A.
Purpose. The purpose of this division is to provide policies and
procedures for the placement of small wireless facilities, which will
provide a public benefit consistent with the preservation of the integrity,
safe usage, and visual qualities of the City and comply with applicable
state and federal laws, regulations and guidelines.
B.
Intent. In enacting this division, the City is establishing uniform
standards to address issues presented by small wireless facilities,
including without limitation:
(1)
Health, safety, and welfare of citizens;
(2)
Limit interference with the use of streets, sidewalks, alleys,
parkways, public utilities, public views, certain City corridors,
and other public ways and places;
(3)
Limit the creation of visual and physical obstructions and other
conditions that are hazardous to vehicular and pedestrian traffic;
(4)
Limit interference with the facilities and operations of facilities
lawfully located in rights-of-way or public property;
(5)
Limit environmental damage, including damage to trees;
(6)
Respect the character of the neighborhoods in which facilities
are installed by minimization of visual clutter and preservation of
the character and aesthetics of areas in close proximity to small
wireless communication facilities;
(7)
Facilitate the City's permitting process to encourage fair and
meaningful competition;
(8)
Encourage co-location of antenna on existing facilities; and
(9)
Facilitate deployment of small cell facilities to provide the
benefits of advanced wireless services to all citizens and organizations
throughout the City. Municipalities recognize the economic and social
value of data connectivity and desire to encourage wireless infrastructure
investment by providing a fair and predictable process for the deployment
of small wireless facilities within the public rights-of-way in a
manner that is:
C.
Zoning and use of rights-of-way by wireless provider.
(1)
A wireless provider shall have the right, as a permitted use
not subject to zoning review or approval, to co-locate, maintain,
modify, operate, and replace small wireless facilities and to install,
maintain, modify, and replace poles it owns or manages or, with the
permission of the owner, a third party's pole, associated with a small
wireless facility, along, across, upon, and under the right-of-way.
(2)
Small wireless facilities and associated poles shall be installed
and maintained so as not to obstruct or hinder the usual travel or
public safety of the right-of-way or the usage of the right-of-way
by utilities.
(3)
Therefore, applications to co-locate a small wireless facility
or install or modify an associated utility pole in the right-of-way
shall be treated as a permitted use in all districts within the City
but are not exempt from the following local regulations and review.
(4)
All wireless facilities not meeting the definition of a small
wireless facility shall be subject to applicable local zoning and
development requirements.
D.
Conflicts with state and federal laws. In the event that applicable
federal or state laws or regulations conflict with the requirements
of this section, the wireless services provider shall comply with
the requirements of this section to the extent that its provisions
are not preempted by, or do not conflict with, applicable federal
or state laws or regulations.
A.
Location. While small cell facilities are permitted uses within all
zoning districts within the City, deployment of small cell facilities
within the City is subject to the standards set forth in this ordinance.
B.
Height.
(1)
Each new or modified pole installed in the right-of-way for
the purpose of co-location of small wireless facilities shall not
exceed the greater of:
(2)
A new small wireless facility in the right-of-way shall not
extend more than 10% above the existing structure on which it is located
or 50 feet above ground level, whichever is greater.
(3)
A wireless provider shall have the right to co-locate a wireless facility and install, maintain, modify, and replace a pole that exceeds the height limits required under Subsection B(1) of this section along, across, upon and under the right-of-way, subject to this section and any applicable zoning regulations.
C.
Location and design.
(1)
A wireless provider shall not install a small wireless facility
or pole in an historic district without complying with the requirements
of general application for structures within the historic district.
(2)
A wireless provider may replace decorative poles when necessary
to deploy a small wireless facility so long as the replacement reasonably
conforms to the design of the original decorative pole.
D.
Damage and repair; replacements; abandonment; removal.
(1)
Damage and repair.
(a)
A wireless provider shall repair all damage to the right-of-way
directly caused by the activities of the wireless provider in the
right-of-way and return the right-of-way to its functional and aesthetic
equivalence before the damage under the competitively neutral, reasonable
requirements and specifications of the City.
(b)
If the wireless provider fails to make the repairs required
by the City within a reasonable time after written notice, the City
may make those repairs and charge the applicable party the actual
and reasonable documented cost, including overhead, of the repairs.
