Loading...
HomeMy WebLinkAboutCORRESPONDENCE - 50AA rCity Council Meeting Correspondence 1�911II�� 4 Item 50A No, FIRST READING OF AN ORDINANCE REPEALING AND REENACTING IN ITS ENTIRETY ARTICLE X OF CHAPTER 33 OF THE SANTA ANA MUNICIPAL CODE REGARDING TELECOMMUNICATIONS FACILITIES IN THE PUBLIC RIGHT-OF-WAY Date of Name Correspondence 1 91412018 Paul B. Albritton 2 9/4/2018 Judy Woolen Representative of Mackenzie & Albritton LLP (Verizon Wireless) AT&T External Affairs In Favor of In opposition RA*. of RA*. Yes Yes Comment *RA - Recommended Action Tuesday, September 04, 2018 Page 1 of 1 MACKENZIE & ALBRITTON LLP September 4, 2018 VIA EMAIL Mayor Miguel Pulido Mayor Pro Tern Michele Martinez Councilmembers Vicente Sarmiento, Jose Solorio, David Benavides Juan Villegas and Sal Tinajero City Council City of Santa Ana 20 Civic Center Plaza Santa Ana, California 92701 Re: Draft Ordinance Telecommunications Facilities in the Public Right -of -Way Council Agenda Item 50(A), Sptember 4, 2018 Dear Mayor Pulido, Mayor Pro Tern Martinez and Councilmembers: We write again on behalf of Verizon Wireless to provide comment on the proposed ordinance regulating wireless facilities in the right-of-way (the "Draft Ordinance"). Verizon Wireless appreciates minor revisions that respond to our prior letter of August 20, 2018 by removing submittal requirements that would exceed the City's authority. However, there remain numerous issues to be addressed before the Council conducts first reading, including requirements that contradict state and federal law. We emphasize that the City will miss an opportunity to incentivize small facilities on City -owned poles that generate revenue for the City. This is because there is no exemption for these facilities in the Draft Ordinance. Verizon Wireless has been working cooperatively with City staff to draft a master license agreement. As pole owner, the City has full discretion over facility design and other factors that can be included in the license agreement. The wireless permit issued under the Draft Ordinance would be duplicative and unnecessary. It would add additional cost and time, and it would discourage wireless carriers from using City -owned poles where they could use utility poles or place new poles. Verizon Wireless strongly encourages the Council to exempt facilities on City - owned poles under a license agreement. As we previously explained, several Draft Ordinance provisions contradict California Public Utilities Code Section 7901 which grants telephone corporations such as Verizon Wireless a statewide right to place their equipment in any right-of-way, including new poles. To avoid violating Section 7901, the Draft Ordinance cannot prefer locations Santa Ana City Council September 4, 2018 Page 2 of 2 outside the right-of-way on private property, nor can it discourage siting in the right-of- way adjacent to property zoned or used for residential purposes. Draft Ordinance §§ 33- 233(a), 33-233(b). Further, the City cannot require coverage maps because Verizon Wireless does not need to prove the necessity of its facilities where Section 7901 grants it the right to use the right-of-way. Draft Ordinance § 33-236(a)(8). Any denial based on these unlawful requirements will lead to challenges, and they should be stricken from the Draft Ordinance. We also previously described how the Draft Ordinance is inconsistent with federal law because it requires applicants to demonstrate that new poles or facilities in underground utility areas are necessary to avoid a prohibition of service. Draft Ordinance §§ 33-236(a)(17), 33-244(a). This is based on an erroneous interpretation of the federal Telecommunications Act which protects wireless carriers from unlawful denials but does not require them to prove a prohibition of service to obtain local approval. 47 U.S.C. § 332(c)(7)(B)(i)(II). That determination is left to federal courts, not cities. 47 U.S.C. § 332(c)(7)(B)(v). Requiring applicants to show a prohibition of service would also violate the rights of telephone corporations under state law, Section 7901. These Draft Ordinance provisions will invite valid legal challenges, and they must be stricken. Other issues raised in our prior letter have not been addressed. These include the permit renewal of only five years which should be 10 years to comply with the minimum wireless permit terms required by Government Code Section 65964(b). Draft Ordinance § 33-241. Height limits, including the overly strict limit of 35 feet near residences, should clearly incorporate additional antenna height required by state safety regulations (Public Utilities Commission General Order 95 Rule 94). We note that additional height expands signal coverage, allowing fewer facilities to serve an area. Draft Ordinance § 33-245(b). Subjective findings and standards such as "visual compatibility" should be stricken because they could be used to deny facilities that applicants have carefully designed