AB 537 Creates a “Deemed Granted” Remedy for all Wireless Applications, Including Small Cells

Best Best & Krieger LLP

Best Best & Krieger LLP

Assembly Local Government Committee Hearing Set for Wednesday, April 14

Assembly Bill 537 would expand Government Code section 65964.1 to provide a deemed granted remedy for all types of wireless applications.

While the legislative counsel’s digest notes the bill would provide a deemed granted remedy for “eligible facilities requests,” or EFRs, these requests already have a deemed granted remedy in FCC regulations. The bill’s real impact is to provide a deemed granted remedy for small cell applications. In 2018, the FCC issued a Small Cell Order that mandates very short “shot clocks” for review of small wireless facility applications (60 days for existing poles and 90 days for new or replacement poles), but the FCC did not give applicants a deemed granted remedy. Further, the FCC Order states that the time lines are presumptively reasonable — meaning, in certain circumstances, a longer review period would be permissible. The rules also allow the time for review for all FCC shot clocks to be tolled due to an incompleteness notice or by mutual agreement with the applicant.

AB 537 would allow applicants to send a notice if they believed (rightly or wrongly) any FCC shot clock was missed, which would then put the burden on the local government to expend resources to go court within 30 days of the notice to challenge the legality of the deemed granted claim. Understaffed local governments, already coping with COVID-19 impacts in their communities, will be vulnerable to being inundated with deemed granted notices for applications that have not been adequately vetted, potentially risking the health and safety of the communities.

Similar to Senate Bill 556, the bill’s introduction claims giving more rights to the wireless industry is necessary to speed broadband deployment, but no consideration is given to the various legitimate public interest reasons why the issuance of local permits may be delayed or the financial burden that would be placed on local governments forced to initiate legal proceedings to defend against claims that have no merit. Also like SB 556, this bill does not require the wireless industry to expand broadband facilities or close the digital divide. This bill, coupled with SB 556, which proposes to preempt local government control of wireless deployments on street lights and traffic lights, would hand the wireless industry free reign to deploy their facilities on public assets in local streets at the public’s risk and expense. The League of California Cities opposes both bills. Contact your Assembly members to ensure your voice is heard.

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DISCLAIMER: Because of the generality of this update, the information provided herein may not be applicable in all situations and should not be acted upon without specific legal advice based on particular situations.

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