(2)
Replacement, upgrade or modification of poles.
(a)
A wireless provider is not required to replace or upgrade an
existing pole except for reasons of structural necessity or compliance
with applicable codes.
(b)
A wireless provider may, with the permission of the pole owner,
replace or modify existing poles, but any such replacement or modification
shall substantially conform to the design aesthetics of the pole being
modified or replaced.
(3)
Abandonment.
(a)
A wireless provider shall notify the City at least 30 days before
the wireless provider's abandonment of a small wireless facility.
(b)
If the wireless provider fails to remove the abandoned small
wireless facility within 90 days after the notice, the City may undertake
the removal and recover the actual and reasonable documented cost,
including overhead, of the removal from the wireless provider, or
its successors or assigns.
(4)
Violations; removal.
(a)
The City may order the removal of a small wireless facility
or associated pole in the right-of-way that violates A.C.A. §§ 23-17-505,
23-17-506, or applicable codes.
(b)
The City shall provide written notice of the violation to the
owner of the small wireless facility at least 30 days before removal
to afford the owner the opportunity to conduct repairs or removal,
or otherwise remedy the violation.
(c)
If the City determines that a wireless provider's activity in
a right-of-way under this section creates an imminent risk to public
safety, the City may provide written notice to the wireless provider
and demand that the wireless provider address the risk.
(d)
If the wireless provider fails to reasonably address the risk
within 24 hours of the written notice, the City may take or cause
to be taken, action to reasonably address the risk and charge the
wireless provider the reasonable documented cost of the actions.
(5)
A wireless provider shall not co-locate a small wireless facility
or install, modify, or replace a pole in the right-of-way that:
(a)
Materially interferes with the safe operation of traffic control
equipment;
(b)
Materially interferes with sight lines or clear zones for transportation
or pedestrians;
(c)
Materially interferes with compliance with the Americans with
Disabilities Act of 1990, Pub. L. No. 101-336, or similar federal
or state standards regarding pedestrian access or movement; or
(d)
Fails to comply with applicable codes.
E.
Co-location.
(1)
This section applies to activities of a wireless provider co-locating
small wireless facilities on authority poles in the City's right-of-way
or in a right-of-way controlled by the Arkansas Department of Transportation
located within the City.
(2)
Regulations regarding poles.
(a)
A person owning, managing, or controlling poles in the City
or state right-of-way shall not enter into an exclusive arrangement
with any person for the right to attach to the poles.
(b)
A person who purchases or otherwise acquires a pole in the City
or state right-of-way is subject to the requirements of this section.
(5)
Make-ready design and work.
(a)
As part of an application to co-locate a small wireless facility
on an authority pole, the wireless provider shall submit make-ready
design drawings and work descriptions that enable the pole to support
the requested co-location by the wireless provider, including pole
replacement if necessary.
(b)
The City may amend the make-ready design drawings and work to
comply with applicable codes before the issuance of a permit to the
extent reasonably necessary.
(c)
The rates, fees, and terms and conditions for the make-ready
work to co-locate on an authority pole shall be nondiscriminatory,
competitively neutral, and commercially reasonable and shall comply
with this section.
(d)
The City shall not require more make-ready work than required
to meet applicable codes or industry standards nor may the fees for
make-ready work include costs related to preexisting or prior damage
or noncompliance.
(6)
Replacement of authority poles.
(a)
The City may require replacement of an authority pole only if
the co-location would make the authority pole structurally unsound.
(b)
The City may require that the replaced authority pole have the
same functionality as the pole being replaced.
(c)
If the authority pole is replaced, the City shall take ownership
of the new pole and operate authority fixtures on the pole.
(7)
Fees.
(a)
Make-ready fees charged by the City may include the amount the
authority pays a professional engineer registered in Arkansas to review
the wireless provider's make-ready work plans.
(b)
Fees for make-ready work shall not include any revenue or contingency-based
consultant's fees or expenses of any kind.
(8)
Within 60 days of the receipt of the application filed to co-locate
on a City pole, the City shall elect to:
(9)
Completion of make ready work.
