2019 Tennessee Code
Title 13 - Public Planning and Housing
Chapter 24 - Zoning Classifications
Part 4 - Competitive Wireless Broadband Investment, Deployment, and Safety Act of 2018
§ 13-24-408. Uniform local authority requirements for deployment and maintenance of small wireless facilities -- Exceptions.
(a)
(1) No local authority shall restrict the size, height, or otherwise regulate the appearance or placement of small wireless facilities, or prohibit colocation on PSSs, except a local authority shall require that:
(A) A new PSS installed or an existing PSS replaced in the ROW not exceed the greater of:
(i) Ten feet (10′) in height above the tallest existing PSS in place as of April 24, 2018 that is located within five hundred feet (500′) of the new PSS in the ROW and, in residential neighborhoods, the tallest existing PSS that is located within five hundred feet (500′) of the new PSS and is also located within the same residential neighborhood as the new PSS in the ROW;
(ii) Fifty feet (50′) above ground level; or
(iii) For a PSS installed in a residential neighborhood, forty feet (40′) above ground level;
(B) Small wireless facilities deployed in the ROW after April 24, 2018 shall not extend:
(i) More than ten feet (10′) above an existing PSS in place as of April 24, 2018; or
(ii) On a new PSS, ten feet (10') above the height permitted for a new PSS under this section.
(2) Nothing in this part applies to or restricts the ability of an electric distributor or its agent or designated party to change the height of a utility pole used for electric distribution, regardless of whether a small wireless facility is colocated on the utility pole. This section does not authorize a wireless provider to install or replace a PSS above the height restrictions in subdivision (a)(1)(A).
(3) An applicant may construct, modify, and maintain a PSS or small wireless facility that exceeds the height limits set out in subdivision (a)(1) only if approved under the local authority's generally applicable zoning regulations that expressly allow for the taller structures or if approved pursuant to a zoning appeal.
(b) A local authority may require an applicant to comply with a local authority's nondiscriminatory requirements for placing all electric, cable, and communications facilities underground in a designated area of a ROW if the local authority:
(1) Has required all electric, communications, and cable facilities, other than authority-owned PSSs and attachments, to be placed underground prior to the date on which the application is submitted;
(2) Does not prohibit the replacement of authority-owned PSSs in the designated area when the design for the new PSS meets the authority's design aesthetic plan for the area and all other applicable criteria provided for in this part; and
(3) Permits applicants to seek a waiver of the underground requirements for the placement of a new PSS to support small wireless facilities and the approval or nonapproval of the waivers are decided in a nondiscriminatory manner.
(c)
(1) Except for facilities excluded from evaluation for effects on historic properties under 47 C.F.R. § 1.1307(a)(4) or any subsequently enacted similar regulations, a local authority may require reasonable, nondiscriminatory, and technology neutral design or concealment measures in a historic district if:
(A) The design or concealment measures do not have the effect of prohibiting any applicant's technology or substantially reducing the functionality of the small wireless facility, and the local authority permits alternative design or concealment measures that are reasonably similar; and
(B) The design or concealment measures are not considered a part of the small wireless facility for purposes of the size conditions contained in the definition of “small wireless facility” in § 13-24-402.
(2) Nothing in this section limits a local authority's enforcement of historic preservation zoning regulations consistent with the preservation of local zoning authority under 47 U.S.C. § 332(c)(7), the requirements for facility modifications under 47 U.S.C. § 1455(a), or the National Historic Preservation Act of 1966 (54 U.S.C. § 300101 et seq.), and the regulations adopted and amended from time to time to implement those laws.
(d) No local authority shall require network design for small wireless facilities, including mandating the selection of any specific PSS or category of PSS to which an applicant must attach any part of its network. No local authority shall limit the placement of small wireless facilities by imposing minimum separation distances for small wireless facilities or the structures on which the facilities are colocated. The prohibitions in this subsection (d) do not preclude a local authority from providing general guidance regarding preferred designs or from requesting consideration of design alternatives in accordance with the process set forth in § 13-24-409(b).
(e) A local authority may prohibit colocation on local authority-owned PSSs that are identified as PSSs the mast arms of which are routinely removed to accommodate frequent events, including, but not limited to, regularly scheduled street festivals or parades. To qualify for the exception set out in this subsection (e), an authority must publish a list of the PSSs on its website and may prohibit colocation only if the PSS has been designated and published as an exception prior to an application. A local authority may grant a waiver to allow colocation on a PSS designated under this subsection (e) if an applicant demonstrates that its design for colocation will not interfere with the operation of the PSS and otherwise meets all other requirements of this part.
(f) An applicant may replace an existing local authority-owned PSS when colocating a small wireless facility. When replacing a PSS, any replacement PSS must reasonably conform to the design aesthetics of the PSS being replaced, and must continue to be capable of performing the same function in a comparable manner as it performed prior to replacement.
(g) When replacing a local authority-owned PSS, the replacement PSS becomes the property of the local authority and maintenance and repair obligations are as follows:
(1) For local authority-owned PSSs used for lighting, a local authority may require the applicant to provide lighting on the replacement PSS. Both the PSS and the lighting shall become the property of the local authority only upon completion of the local authority's inspection of the new PSS to ensure it is in working condition and that any lighting is equivalent to the quality and standards of the lighting on the PSS prior to replacement. After satisfactory inspection, the local authority's ownership shall include responsibility for electricity and ordinary maintenance, but the local authority shall not be responsible for electric power, maintenance or repair of the small wireless facility colocated on the local authority-owned PSS; and
(2) When the applicant's design for replacing a local authority-owned PSS substantially alters the PSS, then the applicant shall indicate in its application whether the applicant will manage maintenance and repairs in case of damage or whether the applicant agrees that, if the PSS is damaged and requires repair, then the local authority may replace the PSS without regard to the alterations and require the applicant to perform any work necessary to remove or dispose of the small wireless facility. If the applicant assumes the responsibility for repair, then the applicant is entitled to a right of subrogation with regard to local authority insurance coverage or any recovery obtained from third parties liable for the damage.
(h) A local authority may conduct periodic training sessions or seminars for the purpose of sharing local information relevant to deployment of small wireless facilities and best practices. Applicants must make a good faith effort to participate in the opportunities.
