Municipalities, Industry Find Compromise on State Small-Cells Bills

More talks between local governments and industry are in progress, including in Rhode Island and Minnesota, local officials said. More examples of collaboration are likely to come, NATOA Executive Director Steve Traylor told us. But a legal fight is brewing in Ohio, with Cleveland and other cities Monday suing the state over the small-cells bill passed last year.

The Arizona Senate Commerce and Public Safety Committee voted 8-0 Monday to pass an amended HB-2365, then the House Commerce Committee voted 9-0 Tuesday to pass a similarly amended SB-1214. “We were neutral on [HB-2365] when it was moving in the House pending stakeholder meetings with the wireless carriers,” the Arizona league’s Legislative Associate Tom Savage emailed Tuesday. “The strike-everything and the committee amendment were the result of those meetings and we are now in support of the bill.”

The amendment permitted municipal requirements that wireless equipment be concealed and meet design standards if collocated on decorative utility poles, while also providing greater protection for communities with undergrounding ordinances, Savage said. Sprint and Mobilitie will have to get zoning review for monopoles, and the bill now covers cable operators deploying small cells in the right of way (ROW), he said. “There are ROW and permit fees that are capped in the bill that will limit our ability to recover costs,” Savage said. “Our primary concern was the aesthetics of the technology and our ability to manage the ROW. This is by no means a perfect bill, but this is something that our cities and towns can work with and support.”

Rhode Island Talks

Talks among local government, industry and state legislators are in progress in Rhode Island, said the state’s League of Cities and Towns Executive Director Brian Daniels. While the league has concerns about H-5224, “we understand the broader public policy goals for the legislation and are hopeful that we’ll be able to come to some positive resolution for all parties,” Daniels emailed. Tuesday, the House Corporations Committee recommended the bill be held for further study. Daniels said that’s common for a bill’s first committee hearing and doesn’t mean it failed.

“We’re most concerned about caps on rates that municipalities can charge on their own assets,” Daniels said. “In recent years, several communities in Rhode Island have purchased utility poles (previously owned jointly by Verizon and National Grid) in an effort to install more energy-efficient lighting and to save taxpayer money. We have argued that denying them the ability to charge appropriate market-based rents on their own assets is a serious intrusion into municipal fiscal control.” Wireless providers should get local approval to access municipal buildings or other facilities, he said.

The Colorado Senate Local Government Committee voted 5-0 Tuesday to move to the Senate floor the wireless bill (HB-1193) that was negotiated between industry and localities. The committee adopted an amendment on treatment of Wi-Fi nodes that cable companies attach to wires between poles. It says local governments generally may not impose fees or require applications or permits for the nodes, with exceptions for existing municipal or county code requirements and other specific circumstances related to the nodes’ location. The cable industry and localities worked together and agreed on the amendment’s language, said Ken Fellman, a telecom attorney for local governments.

In Hawaii, two Senate panels advanced HB-625 Monday. Many state legislatures are considering small-cells bills (see map).

More Compromise?

Expect “more instances where locals and industry sit down and try and work this stuff out,” Traylor emailed Wednesday. “There is still a lot of misunderstanding about 5G, the IoT, what densification means, what’s going to happen to rural folks, etc. I think sitting down at the table helps to clear up a lot of the confusion -- on both sides.”

The Wireless Infrastructure Association “always strives to work with state and local lawmakers to ensure that all communities benefit from the deployment of mobile networks that will deliver the economic benefits and quality of life all Americans deserve,” emailed WIA President Jonathan Adelstein. CTIA is “seeking out collaborative opportunities and the right mix of reforms to match each state’s priorities and needs,” said Senior Vice President-External and State Affairs Jamie Hastings. "As legislators understand the opportunity as well as the challenges in building networks based on outdated rules and regulations, we are finding common ground and building momentum towards important reforms that will benefit millions of Americans.”

But municipalities are challenging a small-cells law passed last year in Ohio. Cleveland and about 80 other municipalities filed separate suits Monday challenging Ohio’s small-cells law, which became effective Tuesday, Cleveland said in a news release. The complaint is in the Court of Common Pleas in Cuyahoga County, Ohio. The state law at issue limited the fee the municipalities may charge for small cells to the lesser of $250 per facility or the amount it charges for a building permit for any type of commercial development or land-use development. It required localities to review small-cell siting requests within 90 days.

“This bill attempts to erode our constitutional rights as a city,” Mayor Frank Jackson (D) said, announcing his city’s suit. “We cannot support legislation that attacks our constitutional authority.” Cleveland said the bill violated the Ohio constitution’s single-subject rule because it addressed more than one subject -- SB-331's text opens as a bill on regulating dog sales and prohibiting animal cruelty, and halfway through transitions to the subject of small-cell wireless facility siting. The city said the law violates the state constitution’s home rule protecting powers of local self-government, violates the statutory uniformity rule because it applies only to municipalities and not counties and townships, and violates the takings rule because it limits ROW charges and requires municipalities to consent to the wireless attachments. The Ohio attorney general didn’t comment.