SB239: Bill Text

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.

SB239,7,19 (n) “Governmental pole” means a utility pole that is owned or operated by the state or by a political subdivision in a right-of-way.

SB239,7,23 (o) “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.

SB239,8,3 (p) “Micro wireless 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.

SB239,8,5 (q) “Permit” means written authorization required by the state or a political subdivision to perform an action, or initiate, continue, or complete a project.

SB239,8,6 (r) “Political subdivision” means any city, village, town, or county.

SB239,8,7 (s) “Rate” means a recurring charge.

SB239,8,13 (t) “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.

SB239,8,15 (u) “Small wireless facility” means a wireless facility to which all of the following apply:

SB239,8,16 1. The wireless facility satisfies any of the following:

SB239,8,18 a. The wireless facility is mounted on a structure 50 feet or less in height including any antenna.

SB239,8,20 b. The wireless facility is mounted on a structure no more than 10 percent taller than any other adjacent structure.

SB239,8,23 c. The wireless facility does not increase the height of an existing structure on which the wireless facility is located to a height of more than 50 feet or by 10 percent, whichever is greater.

SB239,8,25 2. Each antenna associated with the deployment of the wireless facility, excluding associated antenna equipment, is no more than 3 cubic feet in volume.

SB239,9,4 3. All other wireless equipment associated with the wireless facility specified in subd. 1., including the wireless equipment associated with the antenna and any preexisting associated equipment on the structure, is no more than 28 cubic feet in volume.

SB239,9,6 4. The wireless facility does not require registration as an antenna structure under 47 CFR part 17.

SB239,9,8 5. The wireless facility is not located on tribal land, as defined in 36 CFR 800.16 (x).

SB239,9,10 6. The wireless facility does not result in human exposure to radio frequency in excess of the applicable safety standards specified in 47 CFR 1.1307.

SB239,9,12 (v) Except in par. (zp), “structure” means a utility pole or wireless support structure, whether or not it has an existing antenna facility.

SB239,9,16 (w) “Technically feasible” means that by virtue of engineering or spectrum usage the proposed placement for a small wireless facility, or its design, concealment measures, or site location can be implemented without a reduction in the functionality of the small wireless facility.

SB239,9,21 (x) “Utility pole” means a pole that is used in whole or in part by a communications service provider; used for electric distribution, lighting, traffic control, signage, or a similar function; or used for the collocation of small wireless facilities. “Utility pole” does not include a wireless support structure or electric transmission structure.

SB239,9,25 (y) “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.

SB239,10,3 (z) 1. “Wireless facility” means an antenna facility at a fixed location that enables wireless services between user equipment and a communications network, and includes all of the following:

SB239,10,4 a. Equipment associated with wireless services.

SB239,10,7 b. Radio transceivers, antennas, or coaxial, metallic, or fiber-optic cable located on, in, under, or otherwise adjacent to a utility pole or wireless support structure.

SB239,10,8 c. Regular and backup power supplies.

SB239,10,10 d. Equipment that is comparable to equipment specified in this subdivision regardless of technical configuration.

SB239,10,11 2. “Wireless facilities” does not include any of the following:

SB239,10,13 a. The structure or improvements on, under, or within which equipment specified in subd. 1. is collocated.

SB239,10,14 b. Wireline backhaul facilities.

SB239,10,16 c. Coaxial, metallic, or fiber-optic cable that is between utility poles or wireless support structures or that is not adjacent to a particular antenna.

SB239,10,19 (za) “Wireless infrastructure provider” means any person, other than a wireless services provider, that builds or installs wireless communication transmission equipment, antenna equipment, or wireless support structures.

SB239,10,21 (zc) “Wireless provider” means a wireless infrastructure provider or a wireless services provider.

SB239,10,24 (zg) “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.

SB239,11,2 (zL) “Wireless services provider” means any person who provides wireless services.

