AN
ACT Relating to the use of city or town rights of way by telecommunications and
cable television providers; amending RCW 35.21.860; adding a new section to
chapter 35A.21 RCW; and adding a new chapter to Title 35 RCW.
BE IT
ENACTED BY THE LEGISLATURE OF THE STATE OF WASHINGTON:
NEW
SECTION. Sec. 1. The
definitions in this section apply throughout this chapter unless the context
clearly requires otherwise.
(1)
"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.
(2)
"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.
(3)
"Master permit" means the agreement in whatever form whereby a city
or town may grant general permission to a service provider to enter, use, and
occupy the right of way for the purpose of locating facilities. This
definition is not intended to limit, alter, or change the extent of the
existing authority of a city or town to require a franchise nor does it change
the status of a service provider asserting an existing state-wide grant based
on a predecessor telephone or telegraph company's existence at the time of the
adoption of the Washington state Constitution to occupy the right of way. For
the purposes of this subsection, a franchise, except for a cable television
franchise, is a master permit. A master permit does not include cable television
franchises.
(4)
"Personal wireless services" means commercial mobile services,
unlicensed wireless services, and common carrier wireless exchange access
services, as defined by federal laws and regulations.
(5)
"Right of way" means land acquired or dedicated 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.
(6)
"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 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.
(7)
"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.
(8)
"Use permit" means the authorization in whatever form whereby a city
or town may grant permission to a service provider to enter and use the
specified right of way for the purpose of installing, maintaining, repairing,
or removing identified facilities.
NEW
SECTION. Sec. 2. A
city or town may grant, issue, or deny permits for 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
pursuant to ordinances, consistent with this act.
NEW
SECTION. Sec. 3. (1)
Cities and towns may require a service provider to obtain a master permit. A
city or town may request, but not require, that a service provider with an
existing state-wide grant to occupy the right of way obtain a master permit for
wireline facilities.
(a)
The procedures for the approval of a master permit and the requirements for a
complete application for a master permit shall be available in written form.
(b)
Where a city or town requires a master permit, the city or town shall act upon
a complete application within one hundred twenty days from the date a service
provider files the complete application for the master permit to use the right
of way, except:
(i)
With the agreement of the applicant; or
(ii)
Where the master permit requires action of the legislative body of the city or
town and such action cannot reasonably be obtained within the one hundred
twenty day period.
(2)
A city or town may require that a service provider obtain a use permit. A city
or town must act on a request for a use permit by a service provider within
thirty days of receipt of a completed application, unless a service provider
consents to a different time period or the service provider has not obtained a
master permit requested by the city or town.
(a)
For the purpose of this section, "act" means that the city makes the
decision to grant, condition, or deny the use permit, which may be subject to
administrative appeal, 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.
(b)
Requirements otherwise applicable to holders of master permits shall be deemed
satisfied by a holder of a cable franchise in good standing.
(c)
Where the master permit does not contain procedures to expedite approvals and
the service provider requires action in less than thirty days, the service
provider shall advise the city or town in writing of the reasons why a
shortened time period is necessary and the time period within which action by
the city or town is requested. The city or town shall reasonably cooperate to
meet the request where practicable.
(d)
A city or town may not deny a use permit to a service provider with an existing
state-wide grant to occupy the right of way for wireline facilities on the
basis of failure to obtain a master permit.
(3)
The reasons for a denial of a master permit shall be supported by substantial
evidence contained in a written record. A service provider adversely affected
by the final action denying a master permit, or by an unreasonable failure to
act on a master permit as set forth in subsection (1) of this section, may
commence an action within thirty days to seek relief, which shall be limited to
injunctive relief.
(4)
A service provider adversely affected by the final action denying a use permit
may commence an action within thirty days 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.
(5)
A city or town shall:
(a)
In order to facilitate the scheduling and coordination of work in the right of
way, provide as much advance notice 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 clerk of the city or town within the past twelve
months of their intent to place facilities in the city or town. A city is not
liable for damages for failure to provide this notice. Where the city has
failed to provide notice of plans to open the right of way consistent with this
subsection, a city may not deny a use permit to a service provider on the basis
that the service provider failed to coordinate with another project.
(b)
Have the authority to require that facilities are installed and maintained
within the right of way in such a manner and at such points so as not to
inconvenience the public use of the right of way or to adversely affect the
public, health, safety, and welfare.
(6)
A service provider shall:
(a)
Obtain all permits required by the city or town for the installation,
maintenance, repair, or removal of facilities in the right of way;
(b)
Comply with applicable ordinances, construction codes, regulations, and
standards subject to verification by the city or town of such compliance;
(c)
Cooperate with the city or town in ensuring that facilities are installed,
maintained, repaired, and removed within the right of way in such a manner and
at such points so as not to inconvenience the public use of the right of way or
to adversely affect the public health, safety, and welfare;
(d)
Provide information and plans as reasonably necessary to enable a city or town
to comply with subsection (5) of this section, including, when notified by the
city or town, the provision of advance planning information pursuant to the
procedures established by the city or town;
(e)
Obtain the written approval of the facility or structure owner, if the service
provider does not own it, prior to attaching to or otherwise using a facility
or structure in the right of way;
(f)
Construct, install, operate, and maintain its facilities at its expense; and
(g)
Comply with applicable federal and state safety laws and standards.
(7)
Nothing in this section shall be construed as:
(a)
Creating a new duty upon city or towns to be responsible for construction of
facilities for service providers or to modify the right of way to accommodate
such facilities;
(b)
Creating, expanding, or extending any liability of a city or town to any
third-party user of facilities or third-party beneficiary; or
(c)
Limiting the right of a city or town to require an indemnification agreement as
a condition of a service provider's facilities occupying the right of way.
