Bill Text: MI SB0637 | 2017-2018 | 99th Legislature | Engrossed
Bill Title: Communications; telecommunications; permits, fees, right-of-way use, and other regulation of wireless service providers; standardize. Creates new act.
Spectrum: Partisan Bill (Republican 1-0)
Status: (Passed) 2018-12-13 - Assigned Pa 0365'18 With Immediate Effect [SB0637 Detail]
Download: Michigan-2017-SB0637-Engrossed.html
SB-0637, As Passed Senate, March 15, 2018
SUBSTITUTE FOR
SENATE BILL NO. 637
A bill to provide for the regulation by state or local
government authorities and municipally owned electric utilities of
the activities of wireless infrastructure providers and wireless
services providers and of wireless facilities, wireless support
structures, and utility poles; to regulate rates and fees
concerning wireless facilities, wireless support structures,
communications service provider pole attachments, and utility poles
charged by state or local government authorities and municipally
owned electric utilities; to provide for collocation of wireless
facilities and of communications service provider pole attachments;
to provide for use of public rights-of-way; to regulate certain
permitting processes and zoning reviews; to prohibit certain
commercially discriminatory actions by state or local government
authorities and municipally owned electric utilities; to prohibit
state and local government authorities from entering into exclusive
arrangements with any person for the right to attach to certain
utility poles; to authorize indemnification and insurance
requirements; to authorize certain bonding requirements; and to
provide for charges for electricity to operate small cell wireless
facilities.
THE PEOPLE OF THE STATE OF MICHIGAN ENACT:
Sec. 1. (1) This act shall be known and may be cited as the
"small wireless communications facilities deployment act".
(2) The purpose of the act is to do all of the following:
(a) Increase investment in wireless networks that will benefit
the citizens of this state by providing better access to emergency
services, advanced technology, and information.
(b) Increase investment in wireless networks that will enhance
the competitiveness of this state in the global economy.
(c) Encourage the deployment of advanced wireless services by
streamlining the process for the permitting, construction,
modification, maintenance, and operation of wireless facilities in
the public rights-of-way.
(d) Allow wireless services providers and wireless
infrastructure providers access to the public rights-of-way and the
ability to attach to poles and structures in the public rights-of-
way to enhance their networks and provide next generation services.
(e) Ensure the reasonable and fair control and management of
public rights-of-way by governmental authorities within this state.
(f) Address the timely design, engineering, permitting,
construction, modification, maintenance, and operation of wireless
facilities as matters of statewide concern and interest.
(g) Provide for the management of public rights-of-way in a
safe and reliable manner that does all of the following:
(i) Supports new technology.
(ii) Avoids interference with right-of-way use by existing
public utilities and cable communications providers.
(iii) Allows for a level playing field for competitive
communications service providers.
(iv) Protects public health, safety, and welfare.
(h) Increase the connectivity for autonomous and connected
vehicles through the deployment of small cell wireless facilities
with full access and compatibility for connected and autonomous
vehicles as determined and approved by the state transportation
department, county road commissions, and authorities.
(i) Prioritize, as provided in this act, the use of existing
utility poles and wireless support structures for collocation over
the installation of new utility poles or wireless support
structures.
Sec. 3. As used in this act:
(a) "Affiliated transmission company" means that term as
defined in section 2 of the electric transmission line
certification act, 1995 PA 30, MCL 460.562.
(b) "Antenna" means communications equipment that transmits or
receives electromagnetic radio frequency signals used in the
provision of wireless services.
(c) "Applicable codes" means uniform building, fire,
electrical, plumbing, or mechanical codes adopted under the Stille-
DeRossett-Hale single state construction code act, 1972 PA 230, MCL
125.1501 to 125.1531, or adopted by the United States Occupational
Safety and Health Administration or by a state or national code
organization, including, but not limited to, the "National
Electrical Safety Code" published by the Institute of Electrical
and Electronics Engineers.
(d) "Applicant" means a wireless provider that submits an
application described in this act.
(e) "Attaching entity" means a public or private party or
entity, other than the municipally owned electric utility, that,
pursuant to an agreement with the municipally owned electric
utility, places a wire or cable attachment on a nonauthority pole
or related infrastructure within the communication space. Attaching
entity includes, but is not limited to, both of the following:
(i) A telecommunication provider as that term is defined in
section 102 of the metropolitan extension telecommunications
rights-of-way oversight act, 2002 PA 48, MCL 484.3102.
(ii) A video service provider as that term is defined in the
uniform video services local franchise act, 2006 PA 480, MCL
484.3301.
(f) "Authority", unless the context implies otherwise, means
this state, or a county, township, city, village, district, or
subdivision thereof if authorized by law to make legislative,
quasi-judicial, or administrative decisions concerning an
application described in this act. Authority does not include any
of the following:
(i) A municipally owned electric utility.
(ii) An investor-owned utility whose rates are regulated by
the MPSC.
(iii) A state court having jurisdiction over an authority.
(g) "Authority pole" means a utility pole owned or operated by
an authority and located in the ROW.
Sec. 5. As used in this act:
(a) "Colocate" means to install, mount, maintain, modify,
operate, or replace wireless facilities on or adjacent to a
wireless support structure or utility pole. "Collocation" has a
corresponding meaning. Colocate does not include make-ready work or
the installation of a new utility pole or new wireless support
structure.
