Chapter 13.84
USE OF RIGHTS-OF-WAY
BY SERVICE PROVIDERS
Sections:
13.84.040 No change in authority.
13.84.060 Additional ducts and conduit.
13.84.080 No preemption of existing franchises and contracts.
13.84.090 Agreement on terms and conditions.
13.84.010 Definitions.
The definitions in this section apply throughout this chapter unless the context clearly requires otherwise.
A. “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.
B. “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, communication 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, open video system services and cable television services.
C. “Master permit” means the agreement in whatever form whereby the city may grant general permission to a service provider to enter, use, and occupy the right-of-way for the purpose of locating facilities. This definition is not intended to limit, alter, or change the extent of the existing authority of the city to require a franchise nor does it change the status of a service provider asserting an existing state-wide grant based on a predecessor telephone or telegraph company’s existence at the time of the adoption of the Washington State Constitution to occupy the right-of-way. For the purposes of this subsection, a franchise, except for a cable television franchise, is a master permit. A master permit does not include cable television franchises.
D. “Open video system” shall have the same meaning as that contained in 47 U.S.C. Section 573(a) as amended or its successors.
E. “Personal wireless services” means commercial mobile services, unlicensed wireless services, and common carrier wireless exchange access services, as defined by federal laws and regulations.
F. “Right-of-way” means land acquired or dedicated for public roads and streets, but does not include:
1. State highways;
2. Land dedicated for roads, streets, and highways not opened and not improved for motor vehicle use by the public;
3. Structures, including poles and conduits, located within the right-of-way;
4. Federally granted trust lands or forest board trust lands;
5. Lands owned or managed by the state parks and recreation commission; or
6. Federally granted railroad rights-of-way acquired under 43 U.S.C. Section 912 and related provisions of federal law that are not open for motor vehicle use.
G. “Service provider” means every corporation, company, association, joint stock association, firm, partnership, person, city, or town owning, operating, or managing any facilities used to provide and providing telecommunications, open video system service, or cable television service for hire, sale, or resale to the general public. Service provider includes the legal successor to any such corporation, company, association, joint stock association, firm, partnership, person, city, or town.
H. “Telecommunications service” means the transmission of information by wire, radio, optical cable, electromagnetic, or other similar means for hire, sale, or resale to the general public. For the purpose of this subsection, “information” means knowledge or intelligence represented by any form of writing, signs, signals, pictures, sounds, or any other symbols. For the purpose of this chapter, telecommunications service excludes the over-the-air transmission of broadcast television or broadcast radio signals.
I. “Use permit” means the authorization in whatever form whereby a city may grant permission to a service provider to enter and use the specified right-of-way for the purpose of installing, maintaining, repairing, or removing identified facilities. (Ord. 2456-00 § 1, 2000)
13.84.020 Permits required.
Prior to commencing work, a service provider must apply for and receive a permit for installing, maintaining, repairing, or removing facilities for telecommunications services, cable television services, or open video system services. (Ord. 2456-00 § 2, 2000)
13.84.030 Master permits.
A. A service provider must apply for a master permit. A service provider with an existing state-wide grant to occupy the right-of-way shall be asked to obtain a master permit for wireline facilities.
1. The procedures for the approval of a master permit and the requirements for a complete application for a master permit shall be available in written form.
2. The city shall act upon a complete application within one hundred twenty days from the date a service provider files the complete application for the master permit to use the right-of-way, except:
a. With the agreement of the applicant; or
b. Where the master permit requires action of city council and such action cannot reasonably be obtained within the one-hundred-twenty-day period.
B. Service providers must obtain a use permit. The city shall act on a request for a use permit by a service provider within thirty days of receipt of a completed application, unless a service provider consents to a different time period or the service provider has not obtained a master permit requested by the city.
1. For the purpose of this section, “act” means that the city makes the decision to grant, condition, or deny the use permit, which may be subject to administrative appeal, or notifies the applicant in writing of the amount of time that will be required to make the decision and the reasons for this time period.
2. Requirements otherwise applicable to holders of master permits shall be deemed satisfied by a holder of a cable franchise in good standing.
3. Where the master permit does not contain procedures to expedite approvals and the service provider requires action in less than thirty days, the service provider shall advise the city in writing of the reasons why a shortened time period is necessary and the time period within which action by the city is requested. The city shall reasonably cooperate to meet the request where practicable.
4. The city may not deny a use permit to a service provider with an existing state-wide grant to occupy the right-of-way for wireline facilities on the basis of failure to obtain a master permit.
