Not an official copy.
Tacoma, WA
Ordinance No. 26053
AN ORDINANCE regulating the occupancy and use of public rights-of-way by telecommunications systems, cable systems, and private communication systems, regulating cable systems and providing cable customer service standards; establishing franchise and licensing requirements for operators of such systems and certain resellers; and prescribing minimum charges, terms, and conditions for and upon the construction, maintenance, and repair of such systems; amending the Tacoma Municipal Code by adding a new title thereto, to be known as Title 16, Telecommunication Systems, Cable Systems, and Private Communication Systems, consisting of six chapters; and amending Chapter 12.02 by adding a new Section 12.02.015 thereto.
WHEREAS it is anticipated that an ever-increasing number of telecommunication carriers and providers will request access to and use of public rights-of-way for provision of telecommunications service to the public, and
WHEREAS, under applicable laws and its Charter, the City of Tacoma has the authority to regulate the use of streets, public rights-of-way, and other municipal property, and to grant access thereto upon certain terms and conditions, and
WHEREAS, the public streets, alleys, utility easements dedicated for compatible uses, and other rights-of-way within the City:
(1) are critical to the travel of persons and the transport of goods and other tangibles in the business and social life of the community by all citizens; are used by the City to provide critical services to its citizens, including electric services, services to protect public safety, and water and other public utilities; and are used by the City to provide communications and other services to itself and other government agencies;
(2) can be partially occupied by private utilities and other public service entities for facilities used in the delivery, conveyance, and transmission of utility and public services rendered for profit, to the enhancement of the health, welfare, and general economic well-being of the City and its citizens; and
(3) are a unique and physically limited resource so that proper management by the City is necessary to maximize the efficiency and to minimize the costs to the taxpayers of the foregoing uses, to protect against foreclosure of future economic expansion because of premature exhaustion of the Public Rights-of-Way as an economic resource, and to minimize the inconvenience to and negative effects upon the public from such facilities' construction, emplacement, relocation, and maintenance in the rights-of-way; and
(4) are intended for public uses and must be managed and controlled consistent with that intent, and
WHEREAS the City wishes to promote availability of high-quality and diverse telecommunications services to City residents, businesses, the City, and other public institutions; to promote the availability of diverse information resources to the community, including through the development of advanced telecommunications systems that can support public, educational, and governmental programming and high-speed access to the Internet; access to communications facilities; to promote competitive cable rates and services; to take advantage of telecommunications technologies to provide for more open government; to enhance educational opportunities throughout the community and provide opportunities for building a stronger community; and to allow flexibility to respond to changes in technology, subscriber interests, and competitive factors within the communications industry that will affect the health, welfare, and well-being of the community;
WHEREAS the right to place privately-owned facilities and fixtures in such rights-of-way for the business of providing telecommunications services for hire, cable services, or open video services is a valuable economic right to use a unique public resource that has been acquired and is maintained at great expense to the City and its taxpayers, the economic benefit of which should be shared with the taxpayers of the City, and
WHEREAS the City is authorized by state and local law to control the use of public rights-of-way, and to franchise operators of telecommunications systems, open video systems and cable systems which use such rights-of-way, and
WHEREAS the City finds that it is in the interest of the public to franchise and to establish standards for franchising such operators and licensing private communications systems in a manner which (1) overall compensates the City for the fair market value of such property used and for ongoing costs associated with the use of that property insofar as possible; (2) encourages competition by establishing terms and conditions under which an operator of a telecommunications system, an operator of a cable system, or an operator of an open video system may use valuable public property to serve the public; (3) fully protects the public and the City from any harm that may flow from such private use of rights-of-way; (4) protects and carries out the regulatory authority of the City, in a manner consistent with federal and state law and recovers regulatory costs; (5) protects the City's interests in using the rights-of-way for the provision of services to the public, other governmental agencies and itself; and (6) otherwise protects the public interests in the development and use of the City's infrastructure and in preserving and improving the aesthetics of the community, and
WHEREAS the City finds that it is appropriate for various operators to obtain separate franchises based on the type of service provided, in order to conform to the requirements of the City's Charter, to protect public rights-of-way throughout the City, provide for City control over the placement of facilities in the rights-of-way, and to ensure that similarly situated operators can be comparably treated and to avoid confusion as to regulatory authority applicable to each type of franchise, and
WHEREAS, in light of federal and state law, and the changes to local procedures required by them, the City finds that it is necessary and appropriate to apply the provisions hereof to existing franchisees and licensees as far as is possible; and to apply it to those with pending or new applications to place facilities in public rights-of-way for communications purposes; Now, Therefore,
BE IT ORDAINED BY THE CITY OF TACOMA:
Section 1. That the Tacoma Municipal Code is hereby amended by adding thereto a new title, to be known as Title 16, “Telecommunication Systems, Cable Systems, and Private Communication Systems,” consisting of six new chapters, to read as follows:
Title 16
TELECOMMUNICATION SYSTEMS, CABLE SYSTEMS, AND PRIVATE COMMUNICATION SYSTEMS
Chapters:
16.01 General
16.01.1 Purpose.
16.01.2 Policy Guidelines.
16.01.3 Definitions.
16.01.4 Franchise required.
16.01.5 Cost Recovery.
16.01.6 General conditions upon use of public rights-of-way.
16.01.7 Protection of the City and residents.
16.01.8 Enforcement and remedies.
16.01.9 Transitional provisions.
16.01.10 Special rules for government entities.
16.01.11 No waiver.
16.02 Special Rules Applicable to Telecommunications Facilities and Telecommunications Service Providers
16.02.1 Application for a Franchise.
16.02.2 Compensation.
16.02.3 Additional Franchise requirements.
16.03 Special Rules Applicable to Open Video Systems
16.03.1 Application for a Franchise.
16.03.2 Compensation.
16.03.3 Annual reports.
16.04 Special Rules Applicable to Cable Television Systems
16.04.1 Additional definitions.
16.04.2 No exclusivity.
16.04.3 Relation to 47 U.S.C. §§ 545-546.
16.04.4 Applications for grant, renewal, or modification of Franchise.
16.04.5 Construction provisions.
16.04.6 Operation and reporting provisions.
16.04.7 Rate regulation and consumer protection.
16.04.8 Franchise fee.
16.04.9 Transfers.
16.04.10 Connections to cable systems; use of antennae.
16.04.11 Discrimination prohibited.
16.04.12 Cable service penalties.
16.05 Private Communications Facilities
16.05.1 Application for License.
16.05.2 Conditions of License.
16.05.3 Compensation.
16.06 Miscellaneous
16.06.1 Captions.
16.06.2 Calculation of time.
16.06.3 Severability.
16.06.4 Cable customer service standards.
16.06.5 Cable customer service standards - relation to other standards.
16.06.6 Customer service waiver.
Chapter 16.01 GENERAL
Sections:
16.01.1 Purpose.
16.01.2 Policy guidelines.
16.01.3 Definitions.
16.01.3.1 Generally
16.01.3.2 Affiliate
16.01.3.3 Application Fee
16.01.3.4 Cable Service
16.01.3.5 Cable System
16.01.3.6 City
16.01.3.7 City Manager
16.01.3.8 Communications Facility
16.01.3.9 Communications System
16.01.3.10 Construction, Operation or Repair
16.01.3.11 Franchise
16.01.3.12 Franchise Area
16.01.3.13 Franchisee
16.01.3.14 FCC
16.01.3.15 Gross Revenues
16.01.3.16 License
16.01.3.17 Open Video System, or "OVS"
16.01.3.18 Operator
16.01.3.19 Overhead Facilities
16.01.3.20 Person
16.01.3.21 Private Communications System
16.01.3.22 Private Communications System Owner
16.01.3.23 Programmer
16.01.3.24 Public Rights-of-Way
16.01.3.25 Reseller
16.01.3.26 Telecommunications Service
16.01.3.27 Telecommunications System
16.01.3.28 Title
16.01.3.29 Transfer
16.01.3.30 Underground Facilities
16.01.4 Franchise required.
16.01.4.1 Purpose and characteristics
16.01.4.2 Franchise requirement
16.01.4.3 Exceptions
16.01.4.4 Nature of grant
16.01.5 Cost Recovery.
16.01.5.1 Purpose
16.01.5.2 Compensation for use
16.01.5.3 Payments required
16.01.5.4 Payment of Costs
16.01.5.5 Exceptions
16.01.5.6 Billable work order
16.01.5.7 Application to persons that provide different types of services
16.01.5.8 General rules for payment of fees and assessments
16.01.6 General conditions upon use of public rights-of-way.
16.01.6.1 Responsibility for costs
16.01.6.2 Construction procedures and placement of facilities; obligations to
minimize interference with use of public rights-of-way
16.01.6.3 Relocation of facilities
16.01.6.4 Facility subject to inspection; operator must provide information
16.01.6.5 Plans for and publicizing work
16.01.7 Protection of the City and residents.
16.01.7.1 Indemnification
16.01.7.2 Insurance
16.01.7.3 Performance/payment bonds
16.01.7.4 Security fund
16.01.8 Enforcement and remedies.
16.01.8.1 City Manager responsible for administration
16.01.8.2 Applications for Franchises and Licenses
16.01.8.3 Minimum contents of every Franchise or License
16.01.8.4 Penalties
16.01.8.5 Revocation, reduction of term, or forfeiture of Franchise or License
16.01.8.6 Effect of termination or forfeiture
16.01.8.7 Remedies Cumulative
16.01.8.8 Access to books and records
16.01.8.9 Retention of records; relation to privacy rights
16.01.8.10 Reports
16.01.8.11 Maps
16.01.8.12 Compliance with laws
16.01.8.13 Reservation of authority
16.01.8.14 No waiver
16.01.8.15 Title not a contract
16.01.9 Transitional provisions.
16.01.9.1 Persons operating without a Franchise or License
16.01.9.2 Persons holding Franchises or Licenses
16.01.9.3 Persons holding leases for property in the right-of-way
16.01.9.4 Persons with pending applications
16.01.9.5 Transitional rules to be narrowly interpreted
16.01.10 Special rules for government entities.
16.01.11 No waiver.
16.01.1 Purpose. The purpose of this Title is to:
16.01.1.1 Establish a local policy concerning telecommunications systems, cable systems, open video systems, and private communication systems that use the Public Rights-of-Way;
16.01.1.2 Establish a policy that promotes availability of high-quality and diverse telecommunications services to City residents, businesses, the City, and other public institutions; promotes the availability of diverse, multimedia information resources to the community; provides for the development of a communications infrastructure that provides opportunities for more open government, enhancing educational opportunities throughout the community, providing public access to the communications infrastructure, and building a stronger community; while ensuring that the City has the authority to act to protect the public, safety, and welfare in the face of a rapidly-changing industry that is placing increasing demand on public resources;
16.01.1.3 Establish clear and nondiscriminatory local guidelines, standards and time frames for the exercise of local authority with respect to the regulation of the use of Public Rights-of-Way by telecommunications operators, cable operators, Open Video System operators, private communication operators, and Resellers, and their respective facilities and licenses;
16.01.1.4 Promote competition in communications;
16.01.1.5 Minimize unnecessary local regulation of providers and services;
16.01.1.6 Encourage the provision of advanced and competitive telecommunications, cable or Open Video System services on the widest possible basis to the businesses, institutions and residents of the City;
16.01.1.7 Permit and manage reasonable access to the Public Rights-of-Way of the City for communications purposes on a competitively neutral basis;
16.01.1.8 Conserve the limited physical capacity of the Public Rights-of-Way held in public trust by the City;
16.01.1.9 Assure that the City's current and ongoing costs of granting and regulating private access to and use of the Public Rights-of-Way are fully paid by the persons seeking such access and causing such costs;
16.01.1.10 Secure fair and reasonable compensation to the City and the residents of the City, in a non-discriminatory manner, for permitting private use of the Public Rights-of-Way;
16.01.1.11 To encourage economic development while preserving aesthetic and other community values and preventing proliferation of above-ground facilities;
16.01.1.12 Assure that all persons providing telecommunications, cable, or open video facilities or services within the City comply with the ordinances, rules and regulations of the City;
16.01.1.13 Ensure the ability of the City to obtain sufficient information from persons subject to its jurisdiction to enable effective decisions regarding their access to City rights-of-way and effective management of activity in the rights-of-way;
16.01.1.14 Assure that the City can continue to fairly and responsibly protect the public health, safety and welfare; and
16.01.1.15 Enable the City to discharge its public trust consistent with rapidly evolving federal and state regulatory policies, industry competition and technological development.
