City of Waltham, MA Small Cell Facilities

DIRECTOR OF CONSOLIDATED PUBLIC WORKS

As used in this section, the following terms have the meanings indicated below:

The Director of Consolidated Public Works or a designee of the Director of Consolidated Public Works.

INSPECTOR OF WIRES

The Inspector of Wires or a designee of the Inspector of Wires.

PROFESSIONAL ENGINEER

An engineer with sufficient education and/or experience in the relevant field to competently review materials referred to him or her. Where the Commonwealth of Massachusetts requires that an engineer in the relevant field receive a professional license or certificate, the engineer must have said license or certificate by the proper authority in order to be considered a professional engineer under this definition.

PUBLIC RIGHT-OF-WAY

The area in, upon, along and over the public street, sidewalks, roads, lanes and places within the City which are now or may be under the permitting jurisdiction of the Department of Public Works or in similar areas wherein City Council has permitting jurisdiction.

SMALL CELL FACILITY

The canister antenna, remote radioheads, power source and meter, disconnect switch, fiber optic cable, and supporting equipment, if any, installed on a utility pole which fit the dimensions provided in this section.

TYPICAL UTILITY POLE

A utility pole that is substantively similar to one of the following designs (wires, lines, and cables excepted):

Diagram above not drawn to scale.

UTILITY POLE

A utility pole (excluding architecturally significant light poles) located in the public right-of-way.

When not inconsistent with the context, words in the singular number include the plural number. The word "shall" is always mandatory and not merely directory.

(c)

Authority. Consistent with MGL c. 166, the City Council is authorized to approve petitions for licenses to install small cell facilities on utility poles upon receipt of a complete application form completed by an applicant, including all supporting documentation.

(d)

Petitions. All petitions submitted pursuant to Section 13-72 shall include:

Application stating:

Petitioner's name and address;

Name and address of the owner(s) of the utility pole;

Name, address, telephone number, and email address of petitioner's attorney or agent;

Utility pole number; and

Address of nearest property.

Plan, signed by a professional engineer, showing the subject utility pole, the proposed small cell facility, and the area within a thirty-foot radius of the utility pole.

License, work order, letter, or other appropriate documentation from the owner(s) of the utility pole, authorizing the installation of the small cell facility on the specific utility pole identified in the application or confirming such authorization. Such document shall be deemed to constitute a structural certification by the owner(s) of the utility pole attesting to the integrity of the utility pole to support the small cell facility. The applicant shall pay the reasonable expenses of a professional engineer retained by the Director of Consolidated Public Works, the Inspector of Wires, or the City Council, at its option, to confirm this certification.

License(s) from the Federal Communications Commission evidencing the petitioner's authority, or the authority of the petitioner's customer(s), to transmit and receive wireless telecommunications, unless such license is already on file with the City.

(5)

Proof of liability insurance, including completed operation coverage or its substantial equivalent.

(6)

Statement signed by a professional engineer, explaining the need for the proposed small cell facility.

(7)

Radio frequency (RF) emissions report demonstrating that the proposed small cell facility will comply with the maximum permissible exposures adopted by the Federal Communications Commission. If the plan described in Section 13-72(d)(2) indicates there is RF-emitting equipment within 30 feet of the subject utility pole, the Director of Consolidated Public Works, the Inspector of Wires, or the City Council shall have the option of retaining a professional engineer to confirm the conclusions contained in the emissions report submitted by the applicant. The applicant shall pay the reasonable expenses of such professional engineer.

(8)

Fee equal to $50; check made payable to "City of Waltham."

(9)

Optional materials.

Applicants shall have the option, but not the requirement, to submit with its petition materials demonstrating that:

There is a significant coverage gap in the network of the applicant or in the network of the applicant's customer; and

There are no other locations or facilities more feasible than the proposed small cell facility to address the gap.

The applicant may submit the materials described above during the City Council's consideration of a petition, or, if the petition is denied, to submit a new petition with such materials. The applicant shall pay the reasonable expense of a professional engineer who may be retained at the option of the Director of CPW, the Inspector of Wires, or the City Council to review the materials described in Section 13-72(d)(9). If the applicant elects not to submit supporting material as described in Section 13-72(d)(9) above, the applicant shall be deemed to have waived any right to appeal under the Federal Telecommunications Act and any FCC report or order.

(e)

Preapplication review. Applicants shall have the option of submitting the materials required in Section 13-72(d) to the Director of Consolidated Public Works and the Inspector of Wires for review prior to submitting a petition to the City Council, as described below. If the Director of Consolidated Public Works and the Inspector of Wires determine that the materials satisfy the standards below, the resulting petition shall be entitled to expedited review by the City Council, per the terms of this Section 13-72. Petitioners are not required to seek preapplication review and, per the terms of this section below, may apply to the City Council without consulting with the Director of Consolidated Public Works and the Inspector of Wires.

