City joins litigation against state law


Delaware will join the legal fight against a new state law that went into effect early last week.

City Council approved to contribute $6,000 to the Central Ohio Mayor and Manager Association’s (COMMA) litigation against Senate Bill 331, which was passed by the state General Assembly passed before signed by Gov. John Kasich in December.

The law has provisions that remove the city’s authority to regulate and control placement of “micro-wireless facilities” and requires cities to allow companies to make city-owned poles and other structures in the right-of-way available to private wireless companies at a nominal cost, according to a city fact sheet.

“The process by which that legislation was adopted was flawed in our opinion and needs to be challenged,” City Manager Tom Homan said.

Ice Miller law firm has filed a case against the law in Franklin County court on behalf of 50 cities, including Delaware and 13 other COMMA members.

COMMA devised a potential cost-share structure for the litigation among the cities. Cities with more than 50,000 people would pay $8,000; with more than 25,000 at $6,000; with more than 10,000 at $4,000; and up to 9,999 at $2,000.

Delaware’s population is estimated at 38,865 people at the end of 2016. The city could be asked for more funds to continue litigation efforts in the future.

A preliminary scheduling and status conference hearing is set in Columbus at 9:30 a.m. Friday, according to court documents.

Twenty other cities field a similar but separate lawsuit was filed by 20 other cities in Summit County court and seek a preliminary injunction and temporary restraining order against the law. A hearing on that motion was set for Thursday morning.

SB 331 only had provisions related to the retail sale of dogs when it was introduced in May 2016, according to court documents. The Ohio Senate pass the law that same month but lingered in the Ohio House of Representatives until the “lame duck” session when the micro-wireless facilities provision was added along with other unrelated proposals.

Opponents of the law said the law violates the single-subject rule and the home rule of the Ohio Constitution. In a complaint filed in Franklin County court, it said: “The effect of the Mirco Wireless Facility provisions is to eliminate or severely restrict the ability of municipalities and other political subdivisions to effectively manage, administer, and control their public ways.”

Homan agreed.

“This really goes to the core of home rule in the state of Ohio and our ability to regulate what occurs in the right of way,” he said. “We’re not saying we’re opposed to micro-wireless cell towers. These are very important, understanding the ever-changing communications business, but the manner in which they’re installed is of concern to us and it should be.”

Micro-wireless facilities include small cell facilities and distributed antenna system, or DAS, according to the Federal Communications Commission.

Small cells are low-powered wireless base stations that function like traditional cell cites in a mobile network and usually cover indoor or localized outdoor areas ranging in size from homes and offices to stadiums, shopping malls, hospitals, and metropolitan outdoor spaces. DAS networks use numerous antennas connected and controlled by a central hub.

Because both are smaller than a traditional cell tower, they can be placed on utility poles, building walls and rooftops. The technology would help wireless companies bring 5G services to the market as mobile wireless consumption increases.

“The Commission has repeatedly recognized the extraordinarily promising benefits of such 5G services and has acknowledged the need for deployment of small wireless facilities, such as small cells and DAS, to enable providers to deliver those services to consumers,” the FCC said in a public notice published in December.

S&P Global Market Intelligence estimates that between 100,000 and 150,000 small cells will be constructed nationwide by the end of 2018, and that small cell deployments are expected to reach 455,000 by 2020 and nearly 800,000 by 2026.

Council approves $6K to stop ‘micro-wireless facility’ provisions

By Brandon Klein

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Gazette reporter Brandon Klein can be reached by email or on Twitter at @brandoneklein.

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