Chapter 20.01
PURPOSE AND GENERAL PROVISIONS
Sections
20.01.010 Reenactment of Title 20 DMMC, Telecommunications.
20.01.040 Registration and fees.
20.01.070 Cable franchise and fees.
20.01.080 Application to existing franchise agreements.
20.01.100 Further rules and regulations.
20.01.010 Reenactment of Title 20 DMMC, Telecommunications.
The city council hereby reenacts Title 20 DMMC, Telecommunications, to the Des Moines Municipal Code, as modified herein. [Ord. 1316 § 1, 2003.]
20.01.020 Purpose.
The purpose of this chapter is to:
(1) Establish a local policy concerning use of the public rights-of-way;
(2) Establish clear and nondiscriminatory local guidelines, standards and time frames for the exercise of local authority with respect to the management of the public rights-of-way;
(3) Promote competition in telecommunications;
(4) Minimize unnecessary local regulation of telecommunications providers and services;
(5) Encourage the provision of advanced and competitive telecommunications services on the widest possible basis to the businesses, institutions and residents of the city;
(6) Permit and manage reasonable access to the public ways of the city for telecommunications purposes on a competitively neutral basis;
(7) Conserve the limited physical capacity of the public ways held in public trust by the city;
(8) Assure that the city’s current and ongoing administrative costs of managing the use of the public ways are fully paid by the persons seeking such access and causing such costs;
(9) Secure fair and reasonable compensation to the city and the residents of the city, in a nondiscriminatory manner, for permitting private use of the public ways;
(10) Assure that all telecommunications carriers providing facilities or services within the city comply with the ordinances, rules, and regulations of the city with respect to management of the public rights-of-way;
(11) Assure that the city can continue to fairly and responsibly protect the public health, safety, and welfare;
(12) Enable the city to discharge its public trust consistent with rapidly evolving federal and state regulatory policies, industry competition, and technological development. [Ord. 1316 § 2, 2003.]
20.01.030 Definitions.
Use of Words and Phrases. As used in this Title, unless the context or subject matter clearly requires otherwise, the words or phrases defined in this section shall have the indicated meanings.
“Abandonment” means: (a) to cease operation for a period of 60 or more consecutive days; (b) to reduce the effective radiated power of an antenna by 75 percent for 60 or more consecutive days; (c) to relocate an antenna at a point less than 80 percent of the height of an antenna support structure; or (d) to reduce the number of transmissions from an antenna by 75 percent for 60 or more consecutive days.
“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.
“Antenna” means any exterior apparatus designed for telephonic, radio, data, Internet, or television communications through the sending and/or receiving of electromagnetic waves, and includes equipment attached to a tower, utility pole, light standard or building or other structure for the purpose of providing personal wireless services, including unlicensed wireless telecommunications services, wireless telecommunications services utilizing frequencies authorized by the Federal Communications Commission for “cellular,” “enhanced specialized mobile radio” and “personal communications services,” telecommunications services, and its attendant base station.
“Antenna height” means the vertical distance measured from finished grade to the highest point of the antenna. Measurement of tower height shall include antenna, base pad, and other appurtenances. If the support structure is on a sloped grade, then the average between the highest and lowest grades shall be used in calculating the antenna height.
“Antenna support structure” means any pole, telescoping mast, tower, tripod, or other structure which supports a device used in the transmitting or receiving of radio frequency signals.
“Applicant” means any provider or any person, partnership, or company who files an application for any permit necessary to install, maintain, or remove a personal wireless service facility within the City.
“Approved small cell facility” means any small cell facility that has received all required permits.
“Base station” means a structure or equipment at a fixed location that enables FCC-licensed or authorized wireless communications between user equipment and a communications network. The term does not encompass a tower as defined herein nor any equipment associated with a tower. “Base station” includes, without limitation:
(a) Equipment associated with wireless communications services as well as unlicensed wireless services and fixed wireless services such as microwave backhaul.
(b) Radio transceivers, antennas, coaxial or fiber optic cable, regular and backup power supplies, and comparable equipment, regardless of technological configuration (including distributed antenna systems (“DAS”) and small cell networks).
(c) Any structure other than a tower that, at the time the relevant application is filed with the City under this section, supports or houses equipment described in subsections (a) and (b) of this definition that has been reviewed and approved under the applicable zoning or siting process, or under another state or local regulatory review process, even if the structure was not built for the sole or primary purpose of providing that support.
The term does not include any structure that, at the time the relevant application is filed with the City under this section, does not support or house equipment described in subsections (a) and (b) of this definition.
“Basic cable service” means any service tier that includes the retransmission of local television broadcast signals.
“Cable Acts” means 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.
“Cable operator” means a telecommunications carrier providing or offering to provide “cable service” within the City as that term is defined in the Cable Acts.
