Not an official copy.
Gig Harbor, WA Ordinance No. 772
AN ORDINANCE OF THE CITY OF GIG HARBOR, WASHINGTON, RELATING TO TELECOMMUNICATIONS AND CABLE TELEVISION; ESTABLISHING REQUIREMENTS FOR TELECOMMUNICATION CARRIERS' AND CABLE OPERATORS' USE OF THE PUBLIC RIGHTS-OF-WAY AND PUBLIC PROPERTY; DESCRIBING THE PROCEDURES FOR APPLICATION AND APPROVAL OF TELECOMMUNICATION BUSINESS LICENSES, TELECOMMUNICATIONS RIGHT-OF-WAY USE PERMITS, FRANCHISES AND CABLE TELEVISION FRANCHISES; DESCRIBING VIOLATIONS AND ESTABLISHING PENALTIES; AND ADDING A NEW CHAPTER 12.18 TO THE GIG HARBOR MUNICIPAL CODE.
WHEREAS, RCW 35A.11.020 grants code cities broad authority to regulate the use of the public rights-of way; and
WHEREAS, RCW 35A.47.040 grants code cities broad authority to grant non- exclusive franchise agreements; and
WHEREAS, Congress has adopted the Telecommunications Act of 1996 (hereinafter the "Act") in order to encourage the development of high-technology communications systems through increased competition among communications companies; and
WHEREAS, the Act provides for the removal of regulatory barriers, rate deregulation and relaxation of certain anti-trust provisions in an attempt to achieve this goal; and
WHEREAS, the Act is anticipated to have a significant effect on the manner in which communications services are delivered, and local telephone companies and cable television companies will all be able to provide telephone, data, video and other communications services; and
WHEREAS, the Act contains numerous provisions which directly affect local taxation, zoning, franchise authority and public rights-of-way management; and
WHEREAS, the Act will likely place additional demands on the use of the City's public rights-of-way and public property; and
WHEREAS, the City currently has regulations which do not adequately address the use of public rights-of-way for telecommunication purposes; now therefore,
THE CITY COUNCIL OF THE CITY OF GIG HARBOR, WASHINGTON, DO ORDAIN AS FOLLOWS:
Section 1. A new chapter 12.18 is hereby added to the Gig Harbor Municipal Code, to read as follows:
CHAPTER 12.18 TELECOMMUNICATIONS
ARTICLE I. GENERAL PROVISIONS
Sections
12.18.010 Purpose.
12.18.020 Definitions.
12.18.030 Business License Required.
12.18.040 Telecommunications Right-of-Way Permit Required.
12.18.050 Telecommunications Franchise Required.
12.18.060 Cable Television Franchise Required.
12.18.070 Facilities Lease Required.
12.18.080 Construction Permit Required.
12.18.090 Application to Existing Franchise Ordinances, Agreements, Leases,
and Permits -- Effect of Other Laws.
12.18.0100 General Penalties.
12.18.0110 Other Remedies.
Section 12.18.: Purpose. The purpose and intent of this Chapter is to:
-
a. establish a local policy concerning telecommunications providers and service;
b. establish clear local guidelines, standards and time frames for the exercise of local authority with respect to the regulation of telecommunications providers and services;
c. promote competition in telecommunications; minimize unnecessary local regulation of telecommunications providers and services;
d. encourage the provision of advanced and competitive telecommunications services on the widest possible basis to the businesses, institutions and residents of the City;
e. permit and manage reasonable access to the public ways of the City for telecommunications purposes on a competitively neutral basis;
f. conserve the limited physical capacity of the public ways held in public trust by the City;
g. assure that the City's current and ongoing costs of granting and regulating private access to and use of the public ways are fully paid by the persons seeking such access and causing such costs;
h. secure fair and reasonable compensation to the City and the residents of the City for permitting private use of the public ways;
i. assure that all telecommunications carriers providing facilities or services within the City comply with the ordinances, rules and regulations of the City;
j. assure that the City can continue to fairly and responsibly protect the public health, safety and welfare;
k. enable the City to discharge its public trust consistent with rapidly evolving federal and state regulatory policies, industry competition and technological development.
Section 12.18.: Definitions. For the purpose of this Chapter, and the interpretation and enforcement thereof, the following words and phrases shall have the following meanings, unless the context of the sentence in which they are used shall indicate otherwise:
-
"Access channels" means channels set aside by a franchisee exclusively for noncommercial
public, educational, or governmental use (commonly referred to as "PEG" channels).
"Addressability" means the ability of a system allowing a franchisee to authorize specific equipment to receive, change or to cancel any or all specified programming.
"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.
"Applicant" means any person or entity that applies for any permit or franchise pursuant to this Chapter.
"Basic cable service" means the lowest level of service regularly provided to all Subscribers that includes the retransmission of local broadcast signals.
"Cable Act" shall mean the Cable Communications Policy Act of 1984, 47 U.S.C. 532, et seq., as now and hereafter amended.
"Cable facilities" means equipment and wiring used to transmit audio and video signals to subscribers.
"Cable operator" means a telecommunications carrier providing or offering to provide "cable service" within the City as that term is defined in the Cable Act.
"Cable service" for the purpose of this Chapter shall have the same meaning provided by the Cable Act.
"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 and other service to subscribers.
"Cablecast" means the distribution of programming which originates within the facilities of the cable television system.
"Channel" or "cable channel" means a portion of the electromagnetic frequency spectrum which is used in a cable system and which is capable of delivering a television signal as defined by the Federal Communications Commission.
"Character generator" means a device used to generate alpha numerical programming to be cablecast on a cable channel.
"City" means the City of Gig Harbor, Washington.
"City property" means and includes all real property owned by the City, other than public streets and utility easements as those terms are defined herein, and all property held in a proprietary capacity by the City, which are not subject to right-of-way licensing and franchising as provided in this Chapter.
"Council" means the City Council of the City of Gig Harbor, Washington acting in its official capacity.
"Data communication" means (1) the transmission of encoded information or (2) the transmission of data from one point to another.
"Dwelling units" means residential living facilities as distinguished from temporary lodging facilities such as hospitals, hotel and motel rooms and dormitories, and includes single family residential units and individual apartments, condominium units, mobile homes, extended care facilities and other multiple family residential units.
"Emergency" means a condition of imminent danger to the health, safety, and welfare of property or persons located within the City including, without limitation, damage to persons or property from natural consequences, such as storms, earthquakes, riots or wars.
"Excess capacity" means the volume or capacity in any existing or future duct, conduit, manhole, handhole or other utility facility within the public way that is or will be available for use for additional telecommunications facilities.
"FCC" or "Federal Communications Commission" means the Federal administrative agency, or lawful successor, authorized to regulate and oversee telecommunications carriers, services and providers on a national level.
"Fiber Optics" means the technology of guiding and projecting light for use as a communications medium.
"Franchise" shall mean the initial authorization, or renewal thereof, issued by the city, whether such authorization is designated as a franchise, permit, Ordinance, resolution, contract, certificate or otherwise, which authorizes construction and operation of the cable system for the purpose of offering cable service or other service to subscribers.
"Franchisee" means the person, firm or corporation to whom or which a franchise, as herein above defined, is granted by the Council under this Chapter and the lawful successor, transferee or assignee of said person, firm or corporation subject to such conditions as may be defined in this Chapter.
"Gross revenues" means any and all revenues (as that term is defined by generally accepted accounting principles) received directly or indirectly from all sources which arise out of or are derived from the operation of a franchisee's cable system in the City. When the revenue of the franchisee includes gross revenues from sources outside of the City, a franchisee shall prorate the gross revenues among its sources by multiplying such gross revenues by a fraction, the numerator of which is the number of franchisee's subscribers in the City and the denominator of which is the total number of all a franchisee's subscribers. "Gross revenues" shall not include the following:
-
1. Fees and payments from subscribers who do not live in the City;
2. Taxes on services furnished by a franchisee, which are imposed on any subscriber or used by any governmental unit, agency or instrumentality and which are collected by a franchisee for such entity;
3. Bad debt write-offs;
4. Revenue from the sale of equipment or other assets of the cable system to persons not purchasing services from the cable system;
5. Revenue from transactions involving real property owned or leased by the franchisee;
6. Amounts collected from subscribers as a franchise fee to be paid to City.
"Headend" means the electronic equipment located at the start of a cable system, usually including antennas, preamplifiers, frequency converters, demodulators and related equipment.
"Installation" means the connection of the cable system from feeder cable to subscribers' receivers.
"Institutional networks (I-Nets)" means that portion of a cable system which is designated principally for the provision of non-entertainment services to public schools, or public agencies such as public libraries separate and distinct from the subscriber network, or on secured channels of the subscriber network.
"Interactive services" means services provided to subscribers where the subscriber (i) receives information consisting of either television or other signals and transmits signals generated by the subscriber or equipment under his/her control for the purpose of selecting what information shall be transmitted to the subscriber or for any other purpose; and (ii) has the ability to transmit signals to any other location for any purpose.
"Office" means the person or entity designated by the City as being responsible for the administration of a franchise for the City.
"Operator" means the person, firm or corporation to whom a franchise is granted pursuant to the provisions of this Chapter.
"Other ways" means the highways, streets, alleys, utility easements or other rights-of-way within the City, but under the jurisdiction and control of a governmental entity other than the City.
"Overhead facilities" means utility poles, utility facilities and telecommunications facilities located above the surface of the ground, including the underground supports and foundations for such facilities.
"Person" means and includes corporations, companies, associations, joint stock companies or associations, firms, partnerships, limited liability companies and individuals and includes their lessors, trustees and receivers.
"Premium services" means video programming offered on a pay-per-channel or pay-per-program basis.
"Property of franchisee" means all property owned, installed or used by a Franchisee in the conduct of its business in the City under the authority of a franchise granted pursuant to this Chapter.
"Proposal" means the response, by an individual or organization, to a request by the City regarding the provision of cable services; or an unsolicited plan submitted by an individual or organization seeking to provide cable services in the City.
"Public street" means any highway, street, alley or other public right of way for motor vehicle travel under the jurisdiction and control of the City which has been acquired, established, dedicated or devoted to highway purposes not inconsistent with telecommunications facilities.
"Public way means and includes all public streets and utility easements, as those terms are defined herein, now or hereafter owned by the City, but only to the extent of the City's right, title, interest or authority to grant a license or franchise to occupy and use such streets and easements for telecommunications facilities.
"State" means the State of Washington.
"Subscriber" means a person or entity or user of the cable system who lawfully receives cable services or other service therefrom with franchisee's express permission.
"Surplus space" means that portion of the usable space on a utility pole which has the necessary clearance from other pole users, as required by the federal or state orders and regulations, to allow its use by a telecommunications carrier for a pole attachment.
"Telecommunications carrier" means and includes every person that directly or indirectly owns, controls, operates or manages plan, equipment or property within the City, used or to be used for the purpose of offering telecommunications service.
