Push for State Small-Cells Bills 'Ramping Down'
State small-cells bill action is slowing in 2022, said wireless industry and local officials. With laws in 32 states and Puerto Rico to streamline 5G deployment by preempting local authority in the right of way (ROW), eyes have turned to New Jersey, which is trying again to pass a bill that missed the finish line last year amid local opposition. Idaho legislators could soon consider small-cell rules for state highways recommended by the state Transportation Department.
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“We’ve achieved a lot of the major objectives of this campaign,” said Wireless Infrastructure Association CEO Jonathan Adelstein in an interview. “We’ve covered a lot of the states” that industry targeted and “made an effort where it was possible.” Adelstein said industry is close in New Jersey, but he agreed state action is “definitely ramping down.” Expect more wireless industry focus this year on how states use federal infrastructure funding, he said.
“It does seem like momentum has slowed on state small cell bills,” emailed NATOA General Counsel Nancy Werner. It’s at least partly due to “other priorities taking more of lawmakers’ time and attention,” like the COVID-19 pandemic, privacy and broadband funding, she said. “Another contributing factor likely is that the challenges to the FCC’s small cell order are over, which eliminates one of the arguments the wireless industry made to push these bills -- that courts could overturn the FCC’s order. With the order in place, state small cell bills would either be redundant to the FCC’s requirements or create confusion if the state law varies from the FCC’s order.”
New Jersey Assemblywoman Carol Murphy (D) revived her small-cells bill for this year as AB-471. As a new bill, it starts the legislative process afresh. Last year’s AB-1116 passed the Assembly 63-0 but the similar SB-2674 by then-Senate President Steve Sweeney (D) and Sen. Troy Singleton (D) never got a floor vote. Sweeney lost reelection. Singleton Chief of Staff Jennifer Aydjian referred us to Murphy.
Murphy is “committed 150% to get this passed this session,” the assemblywoman told us Wednesday. She said she will “try to get time” to review the proposal with new Senate President Nick Scutari (D), and speak with House Speaker Craig Coughlin (D). Getting the 5G bill signed into law is critical with wireless carriers killing 3G by year-end, Murphy said. New Jersey is “now one of the very last states” left to pass a small-cells bills, she noted. “That’s horrible because other states have definitely surpassed us in the technology front.” The bill hasn’t passed due to “a lot of misinformation,” including about the facilities’ aesthetics, she said. “For whatever reason, some of the senators … are having issues with it.”
Murphy cited conversations with municipalities that brought them to a neutral position, which she said is probably the best she can get. However, New Jersey State League of Municipalities Executive Director Mike Cerra told us Friday the league remains opposed to the bill. “There was a point earlier that based on amendments that had been agreed upon, we were silent in a committee hearing,” he emailed. “However, subsequent floor amendments pushed us back to an opposition to the bill.” The league has been negotiating with industry for a compromise, said Cerra. The league blogged Oct. 29 that it opposes restricting municipalities’ ability to regulate facilities’ placement and limiting compensation that may be collected.
The Idaho Transportation Department is ready to present proposed changes to utility rules on state highway ROW, Broadband Program Manager Robert Beachler emailed the service list for the department’s small wireless facility rulemaking Thursday. Scheduling is at House and Senate Transportation committees’ discretion, he said. Proposed small-cell rules include a fee schedule following the FCC’s 2018 wireless infrastructure order.
Small-cell legislative action could be following the pattern of state cable franchise laws, which stopped after three years of activity, said Best Best local government attorney Gerard Lederer. “Part of the reason for the falloff is that the promises made in the early states cannot be documented or proved in later states.” It’s hard to claim small cells won’t be deployed absent such laws given deployments are happening in California, Maryland, New York and New Jersey, he said.
Industry came close last year in California, said Adelstein: WIA isn’t giving up there, but it’s “not a hopeful target right now.” The legislature passed a bill, but the governor vetoed it, the second time that’s happened (see 2110050043). “At some point people in California are going to rise up against … the NIMBYs and not let them get in the way of progress.” The state is “paying the price,” said Adelstein: “They don’t get the same investment” or “service they would” with streamlined rules.
“In addition to federal guidelines, state and local siting reforms will speed up the rollout of 5G and provide clarity to municipalities and siting applicants alike, encouraging investment, jobs, and connectivity in communities across the country,” a CTIA spokesperson emailed.