SB239: Bill Text

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.

SB239,15,18 (b) Zoning. Notwithstanding an ordinance enacted under s. 59.69, 60.61, 60.62, or 62.23, and except as provided in par. (c) 4. and 5., 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. For purposes of this paragraph and notwithstanding sub. (1) (u) 3., the volume of a small wireless facility does not include preexisting associated wireless equipment on a structure outside the right-of-way.

SB239,15,24 (c) Permits. 1. Subject to subd. 4. and 5., 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, provided such permit is of general applicability and does not apply exclusively to small wireless facilities. All of the following apply to such permit applications filed by an applicant:

SB239,16,2 a. Neither the state nor a political subdivision may require an applicant to perform services unrelated to the approval sought.

SB239,16,8 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. The state or a political subdivision may require the types of information specified in subd. 2. in an application.

SB239,16,15 c. The state or a political subdivision shall notify an applicant in writing, within 10 days of receiving an application, whether it is complete. If an application is incomplete, the state or political subdivision shall specify why the application is incomplete. The processing deadlines under subd. 1. d., e., and f. restart at zero on the date that the applicant submits to the state or a political subdivision an application that includes information identified by the state or political subdivision to render the application complete.

SB239,16,19 d. Except as provided in subd. 1. g., if a permit application involves a new or replacement utility pole, 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.

SB239,16,24 e. Except as provided in subd. 1. g., if a permit application proposes to collocate small wireless facilities on an existing 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.

SB239,17,5 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.

SB239,17,8 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.

SB239,17,18 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, sub. (2) (e) 1., or the standards of an ordinance enacted pursuant to sub. (2) (e) 1. If the permit application is denied for any of these reasons, 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.

SB239,17,22 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.

SB239,18,5 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 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.

SB239,18,11 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.

SB239,18,13 2. The state or a political subdivision may require any of the following types of information in an application for a permit specified in subd. 1. (intro.):

SB239,18,15 a. The applicant's name, address, telephone number, e-mail address, and emergency contact information.

SB239,18,18 b. The names, addresses, telephone numbers, and e-mail addresses of all duly authorized representatives and consultants, if any, acting on behalf of the applicant with respect to the filing of the application.

SB239,18,23 c. A general description of the proposed small wireless facility and associated utility pole, if applicable. The scope and detail of such description shall be appropriate to the nature and character of the work to be performed, with special emphasis on those matters likely to be affected or impacted by the physical work proposed.

SB239,18,25 d. Site plans and detailed construction drawings to scale that identify the proposed small wireless facility and the proposed use of the right-of-way.

SB239,19,6 e. To the extent the proposed facility involves collocation on a new utility pole, existing utility pole, or existing wireless support structure, a structural report performed by a duly licensed engineer evidencing that the utility pole or wireless support structure will structurally support the collocation, or that the utility pole or wireless support structure may and will be modified to meet structural requirements, in accordance with applicable codes.

SB239,19,10 f. If the small wireless facility will be collocated on a utility pole or wireless support structure owned by a 3rd party, other than a governmental pole or a utility pole for designated services, a certification that the wireless provider has permission from the owner to collocate on the utility pole or wireless support structure.

SB239,19,17 g. Certification by the wireless provider that the small wireless facility will comply with relevant federal communications commission regulations concerning 1) radio frequency emissions from radio transmitters and 2) unacceptable interference with public safety spectrum, including compliance with the abatement and resolution procedures for interference with public safety spectrum established by the federal communications commission set forth in 47 CFR 22.970 to 22.973 and 47 CFR 90.672 to 90.675.

SB239,19,22 h. Certification by the wireless provider that the small wireless facility will not materially interfere with any of the following: 1) the safe operation of traffic control equipment; 2) sight lines or clear zones for transportation or pedestrians; and 3) the federal Americans with Disabilities Act or similar federal or state standards regarding pedestrian access or movement.

SB239,19,24 i. A statement that the small wireless facility shall comply with all applicable codes.

SB239,20,2 3. Neither the state nor a political subdivision may institute an express or de facto moratorium on any of the following:

SB239,20,3 a. The filing, receiving, or processing of applications.

SB239,20,6 b. The issuance of permits or other approvals, if any, for the collocation of small wireless facilities or the installation, modification, or replacement of utility poles to support small wireless facilities.

