Chapter 12.20 COMMUNICATIONS – USE OF RIGHT-OF-WAY BY WIRELINE AND WIRELESS SERVICE PROVIDERS

B. Establish clear and nondiscriminatory local guidelines, standards, and time frames for the exercise of local authority with respect to the regulation of right-of-way use;

C. Encourage the provision of advanced and competitive telecommunications services on the widest possible basis to the businesses, institutions, and residents of the City;

D. Conserve the limited physical capacity of the public rights-of-way held in public trust by the City;

E. Ensure that the City’s current and ongoing costs of granting and regulating private accesses to and use of the public rights-of-way are fully paid by the persons seeking such access and causing such costs;

F. Ensure that all service providers providing facilities or services within the City comply with the ordinances, rules, and regulations of the City;

G. Ensure that the City can continue to fairly and responsibly protect the public health, safety, and welfare; and

H. Enable the City to discharge its public trust consistent with rapidly evolving federal and state regulatory policies, industry competition, and technological development. (Ord. 2743 § 1, 2019).

12.20.020 Definitions.

For the purpose of this chapter, the following terms, phrases, words, and abbreviations shall have the meanings given herein, unless otherwise expressly stated. Words not defined herein shall be given the meaning set forth in Title 47 of the United States Code, as amended, or in Chapter 19.137 MTMC. Words not defined therein shall have their common and ordinary meaning:

A. “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.

B. “Base station” means a structure or equipment at a fixed location that enables FCC-licensed or authorized communications between user equipment and a communications network. The term does not encompass a tower as defined herein or any equipment associated with a tower. “Base station” includes, without limitation:

1. Equipment associated with wireless communications services such as private, broadcast, and public safety services as well as unlicensed wireless services and fixed wireless services such as microwave backhaul.

2. 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 wireless networks).

3. 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 (B)(1) and (2) of this section 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.

C. “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, as hereafter amended.

D. “Cable operator” means a service provider providing or offering to provide cable service within the City as that term is defined in the Cable Acts.

E. “Cable service” shall have the same meaning as defined in the Cable Acts.

F. “City” means the City of Mountlake Terrace, county of Snohomish, state of Washington.

G. “City property” means any real property owned by the City, whether in fee or other ownership estate of interest.

H. “Collocation” means mounting or installing an antenna facility on a preexisting structure, and/or modifying a structure for the purpose of mounting or installing an antenna facility on that structure. When used in the context of an eligible facilities request, “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 communications purposes.

I. “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:

1. Collocation of new transmission equipment;

2. Removal of transmission equipment; or

3. Replacement of transmission equipment.

J. “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.

K. 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 and reviewed because it was not in a zoned area when it was built, but was lawfully constructed, is existing for the purposes of this definition.

L. “Excess capacity” means the volume or capacity in any existing or future duct, conduit, manhole, handhole or other utility facility with the right-of-way that is or will be available for use for additional telecommunications facilities.

M. “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.

N. “Franchise” or “franchise agreement” means a master permit granted for either a restricted or unrestricted franchise.

O. “Grantee” encompasses those franchisees granted certain rights and obligations as more fully described herein.

P. “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.

Q. “Overhead facilities” means utility facilities and telecommunications facilities located above the surface of the ground, including the underground supports and foundations for such facilities.

R. “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 chapter, a franchise, except for a cable television franchise, is a master permit. A master permit does not include cable television franchises.

S. “Person” includes corporations, companies, associations, joint stock companies, firms, partnerships, limited liability companies, other entities, and individuals.

T. “Public right-of-way” or “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. 912 and related provisions of federal law that are not open for motor vehicle use.

U. “Public ways” includes the surface of and space above and below any real property in City in which City has a regulatory interest, or interest as a trustee for the public, including but not limited to all public streets, highways, roads, alleys, sidewalks, tunnels, viaducts, bridges, skyways, or any other public place, area, or property under control of City, and any public or utility easements established, dedicated, or devoted for public utility purposes.

V. “Restricted franchise” or “restricted franchise agreement” means a master permit granted to a service provider who constructs, installs, operates, maintains, or otherwise locates telecommunications facilities in rights-of-way for the purpose of providing telecommunications service to persons and areas outside the City.

W. “Service provider” is defined in accord with RCW 35.99.010(6). “Service provider” shall include those infrastructure companies that provide telecommunications services or equipment to enable the deployment of personal wireless services.

X. “Small wireless facility” and “small wireless network” (formerly “small cell facility” are defined in accord with 47 CFR 1.6002(l).

Y. “Structure,” when used in Article VII of this chapter and/or in the context of small wireless facilities, means a pole, tower, base station, or other building, whether or not it has an existing antenna facility, that is used for the provision of personal wireless service (whether on its own or commingled with other types of service).

Z. Substantial Change. A modification “substantially changes” the physical dimensions of an eligible support structure if it meets any of the following criteria:

1. 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;

2. 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;

3. 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 that are more than 10 percent larger in height or overall volume than any other ground cabinets associated with the structure;

4. It entails any excavation or deployment outside the current site;

5. It would defeat the concealment elements of the eligible support structure; or

6. 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.

AA. “State” means the state of Washington.

BB. “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 WUTC, the pole owner and applicable electrical codes to allow its use by a service provider for a pole attachment.

CC. “Telecommunications facilities” means the plant, equipment and property including, but not limited to, cables, wires, conduits, ducts, pedestals, electronics, and other appurtenances used or to be used to transmit, receive, distribute, provide or offer wireline telecommunications service.

DD. “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.

EE. “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.

FF. “Underground facilities” means utility and telecommunications facilities located under the surface of the ground, excluding the underground foundations or supports for overhead facilities.

GG. “Unrestricted franchise” or “unrestricted franchise agreement” means a master permit granted to a service provider who constructs, installs, operates, maintains, or otherwise locates telecommunications facilities in rights-of-way for the purpose of providing telecommunications services to persons or areas in the City.

HH. “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 rights-of-way and used or to be used for the purpose of providing utility services or telecommunications services including telecommunications facilities.

II. “Wireline” means communications using conducted electromagnetic or optical emissions by, over, or within a physically tangible means of transmission, including without limitation wire or cable, and the apparatus used for such transmission. (Ord. 2743 § 1, 2019).

12.20.030 Registration and fees.

Except as otherwise provided herein, all service providers engaged in the business of the transmitting, supplying, or furnishing of telecommunications service originating, terminating, or existing with the City shall register with the City pursuant to this chapter and pay all the fees as provided herein or as may be set by resolution. (Ord. 2743 § 1, 2019).

12.20.040 Restricted and unrestricted franchises and fees.

Except as otherwise provided herein, any service provider who desires to construct, install, operate, maintain, or otherwise locate telecommunications facilities in rights-of-way for the purpose of providing telecommunications service to persons and areas outside the City, or to persons or areas in the City, shall first obtain a restricted or unrestricted franchise granting the use of such public rights-of-way from the City pursuant to this chapter and pay all the fees as provided herein or as may be set by resolution. (Ord. 2743 § 1, 2019).

12.20.050 Cable franchise and fees.

Except as otherwise provided herein, any service provider who desires to construct, install, operate, maintain, or locate telecommunications facilities in rights-of-way for the purpose of providing cable services shall first obtain a cable franchise from the City pursuant to this chapter and pay all the fees as provided herein or as may be set by resolution and in the cable franchise. (Ord. 2743 § 1, 2019).

12.20.060 Application to existing franchise ordinances and agreements.

This chapter shall have no effect on any existing franchise agreement until:

A. The expiration of said franchise agreement; and

B. 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. 2743 § 1, 2019).

12.20.070 Penalties.

Any person found violating, disobeying, omitting, neglecting, or refusing to comply with any of the provisions of this chapter shall be fined not less than $250.00 nor more than $750.00 for each offense. A separate and distinct offense shall be deemed committed each day on which a violation occurs or continues. (Ord. 2743 § 1, 2019).

12.20.080 Other remedies.

Nothing in this chapter shall be construed as limiting any judicial remedies that the City may have, at law or in equity, for enforcement of this chapter. (Ord. 2743 § 1, 2019).

