Deconstructing the text.
A much different assessment of senate bill 649 has been posted as it heads toward a hearing tomorrow in the senate’s governance and finance committee. That’s the bill that would largely eliminate local control in California over cell sites in the public right of way and commercial and industrial zones, and give mobile carriers the right to attach their gear to publicly owned light poles and other vertical assets at will for $20 a year.
SB 649 is being carried by senator Ben Hueso (D – San Diego), who chairs the energy, utilities and communications committee. The legislative analysis offered by his staff read like it was written by AT&T and Verizon, whose lobbyists flanked Hueso when he presented it to his colleagues a couple of weeks ago.
A new analysis done for the governance and finance committee takes a much different tack, among other things noting that SB 649 amounts to a gift of taxpayer money to mobile carriers…
Local officials’ first duty is to protect the interests of their constituents. They have broad authority to regulate activities to preserve the public welfare, and they have developed processes in accordance with that duty for permitting wireless telecommunications facilities. Some jurisdictions impose more conditions than others due to specific local circumstances, and the FCC has recognized this need. SB 649 goes well beyond federal law to strip local governments of this authority. By making small cells permitted uses, SB 649 extends by-right development to small cells, and it stops local governments from establishing discretionary permitting processes—even in historic districts if they allow any kind of commercial or industrial uses…And SB 649 goes even further than other by-right proposals because it require local governments to offer up their vertical infrastructure for use by other entities and removes their ability to charge fair rent by capping lease fees for vertical infrastructure to an amount that is a small fraction of the rates in current agreements between carriers and local governments. SB 649 sets a concerning precedent that reappropriates taxpayer funded infrastructure for private benefit.
Hueso got a unanimous yes vote in his own committee, but that was clearly on the basis of the customary courtesy afforded chairmen and not on the merits of the bill. Committee members, including the governance and finance chair, senator Mike McGuire (D – Healdsburg), made it clear that they would eventually vote against it if the language remained as is.
He’ll have a chance to make good on that promise tomorrow.
The weed whacker was whirling at full tilt yesterday as the Federal Communications Commission decided to take on local limits on cell sites and utility poles, and roll back regulation of wholesale broadband services. The voting was largely bipartisan. Democrat Mignon Clyburn concurred with republicans Ajit Pai and Michael O’Rielly on opening two major enquiries, one on whether wireless permit shot clocks should be given deemed granted teeth when they expire and the other on a range of wireline issues, including limits on how long local governments can take to review construction permits and how much they can charge. Pole attachment procedures and rules regarding replacing legacy analog voice service with Internet protocol technology are also open for comment.
Clyburn dissented, though, on backing away from common carrier-style regulation of middle mile and other wholesale broadband service. She particularly objected to the word games the decision plays with its definition of effective competition…
In the rush to deregulate, the leadership, providing as much notice as a run-away train, opts to adopt a framework that relies on faulty data and lackadaisical market analysis to come up with an ineffectual competitive market test, calibrated to deregulate as broadly as possible. The order upends decades of competition analysis, by defining a particular market as competitive when there is only one provider in a market and the mere possibility of a second entrant. Unfortunately, this is not a “typo.” The mere presence of a second nearby potential business data service provider that is located a half a mile away is deemed a competitor whether they plan to serve an area or not.
The wholesale service decision was in fact a decision – that’s done and dusted. The wireless and wireline infrastructure items, on the other hand, were just opening shots. Draft versions were published, and there’s no indication of major changes. Once the final texts are published, there will be ample opportunity to comment. Whether anyone will hear you over the whine of the weed whacker is another question altogether.
Cities and counties will be forced to hand over control of light poles they own to wireless companies for a nominal fee, under a bill unanimously approved yesterday by a California senate committee during a hearing that descended at times into chaos and low comedy. Drafted by mobile carriers and pushed by the chairman of the committee, senator Ben Hueso (D – San Diego), senate bill 649 would also allow wireless companies to install “small” cells (which, as defined, could be sizeable) pretty much at will, anywhere in the public right of way in California, including residential areas.
Flanked by lobbyists from AT&T, Verizon and CTIA, the mobile industry’s lobbying front, and occasionally wagging his pen at colleagues who questioned the wisdom of his approach, Hueso defended the bill and offered a rainbows and unicorns vision of a world where wireless carriers selflessly work with cities for the greater good of all. Which is the only reason they would: Hueso had difficulty articulating what actual authority would be left to local governments if SB 649 is approved as is.
