PD Background Report (PL-USE-2023-000008)

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ATTACHMENT 1—Project Narrative AT&T's Application—HIL03306 Volcano Village East Page 15 of 17 7.2. State of Hawaii Law Chapter 205-4.5 HRS, Permissible uses within the state agricultural district. State Land Use Chapter 205-4.5, HRS, and Chapter 205-5(b) define permissible uses within the state agricultural district and authorize the County of Hawaii to determine uses by zoning ordinance. The Hawaii County zoning for the subject property is A-3a which allows for telecommunications antennas with a Use Permit. See Attachment 2—Statement of Code Compliance for AT&T's demonstration of compliance with the applicable code. 7.3. Federal Law Federal law, primarily found in the Telecommunications Act of 1996 ("Telecom Act"), acknowledges a local jurisdiction's zoning authority over proposed wireless facilities but limits the exercise of that authority in several important ways. Local jurisdictions may not materially limit or inhibit. The Telecom Act prohibits a local jurisdiction from taking any action on a wireless siting permit that"prohibit[s] or [has] the effect of prohibiting the provision of personal wireless services." 47 U.S.C. § 332(c)(7)(B)(i)(II). According to the Federal Communications Commission ("FCC") Order adopted in September 2018,2 a local jurisdiction's action has the effect of prohibiting the provision of wireless services when it "materially limits or inhibits the ability of any competitor or potential competitorto compete in a fair and balanced legal and regulatory environment.113 Under the FCC Order, an applicant need not prove it has a significant gap in coverage; it may demonstrate the need for a new wireless facility in terms of adding capacity, updating to new technologies, and/or maintaining high quality Service.' While an applicant is no longer required to show a significant gap in service coverage, in the Ninth Circuit, a local jurisdiction clearly violates section 332(c)(7)(B)(i)(II) when it prevents a wireless carrier from using the least intrusive means to fill a significant gap in service coverage. T-Mobile U.S.A., Inc. v. City of Anacortes, 572 F.3d 987, 988 (9th Cir. 2009). • Significant Gap. Reliable in-building coverage is now a necessity and every community's expectation. Consistent with the abandonment of land line telephones and reliance on only wireless communications, federal courts now recognize that a "significant gap" can exist based on inadequate in-building coverage. See, e.g., T-Mobile Central, LLC v. Unified Government of Wyandotte County/Kansas City, 528 F. Supp. 2d 1128, 1168-69 (D.Kan. 2007), affirmed in part, 546 F.3d 1299 (101h Cir. 2008); MetroPCS, Inc. v. City and County of San Francisco, z Accelerating Wireless and Wireline Broadband Deployment by Removing Barriers to Infrastructure Investment, Declaratory Ruling and Third Report and Order,WT Docket No. 17-79,WC Docket No.17-84, FCC 18-133(rel.Sept.27,2018);83 Fed. Reg.51867 (Oct. 15,2018)("FCC Order"). 3 Id. at¶35. 4 Id. at¶¶34-42.