An Act To Facilitate Wireless Broadband Deployment in Maine and Modify the Process for Issuing Utility Facility Location Permits
Maine Legislature, Session 128, LD 1690
Committee: Energy, Utilities and Technology
Sponsors: WADSWORTH, WOODSOME, COREY, HANLEY, HARRINGTON, KINNEY
Amends: 30-A MRSA §4362, 35-A MRSA §2502, 35-A MRSA §2503, 35-A MRSA §2518, 35-A MRSA §2524

Legislative Document
No. 1690
H.P. 1170
House of Representatives, December 22, 2017
An Act To Facilitate Wireless Broadband Deployment in Maine and 
Modify the Process for Issuing Utility Facility Location Permits
Approved for introduction by a majority of the Legislative Council pursuant to Joint Rule 
203.
Received by the Clerk of the House on December 19, 2017.  Referred to the Committee on 
Energy, Utilities and Technology pursuant to Joint Rule 308.2 and ordered printed pursuant to 
Joint Rule 401.
ROBERT B. HUNT
Clerk
Presented by Representative WADSWORTH of Hiram.
Cosponsored by Senator WOODSOME of York and
Representatives: COREY of Windham, HANLEY of Pittston, HARRINGTON of Sanford, 
KINNEY of Limington.
Be it enacted by the People of the State of Maine as follows:
Sec. 1.  30-A MRSA §4362 is enacted to read:
§4362.  Small cell facilities
1.  Definitions.  As used in this section, unless the context otherwise indicates, the 
following terms have the following meanings.
A.  "Historic district" means a group of buildings, properties or sites that are either 
listed in the National Register of Historic Places or formally determined eligible for 
listing by the Keeper of the National Register in accordance with 47 Code of Federal 
Regulations, Part 1, Appendix C, Section VI(D)(1)(a)(i) to (v) (2017).
B.  "Small cell facility" has the same meaning as in Title 35-A, section 2502, 
subsection 7.
C.  "Technically feasible" means, with regard to a small cell facility, that, by virtue of 
engineering or spectrum usage, the proposed design or concealment measures can be 
implemented without reducing the functionality of the small cell facility.
D.  "Wireless provider" has the same meaning as in Title 35-A, section 2502, 
subsection 9.
2.  Permitted use.  Except as specifically provided in this section, a municipality 
may not enact or enforce a land use ordinance that prohibits or restricts the siting of a 
small cell facility and a municipality may not require review or approval of such siting 
under any land use ordinance.  Nothing in this section is intended to limit the ability of a 
municipality to regulate the location of a small cell facility as permitted under Title 35-A, 
chapter 25.
3.  Historic district.  Notwithstanding subsection 2, a municipality may require 
reasonable, technically feasible, nondiscriminatory and technologically neutral design or 
concealment measures governing the siting of a small cell facility in a historic district.  
Any such design or concealment measures may not have the effect of prohibiting any 
wireless provider's technology, nor may any such measures be considered a part of the 
small cell facility for purposes of calculating size under Title 35-A, section 2502, 
subsection 7.  Nothing in this subsection permits a municipality to adopt any standards or 
requirements with regard to equipment of a small cell facility that is excluded from 
evaluation for effects on historic properties under 47 Code of Federal Regulations, 
Section 1.1307(a)(4) (2017).
Sec. 2.  35-A MRSA §2502, sub-§§1-A to 1-D are enacted to read:
1-A.  Applicable codes.  "Applicable codes" means any building code, as defined in 
Title 10, section 9721, including the Maine Uniform Building and Energy Code, and any 
fire, electrical, plumbing or mechanical codes of general applicability that have been 
adopted by ordinance, regulation or rule.
1-B.  Authority.  "Authority" means the State or any agency, county, municipality or 
district or any subdivision or instrumentality of the State or any agency, county, 
municipality or district, excluding any public utility owned or operated by an authority.
1-C.  Authority pole.  "Authority pole" means a pole owned, managed or operated 
by or on behalf of an authority.
1-D.  Collocate.  "Collocate" means to install, mount, maintain, modify, operate or 
replace a wireless facility on or adjacent to a pole or wireless support structure. 
"Collocate" does not include the installation of new poles or wireless support structures.
