(1)Existing law, the Permit Streamlining Act, governs the approval process that a city or county is required to follow when approving, among other things, a permit for construction or reconstruction for a development project for a wireless telecommunications facility and a collocation or siting application for a wireless telecommunications facility.

This bill, except as specified, would require a local agency to undertake batch broadband permit processing, as defined, upon receiving 2 or more broadband permit applications for substantially similar broadband project sites submitted at the same time by the same applicant, within a presumptively reasonable time, as defined. The bill would define local agency for these purposes to mean a city, county, city and county, charter city, special district, or publicly owned utility, other than certain publicly owned electric utilities. If a local agency does not approve those broadband permit applications for substantially similar broadband project sites and issue permits, or reject the applications and notify the applicants, within the presumptively reasonable time or longer period permitted under applicable law, the bill would require that all of those permits be deemed approved. The bill would authorize a local agency to place reasonable limits on the number of broadband project sites that are grouped into a single permit while undertaking batch broadband permit processing, as specified. The bill would provide that a local agency may only remove a broadband project site from grouping under a single permit under mutual agreement with the applicant or to expedite the approval of other substantially similar broadband project sites. The bill, if a local agency denies a broadband permit application, would require the local agency to notify the applicant in writing of the reasons for the denial. The bill would specify that these provisions do not apply to eligible facility requests, as defined.

(2)The bill would include findings that changes proposed by this bill address a matter of statewide concern rather than a municipal affair and, therefore, apply to all cities, including charter cities.

(3)By imposing new duties on local agencies with regard to the processing of broadband permit applications, this bill would impose a state-mandated local program.

The California Constitution requires the state to reimburse local agencies and school districts for certain costs mandated by the state. Statutory provisions establish procedures for making that reimbursement.

This bill would provide that no reimbursement is required by this act for a specified reason.

(1)Existing law, the Permit Streamlining Act, governs the approval process that a city or county is required to follow when approving, among other things, a permit for construction or reconstruction for a development project for a wireless telecommunications facility and a collocation or siting application for a wireless telecommunications facility.

This bill, except as specified, would require a local agency to undertake batch broadband permit processing, as defined, upon receiving 2 or more broadband permit applications for substantially similar broadband project sites submitted at the same time by the same applicant, within a presumptively reasonable time, as defined. The bill would define local agency for these purposes to mean a city, county, city and county, charter city, special district, or publicly owned utility, other than certain publicly owned electric utilities. If a local agency does not approve those broadband permit applications for substantially similar broadband project sites and issue permits, or reject the applications and notify the applicants, within the presumptively reasonable time or longer period permitted under applicable law, the bill would require that all of those permits be deemed approved. The bill would authorize a local agency to place reasonable limits on the number of broadband project sites that are grouped into a single permit while undertaking batch broadband permit processing, as specified. The bill would provide that a local agency may only remove a broadband project site from grouping under a single permit under mutual agreement with the applicant or to expedite the approval of other substantially similar broadband project sites. The bill, if a local agency denies a broadband permit application, would require the local agency to notify the applicant in writing of the reasons for the denial. The bill would specify that these provisions do not apply to eligible facility requests, as defined.

(2)The bill would include findings that changes proposed by this bill address a matter of statewide concern rather than a municipal affair and, therefore, apply to all cities, including charter cities.

(3)By imposing new duties on local agencies with regard to the processing of broadband permit applications, this bill would impose a state-mandated local program.

The California Constitution requires the state to reimburse local agencies and school districts for certain costs mandated by the state. Statutory provisions establish procedures for making that reimbursement.

This bill would provide that no reimbursement is required by this act for a specified reason.

(1)Existing law, the Permit Streamlining Act, governs the approval process that a city or county is required to follow when approving, among other things, a permit for construction or reconstruction for a development project for a wireless telecommunications facility and a collocation or siting application for a wireless telecommunications facility.

This bill bill, except as specified, would require a local agency to undertake batch broadband permit processing, as defined, upon receiving 2 or more broadband permit applications for substantially similar broadband project sites submitted at the same time by the same applicant, within a presumptively reasonable time, as defined. The bill would define local agency for these purposes to mean a city, county, city and county, charter city, special district, or publicly owned utility, other than certain publicly owned electric utilities. If a local agency does not approve those broadband permit applications for substantially similar broadband project sites and issue permits, or reject the applications and notify the applicants, within the presumptively reasonable time or longer period permitted under applicable law, the bill would require that all of those permits be deemed approved. The bill would authorize a local agency to place reasonable limits on the number of broadband project sites that are grouped into a single permit while undertaking batch broadband permit processing, as specified. The bill would provide that a local agency may only remove a broadband project site from grouping under a single permit under mutual agreement with the applicant or to expedite the approval of other substantially similar broadband project sites. The bill, if a local agency denies a broadband permit application, would require the local agency to notify the applicant in writing of the reasons for the denial. The bill would specify that these provisions do not apply to eligible facility requests, as defined.

(2)The bill would include findings that changes proposed by this bill address a matter of statewide concern rather than a municipal affair and, therefore, apply to all cities, including charter cities.

(3)By imposing new duties on local agencies with regard to the processing of broadband permit applications, this bill would impose a state-mandated local program.

The California Constitution requires the state to reimburse local agencies and school districts for certain costs mandated by the state. Statutory provisions establish procedures for making that reimbursement.

This bill would provide that no reimbursement is required by this act for a specified reason.

(1)Existing law, the Permit Streamlining Act, governs the approval process that a city or county is required to follow when approving, among other things, a permit for construction or reconstruction for a development project for a wireless telecommunications facility and a collocation or siting application for a wireless telecommunications facility.

This bill would require a local agency to undertake batch broadband permit processing, as defined, upon receiving 2 or more broadband permit applications for substantially similar broadband project sites submitted at the same time by the same applicant, within a presumptively reasonable time, as defined. The bill would define local agency for these purposes to mean a city, county, city and county, charter city, special district, or, subject to specified exceptions, or publicly owned utility. utility, other than certain publicly owned electric utilities. If a local agency does not approve those broadband permit applications for substantially similar broadband project sites and issue permits, or reject the applications and notify the applicants, within the presumptively reasonable time, time or longer period permitted under applicable law, the bill would require that all of those permits be deemed approved. The bill would authorize a local agency to place reasonable limits on the number of broadband project sites that are grouped into a single permit while undertaking batch broadband permit processing, as specified. The bill would provide that a local agency may only remove a broadband project site from grouping under a single permit under mutual agreement with the applicant or to expedite the approval of other substantially similar broadband project sites. The bill, if a local agency denies a broadband permit application, would require the local agency to notify the applicant in writing of the reasons for the denial. The bill would specify that these provisions do not apply to eligible facility requests, as defined.

(2)The bill would include findings that changes proposed by this bill address a matter of statewide concern rather than a municipal affair and, therefore, apply to all cities, including charter cities.

(3)By imposing new duties on local agencies with regard to the processing of broadband permit applications, this bill would impose a state-mandated local program.

The California Constitution requires the state to reimburse local agencies and school districts for certain costs mandated by the state. Statutory provisions establish procedures for making that reimbursement.

This bill would provide that no reimbursement is required by this act for a specified reason.

(1)Existing law, the Permit Streamlining Act, governs the approval process that a city or county is required to follow when approving, among other things, a permit for construction or reconstruction for a development project for a wireless telecommunications facility and a collocation or siting application for a wireless telecommunications facility.

This bill would require a city, county, city and county, charter city, special district, or publicly owned utility, local agency to undertake batch broadband permit processing, as defined, upon receiving 2 or more broadband permit applications for substantially similar broadband project sites submitted at the same time by the same applicant, within a presumptively reasonable time, as defined. The bill would define local agency for these purposes to mean a city, county, city and county, charter city, special district, or, subject to specified exceptions, publicly owned utility. If a city, county, city and county, charter city, special district, or publicly owned utility local agency does not approve those broadband permit applications for substantially similar broadband project sites and issue permits, or reject the applications and notify the applicants, within the presumptively reasonable time, the bill would require that all of those permits be deemed approved. The bill would authorize a city, county, city and county, charter city, special district, or publicly owned utility local agency to place reasonable limits on the number of broadband project sites that are grouped into a single permit while undertaking batch broadband permit processing and to processing, as specified. The bill would provide that a local agency may only remove a broadband project site from grouping under a single permit, only permit under mutual agreement with the application applicant or to expedite the approval of other substantially similar broadband project sites. The bill would specify that these provisions do not apply to eligible facility requests, as defined.

(2)The bill would include findings that changes proposed by this bill address a matter of statewide concern rather than a municipal affair and, therefore, apply to all cities, including charter cities.

(3)By imposing new duties on local agencies with regard to the processing of broadband permit applications, this bill would impose a state-mandated local program.

The California Constitution requires the state to reimburse local agencies and school districts for certain costs mandated by the state. Statutory provisions establish procedures for making that reimbursement.

This bill would provide that no reimbursement is required by this act for a specified reason.

(1)Existing law, the Permit Streamlining Act, governs the approval process that a city or county is required to follow when approving, among other things, a permit for construction or reconstruction for a development project for a wireless telecommunications facility and a collocation or siting application for a wireless telecommunications facility.

This bill would require a city, county, city and county, charter city, special district, or publicly owned utility, to undertake batch broadband permit processing, as defined, upon receiving 2 or more substantially similar broadband permit applications for substantially similar broadband project sites submitted at the same time, time by the same applicant, within a presumptively reasonable time, as defined. If a city, county, city and county, charter city, special district, or publicly owned utility does not approve those substantially similar broadband permit applications for substantially similar broadband project sites and issue permits, or reject the applications and notify the applicants, within the presumptively reasonable time, the bill would require that all of those permits be deemed approved. The bill would authorize a city, county, city and county, charter city, special district, or publicly owned utility to place reasonable limits on the number of broadband project sites that are grouped into a single permit while undertaking batch broadband permit processing and to remove a broadband project site from grouping under a single permit, only under mutual agreement with the application or to expedite the approval of other substantially similar broadband project sites. The bill would specify that these provisions do not apply to eligible facility requests, as defined.

(2)The bill would include findings that changes proposed by this bill address a matter of statewide concern rather than a municipal affair and, therefore, apply to all cities, including charter cities.

(3)By imposing new duties on local agencies with regard to the processing of broadband permit applications, this bill would impose a state-mandated local program.

The California Constitution requires the state to reimburse local agencies and school districts for certain costs mandated by the state. Statutory provisions establish procedures for making that reimbursement.

This bill would provide that no reimbursement is required by this act for a specified reason.

Existing law, except as provided, requires a local agency to allow microtrenching for the installation of underground fiber if the installation in the microtrench is limited to fiber. Existing law authorizes a local agency to impose a fee for its reasonable costs on an application for a permit to install fiber, as provided. Existing law defines terms for this purpose.

This bill would make a nonsubstantive change to the definition provision.

CONCURRENCE IN SENATE AMENDMENTS

CSA1 Bill Id:AB 965

Author:(Juan Carrillo)

As Amended Ver:August 30, 2023

Majority vote

SUMMARY

Requires local agencies to undertake batched processing for broadband permits.

Senate Amendments

1. Specify that a local agency may place reasonable limits on the number of broadband project sites that are grouped into a single permit, as follows:
   1. For a city with a population of fewer than 50,000 or a county with a population of fewer than 150,000, including each city within that county, 25 project sites.
   2. For a city or county with a population greater than the applicable population described in a), above, 50 project sites.
2. Clarify that a local agency may have a longer period of time, as permitted under applicable law, than the "presumptively reasonable time" specified in the bill in which to process batched broadband applications and permits.
3. Subject the bill's "deemed approved" requirement to existing law governing the "deemed approved" rules and procedures that apply to a collocation or siting application for a wireless telecommunications facility (which include tolling allowances, public noticing requirements, avenues for judicial review, and other provisions), as specified.
4. Specify that the bill does not preclude a local agency from requiring compliance with any requirements relating to the design, construction, or location of broadband projects that the local agency is otherwise authorized to impose or enforce under applicable law, including, without limitation, any generally applicable health and safety requirements.
5. Require, if a broadband permit application is denied, the local agency to notify the applicant in writing of the reasons for the denial.
6. Remove a provision requiring fees for batch broadband permitting to be limited to the reasonable costs of the local agency to process and issue the permit and to inspect the installation that is the subject of the permit, including any costs incurred if the applicant elects to expedite processing and review.
7. Remove language specifying that publicly owned electric utilities (POUs) process broadband applications, including applications associated with power, consistent with the process established in existing law governing pole attachments for POUs.
8. Specify that this bill's provisions shall not apply to poles located within the limits of the City and County of San Francisco, if the poles are used for the primary purpose of operating San Francisco Municipal Transportation Agency public transit vehicles.
9. Make a number of additional technical, clarifying and conforming changes.

COMMENTS

The Code of Federal Regulations (CFR) provides review periods for individual applications for personal wireless service facilities. The following are the presumptively reasonable periods of time for action on applications seeking authorization for deployments in the following categories:

1. Review of an application to collocate a small wireless facility using an existing structure: 60 days.
2. Review of an application to collocate a facility other than a small wireless facility using an existing structure: 90 days.
3. Review of an application to deploy a small wireless facility using a new structure: 90 days.
4. Review of an application to deploy a facility other than a small wireless facility using a new structure: 150 days.

The CFR also provides requirements for batching, as follows:

1. If a single application seeks authorization for multiple deployments, all of which fall within the "small wireless facility" categories, then the presumptively reasonable period of time for the application as a whole is equal to that for a single deployment within that category.
2. If a single application seeks authorization for multiple deployments, the components of which are a mix of deployments that fall within the "small wireless facility" categories (both collocated on an existing structure and deploying using a new structure), then the presumptively reasonable period of time for the application as a whole is 90 days.

The CFR provides that siting authorities may not refuse to accept batched applications for small wireless facilities.

The State of California's Local Permitting Playbook, released in August of 2022, was created by the California Governor's Office of Business and Economic Development, the California Department of Technology, the California Public Utilities Commission, and the California Emerging Technology Fund. It states, "The California Local Permitting Playbook offers strategies designed to enable communities to prepare for broadband investment – recognizing that an unprecedented amount of state and federal funding has been allocated to expanding broadband infrastructure in California, and that local government permitting and planning staffs have varying degrees of experience with and knowledge of broadband deployment."

The playbook also notes, "These approaches are not all appropriate for all communities – nor would any given community be likely to adopt every practice described here. Rather, the playbook presents a set of options a local government can evaluate in light of its public policy priorities, its community's unique circumstances, and its residents' needs…The strategies and smart practices presented in this playbook are intended to enable localities to receive value in return for the efforts they make to enable a broadband deployer's efforts. That value may be financial (such as a lease payment in return for access to a city's fiber network) or it may be less tangible (such as a commitment by the partner to deliver broadband service to low-income residents in return for access to a city's excess conduit). Either way, the locality will facilitate broadband deployment in partnership with the deployer; the relationship should not favor the deployer over the public interest."

