A.R.S. Title 9, Chapter 5, Article 8
ARTICLE 8. USE OF PUBLIC HIGHWAYS BY WIRELESS PROVIDERS
9‑591. Definitions
IN THIS ARTICLE, UNLESS THE CONTEXT OTHERWISE REQUIRES:
1. “ANTENNA” MEANS COMMUNICATIONS EQUIPMENT THAT TRANSMITS OR RECEIVES ELECTROMAGNETIC RADIO FREQUENCY SIGNALS AND THAT IS USED IN PROVIDING WIRELESS SERVICES.
2. “APPLICABLE CODES” MEANS UNIFORM BUILDING, FIRE, ELECTRICAL, PLUMBING OR MECHANICAL CODES THAT ARE ADOPTED BY A RECOGNIZED NATIONAL CODE ORGANIZATION OR LOCAL AMENDMENTS TO THOSE CODES THAT ARE ENACTED TO ADDRESS THREATS OF DESTRUCTION OF PROPERTY OR INJURY TO PERSONS AND TO AN EXTENT THAT IS NOT INCONSISTENT WITH THIS ARTICLE.
3. “APPLICANT” MEANS ANY PERSON THAT SUBMITS AN APPLICATION AND THAT IS A WIRELESS PROVIDER.
4. “APPLICATION” MEANS A REQUEST THAT IS SUBMITTED BY AN APPLICANT TO AN AUTHORITY FOR A PERMIT TO COLLOCATE SMALL WIRELESS FACILITIES OR TO APPROVE THE INSTALLATION, MODIFICATION OR REPLACEMENT OF A UTILITY POLE OR WIRELESS SUPPORT STRUCTURE.
5. “AUTHORITY” MEANS ANY CITY, TOWN, SPECIAL DISTRICT OR POLITICAL SUBDIVISION OF THIS STATE THAT IS AUTHORIZED TO MAKE LEGISLATIVE, QUASI‑JUDICIAL OR ADMINISTRATIVE DECISIONS CONCERNING AN APPLICATION. AUTHORITY DOES NOT INCLUDE ANY STATE COURT THAT HAS JURISDICTION OVER AN AUTHORITY AND DOES NOT INCLUDE A COUNTY, SPECIAL TAXING DISTRICT, OR ELECTRIC COOPERATIVE.
6. “AUTHORITY UTILITY POLE” MEANS A UTILITY POLE THAT IS OWNED OR OPERATED BY AN AUTHORITY AND THAT IS IN A RIGHT‑OF‑WAY. AUTHORITY UTILITY POLE DOES NOT INCLUDE A UTILITY POLE FOR ELECTRIC DISTRIBUTION.
7. “CABLE OPERATOR” HAS THE SAME MEANING PRESCRIBED IN SECTION 9‑505. CABLE OPERATOR DOES NOT INCLUDE A SPECIAL TAXING DISTRICT.
8. “COLLOCATE” OR “COLLOCATION” MEANS TO INSTALL, MOUNT, MAINTAIN, MODIFY, OPERATE OR REPLACE WIRELESS FACILITIES ON, WITHIN OR ADJACENT TO A WIRELESS SUPPORT STRUCTURE OR UTILITY POLE.
9. “COMMUNICATIONS SERVICE” MEANS CABLE SERVICE AS DEFINED IN 47 UNITED STATES CODE SECTION 522(6), INFORMATION SERVICE AS DEFINED IN 47 UNITED STATES CODE SECTION 153(24), TELECOMMUNICATIONS SERVICE AS DEFINED IN 47 UNITED STATES CODE SECTION 153(53) OR WIRELESS SERVICE.
10. “COMMUNICATIONS SERVICE PROVIDER” MEANS A CABLE OPERATOR, A PROVIDER OF INFORMATION SERVICE AS DEFINED IN 47 UNITED STATES CODE SECTION 153(24), A TELECOMMUNICATIONS CARRIER AS DEFINED IN 47 UNITED STATES CODE SECTION 153(51) OR A WIRELESS SERVICES PROVIDER.
11. “FEE” MEANS A ONE‑TIME CHARGE.
12. “LAW” MEANS ANY FEDERAL, STATE OR LOCAL LAW, STATUTE, COMMON LAW, CODE, RULE, REGULATION, ORDER OR ORDINANCE.
13. “MONOPOLE” MEANS A WIRELESS SUPPORT STRUCTURE THAT IS NOT MORE THAN FORTY INCHES IN DIAMETER AT THE GROUND LEVEL AND THAT HAS ALL OF THE WIRELESS FACILITIES MOUNTED ON THE POLE OR CONTAINED INSIDE OF THE POLE.
14. “PERMIT” MEANS WRITTEN PERMISSION REQUIRED BY AN AUTHORITY TO INSTALL, MOUNT, MAINTAIN, MODIFY, OPERATE OR REPLACE A UTILITY POLE OR MONOPOLE, TO COLLOCATE A SMALL WIRELESS FACILITY ON A UTILITY POLE OR WIRELESS SUPPORT STRUCTURE OR TO COLLOCATE WIRELESS FACILITIES ON A MONOPOLE.
15. “PERSON” MEANS AN INDIVIDUAL, CORPORATION, LIMITED LIABILITY COMPANY, PARTNERSHIP, ASSOCIATION, TRUST OR OTHER ENTITY OR ORGANIZATION, INCLUDING AN AUTHORITY.
16. “PRIVATE EASEMENT” MEANS AN EASEMENT OR OTHER REAL PROPERTY RIGHT THAT IS ONLY FOR THE BENEFIT OF THE GRANTOR AND GRANTEE AND THE GRANTOR’S OR GRANTEE’S SUCCESSORS AND ASSIGNS.
17. “RATE” MEANS A RECURRING CHARGE.
18. “RIGHT‑OF‑WAY” MEANS THE AREA ON, BELOW OR ABOVE A PUBLIC ROADWAY, HIGHWAY, STREET, SIDEWALK, ALLEY OR UTILITY EASEMENT. RIGHT‑OF‑WAY DOES NOT INCLUDE A FEDERAL INTERSTATE HIGHWAY, A STATE HIGHWAY OR STATE ROUTE UNDER THE JURISDICTION OF THE DEPARTMENT OF TRANSPORTATION, A PRIVATE EASEMENT, PROPERTY THAT IS OWNED BY A SPECIAL TAXING DISTRICT, OR A UTILITY EASEMENT THAT DOES NOT AUTHORIZE THE DEPLOYMENT SOUGHT BY THE WIRELESS PROVIDER.
19. “SMALL WIRELESS FACILITY” MEANS A WIRELESS FACILITY THAT MEETS BOTH OF THE FOLLOWING QUALIFICATIONS:
(a) ALL ANTENNAS ARE LOCATED INSIDE AN ENCLOSURE OF NOT MORE THAN SIX CUBIC FEET IN VOLUME OR, IN THE CASE OF AN ANTENNA THAT HAS EXPOSED ELEMENTS, THE ANTENNA AND ALL OF THE ANTENNA’S EXPOSED ELEMENTS COULD FIT WITHIN AN IMAGINARY ENCLOSURE OF NOT MORE THAN SIX CUBIC FEET IN VOLUME.
(b) ALL OTHER WIRELESS EQUIPMENT ASSOCIATED WITH THE FACILITY IS CUMULATIVELY NOT MORE THAN TWENTY‑EIGHT CUBIC FEET IN VOLUME, OR FIFTY CUBIC FEET IN VOLUME IF THE EQUIPMENT WAS GROUND MOUNTED BEFORE THE EFFECTIVE DATE OF THIS SECTION. THE FOLLOWING TYPES OF ASSOCIATED ANCILLARY EQUIPMENT ARE NOT INCLUDED IN THE CALCULATION OF EQUIPMENT VOLUME PURSUANT TO THIS SUBDIVISION:
(i) AN ELECTRIC METER.
