Item 3.8 - Additional Material posted 7-16-19City of Poway MEMORANDUM
ADDITIONAL MATERIAL
(Agenda Related Writings/Documents provided to City Council or Staff after distribution of the
Agenda Packet for the July 16, 2019 Council Meeting)
DATE:
TO:
FROM:
CONTACT:
SUBJECT:
Summary:
July 16, 2019
Honorable Mayor and Members of the City Council
Alan Fenstermacher, City Attorney
Alan Fenstermacher, City Attorney
afenstermacher@poway.org
Comments Submitted by Wireless Carriers regarding Agenda Item
3.8, First Reading of Ordinance Adopting Chapter 17.56 of the
Poway Municipal Code to Implement a Permitting Program and
Otherwise Regulate Wireless Communication Facilities
On July 15 and 16, respectively, the City received letters from the law firm of Mackenzie & Albritton,
LLP on behalf of Verizon Wireless (Attachment A) and Porter Wright on behalf of AT&T (Attachment
B)objecting to the proposed ordinance ("Ordinance") regulating wireless communication facilities
("WCFs") in the right-of-way (July 16, 2019 agenda Item 3.8).
These letters request that the City Council consider a number of proposed revisions to the
Ordinance as written, and in the case of Verizon's letter, requests a continuance to allow more
discussion between the wireless carriers and the City.
Recommended Action:
It is recommended that the City Council proceed with the first reading of the proposed Ordinance,
rather than continue the item to allow more discussion and input from the wireless carriers, because
it is unlikely the City and the carriers would eventually come to a complete agreement regarding the
Ordinance's text. As would be expected, wireless carriers routinely provide extensive comments
objecting to proposed local ordinances regulating their deployment of WCFs in the public right-of
way.
City staff has carefully reviewed both letters but, due to time constraints, cannot provide written
itemized responses to each argument. While staff does not agree that any portion of the proposed
Ordinance is unlawful or otherwise unenforceable, after additional review of the Ordinance in
conjunction with both letters, the following changes to the Ordinance are recommended as an effort
to compromise with the carriers, in the spirt of cooperation and fostering a productive relationship
moving forward (additions to the original proposed Ordinance are shown in underline, and deletions
in strikethrough):
1 of 14 July 16, 2019, Item #3.8
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17 .56.060. Application Requirements
f.A report specifying the facilities compliance with the FCC's Maximum Possible
Exposure (MPE) levels in inhabited areas within 500 feet of the facility prepared
by a qualified electrical engineering licensed by the State of California. Proof of
compliance shall be a certification provided by the engineer who prepared the
original based upon measurements after the facility is in operation, but prior to City
final engineering inspection. The City may require, at the Applicant's e*pense,
independent 1.<erification of the results of the analysis at any time during operations.
17 .56.080. Objective Standards and Operating Conditions
A.The Support Structure, including all added antennas, shall not be more than 50
feet in height or 10 percent taller than other adjacent vertical infrastructure. The
Wireless Communication Facility must not extend the height of an Existing Support
Structure by more than five (5) feet. e*ceed more than five feet above the height of
the average support structure in the public right of w-ay, as determined by a11eraging
the heights of the ten closest pieces of vertical infrastructure, e*cluding 01.<erhead
utility lines and poles.
B.The Wireless Communication Facilities shall be architecturally integrated with
Support Structures and screened from view to the largest extent feasible. The
Wireless Communication Facilities shall consist of the smallest, least visually
intrusive antennas, components and other necessary equipment available. No
portion of a Wireless Communication Facility placed on a Street Light shall be more
than five feet above the light pole portion of the Street Light.,_, and eEach portion of
the Wireless Communication Facility shall be designed at a diameter proportionately
similar to, and no more than three times diameter of, the Existing Support Structure.
Associated equipment shall not be ground mounted, but instead, placed
underground, unless the Director of Development Services determines that no other
feasible alternative exists based on clear and convincing evidence provided by the
applicant.
