The City and applicant for a franchise and other permits associated with the deployment of small wireless facilities face challenges in coordinating applicable legislative and administrative processes under the FCC regulations. A franchise for the use of the City's right-of-way is a contract that requires approval by the City Council. Permits to exercise those rights and to install small wireless facilities on private property are considered in a parallel, consolidated administrative process. FCC regulation provides safe harbor time periods as well as completeness requirements which apply to all approvals relating to a small wireless facility deployment. Time limitations governing the process are triggered by the applicant's submittal of applications for the deployment. Accordingly, all parts of an application for a master permit to deploy small wireless facilities must be considered in order to determine completeness. Applicants are encouraged and expected to provide all related applications in one submittal.
A. 
Application Process. The Director is authorized to establish franchise and other application forms to gather the information required by these ordinances from applicants and to determine the completeness of the application process as provided herein.
1. 
Franchise. The process typically begins with and depends upon approval of a franchise for the use of the public right-of-way to deploy small wireless facilities if any portion of the applicant's facilities are to be located in the right-of-way. The application for a franchise is designated as Part A of the application. An applicant with a valid franchise for the deployment of small wireless facilities in the City may proceed to apply for a small wireless facility permit and related approvals (Parts B and C). An applicant at its option may utilize phased development. Because franchises are required by federal law to be competitively neutral, the City has established a franchise format for use by all right-of-way users. The format contains the basic requirements for the use of right-of-way. Consideration of the franchise application is a legislative act of the City Council. Consideration by the City Council shall run parallel with other necessary administrative approvals and approval or possession of a franchise is a requirement for any small wireless facility deployment seeking to use the public right-of-way.
2. 
Small Wireless Facility Permits. Part B of the application process requires specification of all proposed small wireless facility components and their sites. Each component shall be described in detail as provided in these ordinances. Any request for deviation, whether minor or significant, from adopted City standards shall be set forth in the application.
3. 
Associated Permit(s). Part C of the application shall attach all associated permit applications such as applications or checklists required under the critical areas, shorelines or SEPA ordinances. Applicants for deployment of small wireless facilities in design zones or underground areas shall provide a concealment element plan as provided in MTMC § 19.137.080(F).
4. 
Construction in the Right-of-Way. Small wireless facilities installed pursuant to an approved master permit (both a franchise and a small wireless facility permit) or a small wireless facility permit approved separately for an existing franchisee may proceed to install the approved specific facilities by complying with the requirements contained in MTMC § 13.50.060.
5. 
Later Discovered Deviations. Recognizing that each utility pole represents a unique environment for the installation of small wireless facilities, if a deviation, whether minor or significant, is required from the standards of the ordinance in order to install a small wireless facility on any structure, and such deviation was not approved as part of the master permit or small wireless facility permit process, an application shall be filed for the amendment of the initial small wireless facility permit. Administrative review of the request for deviation shall be processed as provided herein. Such an amended application shall be considered a new application and completeness, review and all time periods shall commence anew.
6. 
Leases. A wireless service provider who wishes to attach to any utility pole or other structure or building owned by the City shall include an application for a lease(s) or component of its application. The Director is authorized to administer a lease review process, develop an application form and approve leases in the form approved for general use by the City Council for any utility pole or other structure in the right-of-way, including a new utility pole or structure. The installation shall conform to the standards adopted in MTMC § 19.137.080 or with an approved minor deviation. Leases for the use of other public property, buildings or facilities including any park land or facility shall be submitted to the City Council for approval. Any approval identified in the initial application process shall be considered by the City Council in conjunction with its consideration of the franchise. Applications submitted at later dates shall be considered by the Director or the City Council as provided herein under a separate review process.
B. 
Completeness. Any and all parts of an application for the deployment of small wireless facilities including but not limited to franchise, small wireless facility permits and all associated permits shall be submitted at one time in order that their completeness may be considered. An applicant seeking to phase deployment of a small wireless facilities system may identify the intended phasing in the franchise application process. Franchisees with a valid franchise to deploy small wireless facilities may apply for a small wireless permit for the deployment of initial or additional phases of a small wireless facility deployment at any time subject to the commencement of a new completeness review time period for permit processing.
C. 
Safe Harbors. 47 CFR 1.6003 has established presumptively reasonable time periods for review of small wireless facilities for the deployment of small wireless facilities. The City shall make every reasonable effort consistent with any conflicting provisions of state or federal law, and the preservation of the City's health, safety and aesthetic environment to comply with these time periods to the fullest extent possible.
(Ord. 2743 § 1, 2019)
The City Manager shall delegate administrative authority to an appropriate City Director (hereinafter "Director") to oversee the consolidated administrative permits referenced in the preceding section. The Director is charged with administration of the consolidated permit process for a small wireless facility deployment and other wireless communication review processes established under Articles VI and VII of this chapter. Phased development is permitted, and an applicant is encouraged to specify at least the initial small wireless facility deployment in its application.
The following additional information shall be provided by all applicants seeking to deploy small wireless facilities:
A. 
Designation of Facilities. The application shall provide specific locational information including GIS coordinates of all facilities for which approval is sought and specify whether and where small wireless 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. To the extent known conduit and/or ground-mounted equipment necessary for and intended for use in the deployment shall also be specified 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 facilities sought to be approved under the small wireless permit 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 and as applicable Chapter 19.137 MTMC.
B. 