(ii) CONCEALMENT ELEMENTS.
(iii) A TELECOMMUNICATIONS DEMARCATION BOX.
(iv) GROUNDING EQUIPMENT.
(v) A POWER TRANSFER SWITCH.
(vi) A CUTOFF SWITCH.
(vii) VERTICAL CABLE RUNS FOR THE CONNECTION OF POWER AND OTHER SERVICES.
20. “SPECIAL TAXING DISTRICT” MEANS A SPECIAL DISTRICT FORMED PURSUANT TO TITLE 48, CHAPTER 11, 12, 17, 18, 19, 20 OR 22.
21. “UTILITY POLE” MEANS A POLE OR SIMILAR STRUCTURE THAT IS USED IN WHOLE OR IN PART FOR COMMUNICATIONS SERVICES, ELECTRIC DISTRIBUTION, LIGHTING OR TRAFFIC SIGNALS. UTILITY POLE DOES NOT INCLUDE A MONOPOLE.
22. “WIRELESS FACILITY“:
(a) MEANS EQUIPMENT AT A FIXED LOCATION THAT ENABLES WIRELESS COMMUNICATIONS BETWEEN USER EQUIPMENT AND A COMMUNICATIONS NETWORK, INCLUDING BOTH OF THE FOLLOWING:
(i) EQUIPMENT ASSOCIATED WITH WIRELESS COMMUNICATIONS.
(ii) RADIO TRANSCEIVERS, ANTENNAS, COAXIAL OR FIBER-OPTIC CABLES, REGULAR AND BACKUP POWER SUPPLIES AND COMPARABLE EQUIPMENT, REGARDLESS OF TECHNOLOGICAL CONFIGURATION.
(b) INCLUDES SMALL WIRELESS FACILITIES.
(c) DOES NOT INCLUDE THE STRUCTURE OR IMPROVEMENTS ON, UNDER OR WITHIN WHICH THE EQUIPMENT IS COLLOCATED, WIRELINE BACKHAUL FACILITIES, COAXIAL OR FIBER‑OPTIC CABLE THAT IS BETWEEN WIRELESS SUPPORT STRUCTURES OR UTILITY POLES OR COAXIAL OR FIBER‑OPTIC CABLE THAT IS OTHERWISE NOT IMMEDIATELY ADJACENT TO, OR DIRECTLY ASSOCIATED WITH, AN ANTENNA.
(d) DOES NOT INCLUDE WI‑FI RADIO EQUIPMENT DESCRIBED IN SECTION 9‑506, SUBSECTION I OR MICROCELL EQUIPMENT DESCRIBED IN SECTION 9‑584, SUBSECTION E.
23. “WIRELESS INFRASTRUCTURE PROVIDER” MEANS ANY PERSON THAT IS AUTHORIZED TO PROVIDE TELECOMMUNICATIONS SERVICE IN THIS STATE AND THAT BUILDS OR INSTALLS WIRELESS COMMUNICATIONS TRANSMISSION EQUIPMENT, WIRELESS FACILITIES, UTILITY POLES OR MONOPOLES BUT THAT IS NOT A WIRELESS SERVICES PROVIDER. WIRELESS INFRASTRUCTURE PROVIDER DOES NOT INCLUDE A SPECIAL TAXING DISTRICT.
24. “WIRELESS PROVIDER” MEANS A CABLE OPERATOR, WIRELESS INFRASTRUCTURE PROVIDER OR WIRELESS SERVICES PROVIDER.
25. “WIRELESS SERVICES” MEANS ANY SERVICES THAT ARE PROVIDED TO THE PUBLIC AND THAT USE LICENSED OR UNLICENSED SPECTRUM, WHETHER AT A FIXED LOCATION OR MOBILE, USING WIRELESS FACILITIES.
26. “WIRELESS SERVICES PROVIDER” MEANS A PERSON THAT PROVIDES WIRELESS SERVICES. WIRELESS SERVICES PROVIDER DOES NOT INCLUDE A SPECIAL TAXING DISTRICT.
27. “WIRELESS SUPPORT STRUCTURE“:
(a) MEANS:
(i) A FREESTANDING STRUCTURE, SUCH AS A MONOPOLE.
(ii) A TOWER, EITHER GUYED OR SELF‑SUPPORTING.
(iii) A SIGN OR BILLBOARD.
(iv) ANY OTHER EXISTING OR PROPOSED STRUCTURE DESIGNED TO SUPPORT OR CAPABLE OF SUPPORTING SMALL WIRELESS FACILITIES.
(b) DOES NOT INCLUDE A UTILITY POLE.
9‑592. Applicability; wireless provider; use of right‑of‑way; rates, fees and terms; right to access; damage and repair
A. THIS SECTION APPLIES TO THE ACTIVITIES OF A WIRELESS PROVIDER WITHIN A RIGHT‑OF‑WAY.
B. AN AUTHORITY MAY NOT ENTER INTO AN EXCLUSIVE ARRANGEMENT WITH A WIRELESS PROVIDER FOR USE OF A RIGHT‑OF‑WAY FOR ANY OF THE FOLLOWING:
1. THE CONSTRUCTION, INSTALLATION, MAINTENANCE, MODIFICATION, OPERATION OR REPLACEMENT OF UTILITY POLES OR MONOPOLES.
2. THE COLLOCATION OF SMALL WIRELESS FACILITIES ON UTILITY POLES OR WIRELESS SUPPORT STRUCTURES.
3. THE COLLOCATION OF WIRELESS FACILITIES ON MONOPOLES.
C. AN AUTHORITY MAY CHARGE A WIRELESS PROVIDER A RATE OR FEE FOR THE USE OF A RIGHT‑OF‑WAY FOR THE CONSTRUCTION, INSTALLATION, MAINTENANCE, MODIFICATION, OPERATION OR REPLACEMENT OF A UTILITY POLE IN THE RIGHT‑OF‑WAY OR THE COLLOCATION OF A SMALL WIRELESS FACILITY IN THE RIGHT‑OF‑WAY, ONLY IF THE AUTHORITY CHARGES OTHER COMMUNICATIONS SERVICE PROVIDERS OR PUBLICLY, COOPERATIVELY OR MUNICIPALLY OWNED UTILITIES FOR THE USE OF THE RIGHT‑OF‑WAY AND THE AUTHORITY HAS THE LEGAL AUTHORITY TO DO SO. IF AN AUTHORITY CHARGES A RATE OR FEE PURSUANT TO THIS SECTION, THE RATE OR FEE FOR A WIRELESS PROVIDER MUST BE:
1. LIMITED TO NOT MORE THAN THE DIRECT AND ACTUAL COST OF MANAGING THE RIGHT‑OF‑WAY.
2. COMPETITIVELY NEUTRAL IN REGARD TO OTHER USERS OF THE RIGHT‑OF‑WAY, INCLUDING INVESTOR‑OWNED, AUTHORITY‑OWNED OR COOPERATIVELY OWNED ENTITIES, UNLESS OTHER USERS ARE EXEMPT FROM SUCH RATES OR FEES UNDER APPLICABLE LAW.
D. A RATE OR FEE CHARGED PURSUANT TO SUBSECTION C OF THIS SECTION MAY NOT DO ANY OF THE FOLLOWING:
1. RESULT IN A DOUBLE RECOVERY WHERE EXISTING RATES, FEES OR TAXES ALREADY RECOVER THE DIRECT AND ACTUAL COSTS OF MANAGING A RIGHT‑OF‑WAY.
