§ 50-153. Permitted use; application process.

(a)

A wireless provider may collocate small wireless facilities on city poles and decorative poles in the right-of-way, subject to administrative review and the issuance of a permit as set forth in this Code section. Subject to administrative review and the issuance of a permit as set forth in this Code section, provided that such uses shall be in accordance with applicable provisions of this chapter, including without limitation, those set forth in Code section 50-155, a wireless provider may occupy the right-of-way for the following uses:

(1)

Collocation of a small wireless facility on or adjacent to a pole or a support structure that does not exceed the limitations set forth in Code section 50-154(h)(3) or on or adjacent to a decorative pole in compliance with Code section 50-158; and

(2)

Installation, modification, or replacement of a pole or a decorative pole for collocation of a small wireless facility that does not exceed the limitations set forth in Code section 50-154(h)(1) and (2).

(b)

No wireless provider shall collocate any small wireless facility in the right-of-way or install, modify, or replace a pole or decorative pole for collocation of a small wireless facility in the right-of-way without first filing an application and obtaining a permit therefor. Any failure to comply with this subsection by a wireless provider shall allow the city, in its sole discretion, to restore the right-of-way, to the extent practicable in the reasonable judgment of the city, to its condition prior to the unpermitted collocation or installation and to charge the responsible wireless provider its reasonable, documented cost of doing so, plus a penalty of $1,000.00. The city may suspend the ability of the wireless provider to receive any new permits from the city until the wireless provider has paid the amount assessed for such restoration costs and the penalty assessed, if any; provided, however, that the city shall not suspend such ability of any applicant that has deposited the amount in controversy in escrow pending an adjudication of the merits of the dispute by a court of competent jurisdiction.

(c)

All applicants that have not previously held a meeting that complies with this Code section shall meet with the city at least 30 days before submitting applications under this chapter to inform the city in good faith when such applicant expects to commence deployment of small wireless facilities and poles within the city pursuant to this chapter, the number of small wireless facilities and poles it expects to deploy during the 24 months after commencement, and the expected timing of such deployments.

(d)

Open Records Act. Any small wireless facility applications for permits filed pursuant to this section shall be in electronic form as required by the city. All records received in connection with the permit shall be handled by the city in accordance with the state Open Records Act, O.C.G.A. § 50-18-70 et seq.

(1)

The applicant may designate portions of its application materials that it reasonably believes contain trade secrets or other proprietary or confidential information "confidential under O.C.G.A. § 50-18-72" by submitting with it an affidavit affirmatively declaring that specific information in the records constitute trade secrets as set forth in O.C.G.A. § 50-18-72. The applicant shall be solely responsible for clearly identifying and labeling as "confidential" or "proprietary" any such confidential material (including, if requested by the city, submission of an affirmative affidavit regarding such confidential and/or proprietary information) which it asserts is exempt from disclosure under O.C.G.A. § 50-18-72 of the Open Records Act or any other applicable law. However, applicants are advised that such designations on any such confidential material shall not be binding on the city or determinative of any issue relating to confidentiality.

(2)

In no event shall the city or any of their respective agents, representatives, consultants, directors, officers or employees be liable to applicant for the disclosure of all or a portion of any such confidential material or other information pursuant to a request under the Open Records Act.

(3)

If the city receives a request for public disclosure of all or any portion of any confidential material identified as "confidential" or "proprietary" by applicant, the city will endeavor to notify applicant of the request in sufficient time to allow applicant to review such request and take whatever action it shall deem appropriate to protect any such confidential material; provided, however, that the city must comply with the deadlines for responding in O.C.G.A. § 50-18-71, and that applicant shall bear the sole responsibility for the costs and expenses of all such actions seeking to protect the confidential material. Among others, applicant may seek a protective order or other appropriate remedy. If the applicant or the city determines in good faith that the confidential material identified as "confidential" or "proprietary" is not exempt from disclosure under the Open Records Act, then, unless otherwise ordered by a court of competent jurisdiction, the city will release the requested information. In the absence of a protective or other similar order rendered by a court of competent jurisdiction, the city shall make the final determination regarding whether the requested confidential material is to be disclosed or withheld. Applicant shall be liable for any costs incurred by the city associated with an action seeking to protect confidential material. If such costs are incurred, the city shall notify applicant in writing of the amount due, and applicant shall have 30 days from the date of the notice to reimburse the city.

