California Small Cell Bill to Severely Limit Local Government Control of Street Lights and Traffic Signal Poles

Four years after California Gov. Jerry Brown vetoed Senate Bill 649, an industry-sponsored “small cell” bill, the wireless industry is back with another bill: SB 556.

The new bill would dramatically expand the scope of an existing law that allows communications companies to use municipal electric “utility poles” for their wireline and wireless facilities. This would be done by broadening the types of public infrastructure that must be made available to include light poles and traffic signal poles, among others, and applying the law to more than 500 local governments, in addition to municipal electric utilities. While SB 556 purports to preempt local authority with the goal of assisting the wireless industry in the expansion of broadband access, it fails to set any requirements for the wireless industry to expand broadband facilities or close the digital divide.

SB 556: Unnecessary and Misguided
The bill is unnecessary because countless local governments have already negotiated contracts in good faith with wireless companies to allow use of locally owned poles in the public streets on what the industry would view as reasonable terms, and local governments already comply with the FCC Small Cell Order. In 2018, the FCC issued a Small Cell Order that essentially required local governments to make vertical infrastructure in the streets available at cost-based rates and established a “safe harbor” rate of $270 per wireless facility attachment per year. SB 556 duplicates the FCC’s Small Cell Order regarding rates. BB&K is leading a local government coalition challenging this cost-based pricing (the petition for writ of certiorari is pending at the U.S. Supreme Court).

If SB 556 becomes state law, California local governments would face more severe restrictions than the FCC Small Cell Order. For example:

• For contracts entered into before the cost provisions of the FCC Small Cell Order went into effect, the FCC did not overtly preempt them, instead indicating their status would depend on the particular facts and circumstances. SB 556, if adopted, would preempt existing contracts, protecting contractual rates that exceed $270 per year per pole only if the equipment is installed by Jan. 1, 2022.
• The FCC’s Small Cell Order mandates very short “shot clocks” for acting on applications for small wireless facilities that the wireless industry routinely seeks to place on street lights, traffic lights and utility poles (60 days for existing poles and 90 days for new or replacement poles). But the Order states that the time lines are presumptively reasonable — meaning, in certain circumstances, a longer review period would be permissible. SB 556 establishes even shorter timelines, and they are fixed (45 days for a single request and 60 days if the applicant bundles requests to attach to over 300 poles).

Perhaps the most troubling and disappointing aspect of the bill is that it is so completely misguided as a policy initiative. The findings introducing the bill claim this preemption of local control will support broadband deployment. It won’t. The COVID-19 pandemic has certainly revealed a strong need to improve access to broadband. But claims that local governments are creating roadblocks to broadband deployment are unfounded. SB 556 is a giveaway to the wireless industry at the expense of local governments with no obligation or commitment from the wireless industry to install broadband facilities or make broadband service affordable to reduce the digital divide. California needs meaningful and enforceable requirements to extend broadband services to the entire state. This bill does not do that.

Lend Your Voice
The California League of Cities opposes the bill. If your city or county is concerned about the impacts of this bill, you should contact your senator and members of the Energy, Utilities and Communications Committee before the April 19 hearing.

Disclaimer: BB&K Legal Alerts are not intended as legal advice. Additional facts, facts specific to your situation or future developments may affect subjects contained herein. Seek the advice of an attorney before acting or relying upon any information herein.