MM&C's Cathy Borten Featured in AGL Media Profile



Miller, Miller & Canby's Cathy Borten was profiled in an AGL Media Group article titled, "For Cathy Borten, it's a Wonderful Life in the Wireless Industry." 

The article ran in the publication's December 22nd issue and is reprinted in its entirety below:

For Cathy Borten, it’s a Wonderful Life in the Wireless Industry
BY J. SHARPE SMITH, SENIOR EDITOR

Cathy Borten comes from a family with a deep connection to the law profession. That background led to a career — indeed, a life — devoted to performing the legal work that has made many, many wireless systems possible.

Her father, who passed away in 2014, was a lawyer and graduate from Washington and Lee University Law School, as are her uncle and nephew. From an incredibly early age, six to be exact, she began talking about the profession with her father, Leonard “Curly” Greenebaum, who was a managing partner in the high-profile practice of Sachs, Greenebaum & Tayler in Washington, D.C.

“I admired him more than I could ever say,” Borten said. “I was fascinated by his job. And I spent all of high school and all of my college years laser-focused on becoming a lawyer.” Because of her family connections, she grew up knowing a judge who would become her mentor. A life in law seem preordained.

After graduating from college, she took a seven-year detour as a media buyer and marketing director, but at the urging of the Judge Paul H. Weinstein, who was a family friend, she followed the family tradition and entered Washington and Lee University. Upon graduation, she clerked for Judge Weinstein in the Circuit Court for Montgomery County, Maryland.

In 1996, although she was offered a job in a high-powered D.C. law firm, Borten opted not to follow her father’s path. She instead joined smaller firm with four partners and two associates — Abrams, West, Storm & Diamond (AWSD). She was in her 30s and wanted to raise a family.

“I had just seen too many women wind up in this situation where they were really torn between working for these big law firms and taking care of their families, and they couldn’t meet anybody’s expectations,” Borten said.

That firm’s diverse client base, which included developers, Bell Atlantic Mobile Systems (BAMS) and the City of Gaithersburg, Maryland, would begin a career-long education for Borten as she became immersed in multiple points of view in the zoning and permitting of wireless structures.

“One day, one of the partners, M. Gregg (MG) Diamond, asked me to help with a BAMS appeal, which led to me working with him consistently on all of the wireless work that we had,” she said.  “It started out just like a lease here and there, or a special exception for zoning here and there. And it wound up really becoming an ongoing, very volume-intense matter.”

The next big change for Borten came when the City of Gaithersburg, which was growing at a fast clip, decided to bring its city attorney in house. She left the firm and became city attorney where 90 percent of her work entailed land use zoning and planning.

“I maintained, just by extension, my connection with the wireless world, as tower companies and wireless carriers would come in with applications for sites,” she said.

Borten’s former colleague, Diamond, left AWSD to start his own firm, the Law Office of M. Gregg Diamond, in Bethesda. After her stint with the city, Borten rejoined Diamond at his new firm.

“So, most people will tell you a lawyer alone is not a great scenario, because you need to be able to bounce things off of other attorneys,” Borten said. “MG was always that person for me. I just had so much respect for him, and he was just such a great mentor.”

She worked at the two-person law firm from home from 2007 to 2018, and during that time she and her husband raised two children who are now in college.  She performed the leasing and zoning and land use work for a major carrier and related work with a tower company in the area, which included macro and rooftop sites and indoor DAS, as well as the early stages of outdoor DAS. Her work included hospitals, hotels and federal secure office buildings, even the National Institute of Allergy and Infectious Diseases (home of Dr. Fauci!).

“When I started out, in-building wireless was a small market,” Borten said. “It forced me to learn about so many different indoor environments. Indoor wireless ended up being a value-added proposition for the landlord and a tremendous piece of business for us.”

Borten performed the legal work for the DAS that is deployed in the Baltimore/Washington International Thurgood Marshall Airport, which was the gift that just kept on giving.

“The airport is just a piece of the airport authority, and all these different levels that must give approval for changes,” she said. “It was a third party putting in the system, so we had to make sure that what they were doing was going to work for our client, which was a carrier. We worked on this lease for years, because it was always being amended to add new phases.”

In 2018, as her youngest went off to college, Borten was ready for a change. She reached out to an attorney she knew from her days as city attorney, Jody Kline, about an open position at Miller Miller & Canby. She is now in the firm’s real estate practice group and has found leasing experience in wireless to be helpful on the real estate side. But she keeps her hand in wireless, working with site acquisition companies and carriers, and she is now licensed to practice in Virginia.

