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HomeMy WebLinkAboutMemo - Read Before Packet - 12/5/2017 - Letter From Jennifer Price, At& T External Affairs, Re: Ordinance 143, 2017, Communication Facility Encroachment Permits (Small Cell) - Agenda Item #2© 2016 AT&T Intellectual Property. All rights reserved. AT&T and the Globe logo are registered trademarks of AT&T Intellectual Property. AT&T Services, Inc. 188 Inverness Dr W Suite 400 Englewood, CO 80112 M: 303.218.8082 JP210A@att.com www.att.com Jennifer Price Director, External Affairs Colorado December 4, 2017 Mayor Wade Troxell and City Council Members City of Fort Collins 300 LaPorte Avenue Fort Collins, CO 80521 VIA EMAIL: skane@fcgov.com; cityleaders@fcgov.com RE: Second Reading of Ordinance No. 143, 2017, Amending Chapter 23 of the Code of the City of Fort Collins to Establish Communication Facility Encroachment Permits. Dear Mayor Troxell and Councilmembers: We are very grateful that we had the opportunity to meet with Mr. Clay Frickey, Mr. Cyril Vidergar, Mr. Steve Cicione and Mr. Jason Stutzman (as well as numerous phone calls with Tyler Marr) to review the new draft code and discuss the impact this code will have on the deployment of small cells. We understand that one of the stated purposes of the new code is to, “[e]stablish clear guidelines and standards and an orderly process for expedited permit application review to facilitate deployment of small cell networks and personal wireless services to the City, its residents, businesses and community at large.”1 Through this collaborative process, we have made significant progress toward the development of a code that will facilitate the implementation of this exciting new and transformative technology. Our comments seek to further the goal of having clear guidelines and standards to facilitate deployment. We value our developing relationship with the Fort Collins staff and hope to continue to work on the remaining code issues that we have highlighted below and identified in the attached exhibit. The policy considerations associated with our remaining comments are as follows: 1. Harmonizing the code with applicable state and federal law When adopting terms defined the same under state and federal law, it makes sense from an interpretation standpoint to maintain consistency with such wording2. Also, we understand that you are revising your code in part to implement House Bill 17-1193 but a few provisions still conflict with the state law, including the modified definition of Tower3 and a different and more restrictive application of the 17 cubic feet dimensional standard for equipment found in C.R.S. §29-27-402 1 Proposed Fort Collins City Code, Article VII, Section 23-171(9). 2 Definition of Eligible Facilities Request has been modified from the definition found in 47 C.F.R. §1.40001(b)(3). 3 Identical definitions are found in C.R.S. §29-27-402(6.5) and 47 C.F.R. §1.40001 (b)(9) but the Fort Collins definition has been modified. (4)(a)(II)(B). The attached exhibit sets forth the discrepancies in the definitions and provides easily amended versions of those definitions that match the federal and state laws. 2. Areas Subject to Federal Preemption The draft code includes provisions specifically related to radio signal interference. The federal statutes and case law make clear that signal interference is preempted by federal law, so these provisions create a clear conflict. Section 332(c)(7) of the Telecommunications Act of 1996 preserves local authority with respect to matters that don’t conflict with federal law, but federal law encompasses the entire field of signal interference and “the technical and operational aspects” of wireless service and local laws related to these areas are preempted. N.Y. SMSA Partner v. Town of Clarkstown, 612 F.3d 97 (2nd Cir. 2010). Staff made some significant changes to the operational standards language, however a few provisions remain that fall within the preempted area of signal interference. 3. Objective and predictable location and design standards Small cells are meant to be a repeatable, quickly deployable, plug and play type solution with minimal impact. If the code is clear, carriers don’t need to consult with staff regarding design or location standards and this results in a more efficient and streamlined process, not only for the carriers but for staff as well. In our comments, we suggested some minor language changes to resolve some potential ambiguities. Furthermore, the landscaping requirement for ground equipment will have the unintended consequence of creating a larger small cell footprint and create a more significant visual impact for poles with ground equipment, contrary to the purpose of this type of technology. Thank you for consideration of the attached comments, and we look forward to continuing our professional and mutually respectful relationship with the Fort Collins staff. Sincerely, Jennifer Price Director, External Affairs Colorado cc: Mr. Clay Frickey (via email, cfrickey@fcgov.com) Mr. Cyril Vidergar (via email, cvidergar@fcgov.com) Mr. Tyler Marr (via email, tmarr@fcgov.com) Exhibit to 12.04.2017 Comment Letter Code Citation Existing Language Proposed Language Rationale for Change Sec. 23-172 Definition of Eligible facilities request Eligible facilities request shall mean any request for