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Florida Cities Sue State Over ‘Small Cell’ Wireless Law, Citing Home Rule Violation

| May 9, 2019

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Whose G? (© FlaglerLive)

Just days after a legislative session filled with debate about state lawmakers overriding the power of local governments, the Florida League of Cities and three communities have filed a constitutional challenge to a 2017 law dealing with wireless technology.

The league and the cities of Fort Walton Beach, Naples and Port Orange filed the lawsuit Tuesday 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.

The law, which received almost unanimous approval from the Legislature, involves antennas and other equipment that wireless-communications companies need for new 5G technology. Cities contend, in part, that the so-called “small cell” law improperly required them to allow the companies to attach the equipment on such things as municipal light poles and limited the cities to charging $150 a year per pole.

“By requiring municipalities to commit substantial taxpayer and public funds to accommodate wireless providers’ collocation of facilities on municipally owned utility poles, while prohibiting municipalities from charging appropriate fees to wireless providers for that privilege, the small cell statute effectively requires that municipalities use taxpayer and public funds and property to subsidize private companies,” the lawsuit said.

Lawmakers passed the measure as telecommunications companies set the stage for expected widespread 5G, or fifth generation, wireless technology. Among other things, 5G is expected to provide faster speeds for users of wireless devices.

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.” Legislative supporters turned aside many objections raised by local governments.

“In order to strengthen and expand a growing network, I think we need to make sure that 5G technology is deployed in unison across our state and not leave it up to essentially local governments that may delay the progress of something that is so innovative and something that would meet growing consumer demands,” Rep. Bryan Avila, R-Miami Springs, said at the time.

While the lawsuit was filed two years after the bill passed, it came three days after the end of a 2019 legislative session that included numerous battles about the state seeking to “preempt” the powers of cities and counties. Lawmakers considered preemption proposals dealing with issues ranging from plastic-straw bans to local occupational licensing and passed a measure (SB 1000) that would place new restrictions on local governments about communications facilities.

The lawsuit, however, focused on the 2017 changes and raised a series of constitutional arguments, including that the law leads to a “taking” of municipal property. The lawsuit said cities are “protected property owners under the Florida Constitution and are entitled as property owners to constitutional property protections from unjustified government takings.”

“By authorizing private wireless providers to place and to maintain small wireless facilities on municipally owned utility poles, without an appropriate process to determine the public purpose for such taking or the full compensation owed to municipalities, the small cell statute deprives FLC’s (the Florida League of Cities’) members, including plaintiff municipalities, of their rights under the Florida Constitution,” the lawsuit said.

–Jim Saunders, News Service of Florida

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7 Responses for “Florida Cities Sue State Over ‘Small Cell’ Wireless Law, Citing Home Rule Violation”

  1. Rick G says:

    Once again the Republican Legislature demonstrates that it doesn’t care about its citizens that don’t have a big corporate presence. Better that we spend our local tax dollars on large corporate interests…

  2. Merrill Shapiro says:

    Gideon John Tucker (February 10, 1826 – July 1899) was an American lawyer, newspaper editor and politician. In 1866, as Surrogate of New York County, he wrote in a decision of a will case: “No man’s life, liberty or property are safe while the Legislature is in session.”

  3. Dennis McDonald says:

    Welcome to the Municipal “Micro Wave” all at our expense so nerds like Zuckerberg can maker another billion. The clueless Florida Legislature signs us up like they did for Common Core and even Red Light Cameras because they get PAID OFF.

  4. RedoFlagler says:

    $150 per pole and in return I get 5G reception? I’m on board with that. Heck, they can put it on my roof and pay me the $150, and screw the city.

  5. Wow says:

    “the small cell statute effectively requires that municipalities use taxpayer and public funds and property to subsidize private companies”. Oh like that never happens. Think defense contractors. Think Captain’s BBQ.

  6. No Problems Here says:

    This is nothing more than the state government telling local governments to not stymie the expansion of technology and competition. Ref: Your local Palm Coast government signing an exclusivity agreement with BrightHouse, effectively allowing them to run amok untethered and unfiltered in our community.

    If you did not have this in place, you’ll see the giant telcos such as AT&T, Verizon and Sprint seeking exclusivity in geographic regions, coupled with corporations such as FPL tacking on their fees, all of which will wrap back around to you and me paying far more for these services. These corporations aren’t absorbing these costs – they’ll be passing them along to we the buyer.

    I’d be interested in hearing from ANYONE any kudos as to how your local Palm Coast government has handled the untethered and unfiltered expansion and availability of your wireless cellular signal in our area. We all know that it is horrid, and you can directly thank current and past local legislators for that. It is a pipe dream to think that local government will be any better at managing the expansion of 5G.

    This is the right legislation, and thus the reasons it unanimously breezed through this session. The lawsuit goes nowhere and only accomplishes wasting more local tax dollars.

  7. capt says:

    5G operates in a high-frequency band of the wireless spectrum. Because high frequency waves have a harder time traveling over distance & through objects, the 5G network will be built on small cell site technology with antennas as close as 500 feet apart. That’s 500 feet. And then you have possible health concerns with RFR and add that to the new Security and Privacy concerns. Read up on it.

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