MML Membership Adopts 2019 Legislative Priority – Preservation of Local Authority to Site Small Cellular Infrastructure
At the annual fall conference, held this year in Annapolis, the MML membership voted to approve the 2019 legislative priority recommended by the Legislative Committee. Unlike in years past when multiple priorities were adopted, for 2019 only one was recommended, largely due to the significant importance of the issue, and ultimately adopted. To many, the small cell issue will look familiar because it was a MML priority in 2018 – retention of municipal authority over siting of small cellular infrastructure.
Wireless telecommunication companies are bolstering their network to meet current and future 4G demand, while also preparing for the potential rollout of 5G as the next generation of cellular communications. Small cells are different from traditional macro cell towers in that, as the name suggests, they are significantly smaller, but can still have significant impact on the community. Some small cells attach to existing utility style poles, while others require new poles. One constant is that they must be deployed in greater quantities because their range is measured in feet or city blocks, not in miles.
The nexus between small cells and municipalities occurs when the placement site is on municipally-owned property or in a municipal right-of-way, which is a common occurrence. MML, along with other stakeholders, including Baltimore City and the Maryland Association of Counties, are actively working to develop a strategy to retain critical authority in this space while expanding or securing new authority as this debate continues.
The federal government has a stated goal of increasing deployment of cellular services and has implemented regulations through the Federal Communications Commission (FCC) as a result. At this time last year, the FCC regulations were relatively lax with a hard limit on shot clocks for processing small cell applications but allowing for reasonable fees. Now, after a vote in September, the FCC has shortened those shot clocks and capped the fees a jurisdiction can charge on applications and on right-of-way usage to a number that is below cost in many areas. This Order is set to go into effect in mid-January, but may be challenged in court prior to then.
Meanwhile, the state bill which was introduced during the 2018 General Assembly session was extremely generous to the industry, but was vehemently opposed by the League and ultimately defeated. The wireless industry has reengaged discussions with MML regarding possible legislation in Maryland in 2019. Their bill would likely seek to create an even more friendly environment for wireless companies than the FCC regulations; a strategy that has worked for the industry in other states and would be a blow to municipal authority.
Municipalities in Maryland need the authority to properly vet applications for small cells; which in some cases may require a hearing to ensure public safety, deliver a transparent process, and judge the viability of a specific location based on community values and aesthetics. In some aspects of the small cell debate, municipalities currently have authority and are looking to preserve it, while in others, municipalities are at risk of losing it, and in still others, municipalities are looking for an expansion of municipal authority.
Many cities and towns have already passed an ordinance or in the process of doing so; and the League encourages our members to continue to work on ordinances as this process plays out. MML has examples of ordinances that can be useful as a template when crafting local legislation. These local laws are meant to demonstrate that the priorities of a community are at risk of being preempted by a one size fits all system.
In addition to the legislative priority, three strategic initiatives are part of the legislative program. Unlike legislative priorities which generally are introduced by a member of the General Assembly in the form of a bill, strategic initiatives can be addressed through other avenues. The three strategic initiatives are opposition to preemption of local government authority in any area; exploration of new revenue streams for municipalities while protecting municipal Highway User Revenue monies to be allocated in the FY 2020 budget; and examining the possible modification of the five-year rule included in Maryland’s annexation statute. For more information on the small cell priority issue, or any of the strategic initiatives, please contact a member of the MML legislative team.