SB425: Bill Text

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:

SB425,10,19 1. Subject to subd. 5., the fee or rate must be limited to no more than the direct and actual cost of managing the right-of-way.

SB425,10,21 2. Except as provided in par. (d), the fee or rate must be competitively neutral with regard to other users of the right-of-way.

SB425,10,24 3. The fee or rate may not result in a double recovery by the state or political subdivision if existing fees, rates, or taxes already recover the direct and actual cost of managing the right-of-way.

SB425,11,2 4. The fee or rate may not be in the form of a franchise or other fee based on revenue or customer counts.

SB425,11,6 5. The fee or rate may not exceed an annual amount equal to $20 multiplied by the number of utility poles or wireless support structures in the state's or political subdivision's geographic jurisdiction on which the wireless provider has collocated a small wireless facility antenna.

SB425,11,12 (d) Rate or fee adjustment. 1. Except as provided in subd. 2., by the later of the first day of the 7th month beginning after the effective date of this subdivision .... [LRB inserts date], or 3 months after receiving its first request for access to the right-of-way by a wireless provider, the state or a political subdivision shall make available, through ordinance or otherwise, rates, fees, and terms for such access that comply with this subsection.

SB425,11,19 2. Agreements between a wireless provider and the state or a political subdivision that are in effect on the effective date of this subdivision .... [LRB inserts date], and that relate to access to the right-of-way, remain in effect, subject to applicable termination provisions, except that by the first day of the 25th month beginning after the effective date of this subdivision .... [LRB inserts date], the state or political subdivision shall amend any such agreement to comply with the rates, fees, and terms required under this subsection.

SB425,12,6 (e) Right of access. 1. Except as otherwise provided in this subsection and subs. (3) (c) 4. and (4), and notwithstanding ss. 182.017 and 196.58 and any zoning ordinance enacted by a political subdivision under s. 59.69, 60.61, or 62.23, a wireless provider shall have the right to collocate small wireless facilities and construct, modify, maintain, and operate utility poles, wireless support structures, conduit, cable, and related appurtenances and facilities along, across, upon, and under a right-of-way. Such facilities and structures may not obstruct or hinder travel, drainage, maintenance, or the public health, safety, and general welfare on or around the right-of-way, or obstruct the legal use of the right-of-way for other communications providers, public utilities, cooperative associations organized under ch. 185 for the purpose of producing or furnishing heat, light, power, or water to their members only, or pipes or pipelines transmitting liquid manure.

SB425,12,8 2. Except as provided in subd. 4., the height of a utility pole or wireless support structure installed, or modified, in a right-of-way may not exceed the greater of:

SB425,12,11 a. Ten feet above the tallest existing utility pole that is in place on the effective date of this subd. 2. a. .... [LRB inserts date], and that is located within 500 feet of the new or modified pole or structure in the same right-of-way.

SB425,12,12 b. Fifty feet above ground level.

SB425,12,14 3. The height of a small wireless facility installed, or modified, in a right-of-way may not exceed the greater of:

SB425,12,17 a. Ten feet above the tallest existing utility pole or wireless support structure that is in place on the effective date of this subd. 3. a. .... [LRB inserts date], and that is located in the same right-of-way.

SB425,12,18 b. The maximum height described in subd. 2. b.

SB425,12,23 4. A wireless provider may construct, modify, and maintain a utility pole, wireless support structure, or small wireless facility along, across, upon, and under a right-of-way that exceeds the height limits in this paragraph if the wireless provider complies with height limits under the zoning ordinances enacted by a political subdivision under s. 59.69, 60.61, or 62.23.

SB425,13,5 5. With regard to the rights of a wireless provider to construct small wireless facilities or modify utility poles, wireless support structures, conduit, cable, and related appurtenances and facilities as described in subd. 1., a political subdivision may propose an alternate location within 50 feet of the proposed location, which the wireless provider shall use if it has the right to use the alternate structure on reasonable terms and conditions and the alternate location does not impose technical limits or additional costs, as determined by the wireless provider.

