With a deadline looming and the Federal Communications Commission watching, time appears to be running out for the Montgomery County Council as they deliberate over a bill to regulate small cell antennas.
The small-cell antennas, which telecommunication companies argue are needed to accommodate expanding data service for cellphones and other devices, have been a contentious issue for residents over the past two years.
Now, as the County Council considers a zoning text amendment that would facilitate the deployment of small-cell antennas on utility poles in residential neighborhoods, a deadline approaches and the federal government watches.
During a meeting on Tuesday, the members of the County Council debated what to do about the small-cell antennas.
For the members of the Council, the debate is not about whether to allow or prevent the antennas, or small-cell towers, as they are sometimes called, but when and how. Since, it’s an election year, and there will be at least four new members of the County Council, they have until Oct. 31 to make zoning changes.
On Tuesday, the Council debated and eventually voted not to table the ZTA and leave it to the future Council to deal with, sometime in early 2019. Instead, the ZTA will go to a vote in two weeks, while Council members consider adding amendments to it.
Council members Sidney Katz (D-3), Tom Hucker (D-5) and Marc Elrich (D-at large), voted to table the ZTA, while Nancy Floreen (D-at large), George Leventhal (D-at large), Hans Riemer (D-at large), Roger Berliner (D-1), Craig Rice (D-2) and Nancy Navarro (D-4) voted against tabling it.
Leventhal said it would be irresponsible to delay the issue to next year for the next Council to deal with.
“I will not vote to postpone this agonizingly difficult vote to those distinguished elected officials, four of whom will be brand-new and who have not encountered this issue at all,” Levnethal said.
For some members of the Council, passing the ZTA as soon as possible is the best defense the County has against potential preemption from the Federal Communications Commission or the state. In September, the FCC approved new regulations limiting the fees and time frame – or shot clock – a local jurisdiction can place on telecommunication companies that want to install small-cell antennas. It is a decision the County is considering taking legal action against.
For Riemer and others on the Council, the best argument the County can make against the FCC is a ZTA that facilitates the deployment of the small-cell antennas. The ZTA, which many residents fiercely opposed at the Council’s September public hearing, would show the courts and the federal government that the County will play ball and not prevent the small-cell antennas. This effect, Riemer said he hoped would allow the County to regulate the antennas instead of the federal government.
“It’s the future of our control over our right-of-way and our ability to charge the industry a fair price for the permitting work that we would have to do for their equipment,” Riemer said. “Do you want to give away our right-of-way? Do we want to let the industry walk all over us? That is also what is at stake.”
Leventhal said that the Council is limited in how they can craft the ZTA and how many feet they can require the small-cell antennas to be from homes, because federal law prohibits local jurisdictions from preventing the antennas from being deployed. While local jurisdictions are allowed to regulate the antennas, the FCC can preempt local laws through regulations.
If the County’s regulations don’t meet federal laws, telecommunication companies could sue to get their small-cell antennas placed.
“I don’t think its responsible to do something that we know invites a lawsuit that we will lose,” Leventhal said. “I don’t think that’s responsible.”
Katz, who proposed tabling the ZTA, said the County should not pass the ZTA to follow a timeline set by the FCC. Katz insisted that the County take several “charrettes,” or an intense public process in which stakeholders could come to some sort of compromise on the issue.
Katz said he rather have the next Council take up the issue in early January, so residents and other members of the community could have more of a say on how the Council finally decides to enact the ZTA.
“I believe if we can have everyone listening, everyone sitting at the same table and having a good discussion, I think this would be beneficial to everyone,” Katz said.