5G Preemption Is Coming

The Federal Communications Commission will vote on an order at its March 22 meeting eliminating the need for federally mandated historic preservation and environmental reviews when deploying small cells, meaning states and localities without such rules will be out of luck. But proponents of local self-reliance see it as phase one in transferring the management of public rights of way and the leasing of access from counties and cities over to the wireless industry. Phase two would be the FCC’s adoption of the industry-leaning Broadband Deployment Advisory Committee’s recommendations that local governments be allowed only 30 days to make permitting decisions and leases over and above the cost of the permitting process be limited.

Still the wireless industry has managed to circumvent many such ordinances at the state level through the passage of preemptive laws. “Nobody’s grandfathering you in,” said Gerry Lederer, partner at the law firm Best Best & Krieger. “So win the battle at the state level, and then get to developing your ordinances.” Lederer argued the industry can’t support state legislation at the same time it wants to have those conversations because—particularly with the emphasis President Donald Trump’s infrastructure proposal places on public-private partnerships—local governments are seeing their ability to leverage ownership of rights of way slip away. Counties and cities need to be able to obtain fair compensation through leases as they enter public private partnerships.  Instead, local government has been painted as a barrier to wireless deployment in the industry’s recent FCC and state legislative wins. “What we’re seeing around the country is this false narrative,” Lederer said. “Allow us access to the rights of way and government property for reduced prices, and we will build out to rural America.”