SB425,13,15 (f) Damage and repair. The state or a political subdivision may require a wireless provider to repair all damage that is directly caused by the activities of the wireless provider in a right-of-way involving its small wireless facilities, wireless support structures, or utility poles, and to return the right-of-way to its former condition before it was so damaged. If the wireless provider fails to make the required repairs within a reasonable amount of time after receiving a written request to do so from the state or a political subdivision, the state or political subdivision may make the necessary repairs and charge the liable party for the cost of the repairs. This paragraph does not prohibit a political subdivision from recovering damages under s. 86.02.

SB425,13,18 (g) Nondiscrimination. The state and political subdivisions must administer and regulate a right-of-way in a competitively neutral manner with regard to all users of the right-of-way.

SB425,13,23 (3) Collocation of small wireless facilities. (a) Applicability. This subsection applies to the activities of a wireless provider both within and outside a right-of-way. Except as provided in this subsection and in subs. (2) and (4), neither the state nor a political subdivision may prohibit, regulate, or charge any person for the collocation of small wireless facilities.

SB425,14,3 (b) Zoning. Notwithstanding an ordinance enacted under s. 59.69, 60.61, or 62.23, and except as provided in par. (c) 4., small wireless facilities shall be classified as permitted uses and are not subject to a political subdivision's zoning ordinances if they are collocated in a right-of-way or outside a right-of-way if the property is not zoned exclusively for single-family residential use.

SB425,14,9 (c) Permits. 1. Subject to subd. 3., the state or a political subdivision may require an application for a permit to collocate a small wireless facility and to construct, modify, maintain, or operate a new or replacement utility pole or wireless support structure, provided such permit is of general applicability and does not apply exclusively to wireless facilities. All of the following apply to such permit applications filed by an applicant:

SB425,14,11 a. Neither the state nor a political subdivision may require an applicant to perform services unrelated to the collocation for which approval is sought.

SB425,14,15 b. Neither the state nor a political subdivision may require an applicant that is a wireless provider to provide more information in its permit application than such a governmental unit requires from a communications service provider that is not a wireless provider and that applies for the same type of permit.

SB425,14,18 c. The state or a political subdivision shall notify an applicant in writing, within 10 days of receiving the application, whether it is complete. If it is incomplete, the state or political subdivision shall specify why the application is incomplete.

SB425,14,22 d. Except as provided in subd. 1. g., if a permit application involves a new utility pole or wireless support structure, and the state or a political subdivision fails to approve or deny the permit application under this section not later than 90 days after its receipt, the applicant may consider its permit application approved.

SB425,15,3 e. Except as provided in subd. 1. g., if a permit application proposes to collocate small wireless facilities to an existing utility pole or wireless support structure, or replace an existing utility pole or wireless support structure, and the state or a political subdivision fails to approve or deny the permit application under this section not later than 60 days after its receipt, the applicant may consider its permit application approved.

SB425,15,8 f. Except as provided in subd. 1. g., if there is any type of construction, building, or encroachment permit required by a political subdivision that relates to a permit under subd. 1. d. or e., and the political subdivision fails to approve or deny that permit application within the specified 60-day or 90-day time frame, the applicant may consider its permit application approved.

SB425,15,11 g. The applicant and the state or political subdivision may mutually agree to extend the deadline for the state or political subdivision to approve or deny a permit application under subd. 1. d., e., or f.

SB425,15,20 h. Subject to subd. 1. i., the state or a political subdivision shall approve a permit application unless it does not meet the applicable codes. If the permit application is denied for this reason, the state or political subdivision shall provide the applicant with written documentation explaining the basis for the denial no later than the date that the permit application is denied. An applicant may cure the deficiencies identified in the documentation and resubmit the permit application no later than 30 days after receipt of the documentation without being required to pay an additional application fee. The state or a political subdivision shall approve or deny the revised permit application not later than 30 days after its receipt.

SB425,15,24 i. The state or a political subdivision may 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 rights-of-way.