"Telecommunications facilities" means the plant, equipment and property, including but not limited to, cables, wires, conduits, ducts, pedestals, antennae, electronics and other appurtenances used or to be used to transmit, receive, distribute, provide or offer telecommunications services.
"Telecommunications provider" means and includes every person who provides telecommunications services over telecommunications facilities without any ownership or management control of the facilities.
"Telecommunications service" means the providing or offering for rent, sale or lease, or in exchange for other value received, of the transmittal of voice, data, image, graphic and video programming information between or among points by wire, cable, fiber optics, laser, microwave, radio, satellite or similar facilities, with or without benefit of any closed transmission medium.
"Telecommunications system" See "Telecommunications facilities".
"Underground facilities" means utility and telecommunications facilities located under the surface of the ground, excluding the underground foundations or supports for overhead facilities.
"Usable space" means the total distance between the top of a utility pole and the lowest possible attachment point that provides the minimum allowable vertical clearance as specified in any federal or state orders and regulations.
"Utility easement" means any easement owned by the City and acquired, established, dedicated or devoted for public utility purposes not inconsistent with telecommunications facilities.
"Utility facilities" means the plant, equipment and property,including but not limited to the poles, pipes, mains, conduits, ducts, cables, wires, plant and equipment located under, on or above the surface of the ground within the public ways of the City and used or to be used for the purpose of providing utility or telecommunications services.
Section 12.18.: Telecommunications Right-of-Way Use Permit Required. Except as otherwise provided herein, any telecommunications carrier who desires to construct, install, operate, maintain, or otherwise locate telecommunications facilities in, under, over or across any public way of the City for the sole purpose of providing telecommunications service to persons and areas outside the City shall first obtain a telecommunications right-of-way use permit granting the use of such public ways from the City pursuant to Article III. of this Chapter.
Section 12.18.: Telecommunications Franchise Required. Except as otherwise provided herein, any telecommunications carrier who desires to construct, install, operate, maintain or otherwise locate telecommunications facilities in, under, over or across any public way of the City, and to also provide telecommunications service to persons or areas in the City, shall first obtain franchise granting the use of such public ways from the City pursuant to Article IV. of this Chapter.
Section 12.18.: Cable Television Franchise Required. Except as otherwise provided herein, any telecommunications carrier or other person who desires to construct, install, operate, maintain or locate cable or telecommunications facilities in any public way in the City for the purpose of providing cable service to persons in the City shall first obtain a cable franchise from the City pursuant to Article V. of this Chapter.
Section 12.18.: Facilities Lease Required. No telecommunications carrier or other entity who desires to locate telecommunications or other equipment on City property shall locate such facilities or equipment on City property unless granted a Facilities Lease from the City. The City Council reserves unto itself the sole discretion to lease City property for telecommunications and other facilities, and no vested or other right shall be created by this Section or any provision of this Chapter applicable to such Facilities Leases.
Section 12.18.: Construction Permits Required. Except as otherwise provided herein, the holder of a permit or franchise granted pursuant this Chapter shall, in addition to said permit or franchise, be required to obtain a Construction Permit from the City pursuant to Article VII. of this Chapter. No work, construction, development, excavation, or installation of any equipment or facilities shall take place within the public ways until such time as the Construction Permit is issued.
Section 12.18.: Application to Existing Franchise Ordinances, Agreements, Leases, and Permits -- Effect of other Laws.
A. This Chapter shall have no effect on any existing franchise ordinance, franchise agreement, lease, or permit to use or occupy a public way in the City until:
-
1. the expiration of said franchise ordinance, agreement, lease, or permit;
or
2. the amendment to an unexpired franchise ordinance, franchise agreement, lease, or permit, unless both parties agree to defer full compliance to a specific date not later than the present expiration date.
B. Nothing in this Chapter shall be deemed to create an obligation upon any person for which the City is forbidden to require a permit, license, or franchise by federal, state, or other law.
Section 12.18.: General Penalties.
A. Penalty.
-
1. Any person, and the officers, directors, managing agents, or partners of
any corporation, firm, partnership or other organization or business violating
or failing to comply with any of the provisions of this Chapter shall be subject
to a cumulative penalty in the amount of five hundred Dollars ($500) per day
for each violation from the date set for compliance until compliance with this
Chapter is achieved.
2. In addition to any penalty which may be imposed by the City, any person violating or failing to comply with any of the provisions of this Chapter shall be liable for all damage to public or private property arising from such violation, including the cost of restoring the affected area to its condition prior to the violation.
3. The penalty imposed by this section shall be collected by civil action brought in the name of the City. The City Administrator shall notify the City Attorney in writing of the name of any person subject to the penalty, and the City Attorney shall, with the assistance of the City Administrator, take appropriate action to collect the penalty.
4. The violator may show as full or partial mitigation of liability:
a. That the violation giving rise to the action was caused by the wilful act, or neglect, or abuse of another; or
b. That correction of the violation was commenced promptly upon receipt of the notice thereof, but that full compliance within the time specified was prevented by inability to obtain necessary materials or labor, inability to gain access to the subject structure, or other condition or circumstance beyond the control of the violator.
-
1. Any person, and the officers, directors, managing agents, or partners of
any corporation, firm, partnership or other organization or business violating
or failing to comply with any of the applicable provisions of this Chapter and
who has had a judgment entered against him or her pursuant to Section 12.18.100(A)(3)
or its predecessors within the past five (5) years shall be subject to criminal
prosecution and upon conviction of a subsequent violation shall be fined in
a sum not exceeding Five Thousand Dollars ($5,000.00) or be imprisoned for a
term not exceeding one (1) year or be both fined and imprisoned. Each day of
noncompliance with any of the applicable provisions of the Chapter shall constitute
a separate offense.
2. The above criminal penalty may also be imposed:
a. For any other violation of this Chapter for which corrective action is not possible;
b. For any wilful, intentional, or bad faith failure or refusal to comply with the standards or requirements of this Chapter; and
c. For any violation of a stop work or other order issued pursuant to this Chapter.
3. In addition to any criminal penalty which may be imposed by the City, a violator may also be liable for damages and costs of restoration described in subsection 12.18.100(A), above.
Section 12.18.: Other Remedies. Nothing in this Chapter shall be construed as limiting any judicial remedies that the City may have, at law or in equity, for enforcement of this Chapter.
ARTICLE II.
BUSINESS LICENSING OF TELECOMMUNICATIONS
CARRIERS AND PROVIDERS
Section 12.18.0120 Purpose of Business License Registration.
12.18.0130 Business License Required.
12.18.0140 Business License Fees.
11 Section 12.18.: Purpose of Business License Registration. The purpose of
telecommunications business licensing is to:
A. provide the City with accurate and current information concerning the
cable operators and telecommunications carriers and providers who offer or provide services within
the City, or that own or operate facilities within the City;
B. assist the City in enforcement of this Chapter;
C. assist the City in the collection and enforcement of any municipal taxes,
franchise fees, license fees or charges that may be due the City;
D. assist the City in monitoring compliance with local, State and Federal
laws.
12 Section 12.18.: Business License Required. All cable operators,
telecommunications carriers, and telecommunications providers that offer or provide any cable
service or telecommunications service for a fee directly to the public, either within the City, or
outside the corporate limits from cable or telecommunications facilities within the City, shall apply
for and obtain a business license with the City pursuant to this Chapter, and the requirements of
Chapter 5.01 of the Gig Harbor Municipal Code, on forms to be provided by the City
Administrator, which shall include the following:
A. The identity and legal status of the applicant, including any affiliates.
B. The name, address, telephone number, and title of the officer, agent or
employee responsible for the accuracy of the business license application statement.
C. A description of applicant's existing or proposed facilities within the City.
D. A description of the service that the applicant intends to offer or provide,
or is currently offering or providing, to persons, firms, businesses or institutions within the City.
E. Information sufficient to determine whether the applicant is subject to the
public way permitting and/or franchising requirements imposed by this Chapter.
F. Information sufficient to determine whether the transmission, origination
or receipt of the services provided or to be provided by the applicant constitutes an occupation or
privilege subject to any municipal telecommunications tax, utility tax or other occupation tax
imposed by the City.
G. Information sufficient to determine that the applicant has applied for and
received any certificate of authority required by any federal or state agency to provide
telecommunications services or facilities within the City.
H. Information sufficient to determine that the applicant has applied for and
received any construction permit, operating license or other approvals required by the Federal
Communications Commission to provide services or construct facilities within the City.
13 Section 12.18.: Business License Fees. Each application for a business license as
a cable operator or telecommunications carrier or provider shall be accompanied by an application
fee which shall be set by the City Council by resolution.
ARTICLE III.
TELECOMMUNICATIONS RIGHT-OF-WAY USE PERMITS
Sections 12.18.0150 Telecommunications Right-of-Way Use Permit.
12.18.0160 Telecommunications Right-of-Way Use Permit Application.
12.18.0170 Issuance/Denial of Telecommunications Right-of-Way Use
Permit.
12.18.0180 Agreement.
12.18.0190 Nonexclusive Grant.
12.18.0200 Rights Granted.
12.18.0210 Terms of Telecommunications Right-of-Way Use Permit.
12.18.0220 Telecommunications Right-of-Way Use Permit Route.
12.18.0230 Service to City Users.
12.18.0240 Compensation to the City.
12.18.0250 Amendment of Permit.
12.18.0260 Renewal of Telecommunications Right-of-Way Use Permit.
12.18.0270 Standards for Renewal of Permits.
12.18.0280 Obligation to Cure as a Condition of Renewal.
14 Section 12.18.: Telecommunications Right-of-Way Use Permit. A
telecommunications right-of-way permit shall be required of any telecommunications carrier who
desires to occupy specific public ways of the City for the sole purpose of providing
telecommunications services to persons or areas outside the City.
15 Section 12.18.: Telecommunications Right-of-Way Use Permit Application.
Any person that desires a telecommunications right-of-way use permit pursuant to this Chapter
shall file an application with the City which shall include the following information:
A. The identity of the applicant, including all affiliates of the applicant.
B. A description of the telecommunications services that are or will be offered
or provided by the applicant over its telecommunications facilities.
C. A description of the transmission medium that will be used by the
applicant to offer or provide such telecommunications services.
D. Preliminary engineering plans, specifications and a network map of the
facilities to be located within the City, all in sufficient detail to identify:
(1) the location and route requested for applicant's proposed
telecommunications facilities;
(2) the location of all overhead and underground public utility,
telecommunication, cable, water, sewer drainage and other
facilities in the public way along the proposed route;
(3) the location(s), if any, for interconnection with the
telecommunications facilities of other telecommunications
carriers;
(4) the specific trees, structures, improvements, facilities and
obstructions, if any, that applicant proposes to temporarily or
permanently remove or relocate.
E. If applicant is proposing to install overhead facilities, evidence that surplus
space is available for locating its telecommunications facilities on existing utility poles along the
proposed route.
