HF 739

as introduced - 90th Legislature (2017 - 2018) Posted on 03/02/2017 09:03pm

A bill for an act
relating to telecommunications; providing for collocation of small wireless facilities;
amending Minnesota Statutes 2016, sections 237.162, subdivisions 2, 3, 9, by
adding subdivisions; 237.163, subdivisions 2, 4, 5, 6, 7, by adding subdivisions.

BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF MINNESOTA:

Section 1.

Minnesota Statutes 2016, section 237.162, subdivision 2, is amended to read:

Subd. 2.

Local government unit.

"Local government unit" means a county, home rule
charter or statutory city, deleted text begin or deleted text end town new text begin , or the Metropolitan Council new text end .

Sec. 2.

Minnesota Statutes 2016, section 237.162, subdivision 3, is amended to read:

Subd. 3.

Public right-of-way.

"Public right-of-way" means the area on, below, or above
a public roadway, highway, street, cartway, bicycle lane, and public sidewalk in which the
local government unit has an interest, including other dedicated rights-of-way for travel
purposes deleted text begin and deleted text end new text begin , new text end utility easements deleted text begin of local government units. deleted text end new text begin , and utility poles. Any other
property a local government unit has an interest in and has made available for commercial
uses is a public right-of-way solely for the purposes of small wireless facility collocation
under this section and section 237.163.
new text end

A public right-of-way does not include the airwaves above a public right-of-way with
regard to cellular or other nonwire telecommunications or broadcast service.

Sec. 3.

Minnesota Statutes 2016, section 237.162, subdivision 9, is amended to read:

Subd. 9.

Management costs or rights-of-way management costs.

new text begin (a) new text end "Management
costs" or "rights-of-way management costs" means the actual costs a local government unit
incurs in managing its public rights-of-way, and includes such costs, if incurred, as those
associated with registering applicants; issuing, processing, and verifying right-of-way new text begin or
collocation new text end permit applications; inspecting job sites and restoration projects; maintaining,
supporting, protecting, or moving user equipment during public right-of-way work; new text begin preparing
utility poles for collocation, including, as applicable, relocating existing attachments,
upgrading or replacing a utility pole; new text end determining the adequacy of right-of-way restoration;
restoring work inadequately performed after providing notice and the opportunity to correct
the work; and revoking right-of-way new text begin or collocation new text end permits.

new text begin (b) Management costs do not include a fee charged by a third-party contractor of the
local government unit for performance of any of the management activities listed above.
new text end Management costs do not include payment by a telecommunications right-of-way user for
the use of the public right-of-way, new text begin any fee based on a telecommunications right-of-way
user's revenues or number of customers, subscribers, access lines, or other performance
metric, new text end the fees and cost of litigation relating to the interpretation of this section or section
237.163 or any ordinance enacted under those sections, or the local unit of government's
fees and costs related to appeals taken pursuant to section 237.163, subdivision 5.

Sec. 4.

Minnesota Statutes 2016, section 237.162, is amended by adding a subdivision to
read:

new text begin Subd. 10. new text end

new text begin Collocate. new text end

new text begin "Collocate" or "collocation" means to install, mount, maintain,
modify, operate, or replace a small wireless facility on, under, within, or adjacent to an
existing private or local government authority utility pole.
new text end

Sec. 5.

Minnesota Statutes 2016, section 237.162, is amended by adding a subdivision to
read:

new text begin Subd. 11. new text end

new text begin Small wireless facility. new text end

new text begin "Small wireless facility" means a wireless facility
that meets both of the following qualifications: (1) each antenna is located inside an enclosure
of no more than six cubic feet in volume or, in the case of an antenna that has exposed
elements, the antenna and all of its exposed elements could fit within an enclosure of no
more than six cubic feet; and (2) all other wireless equipment associated with the facility
is cumulatively no more than 28 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, ground-based enclosures,
battery backup power systems, grounding equipment, power transfer switches, cutoff
switches, cable, conduit, and vertical cable runs for the connection of power and other
services. Any equipment that is concealed from public view within or behind an existing
structure or concealment is not included in a volume calculation.
new text end

Sec. 6.

Minnesota Statutes 2016, section 237.162, is amended by adding a subdivision to
read:

new text begin Subd. 12. new text end

new text begin Utility pole. new text end

new text begin "Utility pole" means a pole or similar structure that is used in
whole or in part for telecommunications service, electric service, lighting, signage, or other
similar functions.
new text end

Sec. 7.

