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AGENDA REPORT 2019 0417 REG CCSA ITEM 09C CORRESPONDENCE
ITEM 9.C. Deborah Traffenstedt From: Troy Brown Sent: Wednesday, April 17, 2019 9:58 AM To: Shank, Aaron M.; City Council & City Manager; Janice Parvin; Ken Simons; Roseann Mikos; David Pollock; Chris Enegren Cc: VAN ECKHARDT, MICHAEL (Legal); Deborah Traffenstedt Subject: RE: AT&T Comments on City's Proposed Resolution and Policy to Regulate Small Wireless Facilities Thank you for your correspondence Mr. Shank. The City is in receipt of your comments and they will be a part of the record related to item 9C for the Moorpark City Council meeting of April 17, 2019 Thank you, Troy Brown City Manager City Manager's Office City of Moorpark 1799 Moorpark Ave. I Moorpark, CA 93021 (805) 517-6212 I fax: (805) 532-2528 I tbrown@moorparkca.gov www.moorparkca.gov fi ,j/yy/fJ,//I ,�/ ��jj �,�.rr,,iJ�/' * ill�' L G' r r,�".� + \ Lr ea&/stins a.d NOTICE:This e-mail and any files transmitted with it are intended solely for the use of the individual or entity to winch they are addressed and may contain confidential and/or privileged material.Any review, retransmission, dissemination or other use of, or taking of any action in reliance upon, this information by persons or entities other than the intended recipient is prohibited. If you have received this e-mail in error,please contact the sender and delete the material from your computer. From: Shank, Aaron M. [mailto:AShank©porterwright.com] Sent: Wednesday, April 17, 2019 9:46 AM To: City Council &City Manager; Janice Parvin; Ken Simons; Roseann Mikos; David Pollock; Chris Enegren Cc: VAN ECKHARDT, MICHAEL(Legal) 1 Subject: AT&T Comments on City's Proposed Resolution and Policy to Regulate Small Wireless Facilities Importance: High Dear Mayor Parvin, Mayor Pro Tern Simons and Councilmembers Mikos, Pollock and Enegren: Please accept this letter from Michael van Eckhardt on behalf of AT&T to provide comments on the city's proposed resolution and development standards for small wireless facilities. If you have questions, please feel free to contact us. Aaron M.Shank Outside Legal Counsel for AT&T AARON M. SHANK Porter Wright Morris&Arthur LLP Bio I ashank(cr�porterwright.com D. 614.227.2110 / M. 614.578.5036 / F:614.227.2100 41 South High Street, Suite 2900 / Columbus, OH 43215 / YOU INSPIRE US, CHICAGO. We are proud to announce that on February 1, 2019, Butler Rubin Saltarelli&Boyd LLP merged into Porter Wright, marking our firm's expansion into the Chicago market. Learn more. NOTICE FROM PORTER WRIGHT MORRIS & ARTHUR LLP: This message may be protected by the attorney-client privilege.If you believe that it has been sent to you in error,do not read,print or forward it.Please reply to the sender that you have received the message in error Then delete it.Thank you. END OF NOTICE 2 AT&T MICHAEL VAN ECKHARDT AT&T Services,Inc. 16631 NE 72"d Way Assistant Vice President RTC 1 Senior Legal Counsel Redmond,WA 98052 425.580.7033 Phone michael.vaneckhardt@att.com April 17, 2019 Via E-Mail City of Moorpark City Council 799 Moorpark Ave. Moorpark, CA 93021 Re. AT&T's Comments on the City of Moorpark's City Council Resolution Adopting a Citywide Policy Regarding Permitting Requirements and Development Standards for Small Wireless Facilities Dear Mayor Parvin, Mayor Pro Tem Simons and Councilmembers Mikos, Pollock and Enegren: I write on behalf of New Cingular Wireless PCS, LLC d/b/a AT&T Mobility(AT&T)to provide comments on the City of Moorpark's city council resolution adopting a citywide policy regarding permitting requirements and development standards for small wireless facilities ("Proposed Policy").AT&T appreciates that the city recognizes the need to address changes in applicable state and federal laws, including the Federal Communications Commission's Infrastructure Order.' With more than 70%of Americans relying exclusively or primarily on wireless telecommunications, it is especially important to encourage responsible deployments consistent with applicable law. Unfortunately,the Proposed Policy would establish new rules at odds with state and federal laws. AT&T respectfully asks that the city consider these and other comments from the wireless industry before adopting the Proposed Policy. AT&T offers the following summary of applicable laws along with specific comments on the Proposed Policy. Key Legal Concepts The Federal Telecommunications Act of 1996 ("Act")establishes key limitations on local regulations. The Act defines the scope and parameters of the city's review of AT&T's applications. Under the Act,the city must take action on AT&T's applications"within a reasonable period of time."2 The Act also requires that the city's review of AT&T's applications 'See Accelerating Wireless Broadband Deployment by Removing Barriers to Infrastructure Investment, Declaratory Ruling and Third Report and Order,FCC 18-133 (September 27,2018)("Infrastructure Order"). 2 47 U.S.C.