Reference is to the bill as introduced.
Amend the bill, as and if amended, by striking all after the enacting words and inserting:
/ SECTION 1. Chapter 11, Title 58 of the 1976 Code is amended by adding:
Section 58-11-800. (A)
This article must be known and may be cited
as the 'South Carolina Small Wireless Facilities Deployment
Act'.
(B) The General
Assembly finds that:
(1)
the deployment of small wireless facilities and other
next-generation wireless and broadband network facilities is a
matter of statewide concern and interest;
(2)
wireless and broadband products and services are a
significant and continually growing part of the state's economy;
accordingly, encouraging the development of strong and robust
wireless and broadband communications networks throughout the
state is integral to the state's economic competitiveness;
(3)
rapid deployment of small wireless facilities will serve
numerous important statewide goals and public policy objectives
including, without limitation, meeting growing consumer demand
for wireless data, increasing competitive options for
communications services available to the state's residents;
promoting the ability of the state's citizens to communicate
with other citizens and with their state and local governments;
and promoting public safety;
(4)
small wireless facilities, including facilities commonly
referred to as small cells and distributed antenna systems, are
deployed most effectively in the rights of way (ROW);
(5)
to meet the key objectives of this article, wireless
providers must have access to the ROW and the ability to attach
to infrastructure in the ROW to densify their networks and
provide next generation wireless services;
(6)
uniform rates and fees for the permitting and deployment
of small wireless facilities in the ROW and on authority
infrastructure, including poles, throughout the State is
reasonable and will encourage the development of robust
next-generation wireless and broadband networks for the benefit
of citizens throughout the State;
(7)
the procedures, rates and fees in this article are fair
and reasonable when viewed from the perspective of the state's
citizens and the state's interest in having robust, reliable,
and technologically advanced wireless and broadband networks;
and reflect a balancing of the interests of the wireless
providers deploying new facilities and the interests of
authorities in recovering their costs of managing access to the
ROW and the attachment space provided on authority
infrastructure in such ROW; and
(8)
this article fully occupies the entire field governing the
placement and regulation of small wireless facilities and
associated wireless support structures and poles in the ROW, and
it supersedes and preempts any ordinance, resolution, rule, or
similar matter adopted by an authority that purports to address
or otherwise regulate the placement of such small wireless
facilities, wireless support structures, and poles in the ROW.
Section 58-11-810.
For purposes of this article:
(1) 'Antenna'
means:
(a)
communications equipment that transmits or receives
electromagnetic radio frequency signals used in the provision of
wireless services; or
(b)
similar equipment used for the transmission or reception
of surface waves.
(2) 'Applicable codes'
means uniform building, fire, electrical, plumbing, or
mechanical codes adopted by a recognized national code
organization, or local amendments to those codes that are of
general application, address public safety, and are consistent
with this article.
(3) 'Applicant' means
any person that submits an application.
(4) 'Application' means
a request submitted by an applicant to an authority:
(a)
for a permit to collocate small wireless facilities;
or
(b)
to approve the installation, modification, or replacement
of a pole or wireless support structure.
(5) 'Authority' means
any county, municipality, or consolidated government or any
agency, district, subdivision or instrumentality thereof.
(6) 'Authority pole'
means a pole owned, managed, or operated by or on behalf of an
authority, provided however, that such term shall not include
poles, support structures, electric transmission structures, or
equipment of any type that are part of a municipally owned or
municipally controlled electric plant or system for furnishing
of electricity to the public for compensation.
(7) 'Collocate or
collocation' means to install, mount, maintain, modify, operate,
or replace small wireless facilities on or adjacent to a
wireless support structure or pole.
(8) 'Communications
facility' means the set of equipment and network components,
including wires, cables, surface wave couplers, and associated
facilities used by a cable operator, as defined in 47 U.S.C.
Section 522(5); a telecommunications carrier, as defined in 47
U.S.C. Section 153(51); a provider of information service, as
defined in 47 U.S.C. Section 153(24); or a wireless services
provider to provide communications services, including cable
service, as defined in 47 U.S.C. Section 522(6);
telecommunications service, as defined in 47 U.S.C. Section
153(53); an information service, as defined in 47 U.S.C. Section
153(24); wireless service; surface wave communication, or other
one-way or two-way communications service.
