Small Cell Antennas in the City's Rights-of-Way
As a result of increased demand for wireless broadband service and developments in wireless communications technology, cellular service providers have begun installing small short-range antennas as part of their network. While the Montgomery County Zoning Ordinance regulates the installation of antennas on private property in the City, City legislation is necessary to regulate installations in our rights-of-way.
Federal law requires that local governments allow the installation of small antennas and related equipment in their rights-of-way and limits their authority to regulate the installations and the fees they may charge for installation permit applications, for use of the right of way, and for attachment to government-owned poles.
Under the Telecommunications Act of 1996, Congress prohibits state or local regulations that “prohibit or have the effect of prohibiting the ability of an entity to provide telecommunications service.” On September 26, 2018, the Federal Communications Commission (“FCC”) issued an order providing an expansive interpretation of the preemptive scope of the 1996 Act.
First, the FCC ruled that delays in approving antenna installation applications constitute a prohibition on the provision of service and imposed “shot clocks” of sixty days for the issuance of permits to attach antennas to existing structures and ninety days for the issuance of permits to install new antenna support structures.
Second, the FCC ruled that fees charged by local governments for permit application review and recurring fees for use of the right-of-way and use of government-owned structures in the right-of-way are limited to the cost the local government incurs to review the permit and to maintain its rights-of-way and support structures. It deemed the following fees to be presumptively permissible: $500 for an application to attach one to five antennas to an existing pole; $1,000 for an application to install a new pole; and $270 per year for use of the right-of-way and attachment to a government-owned pole. (As a result, higher fees may be subject to legal challenge.)
Third, the FCC ruled that aesthetic requirements imposed by local governments for the installation of antennas and support structures must be “(1) reasonable, (2) no more burdensome than those applied to other types of infrastructure deployments, and (3) objective and published in advance.” The vagueness of these limitations, and the requirement that aesthetic standards, an inherently subjective issue, be “objective,” makes it difficult to anticipate permissible aesthetic requirements.
The City of Takoma Park is under the zoning authority of Montgomery County. At the moment, current Montgomery County zoning laws in residential areas requires that: a) new poles and replacement poles are considered telecommunication towers and must be set back 300 ft from a dwelling and b) antennas on existing structures must be setback 60 ft. The County was considering changes to this and other requirements for cell towers but that ZTA has been tabled and is not expected to be considered further by the current County Council.
Direct legal challenges to the recent FCC Order have already begun, and the City has joined a coalition of local governments filing a law suit in federal court.
Deputy City Manager
Amendments to City Code
The City has the authority to regulate some aspects of cell tower installation, such as the location, placement, aesthetics, notification process, and fees. Montgomery County zoning codes govern where wireless telecommunication facilities can be sited generally and governs setbacks from dwellings. The City can also establish a permitting process to ensure that any small cell towers or antennas, permitted by the County for placement in Takoma Park, meet certain safety and aesthetic requirements.
After several public discussions about the various issues noted above, the Council voted to amend the City’s Code regarding right-of-way work permits on January 9, 2019, just days before the FCC ruling went into effect. The amendments are intended to comply with the limitations of federal law while maximizing the City’s control over its rights-of-way.
Because Takoma Park was developed before 1968 and has above-ground utilities, the amendments favor the installation of antennas on existing Pepco-owned utility poles, which are prevalent throughout the City. (The only potential support structures the City owns are decorative light poles.) New poles will be permitted only when there is no existing pole in a location necessary to provide wireless coverage or when an existing pole is inadequate to support necessary wireless equipment.
The amended ordinance is intended to maximize the City’s influence over aesthetic considerations. It authorizes the Public Works Director to develop regulations that limit the size of antennas and related equipment and requires that new installations be designed to minimize their visual impact and noise emissions. To comply with the federal requirement that local regulations not discriminate against wireless communications facilities, the proposed amendments incorporate the aesthetic requirements into the requirements for other installations in the right of way.
Although federal law prohibits local radio frequency emission regulations, the ordinance requires an initial certification that the emissions meet federal standards and annual testing.
The amendments also include changes to the Code not specifically related to the installation of wireless facilities. The current fee for a right of way work permit, $40.00, which was established many years ago, has been removed from the Code and is to be established by regulation, which will facilitate a change to reflect the current cost of application review now and in the future. The amendments also eliminate the charge per linear foot for right-of-way disturbances, as the current practice of the City is to charge only the permit application fee and require that the permittee restore the right-of-way.
Providing for the establishment of fees and additional aesthetic requirements via regulation gives the City flexibility to increase fees and further protect the public interest in the event that the legal challenges reduce the preemptive impact of the FCC Order.
We are now shifting to the task of drafting administrative regulations that will specify the components of the application process, requirements, and fees. Once drafted, the regulations will be made available to the public for comment.
Resources and Links
- 01/23/2019: Letter from City Council to District 20 Delegation Regarding Enacted Amendments to Code
- 12/6/2018: Letter from City Council to County Executive, County Council, and Planning Board
- 11/8/2018: City Manager’s Blog – Why Now? Regulating Small Cell Antennas in Takoma Park
- 11/8/2018: Message from the Takoma Park City Attorney Regarding the Proposed City Code Amendments to Regulate the Installation of Cell Antennas and Support Structures in City Rights of Way
Council Agenda Items/Resources
- Ordinance Amending Takoma Park Code, Chapter 11.12, Permits and Improvements to Regulate the Installation of Telecommunications Equipment in City Rights-of-Way
- 01/09/2019: Ordinance Amending Takoma Park Code, Chapter 11.12, Permits and Improvements to Regulate the Installation of Telecommunications Equipment in City Rights-of-Way (Agenda item)
- 12/5/2018: First Reading Ordinance Amending Takoma Park Code, Chapter 11.12, Permits and Improvements to Regulate the Installation of Telecommunications Equipment in City Rights-of-Way
- 12/5/2018: Resolution Identifying the Council’s Goals in Amending Takoma Park Code, Chapter 11.12, Permits and Improvements to Regulate the Installation of Telecommunications Equipment in City Rights-of-Way
- 11/28/2018: Discussion of Proposed Amendments to Takoma Park Code, Chapter 11.12, Permits and Improvements, to Regulate the Installation of Telecommunications Equipment in City Rights-of-Way and Discussion of Resolution Identifying the Council’s Goals for Adopting the Ordinance
- 11/14/2018: Council Agenda Item “Amendments to Title 11, Streets, Chapter 11.12, Permits and Improvements, of the Takoma Park Code regulating the installation of telecommunications equipment in City rights-of-way”
- 10/24/2018: Video of October 24, 2018 Work Session Discussion