Tuesday, July 30, 2019

Here is the second of a three-part series of articles outlining the key provisions of new state legislation regarding the deployment of wireless small cell equipment in public right-of-way (ROW). Each of the three-part series addresses newly enacted legislation. The first part of the series featured Nebraska. Today’s article features Wisconsin and the final article in the series will feature Maine and Connecticut.

Background

Over the last few years, the wireless industry has actively pursued state legislation enacted to constrain the broad authority of local governments over the deployment of wireless small cell equipment in public ROW. Connecticut, Maine, Nebraska and Wisconsin have now joined Arizona, Arkansas, Colorado, Delaware, Florida, Georgia, Hawaii, Illinois, Indiana, Iowa, Kansas, Michigan, Minnesota, Missouri, New Mexico, North Carolina, Ohio, Oklahoma, Rhode Island, Tennessee, Texas, Utah, Virginia, and West Virginia to bring the list of states which have enacted legislation to facilitate the deployment of wireless small cells to 28.

These state laws typically limit the authority of local governments to decide where wireless small cell equipment can be installed in the ROW; limit the time for action on applications to install small cell equipment; and limit the amounts that can be charged for applications and use of the ROW.

Today’s blog post will focuses on the Wisconsin law, which addresses many specific areas in detail.

With regard to ROW, the law:

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.

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.

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.

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 law 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.

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.

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.

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.

Creates a rights-of-way study committee consisting of the governor, legislators, and representatives of public and private stakeholders.

With regard to the permitting process, the law:

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.

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.

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 law specifies the types of information that can be required in a permit The law 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 law allows the applicant to consider the application approved.

Requires the state or political subdivisions to approve permit applications unless the application interferes with rights-of-way, as specified in the law, 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 law 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.

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.

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 law prohibits the state and political subdivisions from placing any time limit on an application related to the permit.

Prohibits the state and political subdivisions from imposing express or de facto moratorium on filing, receiving, or processing applications, or issuing permits.

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.

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 law also allows a political subdivision to impose certain aesthetic requirements in a historic or underground district.

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.

With regard to access to governmental structures, the law:

Prohibits a person who owns or controls a governmental pole or utility pole for designated services (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.

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.

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.

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 law’s requirements and to amend existing agreements relating to collocation in the ROW.

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.

With regard to dispute resolution, the law:

Requires courts to determine disputes regarding the law’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.

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.

With regard to setback requirements, the law:

Notes that generally, under current law, a political subdivision may not impose a setback requirement for a mobile service support structure.

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. However, a setback 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 may not exceed the height of the proposed structure.

Provides 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.

The third and final entry in this series will address provisions of newly enacted legislation in Maine and Connecticut.

Many of the state laws that have been enacted have provisions that are similar to, draw from, or incorporate by reference FCC actions regarding wireless small cell facilities. However, each state law is unique and must be read fully and carefully to determine its detailed provisions and impacts.