THE SENATE

S.B. NO.

1201

TWENTY-NINTH LEGISLATURE, 2017

S.D. 2

STATE OF HAWAII

 

 

 

 

 

 

A BILL FOR AN ACT

 

 

RELATING TO TECHNOLOGY.

 

 

BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF HAWAII:

 


     SECTION 1.  The legislature finds that the efficient deployment of broadband infrastructure and technology is important to the future global connectivity and economic viability of our island state.  Among the benefits afforded by an advanced broadband infrastructure system are increased and enhanced educational opportunities, telehealth capacity, safety and civil defense communications, economic competitiveness, consumer privileges, and tourism services.

     To ensure that consumers throughout the State may benefit from these services as soon as possible, and to provide wireless providers with a fair and predictable process for the deployment of small wireless facilities, the legislature finds that laws are needed to specify the extent and way in which the deployment of small wireless facilities and small wireless facilities networks is regulated in the State.

     The purpose of this Act is to facilitate the deployment of high-speed broadband infrastructure in Hawaii, including small wireless facilities, in a way that encourages new technology and ensures a level playing field for competitive communications service providers by:

     (1)  Establishing limits on the State's and counties' authority to prohibit, regulate, or charge for the co-location of small wireless facilities or small wireless facilities networks;

     (2)  Specifying certain sites where small wireless facilities or small wireless facilities networks may be located, including conditions and maximum fees for location and co-location;

     (3)  Establishing an application process for co-location; and

     (4)  Repealing those sections of Act 151, Session Laws of Hawaii 2011, relating to exemptions for broadband service and broadband technology from state and county permitting requirements, that have been codified within the Hawaii Revised Statutes.

     SECTION 2.  Chapter 27, Hawaii Revised Statutes, is amended by adding a new section to part VII to be appropriately designated and to read as follows:

     "§27-    Siting of small wireless facilities and small wireless facilities networks.  (a)  The State shall not prohibit, regulate, or charge for the co-location of small wireless facilities or small wireless facilities networks, except as provided in this section; provided that this section shall not be construed to obviate or otherwise waive the right of the State to require a license, franchise, or other agreement to access the right of way more broadly to install wireline broadband backhaul facilities, or to attach coaxial or fiber-optic cable between poles.  Small wireless facilities and small wireless facilities networks shall be deemed permitted uses, and no special use or conditional use permit shall be required, for their location on:

     (1)  All public rights-of-way and property;

     (2)  All land in the rural or agricultural districts pursuant to chapter 205; and

     (3)  All land in the urban district pursuant to chapter 205.

     (b)  Small wireless facilities and small wireless facilities networks may require special use or conditional use permits where such facilities are located on land in the conservation district pursuant to chapter 205.

     (c)  Wireless providers shall have the right to co-locate small wireless facilities on state utility poles, state structures, and light standards.  The State may require building permits or other permits for the co-location of small wireless facilities and small wireless facilities networks; provided that permits are of general applicability.  The State shall receive applications to process and issue permits and approvals in accordance with applicable law, including section 27-45 and chapter 269, and subject to the following requirements:

     (1)  Applicants shall not be required to perform any services, including restoration work not directly related to the co-location, to obtain approval for applications;

     (2)  Applications may be denied if the application does not meet applicable laws or rules regarding construction in the public rights-of-way or building or electrical codes or standards; provided that codes and standards are of general applicability.  The State shall document the basis for any application denial, including the specific code provisions or standards on which the denial was based; and

     (3)  An applicant for a small wireless facilities network involving no greater than twenty-five individual small wireless facilities of a substantially similar design shall be permitted, upon request by the applicant, to file a consolidated application and receive a single permit for the installation, construction, maintenance, and repair of a small wireless facilities network instead of filing separate applications for each individual small wireless facility.

     (d)  A wireless provider or a wireless provider's licensed contractor may co-locate small wireless facilities and small wireless facilities networks on state structures, state utility poles, and light standards located within the land identified in subsection (a)(1) to (3), subject to reasonable rates, terms, and conditions if such rates, terms, and conditions are required by the State for similar types of commercial use.  The annual recurring rate to co-locate a small wireless facility on state structures, utility poles, and light standards shall not exceed the rate produced by applying the formula adopted by the Federal Communications Commission pursuant to title 47 United States Code section 224(d); provided that if the Federal Communications Commission adopts a rate formula for small wireless facility attachments, that rate formula shall apply.

