THE STATE AND ITS GOVERNMENT
DEPLOYMENT OF PERSONAL WIRELESS SERVICE FACILITIES
12-K:1 Goals; Purpose.
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.
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.
(c) Camouflaged PWSFs mounted on existing structures and buildings.
(d) Custom designed PWSFs to minimize the visual impact of a PWSF on its surroundings.
(e) Other available technology.
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.
V-a. It is the policy of this state to facilitate the provision of broadband and other advanced personal wireless services across the state; and to promote access to broadband and advanced personal wireless services for all residents, students, government agencies, and businesses to ensure the availability of educational opportunities, economic development, and public safety services throughout New Hampshire. Deployment of personal wireless service facilities infrastructure is also critical to ensuring that first responders can provide for the health and safety of all residents of New Hampshire. Consistent with the federal Middle Class Tax Relief and Job Creation Act of 2012, Public Law 112-96, section 6409, which creates a national wireless emergency communications network for use by first responders that will be dependent on facilities placed on existing antenna mounts or towers, it is the policy of this state to facilitate the collocation of personal wireless services facilities on existing antenna mounts or towers in all areas of New Hampshire, while also allowing for expeditious modification of existing personal wireless service facilities to keep pace with technological improvements.
VI. Except as provided in RSA 12-K:10 and RSA 12-K:11, 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.
Source. 2000, 240:1, eff. Aug. 7, 2000. 2013, 267:1, 2, eff. Sept. 22, 2013.
In this chapter:
I. "Accessory equipment" means any equipment serving or being used in conjunction with a PWSF or mount. The term includes utility or transmission equipment, power supplies, generators, batteries, cables, equipment buildings, cabinets and storage sheds, shelters, or similar structures.
II. "Antenna" means the equipment from which wireless radio signals are sent and received by a PWSF.
III. "Applicant" means a carrier or any person engaged in the business of providing the infrastructure required for a PWSF who submits a collocation application or a modification application.
IV. "Authority" means each state, county, and each governing body, board, agency, office, or commission of a municipality authorized by law to make legislative, quasi judicial, or administrative decisions relative to the construction, installation, modification, or siting of PWSFs and mounts. The term shall not include state courts having jurisdiction over land use, planning, or zoning decisions made by an authority.
V. "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.
VI. "Base station" means a station at the base of a mount or in the area near the PWSF that is authorized to communicate with mobile stations, generally consisting of radio transceivers, antennas, coaxial cables, power supplies, and other associated electronics.
VII. "Building permit" means a permit issued pursuant to RSA 676 by an authority prior to the collocation or modification of PWSFs, solely to ensure that the work to be performed by the applicant satisfies the applicable building code.
VIII. "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.
IX. "Carrier" means a person that provides personal wireless services.
X. "Collocation" means the placement or installation of new PWSFs on existing towers or mounts, including electrical transmission towers and water towers, as well as existing buildings and other structures capable of structurally supporting the attachment of PWSFs in compliance with applicable codes. "Collocation" does not include a "substantial modification."
XI. "Collocation application" shall mean a request submitted by an applicant to an authority for collocation on a tower or mount.
XII. "Director" means the director of the department of energy.
XIII. "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.
XIV. "Electrical transmission tower" means an electrical transmission structure used to support high voltage overhead power lines. The term shall not include any utility pole.
XV. "Equipment compound" means an area surrounding or near the base of a tower or mount supporting a PWSF, and encompassing all equipment shelters, cabinets, generators, and appurtenances primarily associated with the PWSF.
XVI. "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.
XVII. "Height" means the height above ground level from the natural grade of a site to the highest point of a structure.
XVIII. "Modification" means the replacement or alteration of an existing PWSF within a previously approved equipment compound or upon a previously approved mount. Routine maintenance of an approved PWSF shall not be considered a modification.
XIX. "Modification application" means a request submitted by an applicant to an authority for modification of a PWSF.
XX. "Mount" means the structure or surface upon which antennas are mounted and includes roof-mounted, side-mounted, ground-mounted, and structure-mounted antennas on an existing building, as well as an electrical transmission tower and water tower, and excluding utility poles.
XXI. "Municipality" means any city, town, unincorporated town, or unorganized place within the state.
XXII. "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. A PWSF includes the set of equipment and network components, exclusive of the underlying tower or mount, including, but not limited to, antennas, accessory equipment, transmitters, receivers, base stations, power supplies, cabling, and associated equipment necessary to provide personal wireless services.
XXIII. "Radio frequency emissions" means the emissions from personal wireless service facilities, as described in the federal Telecommunications Act of 1996, 47 U.S.C. section 332(c)(7)(B)(iv).
XXIV. "Tower" shall mean a freestanding or guyed structure, such as a monopole, monopine, or lattice tower, designed to support PWSFs.