(a)
The City shall complete make-ready work it elects to perform,
including any pole replacement, within 60 days of written acceptance
of the good-faith estimate of the applicant.
(b)
If the City, electing to perform the make-ready work, has not completed the work within 60 days after the written acceptance and deposit of the good-faith estimate by the applicant, the applicant may demand a return of any deposited funds and proceed with the make-ready work as described in Subsection E(5) of this section, using authorized, qualified contractors approved by the City with the authorization not to be unreasonably withheld, conditioned, or delayed.
(10)
The City or other applicable authority may reserve space on
an authority pole for future public safety or transportation uses
in a documented and approved plan in place at the time an application
is filed.
(a)
A reservation of space shall not preclude placement of a pole
or co-location of a small wireless facility.
(b)
If replacement of the City's pole is necessary to accommodate
the co-location of the small wireless facility and the future use,
the wireless provider shall pay for the replacement of the authority
pole and the replaced pole shall accommodate future use.
F.
Aesthetics.
(1)
The aesthetic appearance of small wireless facilities and associated
poles is regulated by the City to ensure coordinated, adjusted, and
harmonious development, as provided in this section. The City may
apply these requirements to areas of the City in which coordinated,
adjusted, and harmonious development has been established through
the use of overlay districts or historical districts which have been
in existence at least 90 days prior to the passage of this ordinance.
(2)
These aesthetic standards shall adhere to the following requirements:
(a)
Reasonable, in that they are technically feasible and reasonably
directed to avoiding or remedying unsightly or out-of-character deployments;
(b)
No more burdensome than those applied to other types of utility
and communications infrastructure deployments;
(c)
Objective and published at least 90 days in advance of the filing
of an application under this section;
(d)
Any design or concealment measures are not considered a part
of the small wireless facility for purposes of the size parameters
in the definition of "small wireless facility"; and
(e)
The City may deny an application for not complying with aesthetic
requirements only if the City finds that the denial does not prohibit
or have the effect of prohibiting the provision of wireless service.
(3)
The Board of Zoning Adjustment may:
(a)
Hear appeals of the decision of the Administrative Officer in
respect to the enforcement and application of the aesthetic standards,
and may affirm or reverse, in whole or in part, the decision of the
Administrative Officer.
(b)
Hear requests for variances from the literal provisions of the
aesthetic standards and grant the variances only when it is necessary
to avoid the prohibition of wireless service or otherwise comply with
the law.
(4)
Decisions of the Board in respect to this section shall be subject
to appeal only to a court of record having jurisdiction.
(5)
Equipment enclosures.
(a)
To the extent technically feasible, if the support structure
is a pole, all radios and wireless communication equipment, except
the antenna, shall be enclosed within an equipment cabinet and housed:
at the base of the support structure; pole-mounted (at a height and
placement that will not interfere with pedestrian, cyclist, or vehicular
movements); or below grade.
(b)
Where underground utilities are required by the provisions of
this code or other City-adopted regulations or codes, ancillary equipment
related to the small wireless facility shall be placed in an underground
vault to the greatest extent possible. Aboveground equipment enclosures
may be considered if they can be placed in a way that does not impede
or jeopardize the safety or other utilization of the right-of-way
(ROW).
(6)
Design. Consistent with the provisions of this section, a small
wireless facility shall be installed using the following design approaches
to the extent reasonable, including without limitation the following:
(a)
For location on newly proposed wireless support structures,
the following options are available:
1.
New poles installed to support small wireless facilities shall
be made of the same or similar material as existing poles in the immediate
area.
2.
In an area where other aboveground utilities are present, the
deployment of a new small cell facility shall be located on the same
side of the street on which the existing aboveground utilities are
located and a similar style utility pole (as those utilized by existing
aboveground utilities) may be utilized.
3.
In an area where the City has required all electrical and communication
lines to be placed underground by a date certain that is three months
before the submission of the application or where undergrounding is
required after small wireless facilities have been installed, an explanation
as to why co-location or use of an existing structure, remaining pole
or replacement pole is not technically feasible shall be required.
