SAN MARCOS CITY COUNCIL ITEM #12 TELECOMMUNICATIONS ORDINANCE

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1 SAN MARCOS CITY COUNCIL ITEM #12 TELECOMMUNICATIONS ORDINANCE THE ATTACHED INFORMATION AND CORRESPONDENCE RELATES TO ITEM #12 ON THE JANUARY 14, 2014, CITY COUNCIL AGENDA. Released on: 1/14/14 Date at: 5:30 p.m. Time

2 Kyta C. Pow~1 General Anomey AT&T Services, Inc K Slreet, Suite 1800 Sacramento, CA T: F: kyla.poweiioatt.com Sent Via and Hand Delivery Jerry Backoff, Director Planning Division City of San Marcos 1 Civic Center Drive San Marcos, CA Subject: Proposed Revisions to aty of San Marcos Telecommunications Ordinance Chapter Dear Mr. Backoff: AT&T Mobility, LLC, as manager of New Cingular Wireless PCS, LLC ("AT&T" ), appreciates the opportunity to provide comments on the City of San Marcos' draft Wireless Telecommunications Facility Ordinance revisions. AT&T has been providing communications service in Southern California for over one hundred years, and its affiliate has been providing wireless telecommunications services since the late 1980s. AT&T would like to work with the City in its efforts to address concerns about placement of wireless facilities within the City, while at the same time ensure that residents, businesses and visitors in San Marcos who rely upon cell phones and other wireless devices in their daily lives continue to have access to wireless service. We believe the proposed revisions go too far and will significantly impede AT&T's ability to provide such service. Over all, AT&T is concerned the proposed Ordinance revisions are overly specific and restrictive and could give rise to a host of future issues and problems, including implementation difficulties and violations of federal and state law. For example, requiring "conclusive proof" throughout the Ordinance that a proposed wireless facility is the least intrusive means to close a specific gap exceeds what is required by federal law and will be burdensome for applicants. Additionally, many of the proposed revisions impose wholesale requirements and discretionary reviews that disregard the mandate under Section 6409 of the Middle Class Tax Relief and Job Creation Act of 2012 for approvals of eligible facilities requests, as well as vested rights under California Public Utilities Code sections 7901 and For example, the nearly-blanket prohibition against almost all non-camouflaged facilities could bar approvals to which applicants are entitled under both sets of laws. Below, we identify many of the problematic provisions and applicable law in more detail. AT&T respectfully requests that the City further revise its draft Ordinance to delete or modify these provisions: 1. Section 20.46S.01OA of the draft Ordinance regarding the City seeking the "fewest number of Wireless Telecommunications Facilities... " ("WTF") will require AT&T to install the largest facilities practicable to build out its coverage network. This consequence could be inconsistent with Ordinance sections B, 20.46S.060.A.8, and A.l, which require WTFs to be the minimum height feasible.

3 Page 2 2. Section O.B of the draft Ordinance regarding the City requiring the "underground [sic] of wireless facilities... " is not practicable or feasible as the WTF must be above ground to transmit a signal. 3. Section C of the draft Ordinance regarding the City seeking to reduce or eliminate the possible impacts of WTFs on City residents, and encouraging WTFs outside of residential and agricultural areas of the City ignores the fact that network coverage needs and network coverage gaps exist in residential and agricultural areas of the City. 4. Sections A and B of the draft Ordinance regarding the applicability of the Ordinance to future applications to modify or renew City permits for any existing permitted or operational WTF site could impermissibly impair AT&T's rights under 47 U.s.c. section 1455(a) (the codified version of Section 6409 of the Middle Class Tax Relief and Job Creation Act of 2012 ("Section 6409" )) (discussed at Item No. 6 below) and its vested permit rights for facility modifications and upgrades. These Sections of the draft Ordinance could also impermissibly impair AT&T's Section 6409 rights and its vested permit rights to activate certain types or bands of cell service related to previously approved permits and sites within the City. 5. Section B of the draft Ordinance regarding the applicability of the entire Ordinance to activation of certain types or bands of cell service related to previously approved permits and sites within the City is irrelevant and burdensome, especially because such activation likely would not involve any material change in the size or appearance of the WTF, and could involve bands or types of service that were already included within an earlier permit. 6. Section of the draft Ordinance regarding the applicability of certain discretionary permitting processes (such as an Administrative Permit or a Conditional Use Permit) to a WTF application fails to include any regulations and provisions for mandatory approval of a WTF application under certain circumstances. This Section of the draft Ordinance will impermissibly impair AT&T's rights and privileges under Section 6409, as well as the Federal Communications Commission's ("FCC) formal written guidance issued on January 2S, 2013, about interpretation and implementation of the provisions of Section Section 6409 and the referenced FCC formal written guidance require the City timely to approve co-location, replacement and/or upgraded telecommunications facilities that do not involve a substantial change in the physical dimensions of a base station. Such mandatory approval of certain "eligible facilities" must occur within 90 days of submittal of an application consistent with the FCC formal written guidance. As such, any purported discretionary permitting process under Section of the Ordinance (or elsewhere) for a WTF qualifying under Section 6409, or any ministerial permitting process for a WTF application that would exceed a 90-day review period following an application submittal under Section 6409, would therefore be preempted by applicable federal legislation and regulations. Further, by failing to include necessary provisions to address the timely and mandatory processing of eligible facilities under Section 6409, the draft Ordinance is also internally inconsistent with Section F, which requires the Ordinance to "[c]omply with applicable... federal 7. Section of the draft Ordinance regarding the applicability of certain detailed review and discretionary permitting processes for a WTF application (involving non-eligible facilities

