HomeMy WebLinkAbout03-10-2014 - Supplemental Materials - SHB 21752175-5 AMS BILL 54993.2
SHB 2175 - S AMD 631
By Senators Billig, Ericksen, Ranker
ADOPTED 03/06/2014
1 Strike everything after the enacting clause and insert the
2 following:
3 "Sec. 1. RCW 80.36.375 and 1997 c 219 s 2 are each amended to read
4 as follows:
5 (1) If a personal wireless service provider applies to site several
6 microcells ((der))_, minor facilities or a small cell network in a
7 single geographical area:
8 (a) If one or more of the microcells and/or minor facilities are
9 not exempt from the requirements of RCW 43.21C.030(2)(c), local
10 governmental entities are encouraged: (i) To allow the applicant, at
11 the applicant's discretion, to file a single set of documents required
12 by chapter 43.21C RCW that will apply to all the microcells and/or
13 minor facilities to be sited; and (ii) to render decisions under
14 chapter 43.21C RCW regarding all the microcells and/or minor facilities
15 in a single administrative proceeding; ((mod))
16 (b) Local governmental entities are encouraged: (i) To allow the
17 applicant, at the applicant's discretion, to file a single set of
18 documents for land use permits that will apply to all the microcells
19 and/or minor facilities to be sited; and (ii) to render decisions
20 regarding land use permits for all the microcells and/or minor
21 facilities in a single administrative proceeding; and
22 (c) For small cell networks involving multiple individual small
23 cell facilities local governmental entities shall allow the applicant,
24 if the applicant so chooses to file a consolidated application and
25 receive a single permit for the small cell network in a single
26 jurisdiction instead of filing separate applications for each
27 individual small cell facility.
28 (2) For the purposes of this section:
29 (a) "Personal wireless services" means commercial mobile services,
Official Print - 1 2175-5 AMS BILL 54993.2
1 unlicensed wireless services, and common carrier wireless exchange
2 access services, as defined by federal laws and regulations.
3 (b) "Microcell" means a wireless communication facility consisting
4 of an antenna that is either: (i) Four feet in height and with an area
5 of not more than five hundred eighty square inches; or (ii) if a
6 tubular antenna, no more than four inches in diameter and no more than
7 six feet in length.
8 (c) "Minor facility" means a wireless communication facility
9 consisting of up to three antennas, each of which is either: (i) Four
10 feet in height and with an area of not more than five hundred eighty
11 square inches; or (ii) if a tubular antenna, no more than four inches
12 in diameter and no more than six feet in length; and the associated
13 equipment cabinet that is six feet or less in height and no more than
14 forty-eight square feet in floor area.
15 (d) "Small cell facility" means a personal wireless services
16 facility that meets both of the following qualifications:
17 (i) Each antenna is located inside an antenna enclosure of no more
18 than three cubic feet in volume or, in the case of an antenna that has
19 exposed elements the antenna and all of its exposed elements could fit
20 within an imaginary enclosure of no more than three cubic feet• and
21 (ii) Primary equipment enclosures are no larger than seventeen
22 cubic feet in volume The following associated equipment may be
23 located outside the primary equipment enclosure and ifso located, are
24 not included in the calculation of equipment volume: Electric meter,
25 concealment telecomm demarcation box ground -based enclosures battery
26 back-up power systems grounding equipment power transfer switch, and
27 cut-off switch.
28 (e) "Small cell network" means a collection of interrelated small
29 cell facilities designed to deliver personal wireless services.