The Importance of Connections

Borten acknowledges the importance of her longtime relationships with many people in the legal, land use and wireless worlds during her career.

“I think the relationship side is beyond critical,” she said. “My relationships have always helped me get to the next level in my legal career. Who knew when I left the law firm to become the city attorney that I would go back and work with MG again for 11 years?” she said.

Timing has also been essential to her success. When she started working with Abrams, West, Storm & Diamond, wireless was still in its second generation, and very few women were in land use and zoning. In fact, there were not that many women working in telecom in general.  She got in on wireless early. She eventually would help develop the ordinances that would accommodate outdoor small cells.

In 2014, when Borten was at The Law Offices of M. Gregg Diamond, Montgomery County was rewriting its whole zoning ordinance. The telecom ordinances were so outdated and cumbersome that they lagged behind the pace of wireless technology.

“We wanted the opportunity to update them. Any time the size of the antennas changed, there had to be a new amendment. I had the opportunity to help draft the original small cell provisions of the zoning ordinance,” she said.

Borten couldn’t have foreseen her life in wireless when she chose a small Maryland law firm instead of a large Washington, D.C., firm, but she has had an impact on wireless as it moved from 2G to 5G. She has spent her career zoning and permitting macrotowers, facilitating indoor DAS networks and working to keep ordinances from impeding the progress of wireless technology. Along the way, she has earned the respect of many long-term colleagues. She has had, it seems, a wonderful life in wireless.

Click here to view the online edition.

Cathy Borten is an associate in Miller, Miller & Canby's Real Estate practice group, where she focuses her practice in commercial real estate transactions and leasing, real estate litigation, and commercial financings and settlements. She also focuses in telecommunications law, handling matters for a diverse client base that includes developers, wireless telecommunications firms and municipalities.  To learn more contact Cathy via email.





FCC Ruling Streamlines Compound Expansion Rules for 5G Deployment


In order to advance wireless infrastructure deployment, the FCC voted on October 27 to streamline the agency’s rules for ground compound expansion at existing tower site bases.  The new order will make it easier to co-locate antennas and other equipment on existing infrastructure, while also continuing to “preserve state and local government’s ability to manage and protect local land-use interests.” The new ruling revises Section 6409a of the Spectrum Act of 2012 that directed State and local government to not delay certain modifications to existing wireless infrastructure that does not “substantially change” the physical dimensions of the structures. At the time the Spectrum Act was passed, clear guidance was provided about the amount of height increase allowed for an existing tower.  The ruling this week goes further and provides clear guidance to the permissible increase at the base of towers by allowing excavation or deploying transmission equipment in an area no more than 30 feet beyond the existing site boundaries.

“While the vast majority of the public desires to have enhanced wireless connectivity in our communities, there remains much debate on the level of local government review required for wireless infrastructure development,” said Miller, Miller & Canby’s Sean Hughes, a twenty plus year wireless development attorney.  “Here, the FCC has sent a strong message and mandate to local governments everywhere.  I suspect that this debate is not over and we will hear much about this order from local government in the days to follow,” he added.

According to Wireless Infrastructure Association President and CEO Jonathan Adelstein, the new ruling is critical to the advancement of emergency communications that preserve and protect public safety.  According to Adelstein, necessary equipment such as new competitors, edge data centers, small cell hubs, and emergency generators have “negligible environmental impact.”

Cathy Borten of Miller, Miller & Canby’s telecommunications’ land use team shared, “The streamlined rules could be a big win for consumers of wireless who desire faster and enhanced connectivity where they live, work and play”.

The telecommunications land use attorneys at Miller, Miller & Canby are experienced in Maryland, D.C. and Virginia and are closely monitoring the impacts of the FCC order and the efforts of state and local governments to craft small cell legislation in order to advise telecommunications and property owner clients.

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 zoning 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 the firm's Real Estate practice group, where she focuses her practice in commercial real estate transactions and leasing, real estate litigation, and commercial financings and settlements. She has also handled land use and zoning matters, appearing before county and city government bodies and pursuing zoning and text amendments in cities and counties and has represented clients in contested proceedings in both trial courts and appellate matters. Contact Cathy here.