F. If applicant is proposing an underground installation in existing ducts or
conduits within the public ways, information in sufficient detail to identify:
(1) the excess capacity currently available in such ducts or conduits
before installation of applicant's telecommunications facilities;
(2) the excess capacity, if any, that will exist in such ducts or
conduits after installation of applicant's telecommunications
facilities.
G. If applicant is proposing an underground installation within new ducts or
conduits to be constructed within the public ways:
(1) the location proposed for the new ducts or conduits;
(2) the excess capacity that will exist in such ducts or conduits after
installation of applicant's telecommunications facilities.
H. A preliminary construction schedule and completion date.
I. A preliminary traffic control plan in accordance with the City's adopted
street standards.
J. Financial statements prepared in accordance with generally accepted
accounting principles demonstrating the applicant's financial ability to construct, operate, maintain,
relocate and remove the facilities.
K. Information in sufficient detail to establish the applicant's technical
qualifications, experience and expertise regarding the telecommunications facilities and services
described in the application.
L. Information to establish that the applicant has obtained all other
governmental approvals and permits to construct and operate the facilities, and to offer or provide
the telecommunications services.
M. All deposits or charges required pursuant to this Chapter.
N. An application fee which shall be set by the City Council by resolution.
16 Section 12.18.: Issuance/Denial of Telecommunications Right-of-Way Use
Permit. Within 120 days after receiving a complete application under Section 12.18.0160 hereof,
the City shall issue a written determination granting or denying the permit in whole or in part. Prior
to granting or denying a permit under this Article, the City Council shall conduct a public hearing
and make a decision based upon the following standards. If the permit is denied, the written
determination shall include the reason(s) for denial.
A. The financial and technical ability of the applicant.
B. The legal ability of the applicant.
C. The capacity of the public ways to accommodate the applicant's proposed
facilities.
D. The capacity of the public ways to accommodate additional utility, cable,
and telecommunications facilities if the permit is granted.
E. The damage or disruption, if any, of public or private facilities,
improvements, service, travel or landscaping if the permit is granted.
F. The public interest in minimizing the cost and disruption of construction
within the public ways.
G. The service that applicant will provide to the community and region.
H. The effect, if any, on public health, safety and welfare if the license is
granted.
I. The availability of alternate routes and/or locations for the proposed
facilities.
J. Applicable federal and state telecommunications laws, regulations and
policies.
K. Such other factors as may demonstrate that the grant to use the public ways
will serve the community interest.
17 Section 12.18.: Agreement. No permit shall be deemed to have been granted
hereunder until the applicant and the City have executed a written agreement setting forth the
particular terms and provisions under which the permittee has been granted to right to occupy and
use public ways of the City.
18 Section 12.18.: Nonexclusive Grant. No permit granted under this Article shall
confer any exclusive right, privilege, license or franchise to occupy or use the public ways of the
City for delivery of telecommunications services or any other purposes.
19 Section 12.18.: Rights Granted. No permit granted under this Article shall convey
any right, title or interest in the public ways, but shall be deemed a permit only to use and occupy
the public ways for the limited purposes and term stated in the permit. Further, no permit shall be
construed as any warranty of title.
20 Section 12.18.: Terms of Telecommunications Right-of-Way Use Permit.
Unless otherwise specified in a permit, a telecommunications permit granted hereunder shall be in
effect for a term of one (1) year, which shall be revokable upon thirty (30) days notice by the City
to the permittee.
21 Section 12.18.: Telecommunications Right-of-Way Permit Route. A
telecommunications permit granted under this Article shall be limited to a grant of specific public
ways and defined portions thereof.
22 Section 12.18.: Service to City Users. A permittee shall be permitted to offer or
provide telecommunications services to persons or areas within the City upon approval of an
application for a telecommunications franchise pursuant to Article IV. of this Chapter.
23 Section 12.18.: Compensation to the City. Each permit granted pursuant to this
Article is subject to the City's right, which is expressly reserved, to annually fix a fair and
reasonable compensation to be paid for the right to occupy and use the public ways of the City
granted under such permits; provided, nothing in this Chapter shall prohibit the City and a permittee
from agreeing to the compensation to be paid.
24 Section 12.18.: Amendment of Permit. A new permit application shall be required
of any telecommunications carrier that desires to extend or locate its telecommunications facilities
in public ways of the City which are not included in a permit previously granted under this Chapter.
If ordered by the City to locate or relocate its telecommunications facilities in public ways not
included in a previously granted license, the City shall grant a permit amendment without further
application.
25 Section 12.18.: Renewal of Telecommunications Right-of-Way Use Permit. A
permittee that desires to renew its permit under this Article shall, not more than 180 days nor less
than 90 days before expiration of the current permit, file an application with the City for renewal of
its permit which shall include the following:
A. The information required pursuant to Section 12.18.0160 of this Chapter.
B. Any information required pursuant to the permit agreement between the
City and the permittee.
C. All deposits or charges required pursuant to this Chapter.
D. An application fee which shall be set by the City Council by resolution.
26 Section 12.18.: Standards for Renewal of Permits. Within 90 days after receiving
a complete application for permit renewal, the City shall issue a written determination granting or
denying the renewal application in whole or in part. Prior to granting or denying the renewal of a
permit under this Article, the City Council shall conduct a public hearing and make a decision
based upon the following standards. If the renewal application is denied, the written determination
shall include the reasons for non-renewal.
A. The financial and technical ability of the applicant.
B. The continuing capacity of the public ways to accommodate the applicant's
existing facilities.
C. The applicant's compliance with the requirements of this Chapter and the
permit.
D. Applicable federal, state and local telecommunications laws, rules and
policies.
E. Such other factors as may demonstrate that the continued grant to use the
public ways will serve the community interest.
27 Section 12.18.: Obligation to Cure as a Condition of Renewal. No permit shall
be renewed until any ongoing violations or defaults in the permittee's performance of the permit, or
of the requirements of this Chapter, have been cured, or a plan detailing the corrective action to be
taken by the permittee has been approved by the City.
ARTICLE IV.
TELECOMMUNICATIONS FRANCHISE
Sections 12.18.290 Telecommunications Franchise.
12.18.300 Franchise Application.
12.18.310 Determination by the City.
12.18.320 Agreement.
12.18.330 Nonexclusive Grant.
12.18.340 Terms of Franchise Grant.
12.18.350 Rights Granted.
12.18.360 Franchise Territory.
12.18.370 Compensation to the City.
12.18.380 Nondiscrimination.
12.18.390 Amendment of Franchise Grant.
12.18.400 Renewal Application.
12.18.410 Renewal Determination.
12.18.420 Obligation to Cure as Condition of Renewal.
28 Section 12.18.: Telecommunications Franchise. A telecommunications franchise
shall be required of any telecommunications carrier or other person who desires to occupy public
ways of the City and to provide telecommunications services to any person or area in the City.
29 Section 12.18.: Franchise Application. Any person that desires a
telecommunications franchise pursuant to this Chapter shall file an application with the City which
shall include the following:
A. The identity of the applicant, including all affiliates of the applicant.
B. A description of the services that are or will be offered or provided by the
applicant over its existing or proposed facilities.
C. A description of the transmission medium that will be used by the
franchisee to offer or provide such services.
D. Preliminary engineering plans, specifications and a network map of the
facilities to be located within the City, all in sufficient detail to identify:
(1) the location and route requested for applicant's proposed
facilities.
(2) the location of all overhead and underground public utility,
telecommunication, cable, water, sewer drainage and other
facilities in the public way along the proposed route.
(3) the location(s), if any, for interconnection with the facilities of
other telecommunications carriers and cable operators.
(4) the specific trees, structures, improvements, facilities and
obstructions, if any, that applicant proposes to temporarily or
permanently remove or relocate.
E. If applicant is proposing to install overhead facilities, evidence that surplus
space is available for locating its facilities on existing utility poles along the proposed route.
F. If applicant is proposing an underground installation in existing ducts or
conduits within the public ways, information in sufficient detail to identify:
(1) the excess capacity currently available in such ducts or conduits
before installation of applicant's facilities;
(2) the excess capacity, if any, that will exist in such ducts or
conduits after installation of applicant's facilities.
G. If applicant is proposing an underground installation within new ducts or
conduits to be constructed within the public ways:
(1) the location proposed for the new ducts or conduits;
(2) the excess capacity that will exist in such ducts or conduits after
installation of applicant's facilities.
H. A preliminary construction schedule and completion dates.
I. A preliminary traffic control plan in accordance with the City's adopted
street standards.
J. Financial statements prepared in accordance with generally accepted
accounting principles demonstrating the applicant's financial ability to construct, operate, maintain,
relocate and remove the facilities.
K. Information in sufficient detail to establish the applicant's technical
qualifications, experience and expertise regarding the facilities and services described in the
application.
L. Information to establish that the applicant has obtained all other
governmental approvals and permits to construct and operate the facilities and to offer or provide
the telecommunications or other services.
M. Whether the applicant intends to provide cable service, video dialtone
service or other video programming service, and sufficient information to determine whether such
service is subject to cable franchising.
N. An accurate map showing the location of any existing telecommunications
facilities in the City that applicant intends to use or lease.
O. A description of the services or facilities that the applicant will offer or
make available to the City and other public, educational and governmental institutions.
P. A description of applicant's access and line extension policies.
Q. The area or areas of the City the applicant desires to serve and a schedule
for build-out to the entire franchise area.
R. All fees, deposits or charges required pursuant to Article VI. of this
Chapter.
S. Such other and further information as may be requested by the City
Administrator.
T. An application fee which shall be set by the City Council by resolution.
30 Section 12.18.: Determination by the City. Within 120 days after receiving a
complete application under Section 12.18.0300 hereof, the City shall issue a written determination
granting or denying the application in whole or in part. Prior to granting or denying a franchise
under this Article, the City Council shall conduct a public hearing and make a decision based upon
the following standards. If the application is denied, the written determination shall include the
reason for denial.
A. The financial and technical ability of the applicant.
B. The legal ability of the applicant.
C. The capacity of the public ways to accommodate the applicant's proposed
facilities.
D. The capacity of the public ways to accommodate additional utility and
telecommunications facilities if the franchise is granted.
E. The damage or disruption, if any, of public or private facilities,
improvements, service, travel or landscaping if the franchise is granted.
F. The public interest in minimizing the cost and disruption of construction
within the public ways.
G. The service that applicant will provide to the community and region.
H. The effect, if any, on public health, safety and welfare if the franchise
requested is granted.
I. The availability of alternate routes and/or locations for the proposed
facilities.
J. Applicable federal and state telecommunications laws, regulations and
policies.
K. Such other factors as may demonstrate that the grant to use the public ways
will serve the community interest.
L. That the requirements of RCW 35A.47.040 have been complied with.
31 Section 12.18.: Agreement. No franchise shall be deemed to have been granted
hereunder until the applicant and the City have executed a written agreement setting forth the
particular terms and provisions under which the franchisee has been granted to right to occupy and
use public ways of the City.
