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HomeMy WebLinkAboutAGENDA REPORT 2022 0518 CCSA REG ITEM 09A SUPPLEMENTAL MOORPARK CITY COUNCIL SUPPLEMENTAL AGENDA REPORT TO: Honorable City Council FROM: Kevin Ennis, City Attorney Daniel Kim, City Engineer/Public Works Director Brian Chong, Assistant to the City Manager DATE: 05/18/2022 Regular Meeting SUBJECT: Consider Resolution No. 2022-___ Amending Development Standards for Small Wireless Facilities; Direct Staff to Pursue Legislative Efforts to Revisit the Federal Communications Commission’s Radiofrequency Emissions Standards that were Adopted as Part of the Telecommunications Act of 1996; and Receive and File a Report on Small Wireless Facility Regulatory and Legal Considerations CORRESPONDENCE RECEIVED Subsequent to the publication of the staff report, the attached correspondence was received from members of the public and AT&T. Attachments Item: 9.A. SUPPLEMENTAL 1 From:lisa padilla To:Moorpark Subject:Comment for city council meeting per small cell wireless Date:Tuesday, May 17, 2022 11:16:01 PM My comment for the meeting .. My frustration with this whole process are these things, you continually put the citizens of moorpark on hold. We have these town halls and city council meetings as well as zoom calls and meetings and the same information is regurgitated over and over . Nicole Golden and Rob Golden are living in a nightmare. First they are told from Professionals that the cell was placed way to low, then they are told all the measurements for safety were taken from across the street, then they watch a power pole a few poles down catch on fire and almost burn down their neighbors home. They are told by SCE employees that if this was at their home they would remove it themselves . They have given you all the information you as a city council should have researched and known about. We have Hugh Finlay am expert in the field tell you what he found. Nicole Golden and Lisa Ciccone and numerous others have done all the research for you. The placement of this cell is way to close to a playhouse as well as the Goldens Home. Plain and Simple. You have all stated many times , this was a mistake, I don’t want this anywhere near my home, and more. In 2019 you were on the path of making ordinances so this would never ever happen again. What happened ? Who dropped the ball and why? When asked if you will fight this you spent months stringing us along, for what ? At our last zoom meeting you literally closed the book folded your arms and said we have the lawyers and the funds but we are not willing to fight what we can’t win. That’s the most defeatist attitude I’ve ever heard and to me that proves you don’t care about Moorpark, you don’t care about the Goldens or their children or the Peach Hill neighborhood this affects. You want us to vote for you for higher offices? You want us to fight for you to keep your jobs? Why? You haven’t fought for the Goldens or Moorpark . Thank you Lisa Padilla Sent from Yahoo Mail for iPad ATTACHMENT 2 From:Shank, Aaron M. To:City Council & City Manager Subject:AT&T Comments on Proposed Revisions to Small Cell Development Standards Date:Wednesday, May 18, 2022 9:17:22 AM Attachments:AT&T Comments May 18 2022.pdf Dear Mayor Parvin, Mayor Pro Tem Castro, and Councilmembers Enegren, Pollock, and Groff: Please accept this letter on behalf of AT&T to provide comments on the city’s proposed resolution and revisions to 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 / ashank@porterwright.com D: 614.227.2110 / M: 614.578.5036 / F: 614.227.2100 41 South High Street, Suites 2800 - 3200 / Columbus, OH 43215 / MANSFIELD CERTIFIED PLUS We are moving the needle on diversity, equity, and inclusion. 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 3 Aaron M. Shank ashank@porterwright.com Porter Wright Morris & Arthur LLP 41 South High Street Suites 2800-3200 Columbus, OH 43215 Direct: 614.227.2110 Fax: 614.227.2100 Main: 614.227.2000 www.porterwright.com CHICAGO CINCINNATI CLEVELAND COLUMBUS DAYTON NAPLES PITTSBURGH WASHINGTON, DC May 18, 2022 VIA EMAIL City of Moorpark City Council 799 Moorpark Ave. Moorpark, CA 93021 RE: AT&T’s Comments on the Proposed Development Standards for Small Wireless Facilities Dear Mayor Parvin, Mayor Pro Tem Castro, and Councilmembers Enegren, Pollock, and Groff: I write on behalf of New Cingular Wireless PCS, LLC d/b/a AT&T Mobility (AT&T) to provide comments on the city’s proposed resolution to adopt development standards for wireless facilities. AT&T appreciates the city’s efforts to revise its small wireless facility regulations. The current regulations, however, need further revisions to ensure the city eliminates provisions that will violate applicable laws. AT&T respectfully requests the