4 Page 3 under Section 6409) fails to include any regulations and provisions for the City to commit to processing an application within the 90 and 150 day timeframes following an application submittal that are required by the FCC in its 2009 Shot Clock Order. The FCC Shot Clock rules and time periods were upheld in City of Arlington v. Federal Communications Commission, 668 F.3d 229 (5th Cir. 2012). By failing to include necessary provisions to address the FCC Shot Clock rules, the draft Ordinance is internally inconsistent with Section F, which requires the Ordinance to "[c]omply with applicable... federal 8. Section of the draft Ordinance regarding the applicability of certain detailed review and discretionary permitting processes (such as an Administrative Permit or a Conditional Use Permit) for a WTF application could impermissibly impair AT&T's vested permit rights for facility modifications and upgrades relating to existing or previously approved cell sites within the City. Implementation of these Sections of the draft Ordinance could also impermissibly impair AT&T's vested permit rights to modify, renew or activate WTFs that have previously approved permits. As such, the draft Ordinance is internally inconsistent with Section F, which requires the Ordinance to "[c]omply with applicable state Section B.1 of the draft Ordinance requiring an applicant to provide "conclusive proof" to the City that a proposed WTF location is the least intrusive means to close a significant gap in coverage is inconsistent with, and preempted by, federal law. As held in T-Mobile USA, Inc. v. City of Anacortes, 572 F.3d 987, (9th Cir. 2009), a carrier is required only to make a "prima facie" or sufficient showing of a gap in service and a related least intrusive means to fill the gap. Accordingly, this Section of the draft Ordinance also is internally inconsistent with Section F, which requires the Ordinance to "[c]omply with applicable '" federal 10. Section B.2 of the draft Ordinance regarding the various factors to be considered by the City possibly to deny an application, or unreasonably to condition approval of a WTF application, could violate AT&T's Section 6409 rights, as well as its vested permit rights for previously-permitted and/or operational WTFs in the City. Further, the considerations and factors for possible denial of a WTF application stated in this Section could result in an effective prohibition of AT&T's services under the Federal Telecommunications Act of 1996 ("TCA")(47 U.s.c. section 151 et seq.) if a proposed cell facility is required to be placed in a location that is deemed acceptable by the City, but the deemed location does not enable AT&T to fill a significant gap in service through the least intrusive means. As such, this Section of the draft Ordinance is internally inconsistent with Section F, which requires the Ordinance to "[c]omply with applicable state and federal 11. Section B of the draft Ordinance, which at least implies that the City could deny a WTF application based on height limitations, visibility issues, location on the host property, or on appearance, would violate AT&T's Section 6409 rights for eligible facilities, as well as its vested permit rights for previously-permitted and/or operational WTFs in the City. Further, the factors for possible denial of a WTF application stated in this Section could result in an effective prohibition of AT&T's services under the TCA if a proposed cell facility is required to be placed in a location that is deemed by the City to be the "least visible to the public" or the "least disruptive to the appearance of the host property," but which deemed location(s) will not enable AT&T to fill a significant gap in service. As such, this Section ofthe draft Ordinance also

