SB1451 100TH GENERAL ASSEMBLY

LRB100 09256 AWJ 19412 b

100TH GENERAL ASSEMBLY
State of Illinois
2017 and 2018
SB1451

Introduced 2/9/2017, by Sen. Terry Link

SYNOPSIS AS INTRODUCED:

New Act
55 ILCS 5/5-12001.2

Creates the Small Wireless Facilities Deployment Act. Provides for legislative intent for the Act and definitions. Provides that an authority (a unit of local government with control over rights-of-way) may not prohibit, regulate, or charge for the collocation of small wireless facilities (the installation, mounting, maintaining, modifying, operating, or replacement of small wireless facilities on or adjacent to a wireless support structure or utility pole). Provides that small wireless facilities shall be classified as permitted uses and not subject to zoning review and approval under specified circumstances. Provides requirements for applications, fees, application review, and issuance of permits for collocation of small wireless facilities. Provides that an authority may not require applications for routine maintenance or replacement of wireless facilities with wireless facilities that are substantially similar, of the same size, or smaller. Requires authorities to allow the collocation of small wireless facilities on authority utility poles under specified circumstances. Prohibits authorities from regulating the design, engineering, construction, installation, or operation of any small wireless facility in specified circumstances. Provides that a circuit court has jurisdiction to resolve all disputes arising under the Act. Prohibits an authority from requiring a wireless provider to indemnify the authority or its officers or employees and from naming the authority on a wireless provider's insurance policy. Limits home rule powers. Amends the Counties Code making conforming changes.

FISCAL NOTE ACT MAY APPLY

HOME RULE NOTE ACT MAY APPLY

A BILL FOR

AN ACT concerning local government.

Be it enacted by the People of the State of Illinois, represented in the General Assembly:

Section 1. Short title. This Act may be cited as the Small Wireless Facilities Deployment Act.

Section 5. Legislative intent. Small wireless facilities are critical to delivering wireless access to advanced technology, broadband, and 9-1-1 services to homes, businesses, and schools in Illinois. Because of the integral role that the delivery of wireless technology plays in the economic vitality of the State of Illinois and in the lives of its citizens, the General Assembly has determined that a law addressing the deployment of wireless technology is of vital interest to the State. To ensure that public and private Illinois consumers continue to benefit from these services as soon as possible and to ensure that providers of wireless access have a fair and predictable process for the deployment of small wireless facilities, the General Assembly is enacting this Act, which specifies how local authorities may regulate the collocation of small wireless facilities.

Section 10. Definitions. As used in this Act:

"Antenna" means communications equipment that transmits or receives electromagnetic radio frequency signals used in the provision of wireless services.

"Applicable codes" means 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 to the extent not inconsistent with the terms of this Act.

"Applicant" means any person who submits an application and is a wireless provider.

"Application" means a request submitted by an applicant to an authority for a permit to collocate small wireless facilities.

"Authority" means a unit of local government that has jurisdiction and control for use of public rights-of-way as provided by the Illinois Highway Code for placements within public rights-of-way or has zoning or land use control for placements not within public rights-of-way.

"Authority utility pole" means a utility pole owned or operated by an authority in public rights-of-way.

"Collocate" or "collocation" means to install, mount, maintain, modify, operate, or replace wireless facilities on or adjacent to a wireless support structure or utility pole.

"Communications service" means cable service, as defined in 47 U.S.C. 522(6), as amended; information service, as defined in 47 U.S.C. 153(24), as amended; telecommunications service as defined in 47 U.S.C. 153(53), as amended; mobile service as defined in 47 U.S.C. 153(33), as amended; or wireless service other than mobile service.

"Communications service provider" means a cable operator, as defined in 47 U.S.C. 522(5), as amended; a provider of information service, as defined in 47 U.S.C. 153(24), as amended; a telecommunications carrier, as defined in 47 U.S.C. 153(51), as amended; or a wireless provider.

"FCC" means the Federal Communications Commission of the United States.

"Fee" means a one-time charge.

"Law" means a federal or State statute, common law, code, rule, regulation, order, or local ordinance or resolution.

"Permit" means a written authorization required by an authority to perform an action or initiate, continue, or complete a project.

"Person" means an individual, corporation, limited liability company, partnership, association, trust, or other entity or organization, including an authority.

"Rate" means a recurring charge.

"Rights-of-way" means the area on, below, or above a public roadway, highway, street, sidewalk, alley, utility easement, or similar property, but not including a federal interstate highway.