There was opposition, of a sort. The initial time allotted for opponents was hijacked by a couple of storm troopers from the Tin Foil Hat Brigade, but a representative from a city planners’ association was granted a couple of extra minutes by an exasperated acting chair to make a coherent argument against the bill.
The committee members had problems with the bill as written too. At the top of the list was language that would have forced cities and counties to lease light poles to cell companies on demand, for the flat fee of $20 a year. When asked if he would accept amendments, Hueso dug in his heels, saying “it looks like I have my votes”. And he did. After threatening to vote against the bill if it makes it to the senate floor in its current form, every committee member voted aye, and sent it on to its next stop, the senate’s governance and finance committee.
It’ll face a tougher audience there.
Stripping local governments of most of their discretion over where wireless equipment can be installed – including on property they own – is just one of the provisions of a bill that is scheduled to get its first hearing today in the California legislature. Senate bill 649 will go before the senate energy, utilities and communications committee later this morning, and is likely to receive a warm welcome. The principal backer is senator Ben Hueso (D – San Diego), who is also the chairman of the committee. He is carrying the bill at the behest of CTIA, a lobbying front for mobile carriers, in particular the four big ones: AT&T, Sprint, T-Mobile and Verizon. As expected, the bill is getting friendlier to the big dogs as it moves along.
The first analysis of the bill was posted yesterday. It was nominally prepared by the committee’s staff, who reports to Hueso, but much of it reads like it was written by lobbyists for cell phone companies. What is clear from the summary is that if a mobile carrier rocks up with a cell site that meets the criteria for a “small cell” – which might not actually be all that small – then cities and counties will have little to say about where it can be installed, including on poles and other property that belongs to them. According to the staff analysis, among other things, SB 649…
Establishes that a small cell is a permitted use not subject to a city or county discretionary permit if it [is]…located in i) the public right-of-way in any zone or ii) in any zone that includes a commercial or industrial use…
Prohibits a city or county from precluding the leasing or licensing of its vertical infrastructure located in public right-of-way or public utility easements, and requires the fees are cost-based, based on the FCC’s formula.
The analysis recommends that some changes be made to clarify how California Public Utilities Commission rules interact with the bill’s provisions. It also notes that Hueso has committed to work with cable lobbyists to make sure their needs are met, a promise that hasn’t been extended to the long list of cities and other organisations that oppose it (although the list of supporters, including many who take money from telecoms companies and lobbyists for just such a purpose, is longer). The bill will get a second hearing, though, in front of the senate’s governance and finance committee, which does pay attention to the details of local land use policy and other municipal concerns.
The California Public Utilities Commission will decide whether wireline telephone companies and other licensed telecommunications companies can attach wireless equipment to utility poles on the same terms as mobile carriers. Responding to a request from the Wireless Infrastructure Association (WIA), a lobbying group for companies that build and own cell towers and similar facilities, CPUC president Michael Picker is proposing to start the process that could eventually grant that permission.
But the questions he wants to ask go beyond the simple technical and legal considerations that go along with the current pole attachment rules, and touch on broader questions of competitive barriers and how much infrastructure is too much, particularly in urban areas…
Although the scope of this proceeding is limited to [licensed telecoms companies’] wireless pole attachments, we will take comment on (1) whether there is sufficient space and load-bearing capacity on the stock of existing utility poles to support additional telecommunications attachments, including wireless pole attachments, that may be necessary to provide ubiquitous, competitive, and affordable telecommunications services; (2) whether the cost of replacing existing poles to support additional telecommunications attachments poses a barrier to entry; and (3) whether urban streetscapes can accommodate more pole attachments, the replacement of existing poles with larger poles, and possibly an increase in the number of poles. We will also take comment on the range of pole attachments and services contemplated by WIA.
It’s not clear what he plans to do with the information about the type of wireless services that might be offered, but that sort of regulation is primarily a federal matter and CPUC has very limited, and decreasing, scope in that regard. But if it’s just about getting more information into the record and in the hands of policy makers, it’s a very positive step.