16.01.2 Policy guidelines. The administration of this Title shall be governed by the following telecommunications and video programming policy guidelines:
The City of Tacoma supports efforts to establish an open, competitive marketplace for telecommunications and video programming services. The City promotes and encourages competition for voice, data, video, and video programming services that make the latest and best technology available and keep service prices affordable for all City residents and businesses. An integral component of this open marketplace is the consistent application of regulations to all telecommunications and video programming providers and the preservation of local authority over matters of local impact.
The following policy guidelines express the commitment of the City to support telecommunications and video programming services and to manage its rights-of-way proactively while balancing the interests and needs of the community:
1. The City will manage access to the Public Rights-of-Way for telecommunications purposes in a non-discriminatory, competitively neutral and non-exclusive way to the extent required under applicable law and, to the extent allowed under applicable law, to receive fair compensation. The City will also manage access to its Public Rights-of-Way for video programming purposes in a non-discriminatory, competitively neutral and non-exclusive way to the extent required by applicable law and, to the extent allowed by applicable law, to receive fair compensation.
• The public interest will be protected by collecting full and fair market compensation, associated fees, taxes, administrative costs, and construction costs for use of the rights-of-way.
2. Telecommunications and video programming franchises will be managed to preserve the integrity of the City's infrastructure, ensure efficient use of City property and ensure compliance with City ordinances, rules and regulations.
• Minimal disruption of public property will be ensured.
• Telecommunications and video programming franchisees will be required to place their facilities underground in situations where existing utility services are underground and/or whenever existing Overhead Facilities go underground and/or whenever City policy so requires.
3. Investments by telecommunications and video programming providers will be encouraged in order to enhance economic development programs and provide jobs, opportunities, and choices for its citizens.
• Public and private partnerships are encouraged to meet public service needs and to actively pursue State, Federal, and private grant funding that offers public benefit in advanced telecommunications.
4. Universal access to telecommunications and video programming services is encouraged for all residents and businesses.
16.01.030 Definitions.
16.01.3.1 Generally16.01.3.2 Affiliate
16.01.3.3 Application Fee
16.01.3.4 Cable Service
16.01.3.5 Cable System
16.01.3.6 City
16.01.3.7 City Manager
16.01.3.8 Communications Facility
16.01.3.9 Communications System
16.01.3.10 Construction, Operation or Repair
16.01.3.11 Franchise
16.01.3.12 Franchise Area
16.01.3.13 Franchisee
16.01.3.14 FCC
16.01.3.15 Gross Revenues
16.01.3.16 License
16.01.3.17 Open Video System, or "OVS"
16.01.3.18 Operator
16.01.3.19 Overhead Facilities
16.01.3.20 Person
16.01.3.21 Private Communications System
16.01.3.22 Private Communications System Owner
16.01.3.23 Programmer
16.01.3.24 Public Rights-of-Way
16.01.3.25 Reseller
16.01.3.26 Telecommunications Service
16.01.3.27 Telecommunications System
16.01.3.28 Title
16.01.3.29 Transfer
16.01.3.30 Underground Facilities
16.01.3.1 Generally. For the purposes of this Title, the following terms, phrases, words, and abbreviations shall have the meanings given herein, unless otherwise expressly stated. 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; and the masculine gender includes the feminine gender. The words "shall" and "will" are mandatory, and "may" is permissive. Unless otherwise expressly stated, words not defined in this Title shall be construed consistent with Title 47 of the United States Code, and, if not defined therein, their common and ordinary meaning. References to governmental entities (whether persons or entities) refer to those entities or their successors in authority. If specific provisions of law referred to herein are renumbered, then the reference shall be read to refer to the renumbered provision. References to laws, ordinances or regulations shall be interpreted broadly to cover government actions, however nominated, and include laws, ordinances and regulations now in force or hereinafter enacted or amended.
6.01.3.2 “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.
16.01.3.3 “Application Fee” means the charge specified in Sections 16.01.5.3.1 and designed to recover the City's actual costs in processing applications for Franchises or Licenses, including applications for the transfer thereof.
16.01.3.4 “Cable Service” means”
(A) the one-way transmission to subscribers of (i) video programming, or (ii) other programming service, and
(B) subscriber interaction, if any, which is required for the selection or use of such video programming or other programming service.
16.01.3.5 “Cable System” means a facility, consisting of a set of closed transmission paths and associated signal generation, reception, and control equipment that is designed to provide cable service which includes video programming and which is provided to multiple subscribers within a community, but such term does not include:
(A) a facility that serves only to retransmit the television signals of one or more television broadcast stations;
(B) a facility that serves subscribers without using any public right-of-way;
(C) a facility of a common carrier which is subject, in whole or in part, to the provisions of Title II (Common Carriers) of the Communications Act of 1934, as amended, except that such facility shall be considered a cable system to the extent such facility is used in the transmission of video programming directly to subscribers, unless the extent of such use is solely to provide interactive on-demand services;
(D) any facilities of any electric utility used solely for operating its electric utility systems; or
(E) an open video system that is certified by the FCC. A reference to a Cable System includes pedestals, equipment enclosures (such as equipment cabinets), amplifiers, power guards, nodes, cables, fiber optics and other equipment necessary to operate the cable system.
16.01.3.6 “City” means the City of Tacoma and all departments, divisions, and agencies thereof, including the Department of Public Utilities.
16.01.3.7 “City Manager” means the City Manager or the City Manager's designee.
16.01.3.8 “Communications facility” means a device which alone or as part of an aggregation of devices is capable of transmitting signals from place to place.
16.01.3.9 “Communications system” refers to a telecommunications system, cable system, or open video system.
16.01.3.10 “Construction, operation or repair” and similar formulations of that term means the named actions interpreted broadly, encompassing, among other things, installation, extension, maintenance, replacement of components, relocation, undergrounding, grading, site preparation, adjusting, testing, make-ready, and excavation.
16.01.3.11 “Franchise” refers to the authorization granted by the City to an Operator of a Telecommunications System, Cable System, or an Open Video System under this Title giving the Operator the non-exclusive right to occupy the space, or use facilities upon, across, beneath, or over any Public Right-of-Way in the City, to provide a specified service within a Franchise area. Any Franchise shall be issued in the form of an ordinance, and must be accepted by the Franchisee to become effective in the time and manner specified in the City Charter, Tacoma Municipal Code, or the Franchise ordinance. Such Franchise shall not include or be a substitute for:
(i) any other permit or authorization required for the privilege of transacting and carrying on a business within the City required by the ordinances and laws of the City;
(ii) any permit, agreement or authorization required in connection with operations on or in public streets or property, including by way of example and not limitation, street cut permits;
(iii) any permits or agreements for occupying any other property of the City or private entities to which access is not specifically granted by the Franchise including, without limitation, permits and agreements for placing devices on or in poles, conduits, other structures, or railroad easements, whether owned by the City, including the Department of Public Utilities, or a private entity; or
(iv) the right to place devices in the right-of-way, such as pay telephones, for end user use in terminating or originating transmissions.
By way of example, and without limiting the foregoing, this Title shall not be read to diminish or in any way affect the authority of the Department of Utilities to control and charge for the use of the Light, Water, and Belt Line Divisions' real estate, fixtures or personal property. Therefore, any Person who desires to use such property must obtain additional approvals, franchises, or agreements for that purpose, as may be required by the City.
16.01.3.12 “Franchise Area” means the area of the City that a Franchisee is authorized to serve by the terms of its Franchise or by operation of law.
16.01.3.13 “Franchisee” refers to a Person holding a Franchise granted by City ordinance.
16.01.3.14 “FCC” means the Federal Communications Commission or its successor.
16.01.3.15 “Gross Revenues” means any and all revenue, of any kind, nature or form, as more particularly defined under the succeeding chapters in this Title.
16.01.3.16 “License” refers to the legal authorization, terminable at will, to use a particular, discrete, and limited portion of the Public Rights-of-Way to construct, operate, or repair a Communications Facility or a Private Communications System. The term License shall not mean or include:
(i) any other permit or authorization required for the privilege of transacting and carrying on a business within the City required by the ordinances and laws of the City;
(ii) any permit, agreement, or authorization required in connection with operations on public streets or property, including by way of example and not limitation, street cut permits;
(iii) any permits or agreements for occupying any other property of the City or private entities to which access is not specifically granted by the License including, without limitation, permits and agreements for placing devices on or in poles, conduits, other structures, or railroad easements, whether owned by the City, including the Department of Public Utilities, or a private entity; or (iv) the right to place devices in the right-of-way, such as pay telephones, for end-user use in originating and terminating transmissions.
16.01.3.17 “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 includes video programming, which is provided to multiple subscribers within a community, and which the Federal Communications Commission or its successor has certified as compliant with Part 76 of its rules, 47 C.F.R., Part 76, as amended from time-to-time.
16.01.3.18 “Operator” when used with reference to a system, refers to a Person (a) who provides service over a Communications System and directly or through one or more Affiliates owns a significant interest in such facility; or (b) who otherwise controls or is responsible for, through any arrangement, the management and operation of such a facility. A Person that operates under agreement a Telecommunications System or a specific portion of a Telecommunications System to provide Telecommunications Services shall be treated as an Operator for purposes of this Title.
16.01.3.19 “Overhead Facilities” refers to electric utility and communications facilities located above the surface of the ground, including the underground supports and foundations for such facilities.
16.01.3.20 “Person” includes any individual, corporation, partnership, association, joint stock company, trust, or any other legal entity, but not the City.
16.01.3.21 “Private Communications System” means a facility placed in whole or in part in the Public Rights-of-Way for the provision of communications in connection with a Person's business, but not encompassing in any respect the provision of Telecommunications Services.
16.01.3.22 “Private Communications System Owner” means a Person that owns or leases a Private Communications System.
16.01.3.23 “Programmer” refers to any Person who provides video programming to subscribers over a Cable System or an Open Video System, excluding video programming delivered not for a charge over a public, educational, or governmental ("PEG") channel.
