§ 58-71. Intent and purpose; applicability; authority to implement.

(a)

Intent and purpose. It is the intent of the city to promote the public health, safety and general welfare by: providing for the placement and maintenance of communications facilities in the public rights-of-way within the city; adopting and administering reasonable rules and regulations not inconsistent with state and federal law, including the United States and Florida Constitutions, F.S. § 337.401, as it may be amended, the city's home-rule authority, and in accordance with the provisions of the Federal Telecommunications Act of 1996, the Spectrum Act, FCC regulations, and other federal and state law; establishing reasonable rules and regulations necessary to manage the placement and maintenance of communications facilities in the public rights-of-way by all communications services providers after the effective date of this section; and minimizing disruption to the public rights-of-way. In regulating its public rights-of-way, the city shall be governed by and shall comply with all applicable federal and state laws.

(b)

Applicability. This article shall apply to all facilities for communications services placed or maintained in the city public rights-of-way pursuant to F.S. § 337.401, including, but not limited to, any person holding a certificate of franchise authority pursuant to F.S. § 610.103, communications services providers, pass-through providers, and wireless providers. To the extent not prohibited by applicable law, this article shall apply to all applications pending at the time of adoption of this ordinance, to place or maintain communications facilities in the public rights-of-way. Persons seeking to place or maintain communications facilities on private property or other property to which the city, any municipality, Volusia County, county school board, State of Florida, or federal government has a fee-simple or leasehold interest in real property, not within and exclusive of the public rights-of-way, located within the jurisdictional boundaries of the city shall comply with the applicable provisions of chapter 16, section 9 of the Land Development Code, to the extent it applies, unless such property is addressed expressly in this article. This article is not applicable to communication facilities outside the public rights-of-way. Pursuant to this article, a person may be authorized to place or to maintain small wireless facilities, micro wireless facilities, or utility poles for collocation of small wireless facilities in the city public rights-of-way. Wireless support structures, telecommunications towers and other wireless facilities, including, but not limited to, an antenna that is not part of a small wireless facility or micro wireless facility, shall not be allowed to be placed or maintained in the public rights-of-way, to the extent not inconsistent with applicable law. This article applies to the placement of conduit, fiber or cable for the purpose of providing backhaul or communications service. Consistent with F.S. § 337.401, this article applies to a cable or video service provider that has been issued and holds a certificate of franchise authority from the Florida Department of State pursuant to F.S. § 610.103, that places or maintains a cable system or wireline facilities in the city's public rights-of-way. This article does not apply to electric utility poles for an electric distribution system located in the city public rights-of-way pursuant to a valid franchise agreement with the city. However, collocation of small wireless facilities on such utility poles and any utility poles not for an electric distribution system placed or maintained by a city franchised utility in the public rights-of-way will be governed by the applicable provisions of this article. Ordinances approving a franchise agreement and a valid franchise agreement with an electric utility shall remain in full force and effect, notwithstanding any provision of this article. This article shall not apply to wireless facilities owned by the city or by a person, including an electric cooperative, to the extent such facilities are utilized on an internal, non-commercial basis by said person.

(1)

This article implements inter alia, the Advanced Wireless Infrastructure Deployment Act, F.S. § 337.401(7), ("Wireless Act"). By adopting this article, the city does not waive any rights with respect to the Wireless Act including any rights that may exist under federal law, the Florida Constitution and the U.S. Constitution. In the event the Advanced Wireless Infrastructure Deployment Act, Section 337.401(7), is repealed, amended, or overturned by a court of competent jurisdiction, or preempted by applicable federal law or regulation, in whole or in part, provisions of this article may no longer apply, in which case pending and future applications for small wireless facilities or utility poles intended to support the collocation of small wireless facilities in the public rights-of-way, will be governed by applicable law. In addition, permits issued pursuant to this article may be suspended or revoked, and facilities installed pursuant to permits issued pursuant to this article or without permits as authorized by this article may be required to be removed at the facility owner's expense, to the extent consistent with applicable law. It is the city's intent not to create any vested rights in placing and maintaining facilities addressed in the Wireless Act in the public rights-of-way as a result of this article or any permit issued pursuant to this article, to the extent not inconsistent with applicable law.

(2)

To the extent any provision of this article conflicts with the Code of Ordinances or Land Development Code of the City of Port Orange, including, but not limited to, chapter 58, article II, sections 58-32 to 58-41, this article shall control.

(3)

This article shall be applicable to all communications facilities placed in the public rights-of-way on or after the effective date of this article, all pending applications for permits subject to this article, and all existing communications facilities placed in the public rights-of-way prior to the effective date of this article, to the full extent permitted by state and federal law. A person with existing communications facilities in the public rights-of-way shall comply with this article by the earlier of the following: Ninety days from the effective date of this article or prior to submitting an application for a permit pursuant to this article. This provision shall not require the removal or alteration of existing communications facilities placed or maintained in the public rights-of-way pursuant to a previously issued permit or otherwise lawfully installed prior to the effective date of this article unless such facilities are abandoned or otherwise required to be altered or removed by the city manager.

(4)

Reservation of rights. The city reserves the right to amend this article as it shall find necessary in the lawful exercise of its police powers.

(c)

Authority to implement article. The city manager is authorized to adopt, to modify, and to repeal rules and regulations, not inconsistent with this article, to carry out the intent and purposes of this article.

(Ord. No. 2018-13 , § 3, 8-7-2018)