In order to manage its right-of-way in a thoughtful manner which balances the need to accommodate new and evolving technologies with the preservation of the natural and aesthetic environment while complying with the requirements of state and federal law, the City of Des Moines adopts this process for the deployment of small cell and microcell technology. Service providers who seek to utilize the public right-of-way for small cell deployment in order to enhance wireless communication, data transmission or other related services to the citizens of the City must have a valid franchise agreement to provide the specific service which utilizes the right-of-way and a small cell permit to deploy the technology. Entities with franchises who wish to utilize a small cell deployment to upgrade or expand their existing services shall utilize the processes set forth in this Title and implementing small cell permits to deploy their technology and obtain design approval of specific installations. The small cell permit process administers deployment under a valid franchise. An entity without a franchise agreement may apply concurrently for a franchise and adjunct small cell permit which shall be processed concurrently as one master permit within the meaning of RCW 35.99.010(3) and 35.99.030. For entities with a valid franchise, see DMMC § 20.07.170.
(1) 
Nothing in this chapter revises or diminishes the rights and obligations of an existing franchise.
(2) 
The term "small cell deployment" shall include the deployment of small cell facilities, microcells and small cell networks as those terms are defined by RCW 80.36.375; provided, that microcells may not be deployed in the public right-of-way, except as provided in Article I of this chapter.
(3) 
See chapter 20.01 DMMC for additional definitions.
(Ord. 1699 § 2 (part), 2018)
Applicants shall apply using the City's franchise application form and submit a fee deposit commensurate with the estimated administrative costs of processing an application for a franchise. The City Manager or his or her designee ("City Manager") is charged with administration of small cell deployments and other wireless communication review processes established under this chapter. Service providers seeking to utilize the City's right-of-way for small cell deployments shall specify geographic boundaries for the small cell deployment described in the application. The applicant may designate the entire City at its discretion or any portion thereof as the franchise boundary. Phased development is permitted, and an applicant is encouraged to specify at least the initial small cell deployment in its application.
The following information shall be provided by all applicants for franchises seeking to utilize small cell deployment. Existing franchisees who seek to utilize a small cell deployment to expand or implement an existing franchise shall provide the information as a part of a small cell permit application for small cell deployment.
(1) 
Designation of Facilities. The application shall provide specific locational information including GIS coordinates of all facilities to the extent known and specify whether and where small cell facilities are to be located on existing utility poles including City-owned light standards (included in the definition of utility pole), or will utilize replacement utility poles, new poles, towers, and/or other structures. Conduit and/or ground-mounted equipment necessary for and intended for use in the deployment shall also be specified, to the extent known, regardless of whether the additional facilities are to be constructed by the applicant or leased from an infrastructure provider. Detailed schematics and visual renderings of the facilities shall be provided by the applicant. Failure to provide sufficient detail may result in a later finding of a significant change in the facility if significant elements of the facility were not shown on the originally approved franchise exhibit. Failure to include significant elements may also result in the requirement that new or undocumented elements complete the approval processes detailed in this chapter.
(2) 
Implementation. Absent specific approval of sites and facilities in a franchise, the rights granted under the franchise are implemented through the issuance of a small cell permit. The franchise application may be accompanied by one or more applications for a small cell permit to deploy small cells. An initial franchise including specific sites and facilities and/or a related small cell permit application(s) shall be processed concurrently as one master permit.
(a) 
Up to 15 sites may be specified in one small cell permit application for processing. The City Manager may allow up to five additional sites in the same application in order to consider small cell sites within one logical service area in one application.
(b) 
Issuance of a small cell permit to install a small cell deployment shall be contingent upon approval of a franchise or the possession of a valid franchise.
(c) 
If more than one application for a small cell permit is submitted by an applicant, they shall be considered in the order received. If multiple applications are submitted on the same date, the applicant shall indicate which application should be considered first. All small cell permits which are submitted in conjunction with a franchise application shall be considered as one master permit. Any element of a deployment which qualifies as either an eligible facilities request or a collocation pursuant to chapter 20.10 DMMC shall be specifically designated by the applicant and may be addressed separately by the City Manager in order to comply with the shot clocks established by federal law.
(d) 
The City Manager may approve, deny or conditionally approve all or any portion of the sites and/or facilities proposed in the small cell permit application.
(e) 
Any application for a franchise or small cell permit which contains an element which is not exempt from SEPA review shall comply with chapter 16.05 DMMC.
