August 12, 2019 Small Cell Summit SB 66: Streamlining Wireless Facilities and Antennas Act

What the Act Covers With limited exceptions, providers must file an application and obtain a permit before installing facilities covered by the Act. §§36-66C-6(b); 36-66C-6(e). The Act covers: Placement (collocation) of Small Wireless Facilities (SWF) on existing poles or support structures in the ROW. §36-66C-6(a). Placement of new/replacement poles (but not support structures) in the ROW to support a SWF. §36-66C-6(a). Other uses are not covered by the Act and are subject to permitting and other requirements of applicable law. §36-66C-8.

Placement of SWF on existing poles or support structures in the ROW Placement of SWF on existing poles or support structures in the ROW. §36-66C-6(a).   SWF must satisfy volume limits. 6 cubic feet for the antenna. §36-66C-2(32)(A). 28 cubic feet for associated wireless equipment. §36-66C-2(32)(B). SWF must be no more than 10 feet higher than existing pole/structure. §36-66C-7(h)(3)(A).  

Placement of new/replacement poles (but not support structures) in the ROW to support a SWF §36-66C-6(a)   SWF must satisfy volume limits per above. In Historic/Residential areas, the new pole must be no higher than 50 feet. §36-66C-7(h)(1). In other areas, the new pole must be no more than 10 feet higher than the tallest pole in place on January 1, 2019 and located within 500 feet in the same ROW. §36-66C-7(h)(2)(B). If there is no such existing pole, the new/replacement pole must be no more than 50 feet. §36-66C-7(h)(2)(A). The SWF cannot be higher than the height limit for the new/replacement pole. §36-66C-7(h)(3)(B).

Additional Considerations Undergrounding Areas. §36-66C-7(i). Historic Districts. §36-66C-10. Residential Areas. §36-66C-11. Decorative Poles. §36-66C-12.

Implementing the Statute          Effective date  Pre-deployment meetings (36-66C-3)  Establishing rates, fees and terms (36-66C-4)  Grandfathering (36-66C-17)

Important Preliminary Concepts An authority (city) may make available to wireless providers rates, fees, and other terms that comply with this chapter….that are adopted by ordinance, resolution, or another document after public notice. Absent such a resolution or ordinance, a wireless provider may install and collocate…. No agreement between authority and provider is required… An agreement may be entered into, however….

Important Preliminary Concepts If agreed upon, the authority and wireless provider may change the rates, fees, and terms from the chapter. BUT Such agreements must be open for public inspection, and the same terms must be offered to all providers…. With respect to deployments before October 1, 2019, the Act will not apply until the agreement expires or is terminated.

Default If an authority fails to adopt an ordinance or resolution, the Act governs unless/until an ordinance or resolution is adopted by the authority.

Authority Classification Class I Authority: any county, municipality, or consolidated government which has 100,000 parcels or more of real property. Class II Authority: any county, municipality, or consolidated government which has at least 10,000 but fewer than 100,000 parcels of real property. Class III Authority: any county, municipality, or consolidated government which has fewer than 10,000 parcels of real property.

Pre-Application Meeting Required Class I Authorities: Applicants must meet with Class I Authorities at least 30 days before submitting permit applications to inform such authority: when the applicant expects to commence deployment of small wireless facilities; the number of small wireless facilities it expects to deploy within 24 months following commencement; and the expected timing of such deployments.

Pre-Application Meeting Required Any Class II Authority that is located within a metropolitan statistical area may also require a meeting to obtain the information above. Any information provided by the applicant in connection with such meetings are considered confidential, proprietary, and a trade secret, and are exempt from the Georgia Open Records Act.

Fees vs. Rates Fee: one-time, nonrecurring charge based on time and expense. Rate: recurring charges.

Fees O.C.G.A. § 36-66C-5 (a) As a condition to the issuance of a permit to collocate a small wireless facility or to install, modify, or replace a pole or a decorative pole for collocation of a small wireless facility in a right of way, the applicant shall pay the following fees and rates:

Fees Assessed by the authority not to exceed …. $100 per application for the collocation of a small wireless facility on an existing pole. Assessed by the authority not to exceed …. $250 per application for each replacement pole with an associated small wireless facility. Assessed by the authority not to exceed …. $1000 per application for each new pole with an associated small wireless facility.

