In January of 2019, the FCC stripped most local control relating to "small cell" wireless facilities away from every city in the United States. Most everyone uses a cell phone or other wireless apparatus on a daily basis. Generally, the more demand for wireless results in the need for more wireless facilities.
In 1996, the federal legislature determined there was a need to create uniform regulations for wireless facilities in order to expand the wireless system across the United States. Prior to 1996, every city, county, and state, had the authority to draft its own rules and laws. The 1996 Telecommunications Act creates uniform regulations and takes away local government control in certain aspects. For instance, prior to adoption of the Act, a city could establish its own radio frequency (RF) thresholds for safety determinations. The Act took away this power.
Today, no city in the country can regulate a facility on the basis of RF emissions concerns if the facility meets the RF standards adopted by the federal government. Still, cities maintained local control on other aspects of wireless facilities. For example, it could regulate a facility based on how it looked, where it was located, and how much it could charge for using the public right-of-way. Cities could also create its own timeline for processing requests for new facilities.
In September 2018, the FCC adopted new rules to expedite and streamline the roll-out of small cell wireless facilities. Two key components are: (1) a “shot-clock” was adopted that restricts local government review and consideration of a small cell wireless facility to either 60 or 90 days; and (2) the amount of money that can be charged by the local government to use the public right-of-way was significantly reduced. Many cities, including the City of Thousand Oaks, opposed these new regulations. Unfortunately, the FCC adopted the rules despite significant opposition by cities across the country. These rules became effective as new law on January 19, 2019.
As of January 14, 2019, most of the FCC's Rule 18-133 regulations went into effect. Rules related to aesthetics go into effect on April 12, 2019. These FCC rules apply to every city in the country. Unless and until a court concludes that the rules are illegal, or the federal legislature passes laws that revoke these rules, they are the law, and every city is required to follow the law. Every city in the country should adopt local laws in response to the FCC rules that will protect city control as much as possible.
The City of Thousand Oaks did that on March 5, 2019 when it adopted an ordinance and resolution creating regulations regarding small cell wireless facilities. Many cities have not adopted any regulations, but many have. Most important is that city regulations must comply with the FCC rules. If they don’t, then they most likely violate federal law. In the City’s case, the new ordinance and resolution sets forth design criteria in an effort to control aesthetics. It requires a noise study in an effort to prevent unreasonable noise impacts from new facilities. It creates a list of preferred locations in an effort to keep facilities out of residential neighborhoods. It identifies a list of preferred facility types and design in order to reduce aesthetic impacts. It requires all facilities to comply with all federal, State and local laws, regardless of whether they changed. It requires all facilities to show proof of compliance with federal RF emissions regulations.
If you are interested in reading what the City’s regulations say, here is a link to the ordinance and resolutions.
The City does not have a position of support or opposition to 5G technology. Instead, the City has taken a position on local control over its implementation. The FCC’s approval of the new rules is supposed to support implementation of 5G. This new wireless technology will not only advance mobile communications but is said to advance technology in autonomous vehicles, virtual reality, and robotics.
Once fully implemented, 5G is supposed to offer increased bandwidth and faster speeds than previous mobile phone technologies. One major difference between 5G and older technology is the type of facility needed. Older technologies provided for large and tall towers significantly spaced apart from each other where the lower-frequency waves could travel long distances and through buildings.
In contrast, 5G uses high-frequency waves, which can only travel short distances, and cannot easily travel through buildings. This technology requires a larger number of facilities than the older technologies. Rather than a single tower, the 5G network uses numerous smaller cell sites placed close together to relay signals. These are called “small wireless facilities.”
Yes - we can and we have - for many years. The City has adopted rules to protect as much local control as possible. The City has also sent numerous letters to state and federal legislators opposing any new wireless regulations that take away local control. The City has also defended itself in lawsuits brought by wireless carriers over the City’s regulations of wireless facilities in the City. Most importantly, the City is a member of the League of California Cities, one of the named parties in a federal lawsuit challenging these new FCC rules. The City will continue to defend its rights to local control.
Concerns about Radio Frequency (RF) emissions are the most common concerns raised by residents when the City considers a wireless facility application. Unfortunately, the City has no authority to address this concern. The 1996 Federal Telecommunications Act prohibits a city from considering RF issues when considering an application for a wireless facility if the applicant shows proof that the proposed facility meets the federal RF emissions regulations. This means that the City cannot create a lower emissions standard than set forth by the FCC. It also means that it cannot deny a wireless facility application that meets the emissions regulations on the basis of concern over RF emissions. Rather than just “believe” a statement by a wireless carrier that it meets RF emissions regulations, the City has retained a professional consultant since the 1990’s who reviews RF data for every wireless facility application, and provides advice and recommendations to the City with regard to RF emissions compliance.
