Chapter 15.04 RIGHT-OF-WAY USE

A. Provide for the orderly use of public rights-of-way by establishing clear guidelines, standards and timeframes for the exercise of local authority with respect to the regulation of right-of-way use by telecommunications and cable television providers and services.

B. Implement regulations that are consistent with the requirements of state law (Chapter 35.99 RCW), as the same exists or is hereafter amended.

C. Conserve the limited physical capacity of the public ways held in public trust by the city.

D. 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 to be incurred by the city, to the full extent permitted by state and federal law.

E. Secure fair and reasonable compensation to the city and the residents of the city for permitting the private use of public rights-of-way while assuring that the city can continue to fairly and reasonably protect the public health, safety and welfare.

F. Enable the city to discharge its public trust consistent with the rapidly evolving state and federal regulatory policies, industry competition and technological development. (Ord. 1953 § 2, 2017).

15.04.020 Definitions.

For the purpose of this chapter and the interpretation/enforcement thereof, the following words and phrases shall have the following meanings, unless the context of the sentence in which it is used shall indicate otherwise. These definitions and all provisions of this chapter shall be interpreted in a manner consistent with the provisions of state and federal law, including but not limited to Chapter 35.99 RCW:

A. “Applicant” means any person or entity that applies for any permit under this chapter.

B. “Cable television service” means the one-way transmission to subscribers of video programing and other programing service and subscriber interaction, if any, that is required for the selection or use of the video programming or other programming service.

C. “City” means the city of Pacific, Washington.

D. “City property” means and includes all real property owned by the city, other than rights-of-way as that term is defined herein, and all property held in proprietary capacity by the city. Such city property is not subject to the right-of-way master use permits as provided for by this chapter.

E. “Construction standard” means a construction standard applicable to the right-of-way or utility easement and adopted by the owner of the easement. The term shall typically refer to construction standards adopted by the city. Rights-of-way in the jurisdiction under the control of the state pursuant to RCW 47.24.020 shall be subject to state-adopted construction standards, if such standards are more restrictive or intensive than those of the city.

F. “Council” means the city council of the city of Pacific, Washington.

G. “Right-of-way use permit” means a permit issued pursuant to Chapter 13.12 PMC.

H. “Facilities” means all of the plant, equipment, fixtures, antennas and other facilities necessary to furnish and deliver telecommunications services and cable television services, including, but not limited to, poles with cross-arms, poles without cross-arms, wires, lines, conduits, cables, communication and signal lines and equipment, braces, guys, anchors, vaults and all attachments, appurtenances and appliances necessary or incidental to the distribution and use of telecommunications services and cable television services.

I. “Franchise” means the initial authorization or a renewal thereof issued by the city, whether such authorization is designated as a franchise, permit, ordinance, resolution, contract, certificate, right-of-way use authorization, or otherwise, which authorizes construction and operation of facilities within the city’s rights-of-way for the purpose of offering cable service, utility or other service to subscribers or patrons.

J. “Franchisee” means the person to whom or which a franchise is granted by the council and the lawful successor, transferee or assignee of said person subject to such conditions as may be defined in the franchise or by the ordinances of the city, including but not limited to the provisions of this chapter.

K. “Master use permit” means the permit 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.

L. “Other ways” means the highways, streets, alleys, utility easements or other rights-of-way within the city which are under the jurisdiction and control of a governmental entity or private party other than the city.

M. “Overhead facilities” means utility poles, utility franchises and cable and television facilities located above the surface of the ground, including the underground supports and foundations for such facilities.

N. “Person” means and includes corporations, companies, associations, joint stock companies or associations, firms, partnerships, limited liability companies and individuals, including their lessors, trustees and receivers.

O. “Personal wireless service” means commercial mobile services, unlicensed wireless services, and common carrier wireless exchange access services, as defined by federal laws and regulations.

P. “Right-of-way” means land or an easement acquired, dedicated and improved as public roads and streets, but does not include:

1. State highways and other ways;

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; and

5. Federally granted railroad rights-of-way acquired under 43 U.S.C. Section 912 and related provisions of federal law that are not open for motor vehicle use.

Q. “Right-of-way use permit” means the authorization in whatever form whereby a city may grant permission to a service provider to enter and use the specified right-of-way for the purpose of installing, maintaining, repairing or removing identified facilities. As used herein, the term shall be synonymous for the term “right-of-way permit” as used in Chapter 13.12 PMC.

R. “Service provider” means every corporation, company, association, joint stock association, firm, partnership, person, city or town owning, operating or managing any facilities used to provide and providing telecommunications or cable television services 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.

