NATOA Members Seek Better Dialogue With Industry on 5G Small Cells

SEATTLE -- Localities urged industry to partner with them rather than fight for pre-emption of local authority on wireless siting of small cells for 5G networks. At NATOA's annual conference Monday and Tuesday, local and industry officials predicted more small-cells bills in states’ 2018 legislative sessions that would seek to pre-empt localities. An FCC Broadband Deployment Advisory Committee (BDAC) member said he doesn’t believe federal pre-emption is likely.

The wireless industry saw “enormous” progress this year moving small-cells bills through state legislatures, and has more state bills queued up for next year, said Wireless Infrastructure Association CEO Jonathan Adelstein in a Tuesday interview. WIA hopes to work with localities on those bills to find areas of compromise, he said. “There’s still a huge role for localities” and “we’re trying to be reasonable,” the WIA head said. “We might not agree on what is an unreasonable practice, but we do share the goal of getting broadband deployed in their communities." NATOA members are “thoughtful” about small-cells and other communications issues, but some other localities aren't, and state bills can address those cases, he said.

Washington state localities want to work with and not against industry when the legislature likely revives failed small-cells legislation in the 2018 session, said Ogden Murphy’s Elana Zana, an attorney for local governments. She’s communicating with industry "so that when we go back in 2018, we come together in a collaborative process, not two sides butting heads." Local collaboration with industry would produce better solutions than state legislation, Zana said. “The boots on the ground … understand the needs of their communities.”

Washington localities had collaborated with industry until this year when the state legislature introduced a “one-sided” bill favoring industry, Zana said. “It somewhat derailed the collaborative process that we had.” The bill included a too-short shot clock to review applications, a too-low cap on rental fees and an unacceptable ban on concealment restrictions in many areas, she said. “We spent most of the winter and into the spring fighting with the industry.” Localities and industry eventually reached compromise, but legislators ran out of time to bring the bill to the floor, she said.

Local governments want wireless technologies for smart cities and can play a role encouraging adoption, but industry must have reasonable expectations, said Mitsuko Herrera, cable communications administrator for Montgomery County, Maryland. Local governments can move quickly on applications, but not when a large volume is filed at once, Herrera said. “When somebody comes in and files all their applications for a single year which they’re not intending to build out right away … it makes it hard and that’s why you can’t promise on some of those deadlines.” Public hearings may be necessary, but they’re not possible with a 30-, 60- or 90-day deadline, Herrera said. “We can't agree to something that says the public is aced out entirely.”

States

Industry attempts for a Maryland small-cells bill didn't go anywhere, Herrera said, probably because the state’s rural legislators don’t believe claims that pre-empting local jurisdiction will bring 5G to rural areas.

California legislators may vote this week on a small-cells bill (SB-649), said Best Best local government attorney Gail Karish. A Pennsylvania small-cells bill (HB-1620) could see hearings in the legislature in October, said Philadelphia Chief Deputy City Solicitor Michael Athay.

Tempe is “coping” with Arizona’s 2017 small-cells law “because there was no alternative,” said Assistant City Attorney Jenae Naumann. Arizona cities are implementing the law enacted this year (see 1706060048). It was worse before localities negotiated with industry, she said.

BDAC

The federal government may not have an appetite for pre-emption on small-cells issues, BDAC member Brian Mefford said. Not at the FCC, White House or on Capitol Hill, the CNX CEO said. The BDAC aims to create model codes, “not a prescription,” Mefford said, adding that BDAC will issue recommendations in November. Some have asked for more time, he said, but FCC Chairman Ajit Pai denied an extension. The agency didn't comment.

Federal pre-emption seems the likely outcome of FCC broadband infrastructure rulemakings, especially given how much state bills vary, local government attorney Ken Fellman replied from the audience. This year, Fellman guided local governments to a compromise with industry on a Colorado law. “This whole strategy of the industry of fighting at the federal level, fighting in each state legislature and then trying to work reasonably at the ground level with local governments is going to create a much more difficult regulatory framework to operate in than they’re hoping for,” he said.

Despite hearing criticisms about BDAC membership, Mefford said he's “encouraged” by the committee’s work. He agreed not enough local representatives are on BDAC, but noted the working groups' compositions have been more expansive and representative: “Now, is the work product going to be universally embraced and heralded as the best policy ever to be created out of the FCC? Of course not.” But he said it has “provided a forum to help accelerate these conversations and to hear from people who are … in the trenches in this work every day.”

The FCC will use its authority to promote broadband deployment “to the maximum extent,” Adelstein predicted. Some BDAC working groups may make recommendations sooner than others, said Adelstein, a former FCC member who chairs BDAC's federal-siting working group. The two groups that most inform infrastructure rulemakings, related to barriers and access to existing infrastructure, may issue recommendations first since the FCC could act on the rulemaking by year-end, he said.

The FCC and BDAC are more likely to provide “clarification” and guidance than pre-emption, said Mobilitie Senior Director-Government Relations Melissa Mullarkey. But Tempe worries that local wins it got in the Arizona bill, including language related to concealment rules, may be “undone” by the federal commission, Naumann said. Athay said he’s "not expecting a good outcome for local governments” at the FCC. The federal agency may preserve some state laws, but only ones that more strongly favor industry, he said.

NATOA Notebook

Over-the-top video is taking away cable subscribers and it’s unknown whether the trend will ever level off, said Moss Barnett lawyer Brian Grogan at the NATOA conference Tuesday. Localities, which get revenue from cable company franchise fees but not OTT live-streaming services like Sling or Hulu, are seeing a “slow trickle down” of cable subscribers, the local government attorney said. The top 10 MVPDs lost 559,000 subscribers in Q1 2017 and loss appears to have continued at about the same pace in Q2, he said. The customer loss may slow or stop, or it might continue until there are no subscribers left, Grogan said. There’s “no question” people are moving to OTT services, but many people use the internet-based services as complements to cable TV. If most start replacing cable TV with OTT, he said, “the financial impact to your cities would be rather significant.”

Power outages were the biggest problem for wireless infrastructure companies after Harvey and Irma, Adelstein said in a Tuesday interview. “We’ve heard of very little damage to the actual structures, but we’ve heard of a lot of cellsites that are not operational because of a lack of power.” The storms don’t require new wireless infrastructure policies because the issue wasn’t the structures, he said.

The next NATOA annual conference is in Philadelphia, Aug. 27-30, NATOA Deputy Director Tonya Rideout said Tuesday. The 2019 conference is Sept. 23-26 in Tampa, she said.