HomeMy WebLinkAbout02 0103 00
In the matter of x
An Ordinance Adopting A New Chapter x
Of the Jefferson County Code, Telecommunications x
Use of Jefferson County Rights-of-Way x
STATE OF WASHINGTON
COUNTY OF JEFFERSON
ORDINANCE NO.
02-0103-00
WHEREAS, Pursuant to RCW statutes and other lawful authority, Jefferson County has the authority to
regulate the use of its roads and other County property; and
WHEREAS, It is anticipated that an increasing number of telecommunication carriers and cable
operators will or have requested access to and the use of rights-of-way and/or public property; and
WHEREAS, In order to ensure reasonable access to the County road rights-of-way and/or public
property for telecommunication carriers and cable operators and to protect the public health, safety and welfare,
the Council finds that it is necessary to establish clear and nondiscriminatory local policy, standards and time
frames for the regulation of telecommunications carriers and telecommunications services;
WHEREAS, the County finds it is in the public interest to require the obtaining of registration, licenses,
franchises, and cable television franchises from the entities that use public property and rights-of-way; and
WHEREAS, on March 29,1999 a Determination of Non significance was issued for the
Telecommunications Use of Jefferson County Rights-of-Way ordinance;
NOW, THEREFORE, THE BOARD OF COUNTY COMMISSIONERS OF JEFFERSON
COUNTY, WASHINGTON, DOES HEREBY ORDAIN AS FOLLOWS:
SECTION 1. Telecommunications Use of Jefferson County Rights Of Way Ordinance is hereby
adopted to add new Chapters 13.60 through 13.92, to the Jefferson County Code as set forth below:
TELECOMMUNICATIONS USE OF JEFFERSON COUNTY RIGHTS OF WAY
CHAPTER: 13.60
CHAPTER: 13.64
CHAPTER: 13.68
CHAPTER: 13.72
CHAPTER: 13.76
CHAPTER: 13.80
CHAPTER: 13.84
CHAPTER: 13.88
CHAPTER: 13.92
CHAPTER 13.60
Section 13.60.010
Section 13.60.020
Telecommunications
Registration
Licenses
Telecommunications Franchises
Cable Franchises
Conditions of Grant
Construction Standards
Fees
Miscellaneous
TELECOMMUNICATIONS
Purpose
Definitions
I
Section 13.60.030
Section 13.60.040
Section 13.60.050
Section 13.60.060
Section 13.60.070
Section 13.60.075
Section 13.60.080
Section 13.60.090
Section 13.60.100
Section 13.60.110
Section 13.60.120
Section 13.60.130
Section 13.60.010
Registration and Fees
License and Fees
Franchise and Fees
Cable Franchise and Fees
Application to Existing Franchises
Application to Existing Telecommunications Carriers
Penalties
Other Remedies
Administration
Severability
Relationship to Other Ordinances, Policies
Acts at Grantee's Expense
Purpose. The purpose of this Ordinance is to:
a.
Establish a local policy concerning Telecommunications Carriers and Cable Operators;
Establish predictable, enforceable, clear and nondiscriminatory local guidelines, standards and
time frames for the exercise of local authority with respect to the regulation of
Telecommunications Carriers and Cable Operators;
b.
c.
Manage the Rights-of-Way in a manner that provides fair and equitable opportunities for
competition in telecommunications;
d.
Minimize unnecessary local regulation of Telecommunications Carriers and Cable Operators;
e.
Enable the provision of advanced and competitive Telecommunications Services and Cable
Services on the widest possible basis to the businesses, institutions and residents of the County;
f.
Permit and manage reasonable access to the public Rights-of-Way of the County for
telecommunications purposes on a competitively neutral basis;
g.
Conserve the limited physical capacity of the public Rights-of-Way held in public trust by the
County;
h.
Assure that the County's current and ongoing costs of granting and regulating private access to
and use of the public Rights-of-Way and/or public property are fully paid by the Persons seeking
such access and causing such costs;
1.
Secure fair and reasonable compensation to the County and the residents of the County, in a non-
discriminatory manner, for permitting private use of the Rights-of-Way and/or public property;
J.
Assure that all Telecommunications Carriers and Cable Operators providing facilities or services
within the Colmty comply with the ordinances, rules and regulations of the County;
k.
Assure that the County can continue to fairly and responsibly protect the public health, safety and
welfare; and
2
I.
Enable the County to discharge its public trust consistent with rapidly evolving federal and State
regulatory policies, industry competition and technological development.
Section 13.60.020
Definitions. Terms used in this Ordinance shall have the following meanings:
a.
Access channels means: (1) channel capacity designated for public, educational, and governmental
(PEG) use; and (2) facilities and equipment for the use of such channel capacity.
b.
Access facilities means materials and equipment for the use of such channel capacity.
c.
Addressability means the ability of a system allowing a franchisee to authorize customer terminals
to receive, cha11ge or to cancel any or all specified programming.
d.
Administrator means the Jefferson County Department of Public Works Director or his/her
designee.
e.
Affiliate means a Person that (directly or indirectly) owns or controls, is owned or controlled by,
or is under common ownership or control with another Person.
f.
Applicant means any person or entity that applies for a cable television franchise.
g.
Basic cable subscriber service means all signals of domestic television broadcast stations provided
to any Customer (except a signal secondarily transmitted by satellite carrier beyond the local service
area of such station, regardless of how such signal is ultimately received by the cable system) any
public, educational, and governmental programming required by the franchise to be carried on the
basic tier, and any other programming placed on the basic service tier by the cable operator.
h.
Board means the Jefferson County Board of Commissioners.
1.
Cable Acts means the Cable Communications Policy Act of 1984, as amended by the Cable
Television Consumer Protection and Competition Act of 1992, as amended by portions of The
Telecommunications Act of 1996, and as hereafter amended.
J.
Cablecast means the distribution of programming which originates within the facilities of the
cable television system.
k.
Cable Operator shall have the same meaning as defined in the Federal Cable Acts.
I.
Cable Service shall have the same meaning as defined in the Federal Cable Acts.
m.
Cable Television Facilities means the plant, equipment, structures, and property within the
County used to transmit, receive, distribute, provide or offer cable television service~
n.
Channel means a single path or section of the spectrum which carries a television signal.
3
-_.~
o.
Character generator means a device used to generate alphanumerical programming to be cablecast
on a cable channel.
p.
County means the municipal corporation known as County of Jefferson and/or the designated
employees, representatives or agents of Jefferson County.
q.
County Property means any real property in which the County has an ownership or possessory
interest, including, but not limited to, real property 1) owned in fee simple by the County, 2)
leased or tenanted by the County or 3) in which the County holds a duly-recorded easement,
license, permit, grant or right-of-way.
r.
Data Transmission means (1) movement of encoded information by means of electrical or
electronic transmission systems; (2) the transmission of data from one point to another over
communications channels.
s.
Dwelling units means residential living facilities as distinguished from temporary lodging
facilities such as hotel and motel rooms and dormitories, and includes single family residential
units and individual apartments, condominium units, mobile homes within mobile home parks,
and other multiple family residential units.
t.
Emergency means a condition of imminent danger to the health, safety, and welfare of property
or persons located within the County including, without limitation, damage to persons or
property from natural consequences, such as storms, earthquakes, riots or wars.
u.
Excess Capacity means the volume or capacity in any existing or future duct, conduit, manhole,
handhole or other Utility Facility within the right-of-way that is or will be available for use for
additional Telecommunications Facilities.
v.
FCC or Federal Communications Commission means the federal administrative agency, or
lawful successor, authorized to regulate and oversee Telecommunications Carriers, Services and
Cable Operators on a national level.
w.
Fiber Optics means the technology of guiding and projecting light for use as a communications
medium.
x.
Franchise means the authorization by the County, whether such authorization, or renewal thereof,
is designated as a franchise, permit, ordinance, resolution, contract, certificate or otherwise,
which authorizes construction and operation of a telecommunications system for the purpose of
offering cable service or other telecommunications service to subscribers.
y.
Franchisee means the person, firm or corporation to whom or which a Franchise, as herein above
defined, is granted by the Board of County Commissioners under this Ordinance and the lawful
successor, transferee or assignee of said person, firm or corporation subject to such conditions as
may be defined in County ordinance.
z.
Grantee means Telecommunications Carriers and Cable Operators granted rights and bound by
obligations as more fully described herein.
4
bb.
gg.
hh.
11.
JJ.
kk.
11.
aa.
Gross revenues means any and all receipts and revenues received directly or indirectly from
provision of cable service over the cable system including, but not limited to, other sources of
revenues such as local and National advertising and Home Shopping Channel revenues and
installation fees, except transactions related to real property receipts by a franchisee, any taxes but
not fees on services furnished by a franchisee imposed on any customer or used by any governmental
unit, agency or instrumentality and collected by a franchisee for such entity, and net uncorrectable
debts.
Headend means the electronic equipment located at the start of a cable system, usually including
antennas, preamplifiers, frequency converters, demodulators and related equipment.
cc.
Insertion point(s) means location(s) where institutional programming can be initiated for distribution
throughout the subscriber network.
dd.
Installation means the connection of the system from feeder cable to subscriber's terminals.
ee.
Interactive Services means services provided to subscribers where the subscriber either (1) both
receives information consisting of either television or other signals and transmits signals generated
by the subscriber or equipment under his/her control for the purpose of selecting what information
shall be transmitted to the subscriber or for any other purpose; or (2) transmits signals to any other
location for any purpose.
ff.
Internet Service Provider means a business that allows companies and individuals to connect to the
Internet by providing interface to the Internet backbone in return for a fee.
Institutional Networks (I-Nets) means a cable communications system designated principally for the
provision of non-entertainment services to schools, public agencies or other non-profit agencies,
separate and distinct from the customer network, or on secured channels of the customer network.
License means the authorization by the County, whether such authorization, or renewal thereof, is
designated as a license, permit, ordinance, resolution, contract, certificate or otherwise, which
authorizes construction and operation of a telecommunications system occupying Jefferson County
Right of Way for the purpose of offering cable service or other telecommunications service to
subscribers outside of Jefferson County.
Licensee means the Person (as that term is defined herein) to whom or which a License, as herein
above defined, is granted by the Board of County Commissioners pursuant to the terms of this
Ordinance and the lawful successor, transferee or assignee of said Person, subject to such conditions
as may be defined in County ordinance.
NCTA means the National Cable Television Association.
Ordinance means the Telecommunications Use of Jefferson County Rights Of Way, Chapters
13.60 through 13.88 of the Jefferson County Code.
Overhead Facilities means Telecommunications and Cable Television Facilities located above
the surface of the ground, including the underground supports and foundations for such facilities.
5
mm.
nn.
00.
pp.
qq.
rr.
ss.
tt.
uu.
vv.
ww.
xx.
Person includes corporations, companies, associations, joint stock companies, firms,
partnerships, limited liability companies, other entities, and individuals.
Proposal means the response, by an individual or organization, to a request by the County
regarding the provision of cable services; or an unsolicited plan submitted by an individual or
organization seeking to provide cable services in the County.
Rights-of-Way includes the surface of and space above and below any real property in the
County in which the County has any interest whether in fee or otherwise, or interest as a trustee
for the public, as they now or hereafter exist, including, but not limited to, all public streets,
highways, avenues, roads, reservoirs, alleys, sidewalks, tunnels, viaducts, bridges, skyways or
any other public place, area or property under the control of the County.
Service Connection means a connection made to a Telecommunications or Cable Television
Facility for the purpose of providing Telecommunications or Cable Services.
Service Repair means a repair made to a Service Connection.
State means the State of Washington.
Subscriber means a person or entity or user of the cablecast or cable service (as those terms are
defined in this section of this Ordinance) who lawfully receives such services or other service
therefrom with Franchisee's express permission
Surplus Space means that portion ofthe usable space on a utility pole which has the necessary
clearance from other pole users, as required by the orders and regulations of regulatory agencies
with applicable jurisdiction, to allow its use by a Telecommunications Carrier for a pole
attachment.
Telecommunications Carrier includes every Person that directly or indirectly owns controls,
operates or manages plant, equipment, structures, or property within the County, used or
intended to be used for the purpose of offering Telecommunications Service.
