Chapter 11.02
GENERAL PROVISIONS
Sections:
11.02.010 Purpose.
11.02.020 Definitions.
11.02.030 Business license required.
11.02.040 Telecommunications right-of-way use authorization required.
11.02.050 Master permit required.
11.02.060 Cable television franchise required.
11.02.070 Facilities lease required.
11.02.080 Use permits required.
11.02.090 Application to existing franchise ordinances, agreements, leases, and permits -- Effect of other laws.
11.02.100 Universal service.
11.02.110 General penalties.
11.02.120 Other remedies.
11.02.130 Penalties not a tax.
11.02.010 - Purpose
The purpose and intent of this Chapter is to:
A. Establish a local policy concerning telecommunications providers;
B. Establish guidelines, standards and time frames for the exercise of local authority with respect to the regulation of telecommunications providers;
C. Promote competition in telecommunications;
D. Minimize unnecessary local regulation of telecommunications providers and services;
E. Permit and manage reasonable access to the public ways of the City for telecommunications purposes on a competitively neutral basis;
F. Conserve the limited physical capacity of the public ways of the City;
G. Assure that the City’s current and ongoing costs of granting and regulating private access to and use of the public ways are fully paid by the persons seeking such access and causing such costs;
H. Assure that all telecommunications carriers providing facilities or services within the City comply with the ordinances, rules and regulations of the City; and
I. Enable the City to discharge its public trust consistent with rapidly evolving federal and state regulatory policies, industry competition and technological development.
J. Ensure the timely restoration of streets.
(Ord. 6033 §1; Ord. 5816 §1, 1998)
11.02.020 - Definitions
For the purpose of Chapters 11.02 through 11.12, and the interpretation and enforcement thereof, the following words and phrases shall have the following meanings, unless the context of the sentence in which they are used shall indicate otherwise:
A. "Affiliate" means a person who (directly or indirectly) owns or controls, is owned or controlled by, or is under common ownership or control with another person;
B. "Applicant" means any person or entity that applies for any authorization, master permit, use permit, lease, or permit pursuant to Chapters 11.02 through 11.12;
C. "Cable Act" means the Cable Communications Policy Act of 1984 and the Cable Television Consumer Protection and Competition Act of 1992;
D. "Cable facilities" means equipment and wiring used to transmit audio and video signals to subscribers;
E. "Cable operator" means a telecommunications carrier providing or offering to provide "cable television service" within the City as that term is defined in the Cable Act;
F. "Cable television service" means the one-way transmission to subscribers of video programming and other programming service and subscriber interaction, if any, that is required for the selection or use of the video programming or other programming service;
G. "City" means the City of Olympia, Washington;
H. "City property" means and includes all real property owned by the City, other than public streets and utility easements as those terms are defined herein, and all property held in a proprietary capacity by the City, which are not subject to right-of-way licensing and franchising as provided in Chapters 11.02 through 11.12;
I. "Council" means the City Council of the City of Olympia, Washington acting in its official capacity;
J. "Data communication" means (1) the transmission of encoded information or (2) the transmission of data from one point to another;
K. "Development Guidelines" refers to the most current version of the City of Olympia’s Development Guidelines and Public Works Standards;
L. "Emergency" means a condition of imminent danger to the health, safety, and welfare of property or persons located within the City including, without limitation, damage to persons or property from natural consequences, such as storms, earthquakes, riots or wars;
M. "Excess capacity" means the volume or capacity in any existing or future duct, conduit, manhole, handhole or other utility facility within the public way that is or will be available for use for additional facilities;
N. "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;
O. "Facilities" means all of the plant, equipment, fixtures, appurtenances, antennae and other facilities necessary to furnish and deliver telecommunications services and/or cable television services, including but not limited to poles with crossarms, poles without crossarms, wires, lines, conduits, cables, communication and signal lines, and equipment, braces, guis, anchors, vaults, and all attachments, appurtenances, and appliances necessary or incidental to the distribution and use of telecommunications services and/or cable television services;
P. "Fiber Optics" means the technology of guiding and projecting light for use as a communications medium;
Q. "Master permit" means the agreement in whatever form whereby a city or town may grant general permission to a service provider to enter, use, and occupy the right-of-way for the purpose of locating facilities;
R. "Master permittee" means the person, firm or corporation to whom or which a master permit, as defined in this Section, is granted by the Council under Chapters 11.02 through 11.12 and the lawful successor, transferee or assignee of said person, firm or corporation subject to such conditions as may be defined in this Chapter;
S. "Open video system" or "OVS" refers to a facility consisting of a set of transmission paths and associated signal generation, reception, and control equipment that is designed to provide Cable Service, which is provided to multiple subscribers within a community, and which the Federal Communications Commission or its successors has certified as compliant with Part 76 of its rules, 47 C.F.R., Part 76, as amended from time-to-time;
T. "Other ways" means the highways, streets, alleys, utility easements or other rights-of-way within the City, but under the jurisdiction and control of a governmental entity other than the City;
U. "Overhead facilities" means utility poles, utility facilities and telecommunications facilities located above the surface of the ground, including the underground supports and foundations for such facilities (overhead facilities are a subset of "Facilities" as defined in this Section);
V. "Person" means and includes corporations, companies, associations, joint stock companies or associations, firms, partnerships, limited liability companies and individuals and includes their lessors, trustees and receivers;
W. "Property of master permittee" means all property owned, installed or used by a Franchisee in the conduct of its business in the City under the authority of a master permit granted pursuant to Chapters 11.02 through 11.12;
X. "Replacement pole" means poles to replace damaged or retired poles. Replacement poles do not include poles erected for the purpose of adding facilities.