"Small wireless facility" means a wireless facility that meets both of the following qualifications: (i) each antenna is located inside an enclosure of no more than 6 cubic feet in volume or, in the case of an antenna that has exposed elements, the antenna and all of its exposed elements could fit within an imaginary enclosure of no more than 6 cubic feet; and (ii) all other wireless equipment associated with the facility is cumulatively no more than 28 cubic feet in volume. The following types of associated ancillary equipment are not included in the calculation of equipment volume: electric meter, concealment elements, telecommunications demarcation box, ground-based enclosures, grounding equipment, power transfer switch, cut-off switch, and vertical cable runs for the connection of power and other services.

"Utility pole" means a pole or similar structure that is used in whole or in part by a communications service provider or for electric distribution, lighting, traffic control, signage, or a similar function.

"Wireless facility" means equipment at a fixed location that enables wireless communications between user equipment and a communications network, including: (i) equipment associated with wireless communications; and (ii) radio transceivers, antennas, coaxial or fiber-optic cable, regular and backup power supplies, and comparable equipment, regardless of technological configuration. "Wireless facility" includes small wireless facilities. "Wireless facility" does not include the structure or improvements on, under, or within which the equipment is collocated.

"Wireless infrastructure provider" means any person, including a person authorized to provide telecommunications service in the State, that builds or installs wireless communication transmission equipment, wireless facilities, wireless support structures, or utility poles, but that is not a wireless services provider.

"Wireless provider" means a wireless infrastructure provider or a wireless services provider.

"Wireless services" means any services, whether at a fixed location or mobile, provided using wireless facilities.

"Wireless services provider" means a person who provides wireless services.

"Wireless support structure" means a freestanding structure, such as a monopole; tower, either guyed or self-supporting; billboard; or other existing or proposed structure designed to support or capable of supporting wireless facilities. "Wireless support structure" does not include a utility pole.

Section 15. Regulation of small wireless facilities.

(a) This Section applies to activities of a wireless provider within or outside rights-of-way.

(b) Except as provided in this Section, an authority may not prohibit, regulate, or charge for the collocation of small wireless facilities.

(c) Small wireless facilities shall be classified as permitted uses and not subject to zoning review or approval if they are collocated (i) in rights-of-way in any zone or (ii) outside rights-of-way in property not zoned exclusively for single family residential use.

(d) An authority may require an applicant to obtain one or more permits to collocate a small wireless facility, provided that the permits are of general applicability and do not apply exclusively to wireless facilities. An authority shall receive applications for, process, and issue permits subject to the following requirements:

(1) An authority may not directly or indirectly require an applicant to perform services unrelated to the collocation for which approval is sought, such as in-kind contributions to the authority including reserving fiber, conduit, or pole space for the authority.

(2) An applicant shall not be required to provide more information to obtain a permit than communications service providers that are not wireless providers.

(3) An authority may not require the placement of small wireless facilities on any specific utility pole, or category of poles, or require multiple antenna systems on a single utility pole.

(4) An authority may not limit the placement of small wireless facilities, either by minimum separation distances or maximum height limitations, except that the authority may limit the height of a small wireless facility to 10 feet above the utility pole or wireless support structure on which the small wireless facility is collocated. Subject to any exception process in an authority zoning ordinance, the authority may (i) limit the height of new or replacement utility poles or wireless support structures on which small wireless facilities are collocated to 10 feet above the tallest existing utility pole measured from grade in place within 500 feet of the proposed location of the small wireless facility; or (ii) limit the height of the new or replacement utility pole or wireless support structure to 50 feet if there is no utility pole within 500 feet.

(5) Within 10 days after receiving an application, an authority must determine and notify the applicant by electronic mail whether the application is complete. If an application is incomplete, an authority must specifically identify the missing information. An application shall be deemed complete if the authority fails to provide notification to the applicant within 10 days or when all documents, information, and fees specifically enumerated in the authority's permit application form are submitted by the applicant to the authority.

(6) An application shall be processed on a nondiscriminatory basis and deemed approved if the authority fails to approve or deny the application within 60 days.

(7) An authority shall approve an application unless it does not meet the authority's applicable codes. The authority must document the basis for a denial, including the specific code provisions on which the denial was based, and send the documentation to the applicant by electronic mail on or before the day the authority denies an application. The applicant may cure the deficiencies identified by the authority and resubmit the application within 30 days after notice of denial is sent to the applicant without paying an additional application fee. The authority shall approve or deny the revised application within 30 days after notice of denial is sent to the applicant or it is deemed approved. Any subsequent review shall be limited to the deficiencies cited in the denial.

(8) An applicant seeking to collocate small wireless facilities within the jurisdiction of a single authority shall be allowed, at the applicant's discretion, to file a consolidated application and receive a single permit for the collocation of multiple small wireless facilities.