30 Sec. 2. RCW 35.21.860 and 2007 c 6 s 1020 are each amended to read
31 as follows:
32 (1) No city or town may impose a franchise fee or any other fee or
33 charge of whatever nature or description upon the light and power, or
34 gas distribution businesses, as defined in RCW 82.16.010, or telephone
35 business, as defined in RCW 82.16.010, or service provider for use of
36 the right-of-way, except:
37 (a) A tax authorized by RCW 35.21.865 may be imposed;
Official Print - 2 2175-5 AMS BILL 54993.2
1 (b) A fee may be charged to such businesses or service providers
2 that recovers actual administrative expenses incurred by a city or town
3 that are directly related to receiving and approving a permit, license,
4 and franchise, to inspecting plans and construction, or to the
5 preparation of a detailed statement pursuant to chapter 43.21C RCW;
6 (c) Taxes permitted by state law on service providers;
7 (d) Franchise requirements and fees for cable television services
8 as allowed by federal law; and
9 (e) A site -specific charge pursuant to an agreement between the
10 city or town and a service provider of personal wireless services
11 acceptable to the parties for:
12 (i) The placement of new structures in the right-of-way regardless
13 of height, unless the new structure is the result of a mandated
14 relocation in which case no charge will be imposed if the previous
15 location was not charged;
16 (ii) The placement of replacement structures when the replacement
17 is necessary for the installation or attachment of wireless facilities,
18 the replacement structure is higher than the replaced structure, and
19 the overall height of the replacement structure and the wireless
20 facility is more than sixty feet; or
21 (iii) The placement of personal wireless facilities on structures
22 owned by the city or town located in the right-of-way. However, a
23 site -specific charge shall not apply to the placement of personal
24 wireless facilities on existing structures, unless the structure is
25 owned by the city or town.
26 A city or town is not required to approve the use permit for the
27 placement of a facility for personal wireless services that meets one
28 of the criteria in this subsection absent such an agreement. If the
29 parties are unable to agree on the amount of the charge, the service
30 provider may submit the amount of the charge to binding arbitration by
31 serving notice on the city or town. Within thirty days of receipt of
32 the initial notice, each party shall furnish a list of acceptable
33 arbitrators. The parties shall select an arbitrator; failing to agree
34 on an arbitrator, each party shall select one arbitrator and the two
35 arbitrators shall select a third arbitrator for an arbitration panel.
36 The arbitrator or arbitrators shall determine the charge based on
37 comparable siting agreements involving public land and rights -of -way.
38 The arbitrator or arbitrators shall not decide any other disputed
official Print - 3 2175-S AMS BILL S4993.2
1 issues, including but not limited to size, location, and zoning
2 requirements. Costs of the arbitration, including compensation for the
3 arbitrator's services, must be borne equally by the parties
4 participating in the arbitration and each party shall bear its own
5 costs and expenses, including legal fees and witness expenses, in
6 connection with the arbitration proceeding.
7 (2) Subsection (1) of this section does not prohibit franchise fees
8 imposed on an electrical energy, natural gas, or telephone business, by
9 contract existing on April 20, 1982, with a city or town, for the
10 duration of the contract, but the franchise fees shall be considered
11 taxes for the purposes of the limitations established in RCW 35.21.865
12 and 35.21.870 to the extent the fees exceed the costs allowable under
13 subsection (1) of this section."
SHB 2175 - S AMD
By Senators Billig, Ericksen, Ranker
ADOPTED 03/06/2014
14 On page 1, line 2 of the title, after "industry;" strike the
15 remainder of the title and insert "and amending RCW 80.36.375 and
16 35.21.860."
EFFECT: Removes provisions encouraging consolidated applications
for all wireless facilities, but still requires local governments to
allow consolidated applications for small cell networks. Clarifies
that consolidated siting applications for small cell networks are
limited to single jurisdictions. Keeps the provision in the underlying
substitute bill that authorizes agreements between municipalities and
personal wireless service companies to specify site -specific charges
for certain wireless replacement structures.
--- END ---
Official Print - 4 2175-5 AMS BILL 54993.2
G
HOUSE BILL REPORT
SHB 2175
As Amended by the Senate
Title: An act relating to removing barriers to economic development in the telecommunications
industry.
Brief Description: Removing barriers to economic development in the telecommunications
industry.
Sponsors: House Committee on Technology & Economic Development (originally sponsored
by Representatives Morris, Morrell and Stanford).
Brief History:
Committee Activity:
Technology & Economic Development: 1/17/14, 1/30/14 [DPS].
Floor Activity:
Passed House: 2/14/14, 96-0.
Senate Amended.
Passed Senate: 3/6/14, 34-15.
Brief Summary of Substitute Bill
Replaces definitions and broadens the types of telecommunications facilities
for which local governments are encouraged to expedite siting and land use
permitting to include "wireless service facilities."
