Illinois General Assembly - Full Text of SB1451
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Full Text of SB1451  100th General Assembly




State of Illinois
2017 and 2018


Introduced 2/9/2017, by Sen. Terry Link


New Act
55 ILCS 5/5-12001.2

    Creates the Small Wireless Facilities Deployment Act. Provides for legislative intent for the Act and definitions. Provides that an authority (a unit of local government with control over rights-of-way) may not prohibit, regulate, or charge for the collocation of small wireless facilities (the installation, mounting, maintaining, modifying, operating, or replacement of small wireless facilities on or adjacent to a wireless support structure or utility pole). Provides that small wireless facilities shall be classified as permitted uses and not subject to zoning review and approval under specified circumstances. Provides requirements for applications, fees, application review, and issuance of permits for collocation of small wireless facilities. Provides that an authority may not require applications for routine maintenance or replacement of wireless facilities with wireless facilities that are substantially similar, of the same size, or smaller. Requires authorities to allow the collocation of small wireless facilities on authority utility poles under specified circumstances. Prohibits authorities from regulating the design, engineering, construction, installation, or operation of any small wireless facility in specified circumstances. Provides that a circuit court has jurisdiction to resolve all disputes arising under the Act. Prohibits an authority from requiring a wireless provider to indemnify the authority or its officers or employees and from naming the authority on a wireless provider's insurance policy. Limits home rule powers. Amends the Counties Code making conforming changes.

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SB1451LRB100 09256 AWJ 19412 b

1    AN ACT concerning local government.
2    Be it enacted by the People of the State of Illinois,
3represented in the General Assembly:
4    Section 1. Short title. This Act may be cited as the Small
5Wireless Facilities Deployment Act.
6    Section 5. Legislative intent. Small wireless facilities
7are critical to delivering wireless access to advanced
8technology, broadband, and 9-1-1 services to homes,
9businesses, and schools in Illinois. Because of the integral
10role that the delivery of wireless technology plays in the
11economic vitality of the State of Illinois and in the lives of
12its citizens, the General Assembly has determined that a law
13addressing the deployment of wireless technology is of vital
14interest to the State. To ensure that public and private
15Illinois consumers continue to benefit from these services as
16soon as possible and to ensure that providers of wireless
17access have a fair and predictable process for the deployment
18of small wireless facilities, the General Assembly is enacting
19this Act, which specifies how local authorities may regulate
20the collocation of small wireless facilities.
21    Section 10. Definitions. As used in this Act:
22    "Antenna" means communications equipment that transmits or



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1receives electromagnetic radio frequency signals used in the
2provision of wireless services.
3    "Applicable codes" means uniform building, fire,
4electrical, plumbing, or mechanical codes adopted by a
5recognized national code organization or local amendments to
6those codes enacted solely to address imminent threats of
7destruction of property or injury to persons to the extent not
8inconsistent with the terms of this Act.
9    "Applicant" means any person who submits an application and
10is a wireless provider.
11    "Application" means a request submitted by an applicant to
12an authority for a permit to collocate small wireless
14    "Authority" means a unit of local government that has
15jurisdiction and control for use of public rights-of-way as
16provided by the Illinois Highway Code for placements within
17public rights-of-way or has zoning or land use control for
18placements not within public rights-of-way.
19    "Authority utility pole" means a utility pole owned or
20operated by an authority in public rights-of-way.
21    "Collocate" or "collocation" means to install, mount,
22maintain, modify, operate, or replace wireless facilities on or
23adjacent to a wireless support structure or utility pole.
24    "Communications service" means cable service, as defined
25in 47 U.S.C. 522(6), as amended; information service, as
26defined in 47 U.S.C. 153(24), as amended; telecommunications



