2019 Municipal Update - Wisconsin Public Utility Institute

2019 Municipal Update

ANITA GALLUCCI 3 .5 .19

agal lucc i@boardmanclark.com

608.283.1770

• Who can be a witness at a contested case hearing or provide comments at a public hearing?

• The “Premises Rule”

• Litigation costs and the “American Rule”

WPL v. Sun Prairie(PSC Docket 6680-DR-113)

Witness at Evidentiary Hearing/ Commenter at Public Hearing• The Commercial Customer affected by the result of a proceeding may

not provide testimony in support of a party at the evidentiary hearing

unless the Commercial Customer becomes a party to the proceeding.

• Information provided by the Commercial Customer during discovery

can be used as evidence and to support a decision to strike the

Commercial Customer’s proffered testimony.

• The non-party Commercial Customer may not offer comments at the

public hearing portion of the proceeding.

PSC Rules

PSC 2.20 (2): A person may testify at a hearing without becoming a party.

PSC 2.02 (8): Hearing means a contested case hearing or other trial-type hearing.

PSC 2.02 (14): Public hearing means a hearing that is not a trial-type hearing.

PSC Rules

PSC 2.20 (2): A person may testify at a hearing without becoming a party.

PSC 2.02 (8): Hearing means a contested case hearing or other trial-type hearing.

PSC 2.02 (14): Public hearing means a hearing that is not a trial-type hearing.

The Premises Issue

Premises Rule: Wis. Stat. § 196.495(1m)(a)

8

The Menards Case

• Nature of changes in ownership and use of the premises

• Nature of changes in the service to be provided

• Usefulness of existing facilities

• Propinquity and economy of service

• Purposes of § 196.495• Protection of the consuming public, not the utilities• Avoidance of duplication of facilities

Premises Factors

• Menards is premises already being served by WPL. WPL therefore has the exclusive right to serve Menards.

• Most important facts:

• WPL had served the house and workshop on the premises, extending 3-phase service to the workshop

• WPL continued to serve the house and workshop for 6 months after Menards bought the property

• WPL’s 3-phase line could be used to serve Menards

Commission Ruling:

If WP&L and SPU are unable to reach an agreement within 60 days from the effective date of this Final Decision, this matter shall be returned to the Commission for the Commission to determine whether to require the sale of assets or require SPU, at its expense, to remove its electric service improvements constructed and placed in service to serve the Premises. If the matter is returned to the Commission, WP&L may provide documentation regarding its costs related to this proceeding for the Commission to determine whether to award costs to WP&L.

Remedy Ordered by Commission

Remedy: Wis. Stat. § 196.495(5)

FCC ProceedingsAccelerating Wireless and Wireline Broadband

Deployment by Removing Barriers to Infrastructure Investment

Federal Pole Attachment Act47 U.S.C. § 224

• IOUs and ILECs must grant pole access to “cable television systems” and “telecommunications carriers,” including wireless carriers

• FCC rules address rates and terms and conditions

of access (e.g., make-ready)

• Municipal exemption

• Reverse preemption

Siting of Wireless Facilities47 USC § 332 (c)(7)

Preserves local authority to control placement of “personal wireless services facilities,” except:

• May not prohibit or effectively prohibit provision of service

• May not unreasonably discriminate among providers of functionally equivalent services

• Must act within a reasonable time

• Denial must be in writing and supported by substantial evidence in a written record

• May not regulate based on effects of RF emissions if the wireless facility complies with FCC rules

Access to Local Rights-of-Way (“ROW”)47 U.S.C. § 253

• State and local regulations can’t prohibit or have

the effect of prohibiting the ability of any entity

to provide telecommunication services

• May still impose non-discriminatory ROW

management and compensation requirements

Wireless Antenna

Pole Extension

CommunicationsSpace

Anatomy of a Pole

Third Report and Order and Declaratory Ruling(Aug. 3, 2018)

• Allows new attachers to use a one-touch make-ready (OTMR) process for

simple make-ready work for wireline attachments in the “communications

space” on a pole

• Preempts moratoria on the acceptance, processing, or approval of permits for

telecommunications services or facilities

• Codifies FCC precedent that allows attachers to “overlash” existing wires with

notice but without pole owner’s approval

• Eliminates disparities between the pole attachment rates incumbent carriers

pay compared to cable and telco attachers

• Self-help remedy – new attachers may perform make-ready

above the communications space with a qualified contractor if

utility misses the make-ready deadline

• States can adopt OTMR requirements if consistent with FCC rules

Third Report and Order and Declaratory Ruling (con’t)

Do FCC’s Make-Ready Rules Apply to MEUs?

