AM1116 LB389 MAL - 04/21/2017 AM1116 LB389 MAL - 04/21/2017 AMENDMENTS TO LB389 Introduced by Friesen, 34. 1 2 3 4 1. Strike the original sections and insert the following new sections: Section 1. Sections 1 to 22 of this act shall be known and may be cited as the Small Wireless Facilities Act. 5 Sec. 2. 6 (1) There is a need for statewide uniformity in the regulation of 7 8 The Legislature finds and declares that: the deployment of facilities for providing wireless service; (2) Wireless facilities are critical to public safety and to 9 increase access to advanced wireless technology and information services; 10 (3) Wireless facilities are essential to help businesses and schools 11 throughout the state remain competitive in the global economy; and 12 (4) The permitting, 13 installation, replacement, 14 matters of statewide concern and interest. 15 Sec. 3. 16 (1) 17 18 19 20 construction, and modification, operation of wireless maintenance, facilities are The purposes of the Small Wireless Facilities Act are to: Secure public access to advanced wireless technology and information services in an efficient manner; (2) Promote the public benefits from such wireless technology and a reliable process for deployment of small wireless facilities; and (3) Confirm that wireless service providers and communications 21 facility providers have a right to occupy and utilize public rights-of- 22 way as set forth in the act for the efficient conduct of their business. 23 24 25 Sec. 4. For purposes of the Small Wireless Facilities Act, the definitions in sections 5 to 19 of this act apply. Sec. 5. Applicant means a wireless service provider or 26 communications facilities provider that submits an application to an 27 authority for approval of the collocation -1- of one or more wireless AM1116 LB389 MAL - 04/21/2017 AM1116 LB389 MAL - 04/21/2017 1 facilities or placement of a pole for the collocation of small wireless 2 facilities. 3 Sec. 6. Authority means a state agency or a county, city, village, 4 public power district, or other political subdivision within the State of 5 Nebraska. 6 Sec. 7. Authority right-of-way means the area on, below, or above a 7 public highway, street, sidewalk, utility easement, alley, or similar 8 property under the jurisdiction of an authority, but does not include a 9 federal interstate highway. 10 Sec. 8. (1) Collocate or collocation means mounting, installation, 11 maintenance, modification, replacement, or operation of small wireless 12 facilities on or adjacent to a tower, building, pole, or structure for 13 the purpose of transmitting or receiving radio frequency signals for 14 communications purposes. 15 (2) Collocate or collocation does not include (a) routine 16 maintenance, (b) replacement of facilities that are substantially similar 17 or smaller in size, weight, height, and structural loading, or (c) the 18 installation, 19 wireless facilities that (i) are suspended on cables that are strung 20 between existing poles in compliance with national safety codes and (ii) 21 are no larger in dimension than twenty-four inches long, fifteen inches 22 wide, and twelve inches high, and that have an exterior antenna, if any, 23 no longer than eleven inches. placement, maintenance, operation, or replacement of 24 (3) The activities described in subsection (2) of this section do 25 not require applications or permits under subsection (2) of section 20 of 26 this act or the payment of any fees. 27 Sec. 9. Communications facility means any facility used to provide 28 wireless service, unlicensed wireless service, or fixed wireless service, 29 including microwave backhaul, and includes an antenna, vertical cable 30 runs and related conduit on a pole for the connection of power and other 31 services, pipes, radio transceivers, microwave devices, power supplies, -2- AM1116 LB389 MAL - 04/21/2017 1 and 2 Communications facility also includes wireless facilities. 3 all AM1116 LB389 MAL - 04/21/2017 other Sec. 10. equipment used to provide communications service. Communications facility provider means a person or entity 4 that installs or constructs facilities or structures used to provide 5 communications services. 6 Sec. 11. Communications service means service provided over a 7 communications facility, including cable service as defined in 47 U.S.C. 8 522(6), 9 telecommunications information service service as as defined defined in in 47 U.S.C. 47 U.S.C. 153(24), 153(53), and as such 10 sections existed on January 1, 2017, including, but not limited to, 11 wireline backhaul service. Communications service also includes wireless 12 service as defined in section 16 of this act. 13 14 Sec. 12. Communications service provider means any entity that provides communications service. 15 Sec. 13. 16 standard, or 17 communications service, lighting, traffic control, signage, or a similar 18 function, 19 communications 20 electricity 21 irrigation 22 municipalities, 23 serving customers at retail. 24 25 Pole means structure but does not a that includes districts, Sec. 14. is include infrastructure which utility owned individual electric used any public pole, in pole, whole or distribution, or power operated pole, in a part supplier public registered cooperatives, light transmission, by districts, municipalities, membership light and power groups for or of and of cooperatives Small wireless facility means a wireless facility that meets the following qualifications: 26 (1) Each antenna is located inside an enclosure of no more than six 27 cubic feet in volume, or in the case of an antenna that has exposed 28 elements, the antenna and all its exposed elements could fit within an 29 enclosure of no more than six cubic feet; and 30 31 (2) All other wireless equipment associated with the structure is cumulatively no more than twenty-eight -3- cubic feet in volume. The AM1116 LB389 MAL - 04/21/2017 AM1116 LB389 MAL - 04/21/2017 1 following types of associated ancillary equipment are not included in the 2 calculation of equipment volume: Electric meters, concealment material, 3 telecommunications 4 power 5 switches, and vertical cable runs and related conduit on a pole for 6 connection of power and other services. 