to comply with objective standards of the Draft Ordinance and Director's guidelines. Draft Ordinance §§ 33-240(c)(2), 33-245(a). The Draft Ordinance is not ready for first reading. The Council should add an exemption to encourage small facilities on City -owned poles under a license agreement. Requirements that contradict Public Utilities Code Section 7901 and the federal Telecommunications Act should be eliminated. Verizon Wireless would be pleased to participate in a discussion regarding network design and legal considerations. We encourage the Council to defer first reading and direct staff to work with industry on further revisions. Very truly yours, Paul B. Albritton cc: Sonia R. Carvalho, Esq. Yasmin Vazquez Orozco, Norma From: Huizar, Maria Sent: Tuesday, September 04, 2018 4:10 PM Cc: eComment Subject: ECOMMENT: Santa Ana Ordinance Review - Council Meeting 9/4/18- Santa Ana Mayor and City Council, Ecomment for your review and consideration of Agenda Item 50A. From: Judy Woolen [ Sent: Tuesday, September 4, 2018 3:46 PM To: Higgins, Taig <THiggins@santa-ana.org> Cc: Jory Wolf < ; Huizar, Maria <MHuizar@santa-ana.org> Subject: FW: Santa Ana Ordinance Review - Council Meeting 9/4/18- Santa Ana Hi Taig, AT&T thanks the City for working on the development of the Telecommunications in the Public Right of Way Ordinance. Noted below are comments to specific sections of the Ordinance AT&T would like to have taken into consideration. Also, the Guidelines mentioned in the Ordinance are still not defined and AT&T would need to see the Guidelines in order to properly comment on the proposed Ordinance. --Section 33-230 (c) To minimize the environmental and aesthetic impacts of wireless facility installations in the public right-of-way. What are the environmental and aesthetic impacts? --Section 33-231 (w) Wireless facility' "facility' or "facilities" mean any fixed facility that transmits and/or receives electromagnetic waves using FCC -licensed or unlicensed spectrum. It includes, but is not limited to, antennas and/ or other types of equipment for the transmission or receipt of such signals, poles, communications monopoles or similar structures supporting such equipment, related accessory equipment, and other accessory installations. City should add "Small Cells" definition specific to small cells as a type of wireless facility attached to poles/structures in the ROW, different than a MACRO site. --Section 33-236 (J) A description of three alternative sites that would also accommodate the proposed Facilities, and a brief explanation as to why -the proposed site was selected ( Le., proximity to power source). This is a MACRO siting requirement section that should not apply to small cells site location selection. There could be multiple small cells required in a defined area. --Section 33-237 Applications for wireless facilities comprising a DAS shall be submitted simultaneously and each Individual location within the system shall be processed and considered for approval separately. Permitting fees will be assessed per application. Each location will be evaluated and must comply with the installation design guidelines as detailed in the Guidelines. DAS siting is different than SMALL Cells. Again, the City needs to include a specific definition section for small cells. I Look forward to seeing you at the Council meeting this evening. Regards, Judy Woolen AT&T External Affairs ( 50A Correspondence was received for the August 21, 2018 City Council meeting, item was continued to the September 4, 2018 City Council meeting. :~.9Ehr Council•Correspondence 'Illpllpllgl�: , Item 50A No. ORDINANCE REGARDING TELECOMMUNICATIONS FACILITIES IN THE PUBLIC RIGHT-OF-WAY Date of Name Correspondence 1 8/20/2018 Paul 8, Albritton 2 8/21/2018 pan Vozenllek Representative of Mackenzie & Albritton LLP (on behalf of Verizon Wireless) AT&T Area Manager In Favor of In apposition. Comment RA*. of RA*. Yes Yes *RA - Recommended Action Tuesday, August 21, 2018 Page 1 of 1. MACKENZIE &a AL13RITTON LLP 155 SANSOME STREET, SUITE 800 SAN FRANCISCO, CALIFORNIA 94104 TELEPHON FACSIMILB FACSILE August 20, 2018 VIA EMAIL Mayor Miguel Pulido Mayor Pro Tom Michele Martinez Councilmembers Vicente Sarmiento, Jose Solorio, David Benavides Juan Villegas and Sal Tinajero City Council City of Santa Ana 20 Civic Center Plaza Santa Ana, California 92701 Re: Draft Ordinance Telecommunications Facilities in the Public Right -of -Way Council Agenda Item SOW, August 21, 2018 Dear Mayor Pulido, Mayor Pro Terri Martinez and Councilmembers: We write on behalf of Verizon Wireless to provide comment on proposed amendments to Santa Ana Code of Ordinances Chapter 33 Article X regarding wireless facilities in the right-of-way (the "Draft Ordinance"). Verizon Wireless appreciates revisions by staff in response to our prior comments, including removal of an unlawful finding requiring a coverage gap. However, there remain numerous provisions that conflict with