Purpose and intent. Public demand for consistent wireless communication
service is being met by service providers in some locations by the
use of small cell wireless antennas to improve service in areas where
coverage gaps occur due to geographic and/or network capacity factors
to meet demand. Wireless service providers in some cases seek to place
small cell wireless antennas on utility poles located in the public
way. Therefore, in order to balance public interests between demand
for reliable wireless service and public concerns regarding safety
and aesthetics, this section is intended to regulate the use of small
cell wireless antennas proposed for utility poles in the public way
by establishing a process to determine if such small cell wireless
antenna equipment serves a useful and needed public purpose for which
there is no reasonable alternative; is designed to be safe, structurally
sound, and aesthetically acceptable; and utilizes all available means
to reduce size and visibility.
An engineer with sufficient education and/or experience in
the relevant field to competently review materials referred to him
or her. Where the Commonwealth of Massachusetts requires that an engineer
in the relevant field receive a professional license or certificate,
the engineer must have said license or certificate by the proper authority
in order to be considered a professional engineer under this definition.
The area in, upon, along and over the public street, sidewalks,
roads, lanes and places within the City which are now or may be under
the permitting jurisdiction of the Department of Public Works or in
similar areas wherein City Council has permitting jurisdiction.
The canister antenna, remote radioheads, power source and
meter, disconnect switch, fiber optic cable, and supporting equipment,
if any, installed on a utility pole which fit the dimensions provided
in this section.
When not inconsistent with the context, words in the singular
number include the plural number. The word "shall" is always mandatory
and not merely directory.
Authority. Consistent with MGL c. 166, the City Council is authorized
to approve petitions for licenses to install small cell facilities
on utility poles upon receipt of a complete application form completed
by an applicant, including all supporting documentation.
Plan, signed by a professional engineer, showing the subject
utility pole, the proposed small cell facility, and the area within
a thirty-foot radius of the utility pole.
License, work order, letter, or other appropriate documentation
from the owner(s) of the utility pole, authorizing the installation
of the small cell facility on the specific utility pole identified
in the application or confirming such authorization. Such document
shall be deemed to constitute a structural certification by the owner(s)
of the utility pole attesting to the integrity of the utility pole
to support the small cell facility. The applicant shall pay the reasonable
expenses of a professional engineer retained by the Director of Consolidated
Public Works, the Inspector of Wires, or the City Council, at its
option, to confirm this certification.
License(s) from the Federal Communications Commission evidencing
the petitioner's authority, or the authority of the petitioner's
customer(s), to transmit and receive wireless telecommunications,
unless such license is already on file with the City.
Radio frequency (RF) emissions report demonstrating that the proposed small cell facility will comply with the maximum permissible exposures adopted by the Federal Communications Commission. If the plan described in Section 13-72(d)(2) indicates there is RF-emitting equipment within 30 feet of the subject utility pole, the Director of Consolidated Public Works, the Inspector of Wires, or the City Council shall have the option of retaining a professional engineer to confirm the conclusions contained in the emissions report submitted by the applicant. The applicant shall pay the reasonable expenses of such professional engineer.
The applicant may submit the materials described above during the City Council's consideration of a petition, or, if the petition is denied, to submit a new petition with such materials. The applicant shall pay the reasonable expense of a professional engineer who may be retained at the option of the Director of CPW, the Inspector of Wires, or the City Council to review the materials described in Section 13-72(d)(9). If the applicant elects not to submit supporting material as described in Section 13-72(d)(9) above, the applicant shall be deemed to have waived any right to appeal under the Federal Telecommunications Act and any FCC report or order.
Preapplication review. Applicants shall have the option of submitting the materials required in Section 13-72(d) to the Director of Consolidated Public Works and the Inspector of Wires for review prior to submitting a petition to the City Council, as described below. If the Director of Consolidated Public Works and the Inspector of Wires determine that the materials satisfy the standards below, the resulting petition shall be entitled to expedited review by the City Council, per the terms of this Section 13-72. Petitioners are not required to seek preapplication review and, per the terms of this section below, may apply to the City Council without consulting with the Director of Consolidated Public Works and the Inspector of Wires.
Prior to submitting a petition to the City Council for consideration, any applicant has the option of submitting its petition for a license to the Director of Consolidated Public Works and the Inspector of Wires to ensure that the petition package contains the materials described in Section 13-72(d) above and to determine that the petition substantially demonstrates the following:
In no event may the antenna exceed three cubic feet nor may
any part of the small cell facility project from the utility pole
further than 39 inches if installed 20 feet or higher above the ground
or further than 24 inches if installed below 20 feet above the ground.