Sec. 3.  35-A MRSA §2502, sub-§3, ¶B, as enacted by PL 1987, c. 141, Pt. A, 
§6, is amended to read:
B.    If on or over the surface of the public way, poles, guys, hydrants, cables, wires 
and any plant or equipment, including small cell facilities, located on or over the 
surface of the public way.
Sec. 4.  35-A MRSA §2502, sub-§§5 to 11 are enacted to read:
5.  Make-ready work.  "Make-ready work" means work necessary to enable an 
authority pole to support a small cell facility.
6.  Pole.  "Pole" means a pole or similar structure that is or may be used in whole or 
in part for communications, electric transmission or distribution, lighting, traffic control, 
signage or a similar function, including a pole installed solely for the collocation of small 
cell facilities. "Pole" includes an authority pole but does not include wireless support 
structures.
7.  Small cell facility.  "Small cell facility" means a wireless facility:
A.  Each antenna of which could fit within an enclosure of no more than 6 cubic feet; 
and
B.  Of which all associated wireless equipment other than antennas has a cumulative 
volume of no more than 28 cubic feet.
The following types of associated ancillary equipment are not included in the calculation 
of equipment volume: electric meters, concealment elements, telecommunications 
demarcation boxes, grounding equipment, power transfer switches, cut-off switches and 
vertical cable runs for the connection of power and other services.
8.  Wireless facility.  "Wireless facility" means equipment at a fixed location that 
enables wireless communications between user equipment and a communications 
network, including:  equipment associated with wireless communications and radio 
transceivers, antennas, coaxial or fiber-optic cable, regular and backup power supplies 
and comparable equipment, regardless of technological configuration. "Wireless facility" 
includes a small cell facility. "Wireless facility" does not include: the structure or 
improvements on, under, within or adjacent to which the equipment is collocated; or 
coaxial or fiber-optic cable that is between wireless support structures or poles or that is 
otherwise not immediately adjacent to or directly associated with a particular antenna. 
9.  Wireless provider.  "Wireless provider" means a person who provides wireless 
services as well as any person who builds or installs wireless communication 
transmission equipment, wireless facilities or wireless support structures. 
10.  Wireless services.  "Wireless services" means any services using licensed or 
unlicensed spectrum, whether at a fixed location or mobile, provided to the public using 
wireless facilities.
11.  Wireless support structure.  "Wireless support structure" means a new or 
existing freestanding structure, such as a monopole, guyed tower, self-supporting tower 
or billboard, that is designed to support or is capable of supporting wireless facilities.  
"Wireless support structure" does not include a pole.
Sec. 5.  35-A MRSA §2503, sub-§1, as amended by PL 2015, c. 216, §1, is 
further amended to read:
1.  Application.  The application must be in writing and describe the facilities, the 
requested location, evidence of notice provided to owners of facilities in the applicable 
public way, the minimum depth if an underground facility, the minimum height of any 
attached wires or cables, if aboveground facilities, all in the manner and form that the 
licensing authority requires.  A single application may include multiple facilities of the 
same type at different locations, as long as the information required by this subsection is 
clearly noted on the application for each location.
Sec. 6.  35-A MRSA §2503, sub-§5-A is enacted to read:
5-A.  Duration of permit.    A permit issued under this section is of unlimited 
duration except that a permit expires if substantial construction of the proposed facility is 
not commenced within 12 months of the permit date or if construction work is suspended 
for more than 6 months unless the delay is caused by a lack of commercial power or 
communications facilities at the site of the proposed facility.
Sec. 7.  35-A MRSA §2503, sub-§13, ¶A-1 is enacted to read:
A-1.  Within 30 days of receipt of notice under paragraph A, the applicant may seek 
reconsideration of a denial, including by curing any deficiencies identified by the 
licensing authority.  A request for reconsideration is deemed approved, and a location 
permit issued, if the licensing authority does not grant or deny the request within 30 
days of its filing.  The filing of a request for reconsideration stays any time periods 
for appeal otherwise set forth in paragraphs B and C, and the time period for appeal 
under these paragraphs commences upon receipt of a written notice of a decision 
related to the request for reconsideration.  
Sec. 8.  35-A MRSA §2503, sub-§22 is enacted to read:
22.  Small cell facilities.  The following provisions govern small cell facilities.
A.  Subsections 3, 4 and 5 do not apply to applications to collocate small cell 
facilities in the public way.