5 Page 4 is internally inconsistent with Section O.F, which requires the Ordinance to "[clomply with applicable state and federal 12. Section C of the draft Ordinance regarding the prohibition of non-camouflaged WTFs could violate AT&T's Section 6409 rights for eligible facilities, as well as its vested permit rights for previously-permitted and/or operational WTFs in the City. Further, the near blanket prohibition against non- camouflaged WTFs could violate AT&T's rights under CA Public Utilities Code sections 7901 and to install its facilities in the public ROW in a manner equivalent to the facilities installed by other public utility entities. As such, this Section of the draft Ordinance could also be internally inconsistent with Section F, which requires the Ordinance to "[clomply with applicable state and federal 13. Section of the draft Ordinance could result in an effective prohibition of AT&T's services under the TCA based on the limitation of the maximum number of WTFs that are permitted on a property within a residential or agricultural zone, as well as the minimum separation requirements for the facilities within those zones. 14. Section of the draft Ordinance regarding the limitation on the maximum number of WTFs on a parcel, as well as the minimum separation between WTFs on a parcel, could violate AT&T's Section 6409 rights for eligible facilities, as well as its vested permit rights for previously-permitted and/or operational WTFs in the City. As such, this Section of the draft Ordinance is internally inconsistent with Section O.F, which requires the Ordinance to "[clomply with applicable state and federal 15. Section of the draft Ordinance requiring an applicant to provide "conclusive proof' to the City that a proposed WTF location is the least intrusive means to close a significant gap in coverage is inconsistent with, and preempted by, federal law. As held in T-Mobile USA, Inc. v. City of Anacortes, 572 F.3d 987, (9th Cir. 2009), a carrier is required only to make a "prima facie" or sufficient showing of a gap in service and a related least intrusive means to fill the gap. Accordingly, this Section of the draft Ordinance also is internally inconsistent with Section F, which requires the Ordinance to "[clompiy with applicable... federal 16. Section of the draft Ordinance requiring the additional showing that "... (c) no feasible alternative exists to close the significant gap by the installation of one or more [WTFl sites in areas of the City enumerated in [sic a... " is inconsistent with, and preempted by, federal law. As held in T-Mobile USA, Inc. v. City of Anacortes, 572 F.3d 987, (9th Cir. 2009), a carrier is required only to make a "prima facie" or sufficient showing of two items: (1) a significant gap in service; and (2) a related least intrusive means to fill the gap. No third showing or factor as stated in this Section is required. Accordingly, this Section of the draft Ordinance also is internally inconsistent with Section O.F, which requires the Ordinance to "[clomply with applicable... federal 17. Section of the draft Ordinance could result in an effective prohibition of AT&T's services under the TCA based on the limitations on siting or locating a wireless telecommunications facility due to enhanced setback requirements. Section of the draft Ordinance also could violate AT&T's Section 6409 rights for eligible facilities, as well as its vested permit rights for previously-permitted and/or operational WTFs in the City. As such,

6 PageS this Section of the draft Ordinance is internally inconsistent with Section O.F, which requires the Ordinance to "[clomply with applicable state and federal 18. Section B of the draft Ordinance requiring an applicant to provide "conclusive proof' to the City that a proposed WTF location is the least intrusive means to close a significant gap in coverage is inconsistent with, and preempted by, federal law. As held in T-Mobile USA, Inc. v. City of Anacortes, 572 F.3d 987, (9th Cir. 2009), a carrier is required only to make a "prima facie" or sufficient showing of a gap in service and a related least intrusive means to fill the gap. Accordingly, this Section of the draft Ordinance also is internally inconsistent with Section O.F, which requires the Ordinance to "[clomply with applicable... federal Jaws." 19. Section B of the draft Ordinance requiring the additional showing that "... (c) no feasible alternative exists to close the significant gap by the installation of one or more [WTFl sites in areas of the City not enumerated below... " is inconsistent with, and preempted by, federal law. As held in T-Mobile USA, Inc. v. City of Anacortes, 572 F.3d 987, (9th Cir. 2009), a carrier is required only to make a "prima facie" or sufficient showing of two items: (1) a significant gap in service; and (2) a related least intrusive means to fill the gap. No third showing or factor as stated in this Section is required. Accordingly, this Section of the draft Ordinance also is internally inconsistent with Section F, which requires the Ordinance to "[clomply with applicable... federal 20. Section A.2 of the draft Ordinance regarding the mandatory "description of the proposed wireless system and its customer features... " is irrelevant and may require the disclosure of proprietary information. This required information for a WTF application is not reasonably related to zoning considerations about the physical nature of the WTF. 21. Section A.4 of the draft Ordinance regarding the mandatory description of the proposed facility in relation to all of the applicant's existing and potential facilities maintained... in the City... ", as well as those facilities maintained possibly within ~ mile of the City boundary, is irrelevant and may require the disclosure of proprietary information: This required information for a WTF application is not reasonably related to zoning considerations about the physical nature of the WTF. 22. Section A.5 of the draft Ordinance regarding the possible requirement to install an on-site "mock-up" for a proposed facility is unnecessary and burdensome given that photo simulations of a facility can adequately apprise the City and the public of the physical nature of the particular proposed facility. 23. Section GO.A.7 of the draft Ordinance regarding the requirement to provide a FCC compliance report with a "cumulative analysis of all the wireless telecommunications located on and/or adjacent to the project site... " is inconsistent with FCC requirements and is therefore preempted. The FCC regulations require only that certain individual and non-exempted WTFs provide RF compliance reports. AT&T should not be required to study the RF issues for facilities other than the one(s) that it proposes to install pursuant to an individual WTF application. Accordingly, this Section of the draft Ordinance also is internally inconsistent with Section F, which requires the Ordinance to "[clomply with applicable... federal