This shall apply to the location of all pole-attached utilities and
shall include demonstration of a reasonable attempt to co-locate or
utilize an existing structure. A wireless provider may install a new
pole in the designated area that otherwise complies with this section
when it is not able to provide wireless service by co-locating on
an existing structure, remaining pole or replacement pole.
4.
When a wireless provider applies to install a new pole in the
right-of-way in an area zoned for residential use, the City may propose
an alternative location in the right-of-way within 100 feet of the
location stated in the application, and the wireless provider shall
use the City's proposed alternative location unless the location imposes
technical limits or significant additional costs. The wireless provider
shall certify that it has made the determination in good faith, based
on the assessment of a licensed engineer, and the wireless provider
shall provide a written summary of the basis for the determination.
5.
The City may require wireless providers to comply with reasonable
and nondiscriminatory horizontal spacing requirements of general application
for new poles and ground-mounted small wireless facilities, but the
requirements shall not prevent a wireless provider from serving any
location.
6.
For location on existing pole structures:
i.
Stealth antennas and mounts (completely encased
or screened antennas, when possible, to approximately match the color
of the existing poles). In the event that some antennas cannot be
covered due to their operational wavelength, the applicant shall provide
proof of such to the City, and the antenna shall be required to be
painted, or otherwise treated, in a way that blends with the pole.
ii.
Stealth base cabinet enclosures (completely encases
base cabinet equipment to match the colors of the existing poles to
the extent feasible). Base cabinet may be placed in any location on
the lower portion of the pole but may not impede ADA accessibility
of a sidewalk. The base cabinet may also be placed underground.
iii.
The City shall not limit the co-location of small
wireless facilities by minimum horizontal separation distance requirements
from existing small wireless facilities, poles, or wireless support
structures.
7.
For location on existing building structures:
i.
New steeple, extension to existing steeple, and
replacement steeple concealment structures.
ii.
Chimney concealment structures.
iii.
Chimney pot concealment structures.
iv.
Rooftop facade extension concealment.
v.
Rooftop cupola concealment.
vi.
Rooftop screen concealment.
vii.
Rooftop pod concealment systems.
viii.
Building side grid concealment structures.
ix.
Building side screen concealment structures.
x.
Rooftop or wall-mounted lantern concealment structures.
8.
Antenna arrays, cables, and other ancillary facilities used
for providing the wireless service shall not be obtrusive or noticeably
visible from adjacent properties or adjacent rights-of-way.
9.
The color of the facility shall be compatible with that of the
non-tower support structure. To the extent any small wireless facilities
extend above the height of the vegetation, buildings and utilities
immediately surrounding it, they shall be painted in a nonreflective
light gray, light blue, or other hue, which blends with the skyline
and horizon.
10.
Attachments which are ancillary to the antenna
arrays mounted onto a non-tower support structure shall not project
greater than three feet, as measured horizontally, from the surface
of the non-tower support structure and shall be painted or screened
with materials that are a compatible color to the non-tower support
structure. Cables that travel along the exterior of a non-tower support
structure shall be closely connected to the structure creating a minimal
appearance of gaps or loose wires. When possible, visible cables should
be in conduit or otherwise covered in a material visually compatible
in color to the support structure.
11.
The general design of a small wireless facility
shall be compatible with the streetscape and aesthetics of the surrounding
area with respect to street furniture and lights, building facade
designs, and area character.
12.
Other design elements which by industry standards
are considered stealth technology deployment may also be used.
13.
Within an enacted overlay district stealth concealment
is required except when specifically identified by the applicant that
such stealth concealment results in a material reduction in the functionality
of the proposed small wireless facility.
G.
Signage. The applicable provisions of this code regarding signage
shall apply to all small wireless facilities.
H.
Illumination. A small wireless facility shall not have lights on
the facility unless the lights are required by other laws and consistent
with the requirements of law or designed as an intended amenity of
the support structure.
I.
Fencing. A small wireless facility installed in the public right-of-way
shall not be fenced.
J.
Use of right-of-way and indemnification.
(1)
The wireless provider shall fully indemnify and hold harmless
the City and its officers, agents and employees against any claims,
demands, damages, lawsuits, judgments, costs, liens, losses, expenses,
and attorney's fees resulting from the installation, construction,
repair, replacement, operation, or maintenance of poles, small wireless
facilities, or attachments to City poles to the extent directly caused
by the negligence of the wireless provider, its contractors, subcontractors
and their officers, employees or agents.
