SR 07-26-2016 7A
Ci ty Council
Report
C ity Council Meeting : July 26, 2016
Agenda Item: 7.A
1 of 2
To: Mayor and City Council
From: Marsha Moutrie, City Attorney , City Attorney ’s Office
Subject: Second Reading and Adoption of an Ordinance Adding Chapter 7.70 to the
Santa Monica Municipal Code Relating to the Regulation of
Telecommunication Facilities on Public Property and in the Public Right of
Way and Amending and Repealing Certain Provisions of Chapter 7.06 to the
Santa Monica Municipal Code Relating to Telecommunication Facilities
Recommended Action
Staff recommends that City Council adopt the att ached Ordinance.
Executive Summary
At its meeting on July 12, 2016, the City Council introduced for first reading an
ordinance adding Chapter 7.70 to the Santa Monica Municipal Code relating to the
regulation of telecommunication facilities on public prop erty and in the public right of
way, and amending and repealing certain provisions of Chapter 7.06 to the Santa
Monica Municipal Code relating to telecommunication facilities.
The ordinance is now presented to City Council for adoption.
Prepared By: Els a Kapsinow, Executive Assistant to the City Attorney
Approved
Forwarded to Council
Attachments:
A. Ordinance
2 of 2
B. Written comments
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1
Anne Samartha
From:Paul Albritton <pa@mallp.com>
Sent:Monday, July 25, 2016 6:50 PM
To:Tony Vazquez; Ted Winterer; Kevin McKeow n Fwd; Gleam Davis; Sue Himmelrich; Pam
OConnor; Terry O’Day
Cc:Joseph Lawrence; Clerk Mailbox
Subject:Verizon Wireless Comments to Ri ght of Way Wireless Ordinance
Attachments:Letter to CC FINAL 07.25.16.pdf; ATT00001.htm
Follow Up Flag:Follow up
Flag Status:Flagged
Dear Councilmembers: Please find a ttached Verizon Wireless’s comments to the proposed right-of-way
wireless ordinance. We are concer ned that the ordinance violates fe deral law, and was drafted absent
stakeholder input. We urge you to c ontinue the second reading and allow for staff to review Verizon Wireless’s
comments as well as those submitted by other industry stakeholders.
Thank you.
Paul
for Paul Albritton
Mackenzie & Albritton, LLP
220 Sansome Street, 14th Floor
San Francisco, California 94104
(415) 288-4000
pa@mallp.com
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M ACKENZIE & A LBRITTON LLP
220 S ANSOME S TREET , 14 TH F LOOR
S AN F RANCISCO , C ALIFORNIA 94104
T ELEPHONE 415 / 288-4000
F ACSIMILE 415 / 288-4010
July 25, 2016
VIA EMAIL
Mayor Tony Vasquez
Mayor Pro Tempore Ted Winterer
Councilmembers Kevin McKeown
Gleam Davis, Sue Himmelrich
Pam O’Connor and Terry O’Day
City Council
City of Santa Monica
1685 Main Street #200
Santa Monica, California 90401
Re: Ordinance Regulating Telecommunication Facilities on Public Property
and in the Public Right-of-Way
City Council Agenda Item 7.A, July 26, 2016
Dear Mayor Vasquez, Mayor Pro Tempore Winterer and Councilmembers:
We write on behalf of our client Verizon Wireless to urge you to defer action on
the proposed ordinance regulating telecommunication facilities on public property and in
the public right-of-way (the “Proposed Ordinance”) until staff has had an opportunity to
solicit and receive input from the wireless industry. Verizon Wireless only became aware
of the Proposed Ordinance late last week, and we understand that no industry input has
been solicited or received in the drafting of the Proposed Ordinance. As a result, the
Proposed Ordinance violates various provisions of federal law and will lead to immediate
conflict between the City of Santa Monica and the wireless industry, if adopted.
Accordingly, Verizon Wireless asks you to defer the second reading of the Proposed
Ordinance to allow staff time to process stakeholder input.
The Proposed Ordinance contains at least three clear violations of federal law:
•Proposed Ordinance Sections 7.70.020(s) and 7.70.070 regulate based upon radio
frequency emissions. For 20 years, the Telecommunications Act of 1996 has
prohibited local jurisdictions from regulating wireless facilities based upon the
environmental effects of radio frequency emissions. Provisions of the Proposed
Ordinance that require discretionary review solely based upon the increase in
EMF output violate this prohibition. See 47 U.S.C. §332(c)(7)(B)(iv).
•Proposed Ordinance Section 7.70.060 and 7.70.070 require discretionary review
of collocations and all modifications. The 2012 Spectrum Act requires approval
of collocations and modifications that are “eligible facilities requests” under the
Spectrum Act. Indeed, the Spectrum Act mandates that local jurisdictions “may
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July 25, 2016
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not deny, and shall approve, any eligible request.” 47 U.S.C. §1455(a)(1). By
requiring discretionary review for installations where there is a wireless facility
for another carrier and for modifications that do not substantially change the
existing facility, the Proposed Ordinance directly violates the Spectrum Act.
•Proposed Ordinance Section 7.70.080(3) imposes a discretionary finding
requiring new camouflage or concealment elements for collocations or
modifications that are eligible facilities requests with no prior concealment
elements. When the Federal Communications Commission adopted the 2014
Spectrum Act Order, it ruled that collocation or modification to an existing
wireless facility is not an eligible facilities request if “it would defeat the
concealment elements of the eligible support structure,” but the Spectrum Act and
Spectrum Act Order do not allow the City to impose new concealment elements
where there are none already present. See 47 C.F.R. §1.40001(b)(7)(v). By
requiring new concealment elements for unconcealed facilities, the Proposed
Ordinance violates the Spectrum Act.
In addition to these explicit violations of federal law, Verizon Wireless can
provide several other examples of inconsistencies with federal law including the Shot
Clock ruling and definitions under 47 C.F.R. §1.40001(b). Based upon our experience
with other jurisdictions, Verizon Wireless can propose revisions to avoid these violations
and other practical impediments that will otherwise lead to conflict. For these reasons,
Verizon Wireless urges you to allow additional time for staff to meet with industry
stakeholders to amend the Proposed Ordinance to avoid direct conflicts with law and to
provide a more workable ordinance for staff and industry that serves the community
interest.
Thank you for your careful consideration of Verizon Wireless’s request.
Sincerely,
Paul B. Albritton
cc: Joseph Lawrence, Esq.
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Reference:
Ordinance No. 2525
(CCS)