01 - Laserfiche WebLink

City of Pleasanton City Council February 20, 2019 Page 2 of 6 Key Legal Concepts The Telecommunications Act of 1996 ("Act") establishes key limitations on local regulations. The Act defines the scope and parameters of the city's review of AT&T's applications. Under the Act,the city must take action on AT&T's applications"within a reasonable period of time."2 The Act also requires that the city's review of AT&T's applications must be based on substantial evidence.3 Under the Act, state and local governments may not unreasonably discriminate among providers of functionally equivalent services.4 The Act also prohibits a local government from denying an application for a wireless facility where doing so would "prohibit or have the effect of prohibiting the provision of personal wireless services."5 The FCC has ruled that an effective prohibition occurs when the decision of a local government materially inhibits wireless services.6 The FCC explained that the "effective prohibition analysis focuses on the service the provider wishes to provide, incorporating the capabilities and performance characteristics it wishes to employ, including facilities deployment to provide existing services more robustly, or at a better level of quality, all to offer a more robust and competitive wireless service for the benefit of the public."7 Thus, a local government"could materially inhibit service in numerous way—not only by rendering a service provider unable to provide existing service in a new geographic area or by restricting the entry of a new provider in providing service in a particular area, but also by materially inhibiting the introduction of new services or the improvement of existing services." The FCC recently issued its small cell deployment order and associated rules, which went into effect on January 14, 2019. Under the Infrastructure Order, local aesthetic regulations for small cell siting must be (1)reasonable (i.e., has to be technically feasible), (2) no more burdensome than those applied to other infrastructure deployments, and (3) objective and published in advance.9 The FCC also established a standard for lawful fees, which requires that: "(1)the fees are a reasonable approximation of the state or local government's costs, (2) only objectively reasonable costs are factored into those fees, and (3)the fees are no higher than the fees charged to similarly-situated competitors in similar situations."10 Thus, only objectively reasonable costs that are recovered on a nondiscriminatory basis can be included in fees. AT&T has a statewide franchise right to access and construct telecommunications facilities in the public rights-of-way. Under Public Utilities Code Section 7901,AT&T has the right to access and construct facilities in public rights-of-way in order to furnish wireless 2 47 U.S.C. §332(c)(7)(B)(ii). 3 47 U.S.C. §332(c)(7)(B)(iii). 447 U.S.C. §332(c)(7)(B)(i)(I). 547 U.S.C. §332(c)(7)(B)(i)(II). 6 See Infrastructure Order(FCC rejected the significant gap/least intrusive means test for an effective prohibition that many courts, including the Ninth Circuit,have applied);see also,In the Matter of California Payphone Association Petition for Preemption, Etc.,Opinion and Order,FCC 97-251, 12 FCC Rcd 14191 (July 17, 1997). Infrastructure Order at n. 95. 81d.at 1137. 9See id.at¶86. 10 Id.at1150.