S. “State” means the state of Washington.

T. “Subscriber” means any person, entity or users of a cable system who lawfully receive cable services or other service therefrom with the franchisee’s express permission.

U. “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.

V. “Transportation improvement plan” or “TIP” means the six-year element of the city’s comprehensive plan as amended annually by adoption by the city council. (Ord. 1953 § 2, 2017).

15.04.030 Applicability of chapter.

This chapter shall be applicable to all franchises for cable television and telecommunications services approved after the effective date of the ordinance codified in this chapter. (Ord. 1953 § 2, 2017).

15.04.040 Requirements for the provision of services within the city.

Except as expressly provided herein, all providers of cable television service and telecommunications service to citizens of the city through facilities located in the right-of-way shall, prior to commencing operations:

A. Obtain and maintain a franchise from the city unless expressly exempted by the provisions of state or federal law; and

B. Obtain and maintain a business license as provided in Chapter 5.02 PMC; and

C. Either:

1. Obtain a master use permit to obtain general provision to enter, use and occupy the right-of-way for the purpose of locating telecommunications facilities; and

2. Once a master use permit has issued, obtain and maintain a right-of-way use permit under Chapter 13.12 PMC for specific construction activities.

The decision whether a franchisee shall be required to obtain a master use permit and a right-of-way permit shall depend on the detail provided to the city with the franchise documents regarding the location or potential location of the franchisee’s facilities. If the franchise provides little to no information on location, type of facility, manner of construction, date of installation, etc., then the city may require that a MUP be obtained first, and that the ROW permit be obtained at the time of actual construction. (Ord. 1953 § 2, 2017).

15.04.050 Facilities lease required.

No provider of cable television or telecommunications services or any other entity who desires to locate equipment on city property shall locate such facilities or equipment on city property unless and until a facilities lease is approved by the city council. The council reserves unto itself the sole discretion in its legislative capacity to lease city property for telecommunications, cable television or other facilities, and no vested right or other right shall be created by this section or any other provision of this chapter with respect to such facilities leases. (Ord. 1953 § 2, 2017).

15.04.060 Use of right-of-way prohibited.

Except as provided below, no person shall break, cut or otherwise compromise the surface and/or integrity of any street or sidewalk within the first five years after its construction and installation. For the period commencing with the sixth year through the tenth year, any person proposing to break, cut or otherwise compromise the integrity of the surface of any street or sidewalk shall conduct operations only in accordance with a master use permit and right-of-way use permit. (Ord. 1953 § 2, 2017).

15.04.070 Master use permit authorization, when required, fees.

A. All providers of cable television service and telecommunications service who desire to construct, install, operate, maintain or otherwise locate or remove facilities in, under, over or across any right-of-way of the city for the sole purpose of providing telecommunications or cable television service to persons and areas outside of the city shall first obtain a master use permit pursuant to the provisions of this chapter.

B. When MUP is optional:

1. When a franchisee has provided the information required by this chapter for a MUP as part of the franchise approval process (a ROW permit will still be required for actual construction);

2. Holders of state-wide franchises, which may not be required to obtain a master use permit, are requested to do so in accordance with RCW 35.99.030(1).

C. Fees. Each master use permit granted under this chapter is subject to the city’s right, which is expressly reserved, to annually fix a fair and reasonable compensation to be paid for the right to occupy and use the public ways of the city granted under such permits; provided, nothing in this chapter shall prohibit the city and a permittee from agreeing to the compensation to be paid. State and federal prohibitions and preemptions may apply, and this provision shall be interpreted to conform to such state or federal restrictions, including but not limited to RCW 35.21.860. (Ord. 1953 § 2, 2017).

15.04.080 Master use permit application.

A complete master use permit application shall be submitted to the city under the circumstances described in PMC 15.04.070, which shall include the following information:

A. The identity of the applicant, including all affiliates of the applicant;

B. Identification of the franchise that the applicant has with the city;

C. A description of the services that are or will be offered or provided by the applicant through its facilities;

D. A description of the transmission medium that will be used by the applicant to offer or provide such services;

E. Preliminary engineering plans, specifications and a network map of the facilities to be located within the city, depicted on a 22- by 34-inch sheet format in sufficient detail to identify:

1. The horizontal and vertical location and proposed route requested for applicant’s proposed facilities;

2. The location of all overhead and underground public utility, telecommunication, cable, water, sewer drainage and other facilities in the public way along the proposed route; underground crossings shall be positively determined to within one-half foot through the use of vacuum excavation, potholing, probing, electronic detection, or a combination thereof;

