PREPARED BY: MATT RODRIGUEZ DATE OF MEETING: 08/06/18
SUBJECT:
TITLE
AUTHORIZATION OF THE CITY COUNCIL OF THE CITY OF SAN PABLO RATIFYING CORRESPONDENCE OPPOSING PROPOSED S. 3157 FEDERAL LEGISLATION TO STREAMLINE THE SITING OF SMALL CELL TECHNOLOGY DEPLOYMENT
Label
CITY MANAGER RECOMMENDATION
Recommendation
Approve by Minute Order
Body
Compliance statements
FY2018-21 Council Priority Workplan Compliance Statement
Municipal Broadband Fiber Optic Technology, Opposition to CA SB 649 (Hueso), and Technology Improvements are adopted policies contained in the FY 2018-2021, effective November 1, 2017.
CEQA Compliance Statement
Not a project under CEQA.
BACKGROUND
On June 28, 2018, the S.3157 federal legislation was introduced into the US Senate by US Senator John Thune, (R-SD) which would create a new federal mandate which proposes to streamline the siting of small cell technology deployment for the telecom industry (See Attachment).
The proposed S. 3157 federal legislation is similar in scope to SB 649 (Hueso), a CA state bill, vetoed by Governor Brown in 2017 which was opposed by nearly 350 cities and counties in CA. SB 649 would have circumnavigated and preempted many local government ordinances and regulations to streamline small cell technology deployment in local communities by the telecom wireless industry, with no local review or the levying of permitting fees associated with their siting and use in CA. S. 3157 is a federal version of this former state bill and would create a new federal mandate on the siting of small cell technology bypassing all local ordinances and regulations.
On July 10, 2018, following introduction of the S. 3157 federal legislation, the League of CA Cities opposed S. 3157 (See Attachment) and urged all CA cities to oppose its consideration as it would have devastating impacts on local cities and communities, including but not limited to the following areas of major concern, as follows:
1. S. 3157 complicates Existing Efforts to Deploy Small Cell Infrastructure:
• Roughly half of all US states have already passed legislation specifically addressing the deployment of small cell wireless structures, and the local governments in those states are busy implementing new ordinances and procedures to comply with those changes.
• Forcing a one-size-fits-all pre-emption will harm local negotiations and policy work, slowing the deployment of new infrastructure.
• Cities have traditionally negotiated with telecom providers on issues such as the location, appearance, and size of wireless infrastructure. This bill severely limits the ability of cities to ensure that infrastructure suits the neighborhood around it.
• The bill also limits the ability of cities to act in a proprietary capacity - to decide whether or not to allow private use of public property at all.
2. S. 3157 transfers Public Property to Private Companies with No Public Obligation:
• S. 3157 restricts the rental rates cities can charge for use of public property such as the right-of-way and municipally-owned poles, in direct violation of the 5th and 10th Amendments.
• Limiting rental rates to “actual and direct costs” also violates the gift prohibition of many state constitutions.
• This forces taxpayers to subsidize private, commercial development, without any corresponding obligation on providers to serve communities in need or contribute to closing the digital divide in those markets.
• Creates a New Unfunded Mandate on Local Governments
• The new timelines for cities to review applications for small cells on public property are substantially shorter than the timelines the federal government allowed itself in the federal MOBILE NOW Act, yet cities have fewer resources than federal agencies.
• These harsh timelines limit the resources cities have for other public needs, such as road maintenance and public safety. While small cell sites are smaller than macro towers, they do not require an equivalently smaller amount of review and oversight.
• The punishment for failing to meet these new, more stringent timelines is also unreasonable - automatically deeming granted any application which runs out the shot clock.
Summary of Local Concerns
S. 3157, as introduced, would force local governments to lease out publicly-owned infrastructure, eliminate reasonable local environmental and design review, and eliminate the ability for local governments to negotiate fair leases or public benefits for the installation of “small cell” wireless equipment on taxpayer-funded property.
In 2017, as aforementioned, the telecom wireless industry, pursued similar provisions in failed legislation (SB 649) here in California that sought to achieve many of the elements presented in the proposed S. 3157 legislation. Local cities, like San Pablo, opposed SB 649 and were especially concerned about shifting local authority away from local residents, businesses, and communities over to a for-profit telecom industry whose shareholder returns significantly outweigh their considerations for the public health, safety, welfare, aesthetics, and public benefits of local communities.
The City of San Pablo should continue to support the goal of ensuring all local residents have access to affordable, reliable high-speed broadband and eagerly welcome installation of wireless infrastructure in collaboration with local governments. However, the plain language as introduced in the S. 3157 legislation will not help in achieving these overall goals. Instead, this bill would impose sharply reduced “shot clock” time limits for local governments to process potentially unlimited wireless facility applications for all sizes, “deem granted” applications for facilities when local governments are unable to meet the stringent time limits regardless of its safety impacts or delays caused by incomplete applications.
As proposed, the S. 3157 bill also interferes with the ability for our City to manage our own property and our ability to receive appropriate compensation for its use. San Pablo actively manages the rights-of-way to protect our residents’ safety, preserve the character of their communities, and maintain the availability of the rights of way for current and future uses. By stringently limiting those factors, local cities may consider in their own land use decisions, and restricting compensation only to the “actual costs” incurred to process applications, this would limit the ability of local government to adequately serve and protect our local residents.
Currently, following introduction of S. 3157 federal legislation, as the US Congress considers efforts to improve the rollout of wireless and broadband deployment technology, the City of San Pablo should continue to support efforts that are more balanced, and to continue to reject attempts aimed to undermine input from your constituent residents, businesses, and local governments for this critical infrastructure.
Letters of Concern to Congressional and US Senate Representatives
In light of the concerns noted above, three (3) letters were prepared by the City’s contract lobbyist, Townsend Public Affairs, on behalf of the City addressing the concerns over the proposed S. 3157 federal legislation. These subject letters were executed by Mayor Calloway’s signature for transmittal on July 12 2018 to California Congressman Mark DeSaulnier, and US Senators Dianne Feinstein and Kamala Harris (see attachments).
Their previous official transmittal requires City Council ratification by majority vote/minute action vote this evening.
FISCAL IMPACT
None associated with this report.
Attachments:
1) Copy of introduced S. 3157 Federal Legislation by US Senator John Thune (R-SD)
2) Letter dated July 10, 2018 from League of CA Cities Executive Director to US Senators Feinstein and Harris
3) Mayor’s letter transmitted on July 12, 2018 to US Congressman Mark DeSaulnier
4) Mayor’s letter transmitted on July 12, 2018 to US Senator Dianne Feinstein
5) Mayor’s letter transmitted on July 12, 2018 to US Senator Kamala Harris