To add suggestions and input about the proposed regulations (see below), please use this comment form to provide your comments.  This form will be available through August 24 after which a new draft will be available for public review and comment. 

Comment Form for Wireless Regulations 

Upcoming Schedule

Wednesday, August 21              BoCC/ PC Work Session for Wireless Communications Facilities Regulations

                                                           Time: 4:30 p.m. 

                                                           Location: 200 W. Oak St., Fort Collins (Hearing Room)   

                                                            Wireless Communications Facilities Memo for Aug 21, 2019 Work Session

Wednesday, September 11       Planning Commission Hearing for Wireless Communications Facilities Regulations

                                                           Time: 6:30 p.m. 

                                                           Location: 200 W. Oak St., Fort Collins (Hearing Room)   

Monday, October 7                     Board of County Commissioners Hearing for Wireless Communications Facilities Regulations 

                                                           Time: 6:30 p.m. 

                                                           Location: 200 W. Oak St., Fort Collins (Hearing Room)   

Wireless Communications Facilities Proposed Regulations

Purpose of the Work Session

At the June 19, 2019 hearing, the Planning Commission tabled the Wireless Communications Facilities (WCFs) regulations. The commission requested staff to schedule a joint work session with the Board of County Commissioners and to work with a consultant to clarify local authority for the wireless land use regulations, address relevant legal cases, and address other comments received from community members. At the work session, staff and consultant will present the draft regulations and changes incorporated since June and respond to requests and questions.

Background

Since earlier this year, the county has been working on revising the existing Commercial Mobile Radio Service (CMRS) Facility Standards in Section 16 of the Land Use Code, which have not been updated in over ten years. The update to the land use regulations (which will repeal and replace the current chapter) will:

  • Carry forward the original intent of allowing WCFs in the county to meet our growing communication needs while minimizing adverse impacts,
  • Bring local standards into compliance with federal and state requirements (including timing of review and to allow and provide standards for small cell facilities in rights-of- way),
  • Address new technology and its implications for land use, and
  • Improve design and compatibility of such facilities and notification during the review process.

Public Process to Develop Standards

During this project, staff has conducted prior work sessions to review preliminary concepts and drafts of the standards with:

  • The Board of County Commissioners (April 15, 2019),
  • The Planning Commission (April 17, 2019)
  • A joint work session (May 8, 2019).

Additionally, staff conducted a public open house on May 8, 2019 to gather community feedback and answer questions as well as hosted an online questionnaire from May 8 to May 22, 2109.Approximately 20 people attended the open house and 22 people responded online. Staff shared the input from those events with the boards in previous packets along with additional written correspondence received from community members prior to the June hearing date.

Over the past few months, staff has had assistance from attorneys Gabrielle Daley and Ken Fellman stemming from the county’s membership in the nonprofit Colorado Communications and Utility Alliance (CCUA) which provided access to Mr. Fellman for legal advice related to wireless facilities.1 Since the hearing was tabled in June, Mr. Fellman and Ms. Daley have reviewed written public input provided by staff and the June draft regulations and will be prepared to clarify local authority and the current legal framework around wireless facilities and assist with questions. Staff and consultant have been researching other community examples and will discuss them.

Current Legal/Regulatory Framework for the Proposed Regulations

As noted above, part of the reason for updating the regulations is because they are out of compliance with state and federal requirements, as described below.

In 2014, the Federal Communications Commission (FCC) adopted rules under a 2012 federal statute. The statute and the FCC rules require that any existing wireless facility seeking to be modified, that qualifies as an “eligible facilities request” must get regulatory approval from the County, and if the County does not approve the application within 60 days it is “deemed granted” by federal law. The FCC rules adopt multiple definitions of key terms related to wireless facilities, and the draft code amendments incorporate these new definitions and rules.

In 2018, Colorado HB 17-1193, the “Small Cell Law” made small cell facilities a use by right, subject to local police powers, and it applies the state “shot clock” for wireless facilities, which allows for more review time than the federal shot clock standards.

