Virginia Governor Seeks 'Flexibility for Local Governments' in Wireless Bill Amendments
Virginia Gov. Ralph Northam (D) carved out local governments from legislation to cap annual right-of-way fees for wireless structures. Localities applauded Northam’s amendment as more good news this spring after 5G small-cell infrastructure bills failed in several other states. “Local governments need to keep sending the message that pre-emption is not the answer,” said NATOA General Counsel Nancy Werner Tuesday.
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Small-cells bills died or missed deadlines to pass this session in Georgia, Maine, Maryland, Nebraska, West Virginia and Wisconsin legislatures. New York lawmakers pulled small-cells language that initially appeared in a state budget bill. New Mexico and Utah enacted small-cells bills this year and Illinois passed a bill about two months ago that’s not yet signed. Bills in Hawaii, Michigan, Missouri, Oklahoma and Tennessee cleared committees and await floor votes, with the Hawaii Senate expected to consider HB-2651 Tuesday and Tennessee Senate set to consider SB-2504 Wednesday. Less far along are bills in Pennsylvania, Washington and Ohio, which is developing a fresh bill after multiple courts rejected its 2016 small-cells law for non-substantive reasons. Including Ohio, 15 states enacted small-cells laws.
The Virginia development makes eight wins for local governments against two for industry in state fights this year, not counting the unsigned Illinois bill, said Best Best local government attorney Gerard Lederer. Progress fighting state bills is due to “warranted skepticism about industry’s argument for the necessity of these laws,” NATOA’s Werner said. Industry should work with localities, she said. “The United States does not ‘win the 5G race’ if all but the most profitable communities are left behind, while industry gets a windfall from subsidized use of local property and free rein over the safety and aesthetics of their installations.”
Northam amended four wireless bills “to provide flexibility for local governments and encourage deployment of wireless infrastructure to unserved and underserved areas,” his office said. Northam explained his bill review philosophy: “If it makes our Commonwealth work better for the people who live here, I sign it. If it doesn’t, I amend it or I veto it.” The General Assembly will consider the governor’s amendments when it reconvenes April 18, a Northam spokeswoman said.
The Virginia bills addressed wireless infrastructure zoning and fees, expanding on last year’s small-cells law (see 1803010045), which was signed by former Gov. Terry McAuliffe (D). In an amendment to a bill setting caps for annual public ROW usage fees on wireless structures, Northam removed all references to localities, meaning the bill would apply only to state ROWs managed by the Virginia Department of Transportation (VDOT). The fee caps proposed in the original legislation “were negotiated by VDOT without localities at the table and therefore local governments strongly support these amendments,” Virginia Municipal League (VML) Executive Director Michelle Gowdy emailed.
A Northam amendment to the legislature’s zoning proposal answered localities’ request to tweak language in the original bill to preclude discrimination “between the applicant and other wireless services providers, wireless infrastructure providers, providers of telecommunications services, and nonpublic providers of cable television and electric services.” Northam proposed editing the last phrase to “other providers of functionally equivalent services.” Localities wanted the change because “it is appropriate for these wireless carriers to be compared to similar carriers, not true public utilities that have to provide last mile service,” Gowdy said.
Another amendment to the zoning plan would establish a group to write a plan for expanding wireless service in unserved and underserved areas. The plan, due Dec. 15, “shall include the following components: a definition of unserved and underserved areas, identification of barriers to access to wireless services in such areas, a proposed expedited review process for such areas, identification of ways to encourage industry to locate in such areas, and consideration of a lower fee for such an expedited review process.”
The Virginia league followed the strategy of California local governments that last year defeated a small-cells bill after it passed the legislature, Gowdy said: “California had over 300 localities weigh in and [Gov. Jerry Brown (D)] vetoed the bill.” VML also was in touch with Maryland localities that fought off their own small-cells bill this year (see 1803210048), she said.
“In Georgia, we had many local officials contacting their legislators throughout the session and having conversations with them about the bills,” a Georgia Municipal Association spokeswoman said. “That engagement played a big role in the bills not passing this session.”
Illinois municipalities continue to lobby Gov. Bruce Rauner (R) against SB-1451 as passed by the legislature, said Municipal Services Associates President Stu Chapman, a technical consultant for municipalities. Municipalities are watching a pending new bill, HB-1187, that would grandfather communities that adopt local small-cells ordinances before SB-1451 becomes effective, Chapman said. Only Chicago was exempted in the original bill.