For purposes of this chapter, the following terms, phrases, words, and their derivations shall have the meanings given herein. When not inconsistent with the context, words used in the present tense include the future tense, words in the plural number include the singular number, and words in the singular number include the plural number. All capitalized terms used in the definition of any other term shall have their meaning as otherwise defined in this Chapter. The words "shall" and "will" are mandatory and "may" is permissive. Words not defined shall be given their common and ordinary meaning.
(a) "Abandoned" means any facilities, structures, or equipment in the Right-of-Way that are unused for a period of 365 days without the operator otherwise notifying the City and receiving the City's approval.
(b) "Antenna" means communications equipment that transmits or receives radio frequency signals in the provision of wireless service.
(c) "Applicant" means any Person applying for a Permit hereunder.
(d) "Approved" means approval by the City pursuant to this Chapter or any regulations adopted hereunder.
(e) "Best Efforts" means the best reasonable efforts under the circumstances, taking into consideration, among other appropriate matters, all applicable laws, regulations, safety, expedition, engineering and operational available technology and human resources and cost.
(f) "Cable operator," "cable service," and "franchise" have the same meanings as in the "Cable Communications Policy Act of 1984," 98 Stat. 2779, 47 U.S.C.A. 522.
(g) "City" means the City of Westerville, Ohio, or, as appropriate in the case of specific provisions of this Chapter, any board, authority, agency, commission, department of, or any other entity of or acting on behalf of, the City of Westerville, or any officer, official, employee, representative or agent thereof, the designee of any of the foregoing, or any successor thereto.
(h) "City Manager" means the City Manager or his designee.
(i) "Collocation" or "collocate" means to install, mount, maintain, modify, operate, or replace wireless facilities on a wireless support structure.
(j) "Council" means the Council of the City of Westerville.
(k) "Decorative pole" means a pole, arch, or structure other than a street light pole placed in the Right-of-Way specifically designed and placed for aesthetic purposes and on which no appurtenances or attachments have been placed except for any of the following: (1) Electric lighting; (2) Specially designed informational or directional signage; (3) Temporary holiday or special event attachments.
(l) "Design Guidelines" means detailed guidelines and specifications promulgated by the City in accordance with R.C. Chapter 4939 for the design and installation of Small Cell Facilities and Wireless Support Structures in the Right-of-Way.
(m) "Emergency" means a reasonably unforeseen occurrence with a potential to endanger personal safety or health, or cause substantial damage to property, that calls for immediate action.
(n) "FCC" means the Federal Communications Commission, or any successor thereto.
(o) "Force majeure" means a strike, acts of God, acts of public enemies, orders of any kind of the government of the United States of America or the State of Ohio or any of their departments, agencies, or political subdivisions, riots, epidemics, landslides, lightning, earthquakes, fires, tornadoes, storms, floods, civil disturbances, explosions, partial or entire failure of utilities or any other cause or event not reasonably within the control of the disabled party, but only to the extent the disabled party notifies the other party as soon as practicable regarding such Force Majeure and then for only so long as and to the extent that, the Force Majeure prevents compliance or causes non-compliance with the provisions hereof.
(p) "Historic district" means a building, property, or site, or group of buildings, properties, or sites that are either of the following: (1) Listed in the National Register of Historic Places or formally determined eligible for listing by the Keeper of the National Register, the individual who has been delegated the authority by the Federal agency to list properties and determine their eligibility for the National Register, in accordance with section VI.D.1.a.i-v of the nationwide programmatic agreement codified at 47 C.F.R. part 1, Appendix C; (2) A registered historic district as defined in R.C. § 149.311.
(q) "Law" means any local, State and/or Federal legislative, judicial or administrative order, certificate, decision, statute, constitution, ordinance, resolution, regulation, rule, tariff or other requirement in effect either at the time of execution of this Chapter or at any time during the location of, and/or while a Person's Facilities are located in the public Right-of-Way.
(r) "Micro wireless facility" means a small cell facility that is not more than twenty-four inches in length, fifteen inches in width, and twelve inches in height and that does not have an exterior antenna more than eleven inches in length suspended on cable strung between wireless support structures.
(s) "Municipal electric utility" has the same meaning as in R.C. § 4928.01.
(t) "Occupy or use" means, with respect to a Right-of-Way, to place a tangible thing in a Right-of-Way for any purpose, including, but not limited to, constructing, repairing, positioning, maintaining, or operating lines, poles, pipes, conduits, ducts, equipment, or other structures, appurtenances, or facilities necessary for the delivery of public utility services or any services provided by a cable operator.
(u) (1) "Operator" means a wireless service provider, cable operator, or a video service provider that operates a small cell facility and provides wireless service. For the purpose of this chapter, "operator" includes a wireless service provider, cable operator, or a video service provider that provides information services as defined in the "Telecommunications Act of 1996," 110 Stat. 59, 47 U.S.C. 153(20), and services that are fixed in nature or use unlicensed spectrum.
(2) For purposes of submitting a request for City consent under this Chapter, "operator" also includes any person that, at the time of filing the request, provides the City the person's written authorization to perform the specific work for which consent has been requested on behalf of an operator.
(v) "Permit" means the non-exclusive grant of authority to use or occupy all or a portion of City's Rights-of-Way granted pursuant to this Chapter.
(w) "Permittee" means any person issued a Permit pursuant to this Chapter to use or occupy all or a portion of the Rights-of-Way in accordance with the provisions of this Chapter and said Permit.
(x) "Person" means any natural person or corporate entity, business association or other business entity including, but not limited to, a firm, a partnership, a joint venture, a sole proprietorship, a political subdivision, a public or private agency of any kind, a utility, a successor or assign of any of the foregoing, or any other legal entity, whether for profit or not-for-profit.