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1service as defined in 47 U.S.C. 153(53), as amended; mobile
2service as defined in 47 U.S.C. 153(33), as amended; or
3wireless service other than mobile service.
4    "Communications service provider" means a cable operator,
5as defined in 47 U.S.C. 522(5), as amended; a provider of
6information service, as defined in 47 U.S.C. 153(24), as
7amended; a telecommunications carrier, as defined in 47 U.S.C.
8153(51), as amended; or a wireless provider.
9    "FCC" means the Federal Communications Commission of the
10United States.
11    "Fee" means a one-time charge.
12    "Law" means a federal or State statute, common law, code,
13rule, regulation, order, or local ordinance or resolution.
14    "Permit" means a written authorization required by an
15authority to perform an action or initiate, continue, or
16complete a project.
17    "Person" means an individual, corporation, limited
18liability company, partnership, association, trust, or other
19entity or organization, including an authority.
20    "Rate" means a recurring charge.
21    "Rights-of-way" means the area on, below, or above a public
22roadway, highway, street, sidewalk, alley, utility easement,
23or similar property, but not including a federal interstate
25    "Small wireless facility" means a wireless facility that
26meets both of the following qualifications: (i) each antenna is



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1located inside an enclosure of no more than 6 cubic feet in
2volume or, in the case of an antenna that has exposed elements,
3the antenna and all of its exposed elements could fit within an
4imaginary enclosure of no more than 6 cubic feet; and (ii) all
5other wireless equipment associated with the facility is
6cumulatively no more than 28 cubic feet in volume. The
7following types of associated ancillary equipment are not
8included in the calculation of equipment volume: electric
9meter, concealment elements, telecommunications demarcation
10box, ground-based enclosures, grounding equipment, power
11transfer switch, cut-off switch, and vertical cable runs for
12the connection of power and other services.
13    "Utility pole" means a pole or similar structure that is
14used in whole or in part by a communications service provider
15or for electric distribution, lighting, traffic control,
16signage, or a similar function.
17    "Wireless facility" means equipment at a fixed location
18that enables wireless communications between user equipment
19and a communications network, including: (i) equipment
20associated with wireless communications; and (ii) radio
21transceivers, antennas, coaxial or fiber-optic cable, regular
22and backup power supplies, and comparable equipment,
23regardless of technological configuration. "Wireless facility"
24includes small wireless facilities. "Wireless facility" does
25not include the structure or improvements on, under, or within
26which the equipment is collocated.



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1    "Wireless infrastructure provider" means any person,
2including a person authorized to provide telecommunications
3service in the State, that builds or installs wireless
4communication transmission equipment, wireless facilities,
5wireless support structures, or utility poles, but that is not
6a wireless services provider.
7    "Wireless provider" means a wireless infrastructure
8provider or a wireless services provider.
9    "Wireless services" means any services, whether at a fixed
10location or mobile, provided using wireless facilities.
11    "Wireless services provider" means a person who provides
12wireless services.
13    "Wireless support structure" means a freestanding
14structure, such as a monopole; tower, either guyed or
15self-supporting; billboard; or other existing or proposed
16structure designed to support or capable of supporting wireless
17facilities. "Wireless support structure" does not include a
18utility pole.
19    Section 15. Regulation of small wireless facilities.
20    (a) This Section applies to activities of a wireless
21provider within or outside rights-of-way.
22    (b) Except as provided in this Section, an authority may
23not prohibit, regulate, or charge for the collocation of small
24wireless facilities.
25    (c) Small wireless facilities shall be classified as



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1permitted uses and not subject to zoning review or approval if
2they are collocated (i) in rights-of-way in any zone or (ii)
3outside rights-of-way in property not zoned exclusively for
4single family residential use.
5    (d) An authority may require an applicant to obtain one or
6more permits to collocate a small wireless facility, provided
7that the permits are of general applicability and do not apply
8exclusively to wireless facilities. An authority shall receive
9applications for, process, and issue permits subject to the
10following requirements:
11        (1) An authority may not directly or indirectly require
12    an applicant to perform services unrelated to the
13    collocation for which approval is sought, such as in-kind
14    contributions to the authority including reserving fiber,
15    conduit, or pole space for the authority.
16        (2) An applicant shall not be required to provide more
17    information to obtain a permit than communications service
18    providers that are not wireless providers.
19        (3) An authority may not require the placement of small
20    wireless facilities on any specific utility pole, or
21    category of poles, or require multiple antenna systems on a
22    single utility pole.
23        (4) An authority may not limit the placement of small
24    wireless facilities, either by minimum separation
25    distances or maximum height limitations, except that the
26    authority may limit the height of a small wireless facility



