In 1996, Congress adopted the Telecommunications Act to balance the national interest in advanced communications services and infrastructure with legitimate local government authority to enforce zoning and other regulations to manage infrastructure deployments on private property and in the public rights-of-way. Under Section 704, which applies to personal wireless service facilities, local governments retain all their traditional zoning authority subject to specifically enumerated limitations. Section 253 preempts local regulations that prohibit or effectively prohibit telecommunication services (i.e., common carrier services) except competitively neutral and nondiscriminatory regulations to manage the public rights-of-way and require fair and reasonable compensation.
Communication technologies have significantly changed since 1996. Whereas cell sites were traditionally deployed on tall towers and rooftops over low frequency bands that traveled long distances, cell sites are increasingly installed on streetlights and utility infrastructure on new frequency bands that travel shorter distances. According to the Federal Communications Commission ("FCC") and the wireless industry, these so-called "small wireless facilities" or "small cells" are essential to the next technological evolution. The wireless industry is rapidly densifying their networks, with many small cells in the public rights-of-way, in addition to the tradition cell sites on towers and rooftops.
On September 27, 2018, the FCC adopted a Declaratory Ruling and Third Report and Order, FCC 18-133 (the "Small Cell Order"), in connection with two informal rulemaking proceedings entitled Accelerating Wireless Broadband Deployment by Removing Barriers to Infrastructure Investment, WT Docket No. 17-79, and Accelerating Wireline Broadband Deployment by Removing Barriers to Infrastructure Investment, WC Docket No. 17-84. In general, the Small Cell Order: (A) restricts the fees and other compensation State and local governments may receive from applicants; (B) requires all aesthetic regulations to be reasonable, no more burdensome than those applied to other infrastructure deployments, objective, and published in advance; (C) mandates that local officials negotiate access agreements, review permit applications, and conduct any appeals within significantly shorter timeframes; and (D) creates new evidentiary presumptions that make it more difficult for local governments to defend themselves if an action or failure to act is challenged in court. The regulations adopted in the Small Cell Order significantly curtail the local authority over wireless and wireline communication facilities reserved to State and local governments under Sections 253 and 704 in the Telecommunications Act.
On August 12, 2020, the United States Court of Appeals for the Ninth Circuit invalidated many aesthetic restrictions in the Small Cell Order but largely upheld the other restrictions. Portland v. United States, 969 F.3d 1020 (9th Cir. 2020). However, as of the date of the ordinance adopting this chapter, the Ninth Circuit's decision remains subject to further appeals.
The City of Santa Barbara, nevertheless, retains "broad authority to determine, for purposes of the public health, safety, and welfare, the appropriate uses of land within a local jurisdiction's borders," T-Mobile West LLC v. City and County of San Francisco, 438 P.3d 1107 (Cal. 2019), including all zoning powers that are not specifically preempted by Federal law, T-Mobile S., LLC v. City of Roswell, 574 U.S. 293 (2015).
(Ord. 6044 § 1, 2021)