Picker’s willingness to consider WIA’s petition stands in contrast to his decision – ratified by the commission as a whole – to deny cable companies the same privileges. As a practical matter, though, most cable companies have licensed telecom subsidiaries, as their lobbyists have pointed out.
The commission will vote on Picker’s plan to take a deeper look at competitive access, or lack thereof, to utility poles, but it would be very unusual for permission to be denied – that would, in effect, decide the issue – so expect to hear more about it in the coming months.
But only the bad actors. Honest.
Local governments will have even less to say about how and where broadband infrastructure will be built. That was the clear and bipartisan message from two members of the Federal Communications Commission when they testified in front of a U.S. senate committee on Wednesday. Michael O’Rielly, who reliably takes conventional republican positions, went straight for the jugular…
Standing in the way of greater Internet access nationwide are barriers imposed by state, local, and tribal entities. These range from maintaining difficult permitting and approval processes, attempts to extract enormous sums for tower siting and access to rights-of-ways, and efforts to establish government sponsored networks accompanied by favorable land, tax, and approval procedures. While the vast number of communities see the benefit of broadband deployment and welcome providers seeking to serve their citizens, there are bad actors that will likely require preemptive measures by the Commission. This problem will become even more acute as providers seek to deploy the next generation, or 5G wireless services, that will bring greater capacity, higher speeds and lower latency, but will also require many more wireless tower and antenna siting approvals. I realize that preempting local community decisions is a difficult topic to contemplate, but it has become necessary and appropriate for the Commission to exercise authority provided by Congress to address this situation.
Mignon Clyburn, who stands firmly in the democratic mainstream, was more diplomatic, but just as clear…
We recognized the need for efficient and streamlined processing of siting applications as well as localities’ interests in preserving the aesthetics of their communities and ensuring the safety of their citizens. Indeed, as I have said before, approving applications to site antennas and other infrastructure are difficult policy challenges for local governments…
I believe the Commission has a unique role to play in facilitating discussions and dialogue between industry and local communities about the benefits and challenges of small cell deployment.
There’s no practical difference, though, between exercising “authority provided by Congress” and “facilitating discussions and dialogue”. Either way it means the FCC will be step in once again and preempt state and local broadband policy.
Consider this your notification.
No one knows yet why AT&T’s mobile phone customers couldn’t connect with 911 centers on Wednesday night. AT&T refuses to explain and the Federal Communications Commission doesn’t know either, saying only that its “public safety professionals are on the case”. The extent of the outage is unknown as well, with reports varying from “nationwide” to “likely thousands. Maybe millions”.
It appears that AT&T let a few public safety agencies know about the outage, but not all and probably not most. And the notifications were cryptic. One simply referred to “a service outage that is impacting the ability to deliver AT&T Mobility wireless 911 calls in your area”.
The outage came as California lawmakers are considering senate bill 566 which would require companies that provide telephone service – cable and VoIP companies as well as telcos – notify the state office of emergency services when 911 connectivity goes down in rural areas. AT&T’s Wednesday night silence in most cases, and dismissive responses in others, is Exhibit A in support of why that bill is necessary.
The outage should also cause concern for any policy maker – California legislators, the California Public Utilities Commission, the FCC, and the list goes on – that has to weigh AT&T’s pious claims of technological prowess and reliability against its headlong rush to rip out wireline networks and replace them with wireless systems that are built on the same platforms that crashed on Wednesday.
Technology fails. At times. That’s been true since the first caveman hit control-alt-delete and rebooted a frozen stone axe. What’s changed is that a shrinking number of companies have increasingly greater monopoly control over telecoms networks that are 1. paid for with taxpayer subsidies and 2. vital to the health and safety of those taxpayers.
AT&T’s deceit is not unique, but few of its peers match its arrogant disdain for customers and its cynical manipulation of the political process.
The new legislative year is bringing with it a new effort to further preempt local government authority regarding where and how cell sites can be built. Senate bill 649 was introduced last week by senator Ben Hueso (D – San Diego County), the chair of the senate energy, utilities and communications committee, and co-authored by assemblyman Bill Quirk (D – Hayward), who has been a good friend to mobile carriers in general, and AT&T in particular. Depending on what the final language looks like, it potentially will exempt tens, or perhaps hundreds, of thousands of future cell site installations from local permit reviews.
