Montgomery County Council Defers Action on Proposed Small Cell Tower Bill


On October 30, 2018 the Montgomery Council deferred action on Zoning Text Amendment (ZTA) 18-11, Telecommunications Towers – Approval Standards.

Current Montgomery County Zoning Requirement
Montgomery County requires cell towers be at least 300 feet from residential areas. Carriers and wireless infrastructure companies seek an update to the county’s 1990s-era zoning regulations that were aimed at tall, macro sized towers (e.g. 100 feet tall).

Why Montgomery County Needs to Address Small Cells and 5G Wireless
A new September 2018 FCC order takes significant steps toward facilitating small cell deployment and 5G wireless. Click here to view the MM&C blog article on the new FCC Order. State and local municipalities are scrambling to enact legislation to place boundaries on small cell zoning and protect residential communities. Many state and local municipalities are suing the FCC because they believe the order preempts their ability to regulate the placement of small cell facilities. Wireless carriers are also suing the FCC, as they believe the FCC Order did not go far enough to cut regulations and expand the much needed 5G Infrastructure.

According to Council President Hans Riemer, “We need to support the future of wireless while balancing the impact it will have on our communities. The zoning measure that I supported, ZTA 18-11, accomplished both these goals.”

The Montgomery County Council has been working to address the future of wireless infrastructure in Montgomery County over the past few years. The telecommunications industry is running out of capacity on wireless networks in the County due to growing demand and they need to place antennas all over and especially at the street level to meet customer service and capacity demand in and around residential neighborhoods. 5G Infrastructure requires a significant increase in antennas at the street level, as well as on tall existing structures, such as towers, buildings, and water tanks.

Small Cell Antennas are a Key Component of 5G
According to T-Mobile’s website, small cell antennas and distributed network connections are lower power than traditional cell sites, and can handle large quantities of data – as well as large numbers of users. Because they are smaller than traditional cell sites, their antennas and radios can be located closer to the mobile device user. This is key to enhancing a customer’s mobile experience – whether they are texting, sending pictures, streaming live video, or calling 911.  Small cells and DAS (Distributed Antenna System) can help improve coverage, especially in hard to reach locations where man-made and natural obstacles to radio waves occur. They target areas with spotty coverage and enable stronger cellular signals. Small cells also help offload capacity challenges that the networks are facing due to significant wireless usage, especially data usage (non-traditional telephone uses such as searching the internet, watching movies, etc.) by customers. A trade off of this smaller equipment on lower structures being placed closer to the residential customer is that the wireless signal does not travel very far from the antennae location and much less than when placed on a taller, macro site location, which necessitates more structures placed closer together.

Montgomery County Council Legislation
The Council successfully established rules for small cell antennas in Montgomery County commercial areas earlier this year. Bill ZTA 18-11 addressed small cell antennas in residential areas. “Unfortunately amendments were introduced that essentially sought to obstruct deployment of wireless infrastructure in the future. This was a real concern because many people want to have good wireless coverage in their neighborhoods, whether to use devices for entertainment and communication, or to call 911, or to work from home, you name it. Our County needs to embrace wireless infrastructure, just as we embrace water, power, and transportation infrastructure”, said Hans Riemer.  To read Council President, Hans Riemer’s full statement, click here.

MM&C Telecommunications Attorney, Sean Hughes said “ZTA 18-11 wasn’t a viable solution for small cell zoning in order to provide consumers with the enhanced state of the art wireless connectivity they desire. It would essentially require a conditional use for any small cell short telephone or light pole replacements (e.g. 20-30 feet high) in a residential zone; which is the same process as requesting a traditional macro cell tower site (above 100 feet high).”

In a statement from Montgomery County Executive Ike Leggett, he said “I am very disappointed that the County Council has withdrawn the proposed Small Cell Tower bill from consideration. We have failed to adequately protect our communities and neighborhoods. We now run a much greater risk of the State – and federal government – preempting any local say on the terms and conditions of small cell tower placement in our neighborhoods.”

Rather than approve a bad bill that would set Montgomery County back and invite State and Federal pre-emption, Council President Reimer pulled the legislation. He will work with the newly elected Montgomery County Council in 2019 to revise Bill ZTA 18-11.

The telecommunications land use attorneys at Miller, Miller & Canby are experienced and entrenched in Maryland, D.C. and Virginia’s 5G Wireless and Small Cells Zoning. Our telecommunications, zoning attorneys and real estate attorneys are closely monitoring the impacts of the FCC order and the efforts of local legislatures to craft small cell legislation in order to be able to advise telecommunications carriers and potential landlords.

Sean P. Hughes
is an attorney in Miller, Miller & Canby’s Land Use practice group. His career spans more than two decades of focus in legal and wireless telecommunications and he has represented clients in land use and zoning matters throughout the Mid-Atlantic.  To learn more about the firm’s Land Use and Zoning practice, click here.

Cathy Borten
is an associate in Miller, Miller & Canby’s real estate practice group. She focuses in commercial real estate transactions and leasing, real estate litigation, land use and zoning and commercial financings and settlements. Cathy has over 10 years' experience in leasing, land use and zoning in the wireless telecommunications industry. Cathy also participated in the drafting of the Montgomery County and City of Gaithersburg original small cell ordinances. To learn more about the firm’s Real Estate practice, click here.