Minnesota Statutes 2016, section 237.163, subdivision 2, is amended to read:

Subd. 2.

Generally.

(a) Subject to this section, a telecommunications right-of-way user
authorized to do business under the laws of this state or by license of the Federal
Communications Commission may construct, maintain, and operate new text begin small wireless facilities,
new text end conduit, cable, switches, and related appurtenances and facilities along, across, upon, above,
and under any public right-of-way.

(b) Subject to this section, a local government unit has the authority to manage its public
rights-of-way and to recover its rights-of-way management costs. The authority defined in
this section may be exercised at the option of the local government unit. The exercise of
this authority is not mandated under this section. A local government unit may, by ordinance:

(1) require a telecommunications right-of-way user seeking to excavate or obstruct a
public right-of-way for the purpose of providing telecommunications services to obtain a
right-of-way permit to do so and to impose permit conditions consistent with the local
government unit's management of the right-of-way;

(2) require a telecommunications right-of-way user using, occupying, or seeking to use
or occupy a public right-of-way for the purpose of providing telecommunications services
to register with the local government unit by providing the local government unit with the
following information:

(i) the applicant's name, gopher state one-call registration number under section 216D.03,
address, and telephone and facsimile numbers;

(ii) the name, address, and telephone and facsimile numbers of the applicant's local
representative;

(iii) proof of adequate insurance; and

(iv) other information deleted text begin deemed deleted text end new text begin the local government unit deems is new text end reasonably necessary
deleted text begin by the local government unit deleted text end for the efficient administration of the public right-of-way deleted text begin ; and deleted text end new text begin ,
provided the same information is requested from all telecommunications right-of-way users;
new text end

(3) require telecommunications right-of-way users to submit to the local government
unit plans for construction and major maintenance that provide reasonable notice to the
local government unit of projects that the telecommunications right-of-way user expects to
undertake that may require excavation and obstruction of public rights-of-way deleted text begin . deleted text end new text begin ; and
new text end

new text begin (4) require a telecommunications right-of-way user seeking to either install a new utility
pole for a small wireless facility or collocate a small wireless facility to obtain a collocation
permit which:
new text end

new text begin (i) must be perpetual in duration, unless revoked under this section;
new text end

new text begin (ii) may impose conditions consistent with the local government unit's public right-of-way
management, including requiring reasonable accommodations for decorative utility poles;
new text end

new text begin (iii) must not require or be conditioned upon the applicant providing any information
that is different from or in addition to the information the local government unit requires
providers of nonwireless telecommunications services to provide; and
new text end

new text begin (iv) must not require an applicant to perform services unrelated to the collocation or
collocations for which approval is sought.
new text end

(c) A local government unit may also require a telecommunications right-of-way user
that is registered with the local government unit pursuant to paragraph (b), clause (2), to
periodically update the information in its registration application.

new text begin (d) Section 15.99 applies to each application for a right-of-way or collocation permit.
An application for a right-of-way or collocation permit may address multiple independent
small wireless facilities or a network of small wireless facilities.
new text end

new text begin (e) Notwithstanding sections 394.34, 462.355, or any other law, a local government unit
must not institute a moratorium on:
new text end

new text begin (1) filing, receiving, or processing applications for right-of-way or collocation permits;
or
new text end

new text begin (2) issuing or approving right-of-way or collocation permits.
new text end

Sec. 8.

Minnesota Statutes 2016, section 237.163, subdivision 4, is amended to read:

Subd. 4.

Permit denial or revocation.

(a) A local government unit may deny any
application for a right-of-way new text begin or collocation new text end permit if the telecommunications right-of-way
user does not comply with a provision of this section.

(b) A local government unit may deny an application for a right-of-way new text begin or collocation
new text end permit if the local government unit determines that the denial is necessary to protect the
health, safety, and welfare or when necessary to protect the public right-of-way and its
current use.

(c) A local government unit may revoke a right-of-way new text begin or collocation new text end permit granted to
a telecommunications right-of-way user, with or without fee refund, in the event of a
substantial breach of the terms and conditions of statute, ordinance, rule, or regulation or
any material condition of the permit. A substantial breach by a permittee includes, but is
not limited to, the following:

(1) a material violation of a provision of the right-of-way new text begin or collocation new text end permit;

(2) an evasion or attempt to evade any material provision of the right-of-way new text begin or
collocation new text end permit, or the perpetration or attempt to perpetrate any fraud or deceit upon the
local government unit or its citizens;

(3) a material misrepresentation of fact in the right-of-way new text begin or collocation new text end permit
application;

(4) a failure to complete work in a timely manner, unless a permit extension is obtained
or unless the failure to complete work is due to reasons beyond the permittee's control; and

(5) a failure to correct, in a timely manner, work that does not conform to new text begin generally
new text end applicable standards, conditions, or codes, upon inspection and notification by the local
government unit of the faulty condition.

