Bethany looks to regulate wireless antenna installation

It’s a topic with interest spreading across the state and the nation: How will municipalities deal with the coming proliferation of new wireless technology, including small-cell and 5G antennas. Will they turn streets into forests of antenna poles, or will municipalities have enough control to tailor installation styles to their liking?

In Fenwick Island, officials have aimed to open to the town to more antennas, seeking to shore up spotty service for both consumers and first-responders.

In Bethany Beach, the discussion is now focusing on exactly what the Town can require of wireless providers when they come in to install their new technology, including the aesthetics of the devices.

At their workshop on April 16, the Bethany Beach Town Council heard from Christina Thompson of the law firm Connolly Gallagher, who was asked by the Town to brief the council on wireless antennas and the current status of related regulatory law, as well as to draft a set of regulations the Town could implement.

Thompson began her report by emphasizing to the council that federal and state law are evolving, but that already some federal regulations will limit exactly how much they can regulate the installation of wireless antennas in their town.

There already exists a “federal overlay” of FCC rules and regulations that have been designed to “give companies as much leeway as possible to provide service,” she noted, while they also have been aimed at not curtailing the right of the municipality to control location of the antennas and other aspects, such as aesthetics.

The federal regulations have been primarily targeted, Thompson said, at setting timeframes for municipalities to address and approve applications from wireless companies.

“The wireless companies were submitting their applications, and the municipalities weren’t acting or weren’t acting in a timely manner,” she explained.

The result is a federally mandated set of timeframes for processing such applications, which is reduced when an application deals with a support structure already approved for such use, including by another provider.

The FCC regulations may limit what the Town can say about approving the antenna locations and may result in a very short time for response, Thompson said. They also put a high priority on precedent in approving such installations.

“You don’t have the right to say no based on the fact that there’s one already on it,” she said of support structures, which can be simple poles, buildings or tower structures — anything that can hold an antenna, even if it wasn’t originally intended for that purpose, including streetlight poles, such as the one the Town owns inside its borders.

 A Pandora’s Box

 A given support structure can have multiple providers’ equipment on it, but each provider would have a separate antenna, she explained. That’s called “co-location,” and while it might reduce the number of poles needed in a given location, it can raise other concerns.

“In California, they had instances where the pole was up and one company puts equipment on it, and it looks nice and neat, but then…”

The regulations don’t automatically make any possible support structure an “eligible support structure,” so a utility pole may be able to host an antenna, but until an antenna is approved to go on it, it isn’t automatically eligible for additional antennas.

But once a structure is approved for such use, the municipality’s ability to say no to further equipment on the structure is severely limited.

“You can have an application from AT&T for a small-cell on a pole, and you can have an agreement worked out. … Then, if Verizon asks, federal law controls what you can look at and the time you have to do it, the safety issues that can be reviewed.” So, if the Town didn’t start off the initial approval process for use of a given structure — or type of structure — by examining those issues in the first place, it could lose its right to do so entirely.

“Whatever you require the first person to do, that’s all you can ask another person to do after that,” she explained to the council. “If you ask the first one to paint it black, you may not be able to do any more going forward” in terms of requiring camouflaging of the devices.

“You have to look down the line. If you allow it, and 15 more come on down the road…”

The result of that concern is a lengthy draft of policy for the Town to approve wireless antenna installation — what Thompson said she believed was “one of the most comprehensive” legislation yet drafted in the state, owing to Bethany Beach officials’ desires to control the aesthetics and other elements of the installations.

Among the issues to be considered are camouflaging or “stealthing” — the ability to look at the installation with the naked eye and not have it be obvious that an antenna is one. Stealthing tech would allow for replacement of a light pole, for example, where the wiring for the antenna device would be concealed inside. Thompson said she believes the Town can require companies to use stealthing for their installations.

However, she noted, stealthing generally precludes a structure from being used for more than one antenna and thus by more than one wireless provider. Therefore, it can lead to a greater number of poles overall, even if those structures are less obtrusive in their use with antennas.

 Overlapping regulations murky

 Complicating the regulations on the municipal level are remaining questions about how municipal and state regulation interacts, including how DelDOT’s oversight of roadside structures may override, overlap or otherwise impact municipal regulation efforts.

“It’s very political right now,” she said.

“Bethany wants to take a stronger position, based on streetscaping and the environment of Bethany,” Thompson emphasized. “Taking one town’s ordinance isn’t necessarily going to work. Fenwick’s may be different.”

