Why Now?: Regulating Small Cell Antennas in Takoma Park
From Suzanne Ludlow, City Manager of Takoma Park
I am writing to follow up and provide more background on what the City is doing regarding “small cell antennas” and why I am encouraging the City Council to proceed with amending its regulations regarding telecommunications equipment in the City rights of way.
First, the goal of the City’s proposed regulations on small cell antennas is to protect the City of Takoma Park from unregulated installation of small cell antennas in our rights of way. We currently have no process or protections in place, so if applications are submitted, we simply must comply with existing regulations which are very unfriendly to local governments. The FCC’s recent order, “Streamlining Deployment of Next Generation Wireless Infrastructure Declaratory Ruling and Third Report and Order,” goes into effect on January 14, 2019. If we do not put criteria in place regarding location, placement, aesthetics and fees before an application is received, the installation companies would not likely have to adhere to reactive regulations. At the very least they would be challenged.
Second, we are not legally able to bar the antennas. The County’s provisions under discussion apply to private property in Takoma Park but do not apply in the City’s right of way where many of these antennas are likely to be placed. The City Code’s current provisions regarding permits for activity in the right of way do not directly address these structures or attachments and have little in the way of criteria that would address location, placement, aesthetics, notification process or fees. To be very clear, the City strongly opposes the FCC’s preemption of the City’s authority over its rights of way, and we are glad there are lawsuits filed against the FCC action. And again, in order to have any way to respond to an application for these antennas at the present time, we need to have criteria in place.
Third, the discussion about preparing for small cell antenna applications has been ongoing for years. The City has been a party to group of local governments fighting the impending FCC ruling since early 2017. This was noted in my City Manager Comments from February 2017. The Maryland Municipal League and the National League of Cities have also been discussing this matter for the last several years. The City Attorney was directed to prepare draft legislation to protect Takoma Park and presented proposed language on October 24, 2018. There were a number of questions raised and there is still some investigation being done, but there is also a sense of urgency to put basic measures into place to give Takoma Park some leverage and to protect the City and residents from cell towers being placed with no criteria in place. If adopted, the Code language can and likely will be changed if actions at higher levels take place that would affect Takoma Park in a positive way, but at the current time, we have very little authority or criteria to control location, placement or aesthetics of these antennas.
I would like to address some of the comments made at the City Council meeting on November 7. This is not about making money – after all, the FCC limited what local governments can charge and the maximum amounts may not cover the costs. While we understand there are health concerns, we unfortunately do not have any legal authority to try to block small cells based on potential health effects. We are not acting in response to, or in coordination with, telecommunications companies. And finally, we are not “rushing” to get something passed so that we are the first to do it or because we are asking for small cell antennas here. In fact, we should have updated our right of way regulations quite some time ago and many communities have long had protective provisions in pIace for these kinds of telecommunications fixtures. For these reasons, I urge the Council to act so that we have at least some protections in place in the event that we start to receive applications.
As technology changes, municipal regulations must be updated to adequately protect the public and be workable for staff. The City’s regulations concerning work in the City’s rights of way were written before small cell antennas were imagined. While there is great controversy about small cell antennas themselves, as well as the recent federal ruling preempting most local control of them, the City of Takoma Park has room to make some changes to its regulations about work in our right of way to gain some leverage if a company intends on placing small cell antennas in Takoma Park. These steps do not encourage small cell antennas; they are protective steps for the City of Takoma Park and its residents. It is my responsibility to identify areas of risk to the City and the means to limit those risks. Updating our right of way regulations is one part of the City’s response to limit those risks.
Although there is not much new to report since the FCC ruling, we continue to seek information and guidance from the City Attorney, County representatives and others to help inform our discussions. The Council will again take up the issue in a Work Session at their November 14 meeting, followed by a First Reading Ordinance on November 28 and a Second Reading on December 5.