(9) 'Communications
network' means a network used to provide communications
service.
(10) 'Communications
service' means cable service as defined in 47 U.S.C. 522(6),
information service as defined in 47 U.S.C. 153(24),
telecommunications service as defined in 47 U.S.C 153(53), or
wireless service.
(11) 'Communications
service provider' means a cable operator, as defined in 47
U.S.C. Section 522(5); a provider of information service, as
defined in 47 U.S.C. Section 153(24); a telecommunications
carrier, as defined in 47 U.S.C., Section 153(51); or a wireless
provider.
(12) 'Compliant
provision' means an enactment addressing aesthetics,
undergrounding, or historical districts that adopts regulations
that are:
(a)
no more burdensome than those applied to other types of
infrastructure deployments in the rights of way;
(b)
reasonable;
(c)
objective;
(d)
published within thirty days prior to becoming applicable
with regard to any wireless provider; and
(e)
not an effective prohibition of service that is prohibited
by federal law.
(13) 'Decorative pole'
means an authority pole that is specially designed and placed
for aesthetic purposes and on which no appurtenances or
attachments, other than a small wireless facility or specially
designed informational or directional signage or temporary
holiday or special event attachments, have been placed or are
permitted to be placed according to nondiscriminatory municipal
rules or codes.
(14) 'Enactment' means
any ordinance, rule, policy, or equivalently binding measure
adopted by an authority.
(15) 'FCC' means the
Federal Communications Commission of the United States.
(16) 'Fee' means a
one-time, nonrecurring charge.
(17) 'Historic
district' means a group of buildings, properties, or sites that
are either:
(a)
listed in the National Register of Historic Places or
formally determined eligible for listing by the Keeper of the
National Register, the individual who has been delegated the
authority by the federal agency to list properties and determine
their eligibility for the National Register, in accordance with
Section VI.D.1.a.i-v of the Nationwide Programmatic Agreement
codified at 47 C.F.R. Part 1, Appendix C; or
(b)
a registered historic district pursuant to state law as of
this article's effective date.
(18) 'Law' means
federal, state, or local law, statute, common law, code, rule,
regulation, order, or ordinance.
(19) 'Micro wireless
facility' means a small wireless facility that meets the
following qualifications:
(a)
is not larger in dimension than twenty-four inches in
length, fifteen inches in width, and twelve inches in height;
and
(b)
any exterior antenna that is no longer than eleven
inches.
(20) 'Network interface
device' means the telecommunications demarcation device and
cross connect point pole demarcating the boundary with any
wireline backhaul facility and which is on or adjacent to the
pole or support structure supporting the small wireless
facility.
(21) 'Permit' means a
written authorization, in electronic or hard copy format,
required to be issued by an authority to initiate, continue, or
complete the collocation of a small wireless facility or the
installation, modification, or replacement of a pole or
decorative pole upon which a small wireless facility is
collocated.
(22) 'Person' means an
individual, corporation, limited liability company, partnership,
association, trust, or other entity or organization, including
an authority.
(23) 'Pole' means a
vertical pole such as a utility, lighting, traffic, or similar
pole made of wood, concrete, metal, or other material that is
lawfully located or to be located within a right of way
including, without limitation, a replacement pole and an
authority pole. Such term shall not include a support structure
or electric transmission structure.
(24) 'Rate' means a
recurring charge.
(25) 'Rights of way' or
'ROW' means the area through, upon, over, or under a road,
highway, street, sidewalk, alley, or similar property; provided,
however, that such term shall apply only to property or any
interest therein that is under the ownership or control of an
authority and shall not include property or any interest therein
acquired for or devoted to a federal interstate highway.
