Not an official copy.
Spokane, WA
Ordinance No. C-32747
An ordinance relating to municipal authorization of uses of the right of way to locate facilities by telecommunications and cable service providers and others, adding a new chapter in Title 12 SMC to be known as Chapter 12.09.
The City of Spokane does ordain:
Section 1. That a new chapter be added to Title 12 SMC to read as follows:
CHAPTER 12.09 TELECOMMUNICATIONS, CABLE; MUNICIPAL AUTHORIZATION TO USE RIGHT OF WAY
Section 12.09.010 Definitions
Section 12.09.020 Purpose
Section 12.09.030 Permission required; master permit, use permit
Section 12.09.040 Master permit application; contents
Section 12.09.050 Permit procedures
Section 12.09.060 Use permit; expedited consideration
Section 12.09.070 Use permit; advance notice, restrictions on denials
Section 12.09.080 Conditions of occupancy or use of the right of way
Section 12.09.090 Exemption, preemption
Section 12.09.100 State law restrictions
Section 12.09.110 Restriction on moratoriums
Section 12.09.120 Relocation
Section 12.09.130 Facilities for City use
Section 12.09.140 Fees and charges
Section 12.09.150 Authority of Administering Officer
Section 12.09.160 Appeals
Section 12.09.170 Other users, occupants; outside right of way
Section 12.09.010 Definitions
The definitions in this section apply throughout this Chapter unless otherwise stated or the context clearly requires otherwise.
1. "City" means the City of Spokane and its legal successors.
2. "Administering Officer" means the designated municipal official responsible for administering this chapter. Until January 1, 2001, the Administering Officer is the Assistant City Manager- Operations. Thereafter, the Administering Officer is the Mayor or Mayor's designee.1
[cross ref. 12.02.170]
3. "Cable television service" means the one-way transmission to subscribers of video programming and other programming service and subscriber interaction, if any, that is required for the selection or use of the video programming or other programming service.
4. "Facilities" of a service provider means all of the plant, equipment, fixtures, appurtenances, antennas, and other facilities necessary to furnish and deliver telecommunications services and cable television services, including but not limited to poles with crossarms, poles without crossarms, wires, lines, conduits, cables, communication and signal lines and equipment, braces, guys, anchors, vaults, and all attachments, appurtenances, and appliances necessary or incidental to the distribution and use of telecommunications services and cable television services. For parties other than service providers, "facilities" means any physical plant installed or maintained in the right of way by such parties.
5. "Municipal infrastructure" means the road bed and road area, street and sidewalk paving, curbing, associated drainage facilities, bike paths and other construction or improvements pertaining to public travel. It further includes municipal water and sewer lines or other municipal utility facilities, as well as municipal traffic signal, street lighting and communications facilities in the right of way or other areas or easements open for municipal use. It further includes skywalks, street trees, plants, shrubs, lawn and other ornamental or beautification installations owned by the City in the right of way or other ways open for public travel or municipal use, and accepted for municipal management or control as such. The definition is intended to encompass any municipal physical plant, equipment, fixtures, appurtenances or other facilities located in or near the right of way or areas or easements opened and accepted for municipal use.
6. "Permit" refers to a grant of municipal permission or authority to an applicant use the right of way to locate facilities and perform related activities therein. This chapter identifies two levels of permits, a master permit and a use permit.
a. A "master permit" confers general permission to enter, use, and occupy the right of way to locate facilities. The term does not apply to cable operators because they must obtain a cable franchise in lieu of a master permit. A franchise operates as master permit, but is negotiated under informal procedures.
[cross ref. Cable franchises, ch. 10.27SMC]
b. A "use permit" conveys more limited permission to enter and use a specified area or location in the right of way for a specific purpose such as installing, maintaining, repairing, or removing identified facilities.
7. "Personal wireless services" means commercial mobile services, unlicensed wireless services, and common carrier wireless exchange access services, as defined by federal laws and regulations.
8. "Right of way" means land acquired by or dedicated to the City for public roads and streets, but does not include
a. State highways;
b. Land dedicated for roads, streets, and highways not opened and not improved for motor vehicle use by the public;
c. Structures, including poles and conduits, located within the right of way;
d. Federally granted trust lands or forest board trust lands;
e. Lands owned or managed by the state parks and recreation commission; or
f. Federally granted railroad rights of way acquired under 43 U.S.C. Sec. 912 and related provisions of federal law that are not open for motor vehicle use.