B.  In reviewing an application and issuing a permit under this section for a small cell 
facility, the licensing authority shall process the application and issue the permit for 
the facility in substantially the same manner as for other facilities and on a 
competitively neutral and nondiscriminatory basis except as set forth in this 
subsection, including with respect to the assessment of permit fees, if any.  A 
licensing authority may not institute, either expressly or de facto, a moratorium on 
processing applications or issuing permits for small cell facilities.  A licensing 
authority may not, as a condition of issuing a permit under this section for a small cell 
facility, require an applicant to provide or perform services unrelated to the permit or 
require that a small cell facility be located on a specific pole or other facility.  If a 
licensing authority adopts a permit by rule process, the process must include a permit 
by rule process for small cell facilities.
C.  Notwithstanding any provision of law to the contrary in chapter 23 or this chapter, 
a licensing authority may deny a permit under this section for a small cell facility 
only if the proposed facility:
(1)  Fails to comply with applicable codes;
(2)  Obstructs use of the right-of-way for public travel;
(3)  Materially interferes with the safe operation of traffic control equipment; or
(4)  Materially interferes with compliance with the federal Americans with 
Disabilities Act of 1990 or similar federal or state standards regarding pedestrian 
access or movement.
D.  A permit is not required under this section for:
(1)  Routine maintenance of small cell facilities; or
(2)  The installation, placement, maintenance, operation or replacement of micro 
wireless facilities on cables between existing poles or wireless support structures 
in compliance with applicable codes.
As used in this paragraph, "micro wireless facilities" means any wireless facility that 
is no larger than 24 inches in length, 15 inches in width and 12 inches in height and 
that has an exterior antenna, if any, no longer than 11 inches.
E.  A licensing authority that charges fees for an application under this section may 
charge a nonrecurring application fee for a small cell facility, as long as the fee does 
not exceed the least of:
(1)  The actual, direct and reasonable costs to process and review the application, 
to the extent the costs are not already recovered by existing fees, rates or taxes, 
and excluding travel expenses incurred by a 3rd party in its review of an 
application and 3rd-party rates or fees charged on a contingency basis or a result-
based arrangement;
(2)  The application fee, if any, the licensing authority charges for a location 
permit for placing other facilities in the public way; and
(3) One hundred dollars each for the first 5 small cell facilities requested in an 
application and $50 for each additional small cell facility requested in the same 
application.
Sec. 9.  35-A MRSA §2518, sub-§4, as enacted by PL 1987, c. 141, Pt. A, §6, is 
amended to read:
4.  Exceptions: Long distance lines and small cell facilities.  This section does not 
apply to small cell facilities, long distance telephone wires or lines of poles used to 
support them.  For the purpose of this section a long distance telephone wire is a 
telephone wire that extends at least 20 miles in a direct line from a central office.
Sec. 10.  35-A MRSA §2524 is enacted to read:
§2524.  Collocation of small cell facilities
1.  Limitation.  Except as expressly provided in this chapter, an authority may not 
prohibit, regulate or charge for the collocation of small cell facilities.
2.  Exclusive arrangements prohibited.  An authority may not enter into an 
exclusive arrangement with any person for: 
A.  Use of the public way for the construction, operation, marketing or maintenance 
of small cell facilities; or
B.  The right to collocate small cell facilities on authority poles.
3.  Rate.  An authority may charge an annual recurring rate of up to $20 per pole for 
the collocation of small cell facilities on authority poles in the public way.
4.  Description of necessary work.  Within 60 days after receipt of either an 
application under section 2503 to collocate small cell facilities on an authority pole or, if 
the licensing authority does not own or control the authority pole, a notice of such an 
application, the authority shall provide the applicant with a description of any make-ready 
work necessary to enable the authority pole to support the requested small cell facilities, 
including pole replacement if necessary.  If the authority intends to perform any such 
make-ready work, either itself or through an agent, it shall include with the description a 
good faith estimate of the cost of such work, and it shall complete such work within 60 
days of written acceptance of the estimate by the applicant.