(b) "Communications facility" means the set of equipment and
network components, including wires, cables, antennas, and
associated facilities, used by a communications service provider to
provide communications service.
(c) "Communication space" means that term as defined in the
"National Electric Safety Code" published by the Institute of
Electrical and Electronics Engineers.
(d) "Communications service" means service provided over a
communications facility, including cable service as defined in 47
USC 522, information service as defined in 47 USC 153,
telecommunications service as defined in 47 USC 153, or wireless
service.
(e) "Communications service provider" means any entity that
provides communications services.
(f) "FCC" means the Federal Communications Commission.
(g) "Fee" means a nonrecurring charge for services.
(h) "Historic district" means a historic district established
under section 3 of the local historic districts act, 1970 PA 169,
MCL 399.203, or a group of buildings, properties, or sites that are
either listed in the National Register of Historic Places or
formally determined eligible for listing by the Keeper of the
National Register, the individual who has been delegated the
authority by the 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
codified at 47 CFR Part 1, appendix C.
(i) "Independent transmission company" means that term as
defined in section 2 of the electric transmission line
certification act, 1995 PA 30, MCL 460.562.
Sec. 7. As used in this act:
(a) "Law" means federal, state, or local law, including common
law, a statute, a rule, a regulation, an order, or an ordinance.
(b) "Make-ready work" means work necessary to enable an
authority pole or utility pole to support collocation, which may
include modification or replacement of utility poles or
modification of lines.
(c) "Micro wireless facility" means a small cell wireless
facility that is not more than 24 inches in length, 15 inches in
width, and 12 inches in height and that does not have an exterior
antenna more than 11 inches in length.
(d) "MPSC" means the Michigan Public Service Commission
created in section 1 or 1939 PA 3, MCL 460.1.
(e) "Municipally owned electric utility" means a system owned
by a municipality or combination of municipalities to furnish power
or light and includes a cooperative electric utility that, on or
after the effective date of this act, acquired all or substantially
all of the assets of a municipal electric utility, when applying
this act to the former territory of the municipal electric utility.
(f) "Nonauthority pole" means a utility pole used for electric
delivery service and controlled by the governing body of a
municipally owned electric utility.
(g) "Person" means an individual, corporation, limited
liability company, partnership, association, trust, or other entity
or organization, including an authority.
(h) "Public right-of-way" or "ROW" means the area on, below,
or above a public roadway, highway, street, alley, bridge,
sidewalk, or utility easement dedicated for compatible uses. Public
right-of-way does not include any of the following:
(i) A private right-of-way.
(ii) A limited access highway.
(iii) Land owned or controlled by a railroad as defined in
section 109 of the railroad code of 1993, 1993 PA 354, MCL 462.109.
(iv) Railroad infrastructure.
(i) "Rate" means a recurring charge.
(j) "Small cell wireless facility" means a wireless facility
that meets both of the following requirements:
(i) Each antenna is located inside an enclosure of not 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 would
fit within an imaginary enclosure of not more than 6 cubic feet.
(ii) All other wireless equipment associated with the facility
is cumulatively not more than 25 cubic feet in volume. The
following types of associated ancillary equipment are not included
in the calculation of equipment volume: electric meters,
concealment elements, telecommunications demarcation boxes,
grounding equipment, power transfer switches, cut-off switches, and
vertical cable runs for the connection of power and other services.
Sec 9. As used in this act:
(a) "Utility pole" means a pole or similar structure that is
or may be used in whole or in part for cable or wireline
communications service, electric distribution, lighting, traffic
control, signage, or a similar function, or a pole or similar
structure that meets the height requirements in section 13(5) and
is designed to support small cell wireless facilities. Utility pole
does not include a sign pole less than 15 feet in height above
ground.
(b) "Wireless facility" means equipment at a fixed location
that enables the provision of wireless services between user
equipment and a communications network, including, but not limited
to, radio transceivers, antennas, coaxial or fiber-optic cable,
regular and backup power supplies, and comparable equipment,
regardless of technological configuration. Wireless facility
includes a small cell wireless facility. Wireless facility does not
include any of the following:
(i) The structure or improvements on, under, or within which
Senate Bill No. 637 as amended March 14, 2018
the equipment is colocated.
(ii) A wireline backhaul facility.
(iii) Coaxial or fiber-optic cable between utility poles or
wireless support structures or that otherwise is not immediately
adjacent to or directly associated with a particular antenna.
(c) "Wireless infrastructure provider" means any person,
including a person authorized to provide telecommunications
services in this state but not including a wireless <<services>>
provider, that builds or installs wireless communication
transmission equipment, wireless facilities, or wireless support
structures and who, when filing an application with an authority
under this act, provides written authorization to perform the work
on behalf of a wireless services provider.
(d) "Wireless provider" means a wireless infrastructure
provider or a wireless services provider. Wireless provider does
not include an investor-owned utility whose rates are regulated by
the MPSC.
(e) "Wireless services" means any services, provided using
licensed or unlicensed spectrum, including the use of Wi-Fi,
whether at a fixed location or mobile.
(f) "Wireless services provider" means a person that provides
wireless services.
(g) "Wireless support structure" means a freestanding
structure designed to support or capable of supporting small cell
wireless facilities. Wireless support structure does not include a
utility pole.
(h) "Wireline backhaul facility" means a facility used to
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transport services by wire or fiber-optic cable from a wireless
facility to a network.
Sec. 11. (1) Except as provided in this act, an authority
shall not prohibit, regulate, or charge for the collocation of
small cell wireless facilities.