state or federal law. A preference for private property locations ignores Verizon Wireless's statewide franchise to place its telephone equipment in any right-of- way. The Draft Ordinance misinterprets federal Telecommunication Act protections for wireless carriers by requiring that applicants prove new poles will avoid a prohibition of service, The City may wish to follow the example of other jurisdictions that exempt facilities on City -owned poles from wireless permit requirements. The Draft Ordinance would greatly benefit from further review by staff to address the concerns raised by industry, particularly provisions that violate state or federal law. For this reason, we urge the Council to defer introduction of the Draft Ordinance. Our comments on the Draft Ordinance are as follows: Facilities on City -Owned Poles Should Be Exempt from Permit Requirements. For any right-of-way poles such as street lights owned by the City, the City will have complete discretion over design and other factors in its proprietary right as pole '01 Santa Ana City Council August 20, 2018 Page 2 of 5 owner. The permit authorized under the Draft Ordinance would be umiecessary, as designs, terms and conditions can be memorialized in a license agreement. Numerous cities have adopted an exemption from wireless permit requirements for facilities on City -owned poles pursuant to a license agreement; only an encroachment permit is required. We encourage the City to consider such an exemption from Draft Ordinance requirements. As discussed in our prior comments, the City cannot direct applicants to locations outside the right-of-way (private property) because Public Utilities Code Section 7901 grants telephone corporations such as Verizon Wireless a statewide right to place their telephone equipment in the right-of-way. Draft Ordinance § 33-233(a), Any denial based on a preference for private or public property locations would violate Verizon Wireless's rights under state law. Further, wireless facilities on private property generally involve larger high -power antennas and different coverage objectives than right-of-way facilities. These factors alter network designs. By requiring facilities on private property, the City would effectively dictate the technology used by wireless providers to serve their customers. However, the technical and operational aspects of wireless facilities are regulated by the Federal Communications Commission (the "FCC"), and federal courts have confirmed that local jurisdictions may not dictate the technology used by wireless providers to provide service. See New York SMSA v. Town of Clarkstown, 612 F.3d 97 (2d Cit. 2010). This provision must be stricken. The City should not discourage siting adjacent to residential property because Section 7901 grants Verizon Wireless the right to place telephone equipment "along and upon any public road or highway" (emphasis added) and does not favor or disfavor certain right-of-way locations. Draft Ordinance § 33-233(b). To align with Section 7901, the City should treat wireless facilities in all rights -of -way equally. Certain Submittal Requirements Contradict State or Federal Law. There is no reason to require submittal of coverage maps because there is no related finding in the Draft Ordinance. Draft Ordinance § 33-236(a)(8). Any requirement to show the need of a right-of-way facility is preempted. This is because Section 7901 grants telephone corporations a statewide right to use the right-of-way. The City cannot require Verizon Wireless to demonstrate the need for a right-of-way facility through demonstration of coverage, nor can the City deny a right-of-way wireless facility over questions of need. As the result of recent court decisions, San Francisco was obligated to remove the "necessity" requirement from its right of -way wireless ordinance. I This submittal requirement must be stricken. ',See T-Mobile West LLC v. Qy and County of Sara Francisco (2016) 3 Ca1,App.5th 334, 342-343, on review by the California Supreme Court (Case No. 5238001). Santa Ana City Council August 20, 2018 Page 3 of 5 The Draft Ordinance requires submittal of network plans for additional or anticipated facilities for tip to five years, but this is not relevant to an individual application for a right-of-way facility which must be considered on its own merits. Draft Ordinance § 33-236(a)(10). Again, there is no related finding. Projections of future network needs would be entirely speculative due to changing voice and data demand, varying use patterns and new technology. They rarely shed light on the actual deployments of a dynamic wireless network. Instead, the City should consider requiring applicants to provide a list of existing facilities and pending applications. Two submittal requirements appear to involve descriptions of wireline backhaul connections irrelevant to individual wireless facility applications. Draft Ordinance §§ 33- 236(a)(15), 33-236(b)(2). Backhaul