Emails about this Small Cell Deployment bill should be sent to the following Committee Members:

Economic Matters Committee

Benjamin Brooks Benjamin.Brooks@house.state.md.us
Brian M. Crosby brian.crosby@house.state.md.us
C. T. Wilson ct.wilson@house.state.md.us
Cheryl D. Glenn cheryl.glenn@house.state.md.us
Christopher T. Adams christopher.adams@house.state.md.us
Courtney Watson courtney.watson@house.state.md.us
Dereck E. Davis (Chair) dereck.davis@house.state.md.us
Diana M. Fennell Diana.Fennell@house.state.md.us
Eric M. Bromwell (Vice Chair) eric.bromwell@house.state.md.us
Johnny Mautz Johnny.Mautz@house.state.md.us
Kathleen M. Dumais kathleen.dumais@house.state.md.us
Kriselda Valderrama kris.valderrama@house.state.md.us
Lily Qi lily.qi@house.state.md.us
Lorig Charkoudian lorig.charkoudian@house.state.md.us
Mark N. Fisher mark.fisher@house.state.md.us
Mary Ann Lisanti MaryAnn.Lisanti@house.state.md.us
Mike Rogers mike.rogers@house.state.md.us
Ned Carey Ned.Carey@house.state.md.us
Pam Queen pam.queen@house.state.md.us
Rick Impallaria rick.impallaria@house.state.md.us
Seth A. Howard Seth.Howard@house.state.md.us
Steven J. Arentz steven.arentz@house.state.md.us
Talmadge Branch talmadge.branch@house.state.md.us
Warren E. Miller warren.miller@house.state.md.us

HOUSE BILL 654 (HB.654)

By Delegate D.E. Davis
Introduced and read first time: February 6, 2019
Assigned to: Economic Matters

A BILL ENTITLED

AN ACT concerning

Wireless Facilities – Installation and Regulation

FOR the purpose of

establishing procedures and requirements for the deployment, installation, and regulation of certain wireless telecommunications facilities in the State;
prohibiting an authority from entering into an exclusive agreement for the use of certain rights–of–way for certain purposes;
authorizing an authority to impose certain rates and fees for use of certain rights–of–way in a certain manner and subject to certain limitations;
authorizing a wireless provider to collocate certain facilities and use certain rights–of–way in certain manners as a matter of right; establishing certain limitations on the installation and maintenance of certain facilities in certain rights–of–way;
authorizing an authority to adopt certain guidelines for the location, appearance, and design of certain facilities;
authorizing the collocation of certain facilities on certain equipment;
authorizing an authority to restrict the use of certain attachments under certain circumstances and in a certain manner;
requiring an authority to provide for waivers of certain requirements;
providing for the character and administration of certain requirements for certain facilities;
authorizing an authority to require the repair of certain damage and the restoration of certain rights–of–way to certain conditions under certain circumstances;
requiring a wireless provider to notify an authority of the abandonment of certain facilities;
providing for the removal of certain abandoned facilities;
providing for the collocation of certain facilities in certain areas and on certain property;
providing that certain collocation is not subject to certain review and is a permitted use;
authorizing an authority to require a permit for collocation or installation of certain equipment under certain circumstances;
prohibiting an authority from requiring certain services or certain actions of an applicant for a certain permit;
authorizing an authority to require an applicant for a certain permit to provide certain information;
authorizing an authority to propose an alternate location for certain facilities;
authorizing an authority to require that certain facilities be operational within a certain time period;
establishing certain time periods for certain applications and for decisions on the applications;
providing for an opportunity for an applicant to revise an application for a permit and have the application considered;
providing for the automatic approval of an application for a permit under certain circumstances;
authorizing the denial of a permit under certain circumstances; providing that a certain permit authorizes the applicant to install or collocate and operate certain equipment for a certain time period and to renew the permit at the applicant’s discretion;
prohibiting an authority from instituting a moratorium on the receipt of applications or the issuance of certain permits; prohibiting an authority from requiring a permit for certain maintenance and replacement activities;
prohibiting certain persons from entering into an exclusive agreement for the use of certain authority utility poles;
**requiring an authority to authorize the collocation **of certain facilities on certain equipment; providing for certain rates, fees, and terms for certain collocations and certain associated work activities;
requiring certain make–ready work to be completed in a certain manner within a certain time period;
prohibiting the imposition of certain fees for certain uses, locations, and activities; establishing certain limitations for certain fees and rates;
providing that the District Court has jurisdiction over certain matters and shall adjudicate certain cases within a certain time period;
prohibiting an authority from requiring a wireless provider to indemnify and hold harmless the authority and certain persons for certain activities under certain circumstances;
authorizing an authority to require a certain wireless provider to carry certain insurance coverage for certain risks and activities in a certain manner;
authorizing a wireless provider to self–insure against certain risks in a certain manner;
authorizing an authority to adopt certain surety bonding requirements for certain purposes;
authorizing an authority to enact a local law to carry out this Act;
providing that this Act prevails over local law;
providing for the effect of certain agreements and ordinances in effect before a certain date;
limiting the authority of an authority over certain facilities;
requiring an authority to evaluate certain structure classifications in a certain manner;
providing that this Act is not subject to the jurisdiction of the Public Service Commission;
providing for the construction of this Act;
excluding this Act from the application of certain penalties;
defining certain terms; and generally relating to wireless telecommunications facilities.

S4WT Comment:

That is a truckload of certains in the introduction of HB.654. Of course, what actually matters are to which specific items do these certains point . . . so one has to to read on . . . to fully comprehend how many wish-list items the authors of this bill (ALEC, Verizon and AT&T) were able to shoehorn into the bill. This is the most telecom-friendly and most consumer-unfriendly CPMRA infrastructure deployment bill reviewed to date.

