As wildfires and power shutoffs continue to impact large areas
of California, Gov. Gavin Newsom signed a law that requires
expedited permitting of applications to install emergency standby
generators for macro cell towers. With similar concerns in mind,
the California Public Utilities Commission is also taking action to
establish resiliency requirements for wireless networks.
Assembly Bill 2421
Wireless facilities provide important phone and Internet access for
first responders and the general public during both day-to-day life
and emergencies. Wildfires and power shutoffs impact wireless
facilities' ability to stay operational. Citing the importance
of wireless services during emergencies, the Legislature adopted AB 2421, which Newsom signed into law on
Sept. 29. The law goes into effect on Jan. 1, 2021 and will remain
in effect until Jan. 1, 2024.
Qualifying Sites: AB 2421 focuses on backup power for
macro towers, which provide far-reaching coverage. The law makes a
permitted use the installation of specified configurations of
standby emergency generators at previously permitted macro cell
tower sites. The law does not apply to
"rooftop, small cell, or outdoor and indoor distributed
antenna system sites." Small cell facilities are commonly
installed on streetlights and utility poles in the public right of
way and are often referred to as 5G installations.
Qualifying Generator Configurations: The law limits the
types of generator configurations that qualify for expedited
treatment. The generator must be rated below 50 horsepower,
compliant with applicable air quality regulations, have a
double-wall storage tank, not to exceed 300 gallons, and be mounted
on a concrete pad. The emergency standby generator must comply with
all applicable state and local laws and regulations, including
building and fire safety codes. The physical dimensions of the
emergency standby generator and storage tank cumulatively may not
exceed 250 cubic feet in volume. The placement of the generator
shall not be more than 100 feet from the physical structure of the
macro cell tower or base station.
Time for Action: A city or county must review the
application within a 60-day deadline. This 60-day period is
suspended if, within 10 days of submission, the local agency
notifies the applicant in writing that the application is
incomplete and describes what application content or information is
missing. The first incompleteness notice must mention all
missing items, as subsequent incompleteness notices cannot request
the submission of any information that was not described in the
initial notice. Any resubmittal of an application starts a new
60-day period. Finally, if the local agency requires more than one
permit application for the installation of an emergency generator,
all applications submitted concurrently shall be acted upon within
the same 60-day period.
Deemed Approved Remedy: An application is deemed
approved if the local agency has not approved or denied the
application within 60 days of receiving it or upon the expiration
of any tolling period. How this will work in practice is somewhat
unclear. The law does not explain how a tolling period can be
created. Under FCC shot clock rules, the parties can toll the shot
clock through mutual agreement, which is often referred to as a
tolling agreement. Also, if a local agency's initial reviewing
authority denies an application, and the decision is appealed, it
is unclear whether the appeal must also be completed within the
60-day deadline. Under FCC shot clock rules, the appeals are
included.
How This Fits With Existing FCC Wireless Shot Clocks:
Applications to add generators to existing macro sites would
already be subject to FCC shot clocks that have state or federal
deemed granted remedies. Localities must continue to track and
comply with any applicable FCC shot clocks as well. Notably, cities
and counties have 30 days to issue incompleteness notices under FCC
shot clock rules for these installation types and the notice only
stops the shot clock; it does not reset the clock. Therefore, a
situation could arise in which a local agency still has time to act
under AB 2421 but has run out of time under the applicable FCC shot
clock.
Local Agency Response
Local governments should prepare for this new law by updating their
permitting processes and application forms for emergency standby
generators associated with macro cell towers. The local agency
should ensure the updated application form will:
- capture the necessary information to determine if an installation qualifies for processing under AB 2421,
- obtain the information needed to make an informed decision on an application to install an emergency standby generator and
- facilitate the issuance of an incompleteness notice, if needed.
CPUC Is Also Focused on Wireless Network
Resiliency
With similar concerns about reliable communications in emergency
situations the CPUC adopted a decision requiring California's
facilities-based wireless providers to develop resiliency
strategies to prepare for disasters and power outages. The July 16
decision gives wireless providers 12 months to implement a 72-hour
backup power requirement for the wireless providers' facilities
to maintain minimum service coverage to Tier 2 and Tier 3 High Fire
Threat Districts during disasters or commercial grid outages. The
wireless providers must file resiliency plans with the CPUC that
include a description of their ability to maintain minimum service
during disasters and power grid outages. The CPUC acknowledges that
there may be grounds for specific wireless facilities to be
excluded from the 72-hour backup requirement, such as infeasibility
or due to specific existing federal, state, tribal or local laws.
However, a local government's ability to exclude backup power
generators at macro cell sites is now curtailed by AB 2421.
Finally, while they are permitted to use diesel generators as a
primary backup power source, the wireless providers must
"explore ways to transition to renewable generation for backup
power."
On Aug. 19, the wireless industry requested a rehearing challenging the legality
of the state mandate and arguing federal preemption. On Sept. 11,
the CPUC's Public Advocates Office, along with joint consumer
parties, filed a response supporting the CPUC's
July 16 decision and urging the CPUC to deny the industry's
petition for rehearing. For now, local governments should follow
developments in this proceeding, as this may result in further
industry requests to install backup power facilities.
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