0240-hb 0733

CHAPTER 240

HB 733 - FINAL VERSION

AN ACT relative to a state master plan for the deployment of personal wireless service facilities and establishing a committee to study state wireless communications policy.

SPONSORS: Rep. Belvin, Hills 14; Rep. Bradley, Carr 8; Rep. N. Kaen, Straf 7

This bill establishes a master plan for the orderly deployment of personal wireless service facilities in communities throughout the state.

The bill also establishes a committee to study the state wireless communications policy.

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Matter which is either (a) all new or (b) repealed and reenacted appears in regular type.

AN ACT relative to a state master plan for the deployment of personal wireless service facilities and establishing a committee to study state wireless communications policy.

Be it Enacted by the Senate and House of Representatives in General Court convened:

240:1 New Chapter; Deployment of Personal Wireless Services Facilities. Amend RSA by inserting after chapter 12-I the following new chapter:

I. The federal Telecommunications Act of 1996 regulates the deployment of wireless services in the United States. Its purpose is to make these services available to the American people quickly and in a very competitive manner. Nothing in this chapter is intended to preempt the federal Telecommunications Act of 1996.

II. The visual effects of tall antenna mounts or towers may go well beyond the physical borders between municipalities, and should be addressed so as to require that all affected parties have the opportunity to be heard.

III. Carriers wishing to build personal wireless service facilities (PWSFs) in New Hampshire should consider commercially available alternative PWSFs to tall cellular towers, which may include the use of the following:

(a) Lower antenna mounts which do not protrude as far above the surrounding tree canopies.

(b) Disguised PWSFs such as flagpoles, artificial tree poles, light poles, and traffic lights, which blend in with their surroundings.

(d) Custom designed PWSFs to minimize the visual impact of a PWSF on its surroundings.

IV. A PWSF map is necessary to allow for the orderly and efficient deployment of wireless communication services in New Hampshire, and so that local communities have adequate information with which to consider appropriate siting and options to mitigate the visual effects of PWSFs.

V. Municipalities will benefit from state guidance regarding provisions to be considered in zoning ordinances relative to the deployment of wireless communications facilities, including one or more model ordinances.

VI. Nothing in this chapter shall be construed as altering any municipal zoning ordinance, and this chapter itself shall not be construed as a zoning ordinance.

I. "Antenna" means the equipment from which wireless radio signals are sent and received by a PWSF.

II. "Average tree canopy height" means the average height found by inventorying the height above ground level of all trees over a specified height within a specified radius.

III. "Camouflaged" means for a personal wireless service facility one that is disguised, hidden, part of an existing or proposed structure, or placed within an existing or proposed structure.

VI. "Disguised" means, for a PWSF, designed to look like a structure which may commonly be found in the area surrounding a proposed PWSF such as, but not limited to, flagpoles, light poles, traffic lights, or artificial tree poles.

VII. "Equipment shelter" means an enclosed structure, cabinet, shed vault, or box near the base of a mount within which are housed equipment for PWSFs, such as batteries and electrical equipment.

VIII. "Height" means the height above ground level from the natural grade of a site to the highest point of a structure.

IX. "Mount" means the structure or surface upon which antennas are mounted and include roof-mounted, side-mounted, ground-mounted, and structure-mounted types.

X. "Municipality" means any city, town, unincorporated town, or unorganized place within the state.

XI. "Personal Wireless Service Facility" or "PWSF" or "facility" means any "PWSF" as defined in the federal Telecommunications Act of 1996, 47 U.S.C. section 332(c)(7)(C)(ii), including facilities used or to be used by a licensed provider of personal wireless services.

XII. "Personal Wireless Services" means any wireless telecommunications services, and commercial mobile services including cellular telephone services, personal communications services, and mobile and radio paging services as defined in the federal Telecommunications Act of 1996, 47 U.S.C. section 332 (c)(7)(C)(i).

XIII. "Radio frequency radiation" means the emissions from personal wireless service facilities.

12-J:3 Wireless Carriers Doing Business in this State. All wireless carriers or their appointed agents doing business, or seeking to do business, in this state shall:

I. Be allowed to construct new ground-mounted PWSFs, provided that these PWSFs comply with municipal regulations for maximum height or maximum allowed height above the average tree canopy height, subject to any exceptions, waivers, or variances allowed or granted by the municipality.

III. Comply with all federal, state and municipal statutes, rules and regulations, including federal radio frequency radiation emission regulations and the National Environmental Policy Act of 1969, as amended.

IV. Provide information at the time of application to construct an externally visible PWSF, or prior to construction if no approval is required, to the municipality in which the facility is to be constructed and to the office of state planning, as follows:

(a) A copy of their license from the Federal Communications Commission (FCC) proving that they are eligible to deploy their systems in this geographical area and that this deployment falls under the jurisdiction of the federal Telecommunications Act of 1996; or a copy of their contract with a person with such a license, and a copy of that license.

