Chapter 4.08
FRANCHISE FOR USE OF RIGHT-OF-WAY
Sections:
4.08.010 Franchise for use of right-of-way.
4.08.030 Application – Contents.
4.08.050 Completeness – Review and notification.
4.08.060 Telecommunications services – Time period for consideration.
4.08.070 Written agreement – No construction until issued.
4.08.010 Franchise for use of right-of-way.
Purpose. The city council as trustee of the city’s public right-of-way has the authority to authorize right-of-way use by utilities and other entities in order to serve the public if an agreement consistent with state and federal law and the best interests of the city and its citizens can be reached. This chapter establishes application requirements for a franchise for the use of the public right-of-way, provisions for fee deposits and requirements for determining the completeness of applications for a franchise. (Ord. 990 § 1, 2019).
4.08.020 Definitions.
The following words and phrases shall have the meanings assigned for use in this chapter:
(1) Director. The “director” is the city’s community development director.
(2) Franchise. A “franchise” is the contractual authorization whereby a public utility or other qualified service provider is granted permission to utilize the public right-of-way in order to provide services to the general public. A franchise is a master permit within the meaning of RCW 35.99.010(3). A franchise to utilize small wireless facilities to provide personal wireless service shall be processed in parallel with all other required administrative permits and approvals in one consolidated process. See NPMC 4.09.010.
(3) Public Right-of-Way. “Public right-of-way” means land acquired or dedicated for public roads and streets but does not include:
(a) State highways;
(b) Road dedicated for road, streets and highways not opened and not improved for motor vehicle use by the public;
(c) Structures including poles and conduits located within the right-of-way;
(d) Federally granted trust lands or forest board trust lands;
(e) Lands owned or managed by the State Parks and Recreation Commission;
(f) Federally granted railroad rights-of-way acquired under 43 U.S.C. 912 and related provisions of federal law that are not open for vehicular use; or
(g) Leasehold or city-owned property to which the city holds fee title or other title, and which is utilized for park, utility or a governmental or proprietary use.
(4) Right-of-Way Use Permit. A “right-of-way use permit” is an administrative permit issued to a franchisee to enter the right-of-way in order to exercise the rights granted under a franchise.
(5) “Telecommunications facilities” are those facilities defined in RCW 35.99.010(2) and utilized by a provider in the provision of telecommunications service.
(6) “Telecommunications service” is defined as provided in RCW 35.99.010(7) as the same exists or is hereafter amended.
(7) See NPMC 18.42.040 for additional definitions. (Ord. 990 § 1, 2019).
4.08.030 Application – Contents.
The director is authorized to establish an application form or forms appropriate for telecommunications entities, public utilities and other qualified service providers to apply for a franchise. The form shall contain at a minimum:
(1) Information identifying the applicant, its corporate or other organizational structure, and the agent or individual filling out the application.
(2) Property and facility information, including but not limited to:
(a) The nature of the application as an application for a new franchise, an application for renewal or amendment, or an application for the transfer of a franchise.
(b) A description of the specific services that the applicant expects to provide within the city including whether the services will be provided to the general public, to commercial and/or residential customers or to other utilities and service providers.
(c) A general description of the facilities to be located in the right-of-way including but not limited to wireline facilities, cable service, telecommunications service facilities, conduits, pipelines, and other facilities appropriate to the specific utility or service provider’s utilization of the right-of-way.
(d) Where appropriate, information relating to pole attachment or lease agreements with the owners of other facilities located in the right-of-way.
(e) Any licenses, certificates or authorizations required from the Federal Communications Commission, the Washington Utilities and Transportation Commission and any other federal or state agency with jurisdiction over the proposed activities to be conducted in the right-of-way.
(f) Information relating to utility taxes including a description of the services provided and any and all state and local taxes which may apply.
(g) The service area for which the franchise is requested, including a map of the area to be covered by the franchise and specific locations of the initial build-out and, if known, proposed future build-out locations including which proposed facilities will be underground, ground based and/or aerial.
(h) Upon request from the city, financial statements prepared in accordance with generally accepted accounting principles demonstrating the applicant’s financial ability to construct, operate, maintain, relocate and remove its telecommunications facilities.
(i) A list of the last five cities or towns in the state of Washington in which the applicant holds a franchise and any city in which its franchise has been revoked.
(j) Recognizing that small wireless technology is rapidly evolving, the director is authorized to promulgate and publish standards for the technological and structural safety of city-owned light, traffic and other structures and to formulate and publish applications for use when an applicant proposes to attach or replace a city-owned structure. (Ord. 990 § 1, 2019).
4.08.040 Fee deposit.
The director shall establish a fee deposit based upon the nature of the facility in accordance with the city’s fee resolution. The fee deposit shall generally be set at $5,000 and may be increased or decreased at the discretion of the director based upon preliminary information provided by the applicant prior to or contemporaneous with the filing of the application. The fee deposit shall be supplemented from time to time when the actual administrative costs authorized for collection by the city from the applicant pursuant to RCW 35.21.860 have been exceeded. Failure to make or supplement a deposit within 10 business days of notification of the need to supplement shall be grounds for denial of an application and all related permits consolidated for parallel review. Any unexpended portion of the deposit shall be returned to the applicant when the application has been approved or denied. (Ord. 990 § 1, 2019).
4.08.050 Completeness – Review and notification.
The director shall review the application upon submittal.
(1) Applications for Franchises Other Than Those Seeking to Utilize Small Wireless Facilities. If the director finds that any applicant has failed to provide an application which reasonably fulfills the requirements of this chapter and the application form, and/or is not accompanied by the fee deposit established by the director, the director shall, within 30 business days of receipt of the application, notify the applicant that the application is incomplete. The notification shall generally outline the information which the applicant has failed to provide, or which must be supplemented in order to comply with the terms of this chapter and the application form established by the director. The time periods established in NPMC 4.08.060 shall not commence until the city has received a completed application and fee deposit and shall be tolled if the applicant fails to supply a supplemented fee deposit as provided above. Failure to respond within 60 calendar days shall be deemed a withdrawal of the application.
(2) Small Wireless Facility Franchises. See NPMC 4.09.020(6) for completeness and the calculation of review periods relating to applications associated with a small wireless facility deployment and associated franchise. (Ord. 990 § 1, 2019).
4.08.060 Telecommunications services – Time period for consideration.
(1) Applications for a franchise for a telecommunications service other than small wireless facilities shall be acted upon by the city within 120 days from the date the service provider files a complete application and fee deposit with the city except:
(a) With the agreement of the applicant; or
(b) Where the franchise requires action of the city council and such action cannot reasonably be obtained within the 120-day period.
(2) The city shall act upon a request for a right-of-way use permit within 30 days of receipt of a complete application and permit fee unless the applicant consents to a different time period or the applicant has not obtained a franchise or right-of-way use agreement from the city.
(3) See NPMC 4.10.080 for time periods for consideration of small wireless facilities. (Ord. 990 § 1, 2019).
4.08.070 Written agreement – No construction until issued.
No authorization shall be deemed to have been approved or granted hereunder until the applicant and the city have executed a written franchise consistent with the city council’s authorization and no construction may begin without the issuance by the city of a right-of-way use permit. (Ord. 990 § 1, 2019).