Bill Text: IA SF431 | 2017-2018 | 87th General Assembly | Introduced

NOTE: There are more recent revisions of this legislation. Read Latest Draft

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Bill Title: A bill for an act relating to the siting of small wireless facilities. (Formerly SSB 1138.) Effective 7-1-17.

Spectrum: Committee Bill

Status: (Passed) 2017-05-09 - Signed by Governor. S.J. 1135. [SF431 Detail]

Download: Iowa-2017-SF431-Introduced.html

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Senate File 431 - Introduced




                                 SENATE FILE       
                                 BY  COMMITTEE ON COMMERCE

                                 (SUCCESSOR TO SSB
                                     1138)

                                      A BILL FOR

  1 An Act relating to the siting of small wireless facilities.
  2 BE IT ENACTED BY THE GENERAL ASSEMBLY OF THE STATE OF IOWA:
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  1  1    Section 1.  Section 8C.2, subsections 3 and 14, Code 2017,
  1  2 are amended to read as follows:
  1  3    3.  "Authority", used as a noun, means a state, county,
  1  4 or city governing body, board, agency, office, or commission
  1  5 authorized by law to make legislative, quasi=judicial,
  1  6 or administrative decisions relative to an application.
  1  7 "Authority" does not include state courts having jurisdiction
  1  8 over land use, planning, or zoning decisions made by an
  1  9 authority, the utilities division of the department of
  1 10 commerce, or entities municipally owned utilities established
  1 11 under Title IX, subtitle 4 of the Code that do not have zoning
  1 12 or permitting authority with respect to the siting of small
  1 13 wireless facilities pursuant to section 8C.7A.
  1 14    14.  "Utility pole" means a pole or similar structure
  1 15 owned or operated utilized in whole or in part by a public
  1 16 utility, municipality, wireless service provider or electric
  1 17 utility that is designed specifically for and used to carry
  1 18 lines, cable, transmission equipment, or wires for telephone,
  1 19 wireless service, cable television, or electricity service, or
  1 20 to provide for lighting, traffic control, signage, or other
  1 21 similar functions.
  1 22    Sec. 2.  Section 8C.2, Code 2017, is amended by adding the
  1 23 following new subsections:
  1 24    NEW SUBSECTION.  10A.  a.  "Small wireless facility" means a
  1 25 wireless facility that meets the following requirements:
  1 26    (1)  Each antenna is no more than six cubic feet in volume.
  1 27    (2)  (a)  All other equipment associated with the base
  1 28 station is cumulatively no more than twenty=eight cubic feet
  1 29 in volume.
  1 30    (b)  For purposes of this subparagraph, volume shall be
  1 31 measured by the external displacement of the primary equipment
  1 32 enclosure, not the internal volume of such enclosure. An
  1 33 associated electric meter, concealment, telecommunications
  1 34 demarcation box, ground=based enclosures, battery backup power
  1 35 systems, grounding equipment, power transfer switch, cutoff
  2  1 switch, cable, conduit, and any equipment that is concealed
  2  2 from public view within or behind an existing structure or
  2  3 concealment may be located outside of the primary equipment
  2  4 enclosure and shall not be included in the calculation of the
  2  5 equipment volume.
  2  6    b.  "Small wireless facility" does not include any structure
  2  7 that supports or houses equipment described in this subsection.
  2  8    NEW SUBSECTION.  14A.  "Wireless facility" means equipment
  2  9 at a fixed location that enables the transmission of wireless
  2 10 communications and information of any kind between user
  2 11 equipment and a communications network.
  2 12    NEW SUBSECTION.  14B.  "Wireless service" means any fixed or
  2 13 mobile service using licensed or unlicensed wireless spectrum
  2 14 and provided by a wireless facility.
  2 15    NEW SUBSECTION.  14C.  "Wireless service provider" means a
  2 16 provider of wireless service.
  2 17    Sec. 3.  NEW SECTION.  8C.7A  Uniform rules for small wireless
  2 18 facilities ==  permit approval.
  2 19    1.  a.  Except as provided in this section, an authority
  2 20 shall not prohibit or restrict the siting of a small wireless
  2 21 facility.
  2 22    b.  For purposes of this section, "siting" means the
  2 23 mounting, installation, maintenance, modification, operation,
  2 24 or replacement of a small wireless facility on or adjacent to
  2 25 any of the following:
  2 26    (1)  An existing tower, utility pole, wireless support
  2 27 structure, or other existing structure.
  2 28    (2)  A new utility pole of a similar height, location, and
  2 29 appearance as an existing structure.
  2 30    (3)  A replacement utility pole of a similar height,
  2 31 location, and appearance as an existing structure.
  2 32    2.  a.  An authority that has adopted planning and zoning
  2 33 regulations shall authorize the siting of a small wireless
  2 34 facility within its jurisdiction and shall not require a person
  2 35 to obtain a special or conditional land use permit for any of
  3  1 the following:
  3  2    (1)  For siting the small wireless facility on a public
  3  3 right=of=way or authority property.
  3  4    (2)  For siting the small wireless facility on an existing
  3  5 tower, utility pole, or wireless support structure, regardless
  3  6 of the location of the small wireless facility, except for
  3  7 on property zoned and used exclusively for single=family
  3  8 residential use or within a previously designated area of
  3  9 historical significance pursuant to section 303.34.
  3 10    b.  A small wireless facility may be classified as a special
  3 11 or conditional land use where such small wireless facility is
  3 12 not sited on a property or sited in a manner as provided in
  3 13 paragraph "a".
  3 14    c.  An authority may require a person to obtain a special
  3 15 or conditional land use permit to install a new utility
  3 16 pole or wireless support structure for the siting of a small
  3 17 wireless facility on property zoned and used exclusively for
  3 18 single=family residential use or within a previously designated
  3 19 area of historical significance pursuant to section 303.34.
  3 20    3.  a.  An authority may require a person to obtain a
  3 21 building, electrical, or public right=of=way use permit for
  3 22 the siting of a small wireless facility to the extent that
  3 23 such permit is of general applicability and does not deny
  3 24 access by the small wireless facility to a public right=of=way.
  3 25 Notwithstanding this paragraph, an authority shall not require
  3 26 a person to obtain a permit for the routine maintenance of a
  3 27 previously approved small wireless facility or the replacement
  3 28 of a previously approved small wireless facility with a
  3 29 facility of substantially similar height, weight, and wind
  3 30 and structural loading, provided, however, that an authority
  3 31 may require a person to obtain a permit to work in a public
  3 32 right=of=way with the same terms and conditions provided for
  3 33 other commercial projects or uses in the public right=of=way.
  3 34    b.  An authority shall not require a person to apply for or
  3 35 enter into an individual license, franchise, or other agreement
  4  1 with the authority or any other entity for the siting of a
  4  2 small wireless facility on a utility pole located on a public
  4  3 right=of=way or authority property, except that an authority
  4  4 may establish nondiscriminatory, competitively neutral and
  4  5 commercially reasonable rates, terms, and conditions set forth
  4  6 in a building permit obtained pursuant to this subsection which
  4  7 shall comply with the federal pole attachment requirements
  4  8 provided in 47 U.S.C. {224 and any regulations promulgated
  4  9 thereunder.
  4 10    c.  (1)  A new, replacement, or modified utility pole or
  4 11 wireless support structure installed in the public right=of=way
  4 12 for the siting of a small wireless facility shall not exceed
  4 13 the greater of ten feet in height above the tallest utility
  4 14 pole existing on or before July 1, 2017, located within five
  4 15 hundred feet of the new or replacement utility pole in the
  4 16 same public right=of=way, or fifty feet in height above ground
  4 17 level.
  4 18    (2)  Notwithstanding subparagraph (1), a person may
  4 19 construct, modify, or maintain a utility pole along, across,
  4 20 and under a public right=of=way in excess of the size limits
  4 21 provided in subparagraph (1), subject to applicable zoning
  4 22 regulations.
