§ 11-36-503 — Rights and limitations on authorities and wireless

providers. A. The provisions of this section shall only apply to the collocation of small wireless facilities by a wireless provider in the right-of-way and the deployment of utility poles to support small wireless facilities by a wireless provider in the right-of- way. B. An authority may not enter into an exclusive arrangement with any person for use of the right-of-way for the collocation of small wireless facilities or the installation, operation, marketing, modification, maintenance or replacement of utility poles. C. An authority may only charge a wireless provider a rate or fee for the use of the right-of-way with respect to the collocation of small wireless facilities or the installation, maintenance, modification, operation or replacement of a utility pole in the right-of-way, if the authority charges nonpublic entities for use of the right-of-way. Notwithstanding the foregoing, an authority is permitted, on a nondiscriminatory basis, to refrain from charging any rate to a wireless provider for the use of the right-of-way. The rate for use of the right-of-way is provided in Section 6 of this act. D. Subject to the provisions of this section and approval of an application pursuant to Section 4 of this act, a wireless provider shall have the right, as a permitted use not subject to zoning review or approval, to collocate small wireless facilities and install, maintain, modify, operate and replace utility poles along, across, upon and under the right-of-way. Such structures and facilities shall be so installed and maintained as not to obstruct or hinder the usual travel or public safety on such right-of-way or obstruct the legal use of such right-of-way by other occupants of the right-of-way, including public utilities, or violate right-of- way regulations of general application that are consistent with this act. E. Each new or modified utility pole installed in the right-of- way shall not exceed the greater of: 1. Ten (10) feet in height above the tallest existing utility pole in place as of the effective date of this act located within five hundred (500) feet of the new pole in the same right-of-way; or 2. Fifty (50) feet above ground level. New small wireless facilities in the right-of-way may not extend more than ten (10) feet above an existing utility pole in place as of the effective date of this act or, for small wireless facilities on a new utility pole, above the height permitted for a new utility pole under this section. F. A wireless provider shall have the right to collocate a small wireless facility and install, maintain, modify, operate and replace a utility pole that exceeds the height limits in subsection E of this section along, across, upon and under the right-of-way, subject to applicable zoning or other land-use regulations. G. An authority may adopt written guidelines establishing reasonable and objective stealth or concealment criteria for small wireless facilities in designated areas, reasonable and objective design criteria for small wireless facilities to be collocated on decorative poles and reasonable and objective design criteria for utility poles deployed in areas with decorative poles. Such guidelines may be adopted by any appropriate means, including without limitation by inclusion in the authority's zoning code, but such inclusion shall not subject small wireless facilities and utility poles classified as permitted uses in subsection D of this section to zoning review. Such guidelines may be adopted only if they apply on a nondiscriminatory basis to all other occupants of the right-of-way, including the authority. A wireless provider that seeks to collocate small wireless facilities on a decorative pole shall comply with Section 4 of this act. A wireless provider that is required to replace a decorative pole at its expense in compliance with Section 5 of this act shall conform the new decorative pole to the design aesthetics and material of the decorative pole(s) being replaced. H. Wireless providers shall comply with reasonable and nondiscriminatory requirements that prohibit communications service providers from installing utility poles or other structures in the right-of-way in an area designated solely for underground or buried cable and utility facilities where: 1. The authority has required all cable and utility facilities other than authority poles and attachments to be placed underground (i) by a date certain before the application is submitted or (ii) by a date certain within two (2) years after the application is submitted, if relocation of facilities has commenced; 2. The authority does not prohibit the replacement of authority poles in the designated area; and 3. The authority permits wireless providers to seek a waiver of the undergrounding requirements for the placement of a new utility pole to support small wireless facilities, which waivers shall be addressed in a nondiscriminatory manner. I. Subject to Section 4 of this act and subsection D of this section, and except for facilities excluded from evaluation for effects on historic properties under 47 C.F.R., Section 1.1307(a)(4) of the FCC rules, an authority may require reasonable, technically feasible, nondiscriminatory and technologically neutral design or concealment measures in a historic district. Any such design or concealment measures may not have the effect of prohibiting any provider's technology, nor may any such measures be considered a part of the small wireless facility for purposes of the size restrictions in the definition of small wireless facility. J. The authority, in the exercise of its administration and regulation related to the management of the right-of-way, must be competitively neutral with regard to other users of the right-of- way, including that terms may not be unreasonable or discriminatory and may not violate any applicable law. K. The authority may require a wireless provider to repair all damage to the right-of-way directly caused by the activities of the wireless provider in the right-of-way and to return the right-of-way to its functional equivalence 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 written notice, the authority may effect those repairs and charge the applicable party the reasonable, documented cost of such repairs. A wireless provider shall be required to comply with right-of-way and vegetation management practices adopted by the authority that apply to all occupants of the right-of-way. L. Nothing in this act precludes an authority from adopting reasonable and nondiscriminatory requirements with respect to the removal of abandoned small wireless facilities. A small wireless facility that is not operated for a continuous period of twelve (12) months shall be considered abandoned, and the owner of the facility must remove the small wireless facility within ninety (90) days after receipt of written notice from the authority notifying the owner of the abandonment. The notice shall be sent by certified or registered mail, return receipt requested, by the authority to the owner at the last-known address of the owner. If the owner neither provides the authority written notice that the small wireless facility has not been out of operation for a continuous period of twelve (12) months nor removes the small wireless facility within the ninety-day period, the authority may remove the small wireless facility, take ownership of the small wireless facility and assess the cost of removal to the owner.

Legislative History

Added by Laws 2018, c. 140, § 3, eff. Nov. 1, 2018.