3. The specific trees, structures, improvements, facilities and obstructions, if any, that applicant proposes to temporarily or permanently remove or relocate;

4. Depiction of existing utilities and other public and/or private facilities including but not limited to cross streets, permanent landmarks or other points of reference;

5. Existing right-of-way boundaries;

6. Cross-section(s) of existing roadway(s) with proposed facilities, including offsets and depth;

7. Proposed construction notes stating compaction and testing requirements;

8. Restoration details conforming to adopted city standards;

9. All maps, including a required area map, shall have centerline stations and a north arrow orienting the map;

10. Temporary erosion and sedimentary control plan utilizing best management practices;

F. If applicant is proposing to install overhead facilities, evidence that it has obtained the permission of the owner of existing poles or, in the alternative, that surplus space is available for locating its telecommunication facilities on existing poles along the proposed route;

G. If applicant is proposing an underground installation in existing public ducts or conduits within the right-of-way, information in sufficient detail to identify:

1. The excess capacity currently available in such public ducts or conduits before installation of applicant’s facilities;

2. The excess capacity, if any, that will exist in such public ducts or conduits after installation of applicant’s facilities;

H. If applicant is proposing an underground installation within new ducts or conduits to be constructed within the right-of-way:

1. The location proposed for the new ducts or conduits;

2. The excess capacity that will exist in such public ducts or conduits after installation of applicant’s telecommunications facilities;

3. Provision to be made for the installation of public conduit pursuant to PMC 15.04.230;

I. A preliminary construction schedule and completion date;

J. A preliminary traffic control plan in accordance with the city’s adopted street standards and the Manual of Uniform Traffic Control Devices (MUTCD) and current city and state standards;

K. An electronic copy of the record drawings shall be submitted on CD disk to city engineer within 30 calendar days of completion of permitted work and submittal shall be in AutoCAD Release 2010, or compatible software, and shall have horizontal control based on State Plane North Zone, and vertical control based on NGVD 88;

L. Financial statements prepared in accordance with general accepted accounting principles demonstrating the applicant’s financial ability to construct, operate, maintain, relocate and remove the facilities;

M. Information in sufficient detail to establish that the applicant has obtained all other governmental approvals and permits to construct and operate the facilities and to offer or provide the telecommunications services;

N. An application fee which shall be set by the city council by resolution and any deposits or charges established by resolution;

O. Requirements in subsections L and M of this section may be satisfied pursuant to the relevant requirement of a valid franchise issued to the applicant by the city. (Ord. 1953 § 2, 2017).

15.04.090 Issuance/denial of a master use permit.

The city public works director shall review the master use permit application and shall be in writing, shall be based on the documents in the city’s files, including any approved franchise, and shall consider/apply the factors set forth below:

A. The financial and technical ability of the applicant;

B. The capacity of the right-of-way to accommodate the applicant’s proposed facilities;

C. The capacity of the right-of-way to accommodate additional utility, cable and telecommunications facilities if the master use permit is granted;

D. The damage or disruption, if any, of public or private facilities, improvements, service, travel or landscaping if the master use permit is granted;

E. The public interest in minimizing the cost of the disruption of construction within the right-of-way;

F. The effect, if any, on public health, safety and welfare if the master use permit is granted;

G. The availability of alternate routes and/or locations for the proposed facilities;

H. Applicable local, federal and state laws, regulations and policies;

I. Such other factors as may demonstrate that the grant to use the right-of-way will serve the community interest. (Ord. 1953 § 2, 2017).

15.04.100 Time period for action on master use permit.

The city shall act on a complete master use permit application in 120 days after submission of the complete application. “Act” means to grant without conditions, grant with conditions or deny the permit. No master use permit shall be deemed to have been granted until the city has issued a written permit setting forth the particular terms and provisions under which the permittee has been granted the right to occupy and use the right-of-way of the city and all preconditions thereto, such as bonding, have been satisfied. (Ord. 1953 § 2, 2017).

15.04.110 Nonexclusive permit.

No master use permit granted under this chapter shall confer any exclusive right, privilege, license or franchise to occupy or use the right-of-way of the city for delivery of telecommunications, cable television services, or any other services or purposes. (Ord. 1953 § 2, 2017).

15.04.120 Rights granted under master use permit.

A. No master use permit granted under this chapter shall convey any right, title or interest in the right-of-way, but shall be deemed a permit only to use and occupy the right-of-way for the limited purposes and term stated in the permit. Further, no master use permit shall be construed as any warranty of title.

