Show/Hide

Recycling Notice

  • The collection of recyclable materials scheduled for Monday, January 14, will be collected on Saturday, January 19.

Martin Luther King, Jr. Day Notices

Small Cell/Wireless Facilities in the Right-of-Way

Print
Press Enter to show all options, press Tab go to next option

The City was approached by the industry to look at the existing Right-of-Way Regulations and Franchise and Master License Agreements. In addition, the Federal Communications Commission (FCC) has a new ruling that will affect the existing documents. City staff has been working with the industry to address some concerns and reflect requirements within the pending FCC Rule (will go into effect January 14, 2019). Please see updates below for the latest on these revisions.


pole_mounted_small_cell_antenna_002Small cell facilities are becoming increasingly popular as a way of expanding coverage and increasing network capacity. With mobile data traffic expected to double annually, providers have indicated that small cell facilities are necessary to expand the capacity of wireless networks.

Requests for small cell antenna installations in the City are expected to rise dramatically in the coming years as the need for data increases. The City has adopted the necessary regulations and criteria to meet the requirements of federal law while respecting the integrity of our residential neighborhoods and commercial areas.

The nodes and antennas are often installed on existing right-of-way structures like traffic lights, telephone poles, and streetlights. Companies that want to install small cell facilities in the City's right-of-way must first enter into a Franchise/ Right-of-Way Agreement, which establishes things like location, placement on existing City structures (light poles), and compensation.

While the City has the right to manage these requests, the City must comply with federal statutes: (Middle Class Tax Relief and Job Creation Act of 2012 (SEC.6409); and Telecommunications Act of 1996 (322(c)(7)).

Key elements of the federal regulations include:

  • There can be no discrimination among all providers.
  • There can be no regulation that prohibits the provision of personal wireless services.
  • Any requests have to be approved by the City in a “reasonable period of time” (established by a “shot clock” method) from the date, a “complete application” is submitted. There are multiple “shot clocks” depending on the type of application, with time frames ranging from 60 - 150 days.
  • The City must identify and request any missing data within 30 days of submission and cannot ask for additional data after the applicant has complied with the request.
  • Regulations may not be based on environmental effects of radio frequency emissions if these emissions are in compliance with FCC regulations.

The Mayor & City Council investigated a number of options on how best to address small cell facilities within the rights-of-way. The Mayor & City Council also conducted multiple public meetings to determine the best approach for our community.

In December 2017, the Mayor & City Council adopted ordinance provisions, standardized agreements, and regulations governing the City’s rights-of-way.  The following is a summary of the documents and the City’s approach to approvals:

  • Standardized Franchise/Right-of-Way and Master License Agreements between the City and interested parties have been developed
  • Ordinance changes were implemented for both installations in the right-of-way and on private property
  • The City adopted Regulations for Installations within the Rights–of-Way that address the application process and the associated requirements related to design elements such as placement, design, size, etc.
  • The Regulations allow for staff approval if the proposed installations meet the City’s Regulations and ordinance provisions

Copies of the adopted documents can be found in the Documents Section of this page.  The City anticipated that it would be necessary to update the relevant documents as technology or additional FCC rules are issued.  Previous and future actions of the City will be posted to the updates below.   

Updates

April 11, 2016

At the April 11, 2016 Mayor & City Council (MCC) Work Session, the MCC reviewed information presented by staff and heard public comment. There was consensus among Council Members that the next step would be consultation with the City’s legal team to determine the parameters of the City’s authority regarding small cell facilities and address certain legal questions raised by the public. The MCC also directed staff to create a Frequently Asked Questions (FAQ) document based on the questions raised at the meeting. For a meeting summary and to view the video, please click here.

April 18, 2016

The Mayor & City Council held an Executive Session to consult with legal counsel on this topic.

May 9, 2016

The Mayor & City Council held an Executive Session to consult with legal counsel on this topic.

May 12, 2016

A Frequently Asked Questions (FAQ) document has been created based on questions raised at the April 11, 2016 MCC Work Session. The City continues to work on establishing the parameters of how it will review requests for small cell facilities. Future public meeting notices regarding the development of these parameters will be posted on this web page. It should be noted that the City has not received any applications for small cell facilities at this time.

July 7, 2016

In November of 2014, the City received a request from Crown Castle to enter into a Right-of-Way Use agreement. The City initially drafted and executed a Right-of-Way Use Agreement/Franchise agreement based on a standard model. However, it has been determined that the executed a Right-of-Way Use Agreement/Franchise agreement is not valid. Therefore, the City has indicated it is the City’s position that Crown Castle does not have a valid agreement and must reenter negotiations with the City if it wishes install facilities in the public right of way.