Fees Fees based on a good faith estimate for make ready work as provided in O.C.G.A. § 36-66C-7(n). Fees for generally applicable nondiscriminatory permits required under generally applicable law (i.e., roadway closure permit) Except that applicants are not required to obtain or pay for building permits

Fees Applicants are not subject to fees or rates not specifically provided for in the Act or that are not voluntarily negotiated. Applicants may cease paying all fees and rates upon the removal of their small wireless facilities, provided the applicant returns the right of way to the condition it was in prior to the removal. An authority may restore the right of way to its prior condition upon failure by applicant to do so, and the authority may assess its reasonable documented costs for removal and restoration plus a $500 penalty.

Rates An annual right of way occupancy rate shall not exceed: $100.00 per year for each small wireless facility collocated on an existing or replacement pole, including an authority pole; or $200.00 per year for each new pole, other than a replacement pole, with an associated small wireless facility. An annual attachment rate for collocations on authority poles shall not exceed $40.00 per year per small wireless facility. Shall be nondiscriminatory regardless of services provided by collocating provider.

Fee and Rate Adjustment Many of the fees and rates in the Act will increase 2.5 percent annually beginning January 1, 2021. An applicant shall not be subject to any fees or rates other than those expressly provided for by this Code section or as may be otherwise voluntarily negotiated between an applicant and the authority in accordance with Code Section 36-66C-4.

Permit and Admin. Review Required Permits and administrative review are required for: Collocation of a small wireless facility on a pole, support structure, or decorative pole; and Installation, modification, or replacement of a pole or decorative pole. Failure to obtain a permit can result in the removal of any installation. Authorities are authorized to charge the responsible wireless provider for the restoration of the right of way, as well a $1000 penalty. Authorities may suspend the ability of a wireless provider to receive any new permits until any costs and penalties have been paid.

Permit NOT Required Permits are NOT required for: Inspections, testing, repairs, and modifications that maintain functional capacity and aesthetic, and structural integrity; or Replacement or upgrading of antennas or other components that are substantially similar in color, size, and aesthetics previously permitted by the authority and consistent with applicable height and volume limits. Micro wireless facilities suspended on cables strung between poles.

Applications Applications submitted by wireless providers shall include: Applicant contact information. Consultant contact information, if any consultants are acting on behalf of the applicant. A general description of the proposed work, and the purpose and intent of the proposed facility.

Applications Detailed construction drawings. For collocations: A structural report by a duly licensed engineer evidencing that the pole or support structure will support the collocation. Visual depictions if not included in the construction drawings. Information indicating the horizontal and approximate vertical location, relative to the right of way.

Applications If for collocation on a third-party pole, a certification that the applicant has permission from the third-party. If the applicant is not a wireless service provider, a certification that a wireless service provider has requested the installation. Material changes to information included in an application must be submitted in writing within 30 days after events necessitating the change.

Applications If an application is for the installation of a new pole, a certification that after a diligent investigation, the wireless provider determined it cannot meet service objectives of the permit by collocating on an existing pole or support structure on which: The provider has the right to collocate on subject to reasonable terms and conditions; and The collocation would not impose technical limitations or significant additional costs. Such a determination must be made in good faith, be based on the assessment of a licensed engineer, and the applicant must provide a written summary of the basis for such determination. All applicable fees.

Applications O.C.G.A. § 36-66C-6(h) (h) Unless otherwise provided by applicable law, all applications pursuant to this chapter shall be accompanied by the fees required under Code Sections 36-66C-4 and 36- 66C-5.

Certification of Necessity O.C.G.A. § 36-66C-6(k) A wireless provider shall not apply to install a pole or replace a decorative pole unless it has determined after diligent investigation that it cannot meet the service objectives of the permit by collocating on an existing pole or support structure on which: (1) The wireless provider has the right to collocate subject to reasonable terms and conditions; and (2) Such collocation would not impose technical limitations or significant additional costs. The wireless provider shall certify that it has made such a determination in good faith, based on the assessment of a licensed engineer, and shall provide a written summary of the basis for such determination.

