[HISTORY: Adopted by the Common Council of the City of Mayville as indicated in article histories. Amendments noted where applicable.]
[Adopted 7-8-2019 by Ord. No. 1107-2019]
For the purposes of this chapter, the terms below shall have the following meanings:
- The Director of Public Works or his or her designee.
- A person filing an application for placement or modification of a wireless telecommunications facility in the right-of-way.
- A formal request, including all required and requested documentation and information, submitted by an applicant to the City for a wireless permit.
- BASE STATION
- The same as in 47 CFR 1.6100(b)(1), which defines the term to mean a structure or wireless telecommunications equipment at a fixed location that enables FCC-licensed or authorized wireless communications between user equipment and a communications network. This definition does not include towers.
- ELIGIBLE FACILITIES REQUEST
- The same as in 47 CFR 1.6100(b)(3), which defines the term to mean any request for modification of an existing tower or base station that does not substantially change the physical dimensions of such tower or base station, involving; i) co-location of new transmission equipment; (ii) removal of transmission equipment; or iii) replacement of transmission equipment.
- The Federal Communications Commission.
- The surface of, and the space above and below the entire width of, an improved or unimproved public roadway, highway, street, bicycle lane, landscape terrace, shoulder, side slope, and public sidewalk over which the City exercises any rights of management and control or in which the City has an interest.
- SMALL WIRELESS FACILITY
- Consistent with 47 CFR 1.6002(1), means a facility that meets each of the following conditions:
- (1) The structure on which antenna facilities are mounted:
- (2) Each antenna (excluding associated antenna equipment) is no more than three cubic feet in volume;
- (3) All other wireless equipment associated with the structure, including the wireless equipment associated with the antenna and any preexisting associated equipment on the structure, is cumulatively no more than 28 cubic feet in volume;
- (4) The facility does not require antenna structure registration;
- (5) The facility is not located on tribal lands; and
- (6) The facility does not result in human exposure to radiofrequency radiation in excess of the applicable safety standards specified by federal law.
- SUPPORT STRUCTURE
- Any structure capable of supporting wireless telecommunications equipment.
- The same as in 47 CFR 1.6100(b)(9), which defines the term as any structure built for the sole or primary purpose of supporting any Federal Communications Commission (FCC) licensed or authorized antennas and their associated facilities, including structures that are constructed for wireless communications services, including, but not limited to, private, broadcast, and public safety services, as well as unlicensed wireless services and fixed wireless services such as microwave backhaul, and the associated site. This definition does not include utility poles.
- UNDERGROUND AREAS
- Those areas where there are no electrical facilities or facilities of the incumbent local exchange carrier in the right-of-way; or where the wires associated with the same are or are required to be located underground; or where the same are scheduled to be converted from overhead to underground. Electrical facilities are distribution facilities owned by an electric utility and do not include transmission facilities used or intended to be used to transmit electricity at nominal voltages more than 35,000 volts.
- UTILITY POLE
- A structure in the right-of-way designed to support electric, telephone, and similar utility distribution lines and associated equipment. A tower is not a utility pole.
- WIRELESS INFRASTRUCTURE PROVIDER
- A person that owns, controls, operates, or manages a wireless telecommunications facility or portion thereof within the right-of-way.
- WIRELESS PERMIT or PERMIT
- A permit issued pursuant to this chapter and authorizing the placement or modification of a wireless telecommunications facility of a design specified in the permit at a particular location within the right-of-way, and the modification of any existing support structure to which the wireless telecommunications facility is proposed to be attached.
- WIRELESS REGULATIONS
- Those regulations adopted pursuant to § 400-5B(1) to implement the provisions of this chapter.
- WIRELESS SERVICE PROVIDER
- An entity that provides wireless services to end users.
- WIRELESS TELECOMMUNICATIONS EQUIPMENT
- Equipment at a fixed location that enables FCC-licensed or authorized or -authorized wireless communications between user equipment and a communications network.
