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“Smart Cities” and 5G: Operating in Conflict Instead of Coordination “Smart Cities” and 5G: Operating in Conflict Instead of Coordination

“Smart Cities” and 5G: Operating in Conflict Instead of Coordination

“Smart City” initiatives and Fifth Generation (5G) wireless connectivity, two concepts that are integral to widespread Internet of Things (IoT) deployment, are on a collision course. Gartner predicts there will be 25 billion connected devices by 2020; Cisco predicts 50 billion. If sufficient bandwidth is going to be available to support these devices and the related IoT applications, cellular companies are going to need to efficiently and cost-effectively deploy 5G infrastructure.

In order to maintain signal strength for 5G wireless connectivity, cellular companies will utilize small cells and will need more wireless infrastructure and towers within close proximity of one another—a concept known as “densification.” Constructing the requisite number of towers to deliver robust 5G connectivity will require a large capital expense by these companies. It would also require significant capital to obtain the rights to deploy this infrastructure on private land, as wireless providers have traditionally had to do for macro sites.

It is much cheaper, however, for these companies to obviate the need to pay for private lease rights and instead place the small cell infrastructure in the public rights-of-way. Hence where the conflict arises—cellular companies are lobbying for state legislation that gives them virtually unlimited rights to use public rights-of-way and city-owned facilities for 5G expansion, while cities are developing “Smart City” concepts that need the same rights-of-way and facilities.

To be fair to the cellular companies, some cities have made deployment of both macro and small cell sites unreasonably difficult and permitting requirements and processes can vary city-by-city. However, in response, cell companies are lobbying state legislatures for two primary concepts:
  1. Access to public rights-of-way for nominal fees to install wireless facilities, without any significant regulation as to the placement of these facilities, and
  2. The right to place wireless technologies on existing city-owned facilities, such as street lights, mast arms, and light poles, at nominal fees and without significant regulation.
At the time this article was written, this type of legislation had been introduced in nineteen states and passed in 9. The proposed laws give cities minimal authority to regulate small cell deployment and even restrict cities from saving rights-of-way/ facility space for their own use. It is easy to now envision a “gold rush” to claim space on key city facilities by cell carriers and other companies that have public utility status.

In Ohio, Sub. Senate Bill 331 amended Ohio Revised Code § 4939 to permit the installation of small cell wireless infrastructure in the municipal right-of-way. However, over 90 cities in Ohio sued the state to have the legislation overturned on the grounds that it violates the State Constitution’s home rule provisions. Two plaintiffs, the city of Columbus, which was awarded the $40 million U.S. Department of Transportation Smart City Challenge grant in 2016, and the city of Cincinnati, have both commenced “Smart City” initiatives.

In June 2017, Judge Frye of the Franklin County Ohio Court of Common Pleas issued an Opinion and Judgment ruling in favor of fifty Ohio municipalities that filed in Franklin County. Judge Frye issued his decision based on the state’s One-Subject Rule, which requires a unifying subject or purpose that ties diverse topics of a bill together, and rejected the arguments from the state of Ohio and CTIA – The Wireless Association that the unifying theme of the bill was to eliminate a patchwork of municipal business regulations.

The original intent of S.B. 331 was “to regulate the sale of dogs from pet stores and dog retailers” and to require the Ohio Department of Agriculture “to license pet stores.” However, as stated in Judge Frye’s opinion:
During the so-called “lame duck” session the House Finance Committee added diverse new provisions. Some fixed a statewide minimum wage, and preempted local municipal minimum wage ordinances; others created new statewide rules guaranteeing that the relationship between employees and employers would be solely a matter of private contract or collective bargaining and not subject to local regulation; made cockfighting, bearbaiting, or pitting an animal against another illegal; made sexual conduct between a person and an animal (bestiality) illegal; changed the residency requirement for county humane society agents; made an appropriation for the Agriculture Department and related entities; and substantially rewrote statewide rules for micro-wireless 5G telecommunications equipment.

Judge Frye determined that the so-called Petland provisions of the bill relating to the regulation of dog sales and the provisions criminalizing the abuse of animals survived, but the Micro Wireless Amendments were not constitutionally enacted. In his Opinion, Judge Frye expressed the hope that his decision might lead to further negotiations of a bill that everyone can live with:
. . . invalidating this law under the one-subject rule is not only the correct Constitutional decision, but practically speaking may bring the General Assembly, telecommunications providers, and Ohio municipalities together to constructively revisit all these issues through formal legislative hearings and informal discussion. That process, which the one-subject rule is intended to assure, is the best opportunity to see telecommunications statutes that avoid serious question under nay provision of the Ohio Constitution.

Judge Frye also acknowledged that the Ohio General Assembly previously “addressed R.C. Ch. 4939 and telecommunications in a manner which triggered a municipal challenge under the One-Subject Rule.” In that instance, the cities of Upper Arlington and Dublin, Ohio (Columbus suburbs) sued and obtained a declaratory judgment on the grounds that the legislation also violated the One-Subject Rule. This 1999 decision was not appealed, but “new statutes were negotiated by interested parties and ultimately passed by the General Assembly.”

The tragic part of this conflict is that private deployment of 5G and Smart Cities initiatives should be mutually supportive:
  • the citizenry will need both 5G technology and “Smart City” initiatives;
  • 5G and “Smart City” communications will use different frequencies. Theoretically, cities could operate their “Smart City” technology on commercial 5G and the public safety/ service frequencies depending on the applications and networks; and
  • cities could be potentially huge purchasers of cellular company services.
Instead of competing for the same physical space, cell companies and cities should cooperate to share use of towers and poles and to institute joint planning efforts to place facilities in agreed-upon locations on agreed-upon infrastructure. Cities should also be able to enter into public-private partnerships and share the extensive capital requirement of 5G and “Smart City” deployment.

Stated simply, if we are going to have “Smart Cities,” we need smart legislation.
Ice Miller represented 50 Ohio municipalities in the above mentioned case, City of Bexley, Ohio, et al. v. The State of Ohio, which challenged the constitutionality of micro-wireless amendments to Ohio Revised Code § 4939. Judge Frye, of the Franklin County Court of Common Pleas, ruled in favor of the municipalities. This suit challenged the constitutionality of portions of Sub S.B. 331, which were enacted December 2016 in a lame duck session of the 131st General Assembly. In that session, the House Finance Committee substantially rewrote statewide rules pertaining to micro-wireless 5G telecommunications equipment, which were ultimately signed by Governor Kasich and became effective March 21, 2017. 

This publication is intended for general information purposes only and does not and is not intended to constitute legal advice. The reader should consult with legal counsel to determine how laws or decisions discussed herein apply to the reader’s specific circumstances.
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