Franklin County judge grants municipalities’ motion for partial summary judgment on “one-subject” issue in Sub. S. B. 331 litigation

Beginning in March 2017, over 70 Ohio municipalities have filed suit against the State of Ohio, seeking to have the micro wireless technology provisions of SB 331 declared unconstitutional. 

Passed during the so-called lame duck session of the 131^st General Assembly, SB 331 is primarily focused on regulating the sale of dogs to pet stores.  For that reason, it is known as the “Petland Bill.” However, the bill also includes provisions on other forms of animal rights violations (such as bestiality and bearbaiting), a statewide minimum wage and the regulation of micro wireless technology in municipal rights of way.

Defining micro wireless technology

Wireless telecommunications technology takes several forms: macrocells, small cells and distributed antenna systems (DAS). Macrocells are traditional high-powered cellular base stations that generally provide coverage to large metropolitan areas from a single tower. By contrast, small cells and DAS have smaller ranges and require more facilities to function effectively. Specifically, small cells are low-powered antennas that have a range of 10 to 200 meters. The term “small” is descriptive of their output range rather than their actual size. DAS are comprised of spatially-separated antenna nodes that utilize fiber optics to connect the distributed antennas to a single, common hub that then provides wireless service to a specific geographic area. Collectively, small cells and DAS are referred to as “micro wireless facilities.” 

Micro wireless facilities typically cover targeted indoor or localized outdoor areas, such as intersections, shopping malls, hospitals and metropolitan outdoor spaces. (Ohio Stadium, for example, was recently upgraded to DAS technology, which has improved data usage in the stadium.)

Furthermore, micro wireless technology is estimated to account for 50 percent of all wireless infrastructure spending by 2020. And on a per smartphone basis, mobile data traffic is expected to increase from 5.1 gigabytes per month (2016) to 25 gigabytes per month (2022).

Micro wireless provisions of SB 331

At the outset, SB 331 enumerates a new state policy for Ohio: to “[e]xpedite the installation and operation of micro, and smaller, wireless facilities in order to facilitate the deployment of advanced wireless service.” 

The bill, however, then limits municipalities’ control over the placement of micro wireless facilities. For example, the bill sets a 90-day deadline for municipalities to grant or deny consent for the construction, modification or replacement of wireless support structures associated with a micro wireless facility. This window for approval is substantially shorter than what is allowed under federal law. If a municipality fails to deny an application within the 90-day window, the application is deemed approved.

The bill also limits municipalities’ control over local zoning review and placement of micro wireless facilities.

Over 70 municipalities have filed suit against the State of Ohio

SB 331 went into effect on March 21, 2017.  Within one week, 50 municipalities had filed suit in Franklin County. Municipalities in Cuyahoga County, Summit County, Lucas County and Hamilton County quickly followed suit.

Franklin County took the lead with a scheduling order that set expedited briefing for the municipalities’ one subject challenge. In that count of the complaint, the municipalities argue that SB 331 violates the one-subject rule in Article II, Section 15(D) of the Ohio Constitution, which states that “[n]o bill shall contain more than one subject, which shall be clearly expressed in its title.”

Recently, Judge Frye (Franklin County) issued the first substantive ruling in the SB 331 litigation: SB 331 violates the one-subject rule of the Ohio Constitution. As such, the court severed the micro wireless provisions from SB 331. Importantly, the court also determined that the judgment on the one-subject issue ought to be final under Civ. R. 54(B). Thus, the State is likely to appeal this order in the upcoming months.

Depending on what happens on appeal, the Franklin County municipalities still have several arguments left to brief, including alleged home rule violations, uniformity clause violations and equal protection violations.