Localities Engage Industry, State Legislatures on Wireless Siting

Local governments should face head-on state legislative efforts to pre-empt local processes for approving wireless small-cells applications, local government officials said on a NATOA webinar Thursday. Many states are moving industry-backed wireless siting legislation meant to ease the local process for approving industry small-cells applications (see map). Arizona and Colorado bills are nearing passage, but localities stalled a Minnesota bill and are resisting another in Florida.

States are mulling laws as the FCC considers rules responding to a Mobilitie petition to pre-empt local authority on wireless siting. The agency said commissioners likely will vote April 20 on a notice of proposed rulemaking and notice of inquiry on regulatory impediments to wireless deployment (see 1703300060). Whether state laws or possible FCC rules will have ultimate authority is unclear, telecom attorney Ken Fellman said on the NATOA webinar. The FCC may say its rules pre-empt the state laws, or it could say that federal rules apply unless the state has an existing law, he said. If the agency takes the latter approach, the state laws that were negotiated with localities “may turn out to be better for us than what the FCC proposes,” he said.

Engaging industry and state legislators is critical, said Fellman, who helped negotiate Colorado’s bill for localities. There, industry listened to local concerns and the bill’s sponsor turned out to be “far more reasonable than not,” he said. Much of the bad language in the initial bill came from a misunderstanding about how local government worked, he said. Industry also has been willing to talk in Florida, where localities continue to oppose legislation, said Wilton Manors Mayor Gary Resnick. He said localities gained public support by publishing opinion pieces and sending information about the bills to residents.

By staying at the table at their legislature, Minnesota localities may have stopped a small-cells bill there from passing this session, said Laura Ziegler, senior intergovernmental relations liaison for the Minnesota League of Cities. The state senator sponsoring SB-561 hosted talks between localities and industry, but industry walked after the author agreed with localities that the state shouldn’t scrap all local zoning authority, Ziegler said. Since then, the Senate bill hasn’t moved and House lawmakers removed small-cells language from an omnibus jobs bill, she said.

“If you don't like this legislation, the best defense is a good offense,” Connected Nation Exchange CEO Brian Mefford said. Industry claims that localities are not being responsive, so cities should take action and show leadership on 5G, including making plans and modernizing local codes and ordinances, he said.

The Colorado Senate voted 34-0 Wednesday to pass HB-1193, which now goes back to the House due to a Senate amendment. The Arizona State Legislature is nearing final passage of small-cells legislation. Wednesday, the Arizona Senate voted 29-0 to pass HB-2365, and Tuesday, the House majority and minority caucuses supported passage of SB-1214. Lawmakers amended both versions along the way, so they must return to their originating chambers for final votes. The House and Senate bills differ in how they treat wireless and cable providers. Local government groups earlier voiced support for the Arizona House bill and neutrality on the Colorado legislation.

Florida localities are resisting small-cells legislation even as the bill changes. The Florida Senate amended its small-cells legislation (SB-596) Wednesday. The measure, which includes a requirement that local governments review applications in 60 days or they're deemed granted, now also has a carve-out for siting in retirement communities and it doesn't limit local government authority to enforce historic preservation zoning regulations.

Local government officials slammed the Florida bill at a hearing earlier this month, before the edits (see 1703080011). Counties still oppose SB-596, a Florida Association of Counties spokesman emailed Thursday. The amendments “exempt a small community in Central Florida, exempt the state Department of Transportation, and includes small wireless companies that are not considered ‘utilities’ in the state of Florida,” he said. “By exempting the state and the small community, the Association feels that this is an acknowledgement the preemptions included in the bill are too onerous.” Florida localities are in talks with the telecom industry “to see if a suitable arrangement can be made that balances the need for fair compensation and home rule with the expansion of this technology,” he said. “If Florida’s communities continue to speak out on this bill, we are cautiously optimistic that future negotiations will be productive.”

The wireless industry seeks to privatize public rights of way, said Harvard Law School professor Susan Crawford in a Wednesday blog post. Crawford rejected as misleading industry claims that states must quickly pre-empt local government or risk missing out on 5G wireless broadband. “And the whole widespread, multi-level, fast-moving effort is a distraction from the country’s real internet access problems,” she said. “But it takes a couple of sentences to explain why, and so in the meantime credulous state legislators are falling all over themselves passing bills aimed at wiping out the future ability of a city to control its own data destiny.”

Neither 5G nor consumers’ big appetite for data is a myth, said Wireless Infrastructure Association Senior Government Affairs Counsel Van Bloys in a statement replying to Crawford. “WIA’s members are working today to meet consumer demand for 4G service by densifying networks with additional infrastructure -- antennas, fiber, poles, and towers -- infrastructure that can be quickly upgraded as 5G becomes available in the next few years.” Low, uniform pole-attachment rates spur deployment and collocating on existing infrastructure is cheaper than building new support structures, he said. “That is exactly what efforts in states and at the FCC aim to do.”