     (e)  The State shall authorize but shall not require a wireless provider or wireless provider's licensed contractor to apply for or obtain a permit to:

     (1)  Maintain, repair, or replace the provider's small wireless facilities and small wireless facilities networks with facilities that are substantially the same, or smaller, in size, weight, and height as the existing facilities; or

     (2)  Install, place, maintain, operate, or replace micro wireless facilities that are suspended on messenger cables that are strung between existing utility poles in compliance with national safety codes.

     (f)  Except as provided in this chapter or as required by section 440G-8 or federal law, the State shall not adopt or enforce any regulations on the placement or operation of wireless facilities in the right-of-way where the entity is already authorized by a franchise or other authorization to operate throughout the right-of-way, and shall not regulate wireless communications services or impose or collect fees on wireless communications services unless expressly required by state or federal statute."

     SECTION 3.  Section 27-41.1, Hawaii Revised Statutes, is amended by adding eleven new definitions to be appropriately inserted and to read as follows:

     ""Co-location" means the installation, mounting, maintenance, modification, operation, or replacement of wireless facilities on a tower, utility pole, light standard, or other structure existing on the effective date of this Act for the purpose of transmitting or receiving radio frequency signals for communications purposes.

     "General applicability" means laws, regulations, or processes that apply to objective requirements to all persons or services in a nondiscriminatory manner and do not apply exclusively to small wireless facilities.

     "Light standard" means a street light, light pole, lamp post, street lamp, lamp standard, or other raised source of light located inside the right-of-way of a public road or highway or utility easement.

     "Micro wireless facilities" means small wireless facilities that are no larger in dimension than twenty-four inches long, fifteen inches in width, twelve inches in height, and that has an exterior antenna, if any, no longer than eleven inches.

     "Small wireless facilities" means wireless facilities that meet the following qualifications:

     (1)  Each individual antenna, excluding the associated equipment, is individually no more than three cubic feet in volume, and all antennas on the structure total no more than six cubic feet in volume; and

     (2)  All other wireless equipment associated with the structure, excluding cable runs for the connection of power and other services, do not cumulatively exceed:

         (A)  Twenty-eight cubic feet for co-locations on all non-pole structures, including but not limited to buildings and water tanks, that can support fewer than three providers;

         (B)  Twenty-one cubic feet for co-locations on all pole structures, including but not limited to light poles, traffic signal poles, and utility poles, that can support fewer than three providers;

         (C)  Thirty-five cubic feet for non-pole co-locations that can support at least three providers; or

         (D)  Twenty-eight cubic feet for pole co-locations that can support at least three providers.

     "Small wireless facilities network" means a collection of interrelated small wireless facilities designed to deliver wireless communications service.  "Small wireless facilities network" does not include wires or cables used for wireline backhaul or coaxial or fiber-optic cable between utility poles, or that is otherwise not immediately adjacent to and directly associated with a particular antenna.

     "Utility pole" means a pole or similar structure that is used in whole or in part for communications service, electric service, lighting, traffic control, signage, or similar functions.

     "Wireless communications service" means any wireless service using licensed or unlicensed spectrum, including the use of wi-fi, whether at a fixed location or mobile, provided using wireless facilities.  "Wireless communications service" does not include wireline backhaul service.

     "Wireless facilities" means the set of equipment and network components, including but not limited to antennas, accessory equipment, transmitters, receivers, power supplies, and other associated equipment necessary to provide wireless communications service.  "Wireless facilities" shall not include:

     (1)  The structure or improvements on, under, or within which the equipment is co-located;

     (2)  Wireline backhaul facilities; or

     (3)  Coaxial or fiber-optic cable between utility poles or that is otherwise not immediately adjacent to and directly associated with a particular antenna.

     "Wireless provider" means a person or entity that is:

     (1)  A provider of wireless communications service;

     (2)  A wireless telecommunications service provider, as defined in section 269-16.93(d); or

     (3)  Authorized in accordance with chapter 269 to provide facilities based telecommunications services in the State, and builds, installs, operates, or maintains facilities and equipment used to provide wireless service.

     "Wireline backhaul" means the transport of communications data or other electronic information by wire from wireless facilities to a network."

     SECTION 4.  Section 46-4, Hawaii Revised Statutes, is amended to read as follows:

     "§46-4  County zoning.  (a)  This section and any ordinance, rule, or regulation adopted in accordance with this section shall apply to lands not contained within the forest reserve boundaries as established on January 31, 1957, or as subsequently amended.

