AgdaPkt 2018-12-17 Joint Special

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City of Redwood City Council December 17, 2018 Page 3 of 5 the material omitted from it. This provision conflicts with 47 C.F.R. §§ 1.6003(d) and 1.6100(c)(3), which specify that the applicable shot clock will be tolled upon notification of an incomplete application. Obviously, a shot clock can only be tolled if the application remains pending and is not denied. We believe this provision needs to be changed accordingly. 6. Pre-existing Facilities in the ROW. Section 29.103(d) of the Proposed Ordinance states that wireless facilities existing in the right-of-way before enactment of the Ordinance "shall remain subject to the provisions of the City Code in effect prior to this Article [VIII of Chapter 29 of the RCMC], unless and until an extension of such facility's then -existing permit is granted, at which time the provisions of this Article shall apply in full force going forward as to such facility." The presumptively acceptable recurring fee described in the Infrastructure Order (i.e., $270 per Small Wireless Facility per year) will take effect for all small wireless facilities, not merely new facilities, on January 14, 2019. 7. Public Use. Section 29.103(e) of the Proposed Ordinance states that "[e]xcept as otherwise provided by California law, any use of the public right-of-way authorized pursuant to this Chapter will be subordinate to the City's use and use by the public." This provision conflicts with California Public Utilities Code Section 7901 et seq., which gives AT&T and other wireless service providers the right to install telecommunications facilities in public rights-of-way, subject only to reasonable time, place and manner restrictions and an obligation not to incommode public use of the road or highway. Because Section 29.103(e) conflicts with California law, we believe this provision should be be removed or modified accordingly. 8. Indemnification. Section 29.105(c) of the Proposed Ordinance states that "[w]ireless facilities shall be installed and modified in a manner that ... ensures that the City bears no risk or liability as a result of the installations." However, this provision should be modified to account to exclude from the indemnification damage or injury that is caused by the City's own negligence and, further, indemnify the permittee from and against any negligence by the City. 9. Undergrounding Requirements. AT&T objects to the requirement in Section 29.105(c) of the Proposed Ordinance that permittees "[a]voidn placement of above ground facilities in underground areas." AT&T similarly objects to the undergrounding requirements in Section 3 of the Draft Resolution. To comply with federal law, undergrounding requirements must be "(1) reasonable, (2) no more burdensome than those applied to other types of infrastructure deployments, and (3) objective and published in advance." And to be reasonable, such requirements must be technically feasible. A blanket ban on above ground wireless facilities in underground areas is not technically feasible or reasonable, given the FCC's finding that "a requirement that all wireless facilities by deployed underground would amount to an effective prohibition given the propagation characteristics of wireless signals." Wireless facilities cannot operate with all equipment underground. For example, radio units must be placed above ground in order to be near enough to the antennas to function properly. The objected -to provisions violate AT&T's Section 7901 right to place its facilities in the public rights-of-way, and risk effectively prohibiting wireless services in violation of the Telecommunications Act of 1996. These provisions should be deleted.