- WIRELESS TELECOMMUNICATIONS FACILITY or FACILITY
- A facility at a fixed location in the right-of-way consisting of a base station, antennas and other accessory equipment, and a tower and underground wiring, if any, associated with the base station.
Definitions in this section may contain quotations or citations to 47 CFR 1.6100 and 1.6002. In the event that any referenced section is amended, creating a conflict between the definition as set forth in this chapter and the amended language of the referenced section, the definition in the referenced section, as amended, shall control.
In the exercise of its police powers, the City has priority over all other uses of the right-of-way. The purpose of this chapter is to provide the City with a process for managing, and uniform standards for acting upon, requests for the placement of wireless telecommunications facilities within the right-of-way consistent with the City's obligation to promote the public health, safety, and welfare; to manage the right-of-way; and to ensure that the public's use is not obstructed or incommoded by the use of the right-of-way for the placement of wireless telecommunications facilities. The City recognizes the importance of wireless telecommunications facilities to provide high-quality communications and internet access services to residents and businesses within the City. The City also recognizes its obligation to comply with applicable federal and state laws regarding the placement of wireless telecommunications facilities in the right-of-way including, without limitation, the Telecommunications Act of 1996 (47 U.S.C. § 151 et seq.), Section 6409(a) of the Middle Class Tax Relief and Job Creation Act of 2012, §§ 182.017 and 196.58, Wis. Stats., and this chapter shall be interpreted consistent with those provisions.
Editor's Note: See 47 U.S.C.A. § 1455(a).
Applicability. Unless exempted by Subsection B, below, every person who wishes to place a wireless telecommunications facility in the right-of-way or modify an existing wireless telecommunications facility in the right-of-way must obtain a wireless permit under this chapter.
Exempt facilities. The provisions of this chapter (other than §§ 400-10 through 400-14 shall not be applied to applications for the following:
Installation of a small wireless facility on the strand between two utility poles, provided that the cumulative volume of all wireless facilities on the strand shall not exceed one cubic foot, and provided further that the installation does not require replacement of the strand, or excavation, modification, or replacement of either of the utility poles.
Installation of a mobile cell facility (commonly referred to as "cell on wheels" or "cell on truck") for a temporary period in connection with an emergency or event, but no longer than required for the emergency or event, provided that installation does not involve excavation, movement, or removal of existing facilities.
Placement or modification of a wireless telecommunications facility on structures owned by or under the control of the City. See § 400-13 of this chapter.
Placement or modification of a wireless telecommunications facility by City staff or any person performing work under contract with the City.
Modification of an existing wireless telecommunications facility that makes no material change to the footprint of a facility or to the surface or subsurface of a public street if the activity does not disrupt or impede traffic in the traveled portion of a street, and if the work does not change the visual or audible characteristics of the wireless telecommunications facility.
In establishing the rights, obligations, and conditions set forth in this chapter, it is the intent of the City to treat each applicant and right-of-way user in a competitively neutral and nondiscriminatory manner, to the extent required by law, while taking into account the unique technologies, situation, and legal status of each applicant or request for use of the right-of-way.
Administrator. The Administrator is responsible for administering this chapter.
Powers. As part of the administration of this chapter, the Administrator may:
Adopt wireless regulations governing the placement and modification of wireless telecommunications facilities in addition to but consistent with the requirements of this chapter, including regulations governing co-location, the resolution of conflicting applications for placement of wireless telecommunications facilities, and aesthetic standards.
Interpret the provisions of the chapter and the wireless regulations.
Develop forms and procedures for submission of applications for wireless permits consistent with this chapter.
Collect any fee required by this chapter.
Require, as a condition of completeness of any application, notice to members of the public that may be affected by the placement or modification of the wireless telecommunications facility that is the subject of the wireless permit application.
Establish deadlines for submission of information related to an application, and extend or shorten deadlines where appropriate and consistent with federal laws and regulations.