(26) 'Small wireless
facility' means radio transceivers; surface wave couplers;
antennas; coaxial or fiber optic cable located on a pole or
support structure, immediately adjacent to a pole or support
structure, or directly associated with equipment located on a
pole or support structure and within a one hundred-yard radius
of the pole or support structure; regular and backup power
supplies and rectifiers; and associated ancillary equipment,
regardless of technological configuration, at a fixed location
or fixed locations that enable communication or surface wave
communication between user equipment and a communications
network and that meets both of the following qualifications: (i)
each wireless provider's antenna could fit within an enclosure
of no more than six cubic feet in volume; and (ii) all other
wireless equipment associated with the small wireless facility,
whether ground or pole mounted, is cumulatively no more than
twenty-eight cubic feet in volume. The following types of
associated ancillary equipment are not included in the
calculation of the volume of all other wireless equipment
associated with any such facility: electric meters, concealment
elements, network interface devices, grounding equipment, power
transfer switches, cut-off switches, and vertical cable runs for
the connection of power and other services. The term 'small
wireless facility' does not include: the pole, support
structure, or improvements on, under, or within which the
equipment is located or collocated or to which the equipment is
attached; wireline backhaul facilities; or coaxial or
fiber-optic cable that is between small wireless facilities,
poles, or support structures or that is otherwise not
immediately adjacent to or directly associated with a particular
antenna.
(27) 'Support
structure' means a building, billboard, water tank, or any other
structure to which a small wireless facility is or may be
attached. Such term shall not include a decorative pole,
electric transmission structure, or pole.
(28) 'Technically
feasible' means that by virtue of engineering or spectrum usage
the proposed placement for a small wireless facility, or its
design, concealment measures, or site location can be
implemented without a reduction in the functionality of the
small wireless facility.
(29) 'Wireless
communications' means any communications using licensed or
unlicensed spectrum, including the use of Wi-Fi, whether at a
fixed location or mobile, provided to the public.
(30) 'Wireless
infrastructure provider' means any person, including a person
authorized to provide telecommunications service in the State,
acting to build or install wireless communication transmission
equipment, wireless facilities or wireless support structures,
but that is not a wireless services provider.
(31) 'Wireless
provider' means a wireless infrastructure provider or a wireless
services provider.
(32) 'Wireless
services' means any services using licensed or unlicensed
spectrum, including the use of Wi-Fi, whether at a fixed
location or mobile, provided to the public.
(33) 'Wireless services
provider' means a person who provides wireless services.
(34) 'Wireline backhaul
facility' means an above-ground or underground wireline facility
used to transport communications between a small wireless
facility network interface device and a network or another small
wireless network interface device.
Section 58-11-815. (A)
An agreement or enactment that does not
fully comply with this section applies only to small wireless
facilities and associated poles and support structures that were
installed before October 1, 2019, and must be deemed invalid and
unenforceable beginning October 1, 2019, until amended to fully
comply with this article. If an agreement or enactment is
invalid and unenforceable in accordance with this section, small
wireless facilities and associated utility poles that were
installed before October 1, 2019, pursuant to such agreement or
ordinance may remain installed at the option of the wireless
provider and must be operated and maintained under the
provisions of this article.
(B)(1) No later than
October 1, 2019, an authority may adopt an enactment that:
(a)
adopts compliant provisions in lieu of the provisions of
Section 58-11-820(F)(2), (G), and (H);
(b) authorizes
wireless providers to install and operate small wireless
facilities and associated poles and support structures in strict
compliance with all other provisions of this article; and
(c)
if the authority is a municipality, grants any consent
that has not previously been granted, either expressly or
otherwise, for wireless providers to install and operate small
wireless facilities and associated poles and support structures
in compliance with subitems (a) and (b).
(C) In the absence of
an enactment that strictly complies with subsection (B), and
until such an enactment is adopted, if at all, a wireless
provider may install and operate small wireless facilities and
associated poles and support structures under the requirements
of this article on and after October 1, 2019.
(D)(1) An authority
must not require a wireless provider to enter into an agreement
including, without limitation, a franchise agreement whether
memorialized in an ordinance or in any other manner, to
implement this article, but nothing in this article prohibits an
authority and a wireless provider from voluntarily entering one
or more such agreements after the effective date of this
article, including such agreements with rates, fees, and other
terms that differ from those in this article, provided however,
that the authority must make each such agreement available for
public inspection and available for adoption upon the same terms
and conditions to any requesting wireless provider.
(2)
Agreements entered into pursuant to item (1) are
public-private arrangements and are matters of legitimate and
significant statewide concern.
