Wireless Telecommunication Facilities in the Public Road Right-of-Way

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Presentation transcript:

Wireless Telecommunication Facilities in the Public Road Right-of-Way David Fleisch, Director, Transportation Department Tom Temple, Senior Assistant County Counsel Transportation Department August 30, 2017

Agenda Background Timeline Ordinance Key Features Legal Issues/Concerns At the time of ordinance Today – SB649 pending Transportation Department August 30, 2017

Background Increased requests for Wireless Telecommunications Facilities–Public Right- of-Way (WTF–PROW) led to BOS direction to create an ordinance In drafting the WTF Ordinance, reviewed existing ordinances, considered federal and state law, and incorporated feedback from wireless providers, the public and County staff Lengthy process of review and update Carefully considered all input from public, wireless companies, and staff Between 2006 and 2011 one permit request for WTF in the ROW Between Oct 2011 and Feb 2012 - 6 permit requests WTF requests are ministerial, non-discretionary permits Input: Municipal Advisory Councils/Property Owners Associations Wireless Companies: Verizon, AT&T, Crown Castle Southern California Gas Ventura County Planning Department Transportation Department August 30, 2017

Timeline February 7, 2012 – BOS provided direction to draft a WTF Ordinance November, 2012 – 1st draft of the Ordinance was completed April 7, 2013 – 1st public hearing scheduled May 7, 2013 – 1st presentation to BOS June 25 - Sept 24 – Discussions with wireless providers and County staff August 12, 2013 – Meeting with representatives from the wireless companies to review all requested changes October 28, 2013 – Ordinance Approved by BOS Transportation Department August 30, 2017

Key Features Installation type preference Small-cell installation Cluster (collocation) installation Residential Nonresidential Single New installation Levels of review – Based upon installation type and location Basic Intermediate Full Transportation Department August 30, 2017

Matrix of Requirements Traffic control plan Scaled site plan Fully dimensioned plan Visual impact analysis RFR & EMF report Certificate of insurance Licenses/registration/ certification from FCC & CPUC Building /other permits Authorization to hire expert Alternative locations analysis Evidence of infeasibility as needed Additional information as needed New Installation  Small-Cell Installation Collocation With substantial increase in size Without substantial increase in size Residential area Non-residential area Basic Intermediate Full Transportation Department August 30, 2017

Key Features (continued) Height < 5 feet of average height of existing utility poles < 5 feet over height of existing County traffic pole standard Specific limits per the area-specific plan (Ojai, Thousand Oaks) Exception to height limits: If alternative location in the ROW is unavailable or not technically feasible Another regulation requires greater height Appeal of decision to grant or deny a permit To the Road Commissioner (Public Works Agency Director) Must be filed within 10 days Must demonstrate how decision does not comply with ordinance Who can file: Applicant Property owner, must be in the notification zone Transportation Department August 30, 2017

Key Features (continued) Public notification requirements Notification Zone – 300 ft wide by 500 ft long Preapproval notification – 30-day notification period New installation Collocation in a residential area Collocation with substantial increase in size Coastal zone – not required Preconstruction notification for all – two weeks prior Written notification to community Posted signage 3′ x 4′ Transportation Department August 30, 2017

Examples Pole top extension Small cell installation Transportation Department August 30, 2017

Installation with Vault Transportation Department August 30, 2017

Legal Issues/Concerns Are we allowed to regulate WTFs in the ROW? Yes, but … Transportation Department August 30, 2017

Yes: Permissible Regulation of WTF in ROW Public Utilities Code § 7901: Telephone company cannot “incommode” public use of road (and “incommode” includes aesthetic considerations) Public Utilities Code § 7901.1: Reasonable control over time, place, and manner of access for construction, maintenance, etc. Streets & Highways Code § 1460: Road Commissioner may issue encroachment permits 47 U.S.C. § 253(c): Local authority to manage public rights-of-way 47 U.S.C. § 332(c)(7): Local authority over “personal wireless service facilities” Transportation Department August 30, 2017

But: Restrictions on Regulation of WTF in ROW 47 U.S.C. § 332(c)(7)(B)(iv): Cannot regulate effects of RF emissions (FCC exclusive jurisdiction) 47 U.S.C. § 332(c)(7)(B)(i)(II): Cannot prohibit or effectively prohibit provision of personal wireless services 47 U.S.C. § 1455(a) (aka “section 6409(a)”): Must approve collocation, removal, or replacement of WTF on an existing wireless tower or base station if modification does not “substantially change the physical dimensions” SB 649: Pending legislation Transportation Department August 30, 2017

47 U.S.C. § 1455(a) (“section 6409(a)”) In 2014, FCC interpreted section 6409’s language (Report and Order, October 21, 2014): “Wireless tower”: Structure whose sole or primary purpose is to support WTF equipment (even if no WTF equipment on it) “Base station”: Equipment plus structure (if WTF equipment on it already) “Collocation”: Includes first placement of equipment on a tower (but not on a base station) Modification includes structural enhancements to the tower or base station “Substantially change”: Specific height, width, and other details specified 60-day “shot clock” for processing application Section 6409 does not apply to property owned by local government Transportation Department August 30, 2017

SB 649: Streamlining Permits for Small Cells Bill passed by Senate but amended and currently pending in Assembly Appropriations Committee (as of August 22, 2017) Applies to “small cell” WTF, including those in ROW Allows encroachment permit, including various conditions (including some fees) Prohibits requirement for in-kind contributions, submission of excessive information, and limitations on routine maintenance Completely exempts “micro wireless facilities” suspended from cables Prohibits refusal to lease or license “vertical infrastructure” Transportation Department August 30, 2017

Questions? Transportation Department August 30, 2017