Bill S.2183

FILED ON: 6/6/2014

SENATE . . . . . . . . . . . . . . No. 2183

The Commonwealth of Massachusetts

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In the Year Two Thousand Fourteen

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An Act upgrading mobile broadband coverage in the Commonwealth.

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. 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 2. 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:-

“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 communications services or the wireless communications infrastructure required for wireless communications 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 state building code.

“Collocation”, the placement, installation, replacement, upgrade or modification of wireless facilities on or in existing structures or wireless support structures that have been previously approved by an issuing authority and are capable of structurally supporting the attachment of wireless facilities in compliance with the state building code. 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 an existing structure listed on the national or state register of historic structures unless the Massachusetts historical commission’s state historic preservation officer has made a finding that this placement or installation either would have no effect or no adverse effect on the characteristics of the building or structure or that any adverse effect will be eliminated, minimized or, mitigated.

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

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

“Existing Structure”, any structure previously approved by an issuing authority that is capable of supporting the attachment of existing wireless facilities in compliance with the state building code, including, but not limited to, towers, buildings and water towers. The term shall not include any utility pole.

“Issuing Authority”, a local board, commission, department or other municipal entity that is responsible for granting the approval or otherwise involved in administrative decisions relative to the construction, installation, modification, or siting of wireless facilities and wireless support structures.

“Substantial Modification”, the mounting of a proposed wireless facility on a wireless support structure which: (a) increases the existing vertical height of the structure and existing wireless facilities by (i) more than 10 per cent, or (ii) the height of one additional antenna array with separation from the nearest existing antenna not to exceed 20 feet, whichever is greater; or (b) 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 (c) increases the area of the existing equipment compound by more than 2,500 square feet; or (d) adds to or modifies an existing structure or wireless support structure by removing previously approved conditions placed on the existing structure or wireless support structure to camouflage, disguise, or hide a wireless facility.

“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 utility or transmission equipment, antennas, cables, transmitters, receivers, base stations, power supplies, generators, batteries, equipment buildings, cabinets, storage sheds and all other associated equipment and installations that may be involved in providing wireless communications services.

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

(a) Collocation applications shall be reviewed for conformity with state building code requirements but shall not otherwise be subject to zoning or land use requirements.

(b) The issuing authority, within 90 days of receiving a collocation application, shall: (i) review the collocation application in light of its conformity with applicable building permit requirements and consistency with this chapter. A collocation application is considered complete unless the issuing authority notifies the applicant in writing, within 30 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 90 calendar days from the initial date the collocation application was received; (ii) make its final decision to approve or disapprove the collocation application; and (iii) advise the applicant in writing of its final decision.

(c) an applicant aggrieved by the final decision of an issuing authority with respect to a collocation application subject to this chapter, or by the issuing authority’s failure to act on such a collocation application within the 90 calendar days, may bring an action for judicial review pursuant to section 4 of chapter 249 within 60 days after the receipt by the applicant of the final decision of the issuing authority or within 60 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, an issuing authority shall not:

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

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

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

(d) Evaluate a collocation application based on perceived environmental or health effects of radio frequency emissions contrary to 47 U.S.C. section 332(c)(7)(b)(iv) 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, apply, or enforce regulations or procedures for radio frequency signal strength or the adequacy of service quality;

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

(f) Prohibit or regulate the placement or operation of emergency power systems that serve wireless facilities and that comply with the state building code and federal and state environmental requirements; or

(g) 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 $1,000. Notwithstanding the foregoing: (i) 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 (ii) 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.