BP BHEAD INT S [atlas:bill]

AN ACT Relating to telecommunications access to limited-access highway rights-of-way; amending RCW 47.44.010, 47.44.020, 47.44.040, 47.44.050, and 47.44.060; adding a new chapter to Title 47 RCW; and declaring an emergency.

BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF WASHINGTON:

NEW SECTION. Sec. 1. The legislature finds that the federal Telecommunications Act of 1996 is designed to remove regulatory barriers and encourage competition among telecommunications carriers. The federal act has important implications for the Washington state department of transportation. Namely, the federal act affects both the present and future right-of-way management policies and procedures of the department. The federal act preserves authority of the department to manage its rights-of-way, and obtain fair and reasonable compensation on a competitively neutral and nondiscriminatory basis for its use, while encouraging competition in the telecommunications marketplace, for the purpose of achieving improved services and lower prices to Washington telecommunications consumers.

NEW SECTION. Sec. 2. The definitions set forth in this section apply throughout this chapter.

(1) "Limited-access rights-of-way" includes "limited access facilities" as defined in RCW 47.52.010, and the federal interstate system.

(2) "Right of occupancy" means the right to occupy limited-access rights-of-way by installing facilities and equipment necessary for the transmission of telecommunications, and the right to enter limited access rights-of-way for the purpose of installing and maintaining those facilities and equipment.

(3) "Telecommunications" means the transmission, between or among points specified by the user, of information of the user's choosing, without change in the form or content of the information as sent and received.

(4) "Telecommunications carrier" means a provider of telecommunications services, other than aggregators of telecommunications services.

(5) "Telecommunications service" means the offering of telecommunications for a fee directly to the public, or to such classes of users as to be effectively available directly to the public, regardless of the facilities used.

NEW SECTION. Sec. 3. A grant by the department to a telecommunications carrier of a right of occupancy in limited-access rights-of-way, including an agreement between the department and a telecommunications carrier related to such a grant, must comply with the following:

(1) Grants, and the compensation paid for them, must be competitively neutral. The department may make no such grant that by its terms awards a grantee an exclusive right of occupancy.

(2) Grants must expressly be subject to all rules, policies, and standards established by the department to preserve the proper functioning of the limited-access facility, protect the public safety and welfare, and manage the limited-access rights-of-way. The department has full authority to establish the rules, policies, and standards.

(3) No grant may establish a relationship between the department and any other entity that would cause the department to be deemed a telecommunications carrier.

(4) Grants to limited-access rights-of-way may be separately negotiated with each telecommunications carrier, under rules and procedures established by the department in consultation with the telecommunications/right-of-way advisory committee as described in section 4 of this act. Where necessary to ensure effective management of the limited-access right-of-way, the department may limit the number and type of facilities in the right-of-way, and may require sharing facilities between or among competing telecommunications carriers.

(5) Each grant must provide for fair and reasonable compensation for the use of limited-access rights-of-way. In determining fair and reasonable compensation, the department shall, to the extent practicable, examine compensation arrangements between telecommunications carriers and private landowners. The compensation may be both cash and in-kind, but in no event may it consist exclusively of an indirect arrangement for the provision of in-kind telecommunications services. An arrangement by which the department receives in-kind telecommunications services in exchange for access to limited-access rights-of-way is deemed a procurement subject to review by the information services board under RCW 43.105.041. Revenues from cash compensation must be deposited in the motor vehicle fund. Any consideration received by the department must be publicly disclosed. The department shall consult with, and provide an opportunity to respond to telecommunications/right-of-way compensation proposals, to the telecommunications/right-of-way advisory panel as described in section 4 of this act.

(6) Franchise agreements with telecommunications carriers established before the effective date of this act are not subject to this section until then-existing franchise agreements expire.

NEW SECTION. Sec. 4. The telecommunications/right-of-way advisory panel is created to evaluate the department's process for developing compensation proposals for use of its limited-access rights-of-ways by telecommunications carriers. Additionally, the advisory panel shall meet as necessary to consult with the department regarding compensation proposals.