  4 23    (3)  A person shall comply with nondiscriminatory
  4 24 undergrounding requirements that prohibit wireless service
  4 25 providers from installing structures in the public right=of=way
  4 26 without prior zoning approval in areas zoned and used for
  4 27 single=family residential use, provided that such requirements
  4 28 shall not prohibit the replacement of existing structures.
  4 29    d.  An authority shall accept an application for, process,
  4 30 and issue a permit under this subsection as follows:
  4 31    (1)  An applicant shall not be required to provide more
  4 32 information or pay a higher application fee, consulting fee,
  4 33 or other fee associated with the processing or issuance of a
  4 34 permit than the amount charged to a telecommunications service
  4 35 provider that is not a wireless service provider. The total
  5  1 amount of fees for processing or issuing a permit, including
  5  2 any fees charged by third parties, shall not exceed five
  5  3 hundred dollars for an application addressing no more than five
  5  4 small wireless facilities, and an additional fifty dollars
  5  5 for each small wireless facility addressed in an application
  5  6 in excess of five small wireless facilities. An applicant
  5  7 shall not be required to pay any additional fees or perform any
  5  8 services relating to the acceptance, processing, or issuance
  5  9 of a permit, nor provide any services unrelated to the siting
  5 10 of the small wireless facility. The total amount of fees
  5 11 shall be adjusted every five years to reflect any increases or
  5 12 decreases in the consumer price index, rounded to the nearest
  5 13 five dollars.
  5 14    (2)  An authority shall approve or deny a permit application
  5 15 within sixty days following the submission of a completed
  5 16 application. An application shall be deemed approved if the
  5 17 authority fails to approve or deny the application within sixty
  5 18 days following the submission of a completed application. This
  5 19 period of time for the processing of an application may be
  5 20 tolled to accommodate timely requests for information required
  5 21 to complete or cure any defects in the application or may be
  5 22 extended by mutual agreement between the authority and the
  5 23 applicant. An applicant may address one or more small wireless
  5 24 facilities in a single application.
  5 25    (3)  (a)  An authority may deny a completed application
  5 26 only if the application fails to include information required
  5 27 under this subsection, does not meet applicable building
  5 28 or electrical codes or standards, provided such codes and
  5 29 standards are of general applicability, or where an engineer
  5 30 certifies that siting the small wireless facility would
  5 31 compromise the structural safety of the utility pole or
  5 32 wireless support structure on which it is proposed to be sited
  5 33 and the applicant refuses to reimburse the authority for
  5 34 the costs of replacing the utility pole or wireless support
  5 35 structure with a utility pole or wireless support structure
  6  1 that can safely support the small wireless facility. An
  6  2 authority denying an application shall document the basis for
  6  3 the denial, including the specific code provisions or standards
  6  4 on which the denial is based, and provide the applicant with
  6  5 such documentation on or before the date the application is
  6  6 denied.
  6  7    (b)  An applicant whose application is denied shall have
  6  8 an opportunity to cure any deficiencies identified by the
  6  9 authority as the basis for the denial and to submit a revised
  6 10 application within thirty days following the date of denial
  6 11 without paying an additional fee. The authority shall approve
  6 12 or deny a revised application within thirty days following
  6 13 submission. The authority shall not identify any deficiencies
  6 14 in a second or subsequent denial that were not identified in
  6 15 the original denial.
  6 16    (4)  An authority shall not limit the duration of a permit
  6 17 issued under this subsection, provided, however, that the
  6 18 construction of a small wireless facility permitted pursuant
  6 19 to this subsection shall commence no later than two years
  6 20 following the date that the permit is issued, or two years
  6 21 after any appeals are exhausted.
  6 22    (5)  An authority shall not impose a moratorium on the
  6 23 processing or issuance of permits under this subsection.
  6 24    (6)  An authority shall process and issue permits on a
  6 25 nondiscriminatory basis. An authority shall receive an
  6 26 application for, process, and issue a permit for the siting of
  6 27 a small wireless facility in a manner substantially comparable
  6 28 to the permitting of other applicants within the jurisdiction
  6 29 of the authority, and may not impose discriminatory licensing
  6 30 standards for persons siting small wireless facilities.