SB239,20,9 4. A political subdivision may adopt aesthetics requirements governing the deployment of small wireless facilities and associated antenna equipment and utility poles in the right-of-way, subject to the following conditions:

SB239,20,13 a. The aesthetics requirements must be 1) reasonable in that they are technically feasible and reasonably directed to avoiding or remedying unsightly or out-of-character deployments; 2) no more burdensome than those applied to other types of infrastructure deployments; and 3) objective and published in advance.

SB239,20,16 b. Any design or concealment measures are not considered a part of the small wireless facility for purpose of the size parameters in the definition of a small wireless facility under sub. (1) (u).

SB239,20,19 c. A political subdivision may deny an application for not complying with aesthetic requirements only if the denial does not prohibit or have the effect of prohibiting the provision of wireless service.

SB239,21,16 5. 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 all pipes, pipelines, ducts, wires, lines, conduits, or other equipment, which are used for the transmission, distribution, or delivery of electrical power, heat, water, gas, sewer, or telecommunications equipment, are located underground. A political subdivision may require any collocation on or replacement of an existing structure to reasonably conform to the design aesthetics of the original structure in a historic or underground district. Any design or concealment measures are not considered a part of the small wireless facility for purposes of the size restrictions in the definition of “small wireless facility” under sub. (1) (u). The requirements of an ordinance enacted under this subdivision must be objective, technically feasible, no more burdensome than requirements applied to other types of infrastructure deployment, and reasonably directed at avoiding or remedying the intangible public harm of unsightly or out-of-character deployments. A political subdivision may not apply any requirements under an ordinance enacted under this subdivision in a manner that results in an effective prohibition of wireless service.

SB239,21,21 (d) Application fees. 1. Except as provided in subd. 2., the state or a political subdivision may only charge an application fee that is reasonable, nondiscriminatory, and recovers no more than a governmental unit's direct cost for processing an application, except that no application fee may exceed any of the following:

SB239,21,22 a. For an application that includes 5 or fewer small wireless facilities, $500.

SB239,21,24 b. For an application that includes more than 5 small wireless facilities, $500 plus $100 for each small wireless facility in excess of 5.

SB239,22,2 c. One thousand dollars for the installation or replacement of a utility pole together with the collocation of an associated small wireless facility.

SB239,22,6 2. Beginning on the effective date of this subdivision .... [LRB inserts date], the state or a political subdivision may adjust a fee allowed under subd. 1. by 10 percent every 5 years, rounded to the nearest multiple of $5. During each 5-year period, the adjustment may be applied incrementally or as a single adjustment.

SB239,22,10 3. If the federal communications commission adjusts its levels for fees that are presumptively lawful under 47 USC 253 or 332 (c) (7), the state or a political subdivision may adjust any impacted fee under subd. 1. on a pro rata basis, consistent with the federal communications commission's action.

SB239,22,12 (e) Approvals not required. Neither the state nor a political subdivision may require applications, permits, fees, or any other approval for any of the following:

SB239,22,13 1. Routine maintenance.

SB239,22,19 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. For purposes of this subdivision, a small wireless facility does not include the structure on which it is collocated.

SB239,22,22 3. The installation, placement, maintenance, operation, or replacement of micro wireless facilities that are strung on cables between existing utility poles in compliance with the National Electrical Safety Code.

SB239,23,3 (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, provided that such permits are issued to any applicant on a nondiscriminatory basis upon terms and conditions that apply to the activities of any other person performing work in the right-of-way that requires excavation or the closing of sidewalks or traffic lanes.

SB239,23,7 (4) Collocation of small wireless facilities on governmental poles and utility poles for designated services. (a) 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.

SB239,23,9 (b) The fees or rates charged by the owner of a pole described under par. (a), and the terms and conditions for such attachment or use, may not be discriminatory.

SB239,23,15 (c) The rate a political subdivision may charge a wireless provider to collocate a small wireless facility on a utility pole for designated services 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.

SB239,23,25 (d) 1. 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 subject to subd. 2., 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 $250 per year per small wireless facility. 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 rate is reasonably related to the actual, direct, and reasonable costs incurred by the governmental unit.

SB239,24,5 2. Beginning on the effective date of this subdivision .... [LRB inserts date], the owner of a governmental pole other than a utility pole for designated services may adjust a rate allowed under subd. 1. by 10 percent every 5 years, rounded to the nearest multiple of $5. During each 5-year period, the adjustment may be applied incrementally or as a single adjustment.