6515-S.E AMH EN H5318.1

6515-S.E AMH EN H5318.1

ESSB 6515 - H COMM AMD NOT ADOPTED 3-06-98

By Committee on Energy & Utilities

Strike everything after the enacting clause and insert the following:

"NEW SECTION. Sec. 1. The legislature finds that technological developments have made telecommunications evermore important to the health, safety, and welfare of the people of this state and to the efficient and cost-effective conduct of the state's economy. The pace of technological change is expected to continue and increase in the future. Massive investment in telecommunications infrastructure will be required to make the benefits of technological development available to the people of the state. This is particularly true if the modern infrastructure is to reach all parts of the state, rural as well as urban.

The legislature also finds it necessary to clarify policies on use of public rights of way in order to recognize and foster the changes that are occurring in telecommunications.

The legislature declares that government policies for the use of public rights of way should preserve a safe and efficient transportation system and encourage investment in and development of the infrastructure needed for leading‑edge applications in telecommunications. These policies will also serve as an important means of economic development, allowing the state to remain competitive in national and international markets and to attract jobs to, and develop robust economies in, its rural and underdeveloped areas.

The legislature further declares that growth in economic activity resulting from right of way policies that are consistent with the state's transportation needs and encourage the deployment of telecommunications infrastructure will create new jobs and business opportunities as well as bring better service and lower prices to consumers. State and local government will benefit by the availability of improved services and the creation of a larger and more stable revenue base.

The legislature declares that rights of way are dedicated to and purchased or held by the government for the use of the public in transportation, the delivery of utility services, and commerce; that government is responsible for protecting these rights of way for these public purposes; and that the use of these rights of way by telecommunications facilities is important for the protection and advancement of the public's welfare.

The legislature intends that governments rely on construction and development regulations that apply generally and uniformly to construction both inside and outside the public right of way to the extent possible in connection with use of the public right of way for telecommunication facilities. It is the intent of the legislature that if franchises are used, they only be used to coordinate construction and development regulations, permits, and the requirements of such other laws as specifically apply to rights of way and that franchises not be used to impose duplicative requirements on authorized users of the rights of way.

It is the intent of the legislature to promote policies that recognize the introduction of competition in telecommunications, and that will result in new entrants into this industry, without needlessly changing or supplanting existing codes, regulations, and standards. As additional companies seek to locate their facilities in public rights of way, it is incumbent on local government to establish uniform, clear, competitively neutral, and nondiscriminatory rules for use of the public right of way. However, the legislature does not intend for any provision of this act to be construed as changing existing authority of counties, cities, or towns to regulate through local zoning authority consistent with these principles.

It is the policy of the legislature that fees and charges levied by local governments on the telecommunications industry for use of public rights of way and for permits and licenses required for construction, repair, maintenance, use, and operation of facilities for telecommunications shall not be a means of raising general revenue. It is the intent of the legislature and the policy of this state that fees for necessary permits and licenses do not exceed the actual costs incurred in receiving, considering, and issuing the permits and licenses, and inspecting work in the right of way. It is the intent of the legislature and the policy of this state that fees for necessary permits and licenses do not exceed the actual costs incurred in receiving, considering, and issuing permits and licenses, in inspecting plans for and construction in the right of way, in maintaining the records necessary to identify facilities located in the right of way and to prevent interferences among facilities, and in preparing a detailed statement under chapter 43.21C RCW. The legislature does not intend this act to change the law governing repair and restoration of the right of way made necessary by construction, repair maintenance, and other work in the right of way by authorized users.

It is the intent of the legislature that no provision of this act be construed as changing existing authority of the state, counties, cities, and towns to regulate by the exercise of local or state police power in the furtherance of the public health, safety, and welfare.

NEW SECTION. Sec. 2. Unless the context clearly requires otherwise, the definitions in this section apply throughout chapter . . ., Laws of 1998 (this act).

(1) "Authorized facilities" means all of the plant, equipment, fixtures, appurtenances, antennas, and other facilities necessary to furnish and deliver telecommunications services, including but not limited to poles with crossarms, poles without crossarms, wires, lines, conduits, cables, communication and signal lines and equipment, braces, guys, anchors, vaults, and all attachments, appurtenances, and appliances necessary or incidental to the distribution and use of telecommunications services.

(2) "Authorized user" means any person providing telecommunications or cable television service for hire, sale, or resale to the general public, consistent with federal, state, and local law.

(3) "Cable television service" means the one‑way broadcast or cable transmission of television or radio signals.

