Summary
The preemption of local governments in managing 5G small cell providers using the public right-of-way remains bad policy. Policymakers must carefully balance local interests and carrier interests in addressing future policies.
In 2019, Vince Rotty and I wrote an article on 5G small cell policy. Our article was originally published in the South Dakota Law Review. There was a strong push to preempt local government in 2019 under the premise there would be a massive rollout of new facilities throughout the country. That premise largely fell flat. The preemption of local governments in this space remains bad policy. Policymakers must carefully balance local interests and carrier interests in addressing future policies. The following is a summary of our article.
The national deployment of 5G wireless networks is reshaping the telecommunications landscape. As telecom providers race to upgrade infrastructure, local governments are finding themselves increasingly sidelined in the process. In my article, Fixing the Glitch: The Smart Rollout of 5G Small Cell Wireless Networks — Balancing Private and Public Interests, I examine the legal and policy implications of recent state laws that preempt local authority over small cell wireless infrastructure.
The Shift to Small Cell Networks
Unlike traditional macro cell towers, 5G service—especially in high-band millimeter wave spectrum—requires a dense network of “small cells” deployed throughout urban and suburban areas. These small antennas are typically installed on existing municipal infrastructure such as streetlights, traffic signals, and utility poles. To facilitate rapid deployment, the telecommunications industry has championed state-level legislation that restricts local government oversight.
By 2019, half of U.S. states had enacted small cell legislation that:
- Caps municipal rental fees for pole attachments;
- Imposes strict timelines (“shot clocks”) on permitting decisions;
- Prohibits in-kind contributions or public benefit negotiations;
- Broadly defines wireless support structures to include city-owned poles and facilities;
- Preempts zoning and aesthetic regulations beyond minimal standards.
Local Fiscal and Regulatory Impact
These laws amount to a significant shift in the balance of power between local governments and private telecom companies. Local governments are projected to lose more than $2 billion annually in rental value and related compensation due to the mandated access and price ceilings imposed by these statutes. In effect, municipalities are being required to make public infrastructure available to private carriers—often without fair market compensation and with minimal control over terms of use.
This model raises important legal and constitutional questions about the extent of state preemption, especially in states with strong home rule protections or constitutional guarantees of local autonomy.
Legal Theories for Municipal Challenge
The article explores several potential legal avenues for municipalities, including:
- Regulatory takings claims, arguing that mandated access to public property without adequate compensation may violate constitutional protections;
- Intergovernmental immunity and separation of powers theories, particularly in home rule states where cities retain constitutionally protected authority over property and infrastructure;
- As-applied challenges, focusing on the practical burden or uncompensated use imposed on specific cities.
While broad facial challenges to small cell legislation may face significant hurdles, case-by-case litigation may provide municipalities with a viable strategy to assert their rights and preserve some degree of control.
Recommendations for a Smarter Approach
To ensure the long-term success of 5G deployment, a more balanced legal and policy framework is needed—one that:
- Respects local planning and land use authority;
- Provides fair compensation for use of municipal assets;
- Encourages collaboration between cities and carriers rather than unilateral mandates.
Local governments, practitioners, and policymakers should remain vigilant and informed as state and federal regulations continue to evolve in this space.
Read the Full Article
Fixing the Glitch: The Smart Rollout of 5G Small Cell Wireless Networks — Balancing Private and Public Interests, 63 S.D. L. Rev. 483 (2019)
About the Author
Michael R. Bradley is a telecommunications and local government attorney advising municipalities on broadband, franchising, and right-of-way management.