Wireless Communications Tower Siting Act Exposed

The Wireless Communications Tower Siting Act was passed by ALEC's Telecommunications and Information Technology Task Force at the States and Nation Policy Summit on December 9, 2006; amended July, 2007 at the 34th Annual Meeting in Philadelphia, PA; amended on December 6, 2008 at the States and Nation Policy Summit in Washington, DC; approved by the ALEC Board of Directors on January 14, 2009. According to ALEC.org, the Act was re-approved by the Board of Directors on June 29, 2015. (Accessed 3/16/2016).

ALEC Bill Text

BE IT ENACTED BY THE GENERAL ASSEMBLY OF THE STATE OF _____

Legislative Intent: These laws are enacted for the purpose of: ensuring (1) the safe and efficient integration of facilities necessary for the provision of broadband and other advanced wireless communications services throughout the community and (2) the ready availability of reliable wireless service to the public and government agencies and first responders, with the intention of furthering the public safety and general welfare. The intent of this legislation is not to limit or preempt the scope of a zoning authority's review of applications for siting of wireless facilities or wireless support structures.

SECTION 1: Definitions:

For the purposes of these regulations, the following definitions shall apply:

• Authority: A municipality, township, county or regional planning commission or any municipal or county legislative body that has adopted planning and zoning regulations for all or the majority of land uses within the jurisdiction.

• Antenna: Communications equipment that transmits and receives electromagnetic radio signals used in the provision of all types of wireless communications services.

• Building Permit: An official administrative authorization issued by the local authority prior to beginning construction of any new or existing support structure. The issuance of a building permit is not a mechanism for the approval or denial of a zoning or land use application.

• Collocation: The placement or installation of wireless facilities, on existing structures, including towers, buildings, utility poles, and water tanks in a manner that negates the need to construct a new free standing support structure such as a tower.

• Equipment Enclosure: An enclosed structure, cabinet, or shelter used to contain radio or other equipment necessary for the transmission or reception of wireless communication signals.

• Existing Tower: A free standing support structure constructed prior to the enactment of this statute that is used to provide wireless services.

• Wireless Support Structure: Other than a utility pole, a freestanding structure, such as a monopole or tower, designed to support wireless facilities.

• Utility pole: A structure owned and/or operated by a public utility, municipality, electric membership corporation or rural electric cooperative that is designed specifically for and used to carry lines, cables, or wires for telephony, cable television, or electricity or to provide lighting.

• Application: A formal request submitted to the local authority to construct or modify a Wireless Support Structure or a wireless facility.

• Wireless Facility: The set of equipment and network components, exclusive of the underlying support structure or tower, including, but not limited to, antennas, transmitters, receivers base stations, power supplies cabling and associated equipment necessary to provide wireless services to a discrete geographic area.

SECTION 2: Construction of New Wireless Facilities and Wireless Support Structures

(1) An authority, as defined, may plan for and regulate the siting of Wireless Facilities and Wireless Support Structures in accordance with locally adopted planning or zoning regulations and in conformity with this title.

(2) Any person that is engaged in the business of providing wireless telecommunications services or the wireless telecommunications infrastructure required therefore, and that proposes to construct a Wireless Support Structure within the jurisdiction of any planning authority that has adopted planning and zoning regulations in accordance with this title shall:

(a) Submit the necessary copies and attachments of the applicant’s completed application to the appropriate planning authority to construct a Wireless Support Structure.

(b) Comply with any local ordinances concerning land use and the appropriate permitting processes, subject to the limitations imposed by this chapter.

(3) All records (documents, electronic data, etc.) in the possession or custody of authority personnel are subject to the state Public Records Act. Disclosure of such records should be consistent with the applicable state law.

(4) After an applicant’s submission of a completed application to construct a Wireless Support Structure, the authority shall, within 75 days commencing from the date that the application is deemed complete by the authority or within a date certain specified in a written agreement between the authority and the applicant:

(a) Review the completed application in light of its agreement with the comprehensive plan and locally adopted zoning regulations;

(b) Make its final decision to approve or disapprove the application; and

(c) Advise the applicant in writing of its final decision.

(5) A party aggrieved by the final action of an authority denying an application under the provisions of this chapter may bring an action for review in any court of competent jurisdiction.

