To: Honorable Mayor and Members of Town Council
From: Robert J. Slentz, Town Attorney
Title
Discussion/Direction: Small Cell Towers in Castle Rock
Body
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Executive Summary
Wireless communications technology is evolving rapidly, and demand for bandwidth as wireless usage grows is increasing even faster. There exists industry interest in bringing one of the latest evolutions, known as “small cell” technology, to Castle Rock. This is not unique to Castle Rock - it is happening throughout Colorado and across the country. No formal applications have been submitted, but providers have been in discussions with staff. Accordingly, staff has been reviewing how the Town Code applies to small cell networks. Staff is also monitoring State legislation in this area and a pending Federal Communications Commission proceeding, both of which are likely to have some impact on local authority.
The purpose of this memo is to provide Council an overview of “small cell” issues relevant to Castle Rock, and to request authorization to retain special legal counsel to assist with a review and possible amendments to the Town Code related to the latest wireless communication technology.
Discussion
Small cells increase wireless network capacity and can benefit both high-use and poor coverage areas. A small cell facility typically consists of one or two antennas, two radios, a power meter and minimal supporting equipment placed in the right of way, either on or in a streetlight (which in Castle Rock mostly are owned by IREA), or on a traffic signal. When light poles or traffic signals are not available, providers typically propose erecting standalone poles on or in which small cell facilities can be placed.
As part of a broader strategy to improve data coverage and possibly reduce the need for more traditional macro cell structures, the Town has already started a review of its processes and regulations related to wireless communication facilities. The use of small cell technology requires a greater number of wireless facility sites than with traditional cell towers. Because Town staff anticipates receiving small cell applications in the near future, the Town will need to review its Code relative to small cell facilities including addressing the processing of small cell applications; setting any desired priorities on where the facilities are located; and establishing any design standards, including height limits, as Council may deem appropriate.
Federal regulations and State statutes strongly influence how communities may regulate personal wireless service facilities, including small cell networks in the rights of way. Any telecommunications or broadband service provider has a right to place their equipment within rights of way, subject to local police power. The Town’s regulations should be updated to both promote broadband deployment, while protecting public safety and Town infrastructure and preserving community character by ensuring the most appropriate siting of these facilities.
Because this is an emerging area, staff believes it appropriate to contract with an expert in this field for assistance in revising the Town’s regulations. Denver law firm Kissinger & Fellman possesses expertise in this area and has assisted the Town in past telecommunications matters. The firm has estimated it will take 19 to 30 hours, at a rate of $225/hour, to draft Town Code revisions for Council to consider. The Town would not have to directly pay for all of the hours; it receives annually up to eight hours of legal services from Kissinger & Fellman through its membership in the Colorado Communications and Utility Alliance. The 2017 hours are available to be applied to this project, bringing the total potential cost for this work to $4,950. Staff believes this is a reasonable expense for the expertise the firm brings to bear in this area.
Related to this discussion is a bill (H.B. 17-1193) that was signed by the House on April 11, 2017. Generally, the bill provides for an “expedited permitting process” for small cell facilities and networks. It permits the use by right of small cell infrastructure in any zone - specifically, on light poles and traffic signals, subject to zoning district limitations. And, it requires local governments to process a single or consolidated application for a small cell facility within 90 days after receiving a completed application. The bill also limits the fee for attachment of small cell facilities to government-owned infrastructure in the right of way to any amounts that are set by the Federal Communications Commission. While the bill creates some mandates upon local government, it generally will not impact local permitting, safety and zoning restrictions that may be placed on siting.
According to the Colorado Municipal League, H.B. 17-1193 is likely to be passed and signed by the Governor, and would take effect July 1 if it is. This will affect Castle Rock, as it is anticipated that the following applications will be submitted in the near future:
• A multiphase network by Verizon, the first phase of which would include 60 facilities
• An additional facility by Verizon in the Promenade, independent of the above network
• Six facilities by Mobilitie, which partners with Sprint - staff already has processed a Preliminary Project Application for Mobilitie
It should also be noted that some metro area cities, including Arvada, Federal Heights and Edgewater, already have updated their codes to better address these new wireless technologies. Others are undergoing updates similar to what staff is recommending. Staff and Kissinger & Fellman would look to these other communities for examples of how best to address the latest wireless communication technology within Town Code.
Budget Impact
The recommended use of outside legal counsel would cost up to $4,950, as detailed in this memo. This expense would be accommodated within existing 2017 appropriations.
Staff Recommendation
Staff recommends retaining Kissinger & Fellman to assist in drafting updated Town personal wireless facility regulations for consideration by Council.
Proposed Motion
“I move to direct staff to retain Kissinger & Fellman to assist the Town in making any necessary amendments to the Town’s Code related to wireless facility processes and regulations for consideration by Council.”