Chapter 4.22
FRANCHISE FOR USE OF RIGHT-OF-WAY
Sections:
4.22.010 Franchise for use of right-of-way.
4.22.030 Application – Contents.
4.22.050 Completeness – Review and notification for franchise applications.
4.22.070 Written agreement – No construction until issued.
4.22.010 Franchise for use of right-of-way.
(1) Purpose. The city council as steward of the city’s right-of-way has the authority to authorize right-of-way use by utilities and other entities seeking to serve the public if an agreement consistent with state and federal law and the best interests of the city and its citizens can be reached. This chapter establishes application requirements for a franchise for the use of the right-of-way, provisions for fee deposits, and requirements for determining the completeness of applications for a franchise.
(Ord. No. 17-833, § 2, 4-4-17.)
4.22.020 Definitions.
The following words and phrases shall have the meanings assigned for use in this chapter:
Director. The “director” is the city’s public works director or his/her designee.
Franchise. A “franchise” is the contractual authorization whereby a public utility or other qualified service provider is granted permission to utilize the right-of-way in order to provide services to the general public or to provide infrastructure for such a service provider. A franchise is a master permit within the meaning of RCW 35.99.010(3).
“Right-of-way” means land acquired or dedicated for public roads and streets, but does not include:
(a) State highways;
(b) Road dedicated for roads, streets, and highways not opened and not improved for motor vehicle use by the public;
(c) Structures including poles and conduits located within the right-of-way;
(d) Federally granted trust lands or forest board trust lands;
(e) Lands owned or managed by the state parks and recreation commission;
(f) Federally granted railroad rights-of-way acquired under 43 USC § 912 and related provisions of federal law that are not open for vehicular use; or
(g) Leasehold or city owned property to which the city holds fee title or other title and which is utilized for park, utility, or a governmental or proprietary use and not primarily for road, street, or highway use.
Right-of-Way Use Permit. A “right-of-way use permit” is an administrative permit issued to a franchisee pursuant to Chapter 4.25 FWRC, Rights-of-Way, to enter the right-of-way in order to exercise the rights granted under a franchise.
“Telecommunications facilities” are those facilities defined in RCW 35.99.010(2) and utilized by a provider in the provision of telecommunications service.
“Telecommunications service” is defined as provided in RCW 35.99.010(7) as the same exists or is hereafter amended.
(Ord. No. 17-833, § 2, 4-4-17.)
4.22.030 Application – Contents.
The director is authorized to establish an application form or forms appropriate for telecommunications entities, public utilities, and other qualified service providers to apply for a franchise. The form shall contain at a minimum:
(1) Information identifying the applicant, its corporate or other organizational structure, and the agent or individual filling out the application.
(2) Property and facility information, including, but not limited to:
(a) The nature of the application as an application for a new franchise, an application for renewal or amendment, or an application for the transfer of a franchise.
(b) A description of the specific services that the applicant expects to provide within the city including whether the services will be provided to the public, to commercial and/or residential customers, or to other utilities and service providers.
(c) A general description of the facilities to be located in the right-of-way including, but not limited to, wireline facilities, cable wireless, and telecommunications service facilities, conduits, pipelines, and other facilities appropriate to the specific utility or service provider’s utilization of the right-of-way.
(d) Where appropriate, information relating to pole attachment or lease agreements with the owners of other facilities located in the right-of-way.
(e) Any licenses, certificates, or authorizations required from the Federal Communications Commission, the Washington Utilities and Transportation Commission, and any other federal or state agency with jurisdiction over the proposed activities to be conducted in the right-of-way.
(f) Information relating to utility taxes including a description of the services provided and any and all state and local taxes which may apply.
(g) The service area for which the franchise is requested, including a map of the area to be covered by the franchise and specific locations of the initial build out and, if known, proposed future build out locations including which proposed facilities will be underground, ground based, and/or aerial. The applicant may designate the entire city at its discretion or any portion thereof as the franchise area.
(h) Upon request from the city, financial statements prepared in accordance with generally accepted accounting principles demonstrating the applicant’s financial ability to construct, operate, maintain, relocate, and remove its facilities. This provision shall not apply when prohibited by the Federal Telecommunications Act.
(i) An illustrative list of cities or towns in which the applicant holds a franchise including up to the last five Washington cities or towns in which a franchise has been granted as well as all cities in which a franchise has been revoked.
(j) For franchises authorizing small wireless deployment, specify whether and where small wireless facilities are to be located on utility poles, including city-owned light standards included in the definition of utility pole, or will utilize replacement utility poles, new poles, towers, and/or other structures. To the extent known, conduit and/or ground-mounted equipment necessary for and intended for use in the deployment shall also be specified regardless of whether the additional facilities are to be constructed by the applicant or leased from an infrastructure provider.
(k) Such other information as the director, in his/her discretion, shall deem appropriate.
(Ord. No. 19-863, § 1, 1-2-19; Ord. No. 18-851, § 1, 6-5-18; Ord. No. 17-833, § 2, 4-4-17.)
4.22.040 Fee deposit.
The director shall establish a fee deposit based upon the nature of the facility. The fee deposit shall generally be set at $5,000 and may be increased or decreased at the discretion of the director based upon preliminary information provided by the applicant prior to or contemporaneous with the filing of the application. The fee deposit shall be supplemented from time to time when the actual administrative costs authorized for collection by the city from the applicant pursuant to RCW 35.21.860 have been exceeded. Failure to make or supplement a deposit within 10 business days of notification of the need to supplement shall suspend processing of any application and toll any period established for review by this chapter or state or federal law as an incomplete application. Any unexpended portion of the deposit shall be returned to the applicant when the application has been approved or denied.
(Ord. No. 17-833, § 2, 4-4-17.)
4.22.050 Completeness – Review and notification for franchise applications.
(1) Franchise applications – Rule of general applicability. The director or his/her designee shall review a franchise application for completeness and notify the applicant within 30 days of receipt of the application whether the application is complete; provided, however, that an applicant may consent to a different completeness review period. A service provider may resubmit an incomplete application within 90 days of notice by the director. Failure to resubmit an application in a timely manner shall be deemed a withdrawal of that application.
(2) Franchises for deployment of small wireless facilities. The completeness of an application for deployment of small wireless facilities and the calculation of all applicable time periods shall be determined in accord with the requirements of 47 CFR 1.6003(d). The director shall review an application for completeness and notify the applicant in writing within 10 days of submission whether the application is complete; provided, that an applicant may consent to a different completeness review period. The notice shall identify the missing documents or information.
(3) No application shall be deemed complete without the fee deposit set by FWRC 4.22.040.
(4) The applicant shall be notified in writing of the approval or denial of the application.
(Ord. No. 19-863, § 2, 1-2-19; Ord. No. 18-851, § 2, 6-5-18; Ord. No. 17-833, § 2, 4-4-17.)
4.22.055 Public comment.
The city shall provide notice of a complete application for a franchise on the city’s website with a link to the franchise application. The notice shall include an email contact and telephone number for the applicant to answer citizen inquiries.
This notice is for the public’s information and is neither a notice of hearings nor part of any land use appeal process.
(Ord. No. 19-863, § 3, 1-2-19; Ord. No. 18-851, § 3, 6-5-18.)
4.22.070 Written agreement – No construction until issued.
No authorization shall be deemed to have been approved or granted hereunder until the applicant and the city have executed a written right-of-way use agreement consistent with the city council’s authorization and no construction may begin without the issuance by the city of a use permit.
(Ord. No. 17-833, § 2, 4-4-17.)