Section 58-11-820. (A)
The provisions of this section shall apply
only to activities of a wireless provider within the ROW to
deploy small wireless facilities and associated poles.
(B) An authority may
not enter into an exclusive arrangement with any person for use
of the ROW for the collocation of small wireless facilities or
the installation, operation, marketing, modification,
maintenance, or replacement of poles.
(C) Subject to the
exceptions pursuant to Section 58-11-830(E)(1), an authority
only may charge a wireless provider a nondiscriminatory rate or
fee for the use of the ROW with respect to the collocation of
small wireless facilities or the installation, maintenance,
modification, operation, or replacement of a pole in the ROW, if
the authority charges other entities for use of the ROW.
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 ROW. The rate for use of
the ROW is provided in Section 58-11-850.
(D) Subject to the
provisions of this section, 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 poles in the ROW. These
structures and facilities must be so installed and maintained as
not to obstruct or hinder the usual travel or public safety in
the ROW or obstruct the legal use of the ROW by utilities.
(E)(1) Each new or
modified pole installed in the ROW may not exceed the greater of
ten feet in height above the tallest existing pole in place as
of the effective date of this article located within five
hundred feet of the new pole in the same ROW, or fifty feet
above ground level.
(2)
New small wireless facilities in the ROW may not extend
more than ten feet above an existing pole in place as of the
effective date of this article; or for small wireless facilities
on a new pole, above the height permitted for a new pole
pursuant to this section.
(3)
Subject to the provisions of this section and applicable
zoning regulations, a wireless provider must have the right to
collocate a small wireless facility and install, maintain,
modify, operate, and replace a pole that exceeds the height
limits set forth in item (1) in the ROW.
(F)(1) A wireless
provider must be permitted to collocate on or replace decorative
poles when necessary to deploy a small wireless facility.
(2)
An authority may require the collocation or decorative
pole replacement to reasonably conform to the design aesthetics
of the original decorative pole or poles, provided these
requirements are technically feasible.
(G)(1) A wireless
provider shall comply with reasonable and nondiscriminatory
requirements that prohibit the installation of poles or wireless
support structures in the ROW in an area designated solely for
underground communications and electric lines, where:
(a)
no less than three months prior to the submission of the
application, the authority has required all such lines to be
placed underground;
(b)
poles the authority allows to remain are made available to
wireless providers for the collocation of small wireless
facilities and may be replaced by a wireless provider to
accommodate the collocation of small wireless facilities, in
compliance with this article; or
(c)
a wireless provider is allowed to install a new pole when
it is not able to provide wireless service by collocating on a
remaining pole or wireless support structure.
(2)
For small wireless facilities installed before an
authority adopts requirements that comply with item (1), an
authority adopting such requirements shall:
(a)
permit a wireless provider to maintain the small wireless
facilities in place subject to any applicable pole attachment
agreement with the pole owner; or
(b)
permit the wireless provider to replace the associated
pole within fifty feet of the prior location, provided that the
wireless provider shall allow communications service providers
with attachments on the existing utility pole to place those
attachments on the replacement utility pole under the same or
reasonably similar rates, terms, and conditions as applied to
those attachments on the existing pole.
(H) Subject to Section
58-11-830(D), an authority may require reasonable, technically
feasible, nondiscriminatory and technologically neutral design
or concealment measures in a historic district. These 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.
(I) The authority, in
the exercise of its administration and regulation related to the
management of the ROW, must be competitively neutral and
nondiscriminatory with regard to all users of the ROW. The
authority's ROW may not be unreasonable or discriminatory and
may not violate any applicable law.
(J) The authority may
require a wireless provider to repair all damage to the ROW
directly caused by the activities of the wireless provider in
the ROW and to return the ROW 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 make those repairs and charge the applicable party
the reasonable, documented cost of such repairs.
(K) A wireless provider
must not be required to replace or upgrade an existing pole
except for reasons of structural necessity or compliance with
applicable codes. A wireless provider may, with the permission
of the pole owner, replace or modify existing poles, but any
such replacement or modification must be consistent with the
design aesthetics of the poles being modified or replaced.
(L) New, modified, or
replacement poles associated with a small wireless facility
which meet the requirements of this section are permitted uses
pursuant to the permit process in Section 58-11-830(D).
(M) A wireless provider
shall notify the authority at least thirty days before its
abandonment of a small wireless facility. Following receipt of
such notice, the authority may direct the wireless provider to
remove all or any portion of the small wireless facility if the
authority determines that such removal is in the best interest
of the public safety and public welfare. If the wireless
provider fails to remove the abandoned facility within ninety
days after such notice, the authority may undertake to do so and
recover the actual and reasonable expenses of doing so from the
wireless provider, its successors or assigns.
(N) Nothing in this
article relieves any person including, without limitation, any
wireless provider, of any applicable obligation to pay business
license taxes including, without limitation, those provided for
in Section 58-9-2200, et. seq., or franchise fees. Any entity
that uses the ROW, directly or indirectly, including through
leased facilities, to provide services in a municipality is
responsible for all applicable taxes and fees related to the
services provided.
Section 58-11-830. (A)
The provisions of this section shall apply
to the permitting of the collocation of small wireless
facilities by a wireless provider in the ROW and to the
permitting of the installation, modification, and replacement of
associated poles by a wireless provider inside the ROW.
(B) Except as provided
in this article, an authority may not prohibit, regulate, or
charge for the collocation of small wireless facilities and
associated poles described in subsection (A).
(C) Small wireless
facilities must be classified as permitted uses and not subject
to zoning review or approval if they are collocated in the ROW
in any zone.
(D) An authority may
require an applicant to obtain one or more permits to collocate
a small wireless facility or install a new, modified, or
replacement pole associated with a small wireless facility as
provided in Section 58-11-820(D), provided the permits are of
general applicability and do not apply exclusively to wireless
facilities. An authority shall receive applications for,
process, and issue such permits subject to the following
requirements:
(1)
An authority may 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, but not limited to, reserving fiber, conduit, or pole
space for the authority.
(2)
An applicant must not be required to provide more
information to obtain a permit than communications service
providers that are not wireless providers, provided that an
applicant may be required to include construction and
engineering drawings and information demonstrating compliance
with the criteria delineated in item (9).
(3)
An authority may not require:
(a)
the collocation of small wireless facilities on a specific
pole or category of poles or require multiple antenna systems on
a single pole;
(b)
the use of specific pole types or configurations when
installing new or replacement poles; or
(c)
subject to Section 58-11-820(G)(1), the underground
placements of small wireless facilities that are or are
designated in an application to be pole-mounted or
ground-mounted.
(4)
An authority may not limit the collocation of small
wireless facilities by minimum horizontal separation distance
requirements from existing small wireless facilities, poles, or
other structures.
(5)
The 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 one
year after the permit issuance date, unless the authority and
the applicant agree to extend this period or delay is caused by
lack of commercial power or by the lack of communications
transport facilities to be provided to the site by an entity
that is not an affiliate, as that term is defined in 47 U.S.C.
Section 153(2), of the applicant.
(6)
The authority may require an applicant that is not a
wireless services provider to include an attestation that a
wireless services provider has requested in writing that the
applicant collocate the small wireless facilities or install,
modify, or replace the utility pole at the requested
location.
(7)
Within ten days of receiving an application, an authority
must determine and notify the applicant in writing whether the
application is complete. If an application is incomplete, an
authority shall specifically identify the missing information in
writing. The processing deadline in item (8) is tolled from the
time the authority sends the notice of incompleteness to the
time the applicant provides the missing information. That
processing deadline also may be tolled by agreement of the
applicant and the authority, confirmed in writing.
(8)
An application must be processed on a nondiscriminatory
basis and is deemed approved if the authority fails to approve
or deny the application within sixty days of receipt of the
application.
