2019 Municipal Update ANITA GALLUCCI 3.5.19 agallucci@boardmanclark.com 608.283.1770
WPL v. Sun Prairie (PSC Docket 6680-DR-113) • Who can be a witness at a contested case hearing or provide comments at a public hearing? • The “Premises Rule” • Litigation costs and the “American Rule”
Witness at Evidentiary Hearing/ Commenter at Public Hearing The Commercial Customer affected by the result of a proceeding may • not provide testimony in support of a party at the evidentiary hearing unless the Commercial Customer becomes a party to the proceeding. Information provided by the Commercial Customer during discovery • can be used as evidence and to support a decision to strike the Commercial Customer’s proffered testimony. The non-party Commercial Customer may not offer comments at the • public hearing portion of the proceeding.
PSC Rules PSC 2.20 (2) : A person may testify at a hearing without becoming a party. PSC 2.02 (8) : Hearing means a contested case hearing or other trial-type hearing. PSC 2.02 (14): Public hearing means a hearing that is not a trial-type hearing.
PSC Rules PSC 2.20 (2) : A person may testify at a hearing without becoming a party. PSC 2.02 (8) : Hearing means a contested case hearing or other trial-type hearing. PSC 2.02 (14): Public hearing means a hearing that is not a trial- type hearing.
The Premises Issue
Premises Rule: Wis. Stat. § 196.495(1m)(a)
The Menards Case 8
Premises Factors Nature of changes in ownership and use of the • premises Nature of changes in the service to be provided • Usefulness of existing facilities • Propinquity and economy of service • Purposes of § 196.495 • Protection of the consuming public, not the utilities • Avoidance of duplication of facilities •
Commission Ruling: Menards is premises already being served by WPL. • WPL therefore has the exclusive right to serve Menards. Most important facts: • WPL had served the house and workshop on the • premises, extending 3-phase service to the workshop WPL continued to serve the house and workshop for • 6 months after Menards bought the property WPL’s 3 -phase line could be used to serve Menards •
Remedy Ordered by Commission If WP&L and SPU are unable to reach an agreement within 60 days from the effective date of this Final Decision, this matter shall be returned to the Commission for the Commission to determine whether to require the sale of assets or require SPU, at its expense, to remove its electric service improvements constructed and placed in service to serve the Premises. If the matter is returned to the Commission, WP&L may provide documentation regarding its costs related to this proceeding for the Commission to determine whether to award costs to WP&L.
Remedy: Wis. Stat. § 196.495(5)
FCC Proceedings Accelerating Wireless and Wireline Broadband Deployment by Removing Barriers to Infrastructure Investment
Federal Pole Attachment Act 47 U.S.C. § 224 • IOUs and ILECs must grant pole access to “cable television systems” and “telecommunications carriers,” including wireless carriers • FCC rules address rates and terms and conditions of access (e.g., make-ready) • Municipal exemption • Reverse preemption
Siting of Wireless Facilities 47 USC § 332 (c)(7) Preserves local authority to control placement of “ personal wireless services facilities ,” except: • May not prohibit or effectively prohibit provision of service • May not unreasonably discriminate among providers of functionally equivalent services • Must act within a reasonable time • Denial must be in writing and supported by substantial evidence in a written record • May not regulate based on effects of RF emissions if the wireless facility complies with FCC rules
Access to Local Rights-of- Way (“ROW”) 47 U.S.C. § 253 • State and local regulations can’t prohibit or have the effect of prohibiting the ability of any entity to provide telecommunication services • May still impose non-discriminatory ROW management and compensation requirements
Anatomy of a Pole Wireless Antenna Pole Extension Communications Space
Third Report and Order and Declaratory Ruling (Aug. 3, 2018) • Allows new attachers to use a one-touch make-ready (OTMR) process for simple make- ready work for wireline attachments in the “communications space” on a pole • Preempts moratoria on the acceptance, processing, or approval of permits for telecommunications services or facilities • Codifies FCC precedent that allows attachers to “overlash” existing wires with notice but without pole owner’s approval • Eliminates disparities between the pole attachment rates incumbent carriers pay compared to cable and telco attachers
