FCC Gets Lots of Local Pushback on Petition Seeking Faster Wireless Siting

In early filings on a Mobilitie petition asking the agency to pre-empt state and local authority over rights of way (see 1703070013) the FCC is getting lots of pushback from local governments concerned about losing control over siting. FCC Commissioner Mike O’Rielly said Tuesday he’s hopeful the FCC will act soon to accelerate the siting process for wireless facilities, citing the Mobilitie petition (see 1703070018). Comments were due Wednesday on a December FCC Wireless Bureau notice in docket 16-421, after the FCC extended the filing deadline by a month.

The city of Henderson, Kentucky, in a typical filing said the FCC should “exercise caution” as it moves to enable widespread deployment of small-cell infrastructure across the U.S. The city “opposes a federal one-size-fits all preemption of local siting authority, and asks the Commission to consider carefully the many differences between communities that necessitate local decisions: variation in state statute, geographic challenges, climate variations, size, budgetary and staff resources, aesthetic character, the type and amount of existing infrastructure, and more,” Henderson said in comments.

The Board of Road Commissioners in Oakland County (RCOC), Michigan, said wireless installations must be done in a way that ensures the safety of motorists, pedestrians and other users of the public right of way. The board stressed the importance of local control. “RCOC must ensure that work in the right-of-way is performed safely; does not damage the road infrastructure, sidewalks, driveways, or utility infrastructure; and that installations meet engineering standards as well as any other local, state or federal requirements,” the board said in comments. “RCOC has long had procedures in place that create a balance between ensuring safety and allowing for the efficient review of applications to locate facilities within the public right-of-way."

Community Wireless Consultants said it has several cities as clients where Mobilitie sought to install facilities. In one case, the firm said it worked with a city where Mobilitie proposed to install a 120-foot monopole with four microwave dishes in city-controlled right of way (ROW). “After the presentation, we asked a lot of questions that [Mobilitie] had no answers for,” Community Wireless said in a filing. “Some of these were: What exact data are you transporting? Is the data from small cells, Macro cells, or is it back-haul data being transmitted across the community? From where are you receiving the data? Are you transmitting the data to another point? Are you going to need more sites than just the one presented? If so what are those locations? Why can’t the pole go on the commercial property adjoining the ROW? Do you have plans to rent space on this pole for a macro site?”

In most cases, for cities the issues are availability of space and how to prioritize the use of that space, plus safe use of the space for traffic flow and proper compensation, Community Wireless said. The push by Mobilitie and other companies “to get the FCC or State Authorities to step in with a top-down solution in the name of profitability or speed to market are counterproductive,” the filing said. “Wireless carriers and infrastructure companies should not expect the Federal and State Authorities to circumvent their need to properly educate local government authorities and negotiate fair, market rate leases.”

The Maryland Municipal League said the FCC should move with caution. The group opposes "a federal one-size-fits-all preemption of local siting authority, and asks the Commission to consider carefully the many differences between communities that necessitate local decisions: variation in state statute, geographic challenges, climate variations, size, budgetary and staff resources, aesthetic character, the type and amount of existing infrastructure, and more,” said comments filed at the FCC.

Wireless deployment “must carefully balance​ the needs of industry with the public health and safety concerns of their communities,” said NATOA, the National League of Cities and several other national associations of local government officials in comments emailed to us Wednesday. “It is impossible that a one-size-fits-all regulatory scheme can adequately take into account the various needs and interests of all communities across the nation.” Local government siting practices don’t hinder wireless service, and local authorities want to provide good wireless service, they said.

And small cells aren’t small, NATOA and the other local groups said. “One hundred and twenty foot poles? Six cubic feet? Twenty-eight cubic feet? Clearly, we are not talking about laptops and pizza boxes!”

State Legislative Action

While the FCC mulls federal pre-emption of local wireless-siting authority, several legislatures around the country are moving bills seeking state pre-emption of local authority.

Legislatures are mulling legislation to ease small-cell siting in Arizona, California, Colorado, Florida, Georgia, Hawaii, Illinois, Indiana, Iowa, Minnesota, Missouri, New York and Rhode Island (see map). Virginia Gov. Terry McAuliffe (D) has until March 27 to sign SB-1282, passed last month by the state’s General Assembly. Local officials are mostly objecting to the bills, raising loud concerns at a Florida hearing this week.

