Chapter 20.02 GENERAL PROVISIONS

Chapter 20.02
GENERAL PROVISIONS

Sections:

20.02.010 Findings and purpose.

20.02.020 Definitions.

20.02.030 Occupation license required.

20.02.040 Right-of-way license required for service outside the city.

20.02.050 Franchise required for service within the city.

20.02.060 Facilities lease required.

20.02.070 Right-of-way construction permits required.

20.02.080 Transitional provisions.

20.02.010 Findings and purpose.

A. The council of the city of West Richland finds that the city’s public streets, alleys, utility easements dedicated for compatible uses, other city property, and utility facilities such as its poles and conduits within the city constitute valuable public property:

1. Having been acquired and maintained by the city over many years at taxpayer expense; and

2. Constituting public investments for which the taxpayers are entitled to a fair monetary return on the city’s past and future investment in the city’s infrastructure; and

3. Are critical to the travel of persons and the transport of goods in the business and social life of the community by all citizens; are used by the city to provide services to protect public safety; are used by the city to provide critical utility services to its citizens, including electric, water and wastewater utility services; and are used by the city to provide telecommunications and other services to itself and other government agencies; and

4. Can be partially occupied by private companies and other entities for facilities used in the delivery, conveyance and transmission of utility and public services rendered for profit, to the enhancement of the health, welfare and general economic well-being of the city and its citizens; and

5. Are a unique resource so that proper management by the city is necessary to maximize the efficiency and minimize the costs to the taxpayers of the foregoing uses and to minimize the inconvenience to and negative effects, including degradation, upon the public from such facilities’ construction, emplacement, relocation and maintenance in the rights-of-way.

B. The city also finds that it is in the interest of the public to permit use of the rights-of-way and to establish standards for use of the rights-of-way for operators of telecommunications systems, in a manner which:

1. Encourages competition by establishing nondiscriminatory terms and conditions under which an operator of a telecommunications system may use valuable public property to serve the public;

2. Protects the public interests in the use of the limited physical capacity of the public rights-of-way;

3. Protects the public and the city from any harm resulting from such private use of rights-of-way and preserves and improves the aesthetics of the community;

4. Protects the city’s interests in using the rights-of-way for the provision of services to the public, other governmental agencies, and itself;

5. Protects and carries out the regulatory authority of the city and recovers administrative costs in a manner consistent with federal and state law; and

6. Compensates the city for the fair and reasonable value of such property used, and for ongoing costs associated with the use of that property insofar as possible.

C. Therefore, the purpose and intent of this title is to:

1. Permit and manage reasonable access to the limited physical capacity of the available public rights-of-way of the city for telecommunications purposes on a competitively and technologically neutral basis;

2. Assure that the city can continue to fairly and responsibly protect the public health, safety, and welfare;

3. Enable the city to discharge its public trust consistent with rapidly evolving federal and state regulatory policies, industry competition, and technological development;

4. Establish a policy that encourages competition and the provision of advanced telecommunications services on the widest possible basis to the businesses, institutions, and residents of the city;

5. Establish clear and nondiscriminatory local policy, local guidelines, standards, and time frames concerning telecommunications systems and private telecommunications systems that use the public rights-of-way; and

6. Assure that all telecommunications systems and private telecommunications systems within the city comply with the ordinances, rules, and regulations of the city. [Ord. 8-00 § 1, 2000].

20.02.020 Definitions.

For the purpose of this title, and the interpretation and enforcement thereof, the following words and phrases shall have the meanings given herein, unless the context of the sentence in which they are used shall indicate otherwise. When not inconsistent with the context, words used in the present tense include the future tense; words in the plural number include the singular number; and words in the singular number include the plural number; and the masculine gender includes the feminine gender. The words “shall” and “will” are mandatory, and “may” is permissive. Unless otherwise expressly stated, words not defined in this title shall be construed consistent with Title 47 of the United States Code, and, if not defined therein, their common and ordinary meaning. References to governmental entities (whether persons or entities) refer to those entities or their successors in authority. If specific provisions of law referred to herein are renumbered, then the reference shall be read to refer to the renumbered provisions. References to laws, ordinances or regulations shall be interpreted broadly to cover government actions, however nominated, and include laws, ordinances and regulations now in force or hereinafter enacted or amended.

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

“Applicant” means any person or entity that applies for any right-of-way license, franchise, lease or other permit pursuant to this title.

