Reference is to Printer's Date 3/26/19-H.
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)
except as provided in Code Section 58-11-815, this article
supersedes and preempts any enactment by an authority that
contradicts, expands, contracts, or otherwise modifies the
provisions of this article with respect to the regulation of the
placement of small wireless facilities, 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.
(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 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 a provision or regulation in an enactment
applicable to poles, support structures, replacement poles, and
small wireless facilities that:
(a)
addresses only: aesthetics, design, concealment, or
stealth requirements that are technically feasible and
technologically neutral; decorative poles; underground
districts; or historical districts;
(b)
is no more burdensome than provisions or regulations
applied to other types of infrastructure deployments in the
rights of way;
(c)
is reasonable;
(d)
is objective;
(e)
is published within thirty days prior to becoming
applicable with regard to any wireless provider; and
(f)
is 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; or
(c)
an overlay zone, as defined in and limited by Section
6-29-720(C)(5):
(i)
that has been established by the
authority with regulatory control of zoning within the specified
geographic area at least sixty days prior to the relevant
application;
(ii)
for which the special public interest to be protected is
the preservation and protection of historic and architecturally
valuable districts and neighborhoods; and
(iii)
for which the authority maintains and enforces objective
standards that are published in advance and applied on a uniform
and nondiscriminatory basis.
(18) 'Law' means an
enactment or a federal or state law, statute, common law, code,
rule, regulation, or order.
(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 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 material reduction in the functionality of
the small wireless facility.
(29) 'Underground
District' means a group of buildings, properties, or sites:
(a)
that has been established by the authority with regulatory
control of zoning within the specified geographic area;
(b)
in which enactments, zoning regulations, state law,
private deed restrictions, or other public or private
restrictions prohibit installing above-ground poles or support
structures in the ROW;
(c)
in which the authority has required all communications and
electric lines in the specified geographic area to be placed
underground at least sixty days prior to the relevant
application; and
(d)
for which the authority maintains and enforces objective
standards that are published in advance and applied on a uniform
and nondiscriminatory basis.
(30) '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.
(31) '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 support structures, but that
is not a wireless services provider.
(32) 'Wireless
provider' means a wireless infrastructure provider or a wireless
services provider.
(33) '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.
(34) 'Wireless services
provider' means a person who provides wireless services.
(35) '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)
If an authority and a wireless provider
entered into a written agreement addressing the subject matter
of this article prior to December 31, 2019:
(1)
this article shall not apply until such agreement expires
or is terminated pursuant to its terms with regard to poles,
support structures, replacement poles, and small wireless
facilities installed pursuant to such agreement prior to
December 31, 2019; and
(2)
otherwise, the provisions of this chapter shall apply to
poles, support structures, replacement poles, and small wireless
facilities installed on or after December 31, 2019.
(B) With regard to any
enactment that was adopted prior to the effective date of this
article and that addresses the subject matter of this
article:
(1)
any compliant provisions in such enactment remain in
effect and, to the extent that such compliant provisions apply
to decorative poles, underground districts, or historic
districts, shall apply in lieu of Section 58-11-820(F)(2),
(G)(1), and (H); and
(2)
all other provisions of any such enactment are invalid,
and all other provisions of this article apply in lieu
thereof.
(C) An authority may
adopt an enactment that:
(1)
adopts compliant provisions, which to the extent that such
compliant provisions apply to decorative poles, underground
districts, or historic districts, shall apply in lieu of the
provisions of Section 58-11-820(F)(2), (G)(1), and (H);
(2)
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
(3)
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 items (1) and (2).
(D) An enactment that
strictly complies with subsection (B) or (C) complies with this
article and shall be fully applicable within the territorial
jurisdiction of such authority. In the absence of such an
enactment, 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 December 31, 2019.
(E)(1) An authority
must not require a wireless provider to enter into an agreement
including, without limitation, a franchise agreement whether
memorialized in an enactment 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 Sections 58-11-830(E)(1) and
58-11-850(E)(1) and (2), an authority may charge a wireless
provider a 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 only if such rate or fee is
nondiscriminatory and only if the authority charges other
similarly situated entities for use of the ROW. Notwithstanding
the foregoing, an authority is permitted, on a nondiscriminatory
basis, to refrain from charging any rate or fee to a wireless
provider for the use of the ROW. The rates or fees for such use
of the ROW and associated applications and attachments to
authority poles are 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 subject only to administrative review
pursuant to Section 58-11-830, to collocate small wireless
facilities and install, maintain, modify, operate, and replace
poles in the ROW. These structures and facilities must be
installed and maintained so as not to: create a safety hazard;
obstruct or hinder the usual travel in or the public's safe use
of 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; provided, however, that for applications to
place poles in residential zoning districts to deploy small
wireless facilities, the authority may propose an alternate
location in the ROW within one hundred feet of the location set
forth in the application, and the wireless provider shall use
the authority's proposed alternate location unless the location
is not technically feasible or imposes significant additional
costs. The wireless provider shall certify that it has made
such a determination in good faith, based on the assessment of a
licensed engineer, and it shall provide a written summary of the
basis for such determination.