city consider additional revisions to accommodate real-world small wireless facilities, many of which were previously proposed in connection with the city’s April 2019 small cell rulemaking effort. AT&T remains committed to responsibly deploying its wireless telecommunications facilities in the city. AT&T generally agrees that codified location and design preferences can be developed to accommodate providers while protecting the city’s interests to the extent feasible. AT&T offers the following comments to help the city adapt its development standards to foster responsible deployments in line with applicable laws. Key Legal Concepts The Federal Telecommunications Act of 1996 (“TCA”) establishes key limitations on local regulations related to siting wireless telecommunications facilities. Under the TCA, the city must not prohibit or effectively prohibit wireless services. See 47 U.S.C. §§ 253(a), 332(c)(7)(B)(i)(II). An effective prohibition in violation of the TCA occurs whenever the decision of a local government materially inhibits wireless services.1 Under the TCA, wireless providers must be 1 See Accelerating Wireless Broadband Deployment by Removing Barriers to Infrastructure Investment, Declaratory Ruling and Third Report and Order, FCC 18- 133, 30 FCC Rcd 9088 at ¶¶ 35-42 (September 27, 2018) (“Infrastructure Order”); 4 City of Moorpark AT&T Comments May 18, 2022 Page 2 permitted to deploy facilities to offer more robust and competitive wireless services for the benefit of the public. The Federal Communications Commission explained that 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.”2 The city must act “within a reasonable period of time” on each application. 47 U.S.C. § 332(c)(7)(B)(ii).The FCC has codified “shot clocks” – presumptive maximum timeframes for processing applications. Violations of the shot clocks may result in unlawful effective prohibitions under the TCA and deemed approvals under state law.3 The city must grant all necessary approvals and authorizations within the applicable shot clock as the shot clock applies “to all aspects of and steps in the siting process.” 4 The FCC has also ruled the shot clock starts once an applicant takes the first step to meet a locality’s required process, such as scheduling a pre-application meeting or submittal appointment.5 The FCC’s Infrastructure Order established an aesthetic standard for small cells. To be lawful, aesthetic requirements must be reasonable, i.e., technically feasible, and published in advance.6 The essence of the requirements are to allow local regulations that avoid “out-of- character” infrastructure deployments to the extent feasible.7 Beyond that, aesthetic requirements may effectively prohibit wireless services in violation of the TCA. The Infrastructure Order also established a fee standard for small cell wireless facilities. Similar to state law requirements, such fees must be reasonable, cost-based, and non- discriminatory.8 Under this fee standard, the city bears the burden to show that any additional fees are justified under the fee standard.9 To help municipalities avoid imposing unlawful fees, the FCC established a safe harbor for presumptively reasonable fees: (a) $500 for the total of all nonrecurring fees for an application including up to five small cells, plus $100 for each small cell beyond five, or $1,000 for the total of all nonrecurring fees for a new pole to support small cells, see also, In the Matter of California Payphone Assoc. Petition for Preemption, Etc., Opinion and Order, FCC 97- 251, 12 FCC Rcd 14191 (July 17, 1997). 2 Infrastructure Order at ¶ 37. 3 See id. at ¶ 118; Cal Govt Code § 65964.1(a). 4 See Infrastructure Order at ¶¶ 132-137. 5 Id. at 145. 6 Id. at ¶ 86; City of Portland v. United States, 969 F.3d 1020 (9th Cir. 2020), cert. denied, City of Portland v. United States, 141 S. Ct. 2855 (2021). 7 See Infrastructure Order at ¶¶ 86-88. 8 Id. at ¶ 50. 9 Id at ¶ 79; see also In the Matter of Petition for Declaratory Ruling that Clark County, Nevada Ordinance No. 4659 Is Unlawful Under Section 253 of the Communications Act as Interpreted by the Federal Communications Commission and Is Preempted, Order, WT Docket No. 19-230, Doc. DA-21-59 (January 14, 2021) at ¶ 7. 