16.01.3.24 “Public Rights-of-Way” mean the public streets and easements which, under the City Charter, the Tacoma Municipal Code, City ordinances, and applicable laws, the City has authority to grant Franchises, permits, or Licenses for use thereof or has regulatory authority thereover, and as may be more specifically defined in the Franchise, License, or permit granting any right to or use thereof, excluding railroad rights-of-way, airport, and harbor areas. Public Rights-of-Way for the purpose of this Title do not include buildings, parks, poles, or similar facilities or property owned by or leased to the City, including, by way of example and not limitation, structures in the Public Rights-of-Way such as utility poles and light poles.
16.01.3.25 “Reseller” refers to any Person who resells a Telecommunications Service, for which he makes a separate charge, provided over a Telecommunications System, where that Person does not own or lease the underlying Telecommunications System used for the transmission.
16.01.3.26 “Telecommunications Service” means the transmission for hire of information in electronic or optical form, including, but not limited to, voice, video, or data, whether or not the transmission medium is owned by the provider itself. Telecommunications Service includes telephone service but does not include Cable Service or over-the-air broadcasts to the public-at-large from facilities licensed by the Federal Communications Commission or any successor thereto.
16.01.3.27 “Telecommunications System” means a tangible facility that is used to provide one or more Telecommunications Services, any portion of which occupies Public Rights-of-Way. The term Telecommunications System by way of example, and not limitation, includes wires, equipment cabinets, guys, conduit, radio transmitting towers, poles, other supporting structures, and associated and appurtenant facilities used to transmit telecommunications signals. The term Telecommunications System includes all devices mounted on light poles in the Public Rights-of-Way through which Telecommunications Services are originated or terminated. An Open Video System is not a Telecommunications System to the extent that it provides only video services; a Cable System is not a Telecommunications System to the extent that it provides only Cable Service.
16.01.3.28 “Title,” when used in the context of referring to this Title of the Tacoma Municipal Code, shall mean this Title 16 of the Tacoma Municipal Code and Chapters 16.01 through 16.06 of this Title 16.
16.01.3.29 “Transfer” means any transaction in which:
(i) all or a portion of the Communications System is sold or assigned (except a sale or assignment that results in removal of a particular portion of the facility from the Public Rights-of-Way);
(ii) there is any change, acquisition, or direct or indirect transfer of control of the Franchisee or Licensee; or
(iii) the rights and/or obligations held by the Franchisee or Licensee under the Franchise or License are transferred, sold, assigned, or leased, in whole or in part, directly or indirectly, to another party. It will be presumed that any transfer or cumulative transfer of voting interest of 10 percent or more is transfer of control within the meaning of (ii). In succeeding provisions of this Title, all these activities are referred to as Franchise transfers.
16.01.3.30 “Underground Facilities” refers to electric utility and communications facilities located under the surface of the ground, excluding the underground foundations or supports for Overhead Facilities.
16.01.4 Franchise required.
16.01.4.1 Purpose and characteristics. In order to enable the City to treat persons providing similar services similarly, as may be appropriate to comply with applicable law and considering differences in circumstances, and to comply with requirements of federal law which may require the City to separate its authority over cable systems from its authority over other providers of Telecommunications Services, the City requires individual Franchises for the provision of particular services. The revocation of a Franchise for one particular service in and of itself will not affect the authority of a Franchise holder to continue to occupy the rights-of-way to provide services for which it holds other Franchises. No Franchise shall be exclusive. The issuance of a Franchise shall not affect the City's right to itself construct, operate, or repair any Communications Facility, with or without a Franchise.
16.01.4.2 Franchise requirement. An Operator of a Cable System must obtain a Franchise prior to constructing a Cable System or providing Cable Service; an Operator of a telecommunications facility must obtain a Franchise prior to constructing a telecommunications facility or providing Telecommunications Services; an Operator of an Open Video System must obtain a Franchise before constructing an Open Video System or providing services via an Open Video System. The fact that a particular Franchised Communications Facility may be used for multiple purposes does not obviate the need to obtain a Franchise for other purposes. By way of illustration and not limitation, a cable Operator of a Cable System must obtain a cable Franchise and, should it intend to provide Telecommunications Services over the same facilities, must also obtain a telecommunications Franchise. A Reseller or a Programmer uses the Public Rights-of-Way subject to the condition that it may be required to obtain a License upon request of the City, and to pay compensation for such use as required by the City, subject to limits imposed by state law. No Franchise shall become effective without the Franchisee signing an acceptance of the ordinance which grants it the Franchise.
16.01.4.3 Exceptions. Subject to the requirements of the City Charter, a Franchise requirement and the Franchise application process may be waived in whole or in part for a Telecommunications System where the City determines the use of the Public Rights-of-Way is de minimis. For such facilities, the City may issue a License. In addition, every Private Communications System Owner must obtain a License. Every License shall include or be read to include, as if stated there in, a reservation of rights by the City to require the Licensee to obtain a Franchise if the City determines that the License is being used in a manner that creates a competitive advantage for that Operator or otherwise unduly discriminates in favor of such entity. In any case, the License must provide that if limitations of the License are violated, the entity must pay at least the corresponding maximum franchise fee required by this Title.
16.01.4.4 Nature of grant. Neither a Franchise nor a License shall convey title, equitable or legal, in the Public Rights-of-Way. The right granted is only the right to occupy those portions of the Public Rights-of-Way to which the City has the right to grant access, for the purposes and for the period stated in the Franchise or License, and, subject to the limitations in this section and elsewhere in this Title, the right may not be subdivided or subleased. Every Franchise shall be:
16.01.4.4.1 interpreted in a manner that conforms to the requirements of Article VIII of the Tacoma City Charter;
16.01.4.4.2 deemed to include all the provisions that are required to be in a Franchise under that Article, as if fully set forth in the Franchise;
16.01.4.4.3 deemed to provide for forfeiture under the circumstances set forth in the Charter, as well as under the provisions of this Title and any Franchise ordinance thereunder; and
16.01.4.4.4 construed to exclude the grant of any rights in any easement granted for or in favor of public utility facilities or operations, unless the Franchise or License shall expressly state otherwise.
No reference herein, or in any Franchise or License, to a public Right-of-Way shall be deemed to be a representation or guarantee by the City that its interest or other right to control the use of such property is sufficient to permit its use for such purposes, and a Franchise shall be deemed to grant no more than those rights which the City may have the undisputed right and power to give.
16.01.5 Cost recovery.
16.01.5.1 Purpose. To ensure that the City, as far as possible, is compensated for the rights granted, and receives fair market value for use of Public Rights-of-Way over which it exercises control, or which is held in public trust; and in order that the City is compensated for expenses arising from the use of those Public Rights-of-Way; the City shall require Persons using its Public Rights-of-Way to provide Cable Service, Telecommunications Service, Open Video System Services, and Private Communications System Owners to pay compensation as provided in this Title.
16.01.5.2 Compensation for use. Every Operator of a Communications System shall pay a Franchise fee or License fee as required by this Title except as provided in Section 16.01.5.5. Every Operator that is subject to the exceptions in Section 16.01.5.5 and every Reseller or Programmer uses the rights-of-way subject to the condition that, should the exception ever be eliminated or modified, that Operator or Reseller or Programmer shall be obligated to pay such compensation that would otherwise be required in the absence of the exception.
16.01.5.3 Payments required. Except as otherwise expressly provided in this Title, every cable Operator; every Operator of a Telecommunications System; every Operator of an Open Video System; and every private communications owner must:
16.01.5.3.1 pay an Application Fee for the consideration of an application for issuance, renewal, transfer, or modification of a Franchise or License in an amount that allows the City to recover its actual administrative expenses incurred in receiving, reviewing, processing, considering, denying, or approving the issuance, renewal, transfer, or modification of a Franchise or License. The initial deposit of the Application Fee for the consideration of an application for issuance, renewal, transfer, or modification of a Franchise shall be in the amount of $5,000, or for a License in the amount of $1,000, which deposit shall be submitted with the Application. The City may, as costs are incurred, draw upon the deposit to recover its administrative costs, including, but not limited to, the reasonable cost of outside consultants retained by the City related to the City’s consideration and processing of a Franchise or License. The City Manager, at any time, may require the applicant to deposit additional sums if it appears that the initial deposit or subsequent deposits will be exhausted prior to the final action by the City relating to the consideration by the City of an Application for issuance, renewal, transfer, or modification of a Franchise or License. The Applicant will not be entitled to further consideration by the City of its requested action until such time as the additional deposit required by the City Manager has been deposited with the City. In the event the amount of the deposit of an Applicant is in excess of the amount of the administrative expenses of the City related to the action requested, then the Applicant shall be entitled to a return of any such excess amount.
16.01.5.3.2 pay the fees required by Sections 12.02.050 and 12.02.060 of Title 12 of this Code;
16.01.5.3.3 establish a billable work order to cover costs of issuing permits and inspecting facilities, as provided in Section 16.01.5.6;
16.01.5.3.4 in the event the City determines by resolution or ordinance that an impact assessment shall be assessable, pay such Impact Assessment to reflect, as far as permissible under applicable law, the damage caused or expected to be caused to the rights-of-way by the installation of the facility; however, any Operator that pays the full Franchise fee required under this Title need only pay the higher of (a) the Franchise fee; or (b) the Impact Assessment.
16.01.5.4 Payment of costs. Nothing in this section relieves any Communications System Operator of its obligation to bear costs associated with its operations, including but not limited to costs it incurs in moving facilities at the direction of the City.
16.01.5.5 Exceptions. The Franchise fees required under this Title need not be paid:
16.01.5.5.1 if State law or the City charter requires otherwise; or during any transition period as described in Section 16.01.9 for a current Franchise holder. This exception shall be read narrowly; an Operator that is engaged in one line of business that is subject to this exception, shall not be excused from paying the Franchise fee for its other lines of business. In cases subject to this exception, the highest permissible fee shall be paid.
16.01.5.5.2 in the case of a Cable System, a Telecommunications System, or an Open Video System that is not subject to an exception under Section 16.01.4.3 or Section 16.01.5.5.1, and is not designed to provide service in the City, and that does not provide service in the City, or where a particular facility is licensed pursuant to Section 16.01.4.3, the City may establish a fee in lieu of the fees in the Franchise specified in this Title that recovers an amount, at least equivalent to the market value of the property used in the City.
16.01.5.6 Billable work order. Concurrently with the acceptance of a Franchise or License and annually thereafter, each Communications System Operator shall file an annual billable work order with the City Manager to cover the City's actual costs including but not limited to administration, and inspection of the Operator's physical facilities and activities in the Public Rights-of-Way. By January 31 of each year, every Communications System Operator shall deposit with the City Treasurer an amount calculated by the City Manager to cover the cost of work likely to be performed by the City under that billable work order during the succeeding 12 months. The City may draw upon that deposit to cover its costs. In the event excess funds remain in the Operator's billable work order account at the end of the year, such excess shall be refunded or credited to the next year's billable work order. The City Manager at any time may require a Communications System Operator to replenish the amount deposited if it appears that the initial deposit or subsequent deposits will be exhausted during the course of the year. No permit issued shall be valid or of any force or effect if an Operator fails to make the required deposits.