2. BE IN THE FORM OF A FRANCHISE OR OTHER FEE BASED ON REVENUE OR CUSTOMER COUNTS.
3. BE UNREASONABLE OR DISCRIMINATORY.
4. EXCEED AN ANNUAL AMOUNT EQUAL TO FIFTY DOLLARS MULTIPLIED BY THE NUMBER OF SMALL WIRELESS FACILITIES THAT ARE IN THE AUTHORITY’S GEOGRAPHIC JURISDICTION AND THAT ARE PLACED BY THE WIRELESS PROVIDER IN THE RIGHT‑OF‑WAY.
E. AN AUTHORITY SHALL ESTABLISH AND MAKE AVAILABLE RATES, FEES AND TERMS FOR ALL OF THE FOLLOWING, WITHIN SIX MONTHS AFTER THE EFFECTIVE DATE OF THIS SECTION OR THREE MONTHS AFTER RECEIVING THE FIRST REQUEST BY A WIRELESS PROVIDER, WHICHEVER IS LATER:
1. THE CONSTRUCTION, INSTALLATION, MOUNTING, MAINTENANCE, MODIFICATION, OPERATION OR REPLACEMENT OF A UTILITY POLE OR MONOPOLE BY A WIRELESS PROVIDER IN A RIGHT‑OF‑WAY.
2. THE COLLOCATION OF A SMALL WIRELESS FACILITY BY A WIRELESS PROVIDER IN A RIGHT‑OF‑WAY.
3. THE COLLOCATION OF A WIRELESS FACILITY ON OR WITHIN A MONOPOLE BY A WIRELESS PROVIDER IN A RIGHT‑OF‑WAY.
F. THE RATES, FEES AND TERMS ESTABLISHED PURSUANT TO SUBSECTION E OF THIS SECTION MUST BE MADE AVAILABLE FOR ACCEPTANCE BY A WIRELESS PROVIDER. AT THE WIRELESS PROVIDER’S OPTION, A WIRELESS PROVIDER MAY REQUEST DIFFERENT OR ADDITIONAL TERMS THAT THE PARTIES SHALL NEGOTIATE IN GOOD FAITH. DOCUMENTS THAT REFLECT RATES, FEES AND TERMS WITH EACH WIRELESS PROVIDER ARE PUBLIC RECORDS. RATES, FEES AND TERMS MUST COMPLY WITH THIS ARTICLE, AND THE TERMS:
1. MAY NOT BE UNREASONABLE OR DISCRIMINATORY.
2. MAY INCLUDE REQUIREMENTS APPLICABLE TO OTHER USERS OF THE RIGHT‑OF‑WAY.
3. MAY REQUIRE THAT THE WIRELESS PROVIDER’S OPERATION OF THE SMALL WIRELESS FACILITIES IN THE RIGHT‑OF‑WAY DOES NOT INTERFERE WITH THE AUTHORITY’S PUBLIC SAFETY COMMUNICATIONS.
4. SUBJECT TO SUBSECTION K OF THIS SECTION AND SECTION 9‑593, SUBSECTION F, MAY NOT REQUIRE THE PLACEMENT OF SMALL WIRELESS FACILITIES ON ANY SPECIFIC UTILITY POLE OR CATEGORY OF POLES OR REQUIRE MULTIPLE ANTENNA SYSTEMS ON A SINGLE UTILITY POLE.
5. SUBJECT TO SUBSECTION K OF THIS SECTION AND SECTION 9‑593, SUBSECTION F, MAY NOT LIMIT THE PLACEMENT OF SMALL WIRELESS FACILITIES BY MINIMUM SEPARATION DISTANCES.
G. AGREEMENTS BETWEEN AUTHORITIES AND WIRELESS PROVIDERS THAT ARE IN EFFECT ON THE EFFECTIVE DATE OF THIS SECTION AND THAT RELATE TO THE COLLOCATION OF SMALL WIRELESS FACILITIES IN THE RIGHT‑OF‑WAY, INCLUDING THE COLLOCATION OF SMALL WIRELESS FACILITIES ON AUTHORITY UTILITY POLES, REMAIN IN EFFECT, SUBJECT TO APPLICABLE TERMINATION PROVISIONS. THE WIRELESS PROVIDER MAY ACCEPT THE RATES, FEES AND TERMS ESTABLISHED UNDER SUBSECTIONS E AND F OF THIS SECTION FOR SMALL WIRELESS FACILITIES AND UTILITY POLES THAT ARE THE SUBJECT OF AN APPLICATION SUBMITTED AFTER THE RATES, FEES AND TERMS BECOME EFFECTIVE.
H. SUBJECT TO THIS SECTION AND THE APPROVAL OF AN APPLICATION, IF REQUIRED, A WIRELESS PROVIDER MAY DO ANY OF THE FOLLOWING:
1. COLLOCATE SMALL WIRELESS FACILITIES.
2. CONSTRUCT, INSTALL, MODIFY, MOUNT, MAINTAIN, OPERATE AND REPLACE UTILITY POLES THAT ARE ASSOCIATED WITH THE COLLOCATION OF SMALL WIRELESS FACILITIES ALONG, ACROSS, ON AND UNDER THE RIGHT‑OF‑WAY.
3. CONSTRUCT, INSTALL, MODIFY, MOUNT, MAINTAIN, OPERATE AND REPLACE MONOPOLES THAT ARE ASSOCIATED WITH THE COLLOCATION OF WIRELESS FACILITIES ALONG, ACROSS, ON AND UNDER THE RIGHT‑OF‑WAY. THE INSTALLATION, MODIFICATION AND REPLACEMENT OF MONOPOLES ARE SUBJECT TO REVIEW UNDER SECTION 9‑594 REGARDLESS OF THE HEIGHT OF THE MONOPOLE.
wt: co-location is required by this article, and a review is required. It is not read that a wireless provider may construct install etc. a freestanding pole. Thus they may be subject to significant consideration and may be quite heavily regulated and (more often) denied.
I. SUBJECT TO SUBSECTION K, PARAGRAPH 2, SUBDIVISION (c) OF THIS SECTION, A NEW, REPLACEMENT OR MODIFIED UTILITY POLE THAT IS ASSOCIATED WITH THE COLLOCATION OF SMALL WIRELESS FACILITIES AND THAT IS INSTALLED IN THE RIGHT‑OF‑WAY IS NOT SUBJECT TO ZONING REVIEW AND APPROVAL UNDER SECTION 9‑594 IF THE UTILITY POLE DOES NOT EXCEED THE GREATER OF EITHER:
1. TEN FEET IN HEIGHT ABOVE THE TALLEST EXISTING UTILITY POLE, OTHER THAN A UTILITY POLE SUPPORTING ONLY WIRELESS FACILITIES, THAT IS IN PLACE ON THE EFFECTIVE DATE OF THIS SECTION, THAT IS LOCATED WITHIN FIVE HUNDRED FEET OF THE NEW, REPLACEMENT OR MODIFIED UTILITY POLE AND THAT IS IN THE SAME RIGHT‑OF‑WAY WITHIN THE JURISDICTIONAL BOUNDARY OF THE AUTHORITY, BUT NOT MORE THAN FIFTY FEET ABOVE GROUND LEVEL.
2. FORTY FEET ABOVE GROUND LEVEL.
J. NEW SMALL WIRELESS FACILITIES COLLOCATED ON A UTILITY POLE OR WIRELESS SUPPORT STRUCTURE IN THE RIGHT‑OF‑WAY ARE NOT SUBJECT TO ZONING REVIEW AND APPROVAL IF THEY DO NOT EXTEND MORE THAN TEN FEET ABOVE THE UTILITY POLE OR WIRELESS SUPPORT STRUCTURE AND DO NOT EXCEED FIFTY FEET ABOVE GROUND LEVEL.
