability" after "a telecommunications
21
service";
22
(C) in subparagraph (C)-
23
(i) in clause (i), by inserting "or other
24
service or capability" after "a tele -
25
communications service"; and
5.a
Packet Pg. 40
E
CL
.E
a
w
a�
CO
as
as
0
w
L
0
0
.N
0
0
0
T)
CM
w
J
L
d
w
17 "(4) interconnected VoIP service.".
18 (b) FRANCHISE FEES.—Section 622 of the Commu-
19 nications Act of 1934 (47 U.S.C. 542) is amended -
20 (1) in subsection (b), in the first sentence, by
21 inserting after "any cable system" the following: ",
22 regardless of the services offered over the cable sys-
23 tem or the facilities attached to the cable system,"
24 and
Packet Pg. 41
5.a
OLL17609 Staff Discussion Draft S.L.C.
17
1
(ii) in clause (ii), by inserting "or
CL
2
other service or capability" after "a tele -
a
3
communications service" each place that
CO
4
term appears; and
N
as
5
(D) in subparagraph (D), by inserting "or
6
other service or capability," after "any tele-
c
w
7
communications service or facilities,"; and
o
0
8
(3) by adding at the end the following:
N
9
"(g) For purposes of this section, the term `other
o
10
service or capability' includes—
c
11
"(1) advanced telecommunications capability
MA,
J
12
(as defined in section 706(d)(1) of the Telecommuni-
13
cations Act of 1996 (47 U.S.C. 1302(d)(1)));
aa
14
"(2) broadband Internet access service;
E
15
"(3) private carriage business data services;
a
w
16
and
17 "(4) interconnected VoIP service.".
18 (b) FRANCHISE FEES.—Section 622 of the Commu-
19 nications Act of 1934 (47 U.S.C. 542) is amended -
20 (1) in subsection (b), in the first sentence, by
21 inserting after "any cable system" the following: ",
22 regardless of the services offered over the cable sys-
23 tem or the facilities attached to the cable system,"
24 and
Packet Pg. 41
5.a
OLL17609 Staff Discussion Draft S.L.C.
18
1 (2) in subsection (g)(1), by striking "solely be- CL
a
2 cause of their status as such" and inserting "for use
3 of the rights-of-way or otherwise".
CO
Ch
L_
i
O
W
L
0
i
.N
v
0
i
MA
Cm
W
J
L
d
d
Packet Pg. 42