Chapter 4.02
GENERAL PROVISIONS
Sections:
4.02.030 Telecommunications business registration required.
4.02.040 Telecommunications right-of-way use authorization required.
4.02.050 Telecommunications franchise required.
4.02.060 Open video system franchise required.
4.02.070 Cable television franchise required.
4.02.080 Facilities lease required.
4.02.090 Right-of-way use permits required.
4.02.130 Initial inquiry – Responsibilities.
4.02.150 Fees and compensation not a tax.
4.02.010 Purpose.
The purpose and intent of this chapter is to:
A. Establish a local policy concerning telecommunications providers and service;
B. Establish guidelines, standards and time frames for the exercise of local authority with respect to the regulation of telecommunications providers and services;
C. Promote competition in telecommunications;
D. Minimize unnecessary local regulation of telecommunications providers and services;
E. Encourage the provision of advanced, innovative 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 of 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 such access and causing such costs;
I. Secure fair and reasonable compensation to the city for permitting private use of the public ways; and
J. Assure that all telecommunications carriers providing facilities or services within the city comply with the ordinances, rules and regulations of the city. (Ord. 293 (part), 2000)
4.02.020 Definitions.
For the purpose of this title (Chapters 4.02 through 4.16 BMC), 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:
“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 authorization, franchise, lease, or permit pursuant to this title.
“Cable Act” means the Cable Communications Policy Act of 1984 and the Cable Television Consumer Protection and Competition Act of 1992.
“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.
“Cable service” for the purpose of this title shall have the same meaning provided by the Cable Act.
“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.
“City” means the city of Brier, Washington.
“City property” means and includes all real property 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 Brier, Washington acting in its official capacity.
“Data communication” means: (1) the transmission of encoded information; or (2) the transmission of data from one point to another.
“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” means the initial authorization, or renewal thereof, approved by an ordinance of the city, which authorizes the franchisee to construct, install, operate, or maintain telecommunications facilities in, under, over, or across public ways of the city and to also provide telecommunications service to persons or areas in the city.
“Franchisee” means the person, firm or corporation to whom or which a franchise, as defined in this chapter, 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 is provided to multiple subscribers within a community, and which the Federal Communications Commission or its successors has certified as compliant with Part 76 of its rules, 47 C.F.R., Part 76, as amended from time to time.
“Operator” means the person, firm or corporation to whom a franchise is granted pursuant to the provisions of this title.
“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 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.
“Property of franchisee” means all property 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 the response, by an individual or organization, to a request by the city regarding the provision of cable services; or an unsolicited plan submitted by an individual or organization seeking to provide cable services in the city.
“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” means and includes all public streets and utility easements, as those terms are defined herein, now or hereafter owned by the city, but only to the extent of the city’s right, title, interest or authority to grant a license or franchise to occupy and use such streets and easements for telecommunications facilities.
“State” means the state of Washington.
“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 laws, 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 property within the city, used or to be used for the purpose of offering telecommunications service.
“Telecommunications facilities” means the plant, equipment and property, 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 provider” means and includes every person who provides telecommunications services over telecommunications facilities without any ownership or management control of the facilities.
“Telecommunications service” means the providing or offering for rent, sale or lease, or in exchange for other value received, of the transmission 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.”
“These chapters” or “this title” means Chapters 4.02 through 4.16 BMC (and any amendments thereto) inclusive.
“Underground facilities” means utility and telecommunications facilities located under the surface of the ground, excluding the underground foundations or supports for overhead facilities.
“Universal service” means a level of and definition of telecommunications services as the term is defined by the FCC through its authority granted pursuant to Section 254 of the Act.
“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 laws, orders and regulations.
“Utility easement” means any easement owned by the city and acquired, established, dedicated or devoted for public utility purposes not inconsistent with telecommunications facilities.
“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. (Ord. 293 (part), 2000)
4.02.030 Telecommunications business registration required.
Except as otherwise provided herein, all cable operators, open video system operators, telecommunications carriers, and telecommunications providers engaged in the business of transmitting, supplying or furnishing of telecommunications service of any kind originating or terminating in the city shall apply for and obtain a business license from the city pursuant to the then-current requirements of this code. (Ord. 293 (part), 2000)
4.02.040 Telecommunications right-of-way use authorization required.
Except as otherwise provided herein, any telecommunications carrier or provider who desires to construct, install, operate, maintain, 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 telecommunications right-of-way use authorization granting the use of such public ways from the city pursuant to Chapter 4.04 BMC. (Ord. 293 (part), 2000)
4.02.050 Telecommunications franchise required.
Except as otherwise provided herein, any telecommunications carrier who desires to construct, install, operate, maintain or otherwise locate telecommunications facilities in, under, over or across any public way of the city, and to also provide telecommunications service to persons or areas in the city, shall first obtain a telecommunications franchise granting the use of such public ways from the city pursuant to Chapter 4.06 BMC. (Ord. 293 (part), 2000)