7 Page Sectian A.8 of the draft Ordinance regarding the requirement to design a WTF to the "minimum height required from a technological standpoint... ", as well as to submit evidence about whether a WTF designed at a lower height, combined with multiple sites, can accomplish network coverage, is inconsistent with federal law and is preempted. Implementation of this Section could violate AT&T's Section 6409 rights for eligible facilities, as well as its vested permit rights for previously-permitted and/or operational WTFs in the City, and could result in an effective prohibition of AT&T's services underthe TCA if the denial would not enable AT&Tto fill a significant gap in service through the least intrusive means. In addition, this Section is inconsistent with the holding in T-Mobile USA, Inc. v. City af Anacortes, 572 F.3d 987, 998 (9th Cir. 2009), that determined the additional costs related to a multiple site alternative to a proposed WTF was a valid reason for the carrier to reject the multiple site alternative. As such, this Section of the draft Ordinance could also be internally inconsistent with Section O.F, which requires the Ordinance to " [c)omply with applicable state and federal 25. Section A.15 of the draft Ordinance requiring an applicant to provide "clear and convincing evidence" to the City that no WTF in a preferred zone can accommodate the proposed facility is inconsistent with, and preempted by, federal law. As held in T-Mobile USA, Inc. v. City of Anacortes, 572 F.3d 987, (9th Cir. 2009), a carrier is required only to make a "prima facie" or sufficient showing of a gap in service and a related least intrusive means to fill the gap. Further, implementation of this Section could violate AT&T's Section 6409 rights for eligible facilities, as well as its vested permit rights for previously-permitted and/or operational WTFs in the City, and could result in an effective prohibition of AT&T's services under the TCA if the denial would not enable AT&T to fill a significant gap in service through the least intrusive means. Accordingly, this Section of the draft Ordinance also is internally inconsistent with Section F, which requires the Ordinance to "[c)omply with applicable... federal 26. Sections A-F of the draft Ordinance, which at least imply that the City could deny a WTF application based on various enumerated design and development standards and restrictions, could violate AT&T's Section 6409 rights for eligible facilities, as well as its vested permit rights for previously-permitted and/or operational WTFs in the City. Further, the factors and standards for possible denial of a WTF application stated in these Sections could result in an effective prohibition of AT&T's services under the TCA if application of any or all of the design standards would not enable AT&T to fill a significant gap in service through the least intrusive means. As such, this Section of the draft Ordinance also is internally inconsistent with Section OF, which requires the Ordinance to "[c)omply with applicable state and federal 27. Section E.2 of the draft Ordinance, which purports to require AT& Tto obtain a discretionary and written license Agreement to attach to City-owned structures within the right-of-way (ROW"), violates AT&T's Section 6409 rights for eligible facilities, its rights under California Public Utilities Code sections 7901 and to utilize the public ROW in a manner equivalent to that of other public utility entities, and its possible vested rights for previouslypermitted and/or operational WTFs in the ROW. While AT&T may be required under sections 7901 and to obtain a ministerial encroachment permit or ROW permit in this circumstance, it is not required to obtain a discretionary license Agreement from the City. Further, the possible denial by the City to enter into a license Agreement for a WTF proposed on a City pole or other facility within the ROW as stated in this Section could result in an