Anticipation of Approval O.C.G.A. § 36-66C-6(m) An application that is subject to administrative review shall be approved except as provided in subsection (j) of Code Section 36-66C-7

Consolidated Applications Applicants may submit a single consolidated application. Cannot cover a geographic area of more than 2 miles in diameter. Denial of one small wireless facility or pole shall not delay the processing of any other facilities or poles in the same consolidated application An authority may issue a single permit, or multiple permits, for the consolidated application.

Consolidated Applications The number of poles and small wireless facilities included in consolidated applications are limited by Authority Class. Authorities may toll the processing requirements for subsequent applications upon receipt of the specified maximum from the same wireless provider for the respective Authority Class.

Consolidated Applications Class I Authority 10 applications may be consolidated; Upon 25 or more applications pending by same applicant for new poles and associated collocations on such new poles, authority may toll (stop) the processing requirement(s) for subsequent applications; The number to trigger tolling changes to: 30, effective July 1, 2020; 35, effective July 1, 2021; 40, effective July 1, 2022; 45, effective July 1, 2023 50, effective July 1, 2024

Consolidated Applications Class I Authority Consolidated application for collocation may include no more than 20 sites; Authority may toll upon having 70 pending….

Consolidated Applications Class II Authority 5 applications for new poles and associated collocations may be consolidated… Upon 15 or more applications pending by same applicant for new poles and associated collocations on such new poles, authority may toll (stop) the processing requirement(s) for subsequent applications;

Consolidated Applications Class II Authority Consolidated application for collocation may include no more than 15 sites; Authority may toll upon having 45 pending….

Consolidated Applications Class III Authority 2 applications for new poles and associated collocations may be consolidated… Upon 8 or more applications pending by same applicant for new poles and associated collocations on such new poles, authority may toll (stop) the processing requirement(s) for subsequent applications;

Consolidated Applications Class III Authority Consolidated application for collocation may include no more than 6 sites; Authority may toll upon having 24 pending….

Limitations on Authorities An authority may NOT enter into an exclusive arrangement for the use of the right of way for the installation of small wireless facilities. An authority must be competitively neutral and nondiscriminatory with regard to other users of the right of way.

What if I receive an application? Within 20 days of receiving an application, an authority must: Notify the applicant of any anticipated applicable ROW changes. Notify the applicant of any likely grounds for denial of the application. Inform the applicant in writing if the application is incomplete and identify all missing information.

What if I receive an application? The applicant has 20 days to submit any missing information If the application is still incomplete, or if changes have been made in the resubmission, the authority shall notify the applicant within 10 days. Absent agreement to the contrary, such notice constitutes a denial of the application. If notice is not provided, the application is deemed complete.

Decision Deadlines Authorities must make final decisions to approve or deny applications within the following timeframes: Collocation Applications: 30 days of determining an application is complete. Pole Applications: 70 days of determining the application is complete Applies to installation, modification, or replacement of poles

Decision Deadlines If an authority fails to act on an application within the required review period, the applicant may provide notice to the authority the time for acting has lapsed. The authority has an additional 20 days from receipt of notice from the applicant to provide a decision. Continued inaction renders the application approved after such 20 days.

Application Denials Must be in writing Must identify all reasons for the denial Must identify the applicable codes and standards providing the basis for denial

Grounds for Denial Interference with traffic control equipment. Interference with sight lines or clear zones. Noncompliance with the ADA or similar laws regarding pedestrian access or movement. Interference with road widening, repair, reconstruction, or relocation that has been advertised for bid and scheduled for completion within six months. Interference with laws governing management of the right of way or that address pedestrian and vehicular traffic and safety requirements.

