HB2561 102ND GENERAL ASSEMBLY

LRB102 14490 AWJ 19843 b

102ND GENERAL ASSEMBLY
State of Illinois
2021 and 2022
HB2561

Introduced 2/19/2021, by Rep. Deanne M. Mazzochi

SYNOPSIS AS INTRODUCED:

50 ILCS 840/15

was 50 ILCS 835/15

Amends the Small Wireless Facilities Deployment Act. In provisions relating to the permit application process for an applicant to collocate a small wireless facility, allows an authority to require an applicant or site developer to provide probative evidence in the form of hard data recorded during a drive test performed by an independent radio-frequency engineer selected by the authority to support gap-in-coverage claims to establish (i) the existence of a real gap in the specific carrier's wireless coverage, (ii) the location of the gap, and (iii) the geographical boundaries of the gap.

A BILL FOR

AN ACT concerning local government.

Be it enacted by the People of the State of Illinois, represented in the General Assembly:

Section 5. The Small Wireless Facilities Deployment Act is amended by changing Section 15 as follows:

(50 ILCS 840/15) (was 50 ILCS 835/15)

(Section scheduled to be repealed on June 1, 2021)

Sec. 15. Regulation of small wireless facilities.

(a) This Section applies to activities of a wireless provider within or outside rights-of-way.

(b) Except as provided in this Section, an authority may not prohibit, regulate, or charge for the collocation of small wireless facilities.

(c) Small wireless facilities shall be classified as permitted uses and subject to administrative review in conformance with this Act, except as provided in paragraph (5) of subsection (d) of this Section regarding height exceptions or variances, but not subject to zoning review or approval if they are collocated (i) in rights-of-way in any zone, or (ii) outside rights-of-way in property zoned exclusively for commercial or industrial use.

(d) An authority may require an applicant to obtain one or more permits to collocate a small wireless facility. An authority shall receive applications for, process, and issue permits subject to the following requirements:

(1) An authority may not directly or indirectly require an applicant to perform services unrelated to the collocation for which approval is sought, such as in-kind contributions to the authority, including reserving fiber, conduit, or utility pole space for the authority on the wireless provider's utility pole. An authority may reserve space on authority utility poles for future public safety uses or for the authority's electric utility uses, but a reservation of space may not preclude the collocation of a small wireless facility unless the authority reasonably determines that the authority utility pole cannot accommodate both uses.

(2) An applicant shall not be required to provide more information to obtain a permit than the authority requires of a communications service provider that is not a wireless provider that requests to attach facilities to a structure; however, a wireless provider may be required to provide the following information when seeking a permit to collocate small wireless facilities on a utility pole or wireless support structure:

(A) site specific structural integrity and, for an authority utility pole, make-ready analysis prepared by a structural engineer, as that term is defined in Section 4 of the Structural Engineering Practice Act of 1989;

(B) the location where each proposed small wireless facility or utility pole would be installed and photographs of the location and its immediate surroundings depicting the utility poles or structures on which each proposed small wireless facility would be mounted or location where utility poles or structures would be installed;

(C) specifications and drawings prepared by a structural engineer, as that term is defined in Section 4 of the Structural Engineering Practice Act of 1989, for each proposed small wireless facility covered by the application as it is proposed to be installed;

(D) the equipment type and model numbers for the antennas and all other wireless equipment associated with the small wireless facility;

(E) a proposed schedule for the installation and completion of each small wireless facility covered by the application, if approved; and

(F) certification that the collocation complies with paragraph (6) to the best of the applicant's knowledge.

(3) Subject to paragraph (6), an authority may not require the placement of small wireless facilities on any specific utility pole, or category of utility poles, or require multiple antenna systems on a single utility pole; however, with respect to an application for the collocation of a small wireless facility associated with a new utility pole, an authority may propose that the small wireless facility be collocated on an existing utility pole or existing wireless support structure within 100 feet of the proposed collocation, which the applicant shall accept if it has the right to use the alternate structure on reasonable terms and conditions and the alternate location and structure does not impose technical limits or additional material costs as determined by the applicant. The authority may require the applicant to provide a written certification describing the property rights, technical limits or material cost reasons the alternate location does not satisfy the criteria in this paragraph (3).