(4) "Public right of way" means roads, streets, and highways, including limited access highways but does not include structures located within the right of way, lands managed by the state parks and recreation commission, federally granted trust lands, or forest board trust lands. "Public right of way" does not include private property except to the extent easement rights have been granted for roads, streets, and highways.

(5) "Telecommunications service" means the transmission of information by wire, radio, optical cable, electromagnetic, or other similar means for the 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.

NEW SECTION. Sec. 3. (1) An authorized user may erect, construct, support, attach, connect, stretch authorized facilities between, maintain, repair, replace, and operate and use authorized facilities in, upon, over, under, along, across, and through public rights of way at its own expense. These authorized facilities shall be installed and maintained within public rights of way in such a manner and at such points as not to incommode the public use of the rights of way, and in accordance with federal and state laws and appropriate and applicable codes, regulations, and standards adopted by the state and by counties, cities, and towns not inconsistent with those laws. In addition, a personal wireless communication facility may not obstruct or otherwise interfere with views of significant features observable from a highway, road, or street. An authorized user shall ensure that its authorized facilities meet, and are maintained in a manner so that the facilities continue to meet, applicable federal and state safety laws and standards including, but not limited to, collision standards.

(2) Nothing in this section amends, repeals, or otherwise modifies any law requiring authorized users to obtain all permits required for the installation of authorized facilities as required by the state and by counties, cities, and towns.

(3) Nothing in this section creates, modifies, or diminishes the priority of use for authorized facilities over other users of the right of way for utility purposes or other purposes subject to local franchise or permit.

(4) Nothing in this section creates a right to attach to or use a facility or structure, or to use public property that is not a public right of way, without the explicit approval of, and under such conditions as may be agreed to by, the owner of such a facility, structure, or property.

(5) Nothing in this section shall be construed as creating or expanding: (a) Liabilities of the state, counties, cities, or towns regarding the construction, installation, maintenance, or removal of authorized facilities; or (b) duties owed by the state, counties, cities, or towns to authorized users to construct, install, maintain, or remove authorized facilities. In addition, nothing in this section shall be construed as extending any liability of the state, counties, cities, or towns to any third party user of authorized facilities.

NEW SECTION. Sec. 4. (1) Neither the state nor any county, city, or town may adopt or enforce regulations relating to authorized users in public rights of way that:

(a) Discriminate or have the effect of discriminating among similarly situated authorized users or authorized facilities;

(b) Conflict with: (i) Federal and state public service laws; (ii) federal or state laws, rules, and regulations that specifically apply to the design, construction, and operation of authorized facilities; or (iii) federal or state worker safety and public safety laws, rules, and regulations;

(c) Regulate services of authorized users based upon the content or type of signals that are carried or are capable of being carried over the telecommunications facilities, except where specifically authorized in state or federal law;

(d) Impose regulatory requirements that regulate the services and business operations of the authorized user, except where specifically authorized in state or federal law; or

(e) Provide for a period that exceeds one hundred twenty days between filing a complete application for a permit and issuance or denial of the permit, or otherwise unreasonably delay work by authorized users on authorized facilities in the public right of way except that this subsection does not preclude (i) specific procedures to assure cooperation of and among authorized users doing work within the right of way that provide reasonable opportunities for scheduling of work, including advance notice of planned work, and do not impose unreasonable barriers to entry; and (ii) a schedule established with the agreement of the applicant. Before issuing a permit, the state, county, city, or town shall make a finding that approval of the permit is consistent with easement rights, if any, granted for public right of way.

(2) To the maximum extent feasible, if franchises are applicable to telecommunications companies, they shall be used only to coordinate construction and development regulations and permits, and requirements imposed and permits required under other laws relating to streets, roads, and highways. Franchises shall not be used to require additional permits, conditions, or requirements that duplicate those required under other laws.

(3) Counties, cities, and towns are encouraged to develop procedures to provide interim authorizations for the installation of authorized facilities and process a complete permit, where the timeline to complete such a permit or an agreement is expected to exceed one hundred twenty days, but the issuance and renewals of franchises and related permits for cable television service shall be governed by federal law.

(4) Counties, cities, and towns are encouraged to work together with industry, using the experience of the industry and those counties, cities, and towns that have adopted wireless regulations, to develop by January 1, 1999, a model ordinance for the siting of wireless telecommunications facilities.

NEW SECTION. Sec. 5. (1) Except as provided in subsection (2) of this section, neither the state nor any county, city, or town shall place a moratorium on the acceptance and processing of applications, permitting, construction, maintenance, repair, replacement, extension, operation, or use of any personal wireless communication facility that is authorized under sections 2 through 6 of this act following the effective date of this section. An existing moratorium that expires following the effective date of this section shall not be extended in whole or in part.

