§ 86-1237 — Issuance of permit for small wireless facility within right-of-way; applicant; procedure; cost; authority; powers; denial; grounds; Department of Transportation; powers

(1) This section applies to the issuance of a permit for a small wireless facility within the right-of-way as specified in subsection (4) of this section and to the issuance of a permit for the installation, modification, and replacement of a utility pole by an applicant within a right-of-way.
(2) Except as provided in the Small Wireless Facilities Deployment Act, an authority shall not prohibit, regulate, or charge for the collocation of small wireless facilities or the installation, modification, or replacement of utility poles to support small wireless facilities.
(3)(a) An applicant that collocates a small wireless facility within an authority right-of-way or on a utility pole assumes the risk of loss, damage to, or loss of use of such facility when such pole is damaged, destroyed, or taken out of service on authority property, except to the extent that such loss or damage is due to or caused by the negligence or willful misconduct of the authority or its employees, contractors, or agents. This subdivision does not preclude claims against entities other than the authority.
(b) The construction, operation, maintenance, collocation, or placement of wireless facilities, utility poles, or wireless support structures shall occur at no cost from an applicant to an authority unless otherwise agreed to in advance between an applicant and the authority.
(c) If the future maintenance or construction of an authority road requires the moving or relocating of wireless facilities, utility poles, or wireless support structures currently located within a right-of-way, such facilities, poles, or structures shall be removed or relocated by the owner of such small wireless facilities, poles, or structures at the owner's expense and as directed by the authority.
(4) Small wireless facilities shall be classified as a permitted use and not subject to zoning review or approval if collocated within the right-of-way. Small wireless facilities to be located in an airport hazard area as defined by section 3-301 shall comply with any regulations governing such area.
(5) An authority may require an applicant to apply for and 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. Such permits shall be of general applicability and not apply exclusively to wireless facilities. An authority shall receive applications for, process, and issue such permits subject to the following requirements:
(a) Except as otherwise provided in subdivision (b) of this subsection, 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 utility pole space for the authority;
(b) An authority shall be allowed to reserve space on authority poles and the applicant shall cooperate with the authority in any such reservation, except that the authority shall first notify the applicant in writing that it is interested in reserving such pole space or sharing the trenches or bores in the area where the collocation is to occur. The applicant shall allow the authority to place its infrastructure in the applicant's trenches or bores or on the utility pole as requested by the authority, except that the authority shall incur the incremental costs of placing the conduit or infrastructure as requested. The authority shall be responsible for maintaining its facilities in the trenches and bores and on the authority pole;
(c) An applicant shall not be required to provide more information to obtain a permit than a communications service provider that is not a wireless provider, except as directly related to the impairment of wireless service in the immediate area of the proposed small wireless facility and except that an applicant may be required to include construction and engineering drawings and information demonstrating compliance with the criteria in subdivision (j) of this subsection;
(d) An authority may propose a technically feasible alternate utility pole location. The wireless provider shall cooperate with the authority to address the authority's reasonable proposal. The 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;
(e) An authority shall not limit the placement of small wireless antennas by minimum horizontal separation distances;
(f) An authority may require an applicant to include an attestation that the small wireless facilities will be operational for use by a wireless services provider within nine months after the later of the completion of all make-ready work or the permit issuance date unless a delay is caused by lack of commercial power or communications transport facilities to the site. In such case the applicant shall have an extension not to exceed nine months. The authority and applicant may mutually agree to an additional extension;
(g) Within twenty days after receiving an application, an authority shall determine and notify the applicant in writing whether the application is complete. If an application is incomplete, the authority shall specifically identify the missing information in writing. The processing deadline in subdivision (h) of this subsection shall restart upon the first finding of incompleteness. The applicant may resubmit the completed application within thirty days without additional charge. Subsequent findings of incompleteness shall toll the application processing deadline in subdivision (h) of this subsection. The subsequent review shall be limited to the specifically identified information subsequently completed except to the extent material changes have been made by the applicant, other than those required by the authority, in which case a new application and application fee shall be submitted. Subsequent findings of incompleteness will toll the deadline from the time the authority sends notice of incompleteness to the time the applicant provides the missing information. The application processing deadline also may be tolled by agreement of the applicant and the authority;