(9)
An authority may deny a proposed collocation of a small
wireless facility or a proposed installation, modification, or
replacement of a pole that meets the requirements in Section
58-11-820(E) only if the proposed application:
(a)
materially interferes with the safe operation of traffic
control equipment;
(b)
materially interferes with sight lines or clear zones for
transportation or pedestrians;
(c)
materially interferes with compliance with the Americans
with Disabilities Act or similar federal or state standards
regarding pedestrian access or movement;
(d)
fails to comply with reasonable and nondiscriminatory
horizontal spacing requirements of general application adopted
by ordinance that concern the location of ground-mounted
equipment and new poles. These spacing requirements may not
prevent a wireless provider from serving any location;
(e)
designates the location of a new pole for the purpose of
collocating a small wireless facility within seven feet in any
direction of an electrical conductor, unless the wireless
provider obtains the written consent of the power supplier that
owns or manages the electrical conductor;
(f)
fails to comply with applicable codes; or
(g)
fails to comply with Section 58-11-820(F), (G), or (H) or
any compliant provisions adopted in lieu thereof in accordance
with Section 58-11-815(B).
(10)
The authority shall document the basis for a denial,
including the specific provisions of this article on which the
denial was based, and send the documentation to the applicant on
or before the day the authority denies an application. The
applicant may cure the deficiencies identified by the authority
and resubmit the application within thirty days of the denial
without paying an additional application fee. The authority
shall approve or deny the revised application within thirty days
of resubmission and limit its review to the deficiencies cited
in the denial. Any application not acted upon within thirty days
of resubmission is deemed approved.
(11)
An applicant seeking to collocate small wireless
facilities within the jurisdiction of a single authority must be
allowed at the applicant's discretion to file a consolidated
application for up to thirty small wireless facilities and
receive a single permit for the collocation of multiple small
wireless facilities; provided, however, the denial of one or
more small wireless facilities in a consolidated application
must not delay processing of any other small wireless facilities
in the same consolidated application. Solely for purposes of
calculating the number of small wireless facilities in a
consolidated application, a small wireless facility includes any
pole on which such small wireless facility will be
collocated.
(12)
Installation or collocation for which a permit is granted
pursuant to this section must be completed within one year of
the permit issuance date unless the authority and the applicant
agree to extend this period or a delay is caused by the lack of
commercial power or by the lack of communications facilities to
be provided to the site by an entity that is not an affiliate,
as that term is defined in 47 U.S.C. Section 153(2), of the
applicant. Approval of an application authorizes the applicant
to:
(a)
undertake the installation or collocation; and
(b)
subject to applicable relocation requirements and the
applicant's right to terminate at any time, operate and maintain
the small wireless facilities and any associated pole covered
by the permit for a period of no less than ten years, which must
be renewed for equivalent durations so long as the installation
or collocation is in compliance with the criteria set forth in
item (9).
(13)
An authority may not institute, either expressly or de
facto, 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 poles to support
small wireless facilities.
(14)
The approval of the installation, placement, maintenance,
or operation of a small wireless facility pursuant to this
section neither constitutes an authorization nor affects any
authorization a provider may have to provide a communication
service or to install, place, maintain, or operate any other
communications facility, including a wireline backhaul facility,
in a ROW.
(E)(1) An authority may
not require a permit or any other approval or charge fees or
rates for:
(a)
routine maintenance;
(b)
the replacement of small wireless facilities with small
wireless facilities that are substantially similar or the same
size or smaller; or
(c)
the installation, placement, maintenance, operation, or
replacement of micro wireless facilities that are suspended on
cables that are suspended between poles or wireless support
structures in compliance with applicable codes.
(2)
An authority may require a permit for work that requires
excavation or closure of sidewalks or vehicular lanes within the
ROW for the activities described in item (1). Such a permit
must be issued to the applicant on a nondiscriminatory basis
upon terms and conditions that apply to the activities of any
other person in the ROW that require excavation or the closing
of sidewalks or vehicular lanes.
Section 58-11-840. (A)
The provisions of this section apply to
activities of any wireless provider in the ROW.
(B) A person owning,
managing, or controlling authority poles in the ROW may not
enter into an exclusive arrangement with any person for the
right to attach to such poles. A person who purchases or
otherwise acquires an authority pole is subject to the
requirements of this section.
(C) An authority shall
allow the collocation of small wireless facilities on authority
poles on nondiscriminatory terms and conditions pursuant to
Section 58-11-830.
(D)(1) The rates to
collocate on authority poles must be nondiscriminatory
regardless of the services provided by the collocating wireless
provider.