Among many "smart practices" outlined in the Playbook is "developing a batch permitting process." The Playbook notes, "For localities anticipating large broadband-related projects that will require extensive but potentially repetitive permit applications, batch permitting might allow applicants to request a single permit that would cover a project typically subject to multiple permit applications. As with some of the other strategies presented here, a batch permitting process might reduce the permit application caseload, decrease the permit processing timeline, and improve a broadband deployer's timeline.

"The City of Long Beach, for example, developed a bulk permitting process in 2020 for small cell wireless facilities that allows up to 10 sites to be grouped under a single permit. Applicants must negotiate specifications before submitting the application, and sites must all be either Tier A (commercial arterial) or Tier B (residential roads). This enhanced permitting process has improved the City's timeline while still protecting local interests (e.g., distinguishing between siting locations proposed on commercial arteries and residential roads)."

Please refer to policy committee analyses of this bill for additional background and comments.

According to the Author

AB 965 will accelerate broadband deployment and help close our state's digital divide while retaining local control. The bill simply requires local jurisdictions to make a decision on a group of broadband permits in a reasonable amount of time – they can approve, reject or extend the amount of time needed for review. Broadband permit batching is an industry best practice used by local jurisdictions, state government and the private sector to streamline and expedite the deployment of broadband infrastructure so local communities can more quickly get connected to high-speed internet and telecommunications services. When a broadband project in a community involves dozens of nearly identical permits for a variety of locations, the permits are submitted and processed at the same time as one large group concurrently through various city departments instead of individually. The state of California is currently pursuing this technique in its deployment of the Middle Mile Broadband Initiative.

This bill will ensure Californians will quickly benefit from high-speed internet projects by allowing broadband installers to submit their nearly identical broadband project applications at the same time and local governments to process this batch of permits together within existing shotclocks. Processing several substantially similar broadband permit applications at the same time will allow local governments to still receive permit fees, but staff can more easily process routine, high-volume broadband permits as a group instead of individually to help bridge the digital divide and more quickly connect communities to high-speed internet. This will allow the state to meet the federal broadband funding deadline of December 31, 2024 while creating greater broadband equity amongst communities so more individuals can have access to high-speed internet access for emergency response, remote work, telehealth, education and commerce. A recent report conducted by the Bay Area Council Economic Institute found that 75% of California voters support statewide streamlining of broadband projects, while 70% support requiring all local governments to follow a uniform state mandated review process for broadband projects.

Arguments in Support

A coalition of supporters write, "The COVID-19 pandemic exposed the severe need to expand broadband access across California. The pandemic dramatically changed our state's economic, educational, and business landscape. Californians' enhanced reliance on remote work, telehealth, and virtual learning demonstrate the need for legislation to accelerate the deployment of broadband infrastructure. Currently, local jurisdictions' permitting processes can severely delay broadband projects. These delays stifle economic growth and connectivity in our local communities.

"In California, each local jurisdiction has its own broadband permitting process and timeline. Some use the industry best practice of permit batching, master-permitting, programmatic-permitting or term-permitting, which allow large volumes of substantially similar broadband permits to be processed and approved within an expedited timeframe. Notably, California's Middle Mile broadband project is utilizing this approach.

"There are currently over 1,000 broadband permits pending with local jurisdictions in California that would improve internet connectivity for millions. Even though many of these permits are nearly identical other than the location, some local jurisdictions process each one of them individually, which can take years, instead of months, delaying broadband deployment. Another reason for delay is the local jurisdiction will move the permit through multiple municipal departments exacerbating an already bureaucratic process.

"AB 965 would require local jurisdictions to process groups of substantially similar broadband permits at the same time in an efficient manner. Permit fees would still be received by local governments, but staff would be able to more easily process routine, high-volume broadband permits as a group, instead of individually to help rapidly bridge the digital divide. We support AB 965 because it will allow broadband project permits to move forward as quickly and efficiently as possible. In doing so, the bill will expand high-speed internet access to millions of Californians."

Arguments in Opposition

A coalition of opponents state, "The author of AB 965 states that the bill will accelerate broadband deployment and help close our state's digital divide while retaining local control. I believe it's accurate to say that batching will speed the deployment of wireless infrastructure, but it will not solve the digital divide and it will not retain local control!

"This bill echoes telecom lobbyists who have been perpetuating a narrative that wireless infrastructure will create broadband equity, bridge the digital divide and serve the unserved and underserved. This narrative is designed to play on our emotional desire to do the right thing as quickly as possible. And the industry is promoting wireless as the quickest way to deploy this infrastructure. But as outlined in this letter, speedy deployment of wireless infrastructure is the only benefit of wireless infrastructure.

"And the cost of batching wireless infrastructure permits will remove safeguards and is reckless.

The California Playbook relays that bringing high-performance broadband available at home, schools, libraries, and businesses is essential, echoing the NTIA's and the CPUC's priority of giving 'high quality' broadband to bridge the digital divide.

"We all want to solve the digital divide as quickly as possible using the best solution. Don't let the wireless carriers confuse you. Telecom will invariably seek the cheapest, quickest, and most profitable path, which has led to the current emphasis on wireless. And rushing wireless infrastructure without broad analysis and due diligence is shortsighted and only serves to line the pockets of the multi-billion dollar telecom industry, and where will these carriers be when we all figure out we've been duped?"

FISCAL COMMENTS

According to the Senate Appropriations Committee, pursuant to Senate Rule 28.8, negligible state costs.

VOTES:

ASM COMMUNICATIONS AND CONVEYANCE: 13-0-0

YES: Boerner Horvath, Jim Patterson, Connolly, Davies, Holden, Hoover, Low, Maienschein, Papan, Luz Rivas, Rodriguez, Schiavo, Weber

ASM LOCAL GOVERNMENT: 8-0-0

YES: Aguiar-Curry, Dixon, Boerner, Pacheco, Ramos, Robert Rivas, Waldron, Wilson

ASM APPROPRIATIONS: 16-0-0

YES: Holden, Megan Dahle, Bryan, Calderon, Wendy Carrillo, Dixon, Mike Fong, Hart, Lowenthal, Mathis, Papan, Pellerin, Robert Rivas, Sanchez, Weber, Ortega

ASSEMBLY FLOOR: 76-0-4

YES: Addis, Aguiar-Curry, Alanis, Alvarez, Arambula, Bains, Bauer-Kahan, Bennett, Berman, Boerner, Bonta, Bryan, Calderon, Juan Carrillo, Wendy Carrillo, Cervantes, Megan Dahle, Davies, Dixon, Essayli, Flora, Mike Fong, Vince Fong, Friedman, Gabriel, Gallagher, Garcia, Gipson, Grayson, Haney, Hart, Holden, Hoover, Irwin, Jackson, Jones-Sawyer, Kalra, Lee, Low, Lowenthal, Maienschein, Mathis, McCarty, McKinnor, Muratsuchi, Stephanie Nguyen, Ortega, Pacheco, Papan, Jim Patterson, Joe Patterson, Pellerin, Petrie-Norris, Ramos, Reyes, Luz Rivas, Robert Rivas, Rodriguez, Blanca Rubio, Sanchez, Santiago, Schiavo, Soria, Ta, Ting, Valencia, Villapudua, Waldron, Wallis, Ward, Weber, Wicks, Wilson, Wood, Zbur, Rendon

ABS, ABST OR NV: Chen, Connolly, Lackey, Quirk-Silva

SENATE FLOOR: 40-0-0

YES: Allen, Alvarado-Gil, Archuleta, Ashby, Atkins, Becker, Blakespear, Bradford, Caballero, Cortese, Dahle, Dodd, Durazo, Eggman, Glazer, Gonzalez, Grove, Hurtado, Jones, Laird, Limón, McGuire, Menjivar, Min, Newman, Nguyen, Niello, Ochoa Bogh, Padilla, Portantino, Roth, Rubio, Seyarto, Skinner, Smallwood-Cuevas, Stern, Umberg, Wahab, Wiener, Wilk

UPDATED

VERSION: August 30, 2023

CONSULTANT: Angela Mapp / L. GOV. / (916) 319-3958 FN: 0001782

 THIRD READING  

Bill No: AB 965

Author: Juan Carrillo (D)

Amended: 8/30/23 in Senate

Vote: 21

SENATE ENERGY, U. & C. COMMITTEE: 17-0, 6/20/23

AYES: Bradford, Dahle, Ashby, Caballero, Dodd, Durazo, Eggman, Gonzalez, Grove, McGuire, Min, Newman, Rubio, Seyarto, Skinner, Stern, Wilk

NO VOTE RECORDED: Becker

SENATE GOVERNANCE & FIN. COMMITTEE: 8-0, 7/12/23

AYES: Caballero, Seyarto, Blakespear, Dahle, Durazo, Glazer, Skinner, Wiener

SENATE APPROPRIATIONS COMMITTEE: Senate Rule 28.8

ASSEMBLY FLOOR: 76-0, 5/22/23 - See last page for vote

SUBJECT: Local government: broadband permit applications

SOURCE: Author

DIGEST:

This bill establishes requirements for local governments to process batched permits for broadband infrastructure.

Senate Floor Amendments of 8/30/23 exempt poles within the City and County of San Francisco that are used for public transit by the San Francisco Municipal Transportation Agency from the bill’s requirements.

ANALYSIS:

Existing law:

1. Defines a local agency as a city, county, city and county, charter city, special district, or publicly owned utility (POU). (Government Code §65964.5)
2. Specifies that a wireless siting application shall be deemed approved if the applicant meets certain requirements and a local agency fails to approve or reject the application within a reasonable time period established by the Federal Communications Commission (FCC). (Government Code §65964.1)
3. Requires a local agency to allow microtrenching for the installation of underground fiber unless the local agency makes a written finding that allowing microtrenching for fiber would have a specific, adverse impact on public health or safety. (Government Code §65964.5)
4. Establishes a process for approving communications facility attachments to utility poles owned or controlled by a local electric POU. Requires electric POUs to make appropriate space and capacity on their utility poles for use by a communications provider on reasonable terms and conditions. Specifies timelines for attachments to poles, including multiple pole attachments. (Public Utilities Code §9511)
5. Establishes the California Underground Facilities Safe Evacuation Board (also known as the “Dig Safe Board”) and requirements for safe excavation near utility facilities and establishes penalties for entities that excavate without complying with dig safe rules. (Government Code §4216 et seq.)
6. Prohibits cities and counties from charging telecommunications facility siting fees that exceed the reasonable costs of conducting the permitting and siting services. Specifies that these fees may not be collected for general revenue purposes. (Government Code §50030)

This bill:

1. Defines a “local agency” as a city, county, city and county, charter city, or special district and specifies that this definition does not include a POU.
2. Defines “batch broadband permit processing” as the simultaneous processing of multiple broadband permit applications for substantially similar broadband project sites under a single permit.
3. Requires local agencies to process broadband project permits in batches if the local agency receives two or more broadband permit applications for substantially similar broadband project sites submitted at the same time by the same applicant.
4. Requires batched wireless broadband projects to be processed within existing deadlines unless a longer time is permitted under law. This bill specifies that if a local agency does not approve or reject batched wireless permits within existing shot clocks, all the wireless permits in a batch shall be deemed approved.
5. Authorizes a local agency to set reasonable limits on the number of projects batched into a single permit based on the following:
   1. Cities with a population less than 50,000 persons may limit the number of sites batched into a single permit to no less than 25 sites.
   2. Counties with a population fewer than 150,000 persons may limit the number of sites batched into a single permit to no less than 25 sites.
   3. Cities and counties with populations greater than 50,000 and 150,000 persons respectively may limit the number of sites batched into a single permit to no less than 50 sites.
6. Authorizes a local agency to impose a fee on broadband permit processing, as specified in existing law, and requires local agencies to work with applicants to resolve issues associated with limited local permitting resources. To address these limitations, local governments may receive supplemental resources from an applicant.
7. Specifies that nothing in this bill limits the application of existing utility safety requirements, including dig safe requirements for underground excavations.
8. Exempts poles within the City and County of San Francisco that are used by the San Francisco Municipal Transportation Agency for public transit from this bill’s requirements.

Background

State permitting recommendations have recognized batched permitting as a local streamlining practice. In August 2022, the Governor’s Office of Business and Economic Development (GO-Biz) released a guidance document, the State of California Local Permitting Playbook, to help communities plan for broadband investments. This guidance document recognizes batched permitting as a strategy that local governments can use to streamline permit approvals for broadband infrastructure projects with multiple sites that have repetitive permit characteristics. The GO-Biz Playbook states: “As with some of the other strategies presented here, a batch permitting process might reduce the permit application caseload, decrease the permit processing timeline, and improve a broadband deployer’s timeline.” The guidebook suggests that when considering a batching process, local governments should consider available staff resources, geographic boundaries for batching, and caps on the number of permits that can be batched. The playbook recognizes that not all permit streamlining strategies are appropriate for all local governments; however, it suggests that where appropriate, batching can lower permit processing timelines for larger multi-site broadband deployment projects within a single jurisdiction.

Are this bill’s requirements flexible enough for all local governments? While nothing in existing law prohibits a local government from adopting rules enabling the processing of broadband facility permits in batches, this bill would require local governments to do so. This bill also allows local governments to set a limit on the maximum amount of permits in a single batch. However, this bill also specifies that smaller cities and counties can only set a maximum limit at or above 25 permits per batch; all larger cities and counties must allow batching of at least 50 sites per permit.

While some local governments already allow certain telecommunications facilities to process their permits in batches, these local governments’ permit batching rules may not meet this bill’s requirements. The cities of Long Beach and Davis have both adopted rules facilitating the batching of small wireless facility permits; however, these cities’ batching processes do not encompass all wireless facilities, and they set much lower thresholds for the maximum amount of sites that can batched into one permit. The City of Long Beach allows a maximum of 10 sites to be batched into a single permit, and the City of Davis allows a maximum of five sites to be batched into a single permit. This bill would require these cities to substantially increase their rules for both the scope and amount of wireless facilities that can be batched in a single permit application. While this bill restricts batching to “substantially similar” broadband sites, the bill is not limited to a specific size or type of broadband facility.

Shot clocks may indirectly prioritize processing wireless permits. Shot clocks are time periods during which agencies must take action on an application. Shot clocks do not require agencies to approve applications; however, if an agency does not approve or reject a permit within a shot clock, that agency may be forced to issue a permit for the applicant. While there are no shot clocks for wireline broadband permits, both state law and federal regulations have adopted shot clocks for wireless permitting. In 2018, the FCC updated its wireless deployment orders related to local government permitting. As part of this update, the FCC expanded the types of wireless facilities covered by the FCC’s permit streamlining rules and also shortened the shot clocks for local government permit application reviews. The 2018 order adopted the following shot clocks for wireless permits:

• 60 days for applications for installations on existing infrastructure.
• 90 days for all other applications.

