2017 - 2018 LEGISLATURE
ASSEMBLY SUBSTITUTE AMENDMENT 1,
TO ASSEMBLY BILL 348
June 5, 2017 - Offered by Representative Kuglitsch.
1An Act to create
66.0404 (4e) and 66.0414 of the statutes; relating to: limiting
2the authority of the state and political subdivisions to regulate wireless
3facilities and authorizing political subdivisions to impose setback requirements
4for certain mobile service support structures.
Analysis by the Legislative Reference Bureau
This substitute amendment creates a regulatory framework for the state and
political subdivisions (cities, villages, towns, and counties) for the deployment of
wireless equipment and facilities, including the placement of such items in
rights-of-way (ROW), the collocation of such facilities on existing poles and
structures, the regulation of access to governmental structures by wireless services
and infrastructure providers, and limitations on local authority to regulate such
activities. The substitute amendment also authorizes political subdivisions to
impose setback requirements for certain mobile service support structures.
With regard to ROW, the substitute amendment does the following:
1. Prohibits the state and political subdivisions from entering into an exclusive
agreement with any person for the use of ROW or the construction, operation, or
maintenance of wireless facilities, wireless support structures, or the collocation of
small wireless facilities (collectively, wireless facilities and structures). The
substitute amendment defines “wireless facility” as equipment at a fixed location
that enables wireless service between user equipment and a wireless network.
Under the substitute amendment, a “small wireless facility” is a facility that has
2. Provides that the state and political subdivisions may impose rates or fees
on wireless providers only if they charge other communications service providers or
utilities for the use of ROW, subject to a number of conditions and limitations.
3. Subject to a number of exceptions, and notwithstanding a political
subdivision's zoning ordinances, authorizes a wireless provider to collocate wireless
facilities and construct, modify, maintain, and operate (collectively, construct and
operate) utility poles, wireless support structures, cable, and related appurtenances
and facilities along, across, upon, and under ROW, provided such activity does not
obstruct or hinder travel, drainage, maintenance, or the public health or safety or
impede other uses of ROW by communications service providers, public utilities, or
4. Limits the height of utility poles, wireless support structures, and wireless
facilities. With regard to the rights of a wireless provider to construct wireless
facilities or modify utility poles, wireless support structures, and related
appurtenances, the substitute amendment allows a political subdivision to propose
an alternate location within 50 feet of the proposed location, which the wireless
provider must use if it has the right to do so and the alternate location is reasonable
and does not impose additional cost or technical issues, as determined by the wireless
5. Allows the state or political subdivisions to require a wireless provider to
repair all damage that is directly caused by its activities in ROW that involve
wireless facilities and structures.
Collocation of small wireless facilities
With regard to the activities of a wireless provider within and outside a ROW,
the substitute amendment does the following:
1. Subject to a number of exceptions, prohibits the state and political
subdivisions from prohibiting, regulating, or charging any person for the collocation
of small wireless facilities.
2. Notwithstanding a political subdivision's zoning ordinances, classifies small
wireless facilities as a permitted use that is not subject to such zoning ordinances if
they are collocated in or outside a ROW if the property is not zoned exclusively for
single-family residential use.
3. Subject to a number of conditions, authorizes the state and political
subdivisions to require an application for a permit to collocate a small wireless
facility and to construct and operate a new or replacement utility pole or wireless
support structure if the permit is of general applicability and does not apply
exclusively to wireless facilities. The substitute amendment imposes various time
limits relating to the permit application and approval process. Generally, permits
for collocation involving construction, building, or encroachment must be approved
or denied within 90 days of receipt, and permits for collocation that does not involve
construction or installation of new wireless facilities and structures must be
approved or denied within 60 days of receipt.
4. Requires the state or political subdivisions to approve permit applications
unless the application does not meet applicable codes, which are defined as state
codes related to electrical wiring, plumbing, and fire prevention; commercial
building codes; uniform dwelling codes; and local amendments to those codes.
5. Prohibits the state and political subdivisions from requiring an applicant to
perform services unrelated to the collocation to which a permit relates, and prohibits
such governmental units from requiring a wireless provider permit applicant to
provide more information in its permit application than the governmental unit
requires of communications service providers for the same type of permit.
6. Requires an applicant whose permit application is approved to commence
the activity authorized by the permit within 365 days after its receipt and requires
the applicant to pursue work on the activity until completion. However, the
substitute amendment prohibits the state and political subdivisions from placing
any time limit on an application related to the permit.
7. Prohibits the state and political subdivisions from imposing a moratorium
on filing, receiving, or processing applications, or issuing permits for the collocation
of small wireless facilities.
8. Authorizes a political subdivision to enact an ordinance to prohibit, in a
nondiscriminatory way, a communications service provider from installing
structures in the ROW of a historic district or an area in which underground utilities
are located, except that the ordinance may not prohibit collocations or the
replacement of existing structures. In addition, such an ordinance had to have been
in effect on or before January 1, 2014.