• Requires local governments to allow applicants for "small cell networks" to
file a consolidated application and receive a single permit, instead of filing
separate applications for each individual small cell facility.
• Establishes a new limitation on the authority of cities and towns to charge
personal wireless service providers for use of the right-of-way in installing
certain replacement structures.
HOUSE COMMITTEE ON TECHNOLOGY & ECONOMIC DEVELOPMENT
Majority Report: The substitute bill be substituted therefor and the substitute bill do pass.
Signed by 12 members: Representatives Morris, Chair; Habib, Vice Chair; Smith, Ranking
This analysis was prepared by non partisan legislative staff for the use of legislative
members in their deliberations. This analysis is not apart of the legislation nor does it
constitute a statement of legislative intent.
House Bill Report - 1 - SHB 2175
Minority Member; Short, Assistant Ranking Minority Member; Dahlquist, Freeman,
Kochmar, Magendanz, Ryu, Stonier, Tarleton and Wylie.
Minority Report: Do not pass. Signed by 4 members: Representatives Morrell, Vick,
Walsh and Zeiger.
Staff: Jasmine Vasavada (786-7301).
Background:
Wireless Telecommunications Services and Technologies.
According to the Federal Communications Commission (FCC), over the past two decades, as
the demand for wireless telecommunications services has increased, the demand for wireless
antenna sites has correspondingly increased. There has also been rapid growth in demand for
new infrastructure technologies that are significantly smaller in coverage area than traditional
macrocells (antennas with large geographic range, often mounted on cell towers). Such
technologies are more able to reuse scarce wireless frequencies and can help increase data
capacity within the network footprint. These technologies include but are not limited to
microcells, small cell networks, and Distributed Antenna Systems that expand capacity and
wireless coverage in a local area through small, low -mounted antennas.
The specific locations chosen by wireless companies to site antennas depend on a variety of
factors, such as the proximity of adjacent antenna sites, engineering and topographical
considerations, community response, and the existence of a willing property owner. Antenna
siting may be contentious due to neighborhood concerns about possible health, safety, and
aesthetic effects. In 1996 the Legislature enacted a statute authorizing the Department of
Health to require that providers of personal wireless services provide random test results
showing radio frequency levels before and after development of the personal wireless service
antenna facilities in residential areas. This statute expressly excludes from the Department of
Health's authority to require such test results for "microcells" as defined in RCW 80.36.375.
Expedited Local Government Permitting of Certain Telecommunications Facilities.
In 1996 and 1997 Washington enacted legislation to encourage local governmental entities,
when a telecommunications service provider applies to site several microcells and/or minor
facilities in a single geographical area: (1) to allow the applicant to file a single set of State
Environmental Policy Act (Chapter 43.21C RCW) documents and land use permit documents
that would apply to all the microcells and/or minor facilities to be sited; and (2) to render
decisions in a single administrative proceeding. The legislation, now codified in RCW
80.36.375, defines a "microcell" based on the size and shape of the antennas, and defines
"minor facility" as a wireless communication of up to three antennas of specific heights and
diameters.
Authority to Impose Site -Specific Charges.
The authority of cities and towns to require personal wireless services providers to pay
franchise fees or other fees or charges for the use of the right-of-way is limited. However,
cities and towns may generally impose a site -specific charge, pursuant to an agreement with a
personal wireless services provider, for the following: (1) placement of new structures in the
right-of-way; (2) placement of personal wireless facilities on structures owned by the city or
House Bill Report -2- SHB 2175
town located in the right-of-way; and (3) placement of replacement structures, when the
replacement is necessary for attachment or installation of wireless facilities and the overall
height of the replacement structure and the wireless facility is more than 60 feet.
Federal Laws and Rulemaking Concerning Siting of Wireless Communication Facilities.
In the Federal Telecommunications Act of 1996 Congress directed the FCC to encourage the
deployment of telecommunications facilities by working to "remove barriers to infrastructure
investment" in a manner consistent with the public interest, convenience, and necessity. In
2012 an amendment to this law required state and local governments to approve requests for
the modification of an existing wireless tower or base station for certain facilities, if the
modification does not substantially change the physical dimensions of the tower or base. In
September 2013 the FCC issued a notice of proposed rule -making discussing various
proposals to expedite environmental permit processing for various distributed antenna
systems and small cell facilities.