5 City of Moorpark AT&T Comments May 18, 2022 Page 3 and (b) $270 per small cell per year for the total of all recurring fees.10 In fact, the FCC explained that these fees would be exceeded in “only very limited circumstances.”11 The TCA also forbids state and local governments from making decisions on wireless facility siting application based on the effects of radio frequency emissions to the extent such facilities will comply with the FCC’s rules for such emissions.12 In addition, localities may not impose their own standards for assessing radio frequency emissions as the federal government exclusively regulates this topic and there is no room for local regulation of it.13 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 as to how AT&T constructs in the public rights-of-way. Specific Comments on the Proposed Policy 1. Site Agreement. The city needs to delete or revise Section 2.2(a)(9), which 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.14 And this requirement is discriminatory to the extent it is not applied to other infrastructure deployments. 2. 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 is technically feasible within 500 feet of the proposed location under Sections 2.6’s location requirements. The Proposed Policy does not indicate what is required to demonstrate that a particular location or structure is or is not technically feasible. On this issue, the Agenda Report for this item suggests these provisions are intended to allow exceptions when providers provide evidence that more preferred sites will not close a gap 10 Infrastructure Order at ¶ 79. 11 Id. at ¶ 80. 12 See 47 U.S.C. § 332(c)(7)(B)(iv). 13 Bennett v. T-Mobile U.S., Inc., 597 F.Supp.2d 1050, 1053 (C.D. Cal. 2008) (localities are preempted from regulating this topic because the FCC has regulated “every technical aspect of radio communication.); Farina v. Nokia, 578 F.Supp.2d 740, 762 (E.D. Pa. 2008) (held “Congress has given the FCC exclusive authority over every technical aspect of radio communication”). 14 See Public Utilities Code Section 7901. 6 City of Moorpark AT&T Comments May 18, 2022 Page 4 in coverage. But the FCC has expressly rejected all such “coverage gap” tests. 15 As the Agenda Report explains, the Infrastructure Order “was expressly intended to promote” “efforts to densify commercial cellular networks.” Agenda Report at 2. Thus, the city cannot require this sort of justification for siting purposes, and it must still authorize exceptions to avoid unlawful prohibitions. 3. 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. 4. 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.16 5. 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. 6. 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 and are not objectively reasonable, the costs are preempted and unlawful. For example, the city should not pass on to AT&T the costs for engaging a consultant to investigate coverage gaps (as contemplated in the Agenda Report) because that is not a relevant inquiry and, therefore, such costs are not reasonable. AT&T looks forward to working with the city to ensure its proposed fees comport with state and federal laws. 7. 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, 15 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)”). 16 See 47 C.F.R. § 1.6003(c)(2) and Infrastructure Order at ¶114. 7 City of Moorpark AT&T Comments May 18, 2022 Page 5 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.17 8. 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 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. 9. 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.18 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. 10. Concealment. Many of the city’s design standards in the Proposed Policy for small wireless facilities require concealment. These requirements should be limited “to the extent feasible” because 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 certain forms of concealment. 11. 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. 12. 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. In certain instances, top- mounted antennas may not be technically feasible or network parameters may prevent pole-top installation. For example, AT&T sometimes deploys a very low-profile collar antenna that is typically placed lower on the pole. 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 See also Infrastructure Order at ¶ 86. 18 Id. at ¶ 69. 8 City of Moorpark AT&T Comments May 18, 2022 Page 6 13. 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. 14. New Pole Diameter. Section 2.7(b)(5) and Section 2.7(c)(4) limits the diameter of new poles to 12 inches. The city may want to consider expanding allowable new pole diameter to 18 inches because AT&T’s pole-top shroud is 18 inches in diameter to fit all of the equipment. Conclusion AT&T urges the Council to take a step back to consider further revisions to its proposed small wireless facility development standards so that they will foster responsible deployments and avoid violating important laws. Sincerely, Aaron M. Shank 20872938v1 9 From:Lisa Cirricione To:City Council & City Manager; Daniel Kim; Brian Chong Subject:Small Cells and Communication Transparency Date:Wednesday, May 18, 2022 4:24:15 PM Dear Council Members, Mr. Kim, Mr. Brown, and Mr. Chong, My apologies for the prior blank email, I hit a wrong button. I wanted to thank those of you present for the zoom meeting held on 5/16 in preparation for the council meeting. I am very encouraged and happy to hear that the city has decided to put out requests for proposals on the subject of an INDEPENDENT RF emissions readings entity that will at least provide some meaningful data and accountability for the new small cells being located in very close proximity to areas in which residents live, play and work. This is a great way for us to hold the telecoms accountable and have meaningful data about what we are being exposed to. Again, those 1996 limits were based on an adult’s body, not a child’s or pregnant woman, so we have never had any data on what is truly safe for them. I am also glad that the ordinance is being strengthened, something the community asked to be done back in July of 2019. What is still unfortunate is that the Golden’s didn’t have any say, choice or notice in what they will be exposed to now with the small cell installed literally in their back yard. Since AT&T will not bend an inch, I am also greatly looking forward to what attorney Scott McCullough’s input would be at this point as well. Please do keep us all informed of the results of that call. We appreciate that greatly!! What continues to grieve me is that I know (and knew in 2019) that once a cell is installed you’re going to be very hard pressed to get it taken down. That is why I continuously asked for locations of proposed cell sites in residential areas in 2019, and in 2020. I was NOT ever informed of this particular address. City staff kept telling me it was also on Peach Hill (along with the Golondrina site) but they didn’t “know exactly where on Peach Hill”, or when they would know. I didn’t find out until it was installed, and Nicole sent out an SOS to the community. Yesterday a number of you mentioned the reason I was not told, was because an application form had not been provided to AT&T until dates after my inquires, if I am understanding correctly. However, the permit for this location that was provided to us mere minutes after our zoom call, reveals that the location paper trail began in July of 2019, and as you can see below, from the AT&T architectural drawings, technical information relating to the proposed site etc., that the location address was specifically chosen and provided as early as July 2019. In fact, the Golden's home was singled out with their parcel number clearly labeled. It was incredibily obvious that it was going in someone's backyard. How is it that city staff did not know the address in 2019, and in 2020? 10 Mayor Parvin, you are at the helm. Can you please give us information on what kind of direction city staff will be given in regards to providing timely, accurate and COMPLETE information when requests about potential new cell site locations are made? Troy said that residents have the right to this information. What are the reprecussions if those rights are violated? PLEASE respond to this question. I have been asking this repeatedly. Somehow my questions keep being diverted into the semantics of permits, applications and forms, which has been frustrating and somewhat disingenuous as well. Had there been transparency on this, the reality of our situation could have been very different today. We understand your hands are tied to certain extents but ours are not. The public can take that information and use it to assert its own action strategies and when we know in advance of proposed locations, those of us who don’t want to live near such sites can make home buying choices accordingly. Whether or not these things are effective or not is beside the point. The point is that we had a right to know, and the loss of that information has had very detrimental effects. Living safely doesn’t just mean you are keeping crime low. It also means that your environment is safe health-wise and that public trust in local government is high. A lack of transparency like this undermines public trust and further disengages people from feeling like they matter or can make a difference in the very communities they live in. Moving forward, I hope we can be genuine, honest and work together on the things that matter to us the most. Please keep us updated on the call to Scott Mccullough and if we can generate some type of web page that updates regularly of where current and proposed small and large cell sites are located within the city. It doesn’t seem like it would be that difficult to list addresses of current and proposed sites. Again, it doesn’t have to be directly advertised but readily available to those who seek this information out. Thank you and Best Regards, Lisa Cirricione 11 12 13 14