Item 1.4 - Additional Material posted 8-2-19 iiit
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ADDITIONAL MATERIAL
(Agenda Related Writings/Documents provided to City Council or Staff after distribution of the
Agenda Packet for the August 6, 2019 Council Meeting)
DATE: August 2, 2019
TO: Honorable Mayor and Members of the City Council
FROM: Faviola Medina, CMC, City Clerk "OK
CONTACT: (858) 668-4535 or FMedinapoway.orq
SUBJECT: Item 1.4-Second Reading and Adoption of Ordinance No. 829 entitled "An
Ordinance of the City of Poway, California, Adding Chapter 17.56 to the
Poway Municipal Code Regulating Wireless Communication Facilities."
Attached please find correspondence received on Friday, August 2, 2019, after the distribution
deadline.
Reviewed/Approved By: Reviewed By: Approved By:
Wendy Kaserman Alan Fenstermacher Ch is H-pine
Assistant City Manager City Attorney City Manager
1 of 6 August 6, 2019, Item #1.4
From:Jasmine Pernicano
To:Jasmine Pernicano
Subject:FW: AT&T"s Comments on City of Poway"s Revised Draft Wireless Communication Facilities Ordinance
Date:Friday, August 2, 2019 2:52:14 PM
Attachments:AT&T Comments August 2 2019.pdf
ATT00001.htm
From: Shank, Aaron M. [mailto:AShank@porterwright.com]
Sent: Friday, August 2, 2019 2:21 PM
To: Steve Vaus <SVaus@poway.org>; Dave Grosch <DGrosch@poway.org>; Caylin Frank
<CFrank@poway.org>; Barry Leonard <BLeonard@poway.org>; John Mullin <JMullin@poway.org>
Cc: Alan Fenstermacher <AFenstermacher@poway.org>; 'MCGEE, KEVIN' <km4510@att.com>
Subject: AT&T's Comments on City of Poway's Revised Draft Wireless Communication Facilities
Ordinance
Dear Mayor Vaus, Deputy Mayor Grosch and Councilmembers Frank, Leonard and Mullin, and Mr.
Fenstermacher: Please accept this letter on behalf of AT&T to provide comments on the City’s
revised proposed wireless communication facilities ordinance. Please feel free to contact us if you
have questions.
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, Suite 2900 / Columbus, OH 43215
/ SEE WHAT INSPIRES US: porterwright.com
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
2 of 6 August 6, 2019, Item #1.4
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
CHICAGO
CINCINNATI
CLEVELAND
COLUMBUS
DAYTON
NAPLES
PITTSBURGH
WASHINGTON, DC
August 2, 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 the City of Poway's Revised 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
revised wireless communication facilities ordinance (“Proposed
Ordinance”). AT&T commends the city for taking time to work with
wireless providers on necessary revisions to its wireless facilities siting
regulations. Despite the recent meeting held with city staff and wireless
providers where AT&T and others identified various sections of the
Proposed Ordinance that pose problems, the Proposed Ordinance still
requires further revisions to comply with both state and federal laws,
including the Federal Communications Commission’s Infrastructure
Order.1 AT&T offers these comments on particularly problematic
provisions.
AT&T’s Comments on the Proposed Ordinance
1. Location Preferences. In Section 17.56.090(D)(7), following the
city’s revisions, providers must locate new support structures at least 50
feet away from residential structures, and the city still prohibits new
structures along the street frontage adjacent to any school, daycare
center, recreational area or park. AT&T appreciates that this section no
longer applies to replacement poles. However, these limits on the
placement of new poles will likely still ban many wireless facilities
throughout large portions of the city, which will result in an effective
prohibition of wireless services. And while the city can articulate
appropriate location preferences, AT&T has a legal right to place its
facilities in the public rights-of-way. Further, the FCC’s aesthetic
1 See Accelerating Wireless Broadband Deployment by Removing Barriers to
Infrastructure Investment, Declaratory Ruling and Third Report and Order, FCC 18-133
(September 27, 2018) (“Infrastructure Order”).
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City of Poway City Council
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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.
Regarding small cell deployment, small cells are low-profile, low-power facilities that
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. 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 residential neighborhoods
and schools. The city must take additional time to rethink these requirements.