(4) Subject to paragraph (6), an authority may not limit the placement of small wireless facilities mounted on a utility pole or a wireless support structure by minimum horizontal separation distances.

(5) An authority may limit the maximum height of a small wireless facility to 10 feet above the utility pole or wireless support structure on which the small wireless facility is collocated. Subject to any applicable waiver, zoning, or other process that addresses wireless provider requests for an exception or variance and does not prohibit granting of such exceptions or variances, the authority may limit the height of new or replacement utility poles or wireless support structures on which small wireless facilities are collocated to the higher of: (i) 10 feet in height above the tallest existing utility pole, other than a utility pole supporting only wireless facilities, that is in place on the date the application is submitted to the authority, that is located within 300 feet of the new or replacement utility pole or wireless support structure and that is in the same right-of-way within the jurisdictional boundary of the authority, provided the authority may designate which intersecting right-of-way within 300 feet of the proposed utility pole or wireless support structures shall control the height limitation for such facility; or (ii) 45 feet above ground level.

(6) An authority may require that:

(A) the wireless provider's operation of the small wireless facilities does not interfere with the frequencies used by a public safety agency for public safety communications; a wireless provider shall install small wireless facilities of the type and frequency that will not cause unacceptable interference with a public safety agency's communications equipment; unacceptable interference will be determined by and measured in accordance with industry standards and the FCC's regulations addressing unacceptable interference to public safety spectrum or any other spectrum licensed by a public safety agency; if a small wireless facility causes such interference, and the wireless provider has been given written notice of the interference by the public safety agency, the wireless provider, at its own expense, shall take all reasonable steps necessary to correct and eliminate the interference, including, but not limited to, powering down the small wireless facility and later powering up the small wireless facility for intermittent testing, if necessary; the authority may terminate a permit for a small wireless facility based on such interference if the wireless provider is not making a good faith effort to remedy the problem in a manner consistent with the abatement and resolution procedures for interference with public safety spectrum established by the FCC including 47 CFR 22.970 through 47 CFR 22.973 and 47 CFR 90.672 through 47 CFR 90.675;

(B) the wireless provider comply with requirements that are imposed by a contract between an authority and a private property owner that concern design or construction standards applicable to utility poles and ground-mounted equipment located in the right-of-way;

(C) the wireless provider comply with applicable spacing requirements in applicable codes and ordinances concerning the location of ground-mounted equipment located in the right-of-way if the requirements include a waiver, zoning, or other process that addresses wireless provider requests for exception or variance and do not prohibit granting of such exceptions or variances;

(D) the wireless provider comply with local code provisions or regulations concerning undergrounding requirements that prohibit the installation of new or the modification of existing utility poles in a right-of-way without prior approval if the requirements include a waiver, zoning, or other process that addresses requests to install such new utility poles or modify such existing utility poles and do not prohibit the replacement of utility poles;

(E) the wireless provider comply with generally applicable standards that are consistent with this Act and adopted by an authority for construction and public safety in the rights-of-way, including, but not limited to, reasonable and nondiscriminatory wiring and cabling requirements, grounding requirements, utility pole extension requirements, and signage limitations; and shall comply with reasonable and nondiscriminatory requirements that are consistent with this Act and adopted by an authority regulating the location, size, surface area and height of small wireless facilities, or the abandonment and removal of small wireless facilities;

(F) the wireless provider not collocate small wireless facilities on authority utility poles that are part of an electric distribution or transmission system within the communication worker safety zone of the pole or the electric supply zone of the pole; however, the antenna and support equipment of the small wireless facility may be located in the communications space on the authority utility pole and on the top of the pole, if not otherwise unavailable, if the wireless provider complies with applicable codes for work involving the top of the pole; for purposes of this subparagraph (F), the terms "communications space", "communication worker safety zone", and "electric supply zone" have the meanings given to those terms in the National Electric Safety Code as published by the Institute of Electrical and Electronics Engineers;

