Chapter 6.70
UTILITY AND TELECOMMUNICATIONS PROVIDERS

Sections:

6.70.010    Purpose.

6.70.020    Definitions.

6.70.030    Registration and fees.

6.70.040    Franchise – Permit.

6.70.050    Reserved.

6.70.060    Cable television.

6.70.070    Application to existing agreements.

6.70.080    Penalties and remedies.

6.70.090    Other remedies.

6.70.100    Severability.

6.70.200    Franchise.

6.70.210    Application.

6.70.220    Determination by the city.

6.70.230    Extent of franchise.

6.70.240    Term of franchise.

6.70.250    Compensation to the city.

6.70.260    Amendment of franchise.

6.70.270    Nondiscrimination.

6.70.280    Service to the city.

6.70.300    Fees.

6.70.310    Fees for open video systems – Public access responsibilities.

6.70.010 Purpose.

The purpose of this chapter is:

A. To set forth rules and regulations regarding reasonable access of right-of-way in the city of Bellingham and siting of facilities for the following uses:

1. Railroads and other routes and facilities for public conveyances; and

2. Poles, conduits, tunnels, towers and structures, pipes and wires and appurtenances thereof.

a. For transmission and distribution of electrical energy, signals, and other methods of communication;

b. For gas, steam, and liquid fuels; and

c. For water, sewer, and other private and publicly owned and operated facilities for public service.

B. To establish nondiscriminatory policy for the city of Bellingham concerning telecommunications providers and services.

C. To reasonably and fairly compensate the city for use of and disruption to right-of-way. [Ord. 1998-09-074].

6.70.020 Definitions.

“Affiliate” means a person that (directly or indirectly) owns or controls, is owned or controlled by, or is under common ownership or control with another person.

“Cable service” for the purpose of this chapter shall have the same meaning provided by the Cable Communications Policy Act of 1984, as amended by the Cable Television Consumer Protection and Competition Act of 1992, as amended by portions of the Telecommunications Act of 1996, and as hereafter amended.

“Facility” or “facilities” means the plant, equipment and property, including but not limited to the poles, pipes, mains, conduits, ducts, pedestals, antennas, electronics, cables, wires, plant, and other appurtenances and equipment located under, on or above the surface of the ground within the right-of-way of the city and used or to be used for the purpose of providing utility services or transmitting, receiving, distributing, providing, or offering telecommunications services.

“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.

“Grantee” means any person obtaining a permit or franchise pursuant to this chapter.

“Open video system” or “OVS” refers to a telecommunications carrier or provider which owns or utilizes a set of transmission paths and associated signal generation, reception, and control equipment or other facilities designed to provide video programming provided to multiple subscribers and which carrier or provider the Federal Communications Commission has certified under applicable law.

“Overhead facilities” means utility facilities and telecommunications facilities located above the surface of the ground, including the underground supports and foundations for such facilities.

“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; but it does not mean or include governmental entities or persons acting on their behalf.

“Public street” means any highway, street, alley or other public right-of-way (whether improved or unimproved) under the jurisdiction and control of the city the use of which is not inconsistent with telecommunications or utility facilities.

“Surplus space” means that portion of the usable space on a pole which has the necessary clearance from other pole users, as required by the orders and regulations of the FCC or the Washington Utilities and Transportation Commission (“UTC”), to allow its use by a telecommunications carrier, provider, or utility for a pole attachment.

“Telecommunications carrier” means and includes every person that directly or indirectly owns, controls, operates or manages plant, equipment or property within the city, used or to be used for the purpose of offering telecommunications service.

“Telecommunications provider” means and includes every person who provides telecommunications services over telecommunications facilities without any ownership or management control of such facilities.

“Telecommunications services” 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.

“Usable space” means the total distance between the top of a pole and the lowest possible attachment point that provides the minimum allowable vertical clearance as specified in the orders and regulations of the FCC, UTC, the National Electrical Code, and the National Electrical Safety Code.

“Utility easement” means any easement owned by the city and acquired, established, dedicated or devoted for public utility purposes not inconsistent with telecommunications or utility facilities.

“Utility” or “utility services” means (A) railroad or other facility for public conveyances, and (B) a person engaging in the business of transmission, generation, or distribution of electrical energy or gas, steam, or liquid fuels, or owning or operating a private or publicly owned facility for public service.

“Work” means all construction, alteration, enlargement, improvement, repair, and/or demolition of a facility which has not been previously authorized by franchise, lease, or permit. [Ord. 1998-09-074].

