OCEAN CITY — After resort officials denied a private sector telecommunications company’s request to install three small-cell nodes in residential areas of the town in June, the company late last month filed suit in federal court seeking a reversal of the decision.
A divided Mayor and Council in June voted 4-3 to deny a request from Crown Castle to install small-cell nodes in three north-end residential neighborhoods. Crown Castle was seeking permission to install the nodes in three areas zone residential (R-1) including Marlin Drive, Bering Road and Old Landing Road. For the record, Crown Castle installs small cell towers and nodes around the resort and contracts with wireless providers such as Verizon and Sprint, for example, to provide the telecommunications hardware.
In March, Crown Castle came before the Mayor and Council with a request to install six new small cell towers in residential areas, including three in the Montego Bay community and the other aforementioned locations. At the time, the council voted 5-1 to deny the three Montego Bay locations, and a motion to approve the other three locations died for lack of a second.
In June, Crown Castle came back with a request to approve the three nodes in the other R-1 residential areas, but, after considerable debate, the council voted 4-3 to deny the request. Again, for the record, wireless facilities providers such as Crown Castle are essentially free to install equipment in public rights-of-way per the federal Communications Act approved in 1996 and challenges have been upheld in different jurisdictions around the country.
For its part, the town of Ocean City has a right to deny locations or designs of the nodes for aesthetic reasons. Although the council has been consistently divided on the issue, it has been reluctant to approve the nodes in R-1 residential areas.
After getting denied on the three planned nodes in the R-1 neighborhoods in June, Crown Castle late last month filed a complaint in U.S. District Court seeking a reversal of the council’s decision.
“Crown Castle has attempted to work cooperatively with the town for several years to obtain approval for Crown Castle to deploy necessary advanced telecommunications facilities to serve residential areas of the town,” the complaint reads. “While it appeared that the town was originally working with Crown Castle towards deployment of the three R-1 nodes, after Crown Castle made several rounds of changes in designs and locations in response to feedback from the town, the town’s Mayor and Council voted to deny Crown Castle’s application to deploy the three R-1 nodes. There was no public opposition to the three R-1 nodes, and following its investigation and due diligence, Crown Castle has determined that it could not utilize existing utility poles in the area.”
The complaint goes to great lengths to describe the council’s meeting minutes and the various motions and ultimate votes to deny the request. According to the complaint, the town is required by the federal Communications Act to provide evidence in writing substantiating the denial.
“The town’s denial was not supported by substantial evidence contained in the written record, and the denial effectively prohibits the provision of telecommunications services and personal wireless services in the vicinity of the proposed three R-1 nodes,” the complaint reads. “The prohibition is in violation of the federal Communications Act. Ultimately, the town’s denial is unreasonable and unjustified and, therefore, the town unreasonably withheld its consent in breach of the right-of-way use agreement.”
The complaint asserts Crown Castle carefully, and in conjunction with the city engineer’s office, searched for appropriate locations for the north-end residential node locations and the sites were chosen because they were determined to have the least impact.
“The specific location of each node is carefully identified based on multiple parameters, including other wireless facilities in potential wireless carrier customers’ networks and, as a result, the nodes cannot easily be moved or changed without significantly impacting the other nodes in Crown Castle’s network, as well as the other facilities in Crown Castle’s wireless carrier customer networks,” the complaint reads.
The complain asserts the small cell nodes in the residential areas are needed to close gaps in wireless service to meet a greater demand.
“Crown Castle needs to construct its telecommunications facilities in public rights-of-way in the town so that such services are available to residential areas of the town,” the complaint reads. “In order to construct its networks and facilities, and therefore provide telecommunications services, Crown Castle must have access to the public rights-of-way in which to install and modify its equipment.”
When Crown Castle wants to deploy small wireless facilities, it submits to the Mayor and Council a request showing the proposed locations and designs of the nodes, including photo simulations showing what the installations would look like.
“Despite being authorized by the town to deploy small wireless facilities in certain areas of the town, Crown Castle has sought for many years to obtain approval to install needed small wireless facilities in areas of the town zoned R-1,” the complaint reads. “Despite Crown Castle’s attempts to work closely with town officials and staff and to address any concerns or issues raised by the town, the town has demonstrated an unwillingness to approve small wireless facilities in the R-1 zone.”
The complaint filed in late July asserts the town holds Crown Castle to a different standard then that of other wireless equipment providers.
“Other communications providers in the town are not subject to aesthetic regulations equivalent to those imposed on Crown Castle as a condition of deploying their communications facilities in the public rights-of-way,” the complaint reads. “The town’s refusal to approve Crown Castle’s installation of its three R-1 nodes in the rights-of-way apparently based on vague subjective aesthetic preferences that are not equally applied to all right-of-way occupants, prevents Crown Castle from the opportunity to compete in a fair and balanced regulatory environment, and is, therefore, an unlawful prohibition of the Communications Act.”
The complaint seeks an expedited review of the case, declarations and judgments that the town’s denial is not supported by evidence and an order to require the town to grant Crown Castle’s applications to install and operate the three nodes in the R-1 areas among other things.