Prior to submitting a petition to the City Council for consideration, any applicant has the option of submitting its petition for a license to the Director of Consolidated Public Works and the Inspector of Wires to ensure that the petition package contains the materials described in Section 13-72(d) above and to determine that the petition substantially demonstrates the following:

The small cell facility does not interfere with the safety and convenience of ordinary travel over the public right-of-way.

The small cell facility does not exceed five feet above the pole.

The telecommunication facility must use stealth design as much as possible. For example, the color of the small cell facility shall be similar to:

The existing equipment on the utility pole or on other nearby utility poles;

The color of the utility pole; or

Any other stealth properties reasonably requested by the Inspector of Wires.

The dimensions of the antenna do not exceed 16 inches in diameter nor 48 inches in height.

In no event may the antenna exceed three cubic feet nor may any part of the small cell facility project from the utility pole further than 39 inches if installed 20 feet or higher above the ground or further than 24 inches if installed below 20 feet above the ground.

No part of the small cell facility shall extend below eight feet above the ground or be located within four feet of a residential building.

No interference is created with other small cell facilities installed on a utility pole including the subject utility pole.

The subject utility pole does not measure more than 20° out of plumb in any direction.

The subject utility pole is not a double pole.

The proposed small cell facility does not exceed the permissible radio frequency exposures adopted by the Federal Communications Commission taking into consideration other sources of RF at the site.

Upon receipt of a petition, the Director of Consolidated Public Works and the Inspector of Wires shall have 15 business days to review the petition as permitted in this section and either provide written notice to the applicant that the petition does not contain all the materials required in Section 13-72(d) or provide written notice to the applicant of the findings and recommendation, if any, of the Director of Consolidated Public Works and the Inspector of Wires.

If the Director of Consolidated Public Works and the Inspector of Wires determine that the petition contains the materials described in Section 13-72(d) and substantially satisfies the criteria listed in Section 13-72(e)(1), the Director of Consolidated Public Works and the Inspector of Wires shall send written notification to the applicant that they advise the City Council that the applicant has satisfied the requirements of Section 13-72(d) and (e)(1). The applicant may then submit a petition and copies of the relevant correspondence and notices from the Director of Consolidated Public Works and the Inspector of Wires to the City Council. The City Council shall review such application per Section 13-72(f)(1).

If the Director of Consolidated Public Works and the Inspector of Wires determine that the petition contains the materials described in Section 13-72(d) and does not substantially satisfy all of the criteria listed in Section 13-72(e)(1), the Director of Consolidated Public Works and the Inspector of Wires shall send written notification to the applicant of the criteria that are and are not satisfied. The applicant may then revise its materials and resubmit them to the Director of Consolidated Public Works and the Inspector of Wires for preapplication review, or submit a petition and copies of the relevant correspondence and notices from the Director of Consolidated Public Works and the Inspector of Wires to the City Council. The City Council shall review such application per Section 13-72(f)(2).

(f)

City Council action.

After the petitioner has given 14 days' notice to abutters of its petition, the City Council shall reach a final decision regarding the small cell facility within 45 days of receipt of a petition to install a small cell facility for which the Director of Consolidated Public Works and the Inspector of Wires have advised the City Council that the applicant has satisfied the requirements of Section 13-72(d) and (e)(1), except that for any petition submitted pursuant to this section between the last City Council meeting in June and the first City Council meeting in September, the City Council shall reach a final decision by October 15. If no final action on the petition is taken within the times specified in this section, the license shall be deemed issued and the petitioner shall be authorized to commence installation.

In the event that the City Council receives an application for which either the Director of Consolidated Public Works or the Inspector of Wires has determined that one or more criteria in Section 13-72(e)(1) are not satisfied, the City Council shall give 14 days' notice to abutters and conduct a publicly noticed hearing to consider the petition, and the applicant shall be given the opportunity to appear before the City Council to support the petition. The City Council shall review the application to determine that it substantially satisfies the relevant criteria, or provides substantial evidence that denying the license would prohibit or have the effect of prohibiting the provision of personal wireless services in violation of 47 U.S.C. § 332(c)(7). The City Council shall reach a final decision within 90 days of the filing of an application with City Council.