9. "Service provider" means every corporation, company, association, joint stock association, firm, partnership, person, city, or town owning, operating, or managing any facilities used to provide and providing telecommunications service or cable television service for hire, sale, or resale to the general public. Service provider includes the legal successor to any such corporation, company, association, joint stock association, firm, partnership, person, city, or town.
10. "Telecommunications service" means the transmission of information by wire, radio, optical cable, electromagnetic, or other similar means for hire, sale, or resale to the general public. For the purpose of this subsection, "information" means knowledge or intelligence represented by any form of writing, signs, signals, pictures, sounds, or any other symbols. For the purpose of this chapter, telecommunications service excludes the over-the-air transmission of broadcast television or broadcast radio signals.
[cross ref., ch.. 83, laws of 2000, section 1 (part)]
Section 12.09.020 Purpose
A. The purposes of this chapter are:
1. to protect the general public health and safety;
2. to preserve and maintain the primary purpose of the right of way and other areas of like use as a means of public access and travel and emergency vehicle access;
3. to comply with requirements of applicable federal or state laws, including chapter 83, Laws of 2000, reserving as well all applicable municipal authority with respect to use and occupancy of the right of way and other areas of like use.
4. to preserve the value of the public investment in the right of way and other areas of like use, maximize the useful life of street, curbing, and sidewalk paving, and to maintain the integrity and quality of the paving;
5. to support municipal utility and other municipal infrastructure needs as a priority use of the right of way and other areas of like use, and the value of municipal infrastructure investment; and
6. to promote a healthy urban environment and the public convenience and aesthetics.
B. The purposes stated govern questions of interpretation and enforcement of this chapter, as implemented in the sound discretion of the Administering Officer. Notwithstanding any other provision, nothing in this chapter or any municipal action or inaction relating thereto is intended to create or expand any specific municipal duty or liability to any particular person or group or otherwise create or expand municipal tort liability for any purpose. This provision shall control all others in the event of conflict or ambiguity.
Section 12.09.030 Permission required; master permit, use permit
A. A service provider or any other party must obtain a master permit or city franchise to enter, use and occupy the right of way or like areas, including utilities easements, to locate facilities therein. If this requirement is determined to be preempted by state law, as in section 3 (1), ch. 83, laws of 2000, or for any other reason, the requirement applies as a request, but only to the extent of such preemption.
B. Master permits or franchises are granted by ordinance, on recommendation of the Administering Officer. In addition, in the exercise of discretion, the Administering Officer may grant a temporary master permit, up to ninety (90) days, renewable once for up to an additional ninety (90) days. Parties placing facilities in or on host facilities of others in locations subject to this chapter are bound by conditions applicable to the host facilities, and may also be required to obtain a separate franchise.
C. In addition to a master permit or franchise, a service provider must obtain permission to enter and use a specified right of way or other areas or like use to install, maintain, repair or remove identified facilities by means of a use permit. Unless ordered by the Administering Officer or otherwise provided by ordinance, a use permit is granted in the form of a street obstruction permit issued under Ch. 12.02, Article IV, SMC. For special circumstances, incidental or temporary purposes not otherwise addressed, the Administering Officer may grant revocable permission on such conditions as deemed proper, considering 12.09.020, but the provisions in 12.09.080 also apply, except insurance requirements may be adjusted on recommendation of the City Risk Manager.
D. Utilities or agencies of the City of Spokane are exempt from master permit, franchise, or use permit requirements, but the Administering Officer may specify conditions of use or occupancy, including the condition of user City departments to coordinate work in the right of way by giving appropriate notice to the municipal office issuing use permits. The Administering Officer resolves any conflicts among municipal users.
