11-1802. Exclusive arrangements prohibited; permit; rates, fees and terms; access and use of county structures
A. A county may not enter into an exclusive arrangement with any wireless provider for use of a right-of-way for the construction, operation or maintenance of utility poles or the collocation of small wireless facilities on utility poles or wireless support structures.
B. Subject to subsection C of this section, a county may require a permit and charge a fee for processing an application by a wireless provider and conducting associated inspections for the installation, modification or replacement of a utility pole or the collocation of a small wireless facility on a utility pole or a wireless support structure in a right-of-way. Any fee charged pursuant to this section must be reasonable and conform to authorized and published fees for similar permits issued by the county and may not exceed one hundred dollars per collocation or installation.
C. For the collocation of a small wireless facility on a utility pole or wireless support structure in the right-of-way that is not owned by the county and that does not include ground-mounted equipment, the county may not charge a wireless provider a rate or fee and may not require a permit.
D. A county may charge a wireless provider a rate for the wireless provider's use of a right-of-way in accordance with this section. The county may:
1. For the collocation of a small wireless facility on a utility pole or wireless support structure that is not owned by the county that includes ground-mounted equipment, charge a rate for the ground-mounted equipment using the methodology described in paragraph 5 of this subsection, require an application and charge a fee. The rate for ground-mounted equipment may not exceed one hundred seventy-five dollars.
2. For the collocation of a small wireless facility on a county utility pole that does not include ground-mounted equipment, charge a rate using the methodology described in paragraph 5 of this subsection that does not exceed twenty dollars. If the collocation includes ground-mounted equipment, the county may charge an additional rate using the methodology described in paragraph 5 of this subsection. The rate for ground-mounted equipment may not exceed one hundred seventy-five dollars.
3. For the installation of a utility pole, together with the collocation of small wireless facilities, that will not be owned by the county, charge a wireless provider a rate using the methodology described in paragraph 5 of this subsection. The rate may not exceed one hundred seventy-five dollars. An additional rate may not be charged for collocated small wireless facilities, including ground-mounted equipment that is requested in the application.
4. For the replacement of a utility pole owned by the county, require the applicant to comply with the county's processes and requirements for installing such structures. The county may not charge a rate for the replaced utility pole.
5. Charge a rate that has been lawfully adopted and published. The rate shall be based on the average fair market value of the county right-of-way that is suitable for the deployment of wireless facilities and utility poles. All materials used to derive these values shall be readily available to the public at least ninety days before the adoption of the rate. The rate adopted shall be based on ninety percent of the average fair market values that have been determined and are subject to the applicable rate caps in paragraphs 1, 2 and 3 of this subsection.
E. A county shall:
1. Adopt an ordinance establishing rates, fees and terms for the following:
(a) The installation, modification or replacement by a wireless provider of a utility pole located in a right-of-way.
(b) The collocation by a wireless provider of a small wireless facility in a right-of-way.
(c) The collocation by a wireless provider of a small wireless facility on a county utility pole.
2. Adopt the ordinance described in paragraph 1 of this subsection within the time period beginning on August 9, 2017 and ending after the time allowed under the county's procedures adopted under section 11-1605 for the adoption of an ordinance, or ninety days after receiving the first request by a wireless provider, whichever is later.
3. Establish rates, fees and terms that comply with this section. The terms:
(a) May not be unreasonable or discriminatory.
(b) May include requirements applicable to other users of the right-of-way.
(c) May require that the wireless provider's operation of the small wireless facilities and wireless facilities in the right-of-way does not interfere with the county's public safety communications.
(d) May not require the placement of small wireless facilities on any specific utility pole or category of utility poles or require multiple antenna systems on a single utility pole.
(e) May not limit the placement of pole-mounted small wireless facilities by minimum separation distances but may require reasonable spacing requirements that concern the location of ground-mounted equipment.
F. Agreements that are in effect on August 9, 2017 between counties and wireless providers and that relate to the collocation of small wireless facilities in the right-of-way, including the collocation of small wireless facilities on county utility poles, remain in effect, subject to applicable termination provisions. The wireless provider may elect to pay the rates and fees provided under subsection D of this section for small wireless facilities and utility poles that are the subject of an application submitted after the rates, fees and terms become effective, if the wireless provider notifies the county of the wireless provider's election and agreement to comply with the terms adopted by the county under subsection E of this section.
G. This chapter does not relieve a wireless provider from any applicable requirement to obtain a franchise, license or other permission to provide communications service or to install, place, maintain or operate facilities or structures that are not authorized by this chapter in the right-of-way to provide a communications service.