2017 -- H 5224 SUBSTITUTE A AS AMENDED

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LC000479/SUB A/2

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     STATE OF RHODE ISLAND

IN GENERAL ASSEMBLY

JANUARY SESSION, A.D. 2017

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A N   A C T

RELATING TO PUBLIC UTILITIES AND CARRIERS - SMALL CELL SITING ACT

     

     Introduced By: Representatives Ucci, Winfield, McKiernan, and Fogarty

     Date Introduced: January 26, 2017

     Referred To: House Corporations

     It is enacted by the General Assembly as follows:

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     SECTION 1. Legislative Findings. Because of the integral role that technology plays in

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economic development and the vitality of the State of Rhode Island and Providence Plantations

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and in the lives of its citizens, the general assembly has determined that a law addressing the

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deployment of wireless technology is of vital interest to the state. Rhode Island is one of the

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foremost states with broadband coverage and capability and must continue to lead in the

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advancement of new technology. Small wireless facilities are critical to delivering wireless access

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to advanced technology, broadband and 911 services to homes, businesses and schools in the

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state. To ensure that the state and those who live and work here continue to benefit from these

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advanced services as soon as possible and to ensure that providers of wireless services have a fair

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and predictable process for the deployment of small wireless facilities, the general assembly

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enacts this "Rhode Island Small Cell Siting Act", which specifies how local authorities may

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regulate the collocation of small wireless facilities and small wireless facility networks.

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     SECTION 2. Title 39 of the General Laws entitled "PUBLIC UTILITIES AND

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CARRIERS" is hereby amended by adding thereto the following chapter:

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CHAPTER 32

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RHODE ISLAND SMALL CELL SITING ACT

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     39-32-1. Definitions.

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     As used in this chapter:

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     (1) "Authority"' means a city, town, or any other state or municipal government

 

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subdivision, agency or entity that is authorized by law to regulate or control the use of the public

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rights-of-way or the construction or installation of poles or wireless facilities or that owns or

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controls property suitable for collocating small wireless facilities. The term does not include the

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state courts.

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     (2) "Authority pole" means a pole owned or controlled by an authority and includes

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metal, composite, concrete, or wood poles as well as decorative poles.

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     (3) "Authority structure" means a building, water tower or other structure owned or

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controlled by an authority, but not an authority pole.

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     (4) "Collocate" means to install, mount, maintain, modify, operate, or replace wireless

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facilities on a pole, including an authority pole, or on a building, water tower or other structure,

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including an authority structure. "Collocation" has a corresponding meaning.

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     (5) "Communications service provider" means a cable operator, as defined in 47 U.S.C.

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§522(5); a provider of information service, as defined in 47 U.S.C. §153(24); a

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telecommunications carrier, as defined in 47 U.S.C. §153(51); or a wireless service provider.

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     (6) "Person" means an individual, corporation, limited liability company, partnership,

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association, trust, or other entity or organization, including an authority.

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     (7) "Pole" means a utility pole, light pole, light standard or similar structure that is used

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in whole or in part for telephone service, wireless service, cable television service, information

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service, electric service, lighting, traffic control, signage or similar function.

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     (8) "Small wireless facility" means a wireless facility with an antenna of no more than six

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(6) cubic feet in volume and associated equipment with a cumulative volume no larger than

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twenty-eight (28) cubic feet. The following types of associated equipment may be located outside

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the primary enclosure and are not included in the calculation of equipment volume: electric

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meter, concealment, telecommunications demarcation box, ground-based enclosures, backup

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power system, grounding equipment, power transfer switch, cut-off switch, and cable and conduit

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runs for the connection of power and other services. Equipment that is concealed from public

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view within or behind an existing structure or concealment is not included in the volume

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calculations.

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     (9) "Wireless facilities" means equipment at a fixed location that enables wireless

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communications between user equipment and a communications network, including, but not

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limited to:

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     (i) Equipment associated with wireless services such as private, broadcast, and public

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safety services, as well as unlicensed wireless services and fixed wireless services such as

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microwave backhaul; and

 

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     (ii) Radio transceivers, antennas, coaxial or fiber-optic cable, regular and backup power

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supplies, and comparable equipment, regardless of technological configuration. The term

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"wireless facilities" includes small wireless facilities but does not include the structure or

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improvements on, under or within which the equipment is collocated; wireline backhaul facilities;

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coaxial or fiber-optic cable that is between wireless support structures or poles; or coaxial or fiber

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optic cable that is otherwise not immediately adjacent to, or directly associated with, an antenna.

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     (10) "Wireless service" means any services using licensed or unlicensed wireless

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spectrum, whether at a fixed location or mobile, provided using wireless facilities.

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     (11) "Wireless service provider" means a person who provides wireless service as well as

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a person who builds, installs, or maintains wireless communications transmission equipment,

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wireless facilities or wireless support structures.

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     39-32-2. Regulation of small wireless facilities.

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     (a) A wireless service provider authorized to do business in this state or a contractor

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acting on its behalf may collocate small wireless facilities within, along, across, upon and under

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any public right-of-way in this state, including state highways and freeways, and may construct

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conduit, cables, and facilities between such small wireless facility and other equipment or

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services located on or adjacent to the supporting pole or other structure, subject to the provisions

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of this chapter.

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     (b) Except as provided in this chapter, an authority shall not prohibit, regulate or charge

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for the collocation of small wireless facilities.

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     (c) Small wireless facilities shall be classified as permitted uses in all zoning districts and

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shall not be subject to zoning review or approval.

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     (d) Nothing in this chapter shall be construed to authorize a person to collocate a small

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wireless facility on a privately owned pole, structure or other private property without the consent

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of the property owner.

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     (e) All agreements between authorities and wireless service providers that are in effect on

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the effective date of this chapter and that relate to the collocation of small wireless facilities in the

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public right-of-way or on authority poles or structures shall remain in effect, subject to any

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termination provisions in such agreements. Notwithstanding the foregoing, at the election of a

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wireless service provider, the rates, fees, terms and conditions established pursuant to this chapter

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shall apply to small wireless facilities that are the subject of an application submitted after the

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effective date of this chapter.

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     39-32-3. Collocation of small wireless facilities on authority poles and authority

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structures.

 

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     An authority may require a person to obtain a building, electrical or a public right-of-way

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use or work permit to collocate small wireless facilities on authority poles or authority structures,

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provided such permits are of general applicability and do not apply exclusively to wireless

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facilities. An authority may not require a permit, other than a public right-of-way work permit, for

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routine maintenance on a previously-approved small wireless facility or to replace a small

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wireless facility with a facility of substantially similar or smaller size and weight. An authority

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shall accept an application for, process and issue a permit allowed under this chapter as follows:

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     (1) An authority shall receive applications for, and process and issue permits for,

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collocating small wireless facilities on a nondiscriminatory basis and in substantially the same

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manner as the permitting of other applicants within the jurisdiction of the authority. An applicant

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for a collocation permit shall not be required to provide more information to obtain a permit than

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communications service providers that are not wireless providers. If consistent with the preceding

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sentence, an authority may require an application to include information sufficient to determine

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whether the collocation meets applicable building or electrical codes or, if applicable, standards

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for construction in the right-of-way, provided such codes and standards are of general

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applicability.

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      (2) An authority may charge a fee to process an application to collocate a small wireless

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facility. The fee shall be no greater than the reasonable, direct and actual costs incurred by the

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authority to process the application, excluding any fees for review of an application charged by

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third parties on a contingency basis or a result-based arrangement, and further excluding any

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costs already recovered by existing fees, rates or taxes paid by a wireless provider. The

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application processing fee shall be no greater than the application processing fee, if any, charged

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by the authority to persons seeking to place a pole in the public way. Except as provided in §39-

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32-5, an applicant shall not be required to pay any additional fees or charges, or perform or

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provide any services not directly related to the collocation, in order to collocate small wireless

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facilities.

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     (3) At its discretion, an applicant shall be allowed to file a consolidated application and

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receive a single permit to collocate small wireless facilities at multiple locations within the

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jurisdiction of the authority.

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     (4) An authority may not institute a moratorium on filing, receiving or processing

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applications or issuing permits or approvals for the collocation of small wireless facilities.

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     (5) All permits regarding the collocation of small wireless facilities shall be of unlimited

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duration but initial construction shall be completed within one hundred eighty (180) days after the

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permit issuance date, unless the authority and wireless provider agree to extend this period or a

 

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delay is caused by a lack of commercial power at the site.

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     (6) Notwithstanding the provisions of §39-32-2(c), a permit for a collocation within an

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historic district as defined in §45-24.1-1.1 shall be subject to historic district commission review

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and approval, in accordance with standards to be adopted by regulation or rule. Such standards

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may include that a collocation meet reasonable design, context, color and stealth and concealment

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requirements and make reasonable accommodation for location within the district. The historic

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district commission may waive one or more standards upon a showing that the standard(s) are not

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reasonably compatible with the particular location of a small wireless facility, or that the

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standard(s) impose an excessive expense. The waiver shall be granted or denied within forty-five

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(45) days after the date of the request for waiver.