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1    to 10 feet above the utility pole or wireless support
2    structure on which the small wireless facility is
3    collocated. Subject to any exception process in an
4    authority zoning ordinance, the authority may (i) limit the
5    height of new or replacement utility poles or wireless
6    support structures on which small wireless facilities are
7    collocated to 10 feet above the tallest existing utility
8    pole measured from grade in place within 500 feet of the
9    proposed location of the small wireless facility; or (ii)
10    limit the height of the new or replacement utility pole or
11    wireless support structure to 50 feet if there is no
12    utility pole within 500 feet.
13        (5) Within 10 days after receiving an application, an
14    authority must determine and notify the applicant by
15    electronic mail whether the application is complete. If an
16    application is incomplete, an authority must specifically
17    identify the missing information. An application shall be
18    deemed complete if the authority fails to provide
19    notification to the applicant within 10 days or when all
20    documents, information, and fees specifically enumerated
21    in the authority's permit application form are submitted by
22    the applicant to the authority.
23        (6) An application shall be processed on a
24    nondiscriminatory basis and deemed approved if the
25    authority fails to approve or deny the application within
26    60 days.



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1        (7) An authority shall approve an application unless it
2    does not meet the authority's applicable codes. The
3    authority must document the basis for a denial, including
4    the specific code provisions on which the denial was based,
5    and send the documentation to the applicant by electronic
6    mail on or before the day the authority denies an
7    application. The applicant may cure the deficiencies
8    identified by the authority and resubmit the application
9    within 30 days after notice of denial is sent to the
10    applicant without paying an additional application fee.
11    The authority shall approve or deny the revised application
12    within 30 days after notice of denial is sent to the
13    applicant or it is deemed approved. Any subsequent review
14    shall be limited to the deficiencies cited in the denial.
15        (8) An applicant seeking to collocate small wireless
16    facilities within the jurisdiction of a single authority
17    shall be allowed, at the applicant's discretion, to file a
18    consolidated application and receive a single permit for
19    the collocation of multiple small wireless facilities.
20        (9) Collocation for which a permit is granted shall
21    commence within one year after issuance of the permit and
22    shall be pursued to completion. Any time limitation placed
23    on permits shall be void unless the applicant subsequently
24    and voluntarily requests that the permit be terminated.
25        (10) An authority may not institute, either expressly
26    or de facto, a moratorium on (i) filing, receiving, or



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1    processing applications or (ii) issuing permits or other
2    approvals, if any, for the collocation of small wireless
3    facilities.
4    (e) Application fees shall be subject to the following
6        (1) An authority may charge an application fee only if
7    such fee is required for similar types of commercial
8    development within the authority's jurisdiction.
9        (2) An authority shall only charge fees for the actual,
10    direct, and reasonable costs incurred by the authority
11    relating to the granting or processing of an application.
12    Such fees shall be reasonably related in time to the
13    incurring of such costs. Where such costs are already
14    recovered by existing fees, rates, or taxes paid by a
15    wireless provider, no application fee shall be assessed to
16    recover such costs.
17        (3) A fee may not include (i) travel expenses incurred
18    by a third party in its review of an application or (ii)
19    direct payment or reimbursement of third-party rates or
20    fees charged on a contingency basis or a result-based
21    arrangement.
22        (4) In any controversy concerning the appropriateness
23    of a fee, an authority shall have the burden of proving
24    that the fee is reasonably related to the actual, direct,
25    and reasonable costs incurred by the authority.
26        (5) Total application fees, where permitted, shall not



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1    exceed the lesser of: (i) the amount charged by the
2    authority for a building permit for any similar commercial
3    construction, activity, or land use development; or (ii)
4    $100 each for up to 5 small wireless facilities addressed
5    in an application and $50 for each additional small
6    wireless facility addressed in the application.
7    (f) An authority shall not require an application for (i)
8routine maintenance or (ii) the replacement of wireless
9facilities with wireless facilities that are substantially
10similar, the same size, or smaller. An authority may, however,
11require a permit to work within rights-of-way for items (i) and
12(ii) of this subsection, if applicable. Any permits for work
13within rights-of-way shall be subject to the requirements
14provided in this Section.
15    (g) Nothing in this Act authorizes a person to collocate
16small wireless facilities on a privately owned utility pole or
17wireless support structure or other private property without
18the consent of the property owner.
19    (h) An authority shall allow the collocation of small
20wireless facilities on authority utility poles as follows:
21        (1) An authority may not enter into an exclusive
22    arrangement with any person for the right to attach small
23    wireless facilities to authority utility poles.
24        (2) The rates and fees for collocations on authority
25    utility poles shall be nondiscriminatory regardless of the
26    services provided by the collocating person.