Tuesday, the Hawaii House passed a bill (HB-625) allowing collocation of small wireless or wireline facilities and networks on state and local structures, poles and lighting, “subject only to clear and objective building permit standards.” Small facilities and networks wouldn’t be subject to special or conditional use permit in public rights of way and property or any rural, agricultural or urban land. Providers could place up to 25 separate facilities on one application. The same day, the Colorado House voted 62-2 to pass HB-1193, a small-cells bill negotiated by industry and local government groups. The local groups said they were neutral on the bill, at a hearing last week (see 1703010006). The measure would 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. The two bills now move to their respective state Senates.

A Florida Senate panel voted 7-1 Tuesday to advance a small-cell bill (SB-596). It would prohibit the state Transportation Department and certain local government entities “from prohibiting, regulating, or charging for the collocation of small wireless facilities in public rights-of-way under certain circumstances; providing that approval of, and charges by, an authority are not required for routine maintenance, the replacement of certain wireless facilities, or the installation, placement, maintenance, or replacement of certain micro wireless facilities.” The Missouri House Utilities Committee was to hear another small-cells bill (HB-656) after our deadline Wednesday.

“We’re trying to be on the forefront by bringing 5G to Florida,” state Rep. Travis Hutson (R) said at the streamed hearing of the Florida Communications, Energy and Public Utilities Committee. “Small cells are the building blocks of 5G in Florida, and not only will we stay connected to the internet, it will help cities save energy, decrease traffic congestion, lower fuel costs and help with all of our first responders regarding public safety.” CTIA State Legislative Affairs Director Bethanne Cooley supported the bill for the same reasons, but several officials representing Florida cities and counties balked at the proposal.

The bill is a “one-way street” benefiting industry without respecting local government concerns, Florida Association of Counties Deputy Director of Public Policy Eric Poole said. One objection is to a provision that would deem as granted siting applications not reviewed by local governments within 60 days, he said. Counties don’t want to stop public benefits brought by the technology but hoped to work with industry to reach a reasonable compromise without legislation, he said. Tallahassee Commissioner Gil Ziffer said small cells are “refrigerator-sized” and rejected to the bill’s “blanket pre-emption” that doesn’t let local governments participate in the process.

AT&T approached local government officials about the bill early in the process, but no one asked to negotiate until the hearing, said Tracy Hatch, AT&T general attorney. The company is willing to work with localities on “reasonable accommodations,” he said.

“I’ve got to apologize to AT&T, who is my biggest supporter,” said Sen. Daphne Campbell (D), the lone no vote. “I have to stand with local governments.” But Chairman Frank Artiles (R) said the bill should move forward to get both sides to the negotiating table. He said there are “a lot of concerns on this bill” and more negotiations between industry and localities are needed. “It’s a bill that needs a lot of improvement.”

The FCC “could actually pre-empt any law you adopt​,” warned Wilton Manors Mayor Gary Resnick as he opposed the Florida bill. Resnick sits on the FCC Intergovernmental Advisory Committee. “I would encourage you to find out more information about what the FCC is doing.”

Whom to Watch?

The FCC proceeding may be the “shiny object” getting attention, but local governments should keep an eye on their state legislatures, NATOA Executive Director Steve Traylor said in an interview. “There’s some real restrictions there that can be imposed on locals, but folks aren’t looking at it. … It should be of greater concern than it is.”

The many state bills appear to be based on the same industry-proposed model, which NATOA opposes, Traylor said. But local governments in some states like Colorado have been able to “do some massaging of the language” to make the bills somewhat more palatable, he said. NATOA recommends localities negotiate with industry, he said. “You’re going to miss an opportunity if you don’t talk to them.” Establishing a “one-size-fits-all” federal pre-emption may be worse for localities than many different state laws, he said. States are more likely to take a closer look at what works best for their communities and how to fit requirements to state laws, he said. It may be better for the FCC to step back and see what state legislation comes together, he said.

“Each of these bills is designed to prepare communities across the country for the coming wave of wireless infrastructure deployment needed to support 5G networks,” Wireless Infrastructure Association CEO Jonathan Adelstein emailed. “While each state’s existing laws and regulations create their own unique framework, the bills we’ve seen provide concrete ways for states and localities to more efficiently bring service to their residents. These bills include streamlining elements that ensure rapid responses from communities, clarity in the application process, and reasonable fee structures that encourage deployment.”