The city of Davis is proposing an amendment to the Davis Municipal Code that would amend the Wireless Communication Facilities and bring the city’s regulation into compliance with federal and state laws.
The amendment will also ensure “to the greatest extent possible that wireless facilities are located, designed, installed, constructed, maintained and operated in a manner that meets the aesthetic and public health and safety requirements of the City.”
The city is also “proposing a resolution establishing permitting requirements and development standards for small cell wireless facilities.”
Staff notes “that if there are any changes to the FCC rules as a result of any future or pending court actions, the City’s implementation tools would allow for the approval of any small cell facilities to be revoked.”
The Planning Commission back on December 11, following several hearings, adopted the attached ordinance “with a note that the Commission has significant concerns relative to the setback distance between small cell antennas and residences (which is recommended to be 250 feet) and the city’s inability to charge fair market value for the lease of the city’s property (lease amounts have been mandated by the Federal Communications Commission.)”
Back on September 27, 2018, the FCC issued a ruling that established a new category of “small wireless facilities” and, more importantly, “imposed substantial restrictions on state and local governments’ ability to regulate them.”
These restrictions include a new federal requirement that “requires cities to allow small wireless facilities on city-owned infrastructure in the public right-of-way, such as streetlights.” While it does allow cities to establish “aesthetic and locational requirements,” the regulations are required to be “reasonable, objective, non-discriminatory, and published in advance.”
Staff notes that the requirements went into effect on April 15 of last year and, while they are not required to adopt new standards by that date, “any standards in effect that do not meet the requirements after that date are unenforceable.”
The city did implement design criteria prior to April 15 to preserve local control to the extent possible.
Staff also notes, “Numerous municipalities have filed legal challenges to the Report and Order in federal court, arguing on various grounds that the Federal Communications Commission (the ‘FCC’) exceeded its statutory authority and abused its discretion by acting in an arbitrary and capricious manner.”
In addition, a number of wireless providers have “also filed challenges on the grounds that the FCC should have adopted a ‘deemed approved’ remedy for small wireless facility shot clock violations.”
These cases have been consolidated as City of San Jose v. FCC and transferred to the Ninth Circuit Court of Appeals. Staff reports that the motion to stay the order, however, was denied and remains in effect at this time.
Staff concludes that “the FCC’s Report and Order places substantial new limitations on the City’s ability to regulate small wireless facilities, one of which is that local aesthetic regulations must be objective and published in advance.”
Further, “The City continues to be prohibited from regulating small wireless facilities (or any wireless facilities) based on RF emissions or health impacts.”
They write, “The MLA is strongly recommended as an appropriate means of complying with the Report and Order with regard to the pending and future applications while maximizing the ability to condition and memorialize City discretion to the greatest extent allowed under the law. The proposed amendments and the MLA process, would protect the City’s interests and preserve the maximum authority allowed under the new law.”
While this act would seem to be rather straightforward, particularly in light of regulatory restrictions, a group of citizens has been approaching the council and Planning Commission for months tying in this issue with concerns about the health impacts of 5G technology.
The city’s staff report contains volumes of letters to this effect.
In one: “Davis residents’ privacy and safety are being attacked by the envisioned densified 4G and 5G Close Proximity Microwave Radiation Antennas (CPMRAs) proposed for Davis’ residential and school zones.
“Despite what you might have been told by various city attorneys, including Inder Kahlsa from Richards Watson Gershon, the Davis City Council Members’ hands are not tied. The City of Davis retains its dual-regulatory authority, under the notion of Cooperative Federalism that is laid out in the 1996-TCA.”
They add: “The City of Davis has a duty to regulate the operations of Wireless Telecommunications equipment to protect Davis residents’ inalienable rights to privacy and safety. This will require more robust zoning regulations, setbacks (both horizontal and vertical setbacks) from not only fire facilities (as required by CA AB.57), but also police facilities, elder care facilities, schools, parks and residences.”
In a letter from Attorney Paul Albritton, representing Verizon from the firm of Mackenzie and Albritton LLP, he notes the Planning Commission should “consider several Draft Policy provisions that appear contrary to the FCC’s 2018 order that outlines appropriate small cell approval criteria.”
He calls attention to the issue that “technically infeasible design standards are unreasonable according to the FCC, particularly requirements for antenna shrouding and placement of associated equipment underground. Other provisions contradict state law granting telephone corporations the right to place their equipment along any right-of-way.”
Accordingly, Verizon calls on the city to “allow wireless carriers to work with staff to revise the Draft Policy to achieve workable standards and procedures acceptable all parties.”
—David M. Greenwald reporting