Existing state law has codified these shot clocks and specified that wireless permits that are not approved or rejected within the applicable shot clock are “deemed approved.”

While this bill does not create a batched permit process exclusively for wireless facilities or establish new shot clocks for processing wireless permits, the bill applies existing wireless shot clocks to batched wireless permits. The application of existing wireless shot clocks to batched permitting could encourage local governments to prioritize processing batched wireless permits ahead of wireline broadband projects to comply with shot clock deadlines.

Related/Prior Legislation

SB 717 (Dodd, Chapter 813, Statutes of 2022) required the California Department of Technology to submit a report to the Legislature by May 1, 2024, regarding specified barriers to broadband infrastructure deployment, including the extent to which obtaining state and local permits poses a barrier to deploying broadband infrastructure.

SB 556 (Dodd, 2022) would have established permitting requirements for the placement of small wireless facilities on street light and traffic signal poles owned by local governments. The bill was vetoed.

AB 537 (Quirk, Chapter 467, Statutes of 2021) updated existing state law regarding timelines and processes for approving wireless telecommunications facility permits to reflect new federal deadlines.

SB 378 (Gonzalez, Chapter 677, Statutes of 2021) required local governments to allow microtrenching for the installation of underground fiber optic equipment unless the local government makes a specified finding.

FISCAL EFFECT: Appropriation: No Fiscal Com.: Yes Local: Yes

SUPPORT: (Verified 8/30/23)

Association of California Cities – Orange County

Bay Area Council

California African American Chamber of Commerce

California Apartment Association

California Asian Pacific Chambers of Commerce

California Association of Micro Enterprise Opportunity

California Broadband & Video Association

California Building Industry Association

California Business Properties Association

California Chamber of Commerce

California Communications Association

California Emerging Technology Fund

California Hispanic Chambers of Commerce

California Wireless Association

Coalition of Small & Disabled Veteran Businesses

Consolidated Communications

Crown Castle

CTIA

Dev/Mission

Frontier Communications Corporation

Hispanic Chambers of Commerce of San Francisco

INCOMPAS

Kern County Hispanic Chamber of Commerce

Los Angeles County Business Federation

Los Angeles Latino Chamber of Commerce

Los Angeles Metropolitan Hispanic Chambers of Commerce

National Federation of Independent Businesses

Orange County Business Council

San Francisco Chamber of Commerce

San Juan Capistrano Chamber of Commerce

San Mateo County Economic Development Association

Silicon Valley Leadership Group

Slavic American Chamber of Commerce

Southwest Hispanic Chamber of Commerce

USTelecom - The Broadband Association

Wireless Infrastructure Association

OPPOSITION: (Verified 8/30/23)

5G Free California

Alliance of Nurses for Healthy Environments

As You Sow

Boyle Heights Community Garden

Breast Cancer Prevention Partners

California Nurses for Environmental Health and Justice

Californians for Safe Technology

Center for Environmental Health

Consumers for Safe Cell Phones

Clean Earth 4 Kids

Dietrick Institute for Applied Insect Ecology

Ecological Options Network

EMF Safety Network Education/Outreach

Environmental Health Trust

Environmental Working Group

FACTS: Families Advocating for Chemical and Toxics Safety

Feather River Action!

GMOScience

Health & Habitat, Inc.

Keep Cell Antennas Away

Malibu for Safe Tech

Moms Across America

Mothers of East LA

Neighbors for Safe Metering

Parents for a Safer Environment

Physicians for Safe Technology

Plumas Wired!

Preserve Rural Sonoma County

Safe Tech for Santa Rosa

Safer 5G Moraga

Sonoma County Tomorrow

Sonoma Neighbors for Safe Tech

Sonoma Safe Agriculture Safe Schools

Stop Smart Meters!

Wine & Water Watch

Wire California

Wireless Radiation Education & Defense

Several Individuals

ARGUMENTS IN SUPPORT: According to the author:

AB 965 will accelerate broadband deployment and help close our state’s digital divide while retaining local control. The bill simply requires local jurisdictions to make a decision on a group of broadband permits in a reasonable amount of time (2-3 months) – they can approve, reject or extend the amount of time needed for review.

Broadband permit batching is a best practice used by local jurisdictions, state government and the private sector to streamline and expedite the deployment of broadband infrastructure so local communities can more quickly get connected to high-speed internet. It can make the difference between connecting communities in months instead of years. When a broadband project in a community involves dozens of nearly identical permits for a variety of locations, the permits are submitted and processed at the same time as one large group concurrently through various city departments instead of individually.

ARGUMENTS IN OPPOSITION: In opposition, the Environmental Working Group (EWG) states:

EWG has what are now longstanding concerns about the proliferation of cellular technology without a comprehensive understanding of the possible long term health impacts to humans and the environment. This is especially true of the new “5G” form of cellular as the testing of the impacts of this technology has been very limited. 5G broadband must be transmitted by saturating an area with cellular antennas which are located very close to homes, business, and schools on telephone poles or light poles. So, my home, your home, would be bathed in a new wavelength of RF energy whether or not you subscribe to that provider as it is broadcast without discretion.

ASSEMBLY FLOOR: 76-0, 5/22/23

AYES: Addis, Aguiar-Curry, Alanis, Alvarez, Arambula, Bains, Bauer-Kahan, Bennett, Berman, Boerner, Bonta, Bryan, Calderon, Juan Carrillo, Wendy Carrillo, Cervantes, Megan Dahle, Davies, Dixon, Essayli, Flora, Mike Fong, Vince Fong, Friedman, Gabriel, Gallagher, Garcia, Gipson, Grayson, Haney, Hart, Holden, Hoover, Irwin, Jackson, Jones-Sawyer, Kalra, Lee, Low, Lowenthal, Maienschein, Mathis, McCarty, McKinnor, Muratsuchi, Stephanie Nguyen, Ortega, Pacheco, Papan, Jim Patterson, Joe Patterson, Pellerin, Petrie-Norris, Ramos, Reyes, Luz Rivas, Robert Rivas, Rodriguez, Blanca Rubio, Sanchez, Santiago, Schiavo, Soria, Ta, Ting, Valencia, Villapudua, Waldron, Wallis, Ward, Weber, Wicks, Wilson, Wood, Zbur, Rendon

NO VOTE RECORDED: Chen, Connolly, Lackey, Quirk-Silva

Prepared by: Sarah Smith / E., U. & C. / (916) 651-4107

9/1/23 10:30:23

**** END ****

SENATE COMMITTEE ON GOVERNANCE AND FINANCE

Senator Anna M. Caballero, Chair

2023 - 2024 Regular

Local government: broadband permit applications

Enacts the Broadband Permit Efficiency and Local Government Staff Solution Best Practices Act of 2023, which requires local agencies undertake batch broadband permit processing under specified circumstances.

Background

Land Use Regulation. The California Constitution allows a city to “make and enforce within its limits, all local, police, sanitary, and other ordinances and regulations not in conflict with general laws, known as the police power of cities.” It is from this fundamental power that local governments derive their authority to regulate land through planning, zoning, and building ordinances, thereby protecting public health, safety, and welfare.

The Planning and Zoning Law requires every county and city to adopt a general plan that sets out planned uses for all of the area covered by the plan. Cities’ and counties’ major land use decisions—including development permitting—must be consistent with their general plans. The Planning and Zoning Law also requires public notice to be given at least 10 days in advance of hearings where most permitting decisions will be made. It also allows residents to appeal permitting decisions and other actions to either a board of appeals or the legislative body of the city or county. Cities and counties may adopt ordinances governing the appeals process.

Providers of wireless telecommunications services (“carriers”) must apply to cities and counties for permits to build structures or other wireless facilities that support wireless telecommunications equipment, like antennae and related devices. Similarly, wireless carriers must seek local approval to place additional telecommunications equipment on facilities where that equipment already exists, known as “collocations.”

Federal Requirements for Local Decisions on Wireless Facilities. Carriers and local governments have clashed over the extent of local authority to condition or deny wireless facilities. Accordingly, several state and federal laws prescribe aspects of permitting. Two federal laws, the Telecommunications Act of 1996 and the Spectrum Act, prohibit states and local agencies from regulating personal wireless services in a manner that prohibits or has the effect of prohibiting them. The Federal Communications Commission (FCC) is responsible for administering these laws and implementing this requirement, which includes requirements that local governments act within a “reasonable period of time” on permits for siting wireless facilities. Over the years, FCC has established 60-, 90-, and 150-day shot clocks based on the type of project. In 2018, the FCC issued its Small Cell Order that set specific shot clocks for small wireless facilities at:

• 60 days for applications for installations on existing infrastructure; and
• 90 days for all other applications.

For collocations that do not substantially change the physical dimensions of the existing facility , also known as an eligible facilities request, the application is “deemed approved” – meaning, the permit is automatically granted if a local government has not acted on the application within 60 days. However, for other projects, the shot clock periods are “presumptively reasonable,” meaning local governments can exceed them if they have a good reason. The order also provided that exceeding a reasonable period of time would be considered the same as prohibiting deployment, which opens up options for expedited relief in court. Finally, prior shot clocks only applied to zoning permits, but the Small Cell Order applied the shot clocks to all other permits required for small cell deployment, including license or franchise agreements to access the right-of-way, building permits, public notices and meetings, lease negotiations, electric permits, road closure permits, and aesthetic approvals. Local agencies have two ways to toll or stop the running of a FCC shot clock: they can either provide a timely notice of incompleteness (NOI), or “toll” the shot clock by mutual agreement with the applicant. Local agencies must issue NOIs within the first 30 days after the submission of an application to toll the running of the shot clock, and specify the missing information and the code provision, ordinance, application instruction, or other publicly-stated procedure requiring that information. Tolling agreements may be reached at any time during the process, so long as they’re in writing and signed by both parties.

State Law Governing Wireless Facilities. State law also specifies timelines for approving wireless facilities. Specifically, the 1977 Permit Streamlining Act (PSA) requires public agencies to act fairly and promptly on applications for development permits, including wireless facilities. Public agencies must compile lists of information that applicants must provide and explain the criteria they will use to review permit applications. Public agencies have 30 days to determine whether applications for development projects are complete; failure to act results in an application being “deemed complete.” However, local governments may continue to request additional information, potentially extending the time before the shot clock begins running.

Responding to a concern that local governments were delaying approval of permit applications for wireless sites, in 2006 the Legislature required collocations to be approved ministerially, and prohibited local governments from limiting the duration of permits for wireless sites to less than 10 years absent good reason (SB 1627, Kehoe). In 2015, citing similar concerns, carriers asked the Legislature to provide greater certainty on timelines for local governments to act on wireless facility permits (AB 57, Quirk). The timelines established by AB 57 are the same as provided under federal law, but AB 57 provides a stronger remedy: like the PSA, the application is deemed approved if the local government fails to act in the required time

AB 57 provides an application is deemed approved if the following conditions are met:

• The city or county fails to approve or deny the application within the reasonable time periods in the FCC rules;
• All required public notices have been provided regarding application; and
• The applicant has provided a notice to the city or county that the reasonable time period has lapsed.

AB 57 allowed the reasonable time to be tolled to accommodate timely requests for information required to complete the application or by mutual agreement between the applicant and the local government. The bill also allowed a city or county to challenge the operation of the applicant’s notice to the city or county that the reasonable time period has lapsed and the application is deemed approved. In 2021, the Legislature expanded AB 57’s “deemed approval” to apply to applications for small wireless services subject to FCC’s Small Cell Order (AB 537, Quirk).

Batching applications. For some service providers, submitting applications for approval to a local agency in a batch instead of as individual applications makes sense, where the specific equipment and design is the same, but the individual locations vary. In August 2022, the Governor’s Office of Business and Economic Development (GO-Biz) released a guidance document, the State of California Local Permitting Playbook, to help communities plan for broadband investments. This document recognizes batched permitting as a strategy that local governments can use to streamline permit approvals for broadband projects with multiple sites that have repetitive permit characteristics. The GO-Biz Playbook states: “As with some of the other strategies presented here, a batch permitting process might reduce the permit application caseload, decrease the permit processing timeline, and improve a broadband deployer’s timeline.” The playbook suggests that when considering a batching process, local governments should consider available staff resources, geographic boundaries for batching, and caps on the number of permits that can be batched. The playbook recognizes not all permit streamlining strategies are appropriate for all local governments; however, it suggests that where appropriate, batching can lower permit processing timelines for larger multi-site broadband deployment projects within a single jurisdiction.

State law does not currently contain specific provisions guiding local agency approval of batched applications, although some cities have adopted procedures to facilitate batching. However, under FCC’s, Small Cell Order, if an applicant files either a batched application to collocate small wireless facilities or a batched application to deploy new small wireless facilities, the shot clock that applies to the batch is the same one that would apply had the applicant submitted an individual application.

Fees. State law allows local agencies to impose permit fees on applications for the placement, installation, repair, or upgrading of telecommunications facilities such as lines, poles, or antennas. However, the fees can neither exceed the reasonable costs of providing the service for which the fee is charged nor be levied for general revenue purposes.

Seeking a more consistent framework to reduce delays, the author wants to apply deemed approved requirements from AB 57 and 571 to batched applications under specified circumstances.

Proposed Law

Assembly Bill 965 enacts the Broadband Permit Efficiency and Local Government Staff Solution Best Practices Act of 2023, which requires local agencies undertake batch broadband permit processing, as defined, upon receiving two or more broadband permit applications for substantially similar broadband project sites submitted at the same time by the same applicant. However, local agencies may place reasonable limits on the number of broadband project sites based on its population, specifically:

• 25 project sites for a city with a population of fewer than 50,000 or a county with a population of fewer than 150,000, or
• 50 projects sites for all other local agencies.

Local agencies must complete batch broadband permit processing for wireless broadband projects within a presumptively reasonable time, as defined, unless a longer period of time is permitted elsewhere in law, including under the FCC shot clock. If a local agency does not approve applications subject to batch broadband permit processing and issue permits, or reject the applications and notify the applicants, within the presumptively reasonable time or a longer period, the bill deems all of the permits approved under the process set by ABs 57 and 571. If a broadband permit application is denied, the local agency must notify the applicant in writing of the reasons for the denial. The measure does not apply to a project that is an “eligible facilities request.”

The bill does not preclude a local agency from requiring compliance with any requirements relating to the design, construction, or location of broadband projects that the local agency is otherwise authorized to impose or enforce, including health and safety requirements. AB 965 states its provisions do not supersede, nullify, or otherwise alter the requirements necessary to comply with any safety standards.