Third Report and Order and Declaratory Ruling ( con’t ) • Self-help remedy – new attachers may perform make-ready above the communications space with a qualified contractor if utility misses the make-ready deadline • States can adopt OTMR requirements if consistent with FCC rules
Do FCC’s Make -Ready Rules Apply to MEUs? Not today, but will if state passes a small cell bill like 2017 SB 425, which provided that MEU pole owners must: • Comply with the process for make-ready work under 47 USC § 224 and its implementing regulations, including 47 CFR § 1.1420 (shot clocks) and § 1.1422 (contractor lists) • Provide a good faith estimate for any make-ready work necessary to enable the pole to support the attachments and estimate must include pole replacement if necessary
Declaratory Ruling and 3 rd Order and Report (Sept. 27, 2018) • Order addresses regulation of Small Wireless Facilities in local ROW • New standards to determine whether a state/local requirement is preempted • New standards for assessing permissible aesthetic, undergrounding, and spacing requirements • New shot clocks (deadlines) for acting on permit applications • Sets presumptively reasonable fees and charges that can be imposed on small cell providers
Small Wireless Facilities Defined • Antenna - no more than 3 cubic feet in volume • Associated equipment - no more than 28 cubic feet • Height • Structure on which antenna is mounted is 50 ft tall or less, including antennas, or • Mounted on structure no more than 10% taller than “adjacent structures,” or • Antennas do not extend height of structure to more than greater of 50 ft tall or increase it by more than 10% in Jonathan Kramer — demo of 28 cu ft height
Effective Prohibition • General Rule: • A state or local requirement effectively prohibits deployment of telecommunications when it “ materially limits or inhibits any competitor’s or potential competitor’s ability to compete in a fair and balanced legal and regulatory environment.” • Fee Requirements: • Fees must (1) reasonably approximate government’s costs; (2) be objectively reasonable to pass on to carrier; and (3) be no higher than fees charged to competitors in similar circumstances • Non-Fee Requirements (e.g., aesthetics, undergrounding): • Requirements must be (1) reasonable; (2) no more burdensome than those applied to other infrastructure deployments; and (3) published in advance
Shot Clocks • Two new shot clocks for small wireless facilities (60 days for collocation* on preexisting structures and 90 days for new builds) • Codifies the existing 90- and 150-day shot clocks for non-small cell wireless facility deployments, established in an FCC 2009 Declaratory Ruling • Shot clocks apply to all state and local government authorizations needed to deploy personal wireless service infrastructure • Failure to act within the new small wireless facility shot clock is presumed to prohibit the provision of services, under Section 253(a), unless local government immediately provides all required authorizations
Shot Clock Summary • New cell tower (≠ small cells): 150 days • Cell antenna on existing structure (≠small cells): 90 days • Small cell: 60 days • Modifications of communications tower • If “insubstantial,” 60 days • If “substantial,” 90 days • State shot clock likely applies if more restrictive
Presumptively Reasonable Fees • Fee amounts that are presumed acceptable under Sections 253 and 332: • $500 for a “single up -front application that includes up to five Small Wireless Facilities (SWF), with an additional $100 for each SWF beyond five, or $1,000 for non- recurring fees for a new pole” intended to support one or more SWFs. • $270 per SWF, per year for all recurring fees (including “any possible ROW access fee or fee for attachment to municipally-owned structures in the ROW”). • Can charge fees above these levels only by showing that the fee is a “ reasonable approximation of cost that itself is objectively reasonable ” • The ruling sets no specific accounting or cost-allocation methodologies
Federal Legislation
Streamline Small Cell Deployment S. 3157 (amends 47 USC § 332) • Applies to deployment of Small Wireless Facilities • Requires non-discriminatory access to ROW, MEU-owned poles, streetlights, other street furniture • Denial of access can be based on safety, reliability, engineering, some aesthetic concerns • FCC rates apply • Tough shot clocks with “deemed granted” provisions
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