Article II. Registration

12.20.090 Registration required.

All service providers having telecommunications facilities within the unincorporated City, or all service providers or providers that offer or provide telecommunications service originating, terminating or existing within the City, shall register with the City hereunder on forms provided by the City Engineer, or any other department as the City Manager may designate, which shall include the following:

A. The identity and legal status of the registrant, including any affiliates;

B. The name, address and telephone number of the officer, agent or employee responsible for the accuracy of the registration statement;

C. A description of registrant’s existing or proposed telecommunications facilities with the City;

D. A description of the telecommunications service that the registrant intends to offer or provide, or is currently offering or providing, to persons, firms, businesses, or institutions within the City;

E. Information sufficient for City to determine whether the registrant is subject to franchising under this chapter;

F. Information sufficient for City to determine whether the transmission, origination, or receipt of the telecommunications services provided or to be provided by the registrant constitutes an occupation or privilege subject to any municipal permit, license, or franchise fee;

G. Copies of the applicant’s registration filed with the WUTC pursuant to Chapter 480-121 WAC, and any tariff or price list or other authorization or related filings as may be required by the WUTC to provide telecommunications services. Alternatively, the applicant shall submit a statement detailing the reasons that registration and related filings with the WUTC are not required;

H. Information sufficient for City to determine that the applicant has applied for and received any utility right-of-way permit, operating license or other approvals required by the FCC to provide telecommunications services or facilities within the City; and

I. Such other information as the City may require. (Ord. 2743 § 1, 2019).

12.20.100 Purpose of registration.

The purposes of registration are to:

A. Provide the City with accurate and current information concerning the service provider and providers who offer or provide telecommunications services within the City, or who own or operate telecommunications facilities within the City;

B. Assist the City in enforcement of this chapter;

C. Assist the City in the collection and enforcement of any franchise fees, license fees, or charges that may be due the City; and

D. Assist the City in monitoring compliance with local, state, and federal laws. (Ord. 2743 § 1, 2019).

12.20.110 Exception of registration and franchise.

The following service providers and providers are exempted registration and franchise under this chapter:

A. A company or person which provides telecommunications services solely to itself, its affiliates or members between points in the same building, or between closely located buildings under common ownership or control; provided, however, the company or person obtains a right-of-way use permit if it intends to use or occupy the right-of-way, and, further, it complies with all other applicable requirements of this chapter. (Ord. 2743 § 1, 2019).

Article III. Franchise Agreement – Master Permit

12.20.120 Franchise – Master permit.

A franchise shall be required of any telecommunications provider who desires to make use of telecommunications facilities which occupy rights-of-way and to provide telecommunications services to any person or area in the City. (Ord. 2743 § 1, 2019).

12.20.130 Franchise application.

Any person that desires a franchise hereunder shall file an application in accordance with this chapter, which shall include the applicable portions of the required franchise application information. (Ord. 2743 § 1, 2019).

12.20.140 Determination by the City.

Within 120 days after receiving a complete application hereunder for a franchise for use by a utility other than one providing personal wireless service through a small wireless facility, the City Engineer, or other department as the City Manager may designate, shall make a recommendation to the City Council on whether to grant or deny the application in whole or in part. An application for a franchise and all permits necessary to and associated with the deployment of a small wireless facility shall be considered in a consolidated process whose completeness shall be determined in accord with 47 CFR 1.6003. A recommendation to deny an application may be based on the criteria contained in Chapter 19.137 MTMC for small wireless facilities proposed for location in the public rights-of-way. With respect to all franchise applications denial may be based on any of the following:

A. The financial and technical ability of the applicant;

B. The legal ability of the applicant to provide the service or use proposed for franchise authorization;

C. The capacity of the rights-of-way to accommodate the applicant’s facilities;

D. The capacity of the rights-of-way to accommodate additional utility and telecommunications facilities if the application is granted;

E. The damage or disruption, if any, of public or private facilities, improvements, service, travel or landscaping if the application is granted, giving consideration to an applicant’s willingness and ability to mitigate and/or repair same;

F. The public interest in minimizing the cost and disruption of construction with the rights-of-way;

G. The service that the applicant will provide to the region;

H. The effect, if any, on general public health, safety and welfare in City’s sole opinion if the application is granted;

I. The availability of alternate routes or locations for the proposed facilities;

J. Applicable federal, state and local laws, regulations, rules and policies;

K. Such other factors as may demonstrate that the grant to use the rights-of-way will serve the community interest. (Ord. 2743 § 1, 2019).

12.20.150 Franchise agreement – Master permit.

No franchise shall be granted hereunder unless the applicant and the City have executed a written agreement setting forth the particular terms and provisions under which the franchise to occupy and use rights-of-way will be granted and said agreement has been recorded in accordance with RCW 36.55.080. All franchises granted pursuant to this article shall contain substantially similar terms and conditions, which, taken as a whole and considering relevant characteristics of the applicants, do not provide more or less favorable terms and conditions than those required of other franchisees. (Ord. 2743 § 1, 2019).

12.20.160 Nonexclusive grant.

No franchise granted hereunder shall confer any exclusive right, privilege or franchise to occupy or use the rights-of-way for delivery of telecommunications services or any other purposes. (Ord. 2743 § 1, 2019).

12.20.170 Rights granted.

A. No franchise granted hereunder shall convey any right, title or interest in the rights-of-way but shall be deemed a franchise only to use and occupy the rights-of-way for the limited purposes and term stated in the grant.

B. No franchise granted hereunder shall authorize or excuse a franchisee from securing such further easements, leases, permits or other approvals as may be required to lawfully occupy and use rights-of-way excess capacity in an underground facility or surplus space in an overhead facility. Franchisee shall obtain the written approval of the facility or structure owner, if the franchisee does not own it, prior to attaching to or otherwise using a facility or structure in the right-of-way.

C. No franchise granted hereunder shall be construed as any warranty of title. (Ord. 2743 § 1, 2019).

12.20.180 Term of grant.

Unless otherwise specified in a franchise or unless otherwise renewed, a franchise granted hereunder shall be valid for a term of not more than 10 years. (Ord. 2743 § 1, 2019).

12.20.190 Franchise territory – Route.

A franchise granted hereunder shall be limited to a grant of use of specific right-of-way and defined portions thereof and/or a specific geographic area of the City to be served by the franchisee, and the specific rights-of-way necessary to serve such area. (Ord. 2743 § 1, 2019).

12.20.200 Location of facilities.

Unless otherwise specified in a franchise, all facilities shall be constructed, installed and located in accordance with the following terms and conditions:

A. Telecommunications facilities shall be installed within an existing underground duct or conduit whenever excess capacity exists within such utility facility, unless such location is not feasible due to the technology employed in the facility.

B. A franchisee with written authorization to install overhead facilities shall install its telecommunications facilities on pole attachments to existing or replacement utility poles only, and then only if surplus space is available; provided, however, that small wireless facilities may be installed on any structure.

C. Whenever any existing telephone facilities, electric utilities, cable facilities or telecommunications facilities are located underground within rights-of-way, a franchisee with written authorization to occupy the same rights-of-way must also locate its telecommunications facilities underground to the extent technologically feasible.

D. Whenever any new or existing telephone facilities, electric utilities, cable facilities or telecommunications facilities are located or relocated underground within rights-of-way, a franchisee shall concurrently relocate its facilities underground if technologically feasible. It is the responsibility of the franchisee to obtain written authorization from the owner of the facility.

E. If requested, franchisee shall provide the City with additional duct or conduit and related structures necessary to access the conduit; provided, that:

1. The City enters into a contract with the franchisee consistent with RCW 80.36.150. The contract rates to be charged should recover the incremental costs of the franchisee. 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 franchisee. The franchisee shall state both contract rates in the contract. The City shall inform the franchisee 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.

2. Except as otherwise agreed by the franchisee and the City, the City shall agree that the requested additional duct or conduit space and related access structures will not be used by the City to provide telecommunications or cable television service for hire, sale, or resale to the general public.

3. The City shall not require that the additional duct or conduit space be connected to the access structures and vaults of the franchisee.

4. The value of the additional duct or conduit requested by the City shall not be considered a public works construction contract.

