Chapter 20.02
GENERAL PROVISIONS
Sections:
20.02.010 Purpose.
20.02.020 Definitions.
20.02.030 Business registration required.
20.02.040 Public way agreement required.
20.02.050 Franchise required.
20.02.060 Cable television franchise required.
20.02.070 Facilities lease required.
20.02.080 Construction permit required.
20.02.090 Application to existing franchise ordinances, agreements, leases, and permits and effect of other laws.
20.02.100 Reserved.
20.02.110 Fees and compensation not a tax.
20.02.120 Taxes are not to be a credit.
20.02.010 Purpose.
The purpose and intent of this title is to:
A. Establish a local policy concerning regulation of telecommunications carriers, operators, providers, and other commercial utilities in public ways and on city and/or public property;
B. Establish, consistent with federal and state law, clear local guidelines, standards and time frames for the exercise of local authority with respect to the regulation of activities of telecommunications carriers, operators, providers, and other commercial utilities in public ways and on city and/or public property;
C. Promote competition in telecommunications;
D. Minimize unnecessary local regulation of telecommunications carriers, operators, providers, and other commercial utilities;
E. Encourage the provision of advanced and competitive telecommunications services on the widest possible basis to the businesses, institutions and residents of the city;
F. Permit and manage reasonable access to the public ways of the city for telecommunications purposes on a competitively neutral basis;
G. Conserve the limited physical capacity of the public ways held in public trust by the city;
H. Assure that the city’s current and ongoing costs of granting and regulating private access to and use of the public ways are fully paid by the persons seeking or using such access and causing such costs;
I. To the extent permitted by federal and state law, secure fair and reasonable compensation to the city and the residents of the city for permitting private use of the public ways;
J. Assure that all telecommunications carriers, operators, providers, and other commercial utilities utilizing public ways or city or public property within the city comply with the ordinances, rules and regulations of the city;
K. Assure that the city can continue to fairly and responsibly protect the public health, safety and welfare; and
L. Enable the city to discharge its public trust consistent with rapidly evolving federal and state regulatory policies, industry competition and technological development. (Ord. 5271 § 1, 1999; Ord. 5034 § 1, 1998.)
20.02.020 Definitions.
For the purpose of this title, and the interpretation and enforcement thereof, the following words and phrases shall have the following meanings, unless the context of the sentence in which they are used shall indicate otherwise:
“The Act” means the Federal Telecommunications Act, January 31, 1996.
“Addressability” means the ability of a telecommunications system to allow telecommunications carriers, operators, or providers to authorize by remote control customer terminals to receive, change, or to cancel any or all specified programming.
“Affiliate” means an entity which (directly or indirectly) owns or controls, is owned or controlled by, or is under common ownership with franchisee. For purposes of this definition, the term “own” means to own an equity interest (or the equivalent thereof) of more than 10 percent.
“Applicant” means any person or entity that applies for any public way agreement, franchise, lease, or permit pursuant to this title.
“Cable facilities” means equipment and wiring used to transmit audio and video signals to subscribers.
“Cable operator” means a telecommunications carrier providing or offering to provide “cable service” within the city as that term is defined in the Cable Act and Chapter 13.36 ACC.
“Cable service” for the purpose of this title shall have the same meaning provided by the Cable Act and Chapter 13.36 ACC.
“Cable system” means a facility, consisting of a set of closed transmission paths and associated signal generation, reception, and control equipment that is designed to provide cable service and other service to subscribers.
“Carrier” means any provider of telecommunications services, except that this term does not include aggregators of telecommunications services as defined in Section 225 of the Act. (See also “Telecommunications carrier.”)
“City” means the city of Auburn, Washington as defined in ACC 1.04.010 to include all future areas annexed into the city.
“City property” means and includes all real property owned by the city, other than public ways and utility easements as those terms are defined herein, and all property held in a proprietary capacity by the city, which are not subject to public way agreements and franchising as provided in this title.
