Telecommunications Bill That Aids Cell Networks Leaves Cities Scrambling
April 29, 2017 at 4:05 a.m.
Telecommunications Bill That Aids Cell Networks Leaves Cities Scrambling
By David [email protected]
The Warsaw Board of Public Works and Safety met in a special session Friday to pass a resolution that would help the city retain some local control on where the “micro wireless facilities” – also known as small cell facilities – are placed. The networks augment coverage by existing cell towers, and Senate Enrolled Act 213 would allow them to be erected in public rights of way without the need for local government permits. The bill gave cities and towns only until May 1 to designate underground utility areas.
Gov. Eric Holcomb hasn’t signed the bill yet. Stephanie Wilson, press secretary for the governor, said Friday that Holcomb has until May 5 by Senate rules and May 6 by House rules to make a decision on all bills sent to his desk. She said he is still considering it.
Mayor Joe Thallemer said the bill was one of the last bills to get through the state legislature.
“Essentially, this is the telecommunications bill that opens up communities to allow these small cell networks to come into the community. The concern here is that there really is no regard to where these will go. ... If we don’t take action this morning, they literally can go into a neighborhood and a new pole could be erected in front of someone’s house and the city wouldn’t have any ability to do anything about it,” Thallemer said.
He said there are protections in the legislation from the small cell structures in C-4 historical districts, but those would be the only protected areas in the bill.
“Essentially, they can come in and put them on any structure that is in an area that allows above-ground utilities. It could be a NIPSCO pole, it could be a city street light, it could be a traffic signal, as long as they pay the permitting fee, they have the right to do that based on this Senate Enrolled Act 213,” Thallemer stated.
The bill does have a provision that allows a municipality to designate an area for strictly underground/buried utilities that would protect those areas from erection of a pole, he said. Municipalities only have until Monday to pass that resolution. Under that provision, the Board of Works approved the resolution establishing an underground and buried utility district.
Thallemer said the city was made aware of the bill Tuesday night, and advertised Friday’s meeting on Wednesday so the resolution could be approved before Monday. City attorney Mike Valentine created the resolution to protect those areas from the telecommunication companies from just coming in and installing a pole.
The mayor acknowledged the technology was very important to expand cell and Wi-Fi service in the community and the small networks is the wave of the future, but the city’s concern was where they were going to be placed.
He said he’s also been made aware by Accelerate Indiana Municipalities, formerly known as the Indiana Association of Cities and Towns, that approximately 100 other local units are doing the same thing the city of Warsaw is doing to get similar resolutions passed. Thallemer plans to take the resolution to the city council Monday. AIM has said the Board of Works resolutions “will suffice,” he said.
“We felt we had to act,” Thallemer said.
City Planner Jeremy Skinner read a portion of SB 213 that states, “The placement of a small cell facility and the associated supporting structure in the public right of way is considered a permitted use and is exempt from local zoning review if the total height of the structure supporting the small cell facility does not exceed the greater of” 50 feet and/or 10 feet above any utility height within 500 feet of that location.
He said, “So the real intent basically is to tell us that our right of way is not for our review, it’s for the state review. So, congratulations to them.”
He told the Board of Works that its resolution allows the city – in those areas where there are no above-ground utilities, or overhead utility lines or communication lines – to protect, to a certain extent, those areas for any future location of the small cell towers. In newer neighborhoods and developments, where all the utilities are buried, “we’re basically designating those as specifically for only buried utilities, which doesn’t allow for any overhead utilities.” Those areas that have overhead utilities have specific regulations within the state statute that allows the city, to some extent, to work with the provider in an attempt to control the location of the small cell facilities, but it doesn’t give the city the complete right to exclude them.
The board’s resolution would not cover any areas where there are existing above-ground or overhead utility or communication lines, he stated. “But those areas where there are none, we would still have some semblance of control of placement of those small cell facilities, in general.”