(9) Collocation for which a permit is granted shall commence within one year after issuance of the permit and shall be pursued to completion. Any time limitation placed on permits shall be void unless the applicant subsequently and voluntarily requests that the permit be terminated.

(10) An authority may not institute, either expressly or de facto, a moratorium on (i) filing, receiving, or processing applications or (ii) issuing permits or other approvals, if any, for the collocation of small wireless facilities.

(e) Application fees shall be subject to the following requirements:

(1) An authority may charge an application fee only if such fee is required for similar types of commercial development within the authority's jurisdiction.

(2) An authority shall only charge fees for the actual, direct, and reasonable costs incurred by the authority relating to the granting or processing of an application. Such fees shall be reasonably related in time to the incurring of such costs. Where such costs are already recovered by existing fees, rates, or taxes paid by a wireless provider, no application fee shall be assessed to recover such costs.

(3) A fee may not include (i) travel expenses incurred by a third party in its review of an application or (ii) direct payment or reimbursement of third-party rates or fees charged on a contingency basis or a result-based arrangement.

(4) In any controversy concerning the appropriateness of a fee, an authority shall have the burden of proving that the fee is reasonably related to the actual, direct, and reasonable costs incurred by the authority.

(5) Total application fees, where permitted, shall not exceed the lesser of: (i) the amount charged by the authority for a building permit for any similar commercial construction, activity, or land use development; or (ii) $100 each for up to 5 small wireless facilities addressed in an application and $50 for each additional small wireless facility addressed in the application.

(f) An authority shall not require an application for (i) routine maintenance or (ii) the replacement of wireless facilities with wireless facilities that are substantially similar, the same size, or smaller. An authority may, however, require a permit to work within rights-of-way for items (i) and (ii) of this subsection, if applicable. Any permits for work within rights-of-way shall be subject to the requirements provided in this Section.

(g) Nothing in this Act authorizes a person to collocate small wireless facilities on a privately owned utility pole or wireless support structure or other private property without the consent of the property owner.

(h) An authority shall allow the collocation of small wireless facilities on authority utility poles as follows:

(1) An authority may not enter into an exclusive arrangement with any person for the right to attach small wireless facilities to authority utility poles.

(2) The rates and fees for collocations on authority utility poles shall be nondiscriminatory regardless of the services provided by the collocating person.

(3) The rate to collocate on authority utility poles may not exceed the annual recurring rate that would be permitted under rules adopted by the FCC under 47 U.S.C. 224(e) if the rates were regulated by the FCC or $20 per year per authority utility pole, whichever is less.

(4) If an authority has an existing pole attachment rate, fee, or other term that does not comply with the requirements in this Section, the authority shall, no later than 6 months after the effective date of this Act, reform such rate, fee, or term in compliance with this subsection.

(5) Persons owning or controlling authority utility poles shall offer rates, fees, and other terms that comply with subparagraphs (A) through (D) of this paragraph (5). Within 6 months after the effective date of this Act or 3 months after receiving a request to collocate its first small wireless facility on an authority utility pole, whichever is later, a person owning or controlling authority utility poles shall make available, through ordinance or otherwise, the rates, fees, and terms for the collocation of small wireless facilities on such poles that comply with subparagraphs (A) through (D) of this paragraph (5).

(A) The rates, fees, and terms must be nondiscriminatory, competitively neutral, and commercially reasonable and must comply with this subsection (h).

(B) For authority utility poles that support aerial facilities used to provide communications services or electric service the parties shall comply with the process for make-ready work under 47 U.S.C. 224 and its implementing regulations. The good faith estimate of the person owning or controlling the pole for any make-ready work necessary to enable the pole to support the requested collocation shall include pole replacement, if necessary.

(C) For authority utility poles that do not support aerial facilities used to provide communications services or electric service, the authority shall provide a good faith estimate for any make-ready work necessary to enable the pole to support the requested collocation, including pole replacement, if necessary, within 60 days after receipt of a complete application. Make-ready work including any pole replacement shall be completed within 60 days of written acceptance of the good faith estimate by the applicant.

(D) The authority shall not require more make-ready work than required to meet applicable codes or industry standards. Fees for make-ready work shall not include costs related to pre-existing or prior damage or noncompliance. Fees for make-ready work, including any pole replacement, shall not exceed actual costs or the amount charged to communications service providers for similar work and shall not include any consultants' fees or expenses.

