Title
Introduction of Ordinance Amending the Alameda Municipal Code by: (1) Adding New Section 23-9 (Personal Wireless Service Facilities in the Public Right-Of-Way); and (2) Amending Section 2-59.3 (Limitation and Power to Make Contracts) to Exempt Master License Agreements for Use of Public Assets for Personal Wireless Service Facility Installation; and
Recommendation to Authorize the City Manager, or Designee, to Negotiate and Execute Master License Agreements for Use of Public Assets Consistent with Local Law. (Public Works)
Body
To: Honorable Mayor and Members of the City Council
EXECUTIVE SUMMARY
The national deployment of enhanced wireless networks has been the subject of interest in many communities, including the City of Alameda (City). In support of the goal of telecommunications companies’ efforts to expedite wireless upgrades, the Federal Communications Commission (FCC) has moved to dramatically curtail the regulatory discretion of local jurisdictions. On September 5, 2017 City Council approved entering into a professional services and license agreement with XG Communities, LLC, for wireless telecommunications facilities consulting, marketing and management services for City assets in exchange for shared generated revenue. On December 2, 2019, XG provided the City a notice of termination effective January 21, 2020. Going forward in this dynamic regulatory climate, and in anticipation of an increased number of applications to install wireless technology on existing infrastructure (utility and streetlight poles), the proposed Ordinance maximizes the City’s oversight of the public right-of-way while maintaining compliance with all legal requirements that significantly limit the City’s local authority.
The proposed Ordinance ensures that wireless installations are regulated to the maximum extent provided under applicable federal law. Such proposed regulations include objective aesthetic standards for wireless facilities, more rigorous compliance reporting requirements to ensure compliance with FCC radio frequency (RF) emissions standards, and other measures as described in this report. The proposed ordinance is recommended to provide the City with the maximum legal authority to safeguard the public peace, health, and wellbeing of the community and protect the unique aesthetic character of the City.
Finally, staff is requesting the adoption of an amendment to the Alameda Municipal Code (AMC) that would exempt from local law, which limits agreements in excess of five years, master license agreements executed by telecoms as a condition of obtaining a permit for the installation and use of personal wireless service facilities.
BACKGROUND
The City desires to exercise maximum regulatory authority over wireless facilities in the right of way; however, this authority is significantly hindered by two federal mandates: The Telecommunications Act of 1996 and Section 6409(a) of the Middle Class Tax Relief and Job Creation Act of 2012 together with FCC declaratory rulings and orders, in addition to and rules and regulations, interpreting these two mandates.
Federal Mandate 1: Telecommunications Act of 1996
The Telecommunications Act of 1996 (TCA) maintains a local jurisdiction’s authority to regulate wireless facilities provided that such authority does not prohibit or have the effect of prohibiting the provision of personal wireless service facilities. The TCA also stipulates that local jurisdictions are required to act on applications for wireless facilities within a “reasonable timeframe.”
Since passage of the Telecommunications Act of 1996, the Federal Communications Commission (FCC) has issued declaratory rulings and orders that clarify and interpret provisions of the TCA. In its Declaratory Ruling FCC 09-99, the FCC defined the term “reasonable timeframe” as 90 days for collocation applications and 150 days for applications to install a new wireless facility where none currently exists.
More recently, on September 26, 2018, the FCC adopted Declaratory Ruling and Third Report and Order FCC 18-133 that further restricts local authority. Among other things, the latest FCC order does the following:
• Articulates a broader standard to determine when a local regulation prohibits or effectively prohibits wireless services;
• Imposes a reasonable fee standard and establishes presumptively reasonable fees that can be charged for wireless installations;
• Clarifies the standard for regulating wireless installations to address aesthetic concerns as long as the regulations are based upon published objective standards;
• Shortens the “shot clock” to 60 days for installations on an existing structure and 90 days for installations on a new structure and clarifies that the shot clock period applies to all local approvals required for installations; and
• Clarifies that the failure to take action results in an effective prohibition, which triggers a 30-day period to file an action for expedited judicial review.
