SB425: Bill Text

October 4, 2017 - Introduced by Senator LeMahieu, cosponsored by Representative Kuglitsch. Referred to Committee on Elections and Utilities.

SB425,1,4 An Act to create 66.0404 (4e) and 66.0414 of the statutes; relating to: limiting the authority of the state and political subdivisions to regulate certain wireless facilities and authorizing political subdivisions to impose setback requirements for 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.

The people of the state of Wisconsin, represented in senate and assembly, do enact as follows:

SB425,1 Section 1. 66.0404 (4e) of the statutes is created to read:

SB425,5,6 66.0404 (4e) Setback requirements. (a) Notwithstanding sub. (4) (r), and subject to the provisions of this subsection, a political subdivision may enact an ordinance imposing setback requirements related to the placement of a mobile service support structure that applies to new construction or the substantial modification of facilities and support structures, as described in sub. (2).

SB425,6,2 (b) A setback requirement may apply only to a mobile service support structure that is constructed on or adjacent to a parcel of land that is subject to a zoning ordinance that permits only single-family residential use on that parcel. A setback requirement does not apply to an existing or new utility pole, or wireless support structure in a right-of-way that supports a small wireless facility, if the pole or facility meets the height limitations in s. 66.0414 (2) (e) 2. and 3.

SB425,6,6 (c) The setback requirement under par. (b) for a mobile service support structure on a parcel shall be measured from the lot lines of other adjacent and non-adjacent parcels zoned for only single-family residential use or for which only single-family residential use is a permitted use.

SB425,6,10 (d) A setback requirement must be based on the height of the proposed mobile service support structure, and the setback requirement may not be a distance that is greater than the height of the proposed structure and, subject to par. (e), may be a distance that is less than the height of the proposed structure.

SB425,6,15 (e) A political subdivision shall allow a setback of a proposed mobile service support structure that is less than the height of the proposed structure if all property owners of lots that are zoned for only single-family residential use, that are located within a radius of 3 times the height of the proposed structure, consent in writing to such placement of the proposed structure.

SB425,2 Section 2. 66.0414 of the statutes is created to read:

SB425,6,17 66.0414 Small wireless facilities. (1) Definitions. In this section:

SB425,6,19 (a) “Antenna” means communications equipment that transmits and receives electromagnetic radio signals and is used in the provision of wireless services.

SB425,6,25 (b) “Applicable codes” means the state electrical wiring code, as defined in s. 101.80 (4), the state plumbing code specified in s. 145.13, the fire prevention code under ch. SPS 314, Wis. adm. code, the Wisconsin commercial building code under chs. SPS 361 to 366, the Wisconsin uniform dwelling code under chs. SPS 320 to 325, and local amendments to those codes enacted solely to address imminent threats of destruction of property or injury to persons.

SB425,7,1 (c) “Applicant” means a wireless provider that submits an application.

SB425,7,4 (d) “Application” means an application for a permit under this section to collocate a small wireless facility or to install or modify a utility pole or wireless support structure.

SB425,7,7 (e) “Collocate” or “collocation” means the placement, mounting, replacement, modification, operation, or maintenance of a wireless facility on or adjacent to a wireless support structure or utility pole.

SB425,7,10 (f) “Communications service provider” means a cable operator, as defined in 47 USC 522 (5); a provider of information service, as defined in 47 USC 153 (24); a telecommunications carrier, as defined in 47 USC 153 (51); or a wireless provider.

SB425,7,11 (g) “Fee” means a one-time charge.

SB425,7,15 (h) “Governmental pole” means a utility pole that is owned or operated by the state or by a political subdivision in a right-of-way, and a pole or similar structure owned or operated by the state or a political subdivision in a right-of-way that supports only wireless facilities.

SB425,7,19 (i) “Investor-owned electric utility” means a public utility whose purpose is the generation, transmission, delivery, or furnishing of electric power but does not include a public utility owned and operated wholly by a municipality or a cooperative association organized under ch. 185.

