6.985 Small Wireless Facilities in the Right-of-Way

6.985 Small Wireless Facilities in the Right-of-Way.

(a) Purpose. The purpose of this chapter is to establish reasonable and nondiscriminatory policies and procedures for the placement of small wireless facilities in rights-of-way within the City’s jurisdiction, which will provide public benefit consistent with the preservation of the integrity, safe usage, and reasonable aesthetic qualities of the City rights-of-way and the City as a whole.

(b) Intent. In enacting this chapter, the City is establishing uniform standards consistent with Federal law to address the placement of small wireless facilities and associated poles in the rights-of-way, including, without limitation, to manage the public rights-of-way in order to:

(i) Prevent interference with the use of streets, sidewalks, alleys, parkways and other public ways and places;

(ii) Prevent the creation of obstructions and other conditions that are hazardous to vehicular and pedestrian traffic;

(iii) Prevent interference with the facilities and operations of facilities lawfully located in rights-of-way or public property;

(iv) Protect against environmental damage, including damage to trees;

(v) Preserve the character of the community, historic districts or areas with decorative poles; and

(vi) Facilitate technology advancements, such as deployment of small wireless facilities, to provide the benefits of wireless services.

(a) “Antenna” means the same as defined in 47 C.F.R. § 1.6002(b), as may be amended or superseded. The term includes an apparatus designed for the purpose of emitting radio frequencies (RF) to be operated or operating from a fixed location pursuant to Federal Communications Commission authorization, for the provision of personal wireless service and any commingled information services. For purposes of this definition, the term “antenna” does not include an unintentional radiator, mobile station, or device authorized under 47 C.F.R. Part 15.

(b) “Antenna equipment” means the same as defined in 47 C.F.R. § 1.6002(c), as may be amended or superseded, which defines the term to mean equipment, switches, wiring, cabling, power sources, shelters or cabinets associated with an antenna, located at the same fixed location as the antenna, and, when collocated on a structure, is mounted or installed at the same time as such antenna.

(c) “Antenna facility” means the same as defined in 47 C.F.R. § 1.6002(d), as may be amended or superseded, which defines the term to mean an antenna and associated antenna equipment.

(d) “Applicable codes” means uniform building, fire, safety, electrical, plumbing, or mechanical codes adopted by a recognized national code organization or State or local amendments to those codes that are of general application and consistent with State and Federal law.

(e) “Applicant” means any person who submits an application as or on behalf of a wireless provider.

(f) “Application” means requests submitted by an applicant:

(i) For permission to collocate small wireless facilities; or

(ii) To approve the installation, modification or replacement of a structure on which to collocate a small wireless facility in the rights-of-way, where required.

(g) “City structure” means a structure located in the rights-of-way within the City’s jurisdictional boundaries that is owned, managed or operated by the City or any subdivision or instrumentality thereof, including municipal electric utilities.

(h) “Collocate” means the same as defined in 47 C.F.R. § 1.6002(g), as may be amended or superseded, which defines that term to mean:

(i) Mounting or installing an antenna facility on a preexisting structure; and/or

(ii) Modifying a structure for the purpose of mounting or installing an antenna facility on that structure. “Collocation” has a corresponding meaning.

(i) “Day” means calendar day. For purposes of the FCC shot clock, a terminal day that falls on a holiday or weekend shall be deemed to be the next immediate business day.

(j) “Decorative pole” means a City structure that is specially designed and placed for aesthetic purposes.

(k) “Historic district” means a group of buildings, properties, or sites that are either:

(i) Listed in the National Register of Historic Places or formally determined eligible for listing by the Keeper of the National Register in accordance with Section VI.D.1a.i-v of the Nationwide Programmatic Agreement codified at 47 C.F.R. Part 1, Appendix C; or

(ii) A locally designated historic district as of the effective date of this chapter or in a locally designated historic district existing when an application is submitted.

(l) “Permissions” means all licenses, permits, and other entitlements required by the City of Medford for small wireless facilities in the right-of-way.

(m) “Person” means an individual, corporation, limited liability company, partnership, association, trust, or other entity or organization, including the City.