The FCC’s most recent ruling was challenged and many local jurisdictions have joined a coalition of other cities in the nation to push back on these FCC regulations. Specifically, the Ninth Circuit Court of Appeals has set oral argument for February 10, 2020 in Sprint Corp. v. FCC. Therefore, it is possible staff will return to Council with an updated ordinance if challenges to the FCC regulations are successful.
Federal Mandate 2: Middle Class Tax Relief and Job Creation Act of 2012
Congress passed the Middle Class Tax Relief and Job Creation Act (Act) in February 2012. Section 6409(a) of the Act includes provisions establishing an expedited, non-permitting process for the approval of certain types of wireless facility modifications. Section 6409(a) generally states that an “eligible facilities request”-which involves changes to existing wireless sites that involve collocation, removal, or replacement of transmission equipment-that does not constitute a “substantial change” may not be denied and shall be approved by the local jurisdiction.
Section 6409(a) of the Act does not prescribe a required timeframe for local jurisdiction review or define the term “substantial change.” In its Report and Order 14-153, the FCC established that local jurisdictions have 60 days to approve an application from the date an applicant seeks approval under Section 6409(a) of the Act or the application is deemed granted by rule of law. It also defined what types of modifications constitute a “substantial change.”
On September 5, 2017 City Council approved entering into a professional services and license agreement with XG Communities, LLC, for wireless telecommunications facilities consulting, marketing and management services for City assets in exchange for shared generated revenue. Given significant changes in legislation, particularly the capping of rents with no escalators, on December 2, 2019, XG provided the City a notice of termination effective January 21, 2020.
DISCUSSION
The proposed Ordinance is necessary to ensure that the City’s regulations require wireless facilities to be deployed in such a manner as to not interfere with the public use of the public right-of-way, to preserve public peace, health, and safety, and to exercise local regulatory authority to the maximum extent legally possible. The proposed ordinance would add a new AMC Section 23-9 and would establish standards and procedures for the permitting, placement, construction, and modification of wireless facilities in the public right-of-way. These standards and procedures provide clear and transparent regulations that recognize the unique, aesthetic character of the City.
The proposed Section 23-9 would reaffirm the City’s right in utilizing the public right-of-way over wireless carriers, establish clear and objective aesthetic requirements for wireless facilities, set standards for operation and maintenance, provide the City with tools to terminate or revoke a wireless permit, and provide regulations for the removal of wireless facilities. Further, the proposed Section 23-9 would set indemnity, insurance, and bond requirements that would protect the City’s interests and afford it a remedy to exercise should the City need to remove an abandoned wireless facility.
Other substantial provisions proposed in Section 23-9 are summarized below.
Applicability
The proposed Section 23-9 would apply to all applications for wireless facilities in the right-of-way that have not been approved prior to the effective date of the Ordinance. Facilities not in the right-of-way are specifically excluded from this Ordinance as law affords more discretionary review when not in the right-of-way. The proposed Section 23-9 includes applications for wireless facilities that have been submitted but have not yet been deemed complete. Further, all wireless facilities for which applications have been approved would be required to comply with the City’s regulations concerning RF monitoring, operations and maintenance, abandonment, removal and restoration of facilities, insurance and bond requirements, and indemnity provisions. Notwithstanding the above, personal wireless service facilities constructed for City use or by the City to exclusively provide unlicensed wireless services, such as Wi-Fi, are exempt from the proposed Section 23-9.
Permits, Application Procedures, and Fees
The proposed Section 23-9 requires that all wireless facilities used to provide licensed wireless services receive a permit from the City. This permit authorizes construction in the right-of-way, per the approved permit. The permittee has six months with an ability to extend an additional six month to complete construction and demonstrate to the City that the facilities were constructed per plan. Upon demonstration, the permit term becomes valid for ten (10) years.
Delegation of Authority to Promulgate Standards Other Documents
The proposed Section 23-9 would authorize the Public Works Director to publish any necessary standards and regulations, including standard permit conditions (e.g., final execution of a master license agreement or similar proprietary authorization). The standards and other ancillary documents may be updated at the discretion of the Public Works Director and would, without limitation, establish:
• Objective design standards for wireless facilities;
• Minimum application requirements (i.e., what is required to constitute a complete application);
• Site location justification requirements;
• Inspection requirements; and
• Post construction requirements.