(G) the wireless provider comply with the applicable codes and local code provisions or regulations that concern public safety;

(H) the wireless provider comply with written design standards that are generally applicable for decorative utility poles, or reasonable stealth, concealment, and aesthetic requirements that are identified by the authority in an ordinance, written policy adopted by the governing board of the authority, a comprehensive plan, or other written design plan that applies to other occupiers of the rights-of-way, including on a historic landmark or in a historic district; and

(I) subject to subsection (c) of this Section, and except for facilities excluded from evaluation for effects on historic properties under 47 CFR 1.1307(a)(4), reasonable, technically feasible and non-discriminatory design or concealment measures in a historic district or historic landmark; any such design or concealment measures, including restrictions on a specific category of poles, may not have the effect of prohibiting any provider's technology; such design and concealment measures shall not be considered a part of the small wireless facility for purposes of the size restrictions of a small wireless facility; this paragraph may not be construed to limit an authority's enforcement of historic preservation in conformance with the requirements adopted pursuant to the Illinois State Agency Historic Resources Preservation Act or the National Historic Preservation Act of 1966, 54 U.S.C. Section 300101 et seq., and the regulations adopted to implement those laws.

(7) Within 30 days after receiving an application, an authority must determine whether the application is complete and notify the applicant. If an application is incomplete, an authority must specifically identify the missing information. An application shall be deemed complete if the authority fails to provide notification to the applicant within 30 days after when all documents, information, and fees specifically enumerated in the authority's permit application form are submitted by the applicant to the authority. Processing deadlines are tolled from the time the authority sends the notice of incompleteness to the time the applicant provides the missing information.

(8) An authority shall process applications as follows:

(A) an application to collocate a small wireless facility on an existing utility pole or wireless support structure shall be processed on a nondiscriminatory basis and deemed approved if the authority fails to approve or deny the application within 90 days; however, if an applicant intends to proceed with the permitted activity on a deemed approved basis, the applicant must notify the authority in writing of its intention to invoke the deemed approved remedy no sooner than 75 days after the submission of a completed application; the permit shall be deemed approved on the latter of the 90th day after submission of the complete application or the 10th day after the receipt of the deemed approved notice by the authority; the receipt of the deemed approved notice shall not preclude the authority's denial of the permit request within the time limits as provided under this Act; and

(B) an application to collocate a small wireless facility that includes the installation of a new utility pole shall be processed on a nondiscriminatory basis and deemed approved if the authority fails to approve or deny the application within 120 days; however, if an applicant intends to proceed with the permitted activity on a deemed approved basis, the applicant must notify the authority in writing of its intention to invoke the deemed approved remedy no sooner than 105 days after the submission of a completed application; the permit shall be deemed approved on the latter of the 120th day after submission of the complete application or the 10th day after the receipt of the deemed approved notice by the authority; the receipt of the deemed approved notice shall not preclude the authority's denial of the permit request within the time limits as provided under this Act.

(9) An authority shall approve an application unless the application does not meet the requirements of this Act. If an authority determines that applicable codes, local code provisions or regulations that concern public safety, or the requirements of paragraph (6) require that the utility pole or wireless support structure be replaced before the requested collocation, approval may be conditioned on the replacement of the utility pole or wireless support structure at the cost of the provider. The authority must document the basis for a denial, including the specific code provisions or application conditions on which the denial was based, and send the documentation to the applicant on or before the day the authority denies an application. The applicant may cure the deficiencies identified by the authority and resubmit the revised application once within 30 days after notice of denial is sent to the applicant without paying an additional application fee. The authority shall approve or deny the revised application within 30 days after the applicant resubmits the application or it is deemed approved; however, the applicant must notify the authority in writing of its intention to proceed with the permitted activity on a deemed approved basis, which may be submitted with the resubmitted application. Any subsequent review shall be limited to the deficiencies cited in the denial. However, this revised application cure does not apply if the cure requires the review of a new location, new or different structure to be collocated upon, new antennas, or other wireless equipment associated with the small wireless facility.

(10) The time period for applications may be further tolled by:

(A) the express agreement in writing by both the applicant and the authority; or

(B) a local, State, or federal disaster declaration or similar emergency that causes the delay.