32 Section 12.18.: Nonexclusive Grant. No franchise granted under this Article shall
confer any exclusive right, privilege, license or franchise to occupy or use the public ways of the
City for delivery of telecommunications services or any other purposes.
33 Section 12.18.: Terms of Franchise Grant. Unless otherwise specified in a
franchise agreement, a telecommunications franchise granted hereunder shall be valid for a term of
ten (10) years.
34 Section 12.18.: Rights Granted. No franchise granted under this Article shall
convey any right, title or interest in the public ways, but shall be deemed a franchise only to use and
occupy the public ways for the limited purposes and term stated in the grant. Further, no franchise
shall be construed as any warranty of title.
35 Section 12.18.: Franchise Territory. A telecommunications franchise granted
under this Article shall be limited to the specific geographic area of the City to be served by the
franchisee, and the specific public ways necessary to serve such areas.
36 Section 12.18.: Compensation to the City. Each franchise granted under this
Article is subject to the City's right, which is expressly reserved, to annually fix a fair and
reasonable compensation to be paid for the franchise rights granted to the franchisee; provided,
nothing in this Chapter shall prohibit the City and a franchisee from agreeing to the compensation
to be paid.
37 Section 12.18.: Nondiscrimination. A franchisee shall make its
telecommunications services available to any customer within its franchise area who shall request
such service, without discrimination as to the terms, conditions, rates or charges for the franchisee's
services; provided, however, that nothing in this Chapter shall prohibit a franchisee from making
any reasonable classifications among differently situated customers.
38 Section 12.18.: Amendment of Franchise Grant. A new franchise application and
grant shall be required of any telecommunications carrier that desires to extend its franchise
territory or to locate its telecommunications facilities in public ways of the City which are not
included in a franchise previously granted under this Article. If ordered by the City to locate or
relocate its telecommunications facilities in public ways not included in a previously granted
franchise, the City shall grant a franchise amendment without further application.
39 Section 12.18.: Renewal Application. A franchisee that desires to renew its
franchise under this Chapter shall, not more than 180 days nor less than 120 days before expiration
of the current franchise, file an application with the City for renewal of its franchise which shall
include the following:
A. The information required pursuant to Section 12.18.0300 of this Chapter.
B. Any information required pursuant to the franchise agreement between the
City and the grantee.
C. All deposits or charges required pursuant to this Chapter.
D. An application fee which shall be set by the City Council by resolution.
40 Section 12.18.: Renewal Determination. Within 120 days after receiving a
complete application for renewal under Section 12.18.0400 hereof, the City shall issue a written
determination granting or denying the renewal application in whole or in part. Prior to granting or
denying renewal of a franchise under this Article, the City Council shall conduct a public hearing
and make a decision based upon the following standards. If the renewal application is denied, the
written determination shall include the reasons for non-renewal.
A. The financial and technical ability of the applicant.
B. The legal ability of the applicant.
C. The continuing capacity of the public ways to accommodate the applicant's
existing facilities.
D. The applicant's compliance with the requirements of this Chapter and the
franchise agreement.
E. Applicable federal, state and local telecommunications laws, rules and
policies.
F. Such other factors as may demonstrate that the continued grant to use the
public ways will serve the community interest.
41 Section 12.18.: Obligation to Cure as a Condition of Renewal. No franchise
shall be renewed until any ongoing violations or defaults in the franchisee's performance of the
franchise agreement, or of the requirements of this Chapter, have been cured, or a plan detailing the
corrective action to be taken by the franchisee has been approved by the City.
ARTICLE V.
CABLE TELEVISION FRANCHISE
Sections 12.18.430 Cable Television Franchise.
12.18.440 Franchise Application.
12.18.450 Determination by City.
12.18.460 Agreement.
12.18.470 Nonexclusive Grant.
12.18.480 Terms of Franchise Grant.
12.18.490 Rights Granted.
12.18.500 Franchise Territory.
12.18.510 Nondiscrimination.
12.18.520 Amendment of Franchise Grant.
12.18.530 Renewal Application.
12.18.540 Renewal Determination.
12.18.550 Obligation to Cure as Condition of Renewal.
12.18.560 Rates.
12.18.570 Franchise Fee.
12.18.580 Periodic Meetings.
12.18.590 Cable System Evaluation.
12.18.600 Public, Educational and Governmental Access.
12.18.610 City-wide Public, Educational and Governmental Access
Interconnection.
12.18.620 Institutional Networks (I-Nets).
12.18.630 City-wide Institutional Networks Interconnection.
12.18.640 Access and Institutional Network Equipment.
12.18.650 External Franchising Costs.
12.18.660 Continuity of Service.
12.18.670 Equalization of Civic Contributions.
12.18.680 Subscriber Rate Complaint Process.
12.18.690 Parental Control Devices.
12.18.700 Discounts.
12.18.710 Customer Service.
12.18.720 Telephone Response.
12.18.730 Failure to Improve Customer Service.
12.18.740 Reports.
12.18.750 Programming.
12.18.760 Inconsistency.
42 Section 12.18.: Cable Television Franchise. A cable television franchise shall be
required of any telecommunications carrier, cable operator, or other person who desires to occupy
the public ways of the City and to provide cable service to any person or area in the City.
43 Section 12.18.: Franchise Application. Any person that desires a cable television
franchise pursuant to this Article shall file an application with the City which, in addition to the
materials required by Section 12.18.290, shall include information whether the applicant intends to
provide telecommunications service, and sufficient information to determine whether such service
is subject to telecommunications franchising pursuant to this Chapter.
44 Section 12.18.: Determination by the City. Within 120 days after receiving a
complete application under Section 12.18.0440, the City shall issue a written determination
granting or denying the application in whole or in part. Prior to granting or denying a franchise
under this Article, the City Council shall conduct a public hearing and make a decision based upon
the standards set forth in Section 12.18.310. If the application is denied, the written determination
shall include the reason(s) for denial.
45 Section 12.18.: Agreement. No franchise shall be deemed to have been granted
hereunder until the applicant and the City have executed a written agreement setting forth the
particular terms and provisions under which the franchisee has been granted to right to occupy and
use public ways of the City and to provide cable service to persons or areas within the City.
46 Section 12.18.: Nonexclusive Grant. No franchise granted under this Article shall
confer any exclusive right, privilege, license or franchise to occupy or use the public ways of the
City for delivery of cable services or any other purposes.
47 Section 12.18.: Terms of Franchise Grant. Unless otherwise specified in a
franchise agreement, a cable franchise granted hereunder shall be valid for a term of ten (10) years.
48 Section 12.18.: Rights Granted. A cable television franchise granted pursuant to
this Article shall authorize a franchisee:
A. To engage in the business of operating and providing cable service and
services and the distribution and sale of such services to subscribers within the City; and
B. To erect, install, construct, repair, replace, reconstruct, maintain and retain
in, on, over, under, upon, across and along any public way, such amplifiers and appliances, lines,
cables, conductors, vaults, manholes, pedestals, attachments, supporting structures, and other
property as may be necessary and appropriate to the cable system.
Provided, however, that no privilege or exemption shall be granted or conferred upon a franchisee
by any franchise except as specifically prescribed therein, and any use of any public way shall be
consistent with any prior lawful occupancy of the public way or any subsequent improvement or
installation therein. Provided further, that no franchise granted pursuant to this Article shall convey
any right, title or interest in the public ways, but shall be deemed a franchise only to use and occupy
the public ways for the limited purposes and term stated in the grant. No franchise shall be
construed as any warranty of title.
49 Section 12.18.: Franchise Territory. A cable television franchise granted under
this Article shall be limited to the specific geographic area of the City to be served by the
franchisee, and the specific public ways necessary to serve such areas.
50 Section 12.18.: Nondiscrimination. A franchisee shall make its
telecommunications services available to any customer within its franchise area who shall request
such service, without discrimination as to the terms, conditions, rates or charges for grantee's
services; provided, however, that nothing in this Chapter shall prohibit a franchisee from making
any reasonable classifications among differently situated customers. Provided further, that nothing
in this Ordinance shall be deemed to prohibit the establishment of a graduated scale of charges and
classified rate schedules to which any customer coming within such classification would be entitled,
and that connection and/or service charges may be waived or modified during promotional
campaigns of a franchisee. A franchisee will not deny access to cable service to any group of
potential residential subscribers because of the income of the residents of the local area in which the
group resides.
51 Section 12.18.: Amendment of Franchise Grant. Except as otherwise provided
by 47 U.S.C. 545, a new franchise application and grant shall be required of any cable operator
that desires to extend its franchise territory, to locate its cable facilities in public ways of the City
which are not included in a franchise previously granted under this Article, or to otherwise modify
its franchise or franchise agreement. If ordered by the City to locate or relocate its cable facilities
in public ways not included in a previously granted franchise, the City shall grant a franchise
amendment without further application.
52 Section 12.18.: Renewal Application. A franchisee that desires to renew its
franchise under this Chapter shall, not more than 180 days nor less than 120 days before expiration
of the current franchise, file an application with the City for renewal of its franchise which shall
include the following:
A. The information required pursuant to Section 12.18.0440 of this Chapter.
B. Any information required pursuant to the franchise agreement between the
City and the grantee.
C. Any information required pursuant to the Cable Act.
D. All deposits or charges required pursuant to this Chapter.
E. An application fee which shall be set by the City Council by resolution.
53 Section 12.18.: Renewal Determination. Within 120 days after receiving a
complete application under Section 12.18.530, the City shall issue a written determination granting
or denying the renewal application in whole or in part. Prior to granting or denying renewal of a
franchise under this Article, the City Council shall conduct a public hearing and make a decision
based upon the standards set forth in the Cable Act, its implementing regulations, and the standards
set forth in Section 12.18.410. If the renewal application is denied, the written determination shall
include the reason(s) for non-renewal.
54 Section 12.18.: Obligation to Cure as a Condition of Renewal. No franchise
shall be renewed until any ongoing violations or defaults in the franchisee's performance of the
franchise agreement, or of the requirements of this Chapter, have been cured, or a plan detailing the
corrective action to be taken by the franchisee has been approved by the City.
55 Section 12.18.: Rates. Within thirty (30) days after the grant of franchise pursuant
to this Article, a franchisee shall file with the City a complete schedule of all present rates charged
to all subscribers. Prior to implementation of any change in rates or charges for any service or
equipment provided by a franchisee, a franchisee shall provide the City and all subscribers a
minimum of thirty (30) days prior written notice of such change. Subject to 47 U.S.C. 543 and
applicable FCC regulations, the City may regulate the rates or charges for providing cable service
and other equipment and may establish rate regulation review procedures as delegated by Federal
law.
56 Section 12.18.: Franchise Fee. As permitted by 47 U.S.C. 542, a franchisee shall
pay the City a franchise fee equal to five percent (5%) or greater of its gross revenues as defined in
this Chapter. The franchise fee shall be paid quarterly, on or before the thirtieth (30th) day of each
January, April, July, and October. Such remittances shall be accompanied by forms furnished by
the City to report reasonably detailed information as to the sources of such revenues.
