U.S. senate looks at stomping local wireless property rights and permits

by Steve Blum • , , , ,

A draft bill bouncing around the U.S senate would preempt state and local ownership of public property when wireless companies want to use it, and would put tight limits on state and local authority to issue permits for wireless facilities on private property. It’s a bipartisan effort, led by senators John Thune (R – South Dakota) and Brian Schatz (D – Hawaii), both of whom are major congressional broadband policy players.

In a lot of ways, it resembles senate bill 649, which was approved by the California legislature this year then vetoed by governor Jerry Brown, who wanted a “more balanced solution”. This bill ain’t it. As drafted, the bill

  • Requires state and local government to make the public right of way, and poles and any “other facility owned by the state or local government” available “to support equipment for use by providers of wireless services”.
  • Says compensation for use of poles, right of way and other property must be “based on actual and direct costs”. Utility poles – as opposed to, say, street light poles – are exempted, in a double-reverse sort of way. Rates for attachments to utility poles are governed by existing state and federal laws, and are similarly restricted to actual costs. The formulas used to determine those rates will be the presumptive method for figuring out the actual and direct cost of attaching wireless transmitters and antennas to street lights and other publicly owned assets. In California, that rate is around $25 per year, give or take a few bucks, per foot of pole used. That’s even less than SB 649, which allowed actual cost plus $250 a year.
  • Creates a shot clock of 60 days to “act on” collocation permit applications and 90 days for any other request to “to place, construct, or modify wireless service facilities”. Current federal shot clock rules are more complicated, and range from 60 days to 150 days.
  • Provides that if the shot clock expires without a decision, the permit application would be automatically “deemed granted”. California already has a similar “deemed approved” law, that’s tied to the various 60 to 150 day shot clocks.
  • Extends all the related courtesies and privileges of telcos to cable companies, without any of the associated regulatory obligations.

So far, the bill hasn’t been formally introduced. That’s not such a big deal in the federal congress, where final bill language regarding any topic can materialise at the last moment and be tacked on to completely unrelated legislation. This draft reads like it was written by wireless and cable lobbyists, who wouldn’t be at all interested in giving it a fair and open hearing. As the year winds down, anything could happen.