PRINTER'S NO. 3863
THE GENERAL ASSEMBLY OF PENNSYLVANIA
HOUSE BILL
No.
2564
Session of
2018
INTRODUCED BY FARRY, SCHWEYER, KAMPF, WATSON, MACKENZIE,
DAVIDSON, DeLUCA, WHEELAND, QUIGLEY, COX, CHARLTON, MILNE,
TOEPEL, READSHAW, PHILLIPS-HILL, TAYLOR, RAVENSTAHL, DIAMOND,
A. HARRIS, ENGLISH, CRUZ, SIMMONS, EMRICK, GILLESPIE, DAY,
DEASY, MARSICO, GREINER, KEEFER, DALEY, BARRAR, DERMODY,
SCHLEGEL CULVER, LONGIETTI AND METCALFE, JULY 13, 2018
REFERRED TO COMMITTEE ON CONSUMER AFFAIRS, JULY 13, 2018
AN ACT
Providing for small wireless facilities deployment.
The General Assembly of the Commonwealth of Pennsylvania
hereby enacts as follows:
Section 1. Short title.
This act shall be known and may be cited as the Small
Wireless Facilities Deployment Act.
Section 2. Definitions.
The following words and phrases when used in this act shall
have the meanings given to them in this section unless the
context clearly indicates otherwise:
"Accessory equipment." Equipment serving or being used in
conjunction with a small wireless facility.
"Antenna." Telecommunications equipment that transmits and
receives electromagnetic radio signals used in the provision of
all types of wireless telecommunications services.
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"Applicable codes." Uniform building, fire, electrical,
plumbing or mechanical codes adopted by a recognized national
code organization or local amendments to those codes enacted
solely to address imminent threats of destruction of property or
injury to persons.
"Applicant." A wireless provider that submits an
application.
"Application." A request submitted by an applicant to a
municipality:
(1) for a permit to collocate small wireless facilities;
or
(2) to approve the installation, modification or
replacement of a utility pole.
"Cable facility." Buildings, other structures and equipment
used by the owner or operator of a cable television system to
provide service. As used in this definition, the term "cable
television system" shall have the meaning given to it in section
501-B(1) of the act of April 6, 1951 (P.L.69, No.20), known as
The Landlord and Tenant Act of 1951.
"Collocation" or "collocate." The placement or installation
of small wireless facilities on an existing utility pole or
other structure.
"Communications service provider." The following:
(1) a cable operator, as defined in 47 U.S.C. § 522(5)
(relating to definitions);
(2) a provider of information service, as defined in 47
U.S.C. § 153(24) (relating to definitions);
(3) a telecommunications carrier, as defined in 47
U.S.C. § 153(51); or
(4) a wireless provider.
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"Decorative pole." A municipal pole that is specially
designed and placed for aesthetic purposes.
"Electrical transmission tower." An electrical transmission
structure used to support overhead power lines consisting of 69
kilovolt or greater conducting lines, generally of steel
construction and having a height of at least 75 feet. The term
shall not include any utility pole having a height of less than
75 feet.
"Historic district." A group of buildings, properties or
sites that are:
(1) Listed in the National Register of Historic Places
or formally determined eligible for listing by the Keeper of
the National Register.
(2) Determined to be eligible for listing by the keeper
of the National Register of Historic Places who has been
delegated the authority by a Federal agency to list
properties and determine their eligibility for the National
Register in accordance with section VI.D.1.a.i-v of the
Nationwide Programmatic Agreement for Review Regarding the
Section 106 National Historic Preservation Act Review Process
(47 CFR Pt. 1, App. C).
(3) Marked as a historical site by the Pennsylvania
Historical and Museum Commission pursuant to 37 Pa.C.S.
(relating to historical and museums).
(4) Within a historic district created pursuant to the
act of June 13, 1961 (P.L.282, No.167), entitled "An act
authorizing counties, cities, boroughs, incorporated towns
and townships to create historic districts within their
geographic boundaries; providing for the appointment of
Boards of Historical Architectural Review; empowering
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governing bodies of political subdivisions to protect the
distinctive historical character of these districts and to
regulate the erection, reconstruction, alteration,
restoration, demolition or razing of buildings within the
historic districts."
"Micro wireless facility." A small wireless facility that:
(1) is not larger in dimension than 24 inches in length,
15 inches in width and 12 inches in height; and
(2) has an exterior antenna no longer than 11 inches.
"Modification" or "modify." The improvement, upgrade or
replacement of a small wireless facility or an existing utility
pole that does not substantially change the physical dimension
of the small wireless facility or utility pole.