(d) Subject to this subdivision, a local government unit may not deny an application for
a right-of-way new text begin or collocation new text end permit for failure to include a project in a plan submitted to
the local government unit under subdivision 2, paragraph (b), clause (3), when the
telecommunications right-of-way user has used commercially reasonable efforts to anticipate
and plan for the project.

(e) In no event may a local government unit unreasonably withhold approval of an
application for a right-of-way new text begin or collocation new text end permit, or unreasonably revoke a permit.

new text begin (f) Any denial or revocation of a right-of-way or collocation permit must be made in
writing and must document the basis for the denial, including the specific regulations, codes,
or standards supporting or requiring the denial. The local government unit must send the
written denial or revocation to the telecommunications right-of-way user within three days
of the decision to deny or revoke the permit. If a permit application was denied, the
telecommunications right-of-way user may cure the deficiencies identified by the local
government unit and resubmit its application. The telecommunications right-of-way user
must resubmit the application within 30 days of receiving the written denial, but is not
required to pay an additional processing fee. The local government unit must approve or
deny the revised application within 30 days following the date the application was
resubmitted.
new text end

Sec. 9.

Minnesota Statutes 2016, section 237.163, subdivision 5, is amended to read:

Subd. 5.

Appeal.

A telecommunications right-of-way user that: (1) has been denied
registration; (2) has been denied a right-of-way permit; (3) has had its right-of-way permit
revoked; or (4) believes that the fees imposed on the user by the local government unit do
not conform to the requirements of subdivision 6, may have the denial, revocation, or fee
imposition reviewed, upon written request, by the governing body of the local government
unit. The governing body of the local government unit shall act on a timely written request
at its next regularly scheduled meeting. A decision by the governing body affirming the
denial, revocation, or fee imposition must be in writing and supported by written findings
establishing the reasonableness of the decision.

Sec. 10.

Minnesota Statutes 2016, section 237.163, subdivision 6, is amended to read:

Subd. 6.

Fees.

(a) A local government unit may recover its right-of-way management
costs by imposing a fee for registration, a fee for each right-of-way new text begin or collocation new text end permit,
or, when appropriate, a fee applicable to a particular telecommunications right-of-way user
when that user causes the local government unit to incur costs as a result of actions or
inactions of that user. A local government unit may not recover from a telecommunications
right-of-way user costs caused by another entity's activity in the right-of-way.

(b) Fees, or other right-of-way obligations, imposed by a local government unit on
telecommunications right-of-way users under this section must be:

(1) based on the actual costs incurred by the local government unit in managing the
public right-of-way;

(2) based on an allocation among all users of the public right-of-way, including the local
government unit itself, which shall reflect the proportionate costs imposed on the local
government unit by each of the various types of uses of the public rights-of-way;

(3) imposed on a competitively neutral basis; and

(4) imposed in a manner so that aboveground uses of public rights-of-way do not bear
costs incurred by the local government unit to regulate underground uses of public
rights-of-way.

(c) The rights, duties, and obligations regarding the use of the public right-of-way
imposed under this section must be applied to all users of the public right-of-way, including
the local government unit while recognizing regulation must reflect the distinct engineering,
construction, operation, maintenance and public and worker safety requirements, and
standards applicable to various users of the public rights-of-way. For users subject to the
franchising authority of a local government unit, to the extent those rights, duties, and
obligations are addressed in the terms of an applicable franchise agreement, the terms of
the franchise shall prevail over any conflicting provision in an ordinance.

new text begin (d) A wireless provider may collocate small wireless facilities on utility poles owned or
controlled by a local government unit and located within the public roads or rights-of-way
without being required to apply for or enter into any individual license, franchise, or other
agreement with the local government unit or any other entity. The terms and conditions of
collocation under this paragraph must be: (1) set forth in the permit; (2) nondiscriminatory,
competitively neutral, and commercially reasonable; and (3) compliant with (i) this section;
(ii) section 237.162; and (iii) federal pole attachment requirements under United States
Code, title 47, section 224, and related implementing regulations. A local government unit
may charge a reasonable annual recurring rate to collocate a small wireless facility on a
utility pole owned or controlled by the local government unit. A rate charged by a local
government unit must not exceed the rate calculated using the Federal Communications
Commission Telecommunications Pole Attachment formula under Code of Federal
Regulations, title 47, section 1.1409(e)(2).
new text end

Sec. 11.

