States Legislate to Streamline Small Cell Deployment

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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 right-of-way (ROW). These four states, Nebraska, Wisconsin, Maine and Connecticut, recently 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.

Nebraska. The new Nebraska law reflects the conclusion that “encouraging the development of strong and robust wireless communications networks throughout the state is necessary to address public need and policy and is integral to the state’s economic competitiveness.” 

The new state law defines a small wireless facility as “a wireless facility that meets each of the following conditions: (1) The facilities (a) are mounted on structures fifty feet or less in height including the antennas or (b) are mounted on structures no more than ten percent taller than other adjacent structures; (2) each antenna associated with the deployment is no more than three cubic feet in volume; (3) all other equipment associated with the structure, whether ground-mounted or pole-mounted, is no more than twenty-eight cubic feet in volume; (4) the facilities do not require antenna structure registration under 47 C.F.R. part 17, as such regulation existed on January 1, 2019; (5) the facilities are not located on tribal lands, as defined in 36 C.F.R. 800.16(x), as such regulation existed on January 1, 2019; and (6) the facilities do not result in human exposure to radio frequency radiation in excess of the applicable safety standards specified in 47 C.F.R. 1.1307(b), as such regulation existed on January 1, 2019.”

Key provisions of the Nebraska law are:

• One-time and recurring charges to wireless service providers must be non-discriminatory compared to charges to any other users of the ROW.
• A wireless provider has the right as a permitted use not subject to zoning review or approval to collocate small wireless facilities and install, maintain, modify, operate, and replace utility poles along, across, upon, and under the ROW as long as such facilities or poles do not obstruct or hinder the usual travel or public safety on such ROW or obstruct the legal use by utilities or the safe operation of their systems or provision of service.
• A new small wireless facility (including antennas) or a new or modified utility pole installed in the ROW is limited to the greater of five feet above the tallest existing utility pole in place located within 500 feet of the new pole in the same ROW or 50 feet above ground level. Local authorities have discretion to permit taller heights.
• Except for facilities excluded from evaluation for effects on historic properties under 47 C.F.R. 1.1307(a)(4), as such regulation existed on January 1, 2019, an authority shall have the right to require design or concealment measures in a historic district established prior to January 1, 2019. Such design or concealment measures shall be objective and directed to avoid or remedy the intangible public harm of unsightly or out-of-character wireless facilities deployed at the proposed location within the authority’s jurisdiction. Any such design or concealment measures shall be reasonable, nondiscriminatory, and published in advance, and shall not be considered a part of the small wireless facility for purposes of the size restrictions of a small wireless facility.
• An authority may require a wireless provider to repair all damage to a ROW directly caused by the activities of the wireless provider in the ROW and return the ROW to equal or better condition to that before the damage occurred pursuant to the competitively neutral and reasonable requirements and specifications of the authority. If the applicant fails to make the repairs that are reasonably required by the authority within fourteen days after written notice, the authority may undertake such repairs and charge the wireless provider the reasonable, documented cost of such repairs.
• An authority may require an applicant to apply for and obtain one or more permits to collocate a small wireless facility or install a new, modified, or replacement utility pole associated with a small wireless facility. Such permits shall be of general applicability and not apply exclusively to wireless facilities.
• An authority shall be allowed to reserve space on local authority poles and the applicant shall cooperate with the authority in any such reservation, except that the authority shall first notify the applicant in writing that it is interested in reserving such pole space or sharing the trenches or bores in the area where the collocation is to occur. The applicant shall allow the authority to place its infrastructure in the applicant’s trenches or bores or on the utility pole as requested by the authority, except that the authority shall incur the incremental costs of placing the conduit or infrastructure as requested. The authority shall be responsible for maintaining its facilities in the trenches and bores and on the authority pole.
• An authority may require an applicant to include an attestation that the small wireless facilities will be operational for use by a wireless services provider within nine months after the later of the completion of all make-ready work or the permit issuance date unless a delay is caused by lack of commercial power or communications transport facilities to the site. In such case the applicant shall have an extension not to exceed nine months. The authority and applicant may mutually agree to an additional extension.

In addition, the law spells out specific reasons for which an application can be denied and maximum processing times for an application. It also provides “deemed granted” relief if a complete application is not granted or denied within the required timeline.

Wisconsin. The Wisconsin legislation 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 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 provides:

• 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 application. 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 UPDS [“utility pole for designated services”] 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 the requirement may not exceed the height of the proposed structure.
• 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 law for such a pole or facility. 

Maine. The brief new law provides that with regard to small wireless facilities:

• Notwithstanding any zoning or land use ordinance to the contrary, a small wireless facility must be a permitted use within the public right-of-way, subject to permitting requirements and duly adopted, nondiscriminatory conditions otherwise applicable to permitted uses within the municipality and consistent with state and federal law, including, without limitation, any permitting requirements in Title 35-A, chapter 25.
• The rights and responsibilities of a cable television company under the franchise agreement executed pursuant to section 3008, subsection 5 are not affected or altered.

Connecticut. The new law establishes a Council on 5G Technology and tasks it with:

• Reviewing wireless carriers’ requests to place personal wireless service facilities and small wireless facilities, as defined in federal law, on state-owned real property.
• Determining which state-owned properties may be made available to the wireless carriers for these facilities.

The law requires the Council to:

• Adopt guidelines for safely placing personal wireless service facilities and protecting open space land.
• Perform due diligence and review comments from any entities that own property within a 500-foot radius of any state-owned real property under the council’s review.

 The law requires the state Office of Policy and Management to:

• Jointly develop, with certain other state agencies, licensing agreements, forms, and fee structures for placing the wireless facilities on state owned property, noting that the law not supersede existing rules and requirements regarding the review and approval of permits for proposed personal wireless service facilities under the Public Utilities Regulatory Authority’s (PURA) and the Connecticut Siting Council’s jurisdiction. 
• In consultation with PURA and the Siting Council, to work with municipalities to establish a process for siting small wireless facilities on municipal property and, when using utility or light poles is insufficient, private property with the property owner’s permission.  

Many of the state laws that have been enacted have provisions that are similar to, draw upon, 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 impact.

For more information about any of these state laws, please contact Michael Fitch (fitch@khlaw.com; 202-434-4264)

By Michael Fitch, Senior Counsel at Keller and Heckman LLP

August 14, 2019