Section 12.09.040 Master permit application; contents
A. To obtain a master permit, a written application is filed with the Administering Officer, in such form as required by said official. General information requested may include, but is not limited to:
1. Applicant's true name, address, telephone, fax, and email, together an identification of the true ownership of the applicant, including the names and addresses of all persons with ten percent or more ownership interest. For a corporation or other business organization, the state of incorporation or organization and a certificate of incorporation or other proof of legal status should be included;
2. A statement of whether the applicant, or any entity controlling the applicant, has voluntarily filed for relief under any provision of the bankruptcy laws of the United States Title 11 of the United States Code, had an involuntary petition against it pursuant to the bankruptcy code, or been the subject of any state law insolvency proceeding such as a transfer for the benefit of creditors;
3. A statement of whether the applicant or any entity controlling the applicant has had a master permit, franchise, or similar right of way use or occupancy permission ever suspended or revoked in any other jurisdiction;
4. A statement of whether the applicant or any entity controlling the applicant has been found guilty, by any federal, state or municipal court or administrative agency in the United States of:
a. a violation of a security, antitrust or tax laws; or
b. a felony or any other crime involving fraud, theft, or moral turpitude. If so, the application shall identify any such person and fully explain the circumstances;
5. A demonstration of the applicant's technical, legal and financial ability to construct and operate the proposed telecommunications services facility;
6. A description of the physical facility proposed, including capacity, the area to be served, a description of technical characteristics, and a map of the proposed system service area and distribution scheme;
7. A description of how any construction will be implemented, identification of areas having aboveground or below ground facilities, the proposed construction schedule, and a description (where appropriate) of how service will be converted from any existing facility to a new facility. The construction plan shall be coordinated with the City water, sewer, street, and other improvement plans and municipal infrastructure needs as may be further ordered by the Administering Officer;
8. A description of the services to be provided over the system;
9. The proposed rates to be charged, including rates for each service offered to the public, as appropriate, and charges for installation, equipment, and other services, and whether such rates are subject to regulatory or informational tariff or other rate regulation requirements from any other jurisdictional agency;
10. Verification that the proposal is designed to be consistent with all federal and state requirements;
11. In the case of an application by an existing telecommunications service provider for a renewal, a verification that said service provider has complied with all terms of the existing master permit or franchise and with applicable law;
12. Other information that the Administering Officer may request of the applicant;
13. The signature, under penalty of perjury, by the applicant or duly authorized agent thereof, certifying, in a form acceptable to the City, the truth and accuracy of the information contained in the application and acknowledging the enforceability of this chapter; and
14. Payment of a $250 application fee.
B. With narrow exceptions, Washington state's open public records law precludes the City from honoring requests for confidentiality.
Section 12.09.050 Permit procedures
A. Master permits for use of the right of way (non cable service providers).
1. This section states a formal process for the consideration of requests for master permits, but any applicant may agree to proceed under an informal process, provided, either the City or the applicant can invoke formal procedures at any time. In such event, the time of invoking formal procedures shall be regarded as the filing date of the application for purposes of further time limits in this section.
2. On receipt of an application and application fee from a service provider, the Administering Officer may notify the applicant of expected costs. For purposes of satisfying the requirements for publication in the official newspaper of the City of Spokane in section 100 of the City Charter, to the extent applicable, it is declared that the Official Gazette of the City is the official newspaper. The Administering Officer may also publish a summary of a franchise or master permit in like manner in a newspaper of general circulation, costs to be paid by the applicant.
3. An applicant must deposit costs as notified with the Administering Officer within ten (10) days of notification as a condition of further consideration of an application. Any unexpended monies after the application process are refunded or additional costs billed by the Administering Officer, to be paid within thirty (30) days of billing. If an applicant fails to file a completed application, furnish requested information, or pay required amounts on time, the Administering Officer cancels the application process and notifies the applicant. No refund is allowed for the application fee.
4. Within ninety (90) days of the filing of a complete application and payment of required fees by a service provider, the Administering Officer negotiates a master permit with the applicant or determines it should be denied. If the Administering Officer approves the application, the master permit is forwarded for passage by the City Council. If the master permit is denied, the Administering Officer explains the reasons for denial, which shall be supported by a written record based on substantial evidence.
5. The Administering Officer may require the service provider to attend and participate in any hearing or other factfinding process to determine whether to grant the permit, provided, that extensions of time for the hearing and final action by the City beyond one hundred twenty (120) days of the date a service provider filed a complete application requires the service provider's consent unless legislative approval of the City Council cannot reasonably be obtained within such period.
6. In the event time otherwise expires, the Administering Officer may grant a temporary master permit, upon conditions as may be specified by said official, pending further proceedings.