(8)
Nothing in this section creates, modifies, expands, or diminishes a priority of
use of the right of way by a service provider or other utility, either in
relation to other service providers or in relation to other users of the right
of way for other purposes.
NEW
SECTION. Sec. 4. (1) A
city or town shall not adopt or enforce regulations or ordinances specifically
relating to use of the right of way by a service provider that:
(a)
Impose requirements that regulate the services or business operations of the
service provider, except where otherwise authorized in state or federal law;
(b)
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;
(c)
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
(d)
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.
(2)
Nothing in this chapter, including but not limited to the provisions of
subsection (1)(d) of this section, limits the authority of a city or town to
regulate the placement of facilities through its local zoning or police power,
if the regulations do not otherwise:
(a)
Prohibit the placement of all wireless or of all wireline facilities within the
city or town;
(b)
Prohibit the placement of all wireless or of all wireline facilities within
city or town rights of way, unless the city or town is less than five square
miles in size and has no commercial areas, in which case the city or town may
make available land other than city or town rights of way for the placement of
wireless facilities; or
(c)
Violate section 253 of the telecommunications act of 1996, P.L. 104-104 (110
Stat. 56).
(3)
This section does not amend, limit, repeal, or otherwise modify the authority
of cities or towns to regulate cable television services pursuant to federal
law.
NEW
SECTION. Sec. 5. (1) A
city or town 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.
Any city or town implementing such a moratorium shall, at the 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.
NEW
SECTION. Sec. 6. (1)
Cities and towns 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.
(2)
Cities shall notify service providers as soon as practicable of the need for
relocation and shall specify the date by which relocation shall be completed.
In calculating the date that relocation must be completed, cities 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. Service providers shall
complete the relocation by the date specified, unless the city, 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.
(3)
Service providers may not seek reimbursement for their relocation expenses from
the city or town requesting relocation under subsection (1) of this section
except:
(a)
Where the service provider had paid for the relocation cost of the same
facilities at the request of the city or town within the past five years, the
service provider's share of the cost of relocation will be paid by the city or
town requesting relocation;
(b)
Where aerial to underground relocation of authorized facilities is required by
the city or town under subsection (1) 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 or town requiring
relocation; and
(c)
Where the city or town requests relocation under subsection (1) of this section
solely for aesthetic purposes, unless otherwise agreed to by the parties.
(4)
Where a project in subsection (1) of this section is 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 (1) of this section, provided that the
recovery is consistent with subsection (3) of this section and other applicable
laws.
(5)
A city or town 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.
NEW
SECTION. Sec. 7. A
city or town may require that a service provider that is constructing, relocating,
or placing ducts or conduits in public rights of way provide the city or town
with additional duct or conduit and related structures necessary to access the
conduit, provided that:
(1)
The city or town 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 or town 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 city or town 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 or town.
(2)
Except as otherwise agreed by the service provider and the city or town, the
city or town shall agree that the requested additional duct or conduit space
and related access structures will not be used by the city or town to provide
telecommunications or cable television service for hire, sale, or resale to the
general public.
(3)
The city or town 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 a city or town 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.
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 service provider for use of the right of way, except
((that)):
(a)
A tax authorized by RCW 35.21.865 may be imposed ((and));
(b)
A fee may be charged to such businesses or service providers 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;
(c)
Taxes permitted by state law on service providers;
(d)
Franchise requirements and fees for cable television services as allowed by
federal law; and
(e)
A site-specific charge pursuant to an agreement between the city or town and a
service provider of personal wireless services acceptable to the parties for:
(i)
The placement of new structures in the right of way regardless of height,
unless the new structure is the result of a mandated relocation in which case
no charge will be imposed if the previous location was not charged;
(ii)
The placement of replacement structures when the replacement is necessary for
the installation or attachment of wireless facilities, and the overall height
of the replacement structure and the wireless facility is more than sixty feet;
or
(iii)
The placement of personal wireless facilities on structures owned by the city
or town located in the right of way. However, a site-specific charge shall not
apply to the placement of personal wireless facilities on existing structures,
unless the structure is owned by the city or town.
A
city or town is not required to approve the use permit for the placement of a
facility for personal wireless services that meets one of the criteria in this
subsection absent such an agreement. If the parties are unable to agree on the
amount of the charge, the service provider may submit the amount of the charge
to binding arbitration by serving notice on the city or town. Within thirty
days of receipt of the initial notice, each party shall furnish a list of
acceptable arbitrators. The parties shall select an arbitrator; failing to
agree on an arbitrator, each party shall select one arbitrator and the two
arbitrators shall select a third arbitrator for an arbitration panel. The
arbitrator or arbitrators shall determine the charge based on comparable siting
agreements involving public land and rights of way. The arbitrator or
arbitrators shall not decide any other disputed issues, including but not
limited to size, location, and zoning requirements. Costs of the arbitration,
including compensation for the arbitrator's services, must be borne equally by
the parties participating in the arbitration and each party shall bear its own
costs and expenses, including legal fees and witness expenses, in connection
with the arbitration proceeding.
(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.
NEW
SECTION. Sec. 9. This
act shall not preempt specific provisions in existing franchises or contracts
between cities or towns and service providers.
NEW
SECTION. Sec. 10. 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 facilities
and rights of way under this chapter.
NEW
SECTION. Sec. 11.
Sections 1 through 7 and 9 of this act constitute a new chapter in Title 35
RCW.