AB 965 provides a local agency may only remove a broadband project site from grouping under a single permit under mutual agreement with the applicant or to expedite the approval of other substantially similar broadband project sites. Local agencies can impose fees on batch broadband permitting processing, which cannot exceed the reasonable cost of processing the applications. The bill also states that where limited resources affect a local agency’s ability to process applications, including batched applications, a local agency must work with the applicant in good faith to resolve those resource limitations, which can include the applicant providing supplemental resources.

The measure defines several terms, and makes legislative findings and declarations supporting its purposes.

State Revenue Impact

No estimate.

Comments

1. Purpose of the bill. According to the author, “AB 965 will accelerate broadband deployment and help close our state’s digital divide while retaining local control. The bill simply requires local jurisdictions to make a decision on a group of broadband permits in a reasonable amount of time (2-3 months) – they can approve, reject or extend the amount of time needed for review. Broadband permit batching is a best practice used by local jurisdictions, state government and the private sector to streamline and expedite the deployment of broadband infrastructure so local communities can more quickly get connected to high-speed internet. It can make the difference between connecting communities in months instead of years. When a broadband project in a community involves dozens of nearly identical permits for a variety of locations, the permits are submitted and processed at the same time as one large group concurrently through various city departments instead of individually. This bill will ensure Californians will quickly benefit from high-speed internet projects by allowing broadband installers to submit their nearly identical broadband project applications at the same time and local governments to process this batch of permits together within existing shot clocks. Processing several substantially similar broadband permit applications at the same time will allow local governments to still receive permit fees, but staff can more easily process routine, high-volume broadband permits as a group instead of individually to help bridge the digital divide and more quickly connect communities to high-speed internet. AB 965 will help the state meet the federal broadband funding deadline of December 31, 2024. A recent report conducted by the Bay Area Council Economic Institute found that 75% of California voters support statewide streamlining of broadband projects, while 70% support requiring all local governments to follow a uniform state mandated review process for broadband projects.”

2. Home rule. California is a geographically and demographically diverse state, and that is reflected in its 482 cities and 58 counties. The California Constitution charges the local elected officials for each of those municipalities with protecting their citizens’ welfare. One chief way local governments do this is by exercising control over what gets built in their community. Local officials weigh the need for additional broadband infrastructure against the concerns and desires of their constituents and within their constraints to provide cost-effective services using finite resources. Where appropriate, those officials can allocate resources necessary to expedite the kinds of infrastructure they believe their constituents need. AB 965 overrides these local preferences by directing local officials to approve batched applications for broadband within certain time periods, or else they’re deemed approved. Any local agency in the state is currently free to set rules for batching applications that will prioritize the projects that will provide the high-speed internet demanded by their constituents, and direct their planning departments to process any applications necessary to do so. The Committee may wish to consider whether the state needs to intervene in local decision making with regard to batched broadband applications.

3. Better, faster, cheaper? As a result of the author amending AB 965 on June 7^th, many associations of local agencies removed their opposition to the measure. However, other local agencies, such as the San Francisco Metropolitan Transportation Authority, argue the bill’s requirements do not account for the unique topography and transportation infrastructure in the City and County of San Francisco. The web of wires needed to power San Francisco’s trolleys and trains can accommodate broadband wireless infrastructure, but not without a thorough review, which they argue isn’t possible under AB 965’s timelines. While the periods specified in AB 965 may be feasible for many local agencies, the bill may result in deemed granted applications because of specific circumstances in some local agencies.

4. Mandate. The California Constitution requires the state to reimburse local governments for the costs of new or expanded state mandated local programs. Because AB 965 adds to the duties of local officials, Legislative Counsel says that the bill imposes a new state mandate. AB 965 disclaims the state's responsibility for providing reimbursement by citing local governments’ authority to charge for the costs of implementing the bill's provisions.

5. Incoming! The Senate Energy, Utilities, and Communications Committee approved AB 965 at its June 20^th hearing on a vote of 17-0. The Senate Governance and Finance Committee is hearing it as the committee of second reference.

6. Related legislation. In recent years, the Legislature has enacted, but Governors Brown and Newsom vetoed measures related to AB 965:

• SB 649 (Hueso, 2018) would have established a statewide framework for streamlining the permit siting process for small cell wireless facilities that meet specified requirements, including requiring an administrative and encroachment permit in lieu of a discretionary permit for installations in the right-of-way and also within a commercial or industrial zone, limits the fees to these attachments. Governor Brown vetoed the bill, stating:

This bill establishes a uniform permitting process for small cell wireless equipment and fixes the rates local governments may charge for placement of that equipment on city or county owned property, such as streetlights and traffic signal poles.

There is something of real value in having a process that results in extending this innovative technology rapidly and efficiently. Nevertheless, I believe that the interest which localities have in managing rights of way requires a more balanced solution than the one achieved in this bill.

• SB 556 (Dodd, 2022) would have established permitting requirements for the placement of small wireless facilities on street light and traffic signal poles owned by local governments. Governor Newsom vetoed the bill, stating:

This bill would restrict the ability of local governments and publicly-owned electric utilities to regulate the placement of small cell wireless facilities on public infrastructure and limit the compensation that may be collected for use of these public assets.

In 2018, the Federal Communications Commission (FCC) adopted many of the requirements that this bill seeks to codify. The provisions of this bill, however, conflict with and complicate some of the FCC requirements. Further, it would be imprudent to codify these requirements in state law in the event the FCC revises them.

Assembly Actions

Assembly Communications and Conveyance Committee: 13-0
Assembly Local Government Committee: 8-0
Assembly Appropriations Committee: 16-0
Assembly Floor: 76-0

Support and Opposition

(7/7/23)

Support: Bay Area Council
Calbroadband
California African American Chamber of Commerce
California Apartment Association
California Asian Pacific Chamber of Commerce
California Association for Micro Enterprise Opportunity
California Building Industry Association
California Business Properties Association
California Business Roundtable
California Chamber of Commerce
California Communications Association
California Emerging Technology Fund
California Hispanic Chamber of Commerce
California Wireless Association
Coalition for Small and Disabled Veteran Businesses
Consolidated Communications
Crown Castle
CTIA
Dev/mission
Frontier Communications Corporation
Hispanic Chambers of Commerce of San Francisco
Hollywood Chamber of Commerce
Incompas
Kern County Hispanic Chamber of Commerce
Los Angeles County Business Federation (BIZ-FED)
Los Angeles Latino Chamber of Commerce
Los Angeles Metro Hispanic Chamber of Commerce
National Federation of Independent Business
Orange County Business Council
Pcia - the Wireless Infrastructure Association
San Francisco Chamber of Commerce
San Juan Capistrano Chamber of Commerce
San Mateo County Economic Development Association (SAMCEDA)
Silicon Valley Leadership Group
Slavic-american Chamber of Commerce
Southwest Hispanic Chamber of Commerce
United States Telecom Association 
Vermont-slauson Economic Development Corporation
Wireless Infrastructure Association

Opposition: 5g Free California
Alliance of Nurses for Healthy Environments
Altapasa Residents for Responsible Technology
As You Sow
Breast Cancer Prevention Partners
California Brain Tumor Association
California for Safe Technology
California Nurses for Environmental Health and Justice
Californians for Safe Technology
Center for Environmental Health
City and County of San Francisco
Clean Earth 4 Kids
Dietrick Institute for Applied Insect Ecology
Ecological Options Network
Emf Safety Network
Environmental Health Trust
Environmental Working Group
Eon – the Ecological Options Network
Facts: Families Advocating for Chemical & Toxics Safety
Feather River Action
Gmo Science
Health & Habitat INC.
Keep Cell Antennas Away
Malibu for Safe Tech
Moms Across America
Physicians for Safe Technology
Plumas Wired
Preserve Rural Sonoma County
Safe Technology for Santa Rosa
Safer 5g Moraga
Salmon Protection and Watershed Network
San Francisco Municipal Transportation Agency (SFMTA)
San Francisco Public Utilities Commission
Sonoma County Conservation Action
Sonoma County Tomorrow, INC
Sonoma Neighbors for Safe Tech
Sonoma Safe Agriculture Safe Schools 
Stop Smart Meters!
Topanga Peace Alliance
Towards an Internet of Living Beings
Wine & Water Watch
Wire California
Wireless Radiation Education & Defense
Www.gmoscience.org
12 Individuals

-- END --

SENATE COMMITTEE ON ENERGY, UTILITIES AND COMMUNICATIONS

Senator Steven Bradford, Chair

2023 - 2024 Regular

Bill No: AB 965 Hearing Date: 6/20/2023

SUBJECT: Local government: broadband permit applications

DIGEST: This bill establishes requirements for local governments to process batched permits for broadband infrastructure.

ANALYSIS:

Existing law:

1. Defines a local agency as a city, county, city and county, charter city, special district, or publicly owned utility (POU). (Government Code §65964.5)
2. Specifies that a wireless siting application shall be deemed approved if the applicant meets certain requirements and a local agency fails to approve or reject the application within a reasonable time period established by the Federal Communications Commission (FCC). (Government Code §65964.1)
3. Requires a local agency to allow microtrenching for the installation of underground fiber unless the local agency makes a written finding that allowing microtrenching for fiber would have a specific, adverse impact on public health or safety. (Government Code §65964.5)
4. Establishes a process for approving communications facility attachments to utility poles owned or controlled by a local electric POU. Existing law requires POUs to make appropriate space and capacity on their utility poles for use by a communications provider on reasonable terms and conditions. Existing law specifies timelines for attachments to poles, including multiple pole attachments. (Public Utilities Code §9511)
5. Establishes the Dig Safe Board and requirements for safe excavation near utility facilities and establishes penalties for entities that excavate without complying with dig safe rules. (Government Code §4216 et. seq.)
6. Prohibits cities and counties from charging telecommunications facility siting fees that exceed the reasonable costs of conducting the permitting and siting services. Existing law specifies that these fees may not be collected for general revenue purposes. (Government Code §50030)

This bill:

1. Defines a “local agency” as a city, county, city and county, charter city, or special district and specifies that this definition does not include a POU.
2. Defines “batch broadband permit processing” as the simultaneous processing of multiple broadband permit applications for substantially similar broadband project sites under a single permit.
3. Requires local agencies to process broadband project permits in batches if the local agency receives two or more broadband permit applications for substantially similar broadband project sites submitted at the same time by the same applicant.
4. Requires batched wireless broadband projects to be processed within existing deadlines unless a longer time is permitted under law. This bill specifies that if a local agency does not approve or reject batched wireless permits within existing shot clocks, all the wireless permits in a batch shall be deemed approved.
5. Authorizes a local agency to set reasonable limits on the number of projects batched into a single permit based on the following:
   1. Cities with a population less than 50,000 persons may limit the number of sites batched into a single permit to no less than 25 sites.
   2. Counties with a population fewer than 150,000 persons may limit the number of sites batched into a single permit to no less than 25 sites.
   3. Cities and counties with populations greater than 50,000 and 150,000 persons respectively may limit the number of sites batched into a single permit to no less than 50 sites.
6. Authorizes a local agency to impose a fee on broadband permit processing, as specified in existing law, and requires local agencies to work with applicants to resolve issues associated with limited local permitting resources. To address these limitations, local governments may receive supplemental resources from an applicant.
7. Specifies that nothing in this bill limits the application of existing utility safety requirements, including dig safe requirements for underground excavations.

Background

State permitting recommendations have recognized batched permitting as a local streamlining practice. In August 2022, the Governor’s Office of Business and Economic Development (GO-Biz) released a guidance document, the State of California Local Permitting Playbook, to help communities plan for broadband investments. This guidance document recognizes batched permitting as a strategy that local governments can use to streamline permit approvals for broadband projects with multiple sites that have repetitive permit characteristics. The GO-Biz Playbook states: “As with some of the other strategies presented here, a batch permitting process might reduce the permit application caseload, decrease the permit processing timeline, and improve a broadband deployer’s timeline.” The guidebook suggests that when considering a batching process, local governments should consider available staff resources, geographic boundaries for batching, and caps on the number of permits that can be batched. The playbook recognizes that not all permit streamlining strategies are appropriate for all local governments; however, it suggests that where appropriate, batching can lower permit processing timelines for larger multi-site broadband deployment projects within a single jurisdiction.

Are this bill’s requirements flexible enough for all local governments? While nothing in existing law prohibits a local government from adopting rules enabling the processing of broadband facility permits in batches, this bill would require local governments to do so. This bill also allows local governments to set a limit on the maximum amount of permits in a single batch. However, this bill also specifies that smaller cities and counties can only set a maximum limit at or above 25 permits per batch; all larger cities and counties must allow batching of at least 50 sites per permit.

While some local governments already allow certain telecommunications facilities to process their permits in batches, these local governments’ permit batching rules may not meet this bill’s requirements. The cities of Long Beach and Davis have both adopted rules facilitating the batching of small wireless facility permits; however, these cities’ batching processes do not encompass all wireless facilities, and they set much lower thresholds for the maximum amount of sites that can batched into one permit. The City of Long Beach allows a maximum of 10 sites to be batched into a single permit, and the City of Davis allows a maximum of five sites to be batched into a single permit. This bill would require these cities to substantially increase their rules for both the scope and amount of wireless facilities that can be batched in a single permit application.

Shot clocks may indirectly prioritize processing wireless permits. Shot clocks are time periods during which agencies must take action on an application. Shot clocks do not require agencies to approve applications; however, if an agency does not approve or reject a permit within a shot clock, that agency may be forced to issue a permit for the applicant. While there are no shot clocks for wireline broadband permits, both state law and federal regulations have adopted shot clocks for wireless permitting. In 2018, the FCC updated its wireless deployment orders related to local government permitting. As part of this update, the FCC expanded the types of wireless facilities covered by the FCC’s permit streamlining rules and also shortened the shot clocks for local government permit application reviews. The 2018 order adopted the following shot clocks for wireless permits:

• 60 days for applications for installations on existing infrastructure
• 90 days for all other applications.

Existing state law has codified these shot clocks and specified that wireless permits that are not approved or rejected within the applicable shot clock are “deemed approved.”

While this bill does not create a batched permit process exclusively for wireless or establish new shot clocks for processing wireless permits, the bill applies existing wireless shot clocks to batched wireless permits. The application of existing wireless shot clocks to batched permitting could encourage local governments to prioritize processing batched wireless permits ahead of wireline broadband projects to comply with shot clock deadlines.

Double Referral. Should this bill pass out of this committee, it will be re-referred to the Senate Committee on Governance and Finance.