5. This subsection shall not affect the provision of an institutional network by a cable television provider under federal law. (Ord. 2743 § 1, 2019).

12.20.210 Utility right-of-way permits.

All franchisees are required to obtain utility right-of-way permits and pay all fees for telecommunications facilities as required by City of Mountlake Terrace ordinances and/or resolutions. Such permits are use permits within the meaning of RCW 35.99.010(8) and shall be processed in a consolidated permit, to the full extent compliant with state and federal law, within the time frames established as presumptively reasonable periods of time for such review by 47 CFR 1.6003. (Ord. 2743 § 1, 2019).

12.20.220 Nondiscrimination.

A franchisee shall make its telecommunications services available to any customer within its franchise area who shall request such service, without discrimination as to the terms, conditions, rates or charges for the franchisee’s services; provided, however, that nothing in this chapter shall prohibit a franchisee from making any reasonable classifications among differently situated customers. (Ord. 2743 § 1, 2019).

12.20.230 Amendment of franchise agreement.

A. A new franchise application and grant shall be required of any service provider that desires to extend its franchise territory or to locate its telecommunications facilities in rights-of-way which are not included in a franchise previously granted hereunder.

B. A new franchise application and grant shall be required of any telecommunications provider that desires to add to or modify the telecommunications services provided pursuant to a franchise previously granted.

C. If ordered by the City to locate or relocate its telecommunications facilities in rights-of-way not included in a previously granted franchise, the City shall grant a franchise amendment without further application. (Ord. 2743 § 1, 2019).

12.20.240 Renewal applications.

A franchisee that desires to renew its franchise hereunder shall, not more than 180 days nor less than 90 days before expiration of the current franchise, file an application with the City for renewal of its franchise which shall include the following information:

A. The applicable information required pursuant to the franchise.

B. Any other information required by the City. (Ord. 2743 § 1, 2019).

12.20.250 Renewal determinations.

Within 120 days after receiving a complete application hereunder, the City Engineer, or other department as the City Manager may designate, shall make a recommendation to the City Council on whether the City should grant or deny the renewal application in whole or in part. If the renewal recommendation is to deny, the recommendation shall include the reasons for nonrenewal. The standards enumerated in MTMC 12.20.140 shall apply when determining to grant or deny the application, plus a determination of the applicant’s compliance with the requirements of this chapter and the franchise agreement. (Ord. 2743 § 1, 2019).

12.20.260 Obligation to cure as a condition of renewal.

No franchise shall be renewed until any ongoing violations or defaults in the franchisee’s obligations under the franchise, or the requirements of this chapter, and all applicable laws, statutes, codes, ordinances, rules and regulations have been cured, or a plan detailing the corrective action to be taken by the franchisee has been approved by the City. (Ord. 2743 § 1, 2019).

Article IV. Cable Franchise

12.20.270 Grant of cable franchise.

The City may grant one or more cable franchises containing such provisions as are reasonably necessary to protect the public interest, and each such cable franchise shall be awarded in accordance with and subject to the provisions of this chapter. This chapter may be amended from time to time, and in no event shall this chapter be considered a contract between the City and a cable franchisee such that the City would be prohibited from amending any provision hereof; provided, no such amendment shall in any way impair any contract right or increase obligations of a cable franchisee under an outstanding and effective cable franchise except in the lawful exercise of the City’s police power. (Ord. 2743 § 1, 2019).

12.20.280 Cable franchise required.

No person may construct, operate or maintain a cable system or provide cable service over a cable system within the City without a cable franchise granted by the City authorizing such activity. No person may be granted a cable franchise without having entered into a cable franchise agreement with the City pursuant to this chapter. For the purpose of this provision, the operation of part or all of a cable system within the City means the use or occupancy of rights-of-way by facilities used to provide cable service. Telecommunications facilities used to provide telephone service which are also used to provide cable service shall be subject to this chapter and shall also require a cable franchise. Use of such facilities to provide services similar to cable service, such as open video service, shall be subject to this chapter to the extent provided by law. A system shall not be deemed as operating within the City, even though service is offered or rendered to one or more subscribers within the City, if no rights-of-way by facilities used to provide cable service are used or occupied. All cable franchises granted pursuant to this article shall contain substantially similar terms and conditions, which, taken as a whole and considering relevant characteristics of the applicants, do not provide more or less favorable terms and conditions than those required of other cable franchisees. (Ord. 2743 § 1, 2019).

12.20.290 Length of cable franchise.

Unless otherwise specified in a cable franchise, or unless otherwise renewed, no cable franchise shall be granted for a period of more than 10 years. (Ord. 2743 § 1, 2019).

12.20.300 Cable franchise characteristics.

A. A cable franchise authorizes use of rights-of-way for installing, operating and maintaining cables, wires, lines, optical fiber, underground conduits and other devices necessary and appurtenant to the operation of a cable system to provide cable services within the City, but does not expressly or implicitly authorize a cable franchisee to provide service to, or install a cable system on, private property without owner consent, or to use publicly or privately owned poles, ducts or conduits without a separate agreement with the owners.

B. A “cable franchise” shall not mean or include any exclusive right or authorization for the privilege of transacting and carrying on a business within the City as generally required by the ordinances and laws of the City. A cable franchise shall not confer any authority to provide telecommunications services or any other communications services besides cable services. A cable franchise shall not confer any implicit rights other than those mandated by federal, state and local law.

C. Once a cable franchise has been accepted and executed by the City and a cable franchisee, such cable franchise shall constitute a valid and enforceable agreement between the cable franchisee and the City, and the terms, conditions and provisions of such franchise, subject to this chapter and all other duly enacted and applicable laws and regulations, shall define the rights and obligations of the cable franchisee and the City relating to the cable franchise.

D. All privileges prescribed by a cable franchise shall be subordinate to any prior lawful occupancy of the rights-of-way and the City reserves the right to reasonably designate where a cable franchisee’s facilities are to be placed within the rights-of-way through its generally applicable permit procedures.

E. A cable franchise shall be a privilege that is in the public trust and personal to the original cable franchisee. No cable franchise transfer shall occur without the prior written consent of the City upon application made by the cable franchisee pursuant to this chapter and the cable franchise, which consent shall not be unreasonably withheld, and any purported cable franchise transfer made without application and prior written consent shall be void and shall be cause for the City to revoke the cable franchise. (Ord. 2743 § 1, 2019).

12.20.310 Cable franchisee subject to other laws, police powers.

A. A cable franchisee shall at all times be subject to and shall comply with all applicable federal, state and local laws and regulations, including this chapter. A cable franchisee shall at all times be subject to all lawful exercise of the police power of the City including, but not limited to, all rights the City may have under the Cable Acts and all powers regarding zoning, supervision of construction, control of rights-of-way and consumer protection.

B. The City shall have full authority to regulate cable systems, cable franchisees and cable franchises as may now or hereafter be lawfully permissible. (Ord. 2743 § 1, 2019).

12.20.320 Interpretation of cable franchise terms.

A. In the event of a conflict between this chapter and a cable franchise, the provisions of this chapter control except where the conflict arises from the lawful exercise of the City’s police power.

B. The provisions of this chapter and a cable franchise will be liberally construed in accordance with generally accepted rules of construction to promote the public interest. (Ord. 2743 § 1, 2019).

12.20.330 Operation of a cable system without a cable franchise.

Any person who occupies rights-of-way for the purpose of operating or constructing a cable system or provides cable service over a cable system and who does not hold a valid cable franchise from the City shall be subject to all requirements of this chapter. In its discretion, the City at any time may by ordinance require such person to enter into a cable franchise within 30 days of receipt of a written notice to such person from the City that a cable franchise is required; require such person to remove its property and restore the affected area to a condition satisfactory to the City; direct City personnel to remove the property and restore the affected area to a condition satisfactory to the City and charge the person the costs therefor, including by placing a lien on the person’s property; or take any other action it is entitled to take under applicable law. In no event shall a cable franchise be created unless it is issued by the City pursuant to this chapter and subject to a written cable franchise. (Ord. 2743 § 1, 2019).