modification of an existing tower that does not substantially change the physical dimensions of such tower, involving: (i) collocation of new transmission equipment, (ii) removal of transmission equipment, or (iii) replacement of transmission equipment. Eligible facilities request shall mean any request for modification of an existing tower or base station that does not substantially change the physical dimensions of such tower or or base station, involving: (i) collocation of new transmission equipment, (ii) removal of transmission equipment, or (iii) replacement of transmission equipment This term is subject to a federal definition and rules promulgated by the FCC. Not clear why the federal definition was altered and could cause confusion as this term is understood to have a specific meaning under federal law. The Fort Collins’ definition excludes the term base station from the definition which represents a class of sites that, under this definition, would not be considered an eligible facilities request. This would then conflict with federal law that provides that a base station can be considered an eligible facilities request. Sec. 23-172 Definition of Signal interference certification Signal Interference certification shall mean a written statement certifying a technical evaluation of existing and any proposed CFs which identifies potential signal interference problems with operation of a proposed CF and confirms compliance with all FCC radio frequency (RF) and signal interference requirements. Signal Interference certification shall mean a written statement certifying a technical evaluation of existing and any proposed CFs which identifies potential signal interference problems with operation of a proposed CF and confirms compliance with all FCC radio frequency (RF) and signal interference requirements. Per the following cases, regulation of interference is preempted by federal law. N.Y. SMSA Partner v. Town of Clarkstown, 612 F.3d 97, 106 (2nd Sec. 23-172 Definition of Tower Tower shall mean any structure built for the primary purpose of supporting any FCC- licensed or authorized antennas and their associated facilities, including structures that are constructed for wireless communications services including private, broadcast, and public safety services, unlicensed wireless services, fixed wireless services such as microwave backhaul, and the associated site. The term includes radio and television transmission towers, microwave towers, common carrier towers, cellular telephone towers, alternative tower structures and other similar structures, though not including utility or light poles that are less than thirty- five (35) feet in height. Tower shall mean any structure built for the sole or primary purpose of supporting any FCC-licensed or authorized antennas and their associated facilities, including structures that are constructed for wireless communications services including but not limited to private, broadcast, and public safety services, as well as unlicensed wireless services, fixed wireless services such as microwave backhaul, and the associated site. The term includes radio and television transmission towers, microwave towers, common carrier towers, cellular telephone towers, alternative tower structures and other similar structures, though not including utility or light poles that are less than thirty-five (35) feet in height. This term is subject to a federal definition and rules promulgated by the FCC. Not clear why the federal definition was altered and could cause confusion as this term is understood to have a specific meaning under federal law. Sec. 23-172(3) Exemption of Government-owned facilities from all code provisions Government-owned facilities. City-owned communications facilities located on city- owned property and/or public rights-of-way, and any government-owned CF installed upon the declaration of a state of emergency by the federal, state or local government, or a written determination of public necessity by the City. Government-owned facilities. Upon the declaration of a state of emergency by the federal, state or local government, or a written determination of public necessity by the City, City-owned communications facilities located on city-owned property and/or public rights-of-way and any may otherwise be as set forth in a master license agreement. this requirement, or as may otherwise be as set forth in a master license agreement. excepted from this separation requirement. Sec. 23-174 (d) Location standards [600’ separation requirement] Residential areas. When placed in a single family residential areas, the CF shall be sited in a manner that evaluates the proximity of the facility to single family residential structures. When placed near single family residential property, the CF shall be placed adjacent to the common side yard property line between adjoining residential properties, so the CF minimized visual impacts equitably among adjacent properties. Residential areas. When a new pole is placed in a single family residential areas, the CF shall be sited in a manner that evaluates the proximity of the facility to single family residential structures. When placed near single family residential property, the CF shall be placed adjacent to the common side yard property line between adjoining residential properties, so the CF minimized