7. A service provider adversely affected by the final action denying a master permit, or by an unreasonable failure to act on a master permit in accord with this section may commence an action within thirty days to seek relief in a court of competent jurisdiction, which shall be limited to injunctive relief. Venue of such a proceeding shall be in Spokane County. Upon timely appeal, the Administering Officer certifies the record and delivers the same to the court where filed. Said official may require a deposit of funds by the appealing party in an amount estimated necessary to prepare the record as a condition of certifying the record.
[cross ref., ch. 83, laws of 2000, section 3]
B. Use permits for specific use of the right of way
1. The City must act upon a request for a use permit from a service provider relating to a use of the right of way within thirty (30) days of receipt of a completed application and any application fee by the official designated to issue such permits, unless a service provider consents to a different time period or the service provider has not obtained a master permit or franchise from the City. A use permit may not be denied to a service provider with an existing2 state-wide grant to occupy the right of way for wireline facilities on the basis of failure to obtain a master permit.
2. For the purposes of this section, "act" means that the City makes the decision to grant, condition, or deny the use permit, or notifies the applicant in writing of the amount of time that will be required to make the decision and the reasons for this time period.
3. A service provider adversely affected by the final action denying a use permit may commence an action within thirty days in a court of competent jurisdiction to seek relief, which shall be limited to injunctive relief. In any appeal of the final action denying a use permit, the standard for review and burden of proof shall be as set forth in RCW 36.70C.130. Municipal action is not final until the service provider has appealed any dispute to the City Hearings Examiner as provided in this Chapter and a decision issued therefrom.
[cross ref. ch. 83, laws of 2000, section 3 (2)]
C. In addition to any other applicable reasons, a master or use permit for placement of facilities of personal wireless services may further be denied consistent with the provisions of RCW 35.21.860 (1) (e).
[cross ref. ch. 83, laws of 2000, section 8]
Section 12.09.060 Use permit, expedited consideration
Where a service provider does not have a master permit or franchise containing procedures to expedite use permit approvals and the service provider requires action in less than thirty (30) days, the service provider shall advise the issuing official in writing of the reasons why a shortened time period is necessary and the time period within which action by the City is requested. The City shall reasonably cooperate to meet the request where practicable.
[cross ref., ch. 83, laws of 2000, section 3 (2) (c)]
Section 12.09.070 Use permit, advance notice, restrictions on denials
A. In order to facilitate the scheduling and coordination of work in the right of way, the Administering Officer shall provide as much advance notice to a service provider as reasonable of plans to open the right of way to those service providers who are current users of the right of way or who have filed notice with the City Clerk within the past twelve months of their intent to place facilities in the City. This obligation may be satisfied by listing such projects in the Official Gazette of the City of Spokane or any other reasonable means as ordered by the Administering Officer, including posting notice on the City's official website.
B. Service providers shall subscribe to the Official Gazette at their expense and are further responsible to survey the City of Spokane official website for notices relating to this chapter. Service providers are further responsible to maintain on file with the Administering Officer, a current working email address.
C. The City is not liable for damages for failure to provide notice under this section. Where the City has failed to provide notice of plans to open the right of way to a service provider consistent with this section, a use permit to such service provider may not be denied on the basis that the service provider failed to coordinate with another project.
[cross ref., ch. 83, laws of 2000, section 3 (5)]
Section 12.09.080 Conditions of occupancy or use of the right of way
The following requirements apply as minimum conditions of installing, locating, using, maintaining, abandoning or removing facilities in the right of way or other permitted areas, whether by a service provider or any other user. They are a basis of negotiation of any franchise or master permit. Service providers or other users must accept the requirements, so long as any use or occupancy continues, regardless of whether a master or use permit or franchise has been issued, revoked or expired:
1. Users must comply with all applicable federal and state laws relating to operations in the City of Spokane, including safety laws and standards, as well as local ordinances, the City Charter, this chapter, and the policies and standards of the City, construction codes, regulations, and orders of the Administering Officer, compliance all being further subject to audit or verification by the City at the users' expense.
2. Users must obtain all permits required by the City for the installation, maintenance, repair, or removal of facilities in the right of way and pay all permit and filing fees, costs, charges and penalties within thirty (30) days of billing or as otherwise specified by the Administering Officer.