SB425,7,22 (j) “Microwireless facility” means a small wireless facility that does not exceed 24 inches in length, 15 inches in width, and 12 inches in height and that has no exterior antenna longer than 11 inches.

SB425,7,24 (k) “Permit” means written authorization required by the state or a political subdivision to perform an action, or initiate, continue, or complete a project.

SB425,7,25 (L) “Political subdivision” means any city, village, town, or county.

SB425,8,1 (m) “Rate” means a recurring charge.

SB425,8,7 (n) “Right-of-way” means the area on, below, or above a highway, as defined in s. 340.01 (22), other than a federal interstate highway; sidewalk; utility easement, other than a utility easement for a cooperative association organized under ch. 185 for purposes of providing or furnishing heat, light, power, or water to its members only; or other similar property, including property owned or controlled by the department of transportation.

SB425,8,9 (o) “Small wireless facility” means a wireless facility to which all of the following apply:

SB425,8,12 1. Each antenna is located inside an enclosure of no more than 6 cubic feet or, in the case of an antenna that has exposed elements, the antenna and all of its exposed elements could fit within an enclosure of no more than 6 cubic feet.

SB425,8,18 2. All other wireless equipment associated with the facility is cumulatively no more than 28 cubic feet, except that when calculating the allowable volume for purposes of this subdivision, an electric meter, concealment elements, a telecommunications demarcation box, a ground-based enclosure, a power transfer switch, and vertical cable runs for the connection of power and other services may not be included.

SB425,8,22 (p) “Utility pole” means a structure that is used in whole or in part by a communications service provider or for electric distribution, lighting, traffic control, signage, or a similar function but does not include a structure that supports only a wireless facility.

SB425,9,2 (q) “Utility pole for designated services” means a utility pole owned or operated in a right-of-way by the state, a political subdivision, or a utility district that is designed to, or used to, carry electric distribution lines, or cables or wires for telecommunications, cable, or electric service.

SB425,9,7 (r) “Wireless facility” means equipment at a fixed location that enables wireless service between user equipment and a wireless network, not including the structure or improvements on, under, or within which the equipment is collocated. “ Wireless facility” includes a small wireless facility. “Wireless facility” does not include any of the following:

SB425,9,8 1. A wireline backhaul facility.

SB425,9,11 2. Coaxial or fiber-optic cable between utility poles or wireless support structures or otherwise not immediately adjacent to or directly associated with a particular antenna.

SB425,9,14 (s) “Wireless infrastructure provider” means any person, other than a wireless services provider, that builds or installs wireless communication transmission equipment, wireless facilities, or wireless support structures.

SB425,9,16 (t) “Wireless provider” means a wireless infrastructure provider or a wireless services provider.

SB425,9,19 (u) “Wireless services” means any service using licensed or unlicensed wireless spectrum, including the use of a Wi-Fi network, whether at a fixed location or by means of a mobile device, that is provided using wireless facilities.

SB425,9,21 (v) “Wireless services provider” means any person who provides wireless services.

SB425,9,24 (w) “Wireless support structure” means an existing pole or other freestanding structure, other than a utility pole, that is designed to support, or capable of supporting, wireless facilities.

SB425,10,2 (x) “Wireline backhaul facility” means a facility for providing wireline backhaul service.

SB425,10,4 (y) “Wireline backhaul service” means the transport of communications services by wire from wireless facilities to a network.

SB425,10,6 (2) Rights-of-way. (a) Applicability. This subsection applies only to the activities of a wireless provider within a right-of-way.

SB425,10,10 (b) Exclusive use prohibited. Neither the state nor a political subdivision may enter into an exclusive arrangement with any person for the use of a right-of-way for the construction, operation, marketing, maintenance, or collocation of small wireless facilities or wireless support structures.

SB425,10,17 (c) Rates and fees. The state or a political subdivision may charge a wireless provider a rate or fee for the use a right-of-way with respect to the construction or collocation of a small wireless facility or wireless support structure in the right-of-way only if the state or political subdivision charges other communications service providers or utilities for the use of the right-of-way. If the state or a political subdivision charges a wireless provider a rate or fee as described in this paragraph, all of the following apply: