Chapter 18.04
GENERAL PROVISIONS
Sections:
18.04.040 Occupation license required.
18.04.050 Right-of-way license required for telecommunications service.
18.04.060 Rules and regulations by the city.
18.04.070 Facilities lease required.
18.04.080 Construction permits required.
18.04.090 Effect of other laws.
18.04.100 Revocation of lease or license.
18.04.110 Transitional provisions.
18.04.010 Findings.
The city council of the city of Mount Vernon hereby finds:
A. That the city’s public rights-of-way and other city real property constitutes a public investment in valuable property, which has been acquired and maintained by the city over many years at taxpayer expense;
B. That such public property is critical to the travel of persons and the transport of goods in the business and social life of the community; is used by the city and other government agencies to provide services to protect public safety, critical utility services to its citizens, including electric, water and wastewater utility services; and is used by the city to provide telecommunications and other services to itself and other government agencies;
C. That such public property can be partially occupied by private companies and other entities for facilities used in the delivery, conveyance, and transmission of utility and public services rendered for profit, to the enhancement of the health, welfare, and general economic well-being of the city and its citizens;
D. That such public property is a unique resource so that proper management by the city is necessary, to maximize the efficiency and minimize the costs to the taxpayers of the foregoing uses and to minimize the inconvenience and other ill effects, including degradation, upon the public from the construction, emplacement, relocation, and maintenance of telecommunication facilities in the public rights-of-way;
E. That it is in the interest of the public to permit use of the public rights-of-way and to establish standards for use of the public rights-of-way for operators of telecommunications systems in a manner which:
1. Protects the public interests in the use of the limited physical capacity of the public rights-of-way;
2. Protects the public and the city from any harm resulting from such private use of public rights-of-way, and preserves and improves the aesthetics of the community;
3. Protects the city’s interests in using the public rights-of-way for the provision of services to the public, other governmental agencies and itself;
4. Protects and carries out the regulatory authority of the city and recovers administrative costs, in a manner consistent with federal and state law; and
5. Compensates the city for the fair and reasonable value of such property used, and for ongoing costs associated with the use of that property, insofar as possible. (Ord. 2959 § 1, 1999).
18.04.020 Purpose.
The purpose and intent of this title is to:
A. Establish guidelines and policies through which the city will permit and manage access to the limited physical capacity of the available public rights-of-way of the city for telecommunications purposes on a competitively neutral basis;
B. Assure that the city can continue to fairly and responsibly protect the public health, safety, and welfare;
C. Enable the city to discharge its public trust responsibilities consistent with rapidly evolving federal and state regulatory policies, industry competition, and technological development;
D. Establish a clear and nondiscriminatory local policy, local guidelines, standards, and time frames for use of the public rights-of-way by telecommunications providers;
E. Assure that all telecommunications systems and private telecommunications systems within the city comply with the ordinances, rules, and regulations of the city;
F. Assure that the city’s current and ongoing costs of granting and regulating private access to and use of the public rights-of-way are fully paid by those seeking access and using such public rights-of-way, and assure that the taxpayers secure fair and reasonable compensation, in a nondiscriminatory manner, for permitting private use of the public rights-of-way in a manner consistent with state and federal law;
G. Encourage economic development within the city while preserving aesthetic and other community values and preventing the proliferation of above-ground facilities;
H. Ensure the ability of the city to obtain sufficient information from persons subject to the provisions of this title to enable the city to make effective decisions regarding access to city rights-of-way and the effective management of activity in the rights-of-way; and
I. Conserve the limited physical capacity of the public rights-of-way held in public trust by the city. (Ord. 2959 § 1, 1999).
18.04.030 Definitions.
For the purpose of this title, the following words and phrases shall have the meanings given herein, unless the context of the sentence in which they are used shall clearly indicate otherwise. When not inconsistent with the context, words used in the present tense include the future tense; words in the plural number include the singular number; and words in the singular number include the plural number; and the masculine gender includes the feminine gender. Unless otherwise expressly stated, words not defined in this title shall be construed consistently with Title 47 of the United States Code, and with the constitution and statutory law of the state of Washington. References to governmental entities (whether persons or entities) refer to those entities or their successors in authority. If specific provisions of law referred to herein are renumbered, then the reference shall be read to refer to the renumbered provision. References to laws, ordinances or regulations shall be interpreted broadly to cover government actions, however denominated, and include laws, ordinances and regulations now in force or hereinafter enacted or amended.
“Applicant” means any person or entity that applies for any right-of-way license, franchise, lease, or other permit pursuant to this title.