“Cable television service” means the one-way transmission to subscribers of video programming and other programming service and subscriber interaction, if any, that is required for the selection or use of the video programming or other programming service.
“Camouflaged” means a personal wireless service facility that is disguised, hidden, or integrated with an existing structure that is not a monopole or tower, or a personal wireless service facility that is placed within an existing or proposed structure or new structure, tower, or mount within trees so as to be significantly screened from view.
“Cell site” or “site” means a tract or parcel of land that contains personal wireless service facilities including any antenna, support structure, accessory buildings, and parking, and may include other uses associated with and ancillary to personal wireless services.
“Channel” means a single path or section of the spectrum which carries a television signal.
“Character generator” means a device used to generate alphanumerical programming to be cablecast on a cable channel.
“City” means the City of Des Moines.
“City property” means all real property owned by the City whether in fee ownership or other interest.
“Co-location” or “collocation,” except when utilized in chapter 20.10 DMMC, means the use of a personal wireless service facility or cell site by more than one personal wireless service provider or the siting of a facility on an existing structure. In the context of chapter 20.10 DMMC, “collocation” means the mounting or installation of transmission equipment on an eligible support structure for the purpose of transmitting and/or receiving radio frequency signals for communication purposes.
“Collocation permit” means an administrative process exercised and approved by the City Manager or designee to encourage collocation of facilities as provided in this title.
“Commercial Zones” or “commercial district” means and includes each of the zoning classifications as established in DMMC 18.05.080(2) as currently written or subsequently amended.
“Concealment elements” means transmission facilities designed to look like some feature other than a wireless tower or base station or which minimize the visual impact of an antenna by use of nonreflective materials, appropriate colors and/or a concealment canister.
“Conditional use permit” or “CUP” means a process and approval as described in Title 18 DMMC.
“Council” means the City Council of the City of Des Moines or any future board constituting the legislative body of the City of Des Moines.
“COW” means “cell on wheels.”
“Data communication” means (a) the transmission of encoded information, or (b) the transmission of data from one point to another.
“Design” means the appearance of personal wireless service facilities, including such features as their materials, colors, and shape.
“Dwelling units” means residential living facilities as distinguished from temporary lodging facilities such as hotel and motel rooms and dormitories, and includes single-family residential units and individual apartments, condominium units, mobile homes within mobile home parks, and other multiple-family residential units.
“EIA” means the Electronics Industry Association.
“Eligible facilities request” means any request for modification of an existing tower or base station that does not substantially change the physical dimensions of such tower or base station, involving:
(a) Collocation of new transmission equipment;
(b) Removal of transmission equipment; or
(c) Replacement of transmission equipment.
“Eligible support structure” means any tower or base station as defined in this section; provided, that it is existing at the time the relevant application is filed with the City.
“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.
“Equipment enclosure” means a structure, shelter, cabinet, or vault used to house and protect the electronic equipment necessary for processing wireless communication signals. Associated equipment may include air conditioning, backup power supplies and emergency generators.
“Excess capacity” means the volume or capacity in any existing or future duct, conduit, manhole, handhole or other utility facility within the right-of-way that is or will be available for use for additional telecommunications facilities.
Existing. A constructed tower or base station is “existing” if it has been reviewed and approved under the applicable zoning or siting process, or under another state or local regulatory review process; provided, that a tower that has not been reviewed because it was not in a zoned area when it was built, but was lawfully constructed, is existing for purposes of this section.
“FAA” means the Federal Aviation Administration.
“Facilities” means all of the plant, equipment, fixtures, appurtenances, antennas, and other facilities necessary to furnish and deliver telecommunications services and cable television services, including but not limited to poles with crossarms, poles without crossarms, wires, lines, conduits, cables, communications and signal lines and equipment, braces, guys, anchors, vaults, and all attachments, appurtenances, and appliances necessary or incidental to the distribution and use of telecommunications services and cable television 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.
“Fiber optics” means the technology of guiding and projecting light for use as a permanent 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 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.
“Governing authority” means the City Council of the City of Des Moines.
“Grantee” means both licensees and franchisees granted certain rights and obligations as more fully described herein.
“Gross revenues” means any and all revenues derived from the operation of the cable television system to provide cable services in the City by a franchisee, other than transactions related to real property receipts by a franchisee, bad debt and any taxes on services furnished by a franchisee, imposed on a franchisee or any subscriber or used by any governmental unit, agency or instrumentality and collected by a franchisee for such entity. However, gross revenues shall include franchise fee revenue and revenues obtained from local and national advertising, home shopping channels, and similar sources. When the revenue of the franchisee includes gross revenues from sources outside of the City, a franchisee shall prorate the gross revenues among its sources by multiplying such gross revenues by a fraction the numerator of which is the number of franchisee’s subscribers in the City and the denominator of which is the total number of all a franchisee’s subscribers.
