Agenda Packet TC 09/13/2010 - Supplement
August 26, 2010
Number 6
FCC DENIES RECONSIDERATION OF
CELL TOWER ORDER
In July of 2008, CTIA, the national association of cell phone providers, filed a “petition
for declaratory ruling” with the Federal Communications Commission (FCC). The
petition asked the FCC to preempt local zoning of wireless phone tower locations.
CTIA complained that local zoning procedures have the effect of limiting competition in
the provision of wireless phone service. Many city ordinances, pursuant to state law,
require various notices and hearings to determine whether a particular location is
appropriate for a wireless tower.
In 2009, the FCC unanimously adopted an order on CTIA’s petition. The order is similar
to previous orders regarding cable franchises, which essentially preempted city authority
in states that don’t have a state-issued franchise. While not as burdensome as some
feared, the order did the following:
2
• Set presumptive deadlines of 90 days (for co-location applications) and 150 days
(for all other wireless siting applications) within which a city must act on wireless
applications.
• Concluded that a city that denies a tower-siting application solely because “one or
more carriers serve a given geographic market” has engaged in unlawful
regulation that “prohibits or ha[s] the effect of prohibiting the provision of
personal wireless services” within the meaning of the Act. In other words, the fact
that another carrier or carriers provide service to an area is an inadequate defense
for denying a new carrier’s application.
• Rejected CTIA’s request that the FCC preempt any variance procedure under a
city’s ordinance. The FCC concluded that whether a variance procedure is too
burdensome depends on the city’s actual process.
The order is troubling because it preempts certain aspects of local zoning authority and to
some extent makes the FCC a “national zoning board.”
Shortly following the order, the National League of Cities, joined by the National
Association of Telecommunications Officers and Advisors, the National Association of
Counties, the United States Conference of Mayors, and the American Planning
Association, filed a Petition for Reconsideration with the FCC. Finally acting last month,
the FCC denied the petition.
Shortly after the FCC issued its order in 2009, the City of Arlington challenged the
FCC’s authority to issue the order by appealing to the Fifth Circuit Court of Appeals.
That judicial appeal had been stayed pending the outcome of the FCC’s reconsideration.
The appeal will now move forward in the courts.
City officials should consult with local legal counsel to determine whether the order
affects their cell-tower-siting process.
HEALTH AND HUMAN SERVICES ISSUES MODEL
BOARDING HOME RULES
Legislation enacted in 2009 directs the Health and Human Services Commission (HHSC)
to develop and adopt model standards for the operation of boarding home facilities. The
model standards apply to homes that are not considered statutory assisted living facilities
under the Texas Health and Safety Code. Cities may enforce the model standards if they
so choose.
3
The model standards prepared by the HHSV address the following issues relating to
boarding homes:
• Construction and remodeling of boarding homes.
• Sanitary and related conditions.
• The reporting and investigation of injuries, incidents, and unusual accidents and
the establishment of policies and procedures to ensure resident health and safety.
• Assistance with self-administering medication.
• Requirements for in-service education of the facility’s staff.
• Criminal history record checks.
• Assessment and periodic monitoring to ensure that a resident does not require
personal care, nursing, or other services and is capable of self-administering
medication.
The proposed model standards will be published in the August 27, 2010, edition of the
Texas Register, which may be accessed at: http://www.sos.state.tx.us/texreg/index.shtml.
(In addition, the final boarding house model standards have been posted on the HHSC
Web site at: http://www.hhsc.state.tx.us/BHMS.shtml.)
Interested cities may wish to comment on the proposed model standards.
MANDATORY COLLECTIVE BARGAINING
DEAD, FOR NOW
by Carolyn Coleman
Recent efforts to pass mandatory federal collective bargaining legislation (H.R.
413/S.1611/S. 3194) failed. The “one-size-fits-all” bill would require that every state,
county, city and town collectively bargain with their police officers, firefighters,
emergency medical technicians, and corrections officers, regardless of state and local
laws. TML, other state municipal leagues, and the National League of Cities (NLC) have
opposed this legislation since it was first introduced 15 years ago.