57 Section 12.18.: Periodic Meetings. Upon request, but not more than once during
any calendar year, a franchisee shall meet with designated City officials and/or designated
representative(s) of the City to review the performance of a franchisee for the preceding period.
The franchisee shall be given not less than thirty (30) days' prior written notice of any such meeting.
The subjects may include, but are not limited to, those items covered in the periodic reports and
performance tests.
58 Section 12.18.: Cable System Evaluation. In addition to periodic meetings, and
with written notice of not less than five (5) business days so that a franchisee can arrange to have
necessary personnel present, the City may require reasonable evaluation sessions at any time during
the term of a franchise. It is intended that such evaluations cover areas such as customer service,
response to the community's cable-related needs, and a franchisee's performance under and
compliance with the terms of a franchise.
59 Section 12.18.: Public, Educational and Governmental Access. As permitted by
47 U.S.C. 531, the City may require, as a condition of a franchise granted pursuant to this Article,
provisions for Public, Educational and Government (PEG) Access.
60 Section 12.18.: City-wide Public, Educational and Government Access
Interconnection. As permitted by 47 U.S.C. 531, the City may request a franchisee to begin
negotiations to interconnect PEG access channels of a cable television system with any and all other
contiguous and compatible cable systems. Interconnection of system may be accomplished by
direct cable connection, microwave link, or other technically feasible method. Upon receiving
request of the City to interconnect, if a franchisee has not already done so, a franchisee shall initiate
negotiations with other affected system(s), and shall report to the City the results of such
negotiations no later than sixty (60) days after such initiation. Any costs of interconnection may be
passed through to subscribers by a franchisee.
61 Section 12.18.: Institutional Networks (I-Nets). A franchisee's cable system shall
have the capability of serving designated educational and public buildings with uni- or bi-
directional video/audio signals. The linkage may be by cable, microwave or other means deemed
appropriate by a franchisee. If required, suitable encoding and decoding devices shall be made
available by a franchisee to assure transmission security. A public entity desiring the activation of
such service shall make application thereof to a franchisee. Activation of such services to a public
entity shall not be unduly denied. As provided by the Cable Act, a public entity in the City denied
such service may request a public hearing to evaluate such denial. Both the requestor and the
franchisee shall be provided the opportunity to present the reasons for the request and the reasons
for the denial. Upon a finding by the City Council that these services are reasonably required to
meet community needs, taking into account the cost of meeting such needs, the City Council may
require the activation of such services for the public entity in a reasonable time and on the same
basis that other public entities in the City receive the same service.
62 Section 12.18.: City-wide Institutional Networks Interconnection. A franchise
agreement may require a franchisee to make such interconnections as necessary to connect certain
designated institutions on a City-wide basis. The same conditions as enumerated in Section
12.18.0620 shall apply to such interconnections.
63 Section 12.18.: Access and Institutional Network Equipment. A franchise
agreement may require a franchisee to contribute either specified goods and services and/or a
specified sum of money for the purpose of providing facilities and equipment for PEG access
programming and the Institutional Networks.
64 Section 12.18.: External Franchising Costs. Prior to expenditure of capital for
any franchise related requirements that would be treated as an external cost passed through to
customers, the franchisee shall notify the City of its intent to exercise its right and the amount to be
passed through to customers. The City may waive the franchise related requirement if, in the City's
opinion, the increase in rates would be a burden on City rate payers.
65 Section 12.18.: Continuity of Service. It shall be the right of all subscribers to
continue receiving service so long as their financial and other obligations to a franchisee are
fulfilled. In this regard a franchisee shall act so far as it is reasonably within its control to provide
all subscribers with continuous uninterrupted service during the term of the franchise, subject to
applicable law. In the event a franchisee fails to operate a system for seventy-two (72) continuous
and consecutive hours without prior notification to and approval of the City Council or without just
cause such as an impossibility to operate the system because of the occurrence of an act of God or
other circumstances reasonably beyond a franchisee's control, the City may, after notice and an
opportunity for a franchisee to commence operations at its option, operate the emergency alert
system or designate someone to operate the emergency alert system until such time as a franchisee
restores service or a replacement franchisee is selected. If the City is required to fulfill this
obligation for a franchisee, a franchisee shall reimburse the City for all reasonable costs or damages
that are the result of a franchisee's failure to perform.
66 Section 12.18.: Equalization of Civic Contributions. In the event of one or more
new franchises being granted, the City may require that such subsequent franchisees pay to the City
an amount proportionally equal to franchising costs contributed by the initial franchisee. These
costs may include but are not limited to such features as access and institutional network costs, bi-
directional or equivalent cable installed to municipal buildings and similar expenses. Additional
franchisees shall provide all PEG access channel(s) currently available to the subscribers of existing
franchisees. In order to provide these access channels, additional franchisees shall interconnect, at
their cost, with existing franchisees, subject to any reasonable terms and conditions that the existing
franchisee providing the interconnection may require. These interconnection agreements shall be
made directly between the franchisees. The City Council, in such cases of dispute of award, may
be called upon to arbitrate regarding these arrangements. Additional franchisees shall contribute
towards costs of PEG access paid by a prior franchisee by paying to the prior franchisee on each
anniversary of the grant of the subsequent franchise an amount equal to a proportionate share of the
amount contributed by the prior franchisee for PEG access costs in constant dollars. This
proportionate share shall be based upon the number of subscribers in the City held by each
franchise and shall be contributed until such time as equal contributions towards the cost of PEG
access have been made.
67 Section 12.18.: Subscriber Rate Complaint Process. As provided by 47 U.S.C.
543, any subscriber aggrieved by a cable rate increase shall file its cable rate complaint with the
City within ninety (90) days of the effective date of such an increase. Such complaints shall be
submitted upon a form prescribed by the City Administrator. If the City receives cable rate
complaints from cable subscribers, it may, in its sole discretion, file a cable rate complaint with the
FCC, seeking review of any such rate increase.
68 Section 12.18.: Parental Control Devices. A franchisee shall make available at its
cost, including applicable handling fees, a device by which the subscriber can prohibit viewing of
a particular cable service during periods selected by that subscriber.
69 Section 12.18.: Discounts. A franchisee shall offer a discount of thirty percent
(30%) from the normal charge for basic services and installation to those individuals age sixty-two
(62) or older or disabled who are the legal owner or lessee/tenant of their residence provided that
their combined disposal income from all sources does not exceed the median income level Housing
and Urban Development (HUD) standards for the Seattle-Everett area for the preceding calendar
year. The City or its designee shall be responsible for certifying to a franchisee that such applicants
conform to the specified criteria.
70 Section 12.18.: Customer Service.
A. A franchisee shall render repair service to restore the quality of the signal
at approximately the same standards existing prior to the failure or damage of the component
causing the failure and make repairs promptly and interrupt service only for good cause and for the
shortest time possible. Such interruptions, insofar as possible, shall be preceded by notice and shall
occur during a period of minimum use of the system. A log of all service interruptions shall be
maintained for a period of at least one (1) year. The City, after two (2) working days' notice, may
inspect such logs.
B. An employee of a franchisee shall answer and respond to all individual
complaints received up until 5:00 p.m. weekdays. A franchisee may use an answering service to
receive complaints after 5:00 p.m. weekdays and on weekends and holidays and shall respond to
any system outage affecting more than five (5) subscribers regardless of day and hour. A copy of
the instructions to the answering service by a franchisee shall be furnished to the City or its
designee.
C. A technician shall be on call seven (7) days a week, twenty-four (24) hours
a day. A franchisee shall respond immediately to service complaints in an efficient manner.
D. A franchisee shall maintain a sufficient repair force to respond to
individual requests for repair service within two (2) working days after receipt of the complaint or
request, except Saturday, Sunday and legal holidays. All complaints shall be resolved within seven
(7) days, to the extent reasonable. If a subscriber has notified a franchisee of an outage, no charge
for the period of the outage shall be made to the subscriber if the subscriber was without service for
a period exceeding twenty-four (24) hours.
E. A franchisee shall supply at the time of a new connection, and periodically
at least once a year, the title, address and telephone number of the city official or his/her designee,
to whom subscribers may direct their concerns.
F. In no case will a franchisee's service standards fall below the standards
established below the National Cable Television Association (NCTA) which are attached hereto as
Appendix A, and incorporated by this reference as though completely set forth herein.
71 Section 12.18.: Telephone Response.
A. A franchisee shall maintain an adequate force of customer service
representatives as well as incoming trunk lines so that telephone inquiries are met promptly and
responsively. A franchisee shall have in place procedures for utilization of other manpower and/or
recording devices for handling the flow of telephone calls at peak periods of large outages or other
major causes of subscriber concern. A copy of such procedures and/or policies shall be made
available to the City.
B. In order that the City may be informed of a franchisee's success in
achieving satisfactory customer relations in its telephone answering functions, a franchisee shall,
upon request by the City, and routinely each quarter, provide the City with a summary that provides
the following:
(1) Total number of calls received in recording periods;
(2) Time taken to answer;
(3) Average talk time;
(4) Number of calls abandoned by the caller;
(5) Average hold time;
(6) Percentage of time all lines busy;
(7) An explanation of any abnormalities.
C. This data will be compared to the minimum standards of the NCTA, or any
amendment thereto increasing such standards, and shall be monitored by the City.
D. Calls for service generated during periods of system outages due to
emergencies affecting more than twenty-five (25) customers may be excluded from the service
response calculations. The City shall have the sole determination as to what constitutes a system
failure due to emergency and which calls shall be excluded from the service level calculations.
72 Section 12.18.: Failure to Improve Customer Service. The City or its
designee shall review telephone response and customer service information with a franchisee.
Improvements will be made by the franchisee in the appropriate categories which are found
deficient from the last reporting period. Failure to do so may result in action being taken pursuant
to Section 12.18.1050 of this Chapter.
73 Section 12.18.: Reports. A franchisee shall furnish, upon request, a
report of its activities as appropriate. Such report shall include:
A. A copy of the franchisee's most recent annual report;
B. A copy of the franchisee's 10-K Report, if required by the Securities and
Exchange Commission;
C. The number of homes passed by the franchisee's cable system;
D. The number of subscribers with basic services;
E. The number of subscribers with premium services;
F. The number of hook-ups in the reporting period;
G. The number of disconnects in the reporting period;
H. The total number of miles of cable under the franchisee's control within the
City;
I. A summary of complaints received by category, length of time taken to
resolve each complaint, and action taken to provide resolution;
J. A copy of the franchisee's current billing practices, and a sample copy of
the franchisee's current bill format;
K. A copy of the franchisee's current subscriber service agreement;
L. Any other such reports with respect to the franchisee's local operations,
affairs, transactions, or property that the City may deem to be appropriate.