Prior/Related Legislation

SB 717 (Dodd, Chapter 813, Statutes of 2022) required the California Department of Technology to submit a report to the Legislature by May 1, 2024, regarding specified barriers to broadband infrastructure deployment, including the extent to which obtaining state and local permits poses a barrier to deploying broadband infrastructure.

SB 556 (Dodd, 2022) would have established permitting requirements for the placement of small wireless facilities on street light and traffic signal poles owned by local governments. The bill was vetoed.

AB 537 (Quirk, Chapter 467, Statutes of 2021) updated existing state law regarding timelines and processes for approving wireless telecommunications facility permits to reflect new federal deadlines.

SB 378 (Gonzalez, Chapter 677, Statutes of 2021) required local governments to allow microtrenching for the installation of underground fiber optic equipment unless the local government makes a specified finding.

FISCAL EFFECT: Appropriation: No Fiscal Com.: Yes Local: Yes

SUPPORT:

Bay Area Council
California African American Chamber of Commerce

California Apartment Association
California Asian Pacific Chambers of Commerce
California Association of Micro Enterprise Opportunity

California Broadband & Video Association

California Building Industry Association
California Business Properties Association
California Chamber of Commerce
California Communications Association
California Emerging Technology Fund
California Hispanic Chambers of Commerce
California Wireless Association
Coalition of Small & Disabled Veteran Businesses

Consolidated Communications
Crown Castle
CTIA
Dev/Mission
Frontier Communications Corporation
Hispanic Chambers of Commerce of San Francisco

INCOMPAS

Kern County Hispanic Chamber of Commerce

Los Angeles County Business Federation
Los Angeles Latino Chamber of Commerce

Los Angeles Metropolitan Hispanic Chambers of Commerce

National Federation of Independent Businesses

Orange County Business Council
San Francisco Chamber of Commerce
San Juan Capistrano Chamber of Commerce

San Mateo County Economic Development Association
Silicon Valley Leadership Group
Slavic American Chamber of Commerce

Southwest Hispanic Chamber of Commerce

USTelecom - The Broadband Association

Wireless Infrastructure Association

OPPOSITION:

5G Free California
Alliance of Nurses for Healthy Environments
As You Sow
Boyle Heights Community Garden

Breast Cancer Prevention Partners
California Nurses for Environmental Health and Justice
Californians for Safe Technology
Center for Environmental Health
City and County of San Francisco
Consumers for Safe Cell Phones

Clean Earth 4 Kids
Dietrick Institute for Applied Insect Ecology
Ecological Options Network
EMF Safety Network Education/Outreach
Environmental Health Trust
Environmental Working Group
FACTS: Families Advocating for Chemical and Toxics Safety
Feather River Action!

GMOScience
Health & Habitat, Inc.
Keep Cell Antennas Away

Malibu for Safe Tech
Moms Across America
Mothers of East LA

Neighbors for Safe Metering

Parents for a Safer Environment

Physicians for Safe Technology
Plumas Wired!

Preserve Rural Sonoma County
Safe Tech for Santa Rosa
Safer 5G Moraga
Sonoma County Tomorrow
Sonoma Neighbors for Safe Tech
Sonoma Safe Agriculture Safe Schools
Stop Smart Meters!
Wine & Water Watch
Wire California
Wireless Radiation Education & Defense
20 Individuals

ARGUMENTS IN SUPPORT: According to the author:

AB 965 will accelerate broadband deployment and help close our state’s digital divide while retaining local control. The bill simply requires local jurisdictions to make a decision on a group of broadband permits in a reasonable amount of time (2-3 months) – they can approve, reject or extend the amount of time needed for review.

Broadband permit batching is a best practice used by local jurisdictions, state government and the private sector to streamline and expedite the deployment of broadband infrastructure so local communities can more quickly get connected to high-speed internet. It can make the difference between connecting communities in months instead of years. When a broadband project in a community involves dozens of nearly identical permits for a variety of locations, the permits are submitted and processed at the same time as one large group concurrently through various city departments instead of individually.

This bill will ensure Californians will quickly benefit from high-speed internet projects by allowing broadband installers to submit their nearly identical broadband project applications at the same time and local governments to process this batch of permits together within existing shot clocks. Processing several substantially similar broadband permit applications at the same time will allow local governments to still receive permit fees, but staff can more easily process routine, high-volume broadband permits as a group instead of individually to help bridge the digital divide and more quickly connect communities to high-speed internet. AB 965 will help the state meet the federal broadband funding deadline of December 31, 2024.

A recent report conducted by the Bay Area Council Economic Institute found that 75% of California voters support statewide streamlining of broadband projects, while 70% support requiring all local governments to follow a uniform state mandated review process for broadband projects.

ARGUMENTS IN OPPOSITION: In opposition, Consumers for Safe Cell Phones states:

… Wireless networks consume more energy than wired networks, property values near antennas are declining, small wireless facilities increase the risk of fires, telecom corporations are not insured for health claims, government research proves that exposure to radiofrequency radiation (RFR) causes cancer, wireless networks are more easily hacked, and there’s already a much better, safer, faster, more reliable and more affordable solution for broadband connectivity.

-- END --

ASSEMBLY THIRD READING

ATR Bill Id:AB 965

Author:(Juan Carrillo)

As Amended Ver:May 1, 2023

Majority vote

SUMMARY

Requires local agencies to undertake batch broadband permit processing.

Major Provisions

1. Requires a local agency to undertake batch broadband permit processing upon receiving two or more broadband permit applications for substantially similar broadband project sites submitted at the same time by the same applicant. Batch broadband permit processing shall be completed within a presumptively reasonable time for wireless broadband projects subject to applicable law unless a longer period of time is permitted under the circumstances pursuant to applicable law, as specified.
2. Requires, if a local agency does not approve or reject broadband permit applications for substantially similar wireless broadband project sites submitted for batch broadband permit processing and issue permits within the presumptively reasonable time, all of the permits to be deemed approved.
3. Allows a local agency to place reasonable limits on the number of broadband project sites that are grouped into a single permit while undertaking batch broadband permit processing, and provides that a reasonable limit shall be no less than 50 project sites, as specified.
4. Provides the following definitions:
   1. "Batch broadband permit processing" means the simultaneous processing of multiple broadband permit applications for substantially similar broadband project sites under a single permit.
   2. "Broadband permit application" means an application or other documents submitted for review by a local agency to permit the construction of a broadband project, as specified.
   3. "Broadband project" means the proposed facility, including the support structure and any supporting equipment necessary for operation of the proposed facility. A broadband project may be comprised of one or more components, including, but not limited to, a wireless facility, a fiber optic connection, and other supporting equipment, each of which may require separate permits or authorizations by a local agency.
   4. "Local agency" means a city, county, city and county, charter city, special district, or publicly owned utility (POU), as specified.

"Presumptively reasonable time" means the timeframe that a local agency must review and resolve an application pursuant to applicable law following submission of a complete broadband permit application.

• 1. "Substantially similar broadband project sites" means broadband project sites that are nearly identical in terms of equipment and general design, but not location.

COMMENTS

The Code of Federal Regulations (CFR) provides review periods for individual applications for personal wireless service facilities. The following are the presumptively reasonable periods of time for action on applications seeking authorization for deployments in the following categories:

1. Review of an application to collocate a small wireless facility using an existing structure: 60 days.
2. Review of an application to collocate a facility other than a small wireless facility using an existing structure: 90 days.
3. Review of an application to deploy a small wireless facility using a new structure: 90 days.
4. Review of an application to deploy a facility other than a small wireless facility using a new structure: 150 days.

The CFR also provides requirements for batching, as follows:

1. If a single application seeks authorization for multiple deployments, all of which fall within the "small wireless facility" categories, then the presumptively reasonable period of time for the application as a whole is equal to that for a single deployment within that category.
2. If a single application seeks authorization for multiple deployments, the components of which are a mix of deployments that fall within the "small wireless facility" categories (both collocated on an existing structure and deploying using a new structure), then the presumptively reasonable period of time for the application as a whole is 90 days.

The CFR provides that siting authorities may not refuse to accept batched applications for small wireless facilities.

The State of California's Local Permitting Playbook, released in August of 2022, was created by the California Governor's Office of Business and Economic Development, the California Department of Technology, the California Public Utilities Commission, and the California Emerging Technology Fund. It states, "The California Local Permitting Playbook offers strategies designed to enable communities to prepare for broadband investment – recognizing that an unprecedented amount of state and federal funding has been allocated to expanding broadband infrastructure in California, and that local government permitting and planning staffs have varying degrees of experience with and knowledge of broadband deployment."

The playbook also notes, "These approaches are not all appropriate for all communities – nor would any given community be likely to adopt every practice described here. Rather, the playbook presents a set of options a local government can evaluate in light of its public policy priorities, its community's unique circumstances, and its residents' needs…The strategies and smart practices presented in this playbook are intended to enable localities to receive value in return for the efforts they make to enable a broadband deployer's efforts. That value may be financial (such as a lease payment in return for access to a city's fiber network) or it may be less tangible (such as a commitment by the partner to deliver broadband service to low-income residents in return for access to a city's excess conduit). Either way, the locality will facilitate broadband deployment in partnership with the deployer; the relationship should not favor the deployer over the public interest."

Among many "smart practices" outlined in the Playbook is "developing a batch permitting process." The Playbook notes, "For localities anticipating large broadband-related projects that will require extensive but potentially repetitive permit applications, batch permitting might allow applicants to request a single permit that would cover a project typically subject to multiple permit applications. As with some of the other strategies presented here, a batch permitting process might reduce the permit application caseload, decrease the permit processing timeline, and improve a broadband deployer's timeline.

"The City of Long Beach, for example, developed a bulk permitting process in 2020 for small cell wireless facilities that allows up to 10 sites to be grouped under a single permit. Applicants must negotiate specifications before submitting the application, and sites must all be either Tier A (commercial arterial) or Tier B (residential roads). This enhanced permitting process has improved the City's timeline while still protecting local interests (e.g., distinguishing between siting locations proposed on commercial arteries and residential roads)."

Please refer to policy committee analyses of this bill for additional background and comments.

According to the Author

AB 965 will accelerate broadband deployment and help close our state's digital divide while retaining local control. The bill simply requires local jurisdictions to make a decision on a group of broadband permits in a reasonable amount of time – they can approve, reject or extend the amount of time needed for review. Broadband permit batching is an industry best practice used by local jurisdictions, state government and the private sector to streamline and expedite the deployment of broadband infrastructure so local communities can more quickly get connected to high-speed internet and telecommunications services. When a broadband project in a community involves dozens of nearly identical permits for a variety of locations, the permits are submitted and processed at the same time as one large group concurrently through various city departments instead of individually. The state of California is currently pursuing this technique in its deployment of the Middle Mile Broadband Initiative.

This bill will ensure Californians will quickly benefit from high-speed internet projects by allowing broadband installers to submit their nearly identical broadband project applications at the same time and local governments to process this batch of permits together within existing shotclocks. Processing several substantially similar broadband permit applications at the same time will allow local governments to still receive permit fees, but staff can more easily process routine, high-volume broadband permits as a group instead of individually to help bridge the digital divide and more quickly connect communities to high-speed internet. This will allow the state to meet the federal broadband funding deadline of December 31, 2024 while creating greater broadband equity amongst communities so more individuals can have access to high-speed internet access for emergency response, remote work, telehealth, education and commerce. A recent report conducted by the Bay Area Council Economic Institute found that 75% of California voters support statewide streamlining of broadband projects, while 70% support requiring all local governments to follow a uniform state mandated review process for broadband projects.

Arguments in Support

A large coalition of supporters write, "This bill ensures Californians will more quickly benefit from high-speed internet access, a vital resource essential for the public's safety, health, and economic resilience. The COVID-19 pandemic exposed the severe need to expand broadband access across California. The pandemic dramatically changed our state's economic, educational, and business landscape. Californians' enhanced reliance on remote work, telehealth, and virtual learning demonstrate the need for legislation to accelerate the deployment of broadband infrastructure. Currently, local jurisdictions' permitting processes can severely delay broadband projects. These delays stifle economic growth and connectivity in our local communities.

"In California, each local jurisdiction has its own broadband permitting process and timeline. Some use the industry best practice of permit batching, master-permitting, programmatic-permitting or term-permitting, which allow large volumes of substantially similar broadband permits to be processed and approved within an expedited timeframe. Notably, California's Middle Mile broadband project is utilizing this approach.

"There are currently over 1,000 broadband permits pending with local jurisdictions in California that would improve internet connectivity for millions. Even though many of these permits are nearly identical other than the location, some local jurisdictions process each one of them individually, which can take years, instead of months, delaying broadband deployment. Another reason for delay is the local jurisdiction will move the permit through multiple municipal departments exacerbating an already bureaucratic process.

"AB 965 would require local jurisdictions to process groups of substantially similar broadband permits at the same time in an efficient manner. Permit fees would still be received by local governments, but staff would be able to more easily process routine, high-volume broadband permits as a group, instead of individually to help rapidly bridge the digital divide. We support AB 965 because it will allow broadband project permits to move forward as quickly and efficiently as possible. In doing so, the bill will expand high-speed internet access to millions of Californians."

Arguments in Opposition

The California State Association of Counties, the Rural County Representatives of California, and the League of California Cities, with an "oppose, unless amended position" state, "The FCC batching requirements, while not limited in number, are limited to "small wireless facilities." AB 965 would apply more broadly to all broadband permitting which vastly expands the universe of projects. This bill requires a local jurisdiction to allow batching of no less than 50 broadband permits into a single application. Although it requires those 50 or more projects to be 'nearly identical in terms of equipment and general design,' variables such as terrain, geographic location and size of project can make evaluation needs from application to application very different. For instance, laying five miles of fiber optic cable through the valley floor is different than installing 30 miles to fiber through granite laden foothills.

"The FCC shot clocks for individual or batched applications include tolling of the time period if necessary. A local agency may demonstrate that more time is needed to process the application, as outlined in the deemed approved statute found in Government Code 65964.1. This section of law shifts the onus onto local agencies to seek judicial review and affirmatively demonstrates the need for more time, but does preserve a local government's ability to do so. AB 965 removes these protections.

"Language included in Section 65964.3(f) of the bill states that AB 965 does not preclude a local agency from requiring compliance with 'generally applicable health and safety requirements.' Yet, the same subdivision then requires a local agency to issue a written finding that the facility proposed in the broadband permit application would have a specific adverse impact on public health and safety in order to enforce applicable health and safety requirements. This provision applies to all applications, including for facilities in the public right-of-way, creating potentially hazardous conditions on roadways, pedestrian walkways, surrounding buildings and to the general public.

"Local governments are committed to providing robust internet access to our communities and have worked collaboratively in the past with industry partners to improve our processes while maintaining important local safeguards…We appreciate the amendments the author took in policy committee narrowing the applicability of the shot clock provisions to only wireless facilities, however we continue to be gravely concerned for the reasons outlined herein and respectfully urge your 'No' vote."