6.70.030 Registration and fees.

All telecommunications carriers, providers, or utilities engaged in the business of transmitting, supplying, or furnishing telecommunications or utility services originating, terminating, or existing within the city or having facilities within the city shall register with the city pursuant to this chapter and pay all applicable fees. In addition, such entity shall provide the following information on forms provided by the city:

A. A description of the registrant’s existing and proposed telecommunications facilities within the city;

B. A description of the telecommunications service that the registrant intends to offer or provide;

C. Any other information deemed by the city to be relevant to determine whether the registrant (1) is subject to right-of-way permitting or franchising under this chapter, Chapter 6.17 BMC, or Chapter 13.15 BMC, (2) is required to pay any other applicable fee or tax, and/or (3) has duly obtained and maintains in force any applicable permit or other authorization from either the state of Washington or the Federal Communications Commission. [Ord. 1998-09-074].

6.70.040 Franchise – Permit.

A. Other than as provided in BMC 6.70.060, any telecommunications carrier, provider, or utility which intends to make any use of, perform work in, or conduct any activity whatsoever in city right-of-way for the purpose of constructing, installing, operating, maintaining or locating facilities in order to provide telecommunication service, other than an open video system, shall obtain a permit pursuant to Chapter 13.15 BMC.

B. Other than as provided in BMC 6.70.060, any other person who intends to make any use of, perform work in, or conduct any activity whatsoever in city right-of-way for the purpose of constructing, installing, operating, maintaining or locating facilities shall obtain a franchise from the city for use of public right-of-way pursuant to this chapter. [Ord. 1998-09-074].

6.70.050 Reserved.

[Ord. 1998-09-074].

6.70.060 Cable television.

Any telecommunications carrier, provider, or utility which intends to make any use of or conduct any activity whatsoever in city right-of-way for the purpose of constructing, installing, operating, maintaining or locating telecommunication or utility facilities in order to provide cable service only shall comply with the provisions of Chapter 6.17 BMC. Any person providing more than cable service shall comply with the provisions of this chapter and Chapter 13.15 BMC to the extent applicable with regard to facilities for such services. In the event of conflict between provisions of this chapter and Chapter 6.17 or 13.15 BMC, the provision in the city’s discretion which is most likely to further or protect its interests shall apply unless the context clearly requires otherwise. [Ord. 1998-09-074].

6.70.070 Application to existing agreements.

This chapter shall have no effect on any existing franchise ordinance, franchise agreement, lease of city property, or permit until the expiration of said franchise ordinance, agreement, lease or permit, including any extensions of the same which are at the sole option of the franchisee, lessee or permittee. [Ord. 1998-09-074].

6.70.080 Penalties and remedies.

Any person found guilty of violating, disobeying, omitting, neglecting or refusing to comply with any of the provisions of this chapter shall be guilty of an infraction and fined not less than $100.00, nor more than $750.00 for each offense. A separate and distinct offense shall be deemed committed each day on which a violation occurs or continues. [Ord. 2013-09-073 § 8; Ord. 1998-09-074].

6.70.090 Other remedies.

Nothing in this chapter shall be construed as limiting any judicial remedies that the city may have at law or in equity for enforcement of this chapter. [Ord. 1998-09-074].

6.70.100 Severability.

If any section, subsection, sentence, clause, phrase, or other portion of this chapter, or its application to any person, is, for any reason, declared invalid, in whole or in part by any court or agency of competent jurisdiction, said decision shall not affect the validity of the remaining portions hereof. [Ord. 1998-09-074].

6.70.200 Franchise.

Pursuant to City Charter and this chapter, any person electing to obtain a franchise granting use of city right-of-way shall do so in accordance with this chapter. Such franchise shall be in the form of an ordinance duly adopted by the city council and executed by the mayor and shall be consistent with the provisions of Chapter 13.15 BMC unless specifically modified by such ordinance. In the event of conflict between provisions of this chapter and Chapters 6.17 and 13.15 BMC, the provision most likely to further the city’s interests shall apply unless the context clearly requires otherwise. [Ord. 1998-09-074].