(n) “Pole” means a type of structure in the rights-of-way that is or may be used in whole or in part by or for wireline communications, electric distribution, lighting, traffic control, signage, or similar function, or for collocation of small wireless facilities; provided, such term does not include a tower, building or electric transmission structures.

(o) “Rights-of-way” or “ROW” for purposes of this section means any land or interest therein by deed, conveyance, agreement, dedication, usage or other process of law that has been reserved or dedicated to the City for use of the general public and which includes, but is not limited to, the space in, upon, above, along, across, over or under the public streets, roads, highways, lanes, courts, ways, alleys, boulevards, bridges, trails, paths, sidewalks, bicycle lanes, and all other public ways and areas, including the subsurface under and air space over these areas, but does not include parks or parkland. This definition applies only to the extent the City’s right, title, interest, and authority to grant a license to occupy and use such areas for utility facilities.

(p) “Routine maintenance” means inspections, testing, repair, and modifications subject to Section 6409(a) (of the Middle Class Tax Relief and Job Creation Act of 2012) that maintain functional capacity, aesthetic and structural integrity of a small wireless facility and/or the associated pole or structure.

(q) “Small wireless facility” means a facility that meets each of the following conditions per 47 C.F.R. § 1.6002(l), as may be amended or superseded:

(i) The facilities:

(A) Are mounted on structures 50 feet or less in height including the antennas; or

(B) Are mounted on structures no more than 10 percent taller than other adjacent structures; or

(C) Do not extend existing structures on which they are located to a height of more than 50 feet or by more than 10 percent, whichever is greater; and

(ii) Each antenna associated with the deployment, excluding associated antenna equipment, is no more than three cubic feet in volume; and

(iii) All other wireless equipment associated with the structure, including wireless equipment associated with the antenna and any pre-existing associated equipment on the structure, is no more than 28 cubic feet in volume; and

(iv) The facilities do not result in human exposure to radio frequency in excess of the applicable safety standards specified in 47 C.F.R. § 1.1307(b).

(r) “Structure” means the same as defined in 47 C.F.R. § 1.6002(m), as may be amended or superseded, which defines that term as a pole, tower, or base station, whether or not it has an existing antenna facility, that is used or to be used for the provision of personal wireless service (whether on its own or comingled with other types of service).

(s) “Wireless infrastructure provider” means any person, including a person authorized to provide communications service in the State, that builds or installs wireless communication transmission equipment, wireless facilities, but that is not a wireless services provider.

(t) “Wireless provider” means a wireless infrastructure provider or a wireless services provider.

(u) “Wireless services provider” means a person who provides personal wireless services (whether or not it is comingled with other services).

(a) Permitted Use. The following uses within the rights-of-way shall be a permitted use, subject to compliance with the City’s applicable design standards in subsection (5) of this section, administrative review only and issuance of a permit as set forth in this chapter:

(i) Collocation of a small wireless facility; and

(ii) Placement of a new, modified, or replacement pole to be used for collocation of a small wireless facility.

(b) Permissions Required. Except as otherwise provided in this chapter, no person shall place any small wireless facility described in subsection (3)(a) of this section in the rights-of-way, without first filing an application for the facility and obtaining all requisite approvals.

(c) Application Requirements. An application filed pursuant to this chapter shall be made by the wireless provider or its duly authorized representative and shall contain the following:

(i) The applicant’s name, address, telephone number, and email address;

(ii) The names, addresses, telephone numbers, and email addresses of all duly authorized representatives and consultants, if any, acting on behalf of the applicant with respect to the filing of the application;

(iii) Copy of the executed City franchise agreement;

(iv) A general description of the proposed small wireless facility and associated pole, if applicable. The scope and detail of such description shall be appropriate to the nature and character of the work to be performed, with special emphasis on those matters likely to be affected or impacted by the physical work proposed;

(v) Site plans and engineering drawings to scale that identify the proposed small wireless facility;

(vi) A statement or other demonstration that the small wireless facility shall comply with all applicable codes, regulations and standards, including applicable FCC regulations for human exposure to RF emissions;

(vii) The application requirements shall not be more burdensome than those for any similarly situated small wireless facilities.

