Chapter 11.02
GENERAL PROVISIONS
Sections:
11.02.030 Business license required.
11.02.050 Master permit required.
11.02.060 Cable franchise required.
11.02.070 Facilities lease required.
11.02.080 Use permits required.
11.02.120 Initial inquiry/responsibilities.
11.02.140 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 and facilities;
B. Establish guidelines, standards, and time frames for the exercise of local authority with respect to the regulation of telecommunications providers and facilities;
C. Promote competition in telecommunications services;
D. Minimize unnecessary local regulation of telecommunications providers, facilities, and services;
E. Permit and manage reasonable access to the rights-of-way for telecommunications facilities purposes on a competitively neutral basis consistent with applicable federal and state law;
F. Conserve the limited physical capacity of the rights-of-way;
G. Assure that the city’s current and ongoing costs of granting and regulating private access to and use of the rights-of-way are fully paid by the service providers or persons seeking such access and causing such costs;
H. Assure that all telecommunications facilities owners and/or service providers within the city comply with the ordinances, rules and regulations of the city;
I. Enable the city to discharge its public trust consistent with continually evolving federal and state regulatory policies, industry competition and technological development;
J. Ensure the timely restoration of rights-of-way; and
K. Create a regulatory environment that is flexible and can address future changes in technology as well as state and federal regulations. Toward this end, it is the city’s intent that the term telecommunications is to be interpreted under this title in the broadest possible way to cover the widest range of technologies and technology infrastructure, unless such interpretations would specifically conflict with how these terms may be defined by federal or state law.
(Ord. O2018-025, Amended, 12/18/2018; Ord. O2000-023, Amended, 04/03/2001; Ord. O97-021, Added, 07/21/1998)
11.02.020 Definitions.
For the purpose of this title, 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:
“Accessory equipment” means any equipment serving or being used in conjunction with a wireless communication facility as defined herein, including, but not limited to, utility or transmission equipment, power supplies, generators, batteries, cables, equipment buildings, cabinets and storage sheds, shelters, or other structures.
“Accessory wireless communication antenna” means a ground mounted (freestanding) or building mounted (attached) antenna for the sole use of residents, patrons of a business, or other occupants of property for the original transmission or final reception of communications or data as an accessory to a permitted use on the property on which the antenna is located. Types of accessory wireless communication antennas include:
1. “Category I (radio and television)” means “receive-only” radio and television antennas or parabolic (“dish”) antennas not exceeding one meter (approximately thirty-nine and one-half inches) in diameter, usually supported by a single pole, post, or mast, with an antenna height not exceeding fifteen feet above grade for freestanding antennas or ten feet above the height of the building upon which mounted for attached antennas;
2. “Category II (amateur radio antenna)” means “send and receive” citizen band radio antennas or similar antennas operated by a federally licensed amateur (“ham”) radio operator at a dwelling, with an antenna height not exceeding the maximum height for buildings on the property upon which the antenna is located, except as provided otherwise in TMC 11.20.070(F);
3. “Category III (accessory mobile antenna device)” means an antenna including, but not limited to, mobile test antennas, global positioning satellite (GPS) equipment, or mobile radio or television antennas, which are less than twelve inches in height or width, excluding the support structure; or
4. “Category IV (minor telecommunications antenna)” means “send and receive” data transmission or communication antennas or parabolic (dish) antennas (other than Category I and II antennas) not exceeding one meter (thirty-nine and one-half inches) in diameter, usually supported by a single pole, post, or mast, with an antenna height not exceeding fifteen feet above grade for freestanding antennas or the height of the building upon which mounted for attached antennas, and including small cell wireless facility antennas that meet the size requirements set forth herein.
“Antenna” means any device used to transmit and/or receive radio or electromagnetic waves such as, but not limited to, panel antennas, reflecting discs, microwave dishes, whip antennas, directional and nondirectional antennas consisting of one or more elements, multiple antenna configurations, or other similar devices and configurations, and exterior apparatus designed for telephone, radio, or television communications through the sending and/or receiving of wireless communications signals.
“Applicant” means any service provider, person, or entity that applies for any authorization, master permit, use permit, lease, license, or permit pursuant to this title through TMC Chapter 11.20.
“Attached wireless communication facility” is a wireless communication facility that is affixed to an existing structure other than a wireless communication support structure. Examples of attached wireless communication facilities include antennas affixed to or erected upon existing buildings, water tanks, or other existing structures.