Summary of Substitute Bill:
Expedited Permitting and Siting By Local Governments.
Local governmental entities are encouraged to allow telecommunications service providers to
file a single set of State Environmental Policy Act documents and land use permit documents
for all wireless service facilities. "Wireless service facilities" mean facilities for the
provision of "data and telecommunications services, including commercial mobile services,
commercial mobile data services, unlicensed wireless services, and common carrier wireless
exchange access services, as defined by federal laws and regulations." "Wireless service
facilities" replaces previous references to "microcells" and "minor facilities," the definitions
of which were more restrictive.
In addition, local governmental entities are required to allow applicants for a "small cell
network" to file a consolidated application and receive a single permit, instead of filing
separate applications for each individual small cell facility. "Small cell network" means a
collection of interrelated small cell facilities designed to deliver wireless service to a defined
geographic area. A "small cell facility" is either a wireless service facility as defined by the
Federal Telecommunications Act of 1996, as amended as of the effective date of the bill's
enactment, or a wireless service facility for which: (1) each antenna is located inside an
antenna enclosure of no more than three 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 three cubic feet; and (2) primary equipment enclosures
are no larger than 17 cubic feet in volume. Certain designated equipment may be located
outside the primary equipment enclosure without being included in the volume calculation.
City and Town Authority to Impose Site -Specific Charges.
The authority of cities and towns to require personal wireless service providers to pay a site -
specific charge for use of the right-of-way is further limited. In addition to the previous
limitations established by statute, a site -specific charge for placement in the right-of-way of
replacement structures is now only authorized when the replacement structure is higher than
the structure that is being replaced.
EFFECT OF SENATE AMENDMENT(S):
House Bill Report - 3 - SHB 2175
Removes provisions in the underlying bill that broadened the types of telecommunications
facilities for which expedited permitting is encouraged to include "wireless service
facilities." Clarifies that the requirement to allow applicants for small cell networks to file a
consolidated application and receive a single permit applies within a jurisdiction, but not
across jurisdictions.
Appropriation: None.
Fiscal Note: Available.
Effective Date: The bill takes effect 90 days after adjournment of the session in which the
bill is passed.
Staff Summary of Public Testimony:
(In support) The intent of this bill is to eliminate barriers that keep money from being
invested in the telecommunications infrastructure in this state. It's time to revisit a number of
issues. The "microcell" definition has not been updated in many years. Agencies have not
filed required reports with the Legislature. There is a problem with how disputes are settled
under the pole attachment rate statute. Leasehold excise tax issues for pole attachments are
also problematic. The goal here is to increase money that is put in on the ground in
Washington.
Last year the committee looked at House Bill 1183 and allowed for additional work to be
done on site modifications to existing structures. Today's bill creates an opportunity for the
telecommunications industry to look at some of the definitions and work with interested
parties. In Washington, a significant percentage of households have no landline telephone
and are wireless only. This number nearly doubles among young adults 18 to 29 years of
age. Mobile devices are used for much more than voice. People take pictures and record
videos. The demands for data capacity have increased many times over. Early on, microcells
just provided coverage gaps. In this day and age data capacity issues and small cell
technologies are a great complement to provider networks.
(In support with concerns) The pole attachment rate statute is now the subject of litigation.
Investor -owned utilities (IOUs) are treated differently than public utilities. The IOUs go
through a review by the Utilities and Transportation Commission (UTC) before a dispute
goes to court. With respect to public pole owners, there is no third -party chance to resolve
those disputes. Broadband companies would prefer giving jurisdiction to resolving these
disputes to the UTC. Nonetheless, allowing arbitration would be helpful. Requiring binding
arbitration however raises a number of concerns. It would be better if arbitration was offered
as a step, but retaining the option to proceed to the courts. There are also some technical
amendments intended to reflect changing times. It is unclear whether any disputes arising
under the pole attachment statute have ever involved worker safety. "Those types of issues
can be excluded from arbitration.