8 Page 7 effective prohibition of AT&T's services underthe TCA if the denial does not allow AT&T to fill a significant gap in service through the least intrusive means. Moreover, even if a discretionary written License Agreement could be required by the City, the City would not have the discretion, as implied by Section E.2, to charge a fee that exceeds the reasonable costs of providing the service for which the fee is charged. (CA Government Code section ) As such, this Section of the draft Ordinance also is internally inconsistent with Section F, which requires the Ordinance to "[c)omply with applicable state and federal 28. Section E.2 of the draft Ordinance requiring an applicant to provide "conclusive proof' to the City that a new pole for a proposed WTF in the ROW is the only means to provide coverage is inconsistent with, and preempted by, federal law. As held in T-Mobile USA, Inc. v. City of Anacortes, 572 F.3d 987, (9th Cir. 2009), a carrier is required only to make a "prima facie" or sufficient showing of a gap in service and a related least intrusive means to fill the gap. Accordingly, this Section of the draft Ordinance also is internally inconsistent with Section F, which requires the Ordinance to "[c]omply with applicable... federal 29. Section of the draft Ordinance regarding the requirement to provide a "detailed technical" annual FCC compliance report regarding RF emissions at a WTF is inconsistent with FCC requirements and is therefore preempted. The FCC regulations do not require such annual reports. Also, to the extent that the City would seek to revoke any permit issued to AT&T for failure to submit the referenced report, then this Section could violate AT&T's Section 6409 rights for eligible facilities, as well as its vested permit rights for previously-permitted and/or operational WTFs in the City. Accordingly, this Section of the draft Ordinance also is internally inconsistent with Section F, which requires the Ordinance to "[c)omply with applicable state and federal 30. Section of the draft Ordinance regarding the requirement to provide an annual CUP compliance report could violate AT&T's Section 6409 rights for eligible facilities, as well as its vested permit rights for previously-permitted and/or operational WTFs in the City to the extent that the City would seek to revoke any permit issued to AT&T for failure to submit the referenced report. Accordingly, this Section of the draft Ordinance also is internally inconsistent with Section F, which requires the Ordinance to "[c]omply with applicable... federal 31. Section J of the draft Ordinance regarding the need to provide a performance bond to be in effect until removal of the permitted WTF is an unnecessary and burdensome cost requirement as the City may enforce any permit conditions (including as to possible removal of the WTF) against both the owner of the subject land and against AT&T separate from such a performance bond. Also, to the extent that the City would seek to deny a permit, or to revoke any permit issued to AT&T, for failure to submit the referenced performance bond, then the Section would violate AT&T's Section 6409 rights for eligible facilities and its vested permit rights for previously-permitted and/or operational WTFs in the City, and could result in an effective prohibition of AT&T's services under the TCA. Accordingly, this Section of the draft Ordinance also is internally inconsistent with Section F, which requires the Ordinance to "[c]omply with applicable state and federal

9 Page Sections B-C of the draft Ordinance regarding the removal of WTFs after some period of nonuse could violate AT&T's Section 6409 rights for eligible facilities, its vested permit rights for previously-permitted and/or operational WTFs in the City, and its CA PUC sections 7901 and rights, and could result in an effective prohibition of AT&T's services under the TCA. Accordingly, this Section of the draft Ordinance also is internally inconsistent with Section O.F, which requires the Ordinance to "(c]omply with applicable state and federal 33. Section of the draft Ordinance regarding the ten (10] year term of a WTF permit, a possible shorter term for such a permit, and the requirement to seek renewal of WTF permits previously issued, could violate AT&T's Section 6409 rights for eligible facilities, its vested permit rights for previously-permitted and/or operational WTFs in the City, and its CA PUC sections 7901 and rights, and could result in an effective prohibition of AT&T's services under the TCA. Accordingly, this Section of the draft Ordinance also is internally inconsistent with Section F, which requires the Ordinance to "[c]omply with applicable state and federal 34. Section of the draft Ordinance regarding the possible denial of a WTF application for refusal to provide defense and indemnification obligations for a WTF permit could violate AT&T's Section 6409 rights for eligible facilities, its vested permit rights for previously-permitted and/or operational WTFs in the City, and its PUC sections 7901 and rights, and could result in an effective prohibition of AT&T's services under the TCA. Accordingly, this Section of the draft Ordinance also is internally inconsistent with Section O.F, which requires the Ordinance to "[c]omply with applicable state and federal 35. The entirety of the City's proposed WTF Ordinance is improper and unenforceable to the extent it seeks to impose on AT&T's WTF applications any obligations, standards or requirements that are not equally imposed on permits for facilities that are installed and/or operated by other public utility providers, whether the facilities of those other public utility providers are located in or out of the public ROW. We hope the City finds these comments to the proposed Ordinance revisions helpful. We welcome the opportunity to work with the City staff to discuss our legal and practical concerns and to develop mutually-amenable solutions. AT&T also requests that its letter be placed in the administrative record regarding the City's consideration of the draft WTF Ordinance. Sincerely, cc: Phil Scollick, City of San Marcos City Clerk Karen Brindley, City of San Marcos Principal Planner