XXV. "Substantial modification" means the mounting of a proposed PWSF on a tower or mount which, as a result of single or successive modification applications:
(a) Increases or results in the increase of the permitted vertical height of a tower, or the existing vertical height of a mount, by either more than 10 percent or the height of one additional antenna array with separation from the nearest existing antenna not to exceed 20 feet, whichever is greater; or
(b) Involves adding an appurtenance to the body of a tower or mount that protrudes horizontally from the edge of the tower or mount more than 20 feet, or more than the width of the tower or mount at the level of the appurtenance, whichever is greater, except where necessary to shelter the antenna from inclement weather or to connect the antenna to the tower or mount via cable; or
(c) Increases or results in the increase of the permitted square footage of the existing equipment compound by more than 2,500 square feet; or
(d) Adds to or modifies a camouflaged PWSF in a way that would defeat the effect of the camouflage.
XXVI. "Utility pole" means a structure owned and/or operated by a public utility, municipality, electric membership corporation, or rural electric cooperative that is designed specifically for and used to carry lines, cables, or wires for telephony, cable television, or electricity, or to provide lighting.
XXVII. "Water tower" means a water storage tank, or a standpipe or an elevated tank situated on a support structure, originally constructed for use as a reservoir or facility to store or deliver water.
Source. 2000, 240:1. 2003, 319:9. 2004, 257:44, eff. July 1, 2004. 2013, 267:3, eff. Sept. 22, 2013. 2017, 156:64, eff. July 1, 2017. 2021, 91:200, eff. July 1, 2021.
12-K:3 Wireless Carriers Doing Business in this State.
Each carrier or its appointed agent doing business, or seeking to do business, in this state shall:
I. Be allowed to construct new towers, provided that these towers 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.
II. Comply with all applicable state and municipal land use regulations laws.
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 tower or to make a substantial modification to an existing tower, mount, or PWSF, or prior to construction if no approval is required, to the municipality in which the tower, mount, or PWSF is to be constructed and to the department of energy as follows:
(a) A copy of its license from the Federal Communications Commission (FCC) demonstrating its authority to provide personal wireless services in the geographical area where the PWSF is located, or where a person is seeking to construct a new tower or make a substantial modification to a tower, mount, or PWSF on behalf of a carrier, a signed authorization from a representative of the carrier, and a copy of the carrier's license.
(b) Upon request, 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 new ground-mounted PWSF, including permanent, temporary or to-be-decommissioned sites, if any.
(c) Upon request, a description of why less visually intrusive alternatives for this tower or mount were not proposed.
Source. 2000, 240:1. 2003, 319:9. 2004, 257:44, eff. July 1, 2004. 2013, 267:4, eff. Sept. 22, 2013. 2017, 156:64, eff. July 1, 2017. 2021, 91:200, eff. July 1, 2021.
12-K: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).
Source. 2000, 240:1, eff. Aug. 7, 2000.
12-K:5 Fall Zones.
Zoning ordinances may include provisions for fall zones for new towers and substantial modifications to the extent necessary to protect public safety.
Source. 2000, 240:1, eff. Aug. 7, 2000. 2013, 267:5, eff. Sept. 22, 2013.
12-K:6 Personal Wireless Services Facilities Map.
The director of the department of energy 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. 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.
Source. 2000, 240:1. 2003, 319:9. 2004, 257:44, eff. July 1, 2004. 2013, 267:6, eff. Sept. 22, 2013. 2017, 156:64, eff. July 1, 2017. 2021, 91:200, eff. July 1, 2021.
12-K:7 Regional Notification.
I. (a) Any municipality or other authority which receives an application to construct a new tower or to complete a substantial modification to an existing tower or mount 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, presenting a synopsis of the application, providing relevant information concerning the applicable permits required and the date of the next public hearing on the application. Where a public hearing is scheduled by the local governing body, 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 tower 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, presenting a synopsis of 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.
Source. 2000, 240:1, eff. Aug. 7, 2000. 2013, 267:7, eff. Sept. 22, 2013.
12-K:8 Model Ordinances and Guidance.
The director of the department of energy 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 department of energy shall provide a copy of the set of model ordinances to any New Hampshire municipality that requests it.
Source. 2000, 240:1. 2003, 319:9. 2004, 257:44, eff. July 1, 2004. 2017, 156:64, eff. July 1, 2017. 2021, 91:200, eff. July 1, 2021.
The director of the department of energy, after holding a public hearing, shall adopt rules under RSA 541-A to provide sufficient information to municipalities, other state agencies, wireless companies doing business or seeking to do business in this state, and the public.
Source. 2000, 240:1. 2003, 319:9. 2004, 257:44. 2012, 171:3, eff. Aug. 10, 2012. 2017, 156:64, eff. July 1, 2017. 2021, 91:200, eff. July 1, 2021.
12-K:10 Application Review.
Notwithstanding any ordinance, bylaw, or regulation to the contrary, in order to ensure uniformity across New Hampshire with respect to the process for reviewing a collocation application and a modification application, each authority shall follow the following process:
I. Collocation applications and modification applications shall be reviewed for conformance with applicable building permit requirements but shall not otherwise be subject to zoning or land use requirements, including design or placement requirements, or public hearing review.
