W. Va. Code R. § 157-13-4

Current through Register Vol. XLI, No. 50, December 13, 2024

Section 157-13-4 - Permit requirements, approvals, denials and fees (See Section31H-2-2 and Section31H-2-3)

4.1. A small wireless provider has the right to collocate a small wireless facility and install, maintain, modify, operate and replace its own utility pole, or with the permission of the owner, a third party's utility pole that exceeds these height limits along, across, upon, and under the right-of-way. Such facilities shall be installed and maintained in a manner that will not obstruct or hinder usual travel, public safety, or the function or operation of the Division's utility poles, equipment or communications devices on the right-of-way or to obstruct the legal use of the right-of-way by other utilities or the Division.

4.2. The Division may require the placement of small wireless facilities on any specific utility pole or category of poles or require multiple antenna systems on a single utility pole or the underground placement of small wireless facilities.

4.3. The Division may limit placement of small wireless facilities by minimum separation distances.

4.4. The Division will assign a tracking number to each application and promptly send the application to the appropriate District or Districts with the deadlines for acting on the application. When determining the time in which an application must be acted upon, if the final day to act falls on a federal or state holiday, the date to act upon the application shall be the next weekday that is not a federal or state holiday.

4.5. The District shall review the application for completeness and accuracy within 10 days of receipt of the application by the Division. If the application is incomplete the District shall send the applicant a letter detailing the deficiencies of the application.

4.5.1. The District must approve or deny a completed application for collocation of a small or micro wireless facility within 60 days.

4.5.2. The District must approve or deny a completed application for installation, modification or replacement of a utility pole in the right-of-way within 90 days.

4.5.3. Applications not acted upon within the processing deadlines are deemed approved. The processing deadlines may be extended by written agreement of the Provider and the District.

4.6. The Provider may correct the deficiencies and return the application to the District. The deadlines are stopped pending receipt of the requested information. Once the supplemental information is received, the District has 10 days to review the supplemental information for completeness and notify the Provider of any deficiency in the supplemental information.

4.7. If the application meets all statutory and regulatory requirements, the District shall issue a permit granting access to the right of way as specified in the permit.

4.8. Denial of an application at any stage of the process must be in writing and provide the basis for the denial including the specific federal or state law, code, regulation, or rule, policy, guideline or standard provisions on which the denial was based.

4.9. An application for collocation of a small wireless facility or installation, modification, or replacement of a utility pole that meets the requirements of this rule and the Small Wireless Facilities Act may be denied only if the proposed application:

4.9.1. Materially interferes with the safe operation of traffic control equipment;

4.9.2. Materially interferes with sight lines or clear zones for transportation or pedestrians;

4.9.3. Materially interferes with compliance with the Americans with Disabilities Act, Public Rights-0f-Way Accessibility or similar federal or state standards regarding pedestrian access or movement;

4.9.4. Fails to comply with reasonable and nondiscriminatory spacing requirements of general application adopted by legislative rule or standards that concern the location of ground-mounted equipment and new utility poles. Such The spacing requirements may not prevent a wireless provider from serving any location;

4.9.5. Fails to comply with applicable codes, legislative rule, policy, guidance, and generally applicable standards that are consistent with the Small Wireless Facilities Act adopted by the Division for construction and public safety in the rights-of-way, including reasonable and nondiscriminatory wiring and cabling requirements, grounding requirements, and abandonment and removal provisions;

4.9.6. Fails to attest that a small wireless facility will comply with relevant Federal Communications Commission (FCC) regulations concerning:

4.9.6.a. Radio frequency emissions from radio transmitters; and

4.9.6.b. Unacceptable interference with the public safety spectrum and CII spectrum, including compliance with the abatement and resolution procedures for interference with the public safety spectrum and CII spectrum established by the FCC set forth in 47 C.F.R. 22.970 through 47 C.F.R. 22.973 and 47 C.F.R. 90.672 through 47 C.F.R. 90.675;

4.10. The denial is effective the day the Division mails the denial to the applicant.

4.11. The applicant may cure the deficiencies listed in the denial and resubmit the application within 30 business days without paying an additional application fee.