C. The reasons for a denial of a master permit shall be supported by substantial evidence contained in a written record. A service provider adversely affected by the final action denying a master permit, or by an unreasonable failure to act on a master permit as set forth in subsection A of this section, may commence an action in Snohomish County Superior Court within thirty days to seek relief, which shall be limited to injunctive relief.
D. A service provider adversely affected by the final action denying a use permit may commence an action within thirty days to seek relief, which shall be limited to injunctive relief. In any appeal of the final action denying a use permit, the standard for review and burden of proof shall be as set forth in RCW 36.70C.130.
E. The city shall:
1. In order to facilitate the scheduling and coordination of work in the right-of-way, provide as much advance notice as reasonable of plans to open the right-of-way to those service providers who are current users of the right-of-way or who have filed notice with the clerk of the city within the past twelve months of their intent to place facilities in the city or town. The city shall not be liable for damages for failure to provide this notice. Where the city has failed to provide notice of plans to open the right-of-way consistent with this subsection, the city may not deny a use permit to a service provider on the basis that the service provider failed to coordinate with another project.
2. Have the authority to require that facilities are installed and maintained within the right-of-way in such a manner and at such points so as not to inconvenience the public use of the right-of-way or to adversely affect the public, health, safety, and welfare.
F. A service provider shall:
1. Obtain all permits required by the city for the installation, maintenance, repair, or removal of facilities in the right-of-way;
2. Comply with applicable ordinances, construction codes, regulations, and standards subject to verification by the city of such compliance;
3. Cooperate with the city in ensuring that facilities are installed, maintained, repaired, and removed within the right-of-way in such a manner and at such points so as not to inconvenience the public use of the right-of-way or to adversely affect the public health, safety, and welfare;
4. Provide detailed information and plans as reasonably necessary to enable a city to comply with subsection E of this section, including, when notified by the city, the provision of advance planning information pursuant to the procedures established by the city or town;
5. Obtain the written approval of the facility or structure owner, if the service provider does not own it, prior to attaching to or otherwise using a facility or structure in the right-of-way;
6. Construct, install, operate, and maintain its facilities at its expense;
7. Provide insurance, surety bonds, and indemnification in amounts from insurers and sureties as approved by the city;
8. Subscribe to the local utility underground location service;
9. Provide record drawings of as-built conditions within sixty days of installation of facilities within public right-of-way, such drawings to be in paper and electronic formats as specified by the city; and
10. Comply with applicable federal and state safety laws and standards.
G. Nothing in this section shall be construed as:
1. Creating, expanding, or extending any liability of the city to any third-party user of facilities or third-party beneficiary; or
2. Limiting the right of the city to require an indemnification agreement or setting such other terms and conditions as the city deems appropriate as a condition of a service provider’s facilities occupying the right-of-way.
H. Nothing in this section creates, modifies, expands, or diminishes a priority of use of the right-of-way by a service provider or other utility, either in relation to other service providers or in relation to other users of the right-of-way for other purposes. (Ord. 2456-00 § 3, 2000)
13.84.040 No change in authority.
This chapter does not amend, limit, repeal, or otherwise modify the authority of the city to regulate cable television services pursuant to federal law or limit the authority of the city to regulate the placement of facilities through zoning or police power. (Ord. 2456-00 § 4, 2000)
13.84.050 Relocation.
A. Service providers shall relocate authorized facilities within the right-of-way when reasonably necessary for construction, alteration, repair, or improvement of the right-of-way for purposes of public welfare, health, or safety.
B. The city shall notify service providers of the need for relocation and shall specify the date by which relocation shall be completed. Service providers shall complete the relocation by the date specified, unless the city, or a reviewing court, establishes a later date for completion, after a showing by the service provider that the relocation cannot be completed by the date specified using best efforts and meeting safety and service requirements.
C. Service providers may not seek reimbursement for their relocation expenses from the city unless:
1. The service provider had paid for the relocation cost of the same facilities at the request of the city within the past five years, the service provider’s share of the cost of relocation will be paid by the city;
2. Where aerial to underground relocation of authorized facilities is required by the city under subsection A of this section, for service providers with an ownership share of the aerial supporting structures, the additional incremental cost of underground compared to aerial relocation, or as provided for in the approved tariff if less, will be paid by the city; provided, however, that the city shall not be liable for such costs if the city allows the service provider to relocate the authorized facilities to another aerial location; and
3. Where the city requests relocation under subsection A of this section solely for aesthetic purposes, unless otherwise agreed to by the parties.
D. Where a project in subsection A of this section is primarily for private benefit, the private party or parties shall reimburse the cost of relocation in the same proportion to their contribution to the costs of the project. Service providers will not be precluded from recovering their costs associated with relocation required under subsection A of this section; provided, that the recovery is consistent with subsection C of this section and other applicable laws.
E. The city may require the relocation of facilities at the service provider’s expense in the event of an unforeseen emergency that creates an immediate threat to the public safety, health, or welfare. (Ord. 2456-00 § 5, 2000)
13.84.060 Additional ducts and conduit.
A service provider that is constructing, relocating, or placing ducts or conduits in public rights-of-way shall provide the city with additional duct or conduit and related structures necessary to access the conduit, provided that:
A. The city enters into a contract with the service provider consistent with RCW 80.36.150. The contract rates to be charged should recover the incremental costs of the service provider. If the city makes the additional duct or conduit and related access structures available to any other entity for the purposes of providing telecommunications or cable television service for hire, sale, or resale to the general public, the rates to be charged, as set forth in the contract with the entity that constructed the conduit or duct, shall recover at least the fully allocated costs of the service provider. The service provider shall state both contract rates in the contract. The city shall inform the service provider of the use, and any change in use, of the requested duct or conduit and related access structures to determine the applicable rate to be paid by the city.
B. The city shall not require that the additional duct or conduit space be connected to the access structures and vaults of the service provider.
C. The value of the additional duct or conduit requested by the city shall not be considered a public works construction contract.
D. This section shall not affect the provision of an institutional network by a cable television provider under federal law. (Ord. 2456-00 § 6, 2000)
13.84.070 Charges and fees.
A. The city shall charge:
1. A fee to service providers that recovers actual administrative expenses incurred by a city that are directly related to receiving and approving a permit, license, and franchise, to inspecting plans and construction, or to the preparation of a detailed statement pursuant to Chapter 43.21C RCW;
2. Taxes permitted by state law on service providers;
3. Franchise requirements and fees for cable television services as allowed by federal law;
4. A site-specific charge pursuant to an agreement between the city and a service provider of personal wireless services acceptable to the parties for:
a. The placement of new structures in the right-of-way regardless of height, unless the new structure is the result of a mandated relocation in which case no charge will be imposed if the previous location was not charged;
b. The placement of replacement structures when the replacement is necessary for the installation or attachment of wireless facilities, and the overall height of the replacement structure and the wireless facility is more than sixty feet; or
c. The placement of personal wireless facilities on structures owned by the city located in the right-of-way. However, a site-specific charge shall not apply to the placement of personal wireless facilities on existing structures, unless the structure is owned by the city or town.
5. Such other additional fees and charges as may be allowed by state and federal laws, whether such laws are in effect at the time of adoption of the ordinance codified in this chapter or enacted after the time of adoption.
The city is not required to approve the use permit for the placement of a facility for personal wireless services that meets one of the criteria in this subsection absent such an agreement. If the parties are unable to agree on the amount of the charge, the service provider may submit the amount of the charge to binding arbitration by serving notice on the city or town. Within thirty days of receipt of the initial notice, each party shall furnish a list of acceptable arbitrators. The parties shall select an arbitrator; failing to agree on an arbitrator, each party shall select one arbitrator and the two arbitrators shall select a third arbitrator for an arbitration panel. The arbitrator or arbitrators shall determine the charge based on comparable siting agreements involving public land and rights-of-way. The arbitrator or arbitrators shall not decide any other disputed issues, including but not limited to size, location, and zoning requirements. Costs of the arbitration, including compensation for the arbitrator’s services, must be borne equally by the parties participating in the arbitration and each party shall bear its own costs and expenses, including legal fees and witness expenses, in connection with the arbitration proceeding.
B. Subsection A of this section does not prohibit franchise fees imposed on an electrical energy, natural gas, or telephone business, by contract existing on April 20, 1982, with the city, for the duration of the contract, but the franchise fees shall be considered taxes for the purposes of the limitations established in RCW 35.21.865 and 35.21.870 to the extent the fees exceed the costs allowable under subsection A of this section. (Ord. 2456-00 § 7, 2000)
13.84.080 No preemption of existing franchises and contracts.
This chapter shall not preempt specific provisions in existing franchises or contracts between the city and service providers. (Ord. 2456-00 § 8, 2000)
13.84.090 Agreement on terms and conditions.
This chapter does not limit the city and service provider from agreeing on any terms and conditions that may be contrary to this chapter that are not otherwise expressly forbidden by state or federal law. (Ord. 2456-00 § 9, 2000)