Implementation. The rights granted under the franchise are implemented through the issuance of a small wireless permits. The franchise application may be accompanied by an application for a small wireless permit to deploy small wireless facilities.
1. 
Issuance of a small wireless permit to install a small wireless deployment any portion of which is in the public rights-of-way shall be contingent upon approval of a franchise or the possession of a valid franchise authorizing deployment of small wireless facilities.
2. 
All small wireless permits that are submitted in conjunction with a franchise application shall be considered as one master permit for the purposes of calculating the review period established by federal law. Provided, however, any element of a deployment which qualifies as either an eligible facilities request shall be specifically designated by the applicant and may be addressed separately by the Director in order to comply with the shot clocks established by federal law and this chapter.
3. 
The Director may approve, deny or conditionally approve all or any number of the sites proposed in the small wireless permit application.
4. 
Any application for a small wireless permit which contains an element that is not exempt from shorelines, critical areas or SEPA review shall comply with the applicable provisions of state law and local ordinance.
5. 
RF Certification. The applicant shall submit a sworn affidavit signed by an RF engineer with knowledge of the proposed project affirming that the small wireless 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 wireless facility will operate. If wireless facilities necessary to the deployment are to be provided by a third party, then the small wireless deployment in the initial franchise or in a subsequent small wireless permit shall be conditioned on an RF certification by the third party and the requirement that the third party obtain a franchise. 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 applicant or franchisee shall immediately remove any facilities that exceed FCC RF emissions requirements. A modification of the facility by an eligible facilities request requires a new RF certification.
6. 
Regulatory Authorization. The applicant shall provide proof of FCC and other regulatory approvals required to provide the service(s) or utilize the technologies sought to be installed.
7. 
Completeness – Franchise and Small Wireless Applications. The Director or his/her designee shall review an application for completeness and notify the applicant in writing within 10 days of submission whether the application is complete; provided, however, that an applicant may consent to a different completeness review period. The written notice shall identify the missing documents or information. Upon provision of the notice, the time periods established by 47 CFR 1.6003(d) shall be calculated in accordance with that regulation. No application shall be deemed complete without submittal and maintenance of the fee deposit set by the Director.
(Ord. 2743 § 1, 2019)
The following provisions relate to applications for a small wireless permit for small wireless deployment.
A. 
Review of Facilities. Review of the site locations proposed by the applicant shall be governed by the provisions of 47 USC 253 and 332 and applicable case law and federal regulations. Applicants for small wireless permits 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 wireless permit review under this chapter shall neither prohibit nor have the effect of prohibiting the ability of an applicant to provide wireless services.
B. 
Concealment. Except for facilities to be located in undergrounded areas or the downtown community business (town center) zone ("design zone" in both this title and in Chapter 19.137 MTMC), the City will permit small wireless deployment on structures conforming to the City's generally applicable small wireless design and concealment standard. See MTMC § 19.137.080. The design criteria as applicable to small wireless facilities described herein shall be considered concealment elements and such small wireless facilities may only be expanded upon an eligible facilities request when the modifications do not defeat the concealment elements of the facility.
C. 
Concealment Element Plan Review. Small wireless deployment in a design zone and undergrounded areas is subject to a concealment element plan. See MTMC § 12.20.730 and Chapter 19.137 MTMC.
D. 
Public Notice. The City shall provide notice of a complete application for a franchise utilizing a small wireless permit to deploy small wireless facilities on the City's website with a link to the application materials which specify the site(s) and designs. The notice shall include an email contact and telephone number for the applicant to answer citizen inquiries. The notice is provided for the public's information and is not part of any land use process which is subject to a public hearing or appeal.
(Ord. 2743 § 1, 2019)
Small wireless deployments shall be approved by reference to exhibits in small wireless permits. Approval of the permit shall be deemed to approve the site and the design of small wireless facilities set forth in the approved exhibits. This approval is limited to the specific location, facility and design elements shown on the exhibits. Any element not shown on an exhibit must be approved by the governing review processes listed in this chapter and, when applicable, Chapter 19.137 MTMC. All facilities shall comply with the small wireless design and concealment standards adopted by the City in MTMC § 12.20.720 and Chapter 19.137 MTMC. An existing franchisee authorized to deploy small wireless facilities in the public rights-of-way may apply to additional designate sites for small wireless deployment, as well as approve the small wireless facilities to be installed and the concealment measures to be utilized.
(Ord. 2743 § 1, 2019)
A. 
The Director may authorize minor deviations designated by the applicant in an application for a small wireless permit from the dimensional design and concealment technologies referenced in the design standards.
B. 
Deviations in the dimensions, height, or volume of small wireless facilities which are necessary to conform the facilities to the requirements of the pole owner, provide adequate safety clearances or address similar technical issues may be approved as minor deviations; provided, that the deviations do not cause the facility to exceed the height and volumetric limitations in the definition of a small wireless facility.
C. 
Replacement of components of an existing, approved small wireless facility which do not exceed the volumetric limitations for a small wireless facility may also be approved as minor deviations. Provided, however, that in each instance the modified facilities do not defeat the concealment features set by the City's generally applicable small wireless aesthetic, design and concealment standards or a specific concealment plan adopted pursuant to Chapter 19.137 MTMC.
D. 
The decision of the Director to approve a small wireless permit with a minor deviation, if any, shall be final and is not subject to appeal under City code or further legislative review.
(Ord. 2743 § 1, 2019)