K. AN AUTHORITY MAY REQUIRE AN APPLICATION UNDER THIS SECTION FOR THE INSTALLATION OF NEW, REPLACEMENT OR MODIFIED UTILITY POLES ASSOCIATED WITH THE COLLOCATION OF SMALL WIRELESS FACILITIES. AN AUTHORITY SHALL APPROVE AN APPLICATION UNLESS THE AUTHORITY FINDS THAT THE UTILITY POLE FAILS TO COMPLY WITH ANY OF THE FOLLOWING:
1. APPLICABLE CODES.
2. LOCAL CODE PROVISIONS OR REGULATIONS THAT CONCERN ANY OF THE FOLLOWING:
(a) PUBLIC SAFETY.
(b) OBJECTIVE DESIGN STANDARDS AND REASONABLE STEALTH AND CONCEALMENT REQUIREMENTS.
(c) UNDERGROUNDING REQUIREMENTS THAT PROHIBIT THE INSTALLATION OF NEW OR THE MODIFICATION OF EXISTING UTILITY POLES OR MONOPOLES IN A RIGHT‑OF‑WAY WITHOUT PRIOR APPROVAL, IF SUCH REQUIREMENTS INCLUDE A WAIVER, ZONING OR ANOTHER PROCESS THAT ADDRESSES REQUESTS TO INSTALL SUCH NEW UTILITY POLES OR MONOPOLES OR MODIFY SUCH EXISTING UTILITY POLES OR MONOPOLES AND DO NOT PROHIBIT THE REPLACEMENT OF UTILITY POLES OR MONOPOLES.
3. REQUIREMENTS THAT ARE IMPOSED BY A CONTRACT BETWEEN AN AUTHORITY AND A PRIVATE PROPERTY OWNER AND THAT CONCERN DESIGN STANDARDS APPLICABLE TO UTILITY POLES IN THE RIGHT‑OF‑WAY.
4. THE AUTHORITY’S PUBLIC SAFETY AND REASONABLE SPACING REQUIREMENTS THAT CONCERN THE LOCATION OF NEW UTILITY POLES IN A RIGHT‑OF‑WAY.
L. AN AUTHORITY SHALL PROCESS APPLICATIONS UNDER SUBSECTION K OF THIS SECTION IN COMPLIANCE WITH APPLICABLE LAW. IF AN AUTHORITY FAILS TO APPROVE OR DENY AN APPLICATION WITHIN THE TIME FRAME SPECIFIED BY APPLICABLE LAW, THE APPLICATION SHALL BE DEEMED APPROVED. ANY APPLICATION FEE IS SUBJECT TO THE REQUIREMENTS PROVIDED IN SECTION 9‑593, SUBSECTION I. THE TOTAL APPLICATION FEE, IF ALLOWED, MAY NOT EXCEED SEVEN HUNDRED FIFTY DOLLARS.
M. THE CONSTRUCTION, INSTALLATION, MOUNTING, MAINTENANCE, MODIFICATION, OPERATION OR REPLACEMENT FOR WHICH A PERMIT IS GRANTED SHALL BE COMPLETED WITHIN ONE HUNDRED EIGHTY DAYS AFTER THE PERMIT ISSUANCE DATE, UNLESS THE AUTHORITY AND WIRELESS PROVIDER AGREE TO EXTEND THIS PERIOD OR A DELAY IS CAUSED BY A LACK OF COMMERCIAL POWER AT THE SITE. APPROVAL OF AN APPLICATION BY AN AUTHORITY AUTHORIZES THE APPLICANT TO DO BOTH OF THE FOLLOWING:
1. UNDERTAKE THE REQUESTED DEPLOYMENT.
2. SUBJECT TO APPLICABLE RELOCATION REQUIREMENTS, THE AUTHORITY’S TERMS AS DESCRIBED IN THIS SECTION AND THE WIRELESS PROVIDER’S RIGHT TO TERMINATE AT ANY TIME, OPERATE AND MAINTAIN THE WIRELESS PROVIDER’S NEW, MODIFIED OR REPLACEMENT UTILITY POLE FOR A PERIOD OF NOT LESS THAN TEN YEARS, WHICH MUST BE RENEWED FOR EQUIVALENT DURATIONS UNLESS THE AUTHORITY MAKES A FINDING THAT THE NEW OR MODIFIED UTILITY POLE DOES NOT COMPLY WITH THE REQUIREMENTS DESCRIBED IN SUBSECTION K OF THIS SECTION.
N. AN AUTHORITY MAY REQUIRE A WIRELESS PROVIDER TO REPAIR ALL DAMAGE TO THE AUTHORITY’S PROPERTY AND THE RIGHT‑OF‑WAY THAT IS CAUSED BY THE ACTIVITIES OF THE WIRELESS PROVIDER OR THE WIRELESS PROVIDER’S CONTRACTOR WHILE OCCUPYING, INSTALLING, REPAIRING OR MAINTAINING SMALL WIRELESS FACILITIES, WIRELESS SUPPORT STRUCTURES OR UTILITY POLES IN THE RIGHT‑OF‑WAY AND TO RETURN THE DAMAGED PROPERTY TO THE SAME CONDITION AS BEFORE THE DAMAGE PURSUANT TO THE COMPETITIVELY NEUTRAL, REASONABLE REQUIREMENTS AND SPECIFICATIONS OF THE AUTHORITY. IF THE WIRELESS PROVIDER FAILS TO MAKE THE REPAIRS REQUIRED BY THE AUTHORITY WITHIN A REASONABLE TIME AFTER THE AUTHORITY PROVIDES WRITTEN NOTICE TO THE WIRELESS PROVIDER, THE AUTHORITY MAY MAKE THE REPAIRS AND CHARGE THE APPLICABLE PARTY THE REASONABLE, DOCUMENTED COST OF THE REPAIRS.
O. THIS ARTICLE DOES NOT RELIEVE A WIRELESS PROVIDER FROM ANY APPLICABLE REQUIREMENT TO OBTAIN A FRANCHISE, LICENSE OR OTHER PERMISSION TO PROVIDE COMMUNICATIONS SERVICE OR TO INSTALL, PLACE, MAINTAIN OR OPERATE FACILITIES OR STRUCTURES THAT ARE NOT AUTHORIZED BY THIS ARTICLE IN THE RIGHT‑OF‑WAY TO PROVIDE A COMMUNICATIONS SERVICE.
9‑593. Applicability; collocation of small wireless facilities; permits; application; fee
A. THIS SECTION APPLIES TO THE ACTIVITIES OF A WIRELESS PROVIDER WITHIN A RIGHT‑OF‑WAY.
B. EXCEPT AS PROVIDED IN THIS SECTION AND SECTIONS 9‑592, 9‑594, 9‑595, 9‑597, 9‑598 AND 9‑599, AS APPLICABLE, AN AUTHORITY MAY NOT PROHIBIT, REGULATE OR CHARGE FOR THE COLLOCATION OF SMALL WIRELESS FACILITIES.
C. SUBJECT TO THIS SECTION AND SECTION 9‑592, SUBSECTION J, A SMALL WIRELESS FACILITY IS CLASSIFIED AS A PERMITTED USE AND IS NOT SUBJECT TO ZONING REVIEW OR APPROVAL IF THE SMALL WIRELESS FACILITY IS COLLOCATED IN A RIGHT‑OF‑WAY IN ANY ZONE.