7 systems, Sec. 15. demarcation grounding boxes, equipment, ground-based power enclosures, transfer switches, backup cutoff Wireless facility means equipment at a fixed location that 8 enables the provision of wireless services between user equipment and a 9 communications network, including radio transceivers, antennas, regular 10 and 11 technological configuration. Wireless facility includes small wireless 12 facilities but does not include wireline backhaul service facilities or 13 coaxial or fiber-optic cable that is between poles or wireless support 14 structures or that is otherwise not immediately adjacent to or directly 15 associated with a particular collocation. 16 backup power Sec. 16. supplies, and comparable equipment regardless of Wireless service means any service using licensed or 17 unlicensed wireless spectrum, including the use of Wi-Fi, whether fixed 18 or mobile and provided using wireless facilities and includes personal 19 wireless service as defined in 47 U.S.C. 332 and mobile service as 20 defined in 47 U.S.C. 153(33), as such sections existed on January 1, 21 2017. 22 Sec. 17. 23 wireless services. 24 Sec. 18. Wireless service provider means a person who provides Wireless or other 27 codes, including, but not limited to, water towers, buildings, and other 28 structures whether within or outside the authority right-of-way. 30 31 backhaul service means the pole installation of small wireless facilities in compliance with applicable Wireline supporting a 26 19. of means freestanding Sec. capable structure 25 29 structure support the attachment transport or of communications service by wire from wireless facilities to a network. Sec. 20. (1) Wireless service providers and communications facility -4- AM1116 LB389 MAL - 04/21/2017 AM1116 LB389 MAL - 04/21/2017 1 providers may place small wireless facilities and poles for collocation 2 of 3 structures and facilities shall not obstruct or hinder the usual travel 4 or public safety on such authority right-of-way or obstruct the legal use 5 of 6 replacement, or new pole or wireless support structure in the right-of- 7 way for the collocation of small wireless facilities shall not exceed the 8 greater of (a) ten feet in height above the tallest existing pole in 9 place as of the effective date of this act located within five hundred 10 feet of the new pole in the same right-of-way or (b) fifty feet above 11 ground level, except that a wireless service provider shall have the 12 right 13 structure, or wireless facility that exceeds such size limits along, 14 across, upon, and under the right-of-way, subject to applicable zoning 15 and other regulations. small such to wireless facilities authority in right-of-way construct, modify, an by and authority other maintain right-of-way. utilities. a pole, Any Such modified, wireless support 16 (2)(a) Except as otherwise provided in this section, an authority 17 may require an application for a permit to collocate small wireless 18 facilities on wireless support structures and poles, including authority 19 poles. 20 (b) An application for the collocation of small wireless facilities 21 shall be processed on a nondiscriminatory basis and deemed approved if 22 the authority fails to approve or deny the application within ninety days 23 after submission of a complete application. Upon mutual agreement between 24 the applicant and the authority, an authority may extend the period of 25 consideration of an application for thirty days. 26 (c) Consolidated applications may be made for projects involving 27 multiple individual small wireless facilities within the jurisdiction of 28 a single authority. The authority shall allow the applicant, at the 29 applicant's discretion, to file a consolidated application for multiple 30 individual 31 applications for each individual small wireless facility. Each small small wireless facilities -5- instead of filing separate AM1116 LB389 MAL - 04/21/2017 AM1116 LB389 MAL - 04/21/2017 1 wireless facility within a consolidated application is subject to review. 2 When processing a consolidated application, the authority may approve the 3 application as to certain included small wireless facilities but deny 4 approval for other included facilities. The authority’s denial of one or 5 more but not all of the small wireless facilities within a consolidated 6 application shall not be a basis upon which to deny the consolidated 7 application as a whole. If an applicant applies to construct or collocate 8 several small wireless facilities within the jurisdiction of a single 9 authority, the authority shall: 10 (i) Allow the applicant, at the applicant's discretion, to file a 11 single set of documents that apply to all the applicant's small wireless 12 facilities; and 13 (ii) Render a decision regarding all the applicant's small wireless 14 facilities 15 requirements 16 decision. in a single administrative require an or elected proceeding appointed body unless to local render such 17 (d) An authority shall approve an application unless it does not 18 meet the authority's applicable industry construction and operational 19 safety 20 electrical, or pole attachment codes, standards, or regulations, if they 21 are of general applicability and do not apply exclusively to wireless 22 facilities. standards in the authority right-of-way or its building, 23 (e) The authority shall document the basis for a denial, including 24 the specific code provisions, standards, or regulations on which the 25 denial was based, and send documentation to the applicant on or before 26 the day the authority denies an application. The applicant may cure the 27 deficiencies identified by the authority and resubmit the application 28 within 29 application 30 application within thirty days after resubmission. 