“Commercial utility provider” means any natural gas, electric power, pipeline, or other company desiring to utilize city public ways for transporting, purveying, or delivering bulk products, or providing commercial power or gas services within the city, or needing to transport bulk product or services through the city to other destinations for commercial purposes.
“Council” means the city council of the city of Auburn, Washington acting in its official capacity constituting the legislative body of the city.
“Data communication” means (1) the transmission of encoded information or (2) the transmission of data from one point to another.
“Dwelling units” means residential living facilities as distinguished from temporary lodging facilities such as hospitals, hotel and motel rooms and dormitories, and includes single-family residential units and individual apartments, condominium units, mobile homes, extended care facilities and other multiple-family residential units.
“Emergency” means a condition of imminent danger to the health, safety, and welfare of property or persons located within the city including, without limitation, damage to persons or property from natural consequences, such as storms, earthquakes, riots or wars.
“Excess capacity” means the volume or capacity in any existing or future duct, conduit, manhole, handhole or other utility facility within the public way that is or will be available for use for additional telecommunications facilities.
“FCC” or “Federal Communications Commission” means the federal administrative agency, or lawful successor, authorized to regulate and oversee telecommunications carriers, services and providers on a national level.
“Fiber optics” means the technology of guiding and projecting light for use as a communications medium.
“Franchise” shall mean the initial authorization, or renewal thereof, approved by an ordinance of the city, which authorizes the franchisee to construct, install, operate, or maintain telecommunications or other commercial utility facilities in, under, over, or across public ways of the city and to also provide service to persons or areas in the city.
“Franchise area” means all areas within the current city limits and within any future adjusted boundaries of the city limits. The effective date of any such changes in the city limits will be the effective date(s) of any future annexations.
“Franchisee” means a person, as defined herein, firm or corporation to whom or which a franchise, as defined in this section, is granted by the council under this title and the lawful successor, transferee or assignee of said person, firm or corporation subject to such conditions as may be defined in the franchise and in this title.
“Grantee” means a holder of a public way agreement, franchise, or lease approved by the city council of the city of Auburn.
“Gross revenue” shall mean all receipts accrued in a franchisee’s books for all commercial utility, communications and communications-related operations and services from subscribers, who have a service address within the corporate limits of the city of Auburn, to franchisee’s business as well as any other revenue arising from operation or possession of a franchise agreement with the city of Auburn, less the application and administrative fees mandated in the franchise agreement and the franchise fee intended for compensation for use of “public ways.” By way of example, but without limitation, “gross revenue” includes all revenues from the sale or lease of equipment, installation charges to subscribers who have service addresses within the corporate limits of the city, charges to customers, subscribers and other users of the telecommunications system who have service addresses within the corporate limits of the city. “Gross revenues” does not include: (a) taxes, fees, or assessments of any kind or description imposed on or levied against franchisee which are not applicable to all other persons or entities doing business within the city, (b) revenues noncollectible from customers (bad debts) which have been written off through generally accepted accounting practices, (c) discounts, and (d) any applicable exclusions under the law.
“Lessee” means the holder of a lease for use of city or public property which has been approved by the city council of the city of Auburn.
“Other ways” means the highways, streets, alleys, utility easements or other rights-of-way within the city, but under the jurisdiction and control of a governmental entity other than the city.
“Overhead facilities” means utility poles, utility facilities and telecommunications or other commercial utility facilities located above the surface of the ground, including the underground supports and foundations for such facilities.
“OVS” means open video system which is a telecommunications system having two-thirds of its capacity set aside for use by other providers, programmers, or competitive business on a subleasing basis. Because of its self-competitive nature, an OVS is subject to regulatory restrictions.
“Person” means and includes corporations, companies, associations, joint stock companies or associations, firms, partnerships, limited liability companies and individuals and includes their lessors, trustees and receivers.
“Property of franchisee” means all plant, or facilities owned, installed or used by a franchisee in the conduct of its business in the city under the authority of a franchise granted pursuant to this title.
“Proposal” means an application by any person or entity that applies for any public way agreement, franchise, lease, or permit pursuant to this title.
