AMENDED IN ASSEMBLY MARCH 30, 2021
AMENDED IN ASSEMBLY MARCH 11, 2021
CALIFORNIA LEGISLATURE— 2021–2022 REGULAR SESSION
ASSEMBLY BILL NO. 537
Introduced by Assembly Member Quirk
February 10, 2021
An act to amend Section 65964.1 of the Government Code, relating to communications.
LEGISLATIVE COUNSEL’S DIGEST
AB 537, as amended, Quirk. Communications: wireless telecommunications and broadband facilities.
Pursuant to existing federal law, the Federal Communications Commission (FCC) has adopted decisions and rules establishing reasonable time periods within which a local government is required to act on a collocation or siting application for certain wireless communications facilities.
Wire-CA: Certain FCC Orders (this, that, other) have been passed to implement the legislative intent of the 1996 Telecommunications Act (1996-TCA), as expressed in the 1996-TCA conference court and recognized by the US Supreme Court in 2005 in Palos Verdes v Abrams. It is very clear that no federal laws specify “deemed approved” remedies, such as those proposed by the Wireless Industry (through Asm. Quirk) in AB.537. Also, the FCC orders regarding “shot clocks”, are presumptive only, according to Federal court rulings.
1996-TCA Conference Report
“this is a quote”
“this is a quote”
Link to 2012 Spectrum Act, 47 U.S. Code § 1455 (a) Facility modifications and 47 CFR § 1.40001 Wireless Facility Modifications, which does mention deemed granted, but this is only for modification existing Wireless Telecommunications Facilities (WTFs), not the construction of new WTFs.
“. . . (c) Review of applications. A State or local government may not deny and shall approve any eligible facilities request for modification of an eligible support structure that does not substantially change the physical dimensions of such structure.
. . . (4) Failure to act. In the event the reviewing State or local government fails to approve or deny a request seeking approval under this section within the timeframe for review (accounting for any tolling), the request shall be deemed granted. The deemed grant does not become effective until the applicant notifies the applicable reviewing authority in writing after the review period has expired (accounting for any tolling) that the application has been deemed granted.
(5) Remedies. Applicants and reviewing authorities may bring claims related to Section 6409(a) to any court of competent jurisdiction.
Existing law requires a collocation or siting application for a wireless telecommunications facility be deemed approved if a city or county fails to approve or disapprove the application within the time periods specified in applicable FCC decisions, all required public notices have been provided regarding the application, and the applicant has provided a notice to the city or county that the time period has lapsed.
Wire-CA: The preceding statement is misleading. Existing Federal law does not specify a “deemed approved” remedy. FCC Orders are not considered law when they are only presumptive and not self-enforcing, which is the case for FCC 18-133, the FCC’s Streamline so-called “small” Wireless Telecommunications Facilities (sWTFs) Order. Such orders are merely guidance or a statement of FCC preferences. The CA State Legislature unnecessarily passed AB-57 in 2015 to create a “deemed approved” remedy which is not required by either the 1996-TCA or by FCC Order 18-133. This makes current CA State law more restrictive than Federal law.
Under existing law, eligible facilities requests, defined to include any request for modification of an existing wireless tower or base station that involves collocation of new transmission equipment, removal of transmission equipment, or replacement of transmission equipment, are exempt from these requirements.
This bill would remove the exemption for eligible facilities requests defined above. The bill would require that the time periods described above be determined pursuant to specified FCC rules. The bill would require that the city, county, or city and county notify the applicant of the incompleteness of an application within the time periods established by applicable FCC rules. The bill would require that the time period for a city or county to approve or disapprove a collocation or siting application commence when the applicant takes the first procedural step that the city or county requires as part of its applicable regulatory review process.
The bill would require
that where a traffic control plan or other permit submission related to safety is required by the construction, construction in the public right-of-way, the applicant shall obtain the permit, which to comply with that requirement and the city or county would be authorized to condition approval of the application on compliance with that requirement, and the city or county shall would be required to issue approval for any submission related to that requirement without delay. The bill would require that a city or county not prohibit or unreasonably discriminate in favor of, or against, any particular technology. By imposing new duties on cities and counties, the bill would impose a state-mandated local program. The bill would require that a city or county shall not prohibit or unreasonably discriminate in favor of, or against, any particular technology. By imposing new duties on cities and counties, the bill would impose a state-mandated local program.