 





U.S. Ninth Circuit Upholds FCC’s Small Cell Wireless Deployment Order Designed to Promote 5G


On August 12, 2020, The United States Ninth Circuit Court of Appeals upheld major portions of the Federal Communications Commission's attempts to speed up 5G deployments on existing infrastructure. The order is largely “in accord with the congressional directive” and “not otherwise arbitrary, capricious, or contrary to law,” a three-judge panel of the U.S. Court of Appeals for the Ninth Circuit wrote in a 2-1 decision. The FCC’s 2019 order was challenged by a host of local governments, including Montgomery County, City of Rockville and City of Gaithersburg, Maryland.  (Click here to view full petition ruling.)

The City of Portland v. Federal Communications Commission filing questioned the FCC's One-Touch Make Ready order and its subsections, the Small Cell Order, the Moratoria Order and the One Touch Make-Ready Order, all of which faced major criticisms from dozens of major cities.

The agency’s actions were an attempt to create a unified broadband infrastructure rollout plan, but have been met with turbulence because of the complex interplay between federal, state and local policies and zoning review authority. The decision notes that “expansion has been met with some resistance where 5G is concerned however, particularly from local governments unhappy with the proliferation of cell towers and other 5G transmission facilities dotting our urban landscapes.”

The court upheld the Federal Government’s actions, calling them “reasonable attempt[s] by the FCC to prevent unnecessary costs for attachers,” as well as being “an appropriate exercise of the FCC’s regulatory authority under the Telecommunications Act.”

Miller, Miller & Canby’s Sean Hughes noted that, “The Court’s decision is a big win and paves the way for a wireless industry better equipped to deploy small cell technology across the country more rapidly.”  The ruling allows the FCC to cap rates, allowing easier access.

Attorney Cathy Borten added, “This decision allows the industry to move forward in delivering the much sought-after benefits of small cell and 5G technology in a streamlined and consistent fashion.”

The decision is also a win for big telecom companies like T-Mobile and Verizon.

FCC Chairman Ajit Pai praised the decision, saying, “Today’s decision is a massive victory for U.S. leadership in 5G, our nation’s economy and American consumers. The court rightly affirmed the FCC’s efforts to ensure that infrastructure deployment critical to 5G — a key part of our 5G FAST Plan — is not impeded by exorbitant fees imposed by state and local governments.”

The telecommunications land use attorneys at Miller, Miller & Canby are experienced in Maryland, D.C. and Virginia and are closely monitoring the impacts of the FCC order and the efforts of State and local governments to craft small cell legislation in order to advise telecommunications and property owner clients.

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 zoning 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 attorney 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.
 





25 States Have Supported 5G by Passing Small Cell Legislation to Promote Rapid Deployment of 5G


In May 2019, Nebraska passed its “Small Wireless Facilities Deployment Act” becoming the 25th State to pass legislation implementing the 5G and Small Cell deployment.   Thus, half of the Country now has state-wide legislation (versus just municipality or county specific legislation) to facilitate the deployment of 5G small cells.  While Maryland has introduced legislation the past two years on the topic, it has yet to pass a law.  Meanwhile, its neighboring States of Virginia, Delaware and West Virginia are among the 25 States.

These State laws take into consideration the unique circumstances of their State and local environment, but baseline principles can be established and are consistent with wireless industry standards, including:

  • Streamlined applications to access public rights of way

  • Caps on costs and fees

  • Streamlined timelines for the consideration and processing of cell siting applications

The Wireless Infrastructure Association (WIA and National Conference of State Legislatures) are tracking Mobile 5G and Small Cell 2019 Legislation. Click here to view the current legislation by State.

The telecommunications land use attorneys at Miller, Miller & Canby are experienced in Maryland, D.C. and Virginia and are closely monitoring the impacts of the FCC order and the efforts of State and local governments to craft small cell legislation in order to advise telecommunications and property owner clients.

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 attorney 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.





Promoting 5G: Two US Senators Re-Introduce Legislation to Streamline Rapid Deployment of Small Cells


On June 3, 2019, U.S. Senators John Thune (R-SD) and Brian Schatz (D-HI) re-introduced the Streamlining the Rapid Evolution and Modernization of Leading-edge Infrastructure Necessary to Enhance Small Cell Deployment Act, or STREAMLINE Small Cell Deployment Act.