(2)
A permit from the City shall not create a property right or
grant any authority to the owner of the small wireless facility to
impinge upon the rights of others who may already have an interest
in the right-of-way.
K.
Appendix to Section 6. Attached to this article as an appendix to
this section are illustrations to provide guidance to applicants of
aesthetic standards encouraged and preferred by the City in the installation
of small wireless facilities and associated poles.[3]
[3]
Editor's Note: The Appendix to Section 6 is included as an
attachment to this article.
A.
Permit and application. A permit is required for the placement and
construction of a small wireless facility. Approval of a permit shall
require an application.
B.
Contents of application. The small wireless facility permit application
shall be made by the wireless services provider or an authorized agent.
A permit application shall contain the following:
(1)
The applicant's name, address, telephone number and email address;
(2)
The names, addresses, telephone numbers, and email addresses
of all consultants, if any, acting on behalf of the applicant with
respect to the filing of the application;
(3)
A general description of the proposed work. 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,
including but not limited to subsurface utilities, likely to be affected
or impacted by the work proposed;
(4)
Authorization for any consultant acting on behalf of the applicant
to speak with the City, or a designee of the City;
(5)
Verification from an appropriate professional that the small
wireless facility shall comply with all applicable codes;
(6)
Drawings and descriptions of the proposed facilities, non-tower
support structures, and ancillary equipment;
(7)
Maps with the specific locations;
(8)
Geographic coordinates of the locations;
(9)
If the proposed location is a new pole, an explanation as to
why co-location or use of an existing structure is not technically
feasible. This shall apply to the location of all pole-attached utilities
and shall include demonstration of a reasonable attempt to co-locate
or use an existing structure, remaining pole or replacement pole;
(10)
If the applicant proposes to co-locate on, or occupy any existing
structure not owned by the applicant, a letter or written statement
from the owner allowing the use; and
(11)
A description and substantiation of any requests for exceptions
from the requirements of this division.
C.
Batch applications. The City may require the applicant to file a
separate application for any small wireless facility that is not of
a substantially similar design to the others included in the application,
or if submitted in a batch, the application must be sufficiently clear
so that the City may determine whether one or more of the proposed
facilities is not of a substantially similar design.
D.
Bond. The City may require the applicant to post a bond as required
for any open cut, sidewalk, curb and gutter or other public right-of-way
work as set forth in the Lincoln Municipal Code.
E.
F.
Review procedure.
(1)
The Administrative Official shall review the application for
compliance with these and other applicable laws and regulations. Review
and approval shall be in accordance with time frames established by
federal and state law/policy and the following:
(2)
All applications shall be processed on a nondiscriminatory basis
within:
(4)
If the application is incomplete, the applicant shall be allowed
to resubmit the amended application without penalty or payment of
any additional application fees, if resubmission occurs within 30
days of notification.
(5)
The time frame for reviewing shall commence when the application
is submitted, but may be tolled upon notification of incompleteness.
If the application is incomplete, the applicable time frame for reviewing
is reset when the missing information is provided by the applicant.
(6)
Once the application is determined to be complete, the Administrative
Official shall review the application, and if the application meets
the requirements and standards set forth in this division, the application
shall be granted, and a permit issued.
(7)
If the applicant is requesting an exception to any requirement,
the standard of review shall be to determine if the exception is warranted
due to an identifiable site-specific hardship or a technological challenge,
and more specifically if the excepted requirement is:
(8)
The Administrative Official may approve some or all of the requested
exception and advise the applicant in writing of the extent of approval
and/or reasons for denial. At his/her discretion, the Administrative
Official may also submit the application to the Development Review
Committee for input or comment.
(9)
The Administrative Official shall have the authority to defer
an exception request to the Board of Zoning Adjustment. The Board
of Zoning Adjustment shall act upon the request in a timely manner.
If the decision of the Board of Zoning Adjustment is in the affirmative,
the permit shall be approved, provided that all other review requirements
are met. If not, the application shall be referred to the Administrative
Official for continued review.
