SC Code § 58-11-820 (2021)
2021 South Carolina Code of Laws|Title 58 - Public Utilities, Services and Carriers|Chapter 11 - Radio Common Carriers|Section 58-11-820. Provisions applying to activities of wireless provider within ROW to deploy small wireless facilities and associated poles; limitations on new or modified poles; decorative poles; installation of poles in underground and historic districts; repair of damage to ROW; abandonment of small wireless facility; business license taxes.

 (A) The provisions of this section shall apply only to activities of a wireless provider within the ROW to deploy small wireless facilities and associated poles.  (B) An authority may not enter into an exclusive arrangement with any person for use of the ROW for the collocation of small wireless facilities or the installation, operation, marketing, modification, maintenance, or replacement of poles.  (C)(1) Subject to the exceptions in Section 58-11-830(F)(1), an authority may charge a wireless provider a rate or fee for the use of the ROW with respect to the collocation of small wireless facilities or the installation, maintenance, modification, operation, or replacement of a pole in the ROW only if such rate or fee is nondiscriminatory and only if the authority charges other similarly situated entities for use of the ROW.  (2) Notwithstanding the provisions of item (1) of this subsection, an authority is permitted, on a nondiscriminatory basis, to refrain from charging any rate or fee to a wireless provider for the use of the ROW. The rates or fees for such use of the ROW and associated applications and attachments to authority poles are provided in Section 58-11-850.  (D) Subject to the provisions of this section, a wireless provider shall have the right, as a permitted use subject only to administrative review pursuant to Section 58-11-830, to collocate small wireless facilities and install, maintain, modify, operate, and replace poles in the ROW. These structures and facilities must be installed and maintained so as not to: create a safety hazard; obstruct or hinder the usual travel in or the public's safe use of the ROW; or obstruct the legal use of the ROW by utilities.  (E)(1) Each new or modified pole installed in the ROW may not exceed the greater of ten feet in height above the tallest existing pole in place as of the effective date of this article located within five hundred feet of the new pole in the same ROW, or fifty feet above ground level provided; however, that for applications to place poles in residential zoning districts to deploy small wireless facilities, the authority may propose an alternate location in the ROW within one hundred fifty feet of the location set forth in the application, and the wireless provider shall use the authority's proposed alternate location unless the location is not technically feasible or imposes significant additional costs. The wireless provider shall certify that it has made such a determination in good faith, based on the assessment of an engineer licensed in South Carolina, and it shall provide a written summary of the basis for such determination.  (2) New small wireless facilities in the ROW may not extend more than ten feet above an existing pole in place as of the effective date of this article; or for small wireless facilities on a new pole, above the height permitted for a new pole pursuant to this section.  (3) To the extent permitted by and approved under applicable zoning or other regulations, a wireless provider shall have the right to collocate a small wireless facility on and install, maintain, modify, operate, and replace poles in the ROW that exceed the height limits set forth in item (1).  (F)(1) Subject to an authority's ability to deny the proposal as set forth in this article, a wireless provider must be permitted to collocate on or replace decorative poles when necessary to deploy a small wireless facility.  (2) An authority may require the collocation on a decorative pole or the replacement of a decorative pole to reasonably conform to the design aesthetics of the original decorative pole, provided these requirements are technically feasible.  (3)(a) For applications to replace decorative poles to deploy small wireless facilities, the authority may propose an alternate location in the ROW within one hundred fifty feet of the location set forth in the application, and the wireless provider shall use the authority's proposed alternate location unless the location is not technically feasible or imposes significant additional costs. The wireless provider shall certify that it has made such a determination in good faith, based on the assessment of an engineer licensed in South Carolina, and it shall provide a written summary of the basis for such determination.  (b) For applications to collocate small wireless facilities on decorative poles, the authority may propose collocation on a new pole or on an existing pole or structure in the ROW within one hundred fifty feet of the location set forth in the application, and the wireless provider shall use the authority's proposed alternative unless the location is not technically feasible or imposes significant additional costs. The wireless provider shall certify that it has made such a determination in good faith, based on the assessment of an engineer licensed in South Carolina, and it shall provide a written summary of the basis for such determination.  (G)(1) A wireless provider shall comply with reasonable and nondiscriminatory requirements that prohibit the installation of poles in the ROW in an underground district where:  (a) no less than sixty days prior to the submission of the application, the authority has required all such lines to be placed underground;  (b) poles the authority allows to remain are made available to wireless providers for the collocation of small wireless facilities and may be replaced by a wireless provider to accommodate the collocation of small wireless facilities in compliance with this article; and  (c) a wireless provider is allowed to install a new pole when it is not able to provide wireless service by collocating on a remaining pole or support structure provided; however, that for any such application to install a new pole, the authority may propose an alternate location in the ROW within one hundred fifty feet of the location set forth in the application, and the wireless provider shall use the authority's proposed alternate location unless the location is not technically feasible or imposes significant additional costs. The wireless provider shall certify that it has made such a determination in good faith, based on the assessment of an engineer licensed in South Carolina, and it shall provide a written summary of the basis for such determination.  (2) For small wireless facilities installed before an authority adopts requirements that comply with subsection (G)(1), an authority adopting such requirements shall:  (a) permit a wireless provider to maintain the small wireless facilities in place subject to any applicable pole attachment agreement with the pole owner; or  (b) permit the wireless provider to replace the associated pole within fifty feet of the prior location, provided that the wireless provider shall allow communications service providers with attachments on the existing pole to place those attachments on the replacement pole under the same or reasonably similar fees, rates, terms, and conditions as applied to those attachments on the existing pole.  (H)(1) Subject to Section 58-11-830(D), an authority may require reasonable, technically feasible, nondiscriminatory, and technologically neutral design requirements, height limitations of no less than forty feet, or concealment measures in a design district or historic district. These design requirements, height limitations, or concealment measures may not have the effect of prohibiting any provider's technology or the provision of wireless services; nor may any such measures be considered a part of the small wireless facility for purposes of the size restrictions in the definition of small wireless facility.  (2) For applications to place poles in a design district or a historic district to deploy small wireless facilities, the authority may propose an alternate location in the ROW within one hundred fifty feet of the location set forth in the application, and the wireless provider shall use the authority's proposed alternate location unless the location is not technically feasible or imposes significant additional costs. The wireless provider shall certify that it has made such a determination in good faith, based on the assessment of an engineer licensed in South Carolina, and it shall provide a written summary of the basis for such determination.  (I) The authority, in the exercise of its administration and regulation related to the management of the ROW, must be reasonable, competitively neutral, nondiscriminatory with regard to all users of the ROW, and compliant with applicable law.  (J) A wireless provider shall repair all damage to the ROW directly caused by the activities of the wireless provider in the ROW and shall restore the ROW to its condition before the damage occurred pursuant to the competitively neutral and reasonable requirements and specifications of the authority. If within thirty calendar days after written notice the wireless provider fails to the extent practicable in the reasonable judgment of the authority to restore the ROW to its condition prior to the damage in compliance with this subsection, the authority may, at the sole discretion of the authority, restore the ROW to such condition and charge the applicable party the reasonable, documented cost of the restoration, plus a penalty not to exceed five hundred dollars provided; however, that the wireless provider may request additional time to make such repairs, and the authority shall not unreasonably deny such a request. The authority may suspend the ability of the wireless provider to receive any new permits from the authority until the wireless provider has paid the amount assessed for such restoration costs, if any provided; however, that the authority 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 the Administrative Law Court.  (K) A wireless provider must not be required to replace or upgrade an existing pole except for reasons of structural necessity, compliance with applicable codes, or compliance with this article. A wireless provider may, with the permission of the pole owner, replace or modify existing poles, but any such replacement or modification must be consistent with the design aesthetics of the poles being modified or replaced.  (L) A wireless provider shall notify the authority in writing as soon as practicable, but no later than thirty days before its abandonment of a small wireless facility. Following receipt of such notice, the authority may direct the wireless provider to remove all or any portion of the small wireless facility if the authority determines that such removal is in the best interest of the public safety and public welfare. If the wireless provider fails to remove the abandoned facility within ninety days after such notice, the authority may undertake to do so and recover the actual and reasonable expenses of doing so from the wireless provider, its successors or assigns, plus a penalty not to exceed five hundred dollars. The authority may suspend the ability of the wireless provider, its successors, or its assigns, as applicable, to receive any new permits from the authority until the wireless provider, its successors, or its assigns, as applicable, have paid the amount assessed for such removal costs, if any provided; however, that the authority 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 the Administrative Law Court.  (M) If the authority determines that a wireless provider's activity in a ROW pursuant to this article creates an imminent risk to public safety, the authority may provide written notice to the wireless provider and demand that the wireless provider address such risk. If the wireless provider fails to reasonably address the risk within twenty-four hours of the written notice, the authority may take or cause to be taken action to reasonably address such risk and charge the wireless provider the reasonable documented cost of such actions.  (N) Nothing in this article relieves any person including, but not limited to, any wireless provider, of any applicable obligation to pay business license taxes including, but not limited to, those provided for in Article 20, Chapter 9, Title 58, or franchise fees. Any entity that uses the ROW, directly or indirectly, including through leased facilities, to provide services in a municipality is responsible for all applicable taxes and fees related to the services provided.  HISTORY: 2020 Act No. 179 (H.4262), Section 1, eff September 29, 2020.