LRBs0120/1
MES&MDK:wlj/kjf/emw
2017 - 2018 LEGISLATURE
SENATE SUBSTITUTE AMENDMENT 1,
TO ASSEMBLY BILL 348
October 3, 2017 - Offered by Senator LeMahieu.
AB348-SSA1,1,4
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 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.
Rights-of-way
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 for the construction, operation, or
maintenance of small wireless facilities, wireless support structures, or for 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 specified dimensions.
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 small
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 cooperatives.
4. Limits the height of utility poles, wireless support structures, and small
wireless facilities. With regard to the rights of a wireless provider to construct small
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
provider.
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 and structures.
Collocation
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
deadlines relating to the permit application and approval process. Generally,
permits for collocation or replacement must be approved or denied within 60 days of
receipt, and permits that involve new wireless facilities and structures must be
approved or denied within 90 days of receipt. However, those deadlines may be
extended by mutual agreement. If the state or a political subdivision misses a
deadline for an application, the substitute amendment allows the applicant to
consider the application approved.
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.
However, the substitute amendment 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 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; the replacement of small
wireless 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
wireless facilities.
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 provides that, if no agreement is reached,
the rate is 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. 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 substitute amendment's requirements and to amend
existing agreements relating to collocation in the ROW.
7. 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.
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
poles.
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
such entities.
4. Provides a mechanism for political subdivisions to allow the placement of a
small wireless facility or wireless support structure at a temporary rate pending the
resolution of a ROW dispute.
Indemnification
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
facility.
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
placement.
The people of the state of Wisconsin, represented in senate and assembly, do
enact as follows:
AB348-SSA1,1
1Section 1
. 66.0404 (4e) of the statutes is created to read:
AB348-SSA1,5,62
66.0404
(4e) Setback requirements. (a) Notwithstanding sub. (4) (r), and
3subject to the provisions of this subsection, a political subdivision may enact an
4ordinance imposing setback requirements related to the placement of a mobile
5service support structure that applies to new construction or the substantial
6modification of facilities and support structures, as described in sub. (2).
AB348-SSA1,6,6
1(b) A setback requirement may apply only to a mobile service support structure
2that is constructed on or adjacent to a parcel of land that is subject to a zoning
3ordinance that permits only single-family residential use on that parcel. A setback
4requirement does not apply to an existing or new utility pole, or wireless support
5structure in a right-of-way that supports a small wireless facility, if the pole or
6facility meets the height limitations in s. 66.0414 (2) (e) 2. and 3.
AB348-SSA1,6,107
(c) The setback requirement under par. (b) for a mobile service support
8structure on a parcel shall be measured from the lot lines of other adjacent and
9non-adjacent parcels zoned for only single-family residential use or for which only
10single-family residential use is a permitted use.
AB348-SSA1,6,1411
(d) A setback requirement must be based on the height of the proposed mobile
12service support structure, and the setback requirement may not be a distance that
13is greater than the height of the proposed structure and, subject to par. (e), may be
14a distance that is less than the height of the proposed structure.
AB348-SSA1,6,1915
(e) A political subdivision shall allow a setback of a proposed mobile service
16support structure that is less than the height of the proposed structure if all property
17owners of lots that are zoned for only single-family residential use, that are located
18within a radius of 3 times the height of the proposed structure, consent in writing to
19such placement of the proposed structure.
AB348-SSA1,2
20Section 2
. 66.0414 of the statutes is created to read:
AB348-SSA1,6,21
2166.0414 Small wireless facilities.
(1) Definitions. In this section:
AB348-SSA1,6,2322
(a) “Antenna” means communications equipment that transmits and receives
23electromagnetic radio signals and is used in the provision of wireless services.
AB348-SSA1,7,424
(b) “Applicable codes” means the state electrical wiring code, as defined in s.
25101.80 (4), the state plumbing code specified in s. 145.13, the fire prevention code
1under ch. SPS 314, Wis. adm. code, the Wisconsin commercial building code under
2chs. SPS 361 to 366, the Wisconsin uniform dwelling code under chs. SPS 320 to 325,
3and local amendments to those codes enacted solely to address imminent threats of
4destruction of property or injury to persons.
AB348-SSA1,7,55
(c) “Applicant” means a wireless provider that submits an application.
AB348-SSA1,7,86
(d) “Application” means an application for a permit under this section to
7collocate a small wireless facility or to install or modify a utility pole or wireless
8support structure.
AB348-SSA1,7,119
(e) “Collocate” or “collocation” means the placement, mounting, replacement,
10modification, operation, or maintenance of a wireless facility on or adjacent to a
11wireless support structure or utility pole.
AB348-SSA1,7,1412
(f) “Communications service provider” means a cable operator, as defined in
47
13USC 522 (5); a provider of information service, as defined in
47 USC 153 (24); a
14telecommunications carrier, as defined in
47 USC 153 (51); or a wireless provider.
AB348-SSA1,7,1515
(g) “Fee” means a one-time charge.
AB348-SSA1,7,1916
(h) “Governmental pole” means a utility pole that is owned or operated by the
17state or by a political subdivision in a right-of-way, and a pole or similar structure
18owned or operated by the state or a political subdivision in a right-of-way that
19supports only wireless facilities.