In addition, it has come to the attention of the City’s Legal staff that Crown Castle requested an upgrade of an existing DAS node facility near Lakelands Drive and Great Seneca Hwy. Crown Castle purchased this facility from another vendor who did not secure the proper approvals prior to installation. This DAS node facility is located on private property owned by the City. Although the upgrade occurred, the City has indicated that Crown Castle must either secure the proper approvals or remove the facility. Location and facility drawings can be found here or in the Related Documents section of this web page.

January 10, 2017

The City has been made aware of a Public Notice issued by the Federal Communications Commission (FCC) seeking public comment on a Petition for Declaratory Ruling filed by Mobilitie, LLC (one of the small cell or DAS providers). The FCC is requesting comments to determine what new regulatory tools the FCC should approve to assist providers with the installation of small cell facilities in local jurisdictions. As noted in the Petition for Declaratory Ruling:

“Sections 253 and 332(c)(7) of the Communications Act and Section 6409(a) of the Spectrum Act are designed, among other purposes, to remove barriers to deployment of wireless network facilities by hastening the review and approval of siting applications by local land-use authorities. The Commission has exercised its authority to interpret and implement these provisions by, among other things, clarifying the maximum presumptively reasonable time frames for review of siting applications and the criteria local governments may apply in deciding whether to approve them. The Commission now has an opportunity to build on these actions by issuing a new declaratory ruling to further expedite the deployment of new network infrastructure that can give consumers across the country access to superior wireless services.”

While it is not known what action the FCC is considering, there could be a significant impact on the ability of local jurisdictions to effectively manage these applications. The City is currently drafting comments to respond to the FFC’s request. If you would like to provide comments to the FCC, the deadline is March 8, 2017 (see January 24, 2017 entry). Comments may be filed electronically by clicking here. Alternately, you may cut and paste this address into your browser. To provide written comments, please see page 15 of the FCC Petition for Declaratory Ruling for instructions which can be accessed by clicking here.

The Mayor & City Council will be holding a Work Session to discuss Small Cell Facilities on February 13, 2017. The meeting will take place at City Hall, 31 South Summit Ave, Gaithersburg, MD, 20877, at 7:30 p.m. More information will be posted to this project page once the packet materials are ready for distribution which typically takes place the Thursday before the meeting.

January 24, 2017

A petition was filed by the National Association of Telecommunications Officers and Advisors, the United States Conference of Mayors, the National League of Cities, the Government Finance Officers Association, the International Municipal Lawyers Association and the National Association of Counties requesting an extension to file comments and respond to the comments that will be filed related to the original order by the Federal Communications Commission (FCC) seeking public comment on a Petition for Declaratory Ruling filed by Mobilitie, LLC (one of the small cell or DAS providers). The revised comment date is March 8, 2017, and the revised reply comment date is April 7, 2017. A copy of the order can be found here.

March 1, 2017

The MCC held a work session and discussed the issues related to small cell facilities on February 13, 2017. Staff provided an overview of the issues and then asked for feedback on several key issues. Click here for the agenda packet materials and the video of the meeting.

The MCC have tentatively scheduled another work session on this topic for May 22, 2017.

March 9, 2017

The City, in partnership with the Smart Communities Siting Coalition, has filed comments with the FCC in response to the FCC’s request for comments to determine what new regulatory tools the FCC should approve to assist providers with the installation of small cell facilities in local jurisdictions (see January 10, 2017 post).

A copy of the comments that were filed on March 8, 2017 can be found here.

The City anticipates working with the Smart Communities Siting Coalition to file future response comments regarding this item once it has the opportunity to review all the comments submitted to the FCC.

May 19, 2017

The MCC will review the draft Right-of-Way/Franchise Agreement, Ordinance changes and regulations relating to small cell facilities at their meeting on May 22, 2017. Staff anticipates a 30 day comment period on the proposed documents. Look for future postings regarding definitive deadlines for the comment period.

May 22, 2017

The ROW Agreement Template issued on Friday, May 19, has been updated with some minor revisions. A copy can be found here.

May 23, 2017

The MCC approved a 30-day comment period on the preliminary draft documents (Franchise/ROW Agreement, Ordinance Changes and Right-of-Way Regulations) copies of the document can be found here. The comment period will end on June 22, 2017. Comments or questions can be addressed to Dennis Enslinger at Dennis.Enslinger@gaithersburgmd.gov.