3. Users must always act in good faith and fair dealings with the public and must provide safe, reliable service to the public. Users must cooperate with the City to ensure their facilities are installed, maintained, repaired, and removed within the right of way or other permitted areas in compliance with the purposes of this chapter and in such a manner and at such points so as not to inconvenience the public use or to adversely affect the public health, safety, and welfare.
4. Users must provide information and plans the City requires to enable the City to comply with and enforce this chapter, including provision of advance planning information pursuant to the procedures established by the Administering Officer. Users must keep the Administering Officer fully informed of any changes to information required to be supplied with any master permit or franchise or any use permit.
5. Users must provide advance notice of long and short range needs for access to the right of way or other permitted areas as may be ordered by the Administering Officer, and otherwise, as much as reasonable in order to facilitate the scheduling and coordination of work in the right of way or other permitted areas.
6. Users must obtain the written approval of the facility or structure owner, if they do not own it, prior to attaching to or otherwise using a facility or structure in the right of way or other permitted areas, and construct, install, operate, and maintain their facilities at their sole expense and liability except as otherwise provided by law or agreement.
[cross ref., ch. 83, laws of 2000, section 3 (6) part]
7. The City must not be exposed to any loss, liability or expense because of another's use or occupancy of the right of way or other permitted areas. Users must fully indemnify and hold harmless the City, its officers, agents and employees, from all loss or liability in connection with their use or occupancy of such areas. Operations in or near the right of way or other permitted areas should be conducted to minimize or avoid hazard to the public or interfere with the priority of municipal infrastructure needs. Users must further pay for loss or damage to municipal assets or injury to municipal personnel. If the City nonetheless is exposed to risk or loss, users must protect and defend the City to the maximum extent permitted by law. Minimum insurance requirements pending any use or occupancy of the right of way or other permitted area are five hundred thousand dollars ($500,000) per occurrence and one million dollars ($1,000,000) aggregate, with the City of Spokane as an additional named insured or as otherwise ordered by the Administering Officer with the advice of the Risk Manager.
8. The City is not responsible for construction or maintenance of any facilities placed and has no duty to modify the right of way or other permitted areas to accommodate such facilities. All areas utilized must be accepted "as is", without express or implied assurances of suitability of any area for facilities placed. Users must assume all risk of facility placement and occupancy, including risks now or hereafter arising because of lack of municipal resources to maintain the municipal infrastructure or any component in current or better condition. Users must waive any claim against the City for loss or liability arising from acts or omissions of other users, occupants or the public, because unstable earth or roadbed, changes in groundwater conditions or other natural or artificial conditions rendering the right of way or other permitted areas unsuitable for use for facilities placed or any other problem. This does not affect the applicability of ch. 19.122 RCW, Washington State's Underground Utilities statute.
9. There is no warranty of any municipal title or interest to confer permission to use or access any area. Permission is in the nature of a quitclaim authorization, subject to any other underlying interests as may be established. The City further reserves the right to vacate or abandon any permitted area at no cost or liability to the City. Municipal infrastructure needs have first priority in all cases except and only so far as shown to be otherwise required by a preemptive right.
10. There is no duty or liability of the City to any third-party tenant in or on a user's facilities in the right of way or other permitted areas, or to any direct or indirect customers or third-party beneficiaries of a user. The City disclaims any such duty or responsibility. Users must accept sole responsibly for claims of their direct or indirect third-party tenants, customers or third-party beneficiaries.
11. Nothing in this chapter limits or restricts any requirement, duty or obligation heretofore arising to the benefit of the City as a result of any municipal contract, permit, or franchise, but such provisions are supplemental and in addition to this chapter. The provisions of this chapter are supplemental and in addition to other applicable municipal ordinances, standards, and requirements. Nothing in this chapter impairs any obligation of contract in violation of the constitution of the State of Washington or the United States.
[cross ref., ch. 83, laws of 2000, Section 9 C, part]
12. Any damage or disturbance to the right of way or other permitted or surrounding areas must be promptly restored. A patch must be thereafter maintained by the responsible party as determined by the Administering Officer until the area is repaved. The Administering Officer may require the responsible party to repave an entire lane within a cut or disturbed location, or greater area, if deemed affected. Common trenching and coordination of access needs by the user is required to avoid unnecessary cuts or damage to the right of way or other permitted areas.