- Yes they are. Under the 1996 Federal Telecommunications Act, the federal legislature tasked the FCC with creating rules for implementation of telecommunications consistent with the Act. When the FCC adopts rules, they become legal requirements that must be followed unless and until either (1) a court concludes that they are not lawful, (2) the FCC changes those rules, or (3) the federal legislature changes or revokes those rules. Although there are lawsuits challenging certain aspects of the FCC rules, they have not been stricken by a court, so they are lawful requirements that all cities in the US have to comply with.
Since the FCC rules are federal rules, you should contact your federal representative Congresswoman Julia Brownley, who represents the 26th District including Thousand Oaks.
Congresswoman Julia Brownley
1019 Longworth House Office Building
Washington, D.C. 20515
300 E. Esplanade Drive, Suite #470
Oxnard, CA 93036
223 E. Thousand Oaks Blvd., Suite #411
Thousand Oaks, CA 91362
Web page: http://juliabrownley.house.gov
- There are multiple lawsuits pending in the US over the new FCC rules. They are all being heard in the 9th Circuit Court of Appeals. Briefs that set forth legal arguments from each side have not been submitted, however, the basis for the lawsuits is over the requirement that cities are obligated to allow small cell facilities in public rights of way and can charge only a minimal amount for use of the right of way. The lawsuits are not trying to stop 5G in its entirety. Concerns over RF emissions are not a basis for these lawsuits either.
The City is not aware of any city in the United States that has passed an ordinance completely prohibiting 5G in their city without exceptions.If a city did adopt such an ordinance, it would not be valid and would expose the city to lawsuits by wireless carriers.
I’ve heard that other cities’ ordinances are stronger than Thousand Oaks’ ordinance. What do other ordinances say?Every city ordinance drafted in response to the FCC rules have certain commonalities regarding small cell facilities such as (1) they have to comply with FCC RF emissions regulations; (2) they have to have private property owner approval; and (3) size limitations to qualify as a “small cell facility”. They also have location regulations, design criteria, and application processing rules. Most important is that all ordinances have to comply with the law. Although they might use different language, most of them are the same as Thousand Oaks. For example, Mill Valley’s ordinance says that small cell facilities in residential areas are prohibited, however, it allows them in residential areas under an exception process if denial would violate federal or state law. Thousand Oaks’ ordinance says that residential areas are “non-preferred locations” and that small cell facilities cannot go into non-preferred locations unless it is proven that another location is not feasible.
Shouldn’t the City rescind the City ordinance and wait until the 9th Circuit Court of Appeal decides the lawsuits? What’s the rush?Actually, cities across the country are having to adopt ordinances quickly in order to comply with these new rules and – more importantly – to try to protect local control as much as possible. The City’s ordinance adopted on March 5th does just that. The ordinance complies with FCC rules, however, it also sets forth design criteria, location preferences, and facility permit conditions. If the City had not adopted an ordinance, it could not require wireless companies to comply with design criteria, location conditions, and permit conditions.
- Under the California Constitution (Cal. Const., art. XI, Sec 7), cities can make and enforce laws that are not in conflict with general laws. General laws are laws that apply statewide or country-wide. City ordinances that conflict with state or federal laws are not valid or binding. For example, the City cannot adopt an ordinance regarding DUIs – ie from a Blood Alcohol level of .08 to .05, because it conflicts with State law that sets the limit at .08. Similarly, the City cannot adopt an ordinance that sets a different federal tax rate for residents who earn more than $50,000.00 because the federal tax rate is set forth in IRS rules. Here, the 1996 Federal Telecommunications Act prohibits cities from adopting ordinances that prohibit or have the effect of prohibiting the provision of telecommunications services. Therefore, no city in the country can adopt an ordinance prohibiting 5G because it would conflict with the Federal Telecommunications Act.
Thousand Oaks’ policy takes a more direct approach by defining preferred locations, with residential at the bottom of the list.
While it may appear that some other cities fully prohibit residential placement by not including residential in their preferred locations, you will generally find disclaimers that loosen these restrictions if “in violation of state or federal law.”
See the town of Fairfax’ ordinance for an example of this approach.