“Application fee” means the charge specified in MVMC 18.08.020, and designed to recover the city’s costs in processing applications for any right-of-way license, facilities lease, or other permit pursuant to this title.
“Cable service” for the purpose of this title shall have the same meaning provided by the Cable Communications Policy Act of 1984, 47 U.S.C. Sections 521 et seq., as amended by the Cable Television Consumer Protection and Competition Act of 1992, as further amended by the Telecommunications Act of 1996, as further amended from time to time.
“Cable system” means a facility consisting of a set of closed transmission paths and associated signal generation, reception, and control equipment that is designed to provide cable service.
“City” means the city of Mount Vernon, a municipal corporation of the state of Washington, in its present incorporated form or in any later reorganized, consolidated, enlarged, or reincorporated form.
“City property” means and includes all real property, utility poles, conduits, and similar facilities owned by the city, other than public streets and utility easements as those terms are defined herein, and all property held in a proprietary capacity by the city, which are not subject to right-of-way licensing and franchising as provided in this title.
“Construction, operation or repair,” and also similar formulations of these terms, mean the named actions interpreted broadly, encompassing but not limited to, installation, extension, maintenance, replacement of components, relocation, undergrounding, grading, site preparation, adjusting, testing, make-ready, and excavation.
“Director” means the public works director of the city of Mount Vernon.
“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.
“Facilities lease” or “lease” means the legal authorization to possess, occupy, and use discrete city property for a specified term and under the specified conditions as agreed to between the city and the lessee.
“FCC” or “Federal Communications Commission” means the federal administrative agency, or lawful successor, authorized to regulate and oversee telecommunications, cable, and open video carriers, operators and providers on a national level.
“Fiber optics” means the technology of guiding and projecting light for use as a communications medium.
“Franchise” shall mean the initial authorization, or renewal thereof, granted by the city to a carrier or operator of a telecommunications system under this title giving the carrier or operator the nonexclusive right to occupy the space in, under, over or across public rights-of-way of the city to provide title service within a franchise area. Any franchise shall be issued in the form of an ordinance of the city, and must be accepted by the franchisee to become effective in the time and manner specified by the city, the Mount Vernon Municipal Code, or the franchise ordinance. Such franchise shall not include or be a substitute for:
A. Any other permit or authorization required for the privilege of transacting and carrying on a business within the city required by the ordinances and laws of the city;
B. Any permit, agreement or authorization required in connection with operations on or in public streets or property, including by way of example and not limitation, construction and street cut permits;
C. Any permits or agreements for occupying any other property of the city or private entities to which access is not specifically granted by the franchise including, without limitation, permits and agreements for placing devices on or in poles, conduits, other structures, or railroad easements, whether owned by the city, or a private entity; or
By way of example, and without limiting the foregoing, this title shall not be read to diminish or in any way affect the authority of the city to control and charge for the use of its real estate, fixtures or personal property. Therefore, any person who desires to use such property must obtain additional approvals, franchises, or agreements for that purpose, as may be required by the city.
“Franchise area” means the area of the city that a franchisee is authorized to serve by the terms of its franchise or by operation of law.
“Franchise territory” means the entire area of the city in its present incorporated form or in any later reorganized, consolidated, enlarged, or re-incorporated form, within which the city is authorized to grant franchises, right-of-way licenses or facilities leases.
“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.
“Grantee” as used generally herein shall mean the holder of a right-of-way license, or facilities lease.
“Gross revenues” for purposes of this title include all revenue, including funds used to pay franchise fees, from the provision of telecommunications services in the city via the telecommunications system; provided, however, gross revenues 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 grantee; provided further, that an grantee may deduct from its gross revenues those revenues received from a lessee or a like provider that holds a franchise or license under this title; provided, that lessee or like provider submits a certificate to the telecommunications grantee 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.
“license” or “right-of-way license” refers to the legal authorization to use the public rights-of-way to construct, maintain or repair a telecommunications facility or a telecommunications system. The term license or right-of-way license shall not mean or include:
A. Any other permit or authorization required for the privilege of transacting and carrying on a business within the city required by the ordinances and laws of the city;
B. Any permit, agreement, or authorization required in connection with operations on public streets or property, including by way of example and not limitation right-of-way construction permits as defined in the city’s street excavations ordinance, Chapter 12.16 MVMC;
C. Any permits or agreements for occupying any other property of the city or private entities to which access is not specifically granted by the right-of-way license including, without limitation, permits and agreements for placing devices on or in poles, conduits, other structures, or railroad easements, whether owned by the city or a private entity; or
D. The right to place devices in the right-of-way, such as pay telephones, for end-user use in originating and terminating transmissions, otherwise authorized, as by a facilities lease.