13. Access may be limited by the Administering Officer at a location, considering the purpose of this chapter, where there is inadequate space or other special limitations in an area, subject also to Section 12.09.110. Minimum underground horizontal separation is five (5) feet from City water facilities and ten (10) feet from above ground City water facilities, subject to the Administering Officer's review and further determination.
14. Any assignment of use or occupancy privileges requires consent of the City in the manner originally granted. This does not apply to minor stock transfers. No capital stock may ever be issued based on any permission to use or occupy the right of way or other permitted areas or the value thereof. In any condemnation proceeding brought by the City, no grantee of any permission, permit or franchise under this chapter or otherwise shall ever be entitled to receive any return thereon, or its value.
Section 12.09.090 Exemption, preemption
Anyone asserting a claim of preemption or exemption from a requirement of this chapter, permit, franchise, or order shall first present the same to the Administering Officer, with any supporting factual or legal arguments. The Administering Officer may resolve the question under such procedures as deemed efficient or may refer the matter to the Hearings Examiner for resolution through the hearings process in like manner as an appeal. The intent of this provision is to provide a quick and efficient means of understanding and resolving problems arising with respect to any permit or use or occupancy of the right of way or other permitted areas, consistent with the purpose of this chapter and other applicable laws.
Section 12.09.100 State law provisions
A. For convenience, this section recites certain restrictions on municipal authority from ch. 83, laws of 2000. For complete text, the reader is referred to section 4 (1) thereof. Such restrictions, which do not apply to preexisting franchises or permits, state that the City may not adopt or enforce regulations specifically relating to the use of the right of way by a service provider which:
1. Impose requirements that regulate the services or business operations of the service provider, except where otherwise authorized in state or federal law;
2. Conflict with federal or state laws, rules, or regulations that specifically apply to the design, construction, and operation of facilities or with federal or state worker safety or public safety laws, rules, or regulations;
3. Regulate the services provided based upon the content or kind of signals that are carried or are capable of being carried over the facilities, except where otherwise authorized in state or federal law; or
4. Unreasonably deny the use of the right of way by a service provider for installing, maintaining, repairing, or removing facilities for telecommunications services or cable television services.
B. In addition, section 4 (2) of ch. 83, laws of 2000 preserves certain areas of municipal authority. Consistent therewith, nothing in this chapter limits the authority of the City or its officials to regulate the placement of facilities through its local zoning or police power, if the regulations do not otherwise:
1. Prohibit the placement of all wireless or of all wireline facilities within the City;
2. Prohibit the placement of all wireless or of all wireline facilities within City rights of way; or
3. Violate section 253 of the telecommunications act of 1996, P.L.104-104 (110 Stat. 56).
C. These provisions do not amend, limit, repeal, or otherwise modify the authority of cities or towns to regulate cable television services pursuant to federal law.
[cross ref., ch. 83, laws of 2000, section 4]
Section 12.09.110 Restriction on moritoriums
A. To the extent required by state law, the City shall not place or extend a moratorium on the acceptance and processing of applications, permitting, construction, maintenance, repair, replacement, extension, operation, or use of any facilities for personal wireless services, except as consistent with the guidelines for facilities siting implementation, as agreed to on August 5, 1998, by the federal communications commission's local and state government advisory committee, the cellular telecommunications industry association, the personal communications industry association, and the American mobile telecommunications association.
B. Should such a moratorium be implemented, the Administering Officer shall, on receipt of a written request of a service provider impacted by the moratorium, participate with the service provider in the informal dispute resolution process included with the guidelines for facilities siting implementation. Any costs of municipal participation shall be payable in advance by the service provider.
[cross ref., ch. 83, laws of 2000, section 5; 12.09.080 (14)]
Section 12.09.120 Relocation
A. The Administering Officer may require service providers to relocate authorized facilities within the right of way when reasonably necessary for construction, alteration, repair, or improvement of the right of way for purposes of public welfare, health, or safety as provided in ch. 83, laws of 2000.
