States Move to Relax Local Wireless Siting Authority

With industry-backed wireless siting bills gaining steam in state legislatures, some local-government groups see momentum and seek to limit damage through negotiation. In an interview Tuesday, ex-NATOA President Ken Fellman urged communities to follow the example of Colorado local-government groups and hash out small-cells bills with industry rather than oppose state legislation outright. Meanwhile, industry applauded a Texas Public Utility Commission proposed decision finding that wireless infrastructure provider ExteNet need not pay access line fees to Houston.

Legislatures are mulling small-cells legislation in Arizona, California, Colorado, Hawaii, Iowa, Illinois, Indiana, Minnesota, New York and Rhode Island. The Virginia General Assembly passed legislation before adjourning last week (see 1702160050), and Gov. Terry McAuliffe (D) has until March 27 to sign SB-1282. State bills are moving forward as the FCC considers federal action on a petition by Mobilitie seeking the agency's pre-emption of state and local authority over rights of way.

Colorado legislators considered a small-cells bill at a Tuesday hearing of the House Business Affairs and Labor Committee. Chairwoman Tracy Kraft-Tharp (D) introduced HB-1193 last week to allow industry to locate facilities in any zone, require local governments to process small-cell applications within 90 days and set a maximum access fee of $200 per pole or structure. Applications wouldn't be deemed granted under the shot clock, but it could lead to court action if parties can’t agree. If passed, the law would go into effect July 1.

"We take local control here in Colorado very seriously,” Kraft-Tharp said at the live-streamed committee hearing. But pre-empting local authority in this bill will spur expectedly big 5G investment across Colorado, she said. Small cells are “considerably smaller” and use less power than existing wireless equipment, but the Colorado statute is out of date and treats them the same, she said. “The rollout could happen" without the bill, "but it would be a much slower process in these big cities,” said Rep. Jon Becker (R). The committee hadn't voted at our deadline.

Verizon Wireless lobbyists approached Colorado local government groups in September to negotiate terms of the bill before introduction, said Fellman, a telecom attorney for local governments. Industry also has sought negotiations with local interests in other states with legislation (see 1702100053). Colorado local officials participated because they believed legislation in some form would pass, Fellman said. They “got to the point where we felt like the really bad stuff was out of the bill,” he said. “What was left in the bill -- while it is offensive to traditional local authority -- it was something we could live with. … It was better to be at the table and try to get something that was manageable as opposed to just fighting it and ending up with something that could have been worse.”

Talks were “mostly friendly” but local governments fought hard against some “absolutely unacceptable” proposals, Fellman said. On the provision allowing industry a “use by right” to locate facilities in any zone, localities won a condition that this still would be subject to requirements of that zoning district, he said. Localities beat back a proposal in an early draft saying industry wouldn’t need permits for wireless equipment maintenance, he said. The Colorado bill could see more changes, Fellman said. Highway tolling authorities seek an exemption so industry can’t place equipment next to a wireless toll reader, which they fear could cause interference and possibly violate privacy if carriers track cars coming through the toll, he said.

The Colorado bill is “far better than some of the other states that are seeing this legislation,” Fellman said. Talking to industry about state legislation may produce better rules than what the FCC decides on the Mobilitie petition, Fellman said: Eventual FCC rules could be worse than the state bill. “The FCC’s going to do something” and it’s “naïve” to think the wireless proceeding won’t lead to pre-emptory rules, he said.

The Indiana Senate sent a small-cells bill to the House Tuesday after voting 46-3 Monday to pass SB-213. The bill defines small cells, increases the permitted size of antennas and limits local authorities' ability to require permits or charge fees for the wireless facilities. The Arizona House voted 60-0 on Feb. 23 and the Senate voted 30-0 Feb. 21 to pass HB-2365 and SB-1214 that also ease local restrictions on small cells. Meanwhile, the Hawaii House Consumer Protection Committee has a hearing Wednesday on HB-625, aimed at encouraging siting of small cells. The Minnesota House Commerce and Regulatory Reform Committee mulled a small-cells bill (HF-739) at a Tuesday hearing.

ExteNet v. Houston

Texas commissioners plan to vote March 30 on a proposed decision supporting ExteNet in its dispute with Houston over access fees, said a PUC notice in docket 45280. Parties must file exceptions to the administrative law judges’ proposal by March 10, replies March 17.

The Houston case concerns a complaint by ExteNet against the city for imposing public right-of-way fees (see 1612200059). The distributed antenna systems (DAS) provider said it doesn’t have to pay fees because Chapter 283, a local code for franchise fees, sets rates based on a company’s number of access lines -- but as a DAS provider ExteNet has no access lines. Houston argued the chapter doesn’t apply to ExteNet because the company provides backhaul exclusively for commercial mobile radio service, which it claimed isn't a qualifying service under the code. Companies that don’t fall under 283 but want to build facilities in the right of way must negotiate with the city for permission. PUC staff previously warned the commission to narrowly address DAS providers (see 1612200059).

"This case presents the situation of technological innovation moving faster than the law, an increasingly common occurrence,” Texas PUC ALJs said as they decided ExteNet services fall within the scope of Chapter 283. "Because ExteNet is a [Certified Telecommunications Provider] CTP providing backhaul service, ExteNet is not required to have a franchise agreement with the City, nor is it subject to the access line fees as established in Chapter 283. ExteNet's customers, Commercial Mobile Radio Service (CMRS) providers, already pay the City for their use of the right of way, and ExteNet's backhaul service is part of what is already covered in the CMRS providers franchise agreements."

“ExteNet is encouraged by the proposed decision and urges the Commission to adopt the ALJs’ proposed conclusions to ensure that the policy embodied in Texas law that recognizes technology advances and requires uniform treatment of all telecom providers who use city right-of-way is applied for the ultimate benefit of all Texans who increasingly rely on wireless communications,” emailed General Counsel Anthony Lehv. The Wireless Infrastructure Association "urges the Commission to adopt the ALJs’ proposed conclusions to ensure broadband infrastructure providers can deploy their networks and deliver mobile broadband to all Texans," emailed Senior Government Affairs Counsel Van Bloys.

Some Texas cities plan to file exceptions along with other parties in the case. “The order seems to be predicated on the premise that ExteNet can only install facilities in the right of way if it’s a contractor for a CMRS provider and the CMRS provider has an agreement with the city for the right of way and compensates the city for use of the right of the way,” said Clarence West, a telecom attorney for several Texas cities in the case, not including Houston. The final order should further clarify that condition, he said.