CPMRA = Close Proximity Microwave Radiating Antenna

BY adding to
      Article – Public Utilities
      Section 8–701 through 8–709 to be under the new subtitle “Subtitle 7. Wireless Facilities”
      Annotated Code of Maryland
      (2010 Replacement Volume and 2018 Supplement)

BY repealing and reenacting, with amendments,
      Article –Public Utilities
      Section 13–101 and 13–201
      Annotated Code of Maryland
      (2010 Replacement Volume and 2018 Supplement)

Preamble

WHEREAS, encouraging the deployment of small wireless facilities and other next–generation wireless and broadband network facilities will attract new investment in wireless infrastructure technology that supports enhanced network and next–generation smart cities and other solutions and is a matter of statewide concern and interest; and

WHEREAS, wireless and broadband products and services are a significant and continually growing part of the State’s economy and, accordingly, encouraging the development of strong and robust wireless and broadband communications networks throughout the State is integral to the State’s economic competitiveness; and

WHEREAS, rapid deployment of small wireless facilities will serve numerous important statewide goals of

meeting growing consumer demand for wireless data, including increasing competitive options for communications services available to the State’s residents,
promoting the ability of the State’s citizens to communicate with other citizens and with their State and local governments and
promoting public safety; and

S4WT Comment:

But the rapid deployment of small wireless facilities throughout communities is not promoting or protecting Maryland residents' property values, privacy and healthy & safety — of and in their own homes. HB.654 harms Maryland residents and violates the Americans with Disability Act by creating access barriers to the homes and communities of Maryland's Electromagnetic Sensitive (EMS) residents, who can assert their rights to seek reasonable accommodations to prevent Radio-frequency Electromagnetic Microwave Radiation (RF-EMR) Exposures from impairing one or more of their life activities.

WHEREAS, small wireless facilities, including facilities commonly referred to as small cells and distributed antenna systems, often may be deployed most effectively in rights–of–way; and

S4WT Comment:

Not most effectively, just less expensively for Big Wireless firms and their partners/subcontractors — with the added benefit of transferring their huge liabilities from them to the unwitting cities and counties. for installing this poison-delivery system by melding their private antennas on public property, creating a dangerous condition of public property.

The following 2018 marketing video from Verizon Wireless communicates that 5G can work effectively when 5G antennas are collocated high up on existing macro towers — which, of course, would be the least intrusive means to close any alleged significant gap in telecommunications coverage.

Lowell McAdam, CEO of Verizon:

When [Verizon] went out in these 11 [5G test] markets, we tested for well over a year, so we could see every part of foliage and every storm that went through. We have now busted the myth that [5G frequencies] have to be line-of-sight — they do not. We busted the myth that foliage will shut [5G] down . . . that does not happen. And the 200 feet from a home? We are now designing the network for over 2,000 feet from transmitter to receiver.

Jason L., Verizon Field Engineer:

[Verizon 5G] is really high frequency [28,000 MHz and 39,000 MHz], so everybody thinks it doesn’t go very far, but it’s a really big pipe and so that’s what allows you to gain the super fast speeds . . We’re 3,000 feet away from our radio node. the cool thing about this is that we did not move the radio node. It’s pointing down to serve the customers in that area . . . here even 3,000 feet away, we’re still getting 1,000 [Megabits per second] speeds."

WHEREAS, to meet the key objectives of this Act, wireless providers must have access to rights–of–way and the ability to attach infrastructure in rights–of–way to increase the density of their networks and provide next–generation wireless services; and

S4WT Comment:

Increasing wirless networks' density where people, live, work, learn, play, sleep and heal is both unnecessary and dangerous (see above).

WHEREAS, uniform rates and fees for the permitting and deployment of small wireless facilities in rights–of–way and on local government–owned infrastructure, including poles, throughout the State are reasonable and will encourage the development of robust next–generation wireless and broadband networks for the benefit of people throughout the State; and

S4WT Comment:

On balance, 4G and 5G wireless network densification has more detriments than benefits to the people throughout the State.

WHEREAS, the rates and fees provided for in this Act are fair and reasonable when viewed from the perspective of the State’s citizens and the State’s interest in encouraging investment in wireless infrastructure and having robust, reliable, and technologically advanced wireless and broadband networks, and reflect a balancing of the interests of the wireless providers in deploying new facilities and the interests of the State and local governments in recovering their costs of managing access to rights–of–way and the attachment space provided on public infrastructure and receiving the fair value of the rights–of–way; now, therefore,

S4WT Comment:

Nice try. First, ask the cities and the counties if they agree that HB.654 reflects a fair and just balancing of the interests of the wireless providers and the interests of the State and local governments re: managing access to rights–of–way on public infrastructure. The answer of a vast majority of cities and counties is NO. That is why well-informed states (CA, NY, PA, WA, OR and others) have said NO to Unnecessarily-Telecom-Friendly bills just like this one.

SECTION 1. BE IT ENACTED BY THE GENERAL ASSEMBLY OF MARYLAND,

That the Laws of Maryland read as follows:

Article – Public Utilities

SUBTITLE 7. WIRELESS FACILITIES

§ 8–701.

(A) In this subtitle the following words have the meanings indicated.

(B)

(1) “antenna” means an apparatus designed for the purpose of emitting radio-frequency radiation, to be operated or operating from a fixed location in accordance with federal communications commission authorization, to provide personal wireless service and any commingled information services.

S4WT Comment:

There is no federal preemption of local authority for the provision of any commingled information services — there is only preemption for the provision of personal wireless service, which is defined as making calls and texts. It is unwise to attempt to take additional rights away from local jurisdictions.

(2) “antenna” does not include an unintentional radiator, mobile station, or device authorized under 47 C.F.R. Part 15.

(C)

(1) “antenna equipment” means equipment, switches, wiring, cabling, power sources, shelters, or cabinets associated with an antenna that is located at the same fixed location as the antenna and, when collocated on a structure, is mounted or installed at the same time as the antenna.

(2) “antenna equipment” does not include:

(I) the structure or improvements on, under, or within which the equipment is collocated; or

(II) wireline backhaul facilities, coaxial or fiber optic cable that is between wireless support structures or utility poles, or coaxial or fiber optic cable that is otherwise not immediately adjacent to or directly associated with an antenna.

(D) “antenna facility” means an antenna and associated antenna equipment.

(E)

(1) “applicable codes” means uniform building, fire, safety, electrical, plumbing, or mechanical codes adopted by a recognized national code organization to the extent an authority has adopted the codes.

(2) “applicable codes” includes any amendment an authority has adopted that is of general application, addresses public safety, and is consistent with this subtitle.

S4WT Comment:

No, Big Wirless should not be able knock out any applicable codes just because they may not be consistent with this subtitle. Strike ~~is consistent with this subtitle~~.

(F)

(1) “authority” means the state or any unit, county, municipality, district, or subdivision, or any instrumentality of those units, in the state.

(2) “authority” includes a public utility district, an irrigation district, and a municipal electric utility.

(3) “authority” does not include:

(I) a state court; or

(II) the governing body of an unincorporated, census–designated planned community in the state.

(G) “authority pole” means a utility pole that is owned, managed, or operated by or on behalf of an authority

(H) “collocate” means to install or mount an antenna facility on a preexisting structure, or to modify a structure for the purpose of mounting or installing an antenna facility on that structure.

S4WT Comment:

The FCC/Big Wireless recently attempted to bastardize the definition of collocate, but they got caught. Collocate in the courts means installing an antenna on a facility that already has an antenna; it does not mean installing on an already existing structure that has no antenna.

(I) “communications facility” means the set of equipment and network components, including wires and cables and associated facilities, that a communications service provider uses to provide communications service.

(J) “communications service” means:

(1) cable service, as defined in 47 U.S.C.§522(6);

(2) telecommunications service, as defined in 47 U.S.C. §153(53);

(3) information service, as defined in 47 U.S.C. §153 (24); or

(4) wireless service.

(K) “communications service provider” or “provider” means:

(1) a cable operator, as defined in 47 U.S.C. §522 (5);

(2) a telecommunications carrier, as defined in 47 U.S.C. §153 (51);

(3) a provider of information service, as defined in 47 U.S.C. §153 (24) ;or

(4) a wireless provider.

(L) “decorative pole” means an authority pole that is specially designed and placed for aesthetic purposes and on which no attachments are placed or allowed to be placed according to nondiscriminatory local laws, other than:

(1) a small wireless facility;

(2) lighting;

(3) specially designed informational or directional signage; or

(4) a temporary holiday or special event attachment.

S4WT Comment:

A Small Wireless Facility is much more obtrusive than (2), (3), or (4), above. It should NOT get this exception as it ruins the character of the decorative pole with industrial equipment attached and installed nearby.

(M) “facility” means an antenna facility or a structure that is used to provide personal wireless service, whether the service is provided on a stand–alone basis or is commingled with other wireless communications services.

(N) “historic district” means a group of buildings, properties, or sites that are:

(1) listed in the national register of historic places or formally determined as eligible for listing by the keeper of the national register, in accordance with section vi.D.1.A.I–v of the nationwide programmatic agreement codified at 47 C.F.R. Part 1, Appendix C; or

(2) located in a historic district established under title 8 of the land use article as of June 1, 2019.

S4WT Comment:

What is the magic of this June 1, 2019 date?

(O) “make–ready work” means any rearrangement of existing utility pole attachments or utility pole replacements that must be completed before a person collocates new wireless facilities on a utility pole in order to ensure the proper spacing of equipment and compliance with applicable codes.

(P) “micro wireless facility” means a small wireless facility that:

(1) is not larger than 24 inches long, 15 inches wide, and 12 inches high; and

(2) has an exterior antenna, if any, not more than 11 inches long

(Q) “right–of–way” or “row” means the area on, below, or above a public roadway, highway, street, sidewalk, alley, utility easement, or similar property other than a federal interstate highway.

(R) “small wireless facility” means a facility that meets each of the following specifications:

(1) the facilities:

(I) are mounted on structures 50 feet or less in height, including the antennas;

S4WT Comment:

It is a public hazard to install antennas any lower than 150 higher than the highest roof in a 1500 foot radius of the small wireless facility.

(II) are mounted on structures not more than 10% taller than other adjacent structures; or

S4WT Comment:

This would still be a public hazard (see above).

(III) do not extend existing structures on which they are located to the greater of:

1. A height of more than 50 feet; or

2. An extension of more than 10%;

(2) each antenna associated with the deployment is not more than 3 cubic feet in volume, excluding associated antenna equipment;

S4WT Comment:

This fails because it does not limit the total number of antennas. It should read instead the volume of all antennas associated with all deployments is not more than X cubic feet, where X would be set by each local community.

(3) all other wireless equipment associated with the structure, including wireless equipment associated with the antenna and any pre-existing associated equipment on the structure, is not more than 28 cubic feet in volume;

S4WT Comment:

Any reasonable person would not consider the following to be small: 28 cubic feet of equipment (in addition to 3–12 cubic feet of antennas). Instead, the bill should say the volume of all other wireless equipment is not more than X cubic feet, where X would be set by each local community.

(4) the facilities do not require antenna structure registration under 47 C.F.R. Part 17;

S4WT Comment:

Each Wireless Telecommunications Facility must be registered and put on on a city-controlled 24/7 monitored sensor/switch that will shut down the WTF the minute the WTF exceeds a community-determined maximum power density level (such as peak RF-EMR exposures of 150 µW/m² at the point where people might be and the peak RF-EMR exposure would be the highest). RF-EMR offenses by the Wireless Co. would be $50,000 for first offense, $100,000 for second offense and mandatory removal by the Wireless Co. upon third offense, at no cost to the City. If the WTF is not removed in two weeks, the City could then fine the Wireless Co. $250,000 and use a portion of this money to pay a contractor to remove and dispose of all WTF equipment.

(5) the facilities are not located on tribal lands, as defined under 36 C.F.R. 800.16 (x); and

(6) the wireless facilities do not result in human exposure to radio frequency in excess of the applicable safety standards specified in 47 C.F.R. 1.1307(b).

S4WT Comment:

The FCC RF-EMR maximum public exposure guidelines are scientifically unsound and are not protective. Instead, the bill should choose Biologically-Based RF Microwave Radiation Exposure Guidelines.

(S) “structure” means a utility pole or wireless support structure, whether or not it has an existing antenna facility, that is 5used or to be used to provide personal wireless service, either on its own or commingled with other types of services.

(T) “technically feasible” means, with respect to a proposed placement for a small wireless facility, that the placement can be implemented without a reduction in the functionality of the facility because of:

(1) the facility’s engineering or spectrum usage; or

(2) the facility’s design, concealment measures, or site location.

S4WT Comment:

This is far too slanted towards the desires of the Wireless Company. The concept of feasibility should be rooted in the already established principles of least intrusive means to close a proven significant gap in telecommunications coverage.

(U) “utility easement” means a location within an authority on private property where public utilities are authorized by law, deed, or agreement to place, maintain, and allow access to utility facilities.

(V)

(1) “utility pole” means a pole or similar structure that is or may be used wholly or partly by or for wireline communications, electric distribution, lighting, traffic control, signage, or a similar function, or for the collocation of small wireless facilities.

(2) “utility pole” does not include wireless support structures or electric transmission structures.

(W) “wireless infrastructure provider” means a person who:

(1) builds or installs wireless communications transmission equipment, a wireless facility, or a wireless support structure; but

(2) is not a wireless services provider.

(X) “wireless provider” means a wireless infrastructure provider or a wireless services provider.

(Y) “wireless services” means any services provided to the public using licensed or unlicensed spectrum, including the use of wi-fi, whether at a fixed location or using mobile equipment

S4WT Comment:

This is much too broad a definition for wireless services. The only preemption of local authority is for the placement, construction, and modification of personal wireless service facilities that enable telecommunications (calls and texts). Opening up the public rights of ways for any conceivable wireless service would be disastrous. Compared to Fiber-Optics to the Premises (FTTP) wireless delivery of Internet or video data is thousands of times less energy-efficient, much slower, much less secure, much more obtrusive, hazardous and, therefore, not compliant with the Americans with Disabilities Act.

(Z) “wireless services provider” means a person who provides wireless services.

(AA)

(1) “wireless support structure” means a structure that is designed to support or capable of supporting wireless facilities.

(2) “wireless support structure” does not include:

(i) a utility pole; or

(ii) a structure designed solely for the collocation of small wireless facilities.

§ 8–702.

(A) except as otherwise provided by law, the provisions of this subtitle are not subject to the jurisdiction of the commission.

(B) this subtitle may not be construed or interpreted to:

(1) authorize any person to provide services that are regulated under 47 U.S.C. §§ 521 through 573 without complying with all laws applicable to those services and providers; or

(2) impose any new requirements on cable providers for the provision of cable service in the state.

§ 8–703.

(A) This section applies only to the deployment of small wireless facilities and associated utility poles in a right–of–way.

(B) An authority may not enter into an exclusive agreement with any person for the use of a right–of–way for:

(1) the collocation of small wireless facilities; or

(2) the installation, operation, marketing, modification, maintenance, or replacement of utility poles associated with a small wireless facility.

(C) if an authority imposes a rate or fee for the use of a right–of–way for utility purposes, the authority may impose a rate or fee for the use of a right–of–way in accordance with this section.

(D) in accordance with this section, a wireless provider shall have the right, as a permitted use not subject to zoning review or approval, to collocate small wireless facilities and install, operate, modify, maintain, and replace utility poles along, across, on, and under a right–of–way.

S4WT Comment:

This is a dagger in the heart of local rule. This cannot be installation by right. The paragraph, as written, is too ambiguous to stand. Paragraph (D) should not go beyond what is stated in 47 U.S.C. 332(c)(7) — Preservation of local zoning authority:

(iv) No State or local government or instrumentality thereof may regulate the placement, construction, and modification of personal wireless service facilities on the basis of the environmental effects of radio frequency emissions to the extent that such facilities comply with the Commission’s regulations concerning such emissions.

(E) a wireless provider shall install and maintain small wireless facilities and utility poles in a right–of–way in a manner that does not obstruct or hinder:

(1) the usual travel or public safety on the right–of–way;

(2) the legal use of the right–of–way by others.

S4WT Comment:

(3) not obstruct or hinder the property values, privacy and health & safety of the residents — which can only be achieved by allowing local jurisdictions to integrate broadband technology into their own community — as they see fit — respecting each community's preferred mix of wired vs. wireless infrastructure and service.

(4) not obstruct or hinder a community's ability to reasonably accommodate the needs of Electromagnetic Sensitive (EMS) residents in their communities.

(F)

(1) except as provided in paragraph (2) of this subsection, a new or modified utility pole installed under this section may not exceed the greater of:

(I) 10% in height above adjacent structures within 500 feet of the new or modified utility pole in the same right–of–way;

(II) 50 feet in height above ground level.

S4WT Comment:

Such installation of antennas so low without sufficient maximum power output regulations and 24/7 RF-EMR monitoring & policing would create a dangerous condition of public property. The antennas need to be installed much higher off the ground, which is why they should be collocated on existing macro towers — never on utility and light poles in neighborhoods.

(2) in accordance with local zoning laws, an authority may authorize the installation of a new or modified utility pole that exceeds the height limits set in paragraph (1) of this subsection.

(3) unless otherwise authorized by an authority, a small wireless facility under this section may not extend existing structures on which they are located to the greater of:

(I) a height of more than 50feet above ground level;

(II) an extension of more than 10%.

(G)

(1) an authority may adopt reasonable written design guidelines with objective, technically feasible criteria that reasonably match the aesthetics and character of an immediate area regarding all of the following:

(I) the location of any ground–mounted small wireless facilities;

(II) the location of a small wireless facility on a utility pole or wireless support structure;

(III) the appearance and concealment of small wireless facilities, including those relating to materials used for arranging, screening, or landscaping; and

(IV) the design and appearance of a utility pole.

(2) the guidelines shall be applied in a nondiscriminatory manner.

(3) materials used to comply with the appearance and concealment criteria established in the guidelines may not be considered part of the small wireless facility for purposes of facility size restrictions under this subtitle.

(4) each new or modified small wireless facility or utility pole installed in the right–of–way shall comply with an authority’s current design guidelines.

(H)

(1) a wireless provider shall be authorized to collocate on or replace decorative poles when necessary to deploy a small wireless facility.

(2) the collocation or decorative pole replacement shall reasonably conform to the design aesthetics of the original decorative pole and any applicable design guideline adopted under subsection (G) of this section.

(I)

(1) an authority may restrict a wireless provider to the use of attachments to existing structures in an area designated solely for underground cable and utility facilities, or the authority may prohibit a wireless provider from installing a structure in a right–of–way 31located in an area designated solely for underground cable and utility facilities, if:

(I) the authority requires all cable and utility 1facilities other than those owned by the authority to be placed underground by a specific date at least 3 months preceding the application of a wireless provider to install a structure;

(II) the authority does not prohibit the replacement of utility poles owned by the authority in the designated area; and

(III) the authority provides for a nondiscriminatory waiver process for the placement of a new pole to support a small 8wireless facility in the designated area.

(2) an authority shall process waivers under paragraph (1)(III) of this subsection in a reasonable and nondiscriminatory manner that does not have the effect of prohibiting the provision of wireless service.

(J)

(1) except as otherwise provided by law, an authority may require a wireless provider to use technically feasible, nondiscriminatory, and technologically neutral design or concealment measures when collocating wireless facilities in a historic district.

(2) the design or concealment measures may not:

(I) have the effect of prohibiting any wireless provider’s technology; or

(II) be considered a part of the small wireless facility for purposes of the size restrictions for small wireless facilities.

(K)

(1) any requirements an authority adopts under subsections (G) through (J) of this section must be:

(I) reasonable, in that they are technically feasible and reasonably directed to avoiding or remedying the intangible public harm of unsightly or out–of–character deployments;

(II) no more burdensome than those applied to other types of infrastructure deployments; and

(III) objective and published in advance

(2) an authority shall be neutral and nondiscriminatory in the exercise of its administration and regulation of the uses and users of rights–of–way in the authority’s jurisdiction.

(L) an authority may require a wireless provider to:

(1) repair any damage to the right–of–way or any facilities in the right–of–way directly caused by the activities of the wireless provider; and

(2) return the right–of–way to the condition that existed before any damage was incurred in accordance with the neutral, reasonable requirements and specifications of the authority.

(M)

(1) a wireless provider shall notify the authority of abandonment of any small wireless facility at the time the decision to abandon is made and not less than 30 days before abandonment.

(2) after receiving the notice, the authority may direct the wireless provider to remove all or any portion of the small wireless facility that the authority determines would be in the best interest of the public safety and public welfare to remove.

(3) a small wireless facility that is not operated for a continuous period of 12 months shall be considered abandoned, and the wireless provider must remove the small wireless facility within 60 days after receiving written notice from the authority notifying the wireless provider of the abandonment.

(4) if the wireless provider fails to remove the abandoned facility within 60 days after the notice, the authority may remove the facility and recover the actual and reasonable expenses of the removal from the wireless provider or its successors or assigns.

§ 8–704.

(A) this section applies to:

(1) the collocation of small wireless facilities and the installation, modification, and replacement of utility poles in a right–of–way; and

(2) the collocation of small wireless facilities outside a right–of–way on property not zoned exclusively for single–family residential use.

(B) except as provided in this subtitle, an authority may not prohibit, regulate, or impose a rate or fee for the collocation of small wireless facilities.

(C) the collocation of small wireless facilities under this section is a permitted use and is not subject to local zoning review and approval if the facilities are collocated:

(1) in a right–of–way; or

(2) outside a right–of–way on property not zoned and used exclusively for single–family residential use.

(D) if a permit is not exclusively applied to wireless facilities, an authority may require a person to obtain a permit to collocate a small wireless facility or install a new, modified, or replacement utility pole associated with the small wireless facility.

(E) an authority may not require an applicant for a permit under this section to:

(1) perform services or provide goods unrelated to the permit, including reserving fiber, conduit, or utility pole space for the authority;

(2) provide information in addition to that required of communications service providers other than wireless providers;

(3) place small wireless facilities on a specific utility pole or category of utility poles or place multiple antenna systems on a single utility pole; or

(4) place small wireless facilities a certain minimum distance apart in order to limit the placement of small wireless facilities.

(F) an authority may require an applicant for a permit to include construction and engineering drawings and information demonstrating that the small wireless facility or associated utility pole:

(1) will not materially interfere with:

(I) the safe operation of traffic control equipment;

(II) sight lines or clear zones for transportation or pedestrians; or

(III) compliance with the federal Americans with Disabilities Act or similar federal or state laws regarding pedestrian access or movement; and

S4WT Comment:

HB.654 must apply to all parts of the federal Americans with Disabilities Act, not just those regarding pedestrian access or movement.

(2) shall comply with:

(I) any local requirements for the reasonable and nondiscriminatory spacing of ground–mounted equipment and new utility poles if the spacing requirements do not prevent a wireless provider from serving any location; and

(II) applicable codes and the criteria under subsection (j) of this section.