The California Constitution requires the state to reimburse local agencies and school districts for certain costs mandated by the state. Statutory provisions establish procedures for making that reimbursement.This bill would provide that, if the Commission on State Mandates determines that the bill contains costs mandated by the state, reimbursement for those costs shall be made pursuant to the statutory provisions noted above.
- KEY Vote: majority
- Appropriation: no
- Fiscal Committee: yes
- Local Program: yes
THE PEOPLE OF THE STATE OF CALIFORNIA DO ENACT AS FOLLOWS:
The Legislature finds and declares all of the following:
(a) The public’s increased reliance on high-speed internet access for remote work and school, telehealth, emergency response, and commerce due to the COVID-19 pandemic demonstrates the need for legislation to accelerate the deployment of broadband infrastructure.
(b) Nearly 42 percent of California families said that unreliable internet access was a challenge for them during distance learning according to a recent poll by EdSource and FM3 Research.
(c) Each local jurisdiction in California has its own permitting process and timeline. Examples of local jurisdictions include cities, counties, cities and counties, and any other entity that may be required to issue a permit for a broadband project, including water districts, special districts, and municipal utilities.
(d) The length of time it takes for local jurisdictions to process permits for broadband projects directly impacts the length of time it takes before a project can provide high-speed internet service to local communities.
(e) Some local jurisdictions approve permits for broadband projects very quickly. Other jurisdictions take months or years to approve the same type of project.
(f) There are currently over 1,000 broadband permits pending with local jurisdictions in California that would improve internet connectivity for several million residents.
(g) Given the heightened importance of robust connectivity for access to opportunity in the 21st
Century century global information economy, as well as for California families in a world of increasing work-from-home and learn-from-home expectations, it is in the public interest to encourage the rapid deployment of broadband projects.
Section 65964.1 of the Government Code is amended to read:
(a) A collocation or siting application for a wireless telecommunications facility, as defined in Section 65850.6, shall be deemed approved, all necessary permits shall be deemed issued, and the applicant may begin construction if all of the following occur:
- (1) The city or county fails to approve or disapprove the application within a reasonable period of time in accordance with the time periods and procedures established by applicable FCC rules. The reasonable period of time may be tolled to accommodate timely requests for information required to complete the application or may be extended by mutual agreement between the applicant and the local government, consistent with applicable FCC rules.
Wire-CA: Comment xxx.
- (2) The applicant has provided all public notices regarding the application that the applicant is required to provide under applicable laws consistent with the public notice requirements for the application.
- (A) The applicant has provided notice to the city or county that the reasonable time period has lapsed and that the application is deemed approved pursuant to this section.
- (B) Within 30 days of the notice provided pursuant to subparagraph (A), the city or county may seek judicial review of the operation of this section on the application.
(4) (b) Where a traffic control plan or other permit submission related to safety is required by the construction, construction in the public right-of-way, the applicant shall obtain the permit, which the comply with the requirement, and the city or county may condition approval of the application on compliance with this requirement. The city or county shall issue approval for any submission required by this subdivision without delay. (b) (c) The city, county, or city and county, shall notify the applicant of the incompleteness of an application within the time periods established by applicable FCC rules. (c) (d) The Legislature finds and declares that a wireless telecommunications facility has a significant economic impact in California and is not a municipal affair as that term is used in Section 5 of Article XI of the California Constitution, but is a matter of statewide concern.
Wire-CA: Comment xxx.
(d) (e) As used in this section, “Applicable FCC rules” means those regulations contained in Subpart U (commencing with Section 1.6001) of Part 1 of Subchapter A of Chapter I of Title 47 of the Code of Federal Regulations.
Wire-CA: Comment xxx.
(e) (f) Except as provided in subdivision (a), nothing in this section limits or affects the authority of a city or county over decisions regarding the placement, construction, and modification of a wireless telecommunications facility. (f) (g) A city or county shall not prohibit or unreasonably discriminate in favor of, or against, any particular technology.
Wire-CA: Comment xxx.
(g) (h) Due to the unique duties and infrastructure requirements for the swift and effective deployment of firefighters, this section does not apply to a collocation or siting application for a wireless telecommunications facility where the project is proposed for placement on fire department facilities.
Wire-CA: Comment xxx.
(h) (i) For purposes of this section, the time period for a city or county to approve or disapprove a collocation or siting application shall commence when the applicant takes the first procedural step that the city or county requires as part of its applicable regulatory review process.
If the Commission on State Mandates determines that this act contains costs mandated by the state, reimbursement to local agencies and school districts for those costs shall be made pursuant to Part 7 (commencing with Section 17500) of Division 4 of Title 2 of the Government Code.