FISCAL COMMENTS

According to the Assembly Appropriations Committee, this bill entails no direct state costs because local agencies each have the ability to impose fees on permit applicants to cover the local costs to implement this bill.

VOTES

ASM COMMUNICATIONS AND CONVEYANCE: 13-0-0

YES: Boerner Horvath, Jim Patterson, Connolly, Davies, Holden, Hoover, Low, Maienschein, Papan, Luz Rivas, Rodriguez, Schiavo, Weber

ASM LOCAL GOVERNMENT: 8-0-0

YES: Aguiar-Curry, Dixon, Boerner, Pacheco, Ramos, Robert Rivas, Waldron, Wilson

ASM APPROPRIATIONS: 16-0-0

YES: Holden, Megan Dahle, Bryan, Calderon, Wendy Carrillo, Dixon, Mike Fong, Hart, Lowenthal, Mathis, Papan, Pellerin, Robert Rivas, Sanchez, Weber, Ortega

UPDATED

VERSION: May 1, 2023

CONSULTANT: Angela Mapp / L. GOV. / (916) 319-3958 FN: 0000426

Date of Hearing: May 17, 2023

ASSEMBLY COMMITTEE ON APPROPRIATIONS

Chris Holden, Chair

ABPCA Bill Id:AB 965

Author:(Juan Carrillo) – As Amended Ver:May 1, 2023

Urgency: No State Mandated Local Program: Yes Reimbursable: No

SUMMARY:

This bill requires a local agency to undertake “batch permitting” upon receiving two or more broadband permit applications for “substantially similar projects.” The bill deems approved any such permit application that a local agency neither approves or rejects within a “presumably reasonable time.”

The bill provides several key definitions, including:

1. Batch broadband permitting process—the simultaneous processing of multiple broadband permit applications for substantially similar broadband project sites under a single permit.
2. Presumptively reasonable time—the timeframe that a local agency must review and resolve an application pursuant to applicable law following submission of a complete broadband permit application. The presumptively reasonable time period may be modified by mutual, written agreement between the local agency and the applicant. Critically, this bill does not provide a time-specific definition of “presumptively reasonable time.”
3. Substantially similar broadband project sites—broadband project sites that are nearly identical in terms of equipment and general design, but not location.

In addition, the bill prohibits a local agency from limiting to fewer than 50 the number of broadband project sites it groups into a single permit.

FISCAL EFFECT:

This bill entails no direct state costs because local agencies each have the ability to impose fees on permit applicants to cover the local costs to implement this bill.

COMMENTS:

The author intends this bill to accelerate deployment of broadband projects. The author asserts the limits this bill imposes on local discretion is justified by the widespread benefits access to highspeed internet provide to all Californians. According to the author:

Processing several substantially similar broadband permit applications at the same time will allow local governments to still receive permit fees, but staff can more easily process routine, high-volume broadband permits as a group instead of individually to help bridge the digital divide and more quickly connect communities to high-speed internet. This will allow the state to meet the federal broadband funding deadline of December 31, 2024 while creating greater broadband equity amongst communities so more individuals can have access to high-speed internet access for emergency response, remote work, telehealth, education and commerce.

The bill is supported by numerous industry organizations that, similar to the author, contend the bill will allow broadband infrastructure to be permitted quickly and efficiently.

Representatives of California’s local governments see it differently. The California State Association of Counties (CSAC), the Rural County Representatives of California (RCRC), the Urban Counties of California (UCC) and the League of California Cities (CalCities) collectively write in opposition to the bill, asserting the bill makes “radical changes to California telecommunications law and local government permitting obligations.” The locals write:

local jurisdictions currently have the ability, absent this legislation, to batch permits, expediate applications, and generally work to streamline the process of broadband deployment. Moreover, those jurisdictions that remain unserved and underserved, despite well over a decade of industry subsidization for deployment, are not the jurisdictions that lack willingness to work with ISPs to streamline placement of telecommunication facilities. In actuality, unserved/underserved areas remain without reliable internet access because they are deemed by the ISPs to have inadequate Return on Investment (ROI). Creating a process to expediate permitting in a jurisdiction that does not offer an adequate ROI will not incentivize deployment in those areas, but will, instead, make building in areas that possess greater potential ROI, like those with existing infrastructure, more lucrative. This bill will not aid bridging the digital divide but will just make it more profitable to build in dense, higher cost markets.

In addition, the committee has received correspondence from several dozen individuals who express concern over the purported harm to health caused by wireless technology. Several of these individuals assert the state will face increased public health costs as an indirect result of this bill.

Analysis Prepared by: Jay Dickenson / APPR. / (916) 319-2081

Date of Hearing: April 26, 2023

ASSEMBLY COMMITTEE ON LOCAL GOVERNMENT

Cecilia Aguiar-Curry, Chair

ABPCA Bill Id:AB 965 (

Author:Juan Carrillo) – As Amended Ver:April 24, 2023

SUBJECT: Local government: broadband permit applications.

SUMMARY: Requires a local agency to undertake batch broadband permit processing and to complete batch broadband permit processing within a presumptively reasonable time. Specifically, this bill:

1. Enacts the Broadband Permit Efficiency and Local Government Staff Solution Best Practices Act of 2023.
2. Provides the following definitions for the purpose of this bill:
   1. “Batch broadband permit processing” means the simultaneous processing of multiple broadband permit applications for substantially similar broadband project sites under a single permit.
   2. “Broadband permit application” means an application or other documents submitted for review by a local agency to permit the construction of a broadband project. Provides that a broadband permit application may fall into four subtypes:
      1. Aerial construction.
      2. Trenched construction.
      3. Wireless construction.
      4. Other.
   3. “Broadband project” means the proposed facility, including the support structure and any supporting equipment necessary for operation of the proposed facility. A broadband project may be comprised of one or more components, including, but not limited to, a wireless facility, a fiber optic connection, and other supporting equipment, each of which may require separate permits or authorizations by a local agency.
   4. “Local agency” means a city, county, city and county, charter city, special district, or publicly owned utility (POU).
   5. “Presumptively reasonable time” means the timeframe that a local agency must review and resolve an application pursuant to applicable law, or to the extent the time period is not preempted or otherwise governed by applicable law, the applicable time period listed below, following submission of a complete broadband permit application. The following presumptively reasonable time periods may be modified by mutual, written agreement between the local agency and the applicant. The following time periods shall be administered in accordance with Section 1.6003 of Title 47 of the Code of Federal Regulations (CFR):
      1. The presumptively reasonable timeframe for aerial construction is no more than 60 days.
      2. The presumptively reasonable timeframe for trenched construction is no more than 90 days.
      3. The presumptively reasonable timeframe for wireless construction are the periods and procedures established by applicable FCC rules.
      4. The presumptively reasonable timeframe for other subtypes of permit applications is no more than 90 days.
   6. “Substantially similar broadband project sites” means broadband project sites that are nearly identical in terms of equipment and general design, but not location.
3. Requires a local agency to undertake batch broadband permit processing upon receiving two or more broadband permit applications for substantially similar broadband project sites submitted at the same time by the same applicant.
4. Requires batch broadband permit processing to be completed within a presumptively reasonable time, unless a longer period of time is permitted under the circumstances pursuant to applicable law, including Section 1.6003 of title 47 of the CFR.
5. Requires, if a local agency does not approve broadband permit applications for substantially similar broadband project sites submitted for batch broadband permit processing pursuant to this bill and issue permits, or reject the applications and notify the applicants, within the presumptively reasonable time, all of the permits to be deemed approved.
6. Allows a local agency to place reasonable limits on the number of broadband project sites that are grouped into a single permit while undertaking batch broadband permit processing. A local agency may only remove a broadband project site from grouping under a single permit under mutual agreement with the application or to expedite the approval of other substantially similar broadband project sites.
7. Provides that the requirements of this bill shall not apply to eligible facility requests, as defined and governed by Section 1455 of Title 47 of the United States Code.
8. Provides that this bill does not preclude a local agency from requiring compliance with generally acceptable health and safety requirements. Enforcement of applicable health and safety requirements by a local agency shall be initiated by issuance of a written finding that the facility proposed in a broadband permit application would have a specific, adverse impact on the public health or safety.
9. Provides that nothing in this bill shall supersede, nullify, or otherwise alter the requirements to comply with safety standards, including, but not limited to, both of the following:
   1. Provisions of law governing the Regional Notification Center System, as specified.
   2. The Public Utilities Commission’s General Order No. 128, Rules for Construction of Underground Electric Supply and Communications Systems, or successor rules adopted by the commission.
10. Contains a number of findings and declarations regarding the purposes of this bill.
11. States that the Legislature finds and declares that the efficient approval of broadband permit applications is critical to the deployment of broadband services, is a matter of statewide concern, and is not a municipal affair as that term is used in Section 5 of Article XI of the California Constitution. Therefore, this bill applies to all cities, including charter cities.
12. Provides that no reimbursement is required by this bill pursuant to Section 6 of Article XIII B of the California Constitution because a local agency or school district has the authority to levy service charges, fees, or assessments sufficient to pay for the program or level of service mandated by this bill, as specified.

FISCAL EFFECT: This bill is keyed fiscal and contains a state-mandated local program.

COMMENTS:

1. Background. The California Constitution allows a city to “make and enforce within its limits, all local, police, sanitary, and other ordinances and regulations not in conflict with general laws, known as the police power of cities.” It is from this fundamental power that local governments derive their authority to regulate land through planning, zoning, and building ordinances, thereby protecting public health, safety and welfare.

The Planning and Zoning Law requires every county and city to adopt a general plan that sets out planned uses for all of the area covered by the plan. Cities’ and counties’ major land use decisions – including development permitting – must be consistent with their general plans. The Planning and Zoning Law also requires public notice to be given at least 10 days in advance of hearings where most permitting decisions will be made. It also allows residents to appeal permitting decisions and other actions to either a board of appeals or the legislative body of the city or county. Cities and counties may adopt ordinances governing the appeals process.

Providers of wireless telecommunications services must apply to cities and counties for permits to build structures or other wireless facilities that support wireless telecommunications equipment, like antennae and related devices.

Modern broadband service, including wired and wireless service, requires the installation of fiber optic cables to convey data signals across a network. Companies that wish to install the fiber optic infrastructure required to serve new areas or expand capacity in existing areas must apply to cities and counties for permits to install fiber in the public right of way. Traditionally, telecommunications wires have been installed aerially through attachments to utility poles or through the digging of open trenches. As an alternative to traditional trenching or boring to install fiber underground, some fiber installation companies have turned to microtrenching. Microtrenching is a process whereby specialized machinery cuts a narrow slice out of the roadway at a depth of approximately 1-2 feet. Conduit containing fiber optic cables is laid in the small trench, and material is backfilled over the trench to seal it. Microtrenching requires significantly less excavation and can be performed more quickly than open trenching, saving time and money for installers.

1. Federal Law. Two federal laws – the Telecommunications Act of 1996 and a portion of the Middle Class Tax Relief and Job Creation Act of 2012 known as the “Spectrum Act” – require local governments to act within a “reasonable period of time” on permits for siting wireless facilities. The FCC is responsible for administering these laws.

In 2009 and 2014, the FCC issued two decisions to clarify the definition of a period of time that is presumed to be reasonable for various categories of wireless telecommunications facilities. The FCC established a shot clock by ruling that local governments should generally approve or disapprove applications for projects within the following time frames:

• 1. 60 days for a project that is an "eligible facilities request," which is defined by the FCC as a collocation on an existing facility that does not substantially change its physical dimensions.
  2. 90 days for a project that is a collocation that substantially changes the dimensions of the facility, but does not substantially change its size.
  3. 150 days for projects that are new sites for wireless facilities.

The FCC also identified remedies in cases where local governments do not act within these periods. For collocations that do not substantially change the physical dimensions of the existing facility (eligible facilities request), the application is “deemed approved” – meaning, the permit is automatically granted if a local government has not acted on the application.

However, for all other types of applications, the FCC specifically declined to adopt a deemed-approved remedy because the circumstances of wireless facility applications can vary greatly. If a local government does not act within the reasonable time period for collocations that substantially change the physical dimensions of an existing facility, or for new sites, the FCC ruled that an applicant may bring an action in federal court within 30 days of the reasonable time period elapsing. The court then determines whether the delay was unreasonable under all circumstances of the case and, if necessary, identifies an appropriate remedy.

1. State Law Governing Access to POU Infrastructure. Recognizing the increasing need to deploy broadband infrastructure, AB 1027 (Buchanan), Chapter 580, Statutes of 2011, established a framework for POUs to make available appropriate space and capacity on and in their utility poles and support structures for use by a communications service provider. The measure established timelines by which a POU must respond to a request for use of a pole or support structure and provide a cost estimate for attachments, and for completion of make-ready work. It also allowed a POU to deny a request for use due to insufficient capacity or safety, reliability, or engineering concerns, and specified the fees POUs could impose for the use of their poles or support structures.
2. AB 57. Responding to concerns that wireless providers were facing significant challenges and delays while navigating local governments’ permitting processes, AB 57 (Quirk), Chapter 685, Statutes of 2015, required an application for a collocation or siting of a wireless telecommunications facility to be deemed approved if specified requirements are met. Under AB 57, an application is deemed approved if:
   1. The city or county fails to approve or disapprove the application within the time periods established by applicable FCC decisions (the 2009 and 2014 FCC decisions referenced above).
   2. The applicant has provided all required public notices regarding the application.

• 1. The applicant has provided notice to the city or county that the reasonable time period has lapsed and that the application is deemed approved.

AB 57 allowed the reasonable time to be tolled to accommodate timely requests for information required to complete the application or by mutual agreement between the applicant and the local government. The bill also allowed a city or county to seek judicial review of the operation of the applicant’s notice to the city or county that the reasonable time period has lapsed and the application is deemed approved.

1. FCC 2018 Update. In 2018, the FCC underwent a regulatory update and adopted new rules regarding small wireless shot clocks. The CFR specifies the types of wireless installations that are considered “small wireless facilities” or small cells. Specifically, small cells:
   1. Can occupy up to 31 cubic feet, including antennas and all other wireless equipment.
   2. Are mounted on structures up to 50 feet tall or 10% taller than other adjacent structures.
   3. Are not located on Tribal lands.
   4. Meet other technical requirements.

The 2018 FCC order broadened the application of the shot clocks to include all telecommunications permits, not just zoning permits, and it shortened the shot clocks. State and local governments now have 60 days to decide applications for installations on existing infrastructure, and 90 days for all other applications. The order did not add enforcement mechanisms. If a state or local government misses a permitting deadline, the applicant was still required to seek relief via federal court.

