Stalled federal bill preempting local pole ownership, authority gets a push

by Steve Blum • , , ,

Congress might jump into the tug of war between the Federal Communications Commission and local governments over control of municipal property located in the public right of way. According to a story in Politico, the chairman of the federal senate’s commerce committee, senator John Thune (R – South Dakota) wants to move his small cell preemption billS. 3157 – ahead as the current congressional term winds down.

As originally drafted, S. 3157 tracks closely with the “small wireless facility” preemption ruling issued last month by the FCC. Permit application review times would limited, in some cases to as little as two months. The bill goes beyond the FCC’s plan and says that any permit that hasn’t been approved or denied before the shot clock runs out is automatically granted.

The bill also limits the amount that cities and counties can charge to lease out poles they own. Lease rates would be calculated using the same formula used to split utility pole costs between electric utilities and telecoms companies. In California, a typical rate is $25 per year per foot of space occupied on a pole. The net result would likely be rental rates below even the $270 a year that the FCC considers reasonable. That compares to the Californian average, which runs between $500 and $900 per pole per year.

Politico says that Thune wants to bring local governments on board with his bill, but he’s having a hard doing that…

The measure faces opposition from several organizations representing local and state governments. “I don’t know if they’re ever going to get on and fully endorse this,” Thune told reporters on Thursday. “I think in the end it’ll be hard, unless the cities get to a better comfort level than where they are today, it would be hard to advance the bill just because they have obviously a lot of influence with senators.” He said his staff continues to negotiate with an eye toward finding consensus and says a hearing is a good idea in any case “because I think we need to elevate the issue.”

A federal law has a lot more impact than an FCC ruling. As it stands now, the FCC can’t order a city to lease out a pole or issue a permit. It can only establish standards that judges might or might not use to settle disputes between cities and mobile carriers. And its authority even to do that is in question – last month’s FCC decision faces years of litigation before its effect is fully known.

Congress, on the other hand, does have the power to preempt state and local authority when communications and interstate commerce is involved, and delegate the job to the FCC.