H-0479.2
HOUSE BILL 1440
State of Washington 67th Legislature 2021 Regular Session
By Representatives Boehnke, Sutherland, Chambers, Graham, Volz,
Eslick, and Jacobsen
Read first time 02/01/21. Referred to Committee on Community &
Economic Development.
1 AN ACT Relating to bringing innovation and investment to
2 Washington's economy by streamlining the requirements for deployment
3 of small wireless facilities; and adding a new chapter to Title 80
4 RCW.
5 BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF WASHINGTON:
6 NEW SECTION. Sec. 1. The legislature finds and declares that:
7 (1) As a result of COVID-19, Washington state schools are largely
8 operating on a distance learning model and many citizens are working
9 remotely. Communications networks, including both wired and wireless,
10 have done much work to meet these growing needs, but additional work
11 is required to facilitate widespread deployment of next-generation
12 wireless and broadband network facilities;
13 (2) Wireless and broadband products and services are a
14 significant and continually growing part of the state's economy.
15 Accordingly, encouraging the development of strong and robust
16 wireless and broadband communications networks throughout the state
17 is integral to the state's economic competitiveness;
18 (3) Rapid deployment of small wireless facilities will serve
19 numerous important statewide goals and the public policy, including:
20 Meeting growing consumer demand for wireless data; increasing
21 competitive options for communications services available to the
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 1 state's residents; promoting the ability of the state's citizens to
2 communicate with other citizens and with their schools, state, and
3 local governments; and promoting public safety;
4 (4) Small wireless facilities, including facilities commonly
5 referred to as small cells and distributed antenna systems, are
6 deployed most effectively in the rights-of-way;
7 (5) To meet the key objectives of this chapter and federal law,
8 wireless providers must have access to the rights-of-way and the
9 ability to attach to infrastructure in the rights-of-way to densify
10 their networks and provide next-generation wireless services;
11 (6) Rates and fees for the permitting and deployment of small
12 wireless facilities in rights-of-way and on authority infrastructure,
13 including poles, throughout the state, consistent with federal law,
14 is reasonable and will encourage the development of robust next-
15 generation wireless and broadband networks for the benefit of
16 citizens throughout the state; and
17 (7) The procedures, rates, and fees in this chapter are
18 consistent with federal law and are fair and reasonable when viewed
19 from the perspective of the state's citizens and the state's interest
20 in having robust, reliable, and technologically advanced wireless and
21 broadband networks and reflect a balancing of the interests of the
22 wireless providers deploying new facilities and the interests of
23 authorities in recovering their costs of managing access to the
24 rights-of-way and the attachment space provided on authority
25 infrastructure in the rights-of-way.
26 NEW SECTION. Sec. 2. The definitions in this section apply
27 throughout this chapter unless the context clearly requires
28 otherwise.
29 (1) "Antenna" means an apparatus designed for the purpose of
30 emitting radio frequency signals to be operated or operating from a
31 fixed location pursuant to the federal communications commission
32 authorization for the provision of wireless services.
33 (2) "Antenna equipment" means equipment, switches, wiring,
34 cabling, power sources, shelters, or cabinets associated with an
35 antenna, located at the same fixed location as the antenna, and when
36 collocated on a structure. Antenna equipment does not include:
37 (a) The structure or improvements on, under, or within which the
38 equipment is collocated; or
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 1 (b) Wireline backhaul facilities, coaxial or fiber optic cable
2 that is between wireless support structures or utility poles or
3 coaxial, or fiber optic cable that is otherwise not immediately
4 adjacent to or directly associated with an antenna.
5 (3) "Antenna facility" means an antenna and associated antenna
6 equipment.
7 (4) "Applicable codes" means uniform building, fire, electrical,
8 plumbing, or mechanical codes adopted by a recognized national code
9 organization, or local amendments to those codes that are of general
10 application, address public safety, and are consistent with this
11 chapter.
12 (5) "Applicant" means any person who submits an application as or
13 on behalf of a wireless provider.
14 (6) "Application" means a request submitted by an applicant to an
15 authority for a permit to:
16 (a) Collocate small wireless facilities; or
17 (b) Install, modify, or replace a structure on which to collocate
18 a small wireless facility, where required.
19 (7) "Authority" means the state or any agency, county,
20 municipality, district, or subdivision thereof or any instrumentality
21 of the same including, but not limited to, public utility districts,
22 irrigation districts, and municipal electric utilities. "Authority"
23 does not include state courts having jurisdiction over an authority.
24 (8) "Authority structure" means a structure, or conduit facility
25 suitable for placing fiber required to provide backhaul to a small
26 wireless facility, owned, managed, or operated by or on behalf of an
27 authority.
28 (9) "Collocate" means either (a) mounting or installing an
29 antenna facility on a preexisting structure; or (b) modifying a
30 structure for the purpose of mounting or installing an antenna
31 facility on that structure, or both.
32 (10) "Communications facility" means the set of equipment and
33 network components, including wires, cables, and associated
34 facilities used by a cable operator, as defined in 47 U.S.C. Sec.
35 522(5); a telecommunications carrier, as defined in 47 U.S.C. Sec.
36 153(51); a provider of information service, as defined in 47 U.S.C.
37 Sec. 153(24); or a wireless services provider to provide
38 communications services, including cable service, as defined in 47
39 U.S.C. Sec. 522(6), telecommunications service, as defined in 47
40 U.S.C. Sec. 153(53), or an information service, as defined in 47
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 1 U.S.C. Sec. 153(24) wireless service; or other one-way or two-way
2 communications service.
3 (11) "Communications service provider" means a cable operator, as
4 defined in 47 U.S.C. Sec. 522(5); a provider of information service,
5 as defined in 47 U.S.C. Sec. 153(24); a telecommunications carrier,
6 as defined in 47 U.S.C. Sec. 153(51); or a wireless provider.
7 (12) "Decorative pole" means an authority structure that is
8 specially designed and placed for aesthetic purposes and on which no
9 appurtenances or attachments, other than a small wireless facility,
10 lighting, specially designed informational or directional signage, or
11 temporary holiday or special event attachments have been placed or
12 are permitted to be placed according to nondiscriminatory authority
13 rules or codes.
14 (13) "Facility" means an antenna facility or a structure that is
15 used for the provision of wireless services.
16 (14) "Fee" means a one-time, nonrecurring charge.
17 (15) "Historic district" means a group of buildings, properties,
18 or sites that are either: (a) Listed in the national register of
19 historic places or formally determined eligible for listing by the
20 keeper of the national register, in accordance with Section
21 VI.D.1.a.i-v of the nationwide programmatic agreement codified at 47
22 C.F.R. Part 1, Appendix C, as it existed on the effective date of
23 this section; or (b) a registered historic district by the state
24 historic preservation officer as of the effective date of this
25 section.
26 (16) "Law" includes applicable federal, state, or local law,
27 statute, common law, code, rule, regulation, order, or ordinance.
28 (17) "Micro wireless facility" means a small wireless facility
29 that meets the following qualifications: (a) Is not larger in
30 dimension than 24 inches in length, 15 inches in width, and 12 inches
31 in height; and (b) any exterior antenna is no longer than 11 inches.
32 (18) "Permit" means any and all authorizations, written or
33 otherwise, required by an authority to perform an action or initiate,
34 continue, or complete a project for the deployment of wireless
35 services at a specified location.
36 (19) "Person" means an individual, corporation, limited liability
37 company, partnership, association, trust, or other entity or
38 organization, including an authority.
39 (20)(a) "Pole" means a type of similar structure in the rights-
40 of-way that is or may be used in whole or in part by or for wireline
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 1 communications, electric distribution, lighting, traffic control,
2 signage, or a similar function, or for the collocation of small
3 wireless facilities.
4 (b) "Pole" does not include wireless support structures or
5 electric transmission structures.
6 (21) "Rate" means a recurring charge.
7 (22) "Rights-of-way" means the area on, below, or above a public
8 utility easement, roadway, highway, street, sidewalk, alley, or
9 similar property, but not including a federal interstate highway.
10 (23) "Small wireless facility" means a facility that meets each
11 of the following conditions:
12 (a) The facilities: (i) Are mounted on structures 50 feet or less
13 in height including the antennas; (ii) are mounted on structures no
14 more than 10 percent taller than other adjacent structures; or (iii)
15 do not extend existing structures on which they are located to a
16 height of more than 50 feet or by more than 10 percent, whichever is
17 greater;
18 (b) Each antenna associated with the deployment, excluding
19 associated antenna equipment, is no more than three cubic feet in
20 volume;
21 (c) All other wireless equipment associated with the structure,
22 including wireless equipment associated with the antenna and any
23 preexisting associated equipment on the structure, is no more than 28
24 cubic feet in volume; and
25 (d) The facilities do not result in human exposure to radio
26 frequency in excess of the applicable safety standards specified in
27 47 C.F.R. Sec. 1.1307(b), as it existed on the effective date of this
28 section.
29 (24) "Structure" means a wireless support structure or other
30 building, whether or not it has an existing antenna facility, that is
31 used or is to be used for the provision of wireless services.
32 (25) "Technically feasible" means that by virtue of engineering
33 or spectrum usage the proposed placement for a small wireless
34 facility, or its design, concealment measures, or site location can
35 be implemented without a reduction in the functionality of the small
36 wireless facility.