(11) An applicant seeking to collocate small wireless facilities within the jurisdiction of a single authority shall be allowed, at the applicant's discretion, to file a consolidated application and receive a single permit for the collocation of up to 25 small wireless facilities if the collocations each involve substantially the same type of small wireless facility and substantially the same type of structure. If an application includes multiple small wireless facilities, the authority may remove small wireless facility collocations from the application and treat separately small wireless facility collocations for which incomplete information has been provided or that do not qualify for consolidated treatment or that are denied. The authority may issue separate permits for each collocation that is approved in a consolidated application.

(12) Collocation for which a permit is granted shall be completed within 180 days after issuance of the permit, unless the authority and the wireless provider agree to extend this period or a delay is caused by make-ready work for an authority utility pole or by the lack of commercial power or backhaul availability at the site, provided the wireless provider has made a timely request within 60 days after the issuance of the permit for commercial power or backhaul services, and the additional time to complete installation does not exceed 360 days after issuance of the permit. Otherwise, the permit shall be void unless the authority grants an extension in writing to the applicant.

(13) The duration of a permit shall be for a period of not less than 5 years, and the permit shall be renewed for equivalent durations unless the authority makes a finding that the small wireless facilities or the new or modified utility pole do not comply with the applicable codes or local code provisions or regulations in paragraphs (6) and (9). If this Act is repealed as provided in Section 90, renewals of permits shall be subject to the applicable authority code provisions or regulations in effect at the time of renewal.

(14) An authority may not prohibit, either expressly or de facto, the (i) filing, receiving, or processing applications, or (ii) issuing of permits or other approvals, if any, for the collocation of small wireless facilities unless there has been a local, State, or federal disaster declaration or similar emergency that causes the delay.

(15) Applicants shall submit applications, supporting information, and notices by personal delivery or as otherwise required by the authority. An authority may require that permits, supporting information, and notices be submitted by personal delivery at the authority's designated place of business, by regular mail postmarked on the date due, or by any other commonly used means, including electronic mail, as required by the authority.

(16) An authority may require an applicant or site developer to provide probative evidence in the form of hard data recorded during a drive test performed by an independent radio-frequency engineer selected by the authority to support gap-in-coverage claims to establish (i) the existence of a real gap in the specific carrier's wireless coverage, (ii) the location of the gap, and (iii) the geographical boundaries of the gap.

(e) Application fees are subject to the following requirements:

(1) An authority may charge an application fee of up to $650 for an application to collocate a single small wireless facility on an existing utility pole or wireless support structure and up to $350 for each small wireless facility addressed in an application to collocate more than one small wireless facility on existing utility poles or wireless support structures.

(2) An authority may charge an application fee of $1,000 for each small wireless facility addressed in an application that includes the installation of a new utility for such collocation.

(3) Notwithstanding any contrary provision of State law or local ordinance, applications pursuant to this Section must be accompanied by the required application fee.

(4) Within 2 months after the effective date of this Act, an authority shall make available application fees consistent with this subsection, through ordinance, or in a written schedule of permit fees adopted by the authority.

(f) An authority shall not require an application, approval, or permit, or require any fees or other charges, from a communications service provider authorized to occupy the rights-of-way, for: (i) routine maintenance; (ii) the replacement of wireless facilities with wireless facilities that are substantially similar, the same size, or smaller if the wireless provider notifies the authority at least 10 days prior to the planned replacement and includes equipment specifications for the replacement of equipment consistent with the requirements of subparagraph (D) of paragraph (2) of subsection (d) of this Section; or (iii) the installation, placement, maintenance, operation, or replacement of micro wireless facilities that are suspended on cables that are strung between existing utility poles in compliance with applicable safety codes. However, an authority may require a permit to work within rights-of-way for activities that affect traffic patterns or require lane closures.

