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HomeMy WebLinkAbout06-16-2021_Open Session_Item 26_Albritton, Paul_any links sanitizedMACKENZIE & ALBRITTON LLP 155 SANSOME STREET, SUITE 800 SAN FRANCISCO, CALIFORNIA 94104 TELEPHONE 415 / 288-4000 FACSIMILE 415 / 288-4010 June 16, 2021 VIA EMAIL Mayor & City Council City of San Bernardino 290 North D Street, 3rd Floor San Bernardino, California 92401 Re: Proposed Resolution 2021-151 Adopting Design and Development Standards for Wireless Facilities in the Public Right-Of-Way Council Consent Agenda Item 26, June 16, 2021 Dear Mayor Valdivia and Councilmembers: We write on behalf of Verizon Wireless regarding the draft Design and Development Standards for Wireless Facilities in Public Right-Of-Way (the “Draft Standards”). Verizon Wireless appreciates the City’s initiative to streamline permitting of small cells, and proposes modest revisions to ensure that the Draft Standards are consistent with federal and state law, including the FCC’s 2018 Infrastructure Order. Of note, the location preferences should be qualified by a 500-foot search distance, as we urged in our June 2, 2021 letter to the Council regarding the wireless ordinance. The City should add more specific design criteria to the Draft Standards, such as reasonable equipment volume thresholds, rather than relying on vague aesthetic standards. We encourage the Council to direct staff to implement our suggested revisions. In the Infrastructure Order, the FCC confirmed that a city’s aesthetic criteria for small cells must be “reasonable,” that is, technically feasible and meant to avoid “out-of- character” deployments, and also “published in advance.”1 The FCC also found that that local requirements that “materially inhibit” service improvements and new technology constitute an effective prohibition of service under the Telecommunications Act.2 Our comments on the Draft Standards are as follows. 1 See Accelerating Wireless Broadband Deployment by Removing Barriers to Infrastructure Investment, Declaratory Ruling and Third Report and Order, 33 FCC Rcd. 9088, ¶¶ 86-87 (September 27, 2018). Last year, the Ninth Circuit Court of Appeals upheld these FCC requirements. See City of Portland v. United States, 969 F.3d 1020 (9th Cir. 2020), petition for cert. pending, No. 20-1354 (filed March 22, 2021). 2 Id., ¶¶ 35-37. San Bernardino Mayor & City Council June 16, 2021 Page 2 of 4 Section 3. Design and Development Standards A(1), A(3). General criteria, concealment. The Draft Standards are full of vague criteria, such as “least visible means possible,” “aesthetically compatible with the surrounding area,” “blend the facility,” “minimizing the size,” and “matching” existing infrastructure. These discretionary determinations could lead to unfounded denials that “materially inhibit” service improvements, in conflict with the FCC regulations described above. Further, such generalized aesthetic objections do not amount to substantial evidence upon which a local government can deny a wireless facility permit. See City of Rancho Palos Verdes v. Abrams, 101 Cal. App. 4th 367, 381 (2002). Both applicants are the City are best served by specific standards. Small cells tend to be of similar design. Verizon Wireless can provide specifications to serve as the basis for feasible standards. Overall, the Draft Standards should include more specific design direction, such as reasonable volume limits. B(1), B(2). Preferred/discouraged locations. Small cells serve targeted areas with a limited coverage footprint. To avoid a prohibition of service, the location preferences should include a reasonable review distance to assist in identifying any preferred option within the target service area, and to avoid placement too far from the coverage objective. This is common in cities that have updated their small cell ordinances per the FCC’s Infrastructure Order. The City of San Mateo just added a 500-foot review distance last week. We suggest that these provisions be prefaced: “An applicant may use a discouraged location if there is no preferred option within 500 feet along the subject right-of-way that is technically feasible.” Section 4. Pole-Mounted Facilities While this section applies to wireless facilities on any pole, it should better address facilities on wood utility poles where Verizon Wireless has a right to install its equipment. B(1). Antennas, RRU placement. This requires antennas and remote radio units (“RRUs”) to be top-mounted within one shroud, while discouraging side-mounted RRUs. 5G antennas cannot be shrouded or otherwise covered because that impedes the propagation of high-band frequencies that Verizon Wireless has licensed for its 5G service. For 5G facilities, shrouding requirements would be technically infeasible and unreasonable according to the FCC. At a minimum, the antenna standard should allow for “cut-outs” in the face of the shroud to allow unobstructed signal propagation. Some RRU models are too large to fit in a pole-top shroud along with antennas. Requiring RRUs in the shroud could be technically infeasible and unreasonable, given the shroud dimension restrictions of Item 4(B)(2) (72 inches