Adelstein Seeks FCC 'Umbrella' Covering States With and Without Small-Cells Laws

State small-cells laws are “complementary” to possible FCC action, said Adelstein, doubting the FCC would pre-empt state laws. Federal government has more limited pre-emption authority than states because local laws derive from state law, but the FCC can immediately cover all states -- including those that haven’t passed bills, he said. “The federal government sets the umbrella of what is a prohibition on service, and the state defines the process, improves access to existing facilities of the rights of way and ensures that rates are reasonable.”

O’Rielly told WIA he’s open to pre-emption to stop bad state and local actors. The commissioner wasn’t saying all local governments are bad, but some “do need to be reined in,” Adelstein said. Not all need to be pre-empted, just “those that are engaged in practices so unreasonable that they’re actually having the effect of prohibiting service,” said the WIA head. Pai used less aggressive language, saying he wants to balance local and industry interests. Pai is “a careful lawyer” who “wants to make sure that whatever they do gets upheld,” Adelstein said. The chairman “wants to use the full extent of the authority to make sure that there are limits on unreasonable behavior that has the effect of prohibiting service, while maintaining the proper role of localities that is reserved for them under the Communications Act," Adelstein said.

Many state bills are based on an industry model by WIA and CTIA, but the FCC’s Broadband Deployment Advisory Committee is also finalizing a code, with the group’s last meeting expected in July (see 1805010058). Adelstein, a BDAC member, said WIA is pleased with its own model, though the BDAC version includes additional issues like universal service and rural deployment. Before releasing a final report, BDAC members "need to tie up loose ends, eliminate any consistencies, create a coherent report and make sure that the latest data is integrated on rates and fees,” he said.

NATOA is glad Pai sees “legitimate local concerns with small cell deployments,” Werner emailed. “Some have spent the last year or so pointing the finger at municipalities as standing in the way. Meanwhile, local governments and wireless providers have been working together to deploy." In Boston, San Jose and elsewhere, “deployment is moving forward without the need for the federal government to intervene in local matters.”

WIA hopes the FCC will soon finalize rules on 3.5 GHz CBRS band spectrum and identify more mid-band spectrum, Adelstein said. “The industry is really hungering for that 3.5 spectrum and broad swaths of spectrum” that could be used for “massive amounts of broadband data throughput.” It showed at “overflowing” WIA conference sessions on citizens broadband radio services, he said, with some “people sitting on the floor.”

The WIA show’s tone was “quite positive” compared to last year, when there were many unknowns, Wells Fargo analysts wrote in a Thursday note. “Industry leasing trends were top of mind, as well as expected impact of a [Sprint/T-Mobile] merger, and lots of FirstNet talk.” Tower companies said it’s business as usual at Sprint and T-Mobile, and they’re receiving applications for FirstNet deployments. AT&T seems close to finishing the real estate part of planning, and services and cellsite additions should follow, the analysts said. “We received split opinions if the peak year of [FirstNet] will be in 2019 or 2020.”

State Bills

Adelstein cited increasing momentum passing small-cells bills in states, especially as states without such laws see bills passed in many other states. Eighteen states have enacted laws, and Missouri and Hawaii legislatures recently passed bills (see 1805170029 and 1805020046). Bills in Michigan and Pennsylvania could still be passed this year, and work will pick up again in 2019 on other bills that didn’t reach the finish line, Adelstein said.

Seven states had bills this year that failed because sessions adjourned, said Danielle Dean, National Conference of State Legislatures policy director-communications and technology, on a state legislation panel Wednesday. Five states are still in session and could still pass bills this year, she said. State bills are important because, with 89,000 local governments in the U.S., negotiating city by city isn’t a “scalable model,” said Crown Castle Vice President-Legal Monica Gambino.

Georgia was one state that ran out of time to pass a small-cells bill, with lawmakers urging industry and local government to “get together” to hash out differences before the 2019 session, said Christy Ellerbee, a consultant who lobbied in Georgia for WIA. The sides were divided on issues including rates and shot clocks, but Ellerbee is optimistic about passing a bill next year, she said. Education and a “concise message” about the need for a bill helps to persuade lawmakers, she said.

A new bill will be introduced in Pennsylvania that hews closer to the WIA model bill, Gambino said. The current bill confused state lawmakers because it would have amended existing collocation state law with some duplicative features, Gambino said. Passing a bill in Pennsylvania became more urgent when Philadelphia made an ordinance charging up to $3,000 per pole in the right of way and limiting the number of applications that can be submitted at once, she said. Despite disagreements about rates, Gambino sees more consensus around the country on aesthetics including size and form factor of equipment, she said.