2. Master Communication Site License Agreement. Sections 17.56.030(A) and
17.56.060(D)(1)(a) of the Proposed Ordinance still 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 required to attach to city-owned structures,
this would amount to an unlawful local franchise if required for non-city-owned structures.2
During our meeting, city officials agreed that the city does not intend to seek license agreements
for attachments to non-city structures. Thus, 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.
3. Improvement Plan and Inspection. Section 17.56.030(A) requires an “improvement plan
and inspection” for new support structures and replacement support structures. It remains unclear
what such an “improvement plan” is or entails, so the city needs to clarify this requirement.
4. Site Justification Analysis. The city must eliminate its requirement, in Section
17.56.060(D)(1)(d), for “site justification letter(s).” In particular, AT&T reiterates that the city
cannot require an analysis of coverage need, as the FCC rejected all coverage gap tests.3 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)(I)(ii) of the Act] and an outdated view of the marketplace.”4
5. Compliance Report. The city should further revise Section 17.56.060(D)(1)(f), which
requires a qualified electrical engineer to prepare a report specifying that a wireless facility
complies with the FCC’s radiofrequency exposure rules “in inhabited areas within 500 feet of the
facility.” FCC rules do not require this type of assessment for sites that are categorically
excluded under its regulations. And the city cannot set its own standards for measuring
radiofrequency exposure as the FCC regulates radio frequency exposure standards to the
exclusion of state and local governments.
2 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).
3 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)”).
4 Id. at ¶ 40.
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City of Poway City Council
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6. Indemnification. The city’s indemnification provision in Section 17.56.060(E) still needs
to carve out exceptions to indemnity in instances of the city’s own negligence.
7. 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. This requirement is unlawful under
the FCC’s standards if it is not imposed with respect to other infrastructure deployments.
8. Overall Height. AT&T appreciates that the city made some revisions to Section
17.56.080(A) to clarify its requirements for the overall height of support structures housing
wireless facilities. This revised section, however, does not allow facilities to extend the height of
an existing support structure by more than five feet. And Section 17.56.080(B) still states that no
wireless facility placed on a street light can be more than five feet above the light pole portion of
the street light. While AT&T does appreciate the city’s interest in protecting aesthetics, the limits
in Sections 17.56.080(A)&(B) 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, these overall
height limits may effectively prohibit wireless services, especially in areas where lower
attachment heights are unavailable on existing poles in a particular area.
9. Prohibition on Ground-Mounted Equipment. Section 17.56.080(B) 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, this
prohibition appears to be unlawful under the FCC’s standards because it is not imposed with
respect to other infrastructure deployments.
10. Concealment. Many of the city’s design standards in the Proposed Ordinance require
concealment. While AT&T is willing to work with the city on concealment, 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, AT&T notes
again that non-concealed electric distribution facilities are located on utility poles around the
city.
11. 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.
12. Prohibiting Sites on Existing Utility Poles or Lines and Traffic Signals. AT&T objects
again to Section 17.56.090(A), which broadly prohibits locating facilities on any “existing
overhead utility poles or lines.” Here again, this prohibition is blatantly discriminatory as other
5 of 6 August 6, 2019, Item #1.4
City of Poway City Council
August 2, 2019
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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)(1)’s requirement that facilities be set back a minimum
of 48 inches from traffic signals appears 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.5 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. During the meeting
with the city and wireless providers, city officials recognized that providers should be permitted
to collocate on traffic signals in the city, but the Proposed Ordinance still reflects this broad
prohibition. The city needs to revise this section to permit locating facilities on traffic signals.
13. Preferred Support Structures. In addition to banning attachments to utility poles, the city
continues to prefer 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 must document infeasibility if new or replacement support structures are required. The
city cannot force AT&T to locate its facilities on streetlights, 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.”6 And for small cells, 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.
Conclusion
There remain some provisions of the city’s Proposed Ordinance that need to be revised to
come in line with applicable laws. AT&T would be happy to work with the city to develop the
Proposed Ordinance in a manner that will foster rather than frustrate responsible wireless facility
deployments.
Sincerely,
Aaron M. Shank
cc: Alan Fenstermacher, City Attorney
5 See Infrastructure Order at ¶ 69.
6 California Government Code Section 65964(c).
6 of 6 August 6, 2019, Item #1.4