New ordinance to control wireless in right of way

November 30, 2018

After unanimously passing a resolution opposing two state Senate bills which would severely limit municipal authority regarding the location, size, height, and approval and fees for poles, antennas and other equipment for wireless telecommunication and cable/video service facilities in public road rights-of-way at an October meeting, the Bloomfield Township Board of Trustees took a further step at their meeting on Monday, November 26, unanimously approving an ordinance amendment to regulate the addition of small cell systems in the township as well as a resolution to establish the terms of franchise agreements for distributed antenna systems (DAS) and/or small cell networks.

 

Two bills, Senate Bill (SB) 637 and SB 894, were passed in late May 2018, and were passed by the state House on Wednesday, November 28, to “give the telecom carriers carte blanche to operate in the rights of way without any approvals of municipalities. They want this to upgrade their DOS, their new 5G, systems. It would allow telephone poles that communicate every 400 to 500 feet,” supervisor Leo Savoie stated at the October 22 trustees meeting. 

 

They are expected to be signed by Governor Rick Snyder into law, although Savoie said they are hoping to meet with the governor and persuade him against it.

 

According to the Michigan legislature, Senate Bill 637 would create the Small Wireless Communications Facilities Deployment Act, and Senate Bill 894 would amend the Michigan Zoning Enabling Act to subject zoning ordinances to the proposed new act. Senate Bill 637 would allow “wireless services providers and wireless infrastructure providers access to the public rights-of-way and the ability to attach to poles and structures in the public rights-of-way to enhance their networks and provide next generation services.” Further, it would prohibit an authority, such as a municipality, “from prohibiting, regulating, or charging for the collections of small cell wireless facilities.”

 

At the meeting on Monday, November 26, township telecommunications counsel Michael Watza of Kitch Drutchas said SB 637 had been created “at the behest of AT&T.” 

 

He said concerns about franchise agreements, “if 637 passes, there is some language that grandfathers it. But SB 637 does two things. You have this $3 million annual problem (of potential loss of revenue) and you're not alone,” Watza said. “But you're one of the singular communities who recognize the problem, mostly because of (township attorney) Bill Hampton.

 

“So, why the fuss over 'small' cells in your right of way? AT&T, Sprint, Verizon have all told their shareholders they don't want to pay rent anymore for rights of way, and will give you $20 a year per installation instead,” Watza said. 

 

He noted the telecommunications companies have enough influence with Congress and state legislatures to pass legislation permitting that. 

 

“They actually refer to their cell towers now as 'pizza box size' – they're big, guys,” he said. “The industry thinks that's great. In the bill language, it states they are 31-plus cubic feet. That happens to be the size of a Samsung commercial fridge – and you can have four of these with different providers, each 10-feet up. It's in the language of the bill.”

 

He said the telecom and cable companies have “teamed up with the Federal Communications Commission (FCC) and some states to seize all local rights of ways.”

 

In Michigan, SB 637 was passed by the state Senate last spring, “and the industry has taken pause,” Watza said. “They're not willing to compromise because 'we're going to get our way.'”

 

He noted that communities like Bloomfield Township have had franchise fee agreements in place for 30 or 40 years, “until AT&T came around and said, 'we don't want to do that. It triggered a fight with the FCC. When effective, it will strip off all value of your franchise fees. Now, they'll look at your PEG (public, educational and government) fees – and that could be $1 million a channel. That's a fee you've been receiving for 30 years or more. That's in your budget. That happened two months ago – and that happened across the state.

 

“Across the country, communities are losing $3 billion in franchise fees,” Watza asserted.

 

“We want the say of where the equipment is put,” Savoie said. “We've become a high tech state, but they're not putting it all over the state – they're putting it in Bloomfield Township, Bloomfield Hills, Birmingham, Rochester Hills. We want to say, 'You don't get to put it in the intersection of Hupp Cross and Bradway.'

 

“Maybe we can put it on schools instead of in neighborhoods,” Savoie continued. “But, if you give them carte blanche, they'll do it in the most expedient, cost effective way.”

 

Savoie also noted that some experts have noted there can be adverse health effects to cellular radiation from the equipment.

 

“There are a number of medical professionals who way there are dangers from the radio waves from these towers. Do we want them by bus stops above children?” Savoie asked.

 

“Do you want engineers determining safety or medical professionals,” asked Watza. “They've determined that the radiation can cause tumors. How can you call a 31-foot box a pizza box? Most people will not read the bill.”

 

“They're (AT&T) doing everything they can to thwart individual communities,” Savoie said. 

 

Trustees voted 6-0, with Dave Buckley absent, to approve both the ordinance amendment to allow the township to regulate the addition of small cell systems in the township as well as a resolution to establish the terms of franchise agreements for distributed antenna systems (DAS) and/or small cell networks.

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