  6 31    4.  The annual recurring rate charged by an authority
  6 32 for the siting of a small wireless facility on an authority
  6 33 utility pole shall not exceed the rate computed by the
  6 34 federal communications commission for telecommunications pole
  6 35 attachments in 47 C.F.R. {1.1409(e)(2).
  7  1    5.  a.  An authority shall authorize the siting of a small
  7  2 wireless facility on a wireless support structure not located
  7  3 within the public right=of=way to the same extent the authority
  7  4 authorizes access to such wireless support structures for other
  7  5 commercial projects or uses, and may authorize the siting even
  7  6 if the authority has not previously permitted such access.
  7  7    b.  A siting authorized under this subsection shall be
  7  8 subject to reasonable rates, terms, and conditions as provided
  7  9 in one or more agreements between the authority and the
  7 10 wireless service provider. Notwithstanding chapter 480A,
  7 11 the annual recurring rate for such siting as charged by an
  7 12 authority shall not exceed the least of any of the following:
  7 13    (1)  The amount charged for a similar commercial project or
  7 14 use to occupy a similar area of space on similarly situated
  7 15 property.
  7 16    (2)  The projected cost to the authority resulting from the
  7 17 siting.
  7 18    (3)  One hundred dollars, adjusted every five years to
  7 19 reflect any increases or decreases in the consumer price index,
  7 20 rounded to the nearest five dollars.
  7 21    6.  A party aggrieved by the final action of an authority,
  7 22 either by its affirmative action on a permit, term or
  7 23 condition, or rate under the provisions of this section or by
  7 24 its inaction, may bring an action for review in any court of
  7 25 competent jurisdiction.
  7 26    7.  This section shall not modify the rights and obligations
  7 27 of an owner of a utility pole under 47 C.F.R. {1.1401 et seq.,
  7 28 and the Iowa electrical safety code.
  7 29    Sec. 4.  NEW SECTION.  8C.7B  Small wireless facilities ==
  7 30 violation and removal.
  7 31    1.  A public utility that owns or controls a utility pole to
  7 32 which a small wireless facility is sited in alleged violation
  7 33 of the Iowa electrical safety code or any other provision of
  7 34 law shall notify, in writing or by any other method agreed upon
  7 35 by the parties in writing, the owner of the small wireless
  8  1 facility of the alleged violation. The notice shall include
  8  2 the following information:
  8  3    a.  The address and location where the alleged violation
  8  4 occurred.
  8  5    b.  A description of the alleged violation.
  8  6    c.  Suggested corrective action.
  8  7    2.  Upon the receipt of notice of an alleged violation, the
  8  8 owner shall respond to the public utility within sixty days in
  8  9 writing or by any other method agreed upon by the parties in
  8 10 writing. The response shall include the following information:
  8 11    a.  A statement disclosing whether or not the person owns the
  8 12 small wireless facility in dispute.
  8 13    b.  A statement disclosing that the owner disputes that the
  8 14 violation has occurred, if applicable.
  8 15    c.  A plan for corrective action if the owner does not
  8 16 dispute that the violation has occurred.
  8 17    d.  A statement disclosing whether the violation has been
  8 18 corrected, if the owner does not dispute that the violation has
  8 19 occurred.
  8 20    3.  The owner of a small wireless facility in alleged
  8 21 violation of section 8C.7A or any other applicable provision
  8 22 of law shall correct the alleged violation within one hundred
  8 23 eighty days after receiving notice of the violation unless,
  8 24 for good cause shown, a delay for taking corrective action
  8 25 is appropriate or if the parties otherwise agree in writing
  8 26 to extend the time required to take corrective action. Good
  8 27 cause for a delay in corrective action shall include but is
  8 28 not limited to  a dispute over whether the person owns the
  8 29 small wireless facility in dispute, or a dispute over whether
  8 30 the alleged violation has occurred, if taking corrective
  8 31 action within the required time frame is not possible due to
  8 32 circumstances which are beyond the control of the owner of
  8 33 the small wireless facility. The public utility and owner of
  8 34 the small wireless facility shall cooperate in determining an
  8 35 efficient and cost=effective solution to correct an alleged
  9  1 violation.
  9  2    4.  If the parties cannot resolve the dispute after following
  9  3 the procedures provided in subsections 1 through 3, either
  9  4 party may file an action concerning an alleged violation under
  9  5 this section in the district court for the county in which the
  9  6 violation is alleged to have occurred, for injunctive relief or
  9  7 any other appropriate remedy, including the removal of a small
  9  8 wireless facility deemed by the court to be in violation of the
  9  9 Iowa electrical safety code.
  9 10    Sec. 5.  Section 8C.9, Code 2017, is amended to read as
  9 11 follows:
  9 12    8C.9  Repeal.
  9 13 This chapter is repealed July 1, 2020 2022.
  9 14                           EXPLANATION
  9 15 The inclusion of this explanation does not constitute agreement with
  9 16 the explanation's substance by the members of the general assembly.
  9 17    This bill authorizes the siting of small wireless
  9 18 facilities.
  9 19     Code chapter 8C provides a series of uniform rules and
  9 20 limitations for the deployment of and applications for wireless
  9 21 communications facilities and infrastructure. The bill adds
  9 22 specific rules and limitations for the application for and
  9 23 deployment of small wireless facilities.
  9 24    The bill amends the definition of "authority" in Code
  9 25 section 8C.2 to exclude municipally owned utilities established
  9 26 under Title IX, subtitle 4 of the Code that do not have zoning
  9 27 or permitting authority with respect to the siting of small
  9 28 wireless facilities. The bill defines "siting" to mean the
  9 29 mounting, installation, maintenance, modification, operation,
  9 30 or replacement of a small wireless facility on or adjacent to
  9 31 an existing utility pole or other structure, a replacement
  9 32 utility pole, or a new utility pole. The bill defines "small
  9 33 wireless facility" as a wireless facility where each antenna is
  9 34 no more than six cubic feet in volume and all other equipment,
  9 35 except for certain equipment described in the bill, is
 10  1 cumulatively no more than 28 cubic feet in volume, as measured
 10  2 by its external displacement. A "small wireless facility" does
 10  3 not include any structure that supports or houses equipment.
 10  4 The bill amends the definition of "utility pole" in Code
 10  5 section 8C.2 to include wireless service. The bill defines
 10  6 "wireless facility" to mean equipment at a fixed location
 10  7 that enables the transmission of wireless communications
 10  8 and information of any kind between user equipment and a
 10  9 communications network. The bill defines "wireless service" to
 10 10 mean any fixed or mobile service using licensed or unlicensed
 10 11 wireless spectrum and provided by a wireless facility. The
 10 12 bill defines "wireless service provider" to mean a provider of
 10 13 wireless service.
 10 14    The bill prohibits an authority from restricting the siting
 10 15 of small wireless facilities. An authority with planning
 10 16 and zoning regulations shall authorize such facilities in
 10 17 zoning districts where the facilities are located on public
 10 18 rights=of=way or authority property, or where the facilities
 10 19 are sited on certain existing structures. Facilities not sited
 10 20 on such property or sited in such a manner may be classified as
 10 21 special or conditional uses. An authority may also require a
 10 22 person to obtain a special or conditional land use permit to
 10 23 install new utility poles or wireless support structures on
 10 24 certain property.
 10 25    The bill provides that an authority may require a person
 10 26 to obtain building, electrical, or public way use permits for
 10 27 the siting of small wireless facilities if such permit is of
 10 28 general applicability and does not deny a facility access to
 10 29 a public right=of=way. However, an authority cannot require
 10 30 a person to obtain a permit for the routine maintenance or
 10 31 replacement of a previously approved facility unless such
 10 32 permit contains the same terms and conditions provided for
 10 33 other commercial projects or uses in the public right=of=way.