(2) The approval of a small cell wireless facility under this
act authorizes only the collocation of a small cell wireless
facility and does not authorize either of the following:
(a) The provision of any particular services.
(b) The installation, placement, modification, maintenance, or
operation of a wireline backhaul facility in the ROW.
Sec. 13. (1) This section applies only to activities of a
wireless provider within the public right-of-way for the deployment
of small cell wireless facilities and associated new or modified
utility poles.<<
>>
(2) An authority shall not enter into an exclusive arrangement
with any person for use of the ROW for the construction, operation,
or maintenance of utility poles or the collocation of small cell
wireless facilities.
(3) An authority shall not charge a wireless provider a rate
for each utility pole or wireless support structure in the ROW in
the authority's geographic jurisdiction on which the wireless
provider has colocated a small cell wireless facility that exceeds
the following:
(a) $20.00 annually, unless subdivision (b) applies.
(b) $125.00 annually, if the utility pole or wireless support
structure was erected by or on behalf of the wireless provider on
or after the effective date of this act. This subdivision does not
apply to the replacement of a utility pole that was not designed to
support small cell wireless facilities.
Every 5 years after the effective date of this act, the maximum
rates then authorized under subdivisions (a) and (b) are increased
by 10% and rounded to the nearest dollar.
(4) If, on the effective date of this act, an authority has a
rate or fee in an ordinance or in an agreement with a wireless
provider for the use of the ROW to colocate a small cell wireless
facility or to construct, install, mount, maintain, modify,
operate, or replace a utility pole, and the rate or fee does not
comply with subsection (3), the authority shall, not later than 90
days after the effective date of this act, revise the rate or fee
to comply with subsection (3). Both of the following apply:
(a) For installations of utility poles designed to support
small cell wireless facilities or collocations of small cell
wireless facilities installed and operational in the ROW before the
effective date of this act, the fees, rates, and terms of an
agreement or ordinance for use of the ROW remain in effect subject
to the termination provisions contained in the agreement or
ordinance.
(b) For installations of utility poles designed to support
small cell wireless facilities or collocations of small cell
wireless facilities installed and operational in the ROW after the
effective date of this act, the fees, rates, and terms of an
agreement or ordinance for use of the ROW shall comply with
subsection (3).
(5) A wireless provider may, as a permitted use not subject to
zoning review or approval, except that an application for a
permitted use is still subject to approval by the authority under
section 15, colocate small cell wireless facilities and construct,
maintain, modify, operate, or replace utility poles in, along,
across, upon, and under the ROW. Such structures and facilities
shall be constructed and maintained so as not to obstruct or hinder
the usual travel or public safety on the ROW or obstruct the legal
use of the authority's ROW or uses of the ROW by other utilities
and communications service providers. Both of the following apply:
(a) A utility pole in the ROW installed or modified on or
after the effective date of this act shall not exceed 40 feet above
ground level, unless a taller height is agreed to by the authority.
(b) A small cell wireless facility in the ROW installed or
modified after the effective date of this act shall not extend more
than 5 feet above a utility pole or wireless support structure on
which the small cell wireless facility is colocated.
(6) Subject to this section, section 17, and applicable zoning
regulations, a wireless provider may colocate a small cell wireless
facility or install, construct, maintain, modify, operate, or
replace a utility pole that exceeds the height limits under
subsection (5), or a wireless support structure, in, along, across,
upon, and under the ROW.
(7) A wireless provider shall comply with reasonable and
nondiscriminatory requirements otherwise provided that prohibit
Senate Bill No. 637 as amended March 14, 2018
communications service providers from installing structures on or
above ground in the ROW in an area designated solely for
underground or buried cable and utility facilities if all of the
following apply:
(a) The authority has required all cable and utility
facilities<<, other than authority poles, along with any attachments,
or poles used for street lights, traffic signals, or other attachments necessary for public safety,>> to be placed
underground by a date that is not less than 90 days before the
submission of the application.
(b) The authority does not prohibit the replacement of
authority poles by a wireless provider in the designated area.
(c) The authority allows wireless providers to apply for a
waiver of the undergrounding requirements for the placement of a
new utility pole to support small cell wireless facilities, and the
waiver applications are addressed in a nondiscriminatory manner.
(8) Subject to section 15(2), and except for facilities
excluded from evaluation for effects on historic properties under
47 CFR 1.1307(a)(4)(ii), an authority may adopt written, objective
requirements for reasonable, technically feasible,
nondiscriminatory, and technologically neutral design or
concealment measures in a historic district, downtown district, or
residential zoning district. Any such requirement shall not have
the effect of prohibiting any wireless provider's technology. Any
such design or concealment measures are not considered a part of
the small wireless facility for purposes of the size restrictions
in the definition of small wireless facility in section 7.
(9) An authority's administration and regulation of activities
of wireless providers in the ROW shall be reasonable,
Senate Bill No. 637 as amended March 14, 2018
nondiscriminatory, and competitively neutral and shall comply with
applicable law.
(10) An authority may require a wireless provider to repair
all damage to the ROW directly caused by the activities of the
wireless provider while occupying, constructing, installing,
mounting, maintaining, modifying, operating, or replacing small
cell wireless facilities, utility poles, or wireless support
structures in the ROW and to return the ROW to its functional
equivalent before the damage. If the wireless provider fails to
make the repairs required by the authority within 60 days after
written notice, the authority may make those repairs and charge the
wireless provider the reasonable, documented cost of the repairs.
