Wireless Telecommunications Facilities (WTFs) Appeals
The City of Seaside CA denied four 4G “small cell” towers and another cell tower at a church on 9/l9/2019. The reasons for denial were primarily based on visual/View shed impacts and their municipal code that projects will not adversely impact the character of the community and its rights of way.
A councilman stated they should not Violate the investment that residents make in their homes. Also that the Public Rights of Way are for the PUBLIC and therefore the public needs to be heard. The Verizon attorney stated, “We need 4G as a backbone for 5G.” (At 3:38:33)
Notes from the Seaside council video about their reasons for denial of the so-called “Small Cells”. Attorney Tripp May works for Telecom Law Firm. He might have been their attorney, but I didn’t note that.
Link to Seaside municipal code
Mayor lan Oglesby comments:
- Creation of new blight.
- Co-location will grow and further negatively affect aesthetics.
- Will change the community character in a negative way.
- Will reduce property values.
- City’s general plan is moving toward underground utilities.
- Will affect Seaside view shed.
- Towers will incommode the community because the right of way is the citizens right of way, and they get to weigh in heavily on what should be there and what it should look like.
At 4:10:38 in the video, a council member stated the following applied:
Municipal code 1754.040 E.2
Findings required for approval. The approval of a Use Permit or Minor Use Permit for a communication facility shall require that the review authority first make the following findings, in addition to those required for Use Permit approval by Section 17.62070 (Use Permit and Minor Use Permit):
The communication facility complies with all applicable requirements of this chapter; and
The communication facility will not adversely impact the character and aesthetics of any public right of way..
At 4:10:38 in the video, Municipal code 17.54.060 A.1.d says
"Communication facilities other than towers and antennas shall be located either within a structure, underground, in a rear yard (not visible from a public right~of way) or on a screened roof top area. A ground-mounted facility that is located within a front or side setback or within a public right-of-way shall be underground so that the facility will not detract from the image or appearance of the City.
- a requirement that the proposed plan is consistent with the city’s General Plan re: improving appearance of neighborhood.
- Land use policy: WTFs must be dompatible with surrounding uses based on General Plan policy and goals.
We are not San Jose. Experts say property value is affected. Seaside has lower property value—and the residents investments in their homes should be protected.
Urban design policy 2.1 blocked views.
Legal Framework Overview
1996 Telecom Act
- 47 USC § 332(c)7
- 47 USC § 253
2012 Spectrum Act
- 47 USC § 1455(a)
- Shot Clock Declaratory Ruling
- Infrastructure Order (47 CFR § 1.4001 et seq.)
- FCC 18-111 (August Order)
- FCC 18-133 (August Order)
- Article XI, § 7 — "A county or city may make and enforce within its limits all local, police, sanitary, and other ordinances and regulations not in conflict with general laws"
Public Utilities Code
- CPUC § 2902 — municipalities cannot surrender police powers to the CPUC to regulate relationship between the public and utilities
- CPUC § 7901 — grants to telephone corporations a state-wide franchise to access and use the public rights-of-way to the extent necessary to provide telephone services; cannot incommode public use; preserves aesthetic control over ROW facilities
- CPUC § 7901.1 — preserves reasonable time, place and manner regulations; regulations must be applied on a non-discriminatory basis
Public Utilities Code
- CA Govt Code § 50030 — permit fees for the placement, installation, repair, or upgrading of telecommunications facilities shall not exceed the reasonable costs of providing the service
- CA Govt Code § 65964.1 (from 2015 Assembly Bill 57) — A collocation or siting application for a WTF is deemed approved if a 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 FCC Report and Order, 29 FCC Rcd. 12865 (2014), which sets shot clocks for new WTF construction at 150 days and WTF co-location or modification at 90 days.
Federal 47 U.S.C. § 332(c)7
- Cannot effectively prohibit telecommunications service
- Cannot unreasonably discriminate between wireless carriers
- Cannot base decisions about placement, construction and modification of Wireless Telecommunications Facilities (WTFs) on the environmental effects of RF-EMR exposures
47 USC § 253
- § 253(a) preempts local regulations that effectively prohibit any entity’s ability to provide telecommunications service
- § 253(c) preserves competitively neutral, non-discriminatory local ROW management rules
- 18-111: preempts dejure and de facto moratoria; one-touch-make ready
- 18-133: rewrites judicial interpretations effective prohibition standard under § 332 and § 253; New Shot Clocks
- New evidentiary presumptions and remedies
FCC 18-133 Effective Prohibitions
- General Rule: effective prohibition when it materially limits any competitors or potential competitors to compete
- Fee Requirements: cost-based and consistent for all competitors
- Non-Fee Requirements (e.g. Aesthetics): reasonable, objective and published in advance
FCC 18-133 Shot Clock Rules
- 60 days for "collocations", eligible facilities request
- 90 days small wireless facilities on new structures
- 150 days for everything else