PA House Attempts to Fast Track Bill to Undermine Municipal Rights: Committee Vote Scheduled for Monday, June 17
You may recall that Verizon and AT&T have tried twice in the last two years to convince the PA General Assembly to approve a bill that preempts municipal rights and lower fees for managing new wireless poles and antennas in the public rights-of-way. Both of those bills were unsuccessful due to strong municipal opposition.
This week, they are trying a third time with one important difference. The bill, House Bill 1400, is being fast tracked to try to silence local governments. Their hope is that local officials will not be able to organize quickly enough to stop the bill.
What is the time frame and what can you do?
H.B. 1400 was introduced on June 11, a hearing was held on June 12, and a vote on the bill has been scheduled by the House Consumer Affairs Committee for this Monday, June 17. Given the very short time frame involved, please contact your State Representative by phone or email today (regular mail will not be fast enough) in order to register your opposition to the bill.
What are the problems with H.B. 1400?
In 2018, the Federal Communications Commission (“FCC”) issued its Third Report and Order, which sets forth specific rules for local governments in regulating wireless facilities in the rights-of-way. While it places restrictions on municipalities, it also preserves local zoning authority. H.B. 1400 would significantly undermine this zoning authority and drastically reduce the fees permitted by the FCC Order. The bill would harm municipalities in four significant ways:
- The bill effectively eliminates local zoning authority over wireless facilities in the public rights-of-way.
- The bill drastically reduces the fees that municipalities can assess.
- The bill doubles the size of wireless facilities that are exempt from zoning and allows for poles of unlimited height.
- The bill fails to provide full indemnification and relaxes companies’ repair and replacement obligations.
More information about H.B. 1400
- The Bill Effectively Eliminates Local Zoning Authority: Section 4(b) of the bill does not permit wireless facility applications to be reviewed for compliance with a municipality’s zoning code. Similarly, Section 4(f) of the proposed bill enumerates four permissible reasons for denial of a small wireless facility application, none of which include non-compliance with a municipality’s zoning code or right-of-way ordinance. These provisions of the bill render local zoning control useless, as municipalities are not permitted to review applications for compliance with zoning regulations or deny proposed facilities for failure to meet zoning requirements.
- The Bill Drastically Reduces Fees to Municipalities: The proposed bill significantly reduces the fees that local governments may assess. The FCC Order allows for the following maximum fees: $270 per wireless facility per year for a right-of-way fee; $1,000 for a one-time application fee for each new pole; and $500 for an application fee for up to five new antennas, plus $100 for each additional antenna.
H.B. 1400 reduces these fees to the following: $100 per wireless facility per year for a right-of-way fee (Section 3(c)). This is a 63% reduction from the fees allowed by the FCC Order. It also allows for $500 for a one-time application fee for up to five new poles or antennas, plus $100 for each additional pole or antenna. For new poles, this can be a 90% reduction from the FCC fees. The FCC Order also permits municipalities to charge higher fees by showing that their actual costs are higher than these fee ceilings. HB 1400 eliminates this right. The bill imposes a “one size fits all” fee for all 2,500+ Pennsylvania municipalities that does not reflect the fact that costs for some municipalities are different from those of others.
- The Bill Increases the Size and Height of Wireless Facilities: The FCC Order requires that an antenna of a small wireless facility be no more than 3 cubic feet in volume. H.B. 1400 doubles this size to 6 cubic feet (Section 2). In addition, the FCC Order limits the height of poles to no taller than 50 feet. While H.B. 1400 states that poles cannot be taller than 50 feet, it allows poles to exceed this height limit simply by submitting a height limit waiver request in the application. H.B. 1400 effectively allows poles of any height in the public rights-of-way.
- The Bill Softens Safety Requirements on Wireless Companies: H.B. 1400 grants special protections to wireless providers if their equipment or employees cause an accident. Municipalities will have to successfully sue wireless companies in court or else the municipality cannot be indemnified. In addition, H.B. 1400 relaxes their repair and reconstruction obligations. Generally, private companies performing construction in the rights-of-way are required to restore the surface to as good a condition as before the disturbance. H.B. 1400 stipulates only that wireless providers causing damage must return the right-of-way to its “functional equivalence as it existed prior to any work being done in the right-of-way.” (Section 3(i))
- The Bill Does Not Address Unserved Rural Areas: Finally, many rural Pennsylvanians lack access to high-speed broadband service. According to the Governor’s Office, over 800,000 PA residents lack high speed internet service. Regrettably, there is nothing in H.B. 1400 that requires wireless companies to expand their networks into unserved rural areas. The passage of H.B. 1400 without addressing this issue would further entrench the 5G digital divide in PA.
Please contact your State Representative and by phone or email NOW to voice your opposition to House Bill 1400. Feel free to contact our firm directly if you have any questions or concerns or need any additional resources.
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