(Opposed) Workers at public utility districts feel this bill takes away opportunities from our
employers to make decisions into which employees currently have input. Worker safety
House Bill Report - 4 - SHB 2175
should not be decided by arbitration; there are well -established systems in place to take care
of such concerns.
Binding arbitration is unnecessary. Over decades, there have only been two lawsuits
concerning pole attachment rates. Pacific County Public Utility District (PUD) brought an
action and prevailed in superior court, in a case that is currently under appeal. The PUD had
not raised pole attachment rates for 20 years, so before changing rates, the PUD board hired a
third -party, independent consultant to develop a report with a recommendation on rates. The
consultant recommended rates higher than those that the board adopted. Prior to the
litigation, the PUD negotiated with some of the attachers over 16 months, and at that point
the parties could not decide on a finalized agreement on rates. In conclusion, a mechanism is
in place that already works well for disputes. No other pole owner has binding authority.
This is the five-year anniversary of the last time the Legislature grappled with pole
attachment rates. This bill amends a statute that deals with PUDs only. It is discriminatory
and it does not include municipal cooperatives or IOUs. The last lawsuit was brought by a
PUD, not a pole attacher. The bill takes away the right to sue or be sued. The binding
arbitration statutes apply only to parties where both have agreed to binding arbitration.
Furthermore, arbitration is not a replacement for litigation, because you cannot establish legal
precedents with arbitration. The bill mandates Thurston County Superior Court. You can
only appeal to have that arbitration decision enforced. Private attachers on PUDs are not
subject to that. It could overturn electrical codes that deal with the safety of people. One
member PUD did an audit of their poles, and after the audit they found there were thousands
of illegal attachments for which the PUD had never received notification or payment by the
attachers. The PUD does not know how long those attachments have been in place. This bill
is not needed.
Persons Testifying: (In support) Representative Morris, prime sponsor; Bob Bass, AT&T.
(In support with concerns) Ron Main, Broadband Communications Association of
Washington.
(Opposed) Bob Guenther, International Brotherhood of Electrical Workers; Doug Miller,
Pacific County Public Utilities District; and Dave Warren, Washington Public Utilities
District Association.
Persons Signed In To Testify But Not Testifying: None.
House Bill Report - 5 - SHB 2175
Bellevue, Seattle, Tacoma Oppose SHB 2175
SHB 2175 is an industry bill that mandates local governments allow a telecomm
applicant to file a consolidated application and receive a single permit for small cell
networks, involving multiple individual small cell facilities, in a single geographical
area. Several cities, including Bellevue, Seattle, and Tacoma oppose this bill due to the
loss of local control. For example, small cell networks described to some city staff by
AT&T could have upwards of 25 neighborhood antenna facilities located at intervals as
close as one block apart, with associated pole -mounted and ground -mounted
equipment.
There are a number of issues with this bill including the following:
1. The bill creates a legislative policy of mandating local governments to consolidate
applications for siting of multiple wireless facilities into a single process regardless of
the size, number, and impact of these facilities. While consolidation may be one way to
achieve added permit efficiencies, the imposition of a mandate may have unintended
consequences that include increased disputes between neighborhoods regarding
antenna siting,
2. As written, the bill would apply this new policy to a "single geographical area"
meaning across jurisdictional boundaries. This will greatly reduce, or dilute,
neighborhood involvement and comment because multiple applications would be
heard together in a consolidated permit process.
3. Cities and communities were not consulted about these changes, nor were the
changes even the subject of the original bill which was presented as a rate bill applicable
to locally regulated utilities. There needs to be a full discussion with the industry about
these changes before cities can agree to them. The policy discussion is needed to
determine the proper balance between wireless deployment and neighborhood impact
mitigation. The current bill would promote deployment at the expense of
neighborhood quality. An appropriate solution should promote deployment and
preserve neighborhood quality.
4. The FCC is in the process of rule -making for implementation of a 2012 federal act
that sought to remove impediments to co -location of wireless facilities. When the FCC
implements its new rules, it is almost certain that local governments will have to change
regulatory requirements for applications for siting wireless antenna facilities.
Therefore, this bill is premature.
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