Issue notices of incompleteness or requests for information in connection with any wireless permit application.
Select and retain an independent consultant or attorney with expertise in telecommunications to review any issue that involves specialized or expert knowledge in connection with any permit application.
Coordinate and consult with other City staff, committees, and governing bodies to ensure timely action on all other required permits under § 400-6B(8) of this chapter.
Subject to appeal as provided in § 400-8D of this chapter, determine whether to grant, grant subject to conditions, or deny an application.
Take such other steps as may be required to timely act upon wireless permit applications, including issuing written decisions and entering into agreements to mutually extend the time for action on an application.
Format. Unless the wireless regulations provide otherwise, the applicant must submit both a paper copy and an electronic copy (in a searchable format) of any application, as well as any amendments or supplements to the application or responses to requests for information regarding an application, to the Administrator. An application is not complete until both the paper and electronic copies are received by the Administrator.
Content. In order to be considered complete, an application must contain:
All information required pursuant to the wireless regulations.
A completed application cover sheet signed by an authorized representative of the applicant, listing all standard permit conditions.
The name of the applicant (including any corporate or trade name), and the name, address, email address, and telephone number of a local representative. If the applicant is a wireless infrastructure provider, the name and contact information for the wireless service provider(s) that will be using the wireless telecommunications facility must also be provided.
A statement of which shot clock or shot clocks apply to the application and the reasons the chosen shot clocks apply.
A separate and complete description of each proposed wireless telecommunications facility and the work that will be required to install or modify it, including but not limited to details regarding proposed excavations, if any; detailed site plans showing the location of the facility and technical specifications for each element of the facility, clearly describing the site and all structures and facilities at the site before and after installation or modification and identifying the owners of such preexisting structures and facilities; and describing the distance to the nearest residential dwelling unit. Before-and-after 360° photo simulations must be provided for each facility.
Proof that the applicant has mailed to the owners of all property within 300 feet of the proposed wireless telecommunications facility a notice that the applicant is submitting an application to the City for placement or modification of a wireless telecommunications facility in the right-of-way, which notice must include i) the proposed location of the facility, ii) a description and scale image of the proposed facility, and iii) an email address and phone number for a representative of the applicant who will be available to answer questions from members of the public about the proposed project.
A copy of the FCC license for the facility or a sworn written statement from the applicant attesting that the facility will comply with current FCC regulations.
To the extent that filing of the wireless permit application establishes a deadline for action on any other permit that may be required in connection with the wireless telecommunications facility, the application must include complete copies of applications for every required permit (including, without limitation, electrical permits, building permits, traffic control permits, and excavation permits), with all engineering completed and with all fees associated with each permit.
A certification by a registered and qualified engineer that the installation can be supported by and does not exceed the tolerances of the structure on which it will be mounted and that all elements of the wireless telecommunications facility comply with applicable safety standards.
Payment of all required fees.
If an applicant contends that denial of the application would prohibit or effectively prohibit the provision of service in violation of federal law, or otherwise violate applicable law, the application must provide all evidence on which the applicant relies in support of that claim. Applicants are not permitted to supplement this evidence if doing so would prevent the City from complying with any deadline for action on an application.
If the application is an eligible facilities request, the application must contain information sufficient to show that the application qualifies as an eligible facilities request under 47 CFR 1.6100(b)(3), including evidence that the application relates to an existing tower or base station that has been approved by the City. Before-and-after 360° photo simulations must be provided with detailed specifications demonstrating that the modification does not substantially change the physical dimensions of the existing approved tower or base station.
Waivers. Requests for waivers from any requirement of this § 400-6 shall be made in writing to the Administrator. The Administrator may grant a request for waiver if it is demonstrated that, notwithstanding the issuance of the waiver, the City will be provided with all information necessary to understand the nature of the construction or other activity to be conducted pursuant to the wireless permit sought.
