California Governor Signs Batch “Broadband” Permit Processing Bill (AB 965); Vetoes Update to State Video Franchising Law (AB 41)

When AB 965 goes into goes effect on Jan. 1, 2024, California local agencies will be required to undertake “batch broadband permit processing.” Batch broadband permit processing is the simultaneous processing of two or more (and as many as 25 or 50) broadband permit applications for substantially similar broadband project sites under a single permit.

“Broadband projects” can include any, or a combination of, wireless facilities, fiber optic connections and other supporting equipment. Broadband project sites are considered “substantially similar” if they are “nearly identical in terms of equipment and general design, but not location.” Local agencies may set “reasonable limits” on the number of broadband project sites included in a single permit, consistent with the minimums established by the bill. This means cities with a population of less than 50,000 and counties with a population of less than 150,000 can place a limit of not less than 25 project sites under a single permit. For larger cities and counties, the minimum is 50 project sites. Local agencies that lack the resources to process large volumes of applications sometimes hire consultants to assist, but AB 965 now requires local agencies to work with the applicant “in good faith to resolve those resource limitations.” This resolution “may include, but is not limited to, provision by the applicant of supplemental resources.” A local agency may only remove a broadband project site from grouping under a single permit if the applicant agrees, or to expedite the approval of other substantially similar broadband project sites.

Despite AB 965’s ostensible goal of promoting the deployment of broadband consistent with the Gov. Newsom’s recent Executive Order, the bill does not take the opportunity to require that providers who take advantage of the batching process offer broadband with the minimum speed of 100 megabits desired by the Governor. Further, it appears the likely outcome of the bill will be to facilitate the rapid installation of wireless facilities, particularly small cells, because they are more likely to meet the bill’s unique definition of substantially similar project sites.

The bill also puts specific new burdens on local governments with respect to the processing of batch applications for “wireless” broadband projects, including:

• Batch broadband permit processing for wireless broadband projects must be completed within the “reasonable period” timeframe of 60 to 150 days required by FCC shot clocks established pursuant to 47 USC Section 332(c)(7)(B)(ii).
  
  This expands the application of FCC shot clocks to wireless broadband-only facilities whereas they previously only applied to applications for personal wireless facilities used for voice services and facilities used for both voice and wireless broadband on a commingled basis.
• A failure to approve wireless broadband projects and issue permits or reject applications and notify applicants within the applicable shot clock period, means all of the permits shall be deemed approved pursuant to Gov. Code 65964.1. 
  
  This further expands the application of the existing deemed granted remedy in state law to broader types of permits, including permits for fiber connections for wireless projects. It also imposes a new obligation on local agencies to “notify applicants” of denials. This comes on the heels of the United States District Court, N.D. California’s rejection of a claim by Verizon Wireless that Federal law requires local governments to deliver a wireless application denial to an applicant. See GTE Mobilnet of California Limited Partnership v. City of Carmel By-the-Sea, 2022 WL 2357005, appeal to the Ninth Circuit pending. (BBK’s Gail Karish represents the City in this case.)

There are some notable exclusions. The bill does not apply to eligible facilities requests, which are insubstantial modifications to existing wireless facilities that federal law requires local authorities to approve and whose timelines for action and deemed granted remedies were established by the FCC under 47 USC 1455(a). Likewise, publicly owned electric utilities that are already required to give communications providers access to their utility poles under a 2011 state law (codified in Pub. Util. Code Section 9510 et seq.) are not “local agencies” subject to this batch permitting bill. Also exempt are poles located within the limits of the City and County of San Francisco that are used for the primary purpose of operating San Francisco Municipal Transportation Agency public transit vehicles. Local governments would be prudent to update their application forms and internal permit review work flow processes, and ensure that staff are aware and ready to implement the new requirements set forth by AB 965 by January 1, 2024.

Updated State Video Franchising Law Vetoed
In other news, Gov. Newsom vetoed AB 41– a bill that was slimmed down from an earlier version and proposed only minor changes to the existing state franchising law (Digital Infrastructure and Video Competition Act of 2006 or DIVCA). The Governor stated that he would not sign the bill because the changes to DIVCA would not meaningfully increase digital equity in California, and encouraged the Legislature to go farther in their efforts to extend broadband access and affordability.

Gov. Newsom has stated that he will continue to work with the Legislature on expanding upon AB 41. Local governments interested in supporting DIVCA reforms should contact their state elected officials.

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.