SB425,16,9 j. An applicant may file a consolidated permit application to collocate up to 30 small wireless facilities, or a greater number if agreed to by a political subdivision, provided that all the small wireless facilities in the application consist of substantially similar equipment and are to be placed on similar types of wireless support structures. In rendering a decision on a consolidated permit application, a political subdivision may approve a permit for some small wireless facilities and deny a permit for others, but the political subdivision may not use the denial of one or more permits as a basis to deny permits for all of the small wireless facilities in the application.

SB425,16,15 k. If an applicant's permit application is approved, the applicant shall commence the activity authorized by the permit no later than 365 days after its receipt and shall pursue work on the activity until completion. Neither the state nor a political subdivision may place any time limitation on an applicant that is related to the permit. An applicant may request that the state or a political subdivision terminate the applicant's permit.

SB425,16,17 2. Neither the state nor a political subdivision may institute a moratorium on any of the following:

SB425,16,18 a. The filing, receiving, or processing of applications.

SB425,16,20 b. The issuance of permits or other approvals for the collocation of small wireless facilities.

SB425,16,24 3. An approval under this section authorizes only the installation, placement, maintenance, or operation of a small wireless facility to provide wireless service and does not authorize the provision of any other service or the installation, placement, maintenance, or operation of wireline backhaul service in a right-of-way.

SB425,17,12 4. A political subdivision may enact an ordinance to prohibit, in a nondiscriminatory way, a communications service provider from installing structures in the right-of-way of a historic district or an underground district, except that the ordinance may not prohibit collocations or the replacement of existing structures. In this subdivision, a historic district is an area designated as historic by the political subdivision, listed on the national register of historic places in Wisconsin, or listed on the state register of historic places. In this subdivision, an underground district is an area designated by the political subdivision in which any pipe, pipeline, duct, wire, line, conduit, or other equipment, which is used for the transmission, distribution, or delivery of electrical power, heat, water, gas, sewer, or telecommunications equipment, is located underground. This subdivision applies only to ordinances enacted on or before January 1, 2014.

SB425,17,18 (d) Application fees. 1. The state or a political subdivision may charge an application fee only if an application fee is required for similar types of permit applications related to other types of commercial development within the governmental unit's jurisdiction. Such a fee may be imposed only for the actual, direct, and reasonable costs incurred by the governmental unit that relate to the processing and granting of the permit.

SB425,17,19 2. An application fee may not include any of the following:

SB425,17,20 a. Travel expenses incurred by a 3rd party in its review of an application.

SB425,17,22 b. A direct payment or reimbursement of 3rd-party rates or fees charged on a contingency basis or a result-based arrangement.

SB425,17,25 3. If a dispute arises concerning the appropriateness of an application fee, the state or political subdivision bears the burden of proving that the fee is reasonably related to the actual, direct, and reasonable costs incurred by the governmental unit.

SB425,18,2 4. Notwithstanding subds. 1. to 3., an application fee may not exceed the lesser of the following:

SB425,18,4 a. A building permit issued by the state or a political subdivision for any similar commercial construction, activity, or land use development.

SB425,18,7 b. One hundred dollars each for up to 5 small wireless facilities that are specified in the permit application, and $50 for each additional small wireless facility that is specified in the permit application.

SB425,18,9 (e) Approvals not required. Neither the state nor a political subdivision may require applications, permits, or fees for any of the following:

SB425,18,10 1. Routine maintenance.

SB425,18,15 2. The replacement of a small wireless facility with a small wireless facility that is substantially similar to, or the same size or smaller than, the existing small wireless facility, except that the governmental unit may require the person seeking to replace the small wireless facility to obtain a permit to work within a right-of-way to complete such a replacement.

SB425,18,18 3. The installation, placement, maintenance, operation, or replacement of microwireless facilities that are strung on cables between existing utility poles or wireless support structures in compliance with applicable codes.

SB425,18,21 (f) Traffic work permits. Nothing in this section prohibits a political subdivision from requiring a work permit for work that will unreasonably affect traffic patterns or obstruct vehicular traffic in a right-of-way.