Minnesota Statutes 2016, section 237.163, subdivision 7, is amended to read:

Subd. 7.

Additional right-of-way provisions.

(a) In managing the public rights-of-way
and in imposing fees under this section, no local government unit may:

(1) unlawfully discriminate among telecommunications right-of-way users new text begin or classes of
telecommunications right-of-way users new text end ;

(2) grant a preference to any telecommunications right-of-way user new text begin or class of
telecommunications right-of-way users new text end ;

(3) create or erect any unreasonable requirement for entry to the public rights-of-way
by telecommunications right-of-way users; or

(4) require a telecommunications right-of-way user to obtain a franchise or pay for the
use of the right-of-way.

(b) A telecommunications right-of-way user need not apply for or obtain right-of-way
permits for facilities that are located in public rights-of-way on May 10, 1997, for which
the user has obtained the required consent of the local government unit, or that are otherwise
lawfully occupying the public right-of-way. However, the telecommunications right-of-way
user may be required to register and to obtain a right-of-way permit for an excavation or
obstruction of existing facilities within the public right-of-way after May 10, 1997.

(c) Data and documents exchanged between a local government unit and a
telecommunications right-of-way user are subject to the terms of chapter 13. A local
government unit not complying with this paragraph is subject to the penalties set forth in
section 13.08.

(d) A local government unit may not collect a fee imposed under this section through
the provision of in-kind services by a telecommunications right-of-way user, nor may a
local government unit require the provision of in-kind services as a condition of consent to
use the local government unit's public right-of-way.

Sec. 12.

Minnesota Statutes 2016, section 237.163, is amended by adding a subdivision
to read:

new text begin Subd. 9. new text end

new text begin Siting of small wireless facilities. new text end

new text begin (a) A telecommunications right-of-way user
may collocate small wireless facilities on utility poles located within public rights-of-way,
subject to the approval procedures under this section and the reasonable terms, conditions,
and rates set forth under this chapter, chapter 238, or administrative rules adopted under
this section. A local government unit may prohibit, regulate, or charge a fee to install utility
poles or to collocate small wireless facilities only as provided under this chapter, chapter
238, or the administrative rules adopted under this section.
new text end

new text begin (b) A local government unit's zoning, land use, or other official controls must classify
utility poles as a permitted use in all public rights-of-way and must classify small wireless
facilities as a permitted use in all public rights-of-way and all zoning districts. A
telecommunications right-of-way user must not be required to obtain zoning approval to
install, collocate, maintain, or repair a small wireless facility or a utility pole in a public
right-of-way, wherever located. This paragraph does not apply to areas outside the public
right-of-way that are zoned and used for single family residential use.
new text end

new text begin (c) Notwithstanding paragraph (b), a local government unit may require a
telecommunications right-of-way user to obtain a permit or permits under subdivision 2 to
collocate a small wireless facility in a public right-of-way managed by the local government
unit. A local government unit is prohibited from requiring a collocation permit for routine
maintenance of a small wireless facility or for replacement of a small wireless facility with
a new facility that is substantially similar or smaller in size, weight, height, and wind or
structural loading. A local government unit may require a right-of-way permit if the
maintenance or replacement work will obstruct the public right-of-way.
new text end

Sec. 13.

Minnesota Statutes 2016, section 237.163, is amended by adding a subdivision
to read:

new text begin Subd. 10. new text end

new text begin Authorized contractors. new text end

new text begin (a) Nothing in this section precludes a
telecommunications right-of-way user from authorizing another entity or individual to act
on its behalf to install, construct, maintain, or repair a facility or facilities owned or controlled
by the telecommunications right-of-way user.
new text end

new text begin (b) A local government unit is prohibited from imposing fees or requirements on an
authorized entity or individual for actions on behalf of a telecommunications right-of-way
user that are in addition to or different from the fees and requirements it is authorized to
impose on the telecommunications right-of-way user under this section.
new text end

new text begin (c) Notwithstanding paragraph (b) and subject to subdivision 7, paragraph (a), a local
government unit may impose licensing requirements for entities or individuals that install
construct, maintain, or repair facilities under this paragraph only to the extent that any
licensing requirement imposed applies to all users of the public right-of-way.
new text end