(A) Permitted use. Colocation of a small wireless facility or installation of a new, replacement, or modified utility pole or wireless support structure for the colocation of a small wireless facility shall be a permitted use, subject to the restrictions in this subchapter.
(B) Permit required. No person may construct, install and/or operate wireless facilities that occupy the right-of-way without first obtaining approval of a right-of-way use permit from the town. Any right-of-way use permit shall be reviewed, issued, and administered in a non-discriminatory manner; shall be subject to such reasonable conditions as the Town may from time to time establish for effective management of the ROW; and otherwise shall conform to the requirements of this subchapter and applicable law.
(C) Permit applications. All applications for ROW use permits filed pursuant to this subchapter shall be on a form, paper or electronic, provided by the town. The applicant may include up to 20 small wireless facilities within a single application. The applicant may designate portions of its application materials that it reasonably believes contain proprietary or confidential information as "proprietary" or "confidential" by clearly marking each page of such materials accordingly.
(D) Application requirements. The application shall be made by the wireless provider or its duly authorized representative and shall contain the following:
(1) The applicant's name, address, telephone number, and e-mail address;
(2) The names, addresses, telephone numbers, and e-mail addresses of all consultants, contractors and subcontractors, if any, acting on behalf of the applicant with respect to the filing of the application or who may be involved in doing any work on behalf of the applicant;
(3) A site plan for each proposed location with a diagram or engineering drawing depicting the design for installation of the small wireless facility with sufficient detail for the town to determine that the design of the installation and any new PSS or any modification of a PSS is consistent with all generally applicable safety and design requirements, including the requirements of the Manual on Uniform Traffic Control Devices;
(4) The location of the site(s), including the latitudinal and longitudinal coordinates of the specific location(s) of the site;
(5) Identification of any third party upon whose PSS the applicant intends to colocate and certification by the applicant that it has obtained approval from the third party;
(6) The applicant's identifying information and the identifying information of the owner of the small wireless facility and certification by the applicant or the owner that such person agrees to pay applicable fees and rates, repair damage, and comply with all nondiscriminatory and generally applicable ROW requirements for deployment of any associated infrastructure that is not a small wireless facility and the contact information for the person that will respond in the event of an emergency related to the small wireless facility;
(7) The applicant's certification of compliance with insurance and/or indemnification requirements (as set forth in § 117.128 below); rules requiring maintenance of infrastructure deployed in ROW; rules requiring relocation or timely removal of infrastructure in ROW no longer utilized; any rules requiring relocation or repair procedures for infrastructure in ROW under emergency conditions, if any, that the town imposes on a general and non-discriminatory basis upon entities that are entitled to deploy infrastructure in ROW no longer utilized; and any rules requiring relocation or repair procedures for infrastructure in ROW under emergency conditions, if any, that the city imposes on a general and nondiscriminatory basis upon entities that are entitled to deploy infrastructure in the ROW;
(8) The applicant's certification that the proposed site plan and design plans meet or exceed all applicable engineering, materials, electrical, and safety standards, including all standards related to the structural integrity and weight-bearing capacity of the PSS and small wireless facility. Those standards relevant to engineering must be certified by a licensed professional engineer.
(9) A statement that all wireless facilities shall comply with all applicable codes.
(10) An approved address certificate issued by Memphis Light, Gas and Water Division.
(E) Approval or denial of application; response time. The town responds to the applications for ROW use permit per the timelines in accordance with state legislation regarding the approval or denial of applications, and the town shall respond to applications in accordance with state legislation. The town reserves the right to require a surcharge in accordance with state legislation for high-volume applicants.
(F) Deployment after permit.
(1) An applicant must complete deployment of the applicant's small wireless facilities within nine (9) months of approval of applications for the small wireless facilities unless the town and the applicant agree to extend the period, or a delay is caused by a lack of commercial power or communications transport facilities to the site.
(2) If an applicant fails to complete deployment within the time required pursuant to this subsection, then the town may require that the applicant complete a new application and pay an application fee.
(G) Multiple permit applications at same location. If the town receives multiple applications seeking to deploy or collocate small wireless facilities at the same location in an incompatible manner, then the town may deny the later filed application.
(H) Bridge and/or overpass special provision. If the applicant's site plan includes any colocation design that includes attachment of any facility or structure to a bridge or overpass, then the applicant must designate a safety contact. After the applicant's construction is complete, the applicant shall provide to the safety contact a licensed professional engineer's certification that the construction is consistent with the applicant's approved design, that the bridge or overpass maintains the same structural integrity as before the construction and installation process, and that during the construction and installation process neither the applicant nor its contractors have discovered evidence of damage to or deterioration of the bridge or overpass that compromises its structural integrity. If such evidence is discovered during construction, then the applicant shall provide notice of the evidence to the safety contact.
(I) Information updates. Any amendment to information contained in a permit application shall be submitted in writing to the town within ten days after the change necessitating the amendment.
(J) Application fees. Unless otherwise provided by law, all permit applications for small wireless facility pursuant to this subchapter shall be accompanied by a fee in accordance with Tenn. Code Ann. § 13-24-407 as stated in the town's fee schedule.
(K) Increase in maximum fee. Beginning on January 1, 2020, and at each five-year interval thereafter, the maximum application fees established by the preceding subjection (J) may increase in an amount of 10% rounded to the nearest dollar, if the town amends its fee schedule.
(L) Annual lease fee. A ROW use permit shall provide for the annual lease fee, which shall be due January 1 of each year of the agreement, as set forth in § 117.126 below. The initial annual lease fee payment shall be due upon approval of the ROW use permit.
(M) ROW use permit renewal. A permittee desiring to renew a ROW use permit prior to the expiration of the agreement and/or permit shall file an application with the town for renewal of its authorization, which shall include the information and documents required for an initial application and other material information reasonably required by the Town Engineer, or his or her designee.
(N) Acceptance or denial of renewal application. The town shall make a determination accepting or denying the renewal application in writing to the permittee.
(O) Valid ROW use permit required. A valid ROW use permit is required to obtain an approval for the installation of small cell wire facilities, poles, and associated equipment.
(P) Timely process of renewal Application. The town shall timely process any renewal application provided that (i) permittee is not then in material default under any provision of the ROW use permit, or in material non-compliance with this subchapter, and (ii) has otherwise satisfactorily performed all of its obligations under the ROW use permit and this subchapter during the expiring term. In the event the town elects not to renew, it shall provide a written basis for such non-renewal. Determinations to grant or deny a renewal application shall be made on a nondiscriminatory and competitively neutral basis. The town shall not unreasonably delay, condition, withhold, or deny the issuance of a renewal ROW use permit.
(Ord. 2018-03, passed 10-28-19)