State Small-Cells Bills Not Expected to Slow in 2019
Georgia and West Virginia lawmakers appeared poised to move 5G wireless bills as state legislative sessions begin in 2019. Look for bills in those and other states that didn't succeed in passing measures last year, wireless industry officials told us. Local governments opposing state pre-emption see no slowdown ahead on state bills, even though the FCC ruled in September, said NATOA General Counsel Nancy Werner.
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Twenty-one states enacted small-cells bills meant to streamline 5G wireless infrastructure deployment by pre-empting local government authority in the right of way. Such bills died or missed deadlines last year in Georgia, Maine, Maryland, Nebraska, New York, Pennsylvania, Washington, West Virginia and Wisconsin legislatures. New Jersey last fall introduced HB-4422, which will carry over to the new year because the state has a biennial session.
Georgia state Sen. Steve Gooch (R) plans to prefile a small-cells bill this week before the session starts Jan. 14. Autumn talks between industry and municipal and county associations were “very productive,” he said. “An agreement has been reached by all parties that will expedite the legislative process of passage of the 5G legislation this session,” though there could be further tweaks from committee discussions, he said. Parties have been actively engaged for two years, he said. “The private investment funding that will follow this legislative change will have a significant impact on the deployment of this new technology that will catapult broadband expansion.”
About 10 states could have bills in the “next week or so,” AT&T outside counsel Andy Emerson predicted Monday at a West Virginia Joint Committee on Government Operations interim meeting. AT&T and municipal league officials briefed West Virginia lawmakers on small-cells ahead of West Virginia’s legislative session opening Wednesday. The state had a bill last year that passed the House 97-2 (see 1802280022), but it stalled in the Senate along with many other unrelated bills due to a teacher’s strike.
“We expect there will be states that will reintroduce legislation in 2019 that streamlines the deployment of small wireless infrastructure,” said CTIA Senior Vice President-State Affairs Jamie Hastings. The FCC’s September order “is a great step in ensuring states are ready to embrace the many benefits of 5G” and “allows states to tailor legislation to address their specific circumstances.” Industry will have to educate new lawmakers elected in November about the wireless issue, but small-cells bills generally have received wide bipartisan support, said CTIA Director-State Legislative Affairs Beth Cooley.
The Wireless Infrastructure Association expects many state capitals to pick up small-cells talks in 2019, said State Government Affairs Counsel Arturo Chang, saying New Jersey, New York and West Virginia are among states to watch. “Good policy starts at the state level,” and industry continues to support state action even with the FCC order and court challenges of that order pending, he said. State bills can set specific fee caps and add “deemed granted” language while accounting for state-by-state differences, he said. WIA doesn’t believe existing state laws and the FCC order conflict, though it’s possible some states propose “cleanup” bills to sync their laws with federal rules, he said.
NATOA expects no slowing of 5G bills this year, said Werner. After the FCC order, Michigan enacted a bill and the FCC Broadband Deployment Advisory Committee published a model state bill, showing “industry is still looking to push small-cells legislation,” she said. Some BDAC members even cited the litigation over the FCC order as a reason to move forward with state laws, she said.
NATOA tells members to “keep talking” about the issue so elected officials and communities understand risks of state laws, Werner said. “If enough communities come forward and say this is not a good idea … then perhaps that small-cells bill won’t pass or there will be sufficient changes.” NATOA members maintain a good relationship with industry officials on a day-to-day, local level, she said. “The high-level debate we’re having doesn’t translate to a poor working relationship in the vast majority of communities.”
AT&T plans to invest $50 million in West Virginia on wireless facilities and fiber backhaul, with half the money to be spent in unincorporated areas, Emerson said at the livestreamed meeting. The carrier wants a state bill to provide uniform processes and fees, he said. The draft bill would add “deemed granted” language to automatically clear applications when governments don’t meet 60- and 90-day shot clocks like those in the FCC order, he said. It would cap ROW access fees at $25 per facility, annual collocation at $30 and application fees at $200 for the first five facilities on an application and $100 for each one after that.
Industry would have to comply with local rules on safety, accessibility and aesthetics, and attest they are meeting FCC radio-frequency exposure standards, Emerson said. Localities could also deny a permit if the applicant won’t “attest to making the site operational within one year,” he said. Cities may condition approval on “reasonable relocation language,” he said.
“We have to have 5G,” said West Virginia Municipal League Executive Director Lisa Dooley. She urged lawmakers to acknowledge local government costs and hew closely to terms of the FCC rules. “These fees are not just pulled out of the air by the cities” but “actually to take care of the management” of ROW that governments hold, she said.