“Licensee” means the person, firm or corporation to whom or which a license, 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.
“Open video system” or “OVS” refers to a facility consisting of a set of transmission paths and associated signal generation, reception, and control equipment that is designed to provide title service, which includes video programming, which is provided to multiple subscribers within a community, and which the Federal Communications Commission or its successor has certified as compliant with Part 76 of its rules, 47 C.F.R., Part 76, as may be hereafter amended.
“Open video system service” means video programming by means of an open video system.
“Overhead facilities” refers to electric utility 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, but not the city.
“Private telecommunications system” means a telecommunications system controlled by a person or entity for the sole and exclusive use of such person, entity or affiliate thereof, including the provision of private shared telecommunications services within a user group located in discrete private premises in building complexes, campuses, or high rise buildings, by such party or entity, but not encompassing in any respect, a system offered for hire, sale, or resale to the general public.
“Public right-of-way” or “public way” means and includes the public streets and easements which, under city ordinances or applicable laws, the city has authority to grant franchises, licenses, or leases for use thereof, or has regulatory authority thereover, and as may be more specifically defined in the franchise, license, or lease granting any right to or use thereof. Public ways for the purpose of this title do not include buildings, parks, poles, conduits or similar facilities or property owned by or leased to the city, including, by way of example and not limitation, structures in the public Way such as utility poles, light poles and bridges.
“Telecommunications carrier” or “carrier” means every person that owns or controls plant, equipment or property within the city, used or to be used for the purpose of offering telecommunications service.
“Telecommunications facilities” means all of the plant, equipment, fixtures, appurtenances, antennas, and other facilities necessary or convenient to furnish and deliver telecommunications service, including, but not limited to poles with or 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 service.
“Telecommunications provider” or “provider” means every person owning, operating, or managing any facilities used to provide telecommunications service for hire, sale, or resale to the general public. The term includes the legal successor to any such person.
“Telecommunications service” means the transmission for hire of information in electronic or optical form, including, but not limited to, voice, video, or data. Telecommunications services include telephone service but does not include title service, open video system service or over-the-air broadcasts to the public‑at‑large from facilities licensed by the Federal Communications Commission or any successor thereto.
“Telecommunications system” means a tangible facility that is used to provide one or more telecommunications services, any portion of which occupies public rights-of-way. The term telecommunications system by way of example, and not limitation, includes wires, equipment cabinets, guys, conduit, radio transmitting towers, poles, other supporting structures, and associated and appurtenant facilities used to transmit telecommunications signals. The term telecommunications system includes all devices mounted on electric utility poles in the public rights-of-way through which telecommunications services are originated or terminated. A title system is not a telecommunications system to the extent that it provides only title service; an open video system is not a telecommunications system to the extent that it provides only video services.
“Transfer” means any transaction in which:
A. There is any change, acquisition, or transfer of working control of the franchisee or right-of-way license holder; or
B. The rights and/or obligations held by the franchisee or right-of-way license holder under the franchise or right-of-way license are transferred, sold, assigned, or leased, in whole or in part, to another party. It will be presumed that any transfer or cumulative transfer of voting interest of 20 percent or more is transfer of working control within the meaning of this paragraph.
“Underground facilities” means utility and telecommunications facilities located under the surface of the ground, excluding the underground foundations or supports for overhead facilities.
“Utility easement” means any easement owned by the city and acquired, established, dedicated or devoted for public utility purposes not inconsistent with telecommunications facilities, excluding easements not specifically allowing license, franchise or lease holders.
“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 the public rights-of-way of the city and used or to be used for the purpose of providing utility and telecommunications services.
“Working control” as used herein means the ability to affect management decisions. It will be presumed that voting interest of 20 percent or more is considered working control within the meaning of this title. (Ord. 2959 § 1, 1999).
18.04.040 Occupation license required.
Except as otherwise provided in this title, or except as specifically exempted by Chapter 5.48 MVMC, any person engaged in the business of telecommunications service of any kind originating or terminating in the city shall first obtain an occupation license from the city pursuant to Chapter 5.48 MVMC. (Ord. 2959 § 1, 1999).
18.04.050 Right-of-way license required for telecommunications service.
Except as otherwise provided herein, any person who occupies, or desires to occupy for the first time, any public right-of-way of the city for the purpose of providing telecommunications service shall first obtain a right-of-way license pursuant to the provisions of this title. The fact that a particular franchised or licensed facility may be used for multiple purposes does not obviate the need to obtain a franchise for other purposes. By way of illustration and not limitation, an operator of a title system must obtain a cable franchise and, should it intend to provide telecommunications services over the same facilities, must also obtain a right-of-way license. (Ord. 2959 § 1, 1999).