SB239,11,5 (zp) “Wireless support structure” means an existing freestanding structure that is capable of supporting small wireless facilities, except that “wireless support structure” does not include any of the following:

SB239,11,6 1. A utility pole.

SB239,11,7 2. A structure designed solely for the collocation of small wireless facilities.

SB239,11,9 (zt) “Wireline backhaul facility” means a facility for providing wireline backhaul service.

SB239,11,11 (zx) “Wireline backhaul service” means the transport of communications services by wire from small wireless facilities to a communications network.

SB239,11,13 (2) Rights-of-way. (a) Applicability. This subsection applies only to the activities of a wireless provider within a right-of-way.

SB239,11,17 (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.

SB239,11,24 (c) Rates and fees. Subject to sub. (3) (e) 3., the state or a political subdivision may charge a wireless provider a nondiscriminatory rate or fee for the use of a right-of-way with respect to the collocation of a small wireless facility or the installation, modification, or replacement of a utility pole in the right-of-way only if the state or political subdivision charges other entities 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:

SB239,12,2 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.

SB239,12,4 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.

SB239,12,8 3. The fee or rate may not result in a double recovery by the state or political subdivision if existing fees, rates, or taxes imposed by a political subdivision on the wireless provider already recover the direct and actual cost of managing the right-of-way.

SB239,12,10 4. The fee or rate may not be in the form of a franchise or other fee based on revenue or customer counts.

SB239,12,13 5. The fee or rate may not exceed an annual amount equal to $20 multiplied by the number of small wireless facilities in the right-of-way in the state's or political subdivision's geographic jurisdiction.

SB239,12,17 6. Beginning on the effective date of this subdivision .... [LRB inserts date], the state or a political subdivision may adjust a rate or fee allowed under this paragraph by 10 percent every 5 years, rounded to the nearest dollar. During each 5-year period, the adjustment may be applied incrementally or as a single adjustment.

SB239,12,22 (d) Rate or fee adjustment. 1. Except as provided in subd. 2., by the later of the first day of the 3rd 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 implement rates, fees, and terms for such access that comply with this subsection.

SB239,13,4 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.

SB239,13,19 (e) Right of access. 1. Except as otherwise provided in this subsection and subs. (3) (c) 4. and 5. 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, 60.62, or 62.23, a wireless provider shall have the right to collocate small wireless facilities and construct, modify, maintain, and replace its own utility poles, or, with the permission of the owner, a 3rd party's utility pole, that supports small wireless facilities along, across, upon, and under a right-of-way. Such small wireless facilities and utility poles, and activities related to the installation and maintenance of the small wireless facilities and utility poles, 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. A political subdivision may enact an ordinance consistent with this subdivision.

SB239,13,21 2. Except as provided in subd. 4., the height of a utility pole installed, or modified, in a right-of-way may not exceed the greater of:

SB239,13,24 a. A height that is 10 percent taller than the tallest existing utility pole as of the effective date of this subd. 2. a. .... [LRB inserts date], that is located within 500 feet of the new or modified utility pole in the same right-of-way.

SB239,13,25 b. Fifty feet above ground level.

SB239,14,2 3. The height of a small wireless facility installed, or modified, in a right-of-way may not exceed the greater of:

SB239,14,4 a. A height that is 10 percent taller than the existing utility pole or wireless support structure on which the small wireless facility is located.

SB239,14,5 b. Fifty feet above ground level.

SB239,14,10 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, 60.62, or 62.23.

SB239,14,15 5. With regard to the rights of a wireless provider to construct or modify a utility pole as described in subd. 1., a political subdivision may propose an alternate location for collocation, 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 is technically feasible and does not impose material additional costs.

SB239,14,24 (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 or structures, 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.

SB239,15,3 (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.

SB239,15,10 (3) Permitting process. (a) Applicability. This subsection applies to the permitting for the collocation of small wireless facilities by a wireless provider within and outside a right-of-way and to the permitting for the installation, modification, and replacement of associated utility poles by a wireless provider inside 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.