(g) Nothing in this Act authorizes a person to collocate small wireless facilities on: (1) property owned by a private party or property owned or controlled by a unit of local government that is not located within rights-of-way, subject to subsection (j) of this Section, or a privately owned utility pole or wireless support structure without the consent of the property owner; (2) property owned, leased, or controlled by a park district, forest preserve district, or conservation district for public park, recreation, or conservation purposes without the consent of the affected district, excluding the placement of facilities on rights-of-way located in an affected district that are under the jurisdiction and control of a different unit of local government as provided by the Illinois Highway Code; or (3) property owned by a rail carrier registered under Section 18c-7201 of the Illinois Vehicle Code, Metra Commuter Rail or any other public commuter rail service, or an electric utility as defined in Section 16-102 of the Public Utilities Act, without the consent of the rail carrier, public commuter rail service, or electric utility. The provisions of this Act do not apply to an electric or gas public utility or such utility's wireless facilities if the facilities are being used, developed, and maintained consistent with the provisions of subsection (i) of Section 16-108.5 of the Public Utilities Act.

For the purposes of this subsection, "public utility" has the meaning given to that term in Section 3-105 of the Public Utilities Act. Nothing in this Act shall be construed to relieve any person from any requirement (1) to obtain a franchise or a State-issued authorization to offer cable service or video service or (2) to obtain any required permission to install, place, maintain, or operate communications facilities, other than small wireless facilities subject to this Act.

(h) Agreements between authorities and wireless providers that relate to the collocation of small wireless facilities in the right-of-way, including the collocation of small wireless facilities on authority utility poles, that are in effect on the effective date of this Act remain in effect for all small wireless facilities collocated on the authority's utility poles pursuant to applications submitted to the authority before the effective date of this Act, subject to applicable termination provisions. Such agreements entered into after the effective date of the Act shall comply with the Act.

(i) An authority shall allow the collocation of small wireless facilities on authority utility poles subject to the following:

(1) An authority may not enter into an exclusive arrangement with any person for the right to attach small wireless facilities to authority utility poles.

(2) The rates and fees for collocations on authority utility poles shall be nondiscriminatory regardless of the services provided by the collocating person.

(3) An authority may charge an annual recurring rate to collocate a small wireless facility on an authority utility pole located in a right-of-way that equals (i) $200 per year or (ii) the actual, direct, and reasonable costs related to the wireless provider's use of space on the authority utility pole. Rates for collocation on authority utility poles located outside of a right-of-way are not subject to these limitations. In any controversy concerning the appropriateness of a cost-based rate for an authority utility pole located within a right-of-way, the authority shall have the burden of proving that the rate does not exceed the actual, direct, and reasonable costs for the applicant's proposed use of the authority utility pole. Nothing in this paragraph (3) prohibits a wireless provider and an authority from mutually agreeing to an annual recurring rate of less than $200 to collocate a small wireless facility on an authority utility pole.

(4) Authorities or other persons owning or controlling authority utility poles within the right-of-way shall offer rates, fees, and other terms that comply with subparagraphs (A) through (E) of this paragraph (4). Within 2 months after the effective date of this Act, an authority or a person owning or controlling authority utility poles shall make available, through ordinance or an authority utility pole attachment agreement, license or other agreement that makes available to wireless providers, the rates, fees, and terms for the collocation of small wireless facilities on authority utility poles that comply with this Act and with subparagraphs (A) through (E) of this paragraph (4). In the absence of such an ordinance or agreement that complies with this Act, and until such a compliant ordinance or agreement is adopted, wireless providers may collocate small wireless facilities and install utility poles under the requirements of this Act.

(A) The rates, fees, and terms must be nondiscriminatory, competitively neutral, and commercially reasonable, and may address, among other requirements, the requirements in subparagraphs (A) through (I) of paragraph (6) of subsection (d) of this Section; subsections (e), (i), and (k) of this Section; Section 30; and Section 35, and must comply with this Act.

(B) For authority utility poles that support aerial facilities used to provide communications services or electric service, wireless providers shall comply with the process for make-ready work under 47 U.S.C. 224 and its implementing regulations, and the authority shall follow a substantially similar process for make-ready work except to the extent that the timing requirements are otherwise addressed in this Act. The good-faith estimate of the person owning or controlling the authority utility pole for any make-ready work necessary to enable the pole to support the requested collocation shall include authority utility pole replacement, if necessary.

