Chapter 4.04
TELECOMMUNICATIONS RIGHT-OF-WAY USE AUTHORIZATIONS

Sections:

4.04.010    Telecommunications right-of-way use authorization.

4.04.020    Telecommunications right-of-way use authorization application.

4.04.030    Issuance/denial of telecommunications right-of-way use authorization.

4.04.040    Appeal of administrative decision.

4.04.050    Agreement.

4.04.060    Nonexclusive grant.

4.04.070    Rights granted.

4.04.080    Term of telecommunications right-of-way use authorization.

4.04.090    Specified route.

4.04.100    Service to city users.

4.04.110    Compensation to the city.

4.04.120    Amendment of authorization.

4.04.130    Renewal of telecommunications right-of-way use authorization.

4.04.140    Standards for renewal of authorization.

4.04.150    Obligation to cure as a condition of renewal.

4.04.160    Universal service.

4.04.170    Annual fee for recovery of city costs.

4.04.180    Other city costs.

4.04.010 Telecommunications right-of-way use authorization.

A telecommunications right-of-way use authorization shall be required of any telecommunications carrier or provider who desires to occupy specific public ways of the city for the sole purpose of providing telecommunications services to persons or areas outside the city. The procedures for approval of a right-of-way use authorization request and the requirements for a complete application shall be made available in writing to any interested person. (Ord. 293 (part), 2000)

4.04.020 Telecommunications right-of-way use authorization application.

Any person that desires a telecommunications right-of-way use authorization pursuant to this chapter shall file an application with the city’s public works department which shall include the following information:

A. The name of the applicant, including all affiliates of the applicant;

B. A description of the telecommunications services that are or will be offered or provided by the applicant over its telecommunications facilities;

C. A description of the transmission medium that will be used by the applicant to offer or provide such telecommunications services;

D. Preliminary engineering plans, specifications and a network map of the facilities to be located within the city, all in sufficient detail to identify:

1. The location and route requested for applicant’s proposed telecommunications facilities;

2. The location of all overhead and underground public utility, telecommunication, cable, water, sewer drainage and other facilities in the public way along the proposed route;

3. The location(s), if any, for interconnection with the telecommunications facilities of other telecommunications carriers; and

4. The specific trees, structures, improvements, facilities and obstructions, if any, that applicant proposes to temporarily or permanently remove or relocate;

E. If applicant is proposing to install overhead facilities, evidence that surplus space is available for locating its telecommunications facilities on existing utility poles along the proposed route;

F. If applicant is proposing an underground installation in existing ducts or conduits within the public ways, information in sufficient detail to identify:

1. The excess capacity currently available in such ducts or conduits before installation of applicant’s telecommunications facilities;

2. The excess capacity, if any, that will exist in such ducts or conduits after installation of applicant’s telecommunications facilities; and

3. Evidence of ownership or a right to use such ducts or conduits;

G. If applicant is proposing an underground installation within new ducts or conduits to be constructed within the public ways:

1. The location proposed for the new ducts or conduits; and

2. The excess capacity that will exist in such ducts or conduits after installation of applicant’s telecommunications facilities;

H. A preliminary construction schedule and completion date;

I. Information to establish that the applicant has obtained all other governmental approvals and permits to construct and operate the facilities, and to offer or provide the telecommunications services, including, but not limited to, evidence that the applicant has registered with the Washington Utilities and Transportation Commission;

J. All deposits or charges required pursuant to this title; and

K. An application fee which shall be set by the city council. (Ord. 293 (part), 2000)

4.04.030 Issuance/denial of telecommunications right-of-way use authorization.

Within one hundred twenty days after receiving a complete application under BMC 4.04.020, the city’s public works superintendent or designee shall issue a written determination granting or denying the authorization in whole or in part. If the authorization is denied, the written determination shall include substantial evidence of the reason(s) for denial. The decision to grant or deny an application for a telecommunications right-of-way use authorization shall be based upon the following standards:

A. Whether the applicant has received all requisite licenses, certificates, and authorizations from the Federal Communications Commission, the Washington Utilities and Transportation Commission, and any other federal or state agency with jurisdiction over the activities proposed by the applicant;

B. The capacity of the public ways to accommodate the applicant’s proposed facilities;

C. The capacity of the public ways to accommodate additional utility, cable, and telecommunications facilities if the authorization is granted;

D. The damage or disruption, if any, to public or private facilities, improvements, service, travel or landscaping if the authorization is granted;

E. The public interest in minimizing the cost and disruption of construction within the public ways;

F. Applicant’s proposed compliance with other applicable city laws, rules, regulations and guidelines;

G. The effect, if any, on public health, safety and welfare if the authorization is granted;

H. The availability of alternate routes and/or locations for the proposed facilities;

I. Applicable federal and state telecommunications laws, regulations and policies; and

J. Such other factors as may demonstrate that the grant to use the public ways will serve the community interest. (Ord. 293 (part), 2000)

4.04.040 Appeal of administrative decision.

Any person aggrieved by the granting or denying of a telecommunications right-of-way use authorization or the renewal thereof pursuant to this chapter shall have the right to appeal to the city council as follows:

A. All appeals filed pursuant to this section must be filed in writing with the city clerk within ten working days of the date of the decision appealed from;

B. All appeals filed pursuant to this section shall specify the error of law or fact, or new evidence which could not have been reasonably available at the time of the city’s public works superintendent’s decision, which shall constitute the basis of the appeal;