(2)
The rate to collocate on authority poles must be as set
forth in Section 58-11-850.
(E)(1) The rates, fees,
terms, and conditions for make-ready work to collocate on an
authority pole must be nondiscriminatory, competitively neutral,
and commercially reasonable and must comply with this
article.
(2)
The authority shall provide a good faith estimate for any
make-ready work necessary to enable the pole to support the
requested collocation by a wireless provider, including pole
replacement if necessary, within sixty days after receipt of a
complete application. Make-ready work, including any pole
replacement, must be completed within sixty days of written
acceptance of the good faith estimate by the applicant. An
authority may require replacement of the authority pole only if
it demonstrates that the collocation would make the authority
pole structurally unsound.
(3)
The person owning, managing, or controlling the authority
pole must not require more make-ready work than required to meet
applicable codes or industry standards. Fees assessed by or on
behalf of an authority for make-ready work, including any pole
replacement, must not:
(a)
include costs related to preexisting or prior damage or
noncompliance;
(b)
exceed either actual costs or the amount charged to other
communications service providers for similar work; or
(c)
include any revenue or contingency-based consultant's fees
or expenses of any kind.
(4)
A wireless provider collocating on an authority pole
pursuant to this article is responsible for reimbursing third
parties for their actual and reasonable costs of any make-ready
work reasonably required by the third party to accommodate the
collocation. If the authority includes such costs of a third
party in the good faith estimate provided pursuant to item (2)
of this section, payment of that estimate to the authority
constitutes reimbursement of the third party by the wireless
provider. Otherwise, the third party may bill the wireless
provider for such reimbursement within six months of the
completion of the third party's make-ready work.
Section 58-11-850. (A)
This section governs an authority's rates
and fees for the collocation of a wireless facility or
installation of an associated pole.
(B) Except as it
relates to small wireless facilities subject to the permit and
fee requirements established pursuant to this article or
otherwise specifically authorized by state or federal law
including, without limitation, Article 20 of Chapter 9, 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.
(D)(1) A municipality
may not charge an application fee to a wireless provider that is
subject to a business license tax that is or could be imposed on
it pursuant to Section 58-9-2220 and a franchise, consent, or
administrative fee that is or could be imposed on it pursuant to
Section 58-9-2230.
(2)
A municipality may not charge any application fee to any
communications service provider that is subject to a franchise
fee that is or could be imposed on it pursuant to Section
58-12-330.
(3)
Except as provided in item (1) and (2), 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)
one hundred dollars each for the first five small wireless
facilities on the same application and fifty dollars for each
additional small wireless facility on the same application;
or
(b)
two hundred fifty dollars for the installation,
modification, or replacement of a pole together with the
collocation of an associated small wireless facility that are
permitted uses in accordance with the specifications in Section
58-11-820(D).
(E)(1) A municipality
may not charge any fee for the occupancy and use of the ROW to a
wireless provider that is subject to a business license tax that
is or could be imposed on it pursuant to Section 58-9-2220 and a
franchise, consent, or administrative fee that is or could be
impose on it pursuant to Section 58-9-2230.
(2)
A municipality may not charge any fee for the occupancy
and use of the ROW to a communications service provider that is
subject to a franchise fee that is or could be imposed on it
pursuant to Section 58-12-330.
(3)
Except as provided in item (1) and (2), 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 twenty dollars per year per small wireless
facility.
(F)(1) An authority may
charge 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
twenty dollars per authority pole per year.
(2)
Other than requiring a wireless provider to pay attachment
fees 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 fees as a result of
the granting of an application for a permit under this article.
Section 58-11-853. The construction, installation, maintenance, modification, operation, and replacement of wireline backhaul facilities in the right of way are not addressed by this article, and any such activity shall comply with the applicable provisions of the 1976 Code including, without limitation, Section 58-9-280(A) and (B) and Chapter 12, Title 58.
Section 58-11-857. An applicant in the right of way must not install, maintain, modify, operate, repair, or replace any small wireless facilities, wireless support structures, poles, or decorative poles in a manner that will interfere with any existing infrastructure, equipment, or service including, without limitation, infrastructure, equipment, or service used to provide communications, electric, gas, water, or sewer services.