74 Section 12.18.: Programming. For informational purposes, a franchisee shall file
a listing of its programming and the tiers in which they are placed. A franchisee shall consider the
City's suggestions of general programming categories as determined from time to time in residential
questionnaire polls. The results of such surveys, when performed, shall be appended to the
respective franchise agreements.
75 Section 12.18.: Inconsistency. If any portion of this Article should be inconsistent
or conflict with any rule or regulation now or hereafter adopted by the FCC or other Federal law,
then to the extent of the inconsistency or conflict, the rule or regulation of the FCC or other Federal
law shall control for so long, but only for so long, as such rule, regulation, or law shall remain in
effect; provided the remaining provisions of this Article shall not be effected thereby.
ARTICLE VI.
CONDITIONS OF PERMITS AND FRANCHISES
Sections 12.18.770 Purpose.
12.18.780 Acceptance.
12.18.790 Police Power.
12.18.800 Rules and Regulations by City.
12.18.810 Location of Facilities.
12.18.820 Compliance with One Call Locator Service.
12.18.830 Construction Permits.
12.18.840 Interference with the Public Ways.
12.18.850 Damage to Property.
12.18.860 Notice of Work.
12.18.870 Repair and Emergency Work.
12.18.880 Maintenance of Facilities.
12.18.890 Relocation or Removal of Facilities.
12.18.900 Building Moving.
12.18.910 Removal of Unauthorized Facilities.
12.18.920 Emergency Removal or Relocation of Facilities.
12.18.930 Damage to Facilities.
12.18.940 Restoration of Public Ways, Other Ways and City Property.
12.18.950 Facilities Maps.
12.18.960 Duty to Provide Information.
12.18.970 Leased Capacity.
12.18.980 Insurance.
12.18.990 General Indemnification.
12.18.1000 Performance and Construction Surety.
12.18.1010 Security Fund.
12.18.1020 Construction and Completion Bond.
12.18.1030 Coordination of Construction Activities.
12.18.1040 Assignments or Transfers of Grant.
12.18.1050 Transactions Affecting Control of Grant.
12.18.1060 Revocation or Termination of Grant.
12.18.1070 Notice and Duty to Cure.
12.18.1080 Hearing.
12.18.1090 Standards for Revocation or Lesser Sanctions.
12.18.1100 Incorporation by Reference.
12.18.1110 Notice of Entry on Private Property.
12.18.1120 Safety Requirements.
76 Section 12.18.: Purpose. The purpose of this Article is to set forth certain terms
and conditions which are common to all Telecommunications Right-of-Way Use Permits,
Telecommunications Franchises, and Cable Television Franchises. Except as otherwise provided
in this Chapter or in such a permit or franchise, the provisions of this Article apply to all such
permits and franchises approved or granted by the City Council.
77 Section 12.18.: Acceptance. No permit or franchise granted pursuant to the
provisions of this Chapter shall become effective unless and until the ordinance granting the same
has become effective. Within thirty (30) days after the effective date of the Ordinance granting a
permit or awarding a franchise, or within such extended period of time as the Council in its
discretion may authorize, a franchisee shall file with the City Administrator its written acceptance
of the permit or franchise, in a form satisfactory to the City Attorney, together with the bonds,
insurance policies, and security fund required by this Article.
78 Section 12.18.: Police Power. In accepting any permit or franchise, the permittee
or franchisee acknowledges that its rights hereunder are subject to the legitimate rights of the police
power of the City to adopt and enforce general ordinances necessary to protect the safety and
welfare of the public and it agrees to comply with all applicable general laws enacted by the City
pursuant to such power.
79 Section 12.18.: Rules and Regulations by the City. In addition to the inherent
powers of the City to regulate and control any permit or franchise it issues, the authority granted to
it by the Cable Act and the Telecommunications Act of 1996, and those powers expressly reserved
by the City, or agreed to and provided for in any permit or franchise, the right and power is hereby
reserved by the City to promulgate such additional regulations as it may find necessary in the
exercise of its lawful powers giving due regard to the rights of permittee and franchisee's. Except
as provided in this Chapter, the foregoing does not allow for amendment by the City of material
terms of any permit or franchise it issues without the consent of the permittee or franchisee. The
City Council reserves the right to delegate its authority for permit and franchise administration to
a designated agent.
80 Section 12.18.: Location of Facilities. All facilities shall be constructed, installed
and located in accordance with the following terms and conditions, unless otherwise specified in a
permit or franchise agreement.
A. A permittee or franchisee grantee shall install its cable or
telecommunications facilities within an existing underground duct, chaseway, or conduit whenever
excess capacity exists within such utility facility.
B. A permittee or franchisee with permission to install overhead facilities
shall install its cable or telecommunications facilities on pole attachments to existing utility poles
only, and then only if surplus space is available.
C. Whenever any existing electric utilities, cable facilities or
telecommunications facilities are located underground within a public way of the City, a permittee
or franchisee with permission to occupy the same public way must also locate its cable or
telecommunications facilities underground.
D. Whenever any new or existing electric utilities, cable facilities or
telecommunications facilities are located or relocated underground within a public way of the City,
a permittee or franchisee that currently occupies the same public way shall relocate its facilities
underground. Absent extraordinary circumstances or undue hardship as determined by the City
Public Works Director, such relocation shall be made concurrently to minimize the disruption of the
public ways. No extension granted by the Director of Public Works under this Subsection shall
exceed a period of twelve (12) months.
E. Whenever new cable or telecommunications facilities will exhaust the
capacity of a public street or utility easement to reasonably accommodate future cable or
telecommunications carriers or facilities, the permittee or franchisee and all other occupants of the
public way shall provide additional ducts, conduits, manholes and other facilities for
nondiscriminatory access to future operators and carriers.
81 Section 12.18.: Compliance with One Call Locator Service. All permittees and
franchisees shall, before commencing any construction in the public ways, comply with all
regulations of Chapter 19.122 RCW, the One Call Locator Service.
82 Section 12.18.: Construction Permits. All permittees and franchisees are required
to obtain construction permits for cable and telecommunications facilities as required in Article VII.
of this Chapter. However, nothing in this Chapter shall prohibit the City and a permittee or
franchisee from agreeing to alternative plan review, permit, and construction procedures for a
permit or franchise agreement, provided such alternative procedures provide substantially
equivalent safeguards for responsible construction practices.
83 Section 12.18.: Interference with the Public Ways. No permittee or franchisee
may locate or maintain its cable or telecommunications facilities so as to unreasonably interfere
with the use of the public ways by the City, by the general public or by other persons authorized to
use or be present in or upon the public ways. All such facilities shall be moved by the permittee or
franchisee, at the permittee or franchisee's cost, temporarily or permanently, as determined by the
City Public Works Director.
84 Section 12.18.: Damage to Property. No permittee or franchisee nor any person
acting on a permittee or franchisee's behalf shall take any action or permit any action to be done
which may impair or damage any City property, public ways of the City, other ways or other
property, whether publicly or privately owned, located in, on or adjacent thereto.
85 Section 12.18.: Notice of Work. Unless otherwise provided in a permit or
franchise agreement, no permittee or franchisee, nor any person acting on the permittee's or
franchisee's behalf, shall commence any non-emergency work in or about the public ways of the
City or other ways without twenty (20) working days' advance notice to the City.
86 Section 12.18.: Repair and Emergency Work. In the event of an unexpected
repair or emergency, a permittee or franchisee may commence such repair and emergency response
work as required under the circumstances, provided the permittee or franchisee shall notify the City
as promptly as possible, before such repair or emergency work commences or as soon thereafter as
possible if advance notice is not practicable.
87 Section 12.18.: Maintenance of Facilities. Each permittee or franchisee shall
maintain its facilities in good and safe condition and in a manner that complies with all applicable
federal, state and local requirements.
88 Section 12.18.: Relocation or Removal of Facilities. Within thirty (30) days
following written notice from the City, a permittee or franchisee shall, at its own expense, tempo-
rarily or permanently remove, relocate, change or alter the position of any cable or
telecommunications facilities within the public ways whenever the City Public Works Director
shall have determined that such removal, relocation, change or alteration is reasonably necessary
for:
A. The construction, repair, maintenance or installation of any City or other
public improvement in or upon the public ways.
B. The operations of the City or other governmental entity in or upon the
public ways.
89 Section 12.18.: Building Moving. Whenever any person shall have obtained
permission from the City to use any street or public way for the purpose of moving any building, a
permittee or franchisee, upon seven (7) days' written notice from the City, shall raise or remove, at
the expense of the person desiring to move the building, any of the permittee or franchisee's
facilities which may obstruct the removal of such building; provided that the person desiring to
move the building shall comply with all requirements of the City for the movement of buildings.
90 Section 12.18.: Removal of Unauthorized Facilities. Within thirty (30) days
following written notice from the City, any permittee, telecommunications carrier, or other person
that owns, controls or maintains any unauthorized cable or telecommunications system, facility or
related appurtenances within the public ways of the City shall, at its own expense, remove such
facilities or appurtenances from the public ways of the City. A cable or telecommunications system
or facility is unauthorized and subject to removal in the following circumstances:
A. Upon expiration or termination of the permittee or franchisee's permit or
franchise.
B. Upon abandonment of a facility within the public ways of the City. Any
property of a permittee or franchisee shall be deemed abandoned if left in place ninety (90) days
after expiration or termination of a permit or franchise.
C. If the system or facility was constructed or installed without the prior grant
of a permit or franchise.
D. If the system or facility was constructed or installed without the prior
issuance of a required construction permit.
E. If the system or facility was constructed or installed at a location not
permitted by the permittee or franchisee's permit or franchise.
Provided, however, that the City may, in its sole discretion, allow a permittee, franchisee,
or other such persons who may own, control, or maintain cable or telecommunications facilities
within the public ways of the City to abandon such facilities in place. No facilities of any type may
be abandoned in place without the express written consent of the City. Any plan for abandonment
or removal of a permittee or franchisee's facilities must be first approved by the Public Works
Director, and all necessary permits must be obtained prior to such work. Upon permanent
abandonment of the property of such persons in place, the property shall become that of the City,
and such persons shall submit to the City Administrator an instrument in writing, to be approved by
the City Attorney, transferring to the City the ownership of such property. The provisions of this
Section shall survive the expiration, revocation, or termination of a permit or franchise granted
under this Chapter.
91 Section 12.18.: Emergency Removal or Relocation of Facilities. The City retains
the right and privilege to cut or move any cable or telecommunications facilities located within the
public ways of the City, as the City may determine to be necessary, appropriate or useful in
response to any public health or safety emergency. The City shall not be liable to any cable
operator, telecommunications carrier, or any other party for any direct, indirect, or any other such
damages suffered by any person or entity of any type as a direct or indirect result of the City's
actions under this Section.
92 Section 12.18.: Damage to Facilities. Unless directly and proximately caused by
the willful, intentional or malicious acts by the City, the City shall not be liable for any damage to
or loss of any cable or telecommunications facility upon City property or within the public ways of
the City as a result of or in connection with any public works, public improvements, construction,
excavation, grading, filling, or work of any kind on such City property or within the public ways by
or on behalf of the City.