“Application fee” means the charge specified in Chapter 20.06 WRMC, and designed to recover the city’s actual administrative costs in processing applications for any right-of-way license, franchise, lease or other permit pursuant to this title, including applications for the transfer thereof.

“Cable Act” means the Cable Communications Policy Act of 1984, 47 USC 521 et seq., as amended by the Cable Television Consumer Protection and Competition Act of 1992, as further amended by the Telecommunications Act of 1996, as further amended from time to time.

Cable Facilities. See “Cable system.”

“Cable service” for the purpose of this title shall have the same meaning provided by the Cable Act; and shall mean:

1. The one-way transmission to subscribers of:

a. Video programming; or

b. Other programming service; and

2. Subscriber interaction, if any, which is required for the selection or use of such video programming or other programming service.

“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 which includes video programming and which is provided to multiple subscribers within a community, but such term does not include:

1. A facility that serves only to retransmit the television signals of one or more television broadcast stations;

2. A facility that serves subscribers without using any public right-of-way;

3. A facility of a common carrier which is subject, in whole or in part, to the provisions of Title II (Common Carriers) of the Communications Act of 1934, as amended, except that such facility shall be considered a cable system to the extent such facility is used in the transmission of video programming directly to subscribers, unless the extent of such use is solely to provide interactive on demand services;

4. Any facilities of any electric utility used solely for operating its electric utility systems; or

5. An open video system that is certified by the FCC.

A reference to a cable system includes pedestals, equipment enclosures (such as equipment cabinets), amplifiers, power guards, nodes, cables, fiber optics and other equipment necessary to operate the cable system.

“City” means the city of West Richland, a municipal corporation of the state of Washington, in its present incorporated form or in any later reorganized, consolidated, enlarged or reincorporated form.

“City property” means and includes all real property, utility poles, conduits, bridges and similar facilities owned by the city, other than public streets 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 right-of-way licensing and franchising as provided in this title.

“Council” means the city council of the city of West Richland, Washington.

“Director” means the public works director of the city of West Richland, Washington.

“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.

“Facilities lease” or “lease” means the legal authorization to occupy and use city property for the specified time and under the specified terms as agreed to between the city and the grantee of the lease.

“FCC” or “Federal Communications Commission” means the federal administrative agency or lawful successor, authorized to regulate and oversee telecommunications, cable and open video carriers, operators 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, granted by the city to a carrier or operator of a telecommunications system under this title giving the carrier or operator the nonexclusive right to occupy the space in, under, over or across public ways of the city to provide a specified service within a franchise area. Any franchise shall be issued in the form of an ordinance of the city, and must be accepted by the franchisee to become effective in the time and manner specified in the franchise ordinance. Such franchise shall not include or be a substitute for:

1. Any other permit or authorization required for the privilege of transacting and carrying on a business within the city required by the ordinances and laws of the city;

2. Any permit, agreement or authorization required in connection with operations on or in public streets or property, including by way of example and not limitation, construction and street cut permits;

3. Any permits or agreements for occupying any other property of the city or private entities to which access is not specifically granted by the franchise including, without limitation, permits and agreements for placing devices on or in poles, conduits, other structures or railroad easements, whether owned by the city or a private entity; or

4. The right to place devices in the right-of-way, such as pay telephones, for end user use in terminating or originating transmissions.

By way of example, and without limiting the foregoing, this title shall not be read to diminish or in any way affect the authority of the city to control and charge for the use of its real estate, fixtures or personal property. Therefore, any person who desires to use such property must obtain additional approvals, franchises or agreements for that purpose, as may be required by the city.

“Franchise area” means the area of the city that a franchisee is authorized to serve by the terms of its franchise or by operation of law.

“Franchise territory” means the entire area of the city in its present incorporated form or in any later reorganized, consolidated, enlarged or reincorporated form, within which the city is authorized to grant franchises, right-of-way licenses or facilities leases.

“Franchisee” means the person, 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 this title.

“Grantee” as used generally herein shall mean the holder of a franchise, license or facilities lease.

“Gross revenues,” for purposes of this title, include all revenue, including funds used to pay franchise fees, from the provision of telecommunications services in the city via the telecommunications system; provided, however, gross revenues shall not include taxes imposed directly upon any subscriber or user by the federal, state, county, or other governmental unit and required to be collected by the grantee; provided further, that a grantee may deduct from its gross revenues those revenues received from a lessee or a like provider that holds a franchise or license under this title; provided, that lessee or like provider submits a certificate to the telecommunications grantee stating that it has paid the fees it owes the city for the applicable reporting period. Copies of the certificate must be provided to the city.