9. Subject to a number of conditions, authorizes the state and political
subdivisions to charge an application fee for permits if an application fee is required
for similar types of permit applications related to other types of commercial
development. Generally, neither the state nor a political subdivision may require
applications, permits, or fees for routine maintenance of wireless facilities; the
replacement of such facilities with substantially similar or smaller facilities; or
installation, maintenance, operation, or replacement of microwireless facilities
strung on cables between existing utility poles or wireless support structures.
Access to governmental structures
With regard to regulating access to governmental structures, the substitute
amendment does the following:
1. Defines “governmental pole” as a utility pole that is owned or operated by
the state or a political subdivision in a ROW, and a pole or similar structure owned
or operated by the state or a political subdivision in a ROW that supports only
2. Defines “utility pole for designated services” (UPDS) as a utility pole owned
or operated in a ROW by the state or a political subdivision or a utility district.
3. Prohibits a person who owns or controls a governmental pole or UPDS from
entering into an exclusive arrangement with any person for the right to attach to or
use such poles, and prohibits the owner of such poles from imposing fees or charges
for the use of the poles that discriminate based on the type of collocation provided by
the person who contracts to use the poles.
4. Provides that the rate a political subdivision may charge for collocating a
small wireless facility on a UPDS is governed by agreement between the political
subdivision and a wireless provider and subject to the Public Service Commission's
authority under current law.
5. Subject to a number of conditions, limits the rate an owner of a governmental
pole, other than a UPDS, charges another person to collocate on the pole to an
amount that is sufficient to recover the owner's actual, direct, and reasonable costs,
subject to a maximum of $100 per pole per year.
6. For certain existing agreements between a wireless provider and the state
or political subdivision for collocation of small wireless facilities, provides that those
agreements remain in effect, but requires the state or political subdivision to revise
its rates or fees to comply with the substitute amendment no later than the first day
of the seventh month beginning after the substitute amendment takes effect.
7. Provides that a person who owns or controls a governmental pole or UPDS
may not require more make-ready work than required to meet applicable codes or
industry standards, and prohibits fees for make-ready work from including costs
related to preexisting conditions, prior damage, or noncompliance with current
standards. Such fees may not exceed actual costs or the amount charged to other
communications service providers for similar work.
8. Requires the state and political subdivisions to authorize the collocation of
small wireless facilities on wireless support structures and governmental poles that
are not located within ROW to the same extent that the governmental unit permits
access to such structures for other commercial projects or uses.
Local authority, dispute resolution
With regard to the authority of a political subdivision, the substitute
amendment does the following:
1. Subject to the limitations contained in the substitute amendment, and
federal law, authorizes a political subdivision to exercise zoning, land use, planning,
and permitting authority with respect to wireless support structures and utility
2. In general, prohibits a political subdivision from exercising authority over
the design, engineering, construction, installation, or operation of any small wireless
facility located inside or on the site of any campus, stadium, or athletic facility not
owned or controlled by the political subdivision.
3. Limits regulatory authority over the placement or operation of
communications facilities in a ROW by entities authorized to operate in the ROW on
the substitute amendment's effective date or by the wireless provider affiliates of
4. Provides a mechanism for political subdivisions to allow the placement of a
wireless facility or wireless support structure at a temporary rate pending the
resolution of a ROW dispute.
In general, the substitute amendment requires a wireless provider to
indemnify and hold harmless a political subdivision for any liability and loss from
personal injury or property damage that results from the use or occupancy of ROW
by the wireless provider, and requires a wireless provider to waive any claims it may
have against a political subdivision with respect to damages, however caused, based
on the theory of liability.
Setback requirements for a mobile service support structure
Generally, under current law, a political subdivision may not impose a setback
requirement for a mobile service support structure. This substitute amendment
grants a political subdivision limited authority to impose a setback requirement on
the placement of such a structure with regard to new or substantially modified
structures. Under the substitute amendment, a requirement could apply only to a
structure that is constructed on land that is zoned for only single-family residential
use or on adjacent land. In addition, the setback requirement must be based on the
height of the proposed structure, and the requirement may not exceed the height of
the proposed structure. The substitute amendment also provides, however, that a
setback requirement does not apply to an existing or new utility pole, or wireless
support structure that supports small wireless facilities, if the pole or facility meets
the height limitations specified in the substitute amendment for such a pole or
Also under the substitute amendment, a political subdivision must allow a
setback of a proposed mobile service support structure that is less than the height
of the structure if all property owners of lots zoned for only single-family residential
use, located within a radius of three times the height of the structure, consent to such
The people of the state of Wisconsin, represented in senate and assembly, do
enact as follows:
66.0404 (4e) of the statutes is created to read: