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.

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.

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.

"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.

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.

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

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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.

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.

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.

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.

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.

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.

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.

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.

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.