Small Cell Lawsuit Clears First Hurdle

Late last year, A Texas judge denied the state’s motion to dismiss in the “small cell” lawsuit brought by the City of McAllen and a coalition of around 40 cities. 

The lawsuit challenges the unconstitutionally low right-of-way rental fees in S.B. 1004.  That bill, passed during the 2017 regular session and effective September 1, requires a city to allow access for cellular antennae and related equipment (“small cell nodes”) in city rights-of-way, and it also entitles cell companies and others to place equipment on city light poles, traffic poles, street signs, and other poles. 

The bill gives cities limited authority over placement, and it caps a city’s right-of-way rental fee at around $250 per small cell node.  The price per node in the current bill is a taxpayer subsidy to the cellular industry because it allows nearly free use of taxpayer-owned rights-of-way and facilities.  The lawsuit also claims that S.B. 1004 unconstitutionally delegates a city’s legislative authority to control its rights-of-way to private businesses. 

After a hearing at which both the cities and the state made arguments and examined witnesses, the judge ruled that the case can move forward to the merits. 

Interested city officials can still join the coalition by contacting Kevin Pagan, city attorney for McAllen, at kpagan@mcallen.net or 956-681-1090.

TML member cities may use the material herein for any purpose. No other person or entity may reproduce, duplicate, or distribute any part of this document without the written authorization of the Texas Municipal League. 

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