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Introduction

Vote NO on AB 965: Asm. Juan Carrillo’s Unnecessary Wireless Broadband Bill

AB 965: The Broadband Permit Efficiency and Local Government Staff Solution Best Practices Act of 2023

From Apr 26, 2023 ASSEMBLY COMMITTEE ON LOCAL GOVERNMENT consultant analysis:

AB 965 requires local counties or towns to complete batch broadband permit processing within a presumptively reasonable time.

  • Broadband permit :: aerial construction, trenched construction, wireless construction, other †
  • Presumptively reasonable time :: federal law and federal regulations conflict on this definition ††

† There are two large problems with the definition of Broadband Permit:

  1. Wired and wireless broadband cannot be mushed together into one category like this because the two are very different in speed, reliability, public safety and energy consumption, with wired broadband being far superior to wireless broadband on each of these measures. In addition, there is federal preemption of local laws only applies when there a proven gap in wireless telecommunications service (the inability to place an outdoor wireless phone call). Per the 2019 US Court of Appeals ruling in the DC Cir. — Case No. 18-1051, Mozilla v FCC — to the FCC classified broadband information services as Title 1 (unregulated), which means that there is no preemption of local authority for any Wireless services other than for telecommunications service which is Title II (regulated) wireless and wireline phone calls.The fix: remove “wireless construction” from the bill language
  2. “Other” is a huge loophole. The fix: remove “other” from the bill language

†† Definitions of presumptively reasonable time conflict in federal statutes and FCC regulation. The State of California must be consistent with federal law, not FCC regulation:

  1. Federal law, per congressional intent of the 1996 Telecommunications Act: ““It is not the intent of this provision to give preferential treatment to the personal wireless service industry in the processing of requests, or to subject their requests to any but the generally applicable time frames for zoning decision.”
  2. Federal regulation, per FCC Title 47 CFR § 1.6003 — “presumptively reasonable timeframe for wireless construction are the periods and procedures established by applicable FCC rules” — does not clearly lay out the actual times frames being proposed and ignores the facts that the FCC’s proposed shot clocks for Wireless Telecommunications Facilities (WTFs) are merely presumptive : per the 2013 U.S. Supreme Court ruling in City of Arlington, Texas v FCC:

    . . . for agencies charged with administering congressional statutes . . . their power to act and how they are to act is authoritatively prescribed by Congress, so that when they [agencies] act improperly, no less than when they act beyond their jurisdiction, what they do is ultra vires. . . applying rigorously, in all cases, statutory limits on agencies’ authority.

    1. Where Congress has established a clear line, the agency cannot go beyond it; and
    2. Where Congress has established an ambiguous line, the agency can go no further than the ambiguity will fairly allow.
  3. Presumptive :: based on a legal inference as to the existence or truth of a fact not certainly known that is drawn from the known or proved existence of some other fact.

In short, in violation of federal law, the FCC consistently gives preferential treatment to the personal wireless service industry, but in the matter of placement, construction, modification and operations of WTFs, Congress has established a clear line.

CA State bills should not codify violations of federal law into State Code, as this bill currently does. The fix is to remove remove this unnecessary provision from AB 965, saving the cost and effort of the litigation to do so.

Edit of May 15, 2023 Draft Version

This edit corrects factual and strategic errors.

The flyer still needs a revised and specific call to action . . .

See suggested additions, subtractions to the flyer language, below

Vote NO on AB 965: Asm. Juan Carrillo’s Unnecessary Wireless Broadband Bill

AB 965: The Broadband Permit Efficiency and Local Government Staff Solution Best Practices Act of 2023

Too Many Applications, Too Little Time.

Cell Towers & Small Cell Applications

“Deemed Approved”

Overview: there is no need for a CA state bill to define a “presumptively reasonable time” for placement, construciton or modification of Wireless Telecommunications Facilities (WTFs) because federal law is clear and the FCC has no jurisdiction over local zoning laws. CA counties and towns are bound by Federal statutes and are not bound by FCC proposed wireless shot clocks that are inconsistent with the generally applicable time frames for [local] zoning decisions.”

