Chapter 4.90 UTILITY AND TELECOMMUNICATIONS PROVIDERS

(a) To set forth rules and regulations regarding reasonable access to and use of city rights-of-way and siting of facilities thereon for the following uses:

(1) Railroads and other routes and facilities for public conveyances, and

(2) Utility distribution systems, poles, conduits, tunnels, towers and structures, pipes, wires, operation mechanisms for the transmission and distribution of utilities and telecommunications and appurtenances thereof:

(A) For transmission and distribution of electrical energy, signals and other methods of communication,

(B) For gas, steam, liquid fuels and other tangible utility products and services, and

(b) To establish nondiscriminatory policy for the city concerning telecommunications providers and services;

(c) To reasonably and fairly compensate the city for use of and disruption to rights-of--way. (Ord. 1272 § 1 (part), 1999)

4.90.020 Definitions.

As used in this chapter:

“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, antennae, 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 or other similar 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.

“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. It does not mean or include the city of Sumas.

“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 useable 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 services.

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

“Telecommunications” or “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/or 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.

“Useable 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 (1) railroad or other facility for public conveyances, and (2) a person engaging in the business of transmission, generation or distribution of electrical energy or gas, steam, or liquid fuels, or other tangible utility products, or water, or providing sewer, or owning or operating other private or publicly owned and operated facilities 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. 1272 § 1 (part), 1999)

4.90.030 Registration and fees.

All telecommunications carriers, providers or utilities engaged in the business of transmitting, supplying, or famishing 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 utility or telecommunications facilities within the city;

(b) A description of the utility or 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 or Chapter 11.18, (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. 1272 § 1 (part), 1999)

4.90.035 Use of city rights-of-way-fees.

Pursuant to Chapters 4.90, 11.17, and/or 11.18, the registrant, applicant or other person must pay to the city of Sumas the applicable fees as hereinafter set forth in the following fee schedule:

(1)	Registration fee pursuant to Section 4.90.030	$ 0.00 each
(2)	Application fees:
	(A) Application for franchise pursuant to Section 4.90.210	30.00 each
	(B) Application for permit pursuant to 11.18.020	30.00 each
	(C) Application for permit pursuant to 11.17.020	30.00 each

(3) Utility and/or telecommunication installations in city right-of-way pursuant to permit issued under Chapter 11.18 SMC:

	(A) Each underground or overhead utility installation up to 150 feet in length	$30.00 each
	(B) Installation over 150 feet
	. . . 20 cents for each additional foot

(4) Franchise fees shall be determined by negotiation between the city and prospective franchisee and shall beset forth in the franchise agreement.

(5) Application fees include the cost of the initial review of the application and one inspection of the site. Additional application or plan review, or any additional inspections shall be billed at twenty-five dollars for each such review or inspection.

(6) In a case of installation of overhead facilities, pole attachments per pole per year shall be eight dollars and twenty-six cents per pole per year.

(7) Upon application to the city council, application and permit fees for right-of-way uses permits pursuant to Chapter 11.17 may be waived for nonprofit groups.

(8) At the election of the city, the above fees may be waived, in whole or in part, in exchange for the installation of additional capacity for the city or other like consideration. (Ord. 1274, 1999)

4.90.040 Franchise—Permit.

(a) Other than as provided in Section 4.90.070, 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 or utility service shall obtain a permit pursuant to Chapter 11.18.

(b) Other than as provided in Section 4.90.070, 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. 1272 § 1 (part), 1999)

4.90.050 (Reserved)

4.90.060 (Reserved)

4.90.070 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 such 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. 1272 § 1 (part), 1999)

4.90.080 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 fined not less than one hundred dollars nor more than seven hundred fifty dollars for each offense. A separate and distinct offense shall be deemed committed each day on which a violation occurs or continues. (Ord. 1272 § 1 (part), 1999)

4.90.090 Other remedies.

Nothing in this chapter shall be construed as limiting any judicial remedies that the city may have at law or inequity for enforcement of this chapter. (Ord. 1272 § 1 (part), 1999)

4.90.100 Rules and regulations.

The city may establish from time to time further rules, regulations and procedures for the implementation of thischapter. (Ord. 1272 § 1 (part), 1999)

4.90.110 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, such decision shall not affect the validity of the remaining portions hereof. (Ord. 1272 § 1 (part), 1999)

Article II. Franchises

4.90.200 Franchise.

Pursuant to Chapter 35A.47 of the Revised Code of Washington 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 11.18 unless specifically modified by such ordinance. In the event of conflict between provisions of this chapter and Chapter 11.18, the provision most likely to further the city’s interests shall apply unless the context clearly requires otherwise. (Ord. 1272 § I (part), 1999)

4.90.210 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;

(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. 1272 § 1 (part), 1999)

4.90.220 Determination by the city.

Within one hundred twenty 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, a most appropriate route along the city rights-of-way, 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. 1272 § 1 (part), 1999)

4.90.230 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. 1272 § 1 (part), 1999)

4.90.240 Term of franchise.

A franchise shall be for a term not exceeding twenty-five years. A franchise may be renewed upon application therefor not more than three years nor less than one hundred eighty 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. 1272 § 1 (part), 1999)

4.90.250 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. 1272 § 1 (part), 1999)

4.90.260 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. 1272 § 1 (part), 1999)

4.90.270 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. 1272 § 1 (part), 1999)

4.90.280 Service to the city.

A franchisee shall make its telecommunications or utility services available to the city at its most favorable rate for similarity situated users; provided, however, that the city may negotiate more favorable rates, free service, other services or benefits, or right to use franchisee’s facilities in lieu of other obligations of franchisee. (Ord. 1272 § 1 (part), 1999)

Article III. Fees

4.90.300 Fees.

(a) Fees for registration, a permit or a franchise application pursuant to this chapter shall be established by ordinance of the city. Fees for franchises shall he determined by negotiation between the city and the prospective franchisee.

(b) All fees shall ensure compensation to the city for (1) all administrative costs and expenses associated with processing an application and monitoring compliance with any permit or franchise provisions, (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, and (3) for the use of city rights-of way. (Ord. 1272 § 1 (part), 1999)