Fees. The applicant must provide an application fee and shall be required to pay all costs reasonably incurred in reviewing the application, including costs incurred in retaining outside consultants. Fees shall be reviewed periodically and raised or lowered based on the costs the City expects to incur, with a review commencing by the first anniversary of the effective date of this chapter.
Public records. Applications are public records that may be made publicly available pursuant to state and federal public records law. Notwithstanding the foregoing, the applicant may designate portions of the application materials that it reasonably believes contain proprietary or confidential information by clearly marking each portion of such materials accordingly, and the City shall endeavor to treat the information as proprietary and confidential, subject to applicable state and federal public records law and the Administrator's determination that the applicant's request for confidential or proprietary treatment of the application materials is reasonable. The City shall not be required to incur any costs to protect the application from disclosure.
Generally. Wireless telecommunications facilities shall meet the minimum requirements set forth in this chapter and the wireless regulations, in addition to the requirements of any other applicable law or regulation.
Regulations. The wireless regulations and decisions on wireless permits shall, at a minimum, ensure that the requirements of this chapter are satisfied, unless it is determined that the applicant has established that denial of an application would, within the meaning of federal law, prohibit or effectively prohibit the provision of telecommunications or personal wireless services, or otherwise violate applicable laws or regulations. If that determination is made, the requirements of this chapter and the wireless regulations may be waived, but only to the extent required to avoid the prohibition.
Wireless telecommunications facilities shall be installed and modified in a manner that:
Minimizes risks to public safety;
Ensures that placement of facilities on existing structures is within the tolerance of those structures;
Avoids placement of aboveground facilities in underground areas, installation of new support structures or equipment cabinets in the public right-of-way, or placement in residential areas when commercial areas are reasonably available;
Maintains the integrity and character of the neighborhoods and corridors in which the facilities are located;
Ensures that installations are subject to periodic review to minimize the intrusion on the right-of-way;
Ensures that the City bears no risk or liability as a result of the installations; and
Ensures that applicant's use does not inconvenience the public, interfere with the primary uses of the right-of-way, or hinder the ability of the City or other government entities to improve, modify, relocate, abandon, or vacate the right-of-way or any portion thereof, or to cause the improvement, modification, relocation, vacation, or abandonment of facilities in the right- of-way.
No wireless permit shall be issued unless i) the wireless service provider applicant has immediate plans to use the proposed facility or ii) the wireless infrastructure applicant has a contract with a wireless service provider that has immediate plans to use the proposed facility.
Preferred locations. The following locations, in the order listed from most to least preferred, are the preferred locations for installations of facilities in public rights-of- way, except for areas within the Main Street Historic District.
Nonpreferred locations. The applicant should avoid locating new support structures, towers, or utility poles within residential neighborhoods, designated open space, conservation areas, or historic districts. A facility may be permitted in a location other than a preferred location if the applicant provides evidence showing that:
Adequate coverage can be maintained, existing services can be improved, or new services can be added only if facilities are placed in a nonpreferred location; or
The proposed facility will meet all applicable requirements for the nonpreferred location and will complement the character of the surrounding area.
Co-location generally. Subject to the provisions of this section, co-location of facilities is generally preferred over new support structures if it can be accomplished in a way that better complements the character of the surrounding area.
Co-location with nonmunicipal facilities. Co-location on facilities or support structures owned by parties other than the City is subject to the following:
Where an existing facility or support structure can potentially accommodate co-location of a new wireless facility, co-location will be required unless:
The applicant submits substantial evidence supporting the unsuitability of the co-location;
The owner of the existing facility or support structure is unwilling to accommodate the applicant's equipment and cannot be required to cooperate; or
The Public Works Committee determines that installing a new support structure or co-location with a City facility is preferable to co-location with another facility or support structure.
