Chapter 11.02
SPECIAL RULES APPLICABLE TO TELECOMMUNICATIONS FACILITIES AND TELECOMMUNICATIONS
SERVICE PROVIDERS
Sections:
Article I. Application for a Franchise
11.02.010 Contents of application for initial or renewal franchise.
11.02.030 Applications for transfer.
Article II. Compensation
11.02.060 Gross revenues defined.
Article III. Additional Franchise Requirements
11.02.080 Reservation of authority.
11.02.090 Provision of facilities and equipment.
Article I. Application for a Franchise
11.02.010 Contents of application for initial or renewal franchise.
In order to obtain an initial or renewal franchise, an operator of a telecommunications system must apply for a franchise. The application must contain the following information, and such information as the city may from time to time require:
A. Identity of the applicant; the persons who exercise working control over the applicant, and the persons who control those persons, to the ultimate parent.
B. A proposal for construction of a telecommunications facility, that includes at least the following:
1. A description of the services that are to be provided using the facility.
2. The location of proposed facility and facility design, including a description of the miles of plant to be installed, and a description of the size of equipment cabinets, shielding and electronics that will be installed along the plant route, the power sources that will be used and a description of the noise, exhaust and pollutants, if any, that will be generated by the operation of the same; provided, however, that, if some of the descriptive data is not available at the time of application, the franchise may be issued subject to conditions that the data be filed and approved by the city before construction begins and that the franchise will be deemed to be forfeited if the data is not supplied and approved; provided, further, that the foregoing proviso does not authorize the grant of a franchise where there is not sufficient information to appraise the impact of the applicant’s proposal; provided further, in the event that subsections (B)(2) and (3) of this section require information that is a business or trade secret and/or proprietary information and the operator wishes to protect the information against disclosure, then operator shall provide said information to city in a separate envelope marked “Proprietary Information: DO NOT DISCLOSE.” The city will exercise good faith efforts to protect the confidentiality of the business or trade secrets or proprietary information that is designated as such; provided further, that (a) in the event a public disclosure request is made for information marked as proprietary, and if the city attorney determines that said information may be subject to being disclosed; or (b) the city determines that the information should be disclosed in connection with its enforcement of any provision of this title, or in the exercise of its police or regulatory powers, then the city shall notify the operator of the operator’s opportunity to seek a protective order from a court with appropriate jurisdiction. In the event that a protective order is not obtained within 30 days or, if shorter, the time limitation set forth in state law, then city may disclose said information. The operator is obligated to reimburse and indemnify city for all costs, damages and attorney fees that may be awarded or assessed by the court for any actions the city took at the request of operator.
3. A map of the general route the facility will follow, a designation of the portions of the system that will be placed above ground and the portions that will be placed underground, and the construction techniques that the operator proposes to use in installing the system above ground and underground, a schedule for construction of the facility, describing when and where construction will begin, how it will proceed, and when it will be completed, and the expected effect on right-of-way usage, including information on the ability of the public rights-of-way to accommodate the proposed system, including, as appropriate given the system proposed, an estimate of the availability of space in conduits and an estimate of the cost of any necessary rearrangement of existing facilities; provided, however, that any proprietary information required under this subsection as well as the preceding subsection shall be subject to the nondisclosure procedure prescribed in the proviso of the preceding subsection.
4. A description, where appropriate, of how services will be converted from existing facilities to new facilities, and what will be done with existing facilities.
5. Identification of the area of the city to be served by the proposed system, including a description of the proposed franchise area’s boundaries.
C. Evidence satisfactory to the city that the applicant has the financial resources to complete the proposed project, and to construct, operate and maintain the proposed facility over the franchise term. It is not the intent of the city to require an applicant to prove that the services it proposed to offer will succeed in the marketplace.
D. Evidence satisfactory to the city that the applicant is technically qualified to construct, operate and maintain the proposed facility. At a minimum, the applicant must show that it has experience or resources to ensure that work is to be performed adequately, and can respond to emergencies during and after construction is complete.
E. Evidence satisfactory to the city that the applicant is legally qualified, which proof must include a demonstration that the applicant:
1. Has received, or is in a position to receive, necessary authorizations from state and federal authorities;
2. Has not engaged in conduct (fraud, racketeering, violation of antitrust laws, consumer protection laws, or similar laws) that allows city to conclude the applicant cannot be relied upon to comply with requirements of franchise, or provisions of this title; and
3. Is willing to accept a franchise, to pay required compensation and to abide by the provisions of applicable law, including those relating to the construction, operation or maintenance of its facilities; and has not entered into any agreement that would prevent it from doing so.
F. An affidavit or declaration of the applicant or authorized officer thereof certifying the truth and accuracy of the information in the application, and certifying that the application meets all requirements of applicable law.
G. An applicant may show that it would be inappropriate to deny it a franchise under subsection (E)(2) of this section by virtue of: the particular circumstances surrounding the acts or omissions at issue; the steps taken by the applicant to cure all harms flowing therefrom and to prevent their recurrence; and the lack of involvement of the applicant’s principals, or the remoteness of the acts or omissions from the operation of telecommunications facilities.