H.The antennas shall be activated and energized upon preliminary approval of the
Wireless Communication Facility by the Director of Development Services to allow
for proof of compliance certification provided by the engineer who prepared the
original MPE report based upon measurements after the facility is in operation, but
prior to the City's final engineering inspection. The City may require, at the
Applicant's e*pense, independent verification of the results of the analysis at any
time during operations.
N.In the case of an emergency or other similar exigent circumstances where the
facility poses a threat of bodily harm, death, or harm to real property, or otherwise
creates a safety hazard, the City may modify, remove, or relocate Wireless
Communication Facility without prior notice to the Applicant provided the Applicant is
notified within 30 days thereafter. The City shall make a reasonable attempt to
contact the operator prior to such emergency removal.
July 16, 2019, Item #3.8
17.56.090. Objective Siting Requirements
D.Required Setbacks for New Support Structures, Replacement Support Structures
and equipment and accessory structures associated with a Wireless Communication
Facility.
7.Any New or Replacement Support Structure must be located a minimum of 50
feet away from any residential structure, and shall not be located along the street
frontage adjacent to any school, daycare center, recreational area or park. New
or Replasement Support Structures may not be located within 75 feet of any
preexisting vertical infrastructure exceeding 10 feet in height or any pre-existing
Wireless Communication Facility, as measured along a horizontal line between
the closest points of the subject piece of infrastructure and closest portion of the
proposed Wireless Communication Facility.
17.56.120. Reservation of Rights to Review Permit
The City reserves the right to reconsider the permit at the end of a tAree-ten-year time period
from the date of the original permit approval. Reconsideration items to be reviewed may
include, but are not limited to, conformance with all objective standards, availability of new
technologies, conformance with the objective concealment standards imposed on the facility,
operation of applicable radio frequency standards and regulations (as they may be amended
from time to time), and compliance with federal, state and local regulations, including the
City's noise ordinance.
City staff will be prepared to discuss the remainder of the letters at the City Council hearing, if the
City Council has any questions or concerns.
Attachments:
A.July 15, 2019 Letter from Mackenzie & Albritton LLP on behalf of Verizon Wireless
B.July 16, 2019 Letter from Porter Wright on behalf of AT&T Mobility
Reviewed/Approved By:
Assistant City Manager
3 of 14
Reviewed By:
Alan Fenstermacher
City Attorney
Approved By:
c�
City Manager
July 16, 2019, Item #3.8
VIA EMAIL
MACKENZIE & ALBRITTON LLP
155 SANSOME STREET, SUITE 800 SAN FRANCISCO, CALIFORNIA 94104 TELEPHONE 415 / 288-4000 FACSIMILE 415 / 288-4010 July 15, 2019
City Attorney Alan Fenstermacher, Esq.
City Manager Chris Hazeltine
City of Poway
13325 Civic Center Drive
Poway, California 92064
Re: Draft Ordinance, Wireless Communication Facilities in the Right-of-Way
City Council Agenda Item 3.8, July 16, 2019
Dear Alan and Chris:
We write on behalf of Verizon Wireless regarding the draft ordinance regulating
wireless communication facilities in the right-of-way (the "Draft Ordinance"). Verizon
Wireless is concerned that the Draft Ordinance poses numerous conflicts with the recent
Federal Communications Commission ("FCC") order addressing small cells, the type of
wireless facility typically installed in the right-of-way. For example, several subjective
standards contradict the FCC's requirement for objective review. Other standards
contradict state law, such as prohibitive setback requirements. Verizon Wireless would
be pleased to discuss its network plans for Poway, and workable regulations and fee
limitations for small cells. We urge you to recommend that the Council defer adoption of
the Draft Ordinance to allow for needed revisions.