Telecommunications Facilities means the plant, equipment and property including, but not
limited to, cables, wires, conduits, ducts, pedestals, antennae, electronics, and other
appurtenances used to transmit, receive, distribute, provide or offer Telecommunications Service.
Telecommunications Service means the providing or offering for rent, sale, lease, or in exchange
for other value received, of the transmittal of voice, data, image, graphic, and video programming
information between or among points by wire, cable, fiber optics, laser, microwave, radio,
satellite or similar facilities, with or without benefit of any closed transmission medium.
Underground Facilities means Utility or Telecommunications and Cable Television Facilities
located under the surface of the ground, and associated above ground appurtenances including
but not limited to communication pedestals, and pad mounted electrical transformers, alone or in
combination, direct buried or in utility tunnels or conduits, excluding the underground
foundations or supports for Overhead Facilities.
6
yy.
zz.
aaa.
bbb.
Usable Space means the total distance between the top of a utility pole and the lowest possible
attachment point that provides the minimum allowable vertical clearance as specified in the
applicable orders and regulations of the WUTC.
Utility Facilities means privately, publicly or cooperatively owned plant, equipment and property
including, but not limited to, the poles, pipes, mains, conduits, ducts, cables, wires, plant and
equipment located under, on or above the surface of the ground within Rights-of-Way used for
the purpose of providing Utility or Telecommunications Services.
Utility Ordinance means the Accommodation of Utilities on Jefferson County Rights-of-Way
Ordinance, Chapter 13.56 Jefferson County Code.
Washington Utilities and Transportation Commission or WUTC means the state administrative
agency, or lawful successor, authorized to regulate and oversee Telecommunications Carriers and
Telecommunications Services in the State of Washington to the extent prescribed by law.
Section 13.60.030 Re~istration and Fees. Except as otherwise provided herein, all
Telecommunications Carriers engaged in the business of transmitting, supplying or furnishing of
Telecommunications Service originating, terminating or existing within the County shall register with the
County pursuant to this Ordinance and pay all the fees as provided herein.
Section 13.60.040 License and Fees. Except as otherwise provided herein, any
Telecommunications Carrier who desires to construct, install, operate, maintain or otherwise locate
Telecommunications Facilities in Rights-of-Way for the purpose of providing Telecommunications Service to
Persons and areas outside the County shall first obtain a license granting the use of such Rights-of-Way from
the County pursuant to this Ordinance and pay all the fees as provided herein.
Section 13.60.050 Franchise and Fees. Except as otherwise provided herein, any
Telecommunications Carrier who desires to construct, install, operate, maintain or otherwise locate
Telecommunications Facilities in Rights-of-Way and to also provide Telecommunications Service to Persons or
areas in the County, shall first obtain a franchise granting the use of such Rights-of-Way from the County
pursuant to this Ordinance and pay all the fees as provided herein.
Section 13.60.060 Cable Franchise and Fees. Except as otherwise provided herein, any
Telecommunications Carrier who desires to construct, install, operate, maintain or locate Telecommunications
Facilities in Rights-of-Way for the purpose of providing Cable Services shall first obtain a cable television
franchise from the County pursuant to this Ordinance and pay all the fees and/or taxes as provided herein and in
the cable television franchise.
Section 13.60.070 Application to Existin~ Franchises. Except as otherwise provided in this
Ordinance, and to the extent provided by law, this Ordinance shall have no effect on any Telecommunications
license, franchise or cable television franchise existing as of the date of adoption of this Ordinance until:
a.
b.
The expiration of said license, franchise, or cable television franchise; or
An amendment to an non-expired license, franchise or cable television franchise, unless both
7
parties agree to defer full compliance to a specific date not later than the present expiration date;
or,
c.
Any transaction which results in transfer of ownership or working control of the licensee,
franchisee, or cable television franchisee.
Notwithstanding the foregoing, all existing Telecommunications Carriers shall be subject to registration
requirements provided in Section 13.64.010 within 120 days of the effective date of this Ordinance.
Section 13.60.075 Application to Existine Telecommunications Carriers. Notwithstanding the
foregoing, the requirements ofthis Ordinance shall apply to any Telecommunications Carrier or Cable Operator
who currently occupies Rights-of-Way without a license, cable television franchise, franchise or other
agreement with the County. Any such Telecommunications Carrier or Cable Operator shall register or apply for
a license, franchise or cable television franchise as provided by this Ordinance within 120 days of the effective
date of this Ordinance.
Section 13.60.080 Penalties. Civil Infractions. The violation of any provision ofthis Ordinance is
designated as a Class 1 Civil Infraction pursuant to Chapter 7.80 RCW.
Section 13.60.090 Other Remedies. Nothing in this Ordinance shall be construed as limiting any
other remedies that the County may have, at law or in equity, for enforcement of this Ordinance.
Notwithstanding the existence or use of any other remedy, the Prosecuting Attorney's office may seek legal or
equitable relief to enjoin any acts or practices and abate any conditions which constitute or will constitute a
violation of this Ordinance or other regulations herein adopted.
Section 13.60.100 Administration. The Administrator is authorized to administer this Ordinance
and to establish further rules, regulations and procedures for the implementation of this Ordinance.
Section 13.60.110
Severability.
a.
If any section, subsection, sentence, clause, phrase, or other portion of this Ordinance, or its
application to any Person is, for any reason, declared invalid, in whole or in part by any court or
agency of competent jurisdiction, said decision shall not affect the validity of the remaining
portions hereof.
b.
If it should appear that any provision of this Ordinance is in conflict with any statutory provision
of the State of Washington, said provision which may conflict therewith shall be deemed
inoperative and null and void insofar as it may be in conflict therewith, and shall be deemed
modified to conform to such statutory provision.
Section 13.60.120
Relationship to Other Ordinances. Policies.
a.
In addition to the provisions of this Ordinance, Chapter 13.56 Jefferson County Code, the
Ordinance Establishing Accommodations of Utilities upon Jefferson County Rights-of-Way, shall
apply to any Telecommunications Carrier and Cable Operator who desires to construct, install,
operate, maintain, repair or otherwise locate Telecommunications Facilities on County Rights-of-
Way. In the event of a conflict between this Ordinance and the Accommodations of Utilities
8
upon Jefferson County Rights-of-Way Ordinance, the Accommodations of Utilities upon Jefferson
County Rights-of-Way Ordinance shall control.
b.
In addition to the provisions ofthis Ordinance, any Telecommunications Carrier and Cable
Operator who desires to construct, install, operate, maintain, repair or otherwise locate
Telecommunications Facilities or Cable Television Facilities on County park property shall also
comply with the County's adopted policies, procedures and requirements for non-recreational use
of Jefferson County park property.
In addition to the provisions of this Ordinance, any wireless communication facilities, as defined by
the Jefferson County Wireless Services Facilities Ordinance Regulating
The Location, Placement and Design of Such Facilities shall be subject to applicable zoning regulations
and permitting requirements as established by other pertinent Jefferson County Code provisions.
c.
d.
Nothing herein shall limit or otherwise affect the authority of the County to require a lease for
any use, occupation, construction, installation, maintenance or location upon any property owned
in fee by the County.
Section 13.60.130 Acts at Grantee's Expense. Any act that a Grantee is or may be required to
perform under this Ordinance, or under the terms of a license, franchise, cable television franchise or applicable
law shall be performed at the Grantee's expense.
CHAPTER 13.64
REGISTRATION
Section 13.64.010
Section 13.64.020
Section 13.64.030
Registration Required
Purpose of Registration
Exception to Registration
Section 13.64.010 Reeistration Required. Except as provided in Section 13.64.030 all
Telecommunications Carriers having Telecommunications Facilities and all Cable Operators within the
unincorporated areas of the County shall register with the County on forms provided by the Administrator. Said
registration forms shall include the following:
a.
The identity and legal status of the registrant.
b.
The name, address and telephone number of the officer, agent or employee responsible for the
accuracy of the registration statement.
c.
A narrative and graphic description of registrant's existing or proposed Telecommunications
Facilities within the County.
d.
A description of the Telecommunications Service that the registrant intends to offer or provide,
or is currently offering or providing, to Persons, firms, businesses or institutions within the
County.
e.
Information sufficient for the County to determine whether the registrant is subject to licensing
9
or franchising under this Ordinance.
Information sufficient for the County to determine whether the transmission, origination or
receipt of the Telecommunications Services provided or to be provided by the registrant
constitutes an occupation or privilege subject to any County tax, permit, license or franchise fee.
f.
A written statement attesting, to the Administrator's satisfaction, that the applicant is in
compliance with all requirements of the Washington Utilities and Transportation Commission
pursuant to WAC 480-121.
g.
h.
A written statement attesting, to the Administrator's satisfaction, that the applicant is in receipt
of all FCC-required permits, operating licenses, and approvals
Such other information as the County may reasonably require. After submission of the required
registration information under this Section, should any of the information provided to the County
change, the registrant shall provide written notice and identify the revision(s) to the
Administrator within 30 days of the effective change date.
1.
Section 13.64.020
Purpose of Reeistration. The purpose of registration is to:
Provide the County with accurate and current information concerning the Telecommunications
Carriers and Cable Operators who offer or provide Telecommunications Services or that own or
operate Telecommunications Facilities;
a.
b.
Assist the County in efficient and non-discriminatory implementation of this Ordinance;
c.
Assist the County in the collection and enforcement of any County taxes, franchise fees, license
fees or charges that may be due to the County.
Section 13.64.030 Exception to Reeistration. A Person providing Telecommunications Services
solely to itself, its Affiliates or members between points in the same building, or between closely located
buildings under common ownership or control, is excepted ftom the registration requirements pursuant to this
Ordinance provided that such person does not use or occupy any of the County Rights of Way.
CHAPTER 13.68
LICENSES
Section 13.68.010
Section 13.68.020
Section 13.68.030
Section 13.68.040
Section 13.68.050
Section 13.68.060
Section 13.68.070
Section 13.68.080
Section 13.68.090
Section 13.68.100
License to Use rights of Way to Provide Service Outside County
License Application
Determination by the County
Agreement
Nonexclusive Grant
Use Granted
Term of Grant
License Route
Construction Permits
Compensation to County
10
Section 13.68.110
Section 13.68.120
Section 13.68.130
Section 13.68.140
Section 13.68.150
Service to County Users, License is not a Franchise
Amendment of Grant
Renewal Applications
Renewal Determinations
Obligation to Cure as a Condition of Renewal
Section 13.68.010 License to Use Riehts of Way to Provide Service Outside County. A
telecommunications carrier who provides telecommunication services exclusively to persons or areas outside
Jefferson Count, but whose telecommunication facilities occupy Jefferson County Right of Way shall apply for
and obtain a license as set forth in this chapter.
Section 13.68.020 License Application. Any Person requiring a license hereunder shall apply using
a form provided by the Administrator. Applications shall be submitted to the Administrator, who shall
determine when and if the application is complete.
Section 13.68.030 Determination by the County. Within 90 days following receipt of a complete
application, the Board of County Commissioners shall make a determination on behalf of the County granting
or denying the application in whole or in part. If the application is denied, the determination shall include the
reasons for denial. The following criteria shall apply when determining whether to grant or deny the
application:
a.
The financial and technical ability ofthe applicant to fulfill its obligations under a license.
b.
The legal status of the applicant.
c.
The capacity of the Rights-of-Way to accommodate the applicant's facilities.
d.
The capacity of the Rights-of-Way to accommodate additional Telecommunications Facilities
and Cable Television Facilities if the application is granted.
e.
The damage or disruption, if any, to public or private facilities, improvements, services, travel or
landscaping if the application is granted, giving consideration to an applicant's willingness and
ability to mitigate and/or repair same.
f.
The public interest in minimizing the cost and disruption of construction within the Rights-of-
Way.
g.
The service that applicant will provide to the region.
h.
The effect, if any, on general public health, safety and welfare in the County's sole opinion if the
application is granted.
1.
The availability of alternate routes or locations for the proposed facilities.
J.
Applicable federal, State and local laws, regulations, rules and policies.
k.
Such other factors as may demonstrate that the grant to use the Rights-of-Way will serve the
11
community interest.
Section 13.68.040 Aereement. No license granted hereunder shall be effective until the applicant
and the Board have executed a written agreement setting forth the particular items and provisions under which
the license to occupy and use Rights-of-Way will be granted. All licenses granted pursuant to this Ordinance
shall contain substantially similar terms which, taken as a whole and considering relevant characteristics of
applicants, do not provide more or less favorable terms and conditions than those required of other licensees.