“License” or “right-of-way license” refers to the legal authorization, in lieu of a franchise, to use a particular, discrete, and limited portion of the public rights-of-way to construct, maintain or repair a telecommunications facility or a private telecommunications system. The term “license” or “right-of-way license” shall not mean or include:

1. Any other permit or authorization required for the privilege of transacting and carrying on a business within the city required by the ordinances and laws of the city;

2. Any permit, agreement or authorization required in connection with operations on public streets or property, including by way of example and not limitation, right-of-way construction permits as defined in WRMC Title 12, Streets, Sidewalks and Public Places;

3. Any permits or agreements for occupying any other property of the city or private entities to which access is not specifically granted by the right-of-way license including, without limitation, permits and agreements for placing devices on or in poles, conduits, other structures, or railroad easements, whether owned by the city or a private entity; or

4. The right to place devices in the right-of-way, such as pay telephones, for end user use in originating and terminating transmissions, otherwise authorized, as by a facilities lease.

“Licensee” means the person, firm or corporation to whom or which a license, 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 this title.

“Open video system” or “OVS” refers to a facility consisting of a set of transmission paths and associated signal generation, reception and control equipment that is designed to provide cable service, which includes video programming, which is provided to multiple subscribers within a community, and which the Federal Communications Commission or its successor has certified as compliant with 47 CFR Part 76, as amended from time to time.

“Open video system service” means video programming by means of an open video system.

“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 or private entity other than the city.

“Overhead facilities” refers to electric utility 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 not the city.

“Private telecommunications system” means a telecommunications system controlled by a person or entity for the sole and exclusive use of such person, entity or affiliate thereof, including the provision of private shared telecommunications services within a user group located in discrete private premises in building complexes, campuses or high rise buildings, by such party or entity, but not encompassing in any respect a system offered for hire, sale or resale to the general public.

“Private telecommunications system owner” means a person that owns or leases a private telecommunications system.

“Proposal” means the response, by an individual or organization, to a request by the city regarding the provision of telecommunications services; or an unsolicited plan submitted by an individual or organization seeking to provide telecommunications services in the city.

“Public right-of-way” or “public way” means and includes the public streets and easements which, under the West Richland Municipal Code, city ordinances, and applicable laws, the city has authority to grant franchises, licenses or leases for use thereof, or has regulatory authority thereover, and as may be more specifically defined in the franchise, license or lease granting any right to or use thereof. Public ways for the purpose of this title do not include buildings, parks, poles, conduits or similar facilities or property owned by or leased to the city, including, by way of example and not limitation, structures in the public way such as utility poles, light poles and bridges.

“State” means the state of Washington.

“Surplus space” means that portion of the usable space on a utility pole or in a duct or conduit which has the necessary clearance from other users, as required by federal or state orders and regulations, to allow its use by a telecommunications carrier for a pole attachment or other telecommunications facility.

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

Telecommunications Facilities. See “Telecommunications system.”

“Telecommunications operator” or “operator” means a person who owns, controls and provides telecommunications service over a telecommunications system, which may include a carrier.

“Telecommunications provider” or “provider” means every person who provides telecommunications services over telecommunications facilities without any ownership or working control of the facilities.

“Telecommunications service” or “service” means the transmission for rent, sale or lease, or in exchange for other value received, of information in electronic or optical form, including, but not limited to, voice, video or data, whether or not the transmission medium is owned by the provider itself. Telecommunications service includes telephone service but does not include cable service, open video service, or over the air broadcasts to the public at large from facilities licensed by the Federal Communications Commission or successor thereto.

“Telecommunications system” means a tangible facility that is used to provide one or more telecommunications services, any portion of which occupies public rights-of-way. The term “telecommunications system” by way of example, and not limitation, includes wires, equipment cabinets, guys, conduits, radio transmitting towers, poles, other supporting structures and associated and appurtenant facilities used to transmit telecommunications signals. The term “telecommunications system” includes all devices mounted on electric utility poles in the public rights-of-way through which telecommunications services are originated or terminated. A cable system is not a telecommunications system to the extent that it provides only cable service; an open video system is not a telecommunications system to the extent that it provides only video services.

