Thune, Schatz See Small-Cell Deployment Bill as Major July Priority, Despite Localities' Concerns

Thune told reporters last week he hopes to have a hearing on S-3157 in July, and a markup might be possible later. S-3157, which first circulated in October (see 1710310057), aims to ease barriers to 5G and other broadband deployment by implementing a “reasonable process and timeframe guidelines” for state and local consideration of small-cell applications. State and local governments repeatedly pushed back while the bill was circulating over language to pre-empt state, local and tribal laws seen as barriers to deployments (see 1711240024, 1712070075 and 1804130057).

Thune said he believes negotiations on S-3157 had “by and large” addressed local and state governments' concerns, though he acknowledged that was likely “the hardest part” of bringing the legislation to fruition. The aim was always “to make sure that we strike the right balance so that there's a good path forward when it comes to getting these projects approved but also respecting the rights and prerogatives of state and local governments,” Thune said. Schatz told us S-3157's introduction is by no means an indication that state and local governments' concerns with the bill are fully settled.

“We've made a lot of progress but this is the next phase in the discussion,” Schatz said. “We anticipate that once members get a chance to get a look at this we're going to get additional input. We want this to be a collaborative process.” Negotiations resulted in changes to S-3157 before its introduction that “allow for more meaningful input and control at the local level,” Schatz said. The bill sets a 60-day shot clock for state and localities to review collocation applications and a 90-day clock for other applications, but that was an attempt to find a “middle path” that accommodated state and local governments, he said. The original draft set stricter shot clock rules.

The governments' concerns about S-3157 loom as a major hurdle because Senate Democrats apart from Schatz were “not likely to be on board if there was significant opposition” from those entities, said one telecom lobbyist who concentrates on Democratic lawmakers. Thune can successfully mark up the bill in Senate Commerce, but “it's not going to get past that point without 60 votes and for that you need other Democrats to support it.” Senate Democrats “are going to be looking to” the offices of Senate Minority Leader Chuck Schumer, D-N.Y., and Senate Commerce ranking member Bill Nelson, D-Fla., “for guidance on this,” the lobbyist said. For both lawmakers at this point “there's not a lot to be gained by backing this bill. Why would [Nelson] go against his localities right now?”

Institute for Local Self-Reliance Community Broadband Networks Initiative Director Christopher Mitchell and other state and local government officials acknowledge the filed version of S-3157 is a slight improvement over the language in the original draft, but note a range of other unresolved issues. Mitchell said Thune and Schatz removed language that would have limited the amount of franchise fees on small-cell deployments to only cable system revenue, but “cable and telephone companies are fighting hard” for that provision to be returned.

S-3157's pre-emption language is essentially a “one-way turnstile” because the proposed national standards would be unevenly applied to the 20 states whose governments have already passed small-cell deployment laws, one telecom lobbyist said. “If your state passed a law more generous” in its process rules than the proposed national standards, S-3157 would pre-empt the state law. But the legislation would not in turn require the national standard to be applied in states that instituted an even shorter review process, the lobbyist said. “That's troublesome,” one local official said.

Mitchell told us he believes S-3157 overall can't be modified in a way that would be palatable to localities because it takes too much of the power for negotiating small-deployment terms away from them. “Companies should continue to negotiate” on a community-by-community basis because each locality “has different needs, different vertical assets, different preferences,” he said. “The presumption is that something needs to change in order to improve wireless access across the country, and that is not the case.”

Other communications sector officials are optimistic about S-3157 and its future prospects. NTCA CEO Shirley Bloomfield said she sees “a lot of momentum” for enacting legislation that eases barriers to broadband deployment and believes S-3157 easily fits into that category. It “feels like all the stars are aligning” for efforts to take a “commonsense approach” to encouraging broadband deployments, she told us. “I think this is a very reasonable lift” and “something that could be done between now” and the November election. But lawmakers will need to avoid making S-3157 a “Christmas tree” bill that could become a vehicle for passing a range of telecom-related legislation, Bloomfield said. “I hope they stick to the topic.”

Several industry lobbyists believe Congress will eventually pass some form of S-3157, but there may not be enough time to get it through before the start of 2019. The Senate in particular is “running out of time to do much of anything” on telecom legislation in the remainder of this year despite the significantly abbreviated August recess. If Thune is able to schedule a July hearing on the bill “maybe they can mark it up and zip it through,” the lobbyist said. Thune and Schatz could be successful “if they couch their argument for [S-3157] in the right way,” emphasizing the need to streamline small-cell deployment processes as necessary to ensuring the U.S. beats out China to lead on 5G. “There are very few things that the Senate can agree on but one of those things” at the moment is combating China, the lobbyist said.