Section 58-11-860. The
provisions of this section apply only to activities in the ROW.
Nothing in this article must be interpreted to:
(1) allow an entity to
provide services regulated pursuant to 47 U.S.C. Sections 521 to
573, without compliance with all laws applicable to such
providers; or
(2) impose any new
requirements on cable providers for the provision of such
service in this State.
Section 58-11-870. Pursuant to the provisions of this article and applicable federal law, an authority may continue to exercise zoning, land use, planning and permitting authority within its territorial boundaries with respect to wireless support structures and poles, including the enforcement of applicable codes. An authority may not have or exercise any jurisdiction or authority over the design, engineering, construction, installation, or operation of a small wireless facility located in an interior structure or upon the site of a campus, stadium, or athletic facility not owned or controlled by the authority, other than to require compliance with applicable codes. Nothing in this article authorizes the State or a political subdivision, including an authority, to require any wireless facility deployment or to regulate wireless services.
Section 58-11-880. This article does not apply to poles owned by an investor-owned utility, except as it concerns a wireless provider's access to the ROW and permits for the collocation of small wireless facilities on such poles.
Section 58-11-900. The Administrative Law Court has jurisdiction to determine all disputes arising under this article between an applicant and an authority or any person or entity acting on behalf of an authority. Pending resolution of a dispute concerning rates for collocation of small wireless facilities on authority poles, the person owning or controlling the pole must allow the collocating person to collocate on its poles at annual rates of no more than twenty dollars with the actual rate to be settled upon final resolution of the dispute. Disputes subject to this section must be adjudicated pursuant to accelerated docket or complaint procedures, if available.
Section 58-11-910. (A)
An authority may adopt reasonable
indemnification, insurance and bonding requirements related to
small wireless facility and associated pole permits subject to
the requirements of this section.
(B) An authority may
not require a wireless provider to indemnify and hold the
authority and its officers and employees harmless against any
claims, lawsuits, judgments, costs, liens, losses, expenses, or
fees, except when a court of competent jurisdiction has found
that the negligence of the wireless provider while installing,
repairing, or maintaining facilities, poles, or support
structures pursuant to this article caused the harm that created
such claims, lawsuits, judgments, costs, liens, losses,
expenses, or fees.
(C) An authority may
require a wireless provider to have in effect insurance coverage
consistent with this section, so long as the authority imposes
similar requirements on other ROW users and such requirements
are reasonable and nondiscriminatory.
(1)
An authority may not require a wireless provider to obtain
insurance naming the authority or its officers and employees as
additional insureds.
(2)
An authority may require a wireless provider to furnish
proof of insurance, if required, prior to the effective date of
a permit issued for a small wireless facility.
(D) An authority may
adopt bonding requirements for small wireless facilities if the
authority imposes similar requirements in connection with
permits issued for other ROW users.
(1)
The purpose of such bonds must be to provide for the:
(a)
removal of abandoned or improperly maintained small
wireless facilities, including those that an authority
determines must be removed to protect public health, safety, or
welfare;
(b)
restoration of the ROW as provided in Section
58-11-820(J); and
(c)
recoupment of rates or fees that have not been paid by a
wireless provider in over twelve months, so long as the wireless
provider has received reasonable notice from the authority of
any of the noncompliance listed above and an opportunity to
cure.
(2)
Bonding requirements may not exceed two hundred dollars
per small wireless facility. For wireless providers with
multiple small wireless facilities within the jurisdiction of a
single authority, the total bond amount across all facilities
may not exceed ten thousand dollars, and that amount may be
combined into one bond instrument.
Section 58-11-920. Neither the State nor any agency, department, or instrumentality thereof may condition a wireless provider's access to any ROW or a wireless provider's deployment of small wireless facilities and associated poles in any ROW on the wireless provider's seeking or obtaining any certificate or other authority from the Public Service Commission of South Carolina; provided however, that for any wireless provider that is not also a wireless services provider, such access and deployment may be conditioned on an attestation that a wireless services provider has requested in writing that the wireless provider deploy small wireless facilities or associated poles at the requested location."
SECTION 2. This act takes effect upon approval by the Governor. /
Renumber sections to conform.
Amend title to conform.