12.20.340 Acts at cable franchisee’s expense.

Any act that a cable franchisee is or may be required to perform under this chapter, a cable franchise or applicable law shall be performed at the cable franchisee’s expense. (Ord. 2743 § 1, 2019).

12.20.350 Eminent domain.

Nothing herein shall be deemed or construed to impair or affect, in any way or to any extent, the City’s power of eminent domain. (Ord. 2743 § 1, 2019).

12.20.360 Exclusive contracts and anti-competitive acts prohibited.

A. No cable franchisee or other multichannel video programming distributor shall enter into or enforce an exclusive contract for the provision of cable service or other multichannel video programming with any person or demand the exclusive right to serve a person or location, as a condition of extending service to that or any other person or location.

B. No cable franchisee or other multichannel video programming distributor shall engage in acts that have the purpose or effect of limiting competition for the provision of cable services or services similar to cable service in the City. (Ord. 2743 § 1, 2019).

12.20.370 Cable franchise fees.

The cable franchisee shall be subject to the cable franchise fees, payments and costs provided in their cable franchise and as may be set by resolution. (Ord. 2743 § 1, 2019).

Article V. Conditions of Grant of Franchise or Cable Franchise

12.20.380 General duties.

A. All grantees, before commencing any construction in the rights-of-way, shall comply with all requirements of this chapter, except to the extent that the City and the grantee agree to different terms in a master permit/franchise agreement.

B. All grantees shall provide written confirmation sufficient for customary land survey and land title insurance purposes concerning the location of its facilities in rights-of-way and disclaiming any interest in rights-of-way where it has no franchise to construct or operate its facilities. (Ord. 2743 § 1, 2019).

12.20.390 Interference with the rights-of-way.

No grantee may locate or maintain its telecommunications facilities so as to unreasonably interfere with the use of the rights-of-way by the City, by the general public or other persons, or other persons authorized to use or be present in or upon the rights-of-way. All such facilities shall be moved by and at the expense of the grantee, temporarily or permanently, as determined by the City. (Ord. 2743 § 1, 2019).

12.20.400 Damage to property.

No grantee or any person acting on a grantee’s behalf shall take any action or permit any action to be done which may impair or damage any rights-of-way, including specifically City property, real or personal, or public ways or other property located in, on or adjacent thereto except in accordance with this chapter. (Ord. 2743 § 1, 2019).

12.20.410 Notice of work.

Unless otherwise provided in a franchise agreement, no grantee, or any person acting on the grantee’s behalf, shall commence any nonemergency work in or about rights-of-way. Any private property owner whose property will be affected by a grantee’s work shall be afforded 10 working days’ advance written notice of such work. (Ord. 2743 § 1, 2019).

12.20.420 Repair and emergency work.

In the event of an emergency or an emergency repair necessary to protect the public, restore service or mitigate further damage to the system, a grantee may commence such repair and emergency response work as required under the circumstances; provided, the grantee shall notify the City Engineer, or other department as the City Manager may designate, as promptly as possible, before such repair or emergency work or as soon thereafter as possible if advance notice is not practicable. (Ord. 2743 § 1, 2019).

12.20.430 Maintenance of facilities.

Each grantee shall maintain its facilities in good and safe condition and in a manner that complies with all applicable federal, state and local requirements. (Ord. 2743 § 1, 2019).

12.20.440 Relocation or removal of facilities.

Within 30 days following written notice from the City, a grantee shall, at its own expense, temporarily or permanently remove, relocate, change or alter the position of any telecommunications facilities within the rights-of-way whenever the City Engineer, or other department as the City Manager may designate, shall have determined that such removal, relocation, change or alteration is reasonably necessary for:

A. The construction, repair, maintenance or installation of any City or other public improvement in or upon the rights-of-way;

B. The operations of the City or other governmental entity in or upon the rights-of-way;

C. The vacation of a street or the release of a utility easement. (Ord. 2743 § 1, 2019).

12.20.450 Removal of unauthorized facilities.

Within 30 days following written notice from the City Engineer, or other department as the City Manager may designate, any grantee, service provider, or other person that owns, controls or maintains any unauthorized telecommunications system, facility or related appurtenances within the rights-of-way shall, at its own expense, remove such facilities or appurtenances from the rights-of-way. If such grantee fails to remove such facilities or appurtenances, the City may cause the removal and charge the grantee for the costs incurred. A telecommunications system or facility is unauthorized and subject to removal in the following circumstances:

A. Upon expiration or termination of the grantee’s franchise;

B. Upon abandonment of a facility within the rights-of-way;

C. If the system or facility was constructed or installed without the prior grant of a franchise;

D. If the system or facility was constructed or installed without the prior issuance of a required utility right-of-way;

E. If the system or facility was constructed or installed at a location not permitted by the grantee’s franchise;

F. Any such other reasonable circumstances deemed necessary by the City Engineer, or other department as the City Manager may designate. (Ord. 2743 § 1, 2019).

12.20.460 Failure to relocate.

If a grantee is required to relocate, change or alter the telecommunications facilities constructed, operated and/or maintained hereunder and fails to do so, the City may cause such to occur. (Ord. 2743 § 1, 2019).

12.20.470 Emergency removal or relocation of facilities.

The City retains the right and privilege to cut or move any telecommunications facilities located within the rights-of-way as the City may determine to be necessary, appropriate or useful in response to any public health or safety emergency. (Ord. 2743 § 1, 2019).

12.20.480 Damage to grantee’s facilities.

Unless directly and proximately caused by the willful, intentional or malicious acts of the City, the City shall not be liable for any damage to or loss of any telecommunications facility within rights-of-way as a result of or in connection with any public works, public improvements, construction, excavation, grading, filling, or work of any kind in the rights-of-way by or on behalf of the City. (Ord. 2743 § 1, 2019).

12.20.490 Restoration of rights-of-way or other property.

Restoration shall comply with the requirements outlined in MTMC 12.20.400. Additionally:

A. When a grantee, or any person acting on its behalf, does any work in or affecting any rights-of-way, or any other property, it shall, at its own expense, promptly remove any obstructions therefrom and restore such ways or property to the same condition which existed before the work was undertaken.

B. If weather or other conditions do not permit the complete restoration required hereunder, the grantee shall temporarily restore the affected rights-of-way or other property. Such temporary restoration shall be at the grantee’s sole expense and the grantee shall promptly undertake and complete the required permanent restoration when the weather or other conditions no longer prevent such permanent restoration.

C. A grantee or other person acting on its behalf shall use suitable barricades, flags, flagmen, lights, flares and other measures as required for the safety of all members of the general public and to prevent injury or damage to any person, vehicle or property by reason of such work in or affecting rights-of-way or any other property. (Ord. 2743 § 1, 2019).

12.20.500 Facilities maps.

Each grantee shall provide the City with an accurate as-built map or maps certifying the location of all telecommunications facilities within the City and particularly within rights-of-way. Each grantee shall provide updated as-built maps within 30 days upon request. (Ord. 2743 § 1, 2019).

12.20.510 Duty to provide information.

Within 10 days of a written request from the City Engineer, or other department as the City Manager may designate, each grantee shall furnish the City Engineer, or other department as the City Manager may designate, with information sufficient to demonstrate that:

A. The grantee has complied with all requirements of this chapter;

B. All fees due the City in connection with the telecommunications services and facilities provided by the grantee have been properly collected and paid by the grantee;

C. All books, records, maps and other documents maintained by the grantee with respect to its facilities within rights-of-way shall be made available for inspection by the City Engineer, or other department as the City Manager may designate, at reasonable times and intervals. (Ord. 2743 § 1, 2019).

12.20.520 Leased capacity.

Subject to the provisions of this chapter, a grantee shall have the right to offer or provide capacity or bandwidth to another telecommunications provider, with prior City approval; provided, that:

A. The grantee shall furnish the City in advance with a copy of any such proposed lease or agreement.

B. The proposed lessee or person shall comply with all of the requirements of this chapter. (Ord. 2743 § 1, 2019).

12.20.530 Grantee insurance.

Unless otherwise provided, each grantee shall, as a condition of the grant, secure and maintain the following liability insurance policies insuring both the grantee and the City, and its elected and appointed officers, officials, agents, representatives and employees as additional insureds:

A. Comprehensive general liability insurance.

B. Worker’s compensation within statutory limits and employer’s liability insurance.

C. Comprehensive insurance for premises operations, explosions and collapse hazard, underground hazard and products completed hazard policies.