The membership of the telecommunications/right-of-way advisory panel is as follows:

(1) Two members of the house transportation policy and budget committee, one from each political party, as appointed by the speaker of the house of representatives. The speaker shall also designate two alternate members to serve if the appointed member is unavailable;

(2) Two members of the senate transportation committee, one from each political party, as appointed by the president of the senate. The president shall also designate two alternate members to serve if the appointed member is unavailable;

(3) One member of the house appropriations committee, as appointed by the speaker of the house of representatives. The speaker shall also designate an alternate member to serve if the appointed member is unavailable;

(4) One member of the senate ways and means committee, as appointed by the president of the senate. The president shall also designate an alternate member to serve if the appointed member is unavailable;

(5) Two representatives of the governor or their designees;

(6) The secretary of the department of transportation or a designee; and

(7) The director of the department of information services or a designee.

NEW SECTION. Sec. 5. Nothing in this chapter affects existing or future franchise arrangements with nontelecommunications utilities. Nothing in this chapter authorizes a nontelecommunications utility or any other entity to obtain a grant of a right of occupancy for any purpose other than providing telecommunications.

NEW SECTION. Sec. 6. Nothing in this chapter limits or affects the department's ability to lease property under RCW 47.12.120.

Sec. 7. RCW 47.44.010 and 1980 c 28 s 1 are each amended to read as follows:

The department of transportation may grant franchises to persons, associations, private or municipal corporations, the United States government, or any agency thereof, to use any state highway for the construction and maintenance of water pipes, flume, gas, oil or coal pipes, ((~~telephone, telegraph~~)) telecommunications facilities as defined in RCW 80.04.010, and electric light and power lines and conduits, trams or railways, and any structures or facilities which are part of an urban public transportation system owned or operated by a municipal corporation, agency, or department of the state of Washington other than the department of transportation, and any other such facilities. All applications for such franchise shall be made in writing and subscribed by the applicant, and shall describe the state highway or portion thereof over which franchise is desired and the nature of the franchise. The department of transportation shall adopt rules providing for a hearing or an opportunity for a hearing with reasonable public notice thereof with respect to any franchise application involving the construction and maintenance of utilities or other facilities within the highway right of way which the department determines may (1) during construction, significantly disrupt the flow of traffic or use of driveways or other facilities within the right of way, or (2) during or following construction, cause a significant and adverse effect upon the surrounding environment.

Sec. 8. RCW 47.44.020 and 1980 c 28 s 2 are each amended to read as follows:

If the department of transportation deems it to be for the public interest, the franchise may be granted in whole or in part, with or without hearing under such regulations and conditions as the department may prescribe, with or without compensation, but not in excess of the reasonable cost for investigating, handling, and granting the franchise, except as provided in section 3 of this act. The department may require that the utility and appurtenances be so placed on the highway that they will, in its opinion, least interfere with other uses of the highway. As provided in section 3 of this act, the department shall obtain fair and reasonable compensation for rights of occupancy granted to telecommunications carriers on limited-access rights-of-way.

If a hearing is held, it shall be conducted by the department, and may be adjourned from time to time until completed. The applicant may be required to produce all facts pertaining to the franchise, and evidence may be taken for and against granting it.

The facility shall be made subject to removal when necessary for the construction, alteration, repair, or improvement of the highway and at the expense of the franchise holder, except that the state shall pay the cost of such removal whenever the state shall be entitled to receive proportionate reimbursement therefor from the United States in the cases and in the manner set forth in RCW 47.44.030. Renewal upon expiration of a franchise shall be by application. A person constructing or operating such a utility on a state highway is liable to any person injured thereby for any damages incident to the work of installation or the continuation of the occupancy of the highway by the utility, and except as provided above, is liable to the state for all necessary expenses incurred in restoring the highway to a permanent suitable condition for travel. No franchise may be granted for a longer period than fifty years, and no exclusive franchise or privilege may be granted.