To expedite deployment of small cells and new wireless technology, the FCC
adopted its September 2018 order to provide direction on appropriate approval criteria for
small cells. See Accelerating Wireless Broadband Deployment by Removing Barriers to
Infrastructure Investment, Declaratory Ruling and Third Report and Order, FCC 18-133
(September 27, 2018) (the "Small Cells Order"). The FCC defined "small wireless
facilities" with specific height and dimension thresholds. 4 7 C.F .R. § 1.6002(1). Among
other topics, the FCC addressed aesthetic criteria for approval of qualifying small cells,
concluding that they must be: "(1) reasonable, (2) no more burdensome than those
applied to other types of infrastructure deployments, and (3) objective and published in
advance." Small Cells Order, ,r 86. "Reasonable" standards are "technically feasible"
and meant to avoid "out-of-character deployments." Id., ,r 87. "Objective" standards
must "incorporate clearly-defined and ascertainable standards, applied in a principled
manner." Id., ,r 88.
4of 14 Attachment A July 16, 2019, Item #3.8
City of Poway
July 15, 2019
Page 2 of 5
The FCC ruled that fees for small cells at or below the following amounts are
presumptively fair and reasonable: a $270 annual fee for attachment to each city-owned
structure, and a $500 one-time permit application fee for up to five small cells plus $100
for each additional small cell or $1,000 for a new pole. Small Cells Order, ,r,r 78-
79.These fee amounts are considered a presumptively reasonable "safe harbor" for cities
to charge. The FCC also ruled that cities may justify higher fees only if they are a
reasonable approximation of costs, and the costs themselves are reasonable and do not
discriminate among providers. Id. at ,r 80. Any fee charged for the Wireless
Communication Permit created by the Draft Ordinance must comply with the fee
limitations imposed by the Small Cells Order.
As a preliminary matter, the Draft Ordinance should include relevant definitions
for small cells adopted by the FCC, including "small wireless facility" and "associated
equipment." 4 7 C.F .R. § 1.6002. This will provide clarification for standards and a firm
foundation for small cell regulations. Our comments on the Draft Ordinance are as
follows.
The City Must Allow Small Cells on Utility Poles.
The Draft Ordinance prefers use of street light poles while forbidding facilities on
utility poles. Draft Ordinance §§ l 7.56.090(A), 17.56.090(C). If strictly applied, the top
preference for City-owned poles would contradict California Government Code Section
65964( c) which bars local governments from limiting wireless facilities to sites owned by
particular parties. Verizon Wireless has the right to place its telephone equipment on
joint utility poles as a member of the Southern California Joint Pole Committee. Small
cell equipment is not "out-of-character" on utility poles, given existing utility lines and
infrastructure, and denying this option would be unreasonable. Further, the City would
discriminate against Verizon Wireless by barring small cell equipment on utility poles
where other public utilities place their infrastructure. Structure preferences should be
relaxed to accommodate use of joint utility poles where they are found along the right-of
way, giving them a preference equal with street light poles. Draft Ordinance Section
17.56.090(A) should be stricken to remove the unlawful ban on utility poles. The City
should simply favor existing structures in the right-of way over new poles.
Subjective Standards Cannot Apply to Small Cells.
The Draft Ordinance includes several subjective standards that should be
eliminated as they are preempted by the Small Cells Order. Finding 3 of Section
l 7.56.070(A) references the City Wireless Communication Policy which itself is full of
subjective criteria such as "minimize visual impacts" and "architecturally integrated."
See, e.g., Policy§ 3(D)(l). Finding 4 requires no detriment to "general welfare," and
Finding 5 requires a design "to match existing street infrastructure" that, again,
"minimizes visual impacts." The "architecturally integrated" standard also appears in
5 of 14 July 16, 2019, Item #3.8
City of Poway
July 15, 2019
Page 3 of 5
Section 17.56.080(B). These are matters of opinion that could lead to denial of small cells that otherwise satisfy objective criteria.
The standard requiring the "smallest, least visually intrusive" antennas and
equipment is likewise subjective and poses another conflict with federal law by
effectively dictating the technology used by wireless providers. Draft Ordinance §
17.56.080(B). However, this would intrude on the exclusive federal authority over the
technical and operational aspects of wireless technology. See New York SMSA Ltd.