(10)
If the Board of Zoning Adjustment denies any or all of the requested
exception, the applicant may appeal the decision to a court of jurisdiction
in accordance with state law.
(11)
Time frames for decision.
(a)
The Administrative Official or designee shall notify the applicant
in writing of its final decision:
(b)
These timelines may be tolled only by mutual agreement between
the applicant and the City.
(c)
If the application is approved, a permit shall be issued.
(d)
If the application is denied, the Administrative Official shall
specify, in writing, the basis for denial, citing specific code provisions
from federal, state, or local law as to why the application was denied.
(e)
Notwithstanding the initial denial, the applicant may cure any
deficiencies identified by the Administrative Official within 30 days
of the denial without paying an additional application fee. The Administrative
Official shall approve or deny the revised application within 30 days
of receipt of the amended application, and its review shall be limited
to the deficiencies specified in the original notice of denial.
(f)
If a decision on an application is not made within the applicable
time frame, the application shall be deemed approved 10 days after
written notice is provided by the applicant to the City that the time
period for acting on the application has lapsed.
(12)
If after commencement of construction but before construction
is complete for an approved permit, circumstances unforeseen at the
time of approval arise which make continued construction unsafe or
impracticable, the applicant may request an amendment to the application
or plan by filing a request to amend the approved application. The
applicant shall cease work, and the procedure for the amendment request
shall proceed in the same manner as if it were a new application under
this section. There is no application fee for an amendment request.
G.
Prohibitions and work requirements.
(2)
Facilities located in the public right-of-way shall not materially
visually obstruct traffic signals or signage and shall be maintained
in a manner that does not materially interfere with public safety
equipment.
(3)
The owner shall employ due care during the installation, maintenance
or any other work in the right-of-way (ROW), and shall comply with
all safety and public ROW protection requirements of all applicable
local, state, and federal laws. The owner shall restore, repair and/or
replace any portion of the public improvements in the ROW that are
damaged or disturbed by the owner's work or small wireless facilities.
(4)
Unless otherwise specified in the permit, the owner shall erect
a barrier around the perimeter of any excavation and provide appropriate
traffic control devices, signs and lights to protect, warn and guide
the public (vehicular and pedestrian) through the work zone. The manner
and use of these devices shall be described within a traffic control
plan in accordance with the Uniform Manual of Traffic Control Devices.
The owner shall maintain all barriers and other traffic control and
safety devices related to an open excavation until the excavation
is restored to a safe condition or as otherwise directed by the City.
(5)
If use of the right-of-way on which the small wireless facility
is located is necessary for a construction or improvement project
undertaken by the City of Lincoln or on its behalf, the small wireless
facility shall be relocated. Notice of such relocation shall be provided
by the City as soon practicable and at least 90 days before the deadline
for completing the relocation. The City shall not bear any expense
of any necessary relocation.
(6)
A small wireless facility shall not interfere with City and
public safety communication systems and shall comply with all FCC
regulations governing interference.
(7)
A guy wire or other support wire shall not be used in connection
with an antenna, antenna array, or a non-tower support structure except
when used to anchor the antenna, antenna array, or non-tower support
structure to an existing building or ground to which such antenna,
antenna array, or non-tower support structure is attached.
(8)
The owner of a small wireless facility that is not in service
or use for more than six months shall disassemble and remove the facility.
H.
Fees and rates.
(1)
For the co-location of a small wireless facility on an existing
pole or structure: $100 nonrecurring application fee.
(a)
Additionally, except as described in A.C.A. § 23-17-510(e),
a wireless provider shall pay the City compensation for use of the
right-of-way at an annual rate of $30 per small wireless facility.
The annual rate shall be paid to the City by January 31 of the following
year.
(b)
A wireless provider shall pay the City compensation for co-location
of small wireless facilities on City poles at an annual rate of $240
for each City pole.
(2)
For the installation of a small wireless facility and a pole:
$250 for the installation, modification, or replacement of a pole
together with the co-location of an associated small wireless facility
in the right-of-way. Additionally, except as described in A.C.A. § 23-17-510(e),
a wireless provider shall pay the City compensation for use of the
right-of-way at an annual rate of $30 per small wireless facility.
