Initially setting an Oct. 15 deadline, the Federal Communications Commission (FCC) has extended the timeline for public comment on small cell facility regulations by two weeks.
After the Oct. 29 deadline, there will be a rebuttal period where both sides may respond to what others have submitted with replies due by Nov. 13. Lynn Board, the City of Gaithersburg’s attorney, anticipated the FCC would make an announcement on the order in January or February.
The tug of war between the city and the FCC dates back several years. The Mayor and City Council adopted rights-of-way regulations in December 2017 in anticipation for requests for small cell antenna installations. The regulations were amended earlier this year, addressing issues raised in September 2018 by an FCC order.
Currently, the FCC has received new petitions from the Cellular Telecommunications Industry Association & the Wireless Infrastructure Association that could impact city regulations if granted. The petitions aim to clarify terms, grant an application if local government does not act in a timely manner, change the standard of what is considered a substantial facility change, declare conditional approvals are illegal and stop any process or conditions that defeat or reduce productions afforded under the law.
The city notes “these changes could allow placement of as many equipment cabinets as can fit on a pole, open up installations on utility company poles, allow for virtually any configuration vertically or horizontally if the structure is allowed on a pole regardless of local concealment standards and create a new building standard whereby if a small cell facility is allowed on any portion of a building, it must be allowed elsewhere on the same building regardless of its visibility.”
City Councilmember Robert Wu said he and his colleagues worked hard to “adopt responsible regulations that took all parties’ interests into consideration so that if it becomes necessary to deploy this technology for the benefit of our residents, we can do so in a way that is really best situated for all our constituents so that it does consider the safety concerns. It does consider the aesthetic of neighborhoods because really that is what it is,” he said. “We have to make decisions on behalf of our constituents and our residents in the best way possible.”
Wu noted the city’s regulations are comprehensive and put the city’s “best foot forward.” So, he questioned why the FCC needed to be heavy handed with rulings when municipalities take those actions.
“The local people are the best situated to make these decisions,” he said.
An email sent to the FCC’s media relations department was not returned for comment.
“When you are driving around, you hit dead areas,” Wu said. “There are places that don’t quite have as much cell service as they should. We all rely on cell phones. We know this, but the issue is the appropriate citing of these facilities so that they maintain certain minimum safety and maintain the aesthetics of neighborhoods—all those considerations that the local officials are really in the best place to be making decisions for and on behalf of the community.”
Board noted the city will be sending in one response in opposition but is working with other municipalities through the Maryland Municipal League as well as federal congressmen and senators to submit letters of opposition as well.
The 2018 order is on appeal in federal court. Briefings have been completed and the case is pending before the 9th Circuit Court. Board got a notice in early October that the court had agreed to set expedited hearings on the matter and hoped to be notified soon when a date for oral arguments would begin. She anticipated a ruling within three to four months.
The city is part of the Smart Communities and Special Districts Coalition, which represents more than 31 million residents in 11 states and the District of Columbia. Multiple Maryland cities including College Park, Frederick, Rockville and Takoma Park are also participating.
“We feel very strongly about preserving our local authority over our public rights of way,” Board said. “We don’t believe that the (FCC) should be telling us what we can do and what we can’t do in our public rights-of-ways and we really just want to preserve our local authority. We do believe it is a huge issue for our residential areas as well as our commercial areas. I think we need some input into the aesthetic of how these things are going to look.”
For those who wish to comment on the issue, go to www.fcc.gov/ecfs.