Appeals
Currently, the proposed Ordinance does not allow any person to appeal the City’s decision regarding a wireless facility application due to the following factors: (i) administrative appeals are not required or expressly authorized by the above referenced federal laws, (ii) permit applicants have the right to expedited judicial review for any denial or failure to take action on a pending permit application, (iii) the most recent standard adopted by the FCC to determine when a local regulation effectively prohibits wireless services is so broad as to render meaningless any challenge to a carrier’s articulated business reason for the installation, (iv) the City’s discretionary authority is effectively limited to the adoption of objective standards, (v) the approval of any installation can be challenged by judicial review after the approval of an installation, even without an administrative appeal, and (vi) the shortened FCC shot clock periods, if not successfully challenged, effectively preclude any prolonged administrative process, including administrative appeals. In sum, the combination of the above factors does not allow for any meaningful administrative appeal rights.
Exceptions to City Requirements
To prevent the City from adopting regulations that prohibit or have the effect of prohibiting the provision of wireless facilities and to accommodate for waivers from strict compliance with the AMC, the proposed Chapter 23-9 includes an exception section (Section 23-9.0.0) that provides the Public Works Director with a means to waive AMC requirements if certain required findings are made, including all of the following:
1. The applicant has provided the Public Works Director with a reasonable and clearly defined technical service objective to be achieved by the proposed facility;
2. The applicant has provided the Public Works Director with a written statement that contains a detailed and fact-specific explanation as to why the proposed facility cannot be deployed in compliance with the applicable provisions in this Chapter and the Alameda Municipal Code, including the Public Right-of-Way Personal Wireless Service Facility Standards and Regulations;
3. The applicant has provided the Public Works Director with a meaningful comparative analysis with the factual reasons why all alternative locations and/or designs identified in the administrative record (whether suggested by the applicant, the City, public comments, or any other source) are not technically feasible or potentially available to reasonably achieve the applicant’s reasonable and clearly defined technical service objective to be achieved by the proposed facility; and
4. The applicant has demonstrated that the proposed location and design is the least non-compliant configuration that shall reasonably achieve the applicant’s reasonable and clearly defined technical service objective to be achieved by the proposed facility, which includes without limitation a meaningful comparative analysis into multiple smaller or less intrusive facilities dispersed throughout the intended service area.
Radio Frequency (RF) Exposure Monitoring
The proposed Chapter 23-9 requires proof of FCC compliance as part of any application required under the Chapter. This requirement consists of providing the City with a RF electromagnetic energy report prior to installation, per the Guidelines.
Notification of Expiration of Shot Clock
City staff recognizes that federal and state law set required timeframes for review, or “shot clocks,” to approve or deny a wireless facility application. To ensure that staff is properly aware of any pending shot clock expirations, the proposed Chapter 23-9 would require that applicants mail notice to the City no earlier than 30 days and no later than 20 days prior to expiration of the shot clock for any pending wireless facility application.
Master License Agreement
To accompany the proposed Ordinance, staff envisions the permitting regime would require the preparation and use of master license agreements with telecommunications companies for the use of public assets as a location for the use and installation of “small cell” wireless facilities. Each telecom that seeks a personal wireless facilities permit in the public right-of-way within the City would be required to execute such an agreement prior to being granted a permit. To maximize flexibility and to accommodate the shortened timeframe within which to act, staff is requesting that the City Manager (or Designee) be given authority to negotiate and execute master license agreements the final execution of which would be a standard condition of granting a wireless service facilities permit in the public right-of-way, subject to the following material terms, which are designed to be consistent with and to implement the attached proposed Ordinance:
• Term: Ten or more years to be consistent with State law.
• Annual License Fee: As permitted by the FCC, subject to changes as permitted by FCC.
• Construction/Installation: Undertaken by Licensee in compliance with law and City applicable permit(s).
• Maintenance, Repair and Replacement: Responsibility of Licensee.
• Use: Small cell telecom.
• Compliance with Law: Licensee must comply with current and future laws.
• Insurance: Provided by Licensee in an amount and quality approved by City’s risk manager.
• Indemnity: In favor of City and designated City parties.
• Bonds: Provided by Licensee in an amount and quality provided by City’s risk manager.