"Municipality." Any of the following:
(1) A city of the first, second, second class A or third
class.
(2) A borough.
(3) An incorporated town.
(4) A township of the first or second class.
(5) A county.
(6) A home rule municipality.
(7) A similar general purpose unit of government
established by the General Assembly.
"Municipal pole." A utility pole owned, managed or operated
by or on behalf of a municipality.
"Right-of-way." The area on, below or above a public
roadway, highway, street, sidewalk, alley, utility easement or
similar property. The term does not include a Federal interstate
highway.
"Small wireless facility." The equipment and network
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components, including antennas, transmitters and receivers, used
by a wireless provider that meet the following qualifications:
(1) Has an antenna that could fit within an enclosure of
no more than six cubic feet in volume.
(2) The volume of all other equipment associated with
the wireless facility, whether ground-mounted or pole-
mounted, is cumulatively no more than 28 cubic feet. As used
in this paragraph, the following associated ancillary
equipment are not included in the calculation of equipment
volume:
(i) Electric meter.
(ii) Concealment elements.
(iii) Telecommunications demarcation box.
(iv) Grounding equipment.
(v) Power transfer switch.
(vi) Cut-off switch.
(vii) Vertical cable runs for the connection of power
and other services.
"Technically feasible." By virtue of engineering or spectrum
usage, the proposed placement for a small wireless facility or
its design or site location can be implemented without a
reduction in the functionality of the small wireless facility.
"Utility facility." Buildings, other structures and
equipment owned or operated by a public utility, as defined in
66 Pa.C.S. § 102 (relating to definitions), to provide service.
"Utility pole." A pole or similar structure that is or may
be used, in whole or in part, by or for telecommunications,
electric distribution, lighting, traffic control, signage or a
similar function or for collocation. The term includes the
vertical support structure for traffic lights but does not
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include wireless support structures or horizontal structures to
which signal lights or other traffic control devices are
attached.
"Wireless infrastructure provider." A person authorized to
provide telecommunications service in this Commonwealth that
builds or installs wireless communication transmission
equipment, wireless facilities or wireless support structures
but is not a wireless services provider.
"Wireless provider." A wireless infrastructure provider or a
wireless services provider.
"Wireless services." Services, whether at a fixed location
or mobile, provided to the public using wireless facilities.
"Wireless services provider." A person who provides wireless
services.
"Wireless support structure." The term shall have the same
meaning given to it in the act of October 24, 2012 (P.L.1501,
No.191), known as the Wireless Broadband Collocation Act.
Section 3. Use of right-of-way for small wireless facilities
and utility poles.
(a) Applicability.--The provisions of this section shall
only apply to activities of a wireless provider within the
right-of-way to deploy small wireless facilities and associated
new utility poles with small wireless facilities attached.
(b) Exclusive use prohibited.--A municipality shall not
enter into an exclusive arrangement with any person for use of
the right-of-way for:
(1) collocation; or
(2) the installation, operation, modification or
replacement of utility poles.
(c) Right-of-way rates and fees.--A municipality shall have
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the right to charge an annual fee for the use of the right-of-
way not to exceed $25 per small wireless facility or $25 per new
utility pole with a small wireless facility.
(d) Right of access.--
(1) Under the provisions of this act, including those
governing municipal approvals, and with the permission of the
owner of the structure, a wireless provider shall have the
right to perform the following within the right-of-way:
(i) Collocate, maintain and modify small wireless
facilities on existing utility poles.
(ii) Install new utility poles with attached small
wireless facilities.
(iii) Replace existing utility poles.
(iv) Collocate on other structures within the right-
of-way.
(2) All structures and facilities shall be installed and
maintained so as not to obstruct nor hinder travel or public
safety within the right-of-way or obstruct the legal use of
the right-of-way by the municipality and utilities.
(e) Size limits.--
(1) Each new or modified small wireless facility
installed in the right-of-way shall be installed on an
existing utility pole or a new utility pole subject to the
following:
(i) The installation of a small wireless facility on
an existing utility pole shall not extend more than five
feet above the existing utility pole in the same
municipality that is in place as of the effective date of
this act.
(ii) If collocation cannot be achieved under section
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4(i), a small wireless facility may be installed on a new
utility pole. The maximum permitted height of the
facility, which shall include the utility pole and small
wireless facility, shall not be taller than:
(A) the greater of five feet in height above the
tallest existing utility pole that is within 500 feet
of the new pole in the same right-of-way and in the
same municipality; or
(B) fifty feet above ground level.