“Public place” means an area generally open to public access including all public ways, parks, plazas, publicly owned buildings, theaters, and entrances or doorways to places of business that front on a public way.
“Public street” means any highway, street, alley or other public right-of-way for motor vehicle travel under the jurisdiction and control of the city which has been acquired, established, dedicated or devoted to highway purposes.
“Public way(s)” shall mean the surface, the air space above the surface, and the space below the surface of any public street, including, but not limited to, any public alley, bridge, land path, trail, court, circle, roundabout, boulevard, drive, tracts, right-of-way or sidewalk under the jurisdiction of the city as is now, or in the future, laid out, improved or unimproved within the limits of the city presently and as such limits may be hereafter extended.
“State” means the state of Washington.
“Subscriber” or “customer” means a person or user of the commercial utility or telecommunications system who lawfully receives commercial utility or communications services or other service therefrom with franchisee’s express permission.
“Surplus space” means that portion of the usable space on a utility pole which has the necessary clearance from other pole users, as required by federal or state law, orders, and regulations, to allow its use by a telecommunications carrier for a pole attachment.
“Telecommunications carrier” means and includes every person that directly or indirectly owns, controls, operates or manages plant, equipment or facilities within the city’s public ways, for the purpose of offering telecommunications services within the city. (See also “Carrier.”)
“Telecommunications facilities” means the plant, equipment and facilities, including but not limited to, cables, wires, conduits, ducts, pedestals, antennae, electronics and other appurtenances used or to be used to transmit, receive, distribute, provide or offer telecommunications services.
“Telecommunications operator” means and includes every person who provides telecommunications services within the city over telecommunications facilities located within the city’s public ways, without any ownership, management or control of the facilities.
“Telecommunications provider” means and includes every person who utilizes facilities within the city’s public ways to provide services outside the city only.
“Telecommunications service” means the providing or offering for rent, sale or lease, or in exchange for other value received, of the transmittal of voice, data, image, graphic and video programming information between or among points by wire, cable, fiber optics, laser, microwave, radio, satellite or similar facilities, with or without benefit of any closed transmission medium.
“Telecommunications system,” see “Telecommunications facilities.”
“Underground facilities” means utility and telecommunications facilities located under the surface of the ground, excluding the underground foundations or supports for overhead facilities.
“Usable space” means the total distance between the top of a utility pole and the lowest possible attachment point that provides the minimum allowable vertical clearance as specified in any federal or state orders and regulations.
“Utility easement” means any easement in which the city holds an interest in or an interest has been acquired, established, dedicated or devoted for city utility purposes.
“Utility facilities” means the plant, equipment and property, including but not limited to the poles, pipes, mains, conduits, ducts, cables, wires, plant and equipment located under, on or above the surface of the ground within the public ways of the city and used or to be used for the purpose of providing utility or telecommunications services.
“WUTC” means the Washington State Utility and Transportation Commission. (Ord. 5271 § 1, 1999; Ord. 5034 § 1, 1998.)
20.02.030 Business registration required.
Except as otherwise provided herein, all commercial utilities, cable operators, telecommunications carriers, operators and providers engaged in the business of transmitting, supplying or furnishing of commercial utility or telecommunications service of any kind originating or terminating in the city, or utilizing facilities within the city’s public ways to provide services exclusively outside of the city only, shall apply for and obtain a business registration from the city pursuant to Chapter 5.84 ACC. (Ord. 5271 § 1, 1999; Ord. 5034 § 1, 1998.)
20.02.040 Public way agreement required.
Except as otherwise provided herein, any commercial utility or telecommunications provider who desires to construct, install, operate, maintain, or otherwise locate facilities in, under, over or across any public way of the city for the sole purpose of providing service to persons and areas outside the city shall first obtain a public way agreement granting the use of such public ways from the city pursuant to Chapter 20.04 ACC. (Ord. 5271 § 1, 1999; Ord. 5034 § 1, 1998.)