Last month, the House included the legislation in an amendment to its version of the
supplemental appropriations bill (H.R. 4899), which contained much-needed funding for
the Iraq and Afghanistan wars. The amendment also contained billions of dollars in
domestic funding.
4
When the bill returned to the Senate for consideration, the Senate rejected the House's
amendment largely because of the additional funding and returned its original version
back to the House for consideration. The House eventually passed the Senate version of
the bill, which the President signed into law on July 29, 2010.
“NLC will continue to oppose this legislation on behalf of cities and towns on the
grounds that it interferes with state and local laws, violates principles of federalism, and
may be unconstitutional,” said NLC Executive Director Donald J. Borut.
In a House subcommittee hearing earlier this year, North Carolina League of
Municipalities Executive Director Ellis Hankins testified on behalf of NLC and urged the
committee not to fix what isn’t broken.
“For centuries, states and local governments have developed procedures for addressing
the needs of their employees, taxpayers and citizens,” Hankins testified. “They have done
so with and without collective bargaining, through laws that are designed to provide their
workers with excellent working conditions, competitive salaries, excellent health and
pension benefits, and a working environment that is safe and appropriate.’’ He added that
this bill would put the federal government in charge of what has been a state and local
function for no compelling reason.
Citing the Constitution, Supreme Court decisions, and existing law, Hankins noted that
this bill disregards and disrespects the democratic decision making process employed by
states and localities to decide how best to interact with their employees.
This article has been reprinted, with permission from the National League of Cities, from
the August 16 edition of Nation’s Cities Weekly.
THE LATEST ON THE MUNICIPAL ACCESS LINE SAGA
Previous articles in the TML Legislative Update have pointed out that some in state
government believe that municipal access line fees (the current method by which
telephone providers compensate cities for the use of municipal rights-of-way) should be
reduced or eliminated.
In December 2009, the Public Utility Commission voted to publish a proposed rule for
public comment that would make certain “tweaks” to the access line system. At a May
14, 2010, commission meeting, the commissioners took no action on the adoption of the
technical aspects of the rulemaking. Rather, one commissioner asked for a one-day
5
workshop among the commissioners and interested parties. That workshop took place on
August 13.
Clarence West, an attorney who represents the Texas Coalition of Cities for Utility Issues
(TCCFUI), testified on behalf of TCCFUI and the Texas Municipal League. Mr. West,
along with TML staff, participated in the enactment and drafting of the original 1999
access line bill and he has been active in the PUC projects implementing the bill since
1999. He explained to the commission that – contrary to what some have alleged –
municipal access line fees in most cities have been in decline for several years. That
decline is attributable to various factors, not the least of which is the “migration” of many
consumers to wireless phone service.
Lubbock Mayor Tom Martin also provided testimony. Mayor Martin’s comments
focused on the right-of-way management problems faced by the city.
Telecommunications companies have not been the best stewards of the rights-of-way in
Mayor Martin’s city. His position was that, in addition to providing rental income for
public property, access line fees are absolutely necessary to fix damage done to streets
and other public property by telecommunications providers. Mayor Martin showed
several real-world examples of the destruction to his city’s streets by telephone providers.
He also explained that his city’s revenue from access line fees, like many other cities, has
been dropping.
The City of San Antonio and various telecommunications providers also testified. Some
of those providers advocated changes to the current system, but it appears that there is no
agreement on how that should be done.
It appears that municipal right-of-way fee compensation will become an important
legislative issue next session. League staff will continue to work with TCCFUI and
individual cities to ensure that this important revenue source is not eroded, and that city
rights-of-way are respected.
NLC SEEKS TO EXCLUDE SPECIFIC
TELECOMMUNICATIONS TAX FROM MAIN STREET
FAIRNESS ACT
by Lars Etzkorn
6
Last week, NLC called for an amendment to the Main Street Fairness Act (H.R. 5660) to
explicitly exclude taxes and fees unique to communication services from the legislation,
including right-of-way fees, franchise fees, 911 fees, gross receipt taxes, universal service
funds, local utility user taxes, and excise taxes.
The bill, introduced in early July by Rep. Bill Delahunt (D-Mass.), would place Internet
retailers on par with their brick-and-mortar counterparts regarding the collection of sales
taxes. Internet retailers typically collect sales taxes only in states where they have a
physical presence.
