Legal Alerts Oct 13, 2015

Absent Timely Local Processing, New California Law Automatically Approves Applications for New Cell Sites and Large Colocations

Municipalities Should Ensure They Will Be in Compliance

Absent Timely Local Processing, New California Law Automatically Approves Applications for New Cell Sites and Large Colocations

A new California law signed by Gov. Jerry Brown on Friday deems approved an application for new wireless towers and facilities and some colocations. The law applies if:

  1. The city (including a charter city) or county fails to approve or disapprove the application within the time periods established in two Federal Communications Commission decisions in 2009 and 2014,
  2. All public notices regarding the application have been provided pursuant to public notice requirements for the application and
  3. The applicant provides the agency with notice that the reasonable time periods have expired.

The FCC decisions referred to in AB 57, which goes into effect Jan. 1, interpreted a “reasonable period of time” to be 90 days for processing colocation applications, and 150 days for processing all other applications. In the 2009 ruling, the FCC also considered whether an application should be “deemed granted” when a state or local government fails to take action within these time periods, but rejected that remedy. The FCC said that, in any particular case, a locality that was challenged for failing to meet the federal deadline could show that more time was required to act on the application. The FCC reaffirmed that decision in its 2014 decision with respect to initial installations of facilities, and with respect to many colocations.

AB 57, on the other hand, establishes a strict, statewide requirement that approves applications for initial installations not acted on within a very short period of time, regardless of the complexity of the proposal.

AB 57 also mandates a “deemed granted” remedy for some colocations. There is a federal “deemed granted” rule that applies to some colocations under the 2014 ruling (those that do not involve a substantial change in the physical dimensions of existing facilities). AB 57 rule is broader, and applies to those colocations unaffected by the 2014 ruling. 

Under AB 57, once the applicable timeline period has expired and as long as all public notices have been provided, carriers can deem their application granted by providing written notice to the city or county. AB 57 does not define what “public notices” are required. However, they presumably include all notices required to be provided under the Permit Streamlining Act, California Environmental Quality Act and applicable land use regulations.

AB 57 contains an express finding that wireless facilities are a matter of statewide concern, not a “municipal affair” — as that term is used in section 5 of Article XI of the California Constitution — so that charter cities would also be subject to its requirements. The one exemption from AB 57 is that it does not apply to wireless facilities located at fire department facilities.

Cities should review their procedures, ordinances and policies for processing wireless applications to ensure that they comply with this new law. This review should also include  compliance with the  FCC’s  regulations implementing section 6409 (a) that establishes regulation for other colocations on existing wireless facilities. 

For more information, please contact the attorney authors of this legal alert listed to the right in the Telecommunications Law practice group, or your BB&K attorney.

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Disclaimer: BB&K legal alerts are not intended as legal advice. Additional facts or future developments may affect subjects contained herein. Seek the advice of an attorney before acting or relying upon any information in this communiqué.

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