Authorization for co-location on a facility or support structure owned by a party other than the City will be voided if the facility or support structure is destroyed, removed, relocated, or replaced, unless:
Obstruction. Facilities and support structures, towers, and utility poles must not obstruct, impede, or hinder vehicular, pedestrian, or bicycle travel or public safety within the right-of-way, except for authorized temporary lane or sidewalk closures. To the extent possible, a facility, support structure, tower, or utility pole should be located and designed so as to avoid interference with right-of-way maintenance activities, such as:
Alignment. Facilities and support structures, towers, and utility poles must be located in alignment with existing trees, facilities, support structures, towers, utility poles, and streetlights.
Facilities and support structures, towers, and utility poles must not be located along the frontage of any building deemed to be of historic significance on a federal, state, or local level.
Frontage. New facilities and support structures, towers, and utility poles must not be located directly in front of any existing residential, commercial, or industrial structure.
To the extent possible, new facilities and support structures, towers, and utility poles must be located in line with existing lot lines, but in areas where multiple structures abut each other or where no side lot setback requirement exists, structures must not be located directly in front of an entrance or window of any existing structure.
Use of lighting elements. A combination support structure and streetlight pole should only be located where an existing pole can be removed and replaced, or at a new location where the City has identified that a streetlight is necessary.
Maximum height of support structures, towers, and utility poles. The height of a support structure, tower, or utility pole in the right-of-way may not exceed the greater of 50 feet above ground level or 10 feet above the tallest existing support structure, tower, or utility pole that is in place on the effective date of this chapter and that is located in the same right-of-way and within 500 feet of the facility that is the subject of the application.
Maximum height of small wireless facility. The height of a small wireless facility in the right-of-way may not exceed the greater of 50 feet above ground level or 10 feet above the tallest existing support structure, tower, or utility pole that is in place on the effective date of this chapter and that is located in the same right-of-way.
Minimum height of wireless communications equipment. Equipment mounted to support structures must not interfere with or create a hazard to pedestrian or vehicular traffic and must be a minimum of 10 feet above any pedestrian or bicycle thoroughfare and a minimum of 25 feet above any traffic lane.
Underground areas. Ground-mounted equipment associated with facilities must be placed underground in underground areas.
Other areas. In all other areas, ground-mounted equipment must be placed underground to the extent feasible.
Ground-mounted equipment must be placed underground in connection with a streetlight, traffic signal, or other similar infrastructure in the right-of-way.
Concealment. Permits for wireless telecommunications facilities shall incorporate specific concealment elements to minimize visual impacts, and design requirements ensuring compliance with all standards for noise emissions. Unless it is determined that another design is less intrusive, or placement is required under applicable law:
Antennas located at the top of support structures shall be incorporated into the structure, or placed within shrouds of a size such that the antenna appears to be part of the support structure.
Antennas placed elsewhere on a support structure shall be integrated into the structure, or be designed and placed to minimize visual impacts.
Radio units or equipment cabinets holding radio units and mounted on a utility pole shall be placed as high as possible on a support structure, located to avoid interfering with, or creating any hazard to, any other use of the public rights-of-way, and located on one side of the utility pole. Unless the radio units or equipment cabinets can be concealed by appropriate traffic signage, radio units or equipment cabinets mounted below the communications space on utility poles shall be designed so that the largest dimension is vertical, and the width is such that the radio units or equipment cabinets are minimally visible from the opposite side of the support structure on which they are placed.
Wiring and cabling shall be neat and concealed within or flush to the support structure, ensuring concealment of these components to the greatest extent possible.
Ground-mounted equipment associated with a wireless telecommunications facility shall be permitted only where consistent with the portion of the corridor in which it is to be placed, and may be required to be underground, located in alleys or otherwise shielded. In no event may ground-mounted equipment interfere with pedestrian or vehicular traffic.
No support structures, towers, or utility poles shall be permitted in the public rights-of-way, and no wireless telecommunications facilities shall be permitted aboveground in underground areas provided that the City may permit placements where all elements of the wireless telecommunications facility are concealed and the facility does not appear to a casual observer to be a wireless telecommunications facility.