B. The Administering Officer shall notify service providers as soon as practicable of the need for relocation and shall specify the date by which relocation in the right of way shall be completed. Notice may be given by posting the same on the City's website, publication in the Official Gazette, or any other means. In calculating the date that relocation must be completed, the Administering Officer shall consult with affected service providers and consider the extent of facilities to be relocated, the services requirements, and the construction sequence for the relocation, within the City's overall project construction sequence and constraints, to safely complete the relocation.
C. Service providers shall complete the relocation by the date specified, unless the Administering Officer, or a reviewing court, establishes a later date for completion, after a showing by the service provider that the relocation cannot be completed by the date specified using best efforts and meeting safety and service requirements.
D. Service providers may not seek reimbursement for their relocation expenses from the City requesting relocation under subsection A of this section except:
1. Where the service provider had paid for the relocation cost of the same facilities at the request of the City within the past five years, the service provider's share of the cost of relocation will be paid by the City when it is requesting the relocation;
2. Where aerial to underground relocation of authorized facilities is required by the City under subsection A of this section, for service providers with an ownership share of the aerial supporting structures, the additional incremental cost of underground compared to aerial relocation, or as provided for in the approved tariff if less, will be paid by the City requiring relocation; and
3. Where the City requests relocation under subsection A of this section solely for aesthetic purposes, unless otherwise agreed to by the parties.
4. No relocation reimbursement is paid by the City for other permitted areas outside the right of way where not otherwise required by ch. 83, laws of 2000.
E. Where a project in subsection A of this section is determined by the Administering Officer to be primarily for private benefit, the private party or parties shall reimburse the cost of relocation in the same proportion to their contribution to the costs of the project. Service providers will not be precluded from recovering their costs associated with relocation required under subsection A of this section, provided that the recovery is consistent with subsection C of this section and other applicable laws. The City has no obligation to secure the collection or payment of any funds not owed by the City.
F. The Administering Officer may require the relocation of facilities at the
service provider's expense in the event of an unforeseen emergency that creates an immediate threat to the public safety, health, or welfare.
[cross ref., ch. 83, laws of 2000, section 6]
G. For users other than service providers, such parties shall relocate any facilities as ordered by the Administering Officer and no right of reimbursement from the City will ever be recognized.
Section 12.09.130 Facilities for City use
A. The Administering Officer may require that a service provider that is constructing, relocating, or placing ducts or conduits in public rights of way provide the City with additional duct or conduit and related structures necessary to access the conduit, provided that:
1. The City enters into a contract with the service provider consistent with RCW 80.36.150. The contract rates to be charged should recover the incremental costs of the service provider. If the City makes the additional duct or conduit and related access structures available to any other entity for the purposes of providing telecommunications or cable television service for hire, sale, or resale to the general public, the rates to be charged, as set forth in the contract with the entity that constructed the conduit or duct, shall recover at least the fully allocated costs of the service provider. The service provider shall state both contract rates in the contract. The Administering Officer shall inform the service provider of the use, and any change in use, of the requested duct or conduit and related access structures to determine the applicable rate to be paid by the City.
2. Except as otherwise agreed by the service provider and the City, the City agrees that the requested additional duct or conduit space and related access structures will not be used by the City to provide telecommunications or cable television
service for hire, sale, or resale to the general public.
3. The City shall not require that the additional duct or conduit space be connected to the access structures and vaults of the service provider.
4. The value of the additional duct or conduit requested by the City shall not be considered a public works construction contract
.
5. This section shall not affect the provision of an institutional network by a cable television provider under federal law. Additional requirements may apply as determined by the City in other permitted areas, outside the right of way.
[cross ref., ch. 83, laws of 2000, section 7]
B. Except where preempted by state or federal law, the City reserves the right to require provision of facilities for City use or impose other conditions on users of the right of way or other permitted areas.
Section 12.09.140 Fees and charges
RCW 35.21.860 addresses limitations on the City's power to impose franchise or other fees on some service providers and other entities specified, including site-specific charges pursuant to agreements with a service provider of personal wireless services as provided therein. Except as may be preempted by state or federal law, the City reserves the right to require compensation for use of the right of way as a condition of granting permission to use and occupy the right of way or other permitted areas.
