On December 7, 2016, the Ohio Legislature passed Senate Bill No. 331, which, among other issues, would amend Ohio law to promote the prompt deployment of small cells and Distributed Antenna Systems (“DAS”) by significantly limiting local authority over wireless deployment in public rights of way. On December 19, 2016, the Ohio Governor signed SB 331. We are likely to see legislation similar to the Ohio measure introduced in other states in 2017, and thus, it is worthwhile to review some of the key provisions. On the whole, the Bill contains many important provsions that should aid in the deployment of DAS and small cells.
Notably, the Bill amends Section 4939.01 of the Ohio Revised Code to define as “Micro Wireless Facilities” DAS and small cells that have antennas not greater than 6 cubic feet in volume, associated equipment not more than 28 cubic feet in volume (excluding several specified items, such as electric meters and concealment elements), and that do not increase the height of the supporting structure more than 10 feet or a total resulting height of 50 feet.
The Bill also includes a broad definition of a “Wireless Support Structure,” as any “pole,” including monopoles, “light pole, traffic signal, sign pole, or utility pole” that is capable of supporting wireless facilities. However, the definition excludes utility poles owned by a municipal electric utility (which seems an odd exclusion since the Bill separately requires cities to grant access to municipally-owned poles).
Zoning Prohibited – Permitted Use
The Bill significantly limits local authority, eliminating the problems associated with discretionary local zoning review. In new Section 4939.031, the Bill provides that, other than set forth in the new provisions, municipalities cannot require any zoning or other approval, consent, permit, or certificate, or otherwise “prohibit or restrain” the activities governed by the new provisions. In a new Section 4939.033, the Bill also explicitly provides that an application for a Micro Wireless Facility in the public rights of way “shall be deemed a permitted use and shall be exempt from local zoning review.”
Time To Act – Deemed Grant
The Bill requires local action within 90 days of a completed application. The Bill follows the FCC’s Rules requiring local governments to give notice within 30 days if they claim the application is incomplete, and in that notice, to explicitly identify what was missing. Only missing information that is reasonably related to determine whether the application satisfies requirements of federal and state law can toll the shot clock. Like under the FCC’s Rules, subsequent assertions of incompleteness must be provided within 10 days and are limited to the items identified in the original notice. If the local government fails to approve the application within the 90 days, the application shall be deemed granted when the applicant provides notice that the time has run.
Application fees for a permit to install Micro Wireless Facilities in the public rights of way are limited to the lesser of $250 or the amount charged for a building permit for any other type of commercial or land use development.
The Bill also gives the applicant discretion to file a consolidated application when applying for multiple small cell sites.
Limits On Local Authority
In new Section 4939.0315, the Bill prohibits 17 specific actions by location governments. Among other things, under the Bill local governments cannot:
- Prohibit location in residential areas or within a specific distance from a residence;
- Require the applicant to submit information or otherwise consider “need” for the facility, customer demand, or quality of service;
- Evaluate the request based on availability of other potential locations (however the city can propose an alternate location within 50 feet, which must be used if the applicant has authority and there are not technical limits or additional costs);
- Require removal of existing wireless support structures or facilities;
- Require bonds, escrow deposits, or letters of credit, unless also imposed generally on right of way occupants;
- Impose unreasonable requirements regarding appearance;
- Require the use of municipally-owned facilities or property;
- Require the applicant to agree to allow collocation;
- Limit the duration of permits;
- Impose setbacks or fall zone requirements that are different from requirements, if any, imposed on other structures in the public rights of way;
- Impose separation requirements between wireless facilities
In new Section 4939.0317, the Bill also expressly prohibits local moratoria on filing, acceptance of filing, or consideration/approval of applications for Micro Wireless Facilities in the public rights of way. Attachment To Municipal Poles – Limits on Fees
In new Section 4939.0325, the Bill requires municipalities to allow attachment of Micro Wireless Facilities to municipal support structures in the public rights of way. It also then limits the fees municipalities can charge for attachment to municipal structures to the lesser of actual, direct, and reasonable costs or $200. The Bill also prohibits local governments from entering into exclusive agreements for use of municipal support structures.
The Bill provides that consent shall not be required for routine maintenance or replacement of wireless facilities with facilities that are “substantially similar” to the existing facilities or “the same size or smaller” than the existing wireless facilities. It also adopts the 60 day federal shot clock for eligible facilities requests under Section 6409(a) of the Spectrum Act and the FCC’s Rules (47 C.F.R. § 1.40001).