Unless appropriately placed, and concealed, so that the size of the facility cannot be increased except with the discretionary approval of the City, no wireless telecommunications facility is permitted in rights-of-way in alleys.
No wireless telecommunications facility is permitted in any local historic district without the approval of the Public Works Committee and the Common Council.
Color and materials. A new wireless telecommunications facility must be constructed with materials and colors that match or blend with the surrounding natural or built environment, to the maximum extent practicable. Unless otherwise required, muted colors, earth tones, and subdued hues shall be used.
Dimensions. Small wireless facilities shall not exceed the width of an existing structure.
Visual impact. Wireless communication facilities must be designed to minimize visual impacts. When feasible, the facilities must be concealed or camouflaged. The facilities must have a nonreflective finish and be painted or otherwise treated to minimize visibility and the obstruction of views.
Definitions used in concealment provisions:
- CAMOUFLAGED or CONCEALED
- Designed to mask or blend with the surrounding environment in such a manner to render it generally unnoticeable to the casual observer. By way of example, a wireless communication facility may be camouflaged in a faux tree, faux bush, flagpole, or otherwise designed in a manner to be compatible with the appurtenant architecture, building, or natural surroundings.
- Concealment techniques that completely screen all associated equipment from public view and are so integrated into the surrounding natural or man-made environment that the observer does not recognize the structure as a wireless facility. Examples include, but are not limited to: 1) wireless equipment placed completely within existing architectural features such that the installation causes no visible change to the underlying structure; 2) new architectural features that match the underlying structure in architectural style, physical proportion and construction-materials quality; 3) flush-to-grade underground equipment vaults with flush-to-grade entry hatches, with wireless equipment placed completely within.
Noise. Facilities must be constructed and operated in a manner that minimizes noise that is audible as provided in Mayville City Code § 317-5. A wireless facility and all equipment associated with a wireless facility shall not generate noise that exceeds the applicable ambient noise limit in the zone where the wireless facility is located. The City may require the applicant to install noiserattenuating or baffling materials and/or other measures, including but not limited to walls or landscape features, as the approval authority deems necessary or appropriate to ensure compliance with the applicable ambient noise limit.
Lighting. Facilities must not be illuminated, except in accordance with state or federal regulations or if incorporated as part of a streetlight pole.
Signage. Signage shall be subject to the following regulations:
General prohibition and requirements. Signage is not permitted except to comply with FCC or Wisconsin regulations to provide safety warnings. No facility may display any signage or advertisements unless expressly allowed by the City in a written approval, recommended under FCC regulations or required by law or permit condition. Every facility shall at all times display signage that accurately identifies the facility owner and provides the facility owner's unique site number, and also provides a local or toll-free telephone number to contact the facility owner's operations center.
Signage required: The owner and/or operator must post an identification sign at each facility, including owner/operator emergency telephone numbers. The design, materials, colors, and location of the identification signs shall be subject to review and approval by the City. If at any time a new owner or operator provider takes over operation of an existing personal wireless service facility, the new personal wireless service provider shall notify the City of the change in operation within 30 days, and the required and approved signs shall be updated within 30 days to reflect the name and phone number of the new wireless service provider. The colors, materials and design of the updated signs shall match those of the required and approved signs. No sign shall be greater than two square feet in size.
Standard permit conditions. All wireless permits under this chapter are issued subject to the following minimum conditions:
Compliance. The permit holder shall at all times maintain compliance with all applicable federal, state, and local laws, regulations, and other rules.
Term. A wireless permit issued pursuant to an eligible facilities request shall expire at the same time the permit for the underlying existing wireless telecommunications facility expires. All other wireless permits shall be valid for a period of five years from the date of issuance unless revoked pursuant to § 400-9B of this chapter.
Contact information. The permit holder shall at all times maintain with the City accurate contact information for the permit holder and all wireless service providers making use of the facility, which shall include a phone number, mailing address, and email address for at least one natural person.