(G)

(1) an authority may propose an alternate location within the right–of–way to the location proposed by a wireless provider for a new utility pole to support a small wireless facility that is within 50 feet of the location proposed by the wireless provider.

S4WT Comment:

This is much too restrictive given that 5G works from 2,000 to 3,000 feet away — comunities should be able to require collocation of antennas on existing macro towers.

(2) the wireless provider shall use the alternate location if the alternate location does not materially limit or inhibit the wireless provider’s ability to offer wireless service as compared to the location proposed by the wireless provider, or impose additional technical limitations or additional costs, as determined by the applicant.

S4WT Comment:

Not as determined by the applicant, but by the same level of written objective facts that are required of cities. This is another example of how one-sided this bill actually is — it was written by ALEC, AT&T and Verizon and passed to Maryland legislators to execute. We expect Maryland legislators to represent the needs of their constituents more than the needs of Multi-Billion-Dollar Telecom Cos.

(H) an authority may require an applicant for a permit to attest that the small wireless facility for which a permit is applied will be operational for use by a wireless provider within 1 year after the date the permit is issued, unless:

(1) the authority and the applicant agree to extend the period; or

(2) a delay is caused by a lack of commercial power or communications transport facilities to the area where the small wireless facility is to be collocated.

(I)

(1) within 10 days after receiving the application for a permit, the authority shall verify that the application is complete.

S4WT Comment:

Ten days is clearly not enough time to determine what items in an application are incomplete. Think this through.

(2)

(I) if the application is not complete, the authority shall notify the applicant in writing identifying the parts of the application that are incomplete and the rule or regulation creating the obligation to submit the missing information.

(III) the processing deadlines in paragraph (3) of this subsection will restart from the beginning on the date the applicant provides the information identified by the authority to render the application complete.

(3)

(I) within 60 days after receiving an application to collocate a small wireless facility and within 90 days after receiving an application to install, modify, or replace a utility pole in the right–of–way, the authority shall either approve or deny the permit.

S4WT Comment:

These draconian FCC shot clock regulations are being challenged by many cities and Consumer groups' law suits. The regulations could be set aside by a Motion of Stay and by outright defeat in the Ninth Circuit Court of Appeals . . . so don't include these very items in a State Bill.

According to Best, Best and Krieger, there may be another request for a stay in the Ninth Circuit.

While the Tenth Circuit denied the stay request, it did so on the basis of a failure to show irreparable harm, not a failure to show a likelihood of success on the merits. Therefore, if the facts on the ground change, a stay may still be warranted. Therefore, please recognize that, while the order has gone into effect, it could be put on hold in the future. If you are facing threats or costs, or feel you are suffering an imminent harm as a result of the rules, please document the problem. Relief may be possible.The order(s) may eventually be overturned.

We believe there are substantial questions as to whether the FCC small cell order is valid and lawful, and we are representing numerous jurisdictions challenging it and the August moratoria order. We are not recommending that you incorporate the FCC standards into local law.

If you do so, then you will be bound by your own requirements, even if the FCC order is vacated. Therefore, we think it is useful to develop regulations that provide you with maximum flexibility to make substantive determinations that you would be comfortable making — even if the FCC had not changed it rules — while still complying with procedural requirements, such as shot clocks that, if not complied with, may result in a loss of rights. If you are faced with a situation where you feel compelled to grant an application because of the FCC rules, you may wish to make the permit conditional, so that it terminates if the FCC rule is overturned.

(II) if an authority fails to act on a complete permit application within the applicable deadline, the permit shall be deemed to be approved on written notice by the applicant to the authority that the time period for acting on the application has lapsed.

S4WT Comment:

Deemed approved was even removed from FCC 18-133 to be fair to the cities. Bringing it back into this bill is proof that Maryland Legislators are not carefully considering the text of this bill. Deemed approved provisions must be removed.

(III) the processing deadline may be tolled by agreement of the applicant and the authority.

(4)

(I) if an authority denies a permit, the authority shall notify the applicant in writing of the basis for the denial and shall include any documentation regarding the denial.

(II) an applicant shall have 30 days after receiving notice of a denial of a permit to revise the application to cure the deficiencies noted by the authority that form the basis for the denial.

(III) an authority may not charge an additional application fee for a revised application received within 30 days after a denial of the original application.

(IV) within 30 days after receiving a revised application, an authority shall approve or deny the permit.

(5)

(I) an applicant may file a consolidated application for all small wireless facilities to be collocated within the jurisdiction of an authority.

S4WT Comment:

No upper limit of number or installations on a single application? It is completely unreasonable to expect a town to be able to process more than ten installations — and fulfill their duties under the ADA in —60 or 90 days.

(II) if an applicant files a consolidated application and an authority denies the collocation of one or more of the small wireless facilities identified in the application, that denial may not delay the processing of the permitting of any other small wireless facility identified in the consolidated application.

(J) an authority may deny an application for a permit to collocate a small wireless facility or for the installation, modification, or replacement of a utility pole only if the subject of the application:

(1) materially interferes with the safe operation of traffic control equipment;

(2) materially interferes with sight lines or clear zones for transportation or pedestrians;

(3) materially interferes with compliance with the federal Americans with Disabilities Act or similar federal or state laws regarding pedestrian access or movement;

S4WT Comment:

HB.654 must apply to all parts of the federal Americans with Disabilities Act, not just those regarding pedestrian access or movement.

