In With the New – Part Five
BBK's New Law Guidance for a Happy New Year
In Part Five of our “In With the New” series, BBK details new and notable telecommunications laws. Within, you will find takeaways and analysis of the following: AB 537, SB 378, SB 4 and SB 28.
This legislative session added a mix of new telecommunications laws: two oriented to benefit the industry’s desire to fast-track their deployments, and two others to give local governments a new funding source for broadband and to bolster customer service requirements applicable to cable providers. The one telecommunications bill vetoed by the governor, SB 556, is also worthy of special mention.
When Gov. Newsom signed AB 537 into law, he expanded the reach of the “deemed granted” remedy in Government Code 65964.1 to now include applications for “small cells”—those antennas and equipment often placed on utility poles and street lights. Government Code 65964.1, which had been available since 2016 to applicants for certain wireless facility permits, allows applicants to send a notice if they believe (rightly or wrongly) that the local government missed the applicable FCC shot clock for the wireless application. While the final text of AB 537 did not include troubling language that appeared in earlier drafts authorizing the applicant to “begin construction” and did add some protections for compliance with safety standards and traffic control for construction in public rights-of-way, the law still puts the burden on local governments to respond to deemed granted notices within 30 days of receipt.
With AB 537 in effect, there is a deemed granted remedy available in California for all five FCC “shot clocks” or timelines for acting on wireless applications—four under Government Code Section 65964.1 as amended by AB 537 and one under FCC regulations applicable to eligible modifications to existing wireless facilities (47 CFR Section 1.6100). The only wireless applications not subject to a deemed granted remedy under Government Code 65964.1 are those proposed for placement on fire department facilities.
With the passage of SB 378, cities (including charter cities), counties, special districts and publicly-owned utilities with jurisdiction to approve excavations must now allow microtrenching, a new construction technique for the installation of underground fiber. SB 378 defines a “microtrench” as “a narrow open excavation trench that is less than or equal to 4 inches in width and not less than 12 inches in depth and not more than 26 inches in depth and that is created for the purpose of installing a subsurface pipe or conduit.”
Local agencies may need to adopt or amend existing policies, ordinances, codes or construction rules to allow for microtrenching and to establish permit review and installation inspection fees, including costs to expedite processing and review if the applicant so elects. A local agency may refuse to allow microtrenching only by making a written finding that microtrenching for a fiber installation would have a specific, adverse impact on the public health or safety. Safety standards such as CPUC General Order 128 applicable to underground electrical supply and communication systems and the state DigAlert noticing requirements continue to apply.
As a result of SB 4, the California Advanced Services Fund (CASF), a fund administered by the CPUC to encourage deployment of high-quality advanced communications services to all Californians, has been extended through 2032 with some major modifications. Significant changes include:
- Eliminating prior limitations on the eligibility of local governments for CASF grants (such as the pre-condition that no private service provider sought funding for the same unserved area)
- Allowing funding for projects that deploy broadband to unserved nonresidential facilities used for local and state emergency response activities, including fairgrounds
- Requiring CASF-funded infrastructure to be capable of speeds of at least 100 Mbps downstream and 20 Mbps upstream
Additionally, the definition of “unserved area” has been updated to 25 Mbps downstream and 3 Mbps upstream, with the CPUC required to prioritize CASF projects specifically to the subset of unserved areas where no internet is available or connectivity is at or below 10 Mbps downstream and 1 Mbps upstream.
Local governments interested in improving broadband in their communities should take a close look at this program.
This bill amends the Digital Infrastructure and Video Communications Act (DIVCA), a state law adopted in 2006 to take away local cable franchising authority in favor of a state video franchising regime mainly managed by the CPUC. Perhaps recognizing some flaws in the current approach, this pro-consumer legislation requires the CPUC to collect more granular data on actual locations served by state franchise holders and to adopt customer service requirements for state franchise holders, and adjudicate any customer complaints.
The governor’s signing statement is noteworthy, as it encourages the legislature to review and update DIVCA in the next session, suggesting the existing law is outdated and does not reflect market realities. The governor also requests the CPUC to collect better data on whether providers discriminate based on income and to provide recommendations on how to address these concerns.
Local governments should consider participating in the CPUC rulemaking on customer service. More broadly, governments should consider identifying areas where changes to DIVCA might be warranted, (the treatment of streaming video service providers for example), and communicating their thoughts to their state representatives.
SB 556 Vetoed
Gov. Newsom vetoed SB 556—a small cell bill that, if it had been signed into law, would have forced local governments and municipal utilities to make their street light poles and traffic signal poles available for small cell deployments under cost-based rates and strict timelines. Only local publicly-owned utilities are required to make their utility poles (but not other types of poles) available for use by communications providers under state law.
The veto was in part due to Gov. Newsom’s stance against codifying, conflicting with or complicating the similar but somewhat less onerous requirements to make poles available under the FCC’s 2018 small cell order. This is the second time that a state small cell bill was vetoed in California, the other being SB 649 vetoed by Gov. Brown in 2017.
Disclaimer: BBK Legal Alerts are not intended as legal advice. Additional facts, facts specific to your situation or future developments may affect subjects contained herein. Seek the advice of an attorney before acting or relying upon any information herein.