In particular, the FCC again declined to adopt a deemed approved remedy for non-compliance with the new shot clock timelines. Instead, it adopted a new remedy whereby inaction within the shot clock timeframes constitutes a “presumptive prohibition” on the provision of wireless services pursuant to federal law. The FCC considered this remedy sufficient, as an applicant would “have a straightforward case for obtaining expedited relief in court.”

The FCC noted that this approach “effectively balances the interest of wireless service providers to have siting applications granted in a timely and streamlined manner and the interest of localities to protect public safety and welfare and preserve their authority over the permitting process. The Commission’s specialized deployment categories, in conjunction with the acknowledgement that in rare instances, it may legitimately take longer to act, recognize that the siting process is complex and handled in many different ways under various states’ and localities’ long-established codes.

“Further, the Commission’s approach tempers localities’ concerns about the inflexibility of a deemed granted proposal because the new remedy the Commission adopts here accounts for the breadth of potentially unforeseen circumstances that individual localities may face and the possibility that additional review time may be needed in truly exceptional circumstances. The Commission further finds that its interpretive framework will not be unduly burdensome on localities because a number of states have already adopted even more stringent deemed granted remedies.”

1. Court Challenge. Multiple parties challenged the FCC’s 2018 order and the 9th Circuit Court of Appeals in City of Portland v. FCC issued its opinion on August 12, 2020. Regarding challenges to the FCC’s decision on deemed approved remedies, the Court noted, “For their part, Wireless Service Provider Petitioners contend that the FCC did not go far enough in modifying the shot clock requirements. Petitioners contend that the FCC should have adopted a deemed granted remedy for shot clock violations, and argue that the Small Cell Order’s factual findings compel the adoption of such a remedy.

“This argument relies on a mischaracterization of the FCC’s factual findings. It is true that the FCC found that delays under the old shot clock regime were so serious they would ‘virtually bar providers from deploying wireless facilities.’ But the FCC concluded that under its new shot clock rules, which shorten the time frames and expand the applicability of the rules, there will be no similar bar to wireless deployment. Because the FCC reasonably explained it has taken measures to reduce delays that would otherwise have occurred under its old regime, the factual findings here do not compel the adoption of a deemed granted remedy.”

Because the updated shot clock rules did not carry a deemed approved remedy in the FCC’s 2018 order, upheld by the court, AB 537 (Quirk) Chapter 467, Statutes of 2021, re-instated this remedy in California.

1. Presumptively Reasonable Time Periods. The CFR provides review periods for individual applications for personal wireless service facilities. The following are the presumptively reasonable periods of time for action on applications seeking authorization for deployments in the following categories:
   1. Review of an application to collocate a small wireless facility using an existing structure: 60 days.
   2. Review of an application to collocate a facility other than a small wireless facility using an existing structure: 90 days.
   3. Review of an application to deploy a small wireless facility using a new structure: 90 days.
   4. Review of an application to deploy a facility other than a small wireless facility using a new structure: 150 days. [47 CFR 1.6003(c)(1)]

The CFR also provides requirements for batching, as follows:

• 1. If a single application seeks authorization for multiple deployments, all of which fall within the “small wireless facility” categories, then the presumptively reasonable period of time for the application as a whole is equal to that for a single deployment within that category.
  2. If a single application seeks authorization for multiple deployments, the components of which are a mix of deployments that fall within the “small wireless facility” categories (both collocated on an existing structure and deploying using a new structure), then the presumptively reasonable period of time for the application as a whole is 90 days.

The CFR provides that siting authorities may not refuse to accept batched applications for small wireless facilities. [47 CFR 1.6003(c)(2)]

1. Local Permitting Playbook. The State of California’s Local Permitting Playbook, released in August of 2022, was created by the California Governor’s Office of Business and Economic Development, the California Department of Technology, the California Public Utilities Commission, and the California Emerging Technology Fund. It states, “The California Local Permitting Playbook offers strategies designed to enable communities to prepare for broadband investment – recognizing that an unprecedented amount of state and federal funding has been allocated to expanding broadband infrastructure in California, and that local government permitting and planning staffs have varying degrees of experience with and knowledge of broadband deployment. (citation omitted)

The playbook also notes, “These approaches are not all appropriate for all communities – nor would any given community be likely to adopt every practice described here. Rather, the playbook presents a set of options a local government can evaluate in light of its public policy priorities, its community’s unique circumstances, and its residents’ needs…The strategies and smart practices presented in this playbook are intended to enable localities to receive value in return for the efforts they make to enable a broadband deployer’s efforts. That value may be financial (such as a lease payment in return for access to a city’s fiber network) or it may be less tangible (such as a commitment by the partner to deliver broadband service to low-income residents in return for access to a city’s excess conduit). Either way, the locality will facilitate broadband deployment in partnership with the deployer; the relationship should not favor the deployer over the public interest.”

Among many “smart practices” outlined in the Playbook is “developing a batch permitting process.” The Playbook notes, “For localities anticipating large broadband-related projects that will require extensive but potentially repetitive permit applications, batch permitting might allow applicants to request a single permit that would cover a project typically subject to multiple permit applications. As with some of the other strategies presented here, a batch permitting process might reduce the permit application caseload, decrease the permit processing timeline, and improve a broadband deployer’s timeline.

“The City of Long Beach, for example, developed a bulk permitting process in 2020 for small cell wireless facilities that allows up to 10 sites to be grouped under a single permit. Applicants must negotiate specifications before submitting the application, and sites must all be either Tier A (commercial arterial) or Tier B (residential roads). This enhanced permitting process has improved the City’s timeline while still protecting local interests (e.g., distinguishing between siting locations proposed on commercial arteries and residential roads).”

1. Author’s Statement. According to the author, “AB 965 will accelerate broadband deployment and help close our state’s digital divide. Broadband permit batching, term permits, and master permits are an industry best practice used by local jurisdictions, state government and the private sector to streamline and expedite the deployment of broad-band infrastructure so local communities can more quickly get connected to high-speed internet and telecommunications services. When a broadband project in a community involves tens or hundreds of nearly identical permits for a variety of locations, the permits are submitted and processed at the same time as one large group concurrently through various city departments instead of individually. The state of California is currently pursuing this technique in its deployment of the Middle Mile Broadband Initiative.

“This bill will ensure Californians will quickly benefit from high-speed internet projects by allowing broadband installers to submit their nearly identical broadband project applications at the same time and local governments to process this batch of permits together within 60 days. Processing several substantially similar broadband permit applications at the same time will allow local governments to still receive permit fees, but staff can more easily process routine, high-volume broadband permits as a group instead of individually to help bridge the digital divide and more quickly connect communities to high-speed internet. This will allow the state to meet the federal broadband funding deadline of December 31, 2024 while creating greater broadband equity amongst communities so more individuals can have access to high-speed internet access for emergency response, remote work, telehealth, education and commerce.”

1. Bill Summary. This bill requires a local agency to undertake batch broadband permit processing if it receives two or more broadband permit applications for substantially similar broadband project sites submitted at the same time by the same applicant. A local agency must complete such processing within a presumptively reasonable time. If a local agency does not approve a batched permit application and issue permits or reject the applications and notify the applicants within the presumptively reasonable time, all of the permits will be deemed approved.

This bill provides that a broadband permit application may fall into four subtypes, and specifies the presumptively reasonable time for each, as follows:

• 1. Aerial construction: no more than 60 days.
  2. Trenched construction: no more than 90 days.
  3. Wireless construction: the periods and procedures established by applicable FCC rules.
  4. Other subtypes of permit applications: no more than 90 days.

The bill provides that these time periods shall be administered in accordance with Section 1.6003 of Title 47 of the CFR.

A local agency may place reasonable limits on the number of broadband project sites that are grouped into a single permit while undertaking batch broadband permit processing. A local agency may only remove a broadband project site from grouping under a single permit under mutual agreement with the application or to expedite the approval of other substantially similar broadband project sites.

The bill defines a “broadband project” to mean the proposed facility, including the support structure and any supporting equipment necessary for operation of the proposed facility. A broadband project may be comprised of one or more components, including, but not limited to, a wireless facility, a fiber optic connection, and other supporting equipment, each of which may require separate permits or authorizations by a local agency. The bill defines “substantially similar broadband project sites” to mean broadband project sites that are nearly identical in terms of equipment and general design, but not location.

This bill provides that it does not preclude a local agency from requiring compliance with generally acceptable health and safety requirements. However, enforcement of these requirements must be initiated by issuance of a written finding that the facility proposed in a broadband permit application would have a specific, adverse impact on the public health or safety. This bill applies to a city, county, city and county, charter city, special district, or POU.

This bill is sponsored by the author.

1. Policy Considerations. Under existing federal law, batching is required for only two types of broadband facilities: small cells that are co-located on an existing structure, and small cells that will be deployed using a new structure. Batching is not required for any other type of facility. The shot-clocks for these applications are 60 days for collocated small cells, 90 days for small cells using a new structure, and 90 days if a combination of the two is submitted in the same batch.

This bill expands existing law in two ways. It requires batched processing for additional types of broadband infrastructure (anything other than small cells), which are not presently subject to batching requirements. It also applies shot-clocks to these batched applications.

As noted in the Communications and Conveyance Committee’s analysis of this bill, “…broadband infrastructure includes various types of infrastructure, including fiber and wireless facilities. However, the presumptively reasonable timeframe established by this bill does not contemplate that different types of infrastructure would have different public impact. For example, fiber-optic cable can be installed using various methods including trenching, micro-trenching, or even installed aerially from utility poles. Trenching is potentially the most disruptive to the public right way of way, considering the potential traffic impacts, while aerially is potentially the least intrusive. Depending on the construction method, a local agency may need to take more or less time to consider a batch of applications.”

The current version of this bill categorizes broadband applications not by the type of infrastructure (fiber, small cell, etc.), but by the type of construction method: aerial, trenched, wireless and “other” subtypes. It applies a 60-day shot-clock to aerial construction and a 90-day shot-clock to trenched and “other” subtypes (and refers to federal law for shot-clocks for wireless construction). It does not define any of these terms. Federal law uses definitions based on the type of facility, and defines these types of facilities very specifically.

The committee may wish to consider the following:

• 1. Double Duty. Is it reasonable to apply both new requirements for batching and shot-clocks for batching simultaneously? Would it be more manageable for local agencies to start with requirements for batching without the shot-clocks that this bill requires?
  2. Consistency. Should the definitions for deployments in the bill be revised to conform more closely with definitions in existing law?

1. Committee Amendments. In order to address concerns raised above, the Committee may wish to amend this bill as follows:

65964.5. (a)(5) “Presumptively reasonable time” means the timeframe that a local agency must review and resolve an application pursuant to applicable law, or to the extent the time period is not preempted or otherwise governed by applicable law, the applicable time period listed below, following submission of a complete broadband permit application. The following presumptively reasonable time periods period may be modified by mutual, written agreement between the local agency and the applicant. The following time periods shall be administered in accordance with Section 1.6003 of Title 47 of the Code of Federal Regulations.

(A) The presumptively reasonable timeframe for aerial construction is no more than 60 days.

(B) The presumptively reasonable timeframe for trenched construction is no more than 90 days.

(C) The presumptively reasonable timeframe for wireless construction are the periods and procedures established by applicable FCC rules.

(D) The presumptively reasonable timeframe for other subtypes of permit applications is no more than 90 days.

65964.5. (b) Subject to subdivision (e), a local agency shall undertake batch broadband permit processing upon receiving two or more broadband permit applications for substantially similar broadband project sites submitted at the same time by the same applicant. Batch broadband permit processing shall be completed within a presumptively reasonable time for wireless broadband projects subject to applicable law unless a longer period of time is permitted under the circumstances pursuant to applicable law, including Section 1.6003 of Title 47 of the Code of Federal Regulations.

65964.5. (c) If a local agency does not approve broadband permit applications for substantially similar wireless broadband project sites submitted for batch broadband permit processing pursuant to this section and issue permits, or reject the applications and notify the applicants, within the presumptively reasonable time, all of the permits shall be deemed approved.

1. Author’s Amendments. The author’s office has also offered the following amendments, which the Committee may wish to consider adopting with the Committee amendments outlined above:

65964.3. (a)(4) “Local agency” has the same meaning as the term is defined in Section. This section does not apply to a publicly owned electric utility that is subject to Part 2 (commencing with Section 9510) of Division 4.8 of the Public Utilities Code provided that the utility processes broadband applications, including applications associated with power, consistent with the process established in Section 9511 of the Public Utilities Code.

65964.3. (h) A local agency may place reasonable limits on the number of broadband project sites that are grouped into a single permit while undertaking batch broadband permit processing. A reasonable limit shall be no less than 50 project sites. A local agency may only remove a broadband project site from grouping under a single permit under mutual agreement with the application applicant or to expedite the approval of other substantially similar broadband project sites.

A local agency may impose a fee on batch broadband permitting processing consistent with Ca. Gov. Code Section 50030. The reasonable costs of providing the service for which the fee is charged, as that phrase is used in Section 50030, shall be limited to the reasonable costs of the local agency to process and issue the permit and inspect the installation that is the subject of the permit, including any costs incurred if the applicant elects to expedite processing and review. Where limited resources affect a Local Agency’s ability to accept and review applications for a Broadband Project, including batched applications, the Local Agency shall work with the Applicant in good faith to resolve such resource limitations, including, but not limited to, acceptance of Applicant offers to supplement such resources.

1. Arguments in Support. Crown Castle, in support, writes, “There are currently thousands of broadband permits pending with local governments in California that will improve internet connectivity for millions of residents. AB 965 creates a framework where broadband installers can submit a batch of nearly identical broadband permits to the local jurisdiction at the same time in order for those permits to be reviewed and acted on in a reasonable amount of time. The bill is about certainty and consistency. Both public and private broadband projects are trying to be built as fast as possible since unobligated federal American Rescue Plan Act of 2021 funds expire on December 31, 2024.

“AB 965 is critically important because it will help communities get connected to high-speed internet in months instead of years. Californians overwhelming support this kind of government efficiency. In a recent report conducted by the Bay Area Council Economic Institute, they found that 75% of California voters support statewide streamlining of broadband projects, while 70% support requiring all local governments to follow a uniform state mandated approval process for broadband projects.

“AB 965 also strikes the right balance between efficiency for statewide broadband deployment and local control. The bill just requires the local jurisdiction to make a decision on a batch of substantially similar broadband permits within a reasonable amount of time. The local jurisdiction still maintains full control – they can either approve or reject the permit within the shotclock timeframe. They can also extend the shotclock if more time is needed or make a health and safety finding to provide more flexibility.

“The processing of substantially similar broadband permits by local jurisdictions at the same time will be more efficient on the workload of local government staff. Permit fees will still be received by local governments, but staff can more easily process routine, high-volume broadband permits as a group instead of individually to help bridge the digital divide.

Given the public’s increased reliance on high-speed internet access and the importance of broadband for public safety, public health, economic growth, education, job creation, housing affordability, and emissions reductions, it is in California’s best interest for public and private broadband project permits to be processed as quickly and efficiently as possible while maintaining local control.”

1. Arguments in Opposition. The California State Association of Counties, the Rural County Representatives of California, and the League of California Cities, write, “AB 965 would massively expand application of the 60-day shot clock (and deemed approved remedy) to all aerial constructed broadband permit applications and provides for a 90-day shot clock for trenched or wireless constructed projects, without regard to size or type (new build or collocated on existing infrastructure). These different types of facilities represent varying construction factors and differing considerations by the permitting jurisdiction, depending on location and size of project. Additionally, prioritizing the processing of broadband permit applications above all other applications, while laudable, may not always be appropriate…

“The FCC batching requirements, while not limited in number, are limited to ‘small wireless facilities.’ AB 965 would apply more broadly to ‘broadband permit applications,’ which is a vastly expanded universe of projects…Local governments are committed to providing robust internet access to our communities and have worked collaboratively in the past with industry partners to improve our processes while maintaining important local safeguards, including negotiating in 2021 several additional protections into Government Code 65964.1 that contained specific language to address work in the public right-of-way, which would be abrogate(d) by the provisions of AB 965.”

The California Municipal Utilities Association writes, “Current state and federal law already establish robust requirements for the timely attachment of communications equipment to POU power poles. AB 1027 (Buchannan), enacted in 2011, requires POUs to make appropriate space and capacity on their power poles and support structures available for use by communications providers. AB 1027 requires a POU to respond to an attachment request within 45 days, but allows for 60 days if the request is to attach to more than 300 poles. AB 1027 contains further requirements for completing ‘make-ready’ work in a timely manner. It also caps fees that POUs can charge for access to their poles.

“The 2018 Federal Communications Commission (FCC) 2018 Small Cell Order established a presumptively reasonable 60-day window for pole attachment requests for wireless facilities. Importantly, unlike AB 965, neither AB 1027 nor the FCC’s Small Cell Order includes a ‘deemed granted’ remedy, which would force utilities to approve applications if they are unable to review them within the allotted timeframes. Deemed granted remedies pose safety and reliability risks to utility infrastructure.

“AB 965 also contains language that could create confusion and detract from implementation of the aforementioned comprehensive state and federal laws. The bill includes POUs in the definition of local agencies required to comply with the batch process and approve ‘broadband permit applications.’ This language is in direct conflict with AB 1027, which uses the terminology ‘request to use.’ This is an important distinction because POUs do not issue permits. They approve a communication provider’s request to attach communications equipment to their facilities after assessing feasibility and safety of the proposed attachments. Additionally, the bill’s definition of batch permit processing is vague, open to interpretation, and potentially in conflict with AB 1027, which already draws a distinction between pole attachment requests of 300 or more…AB 965 would add new, conflicting obligations to POUs and their facilities, potentially require POUs to prioritize communications service providers’ work over others’ and impose harsh deemed-granted remedies if a POU is unable to respond to voluminous requests submitted in batch formats.”

1. Double-Referral. This bill is double-referred to the Communications and Conveyance Committee, where it passed on a 13-0 vote on April 19, 2023.

REGISTERED SUPPORT / OPPOSITION:

Support

Bay Area Council

Calbroadband

Calchamber

California Apartment Association

California Broadband & Video Association

California Building Industry Association

California Business Properties Association

California Chamber of Commerce

California Wireless Association

Consolidated Communications

Crown Castle

Crown Castle and Its Affiliates

CTIA

Frontier Communications Corporation

Pcia - the Wireless Infrastructure Association

San Francisco Chamber of Commerce

San Mateo County Economic Development Association

Silicon Valley Leadership Group

United States Telecom Association Dba Ustelecom - the Broadband Association

Wireless Infrastructure Association

Opposition

California Municipal Utilities Association

California State Association of Counties

League of California Cities

Rural County Representatives of California

Analysis Prepared by: Angela Mapp / L. GOV. / (916) 319-3958

Date of Hearing: April 19, 2023

ASSEMBLY COMMITTEE ON COMMUNICATIONS AND CONVEYANCE

Tasha Boerner Horvath, Chair

ABPCA Bill Id:AB 965 (

Author:Juan Carrillo) – As Amended Ver:March 16, 2023

SUBJECT: Local government: broadband permit applications

SUMMARY: This bill would require a local agency to undertake batch permit processing for broadband permits upon receiving two or more substantially similar broadband permit applications; and requires that the batch permit processing must be completed within a presumptively reasonable time, as defined. Specifically, this bill:

1. Establishes that the act shall be known as the Broadband Permit Efficiency and Local Government Staff Solution Best Practices Act of 2023.
2. Makes various findings and declarations to support the need for the bill.
3. Defines a “broadband permit application” to mean an application submitted for review by a local agency to permit the construction of broadband infrastructure of any type.
4. Defines “local agency” to have the same meaning as the term is defined in Section 65964.5 of the Government Code.
5. Defines “presumptively reasonable time” to mean no more than 60 days following submission of a complete broadband permit application.
6. Defines “substantially similar broadband permit applications” to mean broadband permit applications that are nearly identical in terms of equipment and general design, but not location or construction method.
7. Provides that broadband permit applications are deemed approved if the local agency does not approve or deny the applications within the presumptively reasonable time.
8. Provides that the requirements of this Act shall not apply to eligible facility requests, as defined and governed by Section 1455 of Title 47 of the United States Code.

EXISTING LAW:

1. Requires a collocation or siting application for a wireless telecommunications facility to be deemed approved if all of the following occur:
   1. The city or county fails to approve or disapprove the application within a reasonable period of time in accordance with the time periods and procedures established by applicable FCC decisions. The reasonable period of time may be tolled to accommodate timely requests for information required to complete the application or may be extended by mutual agreement between the applicant and the local government, consistent with applicable FCC decisions;
   2. The applicant has provided all public notices regarding the application that the applicant is required to provide under applicable laws consistent with the public notice requirements for the application; and,
   3. The applicant has provided notice to the city or county that the reasonable time period has lapsed and that the application is deemed approved pursuant to this section. Allows, within 30 days of this notice, the city or county to seek judicial review of the operation of these provisions on the application.
2. Exempts eligible facilities requests from these requirements.
3. Provides the following definitions:
   1. “Applicable FCC rules” means those regulations contained in Subpart U (commencing with Section 1.6001) of Part 1 of Subchapter A of Chapter I of Title 47 of the Code of Federal Regulations.);
   2. “Eligible facilities request” has the same meaning as in Section 1455 of Title 47 of the United States Code; and,
   3. “Wireless telecommunications facility” to mean equipment and network components such as towers, utility poles, transmitters, base stations, and emergency power systems that are integral to providing wireless telecommunications services.
4. Provides that nothing, except these provisions, limits or affects the authority of a city or county over decisions regarding the placement, construction, and modification of a wireless telecommunications facility.
5. Provides that, due to the unique duties and infrastructure requirements for the swift and effective deployment of firefighters, these provisions do not apply to a collocation or siting application for a wireless telecommunications facility where the project is proposed for placement on fire department facilities.

FISCAL EFFECT:

COMMENTS:

1. Expanding and upgrading broadband infrastructure has public benefits. The positive social and economic benefits of access to reliable, affordable high-speed internet are well documented. Indeed, deploying affordable and reliable broadband networks throughout California will accelerate continuous improvements in economic and workforce development, infrastructure, public safety, education, economy, and an engaged citizenry^[1]. For example, studies have forecasted that speeding 5G infrastructure deployment by even one year would unleash an additional $100 billion to the US economy.^[2] Consumer demand for reliable, high-speed broadband connectivity continues to grow rapidly every year, and the COVID-19 pandemic has only highlighted the extent to which access to broadband has become essential for participating in virtually every aspect of modern society. Unfortunately, California’s persistent digital divide, or the gap between those with reliable broadband access and those without it, prevents many Californians from realizing the positive benefits of reliable internet access or from equitable access to those benefits. Protracted and expensive permitting processes at the local level are one of my various factors that may contribute to the digital divide by increasing the time and costs associated with new or upgraded broadband installations.

To the extent that this bill will expedite widespread deployment of broadband projects, it will arguably benefit those communities where providers choose to deploy their services and facilities. However, beyond the expedited review times this bill requires, the bill does not explicitly require or encourage communications providers to deploy infrastructure in unserved areas of the state or consider digital equity when seeking approval from local governments.

1. Existing federal regulations cover permit review times for small wireless facilities. In September 2018 the FCC adopted an order^[3] (“FCC Small Cell Order”) in a proceeding focused on streamlining the rollout of infrastructure for broadband services, including small cell wireless facilities (“small cells”) for 4G and 5G wireless service. According to FCC Small Cell Order, 5G has the power to “unleash a new wave of entrepreneurship, innovation, and economic opportunity for communities across the country”. Given the potential of 5G, the order was designed to remove various state and local barriers that would prevent 5G providers from accessing existing facilities for installation of small cells. The order summarily has two parts: the first was a new set of regulations that govern “shot-clocks”, or permit review deadlines; the second part of the order was regarding the fees governments may charge to provide fair, reasonable, and non-discriminatory access to local government infrastructure, such as street light poles. The relevant part of the order for purposes of this bill are the shot-clocks, which would apply to a subset of all the broadband applications that are included under the provisions of this bill.

The FCC Small Cell Order provided several shot-clocks by which local governments should respond to applications to install small cells on public property. In summary, the FCC shot-clocks gave local governments 60-days to act on applications to collocate small cells on existing sites or 90-days for applications to construct new small cell facilities. The order also provided for the resetting or pausing of the shot clock when a local government determines that an application is incomplete. Following adoption of the FCC’s Small Cell Order, dozens of cities and the National League of Cities signed onto a lawsuit challenging the order. In 2020, a three-judge panel of the United States Court of Appeals for the Ninth Circuit ruled against the petitioners in the case City of Portland v. FCC^[4], and upheld the FCC’s Small Cell Order. Following that decision, the petitioners sought to have the Ninth Circuit’s decision reviewed by the Supreme Court, which was also denied as of June 28, 2021.

1. This bill would require local agencies to undertake batch permit processing. The State of California's Local Permitting Playbook describes "batch permitting" as grouping several sites under a single permit. Under batch permitting, an applicant would apply for a single permit for several projects that the applicant intends to undertake. The Playbook references the City of Long Beach, which developed a "bulk permitting process" for small cell wireless facilities that allows up to 10 sites to be grouped under a single permit. Sites are grouped into two categories:  commercial arterial and residential roads. The Playbook notes that "local interests" are "protected" by distinguishing siting locations proposed on commercial arteries and residential roads.  

The definition of "batch broadband permit processing” used in this bill does not align with the Playbook definition, as it could be read as applying to applications from different applicants. Potentially, many applicants could submit applications for many different sites and a local agency would be required to process them at the same time. Although that does not appear to be the author’s intent, it may be reasonable to consider aligning the definition in the bill with the Playbook definition to avoid confusion about the intent. Additionally, the bill places no limits on the number of different sites that could be considered under a single permit. For example, some cities may wish to consider batches of 10 sites. While 60 days might be reasonable for less sites, it is unreasonable for an unlimited number of sites, especially for a less resourced city.  

1. This bill would apply shot-clocks to any broadband permit application. While the FCC Small Cell Order applies narrowly to small cell wireless facilities, this bill takes the unprecedented step of broadly applying a 60-day shot-clock for any broadband permit application. The definition of broadband permit applications used in this bill encompasses the construction of broadband infrastructure of any type. The definition acknowledges that broadband infrastructure includes various types of infrastructure, including fiber and wireless facilities. However, the presumptively reasonable timeframe established by this bill does not contemplate that different types of infrastructure would have different public impact. For example, fiber-optic cable can be installed using various methods including trenching, micro-trenching, or even installed aerially from utility poles. Trenching is potentially the most disruptive to the public right way of way, considering the potential traffic impacts, while aerially is potentially the least intrusive. Depending on the construction method, a local agency may need to take more or less time to consider a batch of applications. Nonetheless, this bill would apply the shot-clocks broadly regardless of the type of infrastructure.
2. Double referral. This bill will be referred to the Assembly Committee on Local Government should it pass this committee.
3. Committee amendments. The author may wish to consider the following amendments:
   1. In the findings and declarations revise (c) to reflect that time is among the many factors that directly impact permit review time.
   2. In the findings and declarations, strike (d), (f), (g), (h), and (l).
   3. Redefine “batch broadband permit processing” to align with the Local Permitting Playbook.
   4. Revise the definition of “broadband permit application” to distinguish among different types of projects.
   5. Add a definition of “broadband project” that includes the proposed facility, including the supporting equipment and structures.
   6. Revise the definition of “substantially similar” to strike reference to construction method.
   7. Specify that broadband permit processing is applicable to permit applications by the same application.
   8. Revise the definition of “presumptively reasonable time” to account for different application types and the FCC Small Cell Order.
   9. Add language specifying that this Act does not preclude local agencies from requiring compliance with generally applicable health and safety requirements.
   10. Add language specifying that this Act does not supersede, nullify or otherwise alter existing safety standards.
   11. Authorize local agencies to place reasonable limits on the number of project sites that are grouped into a single permit.
   12. Authorize a local agency to remove a project site from grouping under a single permit under mutual agreement, or to expedite the approval of other sites.

REGISTERED SUPPORT / OPPOSITION:

Support

Bay Area Council
Calchamber
California Broadband & Video Association
California Building Industry Association (CBIA)
California Business Properties Association
California Chamber of Commerce
Crown Castle and Its Affiliates
CTIA
San Francisco Chamber of Commerce
Silicon Valley Leadership Group
United States Telecom Association Dba Ustelecom - the Broadband Association
Wireless Infrastructure Association

Opposition

California Municipal Utilities Association

Analysis Prepared by: Emilio Perez / C. & C. / (916) 319-2637

1. Governor Newsom Executive Order N-73-20. https://www.gov.ca.gov/wp-content/uploads/2020/08/8.14.20-EO-N-73-20.pdf ↑

2. 1 See Accenture Strategy, Accelerating Future Economic Value from the Wireless Industry at 2 (2018) (Accelerating Future Economic Value Report), https://www.ctia.org/news/accelerating-future-economic-value-from-the-wirelessindustry ↑

3. 2018 FCC Small Cell Order. https://docs.fcc.gov/public/attachments/FCC-18-133A1.pdf ↑

4. City of Portland v. FCC. See: https://cdn.ca9.uscourts.gov/datastore/opinions/2020/08/12/18-72689.pdf ↑