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     (7) A permit may require a collocation on an authority pole that is a decorative pole to

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meet objective design standards, including that a collocation meet reasonable location, context,

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color and stealth and concealment requirements. Such standards shall be adopted by ordinance,

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regulation or rule. An authority may waive one or more standards upon a showing that the

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standard(s) are not reasonably compatible with the particular location of a small wireless facility,

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or that the standard(s) impose an excessive expense. The waiver shall be granted or denied within

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forty-five (45) days after the date of the request.

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     39-32-4. Action on permit applications.

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     (a) An authority shall approve an application for a permit under this chapter unless the

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collocation does not meet applicable building or electrical codes or, if applicable, standards for

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construction in the right-of-way, provided such codes and standards are of general applicability.

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The authority must document the basis for any denial, including the specific code provisions or

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standards on which the denial was based, and send the documentation to the applicant on or

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before the day the authority denies an application. The applicant may cure the deficiencies

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identified by the authority and resubmit the application within thirty (30) days of the denial

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without paying an additional processing fee. The authority shall approve or deny the revised

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application within thirty (30) days. Any subsequent denial shall be limited to the deficiencies

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cited in the original denial. Where one or more locations addressed in a consolidated application

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do not meet the criteria of this section, the authority shall allow the application as to all other

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locations.

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     (b) An application shall be deemed approved if the authority fails to approve or deny the

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application within sixty (60) days of submission. If the authority notifies the applicant within

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fourteen (14) days after the initial submission that the application is incomplete and reasonably

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identifies at that time the information that is lacking, the time period stated above shall be tolled

 

LC000479/SUB A/2 - Page 5 of 9

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during the time it takes the applicant to respond. No other request for additional information shall

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toll such time periods.

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     (c) A person whose application or revised application is denied by an authority may

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appeal to the superior court within thirty (30) days of the denial. The superior court shall have

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jurisdiction to determine all disputes arising under this chapter.

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     39-32-5. Additional terms for collocation on authority poles and structures.

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     (a) Within six (6) months of receiving its first request to collocate small wireless facilities

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on authority poles located within the public rights-of-way, but in no event later than April 1,

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2018, an authority shall establish by ordinance, regulation or rule nondiscriminatory,

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competitively neutral and commercially reasonable rates, terms and conditions for such

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collocation that are consistent with the provisions of this chapter. Aside from the application

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processing fee allowed under §39-32-3, an authority shall not charge on an annual recurring basis

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more for such a collocation than one hundred dollars ($100.00) or the rate produced by applying

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the formula adopted by the Federal Communications Commission for telecommunications

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attachments under 47 U.S.C. §224(e) Provided, further, that all requests to collocate small

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wireless facilities on authority poles located within the public rights-of-way after June 30, 2020

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shall be subject to a maximum annual recurring fee of two hundred dollars ($200). Such fee

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limitation shall not apply to authority structures.

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     (b) An authority shall authorize the collocation of small wireless facilities on authority

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poles not located within the public rights-of-way and on authority structures to the same extent

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the authority permits access to such poles and structures for other commercial projects or uses,

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and may authorize such collocation if the authority has not previously permitted such access.

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Such collocation shall be subject to reasonable and nondiscriminatory rates, terms and conditions

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as provided by ordinance or in one or more agreements between the wireless provider and the

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authority. An authority may not charge on an annual recurring basis more for such a collocation

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than the amount charged for similar commercial projects or uses to occupy or use the same

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amount of space on similarly situated property.

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     39-32-6. Collocation of small wireless facilities on private poles and structures.

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     (a) An authority may not prohibit, regulate or charge for the collocation of small wireless

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facilities on poles or structures other than authority poles and authority structures.

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     (b) A wireless service provider may install poles in the public rights-of-way in order to

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collocate small wireless facilities, subject to request and authority approval. An authority shall

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receive, process and approve such requests on a non-discriminatory basis and in substantially the

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same manner and on substantially the same terms and conditions as the authority applies to

 

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similar requests by other persons seeking to place poles in the public ways.

 

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     SECTION 3. This act shall take effect upon passage.

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EXPLANATION

BY THE LEGISLATIVE COUNCIL

OF

A N   A C T

RELATING TO PUBLIC UTILITIES AND CARRIERS - SMALL CELL SITING ACT

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     This act would establish the "Small Cell Siting Act", which specifies how local

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authorities may regulate the collocation of small wireless facilities and small wireless facility

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networks.

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     This act would take effect upon passage.

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