2019 - 2020 LEGISLATURE
May 23, 2019 - Introduced by Representatives Kuglitsch, Fields, Neylon, Stuck,
Duchow, Gruszynski, Horlacher, Kulp, Mursau, Novak, Rohrkaste, Snyder,
Thiesfeldt, Tittl, Tusler, Vruwink, Considine, Felzkowski, Subeck and
Spiros, cosponsored by Senators LeMahieu, Hansen, Feyen,
Cowles, Nass and Wanggaard. Referred to Committee on Jobs and the
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 certain wireless
3facilities and authorizing political subdivisions to impose setback requirements
4for certain mobile service support structures.
Analysis by the Legislative Reference Bureau
This bill creates a regulatory framework for the state and political subdivisions
(cities, villages, towns, and counties) for the following: 1) the deployment by wireless
services and infrastructure providers (wireless providers) of wireless equipment and
facilities, including the placement of such items in rights-of-way (ROW); 2) the
permitting process for certain activities by wireless providers; 3) the regulation of
access to certain governmental structures by wireless providers; and 4) the
resolution of disputes. The bill also authorizes political subdivisions to impose
setback requirements for certain mobile service support structures.
The bill creates definitions for the following terms that are used in the analysis
1. “Small wireless facility” means specified antenna equipment at a fixed
location that enables wireless service and that meets size, height, and other
2. “Utility pole” means any of the following: a pole used by a communications
service provider; a pole used for electric distribution, lighting, traffic control,
signage, or a similar function; or a pole used for collocating a small wireless facility.
3. “Collocate” means to place, mount, replace, modify, operate, or maintain a
small wireless facility on a utility pole or wireless support structure. “
means to place, mount, replace, modify, operate, or maintain ground-mounted
antenna equipment adjacent to a utility pole or wireless support structure.
4. “Governmental pole” means a utility pole owned or operated by the state or
a political subdivision in ROW.
5. “Utility pole for designated services” (UPDS) means a governmental pole or
a utility pole owned or operated by a utility district that is used to carry electric
distribution lines or cables or wires for telecommunications, cable, or electric service.
6. “Wireless support structure” means a freestanding structure capable of
supporting small wireless facilities, but does not include a utility pole or a structure
designed solely for collocating small wireless facilities.
With regard to ROW, the bill does the following:
1. Prohibits the state and political subdivisions from entering into an exclusive
agreement with any person for the use of ROW for the construction, operation, or
maintenance of small wireless facilities, wireless support structures, or for the
collocation of small wireless facilities.
2. Provides that the state and political subdivisions may impose
nondiscriminatory rates or fees on wireless providers only if they charge other
entities 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 small
wireless facilities and construct, modify, maintain, and replace utility poles that
support small wireless 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 cooperatives.
4. Limits the height of utility poles and small wireless facilities. With regard
to the rights of a wireless provider to construct or modify utility poles, the bill allows
a political subdivision to propose an alternate location for collocation, which the
wireless provider must use if it has the right to do so and the alternate location is
reasonable and technically feasible and does not impose material additional costs.
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 small
wireless facilities, utility poles, and wireless support structures.
6. Generally 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.
7. Prohibits political subdivisions from doing any of the following in a way that
exceeds federal or state regulatory requirements: regulating communications
service facilities in rights-of-way; regulating communications service; or imposing
certain charges relating to communications service provided over facilities in
rights-of-way. “Communications service” is defined as cable television,
telecommunications, information, or wireless service.
8. Creates a rights-of-way study committee consisting of the governor,
legislators, and representatives of public and private stakeholders.
With regard to the activities of a wireless provider to collocate small wireless
facilities within and outside a ROW and to install, modify, or replace associated
utility poles within a ROW, the bill 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 if the permit
is of general applicability and does not apply exclusively to small wireless facilities.
The bill specifies the types of information that can be required in a permit
application. The bill imposes various deadlines relating to the permit application
and approval process. If the state or a political subdivision misses a deadline for an
application, the bill allows the applicant to consider the application approved.
4. Requires the state or political subdivisions to approve permit applications
unless the application interferes with rights-of-way, as specified in the bill, or 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. However, the bill allows the state or a
political subdivision to condition approval of a permit on compliance with reasonable
and nondiscriminatory relocation, abandonment, or bonding requirements that are
consistent with state law applicable to other occupiers of ROW.
5. Prohibits the state and political subdivisions from requiring an applicant to
perform services unrelated to the approval sought, 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 bill
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 express or de
facto moratorium on filing, receiving, or processing applications, or issuing permits.
8. Subject to specified conditions, allows a political subdivision to adopt
aesthetic requirements for deployment of small wireless facilities and associated
antenna equipment and utility poles in rights-of-way.
9. Authorizes a political subdivision to enact an ordinance to prohibit, in a
nondiscriminatory way, a communications service provider from installing utility
poles or wireless support structures in the ROW of a historic district or an area in
which all utilities are located underground (underground district), except that the
ordinance may not prohibit collocations or the replacement of existing structures,
and the ordinance must satisfy specified requirements. The bill also allows a
political subdivision to impose certain aesthetic requirements in a historic or
10. Subject to specified monetary limits and adjustments based on actions by
the Federal Communications Commission, authorizes the state and political
subdivisions to charge an application fee for permits. Generally, neither the state nor
a political subdivision may require applications, permits, fees, or other approvals for
routine maintenance, the replacement of small wireless facilities with substantially
similar or smaller facilities, or certain activities involving micro wireless facilities
that are strung on cables between existing utility poles.
Access to governmental structures
With regard to regulating access to governmental structures, the bill does the
1. 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 discriminatory
fees, charges, or other terms and conditions.
2. 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 provides that, if no agreement is reached,
the rate is subject to the Public Service Commission's authority under current law.
3. Subject to a number of conditions and adjustments based on FCC actions,
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 $250 per small wireless
facility per year.
4. Specifies deadlines for the state and political subdivisions to make available
rates, fees, and terms for collocation of small wireless facilities on governmental
poles that comply with the bill's requirements and to amend existing agreements
relating to collocation in the ROW.
5. Provides that a person who owns or controls a governmental pole other than
a 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.
The bill requires courts to determine disputes regarding the bill's
requirements, except that, as noted above, subject to court review, the PSC resolves
disputes over the rates charged by a political subdivision for collocating a small
wireless facility on a UPDS. The bill also provides a mechanism for political
subdivisions to allow the placement of a small wireless facility or utility pole at a
temporary rate pending the resolution of a ROW dispute.
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 bill grants a political
subdivision limited authority to impose a setback requirement on the placement or
substantial modification of such a mobile service support structure with regard to
new or substantially modified structures. Under the bill, 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 bill 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 bill for such a pole or facility.