(b) Upon request, detailed maps showing all of the carrier's current externally visible tower and monopole PWSF locations in the state within a 20 mile radius of the proposed externally visible PWSF, both active and inactive.

(c) Upon request, site descriptions for each of the above locations showing the antenna height and diameter, and showing all externally visible structures.

(d) Upon request, a description of why less visually intrusive alternatives for this facility were not proposed.

12-J:4 Payment of Costs. A wireless carrier seeking approval to deploy a wireless communication facility may be required to pay reasonable fees, including regional notification costs, imposed by the municipality in accordance with RSA 676:4, I(g).

12-J:5 Fall Zones. Zoning ordinances may include provisions for fall zones for PWSFs to the extent necessary to protect public safety.

12-J:6 Personal Wireless Services Facilities Map. The director of the office of state planning shall develop a personal wireless service facilities map for the state. This map shall include all externally visible tower and monopole PWSF locations in the state, both active and inactive, for all carriers. This map shall also include for each of the above locations a site description as described in RSA 12-J:3, IV(c). Upon request of the director, any wireless carrier or its appointed agent doing business in this state shall provide a map of all of its existing externally visible tower and monopole PWSF locations in the state and a site description of each as described in RSA 12-J:3, IV(c).

I.(a) Any municipality or state authority or agency which receives an application to construct a PWSF which will be visible from any other New Hampshire municipality within a 20 mile radius shall provide written notification of such application and pending action to such other municipality within the 20 mile radius.

(b) This notification shall include sending a letter to the governing body of the municipality within the 20 mile radius detailing the pending action on the application and shall also include publishing a notice in a newspaper customarily used for legal notices by such municipality within the 20 mile radius, stating the specifics of the application, the pending action, and the date of the next public hearing on the application. Such notice shall be published not less than 7 days nor more than 21 days prior to the public hearing date.

II.(a) Any person, prior to constructing a new PWSF in any location where no approval is required but which will be visible from any other New Hampshire municipality within a 20 mile radius, shall provide written notification of such planned construction to such other municipality within the 20 mile radius.

(b) This notification shall include sending a letter to the governing body of the municipality within the 20 mile radius detailing the planned construction and shall also include publishing a notice in a newspaper customarily used for legal notices by such municipality within a 20 mile radius, outlining the planned construction.

III. Municipalities within the 20 mile radius described in paragraphs I or II and their residents shall be allowed to comment at any public hearing related to the application. Regional notification and comments from other municipalities or their residents shall not be construed to imply legal standing to challenge any decision.

12-J:8 Model Ordinances and Guidance. The director of the office of state planning shall develop a set of model municipal ordinances relative to the deployment of personal wireless communications facilities. Prior to development, the director shall hold one or more public hearings and solicit comments from interested parties. The office of state planning shall provide a copy of the set of model ordinances to any New Hampshire municipality that requests it.

12-J:9 Rulemaking. The director of the office of state planning, after holding a public hearing, shall adopt rules under RSA 541-A as necessary to implement this act and to provide sufficient information to municipalities, other state agencies, wireless companies doing business or seeking to do business in this state, and the public.

240:2 Committee Established. There is established a committee to study state wireless communications policy.

(a) At least 3 but not more than 5 members of the senate, appointed by the president of the senate.

(b) Five members of the house of representatives, appointed by the speaker of the house. The speaker of the house may also appoint up to 5 additional house members as alternates, if deemed appropriate.

II. Members of the committee shall receive mileage at the legislative rate when attending to the duties of the committee.

240:4 Duties. The committee shall review state policies regarding the use of state lands, state rights-of-way, state buildings, and other state facilities for wireless communications, including commercial, public, and quasi-public purposes, and how such policies balance varied public interests, including promotion of telecommunications, alternatives to tall cellular towers, public safety, public and municipal participation in siting decisions, and preservation of aesthetic, landscape, and historic values.

240:5 Chairperson; Quorum. The members of the study committee shall elect a chairperson from among the members. The first meeting of the committee shall be called by the first-named senate member. A majority of the committee shall constitute a quorum.

240:6 Report. The study committee shall report its findings and any recommendations for proposed legislation to the senate president, the speaker of the house of representatives, the senate clerk, the house clerk, the governor, and the state library on or before December 1, 2000.

240:7 Contingency; Renumbering of RSA Chapter. If HB 1606-FN of the 2000 session becomes law, then RSA 12-J:1 - RSA 12-J:9 as inserted by section 1 of the bill, and any references to sections of RSA 12-J in the bill, shall be renumbered to read as RSA 12-K:1 - RSA 12-K:9, respectively.

AN ACT relative to a state master plan for the deployment of personal wireless service facilities.

The Office of State Planning has determined that this bill, as amended by the House, will have no fiscal impact on state, county and local revenue or expenditures.

The Office has stated any increased responsibility caused by this legislation will be assumed within their existing budget.