16.01.5.7 Application to persons that provide different types of services. The fact that a fee is paid on one type of service provided over a Communications System, does not excuse an Operator from its duty to pay fees on other types of services provided over that facility as required by this Title. As an example, and not as a limitation of the foregoing, a cable Operator that pays a Franchise fee on revenues derived from the provision of Cable Services must pay a fee under Chapter 16.02 (Special Rules Applicable to Telecommunications Systems) to the extent that it provides Telecommunications Services; likewise, the Operator of a Telecommunications System must pay a Franchise fee under Chapter 16.04 to the extent it provides cable services to subscribers via a Cable System.
16.01.5.8 General rules for payment of fees and assessments.
16.01.5.8.1 Unless otherwise specified in a Franchise or a License, Franchise and License fees shall be paid to the City monthly, and not later than 25 days after the end of the month for which the fee or assessment is owed.
16.01.5.8.2 Unless a Franchise or License provides otherwise, each Franchise or License fee payment shall be accompanied by a statement showing the manner in which the fee was calculated. The statement shall be in a form approved by the City.
16.01.5.8.3 No acceptance by the City of any Franchise or License fee shall be construed as an accord that the amount paid is in fact the correct amount, nor shall such acceptance of such Franchise fee payment be construed as a release of any claim the City may have for additional sums payable.
16.01.5.8.4 The Franchise or License fee payment is not a payment in lieu of any tax, fee or other assessment except as specifically provided in this Title, or as required by applicable law. By way of example, and not limitation, permit fees and business license taxes are not waived and remain applicable.
16.01.5.8.5 Within 90 days following the end of the calendar year, each Person which paid a Franchise fee based upon Gross Revenues shall submit a statement, certified as true by the chief financial officer of such Person, setting forth Gross Revenues of the Communications System, by category, and describing what revenues were included and excluded in the fee calculation, and any adjustments made to Gross Revenues. If payments are late, in addition to paying any applicable penalties or damages, the Person that owes the fee shall pay interest on the amount owed at the rate of 1 percent per month or faction thereof compounded monthly.
16.01.5.8.6 The City may, from time to time and upon reasonable advance written notice, inspect and audit any and all books and records reasonably necessary to the determination of whether fees have been accurately computed and paid. The Operator must provide the books and records or copies thereof to the City or advance the costs of travel and per diem for an employee or employees of the City to inspect and copy such books and records at any location more than 50 miles outside the City at which such books and records are kept in the course of business, in accordance with the procedures set forth in Section 6.68.320 of this Code.
16.01.5.8.7 Notwithstanding the foregoing, in the event that a Person that is obligated to pay a fee ceases to provide service for any reason (including as a result of a transfer), such Person shall make a final payment of any amounts owed to the City within 10 calendar days of the date its operations in the City cease, and shall provide a statement of Gross Revenues for the calendar year through the dates operations ceased which statement shall contain the information and certification required by Section 16.01.5.8.5.
16.01.6 General conditions upon use of public rights-of-way.
16.01.6.1 Responsibility for costs. Except as expressly provided otherwise, any act that a Communications System Operator, its contractors or subcontractors are required to perform under this Section 16.01.6 shall be performed at their cost. If a Communications System Operator fails to perform work that it is required to perform within the time provided for performance, the City may perform the work and bill the Communications System Operator therefor. The Communications System Operator shall pay the amounts billed within 30 days.
16.01.6.2 Construction procedures and placement of facilities; obligation to minimize interference with use of public rights-of-way.
16.01.6.2.1 The Construction, operation, and repair of communications facilities are subject to the supervision of all of the authorities of the City that have jurisdiction in such matters and shall be performed in compliance with all laws, ordinances, departmental rules and regulations and practices affecting such system. By way of example, and not limitation, this includes zoning codes and safety codes and City construction standards, including the most current version of the Standard Specifications for Road, Bridge and Municipal Construction, as prepared by the Washington State Department of Transportation (WSDOT) and the Washington State Chapter of American Public Works Association (APWA); the most current version of the APWA Amendments to Division One, and the most current version of the City of Tacoma Amendments thereto. In addition, the Construction, Operation, and Repair shall be performed in a manner consistent with high industry standards. Persons engaged in the Construction, Operation, or Repair of communications facilities shall exercise reasonable care in the performance of all their activities and shall use commonly accepted methods and devices for preventing failures and accidents that are likely to cause damage, injury, or nuisance to the public or to property.
16.01.6.2.2 Construction, Operation, or Repair of a Communications System shall not commence until all required permits have been properly filed for and obtained from the proper City officials and all required permits and associated fees paid. In any permit so issued, the City may impose as a condition of the granting of the permit such conditions and regulations as may be necessary to the management of the rights-of-way, including, by way of example and not limitation, for the purpose of protecting any structures in the Public Rights-of-Way, for the proper restoration of such Public Rights-of-Way and structures, and for the protection of the City and the public and the continuity of pedestrian and vehicular traffic.
16.01.6.2.3 Operators of communications systems must follow City-established requirements for placement of facilities in Public Rights-of-Way, including the specific location of facilities in the Public Rights-of-Way, and must in any event install facilities in a manner that minimizes interference with the use of the Public Rights-of-Way by others, including others that may be installing communications facilities. The City may require that facilities be installed at a particular time, at a specific place, or in a particular manner as a condition of access to a particular right-of-way; may deny access if an Operator is not willing to comply with the City's requirements; and may remove, or require removal of, any facility that is not installed in compliance with the requirements established by the City, or which is installed without prior City approval of the time, place, or manner of installation and charge the Operator of the facility for all the costs associated with removal; and may require a Person using the rights-of-way to cooperate with others to minimize adverse impacts on the rights-of-way through joint trenching and other arrangements.
16.01.6.2.4 Upon order of the City Manager, all work which does not comply with the permit, the approved plans or specifications for the work, or the requirements of this Title or other applicable law shall be removed.
16.01.6.2.5 To minimize disruption of public passage or infrastructure, to forestall or relieve exhaustion of rights-of-way capacity, or to protect environmentally sensitive areas, the City may require as a condition of issuing any rights-of-way permit for erection of new poles or construction of underground conduit, the installation of which requires excavation of or along any traveled way that the Franchisee, Licensee, or holder of the rights-of-way permit emplace pole space or empty conduits in excess of its own present and reasonably foreseeable requirements for the purpose of accommodating the City and/or other Franchisees and Licensees.
16.01.6.2.6 To the extent possible, Operators of communications system shall use existing poles and conduit existing at the time of permitting in installing their system. Additional poles may not be installed in the right-of-way, nor may pole capacity be increased by vertical or horizontal extenders, without the permission of the City Manager.
16.01.6.2.7 Unless otherwise specified in a Franchise, all facilities shall be constructed, installed, and located in accordance with the following terms and conditions:
16.01.6.2.7.1 A Communications System Operator with written authorization from the City Manager to install Overhead Facilities shall attach its Communications System to existing poles only, and then only if surplus space is available.
16.01.6.2.7.2 Whenever all existing utilities are located underground in an area in the City, a Communications System Operator that wishes to place its facility in the same area must also locate its Communications System underground, including facilities, such as drops, which cross private property.
16.01.6.2.7.3 Whenever the owners of poles locates or relocates underground within an area of the City, every Communications System Operator in the same area shall concurrently relocate its facilities underground.
16.01.6.2.7.4 Whenever an electric utility opens a trench for the purpose of installing or relocating facilities, all Communications System Operators shall concurrently relocate their facilities underground and if they use the same trench share the cost.
16.01.6.2.7.5 The City Manager may, for good cause shown, exempt a particular system or facility or group of facilities from the obligation to locate or relocate facilities underground, where relocation is impractical, or where the interest in protecting against visual blight can be protected in another manner. Nothing in the paragraph prevents the City from ordering communications facilities to be located or relocated underground under other provisions of the this Code.
16.01.6.2.7.6 Nothing herein prohibits the City from ordering all communication systems to be placed underground in a particular area at any time, it being the intent that the number and extent of overhead facilities and the visual pollution resulting therefrom will, over time, be reduced and eventually, to the extent feasible, eliminated.
16.01.6.2.8 Any and all Public Rights-of-Way, public property, or private property that is disturbed or damaged during the Construction, Operation or Repair of a Communications Facility shall be promptly repaired by the Communications System Operator that disturbed or damages the Public Rights-of-Way, public property or private property. Public property and public right-of-way must be restored to the satisfaction of the City or to a condition as good or better than before the disturbance or damage occurred.
16.01.6.2.9 No tree trimming shall be performed without the permission of the City and other affected authorities, and any tree trimming must be performed in strict accordance with the City Code.
16.01.6.2.10 Within 48 hours after notice from the City, a Communications System operator shall remove any graffiti on any part of its Communications System (including by way of example and not limitation) equipment cabinets. If the operator fails to do so, the City may remove the graffiti and bill the operator for the cost thereof.
16.01.6.3 Relocation of facilities.
16.01.6.3.1 A Communications System Operator shall, by a time specified by the City, protect, support, temporarily disconnect, relocate, or remove any of its property when required by the City by reason of traffic conditions; public safety; public right-of-way construction; public right-of-way repair (including resurfacing or widening); change of public right-of-way grade; construction, installation or repair of sewers, drains, water pipes, power lines, signal lines, tracks, or any other type of government-owned Communications System, public work, public facility, or improvement or any government-owned utility; public right-of-way vacation; or for any other purpose where the work involved would be aided by the removal or relocation of the Communications Facility. Collectively, such matters are referred to below as the "public work."
16.01.6.3.1.1 Except in the case of emergencies, the City shall provide written notice describing where the public work is to be performed at least one week prior to the deadline by which a Communications System Operator must protect, support, temporarily disconnect, relocate or remove its facilities. A Communications System Operator may seek an extension of the time to perform such tasks where they cannot be performed in a week even with the exercise of due diligence, and such request for an extension shall not be unreasonably refused.
16.01.6.3.1.2 In the event of an emergency, or where a Communications Facility creates or is contributing to an imminent danger to health, safety, or property, the City may protect, support, temporarily disconnect, remove, or relocate any or all parts of the Communications Facility without prior notice, and charge the Communications System Operator for costs incurred.
16.01.6.3.2 If any Person that is authorized to place facilities in the rights-of-way requests another Communications System Operator receiving the request to protect, support, temporarily disconnect, remove, or relocate its facilities to accommodate the Construction, Operation, or Repair of the facilities of such other Person, the Communications System Operator shall, after 30 days' advance written notice, take action to effect the necessary changes requested. Unless the matter is governed by a valid contract or a state or federal law or regulation, or unless the Communications Facility that is being requested to move was not properly installed, the reasonable cost of the same shall be borne by the Person requesting the protection, support, temporary disconnection, removal, or relocation and at no charge to the City, even if the City makes the request for such action.
16.01.6.3.3 A Communications System Operator shall, on the request of any Person holding a valid permit issued by a governmental authority, temporarily raise or lower its wires to permit the moving of buildings or other objects. The expense of such temporary removal or raising or lowering of wires shall be paid by the Person requesting the same. A Communications System Operator shall be given not less than seven days' advance notice to arrange for such temporary wire changes.