(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)
To the extent permitted by and approved under applicable
zoning or other regulations, a wireless provider shall have the
right to collocate a small wireless facility on and install,
maintain, modify, operate, and replace poles in the ROW that
exceed the height limits set forth in subsection (E)(1).
(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.
(3)(a)
For applications to replace decorative poles to deploy
small wireless facilities, the authority may propose an
alternate location in the ROW within one hundred feet of the
location set forth in the application, and the wireless provider
shall use the authority's proposed alternate location unless the
location is not technically feasible or imposes significant
additional costs. The wireless provider shall certify that it
has made such a determination in good faith, based on the
assessment of a licensed engineer, and it shall provide a
written summary of the basis for such determination.
(b)
For applications to collocate small wireless facilities on
decorative poles, the authority may propose collocation on a new
pole or on an existing pole or structure in the ROW within one
hundred feet of the location set forth in the application, and
the wireless provider shall use the authority's proposed
alternative unless the location is not technically feasible or
imposes significant additional costs. The wireless provider
shall certify that it has made such a determination in good
faith, based on the assessment of a licensed engineer, and it
shall provide a written summary of the basis for such
determination.
(G)(1) A wireless
provider shall comply with reasonable and nondiscriminatory
requirements that prohibit the installation of poles in the ROW
in an underground district where:
(a)
no less than two 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 support structure; provided, however, that for
any such application to install a new pole, the authority may
propose an alternate location in the ROW within one hundred feet
of the location set forth in the application, and the wireless
provider shall use the authority's proposed alternate location
unless the location is not technically feasible or imposes
significant additional costs. The wireless provider shall
certify that it has made such a determination in good faith,
based on the assessment of a licensed engineer, and it shall
provide a written summary of the basis for such determination.
(2)
For small wireless facilities installed before an
authority adopts requirements that comply with subsection
(G)(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 pole to place those attachments
on the replacement pole under the same or reasonably similar
fees, rates, terms, and conditions as applied to those
attachments on the existing pole.
(H)(1) Subject to
Section 58-11-830(D), an authority may require reasonable,
technically feasible, nondiscriminatory and technologically
neutral design requirements, height limitations of no less than
forty feet, or concealment measures in a historic district.
These design requirements, height limitations, or concealment
measures may not have the effect of prohibiting any provider's
technology or the provision of wireless services; 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.
(2)
For applications to place poles in an historic district to
deploy small wireless facilities, the authority may propose an
alternate location in the ROW within one hundred feet of the
location set forth in the application, and the wireless provider
shall use the authority's proposed alternate location unless the
location is not technically feasible or imposes significant
additional costs. The wireless provider shall certify that it
has made such a determination in good faith, based on the
assessment of a licensed engineer, and it shall provide a
written summary of the basis for such determination.
(I) The authority, in
the exercise of its administration and regulation related to the
management of the ROW, must be reasonable, competitively
neutral, nondiscriminatory with regard to all users of the ROW,
and compliant with applicable law.
(J) A wireless provider
shall repair all damage to the ROW directly caused by the
activities of the wireless provider in the ROW and shall return
the ROW to its functional equivalence before the damage pursuant
to the competitively neutral and reasonable requirements and
specifications of the authority. If the wireless provider fails
to repair damage to the ROW in compliance with this subsection
within thirty calendar days after written notice, the authority
may repair such damage and charge the applicable party the
reasonable, documented cost of such repairs; provided, however,
that the wireless provider may request additional time to make
such repairs, and the authority shall not unreasonably deny such
a request.
(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
subject only to administrative review pursuant to Section
58-11-830.
(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 subject only to
administrative review under this section 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 to 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)
The application shall be made by the applicable wireless
provider or its duly authorized representative and shall contain
the following:
(a)
the applicant's name, address, telephone number, and email
address, including emergency contact information for the
applicant;
(b)
the names, addresses, telephone numbers, and email
addresses of all consultants, if any, acting on behalf of the
applicant with respect to the filing of the application;
(c)
a general description of the proposed work and the
purposes and intent of the proposed facility. The scope and
detail of such description shall be appropriate to the nature
and character of the physical work to be performed, with special
emphasis on those matters likely to be affected or impacted by
the physical work proposed;
(d)
detailed construction drawings regarding the proposed use
of the right of way;
(e)
to the extent the proposed facility involves collocation
on a pole, decorative pole, or support structure, a structural
report performed by a duly licensed engineer evidencing that the
pole, decorative pole, or support structure will structurally
support the collocation, or that the pole, decorative pole, or
support structure may and will be modified to meet structural
requirements, in accordance with applicable codes;
(f)
for any new aboveground facilities, visual depictions or
representations if such are not included in the construction
drawings; and
(g)
information indicating the horizontal and approximate
vertical location, relative to the boundaries of the right of
way, of the small wireless facility for which the application is
being submitted; and
(h)
any additional information reasonably necessary to
demonstrate compliance with the criteria set forth in item
(10).
(2)
An applicant must not be required to provide more
information to obtain a permit than is set forth in item
(1).
(3)
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.
