AGENDA ITEM REPORT
TITLE:
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A RESOLUTION AUTHORIZING AND DIRECTING THE CITY ATTORNEY, ON BEHALF OF THE CITY, TO ENGAGE THE SERVICES OF OUTSIDE COUNSEL TO FILE AN APPEAL REGARDING THE FEDERAL COMMUNICATIONS COMMISSION’S NEW DECLARATORY RULING UNDER WT DOCKET NUMBER 19-250, ENTITLED “IMPLEMENTATION OF STATE AND LOCAL GOVERNMENTS’ OBLIGATION TO APPROVE CERTAIN WIRELESS FACILITY MODIFICATION REQUESTS UNDER SECTION 6409(a) OF THE SPECTRUM ACT OF 2012,” AND TO JOIN THE COALITION OF CITIES AND COUNTIES NATIONWIDE SEEKING RELIEF FROM THE OVERREACHING AND BURDENSOME RULING ADOPTED THEREBY, IN ORDER TO PRESERVE THE CITY’S RIGHTS AND REMEDIES THEREUNDER.
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BACKGROUND:
On June 9, 2020, the Federal Communications Commission (“FCC”) issued a new Declaratory Ruling under WT Docket No. 19-250; RM-11849, “In the Matter of Implementation of State and Local Governments’ Obligation to Approve Certain Wireless Facility Modification Requests Under Section 6409(a) of the Spectrum Act of 2012.” The new ruling significantly undercuts every local jurisdictions’ authority over currently existing wireless infrastructure by setting a new standard for commencement of the 60-day review shot-clock, allowing an increase in facility height (beyond previously established thresholds), allowing an increase in the number of equipment cabinets under modifications deemed to be non-substantial, allowing such modifications to defeat concealment qualities, and offend previously established conditions under local governmental special land use approvals and the like.
DISCUSSION:
Many experts in the field are calling this ruling the latest affront by the FCC upon local government’s home rule powers and local regulation of communications facilities. If the FCC’s new ruling is not challenged through an appeal, the City will have very little, if any, oversight and authority to analyze modifications to approximately fifteen (15) currently existing wireless facility sites located within the City. Kenneth S. Fellman, Esq. of Kissinger & Fellman, P.C., located in Denver, Colorado, is a highly qualified legal expert in the field and has cities and counties within his coalition ready to appeal this ruling, and currently represents the City in a separate appeal of the FCC’s 2018 Small Cell Preemption Order. He has agreed to represent the City for a flat fee not-to-exceed $2,500, including costs.
RECOMMENDATION:
Staff recommends approval of this resolution.
FISCAL IMPACT:
REVENUES: $ 0
EXPENDITURES: $ 2,500
BUDGETED? Yes
NOTES: Account No. 0113-3112, City Attorney's Office outside legal counsel.