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Statewide 5G regulation bill died, issue remains

By MARY SELL, Alabama Daily News

A north Alabama lawmaker says telecommunications companies’ ability to offer 5G service has been stalled by cities that want too much money for access to their existing infrastructure, including utility poles.

But city leaders say they opposed 5G legislation that died in the recent session because it would diminish their control of their rights-of-way and fees and ability to set their own application approval schedules.

5G, which stands for ‘”fifth generation,” is the latest in wireless technology that allows high-speed internet access over cellular networks to ensure quality of service in high-capacity areas. Those networks require “small cell” receivers and antennas to take the signal transmitted from cell phone towers and disperse it locally.

“Small cells” are about the size of two stacked rolls of paper towels, and providers want to place them on utility poles on public-owned property.

“At the end of the day, I see (5G) as a public good to have higher speed cell service and Internet service throughout the state,” Sen. Arthur Orr, R-Decatur said. “It’s a shame that other states have been able to handle this issue through statewide legislation, but in Alabama we seem paralyzed by what looks like the desire for more money by the cities.”

Orr’s Senate Bill 264 would have mandated a procedure by which municipalities would have to process requests from providers like AT&T and Verizon to access to public rights-of-way. The bill also set caps on what the providers could be charged for access to existing poles and new ones. Orr’s bill also laid out reasons municipalities could reject applications.

“(The bill) would have provided consistency and clarity in communities across Alabama, prohibiting arbitrary and excessive fees as well as protracted review and approval processes for modern, wireless infrastructure,” a statement from AT&T to Alabama Daily News said. “Nearly half of the states across the country have adopted similar legislation that offers similar guidelines for permitting, placement and design of modern wireless infrastructure like small cells.”

The Alabama League of Municipalities opposed the legislation for a variety of reasons, including the application timelines and set fees, deputy directory Greg Cochran said this week. Cochran and others said that while the antennas aren’t large, they can have accompanying equipment on the ground.

“Just like any technology has had to play by the rules of the local rights-of-way authority, this shouldn’t be any different,” Cochran said. “There’s no compelling argument that would provide that cities should relinquish their right-of-way authority for this development in technology.”

The bill defined rights-of-way as the area on, below, or above a public utility easement, roadway, highway, street, sidewalk, alley or similar property.

In Orr’s bill, access use of an existing utility pole to put a small cell receiver would be capped at $250 per year. In a proposed substitute bill, the League suggested a $900-per-pole fee.

About 11 cities approved resolutions this year opposing Orr’s legislation, according to the League of Municipalities. There were: Jasper, Montgomery, Morris, Mountain Brook, Opelika, Ozark, Sylvania, Pell City and Vestavia Hills. Separately, the mayors of the five largest cities — Birmingham, Mobile, Montgomery, Huntsville, Tuscaloosa — asked legislative leadership not to support the bill.

“We love (5G), we think it’s the future,” Montgomery Mayor Todd Strange said. “(But the legislation) was going use our rights-of-way without any authority from us.”

Tuscaloosa Mayor Walt Maddox said he didn’t have a problem with application timelines in the bill, if telecommunications companies have to respond to cities in the same amount of time when they have utility projects.

“We were open to the timelines, we wanted them to meet the same timelines for our projects,” Maddox said.

He said telecommunications companies shouldn’t have more access to rights-of-way than any other company.

“It’s the taxpayers’ property and they deserve the right to have fair and honest negotiations,” Maddox said.

FCC order

In September, the Federal Communications Commission issued an order  to “remove regulatory barriers that inhibit the deployment of infrastructure necessary for 5G and other advanced wireless services.” In it were fee caps, including a $270-a-year fee to put a small wireless facility on a municipally owned structure.

Some states have appealed, citing overreach by the FCC, and the case is pending in the 9th Circuit Court of Appeals.

Before this year, 21 state legislatures had enacted small cell legislation that streamlines regulations to facilitate the deployment of 5G small cells, according to the National Conference of State Legislatures. Arkansas, Georgia, Kansas, Nebraska and West Virginia enacted legislation this year.

According to the Wireless Infrastructure Association, of the states that last year had statewide legislation regulating access and fees, most set their “attachment rates” at $200 or less per pole or structure.

In 2017, Florida lawmakers set that state’s fee at $150 per pole, per year. At least three cities have sued over the law, according to media reports. In Tennessee, the fee is $100, in North Carolina, it’s $50.

“I think the providers ought to pay a fair and reasonable price, but when (Alabama cities) demand $900 a pole, that’s unreasonable,” Orr said. “When you look at our sister states, their demands become even more unreasonable.”

What’s next

The Legislature didn’t approve Orr’s bill but did OK a resolution requiring a task force of three House and three Senate members to develop a report that includes proposed small wireless facilities deployment legislation “that is consistent with the requirements of federal and state laws, regulations, and rules.” The report is due by Oct. 1.

According to the resolution, “the state is at risk of losing out on capital investment and economic opportunity that is going to other states because we have yet to provide a statewide clear, consistent, and fair path for all wireless providers to deploy the equipment necessary to deliver the latest wireless broadband technology…”

Orr will be on the task force.

“Alabama is missing out on large investments in telecommunications infrastructure because we can’t seem to agree on a statewide bill,” Orr said.

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