D. The liability insurance policies required by this section shall be maintained at all times by the grantee. Each such insurance policy shall contain the following endorsement:

It is hereby understood and agreed that this policy may not be canceled nor the intention not to renew be stated until 90 days after receipt by the City, by registered mail, of a written notice addressed to the City Manager of such intent to cancel or not to renew.

E. Within 60 days after receipt by the City of said notice, and in no event later than 30 days prior to said cancellation, the grantee shall obtain and furnish to the City replacement insurance policies meeting the requirements of this chapter.

F. Grantee may self-insure, or keep in force a self-insurance retention plus insurance, for any or all of the above coverage. Grantee will maintain on file with the City proof of self-insurance acceptable to the City, certifying the coverage required above. (Ord. 2743 § 1, 2019).

12.20.540 General indemnification.

In addition to and distinct from the insurance requirements of this chapter, each grantee hereby agrees to defend, indemnify and hold the City and its officers, officials, employees, agents and representatives harmless from and against any and all damages, losses and expenses, including reasonable attorneys’ fees and costs of suit or defense arising out of, resulting from or alleged to arise out of or result from the acts, omissions, failure to act or misconduct of the grantee or its affiliates, officers, employees, agents, contractors or subcontractors in the construction, operation, maintenance, repair or removal of its telecommunications facilities, and in providing or offering telecommunications services over the facilities or network, whether such acts or omissions are authorized, allowed or prohibited by this chapter or by a franchise agreement made or entered into pursuant to this chapter. (Ord. 2743 § 1, 2019).

12.20.550 Performance and construction surety.

Before a franchise granted pursuant to this chapter is effective, and as necessary thereafter, the grantee shall provide and deposit such monies, bonds, letters of credit or other instruments in form and substance acceptable to the City as may be required by the City of Mountlake Terrace, or by an applicable franchise or other applicable code, ordinance, resolution or rules and regulations of the City. (Ord. 2743 § 1, 2019).

12.20.560 Security fund.

The City may require at its discretion that each grantee shall establish a permanent security fund with the City by depositing an amount not to exceed $100,000 with the City in cash, an unconditional letter of credit, or other instrument acceptable to the City, which fund shall be maintained at the sole expense of the grantee so long as any of the grantee’s telecommunications facilities are located within rights-of-way. This security fund shall be separate and distinct from any other bond or deposit required.

A. The fund shall serve as security for the full and complete performance of the grantee’s obligations under this chapter, including any costs, expenses, damages or loss the City pays or incurs because of any failure attributable to the grantee to comply with the codes, ordinances, resolutions, rules, regulations, or permits of the City.

B. Before any sums are withdrawn from the security fund, the City Engineer, or other department as the City Manager may designate, shall give written notices to the grantee:

1. Describing the act, default or failure to be remedied, or the damages, costs or expenses which the City has incurred by reason of the grantee’s act or default;

2. Providing a reasonable opportunity for the grantee to first remedy the existing or ongoing default or failure, if applicable;

3. Providing a reasonable opportunity for the grantee to pay any monies due the City before the City withdraws the amount thereof from the security fund, if applicable; and

4. Providing the grantee will be given an opportunity to review the act, default or failure described in the notice with the City Engineer, or other department as the City Manager may designate.

C. The grantee shall replenish the security fund within 14 days after written notice from the City Engineer, or other department as the City Manager may designate, that there is a deficiency in the amount of the fund.

D. Upon conclusion of the franchise agreement and removal of all of the grantee’s facilities from the right-of-way, the City shall refund the security fund balance within 30 days of receipt of notice of removal of the grantee’s facilities. (Ord. 2743 § 1, 2019).

12.20.570 Construction and completion bond.

Unless otherwise provided in a franchise, a bond written by a surety acceptable to the City equal to at least 100 percent of the estimated cost of constructing the grantee’s telecommunications facilities within rights-of-way shall be deposited before construction is commenced.

A. The construction bond shall remain in force until 60 days after substantial completion of the work, as determined by the City Engineer, or other department as the City Manager may designate, including restoration of all rights-of-way and other property affected by the construction.

B. The construction bond shall guarantee, to the satisfaction of the City:

1. Timely completion of construction;

2. Construction in compliance with applicable plans, permits, technical codes and standards;

3. Proper location of the facilities as specified by the City;

4. Restoration of the rights-of-way and any other property affected by the construction;

5. The submission of as-built drawings after completion of the work which is hereby specifically required;

6. Timely payment and satisfaction of all claims, demands or liens for labor, material or services provided in connection with the work. (Ord. 2743 § 1, 2019).

12.20.580 Coordination of construction activities.

All grantees are required to cooperate with the City and with each other.

A. Each grantee shall meet with the City, other grantees and users of the rights-of-way annually or as determined by the City to schedule and coordinate construction in rights-of-way.

B. All construction locations, activities, and schedules shall be coordinated, as ordered by the City Engineer, or other department as the City Manager may designate, to minimize public inconvenience, disruption or damages. (Ord. 2743 § 1, 2019).

12.20.590 Assignments or transfers of grant of franchise.

Ownership or control of a telecommunications system or franchise or any part of transmission capacity may not directly or indirectly be transferred, assigned or disposed of by sale, lease, merger, consolidation, or other act of the grantee, by operation of law or otherwise, nor may there be a transfer of working control (which includes not only actual control, but also the ability to affect or influence decisions) without the prior written consent of the City, which consent shall not be unreasonably withheld or delayed, as expressed by ordinance and then on such conditions as may be prescribed therein and:

A. No grant shall be assigned or transferred in any manner within 12 months after the initial grant of the franchise, unless otherwise provided by law.

B. Absent extraordinary and unforeseeable circumstances, no grant, system or integral part of a system shall be assigned or transferred before construction of the telecommunications system has been completed.

C. The grantee and the proposed assignee or transferee of the grant or system shall provide and certify the following information to the City Engineer, or other department as the City Manager may designate:

1. Complete information setting forth the nature, terms and conditions of the proposed transfer or assignment;

2. All information required of a franchise applicant pursuant to this chapter with respect to the proposed transferee or assignee;

3. All information required by federal, state and local law or regulation (i.e., FCC Form 394);

4. Any other information reasonably required by the City Engineer, or other department as the City Manager may designate.

D. No transfer shall be approved unless the assignee or transferee has the legal, technical, financial, and other qualifications in the City’s sole discretion to own, hold and operate the telecommunications system pursuant to this chapter.

E. The grantee shall reimburse the City for all direct and indirect fees, costs and expenses incurred by the City in considering a request to transfer ownership in or assign a franchise.

F. Any transfer of ownership in or assignment of a franchise, system or integral part of a system without prior approval of the City under this chapter shall be void and is cause for revocation of the franchise.

G. Upon receipt of all information required herein, and any other information required by the City, the City shall have 120 days to review and approve or deny the requested assignment or transfer, unless such period is extended by agreement of the City and grantee. (Ord. 2743 § 1, 2019).

12.20.600 Transactions affecting control of grant of franchise.

Any transaction which results in any change of the ownership or in any manner the working control of the grantee, of the ownership or working control of a franchise, of the ownership or working control of affiliated entities having ownership or working control of the grantee or of a telecommunications system, or of control of the capacity or bandwidth or any part of the transmission capacity of the grantee’s telecommunications system, facilities or any parts thereof, all defined as five percent or more ownership or control, shall be considered an assignment or transfer requiring City approval hereunder. Transactions between affiliated entities are not exempt from City approval. (Ord. 2743 § 1, 2019).