As it currently reads, SB 649 creates a new category of cell sites – small cells – and puts it in the same, statutory preemption bucket as collocation facilities, which are additional antennae and such that are tacked onto existing towers. In other words, small cells will “have a significant economic impact in California and are not a municipal affair”.
What’s a small cell? SB 649 defines it by reference to a federal standard, which says, in effect, that it’s a wireless facility with no single antenna greater than three cubic feet in volume, and total antenna volume no greater than six cubic feet. “Associated equipment”, such as transmitters and power supplies, can add up to another 35 cubic feet. If you’re trying to picture it, think of a pole with a couple of oversized carryon suitcases at the top and a coffin bolted on below.
The bill that’s in the hopper now doesn’t actually say that small cells will not be “subject to a city or county discretionary permit”, as collocation facilities are currently privileged to be. But it does set the table for adding that exemption as SB 649 moves through the legislative sausage machine – there would be little point to the bill otherwise. AT&T-backed bills, for example, are infamous for beginning life as something fairly innocuous, but eventually turning into something more pathological as amendments are made.
There’s more time to chime in on whether the Federal Communications Commission should consider further preemption of local authority over cell sites and other wireless facilities. Last month, the FCC moved forward on a request to do so made by Mobilitie, a wireless infrastructure company that has pushed the boundaries of ethics, if not legality, and the English language in its aggressive pursuit of permission to, among other things, plant towers in public right of ways.
A group that includes the National League of Cities and the U.S. Conference of Mayors asked for a couple of extra months to respond, and the FCC split the difference and granted a one month extension, to 7 March 2017 for the first round of comments.
So far, there hasn’t been a rush to submit comments. Only about 20 filings have been posted, and one of those is from a local government. Pokomoke City, a small community in Maryland, told a story that’ll be familiar to pretty much any agency that’s dealt with Mobilitie’s campaign to install 70,000 new U.S. cell sites for Sprint…
Their initial requests were to locate new pole structures in the middle of our narrow public sidewalks – something we no longer allow. Their next proposal was to apply for a pole location on what appeared to be private property, expecting our small town, 4200, to provide title verification. The third was, after reporting to us that a specific location and height was vital, to then report they had selected a different location and changed height again. Their specs are a constantly moving target, and they wish to bank their infrastructure on the back of the town, rather than pay their way as all of the others do.
Lobbying groups for mobile carriers and wireless Internet service providers submitted preliminary amen comments; the rest appear to come from interested individuals.
Honorable mayor and members of the city council…
A bright – or at least brighter – line is likely to be drawn around the discretion local government have to grant permission, or not, to install small cell sites. At the urging of Mobilitie, an aggressive and disingenuous mobile infrastructure company, the Federal Communications Commission is taking a harder look at local and state restrictions on wireless facilities. It’s asking for public comments on whether it should invoke its status as an “expert agency” to cut through conflicting federal court rulings and issue a single set of rules that determine and preempt local government permit review processes regarding wireless sites….
We recognize…that localities play an important role in preserving local interests such as aesthetics and safety. At the same time, the Commission has a statutory mandate to facilitate the deployment of network facilities needed to deliver more robust wireless services to consumers throughout the United States. It is our responsibility to ensure that this deployment of network facilities does not become subject to delay caused by unnecessarily time-consuming and costly siting review processes that may be in conflict with the Communications Act.
The FCC’s notice (click here) correctly points out that 1. small cell deployments can result in periodic floods of permit requests, 2. current procedures in many jurisdictions are designed to accommodate occasional applications for large cellular sites, and 3. small cell sites are frequently simpler, less intrusive and more homogenous than big ones.
Cities and counties need to adapt to this changing environment, but it’s a fair question whether the FCC, which knows a lot of about telecommunications but not so much about land use and right-of-way management, is the right expert for the job. Nevertheless, the FCC seems intent on taking it on. Mobilitie is the trigger, but both the republican and democrat barrels were well loaded ahead of time. Outgoing chair Tom Wheeler promised this review earlier this year, and his republican colleagues – one of which will take up the chairman’s gavel, at least for a time, in the coming administration – have chimed in with a hearty, bipartisan amen.
The first round of comments are due at the FCC on 6 February 2017.