(e)

The permit application shall be made by the wireless infrastructure provider, or its duly-authorized agent as noted in a notarized statement from a person with the wireless infrastructure provider, who represents authority to make such an authorization, and shall contain the following:

(1)

The applicant's name, address, telephone number, and email address, including emergency contact information for the applicant;

(2)

The names, addresses, telephone numbers, and email addresses of all consultants, if any, acting on behalf of the applicant with respect to the filing of the application;

(3)

A general description of the proposed work and the purposes and intent of the proposed facility. The scope and detail of such description shall be appropriate to the nature and character of the physical work to be performed, with special emphasis on those matters likely to be affected or impacted by the physical work proposed;

(4)

Detailed construction drawings regarding the proposed use of the right-of-way;

(5)

To the extent the proposed facility involves collocation on a pole, decorative pole, or support structure, a structural report performed by a duly licensed engineer evidencing that the pole, decorative pole, or support structure will structurally support the collocation, or that the pole, decorative pole, or support structure may and will be modified to meet structural requirements, in accordance with applicable codes;

(6)

For any new aboveground facilities, visual depictions or representations if such are not included in the construction drawings;

(7)

Information indicating the horizontal and approximate vertical location, relative to the boundaries of the right-of-way, of the small wireless facility for which the application is being submitted;

(8)

If the application is for the installation of a pole or replacement of a decorative pole, a certification that complies with subsection (h) of this Code section;

(9)

If the small wireless facility will be collocated on a pole or support structure owned by a third party, other than a city pole or a decorative pole, a certification that the wireless provider has permission from the owner to collocate on the pole or support structure. The city may require the applicant to provide additional information, including an attachment agreement or other document demonstrating the applicant's legal right to place the facility on the structure. Any permit issued under this section shall be effective and conditioned upon the applicant's demonstration of compliance with this subsection; and

(10)

If the applicant is not a wireless services provider, a certification that a wireless services provider has requested in writing that the applicant collocate the small wireless facilities or install, modify, or replace the pole or decorative pole at the requested location.

(f)

The city shall not require a wireless provider to obtain a permit or any other approval or require fees or rates for the installation, placement, maintenance, operation, or replacement of micro wireless facilities that are suspended on cables or power lines that are strung between poles or support structures in the right-of-way in compliance with applicable codes; provided, however, the city may require a wireless provider to obtain permits for any additional activities such as electrical work, excavation, or closure of sidewalks or vehicular lanes within the right-of-way if otherwise required by generally applicable law. Such permits shall be issued on a nondiscriminatory basis upon terms and conditions applied to any other person's similar activities in the right-of-way. Nothing in this subsection shall be construed to allow the installation, placement, maintenance, operation, or replacement of micro wireless facilities on such cables or power lines without the agreement, authorization, or permission of the person that owns, manages, or controls such cables or power lines.

(g)

Any material change to information contained in an application shall be submitted in writing to the city within 30 days after the events necessitating the change.

(h)

Unless otherwise provided by applicable law, all applications pursuant to this chapter shall be accompanied by the fees required under Code section 50-161.

(i)

A wireless provider shall not apply to install a pole or replace a decorative pole unless it has determined after diligent investigation that it cannot meet the service objectives of the permit by collocating on an existing pole or support structure on which:

(1)

The wireless provider has the right to collocate subject to reasonable terms and conditions; and

(2)

Such collocation would not impose technical limitations or significant additional costs. The wireless provider shall certify that it has made such a determination in good faith, based on the assessment of a licensed engineer, and shall provide a written summary of the basis for such determination.

(j)

Interference with public safety, utility or public works equipment. Small wireless facilities and wireless attachments shall be operated and maintained in a manner that does not interfere with public safety, utility or public works equipment.

(k)

Existing utility easements. Applicants will coordinate with the city engineer to protect existing utilities in the public ROW and public utility easements, including all public safety considerations prior to and during installation to ensure public safety response in the case of gas line, water line or electricity disturbance.

(l)

The provisions of this chapter concerning the collocation of small wireless facilities on poles and the installation, modification, and replacement of poles by wireless providers apply only to poles that are lawfully located or are to be lawfully located within the right-of-way.

(m)

A permit for the placement of small wireless facilities within the city rights-of-way may include a provision reasonably addressing the obligations of the parties if there is a substantial change of law at the federal, state, or local level.

( Ord. No. 2019-03-08 , § II, 3-5-2019)