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1        (3) The rate to collocate on authority utility poles
2    may not exceed the annual recurring rate that would be
3    permitted under rules adopted by the FCC under 47 U.S.C.
4    224(e) if the rates were regulated by the FCC or $20 per
5    year per authority utility pole, whichever is less.
6        (4) If an authority has an existing pole attachment
7    rate, fee, or other term that does not comply with the
8    requirements in this Section, the authority shall, no later
9    than 6 months after the effective date of this Act, reform
10    such rate, fee, or term in compliance with this subsection.
11        (5) Persons owning or controlling authority utility
12    poles shall offer rates, fees, and other terms that comply
13    with subparagraphs (A) through (D) of this paragraph (5).
14    Within 6 months after the effective date of this Act or 3
15    months after receiving a request to collocate its first
16    small wireless facility on an authority utility pole,
17    whichever is later, a person owning or controlling
18    authority utility poles shall make available, through
19    ordinance or otherwise, the rates, fees, and terms for the
20    collocation of small wireless facilities on such poles that
21    comply with subparagraphs (A) through (D) of this paragraph
22    (5).
23            (A) The rates, fees, and terms must be
24        nondiscriminatory, competitively neutral, and
25        commercially reasonable and must comply with this
26        subsection (h).



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1            (B) For authority utility poles that support
2        aerial facilities used to provide communications
3        services or electric service the parties shall comply
4        with the process for make-ready work under 47 U.S.C.
5        224 and its implementing regulations. The good faith
6        estimate of the person owning or controlling the pole
7        for any make-ready work necessary to enable the pole to
8        support the requested collocation shall include pole
9        replacement, if necessary.
10            (C) For authority utility poles that do not support
11        aerial facilities used to provide communications
12        services or electric service, the authority shall
13        provide a good faith estimate for any make-ready work
14        necessary to enable the pole to support the requested
15        collocation, including pole replacement, if necessary,
16        within 60 days after receipt of a complete application.
17        Make-ready work including any pole replacement shall
18        be completed within 60 days of written acceptance of
19        the good faith estimate by the applicant.
20            (D) The authority shall not require more
21        make-ready work than required to meet applicable codes
22        or industry standards. Fees for make-ready work shall
23        not include costs related to pre-existing or prior
24        damage or noncompliance. Fees for make-ready work,
25        including any pole replacement, shall not exceed
26        actual costs or the amount charged to communications



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1        service providers for similar work and shall not
2        include any consultants' fees or expenses.
3    (i) An authority shall authorize the collocation of small
4wireless facilities on authority wireless support structures
5and authority utility poles owned or controlled by an authority
6that are not located within rights-of-way to the same extent
7the authority permits access to such structures for other
8commercial projects or uses. Such collocations shall be subject
9to reasonable and nondiscriminatory rates, fees, and terms as
10provided in an agreement between the authority and the wireless
12    Section 20. Local authority. Subject to this Act and
13applicable federal law, an authority may continue to exercise
14zoning, land use, planning, and permitting authority within its
15territorial boundaries, including with respect to wireless
16support structures and utility poles; except that no authority
17shall have or exercise any jurisdiction or authority over the
18design, engineering, construction, installation, or operation
19of any small wireless facility located in an interior structure
20or upon the site of any campus, stadium, or athletic facility
21not otherwise owned or controlled by the authority, other than
22to comply with applicable codes. Nothing in this Act authorizes
23the State or any political subdivision, including an authority,
24to require wireless facility deployment or to regulate wireless



