More Litigation Predicted Over Pre-empting Localities
Fighting seems unlikely to end soon in state and federal efforts to pre-empt local authority over broadband infrastructure deployment, said local government panelists Monday at a National League of Cities conference in Washington. Small-cells bills to promote 5G deployment by pre-empting local right-of-way (ROW) authority have been passed in 16 state legislatures and enacted into law in 14, but localities sued Ohio and Texas over such laws. Bad policy leads to litigation, so “there’s going to be more and more of this around the country,” predicted Mayor Gary Resnick of Wilton Manors, Florida.
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Cities “deserve real representation rather than token seats at the table” on the FCC Broadband Deployment Advisory Committee (BDAC), Commissioner Jessica Rosenworcel said in remarks prepared for delivery Monday. “This structural failure has consequences -- too little of our discussion is about the possibilities of partnership. That’s not right -- and know that I will critically view the work of this committee because I think it lacks the voice it needs to succeed.”
Localities don’t want to be involved in lawsuits, “but they’re also not just going to lay down and die,” said Resnick, also a telecom attorney for local governments. Florida passed a small-cells law, but localities couldn’t sue the state because that would be illegal under Florida law, he said. But Florida localities can legally claim a statute is unconstitutional in defense, for example if industry sued a locality over not complying with the small-cells law, said the mayor: “That’s probably going to happen at some point.” Litigation isn’t good for industry, either, because companies want certainty, he said.
A pending Georgia small-cells bill may violate the gratuities clause of the state constitution, said Georgia Municipal Association Executive Director Larry Hanson: “It would be a gift to a private company if we were charging less than a market rate.” Industry wants to pay for “actual costs” of using the ROW, he said. Those are “impossible to calculate,” but ROW costs include more than mowing the grass, he said. The Georgia Senate passed the small-cells bill (SB-426), which awaits a vote in the House. Localities are negotiating and “cautiously optimistic” about limiting damage to local control, said Hanson.
“All eyes are on Texas,” where local governments are suing the state over the law (see 1712110044), said Hanson. Localities also sued Ohio, with success (see 1712070056), but challenges were based on a procedural requirement that laws not contain more than one subject, which wouldn’t be grounds in other states, Resnick said. Major cities are challenging the Texas bill on more substantive grounds, he said.
Hanson also is negotiating with industry at the federal level as member of the BDAC. The FCC committee's municipal code working group is making progress toward an April recommendation, but industry dominates that group and the wider BDAC is also industry dominated, Hanson said. A new subcommittee on rates and fees has a smaller, more-balanced membership, he said. It has been meeting about weekly since December, with an all-day meeting planned for Wednesday, he said.
Don’t forget that 5G is still in development and the standard isn’t finalized, said Coalition for Local Internet Choice CEO Joanne Hovis. “We are years away from seeing if this technology will work and if it will work at scale.” It’s disingenuous for anyone to argue that 5G is a solution for rural areas, she said. Pre-emption is “destructive” to broadband goals; cities should challenge the idea that public involvement hurts private investment and broadband deployment, Hovis said. Private investment grows, not shrinks, when local governments bring competition to a market, she said.