Balancing co-location, stealthing and pole placement/proximity is one aspect of the Town’s discussion as it works to draft the new regulations. But they still have to be mindful of the federal regulations that keep the municipalities in check.

“You have to determine the priority of placement. You can do a lot with what you want it to look like, aesthetically, or where you want them placed” in terms of distance, she said, “but the federal mandate is that the municipality can’t act in manner that prevents them from providing their service, such as requiring 100 feet between them when they need 50 — or all utilities underground, requiring that. That would prohibit them from working.”

“If allow them on one, you probably would open all the other posts to be used by other providers,” Thompson cautioned.

“You will open the Pandora’s Box — there’s no choice in that,” Town Manager Cliff Graviet warned of the inevitable flood of applications.

“The State has four applications from carriers now,” Thompson noted. “DelDOT has a system gateway for the applications, and once they figure out what’s needed, there’s a ‘button’ and there’s hundreds of applications behind them. That’s why it’s important that the Town be ready.”

Already the Town has been approached by Verizon with a plan to use a pole in front of town hall. Vice-Mayor Lew Killmer said the tone of the notification from Verizon to the Town had bothered him.

“The problem is the first contact was basically poking us in the eye. ‘We’re putting it out in front of town hall, and you can’t do anything about it.’”

Thompson said that, contrary to the tone of that letter, the Town’s hands are not tied, but she said DelDOT officials have been struggling over how to deal with rights-of-way and who owns them.

“DelDOT is saying, if they’re coming to [DelDOT] and the location is adjacent to state-maintained road, they’ll do the permit, but they’ll do it based on safety, not aesthetics,” Thompson noted. “They’re required to answer the question of the Town’s response,” she added, but there’s no requirement for them to follow the Town’s wishes.”

In that case, she said, there’s “no good answer, other than the towns should get together and put pressure on DelDOT” to consider their wishes.

In the case of the pole in front of town hall, she said, Verizon came to the Town for historic-district approval, and federal law requires they talk to the Town about that. Meanwhile, it’s still unclear, she said, how much say the Town would have in an application coming to DelDOT.

Graviet also noted that the Town has to consider in developing its regulations technology that may not even exist today.

“I don’t think we would be sitting here if we’re just talking about cell service as it exists today,” he said, noting that “5G will involve massive, intensive placement of antennas all over.”

And, in the end, Thompson said, “It may come down that the federal government says, ‘It’s all in our purview and the municipality doesn’t have right to control it.”

Thompson said the draft regulations are also intended to address abandonment of equipment in case of obsolescence, especially since it can be more efficient for a company to leave the outdated equipment in place instead of taking it out. “So we want to ensure it requires removal.”

 Process would aim to streamline timeframes

 As drafted, much of the application and approval process would be handled in the town manager’s office, with input from Town staff. The council would be asked to make decisions on initial installation requests and Graviet would able to approve applications for additional equipment on structures already approved by the council for a first provider. That’s intended to address what could be a very short required timeframe for response from the Town.

Appeals of Graviet’s decisions would go to the council.

Council members noted the potential to prohibit installations, for example, within 75 feet of an area where utilities are all underground — a regulation Thompson cautioned may need to be reworked to address the need to have a pole but could prohibit other equipment, or require it be underground or located outside of such an area, where possible.

Killmer also noted draft language prohibiting installation in a flood plain, though 85 percent of the town is in a flood plain. Thompson said she’d written that into the draft knowing it would probably be ignored in a legal ruling or that the Town might, in the end, adopt different requirements.

The draft also requires that there are no guidewires used for the structures.

“What Verizon sent us for the pole out front is no guidewires, but they are planning to put the pole right next to another one,” Graviet noted.

Thompson said other municipalities have required that any private property owner asking to host a structure be required to show the Town that they have a contract in place with the wireless provider, to prevent people from speculating on income potential by constructing a support structure that could be used in the future.

“We just want to have some say in this,” Killmer said.

“While you want to allow it, you still want to have control over what they look like,” Thompson added.

The council was set to introduce the draft of the regulations at their April 20 council meeting, at 2 p.m. at town hall. However, Thompson, Graviet and the council all acknowledged that it’s unlikely the “first reading” on the meeting’s agenda would actually be an official first reading, since that would start a clock on completing a final version for approval and adoption.

Instead, the council is expected to review the draft and offer thoughts and suggestions at Friday’s council meeting, leading to further refinement of the draft for a possible future first reading and later adoption.

By M. Patricia Titus
Managing Editor