(i) An authority shall authorize the collocation of small wireless facilities on authority wireless support structures and authority utility poles owned or controlled by an authority that are not located within rights-of-way to the same extent the authority permits access to such structures for other commercial projects or uses. Such collocations shall be subject to reasonable and nondiscriminatory rates, fees, and terms as provided in an agreement between the authority and the wireless provider.

Section 20. Local authority. Subject to this Act and applicable federal law, an authority may continue to exercise zoning, land use, planning, and permitting authority within its territorial boundaries, including with respect to wireless support structures and utility poles; except that no authority shall have or exercise any jurisdiction or authority over the design, engineering, construction, installation, or operation of any small wireless facility located in an interior structure or upon the site of any campus, stadium, or athletic facility not otherwise owned or controlled by the authority, other than to comply with applicable codes. Nothing in this Act authorizes the State or any political subdivision, including an authority, to require wireless facility deployment or to regulate wireless services.

Section 25. Dispute resolution. A circuit court has jurisdiction to resolve all disputes arising under this Act. Pending resolution of a dispute concerning rates for collocation of small wireless facilities on authority utility poles, the authority shall allow the collocating person to collocate on its poles at annual rates of no more than $20 per year per utility pole, with rates to be determined upon final resolution of the dispute. Complaints shall be adjudicated no later than 180 days after a complaint or petition is filed.

Section 30. Indemnification. An authority shall not: (i) require a wireless provider to indemnify and hold the authority and its officers and employees harmless against any claims, lawsuits, judgments, costs, liens, losses, expenses, or fees, except when a court of competent jurisdiction has found that the negligence of the wireless provider while installing, repairing, or maintaining caused the harm that created the claims, lawsuits, judgments, costs, liens, losses, expenses, or fees; or (ii) require a wireless provider to obtain insurance naming the authority or its officers and employees an additional insured against any claims, lawsuits, judgments, costs, liens, losses, expenses, or fees.

Section 35. Home rule. A home rule unit may not regulate small wireless facilities in a manner inconsistent with this Act. This Section is a limitation under subsection (i) of Section 6 of Article VII of the Illinois Constitution on the concurrent exercise by home rule units of powers and functions exercised by the State.

Section 100. The Counties Code is amended by changing Section 5-12001.2 as follows:

(55 ILCS 5/5-12001.2)

Sec. 5-12001.2. Regulation of telecommunications facilities; Lake County pilot project. In addition to any other requirements under this Division concerning the regulation of telecommunications facilities and except as provided by the Small Wireless Facilities Deployment Act, the following applies to any new telecommunications facilities in Lake County that are not AM telecommunications towers or facilities:

(a) For every new wireless telecommunications facility requiring a new tower structure, a telecommunications carrier shall provide the county with documentation consisting of the proposed location, a site plan, and an elevation that sufficiently describes a proposed wireless facility location.

(b) The county shall have 7 days to review the facility proposal and contact the telecommunications carrier in writing via e-mail or other written means as specified by the telecommunications carrier. This written communication shall either approve the proposed location or request a meeting to review other possible alternative locations. If requested, the meeting shall take place within 7 days after the date of the written communication.

(c) At the meeting, the telecommunications carrier shall provide the county documentation consisting of radio frequency engineering criteria and a corresponding telecommunications facility search ring map, together with documentation of the carrier's efforts to site the proposed facility within the telecommunications facility search ring.

(d) Within 21 days after receipt of the carrier's documentation, the county shall propose either an alternative site within the telecommunications facility search ring, or an alternative site outside of the telecommunications search ring that meets the radio frequency engineering criteria provided by the telecommunications carrier and that will not materially increase the construction budget beyond what was estimated on the original carrier proposed site.

(e) If the county's proposed alternative site meets the radio frequency engineering criteria provided by the telecommunications carrier, and will not materially increase the construction budget beyond what was estimated on the original carrier proposed site, then the telecommunications carrier shall agree to build the facility at the alternative location, subject to the negotiation of a lease with commercially reasonable terms and the obtainment of the customary building permits.

(f) If the telecommunications carrier can demonstrate that: (i) the county's proposed alternative site does not meet the radio frequency engineering criteria, (ii) the county's proposed alternative site will materially increase the construction budget beyond what was estimated on the original carrier proposed site, (iii) the county has failed to provide an alternative site, or (iv) after a period of 90 days after receipt of the alternative site, the telecommunications carrier has failed, after acting in good faith and with due diligence, to obtain a lease or, at a minimum, a letter of intent to lease the alternative site at lease rates not materially greater than the lease rate for the original proposed site; then the carrier can proceed to permit and construct the site under the provisions and standards of Section 5-12001.1 of this Code.

(Source: P.A. 98-197, eff. 8-9-13; 98-756, eff. 7-16-14.)