H. Additional Information Regarding Affiliates. To the extent that the applicant is in any respect relying on the financial or technical resources of another person, including another affiliate, the proofs required by subsections C through E of this section should be provided for that person. (Ord. 1402 § 1(11.02.1.1), 2001)
11.02.020 Presumptions.
An applicant will be presumed to have the requisite financial, technical, or legal qualifications if its application shows that such qualifications have been reviewed and approved by the Washington Utilities and Transportation Commission, or, if applicant is a holder of a franchise in the city for a cable system or open video system; provided, that notwithstanding this presumption, the city may require the applicant to provide and may consider information regarding applicant’s financial, technical, or legal qualifications as the city determines necessary to protect the public interest. An applicant that is leasing existing facilities from a franchised communications facility operator, where the applicant will have no responsibility for any activity that involves work in the public rights-of-way, may rely upon the franchisee’s technical qualifications, and will be presumed to have the necessary financial qualifications. (Ord. 1402 § 1(11.02.1.2), 2001)
11.02.030 Applications for transfer.
An application for a transfer of a franchise must contain the same information required by FMC 11.02.010, except that, if the transferor submitted an application under FMC 11.02.010, to the extent information provided by the transferor under FMC 11.02.010(B) remains accurate, the transferee may simply cross-reference the earlier application. (Ord. 1402 § 1(11.02.1.3), 2001)
11.02.040 City review.
The city may request such additional information as it finds necessary, and require such modifications to the system proposed as may be necessary in the exercise of the city’s authority over the use of its public rights-of-way for telecommunications systems. Once the information required by the city has been provided, the application shall be subject to review by the city and any approval shall be subject to the city’s determination that:
A. The applicant has the qualifications to construct, operate and repair the system proposed in conformity with applicable law.
B. The applicant will accept the modifications required by the city to its proposed system. This section does not authorize the city to exercise authority it does not otherwise have under applicable law.
C. The applicant will accept a franchise satisfactory to the city and comply with any conditions precedent to its effectiveness.
D. In the case of a transfer, any approval will also be subject to a determination that:
1. There will be no adverse effect on the public interest, or the city’s interest in the franchise;
2. Transferee will agree to be bound by all the conditions of the franchise and to assume all the obligations of its predecessor; and
3. Any outstanding compliance and compensation issues will be resolved or preserved to the satisfaction of the city.
E. An applicant shall not be issued a franchise if it files or has previously filed materially inaccurate or misleading information in a franchise application or intentionally withheld information that the applicant lawfully is required to provide. An application for a franchise area may be denied if the franchisee has no plans for constructing a system within the entire area for which the franchise is sought. (Ord. 1402 § 1(11.02.1.4), 2001)
Article II. Compensation
11.02.050 Rights-of-way fee.
Subject only to the exceptions set out in FMC 11.01.060, 11.01.100, and 11.01.130, every operator of a telecommunications facility must pay compensation to the city equal to five percent of gross revenues, or such other amount as may be provided in a franchise. (Ord. 1402 § 1(11.02.2.1), 2001)
11.02.060 Gross revenues defined.
Gross revenues, for purposes of this chapter, includes all revenue derived directly or indirectly by the operator, or derived directly or indirectly by their affiliates, subsidiaries, parent companies, and any person in whom the operator has a financial interest, or revenues received by the operator from a person with whom operator has a revenue-producing agreement, from the provision of telecommunications services via the telecommunications system, which provision shall be interpreted to include all services and ancillary equipment; provided, however, that this term shall not include taxes imposed directly upon any subscriber or user by the federal, state, county, or other governmental unit and required to be collected by the operator; provided further, that a franchisee may deduct from its gross revenues those revenues received from a lessee that holds a franchise or license under this title, if that lessee submits a certificate to the telecommunications operator stating that it has paid the fees it owes the city for the applicable reporting period. Copies of the certificate must be provided to the city. (Ord. 1402 § 1(11.02.2.2), 2001)
11.02.070 Public record.
The compensation paid by each provider for use of public rights-of-way shall be a matter of public record and available for public inspection. (Ord. 1402 § 1(11.02.2.3), 2001)
Article III. Additional Franchise Requirements
11.02.080 Reservation of authority.
In addition to satisfying the requirement of Chapter 11.01 FMC, every franchise shall specifically reserve the right of the city to the full extent of its jurisdiction or authority to require a franchisee to construct facilities or to make payments that may be required to comply with any universal service plan the city may lawfully adopt, and to comply with any lawful requirements to ensure continued quality of telecommunications services, safeguard the right of consumers, or otherwise protect the public safety and welfare. (Ord. 1402 § 1(11.02.3.1), 2001)
11.02.090 Provision of facilities and equipment.
The city may accept or require an operator of a telecommunications system to provide facilities or equipment for use by the city, the schools or any other governmental entity in the city as a condition of the license grant, except as prohibited by law, or may require license holders to share in the costs associated with provisions of such facilities and by other communications system operators. (Ord. 1402 § 1(11.02.3.2), 2001)
11.02.100 Annual reports.
No later than 90 days after the end of its fiscal year, all operators shall submit a written report that shall contain such information as may be required from time to time by the city, and at least the following, unless the city waives the requirement:
A. A summary of the previous year’s activities in the development of the system, including descriptions of services begun or discontinued, the number of subscribers gained or lost for each category of service;
B. A certified revenue report by the operator’s chief financial officer from the previous calendar year for the system;
C. An ownership report, indicating all persons who at the time of filing control or own an interest in the operator of 10 percent or more;
D. A list of officers and members of the board of directors of the franchisee and any affiliates directly involved in the operation or the maintenance of the system;
E. A complete report on its plant. This plant report shall state the physical miles of plant construction and plant in operation during the prior calendar year categorized as aerial and underground, identify any cases where subscribers contributed to plant extension, provide revisions to the telecommunication system maps filed with the city, and report the results of appropriate electronic measurements to show conformity with any FCC technical standards;
F. Once the information required by subsections A through E of this section has been filed, it need be refiled only if it changes. (Ord. 1402 § 1(11.02.3.3), 2001)