FCC Pushes 5G Order to Streamline Deployment of Next Generation Wireless Infrastructure


On Sept 5, 2018 the Federal Communications Commission (FCC) pushed an order to streamline small cell siting. The Commission’s Order states: To meet rapidly increasing demand for wireless services and prepare our national infrastructure for 5G, providers must deploy infrastructure at significantly more locations using new, small cell facilities. Building upon streamlining actions already taken by state and local governments, this Declaratory Ruling and Third Report and Order is part of a national strategy to promote the timely buildout of this new infrastructure across the country by eliminating regulatory impediments that unnecessarily add delays and costs to bringing advanced wireless services to the public.

The Commission’s order limits the fees localities can charge for reviewing small cells in a public Right-of-Way, sets shot clocks on those reviews, and affirms local governments can apply reasonable aesthetic considerations. The order raised concerns, as many localities say the order will deny them the right to effectively govern small cell placement in a ROW.

During the vote, FCC Chairman Ajit Pai stressed how he and Commissioner Brendan Carr, made it a point to discuss the draft order with local governments to get their input. Carr said the order ensures, “No city is subsidizing 5G.” Carr stressed that economists believe the changes will save $8,000 per deployment of each small cell, money that could help bring 5G deployments to more places.

If the U.S. doesn’t act to ease such deployment, other countries will, Carr said. China “wants to lead the tech sector for the next decade. They are moving aggressively to deploy the infrastructure needed for 5G. Everyday, China is deploying 460 cell sites. That is 12 times our pace.”

Click here
to read the FCC order.  The map below indicates in blue the states where a small cell bill has been enacted. Please note, Maryland does not currently have a small cell bill. 

Local jurisdictions in Maryland, including Montgomery County are reviewing how they will handle the FCC Order.

“The FCC order takes significant steps toward facilitating small cell deployment and 5G wireless.  Since Maryland has failed to pass any legislation addressing small cells, and Montgomery County recently failed to pass legislation that would allow small cells in residential areas, it will be interesting to see what impact the FCC order has locally”, says MM&C Real Estate Attorney, Cathy Borten.

Montgomery County may join other Washington metropolitan jurisdictions in filing an appeal of the FCC small cells order that set timetables for localities to make siting decisions and capped application fees. “We plan to argue that the FCC has significantly overreached and is seeking to remove local control,” said Montgomery County Council President Hans Riemer (D-At Large). Riemer has said he hopes the council can agree on new county regulations before the FCC order takes effect in January. “I think it would help make the case that local governments can be relied upon to make changes for wireless technology,” Riemer told The Washington Post.

The telecommunications land use attorneys at Miller, Miller & Canby are experienced and entrenched in Maryland, D.C. and Virginia’s 5G Wireless and Small Cells Zoning. Our telecommunications, zoning, land use and real estate attorneys are closely monitoring the impacts of the FCC order and the efforts of local legislatures to craft small cell legislation in order to be able to advise telecommunications carriers and potential landlords.

Sean P. Hughes
is an attorney in Miller, Miller & Canby’s Land Use practice group. His career spans more than two decades of focus in legal and wireless telecommunications and he has represented clients in land use and zoning matters throughout the Mid-Atlantic.  To learn more about the firm’s Land Use and Zoning practice, contact Sean on 301-762-5212.

Cathy Borten
is an associate in Miller, Miller & Canby’s real estate practice group. She focuses in commercial real estate transactions and leasing, real estate litigation, land use and zoning and commercial financings and settlements. Cathy has over 10 years' experience in leasing, land use and zoning in the wireless telecommunications industry. Cathy also participated in the drafting of the Montgomery County and City of Gaithersburg original small cell ordinances. To learn more about the firm’s Real Estate practice, contact Cathy on 301-762-5212.
 





5G Wireless Telecommunications Driving Wireless Infrastructure Development in DMV


In the past several years, state and local governments nationwide have been under increased pressure to grant wireless infrastructure site approvals to expand wireless technology connectivity, in order to meet dramatically increasing consumer demand for better and faster service. In fact, the use of data (watching videos and television, searching the internet, sending photos, using social media, etc.) on mobile devices increased 42 percent from 2015 to 2016.  Sixty-one percent of mobile traffic consists of watching videos, and this is projected to grow to 77 percent by 2020.

The Effect on Local Municipalities
Montgomery County and the City of Gaithersburg are both currently reviewing how they will handle the growing number of requests from a land use perspective to place wireless antennas within their borders. In the past, the practice was to place antennas on the tallest buildings, towers and water tanks. As wireless technology is evolving, local governments are receiving more applications to deploy cell antennas on smaller structures in residential neighborhoods and commercial areas. Federal law does not allow local jurisdictions to enact zoning laws that would prohibit wireless service. Therefore, in Montgomery County and the City of Gaithersburg zoning text amendments (ZTAs) are being proposed to allow for practices that enhance optimal service, while regulating the nature of exactly where these antennas may be placed and how they will screened to protect the aesthetics of community neighborhoods and commercial areas.

What Landowners Need to Know
The need for a large number of locations for new wireless infrastructure facilities will involve landowners, wireless companies and local governments in dramatic ways.  “Property owners in Montgomery County and surrounding areas who own smaller buildings and lower-height properties, as well as undeveloped land, should be advised that they may be approached for the next wave of 5G (5th Generation) installation locations,” said Miller, Miller & Canby’s telecommunications attorney Sean Hughes. “There are a number of stipulations these groups should be aware of with respect to the process of navigating leases, franchise agreements and land use entitlements.”

Sean Hughes is a member of Miller, Miller & Canby’s Land Use practice group. His career spans more than two decades of focus in legal and wireless telecommunications.
 
For more information about Miller, Miller & Canby’s Land Use practice, please contact Sean Hughes at 301.762.5212 or click here.