Sec. 15. (1) This section applies to activities of a wireless
provider within the public right-of-way.
(2) Except as otherwise provided in subsection <<(5)>>, an
authority may require a permit to colocate a small cell wireless
facility or install, modify, or replace a utility pole on which a
small cell wireless facility will be colocated if the permit is of
general applicability. The processing of an application for such a
permit is subject to all of the following:
(a) The authority shall not directly or indirectly require an
applicant to perform services unrelated to the collocation for
which a permit is sought, such as reserving fiber, conduit, or pole
space for the authority or making other in-kind contributions to
the authority.
(b) An authority may require an applicant to provide
information and documentation to enable the authority to make a
Senate Bill No. 637 as amended March 14, 2018
decision with regard to the criteria in subdivision (i). An
authority may also require a certificate of compliance with FCC
rules related to radio frequency emissions from a small cell
wireless facility.
(c) If the proposed activity will occur within a shared ROW or
an ROW that overlaps another ROW, a wireless provider shall
provide, to each affected authority to which an application for the
activity is not << >>submitted, notification of the
wireless provider's intent to locate a small cell wireless facility
within the ROW. An authority may require proof of other necessary
permits, permit applications, or easements to ensure all necessary
permissions for the proposed activity are obtained.
(d) Within 25 days after receiving an application, an
authority shall notify the applicant in writing whether the
application is complete. If the application is incomplete, the
notice shall clearly and specifically delineate all missing
documents or information. The notice tolls the running of the time
for approving or denying an application under subdivision (h).
(e) The running of time period tolled under subdivision (d)
resumes when the applicant makes a supplemental submission in
response to the authority's notice of incompleteness. If a
supplemental submission is inadequate, the authority shall notify
the applicant in writing not later than 10 days after receiving the
supplemental submission that the supplemental submission did not
provide the information identified in the original notice
delineating missing documents or information. The time period may
be tolled in the case of second or subsequent notices under the
procedures identified in subdivision (d). Second or subsequent
notices of incompleteness may not specify missing documents or
information that was not delineated in the original notice of
incompleteness.
(f) The authority may require an applicant to include an
attestation that the small cell wireless facilities will be
operational for use by a wireless services provider within 1 year
after the permit issuance date, unless the authority and the
applicant agree to extend this period or delay is caused by lack of
commercial power or communications transport facilities to the
site.
(g) The application shall be processed on a nondiscriminatory
basis.
(h) The authority shall approve or deny the application and
notify the applicant in writing within the following period of time
after the application is received:
(i) For an application for the collocation of small cell
wireless facilities on a utility pole, 60 days, subject to the
following adjustments:
(A) Add 15 days if an application from another wireless
provider was received within 1 week of the application in question.
(B) Add 15 days if, before the otherwise applicable 60-day or
75-day time period under this subparagraph elapses, the authority
notifies the applicant in writing that an extension is needed and
the reasons for the extension.
(ii) For an application for a new or replacement utility pole
that meets the height requirements of section 13(5)(a) and
associated small cell facility, 90 days, subject to the following
adjustments:
(A) Add 15 days if an application from another wireless
provider was received within 1 week of the application in question.
(B) Add 15 days if, before the otherwise applicable 90-day or
105-day time period under this subparagraph elapses, the authority
notifies the applicant in writing that an extension is needed and
the reasons for the extension.
If the authority fails to comply with this subdivision, the
completed application is considered to be approved subject to the
condition that the applicant provide the authority not less than 7
days' advance written notice that the applicant will be proceeding
with the work pursuant to this automatic approval.
(i) An authority may deny a completed application for a
proposed collocation of a small cell wireless facility or
installation, modification, or replacement of a utility pole that
meets the height requirements in section 13(5)(a) only if the
proposed activity would do any of the following:
(i) Materially interfere with the safe operation of traffic
control equipment.
(ii) Materially interfere with sight lines or clear zones for
transportation or pedestrians.
(iii) Materially interfere with compliance with the Americans
with Disabilities Act of 1990, Public Law 101-336, or similar
federal, state, or local standards regarding pedestrian access or
movement.
(iv) Materially interfere with maintenance or full
unobstructed use of public utility infrastructure under the
jurisdiction of an authority.
(v) With respect to drainage infrastructure under the
jurisdiction of an authority, either of the following:
(A) Materially interfere with maintenance or full unobstructed
use of the drainage infrastructure as it was originally designed.
(B) Not be located a reasonable distance from the drainage
infrastructure to ensure maintenance under the drain code of 1956,
1956 PA 40, MCL 280.1 to 280.630, and access to the drainage
infrastructure.
(vi) Fail to comply with reasonable, nondiscriminatory,
written spacing requirements of general applicability adopted by
ordinance or otherwise that apply to the location of ground-mounted
equipment and new utility poles and that do not prevent a wireless
provider from serving any location.
(vii) Fail to comply with applicable codes.
(viii) Fail to comply with section 13(7) or (8).
(ix) Fail to meet reasonable, objective, written stealth or
concealment criteria for small cell wireless facilities applicable
in a historic district or other designated area, as specified in an
ordinance or otherwise and nondiscriminatorily applied to all other
occupants of the ROW, including electric utilities, incumbent or
competitive local exchange carriers, fiber providers, cable
television operators, and the authority.