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1    Section 25. Dispute resolution. A circuit court has
2jurisdiction to resolve all disputes arising under this Act.
3Pending resolution of a dispute concerning rates for
4collocation of small wireless facilities on authority utility
5poles, the authority shall allow the collocating person to
6collocate on its poles at annual rates of no more than $20 per
7year per utility pole, with rates to be determined upon final
8resolution of the dispute. Complaints shall be adjudicated no
9later than 180 days after a complaint or petition is filed.
10    Section 30. Indemnification. An authority shall not: (i)
11require a wireless provider to indemnify and hold the authority
12and its officers and employees harmless against any claims,
13lawsuits, judgments, costs, liens, losses, expenses, or fees,
14except when a court of competent jurisdiction has found that
15the negligence of the wireless provider while installing,
16repairing, or maintaining caused the harm that created the
17claims, lawsuits, judgments, costs, liens, losses, expenses,
18or fees; or (ii) require a wireless provider to obtain
19insurance naming the authority or its officers and employees an
20additional insured against any claims, lawsuits, judgments,
21costs, liens, losses, expenses, or fees.
22    Section 35. Home rule. A home rule unit may not regulate
23small wireless facilities in a manner inconsistent with this



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1Act. This Section is a limitation under subsection (i) of
2Section 6 of Article VII of the Illinois Constitution on the
3concurrent exercise by home rule units of powers and functions
4exercised by the State.
5    Section 100. The Counties Code is amended by changing
6Section 5-12001.2 as follows:
7    (55 ILCS 5/5-12001.2)
8    Sec. 5-12001.2. Regulation of telecommunications
9facilities; Lake County pilot project. In addition to any other
10requirements under this Division concerning the regulation of
11telecommunications facilities and except as provided by the
12Small Wireless Facilities Deployment Act, the following
13applies to any new telecommunications facilities in Lake County
14that are not AM telecommunications towers or facilities:
15        (a) For every new wireless telecommunications facility
16    requiring a new tower structure, a telecommunications
17    carrier shall provide the county with documentation
18    consisting of the proposed location, a site plan, and an
19    elevation that sufficiently describes a proposed wireless
20    facility location.
21        (b) The county shall have 7 days to review the facility
22    proposal and contact the telecommunications carrier in
23    writing via e-mail or other written means as specified by
24    the telecommunications carrier. This written communication



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1    shall either approve the proposed location or request a
2    meeting to review other possible alternative locations. If
3    requested, the meeting shall take place within 7 days after
4    the date of the written communication.
5        (c) At the meeting, the telecommunications carrier
6    shall provide the county documentation consisting of radio
7    frequency engineering criteria and a corresponding
8    telecommunications facility search ring map, together with
9    documentation of the carrier's efforts to site the proposed
10    facility within the telecommunications facility search
11    ring.
12        (d) Within 21 days after receipt of the carrier's
13    documentation, the county shall propose either an
14    alternative site within the telecommunications facility
15    search ring, or an alternative site outside of the
16    telecommunications search ring that meets the radio
17    frequency engineering criteria provided by the
18    telecommunications carrier and that will not materially
19    increase the construction budget beyond what was estimated
20    on the original carrier proposed site.
21        (e) If the county's proposed alternative site meets the
22    radio frequency engineering criteria provided by the
23    telecommunications carrier, and will not materially
24    increase the construction budget beyond what was estimated
25    on the original carrier proposed site, then the
26    telecommunications carrier shall agree to build the



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1    facility at the alternative location, subject to the
2    negotiation of a lease with commercially reasonable terms
3    and the obtainment of the customary building permits.
4        (f) If the telecommunications carrier can demonstrate
5    that: (i) the county's proposed alternative site does not
6    meet the radio frequency engineering criteria, (ii) the
7    county's proposed alternative site will materially
8    increase the construction budget beyond what was estimated
9    on the original carrier proposed site, (iii) the county has
10    failed to provide an alternative site, or (iv) after a
11    period of 90 days after receipt of the alternative site,
12    the telecommunications carrier has failed, after acting in
13    good faith and with due diligence, to obtain a lease or, at
14    a minimum, a letter of intent to lease the alternative site
15    at lease rates not materially greater than the lease rate
16    for the original proposed site; then the carrier can
17    proceed to permit and construct the site under the
18    provisions and standards of Section 5-12001.1 of this Code.
19(Source: P.A. 98-197, eff. 8-9-13; 98-756, eff. 7-16-14.)