§ 58-11-850 — Rates and fees for the collocation of a small wireless facility.

(A) Except as provided in Section 58-11-830(F), this section governs an authority's rates and fees for the collocation of a small wireless facility and the installation, modification, or replacement of an associated pole. (B) Except to the extent permitted by this article or otherwise specifically authorized by state or federal law including, but not limited to, Article 20, Chapter 9, Title 58 and Chapter 12, Title 58, an authority may not: (1) adopt or enforce any regulations or requirements on the placement or operation of communications facilities in a ROW by a communications service provider authorized by federal, state, or local law to operate in a ROW; (2) regulate any communications services; or (3) impose or collect any tax, fee, or charge for the provision of any communications service over the communications service provider's communications facilities in a ROW. (C) Without limiting the foregoing, a wireless provider is authorized to deploy small wireless facilities and associated poles in a ROW in compliance with this article regardless of whether the provider has sought or obtained any certificate or other authority from the Public Service Commission of South Carolina provided; however, that nothing in this article prohibits an authority from requiring proof that a wireless services provider is licensed by the FCC or otherwise authorized to provide service within the geographic jurisdiction of the authority. (D)(1) A municipality may charge an application fee to a wireless provider regardless of whether the provider is subject to a business license tax that is or may be imposed upon it pursuant to Section 58-9-2220 and a franchise, consent, or administrative fee that is or may be imposed upon it pursuant to Section 58-9-2230. (2) A municipality may charge an application fee to a communications service provider regardless of whether the provider is subject to a franchise fee that is or may be imposed upon it pursuant to Section 58-12-330. (3) An authority may charge an application fee, so long as the fee is reasonable, nondiscriminatory, and recovers no more than an authority's direct costs for processing an application provided; however, the fee may not exceed: (a) for applications to collocate small wireless facilities on existing poles or structures, one hundred dollars each for the first five small wireless facilities in the same application and fifty dollars for each additional small wireless facility in the same application; or (b) for applications to collocate small wireless facilities on new poles, one thousand dollars for each pole, which fee covers both the installation of the new pole and the collocation on the new pole of associated small wireless facilities that are a permitted use in accordance with the specifications in Section 58-11-820(D); and (c) for applications to collocate small wireless facilities on modified or replacement poles, two hundred fifty dollars for each pole, which fee covers both the modification or replacement of the pole and the collocation on the pole of associated small wireless facilities that are permitted uses in accordance with the specifications in Section 58-11-820(D). (4)(a) Beginning on the effective date of this section and ending upon completion of the fourth year immediately following the effective date of this section, a municipality with a need for consultation in the review of a permit application may engage an outside consultant for consultation, review, and processing of the application and may charge the applicant the fees described in subitem (b) for such engagement. The fee the authority charges the applicant for such review shall not be used for: (i) travel expenses incurred in the review of a collocation application by an outside consultant or other third party; or (ii) direct payment or reimbursement for an outside consultant or other third party based on a contingent fee basis or results-based arrangement. (b) The fee the municipality charges an applicant pursuant to subitem (a) may not exceed the lesser of: (i) the amount the municipality pays the outside consultant for engagements that are consistent with subitem (a); or (ii) the following amounts: (aa) for applications to collocate small wireless facilities on existing poles or structures: seventy dollars each for the first five small wireless facilities in the same application and thirty-five dollars for each additional small wireless facility in the same application during the first year immediately following the effective date of this section; sixty dollars each for the first five small wireless facilities in the same application and thirty dollars for each additional small wireless facility in the same application during the second year immediately following the effective date of this section; fifty dollars each for the first five small wireless facilities in the same application and twenty-five dollars for each additional small wireless facility in the same application during the third year immediately following the effective date of this section; and forty dollars each for the first five small wireless facilities in the same application and twenty dollars for each additional small wireless facility in the same application during the fourth year immediately following the effective date of this section; (bb) for applications to collocate small wireless facilities on new poles: six hundred fifty dollars during the first year immediately following the effective date of this section; five hundred twenty dollars during the second year immediately following the effective date of this section; four hundred fifty-five dollars during the third year immediately following the effective date of this section; and three hundred ninety-nine dollars during the fourth year immediately following the effective date of this section; and (cc) for applications to collocate small wireless facilities on modified or replacement poles: two hundred dollars during the first year immediately following the effective date of this section; one hundred eighty-five dollars during the second year immediately following the effective date of this section; one hundred fifty dollars during the third year immediately following the effective date of this section; and one hundred twenty-five dollars during the fourth year immediately following the effective date of this section. (c) In any dispute concerning the appropriateness of a fee under this subitem, the municipality has the burden of proving that the fee meets the requirements of this subitem. (E)(1) A municipality may charge a rate for the occupancy and use of the ROW to a wireless provider regardless of whether the provider is subject to a business license tax that is or may be imposed upon it pursuant to Section 58-9-2220 and a franchise, consent, or administrative fee that is or may be imposed upon it pursuant to Section 58-9-2230. (2) A municipality may charge a rate for the occupancy and use of the ROW to a communications service provider regardless of whether the provider is subject to a franchise fee that is or may be imposed upon it pursuant to Section 58-12-330. (3) An authority may charge a wireless provider for the occupancy and use of the ROW, so long as such rate is reasonable, nondiscriminatory, and does not exceed: one hundred dollars per year for each small wireless facility collocated on any existing or replacement pole, including an existing or replacement authority pole; or two hundred dollars per year for each small wireless facility collocated on a new pole, other than a replacement pole, which two hundred dollar rate shall cover the new pole and the small wireless facility collocated on it. (F)(1) An authority may charge a rate for collocation of a small wireless facility on an authority pole, but any such rate must be reasonable, nondiscriminatory, and recover no more than the authority's direct costs associated with such collocation, not to exceed fifty dollars per authority pole per year. (2) Other than requiring a wireless provider to pay attachment rates as permitted by item (1), an authority may not require any person or entity with facilities installed on a pole or support structure to pay any additional attachment rates or fees as a result of the granting of an application for a permit under this article. (G) The applicant or the person that owns or operates the small wireless facility collocated in the ROW may remove its small wireless facilities at any time from the ROW upon not less than thirty days' prior written notice to the authority and may cease paying to the authority any applicable fees and rates for such use, as of the date of the actual removal of the small wireless facilities. In the event of such removal, the ROW shall be, to the extent practicable in the reasonable judgment of the authority, restored to its condition prior to the removal. If the applicant fails, to the extent practicable in the reasonable judgment of the authority, to return the ROW to its condition prior to the removal within ninety days of the removal, the authority may, at the sole discretion of the authority, restore the ROW to such condition and charge the applicant the authority's reasonable, documented cost of removal and restoration, plus a penalty not to exceed five hundred dollars. The authority may suspend the ability of the applicant to receive any new permits from the authority until the applicant has paid the amount assessed for such restoration, if any provided; however, that the authority shall not suspend such ability of any applicant that has deposited the amount in controversy in escrow pending an adjudication of the merits of the dispute by the Administrative Law Court.

Legislative History

HISTORY: 2020 Act No. 179 (H.4262), SECTION 1, eff September 29, 2020.