(2) Subject to the provisions of this act, a wireless
provider shall have the right to collocate and install,
modify or replace a utility pole that exceeds these height
limits along, across and under the right-of-way by including
a height limit waiver request in the application. Height
limit waivers shall be processed under section 4 and on a
nondiscriminatory basis.
(f) Underground district.--A wireless provider shall comply
with reasonable and nondiscriminatory requirements that prohibit
communications service providers from placing or installing
structures in the right-of-way in an area designated solely for
underground or buried cable facilities and utility facilities if
the municipality:
(1) Requires all cable facilities and utility
facilities, other than municipal poles and attachments, to be
placed underground by a date certain that is three months
prior to the submission of the application.
(2) Does not prohibit the replacement of municipal poles
in the designated area.
(3) Permits wireless providers to seek a waiver of the
underground requirements for the installation of a new
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utility pole to support small wireless facilities. Upon the
submission of a request for a waiver by a wireless provider,
the municipality may require a public hearing and, with the
approval of the property owner, permit a waiver request.
Waivers shall be addressed in a nondiscriminatory manner.
(g) Historic district.--Except for facilities excluded from
evaluation for effects on historic properties under 47 CFR
1.1307(a)(4) (relating to actions that may have a significant
environmental effect, for which Environmental Assessments (EAs)
must be prepared), a municipality may require reasonable,
technically feasible, nondiscriminatory and technologically
neutral design or concealment measures in a historic district.
Any design or concealment measures may not have the effect of
prohibiting any provider's technology or be considered a part of
the small wireless facility for purposes of the size
restrictions of small wireless facilities.
(h) Discrimination prohibited.--The municipality, in the
exercise of its administration and regulation related to the
management of the right-of-way, must be competitively neutral
with regard to other users of the right-of-way. Terms may not be
unreasonable or discriminatory and may not violate any
applicable law.
(i) Damage and repair.--A wireless provider shall repair all
damage to the right-of-way directly caused by the activities of
the wireless provider and return the right-of-way to its
functional equivalence as it existed prior to any work being
done in the right-of-way by the wireless provider. If the
wireless provider fails to make the repairs required by the
municipality within 30 days after written notice, the
municipality may effect those repairs and charge the wireless
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provider the reasonable, documented cost of the repairs.
(j) Permitted use.--Subject to the provisions of this act or
a municipal ordinance consistent with this act, a wireless
provider shall have the right as a permitted use subject to a
permitted use process and not subject to zoning review or
approval to:
(1) Collocate and modify or replace existing utility
poles associated with a small wireless facility if the
utility poles are installed in the right-of-way.
(2) Install a new utility pole within the right-of-way
that includes small wireless facilities.
Section 4. Permitting process for small wireless facilities and
utility poles within right-of-way.
(a) Applicability.--The provisions of this section shall
apply to a municipality's permitting of small wireless
facilities by a wireless provider or the installation,
modification and replacement of utility poles by a wireless
provider within the right-of-way.
(b) Review.--An application for the installation,
collocation, modification or replacement of a small wireless
facility under this section shall be reviewed for conformance
with the municipality's applicable codes, including requirements
applicable to the added structural loading of the proposed small
wireless facility.
(c) Permits.--
(1) A municipality may require an applicant to obtain
one or more permits of general applicability to perform the
following within the right-of-way:
(i) Collocate, maintain and modify small wireless
facilities.
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(ii) Replace existing utility poles for collocation.
(iii) Install new utility poles with attached small
wireless facilities.
(2) Permits of general applicability shall not apply
exclusively to small wireless facilities. A municipality
shall receive applications for collocation or for
installation, modification or replacement of utility poles
and process and issue permits, subject to the following
requirements:
(i) A municipality may not directly or indirectly
require an applicant to perform services or provide goods
unrelated to the permit, such as in-kind contributions to
the municipality, including reserving fiber, conduit or
pole space for the municipality.
(ii) An applicant shall not be required to provide
more information to obtain a permit than other
communications service providers or to provide
justification for capacity or radio frequency. An
applicant may be required to:
(A) Include documentation with an application
that includes construction and engineering drawings.
(B) Self-certify that the filing and approval of
the application is required by the wireless provider
to provide additional capacity or coverage for
wireless services. Nothing in this subsection shall
be construed to permit a municipality to require an
applicant to submit information about an applicant's
business decisions with respect to its service,
customer demand for service or quality of service.
(iii) A municipality may not require the placement
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of small wireless facilities on any specific utility pole
or category of poles or require multiple antenna systems
on a single utility pole.