B. A master use permit granted under this chapter shall be limited to a grant affecting specific rights-of-way and defined portions thereof for the period specified therein. (Ord. 1953 § 2, 2017).

15.04.130 Amendment of master use permit.

A new master use permit application shall be required of any service provider that desires to extend or locate its facilities in rights-of-way of the city which are not included in a master use permit previously granted under this chapter or in a franchise. If ordered by the city to locate or relocate its telecommunications facilities in public ways not included in a previously granted use permit, the city shall grant a master use or encroachment permit amendment without further application. (Ord. 1953 § 2, 2017).

15.04.140 Renewal of master use permit.

A permittee that desires to renew its master use permit under this chapter shall, not more than 180 days nor less than 90 days before expiration of the current permit, file an application with the city for renewal of its master use permit, which shall include the following:

A. The information required in PMC 15.04.080;

B. Any information required pursuant to the prior master use agreement between the city and the permittee. (This requirement may be satisfied through information previously required of a franchisee.);

C. All deposits or charges required pursuant to this chapter;

D. An application fee which shall be set by the city council by resolution and any deposits or charges established by resolution, ordinance or franchise. (Ord. 1953 § 2, 2017).

15.04.150 Standards for renewal of master use permits.

Within 90 days after receiving a complete application for master use permit renewal, the city shall issue a written determination granting or denying the renewal application in whole or in part. Prior to granting or denying the renewal of a permit under this chapter, the city council shall make a decision based upon the following standards. If the renewal application is denied, the written determination shall include the reasons for nonrenewal:

A. The financial and technical ability of the applicant;

B. The continuing capacity of the rights-of-way to accommodate the applicant’s existing facilities;

C. The applicant’s compliance with the requirements of this chapter and the expired master use permit;

D. Such other factors as may demonstrate that the continued grant to use the right-of-way will serve the community interest. (Ord. 1953 § 2, 2017).

15.04.160 Obligation to cure as a condition of renewal.

No master use permit shall be renewed until any ongoing violations or defaults in the permittee’s performance of the master use permit, or of the requirements of this chapter, have been cured, or a plan detailing the corrective action to be taken by the permittee has been approved by the city. (Ord. 1953 § 2, 2017).

15.04.170 Notification – Transportation improvement plan element of the comprehensive plan.

The city maintains a transportation improvement element as a part of its comprehensive plan addressing a six-year planning horizon. All franchisees and applicants for master use permits are notified that the plan contains a list of city street improvements, sidewalks and other utility projects in the rights-of-way. Franchisees and holders of master use permits as well as any service provider who files notice with the city clerk of their intent to place facilities in the city are hereby placed on notice with respect to the existence of the transportation improvement plan (TIP).

A. Annually, the city clerk shall provide notice regarding the hearing on the transportation improvement plan to telecommunications and cable television service providers as well as all service providers who have provided written notice of intent to the clerk within the past 12 months of their intent to place facilities within the city.

B. Cable television and telecommunications service providers and those wishing to place facilities in the city’s rights-of-way shall then be on notice of the city’s intent and may participate in any public hearing regarding the city’s transportation improvement plan. Upon publication of notice of the adoption of an ordinance regarding the transportation improvement plan, cable television and telecommunications service providers and others desiring to establish facilities within the city’s rights-of-way shall commence the process of consultation with the city regarding such placement.

C. Upon adoption of the transportation improvement plan, the city, through the city engineer or his/her designee, shall notify service providers as soon as practicable thereafter of the need for relocation of service provider’s facilities, specifying the date by which relocation shall be completed. The city shall consult with the affected service providers regarding the date the relocation must be completed. When a project is listed on the city’s TIP, such notice is secondary. Service providers are placed on inquiry and record notice through the adoption of the city’s annual update to the six-year TIP regarding the nature and extent of facilities to be constructed by the city. The service provider shall, at its earliest convenience, provide information to the city in appropriate written format, outlining the extent of facilities to be relocated, the service requirements and the construction sequence for the relocation. The city shall utilize this information through a consulting process to establish the city’s overall construction sequence and constraints, and the construction sequence shall be designed to safely complete the relocation. After the consultation, the city engineer shall establish a final relocation date.

D. Service providers shall complete the relocation by the date specified by the city engineer unless a reviewing court establishes a later date for completion. The standard for review by the city engineer and by any reviewing court shall be based upon a showing of substantial and competent evidence by the services provider that the relocation cannot be completed by the date specified, using best efforts in meeting safety and service requirements. (Ord. 1953 § 2, 2017).

