February 26, 2015 — The City of San Francisco has adopted an ordinance modifying the requirements for wireless site permits on utility or street light poles in the public right of way, in part to comply with a judgment by the California Superior Court and also to accommodate the FCC’s 6409(a) ruling.
In May 2011, T-Mobile and NextG (now Crown Castle) sued the city in the California Superior Court challenging aspects of the city’s permitting authority in regulating the use of the public rights of way for wireless facilities. In 2012, the case was modified to include a federal preemption claim based on Section 6409(a) of the Middle Class Tax Relief and Job Creation Act of 2012.
The city’s Board of Supervisors developed the wireless ordinance to preserve its right to review the aesthetics of wireless siting in the public right of way and allow for public notification, while implementing federal siting law, according to Supervisor John Avalos.
“At trial, the city prevailed that it could use aesthetics to regulate telecommunications carriers in the public right of way,” Avalos said. “Unfortunately, the court also ruled with the wireless carriers on the modifications provision. “
As a result of the court’s ruling, the city repealed provisions that allowed it to deny an application for a wireless permit for economic or technological reasons, but it kept and simplified a provision that allowed it to review the aesthetics of the site.
The new ordinance will also repeal the scheme that divided wireless facilities permitting into three tiers, increasing the requirements as the size of the site increased. Previously, a Tier 1 site that used a small antenna and equipment did not get referred to the planning department, neighbors did not get notified by mail, and a tree did not have to be planted to screen the equipment. The permitting process now treats all sites the same way it treats the largest Tier 3 wireless facilities, which includes aesthetic review and public notice.
Eliminating the tier system keeps a carrier from receiving an expedited Tier 1 permit and then modifying the site to a Tier 3 level without review or public comment, per Section 6409(a).
Additionally, the court ruled that the city may not limit the term of a wireless permit to two years, so the new ordinance changes the term of a wireless permit from two years to 10 years.
The FCC interprets the term “substantial change to physical dimensions” as increasing the height of a structure by more than 10 percent or more than 10 feet or adding equipment that would protrude from the edge of the pole by more than six feet. A substantial change would also be interpreted as installing more than the standard number of new equipment cabinets or more than four cabinets, as well as installing equipment cabinets on the ground if there are no existing ground cabinets.
In a direct response to the FCC’s 64090(a) order, the Superior Court judge found that the city’s modification provisions were inconsistent with federal law. Therefore, the city has changed the modification provisions in its wireless ordinance to be consistent with federal law as defined by the FCC.
Although those modifications may be deemed insubstantial under federal law, the City of San Francisco believes that allowing those changes to street furniture without the ability to deny a modification request could negatively affect the city’s streetscape.