Sec. 9. RCW 47.44.040 and 1984 c 7 s 236 are each amended to read as follows:

Whenever any bridge exists on the route of any state highway and crosses any stream, body of water, gulch, navigable water, swamp, or other topographical formation constituting the boundary of this state or the boundary of a county, city, or town of this state and the bridge is owned or operated by this state jointly with any such county, city, or town, or with any municipal corporation of this state, or with such other state or with any county, city, or town of such other state, the department is empowered to join with the proper officials of the county, city, or town, or the municipal corporation of this state or of such other state or of such county, city, or town of such other state in granting franchises to persons or private or municipal corporations for the construction and maintenance on the bridge of water pipes, flumes, gas pipes, ((~~telephone, telegraph~~)) telecommunications facilities as defined in RCW 80.04.010, and electric light and power lines and conduits, trams and railways, and any structures or facilities that are part of an urban public transportation system owned or operated by a municipal corporation, agency, or department of the state of Washington other than the department, or any other such facilities. All such franchises shall be granted in the same manner as provided for the granting of like franchises on state highways. Any revenue accruing to the state of Washington from the franchises shall be paid to the state treasurer and deposited to the credit of the fund from which this state's share of the cost of joint operation of the bridge is paid.

Sec. 10. RCW 47.44.050 and 1984 c 7 s 237 are each amended to read as follows:

The department is empowered to grant a permit to construct or maintain on, over, across, or along any state highway any water, gas, ((~~telephone, telegraph~~)) telecommunications facilities as defined in RCW 80.04.010, light, power, or other such facilities when they do not extend along the state highway for a distance greater than three hundred feet. The department may require such information as it deems necessary in the application for any such permit, and may grant or withhold the permit within its discretion. Any permit granted may be canceled at any time, and any facilities remaining upon the right of way of the state highway after thirty days written notice of the cancellation ((~~is [are] an~~)) are unlawful obstructions and may be removed in the manner provided by law.

Sec. 11. RCW 47.44.060 and 1989 c 224 s 1 are each amended to read as follows:

(1) Any person, firm, or corporation who constructs or maintains on, over, across, or along any state highway any water pipe, flume, gas pipe, ((~~telegraph, telephone~~)) telecommunications facilities as defined in RCW 80.04.010, electric light, or power lines, or tram or railway, or any other such facilities, without having first obtained and having at all times in full force and effect a franchise or permit to do so in the manner provided by law is guilty of a misdemeanor. Each day of violation is a separate and distinct offense.

(2) Any person, firm, ((or)) corporation, association, private or municipal corporation, county, agency or department of the state of Washington, other than the department of transportation, the United States government, or any agency thereof, who constructs or maintains on, over, across, or along any state highway any water pipe, flume, gas pipe, ((~~telegraph, telephone~~)) telecommunications facilities as defined in RCW 80.04.010, electric light or power lines, or tram or railway, or any other such facilities, without having first obtained and having at all times in full force and effect a franchise or permit to do so in the manner provided by law is liable for a civil penalty of one hundred dollars per calendar day beginning forty-five days from the date notice is given and until application is made for a franchise or permit or until the facility is removed as required by notice. The state shall give notice by certified mail that a franchise or permit is required or the facility must be removed and shall include in the notice sufficient information to identify the portion of right of way in question. Notice is effective upon delivery.

(3) If a person, firm ((or)), corporation, association, private or municipal corporation, county, agency or department of the state of Washington, other than the department of transportation, the United States government, or any agency thereof, does not apply for a permit or franchise within forty-five days of notice given in accordance with subsection (2) of this section or the state determines that the facility constructed or maintained without a permit or franchise would not be granted a permit or franchise, the state may order the facility to be removed within such time period as the state may specify. If the facility is not removed, the state, in addition to any other remedy, may remove the facility at the expense of the owner.

NEW SECTION. Sec. 12. Sections 1 through 6 of this act constitute a new chapter in Title 47 RCW.

NEW SECTION. Sec. 13. This act is necessary for the immediate preservation of the public peace, health, or safety, or support of the state government and its existing public institutions, and takes effect immediately.