N.Y. Wireless Bill Returns With Same Local Concerns

Assemblymember Carrie Woerner reintroduced the “wireless broadband eligible facility permitting act” (A-30) in the Assembly with six other Democrats last Wednesday. Republican Sen. Daniel Stec filed the identical S-26 in the Senate that day. New York is one state that has continued to face wireless infrastructure litigation between industry and local governments since the FCC’s 2018 small-cells order (see 2210070046). With small-cells laws already in 32 other states and Puerto Rico, state legislative action on the subject slowed last year (see 2201210026).

The New York Conference of Mayors “is strongly opposed to this bill, which we have seen before in each of the past several years going as far back as at least 2016,” emailed Executive Director Peter Baynes. In a March 2021 memo opposing the previous iteration (A-896 and S-5330), the conference said the bill “would greatly restrict local government regulation of wireless facilities.” The bill “uses overly broad and vague language that is likely to lead to confusion and counterproductive litigation,” and part of it duplicates existing rules, the group said. Stec and Woerner didn’t comment now.

Crown Castle commends “the bill sponsors for recognizing the need to streamline and accelerate projects that are necessary to more quickly deliver broadband to underserved communities statewide,” said Ana Rua, the tower company’s New York government affairs manager. “Anything that removes roadblocks currently preventing New Yorkers from getting the online access they require to succeed in the increasingly virtual world is a positive step forward. This is particularly critical as the state is receiving millions of dollars in federal funding dedicated to closing the digital divide.”

The bill "hasn't had legs before, and I'm not optimistic about its chances in this session,” said David Bronston of Phillips Lytle. Lack of a Democratic sponsor in the Senate makes the wireless industry attorney more skeptical, he said in an interview last week. Opposed local governments have sway in the Democratic-controlled legislature, noted Bronston: With the bill previously failing multiple times, it may be time for industry to sit down with localities and hash out an agreement.

A-30 and S-26 would codify in state law what’s in the FCC Section 6409 rules, providing a cause of action in state court and a New York Article 78 claim, said Bronston. When specifically authorized by statute, Article 78 allows special challenges of actions by government agencies or officers. That could be another “cudgel” for industry to use in litigation, which is sometimes the only way to get “recalcitrant” local governments to act on wireless applications, the lawyer said.

The bill sponsors apparently “want to dictate an administrative process for considering eligible facilities requests under” the FCC’s Section 6409 rules, “as federal law dictates result, not process,” emailed Best Best local government attorney Gail Karish. “Possibly another intent is to add deemed granted remedies for applications that are not eligible facilities requests under FCC 6409 rules.”

“It is hard to see the point in the state layering another set of rules on top of the FCC's small-cell order,” said local government attorney Nancy Werner of Bradley Werner. “With nothing in the bills to ensure equitable deployment -- or any deployment at all for that matter -- it is not going to provide any public benefit.” The former NATOA general counsel added, “State and local resources would be much better spent actually addressing digital discrimination and the digital divide rather than implementing a new set of rules and hashing out how those rules fit with the FCC’s rules.”