Partnership v. Town of Clarkstown, 612 F.3d 97, 105-106 (2nd Cir. 2010).
Under objective criteria, a facility either complies, or it does not. Applicants
should be confident that their designs will comply, not left to guess what the City may
decide based on its discretion. The FCC discouraged such guesswork. Small Cells
Order, ,r 88. We suggest that any and all standards that apply to small cells be included
in one document, based on clear, objective standards.
The City Should Not Require A Justification Statement and Alternatives
Analysis for Small Cells.
The Draft Ordinance requires justification of the need for a facility, its location
and design, as well as a review of alternative sites. Draft Ordinance §
17.56.060(D)(l)(d). However, requirements to demonstrate necessity of a small cell are
inconsistent with the Small Cells Order. The FCC ruled that local regulations prohibit or
have the effect of prohibiting service under the Telecommunications Act if they
materially inhibit "densifying a wireless network, introducing new services, or otherwise
improving service capabilities." Small Cells Order, ,r 37. Those are Verizon Wireless's
objectives for placing small cells in Poway rights-of-way. Justifying location and design
implies a subjective review of those factors, but objective criteria should provide clear
thresholds for approval. Review of alternatives invites comparisons at the decision stage,
whereas small cell criteria should be clear at the outset. Each small cell must be
evaluated on its own merits. We suggest striking Draft Ordinance Section
17.56. 060(D)(l)(d).
Design Standards Must Be Revised to Be Reasonable and Avoid Prohibitive
Treatment
One Draft Ordinance provision requires that no antenna support structure exceed
five feet above the average height of the 10 closest structures in the right-of-way. Draft
Ordinance§ 17.56.080(A). Not only may this lead to mismatched poles, it could curtail
antenna height required for successful signal propagation, which would be technically
infeasible and unreasonable. With greater height, signal coverage improves, and fewer
small cells are needed to serve an area. Height should be based simply on the existing
structure used, with sufficient additional height to mount antennas. This is the standard
of the following provision, Section 17.56.080(B), which allows antennas up to five feet
above a street light pole. Draft Ordinance Section 17.56.0B0(A) should be stricken.
6 of 14 July 16, 2019, Item #3.8
City of Poway
July 15, 2019
Page 4 of 5
The FCC determined that undergrounding requirements, similar to aesthetic
requirements, must be reasonable, non-discriminatory and objective. Small Cells Order, ,r,r 86, 90. The Draft Ordinance generally requires that accessory equipment be placed
underground. Draft Ordinance§ l 7.56.080(B). While there is an exception if
undergrounding is technically infeasible, this standard is unreasonable nonetheless.
Undergrounding is generally impossible due to sidewalk space constraints and undue
environmental and operational impacts for required active cooling and dewatering
equipment. Feasibility aside, this requirement is also unreasonable because small
equipment boxes on the side of a pole are not "out-of-character" among typical
infrastructure in the right-of-way, including on street light poles. Utility poles in
particular offer ideal sites for small cells by consolidating new equipment on existing
utility infrastructure. To allow for typical small cell equipment required for service, the
City should permit up to nine cubic feet of accessory equipment on the side of a utility
pole, or five cubic feet on a street light pole, before any undergrounding is considered.
For new and replacement poles, the Draft Ordinance requires a setback of 50 feet
from residences and 75 feet from any vertical infrastructure over 10 feet in height. Draft
Ordinance § 17 .56.090(D)(7). This would exclude long stretches of right-of-way in
contradiction of state and federal law. California Public Utilities Code Section 79 01
grants telephone corporations the right to place their equipment, including new poles,
along any right-of-way. The restriction also constitutes a prohibition of service under the
federal Telecommunications Act, because the FCC affirmed that small cells are critical
to densifying wireless networks and enhancing service, as described above. Draft
Ordinance Section 17.56.090(D)(7) should be stricken.
Post-Approval Procedures Require Revision.
