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Title VI COUNTY, TOWNSHIP AND POLITICAL SUBDIVISION GOVERNMENT

Chapter 67

Effective - 01 Jan 2019, see footnote bottom

  67.5113.  No charge for collocation — permits, requirements — application not required, when. — 1.  The provisions of this section shall apply to the permitting of small wireless facilities by a wireless provider in or outside the right-of-way and to the permitting of the installation, modification, and replacement of utility poles by a wireless provider inside the right-of-way.

  2.  An authority shall not prohibit, regulate, or charge for the collocation of small wireless facilities, except as provided under sections 67.5110 to 67.5121.

  3.  An authority may require an applicant to obtain one or more permits to collocate a small wireless facility or install a new, modified, or replacement utility pole associated with a small wireless facility as provided in subsection 3 of section 67.5112, provided such permits are of general applicability and do not apply exclusively to wireless facilities.  An authority shall receive applications for, process, and issue such permits subject to the following requirements:

  (1)  An authority shall not directly or indirectly require an applicant to perform services or provide goods unrelated to the permit, such as in-kind contributions to the authority, including reserving fiber, conduit, or pole space for the authority;

  (2)  An applicant shall not be required to provide more information to obtain a permit than communications service providers that are not wireless providers, provided that an applicant may be required to include construction and engineering drawings and information demonstrating compliance with the criteria in subdivision (9) of this subsection and an attestation that the small wireless facility complies with the volumetric limitations in subdivision (19) of section 67.5111;

  (3)  An authority shall 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;

  (4)  An authority shall not limit the placement of small wireless facilities by minimum horizontal separation distances;

  (5)  An authority may require a small wireless facility to comply with reasonable, objective, and cost-effective concealment or safety requirements adopted by the authority;

  (6)  The authority may require an applicant that is not a wireless services provider to provide evidence of agreements or plans demonstrating that the small wireless facilities will be operational for use by a wireless services provider within one year after the permit issuance date, unless the authority and the applicant agree to extend this period or if delay is caused by lack of commercial power or communications transport facilities to the site and the applicant notifies the authority thereof.  An authority may require an applicant that is a wireless services provider to provide the information required by this subdivision by attestation;

  (7)  Within fifteen days of receiving an application, an authority shall determine and notify the applicant in writing whether the application is complete.  If an application is incomplete, an authority shall specifically identify the missing information in writing.  The processing deadline in subdivision (8) of this subsection is tolled from the time the authority sends the notice of incompleteness to the time the applicant provides the missing information.  That processing deadline may also be tolled by agreement of the applicant and the authority;

  (8)  An application for collocation shall be processed on a nondiscriminatory basis and deemed approved if the authority fails to approve or deny the application within forty-five days of receipt of the application, except that the state highways and transportation commission shall have sixty days to approve or deny an application from the date the application was received.  An application for installation of a new, modified, or replacement utility pole associated with a small wireless facility shall be processed on a nondiscriminatory basis and deemed approved if the authority fails to approve or deny the application within sixty days of receipt of the application;

  (9)  An authority may deny a proposed collocation of a small wireless facility or installation, modification, or replacement of a utility pole that meets the requirements in subsection 3 of section 67.5112 only if the action proposed in the application could reasonably be expected to:

  (a)  Materially interfere with the safe operation of traffic control equipment or authority-owned communications equipment;

  (b)  Materially interfere with sight lines or clear zones for transportation, pedestrians, or nonmotorized vehicles;

  (c)  Materially interfere with compliance with the Americans with Disabilities Act, 42 U.S.C. Sections 12101 to 12213, or similar federal or state standards regarding pedestrian access or movement;

  (d)  Materially obstruct or hinder the usual travel or public safety on the right-of-way;

  (e)  Materially obstruct the legal use of the right-of-way by an authority, utility, or other third party;

  (f)  Fail to comply with reasonable and nondiscriminatory spacing requirements of general application adopted by ordinance or regulations promulgated by the state highways and transportation commission that concern the location of ground-mounted equipment and new utility poles.  Such spacing requirements shall not prevent a wireless provider from serving any location and shall include a waiver, zoning, or other process that addresses wireless provider requests for exception or variance and does not prohibit granting of such exceptions or variances;

  (g)  Fail to comply with applicable codes, including nationally recognized engineering standards for utility poles or wireless support structures;

  (h)  Fail to comply with the reasonably objective and documented aesthetics of a decorative pole and the applicant does not agree to pay to match the applicable decorative elements; or

  (i)  Fail to comply with reasonable and nondiscriminatory undergrounding requirements contained in local ordinances as of January 1, 2018, or subsequently enacted for new developments, that require all utility facilities in the area to be placed underground and prohibit the installation of new or the modification of existing utility poles in a right-of-way without prior approval, provided that such requirements include a waiver or other process of addressing requests to install such utility poles and do not prohibit the replacement or modification of existing utility poles consistent with this section or the provision of wireless services;

  (10)  The authority shall document the complete basis for a denial in writing, and send the documentation to the applicant on or before the day the authority denies an application.  The applicant may cure the deficiencies identified by the authority and resubmit the application within thirty days of the denial without paying an additional application fee.  The authority shall approve or deny the revised application within thirty days.  Any subsequent review shall be limited to the deficiencies cited in the denial;

