October 14, 2015 — California Gov. Jerry Brown has signed legislation streamlining the siting process for applicants, which provides a deemed approved remedy if the city or county fails to act on an application within the FCC prescribed application timelines.
California Assembly Bill 57 will reduce delays in applications to site new wireless facilities and renew permits for existing facilities, according to Jonathan Adelstein, PCIA’s president and CEO.
“By speeding approval of these facilities, we can ensure Californians have timely access to robust mobile broadband,” added Adelstein.
There was one exception for wireless deployments on fire department properties built into AB 57, which are not subject to the automatic deemed-approved remedy.
Jonathan Kramer, Telecom Law Firm, does not expect a lot to change with the law’s passage, because he believes the majority of wireless projects in California are already approved or denied within the FCC shot clock time frames.
“One of the biggest impediments to quicker processing of wireless projects by local governments has been the game of musical chairs played by the carriers and turf vendors who seem to frequently switch out permit runners mid-project,” he said.
Another prediction from the municipality side has been the belief that local governments will just end-up denying projects that legitimately require more time to process when the applicant refuses to enter into a tolling agreement.
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.
A San Diego-based firm building a portfolio of telecom infrastructure assets is attempting to purchase cell tower leases from the town of Perryville, Md., according to Explore Harford. AP Wireless, an arm of Associated Partners private investment firm, offers to buy leases for a lump sum upfront with large payouts and flexible terms.
“We will pay a large, up-front lump sum cash amount in return for an interest in your cell site. The longer the interest conveyed to AP Wireless, the larger the payout,” according to the firm’s web site. “We offer extremely flexible terms and conditions. You want to maximize the up-front cash amount? We’ll prepay your rent for a perpetual term. You want both a large, up-front lump sum plus cash rent in the future? We’ll structure a fixed-term deal with a rent reversion.”
Jonathan Kramer, an attorney who advises municipalities on such offers, suggested caution be employed concerning selling their cell tower leases.
“It no surprise in this economy that local governments must to find their own gap-filler cash sources when sales tax revenues are be diverted to fund state programs,” Kramer said. “While cell site lease sales can help to narrow today’s local budget gaps, the loss of the long term steadily increasing rents has to be carefully considered.”
State laws can be materially different when a government sells a lease and grants an easement as compared to a private deal, Kramer said.
“The sales process must be open and transparent; compliant with all applicable state and local laws; and not result in an effective gift of public property or impairing public bond covenants,” Kramer said. “These are key stumbling blocks that can swing open the courthouse doors for challenges by members of the public regarding the process and the deal valuation. This is, after all, public property we are talking about.”
AP Wireless sounded a common theme among cell site aggregators, saying that selling the lease protects the municipality from risk of a cell-site decommissioning.
At the meeting where AP Wireless addressed the commissioners, the town administrator, noted that maintaining monthly revenue of the lease might be in the town’s best interests. The mayor said, even if the town were to decide to sell its leases, it would go through a competitive bidding process.