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Santa Ana City Council August 20, 2018 Page 2 of 5 owner. The permit authorized under the Draft Ordinance would be unnecessary, as designs, terms and conditions can be memorialized in a license agreement. Numerous cities have adopted an exemption from wireless permit requirements for facilities on City -owned poles pursuant to a license agreement; only an encroachment permit is required. We encourage the City to consider such an exemption from Draft Ordinance requirements. Location Standards Must Acknowledge State Law Granting Telephone Corporations the Right to Use Any Right -of -Way. As discussed in our prior comments, the City cannot direct applicants to locations outside the right-of-way (private property) because Public Utilities Code Section 7901 grants telephone corporations such as Verizon Wireless a statewide right to place their telephone equipment in the right-of-way. Draft Ordinance § 33-233(a). Any denial based on a preference for private or public property locations would violate Verizon Wireless's rights under state law. Further, wireless facilities on private property generally involve larger high-power antennas and different coverage objectives than right-of-way facilities. These factors alter network designs. By requiring facilities on private property, the City would effectively dictate the technology used by wireless providers to serve their customers. However, the technical and operational aspects of wireless facilities are regulated by the Federal Communications Commission (the "FCC"), and federal courts have confirmed that local jurisdictions may not dictate the technology used by wireless providers to provide service. See New York SMSA v. Town of Clarkstown, 612 F.3d 97 (2d Cir. 2010). This provision must be stricken. The City should not discourage siting adjacent to residential property because Section 7901 grants Verizon Wireless the right to place telephone equipment "along and upon any public road or highway" (emphasis added) and does not favor or disfavor certain right-of-way locations. Draft Ordinance § 33-233(b). To align with Section 7901, the City should treat wireless facilities in all rights-of-way equally. Certain Submittal Requirements Contradict State or Federal Law. There is no reason to require submittal of coverage maps because there is no related finding in the Draft Ordinance. Draft Ordinance § 33-236(a)(8). Any requirement to show the need of a right-of-way facility is preempted. This is because Section 7901 grants telephone corporations a statewide right to use the right-of-way. The City cannot require Verizon Wireless to demonstrate the need for a right-of-way facility through demonstration of coverage, nor can the City deny a right-of-way wireless facility over questions of need. As the result of recent court decisions, San Francisco was obligated to remove the "necessity" requirement from its right of -way wireless ordinance.' This submittal requirement must be stricken. I See T -Mobile West LLC v. City and County of San Francisco (2016) 3 Ca1.App 5th 334,342-343, on review by the California Supreme Court (Case No. S238001).