D. AN AUTHORITY MAY REQUIRE AN APPLICANT TO OBTAIN ONE OR MORE PERMITS TO COLLOCATE A SMALL WIRELESS FACILITY IF THE PERMIT REQUIREMENT IS OF GENERAL APPLICABILITY AND DOES NOT APPLY EXCLUSIVELY TO WIRELESS FACILITIES. AN APPLICANT SEEKING TO COLLOCATE MULTIPLE SMALL WIRELESS FACILITIES WITHIN THE JURISDICTION OF A SINGLE AUTHORITY MAY FILE A CONSOLIDATED APPLICATION FOR THE COLLOCATION OF UP TO TWENTY-FIVE SMALL WIRELESS FACILITIES IF THE COLLOCATIONS EACH INVOLVE SUBSTANTIALLY THE SAME TYPE OF SMALL WIRELESS FACILITIES AND SUBSTANTIALLY THE SAME TYPE OF STRUCTURE.
E. AN APPLICATION MUST INCLUDE AN ATTESTATION THAT THE SMALL WIRELESS FACILITIES WILL BE COLLOCATED ON THE UTILITY POLE OR WIRELESS SUPPORT STRUCTURE AND THAT THE SMALL WIRELESS FACILITIES WILL BE OPERATIONAL FOR USE BY A WIRELESS SERVICES PROVIDER TO PROVIDE SERVICE WITHIN ONE HUNDRED EIGHTY DAYS AFTER THE PERMIT ISSUANCE DATE, UNLESS THE AUTHORITY AND THE WIRELESS PROVIDER AGREE TO EXTEND THIS PERIOD OR A DELAY IS CAUSED BY A LACK OF COMMERCIAL POWER AT THE SITE.
F. AN AUTHORITY:
1. SHALL ACCEPT APPLICATIONS FOR, PROCESS AND ISSUE PERMITS TO COLLOCATE SMALL WIRELESS FACILITIES.
2. WITHIN TWENTY DAYS AFTER RECEIVING AN APPLICATION, SHALL DETERMINE AND NOTIFY THE APPLICANT WHETHER THE APPLICATION IS COMPLETE. IF AN APPLICANT IS NOT NOTIFIED WITHIN THE TWENTY‑DAY PERIOD, THE APPLICATION IS DEEMED COMPLETE. IF AN APPLICATION IS INCOMPLETE, THE AUTHORITY MUST SPECIFICALLY IDENTIFY THE INFORMATION MISSING FROM THE APPLICATION.
3. SHALL PROCESS EACH APPLICATION ON A NONDISCRIMINATORY BASIS. A COMPLETE APPLICATION IS DEEMED APPROVED IF THE AUTHORITY FAILS TO APPROVE OR DENY THE APPLICATION WITHIN SEVENTY‑FIVE DAYS AFTER RECEIVING A COMPLETE APPLICATION.
4. SHALL APPROVE AN APPLICATION UNLESS THE APPLICATION DOES NOT MEET THE APPLICABLE CODES, LOCAL CODE PROVISIONS OR REGULATIONS THAT CONCERN PUBLIC SAFETY, OBJECTIVE DESIGN STANDARDS FOR DECORATIVE UTILITY POLES OR REASONABLE STEALTH AND CONCEALMENT REQUIREMENTS OR PUBLIC SAFETY AND REASONABLE SPACING REQUIREMENTS CONCERNING THE LOCATION OF GROUND‑MOUNTED EQUIPMENT IN A RIGHT‑OF‑WAY. IF AN AUTHORITY DETERMINES THAT APPLICABLE CODES OR LOCAL CODE PROVISIONS OR REGULATIONS REQUIRE THAT THE UTILITY POLE OR WIRELESS SUPPORT STRUCTURE BE REPLACED BEFORE THE REQUESTED COLLOCATION, APPROVAL MAY BE CONDITIONED ON SUCH REPLACEMENT OF THE UTILITY POLE OR WIRELESS SUPPORT STRUCTURE. THE WIRELESS PROVIDER’S REQUEST FOR A REPLACEMENT UTILITY POLE OR WIRELESS SUPPORT STRUCTURE WILL BE PROCESSED PURSUANT TO SECTION 9‑592.
5. IF AN APPLICATION IS DENIED, SHALL DOCUMENT THE BASIS FOR THE DENIAL, INCLUDING THE SPECIFIC CODE PROVISIONS, REGULATIONS OR REQUIREMENTS ON WHICH THE DENIAL WAS BASED, AND SEND THE DOCUMENTATION TO THE APPLICANT ON OR BEFORE THE DATE THAT THE APPLICATION IS DENIED. THE APPLICANT MAY CURE THE DEFICIENCIES IDENTIFIED BY THE AUTHORITY AND RESUBMIT THE APPLICATION WITHIN THIRTY DAYS AFTER THE DENIAL WITHOUT PAYING AN ADDITIONAL APPLICATION FEE. THE AUTHORITY SHALL APPROVE OR DENY THE REVISED APPLICATION WITHIN THIRTY DAYS AFTER RECEIVING THE REVISED APPLICATION. ANY SUBSEQUENT REVIEW IS LIMITED TO THE DEFICIENCIES CITED IN THE DENIAL.
6. IF AN APPLICATION INCLUDES MULTIPLE SMALL WIRELESS FACILITIES, MAY REMOVE SMALL WIRELESS FACILITY COLLOCATIONS FROM THE APPLICATION AND TREAT SEPARATELY SMALL WIRELESS FACILITY COLLOCATIONS FOR WHICH INCOMPLETE INFORMATION HAS BEEN PROVIDED OR THAT DO NOT QUALIFY FOR CONSOLIDATED TREATMENT OR THAT ARE DENIED. THE AUTHORITY MAY ISSUE SEPARATE PERMITS FOR EACH COLLOCATION THAT IS APPROVED IN A CONSOLIDATED APPLICATION.
G. AN AUTHORITY MAY NOT:
1. DIRECTLY OR INDIRECTLY REQUIRE AN APPLICANT TO PERFORM SERVICES THAT ARE UNRELATED TO THE COLLOCATION FOR WHICH APPROVAL IS SOUGHT, SUCH AS IN‑KIND CONTRIBUTIONS TO THE AUTHORITY, INCLUDING RESERVING FIBER, CONDUIT OR POLE SPACE ON THE WIRELESS PROVIDER’S MONOPOLE OR UTILITY POLE FOR THE AUTHORITY.
2. REQUIRE AN APPLICANT TO PROVIDE MORE INFORMATION TO OBTAIN A PERMIT THAN THE AUTHORITY REQUIRES OF A COMMUNICATIONS SERVICE PROVIDER THAT IS NOT A WIRELESS PROVIDER AND THAT REQUESTS TO ATTACH FACILITIES TO A STRUCTURE. AN AUTHORITY MAY REQUIRE THE APPLICANT TO CERTIFY THAT THE SMALL WIRELESS FACILITIES TO BE COLLOCATED COMPLY WITH THE FEDERAL COMMUNICATIONS COMMISSION’S REGULATIONS CONCERNING RADIO FREQUENCY EMISSIONS REFERENCED IN 47 UNITED STATES CODE SECTION 332(c)(7)(B)(iv).
3. INSTITUTE, EITHER EXPRESSLY OR DE FACTO, A MORATORIUM ON FILING, RECEIVING OR PROCESSING APPLICATIONS OR ISSUING PERMITS OR OTHER APPROVALS, IF ANY, FOR THE COLLOCATION OF A SMALL WIRELESS FACILITY.
