6515-S.E AMH HANK H5532.3

6515-S.E AMH HANK H5532.3

ESSB 6515 - H AMD 1172 ADOPTED 3-06-98

By Representatives Hankins and K. Schmidt

Strike everything after the enacting clause and insert the following:

"NEW SECTION. Sec. 1. (1) The legislature finds that the federal telecommunications act of 1996 has provided the opportunity to expand the uses of publicly owned rights of way to allow for the provision of enhanced telecommunications services. Presently, providers of these services are confronted with differing development regulations and franchise requirements across this state's two hundred seventy-seven cities and thirty-nine counties. The legislature finds the array of varying regulations and requirements to be a significant barrier to enhancing the telecommunications services to the citizens of the state, and desires more uniformity and reasonableness in the application of these regulations. However, states that have recently enacted laws relating to the use of public rights of way for telecommunications services have been challenged in court. Court decisions and relevant federal communications commission rulings will be issued after the legislature adjourns. Therefore, the most prudent course of action requires further work and cooperation between public policymakers, government administrators, and the telecommunications industry to effectuate the policy of this state.

(2) The legislature hereby declares it the policy of the state of Washington to: Promote policies that encourage competition in telecommunications and results in new entrants into the industry; encourage the development of telecommunications infrastructure without violating the letter or spirit of Article VIII, sections 5 and 7 of the state Constitution; reduce regulatory obstacles that inhibit investment in the state's telecommunications system; maintain safe public roads, highways, and streets; and provide responsible stewardship of the public's investment in its rights of ways.

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 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.

(2) "Authorized user" means every corporation, company, association, joint stock association, partnership, and person; their lessees, trustees, or receivers appointed by any court whatsoever; and every city or town owning, operating, or managing any facilities used to provide telecommunications for hire, sale, or resale to the general public within this state.

(3) "Cable television service" means the one-way transmission to subscribers of video programming or other programming service and subscriber interaction, if any, which is required for the selection or use of such video programming or other programming service.

(4) "Limited access highways" means those public rights of way designated as limited access under authority of the laws of the state of Washington.

(5) "Public right of way" means public roads, streets, and highways, and does not include:

(a) Limited access highways;

(b) Land dedicated for roads, streets, and highways not opened or improved for motor vehicle use;

(d) Federally granted trust lands and the forest board trust lands;

(e) Private property or easement rights on private property; and

(f) Federally granted railroad rights of way acquired under 43 U.S.C. Sec. 912 and related provisions of federal law.

(6) "Telecommunications service" means the transmission of information by wire, radio, optical cable, electromagnetic, or other similar means for the general public. For the purpose of chapter . . ., Laws of 1998 (this act), telecommunications services excludes the over-the-air transmission of broadcast television or radio signals. 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) The state, counties, cities, or towns shall not unreasonably deny the use of public right of way for the purposes of locating authorized facilities for telecommunications services or cable television services, provided:

(a) The authorized facilities comply with applicable land use and construction codes, regulations, standards, and lease and franchise requirements adopted by the state, counties, cities, and towns not inconsistent with state law;

(b) The authorized facilities are installed and maintained within public rights of way in such manner and at such points so as not to inconvenience the public use of the rights of way;

(c) The authorized users obtain all permits required for the installation of authorized facilities as required by the state, counties, cities, and towns;

(d) The authorized facilities are installed, constructed, maintained, and operated at the expense and liability of the authorized user;

(e) The use of the public right of way by authorized facilities does not create, expand, or extend liability of the state, counties, cities, or towns to a third party user of authorized facilities;

(f) The use of a facility or structure in the public right of way, or attachment to it, or the use of public property that is not public right of way has received the explicit approval of, and is under such conditions as may be agreed to by, the owner of the facility, structure, or property.

(2) The reasons for a denial of the use of the right of way where the request complies with subsection (1)(a) through (f) of this section shall be clearly stated in writing.

(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 other purposes.

NEW SECTION. Sec. 4. (1) Counties, cities, and towns may not adopt or enforce land use and construction codes, regulations, standards, or lease and franchise requirements that:

(a) Conflict with or duplicate the jurisdiction or requirements of the Washington utilities and transportation commission for approval to offer telecommunications services;

(b) Conflict with federal or state laws, rules, and regulations that specifically apply to the design, construction, and operation of authorized facilities or with federal or state worker safety or 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.

(2) Nothing in this section limits the authority of the counties, cities, and towns to regulate the placement of authorized facilities through local zoning authority as long as:

(a) The regulations do not prohibit the placement of authorized facilities within the county, city, or town nor have the effect of a barrier to entry;

(b) The regulations do not unreasonably discriminate or have the effect of unreasonably discriminating between similarly situated authorized users or authorized facilities.

NEW SECTION. Sec. 5. (1) Except as provided in subsection (2) of this section, a county, city, or town shall not 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 after the effective date of this section. An existing moratorium that expires after 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 the moratorium authorized by (a) of this subsection, the authorizing city or town is subject to subsection (1) of this section.

(3) 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 policies and provisions for the siting of wireless telecommunications facilities.

(4) Subsections (1) and (2) of this section apply to moratoriums one hundred twenty days after the adoption of a model ordinance or on April 1, 1999, whichever occurs first.

(5) This section expires October 1, 2003.