In a July 1 statement, Delahunt said the bill “will help state and local governments
balance their budgets without raising any new taxes and will not cost the federal
government a dime. States estimate that $18.6 billion in sales taxes will go uncollected in
2010 and, by 2012, the states will be losing at least $23 billion annually.
“From 2009-2012, this amounts to a loss of approximately $55 billion. In some cases,
these revenue losses can comprise up to one half of a state's budget shortfall,” Delahunt
said.
Upon introduction, NLC and other state and local government organizations expressed
support for the bill in order to allow for the collection of taxes on all internet purchases.
However, following a recent meeting of the Telecommunications Task Force of the
Streamline Sales Tax Governing Board, NLC grew concerned with assertions made by
telecommunications industry representatives that H.R. 5660 could be interpreted to cover
all state and locally imposed taxes on communications, rather than just sales and use
taxes.
NLC did not support versions of the bill introduced in prior sessions specifically because
they would have interfered with the ability of local governments to impose and collect
communication specific taxes and fees on communications providers and services.
This article has been reprinted, with permission from the National League of Cities, from
the August 16 edition of Nation’s Cities Weekly.
RED LIGHT CAMERA REPORTS DUE
7
The 2010 notification of reporting requirements for Photographic Traffic Signal
Enforcement Systems and Municipal Reporting of Traffic Crashes was published in the
Texas Register on Friday, July 2, 2010. The required reports are due to the Texas
Department of Transportation (TxDOT) by October 29, 2010. Please see page 348 at:
http://www.sos.state.tx.us/texreg/pdf/currview/index.shtml.
The detailed reporting requirements and the required report forms are available on the
TxDOT website at: http://www.txdot.gov/safety/red_light_cameras.htm.
The completed reports are to be submitted via e-mail to the address provided
(TRF_RLC_Reports@dot.state.tx.us).
Questions regarding the reporting requirements or report forms should be directed to
(512) 416-3118.
SUNSET COMMISSION RELEASES REPORT ON
COMMISSION ON STATE EMERGENCY
COMMUNICATIONS
The Commission on State Emergency Communications (CSEC) governs 911 service in
Texas and provides the service in rural areas. In its Staff Report, the Sunset Commission
recently recommended that: (1) the CSEC should continue to operate for the next twelve
years; (2) the commission should be authorized to develop, implement, and manage an
interconnected state-level 911 network; and (3) the commission should be required to
establish an advisory committee for the development, implementation, and management
of the state’s 911 system.
Currently, the commission provides the delivery of 911 calls to public safety answering
centers in rural areas. The CSEC does not answer or dispatch calls. The commission
contracts with the 24 Regional Planning Commissions (RPCs) to provide 911 service to
rural areas covering about one-third of the Texas population. Emergency communications
districts and municipal emergency communications districts provide service to the rest of
the state.
The Sunset Commission’s recommendation is that the CSEC be given statewide authority
to coordinate the current 911 system and develop and implement an interconnected 911
network. The Sunset report seeks to have the legislature “clarify” its intent to recognize
the commission as the “state’s authority on emergency communications”. These
recommendations could, TML staff believes, lead to mandatory regulation of all 911
8
communications providers. If mandatory regulation by the commission were
implemented, it would affect the way cities provide 911 service to their citizens.
The report also recommends the establishment of an advisory committee for the
development, implementation, and management of a new 911 network that would allow
access through text messages, images, video, and data to the 911 network. Expanding
technology that could contact 911 could be beneficial to all entities that provide 911
service.
Finally, the Sunset report recommends that the commission develop a policy allowing for
negotiated rulemaking and alternative dispute resolution so that more interested
individuals and entities can be involved in rulemakings.
To read the full report, please go to
http://www.sunset.state.tx.us/82ndReports/CSEC/CSEC_DEC.pdf.
TML member cities may use the material herein for any purpose.
No other person or entity may reproduce, duplicate, or distribute
9
any part of this document without the written authorization of the
Texas Municipal League.
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6
6
4
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6
3
0
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5
0
2
0
0
0
0 13,067