BACKGROUND
Last year, staff was actively engaged in opposing a “small cell” wireless bill (SB 649) introduced by the Legislature that sought to eliminate public input, eliminate reasonable local nvironmental and design review, mandate the forced leasing of publicly owned infrastructure, and eliminate the ability for local governments to negotiate fair leased or any public benefit for the installations of “small cell” wireless equipment on taxpayer-funded property. The bill was ultimately vetoed by the governor. This year, the telecommunications industry has been very active in Washington with efforts to have similar types of restrictions passed at the federal level. The following is an overview of two of the most recent actions:
Federal Communications Commission Action
The FCC adopted a Wireless Infrastructure Order at their meeting on September 26 on a 3-1 party line vote. The Declaratory Ruling and Third Report and Order (3rd R&O) jeopardizes municipalities’ authority to manage their rights-of-way and significantly changes new “shot clocks” for state and local approval and sets limits for reoccurring fees for applications.
The 3rd R&O creates two new categories of shot clocks for small cell wireless facility review: 60 days to complete review for collocated small cells and 90 days for new structures. The shot clock begins upon submission of an application, regardless of completion. They may be paused if a local government notifies the applicant within 30 days of receipt that the application is incomplete.
The Order also limits application fees for all small wireless facilities to $500 for up to five sites and $100 per site for each site thereafter. It limits recurring fees for small cells in the rights-of-way to a “reasonable approximation” of the locality’s “objectively reasonable costs” for managing the rights-of-way or a structure within the rights-of-way, which must be no higher than fees for similar actors.
The FCC finds a reasonable recurring fee to be $270 per site per year. Local governments are prohibited from recovering any cost not directly related to rights-of-way maintenance, charging fees above cost recovery, or recovering “unreasonable” costs such as excessive contractor or consultant fees. The Order also limits allowable local aesthetic requirements, including minimum spacing requirements, to those that are “(1) reasonable, (2) no more burdensome than those applied to other types of infrastructure deployments, and (3) published in advance.”
Commissioner Rosenworcel was the lone vote to oppose the Order. She issued the following rebuttal in her “dissenting in part” statement in support of municipal governments:
“Instead of working with our state and local partners to speed the way to 5G deployment, we cut them out. We tell them going forward, Washington will make choices for them about which fees are permissible and which are not; about what aesthetic choices are viable and which are not. With complete disregard for the fact that infrastructure decisions do not work the same in New York, NY and New York, Iowa. So it comes down to this – three unelected officials on this dais are telling state and local leaders all across the country what they can and cannot do in their own backyards. This is extraordinary federal overreach. And I don’t believe that the law permits Washington to run roughshod over state and local authority like this. And I worry that the litigation that follows will only slow our 5G future.”
It is expected that numerous state and local groups (National League of Cities, US Conference of Mayors, American Public Power Association, etc.) will file lawsuits and will request a stay from the U.S. District Court of Appeals.
Congress – S.3157 (Thune & Schatz) STREAMLINE Act
Earlier this summer, Sens. John Thune, R-S.D., and Brian Schatz, D-Hawaii introduced S. 3157, the Streamlining the Rapid Evolution and Modernization of Leading-edge Infrastructure Necessary to Enhance Small Cell Deployment Act (STREAMLINE Small Cell Deployment Act). The introduction of the bill received mixed reviews from industry groups and local governments.
Similar to SB 649 mentioned earlier, the bill would lay the groundwork to speed deployment of next-generation, or 5G, wireless services, including establishing a “shot clock” to set deadlines for state and local governments to either approve or deny requests to install small-cell wireless equipment.
Senator Thune and Senator Schatz said the legislation is critical for deploying 5G in underserved and rural areas. The National League of Cities (NLC) has been in negotiations with the senators for more than six months over the legislation, but is still not pleased with what is contained in the bill. They have expressed disappointed that the discussions did not result in their concerns about local preemption, and imposing a new federal one-size-fits-all mandate for small cell deployments being fully addressed.
However, industry groups including The Rural Broadband Association, The Competitive Carriers Association and many wireless companies were very supportive of the legislation. The organizations expressed their beliefs that the legislation will reduce barriers to deployment of communications networks needed to meet the growing demands of consumers in rural and large cities alike.
The City is opposed to the bill and a letter from the Mayor was sent to the City’s congressional delegation expressing the City’s concerns. (Attachment A) As with SB 649, the City has serious concerns that the bill would force local governments to lease out publicly owned infrastructure, eliminate reasonable environmental and local design review and eliminate the ability for local governments to negotiate fair leases or public benefits for the installation of “small cell” wireless equipment on taxpayer-funded property.
Furthermore, the City has demonstrated its commitment to working effectively with the telecommunications industry to provide an effective process for the approval of the installation of “small cell” wireless equipment on City owned property. To that end, the City entered into a Wireless Marketing Agreement with XG Communities, LLC to provide wireless consulting, management and development services related to the use of City-owned assets for wireless telecommunications facilities. The process is moving forward very effectively and it is expected that the first agreements with telecommunications providers for the use of City-owned assets will occur in the coming months. These efforts demonstrate that local government and the telecommunications industry can accomplish the permitting, agreement, and installation of wireless equipment without pressure from state and/or federal governments.
Conclusion
The City has demonstrated its commitment to ensuring the community has access to the most reliable wireless/broadband technology and we will continue to work with our telecommunications providers to reach agreements for small cell deployments in our community. Staff will continue to track further developments with both the FCC action and S. 3157 and will update the Committee on any changes that occur.