Public Comment Needed on Small Cell Draft Documents

The City of Gaithersburg needs public comment on preliminary draft documents that address franchise/right-of-way (ROW) agreements, ordinance changes and ROW regulations designed to respond to requests for small cell antenna installations in the city.

These preliminary documents were discussed at a May 22 work session of the Gaithersburg Mayor and City Council. Staff, including City Attorney Lynn Board and Deputy City Manager Dennis Enslinger, and outside counsel Joe Van Eaton of Best, Best & Krieger worked for nearly 12 months to craft an approach that gives the city some measure of control while also adhering to Federal Communications Commission (FCC) regulations.

Preliminary draft documents can be reviewed at Public comments should be sent in writing to by 5 p.m. on June 22.

The city and community entered into a conversation on this issue in spring 2016 when the city began working with Crown Castle in a pre-application phase. Crown Castle was looking at installing four new facilities in the Rio commercial area, two at intersections in the Washingtonian Woods neighborhood, and one at an intersection and two at non-intersections in the Westleigh community.

Residents, many from the Westleigh community, raised concerns ranging from preserving the character of the neighborhood and safeguarding property values to potential health effects of radio frequency (RF) radiation and the safety of poles bearing heavy equipment.

According to FCC regulations, a municipality cannot prohibit the provision of personal wireless services or discriminate between providers of functionally equivalent services. When a small cell antenna installation application is received, the municipality has between 60 to 150 days to respond.

At the spring 2016 meeting, Councilmember Robert Wu asked if the city has greater control over its own property. “The heart of the issue is regulatory versus proprietary—in what capacity is the City Council acting?” he asked.

Board, Enslinger and Van Eaton sought to address resident concerns and advise the Mayor and City Council on their proprietary rights within the scope of current FCC regulations at the May 22 work session. The presentation considered two different scenarios. The first involved small cell antenna installation on investor-owned utilities in the ROW; under current Maryland state law, new poles in the ROW can only be constructed by telephone providers. The second concerned small cell antenna installation on poles—street lights or traffic lights—owned by the city.

Proposed changes to regulations and ordinances are complex, and Board stressed that they are preliminary. The city would appreciate public comment in writing. Following this public comment period, a public hearing will be held.

While the city cannot consider possible health effects of RF exposure, it can stipulate that providers comply with FCC RF standards. “Companies would have to submit to the city a maximum permissible exposure report,” Board said. “That’s a report they do have to submit to the FCC every year regarding the RF standard—and 30 days after their submission to the FCC on an annual basis, they would also have to provide us with a copy of that report.”

Providers themselves regulate this in terms of compliance, but their equipment is FCC certified. “The equipment is vetted by the FCC to make sure it meets FCC standards,” said Van Eaton. “The FCC doesn’t go out and inspect.”

The FCC currently is involved in a “long and ongoing discussion” about measuring cumulative RF exposure. If this cumulative test were to go forward, it would require new rules, said Van Eaton.

Concerned about industry regulation of RF exposure, Councilmember Michael Sesma questioned how the city can know that these installations are safe once they are installed and operating. Enslinger said that the city could request additional RF data, and that this would be at provider cost.

According to Enslinger, poles in ROWs cannot interfere with public safety activities, namely pedestrian, bicycle and vehicular transportation activities or other public activities. Small cell antenna installations can only be constructed on existing poles, per current Maryland law, and a provider must show need for facilities at the proposed location and show that it meets FCC RF exposure guidelines in pre-submission documents. The city must be careful not to discriminate between providers seeking small cell antenna installation in city ROWs. The city can, however, stipulate that these installations be spaced at least 500 feet apart, thus encouraging co-location on poles, Enslinger said.

The city does have proprietary authority when it comes to small cell antenna installation on its own poles, Enslinger said. “We could set safety and aesthetic criteria.”

In fact, the city could choose not to allow small cell antenna installations on its own poles, Enslinger said, but this would shift the burden to city ROWs and, in practical terms, reduce city control over providers. Staff proposed that the city limit small cell antenna installation to street lights and traffic lights on collector and minor arterial roads like Kentlands Boulevard, Washingtonian Boulevard and Watkins Mill.

During the public comment period, residents—all from the Westleigh neighborhood—raised concerns that included equipment safety, property values, aesthetics, safety of city ROWs, the safety of a non-breakaway pole bearing up to 300 pounds of equipment should a vehicle crash into it, and community opposition to small cell antenna installation.

Mayor Ashman thanked staff and outside counsel for their work, and noted, “This whole process has been like navigating through a dimly lit maze …”

Sesma added, “with a bad signal.”