CA SB.556: A Bill That Would Severely Limit Local Government Control of sWTF Deployment in the Public Rights-of-Way

Adapted from the original BBK article here.

Note: sWTFs are so-called “small” Wireless Telecommunications Facilities, which may be small in dimension, but are large in maximum power output.

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Oppose SB.556 (and others)

Four years after California Gov. Jerry Brown vetoed Senate Bill 649, an industry-sponsored “sWTF” bill, the wireless industry is back with another bill: SB.556. — actually a triple threat 6-7-8 of CA Bills in 2021: SB.556, AB.537 & SB.678.

In the words of Yogi Berra, “Is this Déjà Vu all over again?” Back in 2017, the people of CA secured a veto of an earlier version of the combined triple threat of CA Bills in 2021: SB.556, AB.537 & SB.678 . . . that was CA SB.649 California’s misguided Streamline so-called “small” Wireless Telecommunications Facilities (sWTFs) Bill.

This is what we learned back in 2017 from the League of California Cities: while over 300 cities opposed SB.649 (Hueso), the Governor vetoed the bill stating:

“I believe that the interest which localities have in managing rights of way requires a more balanced solution than the one achieved in this bill.”

So, why are our CA Legislators wasting everyone’s time and the taxpayer’s money to attempt this same corrupt industry heist all over again? . . . Follow the $$$ Money $$$!

Bills, Bills, Bills . . . just a couple of Bills (Dodd & Quirk) collecting more $Bills to pass Heinous State Bills to feather careers/nest eggs. Ruining our neighborhoods throughout CA is just collateral damage — hardly worth a thought to these men. That must mean Bill Gates is not far away . . .. that’s right . . . in addition to investing heavily in vaccines, Gates invested over $900 million in Crown Castle (5.3 million shares × $172/share). I guess these Bills (Dodd & Quirk) believe they have the votes. We’ll see . . .

The new bill would dramatically expand the scope of an existing law that allows communications companies to use municipal electric “utility poles” for their Wireline and Wireless facilities. This would be done by broadening the types of public infrastructure that must be made available to include light poles and traffic signal poles, among others, and applying the law to more than 500 local governments, in addition to municipal electric utilities.

While SB.556 purports to preempt local authority with the goal of assisting the Wireless industry in the expansion of broadband access, the bill fails to set any requirements for the Wireless industry to expand broadband access or close the digital divide.

The Triple Threat of SB.556, AB.537 & SB.678 Are Unnecessary and Misguided

The bill is unnecessary because many local governments have already negotiated contracts in good faith with Wireless companies to allow use of locally owned poles in the public rights-of-way on what the industry would view as reasonable terms, and the local governments already comply with the FCC 18-133, the Streamline sWTF Deployment Order, a presumptive order, which means the order is merely a statement of preferences — not a self-enforcing order, as admitted by FCC Attorney, Scott Noveck in the Oral Argruments in the US Court of Appeals, Ninth Circuit on Feb 10, 2020, when arguing Case No. 18-72689, Local Govt. v. FCC:

Scott Noveck, FCC Attorney on Feb 10, 2020

These Orders [FCC 18-111 and FCC 18-133] are not self-enforcing; they contemplate the need, in many circumstances, for further case-by-case adjudication. In those instances, either someone would have to come back to the FCC or go to Court.”

Scott Noveck, FCC Attorney on Feb 10, 2020

“The Order doesn’t purport to prevent localities from addressing reasonable aesthetic requirements. In fact we say in the small cell order that aesthetic requirements are permitted . . . a locality could say if a 50-foot pole would be out of character with the surrounding neighborhood, you can’t put up a 50 foot pole.”

Scott Noveck, FCC Attorney on Feb 10, 2020

“These small cells, though they have much less range than macro towers, they have a fair range.”

Next, listen to to the nation’s Top Telecom Attorney in opposing Wireless Telecommunications Facilities (WTFs), Andrew Campanelli: at 30:29 in a July 23, 2020 video, addressing the City of Woodstock, NY:

“You are probably going to hear someone [on a City Council] say, ‘Oh no, we are preempted, our hands are tied.’ I hear that all the time.

There is a [September 2018] interpretive Order [FCC 18-133] . . . which I think is ineffective . . . Federal courts — for twenty years — have interpreted the language in the Telecommunications Act that says when an effective prohibition occurs. These cases have gone up to the US Courts of Appeals for the 2nd Circuit and all the other Circuits.

Federal judges are bound by these [No Significant Gap in Telecommunications Coverage and Least Intrusive Means] tests. So if some [company] wants to claim,

‘you [the City] must give us an approval, even if it violates your code because saying no would be an effective prohibition’,

. . . and you [the City] says no, [the company] would have to file a law suit in Federal court and the Federal judges are bound by the Circuit Court Rulings which say an effective prohibition occurs when the company proves there is a signifcant gap and the proposed installation is the least intrusive means.