(j) If the completed application is denied, the notice under
subdivision (h) shall explain the reasons for the denial and, if
applicable, cite the specific provisions of applicable codes on
which the denial is based. The applicant may cure the deficiencies
identified by the authority and resubmit the application within 30
days after the denial without paying an additional application fee.
The authority shall approve or deny the revised application within
30 days. The authority shall limit its review of the revised
application to the deficiencies cited in the denial.
(k) An applicant may at the applicant's discretion file a
consolidated application and receive a single permit for the
collocation of up to 20 small cell wireless facilities within the
jurisdiction of a single authority or, in the case of the state
transportation department, a single designated control section as
identified on the department's website. The small cell wireless
facilities within a consolidated application must consist of
substantially similar equipment and be placed on similar types of
utility poles or wireless support structures. An authority may
approve a permit for 1 or more small cell wireless facilities
included in a consolidated application and deny a permit for the
remaining small cell facilities. An authority shall not deny a
permit for a small cell wireless facility included in a
consolidated application on the basis that a permit is being denied
for 1 or more other small cell facilities included in that
application.
(l) Within 1 year after a permit is granted, a wireless
provider shall complete collocation of a small cell wireless
facility that is to be operational for use by a wireless services
provider, unless the authority and the applicant agree to extend
this period or the delay is caused by the lack of commercial power
or communications facilities at the site. If the wireless provider
fails to complete the collocation within the applicable time, the
permit is void, and the wireless provider may reapply for a permit.
A permittee may voluntarily request that a permit be terminated.
(m) Approval of an application authorizes the wireless
provider to do both of the following:
(i) Undertake the installation or collocation.
(ii) Subject to relocation requirements that apply to
similarly situated users of the ROW and the applicant's right to
terminate at any time, maintain the small cell wireless facilities
and any associated utility poles or wireless support structures
covered by the permit for so long as the site is in use and in
compliance with the initial permit under this act.
(n) An authority shall not institute a moratorium on filing,
receiving, or processing applications or issuing permits for the
collocation of small cell wireless facilities or the installation,
modification, or replacement of utility poles on which small cell
wireless facilities will be colocated.
(o) The authority and an applicant may extend a time period
under this subsection by mutual agreement.
(3) An application fee for a permit under subsection (2) shall
not exceed the lesser of the following:
(a) $200.00 for each small cell wireless facility alone.
(b) $300.00 for each small cell wireless facility and a new
utility pole to which it will be attached.
Every 5 years after the effective date of this act, the maximum
fees then authorized under this subsection are increased by 10% and
rounded to the nearest dollar.
(4) An authority may revoke a permit, upon 30 days' notice and
an opportunity to cure, if the permitted small cell wireless
facilities and any associated utility pole fail to meet the
requirements of subsection (2)(i).
(5) An authority shall not require a permit or any other
approval or require fees or rates for any of the following:
(a) The replacement of a small cell wireless facility with a
small cell wireless facility that is not larger or heavier, in
compliance with applicable codes.
(b) Routine maintenance of a small cell wireless facility,
utility pole, or wireless support structure.
(c) The installation, placement, maintenance, operation, or
replacement of a micro wireless facility that is suspended on
cables strung between utility poles or wireless support structures
in compliance with applicable codes.
(6) An authority that receives an application to place a new
utility pole may propose an alternate location within the ROW or on
property or structures owned or controlled by an authority within
75 feet of the proposed location to either place the new utility
pole or colocate on an existing structure. The applicant shall use
the alternate location if, as determined by the applicant, the
applicant has the right to do so on reasonable terms and conditions
and the alternate location does not impose unreasonable technical
limits or significant additional costs.
(7) Before discontinuing its use of a small cell wireless
facility, utility pole, or wireless support structure, a wireless
provider shall notify an authority in writing. The notice shall
specify when and how the wireless provider intends to remove the
small cell wireless facility, utility pole, or wireless support
structure. The authority may impose reasonable and
nondiscriminatory requirements and specifications for the wireless
provider to return the property to its preinstallation condition.
If the wireless provider does not complete the removal within 45
days after the discontinuance of use, the authority may complete
the removal and assess the costs of removal against the wireless
provider. A permit under this section for a small cell wireless
facility expires upon removal of the small cell wireless facility.
(8) This section does not prohibit an authority from requiring
a permit for work that will unreasonably affect traffic patterns or
obstruct vehicular or pedestrian traffic in the ROW.
Sec. 17. (1) The activities set forth in section 15(5) are
exempt from zoning review. Subsections (2) to (4) apply to zoning
reviews for the following activities that are subject to zoning
review and approval, that are not a permitted use under section
13(5), and that take place within or outside the public right-of-
way:
(a) The modification of existing or installation of new small
cell wireless facilities.
(b) The modification of existing or installation of new
wireless support structures used for such small cell wireless
facilities.
(2) The processing of an application for a zoning approval is
subject to all of the following requirements:
(a) Within 30 days after receiving an application under this
section, an authority shall notify the applicant in writing whether
the application is complete. If the application is incomplete, the
notice shall clearly and specifically delineate all missing
documents or information. The notice tolls the running of the 30-
day period.