 10 34    The bill prohibits an authority from requiring a person to
 10 35 enter into an individual license, franchise, or other agreement
 11  1 with the authority for the siting of small wireless facilities
 11  2 on utility poles located on public rights=of=way or authority
 11  3 property, subject to nondiscriminatory, competitively neutral
 11  4 and commercially reasonable terms and conditions provided in
 11  5 a building permit obtained pursuant to the bill and which
 11  6 complies with federal pole attachment requirements.
 11  7    The bill provides that a new, replacement, or modified
 11  8 utility pole or wireless support structure installed in
 11  9 the public right=of=way for the siting of a small wireless
 11 10 facility shall not exceed the greater of 10 feet in height
 11 11 above the tallest utility pole existing on or before July
 11 12 1, 2017, located within 500 feet of the new or replacement
 11 13 utility pole in the same public right=of=way, or 50 feet in
 11 14 height above ground level. However, a person may construct,
 11 15 modify, or maintain a utility pole along, across, and
 11 16 under a public right=of=way in excess of such size limits,
 11 17 subject to applicable zoning regulations and compliance with
 11 18 nondiscriminatory undergrounding requirements.
 11 19    The bill provides a series of rules and limitations
 11 20 applicable to an application for a permit. The rules and
 11 21 limitations include prohibiting requiring certain information
 11 22 from or about an applicant, limiting the amount of application
 11 23 fees for processing or issuing a permit, time frames within
 11 24 which an authority must approve or deny a permit application,
 11 25 standards for the denial of a permit application, prohibiting
 11 26 the imposition of a moratorium on the processing or issuance of
 11 27 permits, and prohibiting the processing or issuance of permits
 11 28 on a discriminatory basis, as specified in the bill.
 11 29    The bill provides that the annual recurring rate charged
 11 30 by an authority for the siting of small wireless facilities
 11 31 on utility poles cannot exceed the rate computed for
 11 32 telecommunications pole attachments pursuant to federal law.
 11 33    The bill provides that an authority must authorize the
 11 34 siting of small wireless facilities on wireless support
 11 35 structures not located within public rights=of=way to the
 12  1 same extent the authority permits access for other commercial
 12  2 projects or uses, and may authorize the siting even if the
 12  3 authority has not previously permitted access. The annual
 12  4 recurring rate for such siting cannot exceed the least of the
 12  5 amount charged for a similar project on similar property,
 12  6 the projected cost to the authority for the siting, or $100,
 12  7 adjusted every five years to reflect changes in the consumer
 12  8 price index.
 12  9    The bill provides that a party aggrieved by the final action
 12 10 or inaction of an authority may bring an action for review in
 12 11 any court of competent jurisdiction.
 12 12    The bill provides that a public utility that owns or
 12 13 controls a utility pole to which a small wireless facility
 12 14 is sited in alleged violation of the Iowa electrical safety
 12 15 code or any other applicable law must notify the owner of
 12 16 the small wireless facility of the violation, which must
 12 17 include the location of the alleged violation, a description
 12 18 of the alleged violation, and suggested corrective action.
 12 19 The owner of the small wireless facility must respond to the
 12 20 public utility within 60 days, which must include a statement
 12 21 as to whether the person is the owner of the small wireless
 12 22 facility in dispute, a statement as to whether the owner
 12 23 disputes the violation, a plan for corrective action if the
 12 24 owner does not dispute the violation, and a statement as to
 12 25 whether the violation has been corrected. The owner must take
 12 26 corrective action to correct an alleged violation within 180
 12 27 days after receiving notice of the alleged violation, unless
 12 28 good cause is shown that a delay is appropriate, as specified
 12 29 in the bill. The bill provides that either party may file
 12 30 an action concerning an alleged violation in the appropriate
 12 31 district court for injunctive relief or any other appropriate
 12 32 remedy, including the removal of a small wireless facility,
 12 33 if the parties cannot resolve the dispute after following the
 12 34 procedures provided in the bill.
 12 35    The bill amends Code section 8C.9 to repeal Code chapter 8C
 13  1 on July 1, 2022, instead of on July 1, 2020.
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