15.04.180 Notice and liability.

The city is not liable for damages for failure to provide individual notice to any permittee or franchisee under PMC 15.04.170. Where the city has failed to provide notice of plans to open a right-of-way consistent with PMC 15.04.170, the city may not deny a MUP use permit to a service provider on the basis that the service provider failed to coordinate with another city project. No service provider may claim a lack of notice where a project has been included on the city’s annually amended transportation improvement plan and notice of the transportation improvement plan element of the comprehensive plan has been published in accordance with the provisions of state law. (Ord. 1953 § 2, 2017).

15.04.190 Location within an open right-of-way.

In order to locate facilities within a right-of-way opened by a public or private construction project, a service provider shall:

A. Obtain either all use permits and city-required bonds, including, but not limited to, a right-of-way use permit under Chapter 13.12 PMC or master use permit for the installation, maintenance, repair, or removal of facilities in the designated right-of-way;

B. Comply with applicable ordinances, construction codes, regulations and standards applicable to the installation of facilities and the restoration of the right-of-way, subject to verification by the city of compliance with such standards, regulations and ordinances;

C. Cooperate with the city by complying with all traffic control measures and other requirements designed to ensure that facilities are installed, maintained, repaired and removed within the right-of-way in such a manner and at such points as not to inconvenience the public use of the right-of-way or to adversely affect the public health, safety and welfare;

D. Provide information and plans reasonably necessary following notification of projects through publication of the city’s transportation improvement plan. The provision of advance planning information shall conform to requirements established by the city engineer;

E. Obtain the written approval of the facility or structure owner, if the service provider does not own it, prior to attaching to or otherwise using a facility or structure in the right-of-way;

F. Construct, install, operate and maintain its facilities solely at its own expense;

G. Comply with applicable federal and state safety laws and standards;

H. Nothing herein shall be deemed to create, expand or extend any liability of the city to a third-party user of the facilities or a third-party beneficiary. The city engineer shall require provision of an indemnity agreement and certifications of insurance as conditions of a service provider’s right for a facility to occupy the city’s right-of-way; provided, however, that these requirements shall be met by holders of franchises and encroachment permits or master use permits if they provide the indemnity and insurance required by such use permits and franchises. (Ord. 1953 § 2, 2017).

15.04.200 Relocation of facilities – Cost.

Service providers may not seek reimbursement for relocation expenses from the city following the city’s request to relocate under PMC 15.04.170, except in the following circumstances:

A. Where the service provider paid for the relocation costs of the same facilities at the request of the city within the past five years. In this case, the service provider’s share of the cost of relocation shall be paid by the city;

B. Where the aerial to underground relocation of authorized facilities is required by the city, service providers with an ownership share of the aerial supporting structures, the additional incremental cost of underground compared to aerial relocation, or as provided for in an approved tariff if less, will be paid by the city;

C. Where the city requests relocation solely for aesthetic purposes, unless otherwise agreed to by the parties. (Ord. 1953 § 2, 2017).

15.04.210 Relocation for private benefit.

Where the city or a private party has requested a service provider to relocate a project primarily for private benefit, the private party or parties shall reimburse the cost of relocation to the service provider or providers. Service providers shall not be precluded from recovering their costs associated with relocation; provided, that the recovery is consistent with this chapter and other applicable laws and ordinances. (Ord. 1953 § 2, 2017).

15.04.220 Emergency relocation.

The city may require relocation facilities at the service provider’s expense in the event of an unforeseen emergency that creates an immediate threat to the public safety or welfare. (Ord. 1953 § 2, 2017).

15.04.230 Additional ducts or conduits – City may require.

The city may require that a service provider that is constructing, relocating or placing ducts or conduits in public rights-of-way provide the city with additional duct or conduit and related structures necessary to access the conduit; provided, that:

A. The city enters into a contract with the service provider consistent with RCW 80.36.150. The contract rates to be charged should recover the incremental cost to the service provider. 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 cost of the service provider. The service provider shall state both contract rates in the contract. The city shall inform the service provider of the use, and any changes in use of the requested duct or conduit and related access structures in order to determine the applicable rate to be paid by the city.

B. Except as otherwise agreed by the service provider and the city, the city agrees that the requested additional duct or conduit space and related access structures shall not be used by the city to provide telecommunications or cable television service for hire, sale or resale to the general public.

C. The city shall not require that the additional duct or conduit space be connected to the access structures and vaults of the service provider.

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

E. This section shall not affect the provision of an institutional network by a cable television provider under federal law. (Ord. 1953 § 2, 2017).