LRB-4065/1
MES&MDK:wlj/kjf/emw
2017 - 2018 LEGISLATURE
October 4, 2017 - Introduced by Senator LeMahieu, cosponsored by Representative
Kuglitsch. Referred to Committee on Elections and Utilities.
SB425,1,4
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 bill 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 bill also authorizes
political subdivisions to impose setback requirements for certain mobile service
support structures.
Rights-of-way
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 (collectively, wireless facilities and structures).
The bill defines “wireless facility” as equipment at a fixed location that enables
wireless service between user equipment and a wireless network. Under the bill, 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 bill 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 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 or wireless
support structure if the permit is of general applicability and does not apply
exclusively to wireless facilities. The bill 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 bill
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 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 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 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 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 bill 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 bill'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 bill does the
following:
1. Subject to the limitations contained in the bill, 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 bill'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 bill 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 bill 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
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.
Also under the bill, 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.
For further information see the state and local fiscal estimate, which will be
printed as an appendix to this bill.