He said the city may have some additional control over historical districts like the downtown or historical neighborhoods like two or three blocks of Fort Wayne Street.
Councilman and Board of Public Works and Safety (BPW) member Jeff Grose pointed out sections 4 and 5 of the board’s resolution. Section 4 states that “unless otherwise expressly authorized by the city’s BPW, all utilities location with the city’s rights of way or a granted utility easement shall be placed underground and/or buried." Section 5 states “all existing overhead poles, writes and/or utility transmission lines may remain within the city’s right of way or utility easement, but may not be replaced or relocated without prior written authorization of the BPW.”
Skinner said the resolution would make the telecommunications company have to come before the board for any relocation or changes to poles.
On SB 213, Thallemer stated it was crafted to take away local control. He pointed out a part of it that states, “The applicant’s right to use an alternative location is subject to reasonable terms and conditions, and the alternative location will not result in limitations or additional costs as determined by the applicant”
“So, they essentially have full veto right based on the cost or technical limitation. The city doesn’t. So they can veto those alternative locations. ... Unfortunately, this piece of legislation ignores local control, and we’re here today to do whatever we can,” said Thallemer.
Grose said, “The countermove. The move and countermove to have influence for the good of our neighborhoods.”
Skinner said the resolution gives the city some control over the areas that don't have overhead lines. “If you read through the rest of the legislation, those areas that have existing overhead communication and electrical transmission lines, it’s very heavy-handed in favor of wireless facilities. While we will still have a process in place, it basically gives us 60 days to tell them no, and then they get 60 days to tell us yes,” he said.
He said while regulated public utilities are allowed to locate within public rights of way, and are governed by the IURC, as far as cellular communication towers go, they’re not considered a public utility and aren’t regulated by the IURC.
“So to give them carte blanche to do whatever they want in our right of way, as if they were a public utility, is somewhat frustrating to us and probably other municipalities and counties across the state of Indiana,” Skinner said.
A copy of Senate Bill 213 can be found online at https://iga.in.gov/legislative/2017/bills/senate/213#document-2d60bd03.
The Warsaw Board of Public Works and Safety met in a special session Friday to pass a resolution that would help the city retain some local control on where the “micro wireless facilities” – also known as small cell facilities – are placed. The networks augment coverage by existing cell towers, and Senate Enrolled Act 213 would allow them to be erected in public rights of way without the need for local government permits. The bill gave cities and towns only until May 1 to designate underground utility areas.
Gov. Eric Holcomb hasn’t signed the bill yet. Stephanie Wilson, press secretary for the governor, said Friday that Holcomb has until May 5 by Senate rules and May 6 by House rules to make a decision on all bills sent to his desk. She said he is still considering it.
Mayor Joe Thallemer said the bill was one of the last bills to get through the state legislature.
“Essentially, this is the telecommunications bill that opens up communities to allow these small cell networks to come into the community. The concern here is that there really is no regard to where these will go. ... If we don’t take action this morning, they literally can go into a neighborhood and a new pole could be erected in front of someone’s house and the city wouldn’t have any ability to do anything about it,” Thallemer said.
He said there are protections in the legislation from the small cell structures in C-4 historical districts, but those would be the only protected areas in the bill.
“Essentially, they can come in and put them on any structure that is in an area that allows above-ground utilities. It could be a NIPSCO pole, it could be a city street light, it could be a traffic signal, as long as they pay the permitting fee, they have the right to do that based on this Senate Enrolled Act 213,” Thallemer stated.
The bill does have a provision that allows a municipality to designate an area for strictly underground/buried utilities that would protect those areas from erection of a pole, he said. Municipalities only have until Monday to pass that resolution. Under that provision, the Board of Works approved the resolution establishing an underground and buried utility district.
Thallemer said the city was made aware of the bill Tuesday night, and advertised Friday’s meeting on Wednesday so the resolution could be approved before Monday. City attorney Mike Valentine created the resolution to protect those areas from the telecommunication companies from just coming in and installing a pole.