(b) The running of the time period tolled under subdivision
(a) resumes when the applicant makes a supplemental submission in
response to the authority's notice of incompleteness. If a
supplemental submission is inadequate, the authority shall notify
the applicant not later than 10 days after receiving the
supplemental submission that the supplemental submission did not
provide the information identified in the original notice
delineating missing documents or information. The time period may
be tolled in the case of second or subsequent notices under the
procedures identified in subdivision (a). Second or subsequent
notices of incompleteness may not specify missing documents or
information that was not delineated in the original notice of
incompleteness.
(c) The application shall be processed on a nondiscriminatory
basis.
(d) The authority shall approve or deny the application and
notify the applicant in writing within 90 days after an application
for a modification of a wireless support structure or installation
of a small cell wireless facility is received or 150 days after an
application for a new wireless support structure is received. The
time period for approval may be extended by mutual agreement
between the applicant and authority. If the authority fails to
comply with this subdivision, the application is considered to be
approved subject to the condition that the applicant provide the
authority not less than 15 days' advance written notice that the
applicant will be proceeding with the work pursuant to this
automatic approval.
(e) An authority shall not deny an application unless all of
the following apply:
(i) The denial is supported by substantial evidence contained
in a written record that is publicly released contemporaneously.
(ii) There is a reasonable basis for the denial.
(iii) The denial would not discriminate against the applicant
with respect to the placement of the facilities of other wireless
providers.
(3) An authority's review of an application for a zoning
approval is subject to all of the following requirements:
(a) An applicant's business decision on the type and location
of small cell wireless facilities, wireless support structures, or
technology to be used is presumed to be reasonable. This
presumption does not apply with respect to the height of wireless
facilities or wireless support structures. An authority may
consider the height of such structures in its zoning review, but
shall not discriminate between the applicant and other
communications service providers.
(b) An authority shall not evaluate or require an applicant to
submit information about an applicant's business decisions with
respect to any of the following:
(i) The need for a wireless support structure or small cell
wireless facilities.
(ii) The applicant's service, customer demand for the service,
or the quality of service.
(c) Any requirements regarding the appearance of facilities,
including those relating to materials used or arranging, screening,
or landscaping, shall be reasonable.
(d) Any spacing, setback, or fall zone requirement shall be
substantially similar to a spacing, setback, or fall zone
requirement imposed on other types of commercial structures of a
similar height.
(4) An application fee for a zoning approval shall not exceed
the following:
(a) $1,000.00 for a new wireless support structure or
modification of an existing wireless support structure.
(b) $500.00 for a new small cell wireless facility or
modification of an existing small cell wireless facility.
(5) Within 1 year after a zoning approval is granted, a
wireless provider shall commence construction of the approved
structure or facilities that are to be operational for use by a
wireless services provider, unless the authority and the applicant
agree to extend this period or the delay is caused by a lack of
commercial power or communications facilities at the site. If the
wireless provider fails to commence the construction of the
approved structure or facilities within the time required pursuant
to section 15(2)(l), the zoning approval is void, and the wireless
provider may reapply for a zoning approval. However, the wireless
provider may voluntarily request that the zoning approval be
terminated.
(6) An authority shall not institute a moratorium on either of
the following:
(a) Filing, receiving, or processing applications for zoning
approval.
(b) Issuing approvals for installations that are not a
permitted use.
(7) An authority may revoke a zoning approval, upon 30 days'
notice and an opportunity to cure, if the permitted small cell
wireless facilities and any associated wireless support structure
fail to meet the requirements of the approval, applicable codes, or
applicable zoning requirements.
Sec. 19. (1) An authority shall not enter into an exclusive
arrangement with any person for the right to attach to authority
poles. A person who purchases, controls, or otherwise acquires an
authority pole is subject to the requirements of this section.
(2) The rate for the collocation of small cell wireless
facilities on authority poles shall be nondiscriminatory regardless
of the services provided by the colocating person. The rate shall
not exceed $30.00 per year per authority pole. Every 5 years after
the effective date of this act, the maximum rate then authorized
under this subsection is increased by 10% and rounded to the
nearest dollar. This rate for the collocation of small cell
wireless facilities on authority poles is in addition to any rate
charged for the use of the ROW under section 13.
(3) If, on the effective date of this act, an authority has a
rate, fee, or other term in an ordinance or in an agreement with a
wireless provider that does not comply with this section, the
authority shall, not later than 90 days after the effective date of
this act, revise the rate, fee, or term to comply with this
section. Both of the following apply:
(a) An ordinance or an agreement between an authority and a
wireless provider that is in effect on the effective date of this
act and that relates to the collocation on authority poles of small
cell wireless facilities installed and operational before the
effective date of this act remains in effect as it relates to those
collocations, subject to termination provisions in the ordinance or
agreement.
(b) The rates, fees, and terms established under this section
apply to the collocation on authority poles of small cell wireless
facilities that are installed and operational after the rates,
fees, and terms take effect.
(4) Within 90 days after receiving the first request to
colocate a small cell wireless facility on an authority pole, the
authority shall make available, through ordinance or otherwise, the
rates, fees, and terms for the collocation of small cell wireless
facilities on the authority poles. The rates, fees, and terms shall
comply with all of the following:
(a) The rates, fees, and terms shall be nondiscriminatory,
competitively neutral, and commercially reasonable and shall comply
with this act.
(b) The authority shall provide a good-faith estimate for any
make-ready work within 60 days after receipt of a complete
application. Make-ready work shall be completed within 60 days of
written acceptance of the good-faith estimate by the applicant.
(c) The person owning or controlling the authority pole shall
not require more make-ready work than required to comply with law
or industry standards.