Y. "Right-of-way" means land acquired or dedicated for public roads and streets, but does not include: a) state highways, b) land dedicated for roads, streets, and highways not opened and not improved for motor vehicle use by the public, c) structures, including poles and conduits located within the right-of-way, d) federally granted trust lands or forest board trust lands, e) lands owned or managed by the State Parks and Recreation Commission, or 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 motor vehicle use;
Z. "State" means the State of Washington;
AA. "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 federal or state orders and regulations, to allow its use by a service provider for a pole attachment;
BB. "Service provider" means every corporation, company, and association, joint stock association, firm, partnership, person, city, or town owning, operating, or managing any facilities used to provide and in providing telecommunications or cable television service for hire, sale, or resale to the general public. Service provider includes the legal successor to any such corporation, company, association, joint stock association, firm, partnership, person, city, or town;
CC. "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;
DD. "Telecommunications system" See "Facilities";
EE. "These chapters" means Chapters 11.02 through 11.12 inclusive;
FF. "Underground facilities" means utility facilities located under the surface of the ground and drops running from these facilities directly to structures, excluding the underground foundations or supports for overhead facilities;
GG. "Universal service" means a level of and definition of telecommunications services as the term is defined by the FCC through its authority granted pursuant to Section 254 of the Act;
HH. "Usable space" means the total distance between the top of a utility pole and the lowest possible attachment point that provides the minimum allowable vertical clearance as specified in any federal or state orders and regulations;
II. "Use permit" means the authorization from the City, in a form developed by the Director of Community Planning and Development Department, under which the City may grant permission to a service provider to enter and use the specific right-of-way for the purpose of installing, maintaining, repairing, or removing identified facilities;
JJ. "Utility easement" means any easement owned by the City and acquired, established, dedicated or devoted for public utility purposes not inconsistent with Facilities; and
KK. "Utility facilities" means the plant, equipment and property, including but not limited to the poles, pipes, mains, conduits, ducts, cables, wires, plant and equipment located under, on or above the surface of the ground within the public ways of the City and used or to be used for the purpose of providing utility or telecommunications service.
(Ord. 6208 §1, 2002; Ord. 6033 §2, 2000; Ord. 5919 §1, 1999; Ord. 5816 §1, 1998).
11.02.030 - Business license required
Except as otherwise provided herein, service providers engaged in the business of transmitting, supplying or furnishing of telecommunication service of any kind originating or terminating in the City shall apply for and obtain a Telecommunications Business License from the City pursuant to Chapter 5.04 of the Olympia Municipal Code.
(Ord. 6033 §3, 2000; Ord. 5816 §1, 1998).
11.02.040 - Telecommunications right-of-way use authorization required
Except as otherwise provided herein, any service provider who desires to construct, install, operate, maintain, or otherwise locate Facilities in, under, over or across any right-of-way of the City for the sole purpose of providing telecommunications service to persons and areas outside the City shall first obtain a Telecommunications Right-of-Way Use Authorization granting the use of such right-of-way from the City pursuant to Chapter 11.04 of this Title.
(Ord. 6033 §4, 2000; Ord. 5816 §1, 1998).
11.02.050 - Master permit required
Except as otherwise provided herein, any service provider who desires to construct, install, operate, maintain or otherwise locate Facilities in, under, over or across any right-of-way of the City, and to also provide telecommunications service to persons or areas in the City, shall first obtain a master permit granting the use of such right-of-way from the City pursuant to Chapter 11.06 of this Title. No service provider required to procure a right-of-way use authorization under Section 11.02.040 shall be required to procure a master permit under this section.
(Ord. 6033 §5, 2000; Ord. 5816 §1, 1998).
11.02.060 - Cable television franchise required
Any service provider or other person who desires to construct, install, operate, maintain or locate cable or Facilities in any right-of-way in the City for the purpose of providing cable television service to persons in the City shall first obtain a Cable Television Franchise from the City as required by Ordinance No. 4624. Any such cable operator shall not be subject to this ordinance unless it/he/she is also providing telecommunications service.
(Ord. 6033 §6, 2000; Ord. 5816 §1, 1998).
11.02.070 - Facilities lease required
No service provider or other entity who desires to locate Facilities on City property shall locate such Facilities or equipment on city property unless granted a Facilities Lease from the City pursuant to Chapter 11.08 of this Title. The City Council reserves unto itself the sole discretion to lease City property for Facilities, and no vested or other right shall be created by this Section or any provision of Chapters 11.02 through 11.12 applicable to such Facilities Leases.