The City has been made aware of two additional Public Notices issued by the Federal Communications Commission (FCC) seeking public comment on proposed rulemakings that addresses local government wireless siting rules, similar, but is more detailed and expansive than the previous Mobilitie docket (Docket # 16-421). The documents can be found below:

The City will be preparing comment on the proposed rulemakings. Individuals or other entities that wish to provide comment can do so at the following site: www.fcc.gov/ecfs. Deadline for filing comments with the FCC is June 9, 2017. The filing deadline has been extended to June 15, 2017.

August 22, 2017

Staff has compiled the comments received on the draft Right-of Way Regulations presented at the May 22, 2017 MCC meeting. A revised draft of the document was presented to the MCC at their August 21, 2017 meeting. A tentative date of October 2, 2017, has been established to hear public comment on the proposed regulations. The public is encouraged to submit their comments in writing prior to the October 2, 2017, meeting.

The associated Right-of-Way franchise agreement and ordinance changes to sections 19-7, 19-9A, 20-62, 24-1 and 24-167A will also be presented at the October 2, 2017, Mayor & City Council meeting.

October 2, 2017

The MCC held two public hearings on October 2, 2017. The first public hearing was a consolidated hearing with the Planning Commission to amend Chapters of the City Code, Section 19-7, 19-9A, 20-62, 24-1 and 24-167. The second public hearing was on Regulations for Installations in the Public Right of Way. They accepted public comments until October 31, 2017.

November 15, 2017

The City has received the following public comments related to the Public Hearings held on October 2, 2017. Staff will be reviewing the public comments to consider revisions to the proposed ordinance changes and Right of Way Regulations. The final action on the documents before the MCC have been tentatively scheduled for December 18, 2017.

November 30, 2017

The MCC will consider revisions to the Franchise Agreement and Master License Agreement for Use of Public Rights-of-Way at their December 4 meeting. Revisions to these agreements are part of the City’s comprehensive response to requests to use the public right-of-way for installations, which was triggered by companies seeking to install telecommunications and wireless facilities and associated equipment. A copy of the agreements can be found here.

December 18, 2017

The MCC will consider approval of the ordinance changes and regulations related to ROW regulations at their December 18 meeting. Click here to see the agenda items.

January 9, 2018

The MCC approved the Right of Way Regulations at their December 18 meeting. In addition, the MCC voted to approval the associated Ordinance changes. Copies of the approved documents are located in the “Documents” section of this page.

At staff’s and the industry's request, the City Council did not consider the Franchise Agreement and Master License Agreement for Use of Public Rights-of-Way at their December 18 meeting. The City Council did take final action on the Franchise Agreement and Master License Agreement for Use of Public Rights-of-Way on January 2, 2018, and approved the documents. Copies of the approved documents are located in the “Documents” section of this page.

December 13, 2018

Crown Castle and AT&T are proposing installation of facilities in Gaithersburg and have been meeting with staff to negotiate Franchise and Master License Agreements. As a result of that negotiation process, the industry has requested amendments to the Regulations and template agreements that the City adopted in December 2017. The FCC also entered an Order on September 26, 2018, that places additional restrictions on local government’s ability to regulate these facilities and this Order will be effective on January 14, 2019.

Staff has spent the last few months working with the industry to update the regulations governing the Franchise/Right–of-Way and Master License Agreements.

Staff will be introducing the proposed changes to the Rights-of-Way Regulations at the December 17 Mayor & City Council Meeting; a Mayor & City Council public hearing on the proposed regulations is anticipated. Final consideration of the proposed Rights-of-Way Regulations modifications are tentatively scheduled for January 22, 2019. A copy of the December 17 packet materials may be found here.

December 19, 2018

The Mayor & City Council approved the Introduction of Amendments to Regulations for the Installations in Rights-of-Way Located Within the Incorporated City Limits of Gaithersburg as Provided by Chapter 2 of the City Code, Entitled, “Administration”. Based upon comments made at the meeting, staff updated both the PowerPoint explaining the modifications and the proposed modifications. These items can be found in the “Documents” section of this page.

The Mayor & City Council will hold a public hearing on the proposed amendments on January 7, 2019. The Mayor & City Council will determine when the public record (comments) will be closed at the January 7 meeting. Written comments can be provided prior to the January 7 meeting, to the addresses provided in the “Contact” section of this page. Additionally, questions can be addressed to Dennis Enslinger by email or phone.