16.01.6.3.4 A Communications System Operator may abandon any property in place upon written notice to the City. However, if the City determines within 90 days of the receipt of notice of abandonment from the Operator, that the safety, appearance, functioning or use of the public right-of-way and facilities in the public right-of-way will be adversely affected, the Operator must remove its property by a date specified by the City.
16.01.6.4 Facility subject to inspection; operator must provide information. Every Communications Facility shall be subject to the right of periodic inspection and testing by the City to determine compliance with the provisions of this Title, a Franchise or License agreement, or other applicable law. The City shall have the right, upon request, to be notified and present when the Communications System is tested by the Operator. Each Operator must respond to requests for information regarding its system and plans for the system as the City may from time to time issue, including requests for information regarding its plans for Construction, Operation and Repair and the purposes for which the plant is being constructed, operated, or repaired.
16.01.6.4.1 Underground services alert. Each Operator of a Communications System that places facilities underground shall be a member of the regional notification center for subsurface installations (Underground Services Alert) and shall field mark the locations of its underground communications facilities upon request. The Operator shall locate its facilities for the City at no charge.
16.01.6.5 Plans for and publicizing work.
16.01.6.5.1 Work shall be publicized as the City may direct from time to time. The publication of work may be used to notify the public and operators of other communications systems, of the impending work, in order to minimize inconvenience and disruption to the public.
16.01.6.5.2 Each Communications System owner shall provide the City a plan for any initial system construction, or for any substantial rebuild, upgrade or extension of its facility, which shall show its timetable for construction of each phase of the project, and the areas of the City that will be affected.
16.01.6.5.3 The City Manager may from time to time, when the City receives application for a permit to use a particular route, or upon the City Manager's own initiative, designate by published order a route or proposed route for installation of communications facilities and may (1) require all persons who wish to emplace Underground Facilities along that route or any part thereof to install them during a specified period and (2) otherwise prohibit emplacement of such facilities along the route or any part thereof for 24 months or after such other, longer period as is necessary to protect the public.
16.01.7 Protection of the City and residents.
16.01.7.1 Indemnification.
16.01.7.1.1 No Franchise or other authorization to use the rights-of-way issued to a Communications System Operator or a Private Communications System Owner shall be valid or effective until and unless the City obtains an adequate indemnity from such Operator. The indemnity must at least:
16.01.7.1.1.1 release the City from and against any and all liability and responsibility in or arising out of the construction, operation or maintenance of the Communications Facility. Each Communications Facility Operator must further agree not to sue or seek any money or damages from City in connection with the above mentioned matters;
16.01.7.1.1.2 indemnify and hold harmless the City, its trustees, elected and appointed officers, agents, and employees, from and against any and all claims, demands, or causes of action of whatsoever kind or nature, and the resulting losses, costs, expenses, reasonable attorneys' fees, liabilities, damages, orders, judgments, or decrees, sustained by the City or any third party arising out of, or by reason of, or resulting from or of the acts, errors, or omissions of the Communications System Operator, or its agents, independent contractors or employees related to or in any way arising out of the Construction, Operation or Repair of the facility.
16.01.7.1.1.3 provide that the covenants and representations relating to the indemnification provision shall survive the term of any Franchise or other authorization and continue in full force and effect as to the party's responsibility to indemnify.
16.01.7.2 Insurance. No Franchise or other authorization to use the rights-of-way issued to a Communications System Operator or a Private Communications System Owner shall be valid or effective until and unless the City obtains assurance that such Operator (and those acting on its behalf) have adequate insurance. At a minimum, the following requirements must be satisfied:
16.01.7.2.1 A Communications System Operator shall not commence construction or operation of the facility without obtaining all insurance required under this paragraph and approval of such insurance by the Risk Manager of the City, nor shall a Communications System Operator allow any contractor or subcontractor to commence work on its contract or sub-contract until all similar such insurance required of the same has been obtained and approved. The required insurance must be obtained and maintained for the entire period the Communications System Operator has facilities in the rights-of-way, and for a period thereafter as specified in the minimum coverages described below. If the Operator, its contractors, or subcontractors do not have the required insurance, the City may order such entities to stop operations until the insurance is obtained and approved.
16.01.7.2.2 Certificates of insurance, reflecting evidence of the required insurance and naming the City as an additional insured, shall be filed with the City’s Risk Manager. For entities that are entering the market, the certificates shall be filed prior to the commencement of construction and once a year thereafter, and as provided below in the event of a lapse in coverage. For entities that have facilities in the rights-of-way as of the effective date of this Title, the certificate shall be filed within 60 days of the effective date of this Title, annually thereafter, and as provided below in the event of a lapse in coverage, unless a pre-existing Franchise provides for filing of certificates in a different manner.
16.01.7.2.3 These certificates shall contain a provision that coverages afforded under these policies will not be canceled until at least 30 days' prior written notice has been given to the City. Policies shall be issued by companies authorized to do business under the laws of the State of Washington. Financial Ratings must be no less than "A" in the latest edition of "Bests Key Rating Guide", published by A.M. Best Guide.
16.01.7.2.4 In the event that the insurance certificate provided indicates that the insurance shall terminate or lapse during the period of the Franchise or License, then in that event, the Communications System Operator shall furnish, at least 30 days prior to the expiration of the date of such insurance, a renewed certificate of insurance as proof that equal and like coverage has been or will be obtained prior to any such lapse or termination during the balance of the period of the Franchise or License under which the Communications System operates.
16.01.7.2.5 A Communications System owner or Operator, and its contractors or subcontractors engaged in work on the Operator's behalf in, on, under or over Public Rights-of-Way, shall maintain the following minimum insurance. The City shall be named as an additional insured on the general liability and automotive policies.
16.01.7.2.5.1 COMPREHENSIVE GENERAL LIABILITY insurance to cover liability bodily injury and property damage. Exposures to be covered are: premises, operations, products/completed operations, and certain contracts. Coverage must be written on an occurrence basis, with the following limits of liability:
A. Bodily Injury
1. Each Occurrence $1,000,000
2. Annual Aggregate 3,000,000
B. Property Damage
1. Each Occurrence $1,000,000
2. Annual Aggregate 3,000,000
C. Personal Injury
1. Annual Aggregate 3,000,000
D. Completed Operations and Products Liability shall be maintained for two years after the termination of the Franchise or License (in the case of the Communications System owner or Operator) or completion of the work for the Communications System owner or Operator (in the case of a contractor or subcontractor).
E. Property Damage Liability Insurance shall include Coverage for the following hazards: X - explosion, C - Collapse, U - underground.
16.01.7.2.5.2 WORKERS' COMPENSATION insurance shall be maintained during the life of this contract to comply with statutory limits for all employees, and in the case any work is sublet, each Communications System Operator shall require the subcontractors similarly to provide workers' compensation insurance for all the latter's employees unless such employees are covered by the protection afforded by each Communications System Operator. Each Communications System Operator and its contractors and subcontractors shall maintain during the life of this policy employers liability insurance. The following minimum limits must be maintained:
A. Workers' Compensation Statutory
B. Employer's Liability $ 500,000 per
occurrence
16.01.7.2.5.3 COMPREHENSIVE AUTO LIABILITY
A. Bodily Injury
1. Each Occurrence $ 1,000,000
2. Annual Aggregate 3,000,000
B. Property Damage
1. Each Occurrence $ 1,000,000
2. Annual Aggregate 3,000,000
Coverage shall include owned, hired, and non-owned vehicles.
16.01.7.2.6 Each Communications System Operator shall hold the City, its agents, and employees, harmless on account of claims for damages to persons, property or premises arising out of its Construction, Operation or Repair of its Communications System and name the City as an additional insured.
16.01.7.2.7 In every Franchise or License agreement, the City shall reserve the right to require any other insurance coverage it deems necessary depending upon the exposures.
16.01.7.3 Performance/payment bonds. Every Operator of a Communications Facility shall be required to obtain performance bonds and, if necessary, payment bonds to ensure the faithful performance of its responsibilities under this Title and any Franchise or License, including a sufficient amount to cover removal of facilities and/or restoration of City facilities within right-of-way. The amount of the performance and payment bonds shall be set by the City Manager or may be set in a Franchise ordinance in light of the nature of the work to be performed and is not in lieu of any additional bonds that may be required through the permitting process. The bond shall be in a form acceptable to the City Attorney. The City may from time to time increase or decrease the amount of the required performance bond to reflect changes in risks to the City and to the public.
16.01.7.4 Security fund. Every Communications System Operator shall establish a cash security fund or provide the City an irrevocable letter of credit in the amount of $50,000, to secure the payment of fees owed, to secure any other performance promised in a Franchise, and to pay any taxes, fees or liens owed to the City. The letter of credit shall be in a form and with an institution acceptable to the City's Director of Finance and in a form acceptable to the City Attorney. Should the City draw upon the cash security fund or letter of credit, it shall promptly notify the Communications System Operator, and the Communications System Operator shall promptly restore the fund or the letter of credit to the full required amount. This security fund/letter of credit may be waived or reduced by the City for a Franchisee or Licensee where the City determines in its discretion that a particular Franchisee's or Licensee's operations are sufficiently limited that a security fund/letter of credit is not necessary to secure the required performance. The City may from time to time change the amount of the required security fund/letter of credit to reflect changed risks to the City and to the public, including delinquencies in taxes or other payments to the City.
16.01.8 Enforcement and remedies.
16.01.8.1 City Manager responsible for administration. The City Manager is responsible for enforcing and administering this Title, and the City Manager is authorized to give any notice required by law or under any Franchise, including by way of example and not limitation, a notice required under 47 U.S.C. § 546. The City Manager is also authorized to seek information from any Communications System Operator, to establish forms for submission of applications and other information, and to take all other actions necessary or appropriate to the administration of this Title or any Franchise. Franchises may only be denied, issued or revoked by action of the City Council.
16.01.8.2 Applications for Franchises and Licenses.
16.01.8.2.1 An application must be filed for an initial Franchise or License, for a transfer, or for renewal of a Franchise or License. Each entity that is required to hold a Franchise or License must submit an application therefor to the City Manager in accordance with the requirements of this Title. To be accepted for filing, an original and six copies of a complete application for a Franchise, and an original and six copies of a complete application for a License must be submitted, showing the routes the applicant proposed to use. All applications shall be available for public inspection. All applications shall include the names and addresses of persons authorized to act on behalf of the applicant with respect to the application.
16.01.8.2.2 An application may be filed by any Person on that Person's own initiative or in response to a request for proposals. The City Manager is authorized to issue requests for proposals from time to time.
16.01.8.2.3 Every application shall be accompanied by an initial deposit in the amounts of $5,000 for Franchises and $1,000 for Licenses.
16.01.8.2.4 In addition, an applicant that is awarded a Franchise or License, shall pay to the City a sum of money sufficient to reimburse it for all publication expenses incurred by it in connection with the granting of a Franchise or License pursuant to the provisions of this Title. Such payment shall be made by delivery of payment to the City Treasurer within 30 days after the City furnishes the Franchisee or Licensee with a written statement of such expenses.