C. Upon receipt of a timely written notice of appeal, the city clerk shall forward the appeal to the city council, which may either hear the appeal or appoint a hearing examiner. In considering the appeal, the administrative officer’s decision shall be accorded substantial weight. If a hearing examiner is appointed, the hearing examiner’s decision shall be reported to the city council, which shall not reverse except for unsupported finding of fact and/or clear error of law;

D. Appeals of decisions following final review by the city shall be by petition to the Snohomish County superior court, to be filed as required by city ordinance and state law. (Ord. 293 (part), 2000)

4.04.050 Agreement.

No authorization shall be deemed to have been granted hereunder until the applicant and the city have executed a written agreement setting forth the particular terms and provisions under which the grantee has been granted the right to occupy and use public ways of the city. (Ord. 293 (part), 2000)

4.04.060 Nonexclusive grant.

No authorization granted under this chapter shall confer any exclusive right, privilege, license or franchise to occupy or use the public ways of the city for delivery of telecommunications services or any other purposes. (Ord. 293 (part), 2000)

4.04.070 Rights granted.

No authorization granted under this chapter shall convey any right, title or interest in the public ways, but shall be deemed an authorization only to use and occupy the public ways for the limited purposes and term stated in the authorization. Further, no authorization shall be construed as any warranty of title. (Ord. 293 (part), 2000)

4.04.080 Term of telecommunications right-of-way use authorization.

Unless otherwise specified in an authorization, no authorization granted hereunder shall be in effect for a term exceeding five years. (Ord. 293 (part), 2000)

4.04.090 Specified route.

A telecommunications right-of-way use authorization granted under this chapter shall be limited to a grant of specific public ways and defined portions thereof. (Ord. 293 (part), 2000)

4.04.100 Service to city users.

A grantee shall be permitted to offer or provide telecommunications services to persons or areas within the city upon approval of an application for a telecommunications franchise pursuant to Chapter 4.06 BMC. (Ord. 293 (part), 2000)

4.04.110 Compensation to the city.

Each authorization granted pursuant to this chapter is subject to the city’s right under the 1996 Federal Telecommunications Act, which is expressly reserved, to annually fix fair and reasonable compensation to be paid for the right to occupy and use the public ways of the city granted under such authorization; provided, that nothing in this chapter shall prohibit the city and a grantee from agreeing to the compensation to be paid; provided further, that the compensation required from any telecommunications provider or carrier engaged in the “telephone business,” as defined in RCW 82.04.065 shall be consistent with RCW 35.21.860. (Ord. 293 (part), 2000)

4.04.120 Amendment of authorization.

A new application shall be required of any telecommunications carrier or provider who desires to extend or locate its telecommunications facilities in public ways of the city which are not included in an authorization previously granted under this title. If ordered by the city to locate or relocate its telecommunications facilities in public ways not included in a previously granted authorization, the city shall grant an amendment to the authorization without further application. (Ord. 293 (part), 2000)

4.04.130 Renewal of telecommunications right-of-way use authorization.

A grantee that desires to renew its authorization under this chapter for an additional term shall, not more than one hundred eighty days nor less than ninety days before expiration of the current authorization, file an application with the city for renewal which shall include the following:

A. The information required pursuant to BMC 4.04.020;

B. Any information required pursuant to the authorization agreement between the city and the grantee;

C. All deposits or charges required pursuant to this chapter; and

D. An application fee which shall be set by the city council. (Ord. 293 (part), 2000)

4.04.140 Standards for renewal of authorization.

Within ninety days after receiving a complete application for renewal, the city’s public works superintendent or designee shall issue a written determination granting or denying the renewal application in whole or in part. If the renewal application is denied, the written determination shall include substantial evidence of the reason(s) for denial. The decision to grant or deny an application for the renewal of a telecommunications right-of-way use authorization shall, in addition to the standards set forth in BMC 4.04.030, be based upon the following standards:

A. The continuing capacity of the public ways to accommodate the applicant’s existing facilities; and

B. The applicant’s compliance with the requirements of this title and the authorization. (Ord. 293 (part), 2000)

4.04.150 Obligation to cure as a condition of renewal.

No authorization shall be renewed until any ongoing violations or defaults in the grantee’s performance under the authorization, or of the requirements of this title have been cured, or a plan detailing the corrective action to be taken by the grantee has been approved by the city. (Ord. 293 (part), 2000)

4.04.160 Universal service.

Each telecommunications right-of-way use authorization granted under this chapter is subject to the city’s right, which is expressly reserved, to require the telecommunications 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)

4.04.170 Annual fee for recovery of city costs.

Each authorization granted under this chapter is subject to the city’s right, which is expressly reserved, to annually fix a fair and reasonable compensation to be paid as reimbursement for the city’s costs in connection with reviewing, inspecting and supervising the use and occupancy of the public ways on behalf of the public and existing or future users. (Ord. 293 (part), 2000)

4.04.180 Other city costs.

All grantees shall, within thirty days after written demand, reimburse the city for all direct and indirect costs and expenses incurred by the city in connection with any modification, amendment, renewal or transfer of the authorization or any authorization agreement. In addition, all grantees shall, within thirty days after written demand, reimburse the city for any and all costs the city reasonably incurs in response to any emergency involving the grantee’s telecommunications facilities. All grantees shall, within thirty days after written demand, reimburse the city for the grantee’s proportionate share of all actual, identified expenses incurred by the city in planning, constructing, installing, repairing or altering any city facility as a result of the construction or the presence in the right-of-way of the grantee’s telecommunications facilities. (Ord. 293 (part), 2000)