Federal Government Shutdown Enters 27th Day
January 17, 2019
With budget talks at a near standstill this week, House Democrats brought up a series of bills designed to end the partial government shutdown. By Thursday, the lower chamber had considered three separate measures, all of which would provide temporary spending authority for the nine cabinet-level departments and dozens of federal agencies that remain closed.
One of the bills advanced by House Democrats paired a three-week Continuing Resolution (CR) with a disaster aid package. The legislation (HR 268), which was approved on a 237-187 vote, would spread $12.1 billion across a number of federal departments to help further the response and recovery efforts associated with a number of major disasters in 2018 – including the California wildfires and Hurricanes Michael and Florence.
Pursuant to HR 268, California would be eligible to receive emergency assistance through a variety of federal programs, such as the Department of Housing and Urban Development’s Community Development Block Grant (CDBG). Funding also would be available for a number of key support services, such as crisis counseling, dislocated worker programs, health and case management services.
While the majority of the $12.1 billion authorized in the legislation would be for post-disaster assistance, the bill would set aside $2.54 billion for various agencies to implement resiliency projects in order to help mitigate damage from future disasters.
Looking ahead, HR 268 will not be considered in the Senate. While the disaster-related provisions of the legislation are strongly supported by members on both sides of the aisle, Majority Leader Mitch McConnell (R-KY) has indicated that he will not take up any bill that does not have the support of the president. Incidentally, the White House issued on January 16 a Statement of Administration Policy in opposition to the bill. More broadly, President Trump has repeatedly said that he will not accept any spending measure – including a short-term CR – that does not provide money for the border wall.
Bill to Overturn FCC’s 5G Rule Introduced in House; 10th Circuit Denies Motion to Stay
This week, Representative Anna Eshoo (D-CA) introduced legislation that would nullify the Federal Communications Commission’s (FCC) recent Order that limits the ability of local governments to regulate the deployment of 5G wireless infrastructure. The bill (HR 530), entitled the Accelerating Wireless Broadband Development by Empowering Local Communities Act of 2019, is cosponsored by Representative Jackie Speier (D-CA).
The impetus for the legislation is a recently finalized rule that will curtail local control of rights-of-way as it pertains to the siting of wireless telecommunications technology in the public domain. Incidentally, many of the policies embodied in the Commission’s regulation are akin to the preemptions of local government authority that were unsuccessfully sought by the wireless telecommunications industry in California in 2017 (SB 649, Hueso) – including capped rates for pole attachments and limitations on reasonable local government review.
Approved by the FCC in late September, the rule – which went into effect on January 14 – provides localities with only 60 days to evaluate applications from companies for attaching 5G small cells to existing structures and 90 days for equipment on new structures. Pursuant to the Order, the newly prescribed shot clocks encompass “all aspects of and steps in the siting process,” including but not limited to license or franchise agreements to access rights-of-way, building permits, public notices and meetings, lease negotiations, aesthetic approvals, and other authorizations needed for deployment of personal wireless services infrastructure.
Additionally, the Commission’s rule institutes a restrictive interpretation of “fair and reasonable compensation” for rights-of-way use, requiring that all recurring fees may not exceed $270 per small cell. The rule effectively preempts current local practices of charging wireless providers “rent-based” fees, which are based on a fair market value calculus. Furthermore, the rule expressly prohibits local governments from recovering any cost not directly related to rights-of-way maintenance.
Finally, the rule limits allowable local aesthetic requirements, including minimum spacing requirements, to those that are “reasonable, no more burdensome than those applied to other types of infrastructure deployments and published in advance.” The FCC notes that undergrounding requirements for wireless facilities would constitute an illegal prohibition of service by a local government.
Finally, and on a related matter, the U.S. Court of Appeals for the 10th Circuit ruled against San Jose and other localities that had initiated a lawsuit against the FCC’s 5G deployment rule. While the Court refused to issue a motion to stay the controversial Order, it did agree to transfer the underlying case back to the 9th Circuit (where the petitioners’ lawsuit originated).