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Danville council approves policy updates on small cell wireless facilities

Town aims to maintain as much local control as possible amid federal mandates

As Federal Communications Commission regulations over the installation of small cell wireless facilities in communities continue to limit local control, the Danville Town Council has approved new policies to keep up with federal orders, and retain as much control over its streets as possible.

At their regular meeting on Tuesday evening, council members approved updates to the town’s wireless communication facilities ordinance, that more closely fall in line with FCC orders, while somewhat resenting being forced to do so.

“The urgency for this is real simple: We need to strengthen as many tools as we are legally allowed to put in our tool box to maintain local control ... We need to do this; this is the right thing. We have to be focused on the law and upholding the law, but we needed the strongest ordinance we can get and right now this is it,” Councilman Newell Arnerich said at the meeting. “This mechanism is the same one the city of San Ramon is using.”

“You always try to be as professional as you can, but also I'm sick of this, losing local control,” Mayor Robert Storer said prior to the council’s approval of the updates. “We are forced to make a decision that many probably would not make if we had our druthers. (But) we need this ordinance, we need the strength in this ordinance and we need the language in this ordinance to defend the town of Danville and its citizenry.”

New FCC orders released over the past year have continued to limit local municipalities' ability to regulate the installation of small cell wireless facilities on its vertical public infrastructure, such as light poles, town staff said at the meeting.

Perhaps the biggest change levied by the FCC is the shortened “shot clock” -- which greatly reduces the amount of time the town can review these projects, and was technically impossible to meet under the town’s previous wireless ordinance.

Now small cell proposals must be reviewed in 60 days for an existing pole, or 90 days for a new pole, compared to the 150 days previously allowed.

“You can not complete the 60-day shot clock in the amount of time required for the current process,” said Michael Johnston, Danville’s outside counsel from Telecom Law. “If you miss the deadline it is presumptively, that you are effectively prohibiting service... So if you do not have enforceable regulations ... the carrier has the right to go into court and get an injunction for that same permit without any local review.”

“This process imposes some level of enforceable local review on individual applications which can be reviewed by the chief of planning and will always be appealable to the city council.” Johnston told the council. “You guys will be the arbiter to these decisions if there is an appeal.”

According to a staff report by city attorney Robert Ewing and Danville’s principal planner David Crompton, the order mandates that aesthetic regulations can now only be imposed if they are “1) reasonable, 2) no more burdensome than applied to other infrastructure deployments and 3) objective and published in advance.”

Johnston added Tuesday that the FCC defines “reasonable” as “technically feasible.”

“(Aesthetic regulations) have to be no more burdensome than those applied to other infrastructure projects, this is a big one,” Johnston said. “I think it doesn't have clear boundaries right now. You have to treat wireless deployments the same way you treat electric utility providers deployments.”

Financially the order does allow municipalities to charge fees to help cover the cost of reviewing and approving cell sites. Agencies can charge a $100 processing fee per application and $270 annual fee sort of rental fee for the use of a town owned pole.

As a result of Tuesday’s decision, the town is also now able to adopt licensing agreements with wireless carriers, which would streamline the approval process for the installation of wireless facilities on town-owned infrastructure and allow the town to charge for the use of their poles.

The meeting was not as well-attended as previous Town Council meetings on the subject of cell towers, large or small -- less than 50 people were present -- but the topic was still passionately debated among those in attendance.

“I wanted to express that this new shot clock places a lot of pressure on you guys and all of us involved,” said Nick Vassallo, a vocal opponent of wireless facilities. “It makes me feel uneasy because I've said before these small cell sites are kind of like a Trojan horse. I think more and more towns are starting to recognize that and more and more towns are fighting back. And the FCC recognizes this so they are tightening their grip.”

The majority of residents speaking during the public comment session -- many of whom were members of the group Danville Citizens for Responsible Growth -- cited concerns over perceived health risks as their primary motivation for opposing the installation of cell facilities in residential areas. Many claiming that the radio frequency (RF) levels emitted from the facilities results in nearby residents having increased chances of developing cancer or Electromagnetic hypersensitivity.

“With respect to RF safety emissions, the FCC completely occupies this sphere,” Johnston responded.

Legally a municipality can not choose to deny a permit for a cell facility based on health concerns, town staff have stated. The FCC maintains that it is very unlikely that a person can be exposed to RF levels in excess of their guidelines.

After the council made its decision, they excused themselves to a closed session not open to the public to discuss its current litigation with Verizon Wireless, concerning the town’s decision to deny the carrier’s request for a facility on Camino Tassajara.

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Comments

Like this comment
Posted by Dr. V
a resident of Danville
on Apr 18, 2019 at 7:44 pm

We need to push, push as many people as possible to write letters to our congressman to pass H.R. 530 !!!!!- if this passes it would give control back to local communities and override the FCC shot clock etc etc. We need to urge our congressman to pass this! This is a sure way to dismantle the FCC’s mandates and buys us time to figure out what is right for our towns, time for more science to develop, safer alternatives etc. Web Link

See the draft letter/email to congressman other legislators below -encouraging passing of HR 530 - we can customize and blanket out to our respective groups?!

Our congressmen for 94526 are:
Congressman Mark DeSaulnier: Web Link
Congressman Eric Swalwell: Web Link

Dear ___________:

On behalf of the City of Danville we are writing to express our support of H.R. 530, the

Accelerating Wireless Broadband Development by Empowering Local Communities Act of 2019,

and urge you to co-sponsor this bill. H.R. 530 repeals recent harmful FCC regulations limiting the ability of local governments to regulate the deployment of 5G wireless infrastructure.

Last year, the FCC adopted regulations limiting the authority of cities and states to regulate small cell sites (e.g., attachments to street light and utility poles) needed for the deployment of 5G. The FCC’s regulations sharply limit the type and amount of fees cities and states may charge for profit-generating use of public property, set “shot clocks” as low as 60 days for cities and states to conduct all necessary inspections and authorize proposals, and drastically limit non-fee requirements cities and states may institute. The regulations began taking effect on January 14, 2019.

The FCC allowed the telecommunications industry to write these regulations without sufficient input from local leaders. This has led to regulations that restrict cities from requiring carriers to meet the needs of communities in which they want to operate. The FCC’s order unnecessarily complicates existing agreements and negotiations between cities and wireless providers by imposing a one-size-fits-all preemption of existing state and local policies. The FCC’s limits on fees for use of publicly owned property by private companies is an extreme overreach by the federal government, forcing cities to subsidize development at the cost of other critical local services.

We all want to ensure efficient, safe, and appropriate deployment of new broadband technology. However, this sweeping regulation is not the best approach. The City of Danville urges you to support and co-sponsor H.R. 530, and to work together with local governments to find the best solution for effective 5G deployment that meets the diverse needs of our nation’s many unique communities.

Sincerely,

YOUR NAME HERE


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