(April 10, 2015) Following a public hearing Monday night, the Town of Ocean City will proceed with an agreement to allow a wireless data utility to be established in the resort.
Not that there were really other options, given both the relative lack of turnout at the hearing, and because the city would need an extremely compelling legal reason to prevent a federally-regulated utility from serving customers.
“Even though we have to have very specific reasons to turn them down under federal law, they don’t get to come in and use city facilities for free,” City Solicitor Guy Ayres advised the council.
The city had been approached by Crown Castle, a company that provides wireless infrastructure for the nation’s four major cellular carriers — Verizon, Sprint, AT&T and T-Mobile.
Crown Castle is not looking to build any kind of hubs — large cell towers — in the resort. Rather, the company wants to install a Distributed Antenna System [DAS], which consists of a number of short-range antennas connected via fiber-optic cable back to larger tower sites.
These nodes provide greater data capacity to phones within roughly a half-mile — as opposed to the phone communicating directly with a hub tower that could be much farther away.
The nodes would appear as metal panels that would be installed atop utility poles. Crown Castle already has access to poles owned by Delmarva Power and Verizon via a shared-use agreement.
“We use existing Delmarva Power and Verizon street light poles,” said Crown Castle representative Rebecca Hunter. “We have, in cases where it makes more sense, provided our own utility poles where that infrastructure may not exist.”
In this case, company would also like to establish an agreement with the city, giving Crown Castle the ability to install nodes on city-owned light poles, buildings, and other infrastructure. The total number of installations is currently planned at 93 DAS nodes.
Predictably, there are major concerns when it comes to the installation of a DAS system — in this case they are aesthetics, safety and financing.
Council President Lloyd Martin was the first to note that, although Crown Castle seems to give the nodes a neutral appearance, “they’re not very attractive.”
“I wouldn’t be crazy about seeing this on every pole in town,” Martin said.
Secondly, there is the concern of electromagnetic frequency radiation from the nodes, although this is a risk associated with nearly any electronic device. So far, no scientific studies have been able to quantify the amount of risk.
“My concern is if they’re going in residential neighborhoods,” said Councilman Tony DeLuca. “No one really knows the long-term effect. There’s no definitive answer. But the closer you are to the node, the more dangerous it might be.”
However, Crown Castle engineer JD McCloskey noted that the DAS system doesn’t pose an increase in risk beyond what most people are already exposed to by their own cell phones.
“These things we have in our pockets put out the same frequency at a much higher output,” McCloskey said. “The farther you are from an antenna, the more [your phone] has to power up to send a signal. The emissions you’re receiving are much higher coming from the mobile on your person than they are coming from the DAS.”
Finally, there is the question of how much Crown Castle is willing to pay for the right to use city infrastructure to build the DAS. Notably, Crown Castle is a publicly regulated utility.
Although it is not a cell phone carrier itself, it provides infrastructure for clients who are and who have right-of-access to their customers as common utilities.
“Most of the carriers monitor their system and figure out where their needs are,” Hunter said. “They come to us and say ‘we have capacity and coverage concerns in this area, can you work on it?’”
“We’re not doing this as a speculative infrastructure build, it’s what our customers have come to us and said ‘can you help us with this?’”
Still, the idea of allowing a private company to use city property for business did not sit well.
“It’s difficult, for me, for you to use our poles and our city to make money for your private company,” Council Secretary Mary Knight said. “I want to see a lot of data on what you’ve paid other jurisdictions. We have to protect ourselves here.”
An outright refusal of Crown Castle, however, would be difficult, Ayres said.
“The airways are considered federal,” he noted. “In the Federal Communications Act, there’s a provision that says a jurisdiction cannot just arbitrarily turn down a communication [utility]. They can only say ‘no’ to a certain location, provided there is an alternative that would still meet the public need.”
This is the legal guideline behind nearly all utilities to which there is a right of common access, such as electricity or natural gas.
By the same token, the city, for example, could not prevent the gas company’s contractor from building new lines simply because the city did not like the look of the gas meters or thought they should be getting more money because the pipes ran under city-owned streets. There would have to be a more compelling interest to deny citizens’ access to a utility, which cell service is considered to be.
Further, Mayor Rick Meehan said, such agreements are not exclusive. Other entities have the right to come and install infrastructure necessary to provide for their users, and they too would have to pay the city if the operation affects public property.
“We get asked that a lot about our agreement with Comcast,” Meehan noted. “Anyone else could come in here and provide cable TV as well, it’s just that they haven’t.”
The council subsequently voted unanimously to have Ayres work with city staff and Crown Castle on a deal that would meet the council’s expectations.
“We can negotiate with them to pay for any location that is city-owned, and we can work with them as to exactly what the node is going to look like so that you all are satisfied that, aesthetically, it’s going to work,” Ayres said.