Ohio Cities, carriers strike compromise over 5G technology

A year ago, it looked like the state Legislature was going to impose on Ohio communities a set of regulations that would severely limit a community's ability to control how telecommunications companies planted new telecommunications equipment along its main streets and in its residential neighborhoods.

The equipment is needed for the next generation of wireless communications, called 5G, which, the industry says, will increase data speeds dramatically. This new technology will boost the data-carrying capacity not just of smartphones but of autonomous vehicles and other products that comprise the Internet of Things, as well as for in-home wireless internet connections that will offer competition to current home and business broadband services that deliver the internet by fiber or cable.

AT&T, one of the major wireless providers, said in February that it plans to offer mobile 5G to customers in a dozen cities by the end of 2018, including parts of Dallas, Atlanta and Waco, Texas. Its news release included Cleveland among a group of 500 markets where it plans to make 5G technology available later this year.

Verizon Wireless, another major player, has not announced such broad plans. In an interview with CNBC last Tuesday, May 15, CEO Lowell McAdam said Verizon is looking at four cities, including Los Angeles, for a launch of 5G for fixed wireless applications such as home appliances and broadband with mobile services launching in the first quarter of 2019.

Legislation to limit local control over equipment placement was tacked on as an amendment to a bill that regulated pet shops, Senate Bill 331, that passed during the Legislature's lame-duck session at the end of 2017. That bill also banned cities from raising their minimum wage.

Many communities were unhappy with what they saw as the state setting standards for what are called small-cell wireless antennas. The cities believed that SB 331 severely limited their ability to regulate where small cell towers could be located and what they could look like. They saw it as an infringement on their home rule powers.

The cities believed SB 331 would have allowed telecommunications companies to attach new wireless equipment to existing light poles, traffic signals or sign poles along public streets or construct a new pole or modify an existing pole that has wireless equipment.

William Hanna, a public law attorney with the Cleveland firm of Walter | Haverfield, wrote at the time that the legislation "significantly impacts a municipality's ability to regulate the placement, construction, modification and maintenance of 'small cell' wireless facilities in the public right of way," meaning the sidewalks and tree lawns of city streets.

"5G is faster than the current 4G/LTE (that most smartphones use), but it relies on changing the structure of the wireless network," said J. Sharpe Smith, senior editor of ALG magazine, a publication that follows the wireless technology industry. "Right now, the industry is under pressure to create the infrastructure that will be needed to be there" for 5G.

Sharpe said in a telephone interview that the industry wants to place 100,000 small antennas a year for the next five years to build out their networks. But to build the poles or other fixtures that carry those antennas, wireless companies need to navigate sometimes slow government approval.

Right now, cell towers are regulated largely by the federal government and by the zoning codes and permitting processes of cities and villages and, according to Sharpe, there are 39,000 communities that "all have their own ideas and their local codes. So the industry wants to streamline the regulation of small cells."

To ease their placement and installation, the wireless companies have been lobbying for state laws that would override local zoning and permitting processes and be relatively uniform from state to state. They thought they succeeded in Ohio in 2017.

But the cities fought back in court. Victories in a handful of lawsuits filed in the state's major counties by more than 70 communities held up implementation in 2017. The legal victories didn't directly strike down the wireless cell regulations. Rather, judges found that the legislation violated the Ohio Constitution's "single-subject rule" for legislation.

As a result, the Legislature had to come up with new legislation, and it asked the telecommunications industry and representatives of cities and villages to come up with something they all could live with.

Kent Scarrett, executive director of the Ohio Municipal League, who was one of the community representatives working on compromise legislation, said it took two conference calls a week for six months, with some calls lasting six hours, to come up with a solution — House Bill 478.

Gov. John Kasich signed the bill earlier this month, and it will go into effect July 31.

"478 better and more completely recognizes some municipal authority over these installations in the right of way," Walter | Haverfield's Hanna said. "331 was pretty draconian and placed very strict and difficult-to-achieve standards on application fees for attaching (antennas) to municipal infrastructure. It really was overreaching in every way."

Hanna said HB 478 allows communities to set fees to cover their costs with a standardized fee structure. The legislation also eases the deadlines communities must meet to review and process applications, extending most from 90 days to 129 days, and it will require wireless companies to bury most equipment in communities that have underground utilities and meet specific design guidelines in historic districts. The earlier legislation made no exceptions for those situations.

Because the telecommunications companies can't start installing antenna until after the law takes effect, regional company officials wouldn't say exactly when 5G service will come to Ohio. But they are glad to be moving on.

"House Bill 478 involved a lot of give and take by the wireless industry and the municipalities, but it worked out well," said AT&T Ohio president Adam Grzybicki in an emailed statement. "We are currently in discussions with multiple Ohio cities — including Cleveland — on permits that will enable our 5G buildout. We look forward to civic cooperation to enable this service for our customers."

A Verizon spokesman, Steve Van Dinter, said in a phone interview, "We certainly appreciate forward-thinking communities as well as states. Streamlined permitting helps us bring this technology to consumers faster. It certainly helps when there is legislation that can smooth the process over."

This article originally ran on crainscleveland.com.