States Edge Forward on 5G Bills Amid Continuing Disagreements

Virginia Gov. Terry McAuliffe (D) signed small-cells legislation last week. The legislature passed the bill in February, but there were last-minute changes to accommodate the state Department of Transportation (see 1704060061). Including Virginia, four state legislatures have passed small-cells bills and three are now law. Last week, Colorado Gov. John Hickenlooper (D) signed a bill (see 1704190009), and the Arizona Legislature sent another to Republican Gov. Doug Ducey (see 1704200025). Last year, Ohio Gov. John Kasich (R) signed the first such bill, though Cleveland and other cities are challenging it in court (see 1703220046). In other states, an Indiana joint conference committee voted 43-7 to pass a small-cells bill Friday. Another House-Senate conference in Hawaii is set to soon consider its own bill. Bills in Georgia and Iowa appear dead this session, and multiple other state legislatures with bills have kept relatively quiet in April (see our map).

At least industry appears to be “making an effort to get a local government perspective by having discussions with state leagues/associations,” NATOA Executive Director Steve Traylor emailed Monday. Local governments groups voiced neutrality on the Colorado bill and support for the Arizona bill. “In some states, those discussions have led to modifications that ease the impact that the bills could have on local ROW [rights of way] authority and budgets -- which is why we have locals either endorsing or taking no position on the bills,” Traylor said. “At least they feel their voices are being heard -- unlike at the [FCC] where many locals feel their concerns are ignored.” Commissioners approved a rulemaking last week on ways to speed wireless infrastructure deployment (see 1704200037).

CTIA is “very pleased at the significant levels of interest we are seeing from states across the country, and particularly in lead states such as Arizona, Colorado and Virginia, who want to enable the deployment of next generation 5G wireless technology," CTIA Senior Vice President-State Affairs Jamie Hastings said in a statement. "States that are early adopters of small cells, which will enable new 5G networks, will reap early rewards in terms of the projected investments and job creation that will follow in their wake."

Wireless Infrastructure Association CEO Jonathan Adelstein applauded the Virginia bill signing. “Creating a fair business environment -- in the form of common definitions, predictable timelines, and a facilitated process to utilize existing structures -- is vital to ensuring communities throughout Virginia have access to mobile broadband networks,” he said in a Monday statement. “Streamlined permitting processes spur the widespread deployment of wireless infrastructure. As wireless providers look for ways to improve network capacity in the near term while thinking ahead to future 5G deployments, smart small cell placement today will clear the runway for the 5G networks of tomorrow.”

State Disagreements

Some states have signed small-cells bills into law, but many more have not, said William Peebles, outside attorney for the Florida Association of Counties, in testimony at a Florida House Commerce Committee hearing Monday on Florida’s HB-687. “I’ve heard other states are doing this and so Florida needs to go first,” Peebles testified. “Well, every time I hear that, I hear my mother say, ‘If your friends jumped off the top of the roof, would you?’ So far, three of your 50 friends have jumped off the roof. … Are you eager to follow? Why? Why are you eager to follow Ohio and Arizona and Colorado off the roof?”

The Florida committee cleared the bill for a House floor vote, but some members indicated they could later change their votes to "'no" due to local government disagreement with the bill proposing a pole access fee of $150 per pole annually. “An agreement would be nice,” said Rep. Joe Geller (D). He said he supports setting one price for pole access rather than requiring industry to negotiate separately with many different local authorities, some of whom might be unreasonable. But the price should be reasonable, he said. “If there’s not flexibility, and if that number doesn’t move, then I’m not just going to vote against it on the floor. I’m going to walk up and down, to both sides of the aisle, to members of both parties, and tell them we need to vote this down if it stays unreasonable.”

City and county witnesses declined to provide a pole-access price they would find reasonable. “This is a new technology that is being deployed, and before we determine that market rate -- and we’re still determining it -- it’s very hard for us to just put out an arbitrary number that might not be representative of what this infrastructure is really valued at,” said Megan Sirjane-Samples, legislative advocate for the Florida League of Cities.

The bill will bring better connectivity to Florida communities, argue members who favor the bill. Rep. Nick Duran (D) said his constituents in Miami have the second-worst connectivity in the state. Small cells are “necessary infrastructure that we need to break down the digital divide,” he said. Local governments shouldn’t “hold people hostage” by arguing over revenue when their constituents want faster wireless data, said Rep. Katie Edwards (D).

There's still no agreement in Minnesota, either, said Laura Ziegler, League of Minnesota Cities senior intergovernmental relations liaison. Talks resumed earlier this month after breaking down, but passage by the end of the legislative session isn't certain, she emailed Monday: "Our regular legislative session ends on Monday, May 22nd. Our legislative authors have expressed their desire that a bill only pass if there is agreement this session." The sponsor said two weeks ago he was optimistic about passage (see 1704060061).

Meanwhile, Ohio Attorney General Mike DeWine (R) urged a court to reject Cleveland’s lawsuit on the state small-cells law, saying it’s completely constitutional, in an answer filed Friday in the Cuyahoga County Court of Common Pleas (docket CV-17-877584). The bill, which included rules on animal cruelty in addition to small cells, didn’t violate the Ohio Constitution’s single-subject rule, it said. Ohio also denied claims the bill violated the statute’s home rule protecting powers of local self-government, that it violated the statutory uniformity rule because by applying to municipalities and not counties and townships, or that it violated the takings rule by limiting ROW charges and requiring municipalities to consent to the wireless attachments. Also, the plaintiff lacks standing to bring the action and failed to state a claim, Ohio said.

Granting Cleveland’s lawsuit would hurt the wireless industry and thwart deployment of 5G services, CTIA said in a Friday motion to intervene. “The Ohio General Assembly recognized the pressing need for increased and expedited micro-wireless infrastructure in the State of Ohio and addressed it in S.B. 331 -- a Bill supported by CTIA members,” CTIA said. “If Plaintiffs claims in this litigation succeed, though, and the implementation of S.B. 331 is enjoined, then CTIA's members will be subject to numerous and inconsistent legal restrictions and burdens in the State of Ohio, such as constrained access to suitable locations for wireless telecommunications facilities and increased permitting requirements and delays, reducing the economic value of their wireless technologies and investments in Ohio.”