I’m hearing a lot about wireless. What’s going on?

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 (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. A city 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 FCC stated that 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 Simi Valley, 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.

I heard other cities are doing more to fight back against these new FCC rules.

As of January 14, 2019, most of the FCC's Rule 18-133 regulations went into effect. Rules related to aesthetics went 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 Simi Valley did that on March 25, 2019 when it adopted an ordinance and resolution creating regulations regarding small cell wireless facilities. Some 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. Among other requirements, it creates a list of preferred locations in an effort to keep facilities out of residential neighborhoods to the extent feasible. It identifies a list of preferred facility types and design in order to reduce aesthetic impacts. It requires a noise study in an effort to prevent unreasonable noise impacts from new facilities. 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.

Does the City Council Support 5G?

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.”

Can’t the City fight this?

Yes - we can and we have. The City has adopted rules to protect as much local control as possible. The City has also sent letters to state and federal legislators opposing any new wireless regulations that take away local control. 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 advocate for local control.

What about RF emissions?

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 requires detailed RF studies, and periodic updates, to prove compliance with RF safety requirements.

Are the FCC rules “the law”?

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.

I have concerns, whom do I contact?

Since the FCC rules are federal rules, you should contact your federal representative Congressman Mike Garcia, who represents the 25th District, including Simi Valley.

Congressman Mike Garcia
1535 Longworth House Office Building
Washington, D.C. 20515
Phone: 202-225-1956

District Office
1445 East Los Angeles Ave.
Suite 206
Simi Valley, CA 93065
Phone: (805) 760-9090

Hours
Monday, Wednesday
9:00am - 5:00pm

Congressman Mike Garcia's Website

I’ve heard some cities have filed lawsuits. What are the lawsuits about?

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. 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.

I’ve heard that other cities have adopted ordinances prohibiting 5G in their city. Is that true?

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 likely expose the city to lawsuits by wireless carriers.

I’ve heard that other cities’ ordinances are stronger than Simi Valley’s 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 very similar to the Simi Valley ordinance. 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.

Simi Valley’s ordinance says that small cell facilities are prohibited on undeveloped residential lots or residential lots containing single-family residences. For residential zones, the ordinance prohibits small cell facilities from being within 250 feet of a residence unless certain difficult to meet exceptions are satisfied.

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 25th 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.

Why can’t the City adopt an ordinance prohibiting 5G?

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 – i.e. from a Blood Alcohol level of .08 to .05, because it conflicts with State law that sets the limit at .08.

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.

Why don’t we restrict residential 5G placement like some other cities?

Simi Valley’s ordinance and the City’s design standards take a more direct approach by defining preferred locations, with residential at the bottom of the list. Further, as stated above, small cell facilities are prohibited on undeveloped residential lots or residential lots containing single-family residences.

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” or other exception language.

See the town of Fairfax’s ordinance for an example of this approach.