Section 13.68.050 Nonexclusive Grant. No license granted hereunder shall confer any exclusive
right, privilege or license to occupy or use the Rights-of-Way for delivery of Telecommunications Services or
any other purposes.
Section 13.68.060
Use Granted.
a.
No license granted hereunder shall convey any right, title or interest in Rights-of-Way but shall
be deemed a license only to use and occupy the Rights-of-Way for the limited purposes and term
stated in the grant.
b.
No license granted hereunder shall authorize or excuse a licensee from securing such further
easements, leases, permits or other approvals as may be required to lawfully occupy and use
Rights-of- Way.
c.
No license granted hereunder shall be construed as any warranty of title.
Section 13.68.070 Term of Grant. Unless otherwise specified in a license agreement, a license
granted hereunder shall be in effect for a term of not more than five (5) years.
Section 13.68.080 License Route. A license granted hereunder shall be limited to a grant of specific
Rights-of-Way and defined portions thereof, as may be indicated in the license agreement.
Section 13.68.090 Construction Permits. All licensees are required to obtain construction permits
and pay all fees as required by the County, provided, however, that nothing in this Ordinance shall prohibit the
County and a licensee from agreeing to alternative plan review, permit and construction procedures in a license
agreement, and further provided that such alternative procedures provide substantially equivalent safeguards for
reasonable construction practices.
Section 13.68.100 Compensation to County. Each license granted hereunder is subject to the
County's right, to the extent permitted by law, to fix a fair and reasonable compensation to be paid for use of
property pursuant to the license, provided nothing in this Ordinance shall prohibit the County and a licensee
from agreeing upon the compensation to be paid. In the absence of such an agreement, such compensation shall
be in an amount established by the Board.
Section 13.68.110 Service to County Users: License is not a Franchise. A licensee may be
permitted to offer or provide Telecommunications or Cable Services to Persons or areas within the County only
after submitting an application for franchise approval and upon obtaining a franchise pursuant to this Ordinance.
Section 13.68.120
Amendment of Grant.
12
The licensee shall apply for an amendment to an existing license when the licensee desires to
extend or locate its Telecommunications Facilities in Rights-of-Way which are not included in its
existing license or when it provides services beyond those authorized in the license.
a.
The County shall grant a license amendment without further application, if the County directs a
Licensee to locate or relocate its Telecommunications Facilities in Rights-of-Way not included in
an existing license.
b.
Section 13.68.130 Renewal Applications. A licensee that desires to renew its license hereunder
shall, not more than 180 days nor less than 90 days before expiration of the current license, file an application
for renewal of its license, and shall include the following information:
a.
The information required pursuant to the original license application as set forth in Section
13.68.020.
b.
Any other information required by the Administrator.
Section 13.68.140 Renewal Determinations. Within 120 days after receiving a complete renewal
application hereunder, the Board shall make a determination on behalf of the County granting or denying the
renewal application in whole or in part. Ifthe renewal application is denied, the determination shall include the
reasons for non-renewal. The criteria identified in Section 13.68.030 shall apply when determining whether to
grant or deny the application. The Board may further consider the applicant's history of compliance with the
requirements of this Ordinance and the license agreement.
Section 13.68.150 Obli~ation to Cure as a Condition of Renewal. No license shall be renewed
until any ongoing violations or defaults in the licensee's performance of the license agreement, of the
requirements of this Ordinance, and all applicable laws, statutes, codes, ordinances, rules and regulations have
been cured, or a plan detailing the corrective action to be taken by the licensee has been approved by the
Administrator. Failure to comply with the terms of an approved plan shall be grounds for non-renewal or
revocation of the license.
CHAPTER 13.72
TELECOMMUNI CA TI 0 NS FRANCHISES
Section 13.72.010
Section 13.72.020
Section 13.72.030
Section 13.72.040
Section 13.72.050
Section 13.72.060
Section 13.72.070
Section 13.72.080
Section 13.72.090
Section 13.72.100
Section 13.72.110
Section 13.72.120
Franchise
Franchise Application
Determination by the County
Agreement
Nonexclusive Grant
Use Granted
Term of Grant
Franchise Territory
Construction Permits
Compensation to County
Nondiscrimination
Service to the County
13
Section 13.72.130
Section 13.72.140
Section 13.72.150
Section 13.72.160
Amendment of Grant
Renewal Applications
Renewal Determinations
Obligation to Cure as a Condition of Renewal
Section 13.72.010 Franchise. To the extent permitted by law, a telecommunications franchise shall
be required of any Telecommunications Carrier who currently occupies or desires in the future to occupy
Rights-of-Way and to provide Telecommunications Services to any Person or area in the County.
Section 13.72.020 Franchise Application. Any Person requiring a franchise shall file the standard
application provided by the Administrator. The Administrator shall determine when and if the application is
complete.
Section 13.72.030 Determination by the County. Within 120 days following receipt of a complete
application, the Board of County Commissioners shall make a determination granting, denying, or requesting
additional substantive information. If the application is denied, in whole or in part, the determination shall
include the reasons for denial. The criteria identified below shall apply when determining whether to grant or
deny the application.
a.
The financial and technical ability of the applicant to fulfill its obligations under a franchise.
b.
The legal status of the applicant.
c.
The capacity of the Rights-of-Way to accommodate the applicant's facilities.
d.
The capacity of the Rights-of-Way to accommodate additional Telecommunications Facilities
and Cable Television Facilities ifthe application is granted.
e.
The damage or disruption, if any, to public or private facilities, improvements, services, travel or
landscaping if the application is granted, giving consideration to an applicant's willingness and
ability to mitigate and/or repair same.
f.
The public interest in minimizing the cost and disruption of construction within the Rights-of-
Way.
g.
The service that applicant will provide to the County.
h.
The effect, if any, on general public health, safety and welfare in the County's sole opinion if the
application is granted.
1.
The availability of alternate routes or locations for the proposed facilities.
J.
Applicable federal, State and 10callaws, regulations, rules and policies.
k.
Such other factors as may demonstrate that the grant to use the Rights-of-Way will serve the
community interest.
14
Section 13.72.040 Aereement. No franchise shall be granted hereunder unless the applicant and the
Board have executed a written agreement setting forth the particular terms and provisions under which the
franchise to occupy and use Rights-of-Way will be granted. All franchises granted pursuant to this Ordinance
shall contain substantially similar terms and conditions which, taken as a whole and considering relevant
characteristics of the applicants, do not provide more or less favorable terms and conditions than those required
of other franchisees.
Section 13.72.050 Nonexclusive Grant. No franchise granted hereunder shall confer any exclusive
right, privilege or franchise to occupy or use the Rights-of-Way for delivery of Telecommunications Services or
any other purposes.
Section 13.72.060
Use Granted.
a.
No franchise granted hereunder shall convey any right, title or interest in the Rights-of-Way but
shall be deemed a franchise only to use and occupy the Rights-of-Way for the limited purposes
and term stated in the grant.
b.
No franchise granted hereunder shall authorize or excuse a franchisee from securing such further
easements, leases, permits or other approvals as may be required to lawfully occupy and use
Rights-of-Way.
c.
No franchise granted hereunder shall be construed as any warranty of title.
Section 13.72.070 Term of Grant. Unless otherwise specified in a franchise agreement, a
telecommunications franchise granted hereunder shall be valid for a term of not more than ten (10) years.
Section 13.72.080 Franchise Territory. A telecommunications franchise granted hereunder may be
limited to the specific geographic area of the County to be served by the franchisee, and the specific Rights-of-
Way and portions thereof, as may be identified in the franchise agreement.
Section 13.72.090 Construction Permits. All franchisees are required to obtain permits and pay all
fees for Telecommunications Facilities and Cable Television Facilities as required by the County, provided,
however, that nothing in this Ordinance shall prohibit the County and a franchisee from agreeing to alternative
plan review, permit and construction procedures in a franchise agreement, and further provided that such
alternative procedures provide substantially equivalent safeguards for reasonable construction practices.
Section 13.72.100 Compensation to County. Each franchise granted hereunder is subject to the
County's right, to the extent permitted by law, to fix a fair and reasonable compensation to be paid for use of
property pursuant to a franchise, provided nothing in this Ordinance shall prohibit the County and a franchisee
from agreeing upon the compensation to be paid. In the absence of such an agreement, such compensation shall
be in an amount established by the Board.
Section 13.72.110 Nondiscrimination. A franchisee shall, without discrimination and as permitted
by law as to the terms, conditions, rates or charges for franchisee's services, make its Telecommunications
Services available to any customer within its franchise area who shall request such service, provided, however,
that nothing in this Ordinance shall prohibit a franchisee from making any reasonable classifications among
differently situated customers.
15
Section 13.72.120 Service to the County. A franchisee shall make its Telecommunications Services
available to the County Government and Agencies at its most favorable rate for similarly situated users
Section 13.72.130
Amendment of Grant.
a.
A new franchise application and grant shall be required of any Telecommunications Carrier that
desires to extend its franchise territory or to locate its Telecommunications Facilities in Rights-
of- W ay which are not included in an existing franchise.
b.
If ordered by the County to locate or relocate its Telecommunications Facilities in Rights-of-
Way not included in an existing franchise, the County shall grant a franchise amendment without
further application.
Section 13.72.140 Renewal Applications. A franchisee that desires to renew its franchise hereunder
shall, not less than 180 days before expiration of the current franchise, file an application with the County for
renewal of its franchise, and shall include the following information:
a.
The information required pursuant to the original franchise application.
b.
Any other information required by the Administrator. The Administrator shall determine when
and if the application is complete.
Section 13.72.150 Renewal Determinations. Within 120 days after receiving a complete renewal
application, the Board shall make a determination on behalf of the County granting or denying the renewal
application in whole or in part. If the renewal application is denied, the determination shall include the reasons
for non-renewal. The criteria enumerated in Section 13.72.030 shall apply when determining whether to grant
or deny the application. The Board may further consider the applicant's history of compliance with the
requirements of this Ordinance and the franchise agreement.
Section 13.72.160 Oblieation to Cure as a Condition of Renewal. No franchise shall be renewed
until any ongoing violations or defaults in the franchisee's obligations under the franchise agreement, the
requirements of this Ordinance, and all applicable laws, statutes, codes, ordinances, rules and regulations have
been cured, or a plan detailing the corrective action to be taken by the franchisee has been approved by the
Administrator. Failure to comply with the terms of an approved plan shall be grounds for non-renewal or
immediate revocation of the franchise.
CHAPTER 13.76
CABLE FRANCHISES
Section 13.76.010
Section 13.76.020
Section 13.76.030
Section 13.76.040
Section 13.76.050
Section 13.76.060
Grant of Cable Television Franchise
Cable Television Franchise Required
Length of Cable Television Franchise
Use Granted
Application
Franchise Issuance
16
Section 13.76.070
Section 13.76.080
Section 13.76.090
Section 13.76.100
Section 13.76.110
Section 13.76.120
Section 13.76.130
Section 13.76.140
Section 13.76.150
Section 13.76.160
Section 13.76.170
Section 13.76.180
Section 13.76.190
Section 13.76.200
Section 13.76.210
Section 13.76.220
Section 13.76.230
Section 13.76.240
Section 13.76.250
Section 13.76.260
Section 13.76.270
Section 13.76.280
Section 13.76.290
Section 13.76.300
Section 13.76.310
Section 13.76.320
Section 13.76.330
Section 13.76.340
Section 13.76.350
Section 13.76.360
Section 13.76.370
Section 13.76.380
Section 13.76.390
Franchise Renewal
Acceptance
Rates
Customer Service
Failure to Improve Customer Service
Coverage
Refunds for Outages
Construction Notification
Maintenance Requirements
Building Moving
Tree Trimming
Public Buildings
Emergency Override
Record Inspection
Periodic Meetings
Evaluations and Reports
Interconnection
Internet Accessibility
Institutional Networks
Access and Institutional Network Equipment
Parental Control Devices
Technical Standards
Penalties
Extraordinary Installation
Continuity of Service
Termination of Subscriber Services
External Franchising Costs
Cable Television Franchisee Subject to Other Laws, Police Powers
Interpretation of Cable Television Franchise Terms
Operation of a Cable System without a Cable Televisions Franchise
Eminent Domain
Exclusive Contracts and Anti-Competitive Acts Prohibited
Cable Television Franchise Fees
Section 13.76.010 Grant of Cable Television Franchise. The Board may grant one or more cable
television franchises containing such provisions as are reasonably necessary to protect the public interest, and
each such cable television franchise shall be awarded in accordance with and subject to the provisions ofthis
Ordinance. This Ordinance may be amended from time to time, and in no event shall this Ordinance be
considered a contract between the County and a cable television franchisee such that the County would be
prohibited from amending any provision hereof, provided no such amendment shall in any way impair any
contract right or increase obligations of a cable television franchisee under an outstanding and effective cable
television franchise, except in the lawful exercise of the County's police power.