lines are typically provided by a different company, not the wireless facility permittee, and they are beyond the scope of a single wireless facility permit. Vague references to "deployment outside current site" (a term unique to eligible facilities requests) and "wireline 'interconnection to other locations" must be stricken. At most, the City can require descriptions of on -site telecommunications interconnect boxes to be installed and owned by the wireless facility permittee, as referenced in Draft Ordinance § 33-236(a)(13)(B)(iii). The FCC limits the information the City can require for eligible facilities requests to that "reasonably related to determining whether the request" qualifies, meaning no substantial change to an existing facility. See 47 C.P.R. § 1.40001(c)(1). The requirements to describe "any deployment outside the public -right-of-way necessary to complete the project" and to provide any prior denied applications are irrelevant to the substantial change criteria for a right-of-way facility. Draft Ordinance §§ 33- 236(b)(1)(F), 33-236(b)(3). These requirements exceed the City's authority under FCC rules and must be stricken. Permit Requirements Must Align with State and Federal Law. For right-of-way facilities, the City should avoid subjective findings and aesthetic standards such as visual compatibility. Draft Ordinance §§ 33-240(c)(2), 33-245(a). In the recent T-Mobile West LLC ruling, a state appeals court upheld standards of San Francisco's right-of-way code that are entirely based on specific objective aesthetic criteria. Review under objective standards is appropriate for the administrative Director approval granted under the Draft Ordinance, whereas this subjective finding may be used to deny facilities that otherwise meet objective standards. We note that, according to staff, design guidelines referenced in the Draft Ordinance have not been drafted. We encourage the Director to develop guidelines that accommodate small cells that provide needed network capacity with minimal hnpact, typically involving a single cylindrical antenna up to four feet tall plus associated pole -mounted equipment up to nine cubic feet. For new poles and areas with underground utilities, the Draft Ordinance requires applicants to demonstrate that a facility is necessary to avoid a prohibition of service. Santa Ana City Council August 20, 2018 Page 4 of 5 Draft Ordinance §§ 33-236(a)(18), 33-244(a). The referenced provision of the Telecommunications Act protects wireless carriers from unlawful denials but does not require carriers to prove a prohibition of service to obtain local approval. 47 U.S.C. § 332(c)(7)(B)(i)(Il). That determination is left to federal courts, not local jurisdictions. 47 U.S.C. § 332(c)(7)(B)(v). Section 7901 grants telephone corporations the right to erect new poles in the right-of-way where aesthetically preferable (which slender new poles may be). Under this state law, there is no requirement to demonstrate a prohibition of service to secure approval of a right-of-way facility. This requirement exceeds the City's authority. The Draft Ordinance should be revised allow new poles where applicants demonstrate there are no available options that are aesthetically preferred. Permit terms must be renewed for 10 years, not five years. Draft Ordinance § 33- 241. Government Code Section 65964(b) presumes that wireless permits terms of less than 10 years are unreasonable absent safety or substantial land use reasons. Compliant facilities pose no safety or land use issues. We note that the Draft Ordinance includes a notice radius of 150 feet for Tier 2 facilities and 300 feet for Tier 3, but these tiers will be defined in the Director's guidelines not yet drafted. Draft Ordinance § 33-239(b). The Council staff report suggests that small cells will be subject to the smaller notice area. This is appropriate because small cells pose less impact. We encourage the Director to define small cells (Tier 2) to accommodate typical wireless carrier designs for small facilities. As stated by each of the carriers in prior comments, 300 foot notice is excessive for a right-of-way facility, and we reiterate our recommendation that notice be limited to 150 linear feet along the subject right-of-way. Radius noticing is inappropriate because it captures properties fronting other streets that are not impacted by a proposed right-of-way facility. Standards Should Be Revised to be PracticaL While the Draft Ordinance allows a waiver of height requirements if necessary to comply with Public Utilities Commission General Order 95, we suggest incorporating this state regulation into the provision allowing a.height increase of seven feet above a pole. Draft Ordinance § 33-245(b). This can be accomplished by adding to the first sentence the phrase `plus any additional height required to elevate antennas and associated elements above electrical supply conductors in compliance with General Order 95." Of