“Base station” means the structure or equipment at a fixed location that enables wireless communications, licensed or authorized by the FCC, between user equipment and a communications network. The term does not encompass a wireless communication tower as defined in this title or any equipment associated with a wireless communication tower.
“Cable Act” means the Cable Communications Policy Act of 1984 and the Cable Television Consumer Protection and Competition Act of 1992, as amended.
“Cable facilities” means equipment and wiring used to transmit audio and video signals to subscribers.
“Cable operator” means a service provider providing or offering to provide “cable television service” within the city as that term is defined in the Cable Act.
“Cable 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.
“Camouflage,” “concealment” or “camouflage design techniques” means that a wireless communication facility is camouflaged or utilizes camouflage design techniques when any measures are used in the design and siting of wireless communication facilities with the intent to minimize or eliminate the visual impact of such facilities to surrounding uses. A wireless communication facility site utilizes camouflage design techniques when it (1) is integrated in an outdoor fixture such as a flagpole, or (2) uses a design which mimics and is consistent with the nearby natural or architectural features (such as an artificial tree), or (3) is incorporated into (including, without limitation, being attached to the exterior of such facilities and painted to match it), or replaces existing permitted facilities (including without limitation, freestanding light standards) so that the presence of the wireless communication facility is minimized or not readily apparent.
“City” means the city of Tumwater, Washington.
“City property” means and includes all real property owned by the city, other than rights-of-way and utility easements as those terms are defined herein, and all property held in a proprietary capacity by the city, which are not subject to right-of-way licensing and franchising as provided in this title through TMC Chapter 11.20.
“Colocation” 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, or the mounting or installation of an antenna on an existing wireless communication tower, building, or structure for the purpose of transmitting and/or receiving radio frequency signals for communications purposes.
“Council” means the city council of the city of Tumwater, Washington, acting in its official capacity.
“Development guidelines” means the most current version of the city of Tumwater’s development guidelines and public works standards.
“Director” means the community development department director.
“Eligible facilities request” means any request for modification of an existing wireless communication tower or base station that does not substantially change the physical dimensions of such wireless communication tower or base station involving: (1) colocation of new transmission equipment, (2) removal of transmission equipment, or (3) replacement of transmission equipment.
“Eligible support structure” means any wireless communication tower or base station as defined in this title; provided, that it is existing at the time the relevant application is filed with the city under this title.
“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.
“Emergency communication towers and antennas” means any structure not entirely within an enclosed building or vehicle, including antennas, guy wires, microwave dishes or horns, structures or towers to support receiving and/or transmitting devices, accessory buildings, i.e., equipment storage buildings, energy power generating housing, and the land on which they are situated, that is used for the transmission or reception of electromagnetic waves for emergency communication purposes including but not limited to the Capitol Communications system (CAPCOM) or other public emergency communication systems.
“Equipment shelter or cabinet” means a room, cabinet, or building, the sole or primary purpose of which is used to house equipment for utility or service providers.
“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.
“Existing wireless communication tower” or “existing base station” means a constructed communication tower or base station that 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 approved because it was not in a zoned area when it was built, but was lawfully constructed is existing for purposes of this definition.
“Facilities” means all of the plant, equipment, fixtures, appurtenances, antennas and other facilities necessary to furnish and deliver telecommunications services including but not limited to poles with crossarms, poles without crossarms, 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.
“FCC” or “Federal Communications Commission” means the federal administrative agency, or lawful successor, authorized to implement and enforce federal communications laws and regulations.
“Fiber optics” means the facilities that utilize the technology of guiding and projecting light for use as a communications medium.
“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.
“Master permittee” means the person, firm, or corporation to whom or which a master permit, as defined in this section, is granted by the city council under this title through TMC Chapter 11.06 and the lawful successor, transferee or assignee of said person, firm, or corporation subject to such conditions as may be defined in this title.
“Micro wireless facility” means a small cell wireless facility having dimensions no larger than twenty-four inches in length, fifteen inches in width, and twelve inches in height and an exterior antenna, if any, no longer than eleven inches.
“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.
“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).
“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.
“Right-of-way” or “rights-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.
“Service provider” means every person, city, or town owning, operating, or managing any facilities used to provide and in providing telecommunications or cable services for hire, sale, or resale. Service provider includes the legal successor to any such person, city, or town.
“Site” means for wireless communication towers other than wireless communication towers in the right-of-way, the current boundaries of the leased or owned property surrounding the wireless communication tower and any access or utility easements currently related to the site, and, for other eligible support structures, further restricted to that area in proximity to the structure and to other transmission equipment already deployed on the ground.
