Bill S.1908

SENATE DOCKET, NO. 1914 FILED ON: 10/24/2013

SENATE . . . . . . . . . . . . . . No. 1908

By Ms. Flanagan, a petition (accompanied by bill, Senate, No. 1908) of Jennifer L. Flanagan for legislation relative to upgrading mobile broadband coverage in the Commonwealth. Telecommunications, Utilities and Energy.

The Commonwealth of Massachusetts

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In the Year Two Thousand Thirteen

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An Act upgrading mobile broadband coverage in the Commonwealth.

Whereas, The deferred operation of this act would tend to defeat its purpose, which is to expand and improve mobile broadband coverage and connectivity, promote robust wireless communication services, enhance economic development, enhance public safety, and improve quality of life for all residents and businesses throughout the commonwealth by establishing uniform standards and expedited permitting for collocation of wireless facilities on existing structures, therefore, it is hereby declared to be an emergency law, necessary for the immediate preservation of the public convenience.

Be it enacted by the Senate and House of Representatives in General Court assembled, and by the authority of the same, as follows:

SECTION 1. The general court finds and declares that:

(a) It is the policy of this commonwealth to facilitate the provision of broadband and other advanced wireless communication services across the entirety of the commonwealth; and that it is further the policy to promote access to broadband and advanced wireless communication services for all residents, students, government agencies and businesses to ensure the availability of world-class educational opportunities, economic development, and public safety services throughout the commonwealth.

(b) The deployment of wireless infrastructure is critical to ensuring first responders can provide for the health and safety of all residents of the commonwealth and that, consistent with section 6409 of the federal Middle Class Tax Relief and Job Creation Act of 2012, Pub. L. No. 112-96, which, among other things, creates a national wireless emergency communications network for use by first responders that in large measure will depend on facilities placed on existing wireless communications support structures, it is the policy of this commonwealth to facilitate the collocation of wireless facilities on existing support structures in all areas of the commonwealth.

SECTION 2. Section 3 of chapter 40A of the General Laws, as appearing in the 2012 Official Edition, is hereby amended by inserting at the end thereof the following paragraph:-

No zoning ordinance or by-law shall prohibit, regulate or restrict collocation of wireless facilities on existing structures in a manner inconsistent with chapter 43F.

SECTION 3. The General Laws are hereby amended by inserting after chapter 43E, the following chapter:-

CHAPTER 43F.

EXPEDITED COLLOCATION PERMITTING

Section 1. As used in this chapter the following words shall, unless the context clearly requires otherwise, have the following meanings:-

“Accessory Equipment”, any equipment serving or being used in conjunction with a wireless facility or wireless support structure. The term includes utility or transmission equipment, power supplies, generators, batteries, cables, equipment buildings, cabinets and storage sheds, shelters or similar structures.

“Antenna”, communications equipment that transmits and receives electromagnetic radio signals used in the provision of all types of wireless communications services.

“Applicant”, any person engaged in the business of providing wireless telecommunications services or the wireless telecommunications infrastructure required for wireless telecommunications services who submits a collocation application.

“Building Permit”, a permit issued by an issuing authority prior to the collocation of wireless facilities, solely to ensure that the work to be performed by the applicant satisfies the applicable building code.

“Collocation”, the placement, installation, replacement, upgrade or modification of wireless facilities on or in existing structures capable of structurally supporting the attachment of wireless facilities in compliance with applicable codes. The term collocation includes the placement, installation, replacement, upgrade or modification of wireless facilities within a previously approved equipment compound, but does not include a substantial modification. The term collocation excludes the placement or installation of wireless facilities on the exterior of a building or structure listed on the national or state register of historic places unless the Massachusetts historical commission’s state historic preservation officer has made a finding that this placement or installation either would have no adverse effect on that building or structure or that any effect shall be appropriately mitigated.

“Collocation Application”, a request submitted by an applicant to an issuing authority for collocation of wireless facilities on an existing structure.

“Equipment Compound”, an area surrounding or near the base of a wireless support structure within which wireless facilities are located.

“Existing Structure”, any structure that is capable of supporting the attachment of existing wireless facilities in compliance with applicable codes, including, but not limited to, towers, buildings and water towers. The term shall not include any utility pole.

“Issuing Authority”, each state, county, regional, district, city, town, municipal and governmental body, board, agency, office, department, authority, commission, political subdivision or instrumentality authorized to make legislative, quasi-judicial, or administrative decisions relative to the construction, installation, modification, or siting of wireless facilities and wireless support structures; provided that an “issuing authority” shall not include state courts having jurisdiction over land use, planning, or zoning decisions made by an “issuing authority”.

“Substantial Modification”, the mounting of a proposed wireless facility on a wireless support structure which: (i) increases the existing vertical height of the structure and existing wireless facilities by (a) more than 10 per cent, or (b) the height of one additional antenna array with separation from the nearest existing antenna not to exceed 20 feet, whichever is greater; or (ii) involves adding an appurtenance to the body of an existing wireless support structure that protrudes horizontally from the edge of the wireless support structure more than 20 feet, or more than the width of the existing wireless support structure at the level of the appurtenance, whichever is greater (except where necessary to shelter the antenna from inclement weather or to connect the antenna to the tower via cable); or (iii) increases the square footage of the existing equipment compound by more than 2,500 square feet.