4. REQUIRE AN APPLICATION FOR ROUTINE MAINTENANCE OR THE REPLACEMENT OF SMALL WIRELESS FACILITIES WITH SMALL WIRELESS FACILITIES THAT ARE SUBSTANTIALLY SIMILAR OR THE SAME SIZE OR SMALLER. AN AUTHORITY MAY REQUIRE A PERMIT TO WORK WITHIN A RIGHT‑OF‑WAY FOR SUCH ACTIVITIES, IF APPLICABLE. A PERMIT ISSUED PURSUANT TO THIS PARAGRAPH IS SUBJECT TO THE REQUIREMENTS OF THIS SECTION.
H. COLLOCATION FOR WHICH A PERMIT IS GRANTED SHALL BE COMPLETED WITHIN ONE HUNDRED EIGHTY DAYS AFTER THE PERMIT ISSUANCE DATE, UNLESS THE AUTHORITY AND THE WIRELESS PROVIDER AGREE TO EXTEND THIS PERIOD OR A DELAY IS CAUSED BY THE LACK OF COMMERCIAL POWER AT THE SITE. APPROVAL OF AN APPLICATION BY AN AUTHORITY ALLOWS THE APPLICANT TO DO BOTH OF THE FOLLOWING:
1. COLLOCATE THE SMALL WIRELESS FACILITIES.
2. SUBJECT TO APPLICABLE RELOCATION REQUIREMENTS, THE WIRELESS PROVIDER’S RIGHT TO TERMINATE AT ANY TIME AND THE AUTHORITY’S TERMS DESCRIBED IN SECTION 9‑592, OPERATE AND MAINTAIN THE SMALL WIRELESS FACILITIES FOR A PERIOD OF NOT LESS THAN TEN YEARS, WHICH MUST BE RENEWED FOR EQUIVALENT DURATIONS UNLESS THE AUTHORITY MAKES A FINDING THAT THE SMALL WIRELESS FACILITIES DO NOT COMPLY WITH THE APPLICABLE CODES OR LOCAL CODE PROVISIONS OR REGULATIONS DESCRIBED IN SUBSECTION F, PARAGRAPH 4 OF THIS SECTION.
I. AN AUTHORITY MAY CHARGE AN APPLICATION FEE THAT IS LIMITED TO THE ACTUAL, DIRECT AND REASONABLE COSTS THAT ARE INCURRED BY THE AUTHORITY AND THAT RELATE TO THE GRANTING OR PROCESSING OF AN APPLICATION. AN APPLICATION FEE SHALL BE REASONABLY RELATED IN TIME TO THE INCURRING OF SUCH COSTS. IF SUCH COSTS ARE ALREADY RECOVERED BY EXISTING FEES, RATES OR TAXES THAT ARE PAID BY A WIRELESS PROVIDER, AN AUTHORITY MAY NOT CHARGE AN APPLICATION FEE TO RECOVER SUCH COSTS. AN APPLICATION FEE MAY NOT INCLUDE:
1. THIRD‑PARTY TRAVEL EXPENSES THAT ARE INCURRED TO REVIEW AN APPLICATION.
2. THE DIRECT PAYMENT OR REIMBURSEMENT OF THIRD‑PARTY RATES OR FEES THAT ARE CHARGED ON A CONTINGENCY BASIS OR PURSUANT TO A RESULT‑BASED ARRANGEMENT.
J. THE TOTAL APPLICATION FEE, IF ALLOWED, MAY NOT EXCEED ONE HUNDRED DOLLARS EACH FOR UP TO FIVE SMALL WIRELESS FACILITIES ADDRESSED IN AN APPLICATION AND FIFTY DOLLARS FOR EACH ADDITIONAL SMALL WIRELESS FACILITY ADDRESSED IN THE APPLICATION.
K. THIS ARTICLE DOES NOT ALLOW A PERSON TO COLLOCATE SMALL WIRELESS FACILITIES ON A PRIVATELY OWNED UTILITY POLE, A PRIVATELY OWNED WIRELESS SUPPORT STRUCTURE OR PRIVATE PROPERTY WITHOUT THE CONSENT OF THE PROPERTY OWNER.
wt: be certain that everything read in this section regards co-location. The named preemptions do not apply to freestanding poles! Iterum: NONE of the above section applies to freestanding poles!
9‑594. Structures subject to zoning; time frames; application; fees
A. THE FOLLOWING ACTIVITIES THAT TAKE PLACE INSIDE OF A RIGHT‑OF‑WAY ARE SUBJECT TO THIS SECTION AND ALL OF THE AUTHORITY’S CODES AND REGULATIONS, INCLUDING THE AUTHORITY’S ZONING CODES AND OTHER REGULATORY PROCESSES GOVERNING USE OF THE RIGHTS‑OF‑WAY, UNLESS THE ACTIVITIES ARE EXEMPT FROM ZONING REVIEW AND APPROVAL UNDER SECTION 9‑592, SUBSECTION I OR J OR SECTION 9‑593, SUBSECTION C:
1. THE INSTALLATION OF NEW MONOPOLES, UTILITY POLES OR WIRELESS FACILITIES.
2. THE COLLOCATION OF WIRELESS FACILITIES.
B. NOTWITHSTANDING ANY PROVISION IN THIS ARTICLE TO THE CONTRARY, THE CONSTRUCTION, INSTALLATION, MAINTENANCE, MODIFICATION, OPERATION OR REPLACEMENT OF A MONOPOLE OR ASSOCIATED WIRELESS FACILITY IN A RIGHT-OF‑WAY IS SUBJECT TO ALL OF THE AUTHORITY’S CODES AND REGULATIONS, INCLUDING THE AUTHORITY’S ZONING CODES AND OTHER REGULATORY PROCESSES GOVERNING USE OF THE RIGHTS‑OF‑WAY.
C. AN AUTHORITY SHALL:
1. ACCEPT AND PROCESS APPLICATIONS FOR THE MODIFICATION OF EXISTING OR THE INSTALLATION OF NEW MONOPOLES, UTILITY POLES OR WIRELESS FACILITIES AND THE COLLOCATION OF WIRELESS FACILITIES.
2. WITHIN THIRTY DAYS AFTER RECEIVING AN APPLICATION, NOTIFY THE APPLICANT WHETHER THE APPLICATION IS COMPLETE. IF AN APPLICATION IS INCOMPLETE, THE AUTHORITY MUST SPECIFICALLY IDENTIFY THE INFORMATION MISSING FROM THE APPLICATION.
3. PROCESS EACH COMPLETE APPLICATION ON A NONDISCRIMINATORY BASIS. A COMPLETE APPLICATION IS DEEMED APPROVED IF THE AUTHORITY FAILS TO APPROVE OR DENY THE APPLICATION WITHIN ONE HUNDRED FIFTY DAYS AFTER RECEIPT OF AN APPLICATION FOR THE MODIFICATION OF EXISTING OR THE INSTALLATION OF NEW MONOPOLES, UTILITY POLES OR WIRELESS FACILITIES OR WITHIN NINETY DAYS AFTER RECEIPT OF A COMPLETE APPLICATION FOR THE COLLOCATION OF WIRELESS FACILITIES. THE TIME PERIOD FOR APPROVAL MAY BE TOLLED TO ACCOMMODATE TIMELY REQUESTS FOR INFORMATION REQUIRED TO COMPLETE THE APPLICATION OR MAY BE EXTENDED BY MUTUAL AGREEMENT BETWEEN THE APPLICANT AND AUTHORITY.