12.20.610 Revocation or termination of grant of franchise.

A franchise granted by the City to use or occupy rights-of-way may be revoked for any one or more of the following reasons:

A. Construction or operation at an unauthorized location;

B. Unauthorized transfer of control of the grantee;

C. Unauthorized assignment of a franchise;

D. Unauthorized sale, assignment or transfer of the grantee’s franchise assets or an interest therein;

E. Misrepresentation or lack of candor by or on behalf of a grantee in any application to the City;

F. Abandonment of telecommunications facilities in the rights-of-way;

G. Failure to relocate or remove facilities as required in this chapter;

H. Failure to pay taxes, compensation, fees or costs when and as due the City;

I. Insolvency or bankruptcy of the grantee;

J. Violation of a material provision of this chapter;

K. Violation of a material term of a franchise. (Ord. 2743 § 1, 2019).

12.20.620 Notice and duty to cure.

In the event that the City Engineer, or other department as the City Manager may designate, believes that grounds exist for revocation of a franchise, the grantee shall be given written notice of the apparent violation or noncompliance, be provided a short and concise statement of the nature and general facts of the violation or noncompliance, and be given a reasonable period of time not exceeding 30 days to furnish evidence that:

A. Corrective action has been, or is being, actively and expeditiously pursued to remedy the violation or noncompliance.

B. Rebuts the alleged violation or noncompliance.

C. It would be in the public interest to impose some monetary damages, penalty or sanction less than revocation. (Ord. 2743 § 1, 2019).

12.20.630 Revocation hearing.

In the event that a grantee fails to provide evidence reasonably satisfactory, as provided hereunder, to the City Engineer, or other department as the City Manager may designate, he/she shall refer the apparent violation or noncompliance to the City Council. The City Council shall provide the grantee with notice and a reasonable opportunity to be heard concerning the matter. (Ord. 2743 § 1, 2019).

12.20.640 Standards for revocation or lesser sanctions.

If persuaded that the grantee has violated or failed to comply with a material provision of this chapter or of a franchise or applicable codes, ordinances, resolutions, or statutes, the City Council shall determine whether to revoke the franchise, and issue a written decision relating thereto, or to establish some monetary damages, penalty, lesser sanction and cure, considering the nature, circumstances, extent and gravity of the violation as reflected by one or more of the following factors:

A. Whether the misconduct was egregious;

B. Whether substantial harm resulted;

C. Whether the violation was intentional;

D. Whether there is a history of prior violations of the same or other requirements;

E. Whether there is a history of overall compliance;

F. Whether the violation was voluntarily disclosed, admitted or cured. (Ord. 2743 § 1, 2019).

Article VI. Small Wireless Deployments – Franchise and Small Wireless Permits

12.20.700 Overview – Application and review process.

The City and applicant for a franchise and other permits associated with the deployment of small wireless facilities face challenges in coordinating applicable legislative and administrative processes under the FCC regulations. A franchise for the use of the City’s right-of-way is a contract that requires approval by the City Council. Permits to exercise those rights and to install small wireless facilities on private property are considered in a parallel, consolidated administrative process. FCC regulation provides safe harbor time periods as well as completeness requirements which apply to all approvals relating to a small wireless facility deployment. Time limitations governing the process are triggered by the applicant’s submittal of applications for the deployment. Accordingly, all parts of an application for a master permit to deploy small wireless facilities must be considered in order to determine completeness. Applicants are encouraged and expected to provide all related applications in one submittal.

A. Application Process. The Director is authorized to establish franchise and other application forms to gather the information required by these ordinances from applicants and to determine the completeness of the application process as provided herein.

1. Franchise. The process typically begins with and depends upon approval of a franchise for the use of the public right-of-way to deploy small wireless facilities if any portion of the applicant’s facilities are to be located in the right-of-way. The application for a franchise is designated as Part A of the application. An applicant with a valid franchise for the deployment of small wireless facilities in the City may proceed to apply for a small wireless facility permit and related approvals (Parts B and C). An applicant at its option may utilize phased development. Because franchises are required by federal law to be competitively neutral, the City has established a franchise format for use by all right-of-way users. The format contains the basic requirements for the use of right-of-way. Consideration of the franchise application is a legislative act of the City Council. Consideration by the City Council shall run parallel with other necessary administrative approvals and approval or possession of a franchise is a requirement for any small wireless facility deployment seeking to use the public right-of-way.

2. Small Wireless Facility Permits. Part B of the application process requires specification of all proposed small wireless facility components and their sites. Each component shall be described in detail as provided in these ordinances. Any request for deviation, whether minor or significant, from adopted City standards shall be set forth in the application.

3. Associated Permit(s). Part C of the application shall attach all associated permit applications such as applications or checklists required under the critical areas, shorelines or SEPA ordinances. Applicants for deployment of small wireless facilities in design zones or underground areas shall provide a concealment element plan as provided in MTMC 19.137.080(F).

4. Construction in the Right-of-Way. Small wireless facilities installed pursuant to an approved master permit (both a franchise and a small wireless facility permit) or a small wireless facility permit approved separately for an existing franchisee may proceed to install the approved specific facilities by complying with the requirements contained in MTMC 13.50.060.

5. Later Discovered Deviations. Recognizing that each utility pole represents a unique environment for the installation of small wireless facilities, if a deviation, whether minor or significant, is required from the standards of the ordinance in order to install a small wireless facility on any structure, and such deviation was not approved as part of the master permit or small wireless facility permit process, an application shall be filed for the amendment of the initial small wireless facility permit. Administrative review of the request for deviation shall be processed as provided herein. Such an amended application shall be considered a new application and completeness, review and all time periods shall commence anew.

6. Leases. A wireless service provider who wishes to attach to any utility pole or other structure or building owned by the City shall include an application for a lease(s) or component of its application. The Director is authorized to administer a lease review process, develop an application form and approve leases in the form approved for general use by the City Council for any utility pole or other structure in the right-of-way, including a new utility pole or structure. The installation shall conform to the standards adopted in MTMC 19.137.080 or with an approved minor deviation. Leases for the use of other public property, buildings or facilities including any park land or facility shall be submitted to the City Council for approval. Any approval identified in the initial application process shall be considered by the City Council in conjunction with its consideration of the franchise. Applications submitted at later dates shall be considered by the Director or the City Council as provided herein under a separate review process.

B. Completeness. Any and all parts of an application for the deployment of small wireless facilities including but not limited to franchise, small wireless facility permits and all associated permits shall be submitted at one time in order that their completeness may be considered. An applicant seeking to phase deployment of a small wireless facilities system may identify the intended phasing in the franchise application process. Franchisees with a valid franchise to deploy small wireless facilities may apply for a small wireless permit for the deployment of initial or additional phases of a small wireless facility deployment at any time subject to the commencement of a new completeness review time period for permit processing.

C. Safe Harbors. 47 CFR 1.6003 has established presumptively reasonable time periods for review of small wireless facilities for the deployment of small wireless facilities. The City shall make every reasonable effort consistent with any conflicting provisions of state or federal law, and the preservation of the City’s health, safety and aesthetic environment to comply with these time periods to the fullest extent possible. (Ord. 2743 § 1, 2019).

12.20.710 Application.

The City Manager shall delegate administrative authority to an appropriate City Director (hereinafter “Director”) to oversee the consolidated administrative permits referenced in the preceding section. The Director is charged with administration of the consolidated permit process for a small wireless facility deployment and other wireless communication review processes established under Articles VI and VII of this chapter. Phased development is permitted, and an applicant is encouraged to specify at least the initial small wireless facility deployment in its application.

The following additional information shall be provided by all applicants seeking to deploy small wireless facilities:

A. Designation of Facilities. The application shall provide specific locational information including GIS coordinates of all facilities for which approval is sought and specify whether and where small wireless facilities are to be located on existing 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. Detailed schematics and visual renderings of facilities sought to be approved under the small wireless permit shall be provided by the applicant. Failure to provide sufficient detail may result in a later finding of a significant change in the facility if significant elements of the facility were not shown on the originally approved franchise exhibit. Failure to include significant elements may also result in the requirement that new or undocumented elements complete the approval processes detailed in this chapter and as applicable Chapter 19.137 MTMC.

B. Implementation. The rights granted under the franchise are implemented through the issuance of a small wireless permits. The franchise application may be accompanied by an application for a small wireless permit to deploy small wireless facilities.