NEW SECTION. Sec. 6. (1) The state, counties, cities, and towns shall adopt procedures that enable each of these jurisdictions to issue permits for authorized facilities within one hundred twenty days from an applicant's filing of a complete application for a permit until issuance of the permit, except:

(a) Where required by specific procedures to assure cooperation of work within the right of way that provides reasonable opportunities for scheduling of work, including advance notice of planned work, and that do not impose unreasonable barriers to entry;

(b) With the agreement of the applicant;

(c) Where permits require the approval of another unit of government that cannot be obtained within the one hundred twenty-day period;

(d) Where franchises are required that require the approval of the legislative body of the jurisdiction, if procedures allow the interim installation of authorized facilities where the timeline to complete such a franchise agreement is expected to exceed one hundred twenty days;

(e) That issuance and renewals of franchises and related permits for cable television service are governed by federal law.

(2) For purposes of this section, the state, counties, cities, and towns shall adopt by rule or ordinance the specific requirements necessary to deem an application for a permit full and complete, and shall provide a copy of the requirements to all applicants.

NEW SECTION. Sec. 7. (1) Unless the legislative authority of a county, city, or town has taken legislative action prior to January 1, 1998, a county, city, or town shall not begin installation, or cause to be installed, equipment, facilities, or other infrastructure, including but not limited to conduit, for the purpose of allowing a county, city, or town to provide for-profit telecommunications or cable television services to the general public.

(2) This section expires October 1, 2003.

NEW SECTION. Sec. 8. Except as provided in section 7 of this act, chapter . . ., Laws of 1998 (this act) does not amend, limit, repeal, or otherwise modify the authority of cities or counties to regulate cable television services as provided under federal law.

Sec. 9. RCW 35.21.860 and 1983 2nd ex.s. c 3 s 39 are each amended to read as follows:

(1) No city or town may impose a franchise fee or any other fee ((or)), charge, or compensation of whatever nature or description upon the light and power, or gas distribution businesses, as defined in RCW 82.16.010, or ((~~telephone business, as defined in RCW 82.04.065~~)) an authorized user for the use of public right of way, except that (a) a tax authorized by RCW 35.21.865 may be imposed and (b) ((~~a fee~~)) fees and other requirements may be ((~~charged to~~)) imposed on such businesses that, except for authorized users of a public right of way, recovers actual administrative expenses incurred by a city or town that are directly related to receiving and approving a permit, license, and franchise, to inspecting plans and construction, or to the preparation of a detailed statement pursuant to chapter 43.21C RCW. A city or town may impose fees on authorized users for the use of a public right of way to recover costs as set forth under section 11 of this act.

(2) Subsection (1) of this section does not prohibit franchise fees imposed on an electrical energy, natural gas, or telephone business, by contract existing on April 20, 1982, with a city or town, for the duration of the contract, but the franchise fees shall be considered taxes for the purposes of the limitations established in RCW 35.21.865 and 35.21.870 to the extent the fees exceed the costs allowable under subsection (1) of this section.

Sec. 10. RCW 36.55.010 and 1963 c 4 s 36.55.010 are each amended to read as follows:

Any board of county commissioners may grant franchises to persons or private or municipal corporations to use the right of way of county roads in their respective counties for the construction and maintenance of waterworks, gas pipes, ((~~telephone, telegraph~~)) authorized facilities as defined in section 1 of this act, and electric light lines, sewers, and any other such facilities, except that no franchise fee or any other fee or charge or compensation of whatever nature or description may be imposed for the use of the public right of way for authorized facilities except as provided in section 11 of this act.

NEW SECTION. Sec. 11. (1) Counties, cities, and towns may impose fees to recover:

(a) The direct administrative expenses actually incurred by the county, city, or town in receiving and approving a construction or development permit, inspecting plans and construction, and development and maintenance of record systems and excavation authorizations systems;

(b) Costs of ongoing maintenance, repair, or restoration of the right of way reasonably related to the impact of the installation, maintenance, and use of the authorized facility; and

(2) Nothing in this section or in RCW 35.21.860 and 36.55.010 limits or otherwise restricts counties, cities, or towns from collecting franchise fees, charges, or other compensation under terms mutually agreeable between a county, city, or town and an authorized user.

NEW SECTION. Sec. 12. (1) There is hereby created a telecommunications right of way advisory committee. The advisory committee shall develop policies and provisions for the state relating to franchises, fees, and compensation for use of the rights of way by providers of telecommunications services. The committee shall ensure that recommended policies allow all authorized users an opportunity to access the rights of way, and that any compensation for access to the rights of way are limited to amounts that are fair, just, reasonable, and sufficient.

(2) The advisory committee shall be comprised of:

(a) Two members of the house of representatives 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 members are unavailable;

(b) 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 members are unavailable;

(c) One member of the house of representatives 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;

(d) 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;

(e) Two representatives of the governor;

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

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

(3) The advisory committee shall make its recommendations to the legislative transportation committee by December 1, 1998.

NEW SECTION. Sec. 13. 1997 c 457 s 512 (uncodified) is repealed.

NEW SECTION. Sec. 14. Sections 9 through 11 of this act expire June 30, 1999.

NEW SECTION. Sec. 15. Sections 1 through 8 of this act constitute a new chapter in Title 47 RCW.

NEW SECTION. Sec. 16. 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."

Correct the title.