Upon the filing of an application for a license that has not been reviewed by the Director of Consolidated Public Works and the Inspector of Wires, the City Clerk's office shall send the application to the Director of Consolidated Public Works and the Inspector of Wires for substantive review as provided in Section 13-72(e)(1) within the timetable described in Section 13-72(e)(2). The City Council shall give 14 days' notice to abutters and conduct a publicly noticed hearing to consider the petition, and the applicant shall be given the opportunity to appear before the City Council to support the petition. The City Council shall review the application, and any recommendation of the Director of consolidated Public Works and/or the Inspector of Wires to determine if it substantially satisfies the criteria in Section 13-72(e)(1). In the event that the city Council determines that an application does not satisfy one or more criteria, the City Council shall review the application to determine that it substantially satisfies the relevant criteria, or provides substantial evidence that denying the license would prohibit or have the effect of prohibiting the provision of personal wireless services in violation of 47 U.S.C. § 332(c)(7). The City Council shall reach a final decision within 90 days of the date the City Clerk accepts a completed application.

(g)

Changes to a licensed small cell facility. Except for repairs, maintenance, and the replacement of a small cell facility with another the same or smaller in size, any proposed changes to a licensed small cell facility shall require an application to expand the small cell facility.

(h)

Applications to expand existing licensed small cell facilities or co-locate additional small cell facilities on a utility pole.

In compliance with the Federal Telecommunications Act, Section 6409(a) of the Federal Middle Class Tax Relief and Job Creation Act of 2012, and Federal Communications Commission Report and Order "In re Acceleration of Broadband Deployment by Improving Wireless Facilities Siting Policies" (FCC 14-153), the City recognizes that applicants seeking to expand on previously approved small cell facilities, and/or co-locate new small cell facilities on utility poles with a previously approved small cell facility are entitled to approval of such installations if they do not "substantially change" the utility pole, as that term is defined under federal law. Consistent with this right, the City shall review each proposed small cell facility expansion and co-location request to determine if it proposes to substantially change the relevant utility pole.

All applicants proposing to expand an existing small cell facility or co-locate on a utility pole with an approved small cell facility shall submit to the Director of Consolidated Public Works and the Inspector of Wires for preapplication review a plan, signed by a professional engineer, showing the subject utility pole, the proposed expansion of the small cell facility, and/or the proposed small cell facility.

The Director of Consolidated Public Works and the Inspector of Wires shall review the plans to determine if the proposal will substantially change the relevant utility pole by any of the following ways:

Defeating the existing concealment or stealth elements of the utility pole, meaning the conditions of approval that are designed as shown in the diagram in Subsection (b), the definition of "typical utility pole," above or are designed to make the utility pole look like something other than a base station or tower; or

Failing to comply with preexisting conditions associated with the prior approval of construction or modification of the utility pole; or

Satisfying any other relevant criteria for "substantial change" under federal law.

If the Director of Consolidated Public Works and the Inspector of Wires each determine that the proposal does not substantially change the relevant utility pole per Section 13-72(h)(3), they shall send notice of such to the City Clerk, and the applicant shall be authorized to install the proposed equipment.

(5)

If either the Director of Consolidated Public Works or the Inspector of Wires determines that the proposal substantially changes the relevant utility pole, the applicant shall have the option to either redesign the proposal and resubmit pursuant to Section 13-72(h) or apply for a license using the proposal as-is, and the City Council shall review the application, pursuant to the provisions of Section 13-72(d) through (f).

(i)

Removal of small cell facilities.

Any small cell facility approved pursuant to this Section 13-72 shall be removed by the applicant and at their expense, and the relevant license terminated if the City requires the removal of the utility pole where the small cell facility is located.

The wireless communication equipment must at all times be maintained in a good and safe condition and comply with all applicable FCC standards, and the licensee, immediately upon permanent cessation of use, shall notify the City if the small cell facility permanently ceases to be used for its intended purpose, and shall remove all the licensed equipment no later than 60 days following permanent cessation of use.

Removal or relocation.

Except as otherwise provided for in this Section 13-72, the City may remove or relocate small cell facilities, at the licensee's sole expense, approved pursuant to this Section 13-72 and terminate the relevant license(s) after the City Council, upon at least 10 business days' notice to the licensee(s), reasonably determines at a public hearing that the removal or relocation is needed:

To facilitate or accommodate the construction, completion, repair, relocation, or maintenance of a City project;

Because the small cell facility is not being properly maintained or interferes with or adversely affects proper operation of the light poles, traffic signals, City-owned communications systems or other City facilities;

Because of a sale or vacation of the public right-of-way by the City;

Because there is a change in use of the public right-of-way by the City, provided that such use affects similarly licensed users in the public right-of-way;

Because there is damage to and/or removal of the relevant utility pole; or

To preserve and protect the public health and safety, in a manner not inconsistent with 47 U.S.C. § 332(c)(7) or by using the procedures established for the removal of overhead structures and equipment contained in MGL c. 166, §§ 22A through 22N.

The licensee(s) shall have the opportunity to be heard at a public hearing conducted pursuant to this section.