(2)(a) A city or town incorporated after the effective date of this section shall be permitted to impose one moratorium that shall not exceed one hundred eighty days and shall not be extendable.

(b) Upon the expiration of a moratorium authorized by (a) of this subsection, the authorizing city or town is subject to subsection (1) of this section.

(3) Except as otherwise provided in subsection (2) of this section, this section applies to moratoriums one hundred twenty days after the adoption of a model ordinance under section 4(3) of this act or on April 1, 1999, whichever occurs first.

(4) This section expires April 1, 2004.

NEW SECTION. Sec. 6. (1) Neither the state nor any county, city, or town may impose, demand, or accept any compensation from an authorized user, whether by fee, charge, license, rent, franchise, or use of authorized facilities at other than established, industry standard charges, provision of in-kind services by authorized users without compensation or at below-market rates, or by any other manner for the use or occupancy of public rights of way for authorized facilities.

(2) Except as otherwise provided in this section, no fee, charge, or other compensation permitted for any act authorized by sections 2 through 6 of this act may recover more than the direct administrative expenses actually incurred by the state, county, city, or town in: (a) Receiving and approving a construction or development permit, including notifying adjoining property owners as required by section 7 of this act; (b) inspecting plans and construction; (c) maintaining records of facilities located in the right of way; or (d) preparing a detailed statement under chapter 43.21C RCW.

(3) This section does not diminish, increase, alter, or otherwise affect the authority of the state or of counties, cities, or towns with respect to the repair or restoration of rights of way.

(4) This section does not preclude a county, city, or town from issuing franchises and imposing franchise requirements and fees, and enforcing mutually agreed-upon franchise terms and conditions, for cable services as allowed by federal law.

(5) This section does not amend, repeal, or modify any law governing the taxing authority of cities or towns.

(6) The limitations in this section do not apply to agreements for the use of public property that is not a public right of way or for the use of facilities in the right of way.

NEW SECTION. Sec. 7. A local government by ordinance or resolution shall provide for administrative review and approval and exclude the following project permits from the provisions of RCW 36.70B.060 through 36.70B.090, 36.70B.110, and 36.70B.130: (1) Siting of a personal wireless communication facility in a public right of way, if the facility is a whip antenna of no more than six feet and is to be mounted on an existing utility pole or other existing structure; or (2) siting of an authorized facility as defined in section 2 of this act in a public right of way if that facility will be camouflaged or entirely screened from view.

NEW SECTION. Sec. 8. A county, city, or town shall notify adjoining property owners when an authorized facility is to be erected or constructed in, upon, over, under, along, across, or through a public right of way.

NEW SECTION. Sec. 9. Any person with a concern about an authorized facility located in a public right of way may file a report of the concern with the clerk of the board of county commissioners if the right of way is located in an unincorporated area, with the city clerk, if the right of way is located in a city, or with the town clerk if the right of way is located in a town. If the authorized facility that is the subject of the concern is located in a public right of way managed by a state agency, the clerk shall forward a copy of the report to that agency.

NEW SECTION. Sec. 10. A new section is added to chapter 35.21 RCW to read as follows:

Each city or town is subject to the requirements and restrictions regarding telecommunications services and public rights of way under sections 2 through 9 of this act. However, sections 2 through 9 of this act do not limit or modify the applicability of chapters 35.77, 35.78, 36.70A, and 43.21C RCW.

NEW SECTION. Sec. 11. A new section is added to chapter 35A.21 RCW to read as follows:

Each code city is subject to the requirements and restrictions regarding telecommunications services and public rights of way under sections 2 through 9 of this act. However, sections 2 through 9 of this act do not limit or modify the applicability of chapter 36.70A RCW.

NEW SECTION. Sec. 12. A new section is added to chapter 36.01 RCW to read as follows:

Each county is subject to the requirements and restrictions regarding telecommunications services and public rights of way under sections 2 through 9 of this act. However, sections 2 through 9 of this act do not limit or modify the applicability of chapters 36.55, 36.70, 36.70A, 36.75, 36.78, 36.80, 36.81, and 36.86 RCW.

NEW SECTION. Sec. 13. Sections 2 through 6 of this act constitute a new chapter in Title 47 RCW.

NEW SECTION. Sec. 14. If any provision of this act or its application to any person or circumstance is held invalid, the remainder of the act or the application of the provision to other persons or circumstances is not affected."

Correct the title.