§332(c)(7)(B)(ii). City of Moorpark City Council April 17, 2019 Page 2 of 6 must be based on substantial evidence.3 Under the Act, state and local governments may not unreasonably discriminate among providers of functionally equivalent services.4 The Act also prohibits a local government from denying an application for a wireless telecommunications facility where doing so would "prohibit or have the effect of prohibiting" AT&T from providing wireless telecommunications services.5 The FCC has ruled that an effective prohibition occurs when the decision of a local government materially inhibits wireless services.6 The FCC explained that the "effective prohibition analysis focuses on the service the provider wishes to provide, incorporating the capabilities and performance characteristics it wishes to employ, including facilities deployment to provide existing services more robustly, or at a better level of quality, all to offer a more robust and competitive wireless service for the benefit of the public."' Thus, a local government"could materially inhibit service in numerous ways—not only by rendering a service provider unable to provide existing service in a new geographic area or by restricting the entry of a new provider in providing service in a particular area, but also by materially inhibiting the introduction of new services or the improvement of existing services."8 In September 2018, the FCC issued its small cell deployment order and associated rules, which went into effect on January 14, 2019. Under this Infrastructure Order, the FCC established a standard for lawful fees, which requires that: "(1)the fees are a reasonable approximation of the state or local government's costs, (2) only objectively reasonable costs are factored into those fees, and (3)the fees are no higher than the fees charged to similarly-situated competitors in similar situations."9 Thus, only objectively reasonable costs that are recovered on a nondiscriminatory basis can be included in fees. In addition to establishing a standard for lawful fees, the FCC provides a safe harbor for presumptively reasonable fees: (a) $500 for non- recurring fees for an application including up to five small cells, plus $100 for each small cell beyond five, or$1,000 for non-recurring fees for a new pole to support small cells; and (b) $270 per small cell per year for all recurring fees.10 The FCC also established a standard for local aesthetic regulations that they must be (1) reasonable (i.e., has to be technically feasible), (2)no more burdensome than those applied to other infrastructure deployments, and (3) objective and published in advance." 3 47 U.S.C. §332(c)(7)(B)(iii). 447 U.S.C. §332(c)(7)(B)(i)(I). 547 U.S.C. §332(c)(7)(B)(i)(II). 6 See Infrastructure Order(The FCC rejected the significant gap/least intrusive means test for an effective prohibition that many courts,including the Ninth Circuit,have applied to all wireless facilities);see also,In the Matter of California Payphone Association Petition for Preemption, Etc.,Opinion and Order,FCC 97-251, 12 FCC Rcd 14191 (July 17, 1997). Infrastructure Order at n.95. 8 Id.at¶37. 9 Id.at¶50. 10Id.at¶79. 11 See id. at¶86;the FCC delayed the effective date for this aesthetic standard to April 15,2019 in order to give local governments time to adopt appropriate regulations. City of Moorpark City Council April 17, 2019 Page 3 of 6 AT&T has a statewide franchise right to access and construct telecommunications facilities in the public rights-of-way. Under Public Utilities Code Section 7901, AT&T has the right to access and construct facilities in public rights-of-way in order to furnish wireless services, so long as it does not"incommode"the public use of the public right-of-way. And under Section 7901.1,AT&T's right is subject only to the city's reasonable and equivalent time, place, and manner regulations. Specific Comments on the Proposed Policy 1. Other Permits Required. The Proposed Policy requires an applicant to apply for additional permits and approvals as stated in Section 2.1(e). The FCC has made clear that all associated permits and approvals are subject to the applicable shot clock.12 2. Site Agreement. Section 2.2(a)(9) requires all applicants to execute an agreement between the applicant and the city to install small cells on any structure located within the public right-of-way. AT&T does not need an agreement with the city to exercise its right to attach to , non-city-owned structures because it has a state law franchise right to place its facilities in the public rights-of-way.13 And this requirement is discriminatory to the extent it is not applied to other infrastructure deployments. 