BP BHEAD INT S [atlas:bill]

AN ACT Relating to telecommunications users of public rights-of-way; amending RCW 35.21.860 and 36.55.010; and adding a new chapter to Title 80 RCW.

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

NEW SECTION. Sec. 1. Unless the context clearly requires otherwise, the definitions in this section apply throughout this chapter.

(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) "Public right-of-way" means roads, streets, and highways dedicated or secured by the public for public use, but does not include:

(a) Unimproved land dedicated for roads, streets, and highways that are not currently in use;

(b) Structures located within the right-of-way;

(d) 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; or

(e) Lands owned or managed by the state parks and recreation commission.

(5) "Telecommunications service" means the transmission of information by wire, radio, optical cable, electromagnetic, or other similar means for the general public. Telecommunications services excludes the over-the-air transmission of broadcast television or broadcast 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. 2. (1) The state, counties, cities, or towns, consistent with state law, shall not deny the use of public rights-of-way for the purposes of locating authorized facilities for telecommunications services or cable television services provided that authorized users ensure that:

(a) The authorized facilities comply with applicable land use and construction codes, regulations, standards, and franchise requirements adopted by state agencies, counties, cities, and towns not inconsistent with state law or easement agreements for the use of private property;

(b) The authorized facilities are installed and maintained within public rights-of-way in such manner and at such points so as not to incommode 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 agencies, counties, cities, and towns; and

(d) 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 public right-of-way shall be clearly stated in writing.

(3) This section does not create or expand: (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, this section does not extend any liability of the state, counties, cities, or towns to any third party user of authorized facilities.

(4) This section does not create, modify, or diminish the priority of use for authorized facilities over other users of the public right- of-way for other purposes.

NEW SECTION. Sec. 3. (1) Counties, cities, and towns may not adopt or enforce regulations or ordinances specifically relating to authorized users in public rights-of-way that:

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

(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; or

(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) This section does not limit the authority of the counties, cities, and towns to regulate the placement of authorized facilities through local zoning authority, if:

(a) The regulations do not uniformly prohibit the placement of authorized facilities within the county, city, or town, or uniformly prohibit the placement of authorized facilities within county, city, or town public rights-of-way, and do not have the effect of a barrier to entry as prohibited by the telecommunications act of 1996, P.L. 104-104 (110 Stat. 56); and

(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. 4. (1) The state department of transportation, counties, cities, and towns shall adopt procedures for the issuance of permits for authorized facilities. Under the adopted procedures, permits shall be issued or denied within one hundred twenty days from an applicant's filing of a complete application for a permit, except:

(a) Where required by specific procedures to assure coordination of work within the public right-of-way that provide reasonable opportunities for scheduling of work, including advance notice of planned work, that conform with section 6 of this act, and that do not impose unreasonable barriers to entry as prohibited by the telecommunications act of 1996, P.L. 104-104 (110 Stat. 56);

(b) With the agreement of the applicant;

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

(d) Where franchises 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; or

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

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

NEW SECTION. Sec. 5. (1) The Washington utilities and transportation commission shall develop and maintain a centralized registry where all authorized users must register. The registry shall act as a central source for registering information necessary to the management of public rights-of-way and shall reduce repetitive requirements of counties, cities, and towns.

(2) Authorized users shall register with the commission and provide information as determined necessary by the commission. The information required shall include proof of insurance, bonds, letters of indemnification, and other information capable of being collected once and maintained centrally.

(3) Information contained in the registry and specifically applicable to use of public rights-of-way shall be available to counties, cities, and towns upon request. Information contained in the registry shall not be duplicated through any requirements imposed by counties, cities, and towns.

NEW SECTION. Sec. 6. (1) The Washington utilities and transportation commission shall develop and maintain a centralized data base accessible via the internet to provide information about construction activities within public rights-of-way. The data base shall include information necessary to coordinate construction activities and reduce street openings and disruption within the public rights-of-way.

(2) Counties, cities, and towns opting to manage authorized users in public rights-of-way as provided in section 4(1)(a) of this act shall notify the commission in advance of all street opening and construction activities in the public rights-of-way and provide all necessary information to the commission.

NEW SECTION. Sec. 7. (1) Except as provided in subsection (2) of this section, a county, city, town, or the state department of transportation 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. Any moratorium that expires after the effective date of this section shall not be extended in whole or in part.

(2) A city or town incorporated after the effective date of this section may impose one moratorium that does not exceed one hundred eighty days and is not extendable.

Sec. 8. 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 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, or telecommunications company, as defined in RCW 80.04.010, except that (a) a tax authorized by RCW 35.21.865 may be imposed, (b) fees and franchise requirements authorized by federal law may be imposed on cable television services, as defined in section 1 of this act, and ((~~(b)~~)) (c) a fee may be charged to such businesses that 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.

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

(1) Any ((~~board of~~)) county ((~~commissioners~~)) legislative authority 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, and electric light lines, sewers, and any other such facilities. However, a franchise fee or any other fee or charge of whatever nature or description may not be imposed upon a telecommunications company as defined in RCW 80.04.010, except that (a) fees and franchise requirements authorized by federal law may be imposed on cable television services, as defined in section 1 of this act, and (b) a fee may be charged to such telecommunications service companies that recovers actual administrative expenses incurred by a county 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.

(2) Subsection (1) of this section does not prohibit franchise fees imposed on a telecommunications service company, by contract existing on the effective date of this section, with a county, for the duration of the contract.

NEW SECTION. Sec. 10. Sections 1 through 7 of this act constitute a new chapter in Title 80 RCW.