Emergencies. The City shall have the right to support, repair, disable, or remove any elements of the facilities in emergencies or when the facility threatens imminent harm to persons or property.
Indemnities. The permit holder, by accepting a permit under this chapter, agrees to indemnify, defend, and hold harmless the City, its elected and appointed officials, officers, employees, agents, representatives, and volunteers (collectively, the "indemnified parties") from and against any and all suits, actions, legal or administrative proceedings, claims, demands, damages, liabilities, interest, attorneys' fees, costs, and expenses of whatsoever kind or nature in any manner caused in whole or in part, or claimed to be caused in whole or in part, by reason of any act, omission, fault, or negligence, whether active or passive, of the permit holder or anyone acting under its direction or control or on its behalf, even if liability is also sought to be imposed on one or more of the indemnified parties. The obligation to indemnify, defend, and hold harmless the indemnified parties shall be applicable even if the liability results from an act or failure to act on the part of one or more of the indemnified parties. However, the obligation does not apply if the liability results from the willful misconduct of an indemnified party.
Adverse impacts on adjacent properties. The permit holder shall undertake all reasonable efforts to avoid undue adverse impacts to adjacent properties and/or uses that may arise from the construction, operation, maintenance, modification, or removal of the facility.
General maintenance. The wireless communications facility and any associated structures shall be maintained in a neat and clean manner and in accordance with all approved plans and conditions of approval.
Graffiti removal. All graffiti on facilities shall be removed at the sole expense of the permit holder within 48 hours after notification from the City.
Relocation. At the request of the City pursuant to § 400-10 of this chapter, the permit holder shall promptly and at its own expense permanently remove and relocate any wireless telecommunications facility in the right-of-way.
Abandonment. The permit holder shall promptly notify the City whenever a facility has not been in use for a continuous period of 60 days or longer and must comply with § 400-11 of this chapter.
Restoration. A permit holder who removes or relocates a facility from the right-of-way must restore the right-of-way in accordance with § 400-12 of this chapter.
Record retention. The permit holder shall retain full and complete copies of all permits and other regulatory approvals issued in connection with the facility, which includes without limitation all conditions of approval, approved plans, resolutions, and other documentation associated with the permit or regulatory approval. In the event the City cannot locate any such full and complete permits or other regulatory approvals in its official records, and the permit holder fails to retain full and complete records in the permit holder's files, any ambiguities or uncertainties that would be resolved through an examination of the missing documents will be conclusively resolved against the permit holder.
Radio frequency emissions. Every wireless facility shall at all times comply with applicable FCC regulations governing radio frequency emissions, and failure to comply with such regulations shall be treated as a material violation of the terms of the permit.
Certificate of insurance. A certificate of insurance sufficient to demonstrate to the satisfaction of the Administrator that the applicant has the capability to cover any liability that might arise out of the presence of the facility in the right-of-way shall be provided.
Rejection for incompleteness. Notices of incompleteness shall be provided in conformity with state, local, and federal law, including 47 CFR 1.6003(d), as amended.
Processing time line. Wireless permit applications [including applications for other permits under Subsection 6B(8) necessary to place or modify the facility] and appeals will be processed in conformity with the shot clocks set forth in state, local, and federal law, as amended.
Written decision. In the event that an application is denied (or approved with conditions beyond the standard permit conditions set forth in § 400-7C), the Administrator shall issue a written decision with the reasons therefor, supported by substantial evidence contained in a written record.
Appeal to City Council. Any person adversely affected by the decision of the Administrator may appeal that decision to the City Council, which may decide the issues de novo, and whose written decision will be the final decision of the City. An appeal by a wireless infrastructure provider must be taken jointly with the wireless service provider that intends to use the wireless telecommunications facility.
Deadline to appeal.
Appeals that involve eligible facilities requests must be filed within three business days of the written decision of the Administrator.