“Small cell wireless facility” or “small wireless facility” means a wireless communication facility where each antenna is no more than three cubic feet; and primary equipment enclosures are not larger than twenty-eight cubic feet in volume.
“State” means the state of Washington.
“Substantial change” means a modification that substantially changes the physical dimensions of an eligible support structure if, after the modification, the structure meets any of the following criteria:
1. For wireless communication towers other than wireless communication towers in the right-of-way, it increases the height of the wireless communication tower by more than ten percent or by the height of one additional antenna array with separation from the nearest existing antenna not to exceed twenty feet, whichever is greater; for other eligible support structures, it increases the height of the structure by more than ten percent or more than ten feet, whichever is greater;
2. For wireless communication towers other than wireless communication towers in the right-of-way, it involves adding an appurtenance to the body of the wireless communication tower that would protrude from the edge of the wireless communication tower more than twenty feet, or more than the width of the wireless communication 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 wireless communication 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 associated with the structure, or else involves installation of ground cabinets that are more than ten 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, and for purposes of this subsection, a change which undermines the concealment elements of an eligible support structure will be considered defeating the concealment elements and therefore, a substantial change; 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, unless the noncompliance is in a manner that would exceed the thresholds identified in subsections (1) through (4) of this definition.
For purposes of determining whether a substantial change exists, changes in height are measured from the original support structure in cases where deployments are or will be separated horizontally, such as on traffic signals; in other circumstances, changes in height are measured from the dimensions of the wireless communication tower or base station, inclusive of originally approved appurtenances and any modifications that were approved prior to February 22, 2012.
“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 definition, “information” means knowledge or intelligence represented by any form of writing, signs, signals, pictures, sounds, or any other symbols. For the purpose of this title, telecommunications service excludes the over-the-air transmission of broadcast television or broadcast radio signals.
“Transmission equipment” means any equipment that facilitates transmission for any FCC licensed or authorized wireless communication service, including, but not limited to, radio transceivers, antennas, coaxial or fiber optic cable, and regular and backup power supply. The term includes equipment associated with 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.
“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.
“Use permit” means the authorization from the city, in a form developed by the public works director, 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.
“Utility easement” means any easement owned by the city and acquired, established, dedicated, or devoted for utility purposes not inconsistent with facilities.
“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 rights-of-way and used or to be used for the purpose of providing utility or telecommunications service.
“Wireless communication facility” or “WCF” means a facility used to provide personal wireless services as defined at 47 U.S.C. Section 332 (c)(7)(C); or wireless information services provided to the public or to such classes of users as to be effectively available directly to the public via licensed or unlicensed frequencies; or wireless utility monitoring and control services. A WCF does not include a facility entirely enclosed within a permitted building where the installation does not require a modification of the exterior of the building; nor does it include an accessory wireless communications antenna, used for serving that building only and that is otherwise permitted under other provisions of the TMC. A WCF includes an antenna or antennas, including without limitation, direction, omni-directional and parabolic antennas, support equipment, alternative tower structures, and wireless communication towers. It does not include the support structure to which the WCF or its components are attached if the use of such structures for WCFs is not the primary use. The term does not include mobile transmitting devices used by wireless service subscribers, such as vehicle or hand-held radios or telephones and their associated transmitting antennas, nor does it include other facilities specifically excluded from the coverage of this title.
“Wireless communication tower” means any structure built for the sole or primary purpose of supporting one or more 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. The term includes self-supporting lattice towers, guy towers or monopole towers, radio and television transmission towers, microwave towers, common carrier towers, cellular telephone towers, alternative tower structures, and the like.
(Ord. O2018-025, Amended, 12/18/2018; Ord. O2011-002, Amended, 03/01/2011; Ord. O2000-023, Amended, 04/03/2001; Ord. O97-021, Added, 07/21/1998)
11.02.030 Business license required.
Except as otherwise provided herein, persons engaged in the business of transmitting, supplying, or furnishing of telecommunication services of any kind originating or terminating in the city shall apply for and obtain a business license from the city pursuant to TMC Chapter 5.04.
(Ord. O2018-025, Amended, 12/18/2018; Ord. O2000-023, Amended, 04/03/2001; Ord. O97-021, Added, 07/21/1998)
11.02.050 Master permit required.
Except as otherwise provided herein, any person who desires to construct, install, operate, maintain, or otherwise locate facilities in, under, over, or across any right-of-way, and to also provide telecommunications service to persons or areas in the city, including, without limitation, a person seeking to deploy small cell wireless facilities, shall first obtain a master permit granting the use of such right-of-way from the city pursuant to TMC Chapter 11.06 or Chapter 11.20, as applicable.
