Vt. Telecom Siting Bill Panned by PUC, Wireless Industry

Vermont legislators mulled a more restrictive telecom siting process at a livestreamed hearing Tuesday. The House Environment and Energy Committee considered whether to revise the state’s Section 248(a) application process as part of a proposed three-year extension. The Vermont Public Utility Commission, which administers the state process, supports an extension but has concerns that proposed changes could have “unforeseen consequences,” said Greg Faber, the PUC’s legislative liaison.

Two bills would extend until July 1, 2026, the sunset on the Section 248(a) process, which was established in 2007 to let wireless companies go through the state and skip local permitting process when siting facilities, said Ellen Czajkowski, a nonpartisan legislative counsel for the Vermont General Assembly. The Vermont legislature previously extended the process six times, she said. While H-110 would extend the sunset without any revisions, H-70 proposes several changes that could expand rules to more facilities and increase reporting and notification requirements.

H-70 focuses on the "public engagement process to minimize the impacts and offer communities greater confidence that the applicants going through the telecommunications siting process are complying with statute,” said sponsor Rep. Kari Dolan (D). However, some committee members raised concerns the bill might be too restrictive. The bill seems “very limiting,” said Rep. Brian Smith (R): It might be shorter to say what is allowed.

Applicants would have to show "there is no practicable alternative to the location of the proposed facility that will have less impact on the criteria" of the state law that covers issues including aesthetics, historic sites, natural areas and endangered species. Also, H-70 would modify what is considered a "de minimis modification" that may receive streamlined reviews. A modification that extends vertically any length above the facility or support structure would no longer be considered de minimis. The current standard allows vertical extensions up to 10 feet. Modifications that extend 10 feet horizontally would still be considered de minimis. Also, H-70 would apply more rules for proposed support structures that exceed the average tree-line height in a wooded area, whereas before the threshold was 20 feet above the tree line.

Applicants would have to notify legislative bodies and municipal and regional planning commissions 80 days before filing applications, up from 60 days in the past. It would have to host a public meeting during that period, something previously optional upon request. "The applicant shall complete all studies necessary for the application’s approval, including site location options, aesthetic studies, propagation studies, build out plans, and evaluations of colocations options, and present them at the public meeting." Also, the bill would add provisions giving parties 60 days to intervene and providing municipalities with attorney fees if an applicant violates the Section 248(a) process.

The proposed rule to require checking for practicable alternatives seems too broad, said the Vermont PUC’s Faber. "It would require the applicant to analyze every single location potentially within the state” and maybe outside the state, he said. Meanwhile, the proposed change to de minimis modification “would limit something that really is very small from being done under a streamlined process,” said the Faber. Eliminating the 10-foot vertical allowance could make it harder to swap out an antenna that happened to be at the top of a tower, he said.

The bill would require public meetings in situations where people are unlikely to care, such as a company seeking to add antennas or install a generator at an existing location, added Faber: It may be better to limit that to new tower constructions, he said. The PUC can’t wait 60 days for parties to file as intervenors because the agency is required by law to issue a decision in 60 days, the official said.

Verizon, AT&T and CTIA officials supported H-110 but opposed changes proposed in H-70 at the hearing. The latter bill "would add so many roadblocks to the existing process that it would slow network deployment and could discourage future investment,” said Verizon New England Executive Director-State Government Affairs Stephanie Lee. Even minor changes to site locations could prevent carriers from solving coverage or capacity issues, she said. Allowing 10 extra vertical feet for a modification also can make a big difference, she said.

Section 248(a) helped AT&T expand FirstNet, said Regional President Owen Smith: Legislators should make the process permanent or at least extend it for 10 years rather than three, he said. The company works with communities to resolve any concerns, he said. However, many proposed changes in H-70 “seem unjustified, not feasible” and “potentially unlawful.” Don't try to fix a process that isn't broken, said CTIA Assistant Vice President-State Legislative Affairs Jeremy Crandall. The association raised concerns about H-70 in a Jan. 31 letter to committee leaders.

The Vermont League of Cities and Towns supports both bills, said Director-Public Policy Karen Horn. She suggested some edits to H-70, including that the proposed requirements on checking for alternative locations should say the alternative must be economically reasonable. It would help municipalities to get 80 instead of 60 days’ notice on applications, she said.

Legislators should do more to stop wireless companies from placing ugly and possibly harmful towers too close to homes, said Vermonters for a Clean Environment Executive Director Annette Smith. The PUC does too little oversight and doesn’t give communities enough say, she said.