(C) For authority utility poles that do not support aerial facilities used to provide communications services or electric service, the authority shall provide a good-faith estimate for any make-ready work necessary to enable the authority utility pole to support the requested collocation, including pole replacement, if necessary, within 90 days after receipt of a complete application. Make-ready work, including any authority utility pole replacement, shall be completed within 60 days of written acceptance of the good-faith estimate by the applicant at the wireless provider's sole cost and expense. Alternatively, if the authority determines that applicable codes or public safety regulations require the authority utility pole to be replaced to support the requested collocation, the authority may require the wireless provider to replace the authority utility pole at the wireless provider's sole cost and expense.

(D) The authority shall not require more make-ready work than required to meet applicable codes or industry standards. Make-ready work may include work needed to accommodate additional public safety communications needs that are identified in a documented and approved plan for the deployment of public safety equipment as specified in paragraph (1) of subsection (d) of this Section and included in an existing or preliminary authority or public service agency budget for attachment within one year of the application. Fees for make-ready work, including any authority utility pole replacement, shall not exceed actual costs or the amount charged to communications service providers for similar work and shall not include any consultants' fees or expenses for authority utility poles that do not support aerial facilities used to provide communications services or electric service. Make-ready work, including any pole replacement, shall be completed within 60 days of written acceptance of the good-faith estimate by the wireless provider, at its sole cost and expense.

(E) A wireless provider that has an existing agreement with the authority on the effective date of the Act may accept the rates, fees, and terms that an authority makes available under this Act for the collocation of small wireless facilities or the installation of new utility poles for the collocation of small wireless facilities that are the subject of an application submitted 2 or more years after the effective date of the Act as provided in this paragraph (4) by notifying the authority that it opts to accept such rates, fees, and terms. The existing agreement remains in effect, subject to applicable termination provisions, for the small wireless facilities the wireless provider has collocated on the authority's utility poles pursuant to applications submitted to the authority before the wireless provider provides such notice and exercises its option under this subparagraph.

(j) An authority shall authorize the collocation of small wireless facilities on utility poles owned or controlled by the authority that are not located within rights-of-way to the same extent the authority currently permits access to utility poles for other commercial projects or uses. The collocations shall be subject to reasonable and nondiscriminatory rates, fees, and terms as provided in an agreement between the authority and the wireless provider.

(k) Nothing in this Section precludes an authority from adopting reasonable rules with respect to the removal of abandoned small wireless facilities. A small wireless facility that is not operated for a continuous period of 12 months shall be considered abandoned and the owner of the facility must remove the small wireless facility within 90 days after receipt of written notice from the authority notifying the owner of the abandonment. The notice shall be sent by certified or registered mail, return receipt requested, by the authority to the owner at the last known address of the owner. If the small wireless facility is not removed within 90 days of such notice, the authority may remove or cause the removal of the such facility pursuant to the terms of its pole attachment agreement for authority utility poles or through whatever actions are provided for abatement of nuisances or by other law for removal and cost recovery. An authority may require a wireless provider to provide written notice to the authority if it sells or transfers small wireless facilities subject to this Act within the jurisdictional boundary of the authority. Such notice shall include the name and contact information of the new wireless provider.

(l) Nothing in this Section requires an authority to install or maintain any specific utility pole or to continue to install or maintain utility poles in any location if the authority makes a non-discriminatory decision to eliminate above-ground utility poles of a particular type generally, such as electric utility poles, in all or a significant portion of its geographic jurisdiction. For authority utility poles with collocated small wireless facilities in place when an authority makes a decision to eliminate above-ground utility poles of a particular type generally, the authority shall either (i) continue to maintain the authority utility pole or install and maintain a reasonable alternative utility pole or wireless support structure for the collocation of the small wireless facility, or (ii) offer to sell the utility pole to the wireless provider at a reasonable cost or allow the wireless provider to install its own utility pole so it can maintain service from that location.

(Source: P.A. 100-585, eff. 6-1-18.)