(f) 
Radio Frequency ("RF") Certification. The applicant shall submit a sworn affidavit signed by an RF engineer with knowledge of the proposed project affirming that the small cell deployment will be compliant with all FCC and other governmental regulations in connection with human exposure to radio frequency emissions for every frequency at which the small cell facility and associated wireless backhaul will operate. An existing franchisee applying for a small cell permit for small cell deployment shall provide an RF certification for all facilities included in the deployment which are to be installed by the franchisee. If facilities necessary to the small cell deployment are to be provided by another franchisee, the right-of-way use permit and franchise to deploy such facilities shall be contingent on submittal of an RF certification by the other franchisee for any such facilities which produce RF emissions. If such facilities will emit RF emissions, this additional RF certification shall address the cumulative impact of the RF emissions and certify compliance with federal requirements. The initial franchisee and all implementing right-of-way use permits shall be contingent on such secondary certification. The applicant or franchisee shall immediately remove or repair any facilities that exceed FCC RF emission requirements. A modification of a facility by an eligible facilities request requires a new RF certification.
(g) 
Regulatory Authorization. Issuance of the use permit for the facilities shall also be contingent upon the applicant's provision of proof of FCC and other regulatory approvals required to provide the service(s) or utilize the technologies sought to be installed.
(h) 
Completeness – Franchise and Small Cell Applications. The City Manager or his/her designee shall review an application for completeness and notify the applicant within 30 days of submission whether the application is complete; provided, however, that an applicant may consent to a different completeness review period. A service provider may resubmit an incomplete application within 60 days of notice by the City Manager. Failure to resubmit an application in a timely manner shall be deemed a withdrawal of that application. An applicant shall be notified in writing of the approval or denial of the application. No application shall be deemed complete without the fee deposit set by the City Manager.
(Ord. 1699 § 2 (part), 2018)
The following provisions relate to applications for a franchise or small cell permit for small cell deployments:
(1) 
Review of Facilities. Review of the site locations proposed by the applicant shall be governed by the provisions of 47 USC 253 and 47 USC 332 and applicable case law. Applicants for franchises and the small cell permits which implement the franchise shall be treated in a competitively neutral and nondiscriminatory manner with other service providers utilizing supporting infrastructure which is functionally equivalent, that is, service providers whose facilities are similarly situated in terms of structure, placement or cumulative impacts. Franchise and small cell permit review under this chapter shall neither prohibit nor have the effect of prohibiting the ability of an applicant to provide telecommunications services.
(2) 
Concealment. In any zone not designated by DMMC § 20.07.260 for design review ("design review"), applications for a small cell permit or for facilities designated within a franchise, the City may permit small cell deployment on existing utility poles and replacement poles in accordance with the City's generally applicable pole design and concealment standards adopted in Article III of this chapter and DMMC § 20.07.240. Accordingly, small cell facilities installed pursuant to this concealment authorization may only be expanded pursuant to an eligible facilities request if the City Manager determines that such expansion would not defeat the concealment elements of the facilities.
(3) 
Design Review. Small cell deployment in Design Zones and underground districts, as well as certain new or replacement facilities, is subject to design review. See DMMC § 20.07.260.
(Ord. 1699 § 2 (part), 2018)
The City shall provide notice of a complete application for a franchise on the City's website with a link to the franchise application. This notice requirement shall also apply to existing franchisees applying for a small cell permit for small cell deployment. The notice shall include an email contact and telephone number for the applicant to answer citizen inquiries. The applicant is encouraged to host informational meetings for the public regarding the deployment. These meetings are for the public's information and are neither hearings nor part of any land use or appeal process.
(Ord. 1699 § 2 (part), 2018)
Small cell deployments may be approved by reference to exhibits in an approved franchise. Approval of the franchise shall be deemed to approve the site and the design of small cell facilities set forth in the franchise. This approval is limited to the specific location, facility and design elements shown on the exhibits to the franchise. Any element not shown on an exhibit must be approved by the governing review processes designated herein. All facilities shall comply with the concealment standards adopted by the City in DMMC § 20.07.150(2) and/or 20.07.240. An existing franchisee may, at its option:
(1) 
Apply to amend the existing franchise to designate additional sites for small cell deployment, as well as approve the small cell facilities to be installed and the concealment measures to be utilized; or
(2) 
Apply for a small cell permit which may include:
(a) 
Small cell facilities to be installed on existing utility poles and which utilize the generally applicable design and concealment standards established by DMMC § 20.07.240; and/or
(b) 
Small cell facilities for placement on new utility poles or installations in a Design Zone or undergrounded areas, utilizing the design approval procedures set forth in DMMC § 20.07.240(6).