(h) An application shall be processed on a nondiscriminatory basis and deemed approved if the authority fails to approve or deny the application within ninety days after receipt of the application. An authority may extend the application processing deadline described in subdivision (g) of this subsection for a single period of ten business days if the authority notifies the applicant in advance before the day on which approval or denial is originally due. Upon mutual agreement between the applicant and the authority, the authority may extend the period for consideration of an application for thirty days;
(i) A permit shall authorize an applicant to undertake only certain activities in accordance with this section and does not create a property right or grant authority to the applicant to infringe upon the rights of others who may own or have other interests in a right-of-way, utility easement, or other privately owned property;
(j) 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 of section 86-1236 only if the proposed application:
(i) Materially and demonstrably interferes with the safe operation of traffic control equipment or the right-of-way;
(ii) Materially interferes with sight lines or clear zones for air or land transportation or pedestrians;
(iii) Materially interferes with compliance with the federal Americans with Disabilities Act of 1990 or similar federal or state standards regarding pedestrian access or movement;
(iv) Fails to comply with reasonable and nondiscriminatory spacing requirements of general application adopted by ordinance or resolution 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;
(v) Fails to comply with applicable codes if they are of general applicability and do not apply exclusively to wireless facilities;
(vi) Fails to comply with the authority's aesthetic requirements that are reasonable, objective, and published in advance; or
(vii) Designates the location of a new utility pole within seven feet in any direction of an electrical conductor unless the wireless provider obtains the written consent of the public power supplier that owns or manages the electrical conductor;
(k) An authority shall document the basis for a permit application denial, including any specific code provisions on which the denial was based, and send such documentation to the applicant on or before the day the authority denies the application. 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 resubmitted application within thirty days. Any subsequent review shall be limited to the deficiencies cited in the denial;
(l) An applicant seeking to collocate small wireless facilities within the jurisdiction of a single authority may, at the applicant's discretion, file a consolidated application for up to thirty individual small wireless facilities if the population within the jurisdiction of the authority is fifty thousand people or more, or up to five individual small wireless facilities if the population within the jurisdiction of the authority is less than fifty thousand people, instead of filing a separate application for each individual small wireless facility. Each small wireless facility within a consolidated application is subject to individual review, except that 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 application or be a basis upon which to deny the consolidated application as a whole. If an applicant applies to construct or collocate several small wireless facilities within the jurisdiction of a single authority, the authority shall:
(i) Allow the applicant, at the applicant's discretion, to file a single set of documents that apply to all of the applicant's small wireless facilities; and
(ii) Render a decision regarding all of the applicant's small wireless facilities in a single administrative proceeding unless local requirements require an elected or appointed body to render such decision;
(m) Installation or collocation for which a permit is granted pursuant to this section shall be completed within one year of the later of the completion of all make-ready work or permit issuance date unless a delay is caused by the lack of commercial power or communications transport facilities at the site. In such case the applicant shall have an extension up to nine months. The authority and applicant may mutually agree to an additional extension. Approval of an application authorizes the applicant to maintain and operate the small wireless facilities and any associated utility pole covered by the permit for a period of not less than five years, subject to applicable relocation requirements and the applicant's right to terminate at any time. The authority shall renew such permit for an equivalent duration so long as the applicant is in compliance with the criteria set forth in subdivision (j) of this subsection as such criteria existed at the time the permit was granted;
(n) An authority shall not institute 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; and
(o) Nothing in the Small Wireless Facilities Deployment Act shall be construed to allow any entity to provide communications services without complying with all laws applicable to such providers. Nothing in the act shall be construed to authorize the collocation, installation, placement, maintenance, or operation of any communications facility, including a wireline backhaul facility, other than a small wireless facility or a utility pole, in a right-of-way.
