MONTGOMERY — Wireless carriers, Alabama city leaders and cable companies are still trying to find common ground in creating statewide legislation to regulate 5G cellular infrastructure.

“I’ve committed to trying to work with all parties as best as we can, but they have to be reasonable,” said Sen. Arthur Orr, R-Decatur.

At a joint Small Cell Wireless Technology Committee meeting last week, parties accused each other of not coming to the table to negotiate possible legislation. Without a compromise, 5G won't be available in much of Alabama.

Wireless carriers like AT&T and Verizon are urging lawmakers to create a statewide standard for deploying small cell technology. They want protection from municipalities' high fees and more access to city rights of way.

Municipalities say they're afraid of a far-reaching bill that would take away their property rights.

Alabama cable companies want to make sure the small cell technologies are treated in the same way that cable is in regards to negotiating fees and location.

Orr sponsored a regulatory bill that ultimately failed in the 2019 regular session. He and Sen. Jabo Waggoner, R-Vestavia Hills, are both on the committee and say they want legislation all parties can agree on. Orr is worried that if a compromise is not reached soon, Alabama could be missing out on some major investments.

“I see this as a public good that the public is being denied in most places in Alabama, and I’d like to see some kind of an agreement reached and this enhanced cellular service be offered all across the state,” Orr said.

Waggoner, the powerful Rules Committee chairman, said he wants to see legislation passed in the 2020 session.

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What is 5G?

5G, which stands for "fifth generation," is the latest in wireless technology that allows high-speed internet access over cellular networks to ensure quality of service in high-capacity areas. It is 10-20 times faster than 4G LTE. The networks require “small cell” receivers and antennas to take the signal transmitted from cellphone towers and disperse it locally. These small cells typically are spaced about 500 feet apart.

“Small cells” are about the size of two stacked rolls of paper towels. Small cells can be located on anything from billboards to the underside of manhole covers, but the most efficient locations for providers are on utility poles on publicly owned property. 

Orr’s Senate Bill 264 would have created a mandatory procedure specifying how municipalities process requests from providers to access public rights of way. In Orr’s bill, the cost of using an existing utility pole for a small cell receiver would be capped at $250 per year. In a proposed substitute bill, the League of Municipalities suggested a $900-per-pole fee. While debate over his bill has mainly involved cities, it also applies to state agencies and counties.

Orr's bill also specified that if a municipality failed to approve or deny a provider's application to use a utility pole for a small cell within a certain time period, typically 135 days, the application would be deemed approved.

Orr’s bill also laid out reasons municipalities could reject applications, but exempted providers from zoning ordinances.

Under Federal Communications Commission's standards issued last year, recurring fees that cities could charge annually are capped at $270. One-time fees, such as for applications, are capped at $500 for the first five and $100 for every subsequent application. If a provider wants to build a stand-alone small cell, that’s capped at a one-time, $1,000 fee.

The FCC order also puts in place a timeline in which projects have to be fulfilled once a completed application is submitted. The municipality has 60 days to approve an application for an attachment and 90 days for a new build application. Like Orr's bill, the FCC order would deem an application approved if the city failed to approve or deny it within the specified time.

Several cities have filed lawsuits seeking to block the FCC order as an unconstitutional federal infringement on local governments, leading providers to seek similar legislation in Alabama and other states.

Orr said he is still waiting for an opinion from the Legislative Services Agency on whether the FCC guidelines are enforceable before he proposes new legislation.

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Municipal concerns

Representatives from several Alabama cities said at the meeting Wednesday they were concerned about the FCC’s timeline in accepting applications.

Decatur Mayor Tab Bowling said at the meeting that the timeline is sometimes not feasible for cities that have limited personnel or resources to approve the dozens of applications that may come in.

“Our concern is that some of the FCC regulations have already limited some of our input and the gist of the proposed Senate bill seems to be that carriers could swamp us with requests and the default position would be that if we didn’t respond within a quick time frame they could build where they want to without our input,” Bowling said.

Another sticking point with cities is that they think they should be able to set their own cap on fees to rent space on their rights of way or when installing a new pole.

"Those fees are based upon the cost of regulation, which involves personnel from our building department or electrical inspectors, our engineers, our planning officials. All of these have a stake ... or interest in what happens in our rights of way," Jeff Downes, the city manager for Vestavia Hills, told Alabama Daily News.

Orr agrees that municipalities deserve control over their rights of way, but within limits.

“I understand the need for local governments to control rights of ways, but I also don’t believe this ought to be an opportunity to attempt to extract the maximum amount of dollars when it comes at the expense of what I define as a public good,” Orr said. “I don’t believe that industries need to be subsidized or get a lower cost; they ought to pay something and pay a reasonable amount.”

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Provider concerns

Providers say they are fine with paying the mandated fees specified by the FCC, but do not think it’s reasonable to ask them to negotiate every single application with every city in the state.

Beth Cooley, the senior director of state legislative affairs at CTIA, a U.S. wireless communications trade association, said providers don’t have the resources to spend that much time for every small cell application.

“We have limited capital budgets that we plan in advance, however much for each company, and what will happen is, it will go to other states,” Cooley said. “It’s going to go to the path of least resistance.”

— Decatur Daily Metro Editor Eric Fleischauer contributed to this story.

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