Additionally, in September 2018, the Federal Communications Commission (FCC) issued a small cell order which is being appealed in federal court. Hundreds of local governments nationally are parties to the appeal, including the CCUA, of which the county is a member. There are some conflicts between the FCC rule and state law, including the shot clock provisions, definitions for small cell facilities, fees that can be charged, and the scope of local police power, which Mr. Fellman can explain further at the session.

There is also much interest and community comment on health-related issues and radio frequency (RF) emissions related to wireless facilities. The longstanding 1996 Telecommunications Act, 47 USC 332(c)(7)(b)(iv) restricts any state or local regulation of wireless facilities based on environmental (including health) effects of radio frequency emission, preempting local authority. The Federal Communications Commission (FCC) has sole federal

1 CCUA is a government trade association that represents and advocates for its member municipalities, counties, school districts and regional entities in a wide variety of telecom, cable, broadband and utility issues. It works closely with CCI and CML and is funded by member dues and an annual conference. CCUA is also the Colorado chapter of the National Association of Telecommunications Officers and Advisors (NATOA).

authority to set health emission standards, and case law has supported the preemption. A small number of communities in the United States appear to have implemented regulations that contradict that law, creating restrictions that may violate federal law and be subject to legal challenge.  Mr. Fellman will be able to further discuss the legal issues during the work session as well as options the county may be able to pursue. Locally, cities and counties can require telecommunication operators to certify that sites will comply with FCC standards, which is included in the draft regulations. Additionally, the county could undertake testing, but authority allowing the county to require an applicant to conduct post-installation testing is less clear.

To further complicate matters, there are gaps in the research about health effects. The FCC has had a proceeding open for the past six-plus years to update their regulations on RF emissions, and just last week announced that in an upcoming meeting they will update the regulations. However, the FCC also indicated that the updated rules will not make any findings that 5G emissions should be subject to any rules that differ from the current emissions rules related to other wireless facilities RF emissions. Mr. Fellman may have a more current update on the FCC’s proposed actions by the time of our meeting.

Technology Changes and Questions about 5G

The technology around wireless facilities is fast-changing, and that creates questions and confusion about the differences between 4G, 5G, and small cell technology. To be clear, the county’s proposed regulations are not technology-specific (i.e., 4G versus 5G); they address the type of base station or tower and facilities that will be used to deploy the various wireless technologies. Currently, telecommunication providers are not proposing 5G in unincorporated Larimer County (nor even in denser cities in the county such as Fort Collins). Some cities, including Denver, are included in the plans for some providers’ initial 5G roll out over the next couple of years. According to Andrew Boedigheimer-Thiessen, Institute for Telecom Sciences, in a recent panel discussion, 5G application first will occur in dense urban areas or buildings that host large crowds, such as stadiums, because of its cost and need for line-of-sight locating.

Overview of Proposed Regulations and What Changed in the Draft Since June

The proposed regulations are in Attachment A, and staff has made modifications since the June draft to provide better organization, clarification, editorial corrections, and a few additional provisions. A summary of major changes is noted in  Attachment B

As they did in June, the proposed standards address priority for collocating facilities, include compatibility and concealing standards, and address a number of issues for towers and alternative tower structures such as height, setbacks from residential properties, new camouflage/concealment language to achieve design in context with surroundings, as well as addressing lighting, noise and landscaping.

The City of Fort Collins provided comments and suggest that Growth Management Areas could be treated differently because of proximity to denser residential areas, such as: requiring concealed towers, limiting height to 90 feet, not exceeding surrounding environment and structures by 10-15 feet, and including greater landscaping and screening requirements. These can be topics for discussion at the work session.

Additionally, the proposed standards now provide guidance on small cell facilities in the right of way, which the old standards do not address. The standards address spacing, minimizing “clutter” and obstructions in the right of way, heights, and other topics, with more questions noted below for further discussion.

Proposed Review Procedures

The review procedures encourage smaller, more compatible facilities partly by having lengthier reviews with public hearings for the larger and potentially less compatible types of facilities, depending on the zoning districts. The regulations generally prohibit new towers in residentially zoned areas.

 

Table 16.B – Review Procedures and Requirements for Different Facility Types

Procedure

Applies to

Notice Given

Referral

Type of Decision

Appeal to

Time- frame

Site Plan (SP) – Sec.