     Zoning in all counties shall be accomplished within the framework of a long-range, comprehensive general plan prepared or being prepared to guide the overall future development of the county.  Zoning shall be one of the tools available to the county to put the general plan into effect in an orderly manner.  Zoning in the counties of Hawaii, Maui, and Kauai means the establishment of districts of such number, shape, and area, and the adoption of regulations for each district to carry out the purposes of this section.  In establishing or regulating the districts, full consideration shall be given to all available data as to soil classification and physical use capabilities of the land to allow and encourage the most beneficial use of the land consonant with good zoning practices.  The zoning power granted herein shall be exercised by ordinance which may relate to:

     (1)  The areas within which agriculture, forestry, industry, trade, and business may be conducted;

     (2)  The areas in which residential uses may be regulated or prohibited;

     (3)  The areas bordering natural watercourses, channels, and streams, in which trades or industries, filling or dumping, erection of structures, and the location of buildings may be prohibited or restricted;

     (4)  The areas in which particular uses may be subjected to special restrictions;

     (5)  The location of buildings and structures designed for specific uses and designation of uses for which buildings and structures may not be used or altered;

     (6)  The location, height, bulk, number of stories, and size of buildings and other structures;

     (7)  The location of roads, schools, and recreation areas;

     (8)  Building setback lines and future street lines;

     (9)  The density and distribution of population;

    (10)  The percentage of a lot that may be occupied, size of yards, courts, and other open spaces;

    (11)  Minimum and maximum lot sizes; and

    (12)  Other regulations the boards or city council find necessary and proper to permit and encourage the orderly development of land resources within their jurisdictions.

     The council of any county shall prescribe rules, regulations, and administrative procedures and provide personnel it finds necessary to enforce this section and any ordinance enacted in accordance with this section.  The ordinances may be enforced by appropriate fines and penalties, civil or criminal, or by court order at the suit of the county or the owner or owners of real estate directly affected by the ordinances.

     Any civil fine or penalty provided by ordinance under this section may be imposed by the district court, or by the zoning agency after an opportunity for a hearing pursuant to chapter 91.  The proceeding shall not be a prerequisite for any injunctive relief ordered by the circuit court.

     Nothing in this section shall invalidate any zoning ordinance or regulation adopted by any county or other agency of government pursuant to the statutes in effect prior to July 1, 1957.

     The powers granted herein shall be liberally construed in favor of the county exercising them, and in such a manner as to promote the orderly development of each county or city and county in accordance with a long-range, comprehensive general plan to ensure the greatest benefit for the State as a whole.  This section shall not be construed to limit or repeal any powers of any county to achieve these ends through zoning and building regulations, except insofar as forest and water reserve zones are concerned and as provided in subsections (c) and (d).

     Neither this section nor any ordinance enacted pursuant to this section shall prohibit the continued lawful use of any building or premises for any trade, industrial, residential, agricultural, or other purpose for which the building or premises is used at the time this section or the ordinance takes effect; provided that a zoning ordinance may provide for elimination of nonconforming uses as the uses are discontinued, or for the amortization or phasing out of nonconforming uses or signs over a reasonable period of time in commercial, industrial, resort, and apartment zoned areas only.  In no event shall such amortization or phasing out of nonconforming uses apply to any existing building or premises used for residential (single-family or duplex) or agricultural uses.  Nothing in this section shall affect or impair the powers and duties of the director of transportation as set forth in chapter 262.

     (b)  Any final order of a zoning agency established under this section may be appealed to the circuit court of the circuit in which the land in question is found.  The appeal shall be in accordance with the Hawaii rules of civil procedure.

     (c)  Each county may adopt reasonable standards to allow the construction of two single-family dwelling units on any lot where a residential dwelling unit is permitted.

     (d)  Neither this section nor any other law, county ordinance, or rule shall prohibit group living in facilities with eight or fewer residents for purposes or functions that are licensed, certified, registered, or monitored by the State; provided that a resident manager or a resident supervisor and the resident manager's or resident supervisor's family shall not be included in this resident count.  These group living facilities shall meet all applicable county requirements not inconsistent with the intent of this subsection, including but not limited to building height, setback, maximum lot coverage, parking, and floor area requirements.

     (e)  Neither this section nor any other law, county ordinance, or rule shall prohibit the use of land for employee housing and community buildings in plantation community subdivisions as defined in section 205-4.5(a)(12); in addition, no zoning ordinance shall provide for the elimination, amortization, or phasing out of plantation community subdivisions as a nonconforming use.