16.01.8.2.5 No Franchise shall become effective until all required fees and costs are paid.
16.01.8.2.6 Notwithstanding any other provision of this Title, pledges in trust or mortgages of the assets of a Franchised or Licensed Communications System to secure the Construction, Operation, or Repair of the system may be made without application and without the City's prior consent; except that no such arrangement may be made if it would in any respect under any condition prevent the Communications System Operator or any successor from complying with the Franchise or License and applicable law, nor may any such arrangement permit a third party to succeed to the interest of the Operator, or to own or control the Communications System, without the prior consent of the City. Any mortgage, pledge or lease shall be subject to and subordinate to the rights of the City under any Franchise, this Title, or other applicable law.
16.01.8.2.7 The City Council may, in its sole discretion which is hereby reserved, (1) approve or disapprove a License; and (2) require such terms and conditions in the License Agreement as deemed in the best interest of the City. The City Manager or City Council may request such additional information from an Applicant for a License as deemed appropriate in order to proceed with consideration of the application.
16.01.8.3 Minimum contents of every Franchise or License. In addition to satisfying the other applicable requirements of this Chapter, every Franchise or License for a Communications System shall contain the following provisions:
16.01.8.3.1 The Franchise or License shall provide that neither the granting of any Franchise or License, or any provision thereof, shall constitute a waiver or bar to the exercise of any governmental right or power, police power, or regulatory power of the City as may exist at the time the Franchise is issued or thereafter be obtained.
16.01.8.3.2 The Franchise or License shall only authorize occupancy of the right-of-way to provide the services and for the purposes described in the Franchise or License.
16.01.8.3.3 A Franchise or License shall be a privilege that is held in the public trust and personal to the original Franchisee. The Franchise or License shall ensure that no transfer of the Franchise or License may occur, directly or indirectly, without the prior consent of the City; except as contemplated by Section 16.01.8.2.6 or as otherwise expressly provided in this Title.
16.01.8.3.4 The Franchise or License shall ensure that any Person placing a Communications System in the Public Rights-of-Way will not unlawfully discriminate in hiring, in contracting, or in the provision of services.
16.01.8.3.5 The Franchise or License shall contain appropriate provisions for enforcement, compensation, and protection of the public, consistent with the other provisions of this Title.
16.01.8.3.6 The Franchise or License shall be for a specified term, set forth in the Franchise or License. No Franchise issued under this Title shall be for a term of longer than ten years, unless the Council determines that a longer period would be in the City's interest. No License issued under this Title shall be for a term of longer than five years.
16.01.8.3.7 Such other terms as are required by the City Charter.
16.01.8.3.8 License shall be discretionary.
16.01.8.4 Penalties. Any person found to have occupied or carried out activities in the public rights-of-way without first having obtained or having in effect a valid Franchise, License, or permit as required by this Title shall be guilty of a misdemeanor and shall be punished by a fine not exceeding $1,000 or by imprisonment not exceeding 90 days or by both such fine and imprisonment. Each day that any such occupancy or activity shall continue in violation of this Title shall constitute a separate offense.
16.01.8.5 Revocation, reduction of term, or forfeiture of Franchise or License.
16.01.8.5.1 Licenses shall be revocable at will.
16.01.8.5.2 Where, after notice and providing the Franchisee an opportunity to be heard (if such opportunity is timely requested by a Franchisee), the City finds that the facility is being maintained or operated in violation of this Title or in substantial violation of the terms of the Franchise, the City may make an appropriate reduction in the remaining term of the Franchise or revoke the Franchise. The City Manager is authorized to establish and conduct a proceeding that complies with the requirements of this Section 16.01.8.5.2, and to issue a recommended decision, but any such decision may be appealed to the City Council. Any appeal must be filed within 30 days of the decision of the City Manager or it shall be deemed waived. Notwithstanding the foregoing, the Franchise may only be revoked if the Franchisee (1) was given notice of the default; and (2) 30 days to cure the default; and (3) the Franchisee failed to cure the default, or to propose a schedule for curing the default acceptable to the City where it is impossible to cure the default in 30 days. The required notice may be given before the City conducts the proceeding required by this paragraph. No opportunity to cure is required for repeated violations, and fraud shall be deemed incurable.
16.01.8.5.3 Notwithstanding the foregoing, Section 16.01.8.5.2, the City may declare a Franchise forfeited without opportunity to cure or the notice required by Section 16.01.8.5.2 where the Franchisee (1) fails to begin to exercise its rights under the Franchise within a period specified in the Franchise ; (2) stops providing service it is required to provide in the Franchise; (3) without the prior consent of the City, transfers the Franchise; (4) fails to pay the annual occupancy fees or Franchise fees owed hereunder; or (5) defrauds or attempts to defraud the City or the Operator's customers. However, a Franchisee shall have the right to receive 30 days' prior notice of an intent to declare a Franchise forfeited, and shall have the opportunity to show cause why the Franchise should not be forfeited.
16.01.8.5.4 Notwithstanding the foregoing Sections 16.01.8.5.1-1.8.5.3, a Franchise or License will automatically terminate by force of law 120 calendar days after an assignment for the benefit of creditors or the appointment of a receiver or trustee to take over the business of the Franchisee or Licensee, whether in a receivership, reorganization, bankruptcy assignment for the benefit of creditors, or other action or proceeding. However, the Franchise or License may be reinstated within that 120 day period, if: (A) such assignment, receivership or trusteeship has been vacated; or (B) such assignee, receiver or trustee has fully complied with the terms and conditions of this Title and the Franchise or License and has executed an agreement, approved by any court having jurisdiction, assuming and agreeing to be bound by the terms and conditions of this Title and the Franchise or License. However, in the event of foreclosure or other judicial sale of any of the facilities, equipment or property of a Franchisee or Licensee, the City may revoke the Franchise or License, following a public hearing before the City Council, by serving notice upon the Franchisee or Licensee and the successful bidder at the sale, in which event the Franchise or License and all rights and privileges of the Franchise or License will be revoked and will terminate 30 calendar days after serving such notice, unless: (A) the City has approved the transfer of the Franchise or License to the successful bidder; and (B) the successful bidder has covenanted and agreed with the City to assume and be bound by the terms and conditions of the Franchise or License and this Title.
16.01.8.6 Effect of termination or forfeiture. Upon termination or forfeiture of a License or Franchise, whether by action of the City as provided above, or by passage of time, the Franchisee or Licensee shall be obligated to cease using the Communications System for the purposes authorized by the Franchise. The City may either take possession of some or all of the Licensee's or Franchisee's facilities in the Public Rights-of-Way or require the Licensee or Franchisee or its bonding company to remove some or all of the Licensee's or Franchisee's facilities from the Public Rights-of-Way and restore the Public Rights-of-Way to its same, or better, condition. Should the Franchisee or Licensee neglect, refuse, or fail to remove such facility, the City may remove the facility at the expense of the Franchisee or Licensee. The obligation of the Licensee or Franchisee to remove shall survive the termination of the Franchise or License for a period of two years; provided that, this provision does not permit the City to take possession of, or require the Franchisee or Licensee to remove, any facilities that are used to provide another service for which the Franchisee holds a valid Franchise or License issued by the City.
16.01.8.7 Remedies cumulative. All remedies under this Title and any Franchise or License are cumulative unless otherwise expressly stated. The exercise of one remedy shall not foreclose use of another, nor shall the exercise of a remedy or the payment of liquidated damages or penalties relieve a Communications System Operator of its obligations to comply with its Franchise or License. Remedies may be used singly or in combination; in addition, the City may exercise any rights it has at law or equity. Recovery by the City of any amounts under insurance, the performance bond, the security fund or letter of credit, or otherwise, does not limit a Communications System Operator's duty to indemnify the City in any way; nor shall such recovery relieve a Communications System Operator of its obligations under a Franchise or License, limit the amounts owed to the City, or in any respect prevent the City from exercising any other right or remedy it may have.
16.01.8.8 Access to books and records.
16.01.8.8.1 Each Communications System Operator shall provide the City access to all books and records related in whole or in part to the Construction, Operation, or Repair of the Communications System so that the City may inspect and copy these books and records pertaining to the Franchise and other matters within the City's jurisdiction. The Operators' obligation includes the obligation to produce all books and records related to revenues derived from the operation of the Communications System to the extent that system revenues affect the fees charged or burdens imposed on the Operator under this Franchise. An Operator is responsible for obtaining or maintaining the necessary possession or control of all such books and records related to the Construction, Operation or Repair of the Communications System, so that it can produce the documents upon request. Books and records must be maintained for a period of five years, except that (a) any record that is a public record must be maintained for no less than the period required by state law; and (b) a Franchise may specify a shorter period for certain categories of voluminous books and records where the information contained therein can be derived simply from other materials.
16.01.8.8.2 For purposes of this Title, the terms "books and records" shall be read expansively to include information in whatever format stored. Books and records requested shall be produced to the City at the location designated by the City Manager, or by agreement or pursuant to Sections 16.01.8.8.3.
16.01.8.8.3 If any books and records are too voluminous, or for security reasons cannot be copied and moved, then a Communications Facility Operator may request that the inspection take place at some other location mutually agreed to by the City and the Operator, provided that (1) the Operator must make necessary arrangements for copying documents selected by the City after its review; and (2) the Operator must pay all travel and additional copying expenses incurred by the City (above those that would have been incurred had the documents been produced in the City) in inspecting those documents or having those documents inspected by its designee.
16.01.8.8.4 Without limiting the foregoing, the Operator of a Communications Facility shall provide the City the following within 10 days of their receipt or (in the case of documents created by the Operator or its Affiliate) filing:
16.01.8.8.4.1 notices of deficiency or forfeiture related to the operation of the Communications Facility; and
16.01.8.8.4.2 copies of any request for protection under bankruptcy laws, or any judgment related to a declaration of bankruptcy by the Franchisee or by any partnership or corporation that owns or controls the Franchisee directly or indirectly.
16.01.8.9 Retention of records; relation to privacy rights. Each Communications Facility Operator shall take all reasonable steps required, if any, to ensure that it is able to provide the City all information which must be provided or may be requested under this Title, a Franchise or License, or applicable law, including by providing appropriate Subscriber privacy notices. Each Operator shall be responsible for redacting any data that applicable law prevents it from providing to the City. Nothing in this section shall be read to require an Operator to violate state or federal law protecting subscriber privacy.
16.01.8.10 Reports. The City Manager may require operators of communications facilities to maintain records, and to prepare reports relevant to determining the compliance of the Communications Facility Operator with the terms and conditions of this Title and their Franchises or Licenses. Operators shall maintain such records and provide such reports additionally as are specifically required by Chapters 16.01,16.02, 16.03, and 16.04 of this Title.
16.01.8.11 Maps. Each Communications Facility Operator shall maintain accurate maps and improvement plans which show the location, size, and a general description of all facilities installed in the Public Rights-of-Way and any power supply sources (including voltages and connections). Maps shall be based upon post-construction inspection to verify location. The Operator of each Communications Facility shall provide a map to the City showing the location of its facilities, in such detail and scale as may be directed by the City Engineer. New system maps shall be promptly submitted to the City when the facility expands or is relocated. Copies of maps shall be provided on disk, in a commercially available electronic format specified by the City Engineer.
16.01.8.12 Compliance with laws. Each Franchisee and Licensee shall comply with all applicable laws heretofore and hereafter adopted or established during the entire term of its Franchise or License.
16.01.8.13 Reservation of authority. The City may do all things which are necessary and convenient in the exercise of its jurisdiction under this Title.