We note that several Draft Ordinance provisions would allow the City to require
confirmation of compliance with FCC radio frequency exposure at any time, at permittee's
expense. Draft Ordinance§§ l 7.56.0 60(D)(l )(f), l 7.56.080(H). However, once an
installed wireless facility is shown to comply with FCC radio frequency exposure
guidelines, the City cannot require repeat exposure tests, as that regulation of the
operational requirements is preempted by federal law. See 47 U.S.C. § 332(c)(7)(B)(iv);
see also Crown Castle USA Inc. v. City of Calabasas (Los Angeles Superior Court
BS 14 0933, 2014) (" ... the regulation of a facility's planned or ongoing operation
constitutes an unlawful supplemental regulation into an area of federal preemption.") At
most, the City may require a single confirmation of FCC compliance following
commencement of operations.
The unilateral removal of facilities by the City with no notice could lead to
unwarranted removal, particularly as "exigent circumstances" is not defined. Draft
Ordinance§ l 7.56.080(N). Verizon Wireless maintains an emergency contact number
that is always available. This provision should be revised to require the City to make
reasonable attempts to contact a permittee prior to emergency removal.
7 of 14 July 16, 2019, Item #3.8
City of Poway
July 15, 2019
Page 5 of 5
The option for the City to reconsider and potentially revoke a permit after three
years directly contradicts Government Code Section 65964(b) which requires a minimum
ten-year term for wireless facility permits. Draft Ordinance § 17 .56.120. Requiring
removal or modification of a legally-constructed facility would violate the vested rights
of permittees. This provision should be stricken.
The Draft Ordinance requires several revisions for consistency with the FCC's
Small Cells Order and state law. Verizon Wireless encourages you to suggest that the
Council defer this item, and work with wireless carriers on needed revisions.
Very truly yours,
�dW�
Paul B. Albritton
8 of 14 July 16, 2019, Item #3.8
Aaron M. Shank
ashank@porterwright.com
Porter Wright
Morris & Arthur LLP
41 South High Street
Suites 2800-3200
Columbus, Ohio 43215-6194
Direct: 614.227.2110
Fax: 614.227.2100
Main: 614.227.2000
www.porterwright.com porterwright
CHICAGO
CINCINNATI
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WASHINGTON, DC
9 of 14
July 16, 2019
VIA E-MAIL
City of Poway City Council
Poway City Hall
13325 Civic Center Drive
Poway, CA 92064
RE: AT&T's Comments on City of Poway's
Wireless Communication Facilities Ordinance
Dear Mayor Vaus, Deputy Mayor Grosch and Councilmembers Frank,
Leonard and Mullin:
I write on behalf of New Cingular Wireless PCS, LLC d/b/a
AT&T Mobility (AT&T) to provide comments on the City of Poway's
Wireless Communication Facilities Ordinance. AT&T appreciates that
the city recognizes the need to address changes in applicable state and
federal laws, including the Federal Communications Commission's
Infrastructure Order. 1 With more than 72% of Americans relying
exclusively or primarily on wireless telecommunications, it is especially
important to encourage responsible deployments consistent with
applicable law.
Unfortunately, the Proposed Ordinance would establish new
rules at odds with state and federal laws. AT&T respectfully asks that
the city consider these and other comments from the wireless industry
to help make needed changes. AT&T offers the following summary of
applicable laws along with specific comments on the Proposed
Ordinance.
Key Legal Concepts
The Federal Telecommunications Act of 1996 ("Act")
establishes key limitations on local regulations. The Act defines the
scope and parameters of the city's review of AT&T' s applications.
Under the Act, the city must take action on AT&T' s applications
"within a reasonable period of time."2 The FCC has established and
1 See Accelerating Wireless Broadband Deployment by Removing Barriers to
Irifrastructure Investment, Declaratory Ruling and Third Report and Order, FCC 18-133
(September 27, 2018) ("lrifrastructure Order"). 2 47 U.S.C. § 332(c)(7)(B)(ii).
