October 14, 2015 — California Gov. Jerry Brown has signed legislation streamlining the siting process for applicants, which provides a deemed approved remedy if the city or county fails to act on an application within the FCC prescribed application timelines.
California Assembly Bill 57 will reduce delays in applications to site new wireless facilities and renew permits for existing facilities, according to Jonathan Adelstein, PCIA’s president and CEO.
“By speeding approval of these facilities, we can ensure Californians have timely access to robust mobile broadband,” added Adelstein.
There was one exception for wireless deployments on fire department properties built into AB 57, which are not subject to the automatic deemed-approved remedy.
Jonathan Kramer, Telecom Law Firm, does not expect a lot to change with the law’s passage, because he believes the majority of wireless projects in California are already approved or denied within the FCC shot clock time frames.
“One of the biggest impediments to quicker processing of wireless projects by local governments has been the game of musical chairs played by the carriers and turf vendors who seem to frequently switch out permit runners mid-project,” he said.
Another prediction from the municipality side has been the belief that local governments will just end-up denying projects that legitimately require more time to process when the applicant refuses to enter into a tolling agreement.
August 19, 2014 — The U.S. Court of Appeals 9th Circuit upheld most of the district court’s summary judgment against American Tower in its lawsuit with the City of San Diego for rejecting its conditional-use permit requests for three existing towers in San Diego. In California, the decision will have a broader effect on over-the-counter approvals of collocations, as well as on least-intrusive means analysis of new sites.
The court case is the latest skirmish between a cell tower developer and a municipality and reflects tension between the wireless industry’s need for a more streamlined zoning system and the loss of control that the cities have felt since Congress passed Section 6409(a) of the Middle Class Tax Relief and Job Creation Act of 2012.
“As Congress has been working to restrict local authority, the circuit courts have been working in the opposite direction, buttressing local authority under the Telecommunications Act of 1996,” said Robert May, associate counsel, Telecom Law Firm, a municipal wireless consultant.
Perhaps the most important legal point made in the decision was that the permit denial did not constitute an effective prohibition of service because American Tower did not demonstrate that its proposals were the least-intrusive means of filling a significant gap in coverage.
The Second and Third Circuits have defined “least-intrusive means” as the wireless site location and design that most closely conforms to the local values and still fills in a significant gap in service. However, the First and Seventh Circuits hold that all that is needed is a showing that there are no alternative sites available to provide the needed coverage. Municipalities have attempted to use the various versions of least-intrusive-means language as a litmus test to judge whether a cell tower is appropriate for a certain location.
The court upped the ante saying that American Tower needed to actually provide the municipality with evidence allowing for a “meaningful” comparison of alternative sites and designs. Additionally, the City does not have to rely American Towers’ conclusions regarding the options but may judge for itself based on the evidence whether a zoning denial is in effect a prohibition of service.
“Even though it was about renewing the existing conditional-use permits, this decision impacts new sites the most because it affects the least-intrusive-means analysis. It makes it very clear that the wireless applicant bears the burden to show the government with evidence that is sufficient in the government’s reasonable determination that the site passes the least-intrusive means test for a significant gap in coverage,” May said.
Court Case Illuminates Problems of Time-limited Permits
From the outset of American Tower’s litigation, PCIA — The Wireless Infrastructure Association has maintained that time-limited permits significantly hinder network planning and management.
“As this case illustrates, the problem with time-limited permits is not just about slowing the build-out and upgrade of wireless networks, but also maintaining the existing infrastructure, built over a decade ago, that already supports wireless networks and serves consumers, businesses and public safety,” the association said in a prepared release. “We’re concerned that the 9th Circuit’s decision could undermine broadband deployment and California’s capacity to buttress and maintain a highly successful innovation economy.”
Court Rules in Favor of Public Hearings
American Tower V. City of San Diego also addresses the issue of whether or not a public hearing should be required under California state law for a change to an existing antenna structure. Wireless advocates hold that legislative language in Section 6409(a) that “a State or local government may not deny, and shall approve, any eligible facilities request” precludes the need for a public hearing.
The court states that the automatic approval of American Tower’s applications without a hearing would deprive landowners of their property rights and would violate due process.
“[American Tower] claims that the automatic approval of its conditional users permit applications would not constitute a substantial or significant deprivation … because the facilities are already in existence, their continued presence cannot possibly deprive adjacent landowners of any property rights,” the court wrote. “This argument ignores [American Tower’s] obligation to return the sites to their original condition now that the original conditional-use permits have expired by their terms.
“Dozens of antennas perched on hundreds of feet of towers alongside hundreds of square feet of equipment shelters may not seem like a cognizable impact to [American Tower], but we believe most landowners would beg to differ,” the court added.
The California Assembly is considering a bill to streamline collocations, which is similar to federal collocation verbiage found in Section 6409 the Middle Class Tax Cut and Job Creation Act. Only it goes a little further.
Assembly Bill 162, sponsored by Assembly Whip Chris Holden (D-Dist. 41), mandates local governments in California to approve modifications of existing wireless telecommunications facilities that do not substantially change their physical dimensions. A.B. 162 goes further than the FCC’s shot clock, cutting in half the amount of time a municipality has to process a collocation. After 45 days, according to the bill, a collocation application must be denied, or it will be deemed approved. The FCC shot clock says that approval or denial of a collocation should come within 90 days and, even then, it only opens the door for a carrier to sue the city.
“From the carrier perspective, I support it. I think it would be good to have a set time for cell tower approvals,” Joe Thompson, T-Mobile, told AGL Bulletin. “I know we have the shot clock, but if we reduce the time even further, I am all for that.”
Jonathan Kramer, wireless municipal consultant, said the 45-day time window was too tight.
“The cities can’t move any project within 45 days,” he said. “It will require extra staff resources. It doesn’t allow for effective public notice. By the time the public notice goes out it will be within a week or so of mandatory approval.”
The bill includes a pre-emption of local governments from considering whether there is a gap in service in collocation hearings, which was applauded by Thompson.
“I can understand why the city asks for it, but I don’t think it is necessary,” he said. “No one is going to build a $100,000 or $200,000 cell tower if they don’t absolutely need to do it. I think the city wants the coverage gap information so they will have something to show to a citizen who comes in to question the need for the tower.”
Kramer noted that the coverage gap section of A.B. 162 would defeat the 9th Circuit federal holding in MetroPCS v. San Francisco (2005) that requires a wireless carrier claiming a gap in coverage to show that the proposed solution is the “least intrusive means” to address the gap.
The municipalities are gearing up to fight the passage of A.B. 162, according to Kramer. They will do this by encouraging citizens to express their opposition through letters to the assembly members, opposing it at public hearings and lobbying the governor against signing the bill if it is passed.
“There is the inherent feeling at the local municipal level that their zoning authority is being slowly chipped away,” he said. “A number of municipalities are taking the position that Section 6409(a) is unconstitutional. Instead of codifying a state version of 6409(a) they will simply oppose it as opposed to working out a compromise.”
Thompson questioned whether citizens will come out en masse to oppose the cell tower legislation.
“I think that residents are finally beginning to see the benefits of having a cell tower closer to them,” he said. “I would argue that if someone buying a home today had a choice between one that had cell service and one that didn’t, they would chose the home with cell service, every time.”
The bill’s definitions are also more expansive than the collocation guidance provided by the FCC, defining “wireless telecommunications facility” as towers, utility poles, transmitters, base stations and emergency power systems that are used to provide service.