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Santa Ana City Council September 4, 2018 Page 2 of 2 outside the right-of-way on private property, nor can it discourage siting in the right-of- way adjacent to property zoned or used for residential purposes. Draft Ordinance §§ 33- 233(a), 33-233(b). Further, the City cannot require coverage maps because Verizon Wireless does not need to prove the necessity of its facilities where Section 7901 grants it the right to use the right-of-way. Draft Ordinance § 33-236(a)(8). Any denial based on these unlawful requirements will lead to challenges, and they should be stricken from the Draft Ordinance. We also previously described how the Draft Ordinance is inconsistent with federal law because it requires applicants to demonstrate that new poles or facilities in underground utility areas are necessary to avoid a prohibition of service. Draft Ordinance §§ 33-236(a)(17), 33-244(a). This is based on an erroneous interpretation of the federal Telecommunications Act which protects wireless carriers from unlawful denials but does not require them to prove a prohibition of service to obtain local approval. 47 U.S.C. § 332(c)(7)(B)(i)(II). That determination is left to federal courts, not cities. 47 U.S.C. § 332(c)(7)(B)(v). Requiring applicants to show a prohibition of service would also violate the rights of telephone corporations under state law, Section 7901. These Draft Ordinance provisions will invite valid legal challenges, and they must be stricken. Other issues raised in our prior letter have not been addressed. These include the permit renewal of only five years which should be 10 years to comply with the minimum wireless permit terms required by Government Code Section 65964(b). Draft Ordinance § 33-241. Height limits, including the overly strict limit of 35 feet near residences, should clearly incorporate additional antenna height required by state safety regulations (Public Utilities Commission General Order 95 Rule 94). We note that additional height expands signal coverage, allowing fewer facilities to serve an area. Draft Ordinance § 33-245(b). Subjective findings and standards such as "visual compatibility" should be stricken because they could be used to deny facilities that applicants have carefully designed to comply with objective standards of the Draft Ordinance and Director's guidelines. Draft Ordinance §§ 33-240(c)(2), 33-245(a). The Draft Ordinance is not ready for first reading. The Council should add an exemption to encourage small facilities on City -owned poles under a license agreement. Requirements that contradict Public Utilities Code Section 7901 and the federal Telecommunications Act should be eliminated. Verizon Wireless would be pleased to participate in a discussion regarding network design and legal considerations. We encourage the Council to defer first reading and direct staff to work with industry on further revisions. Very truly yours, Paul B. Albritton cc: Sonia R. Carvalho, Esq. Yasmin Vazquez