     (f)  Neither this section nor any other law, county ordinance, or rule shall prohibit the use of land for medical marijuana production centers or medical marijuana dispensaries established and licensed pursuant to chapter 329D; provided that the land is otherwise zoned for agriculture, manufacturing, or retail purposes.

     (g)  Neither this section nor any other county law, ordinance, or rule shall prohibit the co-location of small wireless facilities or small wireless facilities networks, as defined in section 27-41.1, except as provided in this section; provided that this section shall not be construed to obviate or otherwise waive the right of the county or State to require a license, franchise, or other agreement to access the right-of-way more broadly to install wireline backhaul facilities, or to attach coaxial or fiber-optic cable between utility poles, or that is otherwise not immediately adjacent to and directly associated with a particular antenna:

     (1)  Small wireless facilities and small wireless facilities networks shall be deemed permitted uses, and no special use or conditional use permit shall be required, for their location on:

         (A)  All public rights-of-way and property;

         (B)  All land in the rural or agricultural districts pursuant to chapter 205; and

         (C)  All land in the urban district pursuant to chapter 205;

     (2)  Small wireless facilities and small wireless facilities networks may require special use or conditional use permits where such facilities are located in the conservation district pursuant to chapter 205;

     (3)  Wireless providers shall have the right to co-locate small wireless facilities on county-owned utility poles, structures, and light standards, as defined in section 27-41.1.  Any county may require building permits or other permits for the co-location of small wireless facilities and small wireless facilities networks; provided that permits are of general applicability.  A county shall receive applications to process and issue permits and approvals in accordance with applicable law, including section 46-89 and chapter 269, and subject to the following requirements:

         (A)  Applicants shall not be required to perform any services, including restoration work not directly related to the co-location, to obtain approval for applications;

         (B)  Applications may be denied if the application does not meet applicable laws or rules regarding construction in the public rights-of-way or building or electrical codes or standards; provided that codes and standards are of general applicability.  A county shall document the basis for any application denial, including the specific code provisions or standards on which the denial was based; and

         (C)  An applicant for a small wireless facilities network involving no greater than twenty-five individual small wireless facilities of a substantially similar design shall be permitted, upon request by the applicant, to file a consolidated application and receive a single permit for the installation, construction, maintenance, and repair of a small wireless facilities network instead of filing separate applications for each individual small wireless facility;

     (4)  A wireless provider or a wireless provider's licensed contractor may co-locate small wireless facilities and small wireless facilities networks on county structures, utility poles, and light standards located within the land identified in paragraph (1)(A) to (C) subject to reasonable rates, terms, and conditions, if such rates, terms, and conditions are required by the county for similar types of commercial use.  County utility pole co-location requests shall be processed in the same manner as permit applications under paragraph (3).  The annual recurring rate to co-locate a small wireless facility on county structures, utility poles, and light standards shall not exceed the rate produced by applying the formula adopted by the Federal Communications Commission pursuant to title 47 United States Code section 224(d); provided that if the Federal Communications Commission adopts a rate formula for small wireless facility attachments, that rate formula shall apply;

     (5)  Counties shall authorize but shall not require a wireless provider or wireless provider's licensed contractor to apply for or obtain a permit to:

         (A)  Maintain, repair, or replace the provider's small wireless facilities and small wireless facilities networks with facilities that are substantially the same, or smaller, in size, weight, and height as the existing facilities; or

         (B)  Install, place, maintain, operate, or replace micro wireless facilities that are suspended on messenger cables that are strung between existing utility poles in compliance with national safety codes; and

     (6)  Except as provided in this chapter or as required by section 440G-8 or federal law, a county shall not adopt or enforce any regulations on the placement or operation of wireless facilities in the right-of-way where the entity is already authorized by a franchise or other authorization to operate throughout the right-of-way, and shall not regulate wireless communications services or impose or collect fees on wireless communications services unless expressly required by state or federal statute.

     For the purposes of this subsection, "co-location", "general applicability", "light standard", "micro wireless facilities", "small wireless facilities", "small wireless facilities network", "utility pole", "wireless facilities", "wireless provider", "wireless communications service", and "wireline backhaul" shall have the same meanings as in section 27-41.1."

