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Home My WebLink AboutAGENDA REPORT 2022 0223 CC SPC ITEM 06A POWERPOINTCITY OF MOORPARK,  CALIFORNIA City Council Meeting of February 23, 2022 ACTION HEARD PRESENTATION, RECEIVED PUBLIC COMMENTS, PROVIDED DIRECTION TO STAFF FOR FURTHER RESEARCH, AND DIRECTION TO RETURN TO A FUTURE COUNCIL MEETING WITH RESULTS. BY B.Garza. A.Presentation and Discussion on Federal Communications Commission Declaratory Ruling and Third Report and Order, and City Policies Regarding Permitting Requirements and Development Standards for Small Wireless Facilities. (Troy Brown, City Manager) Item: 9.A. FCC Declaratory Ruling and Third Report and Order&City Policies Regarding Permitting Requirements and Development Standards for Small Wireless Facilities Moorpark City Council Meeting February 22, 2022 ITEM: 6.A. Telecommunications Act of 1996 The Federal Telecommunications Act of 1996 Purpose: “to provide for a pro- competitive, de-regulatory national policy framework designed to accelerate rapidly private sector deployment of advanced information technologies and services to all Americans by opening all telecommunications markets to competition....” (H.R. REP. NO. 104-458 (1996)) Federal Preemption of Local Zoning Control Zoning regulations must not “prohibit or have the effect of prohibiting the provisions of personal wireless services.” 47 U.S.C. §332(c)(7)(B)(i) Cannot ban wireless services. Cannot have the effect of banningwireless services or “materially inhibit”the provision of service. Cannot prevent a service providerfrom closing a significant gap in itsservice coverage, densifying anetwork, or improving existing service. Federal Preemption of Local Zoning Control CONSIDERATION OF RADIO FREQUENCY (RF) EMISSIONS 47 U.S.C. §332(c)(7)(B)(iv) “No State or local government or instrumentality thereof may regulate the placement, construction, and modification of personal wireless service facilities on the basis of the environmental effects of radio frequency emissions to the extent that such facilities comply with the [FCC’s] regulations concerning such emissions.” Federal Preemption of Local Zoning Control CONSIDERATION OF RADIO FREQUENCY (RF) EMISSIONS Environmental Health Trust v. FCC, 9 F.4th 893 (D.C.Cir. Aug. 13, 2021) 2013: FCC initiates formal rulemakingproceeding regarding the adequacy of the RFguidelines from 1996 2019: FCC summarily closes the matter withoutchanges to RF guidelines Held: FCC adequately justified conclusion that RF below existing standards do not cause cancer but did not as to non-cancer impacts Result: FCC must reconsider, but no changes toexisting RF guidelines or local preemption Issued September 27, 2018; effective April 15, 2019 Established a new category: “Small wireless facilities” Strictly limits local control over small wireless facilities, whether on private property or in the public right of way 6 FCC Declaratory Ruling & Third Report and Order FCC Declaratory Ruling & Third Report and Order “5G” •Technological standard adopted by wireless industry for next generation of broadband service •Not the same thing as a “Small Cell” Small Cells •Category created by FCC (“Small Wireless Facilities”) •Antennas ≤3 cubic feet •Other equipment ≤28 cubic feet •Installed at lower heights FCC Declaratory Ruling & Third Report and Order LOCAL SMALL CELL REGULATIONS MUST BE: Reasonable and related to aesthetics or interference withthe right of way No more burdensome than regulations applied to othertypes of infrastructure deployments Objective (i.e., non-discretionary)* Published in advance FCC Declaratory Ruling & Third Report and Order LOCAL SMALL CELL REGULATIONS MUST BE: Reasonable and related to aesthetics or interference withthe right of way No more burdensome than regulations applied to othertypes of infrastructure deployments Objective (i.e., non-discretionary)* Published in advance FCC Declaratory Ruling & Third Report and Order NEW SHOT CLOCK RULES Local agencies must act on a small wireless facility application within: 60 days for collocation on an existing structure 90 days for facilities on a new structure FCC Declaratory Ruling & Third Report and Order City of Portland v. United States; FCC969 F.3d 1020 (9th Circ. 2020) Largely upheld FCC’s small cells rules •Shot clock •Limits on Fees •Use of the right-of-way infrastructure Invalidated two limits on local aesthetic controls •“no more burdensome than those applied to other types of infrastructure deployments” •“objective and published in advance“ SCOTUS declined to review City of Moorpark Small Cell Policy Small wireless facilities subject to City Council Policyestablished by Resolution •City can amend its regulations quickly if needed. –Technology changes –Hard to anticipate every configuration or eventuality Detailed application, design, and operating standards •Specific “small cell permit” required •Standard conditions of approval •Objective design standards •Location requirements City of Moorpark Small Cell Policy Location Preference Hierarchy: less-preferred locations can only be approved if: •There is no more preferred location within 500 feet; or •Any more preferred location within 500 would be technically infeasible Preferences “(1) any location in a non -residential zone or non- residential Specific Plan designation; (2) any location in a residential zone 250 feet or more from any structure approved for a residential use; (3) If located in a residential area, a location that is as far as possible from any structure approved for a residential use.” Small Cells in Other Cities Beverly Hills, Agoura Hills, Thousand Oaks Malibu •Location preferences: Non-residential, on existingstructures, >500’ from schools, playgrounds, and parks •No wireless facilities with 500 feet of any School,Playground, or Park Petaluma •“Small cell” means pole-mounted to existing public infrastructure •Generally prohibited in all residential zones •1500’ separation from other small cells •500’ setback from existing or approved residences •Exceptions allowed with CUP Small Cells in Other Cities Small Cells in Other Cities 17 18 City’s History of Legislative Advocacy •2017: SB 649 (CA): Remove local control of wireless facilitiesin the public right-of-way •Lobbying Successful: Vetoed by Governor Brown •2018: FCC Report and Order: Remove local control ofwireless facilities in the public right-of-way •Lobbied Congresswoman Julia Brownley –Response: “I do not believe that state and local input on towerplacement should be abandoned.” •Lobbying Unsuccessful City’s History of Legislative Advocacy •2019: Congressional Efforts to Rescind FCC Report and Order •Supported H.R. 530 in the U.S. House of Representatives(Bill Failed) •Supported S. 2012 in the U.S. Senate (Bill Failed) •2021: SB 556 (CA): Enshrined FCC Report and Order intostate law •Opposed bill and requested veto City’s History of Legislative Advocacy www.moorparkca.gov/1052 Overview of regulatory environment for wireless facilities inthe public right-of-way Read the City’s legislative letters on this issue How to contact the FCC and other federal officials on thisissue