SB239: Bill Text

LRB-3279/1

MES&MDK:kjf&wlj

2019 - 2020 LEGISLATURE

2019 Senate BILL 239

May 24, 2019 - Introduced by Senators LeMahieu, Hansen, Feyen, Johnson, Cowles, Nass, Wanggaard, Tiffany, Smith and Olsen, cosponsored by Representatives Kuglitsch, Fields, Neylon, Stuck, Considine, Duchow, Felzkowski, Gruszynski, Horlacher, Kulp, Mursau, Novak, Rohrkaste, Snyder, Thiesfeldt, Tittl, Tusler, Vruwink, Subeck and Spiros. Referred to Committee on Utilities and Housing.

SB239,1,4 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 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.

Key terms

The bill creates definitions for the following terms that are used in the analysis below:

1. “Small wireless facility” means specified antenna equipment at a fixed location that enables wireless service and that meets size, height, and other requirements.

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. “ Collocate” also 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.

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.

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.

Permitting process

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 underground district.

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 following:

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.

Dispute resolution

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.

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:

SB239,1 Section 1 . 66.0404 (4e) of the statutes is created to read:

SB239,5,6 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).

SB239,5,12 (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 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.

SB239,6,4 (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 nonadjacent parcels for which single-family residential use is a permitted use under a zoning ordinance.

SB239,6,7 (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.

SB239,2 Section 2 . 66.0414 of the statutes is created to read:

SB239,6,9 66.0414 Small wireless facilities. (1) Definitions. In this section:

SB239,6,11 (a) “Antenna” means communications equipment that transmits and receives electromagnetic radio signals and is used in the provision of wireless services.

SB239,6,15 (b) “Antenna equipment” or “wireless equipment” means equipment, switches, wiring, cabling, power sources, shelters, or cabinets associated with an antenna, located at the same fixed location as the antenna, and, when collocated on a structure, is mounted or installed at the same time as such antenna.

SB239,6,17 (c) “Antenna facility” means an antenna and associated antenna equipment, including ground-mounted antenna equipment.

SB239,6,23 (d) “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.

SB239,6,24 (e) “Applicant” means a wireless provider that submits an application.

SB239,7,2 (f) “Application” means an application for a permit under this section to collocate a small wireless facility or to install, modify, or replace a utility pole.

SB239,7,5 (g) “Collocate,” “collocate on,” or “collocation” means the placement, mounting, replacement, modification, operation, or maintenance of a small wireless facility on, or of ground-mounted antenna equipment adjacent to, a structure.

SB239,7,8 (h) “Communications facilities” means the set of equipment and network components, including wires and cables and associated facilities, used by a communications service provider to provide communications service.

SB239,7,10 (i) “Communications network” means a network used to provide a communications service.

SB239,7,13 (j) “Communications service” means cable service, as defined in 47 USC 522 (6), telecommunications service, as defined in 47 USC 153 (53), information service, as defined in 47 USC 153 (24), or wireless service.

SB239,7,15 (k) “Communications service provider” means a person that provides communications service.

SB239,7,16 (L) “Facility” means an antenna facility or a structure.

SB239,7,17 (m) “Fee” means a one-time charge.