CA AB-965 allows wireless carriers, wireless site developers and and their contractors to submit 50 or more applications to local towns and counties to place, construct, or modify WTFs of any size or any “G” small cells, cell towers, and antenna arrays in batches. The bill requires that local local towns and counties to process batches of WTF applications within 60 to 90 days. If this “shot clock” is not met, applications will automatically be “deemed approved,” even if they are incomplete in a presumptively reasonable time, which means “the timeframe that a local agency must review and resolve an application pursuant to applicable law following submission of a complete broadband permit application.”

AB 965 makes radical changes to California telecommunications law and local government permitting obligations.

Including:

  • Adding batch requirements creates unreasonable permitting “shot clocks” for local governments.
  • Implements a “no limit” batching process — AB 965 states that “a reasonable limit established pursuant to this subdivision shall be no less than 50 project sites” — with no upper limit in batch size!
  • Removes local governments’ ability to protect the public health and safety.
  • Removes public in the process as local governments won’t ave Does not allow sufficient time for local counties and towns to ensure that
    • wireless applicants establish a need for each proposed WTF (by submitting substantial written evidence of a significant gap in telecommunications service)
    • wireless applicants follow all applicable federal laws, including, but not limited to required environmental and historical reviews for each proposed WTF
    • local towns and counties seek and review public comment from residents so the locality can determine the best placement, construction and modification of broadand facilities that will provide broadband in the locality-preferred means (either wired or wireless).
  • Deems all batched permits as “approved” if a local government doesn’t act in less than 90 days (60 days for small cells, 90 days for tower installations). Inconsistent with federal laws, AB 956 establishes a draconian “deemed approved” ratchet: AB 965 says that if a local town or county “does not approve broadband permit applications for substantially similar wireless broadband project sites submitted for batch broadband permit processing pursuant to this section and issue permits, or reject the applications and notify the applicants, within the presumptively reasonable time, all of the permits shall be deemed approved“.
  • Goes BEYOND the FCC ruling for batching and shot docks. For instance, the FCC allows 150 days to process new cell tower applications and this bill cuts that time to only 90 days. And there can be 50 or more that will need to be processed!

There are many problems that need to be corrected in AB 965:

  • There is currently no distinction between wired broadband and wireless broadband; there needs to be one.
  • There is no recognition that each town or county, through its zoning laws, has the power to establish a preference for the type of broadband infrastructure the locality prefers, consistent with Gov. Newsom’s stated goals in his 2021 veto letter of a similar telecom-friendly bill, SB.556:

Gov Newsom: “There is a role for local government in advancing broadband efforts. Part of our achievements laid out in the Broadband budget bill SB 156 (Chapter 112. Statutes of 2020) enables and encourages local governments to take an active role in the last mile deployment and, in doing so, drive competition and increase access.”

  • It won’t fix the digital divide
  • Wireless broadband infrastructure networks consumes far more energy than wired broadband infrastructure networks
  • Wireless Antennas WTFs placed in neighborhoods residential zones lower property values by about 20% are shown to have a negative impact on.
  • Small wireless facilities increase the risk of fires Wireless broadband infrastructure is far more fire-prone than wired broadband infrastructure .
  • Telecom corporations are not insured for health claims.
  • Government research proves that exposure to radio- frequency radiation (RFR) causes cancer.
  • Wireless networks are more easily hacked, costing Californians $2 Billion in 2022.
  • It does nothing for unserved/underserved areas that remain without reliable intemet access because of decisions by the ISPs that these areas have inadequate Return on Investment (ROI).
  • It will seriously impact the growing percentage of the population with EMF disabilities.

In closing . . .

  • Local governments have already been working collaboratively with the industry and have improved processes while maintaining important local safeguards, including negotiating in 2021 several additional protections into Government Code 65964.1
  • There’s already a much better, safer, faster, more reli able and more affordable solution for broadband: Fiber optics to every home and business.

Final Version

Two Bad Wireless Telecom Bills Need Our Action!

  • AB 965: (Carrillo) Local Government: Broadband Permit Applications
  • AB 1065 (Patterson) Communications: California Advanced Services Fund

CA AB 965 is an unnecessary gift to the unregulated and highly profitable wireless industry that will not effectively close the Digital Divide. Vote NO on this highly controversial bill..

