AgdaPkt 2018-12-17 Joint Special

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City of Redwood City Council December 17, 2018 Page 4 of 5 10. Prohibited Support Structures. AT&T similarly objects to the requirement in Section 29.105(c) of the Proposed Ordinance that permittees "[a]voidn installation of new support structures or equipment cabinets in the public rights-of-way." Aesthetic requirements are only permissible under federal law if they are "(1) reasonable [i.e., technically feasible], (2) no more burdensome than those applied to other types of infrastructure deployments, and (3) objective and published in advance." An outright ban on the construction of new support structures or equipment cabinets is likely, in many instances, to constitute an effective prohibition that violates federal law. Moreover, AT&T has a state law franchise right under Section 7901 of the Public Utilities Code to place its equipment in the public rights-of-way, so long as it does not incommode the public way. Under Section 7901.1, this right is subject only to the City's reasonable and nondiscriminatory time, place, and manner regulations as to access and construction. This limitation is unreasonable and unlawful. 11. Overall Height. AT&T objects to Section 4 of the Draft Resolution to the extent it imposes height restrictions that differ from those set forth in Section 29.102 of the Proposed Ordinance (definition of Small Cell Facility), which mirrors 47 CFR 1.6002(1). 12. Antenna Height. Sections 6 and 7 of the Draft Resolution state that "[a]ntennas and accessory equipment shall not extend more than 5 ft. or 10 percent above the height of the" street light or utility pole, "whichever is less." These restrictions are not consistent with 47 CFR 1.60020)(1), which states that small wireless facilities may be mounted either "on structures 50 feet or less in height including their antennas" or "on structures no more than 10 percent taller than other adjacent structures" or "do not extend existing structures on which they are located to a height of more than 50 feet or by more than 10 percent, whichever is greater." (Emphasis added) AT&T requests that these Sections of the Draft Resolution be revised to be consistent with federal law. 13. Pedestrian Light -Mounted Facilities. AT&T objects to Section 8 of the Draft Resolution, which prohibits placement of antennas and accessory equipment on pedestrian light poles, and only allows small wireless facilities to be placed on pedestrian light poles "if there is no feasible alternative within 500 ft." The FCC cautions that minimum spacing requirements are unlawful unless they are (1) reasonable, (2) no more burdensome than those applied to other types of infrastructure deployments, and (3) objective and published in advance. Further, placing limits on a wireless service provider's ability to densify its wireless network may materially inhibit the provision of wireless services and thereby constitute an unlawful effective prohibition. 14. Aesthetics and Feasibility. The Draft Resolution sets forth design requirements and limitations for small wireless facilities. The FCC concluded that aesthetic requirements are not preempted under federal law if they are (1) reasonable, (2) no more burdensome than those applied to other types of infrastructure deployments, and (3) objective and published in advance. The FCC drew on its analysis of fees to address aesthetic requirements: "Analogously [to fees], aesthetic requirements that are reasonable in that they are technically feasible and reasonably directed to avoiding or remedying the intangible public harm of unsightly or out -of -character deployments are also permissible." The FCC noted that "aesthetic requirements that are more burdensome than those the state or locality applies to similar infrastructure deployments are not permissible, because such discriminatory