visual impacts equitably among adjacent properties. If this is an aesthetic concern, pole replacements and attachments should be excepted from this requirement. Sec. 23-176 Design standards, subsection (c)(1)a Vault standards. No vault shall be larger than seventeen (17) cubic feet in volume. The interior dimensions of any vault approved for installation under this Article shall include sufficient space to accommodate installation of an electric meter, subject to approval by Fort Collins Utilities. All vaults shall at a minimum meet ANSI/SCTE 77, Tier 15 standards for non-deliberate traffic applications. Vault standards. No vault shall be larger than seventeen (17) cubic feet in volume. The interior dimensions of any vault approved for installation under this Article. shall include sufficient space to accommodate installation of an electric meter, subject to approval by Fort Collins Utilities. All vaults shall at a minimum meet ANSI/SCTE 77, Tier 15 standards for non-deliberate traffic applications. Not consistent with HB17-1193 state law that excepts specific equipment from the 17 cubic feet dimensional standard and states the following: “The following associated equipment Sec. 23-176(7) Anticipated redevelopment. If the built environment is anticipated to change significantly during the usable life of a CF, such as within an urban renewal district, the CF shall be compatible with the anticipated future built environment. Anticipated redevelopment. If the built environment is anticipated to change significantly during the usable life of a CF, such as within an urban renewal district or other impending development within __ number of years within the time the application is filed, the CF shall be compatible with such the anticipated future developmentbuilt environment. This is an onerous provision considering the usable life of a facility could be as long as 25 or 30 years. This is ambiguous and should be conditioned with language that makes it applicable in an objective and non-speculative way. may be located outside of the primary equipment enclosure and, if so located, is not included in the calculation of equipment volume: Electric meter, concealment, telecommunications demarcation box, ground-based enclosures, back- up power systems, grounding equipment, power transfer switch, and cut-off switch.” §29-27-402(B). Inconsistent with state law to mandate that the vault be limited to 17 cubic with sufficient room for electric meter. Sec. 23-176(5)b Requirement to install landscaping for CF ground equipment Supplemental landscaping will be a condition of approval for any CF requiring visible ground-mounted equipment not internal to the support structure or in a below-grade vault. Consider removing the requirement to landscape small cells. This would be an onerous requirement that would hinder or prevent deployment Landscaping is not practical for small cells, which have minimal visual impact and the subjective criteria increases the likelihood that the standard will not be consistently applied. government-owned CF installed upon the declaration of a state of emergency by the federal, state or local government, or a written determination of public necessity by the City Maintaining parity with respect to users of the right-of-way. We understand the intent is that this only applies in the event of an emergency or written determination of public necessity but as written, that intent is not clear. We have reorganized the sentence so that it is clear the entire provision is modified by the language requiring a state of emergency or a determination of public necessity. Sec. 23-174 (c) Location standards [600’ separation requirement] No freestanding CF shall be placed within six hundred (600) feet of another freestanding CF in a public highway, unless otherwise set forth in a master license agreement. This separation requirement does not apply to attachments made to existing CFs. The Engineer may modify this requirement if the applicant demonstrates the need for the CF and cannot otherwise reasonably satisfy this requirement, or as No freestanding CF shall be placed within six hundred (600) feet of another freestanding CF in a public highway except as necessary for reasons of technical feasibility or, unless otherwise set forth in a master license agreement. This separation requirement does not apply to attachments made to existing CFs or replacement poles. The Engineer may modify this requirement if the applicant demonstrates the need for the CF and cannot otherwise reasonably satisfy A mandatory 600 foot separation requirement may impede the ability of antennas to communicate with each other. Any proximity restrictions should be tied to police powers and not enforceable where it interferes with the ability to provide service. Since replacement poles do not constitute new vertical infrastructure, the basis of the concern here, they should be Cir. 2010)(Where section 332 preserves local authority over zoning and land use matters, “this authority does not extend to technical and operational matters, over which the FCC and the federal government have exclusive authority.”) See also, Southwestern Bell Wireless, Inc. v Johnson County Board of County Commissioners, 199 F.3d 1185 (10th Cir. 1999)(County’s interference regulation was found to be void as it was preempted by federal law.)