Delaware § 1609 - Permits.

§ 1609. Permits.

(a) The wireless provider shall acquire 1 or more permits to collocate a small wireless facility or construct, modify, maintain, and operate utility poles or small wireless support structures in the ROW provided such permits are of general applicability and do not apply exclusively to wireless facilities.

(b) The Department shall receive applications for, process, and issue such permits subject to the following requirements.

(1) The Department may not directly or indirectly require an applicant to perform services unrelated to the collocation for which approval is sought, such as in-kind contributions to the Department including reserving fiber, conduit, or pole space for the Department.

(2) An applicant shall not be required to provide more information to obtain a permit than communications service providers that are not wireless providers.

(3) Within 14 days of receiving an application, the Department will determine and notify the applicant whether the application is complete. If an application is incomplete, the Department must specifically identify the missing information.

(4) An application shall be processed on a nondiscriminatory basis and deemed approved if the Department fails to approve or deny it within 60 days. The parties may mutually agree to extend the 60-day application review period. The Department shall grant or deny the application at the end of the extended period.

(5) The Department shall approve an application unless the Department finds that it fails to comply with any of the following:

a. Applicable codes or, to the extent feasible, applicable provisions of the Delaware Utilities Manual Regulations, 2 DE Admin. Code 2401, unless or until the Secretary of the Department promulgates regulations specific to accommodation of wireless service providers in the state ROW;

b. Public safety;

c. Objective, reasonable design standards and stealth and concealment requirements;

d. Undergrounding requirements that prohibit the installation of new or modification of existing utility poles in a ROW without prior approval, if such requirements include a waiver or another process that addresses request to install such new utility poles or modify existing utility poles and do not prohibit the replacement of utility poles; or

e. The Department’s reasonable spacing requirements that determine the distance between utility poles based on best engineering practices and the facilities that will be attached thereto, if such requirements include a waiver or another process that addresses requests for exception or variance and do not prohibit granting of such exceptions or variances. Designs should be performed to maximize the spacing and to limit the quantity of poles utilized.

(6) The Department must document the basis for a denial, including the specific applicable code provisions on which the denial was based, and send the documentation to the applicant on or before the day the Department denies an application. The applicant may cure the deficiencies identified by the Department and resubmit the application within 30 days of the denial. The Department shall approve or deny the revised application within 15 days. Any subsequent review shall be limited to the deficiencies cited in the denial.

(7) To the extent possible, wireless providers shall plan their installations in a comprehensive manner based on geographic areas or proximate roadways, file a consolidated application and receive a single permit for the collocation of multiple small wireless facilities.

(8) The Department may not institute, either expressly or de facto, a moratorium on issuing permits or other approvals for the collocation of small wireless facilities or construction, modification, and operation of utility poles or small wireless support structures in the ROW. However, the Department may issue a temporary moratorium related to a particular road or limited geographic area where exigent circumstances exist that directly impact the public health, safety or welfare.

(9) Unless otherwise required by applicable code, the Department shall not require an application approval or permit or require fees or rates for:

a. Routine maintenance; or

b. The replacement of wireless facilities with wireless facilities that are substantially similar or the same size or smaller; or

c. The installation, placement, operation, maintenance, or replacement of micro wireless facilities that are suspended on cables that are strung between existing utility poles in compliance with applicable codes.

81 Del. Laws, c. 159, §  1;