The proposed small cell facility does not exceed the permissible
radio frequency exposures adopted by the Federal Communications Commission
taking into consideration other sources of RF at the site.
Upon receipt of a petition, the Director of Consolidated Public Works and the Inspector of Wires shall have 15 business days to review the petition as permitted in this section and either provide written notice to the applicant that the petition does not contain all the materials required in Section 13-72(d) or provide written notice to the applicant of the findings and recommendation, if any, of the Director of Consolidated Public Works and the Inspector of Wires.
If the Director of Consolidated Public Works and the Inspector of Wires determine that the petition contains the materials described in Section 13-72(d) and substantially satisfies the criteria listed in Section 13-72(e)(1), the Director of Consolidated Public Works and the Inspector of Wires shall send written notification to the applicant that they advise the City Council that the applicant has satisfied the requirements of Section 13-72(d) and (e)(1). The applicant may then submit a petition and copies of the relevant correspondence and notices from the Director of Consolidated Public Works and the Inspector of Wires to the City Council. The City Council shall review such application per Section 13-72(f)(1).
If the Director of Consolidated Public Works and the Inspector of Wires determine that the petition contains the materials described in Section 13-72(d) and does not substantially satisfy all of the criteria listed in Section 13-72(e)(1), the Director of Consolidated Public Works and the Inspector of Wires shall send written notification to the applicant of the criteria that are and are not satisfied. The applicant may then revise its materials and resubmit them to the Director of Consolidated Public Works and the Inspector of Wires for preapplication review, or submit a petition and copies of the relevant correspondence and notices from the Director of Consolidated Public Works and the Inspector of Wires to the City Council. The City Council shall review such application per Section 13-72(f)(2).
After the petitioner has given 14 days' notice to abutters of its petition, the City Council shall reach a final decision regarding the small cell facility within 45 days of receipt of a petition to install a small cell facility for which the Director of Consolidated Public Works and the Inspector of Wires have advised the City Council that the applicant has satisfied the requirements of Section 13-72(d) and (e)(1), except that for any petition submitted pursuant to this section between the last City Council meeting in June and the first City Council meeting in September, the City Council shall reach a final decision by October 15. If no final action on the petition is taken within the times specified in this section, the license shall be deemed issued and the petitioner shall be authorized to commence installation.
In the event that the City Council receives an application for which either the Director of Consolidated Public Works or the Inspector of Wires has determined that one or more criteria in Section 13-72(e)(1) are not satisfied, the City Council shall give 14 days' notice to abutters and conduct a publicly noticed hearing to consider the petition, and the applicant shall be given the opportunity to appear before the City Council to support the petition. The City Council shall review the application to determine that it substantially satisfies the relevant criteria, or provides substantial evidence that denying the license would prohibit or have the effect of prohibiting the provision of personal wireless services in violation of 47 U.S.C. § 332(c)(7). The City Council shall reach a final decision within 90 days of the filing of an application with City Council.
Upon the filing of an application for a license that has not been reviewed by the Director of Consolidated Public Works and the Inspector of Wires, the City Clerk's office shall send the application to the Director of Consolidated Public Works and the Inspector of Wires for substantive review as provided in Section 13-72(e)(1) within the timetable described in Section 13-72(e)(2). The City Council shall give 14 days' notice to abutters and conduct a publicly noticed hearing to consider the petition, and the applicant shall be given the opportunity to appear before the City Council to support the petition. The City Council shall review the application, and any recommendation of the Director of consolidated Public Works and/or the Inspector of Wires to determine if it substantially satisfies the criteria in Section 13-72(e)(1). In the event that the city Council determines that an application does not satisfy one or more criteria, the City Council shall review the application to determine that it substantially satisfies the relevant criteria, or provides substantial evidence that denying the license would prohibit or have the effect of prohibiting the provision of personal wireless services in violation of 47 U.S.C. § 332(c)(7). The City Council shall reach a final decision within 90 days of the date the City Clerk accepts a completed application.
Changes to a licensed small cell facility. Except for repairs, maintenance,
and the replacement of a small cell facility with another the same
or smaller in size, any proposed changes to a licensed small cell
facility shall require an application to expand the small cell facility.