(iv) A municipality may not limit the placement of
small wireless facilities by minimum separation
distances.
(v) A municipality shall have the authority to
prohibit collocation on a decorative pole. The
municipality and wireless provider shall work
cooperatively to determine whether the collocation can
occur if the wireless provider replaces the decorative
pole in a manner that shall conform to the design
aesthetics of the decorative pole being replaced.
(d) Completed application.--Within 15 business days of
receiving an application, a municipality must determine and
notify the applicant in writing whether the application is
complete. If an application is incomplete, the notice must
specifically identify the missing information. The municipality
shall have the remaining time of the original 15 business days
or five additional business days, whichever is greater, to
determine whether the applicant has corrected the stated
deficiencies. The processing deadline shall be tolled from the
time the municipality sends the notice of incompleteness to the
time the applicant provides the missing information. The
processing deadline also may be tolled by agreement of the
applicant and the municipality.
(e) Processing deadline.--An application shall be processed
on a nondiscriminatory basis and deemed approved if the
municipality fails to approve or deny the application within 60
days of receipt of a complete application.
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(f) Denial.--
(1) A municipality may only deny an application under
this section that does not meet the requirements of this act
or a municipal ordinance consistent with this act if the
granting of a permit:
(i) Would materially interfere with the safe
operation of traffic control equipment, sight lines or
clear zones for transportation or pedestrians or
compliance with the Americans with Disabilities Act of
1990 (Public Law 101-336, 104 Stat. 327) or similar
Federal or State standards regarding pedestrian access or
movement.
(ii) Fails to comply with reasonable and
nondiscriminatory spacing requirements of general
application adopted by ordinance that concern the
location of ground-mounted equipment and new utility
poles. The spacing requirements shall not prevent or have
the effect of preventing a wireless provider from serving
any location.
(iii) Fails to comply with applicable codes.
(2) Within 60 days of receiving a complete application,
the municipality shall document the basis for a denial,
including the specific code provisions on which the denial
was based, and send the documentation to the applicant within
five business days of the denial.
(3) The applicant may cure the deficiencies identified
by the municipality and resubmit the application within 30
days of the denial. The applicant shall not be required to
pay an additional application fee if the applicant's revised
application addresses all deficiencies listed in the denial.
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The municipality shall approve or deny the revised
application within 30 days of the application being
resubmitted for review. Any subsequent review shall be
limited to the deficiencies cited in the denial. If the
resubmitted application addresses or changes other sections
of the application that were not previously denied, the
municipality shall be given an additional 15 days to review
the resubmitted application and may charge an additional fee
for the review.
(g) Consolidated application.--An applicant seeking to
collocate within the jurisdiction of a single municipality shall
be allowed at the applicant's discretion to file a consolidated
application for collocation of multiple small wireless
facilities as follows:
(1) The consolidated application does not exceed 20
small wireless facilities.
(2) The denial of one or more small wireless facilities
in a consolidated application shall not delay processing of
any other small wireless facilities in the same consolidated
application.
(3) A single applicant may not submit more than one
consolidated or 20 single applications in a 30-day period in
a municipality with a population of less than 50,000.
(h) Time limit for work.--The proposed collocation, the
modification or replacement of a utility pole or the
installation of a new utility pole for which a permit is granted
under this section shall be completed within one year of the
permit issuance date unless the municipality and the applicant
agree to extend the period.
(i) Utility poles.--When applying to install a new utility
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pole under this act, the municipality may require the wireless
provider to demonstrate that it cannot meet the service
reliability and functional objectives of the application by
collocating on an existing utility pole or municipal pole
instead of installing a new utility pole. The municipality may
require the wireless provider to self-certify that the wireless
provider has made this determination in good faith and to
provide a documented summary of the basis for the determination.
The wireless provider's determination shall be based on whether
the wireless provider can meet the service objectives of the
application by collocating on an existing utility pole or
municipal pole on which:
(1) The wireless provider has the right to collocation.
(2) The collocation would not impose technical
limitations or additional costs.
(3) The collocation would not obstruct or hinder travel
or public safety.
(j) Approval.--Approval of an application authorizes the
applicant to:
(1) Collocate on an existing utility pole, modify or
replace a utility pole or install a new utility pole.
(2) Subject to the permit requirements and the
applicant's right to terminate at any time, operate and
maintain small wireless facilities and any associated
equipment on a utility pole covered by the permit for a
period of not less than five years, which shall be renewed
for two additional five-year periods if the applicant is in
compliance with the criteria set forth in this act or a
municipal ordinance consistent with this act.
