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The City issued the first review letter related to the proposed Verizon small cells on July 3, 2019. This review letter captures City review comments on 43 of 46 of the proposed small cell locations. The two remaining sites - Ellis Pond and Mercerwood Shore Club - remain open for public comment through July 17. Additional review letters will be generated for these sites in late July, following the close of the public comment period and completion of the City review.
The City anticipates meeting with Crown Castle to discuss the review comments prior to their resubmittal; the applicant may need a few weeks to address the City’s review comments. Once the City has received a complete response to all review comments, the City will likely issue the land use approval for the small cell antennas, consistent with the direction provided by the FCC’s new rule. Presuming the applicant responds to the correction letter for these 43 small cells by the end of July, the City would anticipate issuing the small cell antenna approvals in mid-August.
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Most small cell installations will be on existing utility poles. In areas where there are no existing utility poles, a new pole will likely be installed. In addition, when small cell installation is planned for existing poles, Puget Sound Energy (PSE), the owner of many utility poles, often decides to replace the pole as a part of the installation process. PSE installs a new pole next to the existing pole and moves over the electric lines to the new pole. The small cell equipment is then installed on the new pole. The other utilities that are located on the pole (telephone, cable, etc) must then each come out to relocate their lines. Once all of the lines have been relocated, PSE will then come back to remove the old pole. PSE tends to do the pole removals in batches of several poles at once. The utility companies are not very efficient at coordinating all of this work, which has resulted in delays in moving over the lines and removing the old poles. City staff are working to encourage the utilities to complete the pole removal work related to the T-mobile installations, but it is happening slower than anticipated.
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Applications are currently under review by the City for the installation of 46 small cell antennas on behalf of Verizon. The devices will be installed mostly on existing utility poles throughout Mercer Island. Locations of the installation sites are shown on this map. The small cell antennas, and the supporting equipment, will need to comply with the City’s recently adopted interim small cell rules.
The City of Mercer Island is providing notification to the Mercer Island community through its weekly bulletin and will consider all public comments. Public comments may be transmitted to the City by email, via Let's Talk Mercer Island, or by mail to 9611 SE 36th Street, Mercer Island WA, 98040.
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Federal Communications Commission (FCC) rules changing
In 2016, when the applications for T-Mobile were received, the City had limited authority to review small cell antennas.
The City was authorized to review the design and location of the small cell antennas – provided the City did not prevent the closure of a “significant gap” in wireless coverage. The City did not have regulations adopted in 2016 that would allow small cell antennas – which was a violation of the FCC rules. Consequently, to facilitate the review of small cell antennas, the City Council established a franchise agreement with Crown Castle in late 2016, which provided both criteria for the design and location of small cell antennas. The franchise agreement was modified in 2017 to clarify the design requirements.
The City’s ability to regulate small cell antennas was further limited by recent “new rules” adopted by the Federal Communications Commission (FCC), which took effect in January of 2019. The FCC’s new rules prevent the City from materially inhibiting the installation of small cell antennas. In practical terms the City no longer may regulate the location of small cell antennas and may only regulate the design of small cell antennas. The FCC’s new rules also required that the City Council adopt the regulations in advance of any application of for a small cell antenna. Consequently, the City Council adopted emergency, interim small cell regulations in January of 2019. Permanent regulations will be developed in late 2019 / early 2020; the City will engage the public as part of the development of permanent regulations.
For more information on the new FCC rules, please read the
FCC's Declaratory Ruling on 5G Small Cells (external link) and
FCC Fact Sheet (external link).
Public Notice
In 2016, when the City received the applications for the T-Mobile small cells received, the City provided mailed notice to neighbors within 150 feet of the small cell antenna, published notice in the weekly bulletin, and solicited public comment. The public comment received in response to the public comment period opposed the installation of the small cell antennas. Unfortunately, the City was unable to meaningfully respond to these public comments – because the FCC prevented the City from regulating the closure of a “significant gap” in wireless coverage. This led to significant frustration on the part of the community and City staff because the City could not respond to public comment as normally would be expected (e.g. by correcting the design / location of a small cell antenna).
In 2019, following the adoption of the FCC’s new rules, the City Council discussed the desired public notice for small cell facilities, given the further limitations on the City’s authority to regulate small cell antennas. The City Council indicated that the City should provide public notice of the small cell antennas to further transparency; public notice is required by the City’s regulations through the weekly bulletin and is supplemented by other social media and website information. Mailed notice was not provided because of the concern around creating a community expectation that could not be addressed – namely the expectation that the City would be able to meaningfully respond to public comments.
Interim Ordinance, FCC Appeals, Looking Forward
The City adopted emergency interim small cell regulations in January of 2019 to ensure that the City could regulate the design of small cell facilities – following the adoption, the City issued a news release. The “interim” nature of the small cell regulations requires the City Council to re-adopt the small cell regulations every 6 months, before the expiration of the current interim ordinance. The City Council is scheduled to hold a public hearing on June 18 and re-adopt the small cell regulations for 6 months.
Following the adoption of the FCC’s new rules, several cities appealed, including the Cities of Bellevue, Portland, Los Angeles, and Seattle. Although appeals were filed, the US Court of Appeals denied the Cities’ request to stay the FCC’s new rules.
In late 2019, the City intends to initiate a review of the City’s small cell regulations with the intent of adopting permanent regulations. The timing of this review is intended to allow the City Council to take action after the anticipated resolution of the appeals of the FCC’s new rules, and allows the City to engage with the community prior to adoption of permanent regulations.
