States' telecom-friendly laws hamstring locals seeking 5G; FCC order does likewise to states, their officials say

"The next generation of wireless technology, 5G, could bring major advancements in everything from entertainment to public safety. But federal, state and local governments are at odds over how that technology should be deployed and where regulatory authority over it should reside," Korey Clark reports for State Net Capitol Journal.

5G could mean big changes for rural areas, with speeds up to 100 times faster than current wireless networks: everything from telemedicine to farming could get a boost. But 5G requires many more relay towers (called small-cell antennas) and is generally more expensive to build out, so it could be a while before rural areas see it. 

Some small towns could negotiate with wireless providers to bring in 5G, but some laws favoring telecommunications companies may prevent them from doing so. Laws in 21 states establish statewide rules such as right-of-way fees for small-cell installations, according to the National Conference of State Legislatures, Clark reports: "Some bar local governments from negotiating their own deals with wireless providers or impose restrictions on such agreements. For example, legislation enacted in Texas in 2017, SB 1004, capped municipal ROW fees for small-cell installations at $250 per network node, well below the $1,500-$2,500 some of the state’s major cities were charging, potentially denying them millions of dollars a year, as Governing reported." The law's co-sponsor, Republican Sen. Paul Bettencourt, said it was meant to ensure that local governments don't use 5G rollout as a "major revenue source."

But John Davis, borough manager of Doylestown, Pa., told CNET that the town's battle with a wireless operator over the placement of small-cell antennas in the city's downtown was not about municipal revenue. "We never saw this new infrastructure as a cash cow," Davis said. "But they’re using rights of way that belong to the public, and we deserve to be fairly compensated for it."

Hawaii and a few other states passed small-cell laws that give local governments more leeway to negotiate with wireless carriers, but in September the Federal Communications Commission passed a rule and order that preempts any state or local laws and ordinances that conflict with FCC provisions, another move favorable to telecommunications companies.

"Those provisions include 'shot clock' time limits for processing applications for small-cell installations -- 60 days for installations on existing infrastructure and 90 days for those involving new utility poles -- as well as limits on application fees and a $270 cap on ROW charges," Clark reports. "The order also provides guidance on when aesthetic or other state or local requirements, such as 'undergrounding,' the deployment of infrastructure below ground, constitute an 'effective prohibition' of service."

The FCC said the order draws on "balanced and common sense" measures from state and local small cell bills and is meant to "remove regulatory barriers" that would unlawfully prevent the build out of infrastructure needed to support 5G networks. But Clark reports that the legislatures' organization and the National Governors Association said the order would hamstring states "looking to ensure inclusive and equitable access to high-speed internet services to residents." Dozens of cities and counties have sued to block the FCC ruling. Meanwhile, Clark reports that bills are pending in nine states to regulate 5G rollout, including Georgia, West Virginia and Montana.