Small Wireless Communication Facilities, including "5G" technology, are a type of wireless infrastructure. Existing wireless facilities are large antennas placed high above the ground that service a wide area (referred to as "macrocells"). The small wireless antennae provide spot coverage to a relatively small area - each small wireless antenna services hundreds of feet whereas traditional macrocell sites cover square miles.
On September 26, 2018, the Federal Communications Commission (FCC) issued a Declaratory Ruling and a Third Report and Order, referred to as the "FCC Order". The FCC Order implements industry demands to remove barriers and accelerate the transition to 5G deployment, accelerating the United States' transition to 5G cellular networks. Consistent with prior federal regulations, the FCC Order reaffirms that small wireless facilities must comply with FCC's radio frequency safety standards and local governments are precluded from regulating any type of wireless communications facilities, including small wireless facilities, based on health concerns. This preemption has been in effect since the Federal Communications Act of 1996.
Although the FCC Order significantly diminishes the City’s decision-making power, it does not eliminate that power. By establishing new policies and procedures, the City can continue to retain some degree of local control on the deployment of small wireless facilities.
What about the City's existing wireless communications facilities ordinance?
On August 21, 2019, the City of Encinitas City Council adopted Urgency Ordinance No. 2019-12 and Resolution No. 2019-66 creating new City Council Policy No. C035 to supplement the existing wireless facilities ordinance (EMC Chapter 9.70) in regulating small wireless facilities and other infrastructure deployments in the public rights-of-way.
The City of Encinitas' existing wireless facilities ordinance (EMC Chapter 9.70) was established in 2001 consistent with the Federal Telecommunications Act of 1996. At that time, wireless communications carriers were rolling out a major expansion that resulted in the large antennas we have today. The existing ordinance is not structured to deal with small cell infrastructure because:
- The regulations are inconsistent with the recent FCC Order that requires all local aesthetic requirements to be (1) reasonable; (2) no more burdensome than those applied to other infrastructure deployments; (3) objective; and (4) published in advance.
What have other cities in California done?
Several cities across California have either amended their existing ordinance or adopted an urgency ordinance in response to the FCC Order.