18.04.060 Rules and regulations by the city.
A. In addition to the inherent powers of the city to regulate and control any authorization, license, or lease it issues, the authority granted to it by the Cable Act and the Telecommunications Act of 1996, and those powers expressly reserved by the city, or agreed to and provided for in any authorization, or lease, the right and power is hereby reserved by the city to promulgate such additional regulations as it may find necessary in the exercise of its lawful powers giving due regard to the rights of grantees. Except as provided in this chapter, the foregoing does not allow for amendment by the city of material terms of any authorization, license, or lease it issues without the consent of the grantee.
B. The city reserves the right to delegate administrative functions, including lease administration to a designated agent, consistent with the provisions of this title.
C. The director may adopt such administrative rules as the director determines to be necessary and convenient in the proper administration of this title. (Ord. 2959 § 1, 1999).
18.04.070 Facilities lease required.
A. Any person who occupies or desires to locate telecommunications equipment on or in any city property, real or personal, including city-owned physical facilities, shall first obtain from the city a facilities lease pursuant to Chapter 18.06 MVMC.
B. The city council may, in its sole discretion, approve facilities leases for the location of telecommunications facilities and upon city property, on the terms and conditions as determined by the city council. Neither this section, nor any other provision of this title, shall be construed to create an entitlement or vested right in any person. (Ord. 2959 § 1, 1999).
18.04.080 Construction permits required.
Except as otherwise provided herein, the holder of a right-of-way license or facilities lease granted pursuant to this title shall obtain such other permits as may be required by the city, including, but not limited to, building permits, electrical permits, and right-of-way construction permits prior to commencing any construction operations within the city. No work, construction, development, excavation, or installation of any equipment or facilities for which a permit is required under Chapter 12.16 MVMC shall take place within the public rights-of-way or upon city property until such time as the right-of-way construction permit is issued, except as may be provided in the city’s administrative rules and procedures. (Ord. 2959 § 1, 1999).
18.04.090 Effect of other laws.
A. Nothing in this title shall be deemed to create an obligation upon any person for which the city is forbidden to require pursuant to federal, state, or other law.
B. No reference herein, or in any franchise or right-of-way license shall be deemed to be a representation or guarantee by the city that its interest or other right to control the use of such property is sufficient to permit its use for telecommunication purposes, and a franchise or right-of-way license shall be deemed to grant no more than those rights which the city may have the undisputed right and power to give. (Ord. 2959 § 1, 1999).
18.04.100 Revocation of lease or license.
The revocation of a right-of-way license or facilities lease for one particular service in and of itself will not affect the authority of a license holder or lessee to continue to occupy the rights-of-way to provide services for which it holds other licenses or leases. (Ord. 2959 § 1, 1999).
18.04.110 Transitional provisions.
A. Persons Operating without a Right-of-Way License. Any person operating any telecommunications facility which requires a right-of-way license under this title shall have 90 days from the effective date of the ordinance codified in this title to file the necessary applications for a right-of-way license under this title. Any person timely filing such an application shall not be subject to city remedies under Chapter 18.12 MVMC for failure to have such a right-of-way license as long as said application remains pending; provided, however, that nothing herein shall relieve any person of any liability for failure to obtain any right-of-way license, or other permit or approval required under other provisions of the Mount Vernon Municipal Code, and nothing herein shall prevent the city from requiring removal of any facilities installed in violation of the Mount Vernon Municipal Code.
B. Persons Holding Right-of-Way Licenses. Any person holding an outstanding right-of-way license from the city for a telecommunications system to provide specified services or for a private telecommunications system may continue to operate under the existing right-of-way license to the conclusion of its present term (but not any renewal or extension thereof) with respect to those activities expressly authorized by the right-of-way license; provided, however, that such license holder may elect at any time to apply for a superseding right-of-way license under this title and must seek additional right-of-way licenses to provide other services; and provided further, that such person shall be subject to the other provisions of this title to the extent permitted by law; provided further, that right-of-way licenses that are revocable at will may be revoked by the city, and the right-of-way use holder may be required to obtain a new right-of-way license under this title.
C. Persons Holding Leases for Property. Any lessee, under a lease from the city for facilities located on city property that is valid and in force on the effective date of this title, may continue to occupy such property to the conclusion of the term of the lease (but not any renewal or extension thereof), in accordance with the terms of such lease; provided, however, that such lessee may elect at any time to apply for a superseding lease, or right-of-way license under this title. (Ord. 2959 § 1, 1999).