Delaware Code Title 17 Sec. 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.
Terms Used In Delaware Code Title 17 Sec. 1609
- Applicable codes: means uniform building, fire, electrical, plumbing, or mechanical codes adopted by a recognized national code organization or local amendments to those codes enacted solely to address imminent threats of destruction of property or injury to persons to the extent not inconsistent with the terms of this chapter. See Delaware Code Title 17 Sec. 1603
- Applicant: means any person who submits an application and is a wireless provider. See Delaware Code Title 17 Sec. 1603
- Application: means a request submitted by an applicant to the Department for a permit:
- Collocate: means to install, mount, maintain, modify, operate, or replace wireless facilities on or adjacent to a small wireless support structure or utility pole. See Delaware Code Title 17 Sec. 1603
- Construction: means the first complete building or rebuilding of a highway after it has been converted into a state highway upon a modern engineering design with a permanent foundation of cement, concrete or other equally hard and permanent material and a top dressing of suitable material to economically withstand the wear of the particular traffic to which such highway will probably be subject with an adequate drainage system so that such highway, with reasonable maintenance, can reasonably be expected to endure for upwards of 40 years. See Delaware Code Title 17 Sec. 101
- Department: means the Delaware Department of Transportation. See Delaware Code Title 17 Sec. 1603
- Permit: means a written authorization required by the Department to perform an action or initiate, continue, or complete a project. See Delaware Code Title 17 Sec. 1603
- ROW: means the area on, below, or above or across public roads, causeways, highways, bridges in the State which have been or may hereafter be constructed, acquired, or accepted by the Department. See Delaware Code Title 17 Sec. 1603
- Secretary: means the Secretary of Transportation. See Delaware Code Title 17 Sec. 101
- Small wireless facility: means a wireless facility that meets both of the following qualifications:
- State: means the State of Delaware; and when applied to different parts of the United States, it includes the District of Columbia and the several territories and possessions of the United States. See Delaware Code Title 1 Sec. 302
- Wireless provider: means a wireless infrastructure provider or a wireless services provider. See Delaware Code Title 17 Sec. 1603
(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.