Maryland House Panel Weighs Competing Small-Cells Bills

Davis said he's tired of “turf wars.” Stakeholders "can come together now and compromise … or the legislators will do it,” the chairman said. “What you have is a power struggle” when the conversation should be about 5G benefits, he said. “It's the technology that we need to keep Maryland at the forefront.”

Local governments “understand and embrace" wireless, but launching technology is “complex,” countered Lisanti. A “one-size-fits-all” proposal may not work for all of Maryland’s more than 150 municipalities, she said. HB-1020 tries to offer a “policy framework” to bring in 5G and other future technologies, but it’s not the “golden ticket,” and she wants to get to a final bill that includes parts of both proposals, Lisanti said.

Industry’s preferred bill goes beyond the FCC’s September small-cells order, including by capping annual right-of-way occupancy rates at $20 yearly per facility and setting collocation at $100 annually per facility, and by adding a “deemed granted” provision on a 60-day shot clock for local authorities to act on a collocation application and a 90-day clock for installing, modifying or replacing a pole.

Localities’ favored bill doesn’t set limits on rental fees and would give local governments 180 days to act on applications. Applications wouldn’t automatically be deemed granted, but applicants could sue a local authority for inaction. The bill would allow authorities to require a wireless facility to be fully operational within 120 days after the final permit is issued. HB-1020 also would establish a digital inclusion fund providing grants to underserved areas of the state, funded by a 1 percent fee on “gross revenue realized by a wireless provider from the sale of wireless services in the state.”

Local governments don’t seek to stop 5G deployment but want “latitude” to oversee placement, aesthetics and other issues important to communities, said Montgomery County Executive Marc Elrich (D). Without local oversight, carriers could put up "tall, ugly" poles every 75 to 150 feet, holding boxes measuring 2-by-2-by-7 feet, he said. It’s not about whether Maryland should have 5G but how to get there, which is why localities proposed an alternative bill, said Maryland Association of Counties Legislative Director Natasha Mehu.

The FCC’s September small-cells order makes a Maryland bill unnecessary, with proposed state rules more harmful to local authority, said Best Best local government attorney Gerard Lederer. The FCC ruling means Montgomery County has “no choice” but to follow shot clocks, Elrich said. "We're living under the FCC rules." Baltimore also supported HB-1020 and opposed HB-654.

HB-654 is needed to keep Maryland competitive, said the Maryland Tech Council and several other business interests at the hearing. The bill is balanced and will promote private investment, speed 5G deployment and create jobs, though some edits are needed, the Wireless Infrastructure Association planned to testify, said a WIA spokesperson. Free State Foundation President Randolph May and Research Fellow Michael Horney cited similar reasons in written testimony supporting HB-654. The hearing was still going after our deadline.

The Senate Finance Committee has a Tuesday hearing on the Senate version of the locality-backed bill (SB-713). That chamber’s version of the industry-supported measure (SB-937) isn’t yet scheduled for hearing.

Reverse Pre-emption

Maryland lawmakers mulled a stronger state role for pole-attachment regulation, hearing testimony on HB-474 by Dels. Carol Krimm (D) and Johnny Mautz (R). The Maryland Public Service Commission raised cost concerns.

The bill would empower the Maryland PSC, on its own or upon receiving a complaint from a pole user, to open a proceeding to determine whether to require joint use of telecom infrastructure and set rates, terms and conditions. It would direct the PSC to adopt rules for resolution of pole-attachment disputes and joint use rates, terms and conditions. The agency should consider various formulas including the FCC’s, the bill said.

A PSC working group earlier found the FCC regulated “efficiently and that state regulation would have required significant additional resources, and ... was not in the public interest,” Maryland PSC Chairman Jason Stanek said in a Thursday letter to Davis and forwarded to us by the PSC. Stanek cited the working group’s January 2016 report. A Maryland fiscal and policy note said the bill, proposed to take effect Oct. 1, would increase PSC costs by $309,130 in FY 2020, including “hiring two technical staff, one staff attorney, and one public utility law judge to hear and adjudicate joint use complaints,” plus “salaries, fringe benefits, one-time start-up costs, travel costs, and ongoing operating expenses.”

The cost is high, conceded HB-474 sponsor Krimm, saying she didn’t receive the fiscal note until Wednesday. To reduce costs, she would support starting with a pilot program in five western Maryland counties, she said. The bill will make broadband “more economically feasible” in rural areas, she said.

It’s costly because pole attachments is a “very complex issue” that will require extensive training, Maryland PSC Telecommunications Director Juan Alvarado told the committee. But other states have done it, he noted. The commission is open to working on a pilot, said PSC Director-Legislative Affairs Lisa Smith.

The FCC recently updated pole-attachment rules and they’re working in Maryland, said Comcast Vice President-State Government Affairs Sean Looney, opposing the bill. It could take a year for the PSC to develop state rules, he said.

Maryland joins Pennsylvania and West Virginia in a new wave of states mulling reverse pre-emption of the FCC (see 1901140027). The last time a state did that was Arkansas in 2010; 30 states follow federal pole attachment rules.