31 (f) thirty days fee. Once an The after the authority application is denial without paying shall approve or approved, -6- a an deny permit additional the revised authorizing the AM1116 LB389 MAL - 04/21/2017 AM1116 LB389 MAL - 04/21/2017 1 collocation or collocations shall remain valid for at least ten years and 2 shall 3 periods 4 requesting that the permit be terminated. be approved unless automatically the applicant for at provides least at two least five-year ninety days' renewal notice 5 (g) Beginning with applications filed on or after the effective date 6 of this act, an authority shall accept and process an application and 7 issue a permit as provided under this subsection. An applicant shall not 8 be required to provide more information or pay a higher application fee, 9 consulting fee, or other fee associated with processing or issuing a 10 permit than the amount charged to a communications service provider that 11 is 12 processing or issuing a permit, including any fees charged by third 13 parties, 14 addressing no more than five small wireless facilities and an additional 15 fifty 16 application in excess of five small wireless facilities. not a wireless shall dollars service not exceed for each provider. five The hundred small total amount dollars wireless for facility of an fees for application addressed in an 17 (h) All costs of construction shall be borne by the applicant with 18 no additional fees, taxes, lease payments, or in-kind consideration paid 19 or provided to the authority for the use of the authority's right-of-way 20 or land, except that the applicant shall be responsible for all costs to 21 improve or maintain its own small wireless facility. An applicant shall 22 commence the construction of a small wireless facility no later than two 23 years following the date a permit is issued under this section or two 24 years after any appeals are final. Any small wireless facility that is 25 not 26 nonoperation 27 circumstance, shall be considered abandoned and the owner of the facility 28 must remove such facility within ninety days after receipt of written 29 notice from the authority notifying the owner of such abandonment unless 30 cured 31 certified or registered mail, return receipt requested, to such owner at operated within for due a to ninety continuous a days. period natural The disaster authority -7- of twelve or shall months, other send excluding unforeseeable such notice by AM1116 LB389 MAL - 04/21/2017 1 AM1116 LB389 MAL - 04/21/2017 the last-known address of such owner. 2 (i) An applicant may collocate small wireless facilities on 3 authority poles located within the authority right-of-way without being 4 required to apply for or enter into any individual license, franchise, or 5 other agreement with the authority or any other entity subject to such 6 nondiscriminatory, 7 terms and conditions as may be set forth in the permit. Such terms and 8 conditions shall comply with this section and be consistent with federal 9 pole attachment competitively requirements neutral, under 47 and U.S.C. commercially 224 and reasonable implementing 10 regulations, as such section and regulations existed on January 1, 2017. 11 The annual recurring rate to collocate a small wireless facility on an 12 authority pole shall not exceed the rate produced by applying the formula 13 adopted by the Federal Communications Commission for telecommunications 14 pole attachments under 47 C.F.R. 1.1409(e)(2), as such section existed on 15 January 1, 2017. 16 (j) For authority poles that support aerial cables used for video 17 communications, the applicant shall comply with the process for make- 18 ready work under 47 U.S.C. 224 and implementing regulations, as such 19 section 20 estimate of the entity owning or controlling the pole for any make-ready 21 work necessary to enable the pole to support the requested collocation 22 shall include pole replacement, if necessary. and regulations existed on January 1, 2017. The good faith 23 (k) For authority poles that do not support aerial cables used for 24 video communications, the authority shall provide a good faith estimate 25 for any make-ready work necessary to enable the pole to support the 26 requested collocation, including pole replacement, if necessary, within 27 ninety days after receipt of a complete application. Make-ready work, 28 including any pole replacement, shall be completed within sixty days 29 after written acceptance of the good faith estimate by the applicant. 30 (l) Make-ready work shall not require more work than required to 31 meet applicable codes or industry standards. Charges for make-ready work, -8- AM1116 LB389 MAL - 04/21/2017 AM1116 LB389 MAL - 04/21/2017 1 including any pole replacement, shall not exceed actual reasonable and 2 necessary costs for the amount charged to other communications service 3 providers 4 charges, or expenses except for amounts charged by licensed contractors 5 actually performing the make-ready work. 6 (m) for For similar purposes work of and this shall not subsection, include third-party make-ready work fees, generally 7 refers to the modification of poles or lines or the installation of guys 8 and anchors to accommodate additional facilities. 