4. IF A COMPLETE APPLICATION IS DENIED, NOTIFY THE APPLICANT IN WRITING AND PROVIDE SUBSTANTIAL SUPPORTING EVIDENCE OF THE REASON FOR DENIAL IN THE WRITTEN RECORD. THE WRITTEN NOTIFICATION OF THE DENIAL AND THE SUPPORTING EVIDENCE SHALL BE PUBLICLY RELEASED CONTEMPORANEOUSLY. THERE MUST BE A REASONABLE BASIS FOR THE DENIAL OF AN APPLICATION. AN AUTHORITY MAY NOT DENY AN APPLICATION IF THE DENIAL IS DISCRIMINATORY AGAINST THE APPLICANT WITH RESPECT TO THE PLACEMENT OF THE FACILITIES OF OTHER WIRELESS PROVIDERS.
D. AN AUTHORITY MAY NOT:
1. REQUIRE AN APPLICANT TO SUBMIT INFORMATION ABOUT THE APPLICANT’S BUSINESS DECISIONS REGARDING THE NEED FOR THE MONOPOLE, UTILITY POLE OR WIRELESS FACILITIES.
2. REQUIRE AN APPLICANT TO SUBMIT INFORMATION ABOUT, OR EVALUATE AN APPLICANT’S BUSINESS DECISIONS REGARDING, THE APPLICANT’S SERVICE, CUSTOMER DEMAND FOR SERVICE OR QUALITY OF SERVICE.
3. INSTITUTE, EITHER EXPRESSLY OR DE FACTO, A MORATORIUM ON FILING, RECEIVING OR PROCESSING APPLICATIONS OR ISSUING DECISIONS FOR MODIFICATIONS OR INSTALLATIONS THAT ARE NOT A PERMITTED USE.
E. AN AUTHORITY, IN ADDITION TO OTHER RIGHTS THE AUTHORITY HAS UNDER FEDERAL, STATE OR LOCAL LAW, MAY:
1. ADOPT REASONABLE REQUIREMENTS REGARDING THE APPEARANCE AND CONCEALMENT OF FACILITIES, INCLUDING THOSE RELATING TO MATERIALS USED FOR ARRANGING, SCREENING OR LANDSCAPING.
2. ADOPT SETBACK OR FALL ZONE REQUIREMENTS THAT ARE SUBSTANTIALLY SIMILAR TO SETBACK OR FALL ZONE REQUIREMENTS THAT ARE IMPOSED ON OTHER TYPES OF COMMERCIAL STRUCTURES OF A SIMILAR HEIGHT.
3. CHARGE AN APPLICATION FEE. ANY APPLICATION FEE IS SUBJECT TO THE REQUIREMENTS PROVIDED IN SECTION 9‑593, SUBSECTION I. THE TOTAL APPLICATION FEE, IF ALLOWED, MAY NOT EXCEED ONE THOUSAND DOLLARS FOR THE MODIFICATION OF EXISTING OR THE INSTALLATION OF NEW MONOPOLES OR UTILITY POLES OR FOR THE COLLOCATION OF WIRELESS FACILITIES.
4. CHARGE A RATE OR FEE FOR THE USE OF THE RIGHT‑OF‑WAY FOR THE INSTALLATION OF A MONOPOLE AND ASSOCIATED WIRELESS FACILITY THAT IS LIMITED TO NOT MORE THAN THE DIRECT AND ACTUAL COSTS OF MANAGING THE RIGHT‑OF‑WAY AND THAT IS NOT IN THE FORM OF A FRANCHISE OR OTHER FEE BASED ON REVENUE OR CUSTOMER COUNTS.
F. AN APPLICANT’S BUSINESS DECISIONS REGARDING THE TYPE AND LOCATION OF WIRELESS FACILITIES, MONOPOLES OR UTILITY POLES OR THE TECHNOLOGY TO BE USED ARE PRESUMED TO BE REASONABLE. THIS PRESUMPTION DOES NOT APPLY TO THE HEIGHT OR APPEARANCE OF WIRELESS FACILITIES, MONOPOLES OR UTILITY POLES. AN AUTHORITY MAY CONSIDER THE HEIGHT OF SUCH STRUCTURES IN THE ZONING OR OTHER REGULATORY REVIEW, PROVIDED THAT THE AUTHORITY DOES NOT UNREASONABLY DISCRIMINATE BETWEEN THE APPLICANT AND OTHER COMMUNICATIONS SERVICE PROVIDERS THAT INSTALL WIRELESS FACILITIES.
G. SUBJECT TO APPLICABLE RELOCATION REQUIREMENTS, THE AUTHORITY’S TERMS DESCRIBED IN SECTION 9‑592 AND THE WIRELESS PROVIDER’S RIGHT TO TERMINATE AT ANY TIME, THE APPROVAL TERM OF AN APPLICATION SHALL BE FOR A PERIOD OF NOT LESS THAN TEN YEARS, WHICH MUST BE RENEWED FOR EQUIVALENT DURATIONS UNLESS THE AUTHORITY MAKES A FINDING THAT THE STRUCTURE OR FACILITIES DO NOT COMPLY WITH THE APPLICABLE CODES OR TERMS OF THE ZONING OR OTHER REGULATORY PROCESS APPROVAL. CONSTRUCTION OF THE APPROVED STRUCTURE OR FACILITIES SHALL BE COMPLETED WITHIN ONE HUNDRED EIGHTY DAYS AFTER THE PERMIT ISSUANCE DATE, UNLESS THE AUTHORITY AND THE WIRELESS PROVIDER AGREE TO EXTEND THIS PERIOD OR A DELAY IS CAUSED BY THE LACK OF COMMERCIAL POWER AT THE SITE.
9‑595. Access to authority utility poles; rates and fees; collocations for other commercial projects or uses
A. AN AUTHORITY MAY NOT ENTER INTO AN EXCLUSIVE ARRANGEMENT WITH ANY PERSON FOR THE RIGHT TO ATTACH TO AUTHORITY UTILITY POLES.
B. THE RATES AND FEES FOR THE COLLOCATION OF SMALL WIRELESS FACILITIES ON AUTHORITY UTILITY POLES SHALL BE NONDISCRIMINATORY REGARDLESS OF THE SERVICES PROVIDED BY THE COLLOCATING PERSON.
C. THE RATE TO COLLOCATE SMALL WIRELESS FACILITIES ON AUTHORITY UTILITY POLES MAY NOT EXCEED FIFTY DOLLARS PER AUTHORITY UTILITY POLE, PER YEAR.
D. AN AUTHORITY SHALL ESTABLISH AND MAKE AVAILABLE RATES, FEES AND TERMS FOR THE COLLOCATION OF SMALL WIRELESS FACILITIES ON AUTHORITY UTILITY POLES WITHIN SIX MONTHS AFTER THE EFFECTIVE DATE OF THIS SECTION OR THREE MONTHS AFTER RECEIVING A REQUEST TO COLLOCATE THE FIRST SMALL WIRELESS FACILITY ON SUCH POLES, WHICHEVER IS LATER. THE RATES, FEES AND TERMS SHALL BE MADE AVAILABLE FOR ACCEPTANCE BY A WIRELESS PROVIDER. AT THE WIRELESS PROVIDER’S OPTION, A WIRELESS PROVIDER MAY REQUEST DIFFERENT OR ADDITIONAL TERMS THAT THE PARTIES SHALL NEGOTIATE IN GOOD FAITH. DOCUMENTS REFLECTING RATES, FEES AND TERMS WITH EACH WIRELESS PROVIDER SHALL BE MADE PUBLICLY AVAILABLE. THE RATES, FEES AND TERMS SHALL COMPLY WITH THE FOLLOWING REQUIREMENTS:
1. THE RATES, FEES AND TERMS MUST BE NONDISCRIMINATORY, COMPETITIVELY NEUTRAL AND COMMERCIALLY REASONABLE AND COMPLY WITH THIS SECTION AND SECTION 9‑592, SUBSECTIONS E AND F. REQUESTS FOR COLLOCATING A SMALL WIRELESS FACILITY ON AN AUTHORITY UTILITY POLE WILL BE PROCESSED PURSUANT TO SECTION 9‑593. THE AUTHORITY MAY REQUIRE A WIRELESS PROVIDER TO REPLACE THE AUTHORITY UTILITY POLE IF THE AUTHORITY DETERMINES THAT APPLICABLE CODES OR LOCAL CODE OR REGULATORY PROVISIONS THAT CONCERN PUBLIC SAFETY REQUIRE REPLACEMENT OF THE AUTHORITY UTILITY POLE. THE WIRELESS PROVIDER’S REQUEST TO INSTALL A REPLACEMENT UTILITY POLE WILL BE PROCESSED PURSUANT TO SECTION 9‑592. THE AUTHORITY SHALL RETAIN OWNERSHIP OF THE UTILITY POLE.