Attachment B July 16, 2019, Item #3.8
City of Poway City Council
July 16, 2019
Page 2 of6
codified application "shot clocks" to implement this timing requirement. 3 And the FCC has made
clear that the city must grant all necessary approvals and authorizations within the applicable
shot clock.4 The Act also requires that the city's review of AT&T's applications must be based
on substantial evidence. 5 Under the Act, state and local governments may not unreasonably
discriminate among providers of functionally equivalent services. 6
The Act prohibits a local government from denying an application for a wireless
telecommunications facility where doing so would "prohibit or have the effect of prohibiting"
AT&T from providing wireless telecommunications services. 7 The FCC has ruled that an
effective frohibition occurs when the decision of a local government materially inhibits wireless
services. The FCC 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."9
Under the Infrastructure Order, the FCC established a standard for lawful fees, which
requires that: "(1) the fees are a reasonable approximation of the state or local government's
costs, (2) only objectively reasonable costs are factored into those fees, and (3) the fees are no
higher than the fees charged to similarly-situated competitors in similar situations."10 And the
FCC provides a safe harbor for presumptively reasonable fees: (a) $500 for non-recurring fees
for an application including up to five small cells, plus $100 for each small cell beyond five, or
$1,000 for non-recurring fees for a new pole to support small cells; and (b) $270 per small cell
per year for all recurring fees. 11 Higher fees are presumed to violate the Act. 12
The FCC also established a standard for local aesthetic regulations that they must be (1)
reasonable (i.e., has to be technically feasible), (2) no more burdensome than those applied to
other infrastructure deployments, and (3) objective and published in advance. 13 Regulations that
do not meet these criteria are preempted as they are presumed to effectively prohibit wireless
service in violation if the Act.14
3 See 47 C.F.R. §§ 1.6001, et seq. 4 See Infrastructure Order at ,M[ 132-13 7 (FCC concluded that shot clocks "apply to all authorizations a locality may
require, and to all aspects and steps in the siting process, including license or franchise agreements to access ROW,
building permits, public notices and meetings, lease negotiations, electric permits, road closure permits, aesthetic
approvals, and other authorizations needed for deployment"). 5 47 U.S.C. § 332(c)(7)(B)(iii).
6 47 U.S.C. § 332(c)(7XB)(i)(I). 7 47 U.S.C. § 332(c)(7)(B)(i)(II). 8 See Irifrastructure Order at ,M[ 35-42; see also, In the Matter of California Payphone Assoc. Petition for
Preemption, Etc., Opinion and Order, FCC 97-251, 12 FCC Red 14191 (July 17, 1997). 9 Infrastructure Order at� 37. 10 Id at� 50. II Id at�79. iz Id
13 See id at� 86.
14 See id
10 of 14 July 16, 2019, Item #3.8
City of Poway City Council
July 16, 2019
Page 3 of 6
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.
AT&T's Comments on the Proposed Ordinance
1.Master Communication Site License Agreement. Sections 17 .56.030(A) and
17.56.060(D)(l)(a) of the Proposed Ordinance require providers to enter into a master
communication site license agreement if submitting batched applications for multiple facilities at
multiple locations. While a license agreement may be require to attach to city-owned structures,
this would amount to an unlawful local franchise if required for non-city-owned structures. 15 The
city needs to amend the Proposed Ordinance to clarify that a license agreement is only necessary
for an attachment to city-owned structures in the public rights-of-way. Moreover, requiring an
agreement as a precondition for submitting batched applications is inconsistent with the
Infrastructure Order and the corresponding regulations.16
In addition, Section 17 .56.020(F) states that a master communication site license
agreement requires documentation including insurance certificates. AT&T should be permitted
to self-insure any insurance required under such an agreement.
2.Improvement Plan and Inspection. Section 17.56.030(A) requires an "improvement plan
and inspection" for new support structures and replacement support structures. It is unclear what
such an "improvement plan" is or entails, so the city needs to clarify this requirement.