93 Section 12.18.: Restoration of Public Ways, Other Ways and City Property.
A. When a permittee or franchisee, or any person acting on its behalf, does
any work in or affecting any public ways, other ways or City property, it shall, at its own expense,
promptly remove any obstructions therefrom and restore such ways or property to as good a
condition as existed before the work was undertaken, unless otherwise directed by the City.
B. If weather or other conditions do not permit the complete restoration
required by this Section, the permittee or franchisee shall temporarily restore the affected ways or
property. Such temporary restoration shall be at the permittee or franchisee's sole expense and the
permittee or franchisee shall promptly undertake and complete the required permanent restoration
when the weather or other conditions no longer prevent such permanent restoration.
C. A permittee, franchisee or other person acting in its behalf shall use
suitable barricades, flags, flagmen, lights, flares and other measures as required for the safety of all
members of the general public and to prevent injury or damage to any person, vehicle or property
by reason of such work in or affecting such ways or property.
94 Section 12.18.: Facilities Maps. Each permittee or franchisee shall provide the
City with an accurate map or maps certifying the location of all telecommunications facilities
within the public ways. Each permittee or franchisee shall provide the City with updated maps
annually.
95 Section 12.18.: Duty to Provide Information. Within ten (10) days of a written
request from the City Administrator, each permittee or franchisee shall furnish the City with
information sufficient to demonstrate:
A. That permittee or franchisee has complied with all requirements of this
Chapter.
B. That all sales, utility and/or telecommunications taxes due the City in
connection with the cable or telecommunications services and facilities provided by the permittee
have been properly collected and paid by the permittee or franchisee.
C. All books, records, maps and other documents, maintained by the
permittee or franchisee with respect to its facilities within the public ways shall be made available
for inspection by the City at reasonable times and intervals.
Provided, however, that nothing in this section shall be construed to require a permittee or
franchisee to violate state or federal law regarding subscriber privacy, nor shall this section be
construed to require a permittee or franchisee to disclose proprietary or confidential information
without adequate safeguards for its confidential or proprietary nature.
96 Section 12.18.: Leased Capacity. A permittee or franchisee shall have the right,
without prior City approval, to offer or provide capacity or bandwidth to its customers consistent
with such permit or franchise; provided:
A. The permittee or franchisee shall furnish the City with a copy of any such
lease or agreement between the permittee or franchisee and the customer or lessee; and
B. The customer or lessee complied, to the extent applicable, with the
requirements of this Chapter.
97 Section 12.18.: Insurance. Unless otherwise provided in a permit or franchise
agreement, each permittee or franchisee shall, as a condition of the permit or grant, secure and
maintain the following liability insurance policies insuring both the permittee or franchisee and the
City, and its elected and appointed officers, officials, agents and employees as co-insureds:
A. Comprehensive general liability insurance with limits not less than
(1) Five Million Dollars ($5,000,000) for bodily injury or death to
each person;
(2) Five Million Dollars ($5,000,000) for property damage resulting
from any one accident; and
(3) Five Million Dollars ($5,000,000) for all other types of liability.
B. Automobile liability for owned, non-owned and hired vehicles with a limit
of Three Million Dollars ($3,000,000) for each person and Three Million Dollars ($3,000,000) for
each accident.
C. Worker's compensation within statutory limits and employer's liability
insurance with limits of not less than One Million Dollars ($1,000,000).
D. Comprehensive form premises-operations, explosions and collapse hazard,
underground hazard and products completed hazard with limits of not less than Three Million
Dollars ($3,000,000).
E. The liability insurance policies required by this section shall be maintained
by the permittee or franchisee throughout the term of the permit or franchise, and such other period
of time during which the permittee or franchisee is operating without a franchise or permit
hereunder, or is engaged in the removal of its telecommunications facilities. Each such insurance
policy shall contain the following endorsement:
It is hereby understood and agreed that this policy may not be cancelled nor the
intention not to renew be stated until 90 days after receipt by the City, by registered
mail, of a written notice addressed to the City Administrator of such intent to cancel
or not to renew.
F. Within sixty (60) days after receipt by the City of said notice, and in no
event later than thirty (30) days prior to said cancellation or intent not to renew, the permittee or
franchisee shall obtain and furnish to the City replacement insurance policies meeting the
requirements of this Section.
98 Section 12.18.: General Indemnification. No permit or franchise shall be deemed
to be granted under this Chapter unless it includes an indemnity clause substantially conforming to
the following:
The permittee or franchisee hereby releases, covenants not to bring suit and agrees
to indemnify, defend and hold harmless the City, its officers, employees, agents and
representatives from any and all claims, costs, judgments, awards or liability to any
person, including claims by the permittee or franchisee's own employees to which
the permittee or franchisee might otherwise be immune under Title 51 RCW, arising
from injury or death of any person or damage to property of which the negligent acts
or omissions of the permittee or franchisee, its agents, servants, officers or
employees in performing under this permit or franchise are the proximate cause.
The permittee or franchisee further releases, covenants not to bring suit and agrees
to indemnify, defend and hold harmless the City, its officers and employees from
any and all claims, costs, judgments, awards or liability to any person including
claims by the permittee or franchisee's own employees, including those claims to
which the permittee or franchisee might otherwise have immunity under Title 51
RCW, arising against the City solely by virtue of the City's ownership or control of
the rights-of-way or other public properties, by virtue of the permittee or
franchisee's exercise of the rights granted herein, or by virtue of the City's
permitting the permittee or franchisee's use of the City's rights-of-way or other
public property, based upon the City's inspection or lack of inspection of work
performed by the permittee or franchisee, its agents and servants, officers or
employees in connection with work authorized on the City's property or property
over which the City has control, pursuant to this permit or franchise or pursuant to
any other permit or approval issued in connection with this permit or franchise.
This covenant of indemnification shall include, but not be limited by this reference,
claims against the City arising as a result of the negligent acts or omissions of the
permittee or franchisee, its agents, servants, officers or employees in barricading,
instituting trench safety systems or providing other adequate warnings of any
excavation, construction, or work in any public right-of-way or other public place in
performance of work or services permitted under this permit or franchise.
Inspection or acceptance by the City of any work performed by the permittee or
franchisee at the time of completion of construction shall not be grounds for
avoidance of any of these covenants of indemnification. Said indemnification
obligations shall extend to claims which are not reduced to a suit and any claims
which may be compromised prior to the culmination of any litigation or the
institution of any litigation.
In the event that the permittee or franchisee refuses the tender of defense in any suit
or any claim, said tender having been made pursuant to the indemnification clauses
contained herein, and said refusal is subsequently determined by a court having
jurisdiction (or such other tribunal that the parties shall agree to decide the matter),
to have been a wrongful refusal on the part of the permittee or franchisee, then the
permittee or franchisee shall pay all of the City's costs for defense of the action,
including all reasonable expert witness fees and reasonable attorneys' fees and the
reasonable costs of the City, including reasonable attorneys' fees of recovering under
this indemnification clause.
In the event of liability for damages arising out of bodily injury to persons or
damages to property caused by or resulting from the concurrent negligence of the
permittee or franchisee and the City, its officers, employees and agents, the
permittee or franchisee's liability hereunder shall be only to the extent of the
permittee or franchisee's negligence. It is further specifically and expressly
understood that the indemnification provided herein constitutes the permittee or
franchisee's waiver of immunity under Title 51 RCW, solely for the purposes of this
indemnification. This waiver has been mutually negotiated by the parties.
The provisions of this Section shall survive the expiration or termination of this
franchise agreement.
Notwithstanding any other provisions of this Section, the permittee or franchisee
assumes the risk of damage to its facilities located in the City's public ways, rights-
of-way, and easements from activities conducted by the City, its officers, agents,
employees and contractors. The permittee or franchisee releases and waives any and
all claims against the City, its officers, agents, employees or contractors for damage
to or destruction of the permittee or franchisee's facilities caused by or arising out of
activities conducted by the City, its officers, agents, employees and contractors, in
the public ways, rights-of-way, and easements subject to this permit or franchise,
except to the extent any such damage or destruction is caused by or arises from the
sole negligence or any wilful or malicious action on the part of the City, its officers,
agents, employees or contractors. The permittee or franchisee further agrees to
indemnify, hold harmless and defend the City against any claims for damages,
including, but not limited to, business interruption damages and lost profits, brought
by or under users of the permittee or franchisee's facilities as the result of any
interruption of service due to damage or destruction of the User's facilities caused by
or arising out of activities conducted by the City, its officers, agents, employees or
contractors, except to the extent any such damage or destruction is caused by or
arises from the sole negligence or any wilful or malicious actions on the part of the
City, its officers, agents, employees or contractors.
99 Section 12.18.: Performance and Construction Surety. Before a permit or
franchise granted pursuant to this Chapter is effective, and as necessary thereafter, the permittee or
franchisee shall provide and deposit such monies, bonds, letters of credit or other instruments in
form and substance acceptable to the City as may be required by this Chapter or by an applicable
permit or franchise agreement.
100 Section 12.18.: Security Fund. Each permittee or franchisee shall establish a
permanent security fund with the City by depositing the amount of $50,000 with the City in cash,
an unconditional letter of credit, or other instrument acceptable to the City, which fund shall be
maintained at the sole expense of the permittee or franchisee so long as any of the permittee or
franchisee's cable or telecommunications facilities are located within the public ways of the City.
A. The fund shall serve as security for the full and complete performance of
this Chapter, including any costs, expenses, damages or loss the City pays or incurs, including civil
penalties, because of any failure attributable to the permittee or franchisee to comply with the
codes, ordinances, rule, regulations or permits of the City.
B. Before any sums are withdrawn from the security fund, the City shall give
written notice to the permittee or franchisee:
(1) describing the act, default or failure to be remedied, or the
damages, cost or expenses which the City has incurred by reason
of permittee or franchisee's act or default;
(2) providing a reasonable opportunity for permittee or franchisee to
first remedy the existing or ongoing default or failure, if
applicable;
(3) providing a reasonable opportunity for permittee or franchisee to
pay any monies due the City before the City withdraws the
amount thereof from the security fund, if applicable;
(4) that the permittee or franchisee will be given an opportunity to
review the act, default or failure described in the notice with the
City Administrator or his or her designee.
C. Grantees shall replenish the security fund within fourteen (14) days after
written notice from the City that there is a deficiency in the amount of the fund.
101 Section 12.18.: Construction and Completion Bond. Unless otherwise provided
in a permit or franchise agreement, a performance bond written by a corporate surety acceptable to
the City equal to at least 100% of the estimated cost of constructing the permittee or franchisee's
cable or telecommunications facilities within the public ways of the City shall be deposited before
construction is commenced.
A. The construction bond shall remain in force until sixty (60) days after
substantial completion of the work, as determined by the City Public Works Director, including
restoration of public ways and other property affected by the construction.
