Senator Marty Block moves to La Jolla, opposes Spectrum Act

La Jolla Community groups pen letters to city opposing new relaxed wireless rules

La Jolla Town Council (LJTC) continued the conversation on the hotly-contested federal Spectrum Act law during its Aug. 13 meeting at La Jolla Rec Center, as well as a concurrent piece of state legislation making it easier for companies to install new wireless facilities.

Many La Jollans oppose the Spectrum Act, and a Federal Communications Commission (FCC) order enforcing it that would give the wireless communications industry free rein to expand the height, size and scope of existing wireless facilities. Meanwhile, state legislation, AB 57, would allow for installation of new cell tower sites and equipment — all without public noticing and in excess of La Jolla’s 30-foot coastal height limit.

Addressing LJTC Aug. 13, 39th District state Senator Marty Block — who moved to La Jolla this month — said he opposes the Spectrum Act and AB 57, authored by Assemblymember Bill Quirk (D-20th). The bill states, in part, that the California legislature “finds and declares that a wireless telecommunications facility has a significant economic impact in California and is not a municipal affair … but is a matter of statewide concern.”

Block said, “It takes away the voice of the public when it comes to decisions on where to place cell towers and how to place and co-locate (place side by side) various functions on the towers.”

Asked how many new facilities or expansions of existing facilities wireless companies could install under AB 57 and the FCC’s Spectrum Act order, Block said, “It’s limitless — that’s the scary thing. I fear that as long as it’s profitable to put these things in, they’ll be placed all over.”

Block noted that AB 57 went through amendments in two Senate committees after those committees initially rejected the bill.

“In its current form, it’s not nearly as bad as it was when it passed the Assembly,” Block said, noting the committees have “taken some very specific statements about deadlines and made them more vague so that a city can say we want to give local residents 30 days to review (proposed installations). But it’s still not a bill that I can support, so I plan to vote against it.”

Block said he would seek to drum up additional opposition to the bill among Senate colleagues, though he predicted it would ultimately pass the Senate.

Since the bill was amended in the Senate, if approved there it would have to return to the Assembly for a vote on concurrence, where State Assembly Speaker Toni Atkins (D-San Diego) could block the legislation, he said. “Our advantage is that (Atkins) represents La Jolla,” Block said. “The speaker can see that this bill doesn’t get heard on concurrence in the Assembly, if she wants to — and that would kill it. They might get mad at her if she does it, but there is that power.”

Speaker Atkins’ representative Toni Duran, who was in attendance, later confirmed that, though it is “a little rare” for her to do so, Atkins abstained from voting on the bill in the Assembly. An inquiry as to why Atkins chose to abstain from the vote was not returned by press time. “Atkins doesn’t like to use her power to kill bills,” Duran cautioned.

Given the lobbying largesse of the wireless industry, Block said La Jolla faces an uphill battle fighting AB 57. “Most of my colleagues get a lot more pressure from AT&T than they get from their constituents,” he said. “On the side of the telecommunications industry there has been a tremendous amount of lobbying … and hundreds of thousands of dollars in donations given, not tied to a vote on this act.

“I don’t think any of my colleagues would vote just because of donations, but there’s been a lot done on the side of the telecommunications industry,” Block stressed. “What’s been done on the side of the opponents is nothing. So it’s time for the opponents to get up, get vocal and get active — and you can’t do that from La Jolla. It’s time to either organize and come to Sacramento or to hire a lobbyist or a lobbying firm that is active and well-respected in Sacramento. … It’s not a fair fight right now, and we can make it more fair if the community really takes an active role.”

Block said he is not opposed to the telecommunications industry per se. “We all have our cell phones and we want to get good cell service,” he said. “I am against taking away the rights of the people — the residents — to decide where these towers are placed.”

Robert “Tripp” May, a telecommunications attorney who co-authored an amicus brief in Montgomery County, Maryland’s lawsuit against the FCC ruling implementing the Spectrum Act, offered a “crash course” on the federal law, which was inserted into the Middle Class Tax Relief and Job Creation Act of 2012.

“The basic crux of the statute is that state and local government may not deny and shall approve any co-location or modification request on an existing wireless tower or base station, so long as it doesn’t substantially change the physical dimensions. … If you’re in downtown LA (the term) ‘substantial’ could be very different than if you’re here in the Village,” he said, noting that in Los Angeles, towers are going in at heights of up to 50 feet; in New York, some are as high as 60 feet, LJTC trustee Cindy Greatrex added.

May noted that though the city is working retroactively to amend its Land Development Code to accommodate the Spectrum Act, the law has already been in effect for months.

“There’s no stay. There’s not automatic sort of relief period while we figure out whether this is or isn’t legal, so cities have got to comply with it,” he said.

Under the FCC’s Spectrum Act order, a city has 60 days to either approve or deny a wireless facility application. If they do not, the application is automatically approved.

“The problem for some of the cities is that their traditional processes take much longer than 60 days to process an application,” May said.

A separate issue

LJCPA second-vice president Joe LaCava said a 49-foot SCADA pole recently installed by SDG&E at Exchange Place and Bluebird Lane for its own wireless technology is a separate issue, not related to the Spectrum Act.

“As I understand it, that is still being fought and the city’s Development Services Department … and city attorney’s office have not ruled on that yet.”

In the end, LJTC member Brandon Hess made a motion to forward a letter opposing the Spectrum Act to city officials, similar to one drafted on-the-spot by the LJCPA during its Aug. 6 meeting. LaCava suggested the letter ask the city to pursue “a collaborative conversation with (wireless) carriers and the tower companies to not pierce the height limit in any neighborhood.”

As chair of a committee established to advise utility companies on the placement of above-ground utility boxes throughout the city, LaCava said he saw a willingness to cooperate with residents’ wishes.

“The city has no authority to regulate (utility boxes in the public right-of-way), but we got them to the table and we got them to agree to do a much better job (of locating) above-ground boxes — no laws, no policies, no regulations, but a cooperative agreement to uphold certain standards. I suspect that we can get the carriers and the tower companies to agree to something like that if we have a reasonable and collaborative conversation.”

During the city’s poorly attended Aug. 12 scoping meeting on the Spectrum Act draft environmental document, city telecommunications project manager Karen Lynch said that, since the Spectrum Act went into effect April 8, “we’ve only had 14 (Spectrum Act) applications — four of which have been approved and all of them placed on existing facilities. This may put your fears at rest, slightly.”

The city’s Spectrum Act amendments will still go before the city’s Smart Growth & Land Use Committee, Planning Commission and City Council for a vote, at which time there will be additional opportunity for public input, it was noted.

Read more about La Jolla’s attempt to fight the Spectrum Act here.