in height, 18 inches in diameter). Further, small cell radios attached to the side of a pole are not “out-of- character” among other right-of-way infrastructure, particularly on wood utility poles, so San Bernardino Mayor & City Council June 16, 2021 Page 3 of 4 barring them would be unreasonable in two ways per the FCC’s guidance. Instead of discouraging side-mounted RRUs (and applying the inexact “smallest possible” criterion if allowed), the City should adopt a reasonable volume limit. This provision should be replaced with a limit of side-mounted accessory equipment to nine cubic feet on a utility pole, and six cubic feet on a light pole. B(3). Accessory equipment (undergrounding). The Draft Standards prefer undergrounding, including RRUs that cannot fit in a pole-top shroud (which may be infeasible). However, undergrounding generally is technically infeasible due to sidewalk space constraints, utility lines already routed underground, and undue environmental and operational impacts for required active cooling and dewatering equipment. As noted above, small cell radios are not “out-of-character” on the side of poles in the right-of- way, so barring them is unreasonable according to the FCC’s order. We propose the same solution as for RRUs that cannot fit in a pole-top shroud: limiting the volume of side-mounted accessory equipment to nine cubic feet on a utility pole, and six cubic feet on a light pole, before undergrounding is considered. For streetlight and new standalone poles, the City may consider Verizon Wireless’s design with radios concealed in a shroud at the base of the pole. B(6). Pole owner authorization. This requires an agreement with the City to install pole-mounted equipment, and requires that the City own all poles. However, the City can mandate this only for its own existing infrastructure. Public Utilities Code Section 7901 grants telephone corporations a statewide right to place their equipment along any right- of-way, including new poles that they may install and own. As a member of the Southern California Joint Pole Committee, Verizon Wireless can place its facilities on utility poles. This provision should be clarified to apply to only existing City-owned infrastructure. C(2). Replacement pole design (wood utility poles). This item forbids replacement wood utility poles and limits height to 35 feet, both of which would be infeasible if a utility pole must be replaced to increase its structural capacity to add a small cell. Other electric and communication utilities share wood utility poles and cannot be compelled to attach to metal poles or lower the height of their attachments (which are subject to state safety clearances). The City should address wood utility poles separately, allowing for replacement if needed, as well as sufficient height to add a pole-top antenna and side- mounted RRUs. C(2), D(3). Replacement pole design (existing and new poles). The height limit of 35 feet, inclusive of all equipment, may be insufficient, particularly if a six-foot antenna shroud is used, as allowed by Item 4(B)(2). Instead of vague criteria such as “matching” nearby infrastructure, the City should work with wireless carriers to develop specific standards. The City should consider a modest increase in the allowed height for streetlight and new poles. Verizon Wireless can provide its streetlight and new pole designs to be the basis of feasible standards. San Bernardino Mayor & City Council June 16, 2021 Page 4 of 4 D(1). New pole prohibition. This prohibits new poles unless a waiver is approved. However, as noted, Section 7901 grants telephone corporations a statewide right to place new poles along any right-of-way. Under this state law, new poles are not exceptional. The FCC contemplates new poles for small cells in part through distinct fees and Shot Clock timeframes. See, e.g., 47 C.F.R. § 1.6003(c). To avoid an unlawful prohibition of service, the City should allow new poles where existing infrastructure nearby is infeasible, employing the “review distance” we propose above. This provision should be replaced with a standard allowing a new pole if there is no feasible existing infrastructure within 500 feet along the subject right-of-way. Section 5. Exceptions to Design Standards The City cannot rely on the exception process to excuse infeasible, unreasonable or otherwise unlawful standards. If a small cell design required for service needs the same “feasibility study” over and over, then the standards clearly are unreasonable per the FCC’s guidance. The subjective criteria (e.g., visual impacts) and potential denials posed by the exception process could “materially inhibit” deployment of small cells, constituting an unlawful prohibition of service. Instead of requiring repeat exceptions, the City should work with wireless carriers to ensure that its standards are reasonable at the outset. Verizon Wireless appreciates the opportunity to provide comment on the Draft Standards. To ensure consistency with federal and state law, we urge the Council to direct staff to make our suggested revisions. Very truly yours, Paul B. Albritton cc: Sonia Carvalho Esq. Kris Jensen Robert D. Field