6.70.210 Application.

An applicant seeking a franchise under this chapter shall provide to the city on an application form sufficient information to enable the city to make its determination regarding such franchise including but not limited to the following:

A. The financial and technical ability and legal capacity of the applicant;

B. A complete description of applicant’s proposed facilities;

C. The capacity of the right-of-way to accommodate applicant’s facilities;

D. The capacity of the right-of-way to accommodate additional utility or telecommunications facilities;

E. The extent of damage to or disruption of any public or private facilities, improvements, services, travel, or landscaping and any plans by applicant to mitigate or repair the same; and

F. The availability or unavailability of alternate routes to those proposed by the applicant. [Ord. 1998-09-074].

6.70.220 Determination by the city.

Within 120 days of receiving a completed application, the city department charged with administration of the franchise applied for shall make its recommendation to the city council regarding issuance of the franchise. Grant of any franchise shall be by ordinance and is within the sole discretion of the city council. The council’s decision will be based upon the information provided in the application and the recommendation of the affected city department and will take into consideration the impact on city right-of-way and related facilities, proposed mitigation of damage and disruption, applicable laws and regulations, and any other factors deemed necessary by the city to carry out the public interest. To the extent practicable, franchises granted hereunder shall contain substantially similar terms and shall not contain more or less favorable terms and conditions than exist in other such franchises, taking into consideration relevant characteristics of each applicant. [Ord. 1998-09-074].

6.70.230 Extent of franchise.

No grant of franchise hereunder shall confer any exclusive right, privilege, or license to occupy any city right-of-way, nor convey any right, title, or interest in such right-of-way. Franchisees shall comply with all applicable laws and regulations and obtain all necessary construction and other permits. [Ord. 1998-09-074].

6.70.240 Term of franchise.

A franchise shall be for a term not exceeding 25 years. A franchise may be renewed upon application therefor not more than three years nor less than 180 days prior to the expiration of an existing franchise. Such application shall contain the information required for the original franchise. Determination regarding renewal shall be made in the same manner as the original franchise. [Ord. 1998-09-074].

6.70.250 Compensation to the city.

Each franchise granted hereunder is subject to the city’s right, which is expressly reserved, to determine a fair and reasonable compensation to be paid for the use of city property, annually or on some other basis, provided nothing shall prohibit the applicant and the city from agreeing upon such compensation. [Ord. 1998-09-074].

6.70.260 Amendment of franchise.

A new franchise application and grant shall be required for any extension, addition, relocation, or other material modification to an applicant’s facilities or services; provided, that this shall not apply to a relocation or modification ordered by the city. [Ord. 1998-09-074].

6.70.270 Nondiscrimination.

A franchisee shall make its telecommunications or utility services available to any customer within its franchise area who shall request such service, without discrimination as to the terms, conditions, rates or charges for franchisee’s services; provided, however, that nothing in this chapter shall prohibit a franchisee from making any reasonable classifications among differently situated customers. [Ord. 1998-09-074].

6.70.280 Service to the city.

A franchisee shall make its telecommunications or utility services available to the city at its most favorable rate for similarly situated users; provided, however, that the city may negotiate more favorable rates, free service, or right to use or access franchisee’s facilities in lieu of other obligations of franchisee. [Ord. 1998-09-074].

6.70.300 Fees.

A. Other than for open video systems as provided in BMC 6.70.310, fees for registration, a permit, or a franchise application pursuant to this chapter shall be established from time to time by the department of public works. Fees for franchises governed by this chapter shall be determined by negotiation between the city and the prospective franchisee.

B. All fees shall ensure compensation for the city for (1) all administrative costs and expenses associated with processing an application and monitoring compliance with any permit or franchise provisions and (2) all costs of current and ongoing maintenance, repair, or restoration of right-of-way related to the impact of the installation, maintenance, and use of facilities. [Ord. 1998-09-074].

6.70.310 Fees for open video systems – Public access responsibilities.

A. Every person operating an open video system shall pay to the city, in addition to the registration fee required pursuant to BMC 6.70.030, a percentage of its gross revenue each quarter equal to the gross revenue percentage allowed to be required of a person providing cable service pursuant to Chapter 6.17 BMC.

B. “Gross revenue” is defined as any and all gross revenues a person or its affiliates derives directly or indirectly from operation of the open video system, including revenue from sales, rental, or installation of equipment, from advertising revenues, from subscribers, and from all carriage revenues received from unaffiliated video programming providers. Gross revenues shall not include any taxes on services which taxes are imposed directly on a subscriber or user by a city, county, state or other governmental unit and collected by a person subject to this chapter for such taxing entity. Gross revenue shall not include amounts which cannot be collected and are identified as bad debt; provided, that amounts previously identified as bad debt which are eventually collected shall be reported for the period in which that occurs.

C. In addition, every person operating an open video system shall be required, as a condition of receiving a permit under this chapter, to provide or otherwise contribute financially to support public, education, and government (“PEG”) use of its system. The extent of provision of such user or financial contribution shall be negotiated between such person and the city and shall include, to the extent permitted by law, channel capacity, financial contribution, and/or in-kind contributions. If terms regarding PEG cannot be successfully negotiated, the extent of such person’s PEG responsibility shall be that prescribed by applicable law. [Ord. 1998-09-074].