5G / Small Cell

Attorney Ken Fellman explains 5G

Attorney for the Colorado Communications Utility Alliance, Ken Fellman, explains 5G technology and how it could impact neighborhoods, towns and cities. Interview with Connected Colorado host, Wendy Brockman.

This information is intended to help answer many of the questions that Durango residents have been asking about new cellular antennas that have been proposed in the city. 

Update - May 7, 2020

Please click here to view the May 7, 2020 small cell update

Update - January 3, 2020

The City of Durango issued the permit to allow the small cell antenna on 19th Street today, January 3, 2020. Federal law requires permits to be issued within 90 days of application, therefore the permit had to be granted. A combination of federal and state laws restricts local government regulations as they relate to 5G and small cell antennas, and these laws mandate certain approval timelines and prohibit local governments from banning small cell facilities. In the coming months, the City will reevaluate what requirements it can impose on small cell antennas. Multiple lawsuits involving local government powers related to small cell installations are scheduled to be heard around the country this year, and the outcomes of these cases will further clarify the City’s powers and what local regulations we can adopt. 

Verizon Wireless and their agent, Kappa Consulting, have stated that the 19th Street installation will be for 4G technology. Verizon and Kappa have told the City that they plan to upgrade the 4G antenna to 5G technology at some point in the future, most likely several years from now. A condition of the permit for the 19th Street antenna is that when Version changes the antenna to 5G they must notify the City in writing prior to the change. The City had requested additional information from Verizon, such as specific frequencies and information on the direction the antennas will be pointed. Verizon has responded that their transmissions will comply with all Federal safety standards. 

Update - November 7, 2019 

The City of Durango continues to receive comments regarding the Verizon cellular installation proposed on 19th Street. The Federal Communications Commission and the State of Colorado limited the extent to which local governments can regulate 5G cellular facilities . Due to these restrictions the City of Durango has limited control over most of the Verizon application. This antenna, according to the applicant, is set to be a 4G small cell antenna (a smaller pole and antenna).  Verizon has indicated that at some point 5G will replace the proposed 4G. No timeline has been given for this conversion. The community focus on 5G relates primarily to concerns over health and environmental impacts. 

The General Assembly of Colorado passed a law in 2017 that prevents cities from banning small cell facilities in their right-of-way. This includes a restriction on moratoriums, and the City has been left with regulatory authority that is mostly aesthetic in nature.  At this time, we are not aware of any challenge to the State’s small cell law.  

In 2018, the Federal Communications Commission passed what is called a Declaratory Ruling, which has the force of law, and which essentially forbids local governments from banning 5G facilities. The City of Durango is party to a lawsuit, along with more than 700 other local governments, challenging the scope of the FCC’s ruling. Until these suits are settled, the City is obligated to obey the current Federal regulations as they relate to 5G. The City will evaluate how its local regulations may be changed once these suits have been settled, something that is likely to happen in 2020.  

The City will continue to provide information on this page as changes occur to the rules and laws around cellular communications.  

The City has heard your input, but letting your state and federal representatives who passed these laws and rulings, as well as the telecommunications companies, know your opinion is also important. Here are name and contacts of your representatives: 

State House – Barbara McLachlan. 200 E Colfax RM 307, Denver, CO 80203, 

State Senate – Don Coram. 200 E Colfax, RM 346, Denver, CO 80203 

United States House of Representatives – Scott Tipton. 835 E. Second Avenue, Suite 230, Durango, CO 81301,  

United States Senate – Cory Gardner. 329 S. Camino Del Rio, Suite I, Durango, CO 81303. 

United States Senate – Michael Bennett. 835 East 2nd Avenue Suite 206, Durango, CO, 81301  

Federal Communications Commission – 445 12th Street, SW, Washington, DC 20554 

Verizon Wireless – vzwnetwork.colorado@verizonwireless.com 

What is Small Cell?

The phrase ‘small cell’ simply refers to the size of the transmitter, which can house either 4G or 5G technology. State law requires small cell facilities to be allowed in the public right-of-way, and the enabling state statute refers to this law as a “matter of statewide concern,” in effect trumping the City’s zoning authority for this very specific use. 

How is 5G Different than 4G?

Durango is currently served by 4G LTE, but 4G and 5G are the next generations of cellular service. 5G will allow implementation of ‘smart cities’ technology and will allow the proliferation of things such as autonomous vehicles. 5G can transmit up to 10 times faster than 4G, but 5G has a different frequency and does not travel as far as 4G. Federal law requires approval of 5G facilities. According to Verizon’s consultant, it will be several years before Durango is a more suitable location for 5G. 

Is 5G Safe?  

Federal agencies generally say more research is needed to reach a definitive conclusion over safety. Safety concerns are the most frequent comment the City has received about 5G. There are no federally developed national standards for the safe levels of exposure to radiofrequency (RF) energy, but RF levels are studied and addressed by the EPA, the FDA and OSHA, among others. According to the U.S. Centers for Disease Control and Prevention, the jury is still out on the health risks of exposure to EMFs, and that: “Scientists have looked carefully at all the Electromagnetic Frequency (EMF) evidence, but they disagree about the health effects of EMFs except to say that better information is needed.”

