Distributed Antenna Systems and House Bill 2564
The Commonwealth Court recently ruled in Crown Castle NG East LLC v. Pa Public Utility Commission, 697 C.D. 2017, that Distributed Antenna System (DAS) networks are public utilities and are entitled to Certificates of Public Convenience. The PUC has filed a Petition for Allowance of Appeal with the Pennsylvania Supreme Court.
Following that Decision, House Bill 2564 was introduced to allow for the deployment of these DAS systems. The Bill is very extensive and restrictive to municipalities. Here are some of the highlights:
-The Bill permits small wireless facilities in public rights of way on utility poles.
-Utility poles are defined to include the vertical support structure for traffic lights.
-Municipalities cannot enter into an exclusive arrangement for the use of the right of way.
-Limits on how much a municipality can charge: Annual right of way fee of $25 per facility or per utility pole.
-Wireless providers, with the permission of the owner of the structure, have the right within the right of way to: collocate, maintain and modify small wireless facilities on existing utility poles; install new utility poles; replace existing utility poles; and collocate on other structures.
-There are protections in municipalities that require underground utility service, if the requirement to install underground was in effect for more than 3 months prior to the submission of an application. However, providers can replace municipal poles in designated areas and a provider can seek a waiver to install a new utility pole.
-Wireless providers have the right as a permitted use subject to a permitted use process and not subject to zoning review or approval to: collocate and modify or replace existing utility poles in the right of way; install new utility poles within the right of way.
-There is a process for review of applications that include deadlines and a deemed approval if deadlines are not met. In addition, there are limited reasons for a municipality to deny an application.
-Applications are not required for: routine maintenance; replacement of a small wireless facility with one of the same or smaller size; installation, placement, maintenance, operation or replacement of micro wireless facilities that are strung on cables between existing utility poles.
-Application fees cannot exceed $100 and cannot include third party rates or fees charged on a contingency basis or a result-based arrangement.
-Municipalities must allow collocation on municipal poles unless the facility will cause structural or safety deficiencies to the municipal pole, in which case the municipality and the applicant must work together to accomplish any work, modifications or replacements necessary to accommodate the facility.
-The rate to collocate on a municipal pole cannot exceed $50 per attachment per year.
Our office will monitor House Bill 2564 and will provide updates with regard to its status. Municipal officials are encouraged to make their elected representatives aware of their concerns with respect to this proposed legislation.