Chapter 12.28
TELECOMMUNICATIONS SERVICES
Sections:
12.28.010 Telecommunications franchise.
12.28.020 Franchise application.
12.28.030 Determination by the city.
12.28.060 Term of franchise grant.
12.28.090 Compensation to the city.
12.28.110 Amendment of franchise grant.
12.28.120 Renewal application.
12.28.130 Renewal determination.
12.28.140 Obligation to cure as a condition of renewal.
12.28.160 Annual fee for recovery of city costs.
12.28.180 Right-of-way permit.
12.28.010 Telecommunications franchise.
A telecommunications franchise shall be required of any telecommunications provider or carrier or other person who currently occupies or desires in the future to occupy public ways of the city and to provide telecommunications services to any person or area in the city; provided, however, that a telecommunications right-of-way use authorization may, with the approval of the public works director, be substituted for a telecommunications franchise in the following circumstances:
(a) Privately owned telecommunications networks or systems which are operated solely for purposes other than offering telecommunications services to other persons or the general public.
(b) De minimis uses of public ways made in conjunction with the placement of a wireless telecommunications facility.
The procedures for approval of a franchise request and the requirements for a complete application shall be made available in writing to any interested person. (Ord. 976 § 1, 2017).
12.28.020 Franchise application.
Any person who desires a telecommunications franchise pursuant to this chapter shall file an application with the city’s public works department which shall include the following:
(a) The name of the applicant and the type of legal entity of the applicant (“person”), together with necessary contact information.
(b) Whether the applicant intends to provide cable service, video dial tone service, other video programming service or telecommunication services.
(c) An accurate map showing the location of any existing telecommunications facilities in the city that applicant intends to use or lease, if any.
(d) A description of the services or facilities that the applicant will offer or make available to the city and other public, educational and governmental institutions.
(e) A description of applicant’s access and line extension policies.
(f) All fees, deposits or charges required pursuant to this title.
(g) The area or areas of the city the applicant desires to serve and a schedule for building out (offering service to) the entire franchise area.
(h) Such other and further information as may be requested by the city.
(i) An application fee set by the city. (Ord. 976 § 2, 2017).
12.28.030 Determination by the city.
Within one hundred twenty days after receiving a complete application, the city shall issue a written determination granting or denying the application in whole or in part. If the application is denied, the written determination shall include substantial evidence of the reason(s) for denial. Prior to granting or denying a franchise under this chapter, the city shall conduct a public hearing and make a decision based upon the standards set forth below:
(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 activities.
(c) The capacity of the public ways to accommodate additional utility and telecommunications facilities if the franchise is granted.
(d) The damage or disruption, if any, to public or private facilities, improvements, service, travel or landscaping if the franchise 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 franchise requested 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.
(j) Such other factors as may demonstrate that the grant to use the public ways will serve the community interest. (Ord. 976 § 3, 2017).
12.28.040 Agreement.
No telecommunications franchise 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 franchisee has been granted the right to occupy and use public ways of the city. If the city determines it is in the public interest, the city and a franchisee may enter into an agreement that differs from one or more specific provisions of this chapter. The city shall document its reasons for agreeing to any such different provisions. Franchises granted pursuant to this chapter shall contain substantially similar terms and conditions which, taken as a whole and considering relevant characteristics of the applicants, do not provide more or less favorable terms and conditions than those required by other franchisees. (Ord. 976 § 4, 2017).
12.28.050 Nonexclusive grant.
No franchise 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. 976 § 5, 2017).
12.28.060 Term of franchise grant.
Unless otherwise specified in a franchise agreement, a telecommunications franchise granted hereunder shall be valid for a term of five years. (Ord. 976 § 6, 2017).
12.28.070 Rights granted.
No franchise granted under this chapter shall convey any right, title or interest in the public ways, but shall be deemed a franchise only to use and occupy the public ways for the limited purposes and terms stated in the grant. Further, no franchise shall be construed as any warranty of title. (Ord. 976 § 7, 2017).
