CC SR 20191001 K - FCC Petition Response
01203.0015/601777.1
RANCHO PALOS VERDES CITY COUNCIL MEETING DATE: 10/01/2019
AGENDA REPORT AGENDA HEADING: Consent Calendar
AGENDA DESCRIPTION:
Consideration and possible action to join a coalition of public agencies being formed by
Telecom Law Firm acting against a petition submitted to the Federal Communications
Commission (the “FCC”) which would, if approved by the FCC, further erode local
authority over expansions to existing wireless facilities
RECOMMENDED COUNCIL ACTION:
(1) Authorize the City Attorney to join, on behalf of the City of Rancho Palos Verdes,
the coalition of public agencies being formed by Telecom Law Firm acting in
opposition to the petition filed with the FCC to further erode local authority over
the expansion of existing wireless facilities.
FISCAL IMPACT: Joining the public agency coalition will require a one-time, flat fee of
$3,500. The coalition and fee is set by the Telecom Law Firm, and will cover the entire
cost to handle the comment and reply phases of the petition filled with the FCC.
Amount Budgeted: $270,000
Additional Appropriation: None
Account Number(s): 101-400-2999-4901 (General Fund – Non-department/Misc. Expenses)
ORIGINATED BY: William W. Wynder, City Attorney
REVIEWED BY: Ara Michael Mihranian, AICP, Community Development Director
APPROVED BY: Doug Willmore, City Manager
ATTACHED SUPPORTING DOCUMENTS:
A. None
BACKGROUND AND DISCUSSION:
The Wireless Industry Association (“WIA”) and CTIA – The Wireless Association
(“CTIA”) (collectively, the “Industry”) recently petitioned the Federal Communications
Commission (“FCC”) for a declaratory ruling to further erode local government authority
over expansions to existing wireless facilities (“Petitions”).
Public agencies wishing to oppose the Petitions must do so through the notice-and-
comment rulemaking process, which the FCC has fast-tracked. Opening comments are
due October 15, 2019 and replies are due October 30, 2019, followed by an
indeterminate period for ex parte communications with the FCC while it deliberates.
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The Telecom Law Firm (“TLF”) is assembling a coalition of local public agencies and
municipal associations to share in the effort and spread the costs to oppose the
Petitions. TLF has represented local governments and municipal associations in various
FCC proceedings and judicial challenges, including the proceeding that created the
rules the Industry now seeks to change. TLF offers to represent the City through its
coalition.
A. The Substance of the Petitions. In the Petitions, the Industry asks the
FCC to:
mandate an essentially ministerial process that preempts public notice and an
opportunity to be heard about changes that affect individual citizens’ property
interests and the community at large;
allow applicants to undo careful concealment efforts on existing facilities unless
the original permit approval contained specific findings that were never previously
required;
expand the list of prohibited application requirements to include radio freque ncy
emissions safety and exposure reports, equipment inventories, and others;
preempt local authority to require cell site operators to clean up blight, nuisances
and other code violations caused by their own neglect as a condition of approval
for a proposed site expansion; and
make it more difficult and expensive for local governments to exercise their
legitimate police powers to protect public health, safety, and welfare.
Most (if not all) of these rule changes conflict with the underlying rationales for why the
FCC either adopted the existing rules or declined similar requests in prior rulemaking
proceedings. The proposals also present statutory interpretation problems and raise
serious constitutional questions about due process and the limits on fede ral authority to
compel states and local governments to regulate according to federal standards.
B. Public Agency Coalition The FCC has fast-tracked the Petitions as
opening comments are due October 15 and replies are due October 30. FCC
proceedings typically involve a 30-day comment window immediately followed by a 30-
day period to file replies to the initial comments. Here, the FCC noticed the Petitions
faster than expected and has cut the reply period in half. After the reply period closes,
the FCC has no deadline to take action on the Petitions and interested parties may
continue to engage with the FCC through the ex parte process until the item is placed
on an FCC meeting agenda.
TLF is assembling a coalition of local governments and municipal associations and
coordinating with other local-government advocates. This approach allows TLF to pool
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limited resources, crystalize more compelling facts in the record and present the best
possible defense. Robert May and Dr. Jonathan Kramer would serve as lead counsel
for the coalition.
The per-member contribution would be $3,500 in a one-time flat fee paid in advance.
This contribution includes the time and expense to: (1) investigate and evaluate alleged
bad-actor anecdotes; (2) research other counter evidence for the record; (3) draft, edit
and file comments and replies to comments; and (4) coordinate with coalition members
and provide regular status updates. This estimate does not include ex parte meetings
with the FCC; coalition members that wish to participate in ex partes would be billed
separately if they so choose that route.
ALTERNATIVES:
In addition to the Staff recommendation, the following alternative action is available for
the City Council’s consideration:
1. Do not authorize the City Attorney to join, on behalf of the City of Rancho
Palos Verdes, the coalition of public agencies being formed by Telecom Law
Firm
2. Take other action as deemed appropriate by the City Council.
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