(6)(a) Notwithstanding any other provision of the Small Wireless Facilities Deployment Act, for any construction, operation, collocation, maintenance, management, relocation, or placement of wireless facilities, utility poles, decorative poles, or wireless support structures that occurs above, across, under, or upon a state or federal highway right-of-way, as such term is defined in section 39-1302 , or upon a state-owned utility pole, decorative pole, or wireless support structure, the application process, location, and installation of such facilities, poles, or structures, as such pertain to the present and future use of the right-of-way or state-owned poles or wireless support structures for highway purposes, shall be subject to the rules and regulations, guidance documents, and usual and customary permitting requirements of the State of Nebraska and the Department of Transportation, including, but not limited to, requirements, fees, rates, and deadlines for location and engineering review and response, liability and automobile insurance, indemnification of the Department of Transportation from liability, protection of public safety and property interests, and compliance with federal transportation funding requirements. Nothing in this subdivision affects, modifies, expands, or narrows the application or effect of any federal law, statute, rule, regulation, or order.
(b) Traffic signal utility poles and traffic control devices owned by the Department of Transportation shall not be used for the collocation of small wireless facilities under the Small Wireless Facilities Deployment Act. State highway lighting utility poles or decorative poles may be used for collocation of small wireless facilities only if:
(i) There are insufficient reasonable alternative collocation options at or near the requested location;
(ii) The small wireless facilities can be safely installed, operated, and maintained; and
(iii) The collocation of the small wireless facilities will not violate reasonable wind, ice, weight, and seismic load requirements on state highway lighting utility poles or decorative poles.
(c) Applicants that collocate small wireless facilities on state highway lighting utility poles or decorative poles assume the risk of loss or damage to, or loss of use of, such facilities when such poles are damaged, destroyed, or taken out of service on state property, except to the extent that such loss or damage is due to or caused by the negligence or willful misconduct of the Department of Transportation or its employees, contractors, or agents. This subdivision does not preclude claims against entities other than the Department of Transportation.
(d) The construction, operation, maintenance, collocation, or placement of wireless facilities, utility poles, decorative poles, or wireless support structures shall occur at no cost to the Department of Transportation unless otherwise agreed in advance between an applicant and the department.
(e) The Department of Transportation may set and collect a reasonable application fee to cover its costs in administering the activities described in this subsection, a uniform and nondiscriminatory system of annual occupancy rates for the use and occupancy of state-owned property, and a uniform and nondiscriminatory system for setting fees, rates, terms, and conditions for make-ready work.
(f) If the future maintenance or construction of a state or federal highway by the Department of Transportation requires the moving or relocating of wireless facilities, utility poles, decorative poles, or wireless support structures located within the right-of-way, such facilities, poles, or structures shall be removed or relocated by the owner of the facilities, poles, or structures at the owner's expense and as directed by the department.
(g) Nothing in the Small Wireless Facilities Deployment Act affects or prevents the Department of Transportation from imposing its usual and customary permitting requirements for the deployment of wireless facilities that are not small wireless facilities.
(7) An authority shall not require an application, permit, or other approval or charge fees or rates for routine maintenance of small wireless facilities, replacement of small wireless facilities with small wireless facilities that are substantially similar in weight or windage or the same size or smaller, or for the installation, placement, maintenance, operation, or replacement of microwireless facilities that are strung on cables between existing utility poles in compliance with the National Electrical Safety Code. An authority may require a permit for work that exceeds original weight or windage or requires excavation or closing of sidewalks or vehicular lanes within the right-of-way for such activities.
(8) Any small wireless facility that is not operated for a continuous period of ninety days after completion of initial installation, excluding nonoperation due to a natural disaster or other unforeseeable circumstance or temporary equipment failure, shall be considered abandoned. If a small wireless facility is abandoned, the small wireless facility owner shall notify the authority within thirty days of the abandoned status of such facility and such owner shall remove the abandoned facility. The related utility pole shall also be removed unless such pole is otherwise being used by another utility or is owned by a party other than the owner of the removed small wireless facility.

Legislative History

Source: Laws 2019, LB184, § 37.