(Ord. O2018-025, Amended, 12/18/2018; Ord. O2000-023, Amended, 04/03/2001; Ord. O97-021, Added, 07/21/1998)
11.02.060 Cable franchise required.
Except as otherwise provided herein, any person who desires to construct, install, operate, maintain, or locate a cable system in any right-of-way in the city for the purpose of providing cable service to persons in the city shall first obtain a cable franchise from the city. Any such cable operator shall not be subject to this title unless the person is also providing telecommunications service.
(Ord. O2018-025, Amended, 12/18/2018; Ord. O2000-023, Amended, 04/03/2001; Ord. O97-021, Added, 07/21/1998)
11.02.070 Facilities lease required.
No person 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 TMC Chapter 11.08. 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 this title applicable to such facilities leases.
(Ord. O2018-025, Amended, 12/18/2018; Ord. O2000-023, Amended, 04/03/2001; Ord. O97-021, Added, 07/21/1998)
11.02.080 Use permits required.
Except as otherwise provided herein, the holder of a right-of-way authorization, master permit, lease, or license granted pursuant to TMC Chapter 11.08, and the holders of cable franchises granted by the city, shall, in addition to said authorization, master permit, lease, or license, be required to obtain a use permit from the city pursuant to TMC Chapter 11.12 and pay a disruption fee, if applicable, as set forth in TMC 12.16.060. No work, construction, development, excavation, or installation of any equipment or facilities shall take place within the rights-of-way or upon city property until such time as the use permit is issued pursuant to development guidelines.
(Ord. O2018-025, Amended, 12/18/2018; Ord. O2000-023, Amended, 04/03/2001; Ord. O97-021, Added, 07/21/1998)
11.02.090 Application to existing franchise ordinances, agreements, licenses, leases, and permits – Effect of other laws.
A. These provisions shall have no effect on any existing franchise ordinance, franchise agreement, licenses, lease, permit, or other authorization to use or occupy any rights-of-way in the city until:
1. The expiration of said franchise ordinance, agreement, lease, license, permit, or authorization; or
2. An amendment to an unexpired franchise ordinance, franchise agreement, license, lease, permit, or authorization that has been approved, 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. O2018-025, Amended, 12/18/2018; Ord. O97-021, Added, 07/21/1998)
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 this title shall be subject to a penalty in an amount not less than $100.00 nor more than $1,000 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 this title shall be liable for all damage to public or private property arising from such violation, including, without limitation, the cost of restoring the affected area in accordance with the city’s development guidelines and any damages incurred by the city for construction delays.
3. The penalty imposed by this section shall be collected by civil action brought by the city attorney.
B. Criminal Penalty. 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 title shall be subject to criminal prosecution and be guilty of a gross misdemeanor. Each day of noncompliance with any of the applicable provisions of the title shall constitute a separate offense.
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 title 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 title may also result in the revocation of any authorization, franchise, approval, license, lease, or permit issued or granted hereunder, as set forth in TMC 11.10.320 through 11.10.350.
(Ord. O2018-025, Amended, 12/18/2018; Ord. O2011-007, Amended, 07/19/2011; Ord. O97-021, Added, 07/21/1998)
11.02.120 Initial inquiry/responsibilities.
Initial inquiries regarding cable and telecommunications franchises or other authorizations, right-of-way authorizations or facilities leases or licenses shall be directed to the director or designee for determination of which type or types of agreements and permits are required. The director or designee shall have lead responsibility for negotiating franchises, leases, and licenses, and shall coordinate such matters with such other departments whose input is needed.
(Ord. O2018-025, Amended, 12/18/2018; Ord. O2011-002, Amended, 03/01/2011; Ord. O97-021, Added, 07/21/1998)
11.02.130 Other penalties.
Nothing in this title shall be construed as limiting any judicial remedies that the city may have, at law or in equity, for enforcement of this title.
(Ord. O2018-025, Amended, 12/18/2018; Ord. O97-021, Added, 07/21/1998)
11.02.140 Penalties not a tax.
The penalties provided for under TMC 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. O2018-025, Amended, 12/18/2018; Ord. O2000-023, Amended, 04/03/2001; Ord. O97-021, Added, 07/21/1998)