(d) Routine Maintenance and Replacement. An application shall not be required for:

(i) Routine maintenance; or

(ii) The replacement of a small wireless facility with another small wireless facility that is the same, substantially similar or smaller in size and weight and height. The City may require a permit for work within the right-of-way. Such a permit must be issued to the applicant on a nondiscriminatory basis upon terms and conditions applied to any other person performing similar activities, regardless of technology, in the right-of-way.

(e) Information Updates. Any amendment to nonmaterial information contained in an application shall be submitted in writing to the City within 30 days of the change.

(f) Application Fees. Application fees shall be set by ordinance.

(a) The City must process all applications on a nondiscriminatory basis and may deny an application subject to this chapter if the proposed small wireless facility or new, modified, or replaced pole:

(i) Materially and demonstrably interferes with the safe operation of traffic control equipment;

(ii) Materially and demonstrably interferes with sight lines or clear zones for transportation or pedestrians;

(iii) Materially fails to comply with the Americans with Disabilities Act or similar Federal, State, or local laws, standards and regulations regarding pedestrian access or movement;

(iv) Fails to comply with applicable codes, standards and regulations, including the City’s design standards; or

(v) Fails to comply with the provisions in this chapter.

(b) The City must act on an application within the applicable shot clock and provide written notice to the applicant if the application is denied. The written notice shall state the reasons for denial, with reference to specific code provisions, ordinance, application instruction or otherwise publicly stated procedures on which the denial was based, and be sent to the applicant within five days after the City denies the application or before the applicable shot clock expires, whichever occurs first.

(i) Sixty days is provided to review an application to collocate a small wireless facility using an existing structure.

(ii) Ninety days is provided to deploy a small wireless facility using a new structure.

(a) City Poles. A wireless provider is not permitted to collocate on or replace City-owned poles.

(b) Decorative Poles. A wireless provider is not permitted to collocate on or replace a City decorative pole.

(c) Historic Districts. Small wireless facilities or poles located in historic districts shall be designed to have a similar appearance, including coloring and design elements, if technically feasible, of other poles (including decorative poles) in the rights-of-way within 500 feet of the proposed installation. Any such design or concealment measures may not be considered part of the small wireless facility for purpose of the size restrictions in the definition of small wireless facility. In the Central Business (CB) overlay, new poles shall be similar design to the poles identified in the streets materials standards list.

(i) Ground-Mounted Equipment. Ground-mounted equipment in the right-of-way is discouraged, unless the applicant can demonstrate the pole-mounted equipment is not technically feasible, or the electric utility requires placement of equipment on the ground. If ground-mounted equipment is necessary, then the applicant shall conceal the equipment in a cabinet or in street furniture.

(ii) Poles. Replacement poles, new poles, and all antenna equipment shall comply with the Americans with Disabilities Act (ADA), City construction and sidewalk clearance standards and City, State and Federal laws and regulations in order to provide a clear and safe passage within, through and across the right-of-way. Further, the location of any replacement pole, new pole, and/or antenna equipment must comply with applicable traffic requirements, not interfere with utility or safety fixtures (such as fire hydrants or traffic control devices), and not adversely affect public health, safety, or welfare. Replacement poles shall be located as near as feasible to the existing pole.

(iii) Signage. No advertising, branding or other signage is allowed unless approved by the City as a concealment technique or as follows:

(A) Safety signage as required by applicable laws, regulations, and standards; and

(B) Identifying information and 24-hour emergency telephone number on wireless equipment in an area that is visible.

(iv) Number of Facilities. No more than one wireless communication facility shall be installed on a single utility support structure.

(v) Additional Requirements. Any facility involving the installation of a new utility support structure shall be subject to the following conditions:

(A) The City may require a street light arm and fixture be included as part of a new utility support structure, at the discretion of the City Engineer or their designee. The City shall maintain the street light fixture.

(B) Installation shall meet all the requirements of the NESC, including power cut-off requirements.

(C) If a combined street light and cellular facility is proposed, the applicant shall maintain the pole and cellular facilities in a safe condition. The City shall maintain the street light fixture.

