Lakewood halts 5G cell poles, for now

City moratorium called at Feb. 10 council meeting

Joseph Rios
jrios@coloradocommunitymedia.com
Posted 2/18/20

The future of high-speed mobile internet is here with 5G, but the technology to provide the service won’t be in Lakewood — at least for now. Lakewood City Council placed a moratorium, a temporary …

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Lakewood halts 5G cell poles, for now

City moratorium called at Feb. 10 council meeting

Posted

The future of high-speed mobile internet is here with 5G, but the technology to provide the service won’t be in Lakewood — at least for now.

Lakewood City Council placed a moratorium, a temporary hold, on construction of small cells that provide 5G internet until April 27, when council will review the issue again. The decision, made at a Feb. 10 council meeting, was made as the council pondered an ordinance that would update city code to align with changes made in state and federal laws. Council decided to not adopt the ordinance with the intention to bring it back with stricter provisions.

“If you don’t update the code, there is nothing that would stop any company from coming in tomorrow and applying (for a small cell site). Without, an update, staff will have a difficult juggling act of trying to fit a round peg into a square hole, and it’s going to have to try to somehow manipulate the process within the confines in the existing code to deal with the application,” said Ken Fellman, an attorney. He participated in writing the ordinance with Lakewood staff. “If the answer is (Lakewood code) doesn’t cover it, you can’t do it, well you have now violated state law.”

Colorado state law allows for small cells to be placed in any zone district and imposes a 90 day “shot clock” on municipalities to approve or deny small cell site applications. Under state law, municipalities can regulate how and where small cells go. In 2018, the Federal Communications Commission (FCC) passed laws that place a cap on the amount of fees that municipalities can charge 5G providers for licenses and permits for the small cells and limits city control to manage 5G infrastructure.

Current city code allows for any wireless facilities to be in any zone district if reviewed and approved. Small cells can’t be placed in locations that can change vehicle travel, in locations that can impact parking, or in locations that block vehicle, bicycle or pedestrian access or visibility along the right of way. Small cells must be placed 15 inches from trees, streetlights or utility poles, and the height of them must be consistent with zone district regulations.

The technology can be attached to light poles and other city owned infrastructure. State law says small cells compose of an antenna located inside an enclosure that is no larger than three cubic feet in volume. Federal law resembles state law, except antennas can be placed in an enclosure that can be up to 28 cubic feet in size. The ordinance would’ve established parameters for the technology that align with state law.

“I don’t like the situation we’re being put in. We’re being handed down rules,” said City Councilmember Dana Gutwein. “We’re being told by the feds and the state that we have to allow these. That’s an unfortunate situation we’re in right now, but that’s the current law.”

The proposed ordinance allowed for design standards of the small cells to be done in a way that would minimize the impact on the surrounding neighborhood and to maintain the character and appearance of the city. The small cells would’ve been placed on existing or new and replaced streetlight poles. The design standards also addressed things like the paintings of polls, placing shrouds on the facilities to shield them and other issues related to aesthetics.

Councilmember David Skilling said he sees the ordinance as a starting point, but he wants it to be stricter. One of the provisions he wants added to the ordinance is language that defines how many feet away from homes small cells can be placed. Currently, there are eight small cell facilities that are close to being operational.

“We don’t really know how far we can go with those aesthetics. This would be an opportunity not for us to say we can’t implement 5G,” said Skilling, acknowledging that the small cells will be in Lakewood, no matter what. “I think we push the envelope, especially in (residential neighborhoods).”

The FCC is in the midst of a court battle over its 5G rules due to a lawsuit filed by other cities and counties across the country. Among the groups who are in that lawsuit include the Colorado Communication and Utility Alliance — a group that Lakewood is a member of.

The lawsuit challenges the FCC’s power to restrict how much municipalities can charge companies that want to install small cells. Fellman, who represents the Colorado Communication and Utility Alliance, says it could be three to 10 months before the lawsuit, currently before the US. Court of Appeals for the Ninth Circuit, is settled.

“I believe we should look where the federal law is going to come down on preemption of local law because it is unconstitutional against the commerce clause that we’ve had our hands tied in this,” said Councilmember Anita Springsteen.

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