Grounds for Denial Failure to comply with applicable codes. Exceeds maximum height limitations provided for in the statute. Failure to comply with historic district, residential zoning district, or decorative pole requirements in the statute (36-66C-10, 36-66C-11, 36- 66C-12). Interference with public works construction projects. Application requests ground-mounted equipment be located more than 7.5 feet in radial circumference form the base of the pole.

Installation Requirements Each new, modified, or replacement pole installed in the right of way shall not: Exceed 50 feet above ground level when in a historic district and in an area zoned primarily for residential use. Exceed the greater of the following when not located in a historic district or area zoned primarily for residential use: 50 feet above ground level; or 10 feet greater than the tallest existing pole located within 500 feet of the proposed pole.

Installation Requirements New small wireless facilities to be collocated on new, modified, or replacement poles must meet the height requirements above. New small wireless facilities to be collocated on existing poles shall not exceed more than 10 feet above the existing pole or support structure.

Historic and Residential Districts Historic Districts: installations must comply with any objective, reasonable, and nondiscriminatory aesthetic and structural requirements that have been made publicly available at least 30 days prior to submission of the application. Such requirements cannot have the effect of materially inhibiting service.

Historic and Residential Districts Residential Use: an authority may propose an alternate location within 100 feet of the location provided in the application, and the applicant must use the proposed alternate location unless it imposes technical limits or significant additional costs. Wireless provider must certify any determination against relocation in good faith, based on the assessment of a licensed engineer, and must provide a written summary of the basis for such determination.

Permits Permits authorize applicants to: Undertake the collocation, installation, modification, or replacement approved by the permit; and Operate and maintain small wireless facilities and associated poles for a period of not less than 10 years. Permits should be renewed for equivalent durations, so long as the applicant is compliant with the required criteria of the Act.

Permits Collocation, installation ,modification, or replacement for which a permit is issued must be competed within 6 months after the issuance of the permit. Applicants may seek an extension for up to an additional 6 months, if they submit a written request to the authority before the expiration of the initial 6 months, and only if the delay is the result of circumstances beyond the reasonable control of the applicant.

Relocation Required Wireless providers must relocate poles at no cost to authorities when such poles and support structures are found to unreasonably interfere with the widening, repair, reconstruction, or relocation of a public road, or a public project. The wireless provider must relocate poles/support structures: By the date designated in written notice from the authority, with a minimum of 45 days notice; OR Within the timeframe the wireless provider estimates in good faith is reasonably necessary to complete the relocation. Must provide the authority of a good faith estimate for relocation within 30 days of receiving notice, explaining in detail why relocation cannot be accomplished within the timeframe set by the authority.

Relocation Required If the wireless provider fails to relocate a pole, or fails to provide a good faith estimate of time needed to move a pole, the authority has the right to cut power to and move any pole located in the ROW as deemed necessary to commence work.

Abandonment If a provider decides to abandon a small wireless facility or pole, the provider must notify the authority at least 30 days prior to abandoning it. If the provider fails to remove the abandoned small wireless facility or pole within 90 days, the authority may do so, and recover the costs and expenses for removal from the provider, plus a penalty of $500.00 The authority may suspend a provider’s ability to receive new permits until the removal costs and penalty fee have been paid.

Abandonment A small wireless facility or pole that is not utilized for a continuous 12 month period is considered abandoned, and the owner must remove it within 90 days following written notice from the authority notifying the owner of the abandonment. The owner may contest the designation of abandonment by responding in writing. If the owner does not contest the abandonment, and fails to remove the structure, the authority may remove the small wireless facility/pole.

Other Powers of Authorities Can require compliance with reasonable and nondiscriminatory requirements prohibiting installation of poles in the right of way in areas designated solely for underground or buried facilities. When there is an imminent risk to public safety, the authority can demand the wireless provider address the situation within 24 hours. Can take action if necessary if provider fails to reasonably address the risk within 24 hours, and can charge the wireless provider for the documented cost of such actions.

Other Powers of Authorities Can require repair to damage in ROW caused by wireless provider. If wireless provider fails to return the right of way to its condition prior to the damage, the authority can restore the row and charge the wireless provider reasonable documented cost. Can withhold any new permits until the wireless provider has paid the authority.

Questions?