(D) The applicant shall pay the on-going power costs associated with the facility. This may include the costs to power the street light if the power sources and billing cannot be separated.

(E) The City shall have access to the power cut-off.

(i) Small Wireless Facilities Attached to Wooden Poles and Nonwooden Poles with Overhead Lines. Small wireless facilities located on wooden utility poles and nonwooden utility poles with overhead lines shall conform to the following design requirements unless a deviation is requested and approved pursuant to subsection (5)(f) of this section:

(A) Proposed antenna and related equipment shall meet the City’s design standards for small wireless facilities, the pole owner requirements, and National Electrical Safety Code (NESC) and National Electrical Code (NEC) standards.

(B) The pole at the proposed location may be replaced with a taller pole or extended for the purpose of accommodating a small wireless facility; provided, that the replacement or extended pole, together with any small wireless facility, does not exceed 50 feet in height or 10 percent taller than adjacent poles, whichever is greater. The replacement or extended pole height may be increased if required by the pole owner, and such height increase is the minimum necessary to provide sufficient separation and/or clearance from electrical and wireline facilities. Such replacement poles may either match the approximate color and materials of the replaced pole or shall be the standard new pole used by the pole owner in the City.

(C) To the extent technically feasible, antennas, equipment enclosures, and all ancillary equipment, boxes, and conduit shall match the approximate material and design of the surface of the pole or existing equipment on which they are attached, or adjacent poles located within the contiguous right-of-way. Near matches may be permitted by the City when options are limited by technical feasibility considerations, such as when high-frequency antennas cannot be placed within an opaque shroud but could be wrapped with a tinted film.

(D) Antennas which are mounted on poles shall be mounted as close to the pole as technically feasible and allowed by the pole owner.

(E) No antenna shall extend horizontally more than 20 inches past the outermost mounting point (where the mounting hardware connects to the antenna), unless additional antenna space is requested and approved pursuant to subsection (5)(f) of this section.

(F) Antenna equipment, including but not limited to radios, cables, associated shrouding, disconnect boxes, meters, microwaves and conduit, which is mounted on poles shall be mounted as close to the pole as technically feasible and allowed by the pole owner.

(G) Antenna equipment for small wireless facilities must be attached to the pole, unless otherwise required by the pole owner or permitted to be ground-mounted per subsection (5)(d)(i) of this section. The equipment must be placed in an enclosure reasonably related in size to the intended purpose of the facility.

(H) All cables and wiring shall be covered by conduits and cabinets to the extent that it is technically feasible, if allowed by pole owner. The number of conduits shall be minimized to the extent technically feasible.

(ii) Small Wireless Facilities Attached to Nonwooden Light Poles and Nonwooden Utility Poles Without Overhead Utility Lines. Small wireless facilities attached to existing or replacement nonwooden light poles and nonwooden utility poles without overhead lines shall conform to the following design requirements unless a deviation is requested and approved pursuant to subsection (5)(f) of this section:

(A) External Equipment. The antennas and associated equipment enclosures must be camouflaged to appear as an integral part of the pole or be mounted as close to the pole as feasible and must be reasonably related in size to the intended purpose of the facility and reasonable expansion for future frequencies and/or technologies, not to exceed the volumetric requirements described in subsection (2)(q) of this section. If the equipment enclosure(s) is mounted on the exterior of the pole, the applicant is encouraged to place the equipment enclosure(s) behind any decorations, banners or signs that may be on the pole. Conduit and fiber must be fully concealed within the pole.

(B) Concealed Equipment. All equipment (excluding disconnect switches), conduit and fiber must be fully concealed within the pole. The antennas must be camouflaged to appear as an integral part of the pole or be mounted as close to the pole as feasible.

(C) Any replacement pole shall substantially conform to the material and design of the existing pole or adjacent poles located within the contiguous right-of-way unless a different design is requested and approved pursuant to subsection (5)(f) of this section.

(D) The height of any replacement pole may not extend more than 10 feet above the height of the existing pole, unless such further height increase is required in writing by the pole owner.