(Ord. 1699 § 2 (part), 2018)
(1) 
The City Manager shall review applications for small cell permits for small cell deployments approved by a franchise or described in a concurrent franchise application. The City Manager may authorize minor deviations in the small cell permit from the dimensional design and concealment technologies referenced in the exhibits to the franchise or design standards.
(2) 
A deviation in height of the pole of up to 10 feet above the height of the existing pole or a height providing the minimum clearance necessary to provide safety clearance may be permitted. Replacement poles of up to 10 feet above the height of the existing pole or minimum required safety clearance may also be permitted when required for clearance or separation by the pole owner or applicable electrical code.
(3) 
Deviations in the dimensions or volume of small cell facilities which do not exceed the cumulative total provided by the definition of a small cell or microcell facility in RCW 80.36.375 may be considered a minor deviation when an applicant replaces components of an existing, approved small cell facility. Provided, however, that in each instance the new or revised facilities shall not defeat the concealment features set by the City's generally applicable pole design standard adopted pursuant to the franchise, DMMC § 20.07.240.
(4) 
The decision of the City Manager to approve a small cell permit with a minor deviation, if any, shall be final and is not subject to appeal under City code or through further legislative review.
(Ord. 1699 § 2 (part), 2018)
Any request for significant deviations from the approved small cell facilities design designated in the franchise, small cell permit or City's design and concealment standards shall be considered by the City Manager under the procedures applicable to a Type I land use action (see chapter 18.20 DMMC), and pursuant to the timelines established in chapter 20.10 DMMC. An applicant seeking approval of a new pole in a Design Zone or underground district designated by DMMC § 20.07.260 shall be subject to the same review process.
(Ord. 1699 § 2 (part), 2018)
Approval of a franchise, small cell permit and/or other approval referenced in this chapter is conditioned on the following requirements:
(1) 
Satisfy applicable bulk requirements such as noise and light regulations.
(2) 
Comply with adopted design and concealment standards, or the concealment element design approved for replacement utility poles and new utility poles in a Design Zone or underground district.
(3) 
Obtain the written approval of the owner of any utility pole for the installation of its facilities on such utility pole. Approval of a franchise does not authorize attachment to City-owned utility poles or other structures.
(4) 
Unless specifically provided for in a franchise, obtain a lease from the City to utilize the City's ground space for the installation of any new pole, a replacement utility pole over 60 feet or to locate any new ground-based structure, base station or other attendant equipment on City right-of-way or City property.
(5) 
Comply with all City construction standards and state and federal codes when operating in the right-of-way and obtain a required permit to enter the right-of-way.
(6) 
Installation of a facility which is not exempt from SEPA review shall be processed in accordance with the provisions of chapter 16.05 DMMC.
(7) 
Small cell facilities approved pursuant to this chapter shall be considered as an outright permitted use when located within the right-of-way.
(Ord. 1699 § 2 (part), 2018)
Wireless communication facilities in design or underground districts are subject to review as provided in this chapter. The provisions of this chapter shall be interpreted and applied to ensure compliance with chapter 35.99 RCW and federal law.
(1) 
An application for a franchise seeking general permission to utilize the public right-of-way for telecommunications shall be processed in compliance with the time limits established by RCW 35.99.030(1)(b) and is a master use permit within the meaning of RCW 35.99.010(3).
(2) 
An application to deploy specific new small cell facilities at specific locations in the public right-of-way which have not been previously approved as a part of a franchise approval is a police power exercise governed by RCW 35.99.040(2) and shall be governed by the time limits established by federal law for new facilities; provided, however, that:
(a) 
The City will endeavor to process the application within 90 days;
(b) 
Applications qualifying as eligible facilities requests shall be processed as provided in chapter 20.10 DMMC.
(3) 
A small cell permit application submitted concurrently with an application for a new or amended franchise shall be considered as an application for a consolidated master use permit and shall be processed with the time limits established by RCW 35.99.030(1)(b).
(4) 
A franchise for a telecommunications franchise, a consolidated master permit for telecommunications (franchise and small cell permit) or a small cell permit which authorizes deployment of specific facilities at specific locations is implemented through the issuance of right-of-way use permits. These authorizations to enter the public right-of-way to install specifically approved small cell facilities are use permits within the meaning of RCW 35.99.010(8) and shall be issued within 30 days of receipt of a complete application as required by RCW 35.99.030(2); provided, that requests for minor deviations shall be processed by the City Manager pursuant to DMMC § 20.07.180 within the same time frame.
(Ord. 1699 § 2 (part), 2018)