4.11.1. Review of the resubmitted application is limited to the specific deficiencies listed in the denial.

4.11.2. If the resubmittal is deficient, the Division must submit a second denial in writing to the applicant and provide the basis for the denial including the specific federal or state code, regulation, or rule provisions on which the denial was based.

4.11.3. The applicant may cure the deficiencies listed in the second denial and resubmit the application within 30 business days without paying an additional application fee.

4.12. A provider seeking to collocate small wireless facilities at multiple locations within the Division's rights-of-way may file a consolidated application in the District specifying the Districts in which the provider seeks to collocate with the Division. If approved, the applicant will receive one permit covering all approved locations. Denial of one or more collocations in a consolidated application may not delay processing the remaining location requests in the same permit request. Upon approval of the consolidated application, the Provider shall notify the Division and the affected Districts of the order in which it will undertake the collocations and a proposed timeline for the work.

4.13. All permits for small wireless facilities are valid for a period of 10 years and may be renewed for additional 10-year periods if the provider and the utility pole continue to meet all applicable federal and state laws, codes, regulations, and rules, policies, guidelines and standards.

4.14. If the provider fails to comply with the terms and conditions of its permit, the Division may revoke the permit until such time as the deficiencies are corrected. Prior to revoking a permit, the Division will notify the provider of the deficiencies in writing and allow the provider 30 business days to correct the deficiencies.

4.15. An application fee of $250 shall accompany each application for a MM-109 permit for the installation, modification, or replacement of a utility pole and the collocation of an associated small wireless facility on a Division right-of-way. The fee shall be reviewed and may be adjusted 10 percent every five years, rounded to the nearest $5.00.

4.16. Applications for collocation of small wireless facilities to be located on existing utility poles may contain multiple locations in a district. An application fee of $200 shall accompany the application for a MM-109 permit for each of the first five small wireless facilities contained in an application and $100 for each additional small wireless facility in that same application. These fees shall be reviewed and may be adjusted 10 percent every five years, rounded to the nearest $5.00.

4.17. A provider seeking a permit for collocation of multiple small wireless facilities in more than one district shall submit the applications the Commissioner for processing.

4.18. An application fee of $1,000 shall accompany each application for the installation, modification, or replacement of a utility pole and the collocation of an associated small wireless facility that is not a permitted use in accordance with the specifications of the Small Wireless Facilities Act. The fee shall be reviewed and may be adjusted 10 percent every five years, rounded to the nearest $5.00.

4.19. The Division shall assess an annual recurring fee of $65 per year per utility pole for access to a Division owned utility pole. (See W. Va. Code § 31H-2-3 for fee authorization)

4.20. The Division will not charge an additional fee or require an additional permit for a provider to:

4.20.1. Conduct routine maintenance;

4.20.2. Replace wireless facilities with wireless facilities that are substantially similar, the same size or smaller; or

4.20.3. To install, place, maintain, operate, or replace micro wireless facilities that are suspended on existing cables that are strung between existing utility poles in compliance with applicable safety codes and the pole owner's construction standards and engineering practices.

4.21. All providers must notify and coordinate with the District where the work will be conducted a minimum of 48 hours prior to commencing work in a Division right-of-way to assure that the Provider's access will not conflict with work conducted by the Division or another utility. Failure to notify and coordinate with the District may result in delay or stoppage of the Provider's work to allow previously scheduled road or utility work to proceed. In the event of an emergency the Provider shall notify the district where the work will be conducted as soon as practicable prior to commencing work in a Division right-ot-way.

4.22. The Division may revoke a permit at any time if the conditions of the permit are no longer being met. Any denial or revocation of a permit may be appealed pursuant to the provisions of 157CSR1, Rules Relating Generally to Various Functions of the Commissioner of Highways which is available on the West Virginia Secretary of State's website.

W. Va. Code R. § 157-13-4