(4) fails to comply with a local law regarding the reasonable and nondiscriminatory spacing of ground–mounted equipment and new utility poles as long as the spacing requirements do not prevent a wireless provider from serving any location;

(5) fails to comply with applicable codes and generally applicable standards that are consistent with this subtitle and adopted by an authority for construction and public safety in the rights–of–way, including reasonable and nondiscriminatory wiring and cabling requirements, grounding requirements, and abandonment and removal provisions;

(6) fails to comply with applicable design guidelines adopted under §8–703(g) of this subtitle; or

(7) fails to attest that a small wireless facility will comply with relevant federal communications commission regulations concerning radio-frequency emissions from radio transmitters and unacceptable interference with public safety spectrum, including compliance with the abatement and resolution procedures for interference with public safety spectrum established by the FCC under 47 C.F.R. 22.970 through 47 C.F.R. 22.973 and 47 C.F.R. 90.672 through 47 C.F.R. 90.675.

(K) subject to applicable relocation requirements and the applicant’s right to terminate at any time, a permit authorizes the applicant to install or collocate and operate and maintain the small wireless facilities and any associated utility pole covered by the permit for a period of not less than 10 years, with an option of renewal at the applicant’s discretion.

S4WT Comment:

Why only at the applicant's discretion? This discretion should apply equally to the cities.

(L) an authority may not institute a moratorium on:

(1) the receipt and processing of applications for a permit under this section; or

(2) the issuance of permits or other approvals under this section.

(M)

(1) except as provided in paragraph (2) of this subsection, an authority may not require a permit under this section for:

(I) routine maintenance;

(II) the replacement of small wireless facilities with small wireless facilities that are substantially similar to or not larger than the facilities being replaced; or

(III) the installation, placement, maintenance, operation, or replacement of micro wireless facilities that are strung on cables between existing utility poles in compliance with the national electrical safety code.

(2)

(I) an authority may require a permit to work within a right–of–way for the activities listed in paragraph (1) of this subsection and under subsection (d) of this section.

(II) if an authority requires a work permit under this paragraph, the authority shall process and approve the permit concurrently with a permit under subsection (d) of this subsection and within the same processing deadline in subsection (i)(3)of this section.

(3)

(I) an authority may require advance notice of an activity described in this subsection.

(II) a wireless provider may replace or upgrade a utility pole only with the approval of the utility pole’s owner.

§ 8–705.

(A) this section applies to activities of a wireless provider in a right–of–way.

(B) a person that owns, manages, or controls authority utility poles in a right–of–way may not enter into an exclusive agreement with any person for the right to attach equipment to the authority utility poles.

(C) an authority shall authorize the collocation of small wireless facilities on authority utility poles in accordance with §8–704 of this subtitle.

(D) the rate to collocate wireless facilities on authority utility poles shall be:

(1) nondiscriminatory regardless of the services provided by the person performing the collocation; and

(2) as provided under §8–706 of this subtitle.

(E)

(1) all rates, fees, and terms and conditions for make–ready work on an authority utility pole shall be nondiscriminatory, competitively neutral, and commercially reasonable.

(2) within 60 days after receiving a complete application for a permit in accordance with §8–704(d) of this subtitle, an authority shall provide a good faith estimate for any make–ready work, including utility pole replacement, if necessary.

(3) within 60 days after an applicant accepts a good faith estimate under paragraph (2) of this subsection, an authority shall complete all necessary make–ready work, including replacement of an authority utility pole if the authority demonstrates that the collocation will render the utility poles structurally unsound.

(4) an authority shall make available and keep current a reasonably sufficient list of contractors that the authority authorizes to perform surveys for good faith estimates and make–ready work on authority poles if the authority elects to have a contractor perform the authority’s duties under this section when the authority has failed to meet the deadlines specified in this section.

(5) a person owning, managing, or controlling an authority utility pole may not require more make–ready work than is required to satisfy any applicable codes or industry standards.

(6) a fee for make–ready work may not:

(I) include costs related to preexisting or prior damage or noncompliance;

(II) exceed actual costs or the amount charged to any other cable, information service, or telecommunications provider for similar work; or

(III) include any consultant fees or expenses.

§ 8–706.

(A) an authority may not require a wireless provider to pay any rate, fee, or other compensation to the authority or any other person except as authorized by this subtitle for:

(1) the right to use or occupy a right–of–way;

(2) the collocation of small wireless facilities on utility poles in a right–of–way; or

(3) the installation, maintenance, modification, operation, or replacement of utility poles in a right–of–way.

(B) an application fee for a permit issued under this subtitle for:

(1) the collocation of small wireless facilities on existing or replacement authority utility poles may not exceed $500 for a single up–front application that includes up to five small wireless facilities, with an additional $100 for each small wireless facility beyond the initial five on the same application;

(2) the installation, modification, or replacement of a utility pole together with the collocation of an associated small wireless facility that are permitted uses as of right under §8–703 of this subtitle may not exceed $1,000 per utility pole; and

(3) the installation, modification, or replacement of a new utility pole associated with a small wireless facility that is not a permitted use as of right under §8–703 of this subtitle may not exceed $1,000.

(D) a rate for the collocation of a small wireless facility attached to an authority utility pole shall be set at $100 per year for each small wireless facility connected to an authority utility pole.

§ 8–707.

(A) the district court shall have jurisdiction over any dispute arising under this subtitle.

(B) the district court shall adjudicate a case arising from a dispute under this subtitle within 180 days after the complaint or petition is filed.

§ 8.708.

(A) an authority may not require a wireless provider to indemnify and hold harmless the authority and its officers and employees against any loss, damage, or liability, except when a court of competent jurisdiction has found that the loss, damage, or liability was directly caused by the negligence of the wireless provider when installing, repairing, or maintaining small wireless facilities and associated utility poles.

(B)

(1) except for a wireless provider with an existing agreement or license to occupy and operate in the rights–of–way, during the period in which the wireless provider’s facilities are located on the authority improvements or rights–of–way, the authority may require the wireless provider to carry, at the wireless provider’s own cost and expense, the following insurance:

(I) property insurance for the authority’s property’s replacement cost against all risks;

(II) workers’ compensation insurance, as required by law; or

(III) commercial general liability insurance with respect to the wireless provider’s activities on the authority improvements or rights–of–way to afford minimum protection limits consistent with the authority’s requirements of other users of authority improvements or rights–of–way, including coverage for bodily injury and property damage.