16.01.8.14 No waiver. The failure of the City to insist on timely performance or compliance by any Person holding a License or Franchise shall not constitute a waiver of the City's right to later insist on timely performance or compliance by that Person or any other Person holding such a License or Franchise.
16.01.8.15 Title not a contract. The City expressly reserves the right to amend this Title and any Franchise thereunder from time-to-time in the exercise of its lawful powers. The provisions of this Title shall not be construed to create or be a contract.
16.01.9 Transitional provisions.
16.01.9.1 Persons operating without a Franchise or License. The Operator of any facility, the operation of which is required to be Franchised or Licensed under this Title, other than a Person holding a lease under Section 16.01.9.3, shall have three months from the effective date of this Title to file one or more applications for a Franchise or a License under this ordinance. Any Operator or Private Communications System Owner timely filing such an application shall not be subject to a penalty under Section 16.01.8.4 hereof for failure to have such a Franchise or License as long as said application remains pending; provided, however, nothing herein shall relieve any Communications System Operator of any liability for its failure to obtain any Franchise, permit or other authorization required under other provisions of the Tacoma Municipal Code, and nothing herein shall prevent the City from requiring removal of any facilities installed in violation of the Tacoma Municipal Code.
16.01.9.2 Persons holding Franchises or Licenses. Any Person holding an outstanding Franchise or License from the City for a Communications System to provide specified services or for a Private Communications System may continue to operate under the existing Franchise or License to the conclusion of its present term (but not any renewal or extension thereof) with respect to those activities expressly authorized by the Franchise or License; provided, however, that such Franchisee or Licensee may elect at any time to apply for a superseding Franchise or License under this Title and must seek additional Franchises or Licenses to provide other services; and provided further that, such Person shall be subject to the other provisions of this Title to the extent permitted by law; provided further, that Licenses that are revocable at will may be revoked by the City, and the Licensee may be required to obtain a new License under this Title.
16.01.9.3 Persons holding leases for property in the right-of-way. Any lessee under a lease from the City for an antenna site located in the right-of-way that is valid and in force on the effective date of this Title may continue to occupy such antenna site to the conclusion of the term of the lease (but not any renewal or extension thereof), in accordance with the terms of such lease; provided, however, that such lessee may elect at any time to apply for a superseding lease, Franchise or License under this Title.
16.01.9.4 Persons with pending applications. Pending applications shall be subject to this Title. A Person with a pending application shall be provided 30 days from the effective date of this Title to submit additional information to comply with the requirements of this Title governing applications.
16.01.9.5 Transitional rules to be narrowly interpreted. It is the intent of the City to apply the provisions of this Title to Communications System operators, including local exchange carriers that now occupy or may in the future occupy Public Rights-of-Way, except to the extent federal or state law prevents it from doing so.
16.01.10 Special rules for government entities. Nothing herein requires the City to apply the provisions of this Title to a government entity if the City determines that it is not in the public interest to do so, and nothing in this Title shall be read to require a government entity to comply with this Title, where the City cannot enforce the Title against such entity as a matter of law. The City is authorized to enter into agreements with other governmental agencies to facilitate the City's use and management of its rights-of-way, and such agreements shall be enforceable according to their respective terms and notwithstanding any provision of this Title.
16.01.11 No waiver. The failure of the City to enforce any provision of this Title on any occasion shall not operate as a waiver or estoppel of this right to enforce any provision of this Title on any other occasion, nor shall the failure to enforce any prior ordinance or Charter provisions affecting communications facilities or Communications System operators act as a waiver or estoppel against application of this Title or any other provision of applicable law.
Chapter 16.02
SPECIAL RULES APPLICABLE TO TELECOMMUNICATIONS
FACILITIES AND TELECOMMUNICATIONS SERVICE PROVIDERS
Sections:
16.02.1 Application for a Franchise.
16.02.1.1 Contents of application for initial or renewal Franchise
16.02.1.2 Additional information regarding affiliates; presumptions
16.02.1.3 Applications for transfer
16.02.1.4 City review
16.02.2 Compensation.
16.02.2.1 Right-of-way fee
16.02.2.2 Gross revenues defined
16.02.2.3 Public record
16.02.3 Additional Franchise requirements.
16.02.3.1 Reservation of authority
16.02.3.2 Provision of facilities and equipment
16.02.3.3 Annual reports
16.02.1 Application for a Franchise.
16.02.1.1 Contents of application for initial or renewal Franchise. In order to obtain an initial or renewal Franchise, an Operator of a telecommunications facility must apply for a Franchise. The application must contain the following information, and such information as the City may from time to time require.
16.02.1.1.1 Identity of the applicant; the persons who exercise working control over the applicant; and the persons who control those persons, to the ultimate parent.
16.02.1.1.2 A proposal for construction of a telecommunications facility, that includes at least the following:
16.02.1.1.2.1 a description of the services that are to be provided using the facility.
16.02.1.1.2.2 the location of proposed facility and facility design, including a description of the miles of plant to be installed, and a description of the size of equipment cabinets, shielding and electronics that will be installed along the plant route, the power sources that will be used and a description of the noise, exhaust and pollutants, if any, that will be generated by the operation of the same; provided, however, that, if some of the descriptive data is not available at the time of application, the Franchise may be issued subject to conditions that the data be filed and approved by the City before construction begins and that the Franchise will be deemed to be forfeited if the data is not supplied and approved; provided, further, that the foregoing proviso does not authorize the grant of a Franchise where there is not sufficient information to appraise the impact of the applicant's proposal; provided further, in the event that Sections 16.02.1.1.2.2-.3 require information that is a business or trade secret and/or proprietary information and the operation wishes to protect the information against disclosure, then Operator shall provide said information to City in a separate envelope marked "Proprietary Information: DO NOT DISCLOSE." The City will exercise good faith efforts to protect the confidentiality of the business or trade secrets or proprietary information that is designated as such; provided further, that (A) in the event a public disclosure request is made for information marked as proprietary, and if the City Attorney determines that said information may be subject to being disclosed; or (B) the City determines that the information should be disclosed in connection with its enforcement of any provision of this Title, or in the exercise of its police or regulatory powers; then the City shall notify the Operator of the Operator's opportunity to seek a protective order from a court with appropriate jurisdiction. In the event that a protective order is not obtained within 30 days or, if shorter, the time limitation set forth in State law, then City may disclose said information. The Operator is obligated to reimburse and indemnify City for all costs, damages and attorney fees that may be awarded or assessed by the court for any actions the City took at the request of Operator.
16.02.1.1.2.3 a map of the general route the facility will follow; a designation of the portions of the system that will be placed above ground and the portions that will be placed underground, and the construction techniques that the Operator proposes to use in installing the system above ground and underground; a schedule for construction of the facility, describing when and where construction will begin, how it will proceed, and when it will be completed; and the expected effect on right-of-way usage, including information on the ability of the Public Rights-of-Way to accommodate the proposed system, including, as appropriate given the system proposed, an estimate of the availability of space in conduits and an estimate of the cost of any necessary rearrangement of existing facilities; provided, however, that any proprietary information required under this subparagraph as well as the preceding subparagraph shall be subject to the non-disclosure procedure prescribed in the proviso of the preceding subparagraph.
16.02.1.1.2.4 A description, where appropriate, of how services will be converted from existing facilities to new facilities, and what will be done with existing facilities.
16.02.1.1.2.5 Identification of the area of the City to be served by the proposed system, including a description of the proposed Franchise area's boundaries.
16.02.1.1.3 Evidence satisfactory to the City that the applicant has the financial resources to complete the proposed project, and to construct, operate and repair the proposed facility over the Franchise term. It is not the intent of the City to require an applicant to prove that the services it proposed to offer will succeed in the marketplace.
16.02.1.1.4 Evidence satisfactory to the City that the applicant is technically qualified to construct, operate and repair the proposed facility. At a minimum, the applicant must show that it has experience or resources to ensure that work is to be performed adequately, and can respond to emergencies during and after construction is complete.
16.02.1.1.5 Evidence satisfactory to the City that the applicant is legally qualified, which proof must include a demonstration that the applicant:
16.02.1.1.5.1 has received, or is in a position to receive, necessary authorizations from state and federal authorities;
16.02.1.1.5.2 has not engaged in conduct (fraud, racketeering, violation of antitrust laws, consumer protection laws, or similar laws) that allows City to conclude the applicant cannot be relied upon to comply with requirements of Franchise, or provisions of this Title; and
16.02.1.1.5.3 is willing to accept a Franchise, to pay required compensation and to abide by the provisions of applicable law, including those relating to the construction, operation or maintenance of its facilities; and has not entered into any agreement that would prevent it from doing so;
16.02.1.1.6 An affidavit or declaration of the applicant or authorized officer thereof certifying the truth and accuracy of the information in the application, and certifying that the application meets all requirements of applicable law.
16.02.1.1.7 An applicant may show that it would be inappropriate to deny it a Franchise under Section 16.02.1.1.5.2, by virtue of: the particular circumstances surrounding the acts or omissions at issue; the steps taken by the applicant to cure all harms flowing therefrom and to prevent their recurrence; and the lack of involvement of the applicant's principals, or the remoteness of the acts or omissions from the operation of telecommunications facilities.
16.02.1.1.8 Additional information regarding Affiliates. To the extent that the Applicant is in any respect relying on the financial or technical resources of another Person, including another Affiliate, the proofs required by Sections 16.02.1.1.3-16.02.1.1.5 should be provided for that Person.
16.02.1.2 Presumptions. An applicant will be presumed to have the requisite financial, technical, or legal qualifications if its Application shows that such qualifications have been reviewed and approved by the Washington Utilities and Transportation Commission; or, if applicant is a holder of a Franchise in the City for a Cable System or Open Video System, provided that, notwithstanding this presumption, the City may require the Applicant to provide and may consider information regarding Applicant’s financial, technical, or legal qualifications as the City determines necessary to protect the public interest. An Applicant that is leasing existing facilities from a franchised Communications Facility Operator, where the applicant will have no responsibility for any activity that involves work in the Public Rights-of-Way, may rely upon the Franchisee's technical qualifications, and will be presumed to have the necessary financial qualifications.
16.02.1.3 Applications for transfer. An application for a transfer of a Franchise must contain the same information required by Section 16.02.1.1, except that, if the transferor submitted an application under Section 16.02.1.1, to the extent information provided by the transferor under Section 16.02.1.1.2 remains accurate, the transferee may simply cross-reference the earlier application.
16.02.1.4 City review. The City may request such additional information as it finds necessary, and require such modifications to the system proposed as may be necessary in the exercise of the City's authority over telecommunications systems. Once the information required by the City has been provided, the application shall be subject to review by the City and any approval shall be subject to the City's determination that:
16.02.1.4.1 the applicant has the qualifications to construct, operate and repair the system proposed in conformity with applicable law.
16.02.1.4.2 the applicant will accept the modifications required by the City to its proposed system. This section does not authorize the City to exercise authority it does not otherwise have under applicable law.
16.02.1.4.3 the applicant will enter into a Franchise and comply with any conditions precedent to its effectiveness.