(d) Fees for make-ready work shall not do any of the
following:
(i) Include costs related to preexisting or prior damage or
noncompliance unless the damage or noncompliance was caused by the
applicant.
(ii) Include any unreasonable consultant fees or expenses.
(iii) Exceed actual costs imposed on a nondiscriminatory
basis.
(5) This section does not require an authority to install or
maintain any specific authority pole or to continue to install or
maintain authority poles in any location if the authority makes a
nondiscriminatory decision to eliminate aboveground poles of a
particular type generally, such as electric utility poles, in a
designated area of its geographic jurisdiction. For authority poles
with colocated small cell wireless facilities in place when an
authority makes a decision to eliminate aboveground poles of a
particular type, the authority shall do 1 of the following:
(a) Continue to maintain the authority pole.
(b) Install and maintain a reasonable alternative pole or
wireless support structure for the collocation of the small cell
wireless facility.
(c) Offer to sell the pole to the wireless provider at a
reasonable cost.
(d) Allow the wireless provider to install its own utility
pole so it can maintain service from that location.
(e) Proceed as provided by an agreement between the authority
and the wireless provider.
Sec. 21. (1) The governing body of a municipally owned
electric utility shall not enter into an exclusive arrangement with
any person for the right to attach to nonauthority poles.
(2) The governing body of a municipally owned electric utility
shall allow the collocation of small cell wireless facilities on
nonauthority poles on a nondiscriminatory basis.
(3) The collocation of small cell wireless facilities on
nonauthority poles by a wireless provider shall comply with the
applicable, nondiscriminatory safety and reliability standards
adopted by the governing body of a municipally owned electric
utility and with the "National Electric Safety Code" published by
the Institute of Electrical and Electronics Engineers. The
governing body of a municipally owned electric utility may require
a wireless provider to execute an agreement for nonauthority pole
attachments if such an agreement is required of all other
nonauthority pole attachments.
(4) The governing body of a municipally owned electric utility
shall adopt a process for requests by wireless providers to
colocate small cell wireless facilities on nonauthority poles that
is nondiscriminatory and competitively neutral. If such a process
has not been adopted within 90 days after the effective date of
this act, the application process in section 15 applies to such
requests. The governing body of a municipally owned electric
utility shall not impose a moratorium on the processing of
nonauthority pole collocation requests, or require a wireless
provider to perform any service not directly related to the
collocation. The governing body of a municipally owned electric
utility may charge a fee not to exceed $100.00 per nonauthority
pole for processing the request. The governing body of a
municipally owned electric utility may charge an additional fee not
to exceed $100.00 per nonauthority pole for processing the request,
if a modification or maintenance of the collocation requires an
engineering analysis. Every 5 years after the effective date of
this act, the maximum fees then authorized under this subsection
are increased by 10% and rounded to the nearest dollar.
(5) The rate for a wireless provider to colocate on a
nonauthority pole in the ROW shall not exceed $50.00 annually per
nonauthority pole. Every 5 years after the effective date of this
act, the maximum rate then authorized under this subsection is
increased by 10% and rounded to the nearest dollar.
(6) A wireless provider shall comply with the process for
make-ready work that the governing body of a municipally owned
electric utility has adopted for other parties under the same or
similar circumstances that attach facilities to nonauthority poles.
If such a process has not been adopted, the wireless provider and
the governing body of a municipally owned electric utility shall
comply with the process for make-ready work under 47 USC 224 and
implementing orders and regulations. A good-faith estimate
established by the governing body of a municipally owned electric
utility for any make-ready work for nonauthority poles shall
include pole replacement if necessary. All make-ready costs shall
be based on actual costs, with detailed documentation provided.
(7) If a wireless provider is required to relocate small cell
wireless facilities colocated on a nonauthority pole, it shall do
so in accordance with the nondiscriminatory terms adopted by the
governing body of a municipally owned electric utility.
Sec. 23. (1) An attaching entity, and all contractors or
parties under its control, shall comply with reliability, safety,
and engineering standards adopted by the governing body of a
municipally owned electric utility, including, but not limited to,
the following:
(a) Applicable engineering and safety standards governing
installation, maintenance, and operation of facilities and the
performance of work in or around the municipally owned electric
utility nonauthority poles and facilities.
(b) The "National Electric Safety Code" published by the
Institute of Electrical and Electronics Engineers.
(c) Regulations of the United States Occupational Safety and
Health Administration.
(d) Other reasonable safety and engineering requirements to
which municipally owned electric utility facilities are subject by
law.
(2) The governing body of a municipally owned electric utility
may require an attaching entity to execute an agreement for wire or
cable attachments to nonauthority poles or related infrastructure.
(3) The governing body of a municipally owned electric utility
shall not charge an attaching entity a rate for wire or cable pole
attachments within the communication space on a nonauthority pole
greater than the maximum allowable rate pursuant to 47 USC 224(d)
and (e) as established in Federal Communications Commission Order
on Reconsideration 15-151.
(4) Subject to section 27, an attaching entity may commence a
civil action for injunctive relief for a violation of this section.
The attaching entity shall not file an action under this subsection
unless the attaching entity has first provided the municipally
owned electric utility with a written notice of the intent to sue.
Within 30 days after the municipally owned electric utility
receives written notice of intent to sue, the municipally owned
electric utility and the attaching entity shall meet and make a
good-faith attempt to determine if there is a credible basis for
the action. If the parties agree that there is a credible basis for
the action, the governing body of the municipally owned electric
utility shall take all reasonable and prudent steps necessary to
comply with the applicable requirements of this section within 90
days after the meeting.
