Sen. Thune Introduces Discriminatory and Preemptive Small Cell Bill

by Angelina Panettieri, Natrional League of Cityies, 202-626-3196, | Original article here.

The National League of Cities urges its members to immediately contact their Members of Congress, particularly Senators who sit on the Senate Commerce Committee, and URGE STRONG OPPOSITION to S.3157.

  • Link to S.3157 bill text
  • Link to S.3157 actions
  • Link to side-by-side comparison of proposed changes to 1996 TCA — Section 704
  • Link to roster of Senate Commerce Committee
  • Link to NLC form to send letters to your elected Senators and Representatives; please substitute your own letter text before clicking send.

On June 28, Senators John Thune (R-SD) and Brian Schatz (D-HI) introduced the Streamlining The Rapid Evolution And Modernization of Leading-Edge Infrastructure Necessary to Enhance Small Cell Deployment Act or STREAMLINE Small Cell Deployment Act (S.3157). The bill is focused, much like the recent FCC rulemaking efforts, on limiting the actions local governments can take on small cell wireless facility siting in an effort to make deployments cheaper, faster, and more consistent across jurisdictions.

While the FCC’s statutory authority to take these actions is questionable and can be easily challenged in court, congressional action to limit local authority would be permanently damaging. The bill would severely limit the ability of local governments in states without preemptive state small cell laws to govern wireless siting and would complicate implementation of new small cell laws in states that have passed them.

Despite urging from NLC and other local government advocates during the bill’s drafting phase, many preemptive provisions remain in the bill. Senator Thune said that he intends to hold a hearing on this bill by the end of the month. We need local leaders to send your Members of Congress a letter today urging opposition to this harmful legislation.

S4WT Comment: please use this letter template only as a starting point; please compose your own letter by editing and deleting the text from this NLC letter, as you see fit (see full starter text, quoted at the bottom of this page).

In addition to preempting local authority, the bill would make some major changes to current federal requirements for small cell siting by carving out a new category of “small personal wireless facilities” with new requirements, separate from existing wireless siting law:

  • It would limit local consideration of small personal wireless facilities (defined as “a personal wireless service facility in which each antenna is not more than 3 cubic feet in volume; and does not include a wireline backhaul facility”) to “objective and reasonable” “structural engineering standards based on generally applicable codes; safety requirements; or aesthetic or concealment requirements.”

  • Modifies the application shot clock for most cities:

    1. 60 days for collocations
    2. 90 days for new sites
    3. 10 days to notify applicants in writing if their application is incomplete.
    4. Prohibits tolling to lengthen these shot clocks

  • Creates a shot clock carve outs for small cities, defined as fewer than 50,000 residents:

    1. 90 days for collocations if the provider has filed 50 or fewer applications in a 30-day period,
    2. 120 days for collocations if the provider has filed more than 50 applications in 30 days.
    3. 120 days for new sites if the provider has filed 50 or fewer applications in a 30-day period, or
    4. 150 days for new sites if the provider has filed more than 50 applications in 30 days.

  • Allows local governments to request a one-time 30-day waiver from the FCC.

  • Includes a deemed granted provision for applications not acted upon by the local government in the stated period.

  • It would limits fees, which the bill defines as “a fee to consider an application for the placement, construction, or modification of a small personal wireless facility, or to use a right-of-way or a facility in a right-of-way owned or managed by the State or local government for the placement, construction, or modification of a small personal wireless facility.” Fees would include application fees and recurring rents for usage of public property.

  • Fees must be “competitively neutral, technology neutral, and nondiscriminatory; publicly disclosed; and based on actual and direct costs.” This would eliminate market-based rents for small cell facility installations.

  • Finally, the bill orders a GAO study on broadband deployment on tribal land.

The bill does not provide for the grandfathering of any extant agreements between cities and providers or tower companies, and it would appear to preclude agreements such as those recently struck by the City of San Jose, CA with AT&T and Verizon lauded by Commissioner Rosenworcel as an example other local governments could use.

Suggested Edit of National League of Cities Letter Template Text

As a city leader and a constituent, I am writing to express my strong opposition to the "Streamlining The Rapid Evolution And Modernization of Leading-edge Infrastructure Necessary to Enhance (STREAMLINE) Small Cell Deployment Act" (S. 3157). This bill represents a direct affront to traditionally-held local authority and will complicate, rather than simplify, national efforts to expedite infrastructure deployment by mucking up state and local processes. My city shares Congress’s goal of ensuring efficient, safe, and appropriate deployment of broadband technology — either fiber optic and wireless, where appropriate. However, this S.3157 is not the best way to achieve these goals. Despite encouraging "technology-neutral" infrastructure, the bill is much too heavily-weighted toward Wireless installations over Fiber to the Premises (FTTP) which is a much more energy-efficient, safe, secure, reliable and fast broadband solution — a solution that can easily add Wi-Fi calling for in-building coverage.

S.3157 will complicate the existing efforts by state and local governments to deploy the most appropriate broadband infrastructure for their local communities. Some US states have passed State legislation specifically addressing the deployment of broadband infrastructure, and the local governments in those states are busy implementing new ordinances and procedures to comply with those changes. This unnecessary bill introduces a poorly-conceived one-size-fits-all preemption of those efforts to benefit only Wireless installations, when little data exists to determine which broadband strategies (Wireless vs FTTP) are most effective.

S.3157 imposes unfair and inappropriate timelines on local governments. The shot clocks proposed by S.3157 are draconian. They are considerably shorter than those the federal government applied to itself in the bipartisan MOBILE NOW Act. The reduced size per installation of small cell infrastructure does not directly translate to an accordingly reduced procedural burden on local governments. Cities must still review each site individually to ensure that it meets the local jurisdiction’s requirements. Further, the limited extension for small jurisdictions and bulk requests of over fifty applications does not address these resource challenges for states and localities.

Finally, limiting fees and rates to direct and actual costs is an extreme overreach by the federal government. Cities negotiate with providers to ensure appropriate compensation to taxpayers for private, profit-generating use of public property and to incentivize development that benefits community residents. In some cases, state constitutions’ prohibition on gifts to private entities prohibit cities from assessing less than a fair market value for rental of public property. When cities are prohibited from controlling these rates, they are forced to subsidize private development, at the cost of other critical local services such as road maintenance and public safety.

For these reasons, I am opposed to S. 3157 and urge you not to support it. Local governments should have the time and flexibility to ensure that the broadband infrastructure most appropriate to each locality is deployed not just quickly, but safely and correctly, in communities throughout the nation.