The California Assembly is considering a bill to streamline collocations, which is similar to federal collocation verbiage found in Section 6409 the Middle Class Tax Cut and Job Creation Act. Only it goes a little further.
Assembly Bill 162, sponsored by Assembly Whip Chris Holden (D-Dist. 41), mandates local governments in California to approve modifications of existing wireless telecommunications facilities that do not substantially change their physical dimensions. A.B. 162 goes further than the FCC’s shot clock, cutting in half the amount of time a municipality has to process a collocation. After 45 days, according to the bill, a collocation application must be denied, or it will be deemed approved. The FCC shot clock says that approval or denial of a collocation should come within 90 days and, even then, it only opens the door for a carrier to sue the city.
“From the carrier perspective, I support it. I think it would be good to have a set time for cell tower approvals,” Joe Thompson, T-Mobile, told AGL Bulletin. “I know we have the shot clock, but if we reduce the time even further, I am all for that.”
Jonathan Kramer, wireless municipal consultant, said the 45-day time window was too tight.
“The cities can’t move any project within 45 days,” he said. “It will require extra staff resources. It doesn’t allow for effective public notice. By the time the public notice goes out it will be within a week or so of mandatory approval.”
The bill includes a pre-emption of local governments from considering whether there is a gap in service in collocation hearings, which was applauded by Thompson.
“I can understand why the city asks for it, but I don’t think it is necessary,” he said. “No one is going to build a $100,000 or $200,000 cell tower if they don’t absolutely need to do it. I think the city wants the coverage gap information so they will have something to show to a citizen who comes in to question the need for the tower.”
Kramer noted that the coverage gap section of A.B. 162 would defeat the 9th Circuit federal holding in MetroPCS v. San Francisco (2005) that requires a wireless carrier claiming a gap in coverage to show that the proposed solution is the “least intrusive means” to address the gap.
The municipalities are gearing up to fight the passage of A.B. 162, according to Kramer. They will do this by encouraging citizens to express their opposition through letters to the assembly members, opposing it at public hearings and lobbying the governor against signing the bill if it is passed.
“There is the inherent feeling at the local municipal level that their zoning authority is being slowly chipped away,” he said. “A number of municipalities are taking the position that Section 6409(a) is unconstitutional. Instead of codifying a state version of 6409(a) they will simply oppose it as opposed to working out a compromise.”
Thompson questioned whether citizens will come out en masse to oppose the cell tower legislation.
“I think that residents are finally beginning to see the benefits of having a cell tower closer to them,” he said. “I would argue that if someone buying a home today had a choice between one that had cell service and one that didn’t, they would chose the home with cell service, every time.”
The bill’s definitions are also more expansive than the collocation guidance provided by the FCC, defining “wireless telecommunications facility” as towers, utility poles, transmitters, base stations and emergency power systems that are used to provide service.