Last week, Sen. Devin LeMahieu (R-Oostburg) and Rep. Mike Kuglitsch (R-New Berlin) introduced legislation sought by the cell phone industry known as the small cell or 5G bill. The bill, SB 239/ AB 234, is similar to legislation that passed the Assembly last session (2017 SB 425). That bill died in the Senate due to opposition from the cable industry.

This session's bill mirrors limitations placed on municipal regulatory powers by the September 2018 Federal Communications Commission 5G ruling. It creates a regulatory framework for the state and local governments for the following: 1) the deployment by wireless service providers of wireless equipment and facilities for 5G service, including the placement of such items in rights-of-way (ROW); 2) the local permitting process for certain activities by wireless providers; 3) the regulation of access to government poles by wireless providers; and 4) the resolution of disputes. The bill also restores to local governments the ability to impose setback requirements for certain cell towers.

Over the last several weeks the League, the Counties Association, and the Towns Association negotiated with the cell phone industry and obtained the following changes to an earlier draft of the bill:

1. Provide for an annual 2% escalator to the maximum allowable pole rental charges municipalities may make.  

2. Allow municipalities to adjust any fee caps imposed by the bill whenever the FCC adjusts its determination of what fee amounts are presumptively reasonable.

3. Restore municipal authority to impose setback limits on macro towers placed on any parcels in which single family residential is a permitted use, regardless if it is the actual current use. (Last session's bill allowed communities to impose setback requirements on land that was zoned for single-family residential use only.)

4. Regarding ability of municipalities to recommend a different location for proposed placement of small cell facilities in right of way, delete following language: “within 50 feet of the proposed location”. Also, define what constitutes “Technically feasible.” Allow wireless provider to reject municipal suggestion for a different location of facilities only if not technically feasible or “material” additional costs would be incurred by the wireless provider.

5. Allow communities to regulate the aesthetics of small cell facilities and support structures placed in the right of way to the same degree communities have such authority under the FCC ruling.

6. Clarify that, consistent with FCC ruling, a municipality may charge fees for each small cell device located on a pole not just one fee for the pole regardless of number of antennas placed on it.

In addition, when attorneys for the City of Milwaukee and Municipal Electric Utilities of Wisconsin expressed concern over a provision in the bill draft that could be interpreted as preempting municipal powers, the League convinced proponents of the bill to modify the provision to make it clear that municipalities may rely on existing authority to reasonably regulate cable and wireless service providers' use of the right-of-way.

As a result of these changes, the League agreed to take a neutral position on the bill. As did the Counties Association and the Towns Association. Committees in both the Senate and the Assembly are conducting hearings on the bill this Wednesday.

Last week Sen. Tiffany (R-Minocqua) and Rep. Brooks (R-Saukville) introduced SB 234 at the League's request. The bill limits relocation payments made in condemnation actions by a redevelopment or community development authority and a county. Under current law, as modified by last session's developers' bill, a property owner displaced from a business or farm operation by condemnation who purchases or rents a comparable business or farm operation may be entitled to a payment for certain costs from the condemnor. If the condemnor is a village, town, or city, the payment to a property owner is capped at $100,000 and the payment to a tenant is capped at $80,000. There are no caps on relocation costs for any oather governmental entities. SB 234 applies the caps applicable to cities, villages and towns, to relocation payments made when the condemnor is a redevelopment authority, a community development authority, or a county.