Arizona Governor Dismisses Phoenix Opposition to Small-Cells Bill

“The bill is now law, so we are not concerned” about Phoenix’s opposition, a Ducey spokesman said Friday. “This is groundbreaking, first-in-the-nation public policy that will keep Arizona on the cutting edge of technology and innovation.” An Ohio small-cells bill becoming law didn’t stop Cleveland and other localities from suing the state after the law became effective in March, but attorneys say threat of lawsuits varies by state and a Phoenix official said earlier this month the city hadn’t considered next steps (see 1705050051).

“It was both surprising and extremely disappointing to see that Phoenix was the only stakeholder to formally oppose the bill, and did so at the very last minute,” Weninger emailed last week. He, industry and localities participated in an “extensive stakeholder process in which municipalities were heavily involved,” Weninger said. “The City of Phoenix participated in those discussions and was at the table when a consensus was reached.” Phoenix didn’t specify its concerns with the law, said Weninger, but “we can assume the opposition is grounded in the fact that Phoenix currently has some of the highest rates in the nation for small cell deployment in the right-of-way.”

Weninger said it’s a good law for localities that received support from the Arizona League of Cities and Towns. “The legislation requires that industry work closely with municipalities to establish processes within the rights-of-way that are reasonable and efficient to all parties,” he said. “I am confident that this legislation will not only meet Phoenix’s needs, but the needs of the millions of Arizonans who will benefit from this next generation of technology and economic development investments that come with it.” Phoenix didn’t comment.

A major sticking point in talks between cities and industry has been caps on pole access fees that local governments may charge industry, with states taking a variety of approaches. In Cleveland’s lawsuit, the city argued that limiting right-of-way charges violates the constitutional takings rule. A city official from Providence, Rhode Island, told a state policy summit Tuesday that localities don’t want to give up a critical local revenue source (see 1705090031).

Four of five states that enacted small-cells legislation capped application fees at specific prices, we found. Indiana set a maximum application fee of $100 per facility; Ohio capped the fee at $250 per facility. For zoning permit applications to collocate on a facility that's not part of the right-of-way, Virginia allows local governments to charge $100 per facility for the first five facilities on an application, then $50 for each additional facility on the same application. Industry can include up to 35 facilities on one of the applications. For applications that are part of the ROW, the state allows localities to charge $250 for each application to access locality-owned poles, while the Virginia Department of Transportation may charge $750 for a districtwide application to attach to VDOT property in the ROW. Arizona allows $100 each for the first five small wireless facilities and $50 for each additional one on the application, said League of Arizona Cities and Towns legislative associate Tom Savage.

Colorado didn’t cap application fees, but localities would be subject to any cap set by the FCC, said ex-NATOA President Ken Fellman, a local-government attorney who participated in Colorado talks. An earlier draft set a $200 cap, but that was stricken, he said.

Permit application fee caps “are unnecessary as many states already limit local permit application fees to cost recovery,” emailed Best Best local government attorney Gail Karish. “Arbitrary caps result in a subsidy to the industry,” she said.

Florida has no application fee but caps the rental rate that local governments may charge for collocation on their poles at $150 per pole annually. The legislature passed the bill, but the governor hasn’t signed it. Charging $150 “is far below market rates” and means local taxpayers will subsidize private companies’ use of public property, emailed Gary Resnick, mayor of Wilton Manors, Florida, and an FCC Intergovernmental Advisory Committee member. “Communications providers have offered voluntarily much higher rent to local governments to attach to government owned poles,” Resnick said. “Such poles are very expensive. Often local governments incur over $10,000 to purchase and to install a single light or traffic pole and there are maintenance costs as well.”

“Regulatory fees, such as permit and zoning hearing fees, are cost-based,” Montgomery County officials said in FCC meetings last week. The county met with FCC Chairman Ajit Pai, Commissioner Mike O’Rielly and several Wireless Bureau staffers, including acting Bureau Chief Neşe Guendelsberger and Competition & Infrastructure Policy Division acting Chief Garnet Hanly, said the Friday ex-parte letter. “Use of rights of way should be non-discriminatory and reasonable, but not cost-based, similar to the non-cost-based federal policy of charging carriers for spectrum.” Also, county officials urged the FCC to allow local governments to provide enough time for public notice and participation in siting decisions, and not require applications to be deemed granted. “This will drive up costs to process applications and there is no evidence that carriers face systemic delays.”

The FCC Wireless Bureau plans phone and web meetings with state and local governments, tribal nations and small businesses about its rulemaking to remove barriers to wireless broadband infrastructure investment, the bureau said in two notices released Thursday in docket 17-79. The bureau announced webinars May 24 at 2 p.m. EDT for state and local governments and May 31 at 2 p.m. EDT for small businesses. And the bureau, with the Consumer and Governmental Affairs Bureau, said a conference call for tribal nations will be May 25 at 1 p.m. EDT.