3.Site Justification Analysis. The city must eliminate its requirement, in Section
17.56.060(D)(l)(d), for "site justification letter(s)." In particular, the city cannot require an
analysis of coverage need, as the FCC rejected all coverage gap tests.17 Indeed, the FCC
explained that requiring this sort of analysis "reflect[ s] both an unduly narrow reading of the
statute [Section 332(c)(7)(B)(l)(ii) of the Act] and an outdated view of the marketplace."18
4.Compliance Report. The city needs to revise Section 17.56.060(D)(l)(f), which requires a
qualified electrical engineer to prepare a report specifying that a wireless facility complies with
15 See Pacific Tel. & Tel. v. San Francisco, 51 Cal.2d 766, 771 (Cal. 1959) (held the statewide franchise granted to
telephone companies comes "without the necessity for any grant by a subordinate legislative body"); T-Mobile West,
LLC v. City and County of San Francisco, 6 Cal.5th 1107, 1121-22 (Cal. 2019) ("section 7901 grants telephone
corporations the right to install lines on public roads without obtaining a local franchise"); City of Huntington Beach
v.Public Utilities Com., 214 Cal. App. 4th 566, 584-587 (Cal. App. 2013).16 See 47 C.F.R. § 1.6003(c)(2) and Infrastructure Order at ,M[ 113-15.11 See Infrastructure Order at 140, 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)"). 18 Id at 140.
11 of 14 July 16, 2019, Item #3.8
City of Poway City Council
July 16, 2019
Page 4 of 6
the FCC's radiofrequency exposure rules "in inhabited areas within 500 feet of the facility." And
the city should eliminate the last sentence of Section 17.56.080(H), which purports to allow the
city to require independent verification of the engineer's report at any time during operations.
First, FCC rules do not require this type of assessment for sites that are categorically excluded
under its regulations. Second, the city cannot specify that the report must be prepared by an
electrical engineer as other individuals are qualified to do so. Indeed, Section 6746 and 6746.1 of
the California Professional Engineers Act includes an exemption that authorizes employees of
communications companies to prepare such reports. And third, the City cannot set its own
standards for measuring radiofrequency exposure -such as requiring assessment within a certain
distance from the facility or requiring periodic assessments -as the FCC regulates radio
frequency exposure standards to the exclusion of state and local governments.
5.Indemnification. The city's indemnification provision in Section 17.56.060(E) needs to
carve out exceptions to indemnity in instances of the city's own negligence.
6.Security. In Section 17.56.060(F), applicants must submit a security "in an amount to be
determined by the City Engineer" to cover facility removal. The city should, instead, set forth a
specific amount for its bond requirement. Moreover, this requirement is unlawful under the
FCC' s standards if it is not imposed with respect to other infrastructure deployments.
7.Overall Height of Facilities Placed on Street Lights. Section 17.56.080(B) states that no
portion of a wireless facility placed on a street light shall be more than five feet above the light
pole portion of the street light. While AT&T appreciates the city's interest in protecting
aesthetics, the limit may actually harm aesthetics by preventing AT&T' s ability to deploy its
most stealthy facilities. For example, AT&T' s typical streetlight-top design extends up to six feet
above the pole top, which is a design cities typically favor. Furthermore, this overall height limit
may effectively prohibit wireless services, especially in areas where lower attachment heights are
unavailable on existing poles in a particular area.
8.Prohibition on Ground-Mounted Equipment. Section 17.56.080(8) also prohibits ground
mounted equipment unless no feasible alternative exists. 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. What's more, based on a view of existing infrastructure deployments in Poway,
including existing ground-mounted utility cabinets, this prohibition appears to be unlawful under
the FCC's standards because it is not imposed with respect to other infrastructure deployments.
9.Concealment. Many of the city's design standards in the Proposed Ordinance require
concealment. But under the FCC's aesthetic standard for small cells, concealment cannot be
required to a greater extent than imposed on other infrastructure deployments in the right-of-way.
For example, non-concealed electric distribution facilities are located on utility poles around the
city.