37 (26) "Wireless infrastructure provider" means any person,
38 including a person authorized to provide telecommunications service
39 in the state, that builds or installs wireless communication
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 1 transmission equipment, wireless facilities, or wireless support
2 structures, but that is not a wireless services provider.
3 (27) "Wireless provider" means a wireless infrastructure provider
4 or a wireless services provider.
5 (28) "Wireless services" means any services using licensed or
6 unlicensed spectrum, including the use of wi-fi, whether at a fixed
7 location or mobile, provided to the public.
8 (29) "Wireless services provider" means a person who provides
9 wireless services.
10 (30)(a) "Wireless support structure" means a structure, such as
11 a: Monopole; tower, either guyed or self-supporting; billboard;
12 building; or other existing or proposed structure designed to support
13 or capable of supporting wireless facilities, other than a structure
14 designed solely for the collocation of small wireless facilities.
15 (b) "Wireless support structure" does not include a pole.
16 NEW SECTION. Sec. 3. (1) This section applies to activities of
17 a wireless provider within the rights-of-way to deploy small wireless
18 facilities and associated poles.
19 (2) An authority may not enter into an exclusive arrangement with
20 any person for use of the rights-of-way for the collocation of small
21 wireless facilities or the installation, operation, marketing,
22 modification, maintenance, or replacement of poles for such
23 collocation.
24 (3) Subject to this section, a wireless provider has the right,
25 as a permitted use not subject to zoning review or approval, to
26 collocate small wireless facilities and install, maintain, modify,
27 operate, and replace poles along, across, upon, and under the rights-
28 of-way. Such structures and facilities must be installed and
29 maintained so as not to obstruct or hinder the usual travel or public
30 safety on the rights-of-way or obstruct the legal use of the rights-
31 of-way by utilities.
32 (4) Each new or modified pole installed in the rights-of-way for
33 the purpose of collocation of small wireless facilities may not
34 exceed the greater of: (a) 50 feet in height above ground level; or
35 (b) ten percent taller than the tallest existing structure in place
36 in the rights-of-way, as of the effective date of this section,
37 located within 500 feet of the new structure in the same rights-of-
38 way. A wireless provider has the right to collocate a small wireless
39 facility and install, maintain, modify, operate, and replace a pole
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 1 that exceeds these height limits along, across, upon, and under the
2 rights-of-way, subject to this section and applicable zoning
3 regulations.
4 (5) An authority may adopt standards in its code governing the
5 deployment of small wireless facilities and associated poles in the
6 rights-of-way, subject to the following conditions:
7 (a) The aesthetic requirements must be: (i) Reasonable, in that
8 they are technically feasible and reasonably directed to avoiding or
9 remedying the intangible public harm of unsightly or out-of-character
10 deployments; (ii) no more burdensome than those applied to other
11 types of infrastructure deployments; and (iii) objective and
12 published in advance.
13 (b) An authority may deny a permit for not complying with
14 aesthetic requirements only if the authority has found that a denial
15 does not create an effective prohibition of wireless services.
16 (c) Aesthetic requirements applicable to deployment on decorative
17 poles and in historic districts must also comply with the following
18 requirements:
19 (i) A wireless provider must be permitted to collocate on or
20 replace decorative poles when necessary to deploy a small wireless
21 facility. An authority may require the collocation or decorative pole
22 replacement to reasonably conform to the design aesthetics of the
23 original decorative pole or poles, provided that these requirements
24 are technically feasible.
25 (ii) A wireless provider shall be permitted to collocate small
26 wireless facilities or replace poles in historic districts.
27 Consistent with this subsection, an authority may require design or
28 concealment measures for small wireless facilities and associated
29 poles in historic districts. Any such design or concealment measures
30 may not be considered a part of the small wireless facility for
31 purposes of the size parameters in the definition of small wireless
32 facility. New poles must be permitted if collocation is not an
33 option.
34 (iii) A wireless provider must be permitted to place a new pole,
35 subject to the terms of this subsection, where to deny placement of
36 the new pole would be an effective prohibition of service.
37 (6) A wireless provider must comply with undergrounding
38 requirements where:
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 1 (a) The authority has required all electric and communications
2 lines to be placed underground by three months prior to the
3 submission of the application;
4 (b) Structures the authority allows to remain must be made
5 available to wireless providers for the collocation of small wireless
6 facilities, and may be replaced by a wireless provider to accommodate
7 the collocation of small wireless facilities, in compliance with this
8 chapter;
9 (c) A wireless provider may install a new pole in the designated
10 area that otherwise complies with this section when it is not able to
11 provide wireless services by collocating on a remaining pole or other
12 structure; and
13 (d) For small wireless facilities installed before an authority
14 adopts requirements that communications and electric lines be placed
15 underground, an authority adopting such requirements must permit: (i)
16 A wireless provider