Small Cell Telecommunication Facilities

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Cellular Telecommunications Policy and Regulation Update

The City is working on updates to its telecommunications policies and regulations to address new and emerging technologies and to address the developing condition of state and federal law. This webpage provides a summary of information that may be useful to persons interested in this topic. The information on this webpage may be updated from time to time.

Please note that given the complexity of this topic this webpage is intended to provide only general information. The City encourages readers of this webpage to conduct their own independent research for additional information and/or seek legal or other advice from an attorney or consultant of their choosing.

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Cell Towers

New and Emerging Technology

Historically, cellular telecommunications have utilized large antenna structures (cell sites). These cell sites are often located on existing telecommunications infrastructure, major powerlines, or on monopoles designed to blend into the surrounding environment, such as trees and flag poles. These cell sites have operated on older cellular technology (e.g., 2G, 3G) as well as the current 4G/LTE system that many cell phones use today.

The cellular telecommunications industry is beginning to deploy new forms of technology in a “small cell” format. These new systems are much smaller than traditional cell sites and may be installed on light poles, traffic signals, or small power/telephone poles. These small cells can operate with either the current 4G/LTE technology, or the newer 5G technology, which is expected to be introduced to the market in the near future.

Wireless carriers contend that additional small cell facilities are necessary to meet the demand for wireless data usage from a population with an increasing number of devices dependent upon their service.

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Cell Towers

Updating Local Policies and Regulations

AT&T has applied to the City for zoning code revisions, and AT&T also seeks an associated agreement with the City. AT&T suggests that such revisions will allow it and other wireless carriers to address the new and emerging technology of small cells. Verizon has expressed a similar interest in revisions to the City's regulations.

The City's existing regulations for cellular telecommunications facilities are established under Elk Grove Municipal Code Chapter 23.94. The current regulations define "telecommunications facilities" generally, but do not specifically address small cell facilities. The current regulations require a conditional use permit for all such telecommunications uses, except in industrial zones, where such uses are allowed by right (i.e. without a further planning permit or entitlement). A conditional use permit is a discretionary permit issued by the Planning Commission or other City body. Generally speaking, the City body approving the conditional use permit may impose conditions on the permit to minimize potential impacts of the proposed use.

Note, however, that the City's discretion is limited by federal law. For instance, under federal law, the City may not regulate telecommunications facilities in a manner that materially inhibits personal wireless service. Additionally, under federal law, the City may not regulate telecommunications facilities on basis of the environmental effects of radio frequency emissions of the facilities. But such facilities must comply with Federal Communications Commission (FCC) emissions standards.

As the telecommunications industry moves towards small cells, the City is revisiting its permitting process to determine whether permits other than the current conditional use permits process might be appropriate. Some City residents have expressed health concerns about wireless technology. However, the City is preempted by federal law from regulating in this area. Changes to those regulations must occur at the federal level.

Information about the safety of radiofrequency (RF) and microwave emissions from transmitters and facilities regulated by the FCC

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New Federal Requirements

Federal law provides extensive regulation on the local implementation of cellular telecommunication. Much of this direction comes from laws enacted by Congress and implemented by the FCC. In September 2018, the FCC issued a detailed order on small cell deployment regulation intended to streamline the roll-out of 5G services nationwide. This impacts the scope of local and state regulation in California and other states. This order is referred to as the 5G deployment order. The FCC order became effective January 14, 2019.

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Lawsuits Filed Against the FCC

Multiple lawsuits have been filed in federal court against the FCC, including in the Ninth Circuit Court of Appeals, which covers the State of California. The lawsuits involve over twenty municipalities, and the lead plaintiffs include the cities of San José and Huntington Beach in California, and Seattle in Washington. Each suit argues that the FCC's order improperly overrides the municipality's ability to manage how phone companies use public property. San José also argues that the FCC order will force taxpayers to subsidize industry access to publicly-owned infrastructure without an obligation to serve rural and low-income communities. The lawsuits remain pending and the outcome of the suits remains uncertain.

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California Supreme Court

On April 4, 2019, the California Supreme Court decided the case of T-Mobile West LLC. v. City and County of San Francisco, et. al., Case No. S238001. The Court ruled that cities in California retain certain regulatory authority over the placement of cellular telecommunications facilities in public rights of way, including aesthetic concerns, under the California Constitution and California state law. The case was a state court decision, and it did not address the scope of telecommunications regulation under federal law. A copy of the decision can be found at the following link: https://www.courts.ca.gov/opinions/documents/S238001.PDF

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State and National Legislation Regarding This Issue

Cell Towers

CA State Legislative Activity

In February 2017, California State Senator Ben Hueso introduced SB 649. The bill proposed streamlining the permitting process for installing small cell infrastructure by imposing a state-mandated local program. The City of Elk Grove submitted a notice of opposition to the bill in April 2017. The City's primary reason for opposing the bill was due to the fact that it would have improperly removed much of the local authority cities have over regulations of telecommunications facilities. The bill was passed by both houses of the state legislature, but it was vetoed by Governor Jerry Brown in October 2017.

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U.S. Congress

In January 2019, Rep. Anna Eshoo (D-CA) introduced HR 530, the Accelerating Wireless Broadband Development by Empowering Local Communities Act of 2019. The purpose of this legislation is to overturn Federal Communications Commission (FCC) regulations limiting the ability of local governments to regulate the deployment of 5G wireless infrastructure. The City is monitoring this legislation.

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Elk Grove Updates

Special Meeting

The City Council held a special study session on the topic of cellular telecommunications on November 28, 2019 where both proponents and opponents of the proposed small cell wireless technology were provided the opportunity to present information and comment on possible regulations. At the conclusion of the meeting, the City Council expressed some concern with the new small cell technology, particularly with installations in residential areas, including near parks and schools. The City Council directed staff to continue to process the application from AT&T and work with them to develop regulations that would consider the concerns expressed by residents and also be consistent with FCC rules.

Small Cell Telecommunications Technologies and Regulations Workshop

Note: The PowerPoint displaying the FCC Order lists an incorrect date of 01/24/2019, the correct date is 01/14/2019.

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Project Status and Next Steps

City staff is processing proposed changes to the Municipal Code based on the application from AT&T as they seek to deploy their small cell technology on City light poles. Changes to the Municipal Code would require approval by the Elk Grove Planning Commission and the City Council, and may include a related agreement. The matters would be heard at a noticed public hearing. There are currently no dates scheduled with either the Planning Commission or the City Council for consideration of this matter.

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Stay Involved – Join the Mailing List

If you are interested in learning more or staying involved as materials are presented to the Planning Commission and City Council, sign up for the mailing list. The City will be sending email announcements when materials are available and when hearings are scheduled.

© 2019 City of Elk Grove