6.0 and 6.1 of Code

  • See Table 16 A for zoning districts and tower types
  • Eligible facilities requests
  • notice of administrative decision sent to abutting property owners following

administrative decision

  • Sent to referral agencies within 14 days
  • Notice sent to cities if in a GMA

Administrative decision

BCC

60 days

Public Site Plan (PSP)

– Sec. 6.2

of Code

  • See Table 16 A for zoning districts and tower types
  • notice sent to neighboring properties within 500 feet of the property
  • Sent to referral agencies within 14 days
  • Notice sent to cities if in a GMA

Administrative decision but may be approved by

Board of County Commissioners.

BCC

90 days

Minor Special Review (MS) – Sec.

4.5 of Code

  • See Table 16 A for zoning districts and tower types
  • notice sent to neighboring properties within 500 feet of the property
  • Sent to referral agencies within 14 days
  • Notice sent to cities if in a GMA

BCC approval including a public hearing

 

90 days

Special Review (SR) – Sec.

4.5 of Code

  • See Table 16 A for zoning districts and tower types
  • notice sent to neighboring properties within

500 feet of the property

  • Sent to referral agencies within 14 days
  • Notice sent to cities if in a GMA

Two public hearings: PC recommendatio n and BCC approval

 

150 days

Shot Clock Requirements

The proposed regulations also address state legislation pertaining to timely review of wireless facilities, which is referred to as the “shot clock.” Provisions for “tolling the shot clock” (i.e., pausing or stopping the review) for incomplete applications are also included. These review time frames have been set by the state statute, but the county is able to stop the clock for incomplete applications, if it provides notice of the deficiency to the applicant within a specific timeframe.

Furthermore, the proposed regulations incorporate the 2014 FCC regulations that require “eligible facilities requests” for modifications on existing wireless sites to be processed even more quickly. The proposed regulations will give the county staff the information we need at the time of application to quickly determine whether an application qualifies as an eligible facilities request, which, per federal law, must be approved.

Shot clock requirements for final action on complete applications are as follows:

  • 150 days for new structures.
  • 90 days for collocated wireless communication facilities that do not qualify as an eligible facilities request.
  • 90 days for small cell facilities (collocated or new).
  • 60 days for eligible facilities requests.

Note that the shot clock under state law is somewhat different than the shot clocks that the FCC found to be reasonable in its 2018 rules (which again, are currently being challenged in court). As Mr. Fellman can explain, many Colorado communities have decided to ensure that their regulations are consistent with both state and federal law, but when they diverge, such as with shot clocks, the state law is followed. To date we are not aware of any challenges to these decisions to follow the state law.

Fees

Fees must be set for these applications based on the type of review process. In addition to the existing application types, Site Plan, Public Site Plan, Minor Special Review, and Special Review, an additional fee for the new category of Eligible Facilities Requests must be set. At the Board of County Commissioners hearing proposed for October, staff will present an updated fee schedule, which will include fees for each of the process types identified in the regulations.

Master License Agreement (MLA)

The 2017 state statute requires local governments to permit small cell facilities in public rights-of- way, this use is subject to local police power, so each company will need specific authorization for these installations. Staff is proposing that the county follow the process that is being used by many other local governments in Colorado, which is to grant a master license agreement (MLA), which generally authorizes the use of the rights-of-way, and contains provisions that the county will want to cover every individual site. These include matters such as insurance, indemnification, compliance with local laws, relocation obligations, and the county’s preferences of how sites should be located.  This identification of preferences would include the preference to locate small cells on existing or replacement vertical infrastructure already in the streets, and to only deploy new, stand-alone small cell sites if other options are not available. The MLA would also have an exhibit which would be the agreed upon individual site license form, to be used when a company applies for a specific site. These site licenses would include drawings and related information ensuring compatibility with the county’s design standards. Each specific location would still be individually evaluated and given a right-of-way permit.  An MLA template is attached ( Attachment C)as an example of the kind of contents such an agreement includes. The draft will need to be updated following any final revisions to Chapter 16 in the Land Use Code. To date, no telecommunication providers have entered an agreement with the county using such a template.