SB425,19,2 (4) Access to governmental structures. (a) Collocation of small wireless facilities on governmental poles and utility poles for designated services. 1. A person owning or controlling a governmental pole or a utility pole for designated services may not enter into an exclusive arrangement with any person for the right to attach to, or use, such poles.

SB425,19,5 2. The fees or rates charged by the owner of a pole described under subd. 1. may not be discriminatory, without regard to the type of collocation provided by the person who contracts to use such a pole.

SB425,19,11 3. The rate a political subdivision may charge a wireless provider to collocate a small wireless facility on a utility pole for designated services owned or operated by the political subdivision shall be governed by an agreement between the political subdivision and the wireless provider. If there is a failure to agree on the rate, the public service commission shall determine the compensation pursuant to the procedures in s. 196.04 and the determination shall be reviewable under s. 196.41.

SB425,19,21 4. The rate an owner of a governmental pole other than a utility pole for designated services charges another person to collocate on the owner's pole shall be sufficient to recover the actual, direct, and reasonable costs related to the applicant's application for, and use of, space on the pole, except that the total annual rate for a collocation and any related activities may not exceed the lesser of the actual, direct, and reasonable costs related to the collocation or $100 per year per pole. If a dispute arises concerning the appropriateness of a rate charged by the state or political subdivision under this subdivision, the governmental unit bears the burden of proving that the fee is reasonably related to the actual, direct, and reasonable costs incurred by the governmental unit.

SB425,20,3 5. a. Except as provided in subd. 5. b., by the later of the first day of the 7th month beginning after the effective date of this subd. 5. a. .... [LRB inserts date], or 3 months after receiving its first request to collocate a small wireless facility on a governmental pole, other than a utility pole for designated services, the state or a political subdivision shall make available, through ordinance or otherwise, rates, fees, and terms for the collocation of small wireless facilities on governmental poles that comply with this subsection.

SB425,20,11 b. Agreements between a wireless provider and the state or a political subdivision that are in effect on the effective date of this subd. 5. b. .... [LRB inserts date], and that relate to the collocation of small wireless facilities in the right-of-way, including the collocation of small wireless facilities on governmental poles, remain in effect, subject to applicable termination provisions, except that by the first day of the 25th month beginning after the effective date of this subd. 5. b. .... [LRB inserts date], the state or political subdivision shall amend any such agreement to comply with the rates, fees, and terms required under this subsection.

SB425,20,18 6. With regard to a governmental pole that supports aerial cables used for video, communications, or electric service, and with regard to utility poles for designated services, the parties shall comply with the process for make-ready work under 47 USC 224 and its implementing regulations, including 47 CFR 1.1420 and 1.1422. The good faith estimate of the person owning or controlling such poles for any make-ready work necessary to enable the pole to support the requested collocation must include pole replacement if necessary.

SB425,21,3 7. With regard to a governmental pole that does not support aerial cables used for video, communications, or electric service, the governmental unit shall provide a good faith estimate for any make-ready work necessary to enable the pole to support the requested collocation, including pole replacement if necessary, not later than 60 days beginning after receipt of a complete application, except that the governmental unit may provide the applicant with access to the governmental pole that is necessary for the applicant to make that estimate. Make-ready work, including any pole replacement, must be completed within 60 days after the applicant's written acceptance of a good faith estimate provided by the governmental unit or within 60 days after the applicant makes the estimate.

SB425,21,11 8. A person owning or controlling a governmental pole other than a utility pole for designated services may not require more make-ready work than required to meet applicable codes or industry standards. Fees for make-ready work may not include any costs that are related to preexisting conditions, prior damage, or noncompliance with currently applicable standards. Fees for make-ready work, including any pole replacement, may not exceed actual costs or the amount charged to other communications service providers for similar work, and may not include any consultant fees or expenses.