12.28.080 Franchise history.
Unless otherwise provided in the franchise agreement, a telecommunications franchise granted under this chapter shall be limited to the specific geographic area of the city to be served by the franchisee, and the specific public ways necessary to serve such areas. (Ord. 976 § 8, 2017).
12.28.090 Compensation to the city.
Each franchise granted under this chapter is subject to the city’s right under the 1996 Telecommunications Act, which is expressly reserved to annually fix a fair and reasonable compensation to be paid for the franchise rights granted to the franchisee; provided, that nothing in this chapter shall prohibit the city and a franchisee 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 shall be consistent with RCW 35.21.860. (Ord. 976 § 9, 2017).
12.28.100 Nondiscrimination.
A franchisee which purports to serve the general public shall make its telecommunications 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 the franchisee’s services; provided however, that nothing in this chapter shall prohibit a franchisee from making any reasonable classifications among differently situated customers. (Ord. 976 § 10, 2017).
12.28.110 Amendment of franchise grant.
Except as otherwise provided within a franchise agreement, a new franchise application and grant shall be required of any telecommunications carrier or provider that desires to extend its franchise territory or to locate its telecommunications facilities in public ways of the city which are not included in a franchise previously granted under this chapter. If ordered by the city to locate or relocate its telecommunications facilities in public ways not included in a previously granted franchise, the city shall grant a franchise amendment without further application. (Ord. 976 § 11, 2017).
12.28.120 Renewal application.
A franchisee that desires to renew its franchise under this chapter for an additional term shall, not more than one hundred eighty days nor less than one hundred twenty days before expiration of the current franchise, file an application with the city for renewal of the franchise which shall include the following:
(a) The information required pursuant to Section 12.28.020.
(b) Any information required pursuant to the franchise agreement between the city and the franchisee.
(c) All deposits or charges required pursuant to this chapter.
(d) An application fee set by the city. (Ord. 976 § 12, 2017).
12.28.130 Renewal determination.
Within one hundred twenty days after receiving a complete application for renewal under Section 12.28.120, the city shall issue a written determination granting or denying the renewal application in whole or in part. If the renewal request is denied, the written determination shall include substantial evidence of the reason(s) for denial. Prior to granting or denying renewal of a franchise under this chapter, the city council shall conduct a public hearing and make a decision based upon the standards set forth below:
(a) The continuing capacity of the public ways to accommodate the applicant’s existing facilities.
(b) The applicant’s compliance with the requirements of this chapter and the franchise agreement.
(c) Applicable federal, state and local telecommunications laws, rules, and policies.
(d) Such other factors as may demonstrate that the continued grant to use the public ways will serve the community interest. (Ord. 976 § 13, 2017).
12.28.140 Obligation to cure as a condition of renewal.
No franchise shall be renewed until any ongoing violations or defaults in the franchisee’s performance of the franchise agreement, or of the requirements of this chapter, have been cured, or a plan detailing the corrective action to be taken by the franchisee has been approved by the city. (Ord. 976 § 14, 2017).
12.28.150 Universal service.
Each franchise granted under this chapter is subject to the city’s right under the 1996 Telecommunications Act, which is expressly reserved, to require the franchisee 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. 976 § 15, 2017).
12.28.160 Annual fee for recovery of city costs.
Subject to the 1996 Telecommunications Act, each franchise 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. 976 § 16, 2017).
12.28.170 Other city costs.
All franchisees 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 franchise or any franchise agreement. In addition, all franchisees 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 franchisee’s telecommunications facilities. Finally, all franchisees shall, within thirty days after written demand, reimburse this city for the franchisee’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 presence in the right-of-way of the franchisee’s telecommunications facilities. (Ord. 976 § 17, 2017).
12.28.180 Right-of-way permit.
Franchisee shall comply with Chapter 12.10 pertaining to right-of-way permits. (Ord. 976 § 18, 2017).