Sec. 25. An authority does not have jurisdiction or authority
over the design, engineering, construction, installation, or
operation of a small cell wireless facility located in an interior
structure or upon a campus of an institution of higher education
including any stadiums or athletic facilities associated with the
institution of higher education, a professional stadium, or a
professional athletic facility, other than to enforce applicable
codes. This act does not authorize this state or any other
Senate Bill No. 637 as amended March 14, 2018
authority to require wireless facility deployment or to regulate
wireless services.
Sec. 27. The circuit court has jurisdiction to determine all
disputes arising under this act. Venue lies in the judicial circuit
where the authority or municipally owned electric utility is
located. In addition to its right to appeal to the circuit court,
an applicant may elect, at its sole discretion, to appeal a
determination under the act to an authority, if the authority has
an appeal process to render a decision expeditiously.
Sec. 29. As part of the permit process under section 15<<, a zoning
approval process under section 17,>> or a
request process under section 21, an authority or the governing
body of a municipally owned electric utility may require a wireless
provider to do the following with respect to a small cell wireless
facility, a wireless support structure, or a utility pole:
(a) Defend, indemnify, and hold harmless the authority or the
governing body of a municipally owned electric utility and its
officers, agents, and employees against any claims, demands,
damages, lawsuits, judgments, costs, liens, losses, expenses, and
attorney fees resulting from the installation, construction,
repair, replacement, operation, or maintenance of any wireless
facilities, wireless support structures, or utility poles to the
extent caused by the applicant, its contractors, its
subcontractors, and the officers, employees, or agents of any of
these. A wireless provider has no obligation to defend, indemnify,
or hold harmless an authority or the governing body of a
municipally owned electric utility, or the officers, agents, or
employees of the authority or governing body against any
liabilities or losses due to or caused by the sole negligence of
the authority or the governing body of a municipally owned electric
utility or its officers, agents, or employees.
(b) Obtain insurance naming the authority or the governing
body of a municipally owned electric utility and its officers,
agents, and employees as additional insureds against any claims,
demands, damages, lawsuits, judgments, costs, liens, losses,
expenses, and attorney fees. A wireless provider may meet all or a
portion of the authority's insurance coverage and limit
requirements by self-insurance. To the extent it self-insures, a
wireless provider is not required to name additional insureds under
this section. To the extent a wireless provider elects to self-
insure, the wireless provider shall provide to the authority
evidence demonstrating, to the authority's satisfaction, the
wireless provider's financial ability to meet the authority's
insurance coverage and limit requirements.
Sec. 31. An authority may establish a fee or rate less than
the maximum specified in section 13(3), 15(3), 17(4), or 19(2),
subject to other requirements of this act.
Sec. 33. (1) As a condition of a permit described in this act,
an authority may adopt bonding requirements for small cell wireless
facilities if both of the following requirements are met:
(a) The authority imposes similar requirements in connection
with permits issued for similarly situated users of the ROW.
(b) The purpose of the bonds is 1 or more of the following:
(i) To provide for the removal of abandoned or improperly
maintained small cell wireless facilities, including those that an
authority determines should be removed to protect public health,
safety, or welfare.
(ii) To repair the ROW as provided under section 13(10).
(iii) To recoup rates or fees that have not been paid by a
wireless provider in more than 12 months, if the wireless provider
has received 60-day advance notice from the authority of the
noncompliance.
(2) An authority shall not require either of the following
under subsection (1):
(a) A cash bond, unless any of the following apply:
(i) The wireless provider has failed to obtain or maintain a
bond required under this section.
(ii) The surety has defaulted or failed to perform on a bond
given to the authority on behalf of the wireless provider.
(b) A bond in an amount exceeding $1,000.00 per small cell
wireless facility.
Sec. 35. A small cell wireless facility for which a permit is
issued shall be labeled with the name of the wireless provider,
emergency contact telephone number, and information that identifies
the small cell wireless facility and its location.
Sec. 37. A wireless provider is responsible for arranging and
paying for the electricity used to operate a small cell wireless
facility.
Sec. 39. (1) This act does not add to, replace, or supersede
any law regarding poles or conduits, similar structures, or
equipment of any type owned or controlled by an investor-owned
utility whose rates are regulated by the MPSC, an affiliated
transmission company, an independent transmission company, or,
except as provided in section 7(e), a cooperative electric utility.
(2) This act does not impose or otherwise affect any rights,
controls, or contractual obligations of an investor-owned utility
whose rates are regulated by the MPSC, an affiliated transmission
company, an independent transmission company or, except as provided
in section 7(e), a cooperative electric utility with respect to its
poles or conduits, similar structures, or equipment of any type.
(3) Except for purposes of a wireless provider obtaining a
permit to occupy a right-of-way, this act does not affect an
investor-owned utility whose rates are regulated by the MPSC.
Notwithstanding any other provision of this act, pursuant to and
consistent with section 6g of 1980 PA 470, MCL 460.6g, the MPSC has
sole jurisdiction over attachment of wireless facilities on the
poles, conduits, and similar structures or equipment of any type or
kind owned or controlled by an investor-owned utility whose rates
are regulated by the MPSC.
Enacting section 1. This act takes effect 90 days after the
date it is enacted into law.