The annual rate shall be paid to the City by January 31 of the following
year.
(3)
If the application is for multiple facilities, the fee is $100
(nonrecurring application fee) for each additional facility.
(4)
Exceptions.
(a)
A wireless provider is not required to pay an authority compensation
for micro-wireless facilities that are suspended on cables strung
between existing utility poles in the right-of-way as long as the
wireless provider compensates the authority through other licenses
or franchises held directly or through one of the wireless provider's
affiliates for the placement of the suspension cables in the right-of-way.
A.
Non-exclusivity. The City shall not enter into an exclusive arrangement
with a person for use of the right-of-way for the co-location of small
wireless facilities or the installation, operation, marketing, modification,
maintenance, or replacement of poles for the co-location.
A.
Exercise of zoning authority. Subject to the provisions of the Small
Wireless Facility Deployment Act codified at A.C.A. § 23-17-501
et seq. and applicable federal law, the City may continue to exercise
zoning, land use, planning, and permitting authority within its territorial
boundaries with respect to wireless support structures, including
the enforcement of applicable codes.
B.
Interior installations. The City shall not have or exercise any jurisdiction
or authority over the design, engineering, construction, installation,
or operation of a small wireless facility located in an interior structure
or upon the site of a campus, stadium, or athletic facility not owned
or controlled by the City, other than to require compliance with applicable
codes.
As used in this division, the following terms shall have the
meanings indicated:
An entity that directly or indirectly controls, is controlled
by, or is under common control with another party.
Communications equipment that transmits or receives an electromagnetic
radio frequency signal in the provision of wireless service.
Equipment, switches, wiring, cabling, power sources, shelters,
or cabinets associated with an antenna, located at the same fixed
location as the antenna, and when co-located on a structure is mounted
or installed at the same time as the antenna. "Antenna equipment"
does not include:
An antenna and associated antenna equipment.
Uniform electrical reliability, building, fire, electrical,
plumbing, or mechanical codes, as adopted by a recognized national
code organization, or local amendments to the codes that are of general
application, or local ordinances that are of general application,
that address public health, safety, or welfare and are consistent
with this section.
A person who submits an application as or on behalf of a
wireless provider.
A request submitted by an applicant to an authority for a
permit:
The City.
A pole owned, managed, or operated by or on behalf of an
authority.
The placement, mounting, replacement, or modification of
a small wireless facility on, or of ground-mounted antenna equipment
adjacent to, a structure.
"Co-locate" or "co-locate on" includes co-located, ground-mounted
antenna equipment as a small wireless facility if it meets the requirements
of A.C.A. § 23-17-503(25)(A)(iii) through (vi) and the associated
facilities on the adjacent structure meet the requirements of A.C.A.
§ 23-17-503(25)(i) through (vi).
Placing an antenna on any existing structure, regardless
of whether that structure already has wireless equipment on it, or
whether it has been zoned for placing that equipment.
A cable service, as defined in 47 U.S.C. § 522(6),
as it existed on January 1, 2019;
A telecommunications service, as defined in 47 U.S.C. § 153(53),
as it existed on January 1, 2019;
An information service, as defined in 47 U.S.C. § 153(24),
as it existed on January 1, 2019; or
Wireless service.
The direct or indirect:
A highway or street described in A.C.A. § 27-68-102.
Calendar day unless there is a time frame for the City to
respond to a request and the last day to respond ends on a weekend,
holiday, or time when all but City emergency services are closed due
to weather or some unforeseen situation.
An authority pole that is specifically designed and placed
for aesthetic purposes and on which limited appurtenances or attachments,
such as a small wireless facility, lighting, specially designed informational
or directional signage, or temporary holiday or special event attachments,
have been placed or are permitted to be placed according to nondiscriminatory
City rules or codes.
An antenna facility or a structure that is used for the provision
of wireless service.
A one-time, nonrecurring charge.
