Road to More State Small-Cells Laws May Toughen as Industry Pushes
The wireless industry is making another push for small-cells laws, after 28 states and Puerto Rico enacted them over the past four years. Remaining states should “take notice that they might be left behind if they don’t get with the program,” though the wireless industry's goal isn't all 50, said Wireless Infrastructure Association CEO Jonathan Adelstein in an interview. Representing skeptical municipalities, NATOA General Counsel Nancy Werner told us she thinks industry will have a harder time persuading remaining states because such laws aren’t proven to drive deployment.
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Legislatures weighing small-cells bills this year include Alabama's (SB-172), New Jersey (AB-1116, SB-860), New York (A-9508, S-7508), Pennsylvania (HB-1400), and South Carolina (HB-4262). Bills to extend sunsets on existing laws are in Iowa (HF-2213, SF-2196), Vermont (HB-682) and Missouri (HB-2182).
“There’s not enough cap-ex to go around everywhere,” so states without laws should lower local barriers to deployment, said Adelstein. Laws may not be needed in all 50 states, as some “are easier than others to deploy in already.” Extending sunsets on existing state laws should be easy “because we have a track record now showing that the bills are not really causing problems that ... alarmists said [they] would,” he said.
The FCC is defending federal wireless infrastructure rules from local and others’ lawsuits at the 9th Circuit U.S. Court of Appeals (see 2002100054). In oral argument last Monday, state bills and laws came up. Werner wondered if industry is still pushing for state laws “because they aren’t sure the FCC rules are going to withstand the challenge in the 9th Circuit." Adelstein countered that “the FCC has helped enormously in setting the stage for national deployment, but there are limits on what they can do and I think it’s important for states to back that up."
States that have avoided laws are running into problems, claimed Adelstein. California’s then-Gov. Jerry Brown (D) vetoed a bill in 2017 and the state is “now paying the price,” said the WIA head. “I was out in a fairly dense, suburban, populated area in Marin County -- I couldn’t get a signal.” New Orleans hurt itself when it rejected a proposal that would have brought 500 small-cell nodes to the city, he said. The city later approved a deal after “major delay and hassle,” but “there was only enough money left to do 200 nodes,” Adelstein said. New Orleans didn’t comment.
Werner disagreed that pre-emption drives deployment. “The industry is going to deploy where it makes sense for them to deploy.” Neither FCC rules nor state laws “changed that equation,” she said. Big cities were already going to get 5G, and the state laws aren’t bringing fifth-generation wireless to smaller communities “where there were no plans to deploy anyway,” she said.
Roadblocks
Some states in this year’s batch aren’t fresh. Pennsylvania legislators failed to pass a bill the past three sessions and municipalities remain strongly opposed (see 2001140055). Passing New York’s measure could be complicated by slotting it into the governor’s proposed budget next to many other measures, including net neutrality rules that industry opposed in states (see 2002130011 and 2001230043).
Enacting South Carolina’s bill is no sure thing even though it already passed the House and municipalities are neutral, emailed Municipal Association of South Carolina Director-Advocacy Scott Slatton. “It still has a way to go before passage."
Cities negotiated with AT&T and other telecom companies to preserve local authority over aesthetics in historic and redevelopment districts and certain other areas requiring higher levels of review, Slatton said. After House passage, Myrtle Beach negotiated further revisions, he said. That city and AT&T testified at a Senate Judiciary subcommittee hearing about two weeks ago, but the subcommittee gave more time to work out final details, he said. If South Carolina's bill gets to the Senate floor, “it and many other bills could fall prey to the rapidly approaching end of the session in early May and the gridlock currently gripping our Senate," Slatton said.
Alabama proposed a small-cells bill Tuesday. It appeared at a Senate committee hearing the next day but was carried over for a week, emailed Alabama League of Municipalities Executive Director Ken Smith. Three states bordering Alabama have small-cells laws.
Localities oppose the proposal “because of the negative impact it has on municipal right of way authority,” Smith said. Sponsor Sen. Arthur Orr (R) didn’t comment. Smith's group, he said, recognizes "the need to work with industry to help with the deployment of 5G technology, but it should not come at the expense of protection of the public’s rights of way.”