HomeMy WebLinkAboutRESO 9193Resolution No. 9193
Resolution of the Council of the City of Palo Alto
Approving the Master License Agreement and the Exhibits
to the Master License Agreement For Use of City-controlled
Space on Utility Poles and Streetlight Poles and in Conduits
by Privately-owned Wireless Communications Facilities
WHEREAS, Section 224 of the Communications Act of 1934, as amended (the
"Pole Attachment Act"), directs the Federal Communications Commission (the "FCC") to ensure
the rates, terms and conditions applicable· to utility pole attachments and access to utility
conduits by cable television systems and telecommunications service providers are just and
reasonable, but permits utilities to deny access to their utility poles and conduits, where there is
insufficient capacity and for reasons of safety, reliability or generally applicable engineering
purposes;
WHEREAS, the Pole Attachment Act exempts municipal, state and cooperative
utilities from its requirements, and twenty states, including California, have certified to the FCC
that they directly regulate pole attachments of the investor owned utilities but not the publicly
owned utilities;
WHEREAS, municipal utilities in California are not currently subject to the Pole
Attachment Act and FCC rules or the California Public Utilities Commission's pole attachment
rules;
WHEREAS, in 1996, Congress enacted the Telecommunications Act of 1996 (the
''Telecommunications Act"), to promote competition and reduce regulation in order to secure
lower prices and higher quality services for American telecommunications consumers and
encourage the rapid deployment of new telecommunications technologies;
WHEREAS, the Telecommunications Act provides, subject to certain exceptions,
state and local governments laws or requirements may not prohibit or have the effect of
prohibiting the ability of any entity to provide telecommunications services;
WHEREAS, the Telecommunications Act further provides certain statutory
protections to applicants seeking local land use or zoning approval to construct or modify
wireless telecommunications facilities, but the Act also preserves local agency decision-making
authority with regard to the placement, construction and modification of wireless
telecommunications facilities, subject to specified limitations;
WHEREAS, in 1997, the Council adopted Telecommunications Policy
Statements, to facilitate the competitive delivery of advanced telecommunications services in
Palo Alto in an environmentally sound manner;
1
110803 dm 0073555
WHEREAS, . in 2009, Congress adopted the American Recovery and
Reinvestment Act, which includes a requirement that the FCC develop a national broadband plan
that would ensure all Americans enjoy access to broadband services;
WHEREAS, in 2010, the FCC released its National Broadband Plan, which
identifies access to public rights-of-way and utility poles as having a significant impact on the
deployment on broadband;
WHEREAS, in 2011, the FCC, as part of its Broadband Acceleration Initiative,
issued a Notice of Inquiry, to determine how it can work with state and local agencies to improve
policies governing access to public rights-of-way and for wireless facilities siting, and also
issued a Report and Order and Order on Reconsideration, to revise its pole attachment rules,
applicable to investor owned utilities, improve the efficiency and reduce potentially excessive
costs of deploying telecommunications and broadband networks, and adopt rules that establish a
specific timeline for access to poles and conduits, a revised formula for the telecommunications
access rate, and a process to ensure just and reasonable rates, terms and conditions for pole
attachments;
WHEREAS, in 2011, Assembly Bill 1027 ("AB 1027"), sponsored by the
California Cable and Telecommunications Association, has been introduced to amend the
California Public Utilities Code, to require local publicly owned electric utilities, including Palo
Alto, to make surplus space and excess capacity on their utility poles available to cable television
corporations, video service providers, and telephone corporations, permit those publicly owned
utilities to impose fees to cover the actual cost of access to and use of utility poles, permit those
fees to be challenged by pole attachers within a specified timeframe, and to otherwise preempt
local laws, rules and regulations that maybe in conflict with the provisions of AB 1027;
WHEREAS, personal wireless service providers and operators of distributed
antenna system networks have expressed strong interest in accessing and using City of Palo Alto-
controlled space on utility poles and streetlight poles and in conduits in order to address capacity
and coverage issues that are presented by the rapid demand for 4G broadband service in Palo
Alto;
WHEREAS, the City wishes to accommodate the requests of parties which desire
access to and use of the City Department of Utilities' electric utility infrastructure and gain access
to the public rights-of-way and public utility easements for the purpose of making expanded and
advanced telecommunications and broadband services available in the City, taking into account the
City's primary obligation to provide reliable electric utility service and otherwise protect the public
health, safety and general welfare; and
WHEREAS, the City has developed the Master License Agreement and Exhibits
for the purpose of facilitating the deployment of advanced broadband facilities in Palo Alto;
NOW, THEREFORE, the Council of the City of Palo Alto does hereby RESOLVE
as follows:
2
110803 dm 0073555
SECTION 1. The Council hereby makes the following findings:
A. Since 1978, Congress and the FCC have taken action to (1) promote the
development of advanced broadband communications networks by cable television companies
and telecommunications carriers, (2) ensure, subject to certain conditions protecting the ability of
utilities to provide safe and reliable utility service and the authority of state and local
governments to promote the public health, safety and welfare, that the owners of utility poles and
conduits make available their facilities to broadband service providers at rates, terms and
conditions that are just and reasonable, (3) afford states the opportunity to participate in the
regulation of utility-owned infrastructure and the management of access to their facilities by
telecommunications and broadband service providers, and (4) subject to certain conditions
protecting the rights of local governments and utilities, streamline and otherwise expedite the
procedures for gaining access to utility pole facilities and public rights-of-way in order to
minimize the costs and delays to deploying advanced broadband networks.
B. On November 17, 1997, the Council approved Telecommunications
Policy Statements that (1) promote the competitive delivery of advanced telecommunications
services in Palo Alto in an environmentally sound manner, (2) support the regulation of new
telecommunications facilities in Palo Alto in regard to their placement and construction in a safe,
orderly and efficient manner, (3) permit the use of City Department of Utilities' infrastructure to
promote the delivery of advanced telecommunications services in Palo Alto, provided such usage
does not interfere with the City's provision of safe and reliable electric, natural gas, water,
wastewater and other utility services to its residents and businesses or the City's planned use of
any City property or facilities, and (4) authorize the use of City property facilities and property
other than Utilities Department property to support the deployment of new telecommunications
services without creating adverse effects associated with the development of necessary
infrastructure, and to encourage third parties to use City-owned and -controlled property for the
siting of telecommunications infrastructure in a manner consistent with the City's real estate,
zoning, legal, environmental and other requirements.
C. The City has developed the Master License Agreement and Exhibits to the
Master License Agreement, which contain the standard rates, terms and conditions applicable to
utility and streetlight pole and conduit access and usage and which shall apply to all interested
communications service providers, including, without limitation, personal wireless service
providers and operators of distributed antenna system networks, on a competitively neutral and
nondiscriminatory basis.
D. The City's electric utility rates, applicable to pole attachments and conduit
occupancy to be charged under one or more applicable Utility Rate Schedules and/or the Master
License Agreement and Exhibits thereto, are not considered charges or fees subject to voter
approval under Proposition 218, Article 13D Section 3(b), as they relate to the provision of
electric service, and are not considered taxes, levies, charges or exactions subject to voter
approval under Proposition 26, Article 13C Section l(e)(4), as they are charges for rental oflocal
government property.
3
110803 dm 0073555