Virginia Advances Small-Cells Legislation as States Mull Local Limits
Virginia moved closer to enacting small-cells wireless siting legislation last week as several other states consider a flurry of legislation backed by industry to rein in local charges and application processing times. Thursday, the Virginia House Commerce and Labor Committee cleared a Senate bill (SB-1282) with a substitute amendment, and the full House probably will vote on it Tuesday, a committee spokesman told us. Local governments are watching about 10 states for bills pushed by the wireless industry, all while the FCC mulls federal action, NATOA Executive Director Steve Traylor said in an interview. Localities want to build out 5G services but would rather negotiate directly with industry without the specter of pending regulation or legislation, said Best Best law firm's Gerry Lederer.
If the Virginia House passes SB-1282 this week, the Senate must accept the Commerce Committee’s substitute amendment before it can go to the governor, the committee spokesman said. “But it is my understanding that all parties are in agreement.” The bill’s sponsor, Sen. Ryan McDougle (R), didn’t comment. The Virginia House also last week passed restrictions on municipal broadband (see 1702070057).
The amended SB-1282 limits reviews of small-cell applications to 60 days, but the House committee removed a proposal from the previous version limiting reviews of other kinds of wireless infrastructure to 150 days (see 1702070043). The amended bill sets maximum fees for processing applications, allowing a locality to charge at most $100 each for up to five small cells on an application and $50 for each additional small cell facility on an application, it said. Applicants would be allowed to submit up to 35 permit requests on a single application. The bill disallows localities from requiring a special exception, special use permit or variance for any small-cell facility as long as the wireless infrastructure provider has permission from the owner of the structure and notifies the relevant locality.
National wireless industry associations supported the Virginia legislation. CTIA Senior Vice President-State Affairs Jamie Hastings said SB-1282, developed with Virginia municipal governments, “sends a clear message: Virginia is committed to delivering enhanced wireless service to consumers and is focused on increasing wireless infrastructure investment.” The Wireless Infrastructure Association is “pleased that Virginia has taken steps to improve the small cell siting process, which will be key as the wireless industry moves closer to the deployment of 5G mobile networks,” emailed WIA Senior Government Affairs Counsel Van Bloys. “We look forward to working with all stakeholders in communities across Virginia on completing this process by alleviating siting delays for macro sites and other important wireless infrastructure.”
NATOA is seeing more state legislative activity than usual this year, Traylor said. Wireless siting bills have been introduced or are in the works in several states, he said, including Arizona, Colorado, Michigan, Minnesota, New Jersey, Pennsylvania, Virginia and Washington. The state bills look alike, usually setting limits on how much can be charged for each pole and for the whole project, Traylor said. The revenue goes into a locality’s general fund, which provides money for libraries, public safety and other community services, he said.
Ohio enacted a small-cells bill in December. SB-331's text opens as a bill on regulating dog sales and prohibiting animal cruelty, but halfway through transitions to the subject of small-cell wireless facility siting. The law limits the fee the municipalities may charge for small cells to the lesser of $250 per facility or the amount it charges for a building permit for any type of commercial development or land-use development. It requires localities to review small-cell siting requests within 90 days. That the Ohio legislature added wireless language to an animal cruelty bill surprised many on the local government side, Traylor said.
The wireless industry approached city and county leagues before bringing bills to legislatures, including Ohio, Traylor said. Colorado localities are now in talks with wireless industry officials about a small-cells bill in that state, emailed Ken Fellman, attorney on local government issues and ex-NATOA president. “Negotiations have been productive and I am optimistic that we will see a bill that local governments will be mostly neutral on.”
The wireless industry is pushing on several fronts to ease local restrictions on small cells, including at legislatures, state commissions and the FCC. Traylor said the multipronged push doesn’t surprise him. “Industry plays chess and local governments play checkers,” he said.
The FCC is seeking comment on a Mobilitie petition for a ruling interpreting Communications Act Section 253(c) to preclude cities from charging carriers more than other providers for use of the right of way (see 1702080057). In his September Digital Empowerment Agenda, Commissioner Ajit Pai, now the chairman, supported aggressive use of Section 253 and other authorities to pre-empt state and local regulations hindering wireless or wireline deployments. He also supported developing a model code for cities and towns that want to encourage broadband deployment. The FCC didn’t comment Friday.
The National League of Cities urged the Wireless Bureau in a meeting Wednesday to avoid a “one-size-fits-all mandate for local governments on small-cell wireless siting,” said an ex parte notice posted Friday in docket 16-421. NLC representatives including mayors like Dallas's Boyd Austin and Brookline, Massachusetts Town Administrator Mel Kleckner discussed widely varying challenges faced by cities across the country, and “the varying state laws that already impact local siting authority, which would greatly complicate any federal efforts to further regulate this process at the local level.” Mobilitie petitioned for FCC action, but Georgia municipalities have been working with the wireless infrastructure company on a model right-of-way agreement that can be adapted to different cities, the league said.
Industry often says it wants to partner with local governments but then pushes for state and federal mandates, said Lederer, a local-government communications attorney. “History shows that industry and local government have been able to resolve issues to the point that we've built out four generations of wireless infrastructure,” he said. “Why do we doubt that we're going to be able to do that with the fifth generation of wireless infrastructure?”
“WIA and its members work with local stakeholders whenever possible to ensure the responsible and efficient deployment of mobile networks in their communities,” responded WIA CEO Jonathan Adelstein in a statement. “For example, in response to local sensitivities, we support height limits for new infrastructure in the right-of-way. Without sound regulations and policy at the local, state, and federal levels, communities may never enjoy all the benefits of future mobile networks. WIA works to educate all stakeholders as to how lawmakers can best serve the needs of their respective communities -- from small towns in rural America to major metropolitan areas with densely populated downtowns and large suburban neighborhoods.”