In compliance with the Federal Telecommunications Act, Section
6409(a) of the Federal Middle Class Tax Relief and Job Creation Act
of 2012, and Federal Communications Commission Report and Order "In
re Acceleration of Broadband Deployment by Improving Wireless Facilities
Siting Policies" (FCC 14-153), the City recognizes that applicants
seeking to expand on previously approved small cell facilities, and/or
co-locate new small cell facilities on utility poles with a previously
approved small cell facility are entitled to approval of such installations
if they do not "substantially change" the utility pole, as that term
is defined under federal law. Consistent with this right, the City
shall review each proposed small cell facility expansion and co-location
request to determine if it proposes to substantially change the relevant
utility pole.
All applicants proposing to expand an existing small cell facility
or co-locate on a utility pole with an approved small cell facility
shall submit to the Director of Consolidated Public Works and the
Inspector of Wires for preapplication review a plan, signed by a professional
engineer, showing the subject utility pole, the proposed expansion
of the small cell facility, and/or the proposed small cell facility.
The Director of Consolidated Public Works and the Inspector
of Wires shall review the plans to determine if the proposal will
substantially change the relevant utility pole by any of the following
ways:
Defeating the existing concealment or stealth elements of the utility pole, meaning the conditions of approval that are designed as shown in the diagram in Subsection (b), the definition of "typical utility pole," above or are designed to make the utility pole look like something other than a base station or tower; or
If the Director of Consolidated Public Works and the Inspector of Wires each determine that the proposal does not substantially change the relevant utility pole per Section 13-72(h)(3), they shall send notice of such to the City Clerk, and the applicant shall be authorized to install the proposed equipment.
If either the Director of Consolidated Public Works or the Inspector of Wires determines that the proposal substantially changes the relevant utility pole, the applicant shall have the option to either redesign the proposal and resubmit pursuant to Section 13-72(h) or apply for a license using the proposal as-is, and the City Council shall review the application, pursuant to the provisions of Section 13-72(d) through (f).
Any small cell facility approved pursuant to this Section 13-72 shall be removed by the applicant and at their expense, and the relevant license terminated if the City requires the removal of the utility pole where the small cell facility is located.
The wireless communication equipment must at all times be maintained
in a good and safe condition and comply with all applicable FCC standards,
and the licensee, immediately upon permanent cessation of use, shall
notify the City if the small cell facility permanently ceases to be
used for its intended purpose, and shall remove all the licensed equipment
no later than 60 days following permanent cessation of use.
Except as otherwise provided for in this Section 13-72, the City may remove or relocate small cell facilities, at the licensee's sole expense, approved pursuant to this Section 13-72 and terminate the relevant license(s) after the City Council, upon at least 10 business days' notice to the licensee(s), reasonably determines at a public hearing that the removal or relocation is needed:
Because the small cell facility is not being properly maintained
or interferes with or adversely affects proper operation of the light
poles, traffic signals, City-owned communications systems or other
City facilities;
Because there is a change in use of the public right-of-way
by the City, provided that such use affects similarly licensed users
in the public right-of-way;
To preserve and protect the public health and safety, in a manner
not inconsistent with 47 U.S.C. § 332(c)(7) or by using
the procedures established for the removal of overhead structures
and equipment contained in MGL c. 166, §§ 22A through
22N.
The Inspector of Wires is authorized to order the removal of any small cell facility installed on a utility pole that has not been authorized pursuant to this Section 13-72. Any party installing any such small cell facility shall be subject to penalties consistent with Sections 1-9 through 1-13 of the General Ordinances. Each day such violation exists shall be considered a separate offense.
The City may inspect, at any time, the small cell facility to
ensure that it is being maintained consistent with this section and
with state and federal laws.
Relationship to Zoning Ordinance. This Section 13-72 governs the installation of small cell facilities on utility poles located in the public right-of-way. Except as otherwise stated herein, the terms of the Zoning Ordinance do not govern such installations.
Indemnification. The applicant shall file a statement of obligation
to indemnify the City from and against any and all actions, losses,
liabilities, expenses, claims, demands, injuries, damages, penalties,
costs, judgments or suits of any kind arising directly or indirectly
from or resulting from the construction, installation, maintenance,
replacement, removal or repair of the wireless facilities and from
any accident, death or injury, to real or personal property and persons
that is caused by with the work or activities of the applicant relating
to the wireless facilities.
Subject to Subsection (d)(9) above, any person aggrieved by a decision
of the City Council may appeal as per the procedural requirements
of special permits contained in MGL c. 40A, § 17.