5.  Limitations on work and fees for work.  An authority may not require more 
make-ready work on an authority pole than required to meet applicable codes or industry 
standards.  An authority may not require replacement of an authority pole unless the 
authority demonstrates that replacement is required to meet the codes or standards.  Fees 
for make-ready work may not exceed actual costs and must be nondiscriminatory, 
competitively neutral and commercially reasonable.  Such fees may not include any 
consultants' fees or expenses or costs related to preexisting or prior damage or 
noncompliance.
6.  Decorative poles.  An authority shall permit a wireless provider to replace 
decorative poles when necessary to collocate a small cell facility, but any replacement 
pole must reasonably conform to the design aesthetics of the decorative pole being 
replaced.  As used in this subsection, "decorative pole" means an authority pole that is 
specially designed and placed for aesthetic purposes and on which no appurtenances or 
attachments, other than a small cell facility, specially designed informational or 
directional signage or temporary holiday or special event attachments, have been placed 
or are permitted to be placed according to nondiscriminatory municipal ordinances, rules 
or codes.
7.  Other locations.  An authority shall allow wireless providers to collocate small 
cell facilities on authority poles that are not located within the public way and on wireless 
support structures or buildings owned or controlled by the authority to the same extent the 
authority permits access to such poles, structures or buildings for other commercial 
projects or uses.  Such collocations are subject to reasonable and nondiscriminatory rates, 
fees, terms and conditions as provided by ordinance or an agreement between the 
authority and the wireless provider.
8.  Jurisdiction.  Notwithstanding any other law to the contrary, an authority does 
not have jurisdiction or authority over the design, engineering, construction, installation 
or operation of any small cell facilities located inside a building or other structure or upon 
the site of any campus, stadium or athletic facility not otherwise owned or controlled by 
the authority, other than to enforce applicable codes.
9.  Power of authority or municipality.  Nothing in this chapter authorizes an 
authority to require deployment of wireless facilities or to regulate wireless services.  A 
municipality may not require the relocation of small cell facilities under section 2312.
10.  Ordinances.  An authority may adopt an ordinance, rule or code that establishes 
rates, fees and other terms and conditions for wireless providers that are 
nondiscriminatory and competitively neutral and that comply with this chapter.  The 
absence of such an ordinance, rule or code may not prevent or delay a wireless provider 
from collocating small cell facilities pursuant to this chapter.  An ordinance, rule or code 
enacted prior to the effective date of this section that does not comply with this section 
and section 2503 is invalid and unenforceable beginning on the 181st day after the 
effective date of this section; small cell facilities collocated pursuant to such an 
ordinance, rule or code may remain installed and operated pursuant to the provisions of 
this section.
11.  Agreements.  Any agreement between an authority and a wireless provider that 
addresses the collocation of small cell facilities, that is in effect on the effective date of 
this section and that does not comply with this section and section 2503 remains in effect, 
subject to any termination provisions in the agreement.  Notwithstanding this subsection, 
at the election of the wireless provider, the agreement applies only to small cell facilities 
that became operational before the effective date of this section.
12.  Construction.  Nothing in this section or section 2503 may be construed to 
authorize a person, without the consent of the property owner, to collocate a small cell 
facility on a pole other than an authority pole, on a wireless support structure not owned 
or controlled by an authority or on other private property.
13.  Indemnification; insurance.  An authority may not require a wireless provider 
to indemnify the authority and its officers and employees, or hold them harmless, against 
any claims, lawsuits, judgments, costs, liens, losses, expenses or fees arising from the 
collocation of small cell facilities, except when a court of competent jurisdiction has 
found that the negligence of the wireless provider while collocating small cell facilities 
caused the harm that created the claims, lawsuits, judgments, costs, liens, losses, expenses 
or fees.  An authority may not require a wireless provider to obtain insurance naming the 
authority or its officers and employees an additional insured against any claims, lawsuits, 
judgments, costs, liens, losses, expenses or fees arising from the collocation of small cell 
facilities.
SUMMARY
This bill changes the process for siting small cell facilities in order to facilitate 
wireless broadband deployment, including: 
1.  Through modifications to the process for issuing utility facility location permits, 
including small cell facility location permits; 
2.  Through the establishment of standards governing local land use ordinances 
applicable to the siting of small cell facilities; and 
3.  Through the establishment of standards governing the collocation of small cell 
facilities on poles owned by the State, an agency, a county, a municipality or a district.