2. TERMS MUST REASONABLY ACCOMMODATE POWER SUPPLY AND ELECTRIC METERING FOR THE SMALL WIRELESS FACILITY.
E. AN AUTHORITY MAY PROHIBIT, REGULATE AND CHARGE FOR THE COLLOCATION OF A WIRELESS FACILITY ON A WIRELESS SUPPORT STRUCTURE OWNED BY THE AUTHORITY.
9‑596. Scope of local authority
A. SUBJECT TO THIS ARTICLE AND APPLICABLE FEDERAL LAW, AN AUTHORITY MAY EXERCISE ZONING, LAND USE, PLANNING AND PERMITTING AUTHORITY AND THE AUTHORITY’S POLICE POWER WITHIN THE AUTHORITY’S TERRITORIAL BOUNDARIES, INCLUDING FOR THE INSTALLATION, MODIFICATION AND REPLACEMENT OF WIRELESS SUPPORT STRUCTURES AND UTILITY POLES.
B. AN AUTHORITY DOES NOT HAVE ANY JURISDICTION OR AUTHORITY OVER THE DESIGN, ENGINEERING, CONSTRUCTION, INSTALLATION OR OPERATION OF ANY SMALL WIRELESS FACILITY LOCATED IN AN INTERIOR STRUCTURE OR ON THE SITE OF ANY CAMPUS, STADIUM OR ATHLETIC FACILITY THAT IS NOT OWNED OR CONTROLLED BY THE AUTHORITY, OTHER THAN TO REQUIRE COMPLIANCE WITH APPLICABLE CODES.
C. THIS ARTICLE DOES NOT AUTHORIZE THIS STATE OR ANY POLITICAL SUBDIVISION OF THIS STATE, INCLUDING AN AUTHORITY, TO REQUIRE SMALL WIRELESS FACILITY DEPLOYMENT OR TO REGULATE WIRELESS SERVICES.
D. IF AN AUTHORITY DETERMINES THAT A UTILITY POLE, MONOPOLE OR WIRELESS SUPPORT STRUCTURE OF A WIRELESS PROVIDER WILL BE RELOCATED TO ACCOMMODATE A PUBLIC PROJECT, ALL WIRELESS FACILITIES DEPLOYED ON SUCH UTILITY POLE, MONOPOLE OR WIRELESS SUPPORT STRUCTURE SHALL BE RELOCATED AT NO COST TO THE AUTHORITY.
9‑597. Dispute resolution
A COURT OF COMPETENT JURISDICTION IN THIS STATE SHALL DETERMINE ALL DISPUTES ARISING UNDER THIS ARTICLE.
9-598. General requirements for use of the right‑of‑way
STRUCTURES AND FACILITIES DEPLOYED BY WIRELESS PROVIDERS PURSUANT TO THIS ARTICLE SHALL BE CONSTRUCTED, MAINTAINED AND LOCATED AS TO NOT OBSTRUCT, ENDANGER OR HINDER THE USUAL TRAVEL OR PUBLIC SAFETY ON THE RIGHT‑OF‑WAY, DAMAGE OR INTERFERE WITH ANY OTHER UTILITY FACILITIES IN THE RIGHT‑OF‑WAY OR INTERFERE WITH A UTILITY’S USE OF THE UTILITY’S FACILITIES IN THE RIGHT-OF-WAY. CONSTRUCTION AND MAINTENANCE BY THE WIRELESS PROVIDER SHALL COMPLY WITH THE NATIONAL ELECTRICAL SAFETY CODE AND ALL APPLICABLE LAWS AND REGULATIONS FOR THE PROTECTION OF UNDERGROUND AND OVERHEAD UTILITY FACILITIES. AN AUTHORITY SHALL TREAT A WIRELESS PROVIDER’S FACILITIES LOCATED WITHIN A RIGHT‑OF-WAY ON AN EQUAL BASIS WITH OTHER UTILITY FACILITIES, EXCEPT THAT AN AUTHORITY MAY ADOPT REASONABLE REGULATIONS TO ADDRESS THE SEPARATION OF THE WIRELESS PROVIDER’S FACILITIES FROM THE OTHER UTILITY FACILITIES WITHIN THE RIGHT‑OF‑WAY TO PREVENT ANY DAMAGE TO OR INTERFERENCE WITH SUCH OTHER UTILITY FACILITIES OR INTERFERENCE WITH A UTILITY’S USE OF THE UTILITY’S FACILITIES LOCATED OR TO BE LOCATED WITHIN THE RIGHT-OF-WAY.
9-599. Applicability
THIS ARTICLE DOES NOT:
1. AFFECT THE AUTHORITY OF A SPECIAL TAXING DISTRICT, INVESTOR‑OWNED ELECTRIC UTILITY OR ELECTRIC COOPERATIVE THAT OWNS, CONTROLS OR OPERATES UTILITY POLES OR WIRELESS SUPPORT STRUCTURES TO DENY, LIMIT, RESTRICT OR DETERMINE THE RATES, FEES, TERMS AND CONDITIONS FOR THE USE OF OR ATTACHMENT TO ITS UTILITY POLES OR WIRELESS SUPPORT STRUCTURES BY A WIRELESS PROVIDER.
2. CONFER ON ANY AUTHORITY ANY ZONING, LAND USE, PLANNING, PERMITTING OR OTHER REGULATORY AUTHORITY OVER THE UTILITY POLES, WIRELESS SUPPORT STRUCTURES OR SMALL WIRELESS FACILITIES OWNED, CONTROLLED OR OPERATED BY A SPECIAL TAXING DISTRICT, INVESTOR‑OWNED ELECTRIC UTILITY OR ELECTRIC COOPERATIVE OR THE INSTALLATION OF SUCH UTILITY POLES, WIRELESS SUPPORT STRUCTURES OR SMALL WIRELESS FACILITIES BY A SPECIAL TAXING DISTRICT, INVESTOR‑OWNED ELECTRIC UTILITY OR ELECTRIC COOPERATIVE.
3. AMEND, MODIFY OR OTHERWISE AFFECT ANY PRIVATE EASEMENT. ANY AND ALL RIGHTS FOR THE USE OF A RIGHT‑OF‑WAY ARE SUBJECT TO THE RIGHTS GRANTED PURSUANT TO ANY PRIVATE EASEMENT.
4. APPLY TO ANY AUTHORITY WITHIN TEN MILES OF THE BORDER OF MEXICO THAT IS NEGOTIATING A CONTRACT OR HAS A CONTRACT IN PLACE ON OR BEFORE JULY 1, 2018 AND THAT CONTRACT ASSISTS AND SUPPORTS NATIONAL SECURITY OBJECTIVES ALONG THE BORDER OF THE UNITED STATES AND MEXICO.