SB425,21,19 (b) Collocation on governmental wireless support structures and utility poles outside the right-of-way. The state or a political subdivision shall authorize the collocation of small wireless facilities on wireless support structures and utility poles owned or operated by a governmental unit that are not located within the right-of-way to the same extent that the governmental unit permits access to such structures for other commercial projects or uses. Such collocations are subject to sub. (3) (c) 4. and to reasonable and nondiscriminatory rates, fees, and terms as are provided in an agreement between the governmental unit and a wireless provider.

SB425,21,23 (5) Local authority. (a) Subject to the provisions of this section, ss. 182.017 and 196.58, and applicable federal law, and except as provided under par. (b), a political subdivision may exercise zoning, land use, planning, and permitting authority with respect to wireless support structures and utility poles.

SB425,22,3 (b) A political subdivision may not exercise any authority over the design, engineering, construction, installation, or operation of any small wireless facility located in an interior structure or upon the site of any campus, stadium, or athletic facility that is not owned or controlled by the political subdivision, other than to comply with applicable codes.

SB425,22,6 (c) 1. In this paragraph, “affiliate” means a person that directly, or indirectly through one or more intermediaries, controls, or is controlled by, or is under common control with, another person.

SB425,22,15 2. Except as provided in this section or required by federal law, a political subdivision may not adopt or enforce any regulation on the placement or operation of communications facilities in a right-of-way, or regulate, impose, or collect fees on communication services in a right-of-way, that are provided by an entity authorized on the effective date of this subdivision .... [LRB inserts date], to operate in the right-of-way, or by that entity's wireless provider affiliate, and may not regulate or impose or collect fees on communications services except to the extent specifically provided for in that authorization, and unless expressly required by state or federal statute.

SB425,23,3 (6) Dispute resolution. Except as provided in sub. (4) (a) 3., and notwithstanding ss. 182.017 (8) (a) and 196.58 (4) (a), a court of competent jurisdiction shall determine all disputes arising under this section. Unless otherwise agreed to by the parties to a dispute, and pending resolution of a right-of-way access rate dispute, a political subdivision controlling access to and use of a right-of-way shall allow the placement of a small wireless facility or wireless support structure at a temporary rate of one-half of the political subdivision's proposed annual rate, or $20, whichever is less. Rates shall be reconciled and adjusted upon final resolution of the dispute. Pending the resolution of a dispute concerning rates for collocation of small wireless facilities on government poles or utility poles for designated services, the person owning or controlling the pole shall allow the collocating person to collocate on its poles, at annual rates of no more than $20 per year per pole, with rates to be reconciled and adjusted upon final resolution of the dispute.

SB425,23,13 (7) Indemnification. A wireless provider shall indemnify and hold harmless a political subdivision against any and all liability and loss from personal injury or property damage resulting from or arising out of, in whole or in part, the use or occupancy of rights-of-way by the wireless provider or its employees, agents, or contractors arising out of the rights and privileges granted under this section. A wireless provider has no obligation to indemnify or hold harmless against any liabilities and losses as may be due to or caused by the sole negligence of the political subdivision or its employees or agents. A wireless provider shall waive any claims that it may have against a political subdivision with respect to consequential, incidental, or special damages, however caused, based on the theory of liability.

SB425,23,18 (8) Federal law; contracts. Nothing in this section adds to, replaces, or supersedes federal laws regarding utility poles owned by investor-owned electric utilities nor shall this section impose or otherwise affect any rights, controls, or contractual obligations investor-owned electric utilities may establish with respect to their utility poles.

SB425,23,23 (9) Private property owners. Nothing in this section is intended to authorize a person to place, maintain, modify, operate, or replace a privately owned utility pole or wireless support structure or to collocate small wireless facilities on a privately owned utility pole, a privately owned wireless support structure, or other private property without the consent of the property owner.

SB425,3 Section 3. Initial applicability.

SB425,24,4 (1) The treatment of section 66.0404 (4e) of the statutes first applies to an application for a building permit, or any other kind of permit, to construct a new, or substantially modify an existing, mobile service support structure that is filed with a political subdivision on January 1, 2018.

SB425,24,5 (End)