Section 13.76.020 Cable Television Franchise Required. No Person may construct, operate or
maintain a cable system or provide Cable Service over a cable system within the County without a cable
television franchise granted by the Board authorizing such activity. No Person may be granted a cable
television franchise without having entered into a cable television franchise agreement with the Board pursuant
to this Ordinance. For the purpose of this provision, the operation of part or all of a cable television system
17
within the County means the use or occupancy of Rights-of-Way by facilities used to provide Cable Service.
To the extent permitted by law, a system used to provide telephone service also used to provide Cable Service
shall be subject to this Ordinance and shall also require a Cable television franchise. Services similar to Cable
Service, such as, but not limited to, Open Video Systems, shall also be subject to this Ordinance, and subject to
substantially similar terms and conditions as those contained in franchise agreement(s) issued to Cable
Operator(s) in the County with respect to franchise fee obligations, public, educational, and governmental
access programming obligations, and all other franchise obligations to the extent provided by law. Conversion
of a cable system to an Open Video System in accordance with applicable FCC regulations shall not alter or in
any way limit enforceability of the franchise agreement authorizing the operation of such system. A system
shall not be deemed as operating within the County even though service is offered or rendered to one or more
subscribers within the County, if no Right-of-Way is used or occupied. All cable television franchises granted
pursuant to this Ordinance shall contain substantially similar terms and conditions, which, taken as a whole
and considering relevant characteristics ofthe applicants, do not provide more or less favorable terms and
conditions than those required of other cable television franchisees.
Section 13.76.030 Leneth of Cable Television Franchise. The term of a cable television franchise
will be specified in the franchise agreement. No cable television franchise shall be granted for a period of more
than ten (10) years.
Section 13.76.040
Use Granted.
a.
A cable television franchise authorizes use of Rights-of- W ay for installing, operating and
maintaining cables, wires, lines, optical fiber, underground conduit and other devices necessary
and appurtenant to the operation of a cable system to provide Cable Services within the County,
but does not expressly or implicitly authorize a cable television franchisee to provide service to,
or install a cable system on private property without owner consent, or to use publicly or
privately owned poles, ducts or conduits without a separate agreement with the owners.
b.
A cable television franchise shall not mean or include any exclusive right for the privilege of
transacting and carrying on a business within the County as generally required by the ordinances
and laws of the County. A cable television franchise shall not confer any authority to provide
Telecommunications Services or any other communications services besides Cable Services, and
to the extent permitted by law, a separate franchise shall be required for the provision of
Telecommunications Services in addition to the cable television franchise. A cable television
franchise shall not confer any implicit rights other than those mandated by federal, State or local
law.
c.
All cable television franchises issued by this County shall be nonexclusive and will not explicitly
or implicitly: preclude the issuance of other cable television franchises to operate cable systems
within the County; affect the County's right to authorize use of Rights-of-Way by other Persons
to operate cable systems or for other purposes as it determines appropriate; or affect the County's
right to itself construct, operate or maintain a cable system, with or without a cable television
franchise.
d.
Once a cable television franchise has been accepted and executed by the County and a cable
television franchisee, such cable television franchise shall constitute a valid and enforceable
agreement between the cable television franchisee and the County, and the tenns, conditions and
provisions of such cable television franchise, subject to this Ordinance and all other duly enacted
18
and applicable laws and regulations, shall define the rights and obligations of the cable television
franchisee and the County relating to the cable television franchise.
All privileges prescribed by a cable television franchise shall be subordinate to any prior lawful
occupancy of the Rights-of-Way and the County reserves the right to reasonably designate where
a cable television franchisee's facilities are to be placed within the Rights-of-Way through its
generally applicable permit procedures.
e.
A cable television franchise shall be a privilege that is in the public trust and Personal to the
original cable television franchisee. No cable television franchise transfer shall occur without the
prior written consent of the Board upon application made by the cable television franchisee
pursuant to this Ordinance, the cable television franchise, and applicable law, which consent
shall not be unreasonably withheld, and any purported cable television franchise transfer made
without application and prior written consent shall be void and shall be cause for the County to
revoke the cable television franchise.
f.
In addition to periodic meetings, the County may require reasonable evaluation sessions at any
time during the term of a franchise. It is intended that such evaluations cover areas such as
customer service, response to the community's cable-related needs, and a franchisee's
performance under and compliance with the terms of a franchise.
g.
h.
Report of Activities. A franchisee shall furnish, upon request, a report of its activities as appropriate.
Such report shall include:
1.
Most recent annual report.
2.
A copy of the 10- K report, if required by the Securities and Exchange Commission.
3.
The number of homes passed.
4.
The number of customers with basic services.
5.
The number of customers with enhanced basic services.
6.
The number of customers with premium services.
7.
The number of customers with ala carte services.
8.
The number of customers with pay-per-view services.
9.
The number of hook-ups in period.
10.
The number of disconnects in period.
11.
Total number of miles of fiber optic cable and total numbers of miles of coaxial cable within
Jefferson County.
12.
A summary of complaints received by category, length of time taken to resolve and action
19
taken to provide resolution.
13.
Copies of all FCC complaint logs.
A statement of its current billing practices and a sample copy of the bill format.
14.
15.
A current copy of its customer service contract.
16.
Report on operations. Such other reports with respect to its local operation, affairs,
transactions or property that may be appropriate.
17. Ifnot held in fee ownership by franchisee, evidence of utility pole contract agreements with
public or private owners of utility pole, ducts, or conduits utilized.
Section 13.76.050 Application. An applicant for a franchise either to construct or operate and
maintain a cable communications system within the County shall file an application in a form prescribed by the
County, accompanied by a non-refundable filing fee in an amount determined by the County.
Section 13.76.060 Franchise Issuance. Prior to the granting of a Cable television franchise, the
Board of County Commissioners shall conduct a public hearing to determine the following:
a.
8.
Initial Franchise.
1. That the public will be benefited by the granting of a Franchise to the Applicant;
2.
That the Applicant has the requisite financial and technical resources and capabilities to
build, operate and maintain a Cable Television System in the area;
3.
That the Applicant has no conflicting interests, either financial or commercial, which will
be contrary to the interests of the County;
4.
That the Applicant will comply with all terms and conditions placed upon a franchisee by
this Ordinance;
5.
That the Applicant is capable of complying with all relevant federal, state, and local
regulations, codes and standards pertaining to the construction, operation and
maintenance of the Cable television facilities and systems incorporated in its application
for a Franchise;
6.
That the Public Rights-of-Way have the capacity to accommodate the Cable Television
System;
7.
That the proposed Franchise is consistent with the County's present and future use of the
Public Rights-of-Way to be used by the Cable Television System;
That the benefit to the public from the Cable Television System outweighs the potential
disruption to existing users of the Public Rights-of-Way to be used by the Cable
Television System, and the resultant inconvenience which may occur to the public; and
20
b.
9.
That all other conditions resulting from the grant of the Franchise have been considered
by the County and that the County determines that the grant is still in the public's best
interest.
Renewal Franchise.
1.
That the franchisee has substantially complied with the material terms of the existing
Franchise.
2.
That the quality of the franchisee's previous service including signal quality, response to
consumer complaints, and billing practices, but without regard to the mix or quality of
cable services or other services provided over the system, has been reasonable in light of
community needs.
3.
That a franchisee's proposal is reasonable to meet the future cable-related community
needs and interests, taking into account the cost of meeting such needs and interests.
4.
That a franchisee has the financial, legal, and technical ability to provide the services,
facilities, and equipment as set forth in a franchisee's proposal.
5.
That such renewal is consistent with Section 626 ofthe Federal Cable Act,
Section 13.76.070 Franchise Renewal. The provisions of Section 626 of The Act or other
applicable Federal or State law will govern the actions of the County and a franchisee in proceedings relating to
franchise renewal. The County expressly reserves the right to establish guidelines and monitoring systems in
accordance with the provisions of The Act to measure the effectiveness of a franchisee's performance during the
term of such franchise.
Section 13.76.080
Acceptance.
a.
No franchise granted pursuant to the provisions of this Ordinance shall become effective unless
and until the ordinance granting same has become effective.
b.
Within sixty (60) days after the effective date of the Ordinance awarding a franchise, or within
such extended period of time as the Commissioners in their discretion may authorize, a
franchisee shall file with the Clerk of the Board its written acceptance of the franchise, in a form
satisfactory to the Prosecuting Attorney's Office, together with proof of the bond and insurance
policies as required.
Section 13.76.090 Rates.
Prior to implementation of any change in rates or charges for any service or equipment provided by a franchisee,
a franchisee shall provide the County and all subscribers a minimum of thirty (30) days prior written notice of
such change. Subject to Federal, State and local law, the County may regulate the approval of increases of rates
or charges for providing cable service and prescribe reasonable rate approval procedures.
Section 13.76.100 Customer Service. A franchisee shall comply with the customer service
requirements of Section 632 of the Cable Communications Policy Act of 1984 (47 US.c. S 552), as amended
21
by the Cable Television Consumer Protection and Competition Act of 1992, and all applicable standards and
regulations adopted by the Federal Communications Commission (FCC) pursuant thereto.
The County reserves the right to enact or enforce any customer protection law, containing more stringent
standards, to the extent not specifically preempted by the FCC in 47 CFR 76.309.
Section 13.76.110 Failure to Improve Customer Service. The County or its designee shall review
telephone response and customer service information with a franchisee. It will be assumed that improvements
will be made by a franchisee in the areas of non-compliance from the last reporting period. Failure to do so may
result in the calling of a public hearing by the County Commissioners for the purpose of examining the reasons,
if any, why such improvements were not achieved by a franchisee. Further action may be taken in accordance
with FCC violation procedures.
An unsatisfactory record will also result in the hearings being made part of an exhibit under Section
626(c)(1)(A) and (B) of The Act, alleging that such practices have failed to conform with future refranchising
requirements as stated therein. In addition a franchisee's Corporate office, in all instances, shall be advised of
the County's findings.
Section 13.76.120 Covera~e. A franchisee shall provide cable television service in the entire
franchise area except that it is not required to furnish cable to those areas having cable television service
provided by another franchisee. If full coverage does not now exist, a franchisee shall complete such wiring and
be in a position to offer cable reception to all residents within twelve (12) months from the grant of the franchise
subject to Extraordinary Installation Section 13.76.300.
In those areas which are adjacent to an unbuilt area, the franchisee with the nearest trunk and/or distribution line
will be responsible to furnish cable service subject to the same conditions.
Section 13.76.130 Refunds for Outaees. After notification from a subscriber of an outage,
franchisee will credit the Subscriber's account ifthe Subscriber was without service for a period exceeding
twenty-four (24) hours provided franchisee is notified by the Subscriber within thirty (30) days.
Section 13.76.140 Construction Notification. At least fifteen (15) days prior to the intended
construction, a franchisee shall inform all residents in the affected area that a construction project will
commence, the dates and nature of the project, and a toll-free telephone number which the subscriber may call
for further information. A pre-printed door hanger may be used for this purpose.
a.
Notice of Entry on Private Property. At least twenty-four (24) hours prior to entering private
property or streets or public easements adjacent to or on such private property to perform new
plant construction or reconstruction, a notice indicating the nature and location of the work to be
performed shall be physically posted upon the affected property. A franchisee shall make a good
faith effort to comply with the property owner/resident's preferences, if any, on location or
placement of underground installations (excluding aerial cable lines utilizing existing poles and
existing cable paths), consistent with sound engineering practices.
b.