“Transfer” means any transaction in which:

1. There is any change, acquisition or transfer of working control of the franchisee or right-of-way license holder; or

2. The rights and/or obligations held by the franchisee or right-of-way license holder under the franchise or right-of-way license are transferred, sold, assigned or leased, in whole or in part, to another party. It will be presumed that any transfer or cumulative transfer of voting interest of 20 percent or more is transfer of working control within the meaning of this definition.

“Utility easement” means any easement owned by the city and acquired, established, dedicated or devoted for public utility purposes not inconsistent with telecommunications facilities, excluding easements not specifically allowing license, franchise or lease holders.

“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 and telecommunications services.

“Working control” as used herein means the ability to affect management decisions. It will be presumed that voting interest of 20 percent or more is considered working control within the meaning of this title. [Ord. 8-00 § 1, 2000].

20.02.030 Occupation license required.

Except as otherwise provided herein, any person engaged in the business of telecommunications service of any kind originating or terminating in the city shall obtain an occupation license from the city pursuant to WRMC Title 5, Business Taxes, Licenses and Regulations, as applicable. [Ord. 8-00 § 1, 2000].

20.02.040 Right-of-way license required for service outside the city.

Except as otherwise provided herein, any person who desires to construct, install, control or otherwise locate telecommunications facilities in, under, over or across any public way of the city for the sole purpose of providing telecommunications service to persons and areas outside the city shall first obtain a right-of-way license granting the use of such public ways from the city pursuant to WRMC 20.04.010. Persons whose telecommunications facilities serve both within and outside the city shall not be required to obtain a right-of-way license in addition to a franchise. [Ord. 8-00 § 1, 2000].

20.02.050 Franchise required for service within the city.

20.02.060 Facilities lease required.

Any person who occupies or desires to locate telecommunications equipment on or in city property, including lands or other city-owned physical facilities, shall not locate such facilities or equipment on city property unless granted a facilities lease from the city pursuant to WRMC 20.04.030. The council reserves unto itself the sole discretion to lease city property for telecommunications 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. 8-00 § 1, 2000].

20.02.070 Right-of-way construction permits required.

Except as otherwise provided herein, the holder of a right-of-way license, franchise or lease granted pursuant to this title shall, in addition to said right-of-way license, franchise or lease, be required to obtain a right-of-way construction permit from the city pursuant to WRMC Title 12, Streets, Sidewalks and Public Places. 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 right-of-way construction permit is issued except as provided in WRMC Title 12. [Ord. 8-00 § 1, 2000].

20.02.080 Transitional provisions.

A. Persons Operating Without a Franchise or Right-of-Way License. Any person operating any facility which requires a franchise or right-of-way license under this title, other than a person holding a lease under subsection C of this section, shall have three months from the effective date of the ordinance codified in this title to file the necessary applications for a franchise or a right-of-way license under this title. Any person timely filing such an application shall not be subject to city remedies under Chapter 20.10 WRMC for failure to have such a franchise or right-of-way license as long as said application remains pending; provided, however, nothing herein shall relieve any person of any liability for failure to obtain any franchise or right-of-way license required under other provisions of the West Richland Municipal Code, and nothing herein shall prevent the city from requiring removal of any facilities installed in violation of the West Richland Municipal Code.

B. Persons Holding Franchises or Right-of-Way Licenses. Any person holding an outstanding franchise or right-of-way license from the city for a telecommunications system to provide specified services or for a private telecommunications system, may continue to operate under the existing franchise or right-of-way license to the conclusion of its present term (but not any renewal or extension thereof) with respect to those activities expressly authorized by the franchise or right-of-way license; provided, however, that such franchise or right-of-way license holder may elect at any time to apply for a superseding franchise or right-of-way license under this title and must seek additional franchises or right-of-way licenses to provide other services; and provided further, that such person shall be subject to the other provisions of this title to the extent permitted by law; provided further, that franchises or right-of-way licenses that are revocable at will may be revoked by the city, and the franchise or right-of-way use holder may be required to obtain a new franchise or right-of-way license under this title.

C. Persons Holding Leases for Property in the Right-of-Way. Any lessee, under a lease from the city for facilities located on city property that is valid and in force on the effective date of the ordinance codified in this title, may continue to occupy such property to the conclusion of the term of the lease (but not any renewal or extension thereof), in accordance with the terms of such lease; provided, however, that such lessee may elect at any time to apply for a superseding lease, franchise or right-of-way license under this title. [Ord. 8-00 § 1, 2000].