3. Location Preferences. The Proposed Policy, in Section 2.2(a)(12) and Section 2.4(b)(2)&(4), requires the applicant to demonstrate that a proposed project would be in the most preferred location and on the most preferred support structure that are technically feasible within 500 feet of the proposed location under Sections 2.6's location requirements. The city can articulate appropriate location preferences, but AT&T has a legal right to place its facilities in the public rights-of-way. Further, the FCC's aesthetic standard for small cells precludes the city from requiring this type of analysis for wireless applications when the city does not require it from other infrastructure deployments. Moreover, AT&T reiterates that the city cannot require a justification of AT&T's needs, such as a map showing areas that meet a technical service objective, to attach its facilities to less preferred locations and less preferred structures, as the FCC has rejected all coverage gap tests.14 As a practical matter, the city should reconsider its preferences and prohibitions against siting wireless facilities near residential districts. Small cells are low-profile, low-power facilities that need to be placed near customers to provide and improve service. In addition, the City Council Agenda Report also indicates that the policy will authorize the city to deny applications on a parcel or right-of-way within 500 feet of a school site when the facility is not located on an arterial or collector street. Although it does not appear that this requirement was incorporated into the Proposed Policy, AT&T cautions the city that banning facilities from large portions of the city will result in an effective prohibition in violation of the Act. Plus, access to robust 12 See id. at IN 132-137, 144. 13 See Public Utilities Code Section 7901. 14 See Infrastructure Order at¶40,n.94(the FCC rejected all"coverage gap"tests,including"the version endorsed by the Second,Third,and Ninth Circuits(requiring applicants to show that the proposed facilities are the `least intrusive means' for filling a coverage gap)"). City of Moorpark City Council April 17, 2019 Page 4 of 6 wireless services near schools enhances safety, and small cells are typically used to offload network traffic that is often congested near high-usage areas such as schools. 4. Deemed Withdrawn. Section 2.3(b) provides that an application is deemed withdrawn when an applicant does not respond to an incomplete notice within 60 calendar days. The city should eliminate this procedure. This is inconsistent with the mechanics of the FCC shot clocks. And it is not uncommon for a delayed response by an applicant to be the result of the applicant and city staff working together to resolve issues, which should be encouraged. 5. Batched Applications. AT&T objects to Section 2.3(c), which limits batched applications to five small wireless facilities and deems the entire batch incomplete/withdrawn/or denied if any application in the batch is incomplete/withdrawn/or denied. This is inconsistent with the Infrastructure Order and the corresponding rule, which do not authorize batching limitations.15 6. Indemnification. The indemnification provision in Section 2.5(a)(10) needs to carve out exceptions to indemnity in instances of the city's own negligence. And AT&T must retain the right to select its own counsel. 7. Performance Bond. Section 2.5.(a)(11) requires a performance bond to cover facility removal. Both federal and state law provide that this requirement can only be imposed on wireless providers to the extent it is applied to other right-of-way users. 8. Cost Reimbursement. Section 2.5(a)(16) states that applicants must"reimburse the city for all costs incurred in connection with the permit." It also states that the city has the right to withhold any permits or other approvals unless any outstanding costs have been reimbursed to the city by the permittee. This provision must be revised because only objectively reasonable costs that are recovered on a nondiscriminatory basis can be included in fees. To the extent the city's costs exceed the FCC's safe harbor for presumptively reasonable fees, the costs are preempted and unlawful. AT&T looks forward to working with the city to ensure its proposed fees comport with state and federal laws. 9. Undergrounding. Several provisions in the Proposed Policy mandate undergrounding of equipment. These requirements must be revised to the extent necessary to avoid unlawful discrimination or effectively prohibiting wireless services in violation of the Act. Wireless facilities cannot operate with all equipment underground. For instance, radio units must be placed above ground in order to be near enough to the antennas to function properly. Moreover, to comply with the FCC's aesthetic standard, the city cannot impose undergrounding requirements in a more burdensome way than applied to other right-of-way users.16 10. Electric Meter Upgrades. AT&T objects to Section 2.5(a)(18). Once AT&T installs a ground-mounted electric meter, the meter is permitted to remain for ten years. AT&T will discuss removal of a ground-mounted electric meter in the context of a permit renewal. And to 'S See 47 C.F.R. § 1.6003(c)(2)and Infrastructure Order at ¶114. 