12 of 14 July 16, 2019, Item #3.8
City of Poway City Council
July 16, 2019
Page 5 of6
10.Undergrounding. Several provisions in the Proposed Ordinance mandate undergrounding
of equipment. These requirements must be revised to the extent necessary to avoid unlawful
discrimination or effectively prohibiting wireless services. Wireless facilities cannot operate with
all equipment underground. Antennas must be above ground in order to broadcast and receive
and radio units must be placed above ground in order to be near enough to the antennas to
function properly.
11.Prohibiting Sites on Existing Utility Poles or Lines and Traffic Signals. AT&T objects to
Section 17.56.090(A), which broadly prohibits locating facilities on any existing utility poles.
Here again, this prohibition is blatantly discriminatory as other infrastructure deployments are
placed on existing utility poles all around the city. These categorical bans on attaching wireless
facilities to certain structures will also effectively prohibit wireless services in certain parts of the
city in violation of the Act.
In addition, Section 17.56.090(D)(l)'s requirement that facilities be set back a minimum
of 48 inches from traffic signals seems to prohibit installations on traffic signals. The FCC made
clear that its interpretations apply to all government owned or controlled structures within the
right-of-way.19 Moreover, it makes sense to allow small cell installations on vertical structures
used to support traffic signals because it permits the wireless provider to cover multiple
directions from one location, which a mid-block location may not support.
12.Preferred Support Structures. In addition to banning attachments to utility poles, the city
prefers that providers "make all commercially reasonable efforts" to locate wireless facilities on
existing street lights in Section 17.56.090(C) of the Proposed Ordinance. And providers mus t
document infeasibility if new or replacement support structures are required. The city cannot
force AT&T to locate its facilities on street lights, and cannot ban use of other poles or pole
materials. AT&T has a state law right to set poles in the right-of-way under Section 7901. In
addition, these requirements steer wireless installations onto city-owned structures in violation of
state law, which prohibits the city from requiring "that all wireless telecommunications facilities
be limited to sites owned by particular parties."20 And for small cells, these restrictions are
preempted by the FCC' s aesthetic standard to the extent they are more burdensome than rules
applied to other infrastructure deployments.
13.Location Preferences. Section 17.56.090(D)(7) requires new or replacement support
structures to be at least 50 feet away from residential structures and prohibits structures along the
street frontage adjacent to any school, daycare center, recreational area or park. The city can
articulate appropriate location preferences, but AT&T has a legal right to place its facilities in the
public rights-of-way. Further, the FCC's aesthetic standard for small cells precludes the city
from imposing these restrictions on wireless applications when the city does not require it from
other infrastructure deployments.
19 See Infrastructure Order at 'I[ 69. 2° California Government Code Section 65964( c ).
13 of 14 July 16, 2019, Item #3.8
City of Poway City Council
July 16, 2019
Page 6 of 6
The city must rethink these requirements because, in practice, these limits will likely ban
all wireless facilities throughout large portions of the city and prohibit AT&T from attaching to
street lights where the city prefers providers to locate facilities. Additionally, regarding small cell
deployments, these low-profile, low-power facilities need to be placed near customers to provide
and improve service. Thus, they need to be placed near where residents rely on wireless
connectivity the most: in their homes and businesses. Plus, access to robust wireless services
near schools enhances safety, and small cells are typically used to offload network traffic that is
often congested near high-usage areas such as schools.
14.Permit Term. The city must remove Section 17 .56.120 of the Proposed Ordinance, which
purports to allow the city to "reconsider" a permit three years after approval. This is unlawful
because state law forbids limiting the duration of a permit for a wireless communications facility
to less than 10 years.21
Conclusion
AT&T appreciates the city's initial efforts to adapt its wireless facility siting regulations
to accommodate new and emerging technologies and changes in law, but the city must take care
to craft an ordinance that will comply with applicable laws. By addressing the items we raise
here, the city will go a long way toward encouraging deployments consistent with state and
federal policies and to the great benefit of the city's residents and businesses.
AMS:sb 21 See California Government Code Section 65964(b).
DMS/12500476v.1
14 of 14 July 16, 2019, Item #3.8