The mayor acknowledged the technology was very important to expand cell and Wi-Fi service in the community and the small networks is the wave of the future, but the city’s concern was where they were going to be placed.
He said he’s also been made aware by Accelerate Indiana Municipalities, formerly known as the Indiana Association of Cities and Towns, that approximately 100 other local units are doing the same thing the city of Warsaw is doing to get similar resolutions passed. Thallemer plans to take the resolution to the city council Monday. AIM has said the Board of Works resolutions “will suffice,” he said.
“We felt we had to act,” Thallemer said.
City Planner Jeremy Skinner read a portion of SB 213 that states, “The placement of a small cell facility and the associated supporting structure in the public right of way is considered a permitted use and is exempt from local zoning review if the total height of the structure supporting the small cell facility does not exceed the greater of” 50 feet and/or 10 feet above any utility height within 500 feet of that location.
He said, “So the real intent basically is to tell us that our right of way is not for our review, it’s for the state review. So, congratulations to them.”
He told the Board of Works that its resolution allows the city – in those areas where there are no above-ground utilities, or overhead utility lines or communication lines – to protect, to a certain extent, those areas for any future location of the small cell towers. In newer neighborhoods and developments, where all the utilities are buried, “we’re basically designating those as specifically for only buried utilities, which doesn’t allow for any overhead utilities.” Those areas that have overhead utilities have specific regulations within the state statute that allows the city, to some extent, to work with the provider in an attempt to control the location of the small cell facilities, but it doesn’t give the city the complete right to exclude them.
The board’s resolution would not cover any areas where there are existing above-ground or overhead utility or communication lines, he stated. “But those areas where there are none, we would still have some semblance of control of placement of those small cell facilities, in general.”
He said the city may have some additional control over historical districts like the downtown or historical neighborhoods like two or three blocks of Fort Wayne Street.
Councilman and Board of Public Works and Safety (BPW) member Jeff Grose pointed out sections 4 and 5 of the board’s resolution. Section 4 states that “unless otherwise expressly authorized by the city’s BPW, all utilities location with the city’s rights of way or a granted utility easement shall be placed underground and/or buried." Section 5 states “all existing overhead poles, writes and/or utility transmission lines may remain within the city’s right of way or utility easement, but may not be replaced or relocated without prior written authorization of the BPW.”
Skinner said the resolution would make the telecommunications company have to come before the board for any relocation or changes to poles.
On SB 213, Thallemer stated it was crafted to take away local control. He pointed out a part of it that states, “The applicant’s right to use an alternative location is subject to reasonable terms and conditions, and the alternative location will not result in limitations or additional costs as determined by the applicant”
“So, they essentially have full veto right based on the cost or technical limitation. The city doesn’t. So they can veto those alternative locations. ... Unfortunately, this piece of legislation ignores local control, and we’re here today to do whatever we can,” said Thallemer.
Grose said, “The countermove. The move and countermove to have influence for the good of our neighborhoods.”
Skinner said the resolution gives the city some control over the areas that don't have overhead lines. “If you read through the rest of the legislation, those areas that have existing overhead communication and electrical transmission lines, it’s very heavy-handed in favor of wireless facilities. While we will still have a process in place, it basically gives us 60 days to tell them no, and then they get 60 days to tell us yes,” he said.
He said while regulated public utilities are allowed to locate within public rights of way, and are governed by the IURC, as far as cellular communication towers go, they’re not considered a public utility and aren’t regulated by the IURC.
“So to give them carte blanche to do whatever they want in our right of way, as if they were a public utility, is somewhat frustrating to us and probably other municipalities and counties across the state of Indiana,” Skinner said.
A copy of Senate Bill 213 can be found online at https://iga.in.gov/legislative/2017/bills/senate/213#document-2d60bd03.
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