“Headend” means the electronic equipment located at the start of a cable television system, usually including antennas, preamplifiers, frequency converters, demodulators and related equipment.
“Hearing Examiner” means the duly appointed Hearing Examiner of the City.
“Installation” means the connection of the cable television system by means of a cable drop from feeder cable to subscribers’ terminals.
“Institutional network (I-Net)” means a communication network for noncommercial governmental use by governmental agencies transported on fiber optic cable owned by the franchisee.
“Interactive services” means services provided to subscribers where the subscriber either (a) both receives information consisting of either television or other signals and transmits signals generated by the subscriber or equipment under his/her control for the purpose of selecting what information shall be transmitted to the subscriber or for any other purpose; or (b) transmits signals to any other location for any purpose.
“Internet” means an international telecommunications network providing point to point communication through modem accessibility.
“Microcells” is defined in accordance with RCW 80.36.375.
“Modification” means the changing of any portion of a personal wireless service facility from its description in a previously approved permit. Examples include, but are not limited to, changes in design.
“Mount” means the structure or surface upon which personal wireless service facilities are mounted.
“Node” is a sub-headend containing electronic equipment located within a local area designed to provide service to a limited number of homes.
“Operator” means the telecommunications carrier firm or corporation to whom a franchise is granted pursuant to the provisions of this Title.
“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 corporations, companies, associations, joint stock companies, firms, partnerships, limited liability companies, other entities and individuals.
“Personal wireless service,” “personal communications system,” “personal wireless service facilities,” and “facilities,” as used in this Title, shall be defined in the same manner as in chapter 47, United States Code, section 332(c)(7)(C), as they may be amended now or in the future and includes facilities for the transmission and reception of radio or microwave signals used for communication, cellular phone, personal communications services, enhanced specialized mobile radio, and any other wireless services licensed by the FCC and unlicensed wireless services.
“Proposal” means the response, by an individual or organization, to a request by the City regarding the provision of cable services or telecommunications services; or an unsolicited plan submitted by an individual or organization seeking to provide cable services or other telecommunications services in the City.
“Provider” means every corporation, company, association, joint stock company, firm, partnership, limited liability company, other entity and individual which provides personal wireless service over personal wireless service facilities.
“Public, education and government (PEG) access channels” means channel capacity designated for public, educational, government use.
“Public right-of-way” and/or “right-of-way” shall be defined in accordance with RCW 35.99.010(5) and means land dedicated for public roads and streets but does not include land so dedicated which has not been opened and improved for motor vehicle use by the public nor other land excluded by statute.
“Residential Zone” or “residential district” means and includes each of the zoning classifications as established in DMMC 18.05.080(1) as currently written or as subsequently amended.
“Secondary use” means a use subordinate to the principal use of the property, such as commercial, residential, utilities, etc.
“Security barrier” means a wall, fence, or berm that has the purpose of sealing a personal wireless service facility from unauthorized entry or trespass.
“Small cell” and “small cell network” are defined in accordance with RCW 80.36.375.
“State” means the State of Washington.
“Subscriber” means a person or user of the cable television system who lawfully receives cable services or other service therefrom with franchisee’s express permission.
Substantial Change. A modification substantially changes the physical dimensions of an eligible support structure if it meets any of the following criteria:
(a) For towers other than towers in the public rights-of-way, it increases the height of the tower by more than 10 percent or by the height of one additional antenna array with separation from the nearest existing antenna not to exceed 20 feet, whichever is greater; for other eligible support structures, it increases the height of the structure by more than 10 percent or more than 10 feet, whichever is greater;
(b) For towers other than towers in the public rights-of-way, it involves adding an appurtenance to the body of the tower that would protrude from the edge of the tower more than 20 feet, or more than the width of the tower structure at the level of the appurtenance, whichever is greater; for other eligible support structures, it involves adding an appurtenance to the body of the structure that would protrude from the edge of the structure by more than six feet;
(c) For any eligible support structure, it involves installation of more than the standard number of new equipment cabinets for the technology involved, but not to exceed four cabinets; or, for towers in the public rights-of-way and base stations, it involves installation of any new equipment cabinets on the ground if there are no preexisting ground cabinets associated with the structure, or else involves installation of ground cabinets that are more than 10 percent larger in height or overall volume than any other ground cabinets associated with the structure;
(d) It entails any excavation or deployment outside the current site;
(e) It would defeat the concealment elements of the eligible support structure; or
(f) It does not comply with conditions associated with the siting approval of the construction or modification of the eligible support structure or base station equipment; provided, however, that this limitation does not apply to any modification that is noncompliant only in a manner that would not exceed the thresholds identified above.
