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<\/a>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 \u2013 something already in local law.<\/p>\n
\u201cThere has to be a basis,\u201d May said of that last provision. \u201cFor example, a standard that says it\u2019s too tall, or it\u2019s not in the right location, or it\u2019s too bulky in a particular area. Without those types of regulations, denials would on their face fail.\u201d<\/p>\n
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.<\/p>\n
The FCC also issue a \u201csmall cell\u201d order that has \u201cbroad and significant changes and impacts on local governments\u201d that defines small wireless facilities and redefines what an \u201ceffective prohibition\u201d 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 \u2014 cities can\u2019t 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 \u201cshot clock\u201d rules \u2014 the time frame in which cities must accept or reject small cell proposals \u2014 with new classifications and shorter time frames.<\/p>\n
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.<\/p>\n
\u201cWhatever we do, it\u2019s probably going to be wrong six months to a year from now, so we need to take a flexible approach,\u201d he said.<\/p>\n
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:<\/p>\n
A review process that is tailored to meet the shot clock deadlines.<\/p>\n
\u201cFailure to meet those deadlines means you lose your ability to say \u2018no,\u2019\u201d he said.<\/p>\n
Maintains public notice and appeal rights.<\/p>\n
Provides detailed objective locations and design standards.<\/p>\n
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.<\/p>\n
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.<\/p>\n
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.<\/p>\n
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.<\/p>\n
\u201cBut it would not shortcut the review process of where those particular facilities would go,\u201d he added.<\/p>\n
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.<\/p>\n
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.<\/p>\n
The council adopted the new policy with only Vice Mayor Bill Baber voting against it.<\/p>\n