     SECTION 5.  Act 151, Session Laws of Hawaii 2011, section 2, as amended by section 3 of Act 264, Session Laws of Hawaii 2013, as amended by section 1 of Act 193, Session Laws of Hawaii 2016, is repealed.

     ["SECTION 2.  Beginning January 1, 2012, actions relating to the installation, improvement, construction, or development of infrastructure relating to broadband service or broadband technology, including the interconnection of telecommunications cables, shall be exempt from county permitting requirements, state permitting and approval requirements, which includes the requirements of chapters 171, 205A, and 343, Hawaii Revised Statutes, and public utilities commission rules under Hawaii Administrative Rules, chapter 6‑73, that require existing installations to comply with new pole replacement standards at the time of any construction or alteration to the equipment or installation, except to the extent that such permitting or approval is required by federal law or is necessary to protect eligibility for federal funding, services, or other assistance; provided that the installation, improvement, construction, or development of infrastructure shall:

     (1)  Be directly related to the improvement of existing telecommunications cables or the installation of new telecommunications cables:

         (A)  On existing or replacement utility poles and conduits; and

         (B)  Using existing infrastructure and facilities;

     (2)  Take place within existing rights-of-way or public utility easements or use existing telecommunications infrastructure; and

     (3)  Make no significant changes to the existing public rights-of-way, public utility easements, or telecommunications infrastructure.

     An applicant shall comply with all applicable safety and engineering requirements relating to the installation, improvement, construction, or development of infrastructure relating to broadband service.

     A person or entity taking any action under this section shall, at least thirty calendar days before the action is taken, provide notice to the director of commerce and consumer affairs by electronic posting in the form and on the site designated by the director for such posting on the designated central State of Hawaii Internet website; provided that notice need not be given by a public utility or government entity for an action relating to the installation, improvement, construction, or development of infrastructure relating to broadband service or broadband technology where the action taken is to provide access as the owner of the existing rights-of-way, utility easements, or telecommunications infrastructure."]

     SECTION 6.  Act 151, Session Laws of Hawaii 2011, section 3, as amended by section 3 of Act 264, Session Laws of Hawaii 2013, is repealed.

     ["SECTION 3.  Consistent with federal law, no person or entity shall be required to upgrade or replace an existing utility pole when using that utility pole to install new telecommunications cables or to improve existing telecommunications cables; provided that:

     (1)  The overall weight load and the diameter of the attachment on the utility pole following the installation or improvement does not exceed the overall weight load and diameter of the attachment prior to the installation or improvement;

     (2)  The overall weight load on the utility pole does not exceed maximum utility pole safe weight capacities established by the Federal Communications Commission and the public utilities commission; and

     (3)  The utility pole is not damaged or made less safe or reliable due to the installation or improvement of telecommunications cables.

     The public utilities commission may allow a public utility to recover all prudently incurred costs as approved through rates, charges, or clauses approved or established by the public utilities commission pursuant to section 269-16, Hawaii Revised Statutes, including but not limited to planning, engineering, construction, installation, or replacement of utility poles undertaken to accomplish the objectives of this Act.  Recovery of all prudently incurred costs shall also apply to a broadband service provider.

     If access to a utility pole is not granted within forty-five days of a written request for access, the utility must confirm the denial in writing by the forty-fifth day, consistent with the requirements established by the Federal Communications Commission under Title 47, Chapter 1, Code of Federal Regulations.  The utility's denial of access shall be specific, shall include all relevant evidence and information supporting its denial, and shall explain how such evidence and information relate to a denial of access for reasons of lack of capacity, safety, reliability, or engineering standards."]

     SECTION 7.  Statutory material to be repealed is bracketed and stricken.  New statutory material is underscored.

     SECTION 8.  This Act shall take effect on July 1, 2050.

 


 


 

Report Title:

Technology; Broadband; Wireless Facilities Networks; Zoning; Counties; State Functions and Responsibilities

 

Description:

Specifies that the State and counties cannot prohibit, regulate, or charge for the co-location of small wireless facilities or small wireless facilities networks beyond the provisions of this Act.  Provides various state and county zoning rules and classifications regarding the co-location of small wireless facilities and small wireless facilities networks.  Describes the application process and rates for co-location.  Repeals those sections of Act 151, Session Laws of Hawaii 2011, that have been codified within the Hawaii Revised Statutes.  Effective 7/1/2050.  (SD2)

 

 

 

The summary description of legislation appearing on this page is for informational purposes only and is not legislation or evidence of legislative intent.