9 (n) No approval for the installation, placement, maintenance, or 10 operation of a small wireless facility pursuant to this section shall be 11 construed to confer authorization for the provision of cable television 12 service or for the installation, placement, maintenance, or operation of 13 a communications facility other than a small wireless facility in the 14 right-of-way. 15 (3) For a pole placed or a small wireless facility collocated in 16 whole or in part under this section, an authority shall only impose 17 nondiscriminatory, 18 application requirements and shall not: 19 20 competitively neutral, and commercially reasonable (a) Require any additional information from applicants that is not required from other users of authority rights-of-way; 21 (b) Institute a moratorium on the collocation of small wireless 22 facilities, 23 ordinance, rule, or regulation or indirectly through action or inaction 24 on 25 facilities; filing, either directly receiving, or through processing a written applications policy, for resolution, small wireless 26 (c) Impose discriminatory permitting standards for the collocation 27 of small wireless facilities or discriminatory licensing standards for 28 persons performing the work of collocating small wireless facilities, and 29 shall receive and process applications for collocating small wireless 30 facilities 31 collocating small wireless in a manner substantially comparable to the and for licenses for -9- persons performing the work of AM1116 LB389 MAL - 04/21/2017 AM1116 LB389 MAL - 04/21/2017 1 permitting of other applications and licensing of persons performing work 2 within the jurisdiction of the authority; 3 (d) Require a communications service provider to provide (i) space 4 on or near the small wireless facility for authority services at less 5 than the market rate for space, (ii) services by use of the structure or 6 small wireless facilities at less than the market rate for such services, 7 or (iii) any services unrelated to the small wireless facility; and 8 (e) Except as such relates to small wireless facilities pursuant to 9 this section, adopt or enforce any regulations or requirements that would 10 require a holder of a cable franchise to obtain additional authorization 11 or to pay additional fees for the provision of communications service 12 over such holder's communications facilities in the rights-of-way. 13 Sec. 21. For purposes of zoning regulation, small wireless 14 facilities shall be a permitted use in all zoning districts other than 15 areas outside the authority right-of-way that are zoned and used for 16 single family residential use. An authority shall not impose a specific 17 or 18 prohibition on small wireless facilities, and the authority shall not 19 impose more restrictive requirements on placement, height, setbacks, or 20 spacing 21 except that small wireless facilities to be located in an airport hazard 22 area 23 established for such area. 24 conditional than as use those defined Sec. 22. permit of by requirement general or any applicability section 3-301 shall similar in the comply requirement zoning with or district, regulations The Small Wireless Facilities Act shall not nullify, 25 modify, amend, or prohibit a mutual agreement made prior to the effective 26 date of this act between an authority and any communications service 27 provider 28 installed or approved for installation prior to the effective date of 29 this act. 30 Sec. 23. 31 placement of for the placement (1) For any communications of small wireless construction, facilities, -10- facilities operation, small that were collocation, wireless or facilities, AM1116 LB389 MAL - 04/21/2017 AM1116 LB389 MAL - 04/21/2017 1 wireless facilities, or wireless support structures that occurs along, 2 upon, across, or under a state or federal highway or upon a state-owned 3 wireless 4 installation of such facilities and structures, as such pertain to the 5 present 6 wireless support structures for highway purposes, are subject to the 7 rules 8 permitting requirements of the State of Nebraska and the Department of 9 Transportation, including, but not limited to, requirements for location 10 and design review, liability and automobile insurance, indemnification of 11 the department from liability, protection of public safety and property 12 interests, 13 requirements. 14 (2) support and and structure, future use regulations, and The of the the guidance compliance construction, facilities, application process, right-of-way documents, with and federal operation, small or state-owned usual and transportation collocation, wireless location, or poles or customary funding placement facilities, and of 15 communications wireless 16 facilities, or wireless support structures shall occur at no cost to the 17 department unless otherwise agreed in advance between an applicant and 18 the department. 19 (3) The department may set and collect a reasonable application fee 20 to cover its costs in administering the activities described in this 21 section, as well as a uniform and nondiscriminatory system of occupancy 22 fees for the use and occupancy of state-owned property. 23 (4) If the future use of the state or federal highway requires the 24 moving 25 facilities, wireless facilities, or wireless support structures, such 26 facilities or structures shall be removed or relocated by the owner at 27 the owner's expense and as directed by the department. 28 29 or relocating Sec. 24. of communications facilities, small wireless The Revisor of Statutes shall assign sections 1 to 22 of this act to Chapter 86 and section 23 of this act to Chapter 39. -11-