Staff recommends the City Council hold a public hearing and approve first reading of the ordinance amending Billings, Montana City Code (BMCC), Article 22-407, Encroachment Permit Required.

There is a potential for requests for small cell facilities to be installed within the right of way.  City staff has developed language to add to Billings, Montana City Code (BMCC) Section 22-407, Encroachment permit required, to require installers to apply for an encroachment permit and enter into a license agreement before installing the facilities.  The language proposed to be added is as follows:

An applicant seeking to install and operate a small cell wireless facility in the public right-of-way shall obtain a revocable encroachment permit and enter into a license agreement with the City prior to constructing, attaching, and operating a small cell wireless facility in the public right-of-way.

In addition to the ordinance, a resolution is needed and is also being considered by City Council on this meeting agenda.  The resolution will direct the City Administrator to develop and publish uniform standards managing the deployment of small cell wireless facilities in the public rights-of-way; to develop an encroachment permit application form and procedures for submission of applications for deployment or modification of small cell wireless facilities in the public rights-of-way; to develop a license agreement which permitee shall enter into with the City prior to constructing, attaching, or operating a small cell wireless facility on city infrastructure in the public rights-of-way; to take such other steps as may be required to timely act upon applications for placement of wireless facilities, including issuing written decisions and entering into tolling agreements to mutually extend the time for action on an application.

The modified ordinance language in addition to the approved resolution will enable the City to effectively manage the deployment of small cell facilities in the rights of way.  If approved, this ordinance will have a second reading on October 9, 2023, and if approved then, would go into effect 30 days from the approval date.

City Council may:

• Approve the amendment to BMCC, Article 22-407 Encroachment Permit Required; or,
• Not approve the amendment.  If the amendment is not approved, the process to permit small cell facilities in the right of way will not be defined.

There are minimal fiscal effects as a result of adopting this ordinance.  There are fees that are defined by the Federal Communication Commission (FCC) for small cell facilities in the rights of way that could be collected with or without the ordinance and the city has right of way permit fees that would still be in effect. However, without the ordinance, an encroachment permit and license agreement would not be required so the fees would not be as clearly defined.