  (11)  (a)  An applicant seeking to collocate small wireless facilities within the jurisdiction of a single authority shall be allowed, at the applicant's discretion, to file a consolidated application and receive a single permit for the collocation of multiple small wireless facilities; provided, however, the denial of one or more small wireless facilities in a consolidated application shall not delay processing of any other small wireless facilities in the same batch; and

  (b)  An application may include up to twenty separate small wireless facilities, provided that they are for the same or materially same design of small wireless facility being collocated on the same or materially the same type of utility pole or wireless support structure, and geographically proximate.  If an authority receives individual applications for approval of more than fifty small wireless facilities or consolidated applications for approval of more than seventy-five small wireless facilities within a fourteen-day period, whether from a single applicant or multiple applicants, the authority may, upon its own request, obtain an automatic thirty-day extension for any additional collocation or replacement or installation application submitted during that fourteen-day period or in the fourteen-day period immediately following the prior fourteen-day period.  An authority shall promptly communicate its request to each and any affected applicant.  In rendering a decision on an application for multiple small wireless facilities, the authority may approve the application as to certain individual small wireless facilities while denying it as to others based on applicable requirements and standards, including those identified in this section.  The authority's denial of any individual small wireless facility or subset of small wireless facilities within an application shall not be a basis to deny the application as a whole;

  (12)  Installation or collocation for which a permit is granted under this section shall be completed within one year after the permit issuance date unless the authority and the applicant agree to extend this period, or the applicant notifies the authority that the delay is caused by a lack of commercial power or communications transport facilities to the site.  Approval of an application authorizes the applicant to:

  (a)  Undertake the installation or collocation; and

  (b)  Operate and maintain the small wireless facilities and any associated utility pole covered by the permit for a period of not less than ten years, which shall be renewed for equivalent durations so long as they are in compliance with the criteria set forth in subdivision (9) of this subsection, unless the applicant and the authority agree to an extension term of less than ten years.  The provisions of this paragraph shall be subject to the right of the authority to require, upon adequate notice and at the facility owner's own expense, relocation of facilities as may be needed in the interest of public safety and convenience, and the applicant's right to terminate at any time;

  (13)  An authority shall not 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 small wireless facilities or the installation, modification, or replacement of utility poles to support small wireless facilities.  Notwithstanding the foregoing, an authority may impose a temporary moratorium on applications for small wireless facilities and the collocation thereof for the duration of a federal or state-declared natural disaster plus a reasonable recovery period, or for no more than thirty days in the event of a major and protracted staffing shortage that reduces the number of personnel necessary to receive, review, process, and approve or deny applications for the collocation of small wireless facilities by more than fifty percent;

  (14)  Nothing in this section precludes an authority from adopting reasonable rules with respect to the removal of abandoned small wireless facilities;

  (15)  In determining whether sufficient capacity exists to accommodate the attachment of a new small wireless facility, an authority shall grant access subject to a reservation to reclaim such space, when and if needed, to meet the pole owner's core utility purpose or documented authority plan projected at the time of the application pursuant to a bona fide development plan, or if the state highways and transportation commission is the relevant authority and determines, in its sole discretion, that attachment of the small wireless facility will affect the safety of the public using the right-of-way; and

  (16)  In emergency circumstances that result from a natural disaster or accident, an authority may require the owner or operator of a wireless facility to immediately remove such facility if the wireless facility is obstructing traffic or causing a hazard on the authority's roadway.  In the event that the owner or operator of the wireless facility is unable to immediately remove the wireless facility, the authority is authorized to remove the wireless facility from the roadway or other position that renders the wireless facility hazardous.  Under these emergency circumstances, the authority shall not be liable for any damage caused by removing the wireless facility and may charge the owner or operator of the wireless facility the authority's reasonable expenses incurred in removing the wireless facility.

  4.  An authority shall not require an application for:

  (1)  Routine maintenance on previously permitted small wireless facilities;

  (2)  The replacement of small wireless facilities with small wireless facilities that are the same or smaller in size, weight, and height; or

  (3)  The installation, placement, maintenance, operation, or replacement of micro wireless facilities that are strung on cables between utility poles, in compliance with applicable codes.

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For work described in subdivisions (1) and (2) of this subsection that involves different equipment than that being replaced, an authority may require a description of such new equipment so that the authority may maintain an accurate inventory of the small wireless facilities at that location.

  5.  No approval for the installation, placement, maintenance, or operation of a small wireless facility under this section shall be construed to confer authorization for the provision of cable television service, or installation, placement, maintenance, or operation of a wireline backhaul facility or communications facility, other than a small wireless facility, in the right-of-way.

  6.  Except as provided in sections 67.5110 to 67.5121, no authority may adopt or enforce any ordinances or requirements that require the holder of a franchise or video service authorization as defined under section 67.2677 and that could be required to pay a video service provider fee to a franchise entity under section 67.2689, to obtain additional authorization or to pay additional fees for the provision of communications service over such holder's communications facilities in the right-of-way.

  7.  A municipal electric utility shall not require an application for the installation, placement, maintenance, operation, or replacement of micro wireless facilities that are strung on cables between utility poles, in compliance with applicable codes.

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(L. 2018 H.B. 1991)

Effective 1-01-19

Expires 1-01-25


---- end of effective   01 Jan 2019 ----

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