Missouri Senate

Perfected

Currently, if a public utility is denied a right-of-way permit, they may have their permit application reviewed by the governing body of the political subdivision. This act provides that if a public utility is denied a right-of-way permit, or believes that the political subdivision did not abide by the current law guidelines, they may seek a review of the action in court. The court must act on such request within 45 days or the request shall be deemed as granted. If a political subdivision does not act on an application for a right-of-way permit for a public utility after thirty one days, the application is approved. If a public utility has legally been granted access to a political subdivision's right of way since August 28, 2001, they are not required to obtain a permit for remaining in the right-of-way.

This act also creates the Uniform Wireless Communications Infrastructure Deployment Act. This act outlines the application approval process for construction or substantial modification of wireless facilities and support structures. Certain state, county, and municipal authorities that make decisions relating to the construction of wireless facilities and support structures are prohibited from requiring certain information from applicants, charging an application fee, basing their decisions on certain information, or creating certain regulations, as outlined in this act.

Certain state, county, and municipal authorities may continue to exercise zoning, land use, planning, and permitting authority within their territorial boundaries with regard to the siting of new wireless support structures, subject to the provisions of this act. Any applicant that proposes to construct a new wireless support structure shall submit to the proper territorial authority copies and application attachments. Further, the applicant must abide by local ordinances concerning land use and the appropriate permitting processes. Authorities must review applications for new wireless support structures within 90 calendar days of receiving the application. Applications are deemed complete unless the applicant is notified within 30 days of deficiencies. The applicant is given 30 days to cure the deficiencies. If an applicant requires more than 30 days to cure the deficiencies, the 90 day approval period will be extended by the same extension amount given the applicant. Applications that are not acted on by the authority within 90 days will be deemed approved.

Applications for substantial modifications of wireless support structures must be reviewed within 90 days of submission by the applicant. Applications are deemed complete unless the applicant is notified within 30 days of deficiencies. The applicant is given 30 days to cure the deficiencies. If an applicant requires more than 30 days to cure the deficiencies, the 90 day approval period will be extended by the same extension amount given the applicant. Applications that are not acted on by the authority within 90 days will be deemed approved.

Collocation applications must be reviewed by the appropriate authority within 45 days of submission by the applicant. Applications will be reviewed for conformance with applicable building permit requirements, National Electric Safety Codes, and industry standards. Applications are deemed complete unless the applicant is notified within 15 days of deficiencies. The applicant is given 15 days to cure the deficiencies. If an applicant requires more than 15 days to cure the deficiencies, the 45 day approval period will be extended by the same extension amount given the applicant. Applications that are not acted on by the authority within 45 days will be deemed approved. Authorities are prohibited from regulating the installation of wireless facilities on utility poles.

Parties whose application for new wireless support structures, substantial modification of wireless support structures, or collocation is denied may bring an action in a court of competent jurisdiction.

Authorities may not institute a moratorium on new wireless support structures or collocations if such moratorium exceeds six months and if the legislative act establishing it fails to state reasonable grounds and good cause for such moratorium. No moratorium shall affect an already pending application. Further, authorities may not charge more than the market rate for the rental of public land. If the parties cannot agree on a rate for the lease, three appraisers will be chosen. Each party will choose an appraiser with a third independent appraiser being chosen by the first two appraisers. The mid point of the three appraisals will be used as the rate, unless such amount is more than 10% off from the independent appraiser's valuation. In such a case, the independent appraiser's valuation will be used. Further, authorities may not offer a lease or contract to use public land to locate a wireless support structure than is less than 15 years in duration. Nothing in this section shall give the applicant the power of eminent domain or the right to compel any property owner to lease or sell property for the construction of a wireless support structure or collocation of a wireless facility.

In addition, this act allows any video service, telecommunications, or wireless communication provider to attach to a municipal utility pole without subjection to any required franchise authority or government permitting entity. An annual pole attachment rental rate shall be calculated on a per pole basis, and shall be considered reasonable if it does not exceed a rate calculated in accordance with the federal cable rate formula. Pole attachment rates, terms, and conditions shall be nondiscriminatory, just and reasonable. A video service, telecommunications, wireless communication provider, or municipal pole owner may seek review of any rate, term, or condition in the appropriate circuit court if that entity believes the rates, terms, and conditions are not fair, just, and reasonable.

Additionally, this act establishes a procedure for certain utilities to construct facilities over, under, or across a railroad right-of-way. Under this act, a utility shall have the authority to commence a crossing activity after 30 days from the mailing of notice, completing the engineering specifications, and payment of the fee established by the act if there is no claim of special circumstances. Land management companies and utilities must maintain and repair its own property within the railroad right-of-way and bear responsibility for its own acts and omissions, except that the utility shall be responsible for any bodily injury or property damage that typically would be covered under a standard railroad protective liability insurance policy. Further, this act specifies that a utility shall have immediate access to a crossing for repair and maintenance of existing facilities in case of emergency.

Under this act, a utility shall be provided an expedited crossing, absent a claim of special circumstances, after payment by the utility of the standard crossing fee, if applicable, and submission of completed engineering specifications to the land management company. Unless otherwise agreed by the parties, a utility that locates its facilities within the railroad right-of-way for a crossing, shall pay the land management company a one-time standard crossing fee of $1,500 for each crossing plus the costs associated with modifications to existing insurance contracts of the utility and the land management company. The standard crossing fee shall be in lieu of any license, permit, application, or any other fees or charges to reimburse the land management company for the direct expenses incurred by the land management company as a result of the crossing. The utility shall also reimburse the land management company for any actual flagging expenses associated with a crossing in addition to the standard crossing fee. Nothing in this act shall prevent a land management company and a utility from otherwise negotiating the terms and conditions applicable to a crossing or the resolution of any disputes relating to the crossing, or from impairing a utility to secure an easement.

Under the terms of this act, if the parties cannot agree that special circumstances exist to a particular crossing, the dispute shall be submitted to non-binding arbitration. Special circumstances generally means that there are circumstances associated with a particular crossing that requires additional terms and conditions or additional compensation. This act establishes the procedure in which a party may request informal arbitration. The informal arbitration established by the act shall be held in accordance with the rules and procedures of the American Arbitration Association. Each party shall bear its own expenses, including, without limitation, legal and accounting fees, and the cost of the arbitrator shall be shared equally by each party. Under the terms of the act, the parties may or may not elect to abide by the decision of the arbitrator. If the parties cannot resolve their dispute based on the arbitrator's recommendation within thirty days, either party may give written notice to the other party of the commencement of a binding arbitration proceeding in accordance with the commercial rules of Arbitration in the American Arbitration Association. Any decision by the board of arbitration shall be final, binding, and conclusive as to the parties. If the dispute over special circumstances concerns only the compensation associated with a crossing, then the utility may proceed with installation of the crossing during the pendency of the arbitration.

The provisions of this act shall apply to a crossing commenced prior August 28, 2013, if an agreement concerning the crossing has expired or is terminated and to a crossing commenced on or after August 28, 2013.

The provisions of this act are similar to SB 418 (2013)and HCS/HB 345 (2013).

KAYLA CRIDER