Florida “Small Cell” Statute Bulldozed Path for 5G Rollout.

Poles

In May 2019 The Florida League of Cities and the cities of Fort Walton Beach, Naples and Port Orange filed a constitutional challenge to a 2017 law, the “Small Cell Statute,” that would preempt municipalities’ ability to control the use of their own property, specifically utility poles.”

The League of Cities and the cities of Fort Walton Beach, Naples and Port Orange filed their lawsuit in Leon County circuit court, contending that the 2017 law infringes on home-rule powers and would lead to an unconstitutional “taking” of city property.  They have filed for injunctive relief against small cell deployment in the public right-of-way.

See key preliminary statements below.

The suit contends that that the Small Cell Statute improperly requires them to allow companies to attach the equipment on such things as municipal light poles and limits the cities to charging $150 a year per pole, while subjecting them to uncapped attorney’s fees if a court determines that their adoption of ordinances or actions…is preempted by the Statute. 

During discussions of the bill in 2017, House sponsor Mike La Rosa, R-St. Cloud, said he wanted to “make sure Florida is ahead of the technology curve.”

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Representative Mike La Rosa / 42nd District

Rep. La Rosa is the same one who in 2018 sponsored HB 773 that would have negated local vacation-rental ordinances passed since June 1, 2011.  The bill that would preempt local regulation of vacation rental properties just as the Small Cell Statute preempts municipalities’ ability to control the use of their own utility poles.

Then again in July, 2019 Rep. Mike La Rosa (R-St. Cloud) supported two bills (SB 824 & HB 987) that would essentially do the same with regard to regulation of vacation rentals.  All bills died in Committee.

 

KEY PRELIMINARY STATEMENTS FROM THE FLORIDA LEAGUE OF CITIES AND THE CITIES OF FORT WALTON BEACH, NAPLES AND PORT ORANGE: 

  • Certain provisions of Section 337.401, Florida Statutes, adopted in 2017, as subsequently amended in 2019, preempt municipalities’ ability to control the use of their own property, specifically utility poles owned or controlled by municipalities  in public rights-of-way…allowing the collocation of certain wireless communications infrastructure by private wireless providers in violation of the Florida Constitution.
  • In 2017 the Governor signed a bill amending 337.401 by adding a subsection known as the “Advanced Wireless Infrastructure Deployment Act” (“Small Cell Statute”).
  • The Small Statute grants the wireless communications industry, comprised of for-profit corporations, broad access to public rights of way…to attach wireless antennas and large equipment.  The effect of these provisions to provide for-profit corporations with a significant financial windfall at taxpayers expense in violation of the Florida Constitution.
  • Among other abridgments of the Florida Constitution, the Small Cell Statute: (i) caps the fees the municipalities may charge wireless providers at $ 150/pole for use of their utility poles owned by municipalities  in public rights-of-way at artificial and unreasonable below market rates while subjecting them to uncapped attorney’s fees if a court determines that their adoption of ordinances or actions…is preempted by the Statute.
With regard to the Florida Legislature’s attempts to preempt municipalities, on 1/22/2018,  the New-Journal Editorial Board wrote:
“It undermines the self-interest of local voters, while ignoring the fact that what may be good for Pensacola may be a poor fit for South Beach, and that the interests of a rural population may be different than those of an urban one. Local governments should have the freedom to tailor many kinds of policies to suit their residents’ needs, and their voters should have the regular opportunity to pass judgment on those actions.

 

The Legislature has more important issues to worry about than micromanaging tree-trimming ordinances. It needs to respect home rule.”

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