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 August 9, 2017 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 August 9, 2017 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.

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 August 9, 2017, 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 J. 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.

N. 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.

O. 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.

P. 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.