course, this will apply only to utility poles carrying electricity. Verizon Wireless appreciates the additional seven feet which will accommodate the single four -foot antenna typically deployed above utility poles, plus a required antenna mount or "shroud" underneath the antenna that conceals cables and improves appearance. A benefit of additional height is that well -elevated antennas cover larger areas, and fewer facilities are required to meet service objectives. Conversely, the limit of facilities to 35 feet near residential property may lead to the unintended consequence of more facilities, and this limitation should be stricken. Santa Ana City Council August 20, 2018 Page 5 of 5 Provisions requiring four to six feet of clearance from private property appear to contemplate ground -mounted cabinets that may block pedestrian travel. Draft Ordinance § 33-247. However, wireless facilities placed entirely on existing poles are elevated well above the sidewalk, generally at least seven or eight feet, and pose no impediment to pedestrians. These provisions should not apply to pole -mounted equipment. Similarly, pole -mounted equipment is elevated above vehicular sightlines, and Section 33-247(d) should not apply. Many jurisdictions approve underground utility districts that take years to implement or are never realized, and the Draft Ordinance should not require relocation simply upon adoption of a Council resolution establishing a new district. Draft Ordinance § 33-255. Antennas must be elevated to provide service, and small radio boxes sharing the same pole pose little additional visual impact. Wireless facilities are unique among public utility infrastructure, and undergrounding of small wireless equipment should not be required. We suggest that the City exempt wireless facilities that are not on utility poles from this requirement. In the alternative, the City could require wireless carriers to consider relocation of facilities when all other utilities place equipment underground pursuant to an underground district. Conclusion Verizon Wireless appreciates the opportunity for advance review of the Draft Ordinance as well as revisions already incorporated by staff. However, the Draft Ordinance is not ready for introduction by Council because there are still provisions that contradict state and federal law. Linder state law, applicants cannot be required to review private property locations or demonstrate a prohibition of service under federal law to place new poles. For both the Draft Ordinance and pending design guidelines, the City should provide objective design standards that accommodate typical small cell facilities. We encourage the City to exempt facilities on City -owned poles from permit requirements. We look forward to working with the City to revise the Draft Ordinance. Very truly yours, auk B. Albritton cc: Sonia R. Carvalho, Esq. Yasmin Vdzquez Dan Vuxenllek ATAT MWIlty Area Manager August 21, 2018 Taig Higgins, P,E. Transportation and Development Manager City of Santa Ana 20 Civic Center Plaza M-43 P.O. Box 1988 Santa Ana, CA 92702 Re: AT&T's repeal and replace Article X of Chapter 33 of Santa Ana's Municipal Code to address telecommunications facilities In the public right-of-way Dear Mr. Higgins: AT&T thanks the city for taking industry input into consideration. AT&T particularly appreciates the city's efforts to streamline reviews of eligible facilities requests (EFRs) under Section 6409(a). + AT&T looks forward to working with the city on its design guidelines which will surely impact AT&T's plans to deploy wireless facilities. But we need to see the Guidelines in order to properly comment on the proposed ordinance. o For example, the ordinance refers to "Tier 1", "Tier 2" and "Tier 3" facilities which are not defined in the ordinance, but will be defined in the Guidelines. The city should eliminate the definition for "concealment element." The city cannot circumvent federal law by defining "concealment element" which is a term of art used by the FCC in its regulations implementing Section 6409(a). Plus, using the term could confuse staff and applicants in the context of EFRs. o Instead, the city should adopt or cross-reference its existing definition of "stealth facility" —See Section 41-198.1 of the Santa Ana Municipal Code. AT&T appreciates the reduction of days in the comment period and the reduced notification radius for small cell facilities, but the city should also establish a streamlined administrative process for approving small cells. o Small cells give residents and businesses access to the latest and greatest wireless technologies while helping to preserve aesthetics because they easily blend with utility Infrastructure in rights -of -way. o And with AT&T's selection by FirstNet as the wireless service provider to build and manage the nationwide first responder wireless network, each new or modified facility will enhance first responder communications. U��M I0J