AB 162, strongly opposed by APA California, has been made into a two-year bill and won’t move this year. The bill, authored by Assembly Member Chris Holden (D-Pasadena), would have tied the hands of local agencies when approving wireless tower modifications. It would have prohibited a local agency from denying a request for a modification of an existing wireless facility or structure that “doesn’t substantially change” the physical dimensions of the tower.
APA California raised early concerns on the following major issues:
- Unworkable Time Frame and Deemed-Approved Provision:
The bill originally had a 45-day rapid review requirement that would have eliminated the ability to hold public hearings in advance of mandatory approvals and would have ensured that wireless collocation projects take precedence and priority over every other project considered by a local government, from housing development to new commercial and industrial projects. Due to concerns from APA and others, the bill was recently amended to require a 90-day rather than 45-day expedited review, which still may not be long enough depending on the specific structure or facility. In addition, the amendment left in a deemed-approved provision that would have mandated that the request would be deemed automatically approved if not acted on by the local agency within those 90 days.
- Major Structure Changes Included in Definition of What Constitutes “Doesn’t Substantially Change”:
The definition of a request that “doesn’t substantially change” the physical dimension of the wireless facility and thus must be approved by the local agency was so broad that it could have included every portion of a wireless system including DAS networks. The definition in effect would have allowed the cell facility applicant to determine what is or is not a substantial change. The definition would have allowed horizontal extensions on existing towers of 20 feet or more, as well as one additional antenna, which could easily have resulted in a complete change in the original tower design. The bill also would have included a very broad catch-all exemption: “except that the mounting of the proposed antenna may exceed the size limits set forth in this (section) if necessary to avoid interference with existing antennas.” The carrier could have used this provision to argue that interference is an issue mandating the change, but an approving agency would not have been allowed to require “proof of gap in coverage” as part of the approval of an eligible facility’s request. The addition of one new, additional equipment shelter would also have been considered “not a substantial change”.
- Camouflage Requirements Would Have Been Eliminated:
The definitions in the bill would have essentially eliminated the ability to ensure fully camouflaged sites — a tool that historically has made towers more acceptable to residents and businesses near the towers. While the author tried to address this issue in a recent amendment, APA CA’s concerned still remained.
This bill was crafted similarly to the FCC’s guidance issued on implementation of the Middle Class Tax Relief & Job Creation Act of 212, however AB 162 went far beyond those recommendations.
Although Assembly Member Holden and staff agreed to meet with APA California, the League, CSAC and RCRC to work on these issues, it became clear that the bill would at the very least need substantial amendments to make it workable. After lobbying Assembly Local Government Committee members, where the bill was to be heard on May 1st, our concerns were well-received and late last week the author decided to make it a two-year bill. The author has also committed to working with both sides before January to see if a compromise can be reached.
We would like to thank those of you who provided important feedback on the impacts of this bill. That feedback helped shape our arguments and ultimately assisted in slowing the bill down to make it more workable, should the author move it next year.
Please let David Snow, Sande George or Lauren De Valencia y Sanchez know if you have any questions or concerns.