Section 2-59.3 of the Alameda Municipal Code
Section 2-59.3 of the AMC limits the power of employees to make contracts in excess of five years, unless the Council first approves the agreement. Given the regulatory limitations noted above (e.g., shot clock), in addition to requesting the authority to delegate to the City Manager (or designee) the authority to negotiate and execute a master license agreement, staff is requesting an exemption be provided from this part of the AMC for small cell agreements for a number of reasons. State law requires that the minimum term for these permits to be at least ten (10) years. And since the final execution of a master license agreement would be required as a standard permit condition for each permit, which also contains a 10-year permit term, staff is requesting a limited exemption from Section 2-59.3 for these types of agreements, as noted in the attached proposed ordinance.
ALTERNATIVES
• Introduce an Ordinance Amending the Alameda Municipal Code by: (1) Adding New Section 23-9 (Personal Wireless Service Facilities in the Public Right-Of-Way), (2) Amending Section 2-59.3 (Limitation and Power to Make Contracts) to Exempt Master License Agreements for Use of Public Assets for Personal Wireless Service Facility Installation; and Authorize the City Manager (or Designee) to Negotiate and Execute a Master License Agreement for Use of Public Assets Consistent with Local Law.
• City Council may choose to not adopt the proposed Chapter 23-9; however, the existing municipal code does not clearly articulate the City’s local authority and requirements regarding the placement, construction, and modification of wireless facilities considering restrictions set by state and federal law. This puts the City at risk of violating federal law.
• City Council may also adopt different requirements, recognizing that the FCC’s most recently adopted regulations further restrict the City’s ability to regulate wireless installations.
FINANCIAL IMPACT
There is no immediate financial impact or budget action necessary as a result of the recommended action.
MUNICIPAL CODE/POLICY DOCUMENT CROSS REFERENCE
None.
ENVIRONMENTAL REVIEW
The proposed amendments to the Alameda Municipal Code (AMC) are exempt from the California Environmental Quality Act (CEQA) pursuant to CEQA Guidelines Sections 15301 (exemption for minor alteration to existing facilities) and Section 15303 (exemption for new construction or conversion of small structures), and none of the exceptions to the exemptions in CEQA Guidelines Section 15300.2 are triggered. While none the proposed amendments are associated with or involve the approval of a particular project, they may be constructed as facilitating the deployment of small cell antennas and associated equipment throughout the City’s public right-of-way, along with Master License Agreements (or other proprietary approvals) that are obtained in conjunction with permits for individual small cell facilities, including their operation and maintenance, location, design, and other technical specifications. Nonetheless such a discretionary action is exempt from CEQA. Specifically, CEQA Guidelines Section 15301 exempts minor alterations to existing public or private structures. Similarly, Section 15303 exempts from CEQA the construction of small facilities, including the installation of small new equipment and facilities. The proposed ordinance amendments establish a process for the City to permit the installation of facilities at various sites within the public right of way. The new facilities are to be installed on existing City facilities such as streetlight and/or traffic signal poles, and the new facilities will be less than 28 cubic feet as limited under Federal Communication Commission regulations, with the anticipated small cell facilities being much less than half the size of the existing poles. Therefore, the approval of the proposed ordinance amendments are exempt from CEQA review pursuant to CEQA Guidelines Section 15301 and 15303.
CLIMATE IMPACTS
There are not ascertainable impacts on the emissions of greenhouse gases attributable to this action.
RECOMMENDATION
Introduce an Ordinance Amending the Alameda Municipal Code by: (1) Adding New Section 23-9 (Personal Wireless Service Facilities in the Public Right-Of-Way), (2) Amending Section 2-59.3 (Limitation and Power to Make Contracts) to Exempt Master License Agreements for Use of Public Assets for Personal Wireless Service Facility Installation; and Authorize the City Manager (or Designee) to Negotiate and Execute a Master License Agreement for Use of Public Assets Consistent with Local Law
CITY MANAGER RECOMMENDATION
The City Manager recommends approval of introduction of the Ordinance which is consistent with current FCC regulations.
Respectfully submitted,
Liam Garland, Public Works Director
Erin Smith, Deputy Public Works Director
John Le, Assistant City Attorney
cc: Eric Levitt, City Manager