Emergency Repairs. Notice requirements of subsections (a) and (b) above, are suspended for
purposes of entry upon private property to perform repairs at the subscriber's request or in the
event of system outage repairs or other emergencies in which insufficient time is available to
provide notice to subscribers.
22
c.
Restoration of Property. After performance of work, franchisee shall restore private property as
nearly as possible to its condition prior to construction. Any disturbance of landscaping, fencing,
or other improvements on private property shall, at the sole expense of a franchisee, be promptly
repaired and restored (including replacement of such items as shrubbery and fencing) to the
reasonable satisfaction ofthe property owner.
d.
The laying, construction, operation and maintenance of the Operator cable television lines and
facilities authorized by the franchise shall not preclude the County of Jefferson, its agents or its
contractors from blasting, grading, excavating, or doing other necessary road work contiguous to
the said lines and facilities of the Operator providing that the Operator shall be given forty-eight
(48) hours notice of said blasting or other work in order that the Operator may protect cable
television lines and facilities.
Section 13.76.150 Maintenance Requirements. A Franchisee, in accordance with applicable
national, state, and local safety requirements shall, at all times, employ ordinary care and shall install and
maintain and use commonly accepted methods and devices for preventing failures and accidents which are
likely to cause damage, injury, or nuisance to the public. All structures and all lines, equipment and connections
in, over, under, and upon the Public Rights of Way or places of a Franchise area, wherever situated or located,
shall at all times be kept and maintained in a safe, suitable condition, and in good order and repair.
The County reserves the general right to see that the system of a Franchisee is constructed and maintained in a
safe condition.
Section 13.76.160 Buildin~ Movine. Whenever any person shall have obtained permission from the
County to use any street for the purpose of moving any building, a franchisee, upon fourteen (14) days written
notice from the County, shall raise or remove, at the expense ofthe person desiring to move the building, any of
a franchisee's wires which may obstruct the removal of such building; provided, that the moving of such
building shall be done in accordance with regulations and general ordinances of the County. It is further
provided that the person or persons moving such building shall indemnify and save harmless said franchisee of
and from any and all damages or claims of whatsoever kind or nature caused directly or indirectly for such
temporary arrangement of the lines and poles of a franchisee, and that franchisee shall have the right to require
payment in advance.
Section 13.76.170 Tree Trimmine. Upon prior approval of the County except in the case of
emergencies and in accordance with all County rules, regulations, ordinances, policies and standards, Franchisee
shall have the authority, at is expense, to trim trees upon and overhanging Streets, Public Rights of Way and
places in the Franchise area so as to prevent the branches of such trees from coming in contact with the wires
and cables of a Franchisee. A Franchisee shall be responsible for debris removal from such activities.
Section 13.76.180 Public Buildin~s. A franchisee shall furnish a cable outlet and converter, if
required, for the reception of basic service at County buildings without charge including public school district
buildings specified in individual franchises. Provided however that this requirement may be waived by the
County if any such location, now or hereafter is not within five hundred (500) feet of any existing cable
distribution facilities. For the purposes of this Section, public housing facilities are not considered County
buildings.
23
Section 13.76.190 Emer2ency Override. The franchisee shall be in compliance with all federal
Emergency Alert System (EAS) requirements by no later than the date mandated by FCC Regulations.
Section 13.76.200
Record Inspection.
a.
Retention Periods. A franchisee shall establish, keep, and maintain books, accounts, papers,
maps, and other records as is reasonably necessary to ensure compliance with the terms of this
Ordinance and its franchise. Such records shall include, but shall not be limited to, any public
records required to be kept by a franchisee pursuant to the rules and regulations of the FCC, and
shall be maintained for a period in accordance with the following schedule:
1.
Over Term of Franchise: Ordinance granting Franchise, amendments to the Franchise,
Franchise applications and related materials, construction maps, documents filed or
presented to the County or County Commissioners, and records relating to bonds or other
security;
2.
Seven (7) Years: Financial information, including, but not limited to, annual reports of a
franchisee, franchise fee reports, records of gross receipts, receipts, and income; and
3.
Three (3) Years: All other records required under this Ordinance unless otherwise
specified.
b.
Inspection of Records. A franchisee shall agree that the County, upon reasonable notice to a
franchisee, may review such of its books and records at a franchisee's business offices, during
normal business hours and on a non disruptive basis, to ensure compliance with the terms of this
Ordinance and its franchise. Notwithstanding anything to the contrary set forth herein, a
franchisee shall not be required to disclose information which it reasonably deems to be
proprietary or confidential in nature. The County agrees to treat any information disclosed by a
franchisee as confidential and only to disclose it to employees, representatives, and agents
thereof that have a need to know, or in order to enforce the provisions hereof. A franchisee shall
not be required to provide Subscriber information in violation of Section 631 of the Cable Act.
If any such books or records are ordinarily kept outside Jefferson County, or if on request, are not
made available for inspection within the County, then all reasonable travel and subsistence
expense necessarily incurred by the County in making such an examination shall be paid by a
franchisee.
c.
Confidentiality. County shall maintain the confidentiality of any trade secrets or other
proprietary information of a franchisee in the possession ofthe County, to the extent permitted
by law. In order to allow the franchisee to seek court protection from disclosure, the County will
immediately notify the franchisee of any public record request for franchise-related information
received under RCW 42.17, the Washington Public Records Act.
Section 13.76.210 Periodic Meetines. Upon request, a franchisee shall meet with designated
County officials and/or designated representative(s) to review the performance of a franchisee for the preceding
period. The subjects may include, but are not limited to, those items covered in the periodic reports and
performance tests.
24
Section 13.76.220 Evaluations and Reports. In addition to periodic meetings, the County may
require reasonable evaluation sessions at any time during the term of a Franchise. It is intended that such
evaluations cover areas such as customer service, response to the community's cable-related needs, and a
franchisee's performance under and compliance with the terms of a Franchise.
a.
The franchisee shall furnish, upon request, a report of its activities as appropriate. Such report
shall include:
1.
Most recent annual report.
2.
A copy of the lO-K Report, if required by the Securities and Exchange Commission.
3.
The number of homes for which cable is available.
4.
The number of Subscribers with basic services.
5.
The number of Subscribers with expanded basic services.
6.
The number of Subscribers with premium services.
7.
The number of Pay- Per-View purchases.
8.
The number of hook-ups in the period.
9.
The number of disconnects in the period.
10.
Total number of miles of cable in the County.
11.
Statistical data that will allow the County to ascertain the number of complaints received
by category, length of time taken to resolve and action taken to provide resolution.
12.
Copies of all FCC complaint logs.
13.
A statement of its current billing practices, and a sample copy of the bill format.
14.
A current copy of its Subscriber service contract.
15.
A current copy of its cable rate sheet delivered to Subscribers.
16.
Report on operations - Such other reports with respect to its local operation, affairs,
transactions or property that may be appropriate.
Section 13.76.230 Interconnection. The County may request a franchisee to interconnect PEG
access channels of a cable television system with any and all other contiguous and compatible cable systems.
Interconnection of a system may be accomplished by direct cable connection, microwave link, or other
technically feasible method.
25
Franchisees shall immediately initiate negotiations with other affected system(s), and shall report to the County
the results of such negotiations no later than sixty (60) days after such initiation.
Franchisee may be granted additional reasonable extensions of time to interconnect,. or the County may rescind
its request to interconnect upon petition of a franchisee, if the County finds that a franchisee has negotiated in
good faith and has failed to obtain approval from the system(s) ofthe proposed interconnection, or that the cost
of interconnection would cause an unreasonable financial burden as determined by the County upon a franchisee
and/or its subscribers. The costs of any required PEG interconnect shall be shared between the participating
cable television franchisees on a pro rata basis, proportionate to the number of subscribers served, and may be
passed on through to subscribers pursuant to FCC rules.
Section 13.76.240 Internet Accessibility. When permitted by Federal and State law, franchisee
shall make available that portion of the broadband network to allow other Internet Service Providers access to
such space.
Section 13.76.250 Institutional Networks (I-Nets). The County may request that a franchisee
provide an institutional network (I-Net). Alternatively, a franchisee may submit a proposal for provisions of
modems and unlimited access, without cost, to the Internet system to accomplish these ends. An entity desiring
use of such will provide the Board demonstrated need of such use.
Prior to implementation of any I-Net service a public hearing shall be convened by the Board, to discuss the
benefits and associated costs to the residents of the County of constructing said I-Net. The County may require
the implementation of such features in accord with the provisions of this agreement. Upon a finding by the
Board that an I-Net is reasonably required to meet community needs, taking into consideration the expense of
providing such services and the potential costs to subscribers.
Section 13.76.260 Access and Institutional Network Equipment. A franchisee may be required to
pay for the purchase or augmentation of broadcast equipment for PEG access and I-Net cablecasting. These
expenditures will be pro-rated by the County based upon the number of subscribers to each system.
Section 13.76.270 Parental Control Devices. A franchisee will make available at the cost formula
provided by the FCC a device by which the subscriber can prohibit viewing of a particular cable service during
periods selected by that subscriber.
Section 13.76.280 Technical Standards.
a. Subject to Federal, State and local law, a franchisee shall comply with FCC rules, Part 76,
Subpart K, Section 76.601 through 76.610 as may be amended, or any more restrictive standards
that may be promulgated by the NCT A hereafter, and shall also comply with the following:
1.
Applicable County, State and National/Federal Codes and Ordinances;
2.
Applicable Utility Joint Attachment Practices;
3.
The National Electric Safety Code; ANSI C2;
4.
Local Utility Code Requirements; and
5.
Local Rights-of-Way Procedures.
26
b.
Preventive Maintenance: A comprehensive routine preventive maintenance program shall be
developed, effected, and maintained to ensure continued top quality cable communications
operating standards in conformance with FCC Regulations Part 76 or as may be amended.
The Franchisee shall notify the County prior to the date of the semi-annual FCC Proof of
Performance Test so that the County, as is its right under the pertinent FCC regulations, may, at
its option, monitor the taking of such tests. The Franchisee shall upon request provide a copy of
the results ofthe system evaluation to the County at the same time as submission to the FCC.
Such monitoring shall be at the expense of the franchising authority.
Section 13.76.290 Penalties. The County shall notify a franchisee in writing stating the nature of an
alleged deficiency in the operation of the cable system or violation of the terms of the franchise and setting forth
the time limits for curing such alleged improper condition. A franchisee may request an extension of time if
certain circumstances, which are reasonably beyond the control of a franchisee, delay corrective action. for
instance, if construction is suspended or delayed by the County, or if unusual weather, acts of God (e.g.
earthquakes, floods, etc.), or extraordinary acts of third parties occur .In such circumstances, the additional
amount of time allowed will be mutually determined by the County and franchisee.
Failure of a franchisee to correct deficiencies may result in the County calling a hearing to determine if a
material violation of the franchise has occurred.
If, following such hearing, it is determined by the Board that a franchisee has failed to comply with the terms of
the Franchise, the Board may impose penalties of up to $500.00 (Five Hundred Dollars) per day or per instance
(depending on the violation), may revoke the franchise, and/or invoke any other available remedy at law or in
equity.
Section 13.76.300
Extraordinary Installation.
a.
Drop Line Costs. All persons requesting cable service to a residence located within three
hundred (300) feet of existing cable distribution lines shall have the cable installed at the
prevailing published installation rate.
In the event a request is made for service to a residence located more than three hundred (300)
feet from an existing cable distribution line, such installation shall be completed on a time and
material cost basis for that portion ofthe service line extending beyond three hundred (300) feet.
b.
Distribution Line Costs. Cable Service shall be available to all residents within the County
provided there are at least thirty two (32) dwelling units per street mile as measured from the
nearest distribution line.
In the event a request is made for service to a residence in an area not meeting minimal dwelling
unit density criteria as described above, a franchisee shall notify the potential subscriber of the
option of partial reimbursement for line extension charges. Whenever any subsequent subscriber
who did not contribute to the original cost of the extension connects to the extended distribution
service line, that subscriber shall pay his/her pro rata share directly to a franchisee prior to
obtaining cable service. A franchisee shall then promptly tender such payment to the original
27
subscriber provided that an agreement for pro-rata reimbursement of the extension charges exists
between the original subscriber and the franchisee and the agreement remains in force.