1. Issuance of a small wireless permit to install a small wireless deployment any portion of which is in the public rights-of-way shall be contingent upon approval of a franchise or the possession of a valid franchise authorizing deployment of small wireless facilities.

2. All small wireless permits that are submitted in conjunction with a franchise application shall be considered as one master permit for the purposes of calculating the review period established by federal law. Provided, however, any element of a deployment which qualifies as either an eligible facilities request shall be specifically designated by the applicant and may be addressed separately by the Director in order to comply with the shot clocks established by federal law and this chapter.

3. The Director may approve, deny or conditionally approve all or any number of the sites proposed in the small wireless permit application.

4. Any application for a small wireless permit which contains an element that is not exempt from shorelines, critical areas or SEPA review shall comply with the applicable provisions of state law and local ordinance.

5. RF Certification. The applicant shall submit a sworn affidavit signed by an RF engineer with knowledge of the proposed project affirming that the small wireless deployment will be compliant with all FCC and other governmental regulations in connection with human exposure to radio frequency emissions for every frequency at which the small wireless facility will operate. If wireless facilities necessary to the deployment are to be provided by a third party, then the small wireless deployment in the initial franchise or in a subsequent small wireless permit shall be conditioned on an RF certification by the third party and the requirement that the third party obtain a franchise. If such facilities will emit RF emissions, this additional RF certification shall address the cumulative impact of the RF emissions and certify compliance with federal requirements. The applicant or franchisee shall immediately remove any facilities that exceed FCC RF emissions requirements. A modification of the facility by an eligible facilities request requires a new RF certification.

6. Regulatory Authorization. The applicant shall provide proof of FCC and other regulatory approvals required to provide the service(s) or utilize the technologies sought to be installed.

7. Completeness – Franchise and Small Wireless Applications. The Director or his/her designee shall review an application for completeness and notify the applicant in writing within 10 days of submission whether the application is complete; provided, however, that an applicant may consent to a different completeness review period. The written notice shall identify the missing documents or information. Upon provision of the notice, the time periods established by 47 CFR 1.6003(d) shall be calculated in accordance with that regulation. No application shall be deemed complete without submittal and maintenance of the fee deposit set by the Director. (Ord. 2743 § 1, 2019).

12.20.720 Review process – Small wireless permit.

The following provisions relate to applications for a small wireless permit for small wireless deployment.

A. Review of Facilities. Review of the site locations proposed by the applicant shall be governed by the provisions of 47 USC 253 and 332 and applicable case law and federal regulations. Applicants for small wireless permits shall be treated in a competitively neutral and nondiscriminatory manner with other service providers utilizing supporting infrastructure which is functionally equivalent, that is, service providers whose facilities are similarly situated in terms of structure, placement or cumulative impacts. Franchise and small wireless permit review under this chapter shall neither prohibit nor have the effect of prohibiting the ability of an applicant to provide wireless services.

B. Concealment. Except for facilities to be located in undergrounded areas or the downtown community business (town center) zone (“design zone” in both this title and in Chapter 19.137 MTMC), the City will permit small wireless deployment on structures conforming to the City’s generally applicable small wireless design and concealment standard. See MTMC 19.137.080. The design criteria as applicable to small wireless facilities described herein shall be considered concealment elements and such small wireless facilities may only be expanded upon an eligible facilities request when the modifications do not defeat the concealment elements of the facility.

C. Concealment Element Plan Review. Small wireless deployment in a design zone and undergrounded areas is subject to a concealment element plan. See MTMC 12.20.730 and Chapter 19.137 MTMC.

D. Public Notice. The City shall provide notice of a complete application for a franchise utilizing a small wireless permit to deploy small wireless facilities on the City’s website with a link to the application materials which specify the site(s) and designs. The notice shall include an email contact and telephone number for the applicant to answer citizen inquiries. The notice is provided for the public’s information and is not part of any land use process which is subject to a public hearing or appeal. (Ord. 2743 § 1, 2019).

12.20.730 Facilities designated in the small wireless permit approval.

Small wireless deployments shall be approved by reference to exhibits in small wireless permits. Approval of the permit shall be deemed to approve the site and the design of small wireless facilities set forth in the approved exhibits. This approval is limited to the specific location, facility and design elements shown on the exhibits. Any element not shown on an exhibit must be approved by the governing review processes listed in this chapter and, when applicable, Chapter 19.137 MTMC. All facilities shall comply with the small wireless design and concealment standards adopted by the City in MTMC 12.20.720 and Chapter 19.137 MTMC. An existing franchisee authorized to deploy small wireless facilities in the public rights-of-way may apply to additional designate sites for small wireless deployment, as well as approve the small wireless facilities to be installed and the concealment measures to be utilized. (Ord. 2743 § 1, 2019).

12.20.740 Small wireless permit and minor deviations.

A. The Director may authorize minor deviations designated by the applicant in an application for a small wireless permit from the dimensional design and concealment technologies referenced in the design standards.

B. Deviations in the dimensions, height, or volume of small wireless facilities which are necessary to conform the facilities to the requirements of the pole owner, provide adequate safety clearances or address similar technical issues may be approved as minor deviations; provided, that the deviations do not cause the facility to exceed the height and volumetric limitations in the definition of a small wireless facility.

C. Replacement of components of an existing, approved small wireless facility which do not exceed the volumetric limitations for a small wireless facility may also be approved as minor deviations. Provided, however, that in each instance the modified facilities do not defeat the concealment features set by the City’s generally applicable small wireless aesthetic, design and concealment standards or a specific concealment plan adopted pursuant to Chapter 19.137 MTMC.

D. The decision of the Director to approve a small wireless permit with a minor deviation, if any, shall be final and is not subject to appeal under City code or further legislative review. (Ord. 2743 § 1, 2019).

12.20.750 Significant deviations and deployment in design zones and undergrounded areas.

Any request for a new pole, for deployments in the City’s designated design zones and/or significant deviations from the approved small wireless facilities design designated in a small wireless permit or permit or the City’s design standards shall be considered as an administrative use permit (Type I) under the provisions of MTMC 19.137.080. (Ord. 2743 § 1, 2019).

12.20.760 Additional review procedures.

Wireless communication facilities in shorelines management zones or critical areas are subject to review as provided in MTMC Title 16. See also Chapter 16.05 MTMC for SEPA requirements. (Ord. 2743 § 1, 2019).

Article VII. Federally Required Review Periods

12.20.800 Purpose.

Congress and the FCC have, pursuant to the authority granted by 47 USC 253(c) and 332(a), required local governments to act on wireless communication facility applications within a reasonable period of time and have established time limits or “shot clocks” for local review. The Washington State Legislature has also adopted similar limitations under the provisions of Chapter 35.99 RCW. Accordingly, the City adopts the following time limits for review of applications for eligible facility requests, small wireless permits, and other approvals for service providers of telecommunication services regardless of whether filed under this chapter or Chapter 19.137 MTMC. (Ord. 2743 § 1, 2019).

12.20.810 Eligible facilities request.

A. Application Review.

1. Application. The Director shall prepare and make publicly available an application form which shall be limited to the information necessary for the City to consider whether an application is an eligible facilities request. The applicant is not required to demonstrate a need or business case for the proposed modification.

2. Type of Review. Upon receipt of an application for an eligible facilities request pursuant to this chapter, the Director shall review the application to determine whether it qualifies as an eligible facilities request.

3. Time Frame for Review. Within 60 days of the date on which an applicant submits an application seeking approval under this chapter, the Director shall approve the application unless he/she determines that the application is not covered by this article.

4. Tolling of the Time Frame for Review. The 60-day review period begins to run when the application is filed and may be tolled only by mutual agreement by the Director and the applicant or in cases where the Director determines that the application is incomplete. The time frame for review of an eligible facilities request is not tolled by a moratorium on the review of applications.

a. To toll the time frame for incompleteness, the Director shall provide written notice to the applicant within 30 days of receipt of the application, clearly and specifically delineating all missing documents or information required in the application.

b. The time frame for review begins running again when the applicant makes supplemental submission in response to the Director’s notice of incompleteness.

c. Following a supplemental submission, the Director will notify the applicant within 10 days that the supplemental submission did not provide the information identified in the original notice delineating missing information. The time frame is tolled in the case of second or subsequent notices pursuant to the procedures identified in this subsection. Second or subsequent notice of incompleteness may not specify missing documents or information that was not delineated in the original notice of incompleteness.

