Chapter 18A.85ELIGIBLE FACILITIES MODIFICATION CODE (WIRELESS TELECOMMUNICATIONS)

Sections:

18A.85.010
Purpose.
18A.85.020
Definitions.
18A.85.030
Application Review.
18A.85.010Purpose.

This chapter implements Section 6409(a) of the Middle Class Tax Relief and Job Creation Act of 2012 (“Spectrum Act”), as interpreted by the Federal Communications Commission’s (“FCC” or “Commission”) Acceleration of Broadband Deployment Report and Order, which requires a state or local government to approve any eligible facilities request for a modification of an existing tower or base station that does not result in a substantial change to the physical dimensions of such tower or base station. (Ord. 650 1 (part), 2016.)

18A.85.020Definitions.

For the purposes of this chapter, the terms used have the following meanings:

a. Base Station. A structure or equipment at a fixed location that enables FCC-licensed or authorized wireless communications between user equipment and a communications network. The term does not encompass a tower as defined herein or any equipment associated with a tower. “Base station” includes, without limitation:

i. Equipment associated with wireless communications services such as private, broadcast, and public safety services, as well as unlicensed wireless services and fixed wireless services such as microwave backhaul.

ii. Radio transceivers, antennas, coaxial or fiber-optic cable, regular and backup power supplies, and comparable equipment, regardless of technological configuration (including distributed antenna systems (DAS) and small-cell networks).

iii. Any structure other than a tower that, at the time the relevant application is filed with the City under this section, supports or houses equipment described in subsections (a)(i) and (ii) of this section that has been reviewed and approved under the applicable zoning or siting process, or under another State or local regulatory review process, even if the structure was not built for the sole or primary purpose of providing that support. The term does not include any structure that, at the time the relevant application is filed with the City under this section, does not support or house equipment described in subsections (a)(i) and (ii) of this section.

b. Collocation. The mounting or installation of transmission equipment on an eligible support structure for the purpose of transmitting and/or receiving radio frequency signals for communications purposes.

c. Eligible Facilities Request. Any request for modification of an existing tower or base station that does not substantially change the physical dimensions of such tower or base station, involving:

i. Collocation of new transmission equipment;

ii. Removal of transmission equipment; or

iii. Replacement of transmission equipment.

d. Eligible Support Structure. Any tower or base station as defined in this section; provided, that it is existing at the time the relevant application is filed with the City under this section.

e. Existing. A constructed tower or base station is existing for purposes of this section if it has been reviewed and approved under the applicable zoning or siting process, or under another State or local regulatory review process; provided, that a tower that has not been reviewed and approved because it was not in a zoned area when it was built, but was lawfully constructed, is existing for purposes of this section.

f. Site. For towers other than towers in the public rights-of-way, the current boundaries of the leased or owned property surrounding the tower and any access or utility easements currently related to the site, and, for other eligible support structures, further restricted to that area in proximity to the structure and to other transmission equipment already deployed on the ground.

g. Substantial Change. A modification substantially changes the physical dimensions of an eligible support structure if it meets any of the following criteria:

i. For towers other than towers in the public rights-of-way, it increases the height of the tower by more than 10 percent or by the height of one additional antenna array with separation from the nearest existing antenna not to exceed 20 feet, whichever is greater; for other eligible support structures, it increases the height of the structure by more than 10 percent or more than 10 feet, whichever is greater;

ii. For towers other than towers in the public rights-of-way, it involves adding an appurtenance to the body of the tower that would protrude from the edge of the tower more than 20 feet, or more than the width of the tower structure at the level of the appurtenance, whichever is greater; for other eligible support structures, it involves adding an appurtenance to the body of the structure that would protrude from the edge of the structure by more than six feet;

iii. For any eligible support structure, it involves installation of more than the standard number of new equipment cabinets for the technology involved, but not to exceed four cabinets; or, for towers in the public rights-of-way and base stations, it involves installation of any new equipment cabinets on the ground if there are no preexisting ground cabinets associated with the structure, or else involves installation of ground cabinets that are more than 10 percent larger in height or overall volume than any other ground cabinets associated with the structure;

iv. It entails any excavation or deployment outside the current site;

v. It would defeat the concealment elements of the eligible support structure; or

vi. It does not comply with conditions associated with the siting approval of the construction or modification of the eligible support structure or base station equipment; provided, however, that this limitation does not apply to any modification that is noncompliant only in a manner that would not exceed the thresholds identified in subsections (g)(i) through (iv) of this section.

h. Transmission Equipment. Equipment that facilitates transmission for any FCC-licensed or authorized wireless communication service, including, but not limited to, radio transceivers, antennas, coaxial or fiber-optic cable, and regular and backup power supply. The term includes equipment associated with wireless communications services including, but not limited to, private, broadcast, and public safety services, as well as unlicensed wireless services and fixed wireless services such as microwave backhaul.

i. Tower. Any structure built for the sole or primary purpose of supporting any FCC-licensed or authorized antennas and their associated facilities, including structures that are constructed for wireless communications services including, but not limited to, private, broadcast, and public safety services, as well as unlicensed wireless services and fixed wireless services such as microwave backhaul, and the associated site. (Ord. 650 1 (part), 2016.)

18A.85.030Application Review.

a. Application. The City shall prepare and make publicly available an application form which shall be limited to the information necessary for the City to consider whether an application is an eligible facilities request. The application may not require the applicant to demonstrate a need or business case for the proposed modification.

b. Type of Review. Upon receipt of an application for an eligible facilities request pursuant to this chapter, the City shall review such application to determine whether the application so qualifies.

c. Time Frame for Review. Within 60 days of the date on which an applicant submits an application seeking approval under this chapter, the City shall approve the application unless it determines that the application is not covered by this chapter.

d. Tolling of the Time Frame for Review. The 60-day review period begins to run when the application is filed, and may be tolled only by mutual agreement by the City and the applicant, or in cases where it is determined that the application is incomplete. The time frame for review is not tolled by a moratorium on the review of applications.

i. To toll the time frame for incompleteness, the City must provide written notice to the applicant within 30 days of receipt of the application, specifically delineating all missing documents or information required in the application.

ii. The time frame for review begins running again when the applicant makes a supplemental submission in response to jurisdiction’s notice of incompleteness.

iii. Following a supplemental submission, the City will notify the applicant within 10 days that the supplemental submission did not provide the information identified in the original notice delineating missing information. The time frame is tolled in the case of second or subsequent notices pursuant to the procedures identified in this subsection (d). Second or subsequent notices of incompleteness may not specify missing documents or information that were not delineated in the original notice of incompleteness.

e. Interaction with Section 332(c)(7). If the City determines that the applicant’s request is not covered by Section 6409(a) as delineated under this chapter, the presumptively reasonable time frame under Section 332(c)(7), as prescribed by the FCC’s Shot Clock order, will begin to run from the issuance of the City’s decision that the application is not a covered request. To the extent such information is necessary, the City may request additional information from the applicant to evaluate the application under Section 332(c)(7)10, pursuant to the limitations applicable to other Section 332(c)(7) reviews.

f. Failure to Act. In the event the City fails to approve or deny a request seeking approval under this chapter within the time frame for review (accounting for any tolling), the request shall be deemed granted. The deemed grant does not become effective until the applicant notifies the applicable reviewing authority in writing after the review period has expired (accounting for any tolling) that the application has been deemed granted.

g. Remedies. Applicants and the City may bring claims related to Section 6409(a) to any court of competent jurisdiction. (Ord. 650 1 (part), 2016.)