Reimbursement shall be calculated on a front foot basis as a percentage of the total cost of the
service line extension. Reimbursements shall be made to the original subscriber for a period of
at least one (1) year or to the point when a franchisee has recovered its incremental costs to
construct the distribution service line
Section 13.76.310 Continuity of Service. It shall be the right of all subscribers to continue
receiving service so long as their financial and other obligations to a franchisee are fulfilled.
a.
In this regard a franchisee shall act so far as it is within its control to ensure that all subscribers
receive continuous uninterrupted service during the term of the franchise.
b.
Unless there is just cause such as an act of God or other circumstances reasonably beyond a
franchisee's control if a franchisee fails to operate a system for seventy-two (72) continuous
hours without approval of the Administrator, the County may, after notice to the franchisee, at
it's the County's option, operate the system or designate someone to operate the system until
such time as a franchisee provides assurances that it will restore service to conditions acceptable
to the Board. Ifthe County elects to fulfill this obligation for a franchisee, the franchisee shall
reimburse the County for all-reasonable costs or damages that are the result of a franchisee's
failure to perform.
Section 13.76.320 Termination of Subscriber Services. Upon termination of individual subscriber
services, a franchisee shall promptly remove all of its facilities and equipment, excepting drop cable and internal
wiring, from the premises of such subscriber upon subscriber's request, except as provided in subsection (b),
below.
a.
Charges Upon Failure to Recover Equipment. Upon termination of services, should a franchisee
not promptly collect its equipment from the premises of the subscriber within five (5) working
days, the subscriber shall not be charged for continued services, nor for failure to return any
equipment, provided the equipment is returned.
b.
Equipment Returns. Should a franchisee require the subscriber to return the equipment, a
franchisee shall establish convenient hours including evening and weekend hours, for return of
the equipment, and the subscriber shall have a reasonable length of time in which to return the
equipment. The subscriber shall be advised of the date by which the equipment must be returned
before a charge may be imposed for failure to return equipment.
Section 13.76.330 External Franchisin~Costs. A franchisee shall have the authority to pass
through such external costs as allowed under 47 CFR 76.922. However, the County reserves the right to review
and approve certain specific features and/or services delineated in a franchise agreement prior to the
implementation of such items and the pass through of any associated costs pertaining thereto.
Section 13.76.340
Cable Television Franchisee Subject to Other Laws. Police Powers.
a.
A cable television franchisee shall at all times be subject to and shall comply with all applicable
federal, State and locallaws and regulations, including this Ordinance. A cable television
28
franchisee shall at all times be subject to all lawful exercise of the police power of the County
including, but not limited to, all rights the County may have under the Cable Acts, all powers
regarding zoning, supervision of construction, control of Rights-of- Way and consumer
protection.
b.
The County shall have full authority to regulate cable systems, cable television franchisees and
cable television franchises as may now or hereafter be lawfully permissible.
Section 13.76.350
Interpretation of Cable Television Franchise A~reement Terms.
a.
In the event of a conflict between this Ordinance and a cable television franchise agreement, the
provisions ofthe cable television franchise agreement shall control.
b.
The provisions of this Ordinance and a cable television franchise agreement will be in
accordance with generally accepted rules of construction to promote the public interest.
Section 13.76.360 Operation of a Cable System without a Cable Television Franchise. Any
Person who occupies Rights-of- Way for the purpose of operating or constructing a cable system or provides
Cable Service over a cable system and who does not hold a valid cable television franchise from the Board shall
be subject to all requirements of this Ordinance, including but not limited to Section 13.80.070.
Section 13.76.370 Eminent Domain. Nothing herein shall be deemed or construed to impair or
affect, in any way or to any extent, the County's power of eminent domain.
Section 13.76.380
Exclusive Contracts and Anti-Competitive Acts Prohibited.
a.
Unless otherwise permitted by law, no cable television franchisee or other multichannel video
programming distributor shall enter into or enforce an exclusive contract for the provision of
Cable Service or other multichannel video programming with any Person, or demand the
exclusive right to serve a Person or location, as a condition of extending service to that Person or
location.
b.
Unless otherwise permitted by law, no cable television franchisee or other multichannel video
programming distributor shall engage in acts that have the purpose or effect of limiting
competition for the provision of Cable Service or services similar to Cable Service in the County.
Section 13.76.390
Cable Television Franchise Fees.
a.
Cable television franchisees shall be subject to the cable television franchise fees, payments and
costs provided in their cable television franchise and herein. For purpose of cable television
franchise fees, "Gross revenues" shall mean all revenue derived directly or indirectly by the
grantee, its affiliates, subsidiaries, parent and/or any person in which the grantee has a financial
interest, from providing cable television services within Jefferson County, including, but not
limited to, basic subscriber service monthly fees, pay cable fees, installation and reconnection
fees, leased channel fees, converter rentals, studio rental, production equipment and personnel
fees, and advertising revenues; provided, however, that this shall not include any taxes but not
fees on services furnished by the grantee which are imposed directly upon any subscriber or user
by the state of Washington, local or other governmental unit and collected by the grantee on
29
behalf of said governmental unit.
Payment. A franchisee shall make payment to the County on a quarterly basis on or before the
thirtieth (30th) day of each January, April, July and October, in a sum equal to five percent (5%) or
greater of the franchisee's gross revenues as defined herein from the operation ofthe cable system.
b.
In Addition to Other Fees and Taxes. The franchise fee required in this Section is in addition to taxes
and fees generally applied to other utilities or businesses, contributions to Pubic, Educational and
Government (PEG), Institutional Networks, hook-ups to Public Buildings and similar goods and
services, and/or the cost of bonds, security funds, letters of credit or any other costs incidental to the
award or enforcement of the Franchise.
c.
d.
Payment of Propositional Franchising Costs. In the event of one or more franchises being
granted, Jefferson County may require that such subsequent franchisees pay to the County an
amount proportionally equal to franchising costs contributed by the initial franchisee. These
costs may include but are not limited to such features as PEG access equipment and facilities,
contributions to any PEG access fund, institutional network costs, and bi -directional or
equivalent cable installed to municipal buildings or institutions and similar expenses. On the
anniversary of the grant of each later awarded franchise, such franchisees shall pay to the county
a sum proportional to the amount contributed by the original franchisee, based upon the number
of customers served by such franchisees.
Provision of PEG Access Channels and Emergency Override System. Additional franchisees
shall provide all PEG access channel(s) and the emergency override system currently available to
the customers of existing franchisees. In order to provide these access channels, additional
franchisees may be required to interconnect, at their cost, with existing franchisees' cable
systems, subject to any reasonable terms and conditions that the franchisee providing the
interconnection may require. These interconnection agreements shall be made directly between
the franchisees.
e.
CHAPTER 13.80
CONDITIONS OF GRANT OF LICENSE, FRANCHISE OR CABLE
TELEVISION FRANCHISE
Section 13.80.005
Section 13.80.010
Section 13.80.020
Section 13.80.030
Section 13.80.040
Section 13.80.050
Section 13.80.060
Section 13.80.070
Section 13.80.080
Section 13.80.090
Section 13.80.100
Section 13.80.110
Section 13.80.120
Section 13.80.130
Applicability
General Duties
Interference with the Rights-of-Way
Repair and Emergency Work
Maintenance of Facilities
Relocation or Removal of Facilities
Removal of Unauthorized Facilities
Failure to Relocate
Emergency Removal or Relocation of Facilities
Damage to Grantee's Facilities
Facilities Maps
Duty to Provide Information
Grantee Insurance
General Indemnification
30
Section 13.80.140
Section 13.80.150
Section 13.80.160
Section 13.80.170
Section 13.80.200
Section 13.80.210
Section 13.80.220
Section 13.80.230
Performance and Financial Guarantees
Security Fund
Assignments or Transfers of Grant
Transactions Affecting Control of Grant
Revocation or Termination of Grant
Notice and Duty to Cure
Hearing
Standards for Revocation or Lesser Sanctions
Section 13.80.005 Applicability. The terms of this Chapter 13.80 and the Ordinance Establishing
Accommodations of Utilities upon Jefferson County Rights-of-Way shall apply to all Grantees regulated by this
Ordinance.
Section 13.80.010
General Duties.
a.
All Grantees, before commencing any construction in the Rights-of-Way, shall comply with all
requirements ofthe Jefferson County Code or other ordinances of the County.
b.
Grantees shall have no ownership rights in Rights-of-Way, even though they may be granted a
license, franchise or cable television franchises to construct or operate their facilities.
Grantee or other Person acting on its behalf shall use suitable barricades, flags, flaggers, lights,
flares and other measures as required for the safety of all members of the general public and to
prevent injury or damage to any Person, vehicle or property.
c.
Section 13.80.020 Interference with the Riehts-of-Way. No Grantee may locate or maintain its
Telecommunications Facilities so as to unreasonably interfere with the use of the Rights-of-Way by the County,
by the general public or other Persons authorized to use or occupy the Rights-of-Way.
Section 13.80.030 Repair and Emereency Work. In the event of an emergency or an emergency
repair necessary to protect the public, restore service or mitigate further damage to the system, a Grantee may
commence such repair and emergency response work as required under the circumstances, provided the Grantee
shall notify the Administrator in writing preferably before such repair or emergency work or within 24 hours
thereafter if advance notice is not practicable.
Section 13.80.040 Maintenance of Facilities. Each Grantee shall maintain its facilities in good and
safe condition and in a manner that complies with all applicable federal, State and local requirements. Any
private property owner whose property will be affected by a Grantee's work shall be afforded ten (10) calendar
days advance written notice of such work.
Section 13.80.050
Relocation or Removal of Facilities.
Within ninety (90) days following written notice from the County and receipt of final design
from the County, or within a reasonable time frame established by the Administrator, a Grantee
shall, at its own expense, temporarily or permanently remove, relocate, change or alter the
position of any utility facilities within the Rights-of-Way whenever the Administrator shall have
determined that such removal, relocation, change or alteration is reasonably necessary for:
a.
31
1.
The construction, repair, maintenance or installation of any County, State, Federal and/or
County funded project, or
2.
The operations of the County or other governmental entity in or upon the Rights-of-Way.
The Administrator may extend the ninety (90) day time period or the initial time frame
established for good cause.
b.
All work must be accomplished through the same permitting process as for new installations in
order to insure that said new installations are in compliance with County regulations and
standards; however pursuant to this Section, permit fees shall be waived by the County.
c.
In response to any public health or safety emergency, the County may also remove or relocate
any utility facilities located within the Rights-of-Way that the County determines to be
necessary, appropriate or useful. All such removal or relocation shall be at the sole expense of
the Grantee.
d.
A Grantee shall be responsible for the security of each existing pipeline and utility facility within
a road construction zone. Where there are unusual utility hazards or where heavy construction
equipment will be used, the Grantee shall provide adequate temporary protection.
e.
If a Grantee is required to relocate or remove its utility facilities from the Rights-of-Way and
fails to do so within the designated time set out by the Administrator, the County may cause such
to occur and charge the Grantee for the costs incurred.
e.
Nothing in this Section shall require the Grantee to bear any costs or expense in connection with
the location or relocation of any Facilities existing under benefit of private easement or such
other prior private rights.
f.
The County reserves for itself the right at anytime, upon 48 hours written notice to the Grantee,
to so change, amend, modify, or amplify any provision or conditions herein enumerated to
conform to any state or county regulation relating to the public health, safety or highway
regulation as many be enacted, amended; adopted, changed, etc. A permit may be terminated
upon thirty (30) days written notice to Grantee if facilities are not operated or maintained in
accordance with permit provisions.
Section 13.80.060
Removal of Unauthorized Facilities.
a.
In its discretion, the Administrator at any time may require any Person who owns, controls or
maintains any unauthorized telecommunications or cable system, facility or related
appurtenances within the Rights-of-Way to:
1.
Apply for a license, franchise or cable television franchise within thirty (30) days of
receipt of written notice from the County to such Person that such a license, franchise or
cable television franchise is required; or
2.
Require such Person to remove its facilities and restore the affected area within ninety
(90) days to a condition satisfactory to the County; or
32
b.
c.
d.
e.
f.
3.
Direct County Personnel to remove the facilities and restore the affected area to a
condition satisfactory to the County and charge the Person the costs therefor, including
by placing a lien on the Person's property; or
4.