A group of buildings, properties, or sites that are either:
Listed in the National Register of Historic Places or formally
determined eligible for listing by the Keeper of the National Register
of Historic Places, according to Section VI.D.1.a.i-v of the Nationwide
Programmatic Agreement Regarding the Section 106 National Historic
Preservation Act Review Process, 47 CFR Part 1, Appendix C, as it
existed on January 1, 2019;
An historic district designated under the Historic Districts
Act, A.C.A. § 14-172-201 et seq.; or
An historic district otherwise designated under a local ordinance
as of January 1, 2019.
A wireless facility that:
An authorization, written or otherwise, required by an authority
to perform an action or initiate, continue, or complete a project
for the deployment of wireless service at a specified location.
An individual, corporation, limited liability company, partnership,
association, trust, authority, or other entity or organization.
A pole in a right-of-way that may be used by or for wireline
communications, electric distribution, lighting, traffic control,
signage, or a similar function, or for co-location of small wireless
facilities. "Pole" does not include a wireless support structure or
an electric transmission structure.
A recurring charge.
An area on, below, or above a public utility easement, roadway,
highway, street, sidewalk, alley, or similar property. Such areas
are formally owned by the City or used as prescriptive easements.
"Right-of-way" does not include a federal interstate highway, controlled-access
facility, or a public utility easement that does not authorize the
deployment sought by the wireless provider.
A wireless facility that meets all of the following specifications:
The facility:
Is mounted on a structure 50 feet or less in height, including
the antennas;
Is mounted on a structure no more than 10% taller than other
adjacent structures; or
Does not extend an existing structure on which it is located
to a height of more than 50 feet or by more than 10%, whichever is
greater.
Each antenna associated with the deployment, excluding associated
antenna equipment, is no more than three cubic feet in volume;
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 no more than
28 cubic feet in volume;
The facility does not require antenna structure registration
under 47 CFR Part 17, as it existed on January 1, 2019;
The facility is not located on tribal lands, as defined in 36
C.F.R. 800.16(x), as it existed on January 1, 2019; and
The facility does not result in human exposure to radio frequency
in excess of the applicable safety standards specified in 47 CFR 1.1307(b),
as it existed on January 1, 2019.
"Small wireless facility" does not include:
The structure or improvements on, under, or within which the
equipment is located or co-located or to which the equipment is attached;
and
Any wireline backhaul facility or coaxial or fiber-optic cable
that is between wireless support structures or utility poles, or that
is otherwise not immediately adjacent to or directly associated with
a particular antenna.
A pole or wireless support structure, whether or not it has
an existing antenna facility, that is used or to be used for the provision
of wireless service.
By virtue of engineering or spectrum usage, the proposed
placement for a small wireless facility, or its design, concealment
measures, or site location, can be implemented without a material
reduction in the functionality of the small wireless facility.
A pole or similar structure that is used in whole or in part
for the purpose of carrying electric distribution lines or cables
or wires for telecommunications, cable or electric service, or for
lighting, traffic control signage, or a similar function regardless
of ownership. Such term shall not include structures supporting only
wireless facilities.
Equipment at a fixed location that enables wireless communications
between user equipment and a communication network, including: (i)
equipment associated with wireless communications; (ii) radio transceivers,
antennas, coaxial or fiber-optic cable, regular and backup power supplies,
and comparable equipment, regardless of technological configuration.
The term includes small wireless facilities. The term does not include
the structure or improvements on, under, or within which the equipment
is co-located, wireline backhaul facilities, coaxial or fiber-optic
cable that is between wireless support structures or utility poles
or coaxial or fiber-optic cable that is otherwise not immediately
adjacent to, or directly associated with, an antenna.
A person or an affiliate thereof, including a person authorized
to provide communications service in the state, that builds or installs
facilities for the provision of wireless service, but that is not
a wireless service provider.
A wireless infrastructure provider or a wireless service
provider.
Any service using licensed or unlicensed spectrum, including
the use of Wi-Fi, whether at a fixed location or mobile, provided
to the public.
A person who provides wireless service.
A structure, including:
A monopole;
A tower, either guyed or self-supporting;
A billboard;
A building; or
Any other existing or proposed structure designed to support
or that is capable of supporting small wireless facilities, other
than a structure designed solely for the co-location of small wireless
facilities.
"Wireless support structure" does not include a pole.
An aboveground or underground facility used to transport
communications services from a wireless facility to a network.