20.02.050 Franchise required.
Except as otherwise provided herein, any commercial utility, telecommunications carrier or operator who desires to construct, install, operate, maintain or otherwise locate facilities in, under, over or across any public way of the city, and to also provide service to persons or areas in the city, shall first obtain a franchise granting the use of such public ways from the city pursuant to Chapter 20.06 ACC. (Ord. 5271 § 1, 1999; Ord. 5034 § 1, 1998.)
20.02.060 Cable television franchise required.
Except as otherwise provided herein, any telecommunications carrier or other person who desires to construct, install, operate, maintain or locate cable or telecommunications facilities in any public way in the city for the purpose of providing cable service to persons in the city shall first obtain a cable franchise from the city pursuant to Chapter 13.36 ACC. (Ord. 5271 § 1, 1999; Ord. 5034 § 1, 1998.)
20.02.070 Facilities lease required.
No commercial utility, telecommunications carrier or other entity who desires to locate facilities or other equipment on city property shall locate such facilities or equipment on city property unless granted a facilities lease from the city pursuant to Chapter 20.08 ACC. The city council reserves unto itself the sole discretion to lease city property for telecommunications and other facilities, and no vested or other right shall be created by this section or any provision of this title applicable to such facilities leases. (Ord. 5271 § 1, 1999; Ord. 5034 § 1, 1998.)
20.02.080 Construction permit required.
Except as otherwise provided herein, the holder of a public way agreement, franchise, or lease granted pursuant to this title, and the holders of cable franchises granted pursuant to Chapter 13.36 ACC, shall, in addition to said public way agreement, franchise, or lease, be required to obtain a construction permit from the city pursuant to Chapter 12.24 ACC. No work, construction, development, excavation, or installation of any equipment or facilities shall take place within the public ways or upon city property until such time as the construction permit is issued. (Ord. 5271 § 1, 1999; Ord. 5034 § 1, 1998.)
20.02.090 Application to existing franchise ordinances, agreements, leases, and permits and effect of other laws.
All grantees, franchisees, and lessees subject to this title are at all times subject to and must comply with all applicable existing and future federal, state and local laws, ordinances, codes, rules, regulations and orders.
A. This title shall have no effect on agreements in effect prior to adoption, unless otherwise provided, in any existing franchise ordinance, franchise agreement, lease, permit, agreement or other authorization to use or occupy a public way in the city until:
1. The expiration of said franchise ordinance, agreement, lease, permit, or authorization; or
2. The amendment to an unexpired franchise ordinance, franchise agreement, lease, permit, authorization, or agreement unless both parties agree to defer full compliance to a specific date not later than the expiration date provided therein.
B. Nothing in this title shall be deemed to create an obligation upon any person for which the city is forbidden to require pursuant to federal, state, or other law.
C. Upon expiration of the electrical and natural gas franchises in effect at time of adoption of this title, granted by Chapter 13.44 ACC, the franchise shall be renegotiated under the terms of this title. (Ord. 5271 § 1, 1999; Ord. 5034 § 1, 1998.)
20.02.100 Reserved.
(Ord. 5271 § 1, 1999; Ord. 5034 § 1, 1998.)
20.02.110 Fees and compensation not a tax.
The fees, charges and fines provided for in this title and any compensation charged and paid as provided herein, whether fiduciary or in-kind, are separate from, and additional to, any and all federal, state, local, and city taxes as may be levied, imposed or due from a commercial utility, telecommunications carrier, operator, or provider, its customers or subscribers or on account of the lease, sale, delivery or transmission of telecommunications services. (Ord. 5271 § 1, 1999; Ord. 5034 § 1, 1998.)
20.02.120 Taxes are not to be a credit.
Any compensation paid as provided for in public way agreements, franchises, and/or facility leases shall be exclusive of and in addition to all special assessments and taxes of whatever nature which are applicable to all other persons or entities doing business within the city, including, but not limited to, ad valorem taxes, sales taxes, corporate or business occupation taxes or other taxes or fees imposed or levied by any governmental entity. (Ord. 5271 § 1, 1999; Ord. 5034 § 1, 1998.)