Proposed California Law Would Automatically Approve Applications for Cell Sites

by Best Best & Krieger LLP

Municipalities Should Act Immediately if They Wish to Make their Views Known to their Legislators

The California State Assembly’s Local Government Committee has unanimously voted Assembly Bill 57 out of committee, moving the bill forward. If adopted in its current form, AB 57 would deem approved an application for new wireless towers and facilities if: (1) the city (including a charter city) or county fails to approve or disapprove the application within the time periods established in the Federal Communications Commission’s 2009 Declaratory Ruling (24 FCC Rcd. 13994), and (2) all public notices regarding the application have been provided. The law would also apply to applications to collocate additional wireless facilities and devices on or adjacent to existing facilities.

The FCC’s 2009 Declaratory Ruling referred to in AB 57 interpreted a “reasonable period of time” to be 90 days for processing colocation applications, and 150 days for processing all other applications. In the 2009 ruling, the FCC also considered whether an application should be “deemed granted” when a state or local government fails to take action within these time periods, but rejected that remedy. The FCC said that, in any particular case, a locality that was challenged for failing to meet the federal deadline could show that more time was required to act on the application. The FCC recently reaffirmed that decision with respect to initial installations of facilities, and with respect to many colocations.

AB 57, on the other hand, would establish a strict, statewide requirement that would approve applications for initial installations not acted on within a very short period of time, regardless of the complexity of the proposal.

AB 57 also creates a “deemed granted” remedy for colocations. There is a federal “deemed granted” rule that applies to some colocations (those that do not involve a substantial change in the physical dimensions of existing facilities); but the AB 57 rule is broader, and applies to any application for colocation of equipment, facilities and antennas on or adjacent to an existing wireless facility. In addition, the FCC rule for colocations is being challenged in federal court, and may be struck down in whole or in part. If AB 57 is law, the California law would include a “deemed approved” remedy, even if the FCC rule was invalidated.

Under AB 57, while notice must be given to the public, in many communities the time lines will not allow adequate opportunity for public participation, or time to develop a record that will allow localities to make a reasoned decision on an application or to establish appropriate conditions on an application. The time lines may also require localities to hire additional staff, adopt new procedures or give wireless applications priority over other pending applications.

AB 57 contains an express finding that wireless facilities are a matter of statewide concern, not a “municipal affair” — as that term is used in section 5 of Article XI of the California Constitution — so that charter cities would also be subject to its requirements.

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