The [company] can’t meet that test in the [densified 4G/]5G rollout, so the Wireless Industry went to the FCC and got them to issue a new “interpretive” Order [FCC 18-133] and here is what the Order says . . . after 24 years, we the FCC interpret that that effective prohibition language meaning that applicants don’t have to prove that there is a significant gap in service and they don’t have to prove — contrary to 20 years of Federal Court decisions — they don’t have to prove that their installation is the least intrusive means of remdying that gap. All they have to say is ‘they need this facility at the location they want at the height they want to either improve an existing service or to add a new service.’

I don’t think that has any effect on a town’s ability because . . .

  1. The FCC can’t take away the powers preserved to towns by Congress — it wasn’t intended
  2. The FCC can’t wipe out twenty years of Federal judges’ interpretations
  3. The FCC can’t strip local governments of 20 years of local zoning regulations

The Wireless industry is going from town to town, showing this [FCC 18-133] as gospel and the closest thing I have to a decision on this, so far, is one Federal judge in New York said and I’ll quote him:

It is not up to the FCC to put words in the Telecommunications Act that aren’t there.’

So, that’s why I think I am right. I know local towns still have the power to control the placement of Wireless Telecommunications Facilities (WTFs). To the extent an applicant says ‘You have to give [this permit] to us because of this [September 2018] interpretive Order’ — I don’t think the Order has any effect on the ability of towns to control the placement of Wireless Facilities at all.”

If SB.556, AB.537 & SB.678 becomes state law, California local governments would face FAR MORE SEVERE restrictions than those proposed by FCC 18-133

  1. For contracts entered into before the cost provisions of the FCC 18-133 went into effect, the FCC indicated their status would depend on the particular facts and circumstances. SB.556, if adopted, would preempt existing contracts, protecting contractual rates that exceed $270 per year per pole only if the equipment is installed by Jan. 1, 2022.

  2. FCC Order 18-133 proposes presumptive shot clocks of 60-days — shot clocks that have had no foundation since Aug 2019, when the DC Circuit Case No. 1129 Keetoowah v FCC vacated the definition of a “Small Wireless Facility.” and the FCC declined to follow through to properly re-establish the definition. The basis for the 60-day shot clock was “no envionrmental review required”, but since this Aug 2019 ruling environmental review is required for every Wireless Telecommunications Facilities (WTFs) of any size or any “G”.

  3. FCC Order 18-133 states that the FCC’s 60-day shot clocks are presumptively reasonable — meaning, in certain circumstances, a longer review period would be permissible, BUT SB.556 proposes even shorter timelines, and they are fixed: 45 days for a single request and 60 days if the applicant bundles requests to attach to over 300 poles — giving no time for the required, federally-mandated NEPA review. That would make CA State law inconsistent with Federal law.

Garnet Hanly, Division Chief of the Competition & Infrastructure Policy Division, FCC Wireless Telecommunications Bureau on Oct 19, 2020:

“The FCC, when it modified its rules after the DC Circuit issued its mandate [in its Ruling of Case No. 18-1129 Keetoowah v FCC] we [the FCC] took the position that we were reviewing Small Wireless Facilities as [Federal] undertakings and major Federal actions, pursuant to the DC Circuit decision and that is what we’ve been doing.”

Re: the FCC Order’s 18-133 proposed 60-day shot clocks, the Ninth Circuit judges wrote in the Case No. 18-72689 Ruling, Local Govt. v FCC:

“It must be remembered that the ‘shot clock requirements create only presumptions’. As under the 2009 Order, if permit applicants seek an injunction to force a faster decision, local officials can show that additional time is necessary under the circumstances.”

SB.556, AB.537 & SB.678 are UNNECESSARY GIFTS to the Wireless Industry

. . . that DO NOTHING Substantive to Close the Digital Divide in California

Perhaps the most troubling and disappointing aspect of the bill is that it is so completely misguided as a policy initiative. The findings introducing the bill claim this preemption of local control will support broadband deployment. It won’t.

The COVID-19 pandemic has certainly revealed a strong need to improve access to broadband. But claims that local governments are creating roadblocks to broadband deployment are unfounded.

SB.556 is a giveaway to the wireless industry at the expense of local governments and residents public safety, privacy and property values — with no obligation or commitment from the Wireless industry to install broadband facilities or make broadband service affordable to close the Digital Divide.

California, instead, needs meaningful and enforceable requirements to extend broadband services to the entire state. These bills — SB.556, AB.537 & SB.678DO NOT do that.