CA AB 965 allows wireless companies to intentionally dump dozens_xxx of antenna applications on local governments at once, creating new and unreasonable permitting obligations. Ask for a NO vote.

  • AB 965 is unnecessary. Various FCC Order since 2014 have proposed presumptive shot clocks for new Wireless Telecommunications Facility (WTF) construction or WTF “eligible facilities” modifications. already established shot clocks and. Local governments have already been working collaboratively with the wireless industry and have improved processes while maintaining important local safeguards process WTF applications via local zoning code, as intended by the 1996 Telecommunications Act.
  • AB 965 allows wireless companies to submit large “batches” of complex applications at a time, requiring local agencies to process and approve them according to the established FCC presumptive shot clocks. Applications will automatically be deemed approved if not acted upon approved or denied within the prescribed time frame. Local agencies may place “reasonable limits” on batching, but a reasonable limit is considered “NO LESS than 50 project sites.”
  • AB 965 does not consider the diverse needs inherent within local communities throughout California. It will hinder local government’s efforts to protect the public health and safety by forcing local officials all to rush through multiple submissions.
  • Typical WTF antenna applications are large files with complicated engineering drawings, electric diagrams, traffic flow analyses, insurance certificates and other documents that may be required by local authorities. They may be similar from one to another, but each one needs to be considered carefully for its compliance with codes, and its impact on the community, the environment, and any historical sites.
  • AB 965 will quickly drive more wireless 5Gwill result in the construction of many unnecessary Wireless Telecommunications Facilities (WTFs) of any size or any “G” in towns and counties . more small cell antennas close to people’s homes, whether they subscribe or not.
  • AB 965 is based on propaganda_xxx promoted as a solution to the digital divide. The truth is, wireless broadband, especially the basic services offered to low-income families, is notoriously slow, unreliable, and unable to meet the demands of present and future digital communications._xxx

AB 1065 will provide funding for the increasingly massive rollout of wireless installations and take it away from the much safer, more reliable, and energy-efficient option of WIRED internet connections.
Really?

  • AB 1065 will allow WIRELESS companies to apply for FFA (Federal Funding Account) grants, money that’s intended for last mile infrastructure.
  • Wireless will set our state back in terms of climate change management because wireless uses a huge amount of energy compared to WIRED fiber networks.
  • Wireless facilities placed in neighborhoods are shown to have a negative impact on property values.
  • Wireless facilities increase the risk of fires.
  • Wireless facilities impact the growing percentage of the population with disabilities related to radiofrequency radiation (RFR) exposure_xxx
  • Fiber to the Premises (FTTP) means fiber/coaxial wired broadbands to every home and business. FTTP offers greater capacity, predictable performance, lower maintenance costs, and a longer technological lifetime than wireless technologies. Fiber service is not degraded by line-of-sight issues and is not affected by capacity issues. Bottom line: Wired fiber is faster and more reliable than wireless!
    CPUC regulators have determined that WIRED connections are technologically superior to wireless and will provide much better access for the unserved and underserved communities_xxx
    “The Federal Funding Account (FFA), established by the CPUC according to Senate Bill 156, will fund last mile broadband infrastructure projects to connect unserved and underserved Californians with high-speed broadband service.
  • The Federal Funding Account has a $2 billion budget made up of state and federal funds.” https://www.cpuc.ca.gov/industries-and-topics/internet-and-phone/broadband-implementation-for-california/last-mile-federal-funding-account

Urge a NO VOTE on both these Bills!

PLEASE TAKE ACTION by Monday, May 22

These bills could be voted on as early as Monday!

  • Contact your Assemblymember and his or her Legislative Assistant. If you have Excel, the Assembly Leg. Asst. file is attached. Sending your message to your Rep’s Assembly Assistant is very important!MAKE SURE you write “OPPOSE TWO BILLS: AB 965 and AB 1095” in the subject line and give a few reasons.In addition to their online “Contact me” form, send an email and make a call.
    To get the info for your assemblymember: https://findyourrep.legislature.ca.gov/

    (To access your assemblymember’s legislative assistant, see the attached pdf, jpg, or Excel file)

    Find out more at: www.Americans4RT.org/california

List of 79 Legislative Assistants: (Note: Several are missing, but you can call to get their name and contact info)

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