Federal and state agencies are considering new regulations that could dramatically affect local authority to ensure communications companies –including wireless companies and cable/video franchises – serve the public well and install broadband facilities in a way that does not harm the community. Many observers are concerned that these new regulations could chip away at the traditional local rights critical to the protection of local communities.
Understanding the issues is important; even more important is participating in the dialogue and helping to protect your community’s interests.
Wireless Siting and the FCC
The Federal Communications Commission is expected to issue proposed rules within the next 90 days to implement a new provision of federal law, 47 U.S.C. Sec. 1455. That section states that a local government “may not deny, and shall approve, any eligible facilities request for a modification of an existing wireless tower or base station that does not substantially change the physical dimensions of such tower or base station.”
California law already requires localities to approve collocations (the installation of additional facilities or the modification of facilities at an existing wireless installation) if a proposed collocation meets certain design requirements established by the locality. However, what the FCC may propose could be quite different, as the reaction to a non-binding guidance issued by the FCC earlier this year suggests. The wireless industry is arguing that the guidance requires the approval of a 20-foot addition to the rooftops of historical buildings that house stealth wireless facilities; the approval of a 20-foot addition to towers in environmentally/culturally sensitive areas regardless of environmental impact; and the approval of additions to existing utility poles, wireless towers and privately-owned light poles without any design restrictions.
Locally-established permit conditions designed to limit the size of wireless installations may not be enforceable if the FCC adopts binding collocation rules along the lines urged by the wireless industry. Localities may need to include provisions allowing for the termination of permits whose conditions may not be enforced. Where there is a historic or environmentally sensitive area involved, it may be important to file a complaint with the FCC about the proposed wireless facility rather than simply rely on local or state processes for environmental protection. The FCC could condition construction of a facility on compliance with local conditions, and a FCC-established condition would be enforceable.
Localities may be able to influence the rulemaking before it begins by meeting with the offices of FCC commissioners (and with Congressional representatives). Localities should also participate in the FCC rulemaking process both financially (by supporting joint action with other communities) and by filing comments. Expect the rulemaking to commence sometime in the next four months.
CPUC, CEQA and Wireless Siting
The California Public Utilities Commission (CPUC) is also conducting a proceeding that may affect local authority to control placement of certain wireless facilities. Currently, local governments in many California cities regulate the placement of wireless facilities in the rights of way, establishing conditions on the size and design of the facilities to prevent harm to the community. After a pause of more than a year, the CPUC has revived its effort to determine whether and how it will conduct environmental review of certain telecommunications projects under the California Environmental Quality Act (CEQA), and whether and how it will share authority over CEQA reviews of those projects with local jurisdictions. The upcoming CPUC rulemaking proceeding will affect whether localities may continue to regulate the placement of wireless facilities (including distributed antenna systems or DAS) in the rights of way. Local agencies need to respond quickly to counter what will surely be a strong push by the wireless industry for rules that preempt local authority.
In a joint ruling released in May to re-launch the rulemaking, CPUC Commissioner Catherine Sandoval and Administrative Law Judge Kelly Hymes reiterated the CPUC’s position of 2011 that it has authority to preempt the discretionary review and permitting powers of all local land use jurisdictions. However, the rule could be crafted in a way that continues to defer to local zoning judgments.
To avoid the preemption of review and permitting powers, local governments may need to demonstrate to the CPUC that placement of facilities in the rights of way can present real problems for communities and that these problems are most effectively addressed at the local level.
For communities that wish to protect siting authority, it is important to participate in and monitor this proceeding. The due date for opening public comments has been extended to July 15 and reply comments are due by August 1.
Cable/Video TV Franchising and CPUC
California’s Digital Infrastructure and Video Competition Act of 2006 (DIVCA) shifted cable/video franchising from localities to the CPUC. Without local franchises and strong enforcement tools, many communities have found it difficult to protect consumers from customer abuses or to require companies to comply with DIVCA obligations.
The CPUC has launched a proceeding to establish rules that the holders of state-issued cable/ video TV franchises (such as Time Warner, Comcast, Cox, Verizon, and AT&T) must follow to obtain renewal of their state-issued franchises. The CPUC is asking for comments on:
- The appropriate procedures for considering renewal of DIVCA franchises
- The timing of renewal applications
- Whether the legislature has identified all the future video-related obligations that video service providers must fulfill in relationship to each community
- Whether the legislature intended to limit the role of individual communities in the renewal process
- Whether there are irreconcilable differences between DIVCA and federal law and what alternatives would ensure consistency with federal law
Undoubtedly, the cable/video TV industry will advocate for a renewal process as streamlined and cursory as the initial application process under DIVCA. However, the questions cited above, for which the CPUC is looking for comment, open the door to arguing for a renewal framework that provides for effective enforcement of DIVCA and ensures cable operators are responsive to customers and to local communities. This may be the only opportunity for local governments to push for that framework, short of amending DIVCA itself.
Once again, the best way for local governments to help affect the outcome of these important issues is to participate. The deadline for filing initial comments was just extended to July 22, with reply comments due on August 12. Once comments are received, the CPUC may hold a prehearing conference and issue a scoping memorandum outlining the schedule and issues to be considered in the proceeding.
Making your position known may not ultimately result in the most desirable outcome for your community. However, the industries will certainly create a record that supports the regulations that they desires, arguing that local regulations are an impediment to development of advanced communications systems. If local governments do not tell their stories and advocate for their positions, it is much more likely that the rules adopted will have negative consequences for local communities.
The bottom line: Speak Up!
Joseph Van Eaton is a partner in Best Best & Krieger LLP’s Municipal Law practice group in the firm’s Washington, D.C. office. He specializes in representing municipalities on a broad range of communications issues in federal and state courts, before federal and state agencies, and at the negotiating table. He has helped communities develop wireline and wireless communications ordinances, negotiated franchises for cable and telecommunications service providers, assisted communities in developing their own communications networks and successfully defended local government efforts to establish and operate municipally-owned systems. Mr. Van Eaton can be reached at Joseph.VanEaton@bbklaw.com.