B. Determination That Application Is Not an Eligible Facilities Request. If the Director determines that the applicant’s request does not qualify as an eligible facilities request, the Director shall deny the application. To the extent additional information is necessary, the Director may request such information from the applicant to evaluate the application under other provisions of this chapter and applicable law.

C. Failure to Act. In the event the Director fails to approve or deny a request for an eligible facilities request within the time frame for review (accounting for any tolling), the request shall be deemed granted. The deemed grant does not become effective until the applicant notifies the Director in writing after the review period has expired (accounting for any tolling) that the application has been deemed granted.

D. Remedies. Both the applicant and the City may bring claims related to Section 6409(a) of the Spectrum Act to any court of competent jurisdiction. (Ord. 2743 § 1, 2019).

12.20.820 Collocation.

Eligible collocations (see Chapter 19.137 MTMC) shall be processed within 90 days of receipt of an application. The Director will notify the applicant within 30 days of receipt of an application whether it is complete or if additional information is required. The term “collocation” shall not apply to the initial placement of a small wireless facility on a tower or base station that was not in existence on the date the application was filed. (Ord. 2743 § 1, 2019).

12.20.830 New wireless communication facilities.

Unless otherwise provided for in Articles VI and VII of this chapter, applications to install new wireless communications facilities shall be processed within 150 days of receipt of a complete application. The Director will notify the applicant within 30 days of receipt of an application whether it is complete or if additional information is required. (Ord. 2743 § 1, 2019).

Article VIII. Construction

12.20.840 Construction standards/codes.

No person shall commence or continue with the construction, installation or operation of telecommunications facilities within the City except as provided in any applicable code, ordinance, resolution, rule, regulation or permit of the City of Mountlake Terrace. Telecommunications facilities shall be constructed, installed, operated and maintained in accordance with all applicable federal, state and local codes, rules and regulations including, but not limited to, the National Electrical Safety Code. (Ord. 2743 § 1, 2019).

12.20.850 Utility right-of-way permits.

No person shall construct or install any telecommunications facilities within the City without first obtaining a utility right-of-way permit therefor; provided, however:

A. No permit shall be issued for the construction or installation of telecommunications facilities within the City unless the service provider has filed a registration statement with the City pursuant to this chapter.

B. No permit shall be issued for the construction or installation of telecommunications facilities in rights-of-way unless the service provider has applied for and received a franchise and/or lease agreement in accordance with this chapter.

C. No permit shall be issued for the construction or installation of telecommunications facilities without payment of all required fees as may be set by resolution or ordinance.

D. The permit shall be processed in accordance with RCW 35.99.030. (Ord. 2743 § 1, 2019).

12.20.860 Applications.

Applications for permits to construct telecommunications facilities shall be submitted in accordance with applicable code, ordinance, resolution, rule or regulation of the City of Mountlake Terrace. The applicant shall pay all associated fees and shall include any additional information as requested by the City Engineer, or other department as the City Manager may designate. The application shall be accompanied by drawings, plans, and specifications in sufficient detail to demonstrate:

A. That the facilities will be constructed in accordance with all applicable codes, rules and regulations;

B. The location and route of all facilities to be installed on existing or replacement utility poles;

C. The location and route of all facilities to be located under the surface of the ground, including the line and grade proposed for the burial at all points along the route which are within the rights-of-way;

D. The location of all existing underground utilities, conduits, ducts, pipes, mains and installations which are within the rights-of-way along the underground route proposed by the applicant;

E. The location of all other facilities to be constructed within the City, but not within rights-of-way;

F. The construction methods to be employed for protection of existing structures, fixtures and facilities within or adjacent to rights-of-way;

G. For wireline facilities, the location, dimensions and types of all trees within or adjacent to rights-of-way along the route proposed by the applicant, together with a landscape plan for protecting, trimming, removing, replacing and restoring any trees or areas to be disturbed during construction. (Ord. 2743 § 1, 2019).

12.20.870 Engineer’s certification.

All permit applications shall be accompanied by the certification of a registered professional engineer that the drawings, plans and specifications submitted with the application comply with applicable technical codes, rules and regulations. (Ord. 2743 § 1, 2019).

12.20.880 Construction surety.

Prior to issuance of a utility right-of-way permit, the permittee shall provide a construction bond, as provided by ordinance. (Ord. 2743 § 1, 2019).

Article IX. Fees

12.20.890 Registration fee.

Each application for registration as a service provider shall be accompanied by a fee or fee deposit in an amount as determined by the City Council and adopted by resolution. (Ord. 2743 § 1, 2019).

12.20.900 Application and review fee.

Any applicant for a franchise pursuant to this chapter shall pay an application and review fee or fee deposit in an amount as determined by the City Council and adopted by resolution. This application and review fee covers the costs associated with the City’s initial review of the application; provided, however, that the applicant shall be required to pay all necessary permit fees. This application and review fee shall be deposited with the City as part of the application filed pursuant to this chapter. (Ord. 2743 § 1, 2019).

12.20.910 Refund.

An applicant whose franchise application has been withdrawn, abandoned or denied shall, within 60 days of its application and review fee payment, be refunded the balance of its deposit under this section, less:

A. The application and review fee; and

B. All ascertainable costs and expenses incurred by the City in connection with the application. (Ord. 2743 § 1, 2019).

12.20.920 Other City costs.

All grantees shall, within 30 days after written demand therefor, reimburse the City for all direct and indirect costs and expenses incurred by the City in connection with any grant, modification, amendment, renewal or transfer of any franchise. (Ord. 2743 § 1, 2019).

12.20.960 Right-of-way permit fee.

Prior to issuance of a right-of-way permit, the permittee shall pay a permit fee in an amount as determined by the City Council and adopted by resolution. (Ord. 2743 § 1, 2019).

Article X. Business Licensing of Service Providers

12.20.970 Purpose of business license registration.

The purposes of telecommunications business licensing are to:

A. Provide the City with accurate and current information concerning the cable operators and service providers who offer or provide services within the City, or that own or operate facilities within the City;

B. Assist the City in enforcement of this chapter;

C. Assist the City in the collection and enforcement of any municipal taxes, franchise fees, license fees or charges that may be due the City;

D. Assist the City in monitoring compliance with local, state and federal laws. (Ord. 2743 § 1, 2019).

12.20.980 Business license required.

All cable operators, telecommunications carriers, and telecommunications providers that offer or provide any cable service or telecommunications service for a fee directly to the public, either within the City or outside the corporate limits, from cable or telecommunications facilities within the City shall apply for and obtain a business license with the City pursuant to this chapter on forms to be provided by the City Manager, which shall include the following:

A. The identity and legal status of the applicant, including any affiliates;

B. The name, address, telephone number, and title of the officer, agent or employee responsible for the accuracy of the business license application statement;

C. A description of applicant’s existing or proposed facilities within the City;

D. A description of the service that the applicant intends to offer or provide, or is currently offering or providing, to persons, firms, businesses or institutions within the City;

E. Information sufficient to determine whether the applicant is subject to the public way permitting and/or franchising requirements imposed by this chapter;

F. Information sufficient to determine whether the transmission, origination or receipt of the services provided or to be provided by the applicant constitutes an occupation tax imposed by the City;

G. Information sufficient to determine that the applicant has applied for and received any certificate of authority required by any federal or state agency to provide telecommunications services or facilities within the City;

H. Information sufficient to determine that the applicant has applied for and received any construction permit, operating license or other approvals required by the FCC to provide services or construct facilities within the City. (Ord. 2743 § 1, 2019).

12.20.990 Business license fees.

Each application for a business license as a cable operator or service provider shall be accompanied by an application fee which shall be set by the City Council by ordinance or resolution. (Ord. 2743 § 1, 2019).

Article XI. Miscellaneous

12.20.1000 Context.

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. (Ord. 2743 § 1, 2019).