SECTION 3: Collocation of Antennas and Equipment on or at Existing Towers and other Structures

(1) In deploying, or expanding commercial and public safety wireless networks, the collocation of new antennas and equipment on existing support structures, including buildings, utility poles, water towers or existing conforming or non-conforming communication towers is preferred over constructing new towers or support structures.

(2) Irrespective of Section 3(1), an application for collocation on an existing structure other than a utility pole may be subject to the issuance of a building permit and any cost-based fee associated with such a permit.

(3) The authority may deny an application to construct a new Wireless Support Structure based on an applicant's unwillingness to evaluate the reasonable feasibility of collocating new antennas and equipment on an existing structure or structures within the applicant’s search ring.

(4) The authority may not deny an application to construct a new wireless communications support structure under 3(3) if evidence is provided that collocation on an existing structure is technically infeasible or unduly economically burdensome on the wireless service provider.

(5) After an applicant’s submission of a completed application, the authority shall, within 45 days commencing from the date that an application for collocation of new antennas and equipment on existing support structures is deemed complete by the authority or within a date certain specified in a written agreement between the authority and the applicant:

(a) Review the completed application in light of its agreement with the comprehensive plan and locally adopted zoning regulations;

(b) Make its final decision to approve or disapprove the application; and

(c) Advise the applicant in writing of its final decision.

SECTION 4. Limitations.

An authority may not:

(1) Impose environmental testing, sampling, or monitoring requirements or other compliance measures for radio frequency emissions on wireless communications facilities that are categorically excluded under the FCC’s rules for radio frequency emissions pursuant to 47 CFR 1.1307(b)(1);

(2) Institute a moratorium on the construction of new Wireless Support Structures lasting over 90 days in duration or institute any such moratorium within 6 months of the conclusion of any previous moratorium on the construction of Wireless Support Structures.

(3) Charge an application fee, consulting fee or other fee associated with the submission, review, processing and approval of a permit that is not required for other types of commercial development within the authority’s jurisdiction. Fees imposed by a local authority or by a third-party entity providing review or technical consultation to the local authority, cannot exceed what is usual and customary. In no case should total charges and fees exceed ____ for a collocation or ______ for the placement and construction of a new wireless facility and/or support structures.

(4) Permit third party consultants to charge wireless telecommunications service providers for any travel expenses incurred in the consultant’s review of wireless telecommunications permits.

(5) Establish or enforce regulations or procedures for RF signal strength or the adequacy of service quality in the consideration of any application for the construction, modification, maintenance, or operation of a wireless facility and/or support structure.

(6) Impose surety requirements, including bonds, escrow deposits, or any other type of financial surety, to ensure that abandoned or unused facilities can be removed unless the jurisdiction imposes similar requirements on other permits for other types of commercial development or land uses. If surety requirements are imposed they must be competitively neutral, non discriminatory, reasonable in amount and commensurate with the historical record for local facilities and structures that fall into disuse.

(7) Prohibit the placement of emergency power systems that comply with Federal and State environmental requirements;

(8) Discriminate on the basis of the ownership of any property, structure or tower when promulgating rules or procedures for siting wireless facilities or for evaluating applications for collocations or new wireless facilities or support structures.

(9) Condition the approval of a new support structure or collocation on the agreement of the structure owner to provide space on the structure for local governmental services at less than the market rate.

(10) Limit the duration of any permit for a wireless facility or support structure when evaluating an application for a wireless facility or collocation.

(11) Require an applicant to construct a Distributed Antenna System in lieu of constructing a new Wireless Support Structure or collocating on an existing structure, such as a utility pole, existing tower or building.

SECTION 5.

If any provision of this act or the application thereof to any person or circumstance is held invalid, such invalidity shall not affect other provisions or applications of the act which can be given effect without the invalid provision or application, and to that end the provisions of this act are declared to be severable.

This Act shall take effect on _______, the public welfare requiring it.

Passed by the Telecommunications and Information Technology Task Force at the States & Nation Policy Summit on December 9, 2006. Amended July 2007 at the 34th Annual Meeting in Philadelphia, PA. Amended on December 6, 2008 at the States & Nation Policy Summit in Washington, DC, Approved by the ALEC Board on January 14, 2009.