(2) an authority may require a wireless provider to include the authority as an additional insured on the commercial general liability policy and provide certification and documentation of inclusion of the authority in a commercial general liability policy as reasonably required by the authority.

(3)

(I) a wireless provider may self–insure all or a portion of the insurance coverage and limit requirements required by an authority.

(II) a wireless provider that self–insures is not required, to the extent of the self–insurance, to comply with the requirement for the naming of additional insureds under this section.

(III) a wireless provider that elects to self–insure shall provide to the authority evidence sufficient to demonstrate the wireless provider’s financial ability to self–insure the insurance coverage and limits required by the authority.

(C)

(1) an authority may adopt, through local law, surety bonding requirements for wireless providers collocating small wireless facilities only if the authority imposes similar surety bonding requirements on other persons using a right–of–way.

(2) the purpose of a surety bond required under paragraph (1) of this subsection shall be to:

(I) provide for the removal of abandoned or improperly maintained small wireless facilities, including those that the authority determines need to be removed to protect public health, safety, or welfare and restore the right–of–way; or

(II) recoup rates or fees that have not been paid by a wireless provider in more than months, if the authority has given reasonable notice to the wireless provider and the opportunity to pay the rates or fees outstanding.

(3) surety bonding requirements under this subsection may not exceed $200 for each small wireless facility, up to a maximum amount of $10,000 for all small wireless facilities owned by a wireless provider in the jurisdiction.

§ 8–709.

(A)

(1) an authority may enact a local law to carry out the requirements of this subtitle.

(2) if an authority does not enact a local law to carry out the requirements of this subtitle, a wireless provider may install and operate small wireless facilities and utility poles in accordance with this subtitle.

(B)

(1) if there is an inconsistency between this subtitle and a local law that applies to small wireless facilities and associated utility poles, this subtitle shall prevail over the local law to the extent of the inconsistency.

(2) an agreement or ordinance that applies to small wireless facilities or utility poles that was in effect before June 1, 2019, is valid and enforceable only as to small wireless facilities that became operational or were constructed before June 1, 2019.

(C)

(1) except to ensure compliance with applicable codes that are building, electrical, plumbing ,or mechanical codes, an authority does not have any authority over the design, engineering, construction, installation, or operation of a small wireless facility that is not located on property owned or controlled by the authority.

(2) an authority shall evaluate the structure classification for wireless support structures under the latest version of ANSI/TIA–222.3

(D) nothing in this subtitle authorizes the state or an authority to:

(1) require wireless facility deployment; or

(2) regulate wireless services.

(E) nothing in this section maybe construed to impose or otherwise affect any rights, controls, tariffs, or contractual obligations that may be established with regard to the utility poles, similar structures, or equipment of any type that are owned or controlled by an investor–owned electric utility whose rates are regulated by the commissioner any of the utility’s affiliates, or by any independent transmission company.

§ 13–101.

(a) This section does not apply to a violation of the following provisions of this article:

(1) Title 5, Subtitle 4;

(2) Title 7, Subtitle 1

(3)Title 8, Subtitles [1 and] 1, 3, AND 7; and

(4) Title 9, Subtitle 3.

(b) A person may not fail, neglect, or refuse to comply with any provision of this division or any effective and outstanding direction, ruling, order, rule, regulation, or decision of the Commission.

(c) An individual who knowingly violates or knowingly aids or abets a public service company in the violation of subsection (b) of this section or any provision of this 26division:

(1) is guilty of a misdemeanor; and

(2) unless a different punishment is specifically provided by law, on conviction is subject to a fine not exceeding $1,000 for a first offense and not exceeding $5,000 for each additional or subsequent offense.

§ 13–201.

(a) This section does not apply to a violation of the following provisions of this article:

(1) Title 5, Subtitle 4;

(2) Title 7, Subtitle 1;

(3) § 7–213 as it applies to electric cooperatives;

(4) Title 8, Subtitles [1 and]1,3,AND 7;

(5) Title 9, Subtitle 3; and

(6)Title 8, Subtitle 4.10

(b)

(1) Except as provided in paragraph (2) of this subsection, the Commission may impose a civil penalty not exceeding $25,000 against a person who violates a provision of this division, or an effective and outstanding direction, ruling, order, rule, or regulation of the Commission.

(2) The civil penalty that the Commission may impose on a common carrier for each violation may not exceed $2,500.

(c)

(1) A civil penalty may be imposed in addition to any other penalty authorized by this division.

(2) Each violation is a separate offense.

(3) Each day or part of a day the violation continues is a separate offense.

(d) The Commission shall determine the amount of any civil penalty after 21considering:

(1) the number of previous violations of any provision of this article;

(2) the gravity of the current violation;

(3) the good faith efforts of the violator in attempting to achieve compliance after notification of the violation; and

(4) any other matter that the Commission considers appropriate and 27relevant.

(e)

(1) Except as provided in paragraphs (2) and (3) of this subsection, a civil penalty collected under this section shall be paid into the General Fund of the State.

(2) A civil penalty assessed for a violation of a service quality and reliability standard under §7–213 of this article shall be paid into the Electric Reliability Remediation Fund under §7–213(j) of this article.

(3) A civil penalty assessed for a violation of § 7–505(b)(7), § 7–507, § 67–603, § 7–604, or § 7–606 of this article, or a rule, an order, or a regulation adopted under any of those sections, shall be paid into the Retail Choice Customer Education and Protection Fund under § 7–310 of this article.

SECTION 2 AND BE IT FURTHER ENACTED, that this Act shall take effect June 1, 2019.

[Brackets] indicate matter deleted from existing law.