October 11, 2016 —
Municipalities across the country are making it clear: having a certificate from the public utilities commission and a desire to deploy a cell site in the public rights of way does not result in the ability to bypass local zoning ordinances.
Mobilitie promised that it would follow the local zoning regulations of the State of Connecticut, at a technical meeting late in September held by the Conn. Public Utilities Regulatory Authority (PURA) to discuss applications for “right-of-way utilization” that had been sent to numerous municipalities from Mobilitie.
The meeting was requested by the Office of Consumer Counsel, which had received calls from across the state by municipalities that were confused about Mobilitie’s correspondence. The company had sent letters indicating that it had selected sites for its 120-foot monopoles in the rights of way in the municipalities’ jurisdictions.
The City of Milford, Connecticut, was one of the municipalities that complained Mobilitie’s applications for the cell sites raised more questions than it answered.
“While it is impossible clearly to discern Mobilitie’s intent from its letter, two things are quite clear,” according to a letter from Milford to the Connecticut Siting Council. “First, Mobilitie has failed to properly ‘consult’ with the City, which must be accomplished 90 days prior to any application in accordance with the Statute. Second, the letter and attachments fail to satisfy the requirements of a technical report.”
In particular, a technical report must include a map of the area of need, existing surrounding facilities, alternate sites under consideration, location of nearby schools, analysis of potential aesthetic impact, mitigation of aesthetic impact and potential environmental impact.
At the meeting on the proposed utility infrastructure facilities, which was attended by the Connecticut Conference of Municipalities and Council of Small Towns in Connecticut, Mobilitie’s local attorney gave a brief presentation on the company’s plans in which he assured the audience that the company would abide by all the zoning laws and regulations. Later Mobilitie communicated that it plans to begin submitting applications by the end of the year.
Melanie Bachman, acting director of the Connecticut Siting Council attended the meeting and said, “It was necessary to have a meeting where everyone could come to the table to hear Mobilitie make that statement [that it would abide by the rules]. It alleviated a lot of concerns among the municipalities.”
Connecticut has a different regulatory system where it has a statewide entity, the Connecticut Siting Council, that grants approval for free-standing tower siting requests after consulting with the local municipalities. The jurisdiction belongs to the Siting Council if it is an attachment to an existing structure, a tower structure or an electric transmission line structure. If it is an attachment to an electric distribution line structure, it falls to the PURA. While an attachment to a light pole goes under the local municipality’s authority.
“You can’t blanket the state with applications to the municipalities for your deployments in the right of way,” Bachman said. “The analysis of jurisdiction [in Connecticut] has to do with the principal use of the existing structure to which they want to attach their equipment.
“We hope that Mobilitie got the message and when they do start submitting formal applications, they will approach it the appropriate way,” she added.
Minnesota Questions Mobilitie’s Right of Way Claims
Municipalities in Minnesota were also distressed by the Mobilitie correspondence, prompting the Minnesota Department of Commerce to send a letter to the company requesting that it stop asserting that it has authority from the Minnesota Public Utilities Commission (PUC) that exempts it from local regulations in the public rights of way.
“The Department has consulted with PUC staff and we are aware of nothing in Minnesota statutes or rules that exempts a PUC-certificated carrier from the requirements of local government units concerning rights of way,” the letter read. “While Mobilitie holds a certificate of authority to provide local niche service … this does not give Mobilitie an exemption from the requirements of the local government units.”
The Department of Commerce and PUC received numerous complaints from Minnesota municipalities, indicating that representatives of Mobilitie are claiming that Mobilitie is not subject to right-of-way regulation by the Minnesota municipalities since Mobilitie holds a certificate of authority issued by the Minnesota PUC to provide telecommunications service.