(Ord. 6033 §7, 2000; Ord. 5816 §1, 1998).
11.02.080 - Use permits required
Except as otherwise provided herein, the holder of a right-of-way authorization, master permit, or lease granted pursuant to Chapter 11.08, and the holders of Cable Franchises granted by the City, shall, in addition to said authorization, master permit, or lease, be required to obtain a use permit from the City pursuant to Chapter 11.12 of this Title. No work, construction, development, excavation, or installation of any equipment or facilities shall take place within the public ways or upon City property until such time as the use permit is issued pursuant to Development Guidelines.
(Ord. 6033 §8, 2000; Ord. 5816 §1, 1998).
11.02.090 - Application to existing franchise ordinances, agreements, leases, and permits -- Effect of other laws
A. These provisions shall have no effect on any existing franchise ordinance, franchise agreement, lease, permit, or other authorization to use or occupy a public way in the City until:
1. The expiration of said franchise ordinance, agreement, lease, permit, or authorization; or
2. The amendment to an unexpired franchise ordinance, franchise agreement, lease, permit, or authorization, unless both parties agree to defer full compliance to a specific date not later than the present expiration date.
B. Nothing in these provisions shall be deemed to create an obligation upon any person for which the City is forbidden to require pursuant to federal, state, or other law.
(Ord. 5816 §1, 1998).
11.02.100 - Universal service
Except as otherwise provided herein, all service providers engaged in the business of transmitting, supplying or furnishing telecommunications service of any kind originating or terminating in the City are subject to the City’s right, which is expressly reserved, to require said operator, carrier, or provider to make an equitable and non-discriminatory contribution to the preservation and advancement of universal service to the extent permitted by state and federal law.
(Ord. 6033 §9, 2000; Ord. 5816 §1, 1998).
11.02.110 - General penalties
A. Civil Penalty.
1. Any person, and the officers, directors, managing agents, or partners of any corporation, firm, partnership or other organization or business violating or failing to comply with any of the provisions of Chapters 11.02 through 11.12 shall be subject to a penalty in an amount not less than $100.00 nor more than $1,000.00 per day for each violation from the date set for compliance until compliance with the order is achieved.
2. In addition to any penalty which may be imposed by the City, any person violating or failing to comply with any of the provisions of Chapters 11.02 through 11.12 shall be liable for all damage to public or private property arising from such violation, including the cost of restoring the affected area per Chapter 4 of the Development Guidelines.
3. The penalty imposed by this Section shall be collected by civil action brought by the City. The City Manager shall notify the City Attorney of the name of any person subject to the penalty, and the City Attorney shall take appropriate action to collect the penalty.
4. The violator may show as full or partial mitigation of liability:
a. That the violation giving rise to the action was caused by the willful act, or neglect, or abuse of another; or
b. That correction of the violation was commenced promptly upon receipt of the notice thereof, but that full compliance within the time specified was prevented by inability to obtain necessary materials or labor, inability to gain access to the subject structure, or other condition or circumstance beyond the control of the violator.
B. Criminal Penalty.
1. Any person, and the officers, directors, managing agents, or partners of any corporation, firm, partnership or other organization or business violating or failing to comply with any of the applicable provisions of this Chapter and who has had a judgment entered against him or her pursuant to Section 11.02.110(A) or its predecessors within the past five (5) years shall be subject to criminal prosecution and upon conviction of such subsequent violation shall be fined in a sum not exceeding $5,000.00 or be imprisoned for a term not exceeding one (1) year or be both fined and imprisoned. Each day of noncompliance with any of the applicable provisions of the Chapter shall constitute a separate offense.
2. The above criminal penalty may also be imposed:
a. For any other violation of these Chapters for which corrective action is not possible;
b. For any wilful, intentional, or bad faith failure or refusal to comply with the standards or requirements of these Chapters; and
c. For any violation of a stop work or other order issued pursuant to this Chapter.
C. Additional Relief. The City may seek legal or equitable relief to enjoin any acts or practices and abate any condition which constitutes or will constitute a violation of the applicable provisions of this Chapter when civil or criminal penalties are inadequate to effect compliance. In addition to the penalties set forth in this Section, violation of the terms of this Chapter may also result in the revocation of any authorization, franchise, approval, lease, or permit issued or granted hereunder, as set forth in Sections 11.10.300 through 11.10.330 of this Title.
(Ord. 5816 §1, 1998).
11.02.120 - 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. 5816 §1,1998).
11.02.130 - Penalties not a tax
The penalties provided for under Section 11.02.110 are separate from, and additional to, any and all federal, state, local, and City taxes as may be levied, imposed or due from a service provider, its customers or subscribers or on account of the lease, sale, delivery or transmission of telecommunications service.
(Ord. 6033 §10, 2000; Ord. 5816 §1, 1998).