(y) "Public Property" means any real property, other than a Right-of-Way, except for the last sentence of the definition of the term "Right-of-Way" of this Chapter, owned by the City.
(z) "Public utility" means a wireless service provider as defined in division (A)(20) of R.C. § 4927.01 or any company described in R.C. § 4905.03 except in divisions (B) and (I) of that section, which company also is a public utility as defined in R.C. § 4905.02 and regulated by the PUCO; and includes any electric supplier as defined in R.C. § 4933.81.
(aa) "PUCO" mans the Public Utilities Commission of Ohio as defined in R.C. § 4901.02.
(bb) "Regulation" means any rule adopted by and pursuant to the authority of this Chapter.
(cc) "Right-of-Way" or "Rights-of-Way" means the surface of and the space above and below any public street, public road, public highway, public freeway, public lane, public path, public way, public alley, public court, public sidewalk, public boulevard, public parkway, public drive or any public easement or right-of-way now or hereafter held by the City which shall, within its proper use, entitle a Permittee or Franchisee, in accordance with the terms hereof and of any Permit, to the use thereof for the purpose of installing or operating any facilities as may be ordinarily necessary and pertinent to the provisions of utility, cable television, communications or other services as set forth in any Franchise or Permit. "Right-of-Way" shall also include Public Property, but only to the extent the use or occupation thereof is specifically granted in a Permit or by regulation. "Right-of-Way" excludes a private easement.
(dd) "Right-of-way Work Permit" means a permit granted by the City Manager that must be obtained in order to perform any work in, on, above, within, over, below, under, or through any part of the Right-of-Way, including, but not limited to, the act or process of digging, boring, tunneling, trenching, excavating, obstructing, or installing, as well as the act of opening and cutting into the surface of any paved or improved surface that is part of the Right-of-Way.
(ee) "Small Cell Facility" means a wireless facility that meets both of the following requirements:
(1) Each antenna is located inside an enclosure of not more than six cubic feet in volume or, in the case of an antenna that has exposed elements, the antenna and all of its exposed elements could fit within an enclosure of not more than six cubic feet in volume.
(2) All other wireless equipment associated with the facility is cumulatively not more than twenty-eight cubic feet in volume. The calculation of equipment volume shall not include electric meters, concealment elements, telecommunications demarcation boxes, grounding equipment, power transfer switches, cut-off switches, and vertical cable runs for the connection of power and other services.
(ff) "Substantial change" means the same as defined by the FCC in 47 C.F.R. § 1.40001 (b)(7), as may be amended, and as applicable to facilities in the public Right-of-Way, which defines that term as a collocation or modification that:
(1) Increases the overall height more than ten percent (10%) or ten feet (whichever is greater);
(2) Increases the width more than six feet from the edge of the wireless support structure;
(3) Involves the placement of any new enclosures on the ground when there are no existing ground-mounted enclosures;
(4) Involves the placement of any new ground-mounted enclosures that are ten percent (10%) larger in height or volume than any existing ground-mounted enclosures;
(5) Involves excavation or deployment of equipment outside the area in proximity to the installation and other wireless communications equipment already deployed on the ground;
(6) Would defeat the existing concealment elements of the wireless support structure as determined by the City Manager; or
(7) Violates a prior condition of approval, provided however that the collocation need not comply with any prior condition of approval related to height, width, enclosures or excavation that is inconsistent with the thresholds for a substantial change.
Note: For clarity, the definition in this Chapter includes only the definition of a substantial change as it applies to installations in the public Right-of-Way. The thresholds for a substantial change outlined above are disjunctive. The failure to meet any one or more of the applicable thresholds means that a substantial change would occur. The thresholds for height increases are cumulative limits. For sites with horizontally separated deployments, the cumulative limit is measured from the originally-permitted wireless support structure without regard to any increases in size due to wireless facilities not included in the original design. For sites with vertically separated deployments, the cumulative limit is measured from the permitted site dimensions as they existed on February 22, 2012.
(gg) "Telecommunications" means the transmission, between or among points specified by the user, of information of the user's choosing, without change in the form or content of the information as sent and received.
(hh) (1) "Wireless facility" means equipment at a fixed location that enables wireless communications between user equipment and a communications network as defined in R.C. § 4939.01(S), including all of the following:
A. Equipment associated with wireless communications;
B. Radio transceivers, antennas, coaxial or fiber-optic cable, regular and backup power supplies, and comparable equipment, regardless of technological configuration.
(2) The term includes small cell facilities.
(3) The term does not include any of the following:
A. The structure or improvements on, under, or within which the equipment is collocated;
B. 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.
(ii) "Wireless service" means any services using licensed or unlicensed wireless spectrum, whether at a fixed location or mobile, provided to the public using wireless facilities.
(jj) "Wireless service provider" means a person who provides wireless service as defined in division (A)(19) of R.C. § 4927.01.
(kk) "Wireless support structure" means a pole, such as a monopole, either guyed or self-supporting, street light pole, traffic signal pole, a fifteen-foot or taller sign pole, or utility pole capable of supporting wireless small cell facilities. As used in this chapter, "wireless support structure" excludes all of the following:
(1) A utility pole or other facility owned or operated by a municipal electric utility;
(2) A utility pole or other facility used to supply traction power to public transit systems, including railways, trams, streetcars, and trolleybuses.
(ll) "Wireline backhaul facility" is a facility used for the transport of communications service or any other electronic communications by coaxial, fiber-optic cable, or any other wire.
(Ord. 97-61. Passed 6-17-97; Ord. 2012-25. Passed 7-2-12; Ord. 2018-16. Passed 6- 19-18.)