The bipartisan legislation updates the Communications Act to better reflect developing technology and facilitate the rapid deployment of 5G networks. It also sets reasonable standards for local government review of infrastructure siting while recognizing the unique challenges for smaller municipalities.

Key Provisions of the STREAMLINE Small Cell Deployment Act:

  • Permits must be approved or denied on publicly available criteria that are reasonable, objective and non-discriminatory.

  • Small cell applications may be denied or regulated for objective and reasonable structural engineering standards, safety requirements or aesthetic or concealment requirements.

  • Applications must be acted on no later than 60 days for requests to co-locate equipment and 90 days for other requests.

  • Flexibility and additional time is allowed for small municipalities (fewer than 50,000 residents).

FCC Commissioner, Brendan Carr, released the following statement. “I commend Senator Thune and Senator Schatz for their leadership on smart infrastructure policies.  Their bill demonstrates bipartisan support for fee limits, timelines, and other reforms that are key to accelerating the buildout of 5G infrastructure in communities across the country.  If passed, their work to modernize our country’s approach to small cells would notch another solid win for the U.S. in the race to 5G.”

The telecommunications land use attorneys at Miller, Miller & Canby are experienced in Maryland, D.C. and Virginia and are closely monitoring the impacts of the FCC order and the efforts of State and local governments to craft small cell legislation in order to be able to advise telecommunications and landlord clients.

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 attorney 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.
 





Democratic Congressional Leaders Accuse FCC of Collusion in Small Cell Ruling


In a letter to FCC Chairman Ajit Pai dated January 24, 2019, the heads of the House Energy and Commerce Committee and the Subcommittee on Communications and Technology accused the agency of colluding with telecom companies to win court approval for a ruling that limits fees and approval processes for small cell deployments. Click here to view the letter.

When the FCC approved the rule change in September 2018, it was positioned as a necessary step to meet the needs of 5G and speed up the deployment of small cells and other telecom equipment. Regulators limited the fees that cities and states can charge for small cell installations and set reduced timelines for the approval process.

Cities must now act on applications within 60-90 days and can only charge a $100 application fee and an annual $270 fee per small cell. The move drew criticism from local officials who believe the FCC overstepped its authority, and many continue to call for an appeal or outright reversal of the ruling.

As discussed in previous MM&C articles on this topic, many local governments have combined forces to appeal the FCC Order. The U.S. Court of Appeals for the 10th Circuit denied the cities’ request for a stay, the FCC’s Declaratory Ruling and Third Report and Order on small cell deployment went into effect on January 15, 2019. The cities’ appeal has moved to the 9th Circuit.

According to MM&C Telecommunications Attorney, Sean Hughes, “I suspect that this debate and accompanying legal and legislative maneuvering is going to continue. Between the Fed’s  actions to streamline 5G infrastructure development for the  consumer, which is nearly everyone (considering there are over 400 million wireless devices active in the United States), versus local government efforts to prevent or roll back Federal preemptions that are limiting local government review authority and citizen involvement over wireless development requests.“

The telecommunications land use attorneys at Miller, Miller & Canby are experienced 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 Order on 5G and Small Cells Goes into Effect; Cities’ Appeal Goes to 9th Circuit Court


After the U.S. Court of Appeals for the 10th Circuit denied the cities’ request for a stay, the FCC’s Declaratory Ruling and Third Report and Order on small cell deployment went into effect on January 15, 2019.

Known as the September Small Cell Order, the item states that fees charged by a municipality for applications or rent must be limited to costs or they may be deemed as “effective prohibitions of service.” Aesthetic and undergrounding requirements may also be deemed to be a prohibition of service of small cell deployment. Additionally, it established new small cell shot clocks and codified previous ones, as well.
However, the courtroom drama is not over. In a second order, the 10th Circuit remanded the cities’ motion to review their petitions against the September Order back to the U.S. Court of Appeals for the 9th Circuit.

The 9th Circuit was already considering a lawsuit against the FCC’s Order banning municipal moratoria, which is basically part of the same rulemaking as the Small Cell Order. So with the transfer, both the moratoria and the Small Cell Order will be examined by the same court.
Which circuit rules on an appeal can have a big impact on the final outcome of the case. The 9th Circuit could turn out to be more supportive of the cities’ point of view as numerous 9th Circuits’ precedents were overruled by the FCC’s Small Cell Order.

Section 253 of the Telecommunications Act states that local regulations may not prohibit telecommunications services. The FCC Small Cell Order attempted to expand upon the definition of what would be deemed as a prohibition.