“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 the orders and regulations of the Washington Utilities and Transportation Commission, to allow its use by a telecommunications carrier for a pole attachment.
“Telecommunications carrier” 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 within the City used to transmit, receive, distribute, provide or offer telecommunications service.
“Telecommunications provider” includes every person who provides telecommunications service over telecommunications facilities.
“Telecommunications service” shall be defined as provided in RCW 35.99.010(7).
“Tower” means any structure built for the sole or primary purpose of supporting any FCC-licensed or authorized antennas and their associated facilities, including structures that are constructed for wireless communications services including, but not limited to, private, broadcast, and public safety services, as well as unlicensed wireless services and fixed wireless services such as microwave backhaul and the associated site.
“Transmission equipment” means equipment that facilitates transmission for any FCC-licensed or authorized wireless communication service, including but not limited to radio transceivers, antennas, coaxial or fiber optic cable, and regular and backup power supply. The term includes equipment associated with wireless communications services including, but not limited to, private, broadcast, and public safety services, as well as unlicensed wireless services and fixed wireless services such as microwave backhaul.
“Underground facilities” means utility and telecommunications facilities located under the surface of the ground, excluding the underground foundations or supports for overhead facilities.
“Unlicensed wireless services” means commercial mobile services that operate on public frequencies and do not need a FCC license.
“Urban designed corridor” means a right-of-way corridor with context sensitive designed street light poles and fed by underground power. Street lights may be owned by either the City or Puget Sound Energy.
“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 the orders and regulations of the Washington Utilities and Transportation Commission.
“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 public ways and used or to be used for the purpose of providing utility or telecommunications services.
“Utility pole” means a structure designed and used primarily for the support of electrical wires, telephone wires, television cable, traffic signals, or lighting for streets, parking areas, or pedestrian paths.
“Washington Utilities and Transportation Commission” or “WUTC” means the state administrative agency, or lawful successor, authorized to regulate and oversee telecommunications carriers, services and providers in the state of Washington to the extent prescribed by law.
Additional terms and phrases are likely to be relevant to this Title. When possible, the City shall turn to existing FCC regulations and/or existing federal statutes for clarification purposes. [Ord. 1699 § 1, 2018; Ord. 1316 § 3, 2003.]
20.01.040 Registration and fees.
Except as otherwise provided herein, all telecommunications carriers or providers engaged in the business of transmitting, supplying or furnishing of telecommunications service originating, terminating or existing within the city shall register with the city pursuant to this title and pay all the fees as provided herein. [Ord. 1316 § 4, 2003.]
20.01.050 License and fees.
Except as otherwise provided herein, any telecommunications carrier who desires to construct, install, operate, maintain or otherwise locate telecommunications facilities in public ways for the purpose of providing telecommunications service to persons and areas outside the city shall first obtain a license granting the use of such public ways from the city pursuant to this title and pay all the fees as provided herein. [Ord. 1316 § 5, 2003.]
20.01.060 Franchise and fees.
Except as otherwise provided herein, any telecommunications carrier who desires to construct, install, operate, maintain or otherwise locate telecommunications facilities in public ways and to also provide telecommunications service to persons or areas in the city shall first obtain a franchise granting the use of such from the city pursuant to this title and pay all the fees as provided herein. [Ord. 1316 § 6, 2003.]
20.01.070 Cable franchise and fees.
Except as otherwise provided herein, any telecommunications carrier who desires to construct, install, operate, maintain or locate telecommunications facilities in public ways for the purpose of providing cable services shall first obtain a cable franchise from the city pursuant to chapter 20.05 DMMC (Cable Franchise) and pay all the fees as provided in such cable franchise. [Ord. 1316 § 7, 2003.]
20.01.080 Application to existing franchise agreements.
Except as provided in chapter 20.07 DMMC, this title shall have no effect on any existing franchise agreement until:
(1) The expiration of said franchise agreement; or
(2) An amendment to an unexpired franchise agreement, unless both parties agree to defer full compliance to a specific date not later than the present expiration date. [Ord. 1316 § 8, 2003.]
20.01.090 Penalties.
(1) A violation or failure to comply with this title is a Class I civil infraction, subject to a fine of up to $1,000.
(2) A separate and distinct violation shall be deemed committed each day on which a violation occurs or continues.
(3) Nothing in this title shall be construed as limiting any remedies that the city may have, at law or in equity, for enforcement of this title. [Ord. 1316 § 9, 2003.]
20.01.100 Further rules and regulations.
The city manager or designee is authorized to establish further rules, regulations and procedures to implement, administer and enforce this title. [Ord. 1316 § 10, 2003.]