16 See also id. at¶86. City of Moorpark City Council April 17, 2019 Page 5 of 6 the extent that power needs to be based on a flat rate,the inability to place meter pedestals will eliminate the ability to use certain small cell technologies. This, in turn, may effectively prohibit wireless service in violation of the Act. 11. Prohibited Support Structures. The city should strike the proposed ban on the installation of enumerated support structures in Section 2.6(d) of the Proposed Policy, which includes decorative poles, signs and new, non-replacement wood poles. The FCC made clear that its interpretations apply to all government owned or controlled structures within the right-of-way." Many jurisdictions favor decorative pole designs for small cells, subject to a requirement that new or replacement decorative poles housing small cells are designed to look similar to nearby decorative poles. And AT&T has the right to place wood poles. 12. Concealment. Many of the city's design standards in the Proposed Policy for small wireless facilities require concealment.But under the FCC's aesthetic standard for small cells, concealment cannot be required to a greater extent than imposed on other infrastructure deployments in the right-of-way. Further, some wireless components cannot be concealed. For example, certain antennas being used for the latest generation of wireless technology cannot propagate an effective signal through concealment. And to avoid effectively prohibiting wireless services any concealment requirements must be limited "to the extent technically feasible." 13. Accessory Equipment Installation Preferences. AT&T objects to Section 2.7(b)(2)(A) of the Proposed Policy, which provides installation preferences for all non-antenna accessory equipment. These preferences are unlawful to the extent they are more burdensome than restrictions imposed on other infrastructure deployments such as electrical distribution facilities. 14. Ground-Mounted Equipment. The city will not approve any ground-mounted accessory equipment under Section 2.7(b)(2)(E). But sometimes ground-mounted electric meter pedestals are the only feasible option for providers based on the electric provider's requirements. AT&T will certainly work with the city on design, but the city must avoid blanket prohibitions and dictating AT&T's infrastructure choices. 15. Accessory Equipment Volume. Section 2.7(b)(2)(F) limits the volume of accessory equipment. This section must be revised to allow up to 28 cubic feet of equipment to be consistent with 47 C.F.R. §1.6002(I)(3). 16. Pole Top Requirement. Section 2.7(b)(3), (b)(4), (b)(5), (c)(4) and (c)(7)(A) state that antennas on streetlights, existing or replacement wood utility poles, new, non-replacement poles and other freestanding structures must be installed above the pole. There may, however, be a number of reasons that inhibit installations on the top of the pole. For instance, top-mounted antennas may not be technically feasible or network parameters may prevent pole-top installation. Also, AT&T may only have rights to certain space on the pole, or the pole owner may impose restrictions on AT&T that prevent extending the height of the pole. This requirement should, therefore, be limited to the extent practical and feasible. 17 Infrastructure Order at¶69. City of Moorpark City Council April 17, 2019 Page 6 of 6 17. New,Non-Replacement Poles. Section 2.7(b)(5) allows the city to require that a new, non-replacement pole be a streetlight, and if there are no existing streetlights nearby, applicants may only install a metal or composite pole. The city cannot force AT&T to install streetlights, and cannot ban use of other pole materials. AT&T has a state law right to set a poles in the right- of-way under Section 7901. In addition, these requirements steer wireless installations onto city- owned structures in violation of California Government Code Section 65964(c), which prohibits the city from requiring"that all wireless telecommunications facilities be limited to sites owned by particular parties."And these restrictions are preempted by the FCC's aesthetic standard for small wireless facilities to the extent they are more burdensome than rules applied to other infrastructure deployments. 18. Pole Diameter. Section 2.7(b)(5) and Section 2.7(c)(4) state that the pole diameter shall not exceed 12 inches and any base enclosure diameter shall not exceed 16 inches. This requirement is too narrow and, thus, will lead to an effective prohibition. 19. Concealment Inside the Structure. Multiple sections of the Proposed Policy prefer that providers locate cables, wires and other accessory equipment inside the pole. This type of requirement should be revised by adding"to the extent feasible"to the beginning of such sections. And the city should allow wires encased in cover or conduit outside the pole when internal installation is not feasible. Conclusion AT&T appreciates the city's efforts to adapt its wireless facility siting regulations to accommodate new and emerging technologies and changes in law. By addressing the items we raise here, the city will go a long way toward encouraging deployments consistent with state and federal policies and to the great benefit of the city's residents and businesses. Sincerely, /s/Michael van Eckhardt Michael van Eckhardt