Another wrinkle in this case, the FCC currently does not have a lawyer working on this with the partial government shutdown. If it is not reopened in time, the Dept. of Justice will argue the case.

Congressional Involvement
The cities have also taken their fight against the FCC to Capitol Hill. Congresswoman Ana Eshoo introduced the “Accelerating Broadband Development by Empowering Local Communities Act of 2019,’’ on Jan. 14th to preserve the rights of state and local governments, essentially nullifying the September small cell order by the FCC: ‘‘Accelerating Wireless and Wireline Broadband Deployment by Removing Barriers to Infrastructure Investment.

Sean Hughes of Miller, Miller & Canby weighed in, “All interested parties are anxiously watching the Courts and legislative actions that will steer 5G infrastructure development.  Nearly all agree that the 5G state of the art technology is desired, the debate really exists about where the 5G equipment can be located, what it can look like and what local governments can charge as the related fees.”  

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.
 





City of Gaithersburg Considers Changes to Small Cell Regulations


While some communities are re-inventing themselves as smart cities, many other small towns are busy deciphering what 5G means to them. Bringing 5G capabilities to an area means either new telecommunications towers or small cell deployment and all the financial implications of each.

The September FCC 5G and Small Cell Order is trying to help wireless companies speed deployment of 5G capabilities. The order states that local government cannot prohibit wireless telecommunication services. Local governments are trying to ensure their regulations do not run afoul of the FCC requirements and their regulations do not have the effect of prohibiting wireless telecommunication services to their residents.

Gaithersburg, Maryland City Council members discussed potential changes to small cell tower ordinances for local right-of-ways at a public hearing on January 7, 2019. New changes in FCC regulations and the telecommunications industry spurred on the proposed revisions that would allow developers to increase the size of cell tower equipment housing. Crown Castle and AT&T have been in communication with local government to discuss the possible changes. According to Deputy City Manager Dennis Enslinger, the current size regulation for cell tower equipment is 2.8 cubic feet, and with the changes it would increase to 12 cubic feet.

Council Member Ryan Spiegel will soon become president of the Maryland Municipal League and the City of Gaithersburg Council, where he has expressed the importance of this issue, and continuing to regulate small cell installation.

The public record on the potential ordinance changes will be open until January 31, and the Council will re-address the issue in mid-February.

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. Click here to view all MM&C articles related to this topic.

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.

 





Court Denies Stay Action on FCC Order to Speed Deployment of 5G and Small Cells


Many local governments were caught off guard by the September FCC Order to ease siting of small cells. The National League of Cities (NLC) and a group of local governments and associations brought their case to court and requested a stay for the looming January 14, 2019 implementation date.

Several localities sought judicial review of the order. A judicial panel consolidated the petitions and assigned them to the U.S. Court of Appeals for the Tenth Circuit. In addition to NLC, other parties joining the stay request were: the U.S. Conference of Mayors, National Association of Counties, National Association of Regional Councils, National Association of Towns and Townships and the National Association of Telecommunications Officers & Advisors.

NLC claims the FCC overreached when it voted to impose shot clocks for siting applications and cap application fees for municipalities and other localities concerning wireless infrastructure siting in public rights-of-way.

When evaluating a stay request, the Tenth Circuit Court considers whether the applicant’s arguments are likely to succeed, whether the party would be “irreparably injured” without a stay, and where the public interest lies.

The Tenth Circuit Court concluded the motion failed to satisfy these factors. As for the parties’ arguments that easing small siting rules would hurt property values and create traffic hazards, the court said even the NLC conceded the order, “does not compel any locality to authorize any particular facility,” states the decision signed by Donald Stockdale, Chief of the Wireless Telecommunications Bureau.
The FCC said it followed Congress’ lead by articulating, “specific standards for resolving concrete disputes over whether states’ or localities’ fees” are consistent with its rules. Most of the order is slated to become effective January 14, 2019. The order acknowledged that “some localities will require some time to establish and publish aesthetics standards,” and therefore the aesthetics standards will not take effect until 180 days after Federal Register publication.

According to the FCC Order, for localities that choose to impose aesthetic standards on small cell deployment, they must be:

  1. Reasonable;
  2. no more burdensome than those applied to other types of infrastructure deployments;
  3. objective; and
  4. published in advance.

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.
 





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.





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