16.02.1.4.4 in the case of a transfer, any approval will also be subject to a determination that:
16.02.1.4.4.1 there will be no adverse effect on the public interest, or the City's interest in the Franchise;
16.02.1.4.4.2 transferee will agree to be bound by all the conditions of the Franchise and to assume all the obligations of its predecessor; and
16.02.1.4.4.3 any outstanding compliance and compensation issues will be resolved or preserved to the satisfaction of the City.
16.02.1.4.5 an applicant shall not be issued a Franchise if it files or in the previous three years filed materially inaccurate or misleading information in a Franchise application or intentionally withheld information that the applicant lawfully is required to provide. An application for a Franchise area may be denied if the Franchisee has no plans for constructing a system within the entire area for which the Franchise is sought.
16.02.2 Compensation.
16.02.2.1 Rights-of-way fee. Subject only to the exceptions set out in Sections 16.01.4.3, 16.01.5.2, and 16.01.5.5 of this Title, every Operator of a telecommunications facility must pay compensation to the City equal to 6 percent of Gross Revenues, or such other amount as may be provided in a Franchise.
16.02.2.2 Gross Revenues defined. Gross Revenues, for purposes of this Chapter 16.02, includes all revenue derived directly or indirectly by the Operator; or derived directly or indirectly by their Affiliates, subsidiaries, parent companies, and any Person in whom the Operator has a financial interest, or revenues received by the Operator from a Person with whom Operator has a revenue-producing agreement, from the provision of Telecommunications Services via the Telecommunications System, which provision shall be interpreted to include all services and ancillary equipment; provided, however, that this term shall not include taxes imposed directly upon any subscriber or user by the Federal, State, county, or other governmental unit and required to be collected by the Operator; provided further, that a Franchisee may deduct from its Gross Revenues those revenues received from a lessee that holds a Franchise or License under this Title, if that lessee submits a certificate to the telecommunications Operator stating that it has paid the fees it owes the City for the applicable reporting period. Copies of the certificate must be provided to the City.
16.02.2.3 Public record. The compensation paid by each provider for use of Public Rights-of-Way shall be a matter of public record and available for public inspection.
16.02.3 Additional Franchise requirements.
16.02.3.1 Reservation of authority. In addition to satisfying the requirement of Chapter 16.01, every Franchise shall specifically reserve the right to require a Franchisee to construct facilities or to make payments that may be required to comply with any universal service plan the City may lawfully adopt; and to comply with any lawful requirements to ensure continued quality of Telecommunications Services, safeguard the right of consumers, or otherwise protect the public safety and welfare.
16.02.3.2 Provision of facilities and equipment. The City may accept or require an Operator of a Telecommunications System to provide facilities or equipment for use by the City, the schools or any other governmental entity in the City as a condition of the License grant, except as prohibited by law; or may require License holders to share in the costs associated with provisions of such facilities and by other Communications System operators.
16.02.3.3 Annual reports. No later than 90 days after the end of its fiscal year, all operators shall submit a written report that shall contain such information as may be required from time to time by the City, and at least the following, unless the City waives the requirement:
16.02.3.3.1 a summary of the previous year's activities in the development of the system, including descriptions of services begun or discontinued, the number of subscribers gained or lost for each category of service;
16.02.3.3.2 a certified revenue report by the Operator's Chief Financial Officer from the previous calendar year for the system.
16.02.3.3.3 an ownership report, indicating all persons who at the time of filing control or own an interest in the Operator of 10 percent or more;
16.02.3.3.4 a list of officers and members of the Board of Directors of the Franchisee and any Affiliates directly involved in the operation or the maintenance of the system;
16.02.3.3.5 a complete report on its plant. This plant report shall state the physical miles of plant construction and plant in operation during the prior calendar year categorized as aerial and underground, identify any cases where subscribers contributed to plant extension, provide revisions to the Cable System maps filed with the City, and report the results of appropriate electronic measurements to show conformity with any FCC technical standards.
16.02.3.3.6 Once the information required by Sections 16.02.3.3.1-16.02.3.3.5 has been filed, it need be refiled only if it changes.
Chapter 16.03
SPECIAL RULES APPLICABLE TO OPEN VIDEO SYSTEMS
Sections:
16.03.1 Application for a Franchise.
16.03.1.1 Contents of application for initial or renewal Franchise
16.03.1.2 Additional information regarding affiliates; presumptions
16.03.1.3 Applications for transfer
16.03.1.4 City review
16.03.2 Compensation.
16.03.3 Annual reports.
16.03.1 Application for a Franchise.
16.03.1.1 Contents of application for initial or renewal Franchise. In order to obtain an initial or renewal Franchise, an Operator of an Open Video System must apply for a Franchise. The application must contain the following information, and such information as the City may from time to time require.
16.03.1.1.1 Identity of the applicant; the persons who exercise working control over the applicant; and the persons who control those persons, to the ultimate parent.
16.03.1.1.2 A proposal for construction of the Open Video System that includes at least the following:
16.03.1.1.2.1 a description of the services that are to be provided over the facility.
16.03.1.1.2.2 identification of the area of the City to be served by the proposed system, including a description of the proposed Franchise Area's boundaries.
16.03.1.1.2.3 the location of proposed facility and facility design, including a description of the miles of plant to be installed, and a description of the size of equipment cabinets, shielding and electronics that will be installed along the plant route, the power sources that will be used and a description of the noise, exhaust and pollutants, if any, that will be generated by the operation of the same.
16.03.1.1.2.4 a map of the route the facility will follow; a designation of the portions of the system that will be placed aboveground and the portions that will be placed underground, and the construction techniques that the Operator proposes to use in installing the system aboveground and underground; a schedule for construction of the facility, describing when and where construction will begin, how it will proceed, and when it will be completed; and the expected effect on right-of-way usage, including information on the ability of the Public Rights-of-Way to accommodate the proposed system, including, as appropriate given the system proposed, an estimate of the availability of space in conduits and an estimate of the cost of any necessary rearrangement of existing facilities.
16.03.1.1.3 A description, where appropriate, of how services will be converted from existing facilities to new facilities, and what will be done with existing facilities.
16.03.1.1.4 Evidence satisfactory to the City that the applicant has the financial resources to complete the proposed project, and to construct, operate and repair the proposed facility over the Franchise term. It is not the intent of the City to require an applicant to prove that the services it proposed to offer will succeed in the marketplace.
16.03.1.1.5 Evidence satisfactory to the City that applicant is technically qualified to construct, operate and repair the proposed facility. At a minimum, the applicant must show that it has experience or resources to ensure that work is to be performed adequately, and can respond to emergencies during and after construction is complete.
16.03.1.1.6 Evidence satisfactory to the City that the applicant is legally qualified, which proof must include a demonstration that the applicant:
16.03.1.1.6.1 has received, or is in a position to receive, necessary authorizations from state and federal authorities;
16.03.1.1.6.2 has not engaged in conduct (fraud, racketeering, violation of antitrust laws, consumer protection laws, or similar laws) that allows City to conclude the applicant cannot be relied upon to comply with requirements of Franchise, or provisions of this Title;
16.03.1.1.6.3 is willing to enter into a Franchise, to pay required compensation and to abide by the provisions of applicable law, including those relating to the construction, operation or maintenance of its facilities, and has not entered into any agreement that would prevent it from doing so;
16.03.1.1.7 An affidavit or declaration of the applicant or authorized officer thereof certifying the truth and accuracy of the information in the application, and certifying that the application meets all requirements of applicable law.
16.03.1.1.8 An applicant may show that it would be inappropriate to deny it a Franchise under Section 16.03.1.1.6.2, by virtue of: the particular circumstances surrounding the acts or omissions at issue; the steps taken by the applicant to cure all harms flowing therefrom and to prevent their recurrence; and the lack of involvement of the applicant's principals, or the remoteness of the acts or omissions from the operation of Open Video System facilities.
16.03.1.2 Additional information regarding Affiliates; presumptions. To the extent that the applicant is in any respect relying on the financial or technical resources of another Person, including another Affiliate, the proofs required by Sections 16.03.1.1.3-16.03.1.1.5 should be provided for that Person. An applicant will be presumed to have the requisite financial, or technical or legal qualifications to the extent such qualifications have been reviewed and approved by a state agency of competent jurisdiction; or if applicant is a holder of a Franchise in the City for a Cable System or Open Video System, and conduct under such other Franchise provides no basis for additional investigation.
16.03.1.3 Applications for transfer. An application for a transfer of a Franchise must contain the same information required by Section 16.03.1.1, except that, if the transferor submitted an application under Section 16.03.1.1, to the extent information provided by the transferor under Section 16.03.1.1.2 remains accurate, the transferee may simply cross-reference the earlier application.
16.03.1.4 City review. The City may request such additional information as it finds necessary, and require such modifications to the application as may be necessary in the exercise of the City's authority over Open Video Systems. Once the information required by the City has been provided, the application shall be subject to review by the City and any approval will also be subject to a City determination that:
16.03.1.4.1 The applicant has the qualifications to construct, operate and repair the system proposed in conformity with applicable law.
16.03.1.4.2 The applicant will accept the modifications required by the City to its proposed system. This section shall not be read to authorize the City to exercise authority it does not otherwise have under applicable law.
16.03.1.4.3 The applicant will enter into a Franchise and comply with any conditions precedent to its effectiveness.
16.03.1.4.4 In the case of a transfer, the approval is also subject to a determination that:
16.03.1.4.4.1 there will be no adverse effect on the public interest, or the City's interest in the Franchise;
16.03.1.4.4.2 transferee will agree to be bound by all the conditions of the Franchise and to assume all the obligations of its predecessor; and
16.03.1.4.4.3 any outstanding compliance and compensation issues will be resolved or preserved to the satisfaction of the City.
16.03.1.4.5 An applicant shall not be issued a Franchise if it files or in the previous three years filed materially inaccurate or misleading information in a Franchise application or intentionally withheld information that the applicant lawfully is required to provide.
16.03.2 Compensation. Every Operator of an Open Video System shall pay compensation to the City as follows:
16.03.2.1 To the extent that the system is used to provide cable services: a percentage of Gross Revenues each month equal to the gross revenue percentage paid by any cable Operator for the same month; provided, however, that, if there is no Cable System operating, the percentage shall be equal to the percentage fee that would have been levied on a cable Operator under Chapter 16.04, subject to any limit imposed by federal law. Gross Revenues shall be defined to include all the Gross Revenues derived from the operation of an Open Video System to provide Cable Services, and, except as federal law requires otherwise, shall include the Gross Revenues of affiliated persons using the capacity of the Open Video System to provide Cable Service to subscribers for a fee, less amounts paid to the Open Video System Operator to the extent the Operator pays a fee on such revenues. In addition, unless a Franchise provides otherwise, an Open Video System Operator (1) shall pay to the City, at a time directed by the City, an amount equal to the highest amount contributed by any entity operating a Cable System for and in support of public, educational, and government use (including institutional network use) of its Cable System; and (2) to the extent that such entity is providing other support for public, educational or governmental use, the Operator must duplicate that support within a time and in a manner directed by the City, or provide a cash equivalent acceptable to the City; or (3) if there is no such entity, the highest amount permitted under applicable law. In applying this section, the City may take such steps as it deems appropriate to ensure that the obligations borne by the Open Video System operator are no greater or lesser than the obligation imposed upon the cable Operator providi