4.02.060 Open video system franchise required.
Except as otherwise provided herein, any telecommunications carrier or other person who desires to construct, install, operate, maintain or locate open video system facilities in any public way in the city for the purpose of providing open video system service to persons in the city shall first obtain an open video system franchise from the city. Said franchises shall be granted pursuant to Chapter 4.08 BMC taking into account the terms and conditions of any existing franchises and the requirements of federal law. (Ord. 293 (part), 2000)
4.02.070 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. Said franchises shall be granted pursuant to Chapter 4.10 BMC taking into account the terms and provisions of any and all existing franchises and the requirements of the Cable Acts of 1984 and 1992; provided, however, unless otherwise authorized or exempted by the terms of an unexpired franchise, lease or agreement, cable service operators shall comply with the relevant provisions of this title. (Ord. 293 (part), 2000)
4.02.080 Facilities lease required.
No telecommunications carrier or other entity who desires to locate telecommunications 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 4.12 BMC. 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. 293 (part), 2000)
4.02.090 Right-of-way use permits required.
Except as otherwise provided herein, the holder of an authorization, franchise, or lease granted pursuant to this title, and the holders of open video system, cable television or any other franchises granted by the city, shall, in addition to said authorization, franchise, or lease, be required to obtain a right-of-way use permit from the city pursuant to Chapter 4.16 BMC and pay such other fees and charges as mandated by this title or any other applicable municipal law. 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 use permit is issued. (Ord. 293 (part), 2000)
4.02.100 Application to existing franchise ordinances, agreements, leases, and permits – Impact of other laws.
A. These provisions shall have no effect on any existing franchise ordinance, franchise agreement, lease, permit, 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. An amendment to an unexpired franchise ordinance, franchise agreement, lease, permit, or authorization that has been approved, unless both parties agree to defer full compliance to a specific date not later than the present expiration date.
B. Nothing in these provisions shall be deemed to create an obligation upon any person which the city is forbidden to require pursuant to federal, state, or other law. (Ord. 293 (part), 2000)
4.02.110 Universal service.
Except as otherwise provided herein, all cable operators, open video system operators, telecommunications carriers, and telecommunications providers engaged in the business of transmitting, supplying or furnishing telecommunications service of any kind originating or terminating in the city are subject to the city’s right, which is expressly reserved, to require said operator, carrier, or provider to make an equitable and nondiscriminatory contribution to the preservation and advancement of universal service to the extent permitted by state and federal law. (Ord. 293 (part), 2000)
4.02.120 General penalties.
A. Civil Penalty.
1. Any person, and the officers, directors, managing agents, or partners of any corporation, firm, partnership or other organization or business violating or failing to comply with any of the provisions of this title shall be subject to a nontraffic civil infraction, in the amount set forth in Chapter 1.28 BMC, and shall be punished in accordance with the current fine and penalty provisions for a Class A civil infraction. Failure to respond to a Class A civil infraction or a second violation for failure to abate the violation shall constitute a Class B civil infraction. Failure to respond and continuation of a violation shall constitute a Class C civil infraction. Continued failure to respond or continued violation shall constitute a misdemeanor and shall be punished in accordance with BMC 1.28.030(A).
2. In addition to any penalty which may be imposed by the city, any person violating or failing to comply with any of the provisions of this title shall be liable for all damage to public or private property arising from such violation.
3. The penalty imposed by this section shall be collected by civil action brought by the city attorney.
B. Criminal Penalty. Any person and the officers, directors, managing agents, or partners of any corporation, firm, partnership or other organization or business violating or failing to comply with any of the applicable provisions of this title shall be punished according to the provision of BMC 1.28.030(B).
C. Additional Relief. The city may seek legal or equitable relief to enjoin any acts or practices and abate any condition which constitutes or will constitute a violation of the applicable provisions of this title when civil or criminal penalties are inadequate to effect compliance. In addition to the penalties set forth in this section, violation of the terms of this title may also result in the revocation of any authorization, franchise, approval, lease, or permit issued or granted hereunder. (Ord. 435 § 2 (Exh. B) (part), 2016: Ord. 293 (part), 2000)
4.02.130 Initial inquiry – Responsibilities.
Initial inquiries regarding cable television, open video system and telecommunications franchises, telecommunications right-of-way authorizations or facilities leases shall be directed to the public works superintendent or designee for determination of which type or types of agreements and permits are required. The public works superintendent or designee shall have lead responsibility for negotiating authorizations, franchises and leases and shall coordinate such matters with such other departments whose input is needed. (Ord. 293 (part), 2000)
4.02.140 Other remedies.
Nothing in this title shall be construed as limiting any judicial remedies that the city may have, at law or in equity, for enforcement of this title. (Ord. 293 (part), 2000)
4.02.150 Fees and compensation not a tax.
Except where expressly provided by law, the fees, charges and fines provided for in this title and any compensation charged and paid for the public ways provided for herein are not a tax, nor assessed as taxation, and are to be considered separate from any and all federal, state and local taxes as may be levied, imposed or due from a telecommunications carrier or provider, its customers or subscribers, or on account of the lease, sale, delivery or transmission of telecommunications services. (Ord. 293 (part), 2000)