By JEFF CLEMETSON | La Mesa Courier
Wireless facilities for 5G networks are coming — and according to federal and state laws, there is little that local governments can do about it. However, at its Oct. 22 meeting, La Mesa City Council voted to adopt a policy that regulates new small cell towers that will power 5G networks based on current law.
The new policy was presented to council by Robert “Trip” May, a partner at Telecom Law Firm PC, which represents individuals and city governments in matters relating to telecommunications infrastructure. May began his presentation with an explanation of the new regulations.
Under federal law, cities cannot outright prohibit or effectively prohibit the installation of wireless facilities. In addition, cities must treat all providers equal; cannot regulate facilities based on environmental effects of radio frequency emissions to the extent that the emissions comply with FCC rules; have to act (approve or reject projects) within a reasonable amount of time; and must issue written decisions to reject based on substantial evidence in the record – something already in local law.
“There has to be a basis,” May said of that last provision. “For example, a standard that says it’s too tall, or it’s not in the right location, or it’s too bulky in a particular area. Without those types of regulations, denials would on their face fail.”
In addition to those federal laws, the FCC has also recently issued new orders regarding cell towers, including an order which prohibits moratoriums against cell towers, either expressed or de facto.
The FCC also issue a “small cell” order that has “broad and significant changes and impacts on local governments” that defines small wireless facilities and redefines what an “effective prohibition” against them means. Under the small cell order, the fees that cities charge carriers for installing small cells have to be objectively reasonable, and aesthetic limitations cannot be more burdensome than applied to other infrastructure — cities can’t use zoning to block where small cells are installed or block their installation because they are not compatible to community character because the FCC views those reasons to be subjective. The new FCC order also expands “shot clock” rules — the time frame in which cities must accept or reject small cell proposals — with new classifications and shorter time frames.
All these rules are under appeal and courts are expected to rule on them by the end of 2020, May said. The FCC is also considering more rules that could take effect as soon as six months from now. May said the ever-changing rulebook for cell towers makes it difficult for cities to come up with policies to regulate them.
“Whatever we do, it’s probably going to be wrong six months to a year from now, so we need to take a flexible approach,” he said.
May then laid out a recommended proposal for La Mesa based on the existing code which allows cities to adopt standards for anything that encroaches on the public right of way. He said La Mesa could use that code to draft a policy that includes:
A review process that is tailored to meet the shot clock deadlines.
“Failure to meet those deadlines means you lose your ability to say ‘no,’” he said.
Maintains public notice and appeal rights.
Provides detailed objective locations and design standards.
Under the new city policy, the city has a list of preferred locations for cell towers and requires carriers to use those locations that are technically feasible. To set up a cell tower in an alternate location, carriers must show the city that no other feasible preferred locations exist within a reasonable distance.
The preferred locations are based on a two-step analysis. Step one, the city looks at what road type the cell tower would be near, like collector roads, main thoroughfare, cul-de-sacs, etc. Step two is to look at the city zoning, whether the cell tower would be put in residential, commercial, industrial, etc. Additional restrictions considered are proximity to fire hydrants, driveways, doorways, etc.
The design standards the city can use to regulate cell towers include things like size and height limits based on practical realities. For example, requiring smaller facilities in residential zones. These standards can be employed as long as they are across the board for all infrastructure, not just cell towers, May added.
The new policy also institutes a plan for pre-approved design options. Approving designs ahead of time takes some of the shot clock pressure off the city, May said.
“But it would not shortcut the review process of where those particular facilities would go,” he added.
During public comments on the new plan, cellular industry representatives asked the city to table the vote to give them time to look over the proposed policy. Opponents of 5G cellular also asked the City Council to delay the vote, over what they said are the potential health risks caused by radio frequency radiation put out by cellular towers.
Before the council voted to adopt the policy, May advised the city that citing health concerns is not a valid reason to deny a cell tower installation. He also advised that without a plan in place, cellular providers would have less restrictions on where to place small cell towers and what they would look like.
The council adopted the new policy with only Vice Mayor Bill Baber voting against it.
— Reach editor Jeff Clemetson at [email protected].