[cross ref., ch. 83, laws of 2000, section 8]
Section 12.09.150 Authority of Administering Officer
A. The Administering Officer interprets and enforces this chapter, resolves conflicts and determines disputes arising under this chapter or permits or franchises issued in connection therewith. The Administering Officer has authority to issue general regulatory orders affecting all service providers or other users, as well as specific orders in specific cases or circumstances as deemed necessary. General regulatory orders are published in the Official Gazette of the City of Spokane at least (20) twenty days prior to taking effect unless otherwise ordered by the Administering Officer because of exigent circumstances. In such event, reasonable effort shall be made to notify affected parties. General or specific orders may be issued on application of an affected service provider or any other user.
B. Orders and decisions of the Administering Officer are guided by the purpose of this chapter. Prior to issuance of an order, the Administering Officer may give such advance notice and opportunity for hearing as deemed proper, or may provide for a hearing upon request to review an order or specific application of a party arising after issuance. The Officer may establish a filing fee not to exceed fifty dollars ($50) for consideration of any petition for action or determination by a regulated party or other person.
C. An order may include provision for penalty of not more than five hundred ($500) dollars per violation. In case of a continuing violation, each day may be specified to be an additional and separate violation. No penalty for failure to comply with any administrative order may be assessed except after notice and opportunity for hearing for the affected party. Failure to pay a penalty is a violation of this ordinance, and a breach of permit conditions and grounds for permit revocation by the Administering Officer after notice and opportunity for hearing for the permittee.
Section 12.09.160 Appeals
A. Any party feeling aggrieved by an order or decision of the Administering Officer or other municipal official relating to this Chapter may appeal the same by filing notice of appeal with the City of Spokane Hearings Examiner within thirty (30) days of the date of mailing or transmittal to said party of such order or decision appealed from. Included with the notice of appeal must be a statement of reasons for the appeal and copies of any pertinent documents or information and proof of delivery in such time limit of such submittals to the Administrative Officer and City Attorney. A filing fee of $50 must also be paid to the Hearings Examiner at the time of filing, but no filing fee is required for municipal appeals.
B. Upon receipt of a notice of appeal, where any penalty or charge is concerned, the Administrative Officer shall determine the amount of any accrued penalty or charge and notify the appealing party. The appealing party must post with the Hearings Examiner a bond, cash deposit or other suitable form of security as ordered by the Administrative Officer within ten (10) days of notification as a condition of further prosecuting any appeal. If the appeal is sustained, the security shall be returned. If the appeal is denied, the security shall be applied to any accrued penalty or charge. No appeal shall stay the accrual of any continuing penalty except upon a showing the appeal had reasonable merit and was taken in good faith, and not for purposes of delay.
C. The Hearing Examiner shall conduct a hearing on the appeal within thirty (30) days of filing of the notice of appeal, and issues a decision thereafter within twenty (20) days of the hearing. The Hearings Examiner's decision is final, subject to appeal in a court of competent jurisdiction by either party with a notice of appeal filed within thirty (30) days, copies to be served upon the Hearings Examiner, and adverse party. If a City official is the responding party, a copy shall also be served on City Attorney within such time limit.
D. An order or decision of the Administering Officer shall be sustained by the Hearings Examiner or a reviewing court unless found to be arbitrary and capricious. Upon timely appeal to a reviewing court, the Hearings Examiner certifies the record and delivers the same to the court where filed. The Hearings Examiner may require a deposit of funds by the appealing party in an amount estimated necessary to prepare the record as a condition of certifying the record.
12.09.170 Other users, occupants; outside right of way
Whether or not otherwise expressly provided in this chapter, the Administering Officer is authorized to adapt this chapter, considering its purposes, in the exercise of sound discretion in dealing with users other than service providers, or with respect to service providers in other permitted areas outside the right of way, recognizing that the state legislature chosen to limit the effect of ch. 83, laws of 2000 to service providers and a defined right of way area, but no waiver of any municipal requirement is binding unless in writing and notwithstanding any statement therein, any such waiver remains revocable at all times.
Passed the City Council _______________________________.
________________________________
Mayor
Attest:________________________
City Clerk
Approved as to form:
________________________________
Assistant City Attorney
1 . Change arises because of the change in the Spokane City Charter from City Manager to Strong Mayor form of government.
2 As referenced in section 3 (1), ch. 83, laws of 2000.