At their regular session of March 6, members of the Bryan City Council were informed about Ohio Senate Bill 331. Originally a measure targeting and regulating businesses dealing with puppy mills, this measure became logrolled with several other, unrelated measures that probably would not have stood on their own. One of these additional measures pertained to the deployment of small cell telecommunications equipment in municipalities, and the restrictions placed upon those municipalities in the regulation of these small cells and Distributed Antenna Systems (DAS).
Passed by the Ohio Legislature on December 7, 2016, signed into law by Governor Kasich 12 days later, and scheduled to go into effect on March 21, SB 331 amends the Ohio Revised Code to define as ‘Micro Wireless Facilities’ Distributed Antenna Systems and small cells that have antennas not greater than 6 cubic feet in volume, associated equipment not more than 28 cubic feet in volume, and that do not increase the height of the supporting structure more than 10 feet or a total resulting height of 50 feet. The presence of Micro Wireless Facilities are exploding across the country. Almost half of US homes are currently exclusively wireless; the old landline telephone is becoming a thing of the past. By the year 2020 Micro Wireless Facilities are expected to account for at least half of all wireless infrastructure as the industry gears up for the coming ‘Fifth Generation’ or 5G market. The typical small cell aesthetic is that of an antenna attached to a pole or a building, with a power supply box either attached to the same, or nearby in what the measure refers to as a Wireless Support Structure.
A “Wireless Support Structure,” as defined by the bill, is any pole, including monopoles, light poles, traffic signals, sign poles, or utility poles that are capable of supporting wireless facilities. The definition excludes utility poles owned by municipal electric utilities. This is confusing in its own right, as the measure mandates communities to grant access to their municipally-owned poles.
Local zoning commissions or boards are restrained by the law from the permit granting process. Other than that which is set forth in the new provisions, municipalities cannot by law require any zoning or other approval, consent, permit, or certificate, or otherwise prohibit or restrain the activities governed by the new provisions. The Bill also explicitly provides that an application for a Micro Wireless Facility in the public rights of way shall be cleared, and shall be exempt from local zoning review.
Councilor Tommy Morr noted that there are more ‘shall not’ provisions for local governments in the measure, than there are permissions.
Amongst other things, under the measure, local governments cannot prohibit locations in residential areas or within a specific distance from a residence, or require the applicant to submit information or otherwise consider ‘need’ for the facility, customer demand, or quality of service. Local governments are forbidden from the imposition of unreasonable requirements regarding appearance or aesthetics, the requiring of the use of municipally-owned facilities or property, or imposing collocation requirements upon the applicant. Permits are not to be limited in their duration, and local governments are to refrain from demanding a separation between wireless facilities. The measure also expressly prohibits the filing of a local moratorium, the acceptance of filing, or the consideration/approval of applications for Micro Wireless Facilities in the public rights of way. Local governments are prohibited from evaluating the licensing request based on availability of other potential locations, require removal of existing wireless support structures or facilities, or require bonds, escrow deposits or letters of credit, unless the same is also imposed generally on right of way occupants. City Attorney Rhonda Fisher noted that although the City is barred in this aspect, they may still investigate the applicant to determine if they are registered with the Public Utilities Commission of Ohio (PUCO).
“The problem is going to be that we need to find a place for these people to exist,” said City Engineer, Brian Wieland. “We need to set up a criteria if they want to put their own pole up…how many feet away from certain utilities. We can’t just say, ‘No…we can’t do it.’ We have to find room. We’ve got a lot of work to get done here in the next two weeks. They vary in size. I’ve seen some that are the size of a breadbox, and I’ve seen some that are like a small satellite dish. Every single one of them has a power unit on the side which is similar to our traffic control boxes.” When it comes to establishing a DAS in certain areas where underground utilities already exist, Wieland said, “It’s going to be a struggle.”
Ms. Fisher said that she would have a resolution drafted for the next Council meeting pertaining to the aforementioned permitting protocols.
Council approved the transfer of funds totaling $800,000, and approved the recommendation to hire Brett Driscoll as a probationary volunteer firefighter. Council agreed to rescind the hiring of Brett Brown into the Street Department. The move was made at the previous meeting, but Brown has since indicated that he has agreed to a position with another employer.
Prior to adjournment, Council heard the annual reports of Street Commissioner Tyson Engstrom, and outgoing Wastewater Superintendent Ric Homier.
Timothy Kays can be reached at firstname.lastname@example.org