“Utility Pole”, a structure owned or operated by a public utility, municipality, electric membership corporation or that is designed specifically for and used to carry lines, cables, or wires for telephony, cable television, or electricity or to provide lighting. This term shall not apply to towers, overhead wires and associated overhead structures used exclusively in the transmission but not the distribution of electricity.

“Water Tower”, a water storage tank, or a standpipe or an elevated tank situated on a support structure, originally constructed for use as a reservoir or facility to store or deliver water.

“Wireless Support Structure”, a freestanding structure, such as a monopole or tower, designed to support wireless facilities. This term does not include utility poles.

“Wireless Facility”, the set of equipment and network components, exclusive of the underlying wireless support structure, including, but not limited to, antennas, accessory equipment, transmitters, receivers, base stations, power supplies, cabling and associated equipment necessary to provide wireless telecommunications services.

Section 2. Notwithstanding any other general or special law, ordinance, by-law, rule or regulation to the contrary, in order to ensure uniformity throughout the commonwealth, each issuing authority shall follow the following process for reviewing and deciding collocation applications:

(1) Subject to this Act, collocation applications shall be reviewed for conformity with applicable building permit requirements but shall not otherwise be subject to zoning or land use requirements.

(2) The issuing authority, within 45 calendar days of receiving a collocation application, shall:

(a) Review the Collocation Application in light of its conformity with applicable building permit requirements and consistency with this Act. A collocation application is considered complete unless the issuing authority notifies the applicant in writing, within 15 calendar days of submission of the collocation application, of the specific deficiencies in the collocation application which, if cured, would make the collocation application complete. Upon receipt of a timely written notice that a collocation application is deficient, an applicant may take 15 calendar days from receiving that notice to cure the specific deficiencies. If the applicant cures the deficiencies within 15 calendar days, the collocation application shall be reviewed and processed within 45 calendar days from the initial date the collocation application was received. If the applicant requires a period of time beyond 15 calendar days to cure the specific deficiencies, the 45 calendar day deadline for review shall be extended by the same period of time;

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

(3) If the issuing authority fails to act on a collocation application within the 45 calendar day review period, the collocation application shall be considered approved.

(4) Notwithstanding anything to the contrary in this chapter, an issuing authority may not mandate or require the installation, location or use of wireless facilities on utility poles.

(5) An applicant aggrieved by the final decision of an issuing authority to disapprove the collocation application under section 2(2)(b) of this chapter, or by the issuing authority’s failure to act on a collocation application within the 45 calendar days under section 2(2) of this chapter, may bring an action for judicial review within 30 days after the receipt by the applicant of the final decision of the issuing authority or within 30 days after the failure of the issuing authority to take final action within the required time, as applicable, in the land court department or the superior court department in which the land concerned is situated.

Section 3. Notwithstanding any other general or special law, ordinance, by-law, rule or regulation to the contrary, the following uniform rules and limitations shall apply to a collocation application to any issuing authority throughout the commonwealth. In order to ensure uniformity across the commonwealth with respect to the consideration of every collocation application, an issuing authority shall not:

(1) Require an applicant to submit information about, or evaluate an applicant’s business decisions with respect to: its designed service, customer demand for service, or quality of its service to or from a particular area or site or discriminate on the basis of the ownership of any property, structure or tower when evaluating collocation applications;

(2) Evaluate a collocation application based on the availability of other potential locations for the placement of wireless support structures or wireless facilities;

(3) Dictate the type of wireless facilities, infrastructure or technology to be used by the applicant;

(4) Require the removal of existing wireless support structures or wireless facilities, wherever located, as a condition to approval of a collocation application;

(5) Reject a collocation application based on perceived environmental effects of radio frequency emissions pursuant to 47 U.S.C. section 332(c)(7)(b)(4) or impose environmental testing, sampling, or monitoring requirements for radio frequency emissions on wireless facilities that are excluded under the Federal Communication Commission’s rules for radio frequency emissions, including 47 CFR 1.1307(b)(1), or otherwise establish or enforce regulations or procedures for radio frequency signal strength or the adequacy of service quality;

(6) Impose any restrictions with respect to objects in navigable airspace that are greater than or in conflict with the restrictions imposed by the Federal Aviation Administration;

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

(8) Charge an application fee, consulting fee or other fee associated with the submission, review, processing and approval of a collocation application that is not required for similar types of commercial development within the issuing authority’s jurisdiction. Fees imposed by an issuing authority or by a third-party entity providing review or technical consultation to the issuing authority must be based on actual, direct and reasonable administrative costs incurred for the review, processing and approval of a collocation application, but in no case should total charges and fees exceed $500. Notwithstanding the foregoing: (a) an issuing authority or any third-party entity shall not include within its charges any travel expenses incurred in a third-party’s review of a collocation application; and (b) an applicant shall not be required to pay or reimburse an issuing authority for consultant or other third party fees based on a contingency or result-based arrangement;

(9) Condition the approval of a collocation application on the applicant’s agreement to provide space on or near any wireless support structure for local governmental services at less than the market rate for space or to provide other services via the structure or facilities at less than the market rate for those services; or

(10) Limit the duration of the approval of a collocation application.

Name:	District/Address:
Jennifer L. Flanagan	Worcester and Middlesex