Take any other action authorized by applicable law.
A telecommunications or cable service facility is unauthorized and subject to removal in the
following circumstances:
1.
Upon expiration or termination of the Grantee's license, franchise or cable television
franchise.
2.
Upon abandonment of a facility within the Rights-of- Way.
3.
If the system or facility was constructed or installed without the prior issuance of a
required encroachment or utility permit.
4.
If the system or facility was constructed or installed at a location not permitted by the
Grantee's license, franchise or cable television franchise.
5.
To the extent permitted by law, any such other reasonable circumstances affecting public
health, safety and welfare deemed necessary by the Administrator.
Notwithstanding any other provision of this Section, the Administrator may, in its sole
discretion, allow a Grantee or other Person who may own, control or maintain a cable system or
Telecommunications Facilities or Cable Television Facilities within the Right-of-Way of
Jefferson County to abandon such facilities in place. No facilities of any type may be abandoned
in place without the express written consent of the Administrator. Any plan for abandonment or
removal of such facilities must be first approved by the Administrator and all necessary permits
must be obtained prior to commencement of such work.
Abandoned facilities. A telecommunications or cable system, facility or related appurtenances
within the Rights-of-Way which has been discontinued service for a period of six consecutive
months or longer is hereby declared abandoned. Abandoned facilities shall be removed by the
property owner within 90 days from date of abandonment. Failure to remove an abandoned
facility is declared a public nuisance and is subject to penalties.
Upon written application, prior to the expiration of the six-month period, the Administrator shall
in writing grant a six-month stay of the declaration of abandonment. Additional extensions
beyond the first six-month extension may be granted by the Administrator subject to any
conditions required to bring the project or facility into compliance with current law(s) and make
compatible with surrounding development.
If the facilities are not removed within the time period described above, the County shall have
the authority to enter the property and remove the facilities. All reasonable and documented
costs of such removal shall be charged to the provider and/or landowner of record. Following
abandonment in place of any cable system or Telecommunications Facilities, the facilities shall
become the property of the County. The provisions ofthis Section shall survive the expiration,
33
revocation or termination of any license, franchise or cable television franchise granted under
this Ordinance.
Section 13.80.070 Failure to Relocate. If a Grantee is required to relocate, change or alter the
Telecommunications Facilities hereunder and fails to do so, the County may cause such to occur and charge the
Grantee for all actual costs incurred.
Section 13.80.080 Emereency Removal or Relocation of Facilities. The County retains the right
and privilege to cut or move any Telecommunications Facilities located within the Rights-of-Way as the County
may determine to be necessary, appropriate or useful in response to any public health or safety emergency.
Section 13.80.090 Damaee to Grantee's Facilities. The County shall not be liable for any damage
to or loss of any Telecommunications Facility within the Rights-of-Way as a result of or in connection with any
emergency removal or relocation, public works, public improvements, construction, excavation, grading, filling,
or work of any kind in the Rights-of-Way by or on behalf of the County except for damage caused by the
negligence of the County.
Section 13.80.100 Location of Facilities. Upon the request of the Administrator, a franchisee shall
provide the County with maps which identify the horizontal location of its facilities within the County Rights-of-
Way. A franchisee shall submit plans on a Digital Geographical Information System (GIS) and on a computer based
format compatible with Auto CAD or format approved by the Administrator. In addition, a franchisee shall consult
with the public works department to specify the vertical location of its facilities within County Rights-of-Way, in
a manner and format agreed to by the Administrator and the franchisee. Each Grantee shall provide updated as-built
maps once every two years to the Administrator.
Section 13.80.110 Duty to Provide Information. Within thirty (30) calendar days of receipt of a
written request from the Administrator, each Grantee shall furnish the Administrator with information
reasonably necessary to fulfill purposes ofthis Ordinance and sufficient to demonstrate:
a.
That Grantee has complied with all requirements of this Ordinance.
b.
That all taxes and fees due the County in connection with the Telecommunications Services,
Telecommunication Facilities, and Cable Television Services and Cable Television Facilities
provided by the Grantee have been properly collected and paid by the Grantee.
c.
That all books, records, maps and other documents maintained by the Grantee with respect to its
facilities within the Rights-of- Way have been made available for inspection by the Administrator
at reasonable times and intervals.
Section 13.80.120 Grantee Insurance. Unless otherwise provided by a license, franchise, or cable
television franchise, each Grantee shall, prior to commencing with construction activities in the Rights-of-Way,
secure, submit to the Administrator, and maintain the following liability insurance policies insuring both the
Grantee and the County.
a.
Commercial General Liability insurance, and as required, Umbrella Liability insurance, which
will cover bodily injury, property damage, and any other exposure which can be reasonably
identified as potentially arising from the Grantees' activities within the Rights-of- Way. The
limit of liability provided in this mandated Commercial General Liability insurance policy shall
34
not be less than two million dollars ($2,000,000) for each occurrence. The County, its elected
and appointed officers, officials, employees, agents, and representatives shall be named as
additional insureds with respect to Grantee's activities occurring within its Rights-of-Way.
Coverage shall be comprehensive with respect to the Grantee's activities within the Rights-of-
Way and shall include, by way of example but not by way of limitation, insurance coverage for
omissions by the Grantee, the Grantee's completed operations, and the possibility of explosions,
collapses and underground hazards. The County and the Franchisee or Grantee shall, within the
terms of the documents memorializing the terms and conditions of the Franchise, determine the
quantity of Umbrella Liability insurance that the County shall mandate as necessary.
b.
Business Automobile Liability insurance for owned, not owned, non-owned and hired vehicles
with limits of not less than two million dollars ($2,000,000) per person, three million dollars
($3,000,000) per accident.
c.
Workers' Compensation insurance required by Title 51, RCW and Employers Liability Coverage
with a limit of not less than one million dollars ($1,000,000) per occurrence.
d.
The insurance policies required by this Section shall be maintained at all times by the Grantee.
Each liability policy shall be endorsed to require the insurer to notify the County at least 45 days
before the policy can be cancelled by either party, and to require notice of cancellation due to
non-payment of premium to be mailed to the Administrator as well as the named insured. The
Grantee will be obligated to replace or renew the canceled or expiring policy and show proof in
the form of a certificate of insurance, at least 20 days before the expiration or cancellation of any
one or all of the existing policy or policies. .
e.
The Grantee shall furnish the County with properly executed certificates of insurance or a signed
policy endorsement which shall clearly evidence all insurance required in this Section prior to
commencement of Telecommunications Services. The certificate will, at a minimum, list limits
of liability, coverage, and all exclusions.
f.
The Grantee or its agent will provide a copy of any and all insurance policies specified in this
Ordinance upon request of the Administrator.
g.
The insurance limits mandated for any insurance coverage required by this Ordinance are not
intended to be an indication of limits of exposure nor are they limitations on liability or
indemnification.
Section 13.80.130
General Indemnification.
a.
In addition to and distinct from the insurance requirements of this Ordinance, Grantee releases
and shall defend, indemnify and hold harmless the County, its elected and appointed officers,
officials, employees, agents, and representatives (collectively referred to as the "Indemnitees")
from any and all claims, lawsuits, losses, costs, liabilities, damages and expenses, including, but
not limited to, those of the Grantee's lessees, and also including, but not limited to, reasonable
attorneys' fees (except those damages caused solely by the negligence of the Indemnitees) arising
out of, caused by or in connection with any act or omission by the Grantee with respect to 1) the
Grantee's Telecommunications Facilities or Cable Television Facilities, 2) the installation of any
Telecommunications Facilities or Cable Television Facilities, 3) the performance of any work, 4)
35
the operation of any Telecommunications Facilities or Cable Television Facilities, 5)the
Grantee's system. Grantee further releases and shall defend, indemnify and hold harmless the
County, its elected and appointed officers, officials, employees, agents, and representatives
(collectively referred to as the "Indemnitees") from any and all claims, lawsuits, losses, costs,
liabilities, damages and expenses, including, but not limited to, those of the Grantee's lessees,
and also including, but not limited to, reasonable attorneys' fees (except those damages caused
solely by the negligence of the Indemnitees) arising out of, caused by or in connection with any
act or omission by any ofthe Grantee's suppliers or contractors of any tier, or anyone acting on
the Grantee's behalf in connection with said installation of Telecommunications Facilities or
Cable Television Facilities, performance of work, or operation of Telecommunications Facilities
or Cable Television Facilities or Grantee's system.
b.
Such indemnity, protection and hold harmless shall include any demand, claim, suit or judgment
seeking money damages as a result of alleged injury to property or person or persons, or death of
an individual or individuals, including officers, agents, and employees of any Person. Such
indemnity, protection and hold harmless shall include payment made under or in connection with
any Worker's Compensation Law or under any plan for employees' disability and death benefits,
which may arise out of or be caused or contributed to directly or indirectly by any act or
omission relating to or arising from the erection, maintenance, presence, operation, use or
removal of Grantee's Telecommunications Facilities or Cable Facilities or installations of
Telecommunications Facilities or Cable Facilities including any claims or demands of customers
of the Grantee with respect thereto.
c.
Indemnitees shall not be liable to the Grantee or to the Grantee's customers, and the Grantee
hereby indemnifies, protects and saves harmless the Idemnitees against any such and all such
claims or demands, suit or judgment for loss, liability, damages and expense by the Grantee's
customers, or for any interruption to the service ofthe Grantee, or for interference with the
operation of the Telecommunications Facilities or Cable Television Facilities.
d.
To the fullest extent permitted by applicable law, the foregoing release, indemnity and hold
harmless provisions shall apply to and be for the benefit of the Idemnitees.
e.
All provisions of Section 13.80.130 shall apply to the successors and assigns ofthe Grantee.
Section 13.80.140 Performance and Financial Guarantees. Before a license or franchise granted
pursuant to this Ordinance is effective, and as necessary thereafter, the Grantee shall provide and deposit such
monies, bonds, letters of credit or other instruments in form and substance acceptable to the County as may be
required by this Ordinance, or by an applicable license, franchise or cable television franchise agreement or
other applicable code, ordinance, rules or regulations of the County.
Section 13.80.150 Security Fund. Before commencing construction or obtaining a license,
franchise, or cable television franchise in the Rights-of-Way, each Grantee shall establish a permanent security
fund with the County by depositing the amount of up to $50,000 with the County in cash, an unconditional
letter of credit, or other instrument acceptable to the County, which fund shall be maintained in the designated
amount at the sole expense of Grantee so long as any of Grantee's Telecommunications Facilities or Cable
Television Facilities are located within the Rights-of-Way. This security fund shall be separate and distinct
from any other bond, letter of credit, or deposit required by a Telecommunications Franchise or Cable
Television Franchise. If a Grantee has Telecommunications Facilities or Cable Television Facilities in the
36
Rights-of-Way for five (5) consecutive years, the Grantee may request from the Administrator a waiver of the
security fund requirement.
a.
b.
c.
The fund shall serve as security for the full and complete performance of Grantee's obligations
under this Ordinance, including any costs, expenses, damages or loss the County pays or incurs
because of any failure attributable to the Grantee to comply with the codes, ordinances, rules,
regulations or permits ofthe County.
Before any sums are withdrawn from the security fund, the Administrator shall give written
notice to the Grantee:
1.
Describing the act, default or failure to be remedied, or the damages, cost or expenses
which the County has incurred by reason of the Grantee's act or default;
2.
Providing a reasonable opportunity for the Grantee to first remedy the existing or ongoing
default or failure;
3.
Providing a reasonable opportunity for the Grantee to pay any monies due the County
before the County withdraws the amount thereof from the security fund; and
4.
That the Grantee will be given an opportunity to review the act, default or failure
described in the notice with the Administrator.
Grantee shall replenish the security fund within fourteen (14) days after written notice from the
Administrator that there is a deficiency in the amount of the fund.
Section 13.80.160 Assienments or Transfers of Grant. Ownership or control of a license,
franchise or cable television franchise may not directly or indirectly be transferred, assigned or disposed of by
sale, lease, merger, consolidation, by operation oflaw or otherwise, nor may there be a transfer of working
control (which includes not only actual control, but also the ability to affect or influence decisions) without the
prior written consent of the County, as expressed by ordinance and then on such conditions as may be
prescribed therein and:
a.
b.
c.