All other appeals not governed by Subsection 8E(1) above must be filed within 10 business days of the written decision of the Administrator, unless the Administrator extends the time therefor. An extension may not be granted where such extension would result in approval of the application by operation of law.
Decision deadline. All appeals shall be conducted so that a timely written decision may be issued in accordance with the applicable shot clock.
Expiration. A wireless permit issued pursuant to an eligible facilities request shall expire at the same time the permit for the underlying existing wireless telecommunications facility expires. All other wireless permits shall be valid for a period of five years from the date of issuance. Upon expiration of the wireless permit, the permit holder must either:
Revocation for breach. A wireless permit may be revoked for failure to comply with the conditions of the permit or applicable federal, state, or local laws, rules, or regulations. Upon revocation, the wireless telecommunications facility must be removed within 30 days of receipt of written notice from the City. All costs incurred by the City in connection with the revocation, removal, and right-of-way restoration shall be paid by the permit holder.
Failure to obtain permit. Unless exempted from permitting by § 400-3B of this chapter, a wireless telecommunications facility installed without a wireless permit must be removed within 30 days of receipt of written notice from the City. All costs incurred by the City in connection with the notice, removal, and right-of-way restoration shall be paid by entities who own or control any part of the wireless telecommunications facility.
Except as otherwise prohibited by state or federal law, a permit holder must promptly and at its own expense, with due regard for seasonal working conditions, permanently remove and relocate any of its wireless telecommunications facilities in the right-of-way whenever the City requests such removal and relocation. The City may make such a request to prevent the facility from interfering with a present or future City use of the right-of-way; a public improvement undertaken by the City; an economic development project in which the City has an interest or investment; when the public health, safety, or welfare require it; or when necessary to prevent interference with the safety and convenience of ordinary travel over the right-of-way. Notwithstanding the foregoing, a permit holder shall not be required to remove or relocate its facilities from any right-of-way that has been vacated in favor of a nongovernmental entity unless and until that entity pays the reasonable costs of removal or relocation to the permit holder.
Cessation of use. In the event that a permitted facility within the right-of-way is not in use for a continuous period of 60 days or longer, the permit holder must promptly notify the City and do one of the following:
Provide information satisfactory to the Administrator that the permit holder's obligations for its facilities under this chapter have been lawfully assumed by another permit holder.
Submit to the Administrator a proposal and instruments for dedication of the facilities to the City. If a permit holder proceeds under this Subsection 11A(2) the City may, at its option:
Accept the dedication for all or a portion of the facilities;
Require the permit holder, at its own expense, to remove the facilities and perform the required restoration under § 400-12;
Abandoned facilities. Facilities of a permit holder who fails to comply with § 400-11A and which, for one year, remain unused shall be deemed to be abandoned. Abandoned facilities are deemed to be a nuisance. In addition to any remedies or rights it has at law or in equity, the City may, at its option:
In the event that a permit holder removes or is required to remove a wireless telecommunications facility from the right-of-way under this chapter (or relocate it pursuant to § 400-10, the permit holder must restore the right-of-way to its prior condition in accordance with City specifications. However, a support structure owned by another entity authorized to maintain that support structure in the right-of-way need not be removed but must instead be restored to its prior condition. If the permit holder fails to make the restorations required by this § 400-12, the City, at its option, may do such work. In that event, the permit holder shall pay to the City, within 30 days of billing therefor, the cost of restoring the right-of-way.
The City may negotiate agreements for placement of wireless telecommunications facilities on City-owned or -controlled structures in the right-of-way. The agreement shall specify the compensation to the City for use of the structures. The person or entity seeking the agreement shall reimburse the City for all costs the City incurs in connection with its review of and action upon the request for an agreement.
If any section, subsection, clause, phrase, or portion of this chapter is for any reason held to be illegal or otherwise invalid by any court or administrative agency of competent jurisdiction, such illegal or invalid portion shall be severable and shall not affect or impair any remaining portion of this chapter, which shall remain in full force and effect.