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

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