No grant for Telecommunications Services shall be assigned or transferred in any manner within
twelve (12) months after the initial grant ofthe license or franchise unless otherwise provided by
law.
Absent extraordinary and unforeseeable circumstances, and to the extent permitted by law, no
grant for Telecommunication Services shall be assigned or transferred before construction of the
Telecommunications Facilities has been completed.
The proposed assignee or transferee shall provide and certify the following information to the
Administrator.
1.
Complete information setting forth the nature, terms and conditions of the proposed
transfer or assignment;
2.
All information required of a license, franchise or cable television franchise applicant
37
3.
pursuant to this Ordinance with respect to the proposed transferee or assignee;
All information required by federal, State and local law or regulation, including, but not
limited to, FCC Form 394.
4.
Any other information reasonably required by the Administrator.
d.
No transfer shall be approved unless the assignee or transferee has the legal, technical, financial
and other qualifications in the County's reasonable discretion to own, hold and operate the
telecommunications system pursuant to this Ordinance, and unless there is compliance with the
license, franchise and cable television franchise.
e.
The assignee or transferee shall reimburse the County for all direct and indirect fees, costs and
expenses incurred by the County in considering a request to transfer ownership in or assign a
license, franchise or cable television franchise.
f.
Any transfer of ownership in or assignment of a license, franchise, cable television franchise
without prior approval ofthe County under this Ordinance shall be void and is cause for
revocation of the grant.
g.
Upon receipt of all information required herein, and any other information reasonably required
by the County, the County shall have one hundred and twenty (120) days to review and approve
or deny the requested assignment or transfer. If the County is unable to approve or deny the
requested assignment or transfer within such period, the County shall provide notice of the
reasons for the delay and the estimated period of time needed to complete its review, and such
review period shall be extended to the extent permitted by law.
h.
In addition to the other requirements herein, a copy of the transfer or assignment document, deed
or other documentation deemed necessary by the County shall also be filed with the
Administrator within ten (10) days of any change in ownership or control.
1.
Except as provided in Section 13.80.170 below, County's consent shall not be required for any
assignment which is the result of a corporate merger, sale of all or substantially all of the
corporate assets, sale of any or all of the corporate stock, consolidation or reorganization,
whether voluntary or involuntary, or assignment to a subsidiary, parent, or affiliated company so
long as such assignee or transferee is financially qualified and there are no outstanding issues of
noncompliance under this Ordinance, a license, franchise or cable franchise. Nothing contained
herein shall prevent or restrict a Grantee's right to (a) mortgage its interest or (b) assign or lease
to a third party fiber optic cable or telecommunication capacity (so long as it is for uses
authorized by telecommunications franchises or cable franchises), and no consent shall be
required for such mortgage or lease. Grantees' shall, however, be responsible for written
notification to County of such mortgage or lease. Such notification shall include the appropriate
names, address and contact points for the mortgagee or lessee
Section 13.80.170 Transactions Affectine Control of Grant. Any transaction which results in any
change of the ownership or in any manner of the working control of a licensee or franchisee, or of affiliated
entities having ownership or working control of any parts thereof- defined as 20% or more ownership or control
(including, but not limited to, a change of 20% or more of change in financial ownership, make up, or nature of
38
the business entity)- shall be considered an assignment or transfer requiring County approval.
Section 13.80.200 Revocation or Termination of Grant. A license, franchise or cable television
franchise granted by the County to use or occupy Rights-of- Way may be revoked for anyone or more of the
following reasons:
a.
Construction or operation at an unauthorized location.
b.
Unauthorized transfer of control of the Grantee.
c.
Unauthorized assignment of a license, franchise or cable television franchise.
d.
Misrepresentation by a Grantee in any application to the County.
e.
Abandonment of Telecommunications Facilities or Cable Television Facilities in the Rights-of-
Way.
f.
Failure to relocate or remove Telecommunications Facilities or Cable Television Facilities as
required in this Ordinance.
g.
Failure to pay taxes, compensation, fees or costs when and as due the County.
h.
Insolvency or bankruptcy.
1.
Violation of a material provision of this Ordinance.
J.
Violation of a material term of a license, franchise or cable television franchise.
Section 13.80.210 Notice and Duty to Cure. In the event that the Administrator believes that
grounds exist for revocation of a license, franchise or cable television franchise, the Administrator shall give
Grantee written notice of the alleged violation or noncompliance, consisting of a short and concise statement of
the nature of the violation or noncompliance, Grantee shall be given a reasonable period oftime not exceeding
thirty (30) days to furnish evidence:
b.
c.
a.
That corrective action has been, or is being actively and expeditiously pursued, to remedy the
violation or noncompliance.
That rebuts the alleged violation or noncompliance.
That it would be in the public interest to impose some monetary damages, penalty or sanction
less than revocation.
Section 13.80.220 Hearine. In the event that a Grantee fails to provide evidence reasonably
satisfactory to the Administrator as described in Section 13.80.210, the Administrator or designee shall prepare
a recommendation and report as described in Section 13.80.230, and shall refer the matter to the Board. The
Board shall provide the Grantee with notice of not less than ten (10) business days regarding the hearing before
the Board and a reasonable opportunity to be heard, and shall decide whether to revoke the franchise or licensee,
or impose lesser sanctions.
39
Section 13.80.230 Standards for Revocation or Lesser Sanctions. If persuaded that the Grantee
has violated or failed to comply with a material provision of this Ordinance or of a franchise, license, cable
television franchise or applicable codes, ordinances, statutes, or rules and regulations, the .Administrato~ shall
make a preliminary recommendation and report to the Board as to whether to revoke the hcens~, franchise or
cable television franchise, or to impose monetary damages, a penalty, or other such lesser sanctlOn and cure,
considering the nature, circumstances, extent and gravity of the violation as reflected by one or more of the
following factors:
a.
Whether the misconduct was egregious.
b.
Whether substantial harm resulted.
c.
Whether the violation was intentional.
d.
Whether there is a history of prior violations of the same or other requirements.
e.
Whether there is a history of overall compliance.
f.
Whether the violation was voluntarily disclosed, admitted or cured.
CHAPTER 13.84
CONSTRUCTION STANDARDS
Section 13.84.010
Section 13.84.020
Section 13.84.030
Section 13.84.035
Section 13.84.038
Section 13.84.040
Section 13.84.050
Section 13.84.060
Construction Standards
Construction Codes
Utility Permits
Applications
Coordination of Construction Activities
Location of Facilities
Conduit Occupancy
Occupancy of County Owned Conduit
Section 13.84.010 Construction Standards. No Person shall commence or continue with the
construction, installation or operation of TelecommunicatÍons Facilities and Cable Television Facilities within
the County except as provided in this Ordinance, provided, however, this Chapter 13.84 shall be in addition to
the requirements of the Ordinance Establishing Accommodations of Utilities upon Jefferson County Rights-of-
Way, as enacted or from time to time amended.
Section 13.84.020 Construction Codes. Telecommunications Facilities and Cable Television
Facilities shall be constructed, installed, operated and maintained in accordance with all applicable federal, State
and local codes, rules and regulations including, but not limited to, the National Electrical Safety Code.
Telecommunications Facilities and Cable Television Facilities shall comply with the most recent standards in
the Utility Ordinance, other public works standards, and applicable County codes.
Section 13.84.030 Utility Permits. No Person shall construct or install any Telecommunications
Facilities or cable systems within the Rights-of-Way without a utility permit, as provided under Chapter 13.56
Jefferson County Code, provided however:
40
a.
No permit shall be issued for the construction or installation of Telecommunications Facilities or
Cable Television Facilities within the County unless the Telecommunications Carrier has filed a
registration statement with the County pursuant to this Ordinance; and
b.
No permit shall be issued for the construction or installation of Telecommunications Facilities or
Cable Television Facilities in the Rights-of-Way unless the Grantee has applied for and received
a franchise, cable television franchise or license pursuant to this Ordinance.
c.
Unless otherwise provided by law, or the specific terms of a franchise, cable television franchise
or license, no permit shall be issued for the construction or installation of Telecommunications
Facilities or Cable Television Facilities without payment of all fees pursuant to this Ordinance.
Section 13.84.035 Applications. Applications for permits to construct Telecommunications
Facilities and Cable Television Facilities shall be submitted in accordance with the Jefferson County Code and
associated policies and procedures. The applicant shall pay all associated fees and shall include any additional
information necessary to process the permit as requested by the Administrator. The application shall be
accompanied by drawings, plans, and specifications in sufficient detail to demonstrate:
a.
That the facilities will be constructed in accordance with all applicable codes, rules and
regulations.
b.
The location and route of all facilities to be installed on existing utility poles or structures, along
with written evidence in the form of a lease or other agreement showing that Grantee has
permission to install its' facilities on that existing pole or structure.
c.
The location and route of all facilities to be located under the surface of the ground, including the
line and grade proposed for the burial at all points along the route which are within the Rights-of-
Way.
d.
The location of all other facilities to be constructed within the County, but not within Rights-of-
Way.
e.
The engineering design criteria and methods to be employed both during and after construction
for protecting existing structures, fixtures and facilities within or adj acent to Rights-of-Way.
Section 13.84.038
Coordination of Construction Activities.
a.
All Grantees are required to cooperate with the County and with each other. Coordination of all
work shall be in accordance with the project coordination provisions contained in the current
Accommodation of Utilities upon Jefferson County Rights-of Way (Chapter 13.56 Jefferson
County Code).
b.
Underground Utilities Council. A Grantee shall be a member of and operate within the policies
established by both the Jefferson County Underground Utility Coordinating Council and the
statewide One Call Underground Utility Locate Center.
Section 13.84.040 Location of Facilities. Unless otherwise required in current or future County
ordinances regarding underground construction requirements, all facilities shall be constructed, installed and
41
located in accordance with the following terms and conditions:
a.
Telecommunications Facilities shall be installed using methods consistent with the standards,
codes, and regulations applicable to the type of Telecommunications Facilities and Jefferson
County's current Accommodation of Utilities upon Jefferson County Rights-of Way (Chapter
13.56 Jefferson County Code).
b.
Telecommunications Facilities shall be installed within an existing underground duct or conduit
whenever Excess Capacity exists within such utility facility.
c.
A Grantee, with written authorization to install Overhead Facilities shall install its
Telecommunications Facilities on pole attachments to existing utility poles only, and then only if
Surplus Space is available on the existing utility poles.
d.
Whenever all existing telephone, electric utilities, cable systems or Telecommunications
Facilities are located underground within Rights-of-Way, a licensee or franchisee with written
authorization to occupy the same Rights-of-Way must also locate its Telecommunications
Facilities underground.
e.
Whenever all new or existing telephone, electric utilities, cable television facilities or
Telecommunications Facilities are located or relocated underground within Rights-of- Way, a
licensee or franchisee that currently occupies the same Rights-of-Way shall concurrently relocate
its facilities underground at its expense.
Section 13.84.050 Conduit Occupancy. In furtherance of the public purpose of reduction of Rights-
of-Way excavation, it is the goal of the County to encourage both the shared occupancy of underground conduit
as well as the construction, whenever possible, of excess conduit capacity for occupancy of future Rights-of
Way occupants. Therefore, if a franchisee or licensee is constructing underground conduit for its own
Telecommunications Facility, and the County reasonably determines such construction is in an area in which
another Telecommunications Carrier may also construct Telecommunications Facilities in the future, including,
but not limited to, major roadways, critical areas, other environmentally sensitive areas, and urban areas, the
County may request the franchisee or licensee to construct excess conduit capacity in the Rights-of-Way,
provided the expense of such excess conduit capacity shall be borne by the County or other such Person who
contracts with the County to bear the expense.
Section 13.84.060 Occupancy of County Owned Conduit. If the County owns or leases conduit in
the path of Grantee's proposed Telecommunications Facilities, and provided it is technologically and
economically feasible for Grantee to occupy the conduit owned or leased by the County, Grantee shall be
required to occupy the conduit owned or leased by the County in order to reduce the necessity to excavate the
Rights-of-Way. Grantee shall pay to the County a fee for such occupancy calculated pursuant to the federal
formula for conduit leases, or a mutually agreeable rate if no such formula exists.
CHAPTER 13.88
FEES
Section 13.88.010
Section 13.88.020
Registration Fee
Application Fee
42
Section 13.88.030
Section 13.88.040