(iii) New Poles. Small wireless facilities may be attached to new poles, that are not replacement poles, installed by the wireless provider, subject to the following requirements:

(A) Antennas, antenna equipment and associated equipment enclosures (excluding disconnect switches), conduit and fiber shall be fully concealed within the structure. If such concealment is not technically feasible, or is incompatible with the pole design, then the antennas and associated equipment enclosures must be camouflaged to appear as an integral part of the structure or mounted as close to the pole as feasible, and must be reasonably related in size to the intended purpose of the facility, not to exceed the volumetric requirements noted in subsection (2)(q) of this section.

(B) To the extent technically feasible, all new poles and pole-mounted antennas and equipment shall substantially conform to the material and design of adjacent poles located within the contiguous right-of-way unless a different design is requested and approved pursuant to subsection (5)(f) of this section.

(C) New poles shall be no more than 40 feet in height unless additional height is requested and approved pursuant to subsection (5)(f) of this section.

(D) The City prefers that wireless providers install small wireless facilities on existing or replacement poles instead of installing new poles, unless the wireless provider can document that installation on an existing or replacement pole is not technically feasible or otherwise not possible (due to a lack of owner authorization, safety considerations, or other reasons acceptable to the City).

(i) An applicant may obtain a deviation from the design standards if compliance with the standard: (A) is not technically feasible; (B) impedes the effective operation of the small wireless facility; (C) impairs a desired network performance objective; (D) conflicts with pole owner requirements; or (E) otherwise materially inhibits or limits the provision of wireless service.

(ii) When requests for deviation are sought, the request must be narrowly tailored to minimize deviation from the requirements of these design standards, and the City must find the applicant’s proposed design provides similar aesthetic value when compared to strict compliance with these standards.

(iii) City may also allow for a deviation from these standards when it finds the applicant’s proposed design provides equivalent or superior aesthetic value when compared to strict compliance with these standards.

(iv) The small wireless facility design approved under this subsection (5)(f) must meet the conditions of 47 C.F.R. § 1.6002(l).

(v) City will review and may approve a request for deviation to the minimum extent required to address the applicant’s needs or facilitate a superior design.

(a) Authority Granted. No property right or other interest created. A permit from the City authorizes an applicant to undertake only certain activities in accordance with this chapter and does not create a property right or grant authority to the applicant to impinge upon the rights of others who may already have an interest in the rights-of-way.

(i) A permit for construction granted pursuant to this section shall be valid for a period of 180 days after issuance unless the City agrees to extend this period for good cause, including but not limited to delay caused by the lack of commercial power or communications facilities, or by other events outside of the reasonable control of the wireless provider.

(ii) The installed facility is subject to applicable relocation requirements, termination for material noncompliance after notice and a reasonable opportunity to cure, and an applicant’s right to terminate a permit at any time.

(a) Notice. The City shall provide the applicant reasonable advance notice, but no less than 15 days following written notice from the City, the wireless provider shall, at its own expense, protect, support, temporarily or permanently disconnect, remove, relocate, change or alter the position of any small wireless facilities within the rights-of-way whenever the City has determined that such removal, relocation, change or alteration is reasonably necessary for the construction, repair, maintenance, or installation of any City improvement in or upon, or the operations of the City in or upon, the rights-of-way.

(b) Emergency Removal or Relocation of Facilities. The City retains the right and privilege to cut or move any small wireless facility located within the rights-of-way of the City in the event of an emergency, as the City may determine to be necessary, appropriate or useful in response to any imminent danger to public health, safety, or property. If circumstances permit, the City shall notify the wireless provider and provide the wireless provider an opportunity to move its own facilities prior to cutting or removing a facility and shall notify the wireless provider promptly after cutting or removing a small wireless facility.

(c) Abandonment of Facilities. It shall be the responsibility of the wireless provider to remove equipment and infrastructure related to the wireless facility if the facility has been abandoned or is no longer in use after six months.

(d) Damage and Repair. The City may require a wireless provider to repair all damage to the rights-of-way directly caused by the activities of the wireless provider and return the rights-of-way to its functional equivalence before the damage pursuant to the competitively neutral, reasonable requirements and specifications. If the wireless provider fails to make the repairs within days after written notice, the City may effect those repairs and charge the applicable party the actual, documented cost of such repairs.