Cities can still use positive incentives to influence wireless broadband builds

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Cities and counties are still in control of their own property, at least concerning decisions about where to install wireless broadband facilities. In a recent ruling that tightens the limits on how local governments may regulate cell towers, antennae and other wireless infrastructure, the FCC said those rules don’t apply when cities are simply acting as landlords…

Courts have consistently recognized that in “determining whether government contracts are subject to preemption, the case law distinguishes between actions a State entity takes in a proprietary capacity— actions similar to those a private entity might take—and its attempts to regulate.”…Like private property owners, local governments enter into lease and license agreements to allow parties to place antennas and other wireless service facilities on local-government property, and we find no basis for applying [these restrictions] in those circumstances.

In fact, cities can go a little further and craft rules that create a preference – in some cases a requirement – for installing wireless facilities on public, rather than private, property…

Most industry and municipal commenters support the conclusion that many such preferences are valid. For example, some commenters assert that such preferences are not unlawfully discriminatory as a general matter, but that they can violate [federal law] if they effectively “pressure” applicants to use municipal property or are coupled with ordinances making it too onerous to site anywhere else…however, determining whether a particular municipal property preference violates [federal law] depends on the specific details of the preference and related requirements…Therefore…we decline at this time to find municipal property preferences per se unlawful.

It’s hardly a blank check. Local governments can’t keep towers, antennae or other equipment off of private property, even if a city-owned site is available, but a certain amount of encourage is allowed.

With this latest ruling, cities have even less of a stick to wave at wireless companies, but retain the right to use public property as a carrot to creatively influence where facilities are built.

About Steve Blum

Steve Blum is president of Tellus Venture Associates, a management, planning and business development consultancy for municipal and community broadband initiatives. He is a 30-year industry veteran and an expert in developing new broadband infrastructure and services, including wireless, fiber optic and satellite systems. His career includes playing key roles in the launch and growth of DirecTv in the U.S., as well as other satellite broadcasting platforms around the world. For the past ten years, he has helped build municipal wireless and fiber optic broadband systems. His client list includes many California cities, such as San Leandro, Palo Alto, Oakland, Los Angeles, Lompoc and Folsom. He’s a member of the executive team for the Central Coast Broadband Consortium and has worked with other regional consortia in California. Steve is the author of seven books on the Internet and satellite broadcasting and is a frequent contributor to professional journals and industry events. He holds an A.B. in History from the University of California, Berkeley, an M.A. in East Asia Studies from the University of Washington, and an M.B.A. from the University of St. Thomas. He is a triathlete and multiple Ironman finisher, and is currently ranked in the top 100 of the Challenge Triathlon world rankings, out of more than 30,000 athletes.