States Tackle Wireless Siting, Even as FCC Ponders the Issue

Bills in three more states, Massachusetts (http://1.usa.gov/1gobGRU), Iowa (http://bit.ly/1jB2NK7) and Colorado (http://bit.ly/1jB39R0), are pending this year, also proposing to varying degrees weakening the authority of local governments in siting decisions. The bills follow five others passed by states last year, according to a tally by PCIA. According to PCIA’s website (http://bit.ly/1mKZ9A3), model legislation the organization developed has been used to design many of the bills.

"The states are paying attention to the tone set by Congress, and recognizing that the deployment of [wireless] investment is going on right now, and they want to foster that as much as possible,” said Jonathan Campbell, PCIA director-government affairs. “What [the spate of bills] illustrate is that Americans get upset about three things -- taxes, bad weather and their cell phone receptions,” said John Stephenson, director of the American Legislative Exchange Council’s communications and technology task force. “People are starting to demand real action.” ALEC also has model deregulation legislation (http://bit.ly/1j0WVJa). Recent bills are consistent with the model legislation, Stephenson said, but he didn’t know if it was used in the crafting of any of the measures.

"The industry is trying to get some of the things it hopes to get from the FCC codified in state laws,” said Kenneth Fellman, an attorney who represents the Colorado Municipal League in negotiations over that state’s HB-1327. “The industry is trying to fight the battle on multiple fronts, and see if it can get what it wants in as many of the 50 states as possible.” Most states haven’t acted, preferring to wait for the FCC, said municipal telecom lawyer Gerard Lederer of the Best Best firm, who’s representing the U.S. Conference of Mayors. “If I were in state government, I'm going to ask, ‘why do I need to get in the middle of this when there’s FCC activity?'”

The state bills tackle some of the ambiguities a Sept. 26 FCC NPRM in docket 13-238 (CD Sept 27 p10) tried to resolve. Among them, clarification of Spectrum Act Section 6409(a), which says, “a State or local government may not deny, and shall approve, any eligible facilities request for a modification of an existing wireless tower or base station that does not substantially change the physical dimensions of such tower or base station.” The FCC sought comment on what “substantially change” means and how to encourage use of distributed antenna systems (DAS) and small cell deployments, including categorically exempting them from permitting.

The NPRM also asked if the FCC should elaborate on a 2009 shot-clock order to say that applications should be “deemed granted” if a state or local government fails to make a decision on an wireless facility application within a certain period. Applicants can now go to court if an application isn’t acted on within 90 days for the collocation of additional antennas to existing infrastructure, or 150 days for new infrastructure. Wireless groups like PCIA say municipal permitting requirements slow the buildout of wireless equipment, while the National Association of Telecommunications Officers and Advisors, National Association of Counties, National League of Cities and U.S. Conference of Mayors (http://bit.ly/PjgIJB) questioned the need for adding to the shot clock, saying “local government processes are not hindering deployment on a wholesale level.”

Missouri SB-650 (http://bit.ly/1jZ1Ca8), signed by Gov. Jay Nixon (D) March 20, said collocation applications can only be reviewed to see if they meet local building codes, but are not subject to land use, zoning or design requirements. They would not be subject to any public hearings. Collocation applications, in which equipment is proposed to be added to structures that already have wireless equipment, are deemed approved if no decision is made within 45 days. “It’s a preemption of local zoning,” said Richard Sheets, deputy director of the Missouri Municipal League, which opposed the bill. Sheets said losing the ability to factor zoning issues would remove the ability of local governments to look at issues like how the changes would affect an adjoining property owner. The issues involved go further than building code issues like “is a bolt screwed on tight?” he said. It means cell facility siting would face less scrutiny than other projects, Sheets said. “Business owners can’t attach signs to a building without review.”

AT&T, which supported deregulation measures in Missouri and the other states, said there’s a need for it. “To meet increasing demand for robust and high-quality wireless and broadband service, rapid deployment of the needed infrastructure, including towers and antennae, is critical,” said AT&T Missouri.

Less Dramatic Changes

Less dramatic than other state proposals this year came in Georgia and Washington state, where bills were weakened before being approved. In Georgia, wireless lobbyists had sought the deemed-approved standard in pushing another bill last year, said Marcia Rubensohn, Georgia Municipal Association legislative affairs counsel. The provision was removed in this year’s compromise HB-176 (http://bit.ly/PjAmEY), approved by the Legislature March 4. The industry also backed off this year on a provision that would have granted automatic approval for projects involving less than a substantial modification, Rubensohn said.

Washington state HB-2175 would have required municipalities to allow a single consolidated application process for smaller technology. The bill was amended to say municipalities can consolidate their regulations, said a spokesman for the Association of Washington Cities, which opposed the initial bill. Cities were concerned about being able to adequately deal with neighborhood concerns over several small cells, “especially when the FCC ’shot clock’ would apply to the consolidated permitting process,” he said.

Colorado HB-1327, passed by the House Committee on Business, Labor, Economic, & Workforce Development March 25, lets applicants consolidate DAS and small-cell applications. It codifies the FCC’s shot clock but doesn’t include a provision saying applications are approved if the time limit runs out, Fellman said. Industry’s desire for collocation applications, not deemed to be a substantial modification, to be automatically approved was nixed when bill sponsor Republican Sen. Mark Scheffel said he'd only move forward with a compromise bill between the industry and municipalities, Fellman said.

Pending are Iowa House File-2329 and Massachusetts S-1908. Both would only allow collocation applications to be reviewed under building permit requirements but not under zoning or land use codes, and would also deem collocation applications approved if not acted upon within 45 days.