SR-400-005-03 (4)
F: ATTY/MUNI/CES/WIRELESS MORATORIUM
Council Meeting: February 24, 2004 Santa Monica, California
TO: Mayor and City Council
FROM: City Staff
SUBJECT: Emergency Interim Ordinance Imposing a Temporary Moratorium Related to
Installation of Wireless Communications Facilities in the Public Rights of
Way
Introduction
This report recommends that the City Council adopt a temporary moratorium on installation
of wireless communications facilities in the public rights of way. The purpose of this
moratorium is to allow the City to explore whether wireless facilities have a legal right to
locate in the public right of way and, if so, to provide wireless companies and other utilities
additional time to comment on the right of way management ordinance proposed by staff.
This moratorium will go into effect immediately after adoption and will last for six months
unless extended by Council.
Background
The City owns and manages the public rights of way (PROW) traversing throughout the
City. These PROW resources are limited and given the City’s large density and built out
nature, it is likely that the amount of area devoted to PROW will remain limited. PROWs
have historically been reserved for City-owned utilities, such as sewer, water, street
lighting, traffic signals, and storm drains; gas, electric and phone lines; as well as
franchised cable television. As a result, the City’s PROWs have become increasingly
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crowded with existing infrastructure serving a variety of public and private purposes.
While historically wireless companies have elected to locate on private property, subject to
the City’s detailed zoning regulations, very recently there has been an apparent industry
shift towards locating on PROW. This location trend is due to a number of factors
including reduced rental rates, fewer regulations and the general increase in wireless
demand.
The demand for wireless technology has skyrocketed since the Federal government
adopted the 1996 Telecommunications Act. This law was enacted to encourage the rapid
deployment of new telecommunications technologies. According to the Cellular
Telecommunications & Internet Association, since the 1996 Telecommunications Act, the
number of wireless subscribers in the nation has increased from approximately 38 million
to over 148 million. Industry estimates show that 30 percent of calls that were previously
placed on landline phones are now transmitted wirelessly, accounting for the 400 billion
wireless minutes used in 2003. In order to accommodate the demand, the number of cell
sites nationwide has increased from 24,802 in 1996 to 147,719 in 2003. In addition to the
increased usage of wireless technology, the equipment technology is also evolving at a
rapid rate. Technology such as micro cells and repeaters now permit downsized
installations which can be incorporated into existing infrastructure so as to significantly
camouflage its placement.
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As a result of these changes in federal law and the quick expansion of the
telecommunications field, the City has begun receiving increased requests for permits to
excavate in the PROW. During the time period of 1996 to December 2002, the City
received only one application for a wireless installation in the PROW. In 2003, the City
received multiple applications from wireless carriers to locate wireless facilities in the
PROW. The City has also received inquiries from additional wireless companies, and the
City expects that this recent influx of applications will continue.
The current municipal code sections related to excavations in the public right of way were
last modified by Resolution 1187 (CCS) on November 12, 1980, well before the changes in
federal law and the shift in the industry’s facility location policy. As such, the City’s current
Code does not adequately address the installation of wireless facilities in the PROW.
The recent changes in federal law, the City’s need to update its current PROW regulations
to accommodate wireless installations, the recent influx of applications by wireless
companies to locate in the PROW, the continued demand for the space above and below
the PROW by other utility providers, and the needs of vehicular/pedestrian access and
private businesses and other public institutions make it necessary for the City to take a
comprehensive look at how to manage the PROW.
Discussion
The City’s public streets, sidewalks, parkways, courts, pedestrian paths, bikeways and
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other easements, have become increasingly crowded with telecommunication, gas, and
electrical lines as well as City-owned utilities such as sewer, water, street lighting, traffic
signals, and storm drains.
In addition to these more traditional uses of the PROW, wireless carriers are beginning to
assert that they have legal authority to locate facilities in the PROW pursuant to Public
Utilities Code Section 7901. However, since this Code section was enacted long before
the invention of wireless technology, it is unclear whether this law applies to wireless
companies and to the traditionally large antennas associated with this technology.
However, recognizing the public demand for wireless services and the technology’s
similarities to other utilities, other cities are slowly starting to permit wireless facilities to
locate on the PROW, subject to reasonable time, place and manner regulations.
Because the inclusion of this new technology into the PROW could impact the existing
infrastructure and result in aesthetic and other impacts, a comprehensive study of the
PROW should be performed prior to implementing specific regulations pertaining to this
new technology. Any management of the PROW will require a careful study of the
following overarching policies:
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Preserving the integrity and aesthetic quality of the City’s PROW;
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Addressing the long-term management of the PROW;
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Addressing concerns about Public Works Projects encountering unknown utilities in
the PROW during construction;
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Ensuring that the manner in which the PROW is accessed minimizes disruption to
the community;
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Ensuring utilities (including telecommunication and wireless companies)
competitively neutral and non-discriminatory access to the PROW; and
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Ensuring compliance with State and Federal laws allowing access to the PROW.
In addition to the legal and policy issues, residents have expressed significant concern
relating to the location of wireless communication facilities within the City. These concerns
relate, among other things, to the aesthetic effects of such facilities on neighboring
properties and the community as a whole, and the appropriate locations for these facilities.
Staff has already begun this analysis and, in fact, is concurrently proposing a
comprehensive PROW management ordinance which it believes appropriately balances
these concerns. In developing this ordinance, staff has had two meetings with industry
representatives and one meeting with the general public to hear concerns and receive
feedback on proposed regulations. However, given the complexity of the issues involved,
the current objections to the proposed ordinance voiced by portions of the industry and the
fact that Council has not previously had the opportunity to give direction to staff on these
issues, staff believes that additional industry and public feedback and dialogue would
result in a more community serving ordinance.
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A short moratorium on wireless installations, as proposed here, would allow the City
additional time to study, among other things, (1) how the City’s overarching management
right of way policies apply to wireless technology; (2) whether wireless utilities have
current legal authority to locate in the PROW; (3) notwithstanding the lack of such
authority, whether it nevertheless serves the public interest to permit such location in the
PROW; (4) the compatibility of wireless technology with existing right of way
improvements; (5) the potential interference such technology would have with existing right
of way improvements; (6) mitigations, such as co-location, which can reduce aesthetic
impacts; and (7) appropriate time, place and manner regulations for such facilities.
The City has a very limited number of potential sites which would be acceptable for the
installation of wireless communication facilities in that the geographic area of the PROW is
limited and already contains a variety of existing infrastructure. Therefore, while the City
is soliciting industry and public input, a temporary six month moratorium is suggested in
order to ensure that all installations comply with any new regulations adopted by the
Council, to ensure capacity for future public and private utilities as well as competing
wireless carriers, to ensure that the City’s limited resources are not wasted and to avoid
the interference with existing infrastructure. Courts have upheld local imposition of short
moratoria such as the one proposed here.
Budget/Financial Impact
There are no budget or financial impacts.
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Recommendation
It is recommended that the Council adopt the attached emergency ordinance which will go
into effect immediately upon adoption and which will impose a six-month moratorium on the
installation of wireless communications facilities.
Prepared by: Craig Perkins, Director of Environmental and Public Works Management
Anthony Antich, P.E., City Engineer
Marsha Jones Moutrie, City Attorney
Joseph Lawrence, Assistant City Attorney
Cara E. Silver, Deputy City Attorney
Kathryn Vernez, Assistant to the City Manager, Government Relations
Dave Britton, P.E. Principal Engineer
Donald Patterson, Senior Administrative Analyst
Attachment: Ordinance (See adopted Ordinance No.2118 (CCS)
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