(4)
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, provided however that
nothing in this item prohibits an authority from enforcing the
provisions of Sections 58-11-820(F)(2), (G)(1), and (H) or any
compliant provisions adopted in lieu of those provisions
pursuant to Section 58-11-815(B) or (C); or
(c)
subject to Section 58-11-820(G)(1) or any compliant
provisions adopted in lieu thereof pursuant to Section
58-11-815(B) or (C), the underground placements of small
wireless facilities that are or are designated in an application
to be pole-mounted or ground-mounted.
(5)
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.
(6)
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.
(7)
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 pole at the requested location, and the
authority may require the applicant to submit proof that such
wireless services provider is licensed by the FCC or otherwise
authorized to provide wireless services within the geographic
jurisdiction of the authority.
(8)
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 (9) 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.
(9)
An application must be processed on a nondiscriminatory
basis. The authority shall make its final decision to approve or
deny the application within sixty days of receipt of a complete
application for collocation of small wireless facilities and
within ninety days of receipt of a complete application for the
installation, modification, or replacement of a pole and the
collocation of associated small wireless facilities on the pole.
If the authority fails to act on an application within the
applicable time period, the applicant may provide the authority
written notice that the time period for acting has lapsed, and
the authority shall then have twenty days after receipt of such
notice to render its written decision. The application shall be
deemed to have been approved by passage of time and operation of
law if the authority does not render its written decision within
such twenty days.
(10)
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)
interferes with the safe operation of traffic control
equipment;
(b)
interferes with sight lines or clear zones for
transportation or pedestrians;
(c)
interferes with compliance with the Americans with
Disabilities Act or similar federal or state standards regarding
pedestrian access or movement;
(d) requests that ground-mounted small
wireless facility equipment be located more than 7.5 feet in
radial circumference from the base of the pole, decorative pole,
or support structure to which the small wireless facility
antenna would be attached, provided that the authority shall not
deny the application if a greater distance from the base of the
pole, decorative pole, or support structure is necessary to
avoid interfering with sight lines or clear zones for
transportation or pedestrians or to otherwise protect public
safety;
(e)
fails to comply with the height limitations permitted by
this article or with reasonable and nondiscriminatory horizontal
spacing requirements of general application adopted by an
enactment that concern the location of ground-mounted equipment
and new poles. These spacing requirements may not be applied in
a manner that constitutes an effective prohibition of service
that is prohibited by federal law;
(f)
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;
(g)
fails to comply with applicable codes;
(h)
fails to comply with Section 58-11-820(F), (G), or (H) or
any compliant provisions adopted in accordance with Section
58-11-815(B) or (C);
(i)
fails to comply with laws of general applicability that
address pedestrian and vehicular traffic and safety
requirements; or
(j)
fails to comply with laws of general applicability that
address the occupancy or management of the right of way and that
are not otherwise inconsistent with this chapter.
(11)
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. If the authority fails to act on a revised
application within this thirty-day period, the applicant may
provide the authority written notice that the time period for
acting has lapsed, and the authority shall then have five days
after receipt of such notice to render its written decision
approving or denying the revised application. The revised
application shall be deemed to have been approved by passage of
time and operation of law if the authority does not render its
written decision within such five days.
(12)
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.
(13)
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
(10).
(14)
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.
(15)
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 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 the
collocation of small wireless facilities on an authority pole in
the ROW by a wireless provider.
(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) The rates to
collocate on authority poles must be nondiscriminatory
regardless of the services provided by the collocating wireless
provider and 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,
commercially reasonable, and in compliance with this
article.
(2)(a)
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. Alternatively, the authority may require
the wireless provider to perform the make-ready work and notify
the wireless provider of such within the sixty-day period. If
the wireless provider or its contractor performs the make-ready
work, the wireless provider shall indemnify the authority for
any negligence by the wireless provider or its contractor in the
performance of such make-ready work and the work shall otherwise
comply with applicable law.
(b)
Make-ready work performed by or on behalf of an authority,
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 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, without
limitation, Article 20, 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; 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 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 charge an application fee to a
communications service provider regardless of whether the
provider is subject to a franchise fee that is or could be
imposed on 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).
(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 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 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
could be imposed on 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.
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, 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 small wireless facilities, poles, and
support structures outside of the ROW, 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 contested case 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. Any request filed with the Administrative Law Court pursuant to this article must be filed in accordance with its Rules of Procedure. 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 fifty 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. (A)
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.
(B) Without limiting
the provisions of subsection (A):
(1)
a wireless services provider seeking access to a ROW as
described in subsection (A) may be required to provide proof
that it is licensed by the FCC or otherwise authorized to
provide wireless services within the State; and
(2)
a wireless provider seeking access to a ROW as describe in
subsection (A) and that is not also a wireless services provider
may be required to: submit 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; and provide proof that such wireless
services provider is licensed by the FCC or otherwise authorized
to provide service within the State.
(C) To the extent that
an authority is otherwise authorized to address a wireless
provider's deployment of small wireless facilities and
associated poles in the ROW of the State or of any agency,
department, or instrumentality thereof, the authority must do so
in strict compliance with the provisions of this article."
SECTION 2. This act takes effect upon approval by the Governor. /
Renumber sections to conform.
Amend title to conform.