B. The construction bond shall guarantee, to the satisfaction of the City:
(1) timely completion of construction;
(2) construction in compliance with applicable plans, permits,
technical codes and standards;
(3) proper location of the facilities as specified by the City;
(4) restoration of the public ways and other property affected by the
construction;
(5) the submission of 'as-built' drawings after completion of the
work as required by this Chapter.
(6) timely payment and satisfaction of all claims, demands or liens
for labor, material or services provided in connection with the
work.
102 Section 12.18.: Coordination of Construction Activities. Section 12.18.090
notwithstanding, all permittees and franchisees are required to cooperate with the City and with
each other.
A. By February 1 of each year, permittees and franchisees shall provide the
City with a schedule of their proposed construction activities in, around, or that may affect the
public ways.
B. Each permittee and franchisee shall meet with the City, other permittees
and franchisees and users of the public ways annually or as determined by the City to schedule and
coordinate construction in the public ways.
C. All construction locations, activities and schedules shall be coordinated, as
ordered by the City Public Works Director, to minimize public inconvenience, disruption or
damages.
103 Section 12.18.: Assignments or Transfers of Grant. Ownership or control of a
cable or telecommunications system, license, permit, or franchise may not, directly or indirectly, be
transferred, assigned or disposed of by sale, lease, merger, consolidation or other act of the grantee,
by operation of law or otherwise, without the prior written consent of the City, which consent shall
not be unreasonably withheld or delayed, except as expressed by ordinance and then only on such
reasonable conditions as may be prescribed therein.
A. No permit, franchise, or other grant shall be assigned or transferred in any
manner within twelve (12) months after the initial grant of the permit or franchise, unless otherwise
provided in the permit or franchise agreement.
B. Absent extraordinary and unforeseeable circumstances, no grant, system
or integral part of a system shall be assigned or transferred before construction of the
telecommunications system has been completed.
C. The permittee or franchisee and the proposed assignee or transferee of the
grant or system shall provide and certify the following information to the City not less than one
hundred and fifty (150) days prior to the proposed date of transfer:
(1) Complete information setting forth the nature, terms and
condition of the proposed transfer or assignment;
(2) All information required of a permit or franchise applicant
pursuant to Articles III., IV. and V. of this Chapter with respect
to the proposed transferee or assignee;
(3) Any other information reasonably required by the City.
(4) An application fee which shall be set by the City Council by
resolution.
D. No transfer shall be approved unless the assignee or transferee has the
legal, technical, financial and other requisite qualifications to own, hold and operate the cable or
telecommunications system pursuant to this Chapter.
E. Unless otherwise provided in a license or franchise agreement, the
permittee or franchisee shall reimburse the City for all direct and indirect costs and expenses
reasonably incurred by the City in considering a request to transfer or assign a permit or franchise.
No approval shall be deemed approved until all such costs and expenses have been paid.
F. Any transfer or assignment of a permit, franchise, system or integral part
of a system without prior written approval of the City under this Section or pursuant to a permit or
franchise agreement shall be void and is cause for revocation of the grant.
104 Section 12.18.: Transactions Affecting Control of Grant. Any transactions
which singularly or collectively result in a change of fifty percent (50%) or more of the ownership
or working control of the permittee or franchisee, of the ownership or working control of a cable or
telecommunications system, of the ownership or working control of affiliated entities having
ownership or working control of the permittee or franchisee or of a telecommunications system, or
of control of the capacity or bandwidth of the permittee or franchisee's cable or telecommunication
system, facilities or substantial parts thereof, shall be considered an assignment or transfer requiring
City approval pursuant to Section 12.18.01040 hereof. Transactions between affiliated entities are
not exempt from City approval. A franchisee shall promptly notify the City prior to any proposed
change in, or transfer of, or acquisition by any other party of control of a franchisee's company.
Every change, transfer, or acquisition of control of a franchisee's company shall cause a review of
the proposed transfer. In the event that the City adopts a resolution denying its consent and such
change, transfer or acquisition of control has been effected, the City may cancel the franchise.
Approval shall not be required for mortgaging purposes or if said transfer is from a franchisee to
another person or entity controlling, controlled by, or under common control with a franchisee.
105 Section 12.18.: Revocation or Termination of Grant. A permit or franchise
granted by the City to use or occupy public ways of the City may be revoked for the following
reasons:
A. Construction or operation in the City or in the public ways of the City
without a permit or franchise grant of authorization.
B. Construction or operation at an unauthorized location.
C. Unauthorized substantial transfer of control of permittee or franchisee.
D. Unauthorized assignment of a permit or franchise.
E. Unauthorized sale, assignment or transfer of a permittee or franchisee's
franchise, permit, assets, or a substantial interest therein.
F. Misrepresentation or lack of candor by or on behalf of a permittee or
franchisee in any application or written or oral statement upon which the City relies in making the
decision to grant, review or amend any permit or franchise pursuant to this Chapter.
G. Abandonment of cable or telecommunications facilities in the public ways.
H. Failure to relocate or remove facilities as required in this Chapter.
I. Failure to pay taxes, compensation, fees or costs when and as due the City.
J. Insolvency or bankruptcy of the permittee or franchisee.
K. Violation of any material provision of this Chapter.
L. Violation of the material terms of a permit or franchise agreement.
106 Section 12.18.: Notice and Duty to Cure. In the event that the City Administrator
believes that grounds exist for revocation of a permit or franchise, he or she shall give the permittee
or franchisee written notice of the apparent violation or noncompliance, providing a short and
concise statement of the nature and general facts of the violation or noncompliance, and providing
the permittee or franchisee a reasonable period of time not exceeding thirty (30) days to furnish
evidence:
A. That corrective action has been, or is being actively and expeditiously
pursued, to remedy the violation or noncompliance.
B. That rebuts the alleged violation or noncompliance.
C. That it would be in the public interest to impose some penalty or sanction
less than revocation.
107 Section 12.18.: Hearing. In the event that a permittee or franchisee fails to provide
evidence reasonably satisfactory to the City Administrator as provided in Section 12.18.1070
hereof, the City Administrator shall refer the apparent violation or non-compliance to the City
Council. The City Council shall provide the permittee or franchisee with notice and a reasonable
opportunity to be heard concerning the matter.
108 Section 12.18.: Standards for Revocation or Lesser Sanctions. If the City
Council determines that a permittee or franchisee willfully violated or failed to comply with any of
the provisions of this Chapter or a permit or franchise granted under this Chapter, or through willful
misconduct or gross negligence failed to heed or comply with any notice given the permittee or
franchisee by the City under the provisions of this Chapter, then the permittee or franchisee shall,
at the election of the City Council, forfeit all rights conferred hereunder and the permit or franchise
may be revoked or annulled by the City Council. The City Council may elect, in lieu of the above
and without any prejudice to any of its other legal rights and remedies, to pursue other remedies,
including obtaining an order from the superior court having jurisdiction compelling the permittee
or franchisee to comply with the provisions of this Chapter and any permit or franchise granted
hereunder, and to recover damages and costs incurred by the City by reason of the permittee or
franchisee's failure to comply. The City Council shall utilize the following factors in analyzing the
nature, circumstances, extent and gravity of the violation and in making it's determination under
this Section:
A. Whether the misconduct was egregious.
B. Whether substantial harm resulted.
C. Whether the violation was intentional.
D. Whether there is a history of prior violations of the same or other
requirements.
E. Whether there is a history of overall compliance.
F. Whether the violation was voluntarily disclosed, admitted or cured.
109 Section 12.18.: Incorporation By Reference. The provisions of this Chapter shall
be incorporated by reference in any permit or franchise approved hereunder. The provisions of any
proposal submitted and accepted by the City shall be incorporated by reference in the applicable
permit or franchise. However, in the event of any conflict between the proposal, this Chapter, and
the permit or franchise, the permit or franchise shall be the prevailing document.
110 Section 12.18.: Notice of Entry on Private Property. At least twenty-four (24)
hours prior to entering private property or streets or public easements adjacent to or on such private
property to perform new construction or reconstruction, a notice indicating the nature and location
of the work to be performed shall be physically posted upon the affected property by the permittee
or franchisee. A door hanger may be used to comply with the notice and posting requirements of
this Section. A franchisee shall make a good faith effort to comply with the property
owner/resident's preferences, if any, on location or placement of underground installations
(excluding aerial cable lines utilizing existing poles and existing cable paths), consistent with sound
engineering practices.
111 Section 12.18.: Safety Requirements. A permittee or franchisee, in accordance
with applicable National, State, and Local safety requirements shall, at all times, employ ordinary
care and shall install and maintain and use commonly accepted methods and devices for preventing
failures and accidents which are likely to cause damage, injury, or nuisance to the public. All
structures and all lines, equipment and connections in, over, under, and upon the streets, sidewalks,
alleys, and public ways or places of a permit or franchise area, wherever situated or located, shall
at all times be kept and maintained in a safe, suitable condition, and in good order and repair. The
City reserves the general right to see that the system of a permittee or franchisee is constructed and
maintained in a safe condition. If a violation of the National Electrical Safety Code or other
applicable regulation is found to exist by the City, the City will, after discussions with a permittee
or franchisee, establish a reasonable time for a franchisee to make necessary repairs. If the repairs
are not made within the established time frame, the City may make the repairs itself or have them
made and collect all reasonable costs thereof from a permittee or franchisee.
VII. CONSTRUCTION STANDARDS
Sections 12.18.1130 General Construction Standards.
12.18.1140 Construction Codes.
12.18.1150 Construction Permits.
12.18.1160 Applications.
12.18.1170 Engineer's Certification.
12.18.1180 Traffic Control Plan.
12.18.1190 Issuance of Permit.
12.18.1200 Construction Schedule.
12.18.1210 Compliance with Permit.
12.18.1220 Display of Permit.
12.18.1230 Survey of Underground Facilities.
12.18.1240 Noncomplying Work.
12.18.1250 Completion of Construction.
12.18.1260 As-Built Drawings.
12.18.1270 Restoration of Improvements.
12.18.1280 Landscape Restoration.
12.18.1290 Construction Surety.
12.18.1300 Exceptions.
12.18.1310 Responsibilities of the Owner.
112 Section 12.18.: General Construction Standards. No person shall commence or
continue with the construction, installation or operation of cable or telecommunications facilities
within the City except as provided in this Chapter.
113 Section 12.18.: Construction Codes. Cable and telecommunications facilities shall
be constructed, installed, operated and maintained in accordance with all applicable federal, state
and local codes, rules and regulations.
114 Section 12.18.: Construction Permits. No person shall construct or install any
cable or telecommunications facilities within the City without first obtaining a construction permit
therefor, provided, however:
A. No permit shall be issued for the construction or installation of cable or
telecommunications facilities within the City unless the cable operator or telecommunications
carrier has filed an application for a business license with the City pursuant to Article II of this
Chapter.
B. No p