Federal, state and local government agencies and other organizations have generally relied on RF exposure standards developed by expert non-government organizations such as the Institute of Electrical and Electronics Engineers (IEEE) and the National Council on Radiation Protection and Measurements (NCRP). These standards were used in the Telecommunications Act of 1996, which set the standard currently being used by the FCC.

 Concerning 5G, the FCC states: “no scientific evidence establishes a causal link between wireless device use and cancer or other illnesses. Those evaluating the potential risks of using wireless devices agree that more and longer-term studies should explore whether there is a better basis for RF safety standards than is currently used. However, currently, there is no basis on which to establish a different safety threshold than our current requirements.”

Legal Issues Surrounding 5G and Small Cell Facilities

Multiple lawsuits are moving through the court system against 5G. The issues around 5G are complex and evolving as FCC rules are interpreted and take effect. These new rules are being challenged in multiple lawsuits nationwide and the City may not know the full extent of our powers to regulate 5G until sometime next year when these legal actions are decided. These lawsuits include a request to “stay” or delay the FCC orders until the courts decide on their legality.  The courts have yet to rule on the request for such a delay. 

How are 5G rules different from other cellular regulations?

The Federal Communications Commission restricted local authority. In 2018, the FCC passed 5G regulations that preempt much of local government’s land-use authority to regulate these facilities, presenting significant challenges for all local governments. For example, in the opinion of Ken Fellman, the City’s legal counsel on 5G matters, it is unlikely we can prevent 5G facilities in city right-of-way. We must also approve applications within a predetermined time period, and FCC regulations cap our permitting fees. Most significantly for many people, these regulations do not permit the City to consider environmental (health) impacts that are more stringent or rigorous than those used by the FCC. 

Finding #33 of the Introduction to the 2018 Declaratory Ruling (the FCC ruling that established 5G regulations), states the following: “We [FCC] note that the Small Wireless Facilities that are the subject of this Declaratory Ruling remain subject to the Commission’s rules governing Radio Frequency (RF) emissions exposure.72 

72…The Commission has authority to adopt and enforce RF exposure limits, and nothing in this Declaratory Ruling changes the applicability of the Commission’s existing RF emissions exposure rules…(recognizing legitimacy of FCC’s existing regulations on environmental effects of RF emissions of personal wireless service facilities, by proscribing state and local regulation of such facilities on the basis of such effects, to the extent such facilities comply with Commission regulations concerning such RF emissions).”

In other words, the FCC regulates emission exposure rules, and explicitly denies state and local regulations from doing so. 

What is the City of Durango review process?

We will provide additional public information when we receive a 5G permit. The City requires Special Use Permits (SUPs) for cellular antennas, and the City may impose limited restrictions for features like height, appearance and location (FCC rules allow our aesthetic regulations to apply if they do not negatively affect the functionality of a 5G facility). SUPs require the site to be posted. Because of the interest in Verizon’s small cell application, the City has created a Small Cell/5G page on its website, which will be updated when 5G permits are received or any court rulings change how or what the City can regulate in regard to 5G. 

Reaction Against 5G

Cities and counties are litigating 5G rules that restrict their zoning authority. The FCC ruling has created a large backlash. A coalition of two dozen jurisdictions including Seattle, San Francisco, San Jose, Austin and Baltimore have sued the FCC. This lawsuit may be heard by the Federal Court of Appeals 9th Circuit in San Francisco next spring. Durango is part of a coalition of Colorado cities and towns (the Colorado Communications and Utilities Alliance, or CCUA) that are also involved in legal action against current FCC regulations. Durango is being represented by Ken Fellman, of Kissinger and Fellman in Denver, through this organization. 

Is a 5G Moratorium Possible?

It is unlikely that a 5G moratorium is legal. Many of the emails sent to the City to protest our 5G application cited local government moratoria in places such as Marin County, California, Syracuse, New York and Maryville, Washington, against 5G in those communities. However, these moratoria are not clear cut and many of these may not actually have happened to the extent that is frequently represented. While many communities are opposed to 5G, many have embraced it: at least 26 states in the US have established rules to further streamline 5G deployment, while in other countries such as Switzerland, Israel and Belgium, 5G has been banned or delayed.

Current Local Activity

At this time the City has received permits for 4G, but not 5G. Kappa Consulting, representing Verizon, applied for small cell installation permits on 8th Street and 19th Street in Durango. At this time, it is the City’s understanding that Verizon will install 4G but not 5G at these locations, or at other similar facilities in the near-term future. At some future date, perhaps several years from now, it is probable 5G will replace 4G in these and other locations. When the City is notified of the future changes for 5G it will notify the public with posted notices at the antenna sites, on our City webpage, and by email to people who have contacted the City about the small cell installation. If Verizon or a different company applies for a permit for 5G, which could happen at any time, the public will be notified as described in this FAQ.

The City has created an email list of people interested in 5G issues. If you wish to receive updates about 5G installations and have not already emailed the City, please email Mark Williams at mark.williams@durangogov.org to indicate your interest.