(k) Removal of equipment.--Within 60 days of suspension or
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revocation of a permit due to noncompliance with this act or a
municipal ordinance consistent with this act, the applicant
shall remove the small wireless facility and any associated
equipment after receiving adequate notice and an opportunity to
cure any noncompliance.
(l) Moratorium prohibited.--A municipality may not
institute, either expressly or de facto, a moratorium on:
(1) filing, receiving or processing applications; or
(2) issuing permits for:
(i) collocation;
(ii) modification or replacement of utility poles to
support small wireless facilities; or
(iii) installation of new utility poles to support
small wireless facilities.
(m) When applications not required.--
(1) A municipality shall not require an application for:
(i) Routine maintenance.
(ii) The replacement of small wireless facilities
with small wireless facilities that are similar or the
same size or smaller.
(iii) 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.
(2) A municipality may require a permit to perform work
within the right-of-way for the activities under paragraph
(1), if applicable. Permits shall be subject to the
requirements provided in this act or a municipal ordinance
consistent with this act.
(n) Application fees.--Application fees shall be subject to
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the following requirements:
(1) A municipality shall have the right to charge an
application fee for the review of a permit application and
plans submitted for the work to be done within the right-of-
way. The application fee shall be similar to application fees
charged to other applicants for the right to access the
right-of-way but shall not exceed $100.
(2) An application fee shall not include third-party
rates or fees charged on a contingency basis or a result-
based arrangement.
Section 5. Access to municipal poles within right-of-way.
(a) Applicability.--The provisions of this section shall
apply to activities of the wireless provider within a right-of-
way.
(b) Exclusive use prohibited.--A municipality may not enter
into an exclusive arrangement with any person for the right to
collocate on municipality-owned utility poles.
(c) Collocation.--A municipality shall allow collocation on
municipal poles using the process required under this act or a
municipal ordinance consistent with this act unless the small
wireless facility would cause structural or safety deficiencies
to the municipal pole, in which case the municipality and
applicant shall work together for any make-ready work or
modifications or replacements that are needed to accommodate the
small wireless facility. All structures and facilities shall be
installed and maintained so as not to obstruct nor hinder travel
or public safety within the right-of-way.
(d) Rates.--
(1) The rates to collocate on municipal poles shall be
nondiscriminatory regardless of the services provided by the
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collocating applicant.
(2) The annual rate for collocation to a municipal pole
shall not exceed $50 per attachment to a municipal pole per
year.
(e) Implementation and make-ready work.--
(1) The rates, fees and terms and conditions for the
make-ready work to collocate on a municipal pole must be
nondiscriminatory, competitively neutral and commercially
reasonable and must comply with this act.
(2) The municipality shall provide a good faith estimate
for any make-ready work necessary to enable the municipal
pole to support the requested collocation by a wireless
provider, including utility pole replacement if necessary,
within 60 days after receipt of a complete application. Make-
ready work, including utility pole replacement, shall be
completed within 60 days of written acceptance of the good
faith estimate by the applicant. A municipality may require
replacement of the municipal pole only if the municipality
demonstrates that the collocation would make the municipal
pole structurally unsound.
(3) The municipality shall not require more make-ready
work than required to meet applicable codes or industry
standards. Fees for make-ready work on a nonreplacement
utility pole shall not include costs related to preexisting
or prior damage or noncompliance. Fees for make-ready work,
including replacement, shall not exceed actual costs or the
amount charged to other communications service providers for
similar work and shall not include any consultant fees or
expenses that are charged on a contingency basis.
Section 6. Local authority.
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Subject to the provisions of this act and applicable Federal
and State law, nothing in this act shall be construed to:
(1) Limit or preempt the scope of a municipality's
review of zoning, land use, planning and permitting authority
as it relates to small wireless facilities.
(2) Grant the authority to a municipality to exercise
jurisdiction over the design, engineering, construction,
installation or operation of a small wireless facility
located in an interior structure or on the site of a campus,
stadium or athletic facility not owned or controlled by the
municipality, other than to comply with applicable codes.
Nothing in this act authorizes the Commonwealth or any
municipality to require small wireless facility deployment or
to regulate wireless services.
Section 7. Implementation.
All agreements between municipalities and wireless service
providers that are in effect on the effective date of this act
shall remain in effect, subject to any termination provisions in
the agreements. When an application is submitted after the
effective date of this act, a wireless provider may elect to
have the rates, fees, terms and conditions established under
this act apply to the small wireless facility or utility pole
installed after the effective date of this act.
Section 8. Effective date.
This act shall take effect in 60 days.
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