Not today, but will if state passes a small cell bill like 2017

SB 425, which provided that MEU pole owners must:

• Comply with the process for make-ready work under 47

USC § 224 and its implementing regulations, including 47

CFR § 1.1420 (shot clocks) and § 1.1422 (contractor lists)

• Provide a good faith estimate for any make-ready work

necessary to enable the pole to support the attachments

and estimate must include pole replacement if necessary

Declaratory Ruling and 3rd Order and Report(Sept. 27, 2018)

• Order addresses regulation of Small Wireless Facilities in

local ROW

• New standards to determine whether a state/local requirement is preempted

• New standards for assessing permissible aesthetic, undergrounding, and spacing requirements

• New shot clocks (deadlines) for acting on permit applications

• Sets presumptively reasonable fees and charges that can be imposed on small cell providers

Small Wireless Facilities Defined

• Antenna - no more than 3 cubic feet in volume

• Associated equipment - no more than 28 cubic feet

• Height

• Structure on which antenna is mounted is 50 ft tall or less, including antennas, or

• Mounted on structure no more than 10% taller than “adjacent structures,” or

• Antennas do not extend height of structure to more than greater of 50 fttall or increase it by more than 10% in height

Jonathan Kramer—demo of 28 cu ft

Effective Prohibition

• General Rule:

• A state or local requirement effectively prohibits deployment of telecommunications when it “materially limits or inhibits any competitor’s or potential competitor’s ability to compete in a fair and balanced legal and regulatory environment.”

• Fee Requirements:

• Fees must (1) reasonably approximate government’s costs; (2) be objectively reasonable to pass on to carrier; and (3) be no higher than fees charged to competitors in similar circumstances

• Non-Fee Requirements (e.g., aesthetics, undergrounding):

• Requirements must be (1) reasonable; (2) no more burdensome than those applied to other infrastructure deployments; and (3) published in advance

Shot Clocks

• Two new shot clocks for small wireless facilities (60 days for collocation* on preexisting structures and 90 days for new builds)

• Codifies the existing 90- and 150-day shot clocks for non-small cell wireless facility deployments, established in an FCC 2009 Declaratory Ruling

• Shot clocks apply to all state and local government authorizations needed to deploy personal wireless service infrastructure

• Failure to act within the new small wireless facility shot clock is presumed to prohibit the provision of services, under Section 253(a), unless local government immediately provides all required authorizations

Shot Clock Summary

• New cell tower (≠ small cells): 150 days

• Cell antenna on existing structure (≠small cells): 90 days

• Small cell: 60 days

• Modifications of communications tower

• If “insubstantial,” 60 days

• If “substantial,” 90 days

• State shot clock likely applies if more restrictive

Presumptively Reasonable Fees

• Fee amounts that are presumed acceptable under Sections 253 and 332:

• $500 for a “single up-front application that includes up to five Small Wireless Facilities (SWF), with an additional $100 for each SWF beyond five, or $1,000 for non-recurring fees for a new pole” intended to support one or more SWFs.

• $270 per SWF, per year for all recurring fees (including “any possible ROW access fee or fee for attachment to municipally-owned structuresin the ROW”).

• Can charge fees above these levels only by showing that the fee is a “reasonable approximation of cost that itself is objectively reasonable”

• The ruling sets no specific accounting or cost-allocation methodologies

Federal Legislation

Streamline Small Cell DeploymentS. 3157 (amends 47 USC § 332)

• Applies to deployment of Small Wireless Facilities

• Requires non-discriminatory access to ROW, MEU-owned poles,

streetlights, other street furniture

• Denial of access can be based on safety, reliability, engineering,

some aesthetic concerns

• FCC rates apply

• Tough shot clocks with “deemed granted” provisions

APPA Opposes S. 3157

• Bill ignores Pole Attachment Statute and confuses siting issues

• Pole attachment regulation is local; no need for federal regulation

• States should still have authority to “reverse preempt” federal law

• Electric utility poles carry unique safety and reliability issues

(especially pole top attachments)

• Public power utilities are different from IOUs

• Bill will create safety and reliability for public power utilities and

require ratepayers to subsidize for-profit providers

H.R. 530 (Rep. Eshoo D-CA) Accelerating Wireless Broadband Development by Empowering Local Communities Act of 2019

• Bill introduced on January 14th

• Would dismantle the FCC’s September Small Cell Order

• Eshoo said: “5G … must be deployed responsibly and equitably [but] the FCC let industry write these regulations without sufficient input from local leaders.”

• National League of Cities said: “The FCC’s impractical actions will significantly impede local governments’ ability to serve as trustees of public property, safety and well-being. The decision will transfer significant local public resources to private companies, without securing any guarantee of public benefit in return.”

Thank you!

ANITA T. GALLUCCI

agallucci@boardmanclark.com

608-283-1770