II. The authority, within 45 calendar days of receiving a collocation application or modification application, shall:
(a) Review the collocation application or modification application in light of its conformity with applicable building permit requirements and consistency with this chapter. A collocation application or modification application is deemed to be complete unless the authority notifies the applicant in writing, within 15 calendar days of submission of the specific deficiencies in the collocation application or modification application which, if cured, would make the collocation application or modification application complete. Upon receipt of a timely written notice that a collocation application or modification application is deficient, an applicant shall have 15 calendar days from receiving such notice to cure the specific deficiencies. If the applicant cures the deficiencies within 15 calendar days, the collocation application or modification application shall be reviewed and processed within 45 calendar days from the initial date received by the authority. If the applicant requires more than 15 calendar days to cure the specific deficiencies, the 45 calendar days deadline for review shall be extended by the same period of time;
(b) Make its final decision to approve or disapprove the collocation application or modification application; and
(c) Advise the applicant in writing of its final decision.
III. If the authority fails to act on a collocation application or modification application within the 45 calendar days review period, the collocation application or modification application shall be deemed approved.
IV. Notwithstanding anything to the contrary in this chapter, an authority may not mandate, require or regulate the installation, location, or use of PWSFs on utility poles.
V. A party aggrieved by the final action of an authority, either by an affirmative denial of a collocation application or modification application under paragraph II or by its inaction, may bring an action for review in superior court for the county in which the PWSF is situated.
Source. 2013, 267:8, eff. Sept. 22, 2013.
12-K:11 Limitations on Applications.
I. In order to ensure uniformity across New Hampshire with respect to the consideration of every collocation application and modification application, no authority may:
(a) Require an applicant to submit information about, or evaluate an applicant's business decisions with respect to, its designed service, customer demand for service, or quality of its service to or from a particular area or site.
(b) Evaluate a collocation application or modification application based on the availability of other potential locations for the placement of towers, mounts, or PWSFs.
(c) Decide which type of personal wireless services, infrastructure, or technology shall be used by the applicant.
(d) Require the removal of existing mounts, towers, or PWSFs, wherever located, as a condition to approval of a collocation application or modification application.
(e) Impose environmental testing, sampling, or monitoring requirements or other compliance measures for radio frequency emissions on PWSFs that are categorically excluded under the FCC's rules for radio frequency emissions pursuant to 47 C.F.R. section 1.1307(b)(1).
(f) Establish or enforce regulations or procedures for radio frequency signal strength or the adequacy of service quality.
(g) In conformance with 47 U.S.C. section 332(c)(7)(B)(iv), reject a collocation application or modification application, in whole or in part, based on perceived or alleged environmental effects of radio frequency emissions.
(h) Impose any restrictions with respect to objects in navigable airspace that are greater than or in conflict with the restrictions imposed by the Federal Aviation Administration.
(i) Prohibit the placement of emergency power systems that comply with federal and New Hampshire environmental requirements.
(j) Charge an application fee, consulting fee or other fee associated with the submission, review, processing, and approval of a collocation application or modification application that is not required for similar types of commercial development within the authority's jurisdiction. Fees imposed by an authority or by a third-party entity providing review or technical consultation to the authority must be based on actual, direct, and reasonable administrative costs incurred for the review, processing, and approval of a collocation application or modification application. Notwithstanding the foregoing, in no event shall an authority or any third-party entity include within its charges any travel expenses incurred in a third-party's review of a collocation application or modification application, and in no event shall an applicant be required to pay or reimburse an authority for consultant or other third-party fees based on a contingency or result-based arrangement.
(k) Impose surety requirements, including bonds, escrow deposits, letters of credit, or any other type of financial surety, to ensure that abandoned or unused facilities can be removed unless the authority imposes similar requirements on other permits for other types of commercial development or land uses. If surety requirements are imposed, they shall be competitively neutral, non-discriminatory, reasonable in amount, and commensurate with the historical record for local facilities and structures that are abandoned.
(l) Condition the approval of a collocation application or modification application on the applicant's agreement to provide space on or near any tower or mount for the authority or local governmental services at less than the market rate for space or to provide other services via the structure or facilities at less than the market rate for such services.
(m) Limit the duration of the approval of a collocation application or modification application.
(n) Discriminate on the basis of the ownership, including by the authority, of any property, structure, or tower when evaluating collocation applications or modification applications.
II. Notwithstanding the limitations in paragraph I, nothing in this chapter shall be construed to:
(a) Limit or preempt the scope of an authority's review of zoning, land use, or permit applications for the siting of new towers or for substantial modifications to existing towers, mounts, or PWSFs.
(b) Prevent a municipality from exercising its general zoning and building code enforcement powers pursuant to RSA 672 through RSA 677 and as set forth in this chapter.
Source. 2013, 267:8, eff. Sept. 22, 2013.
Commission to Study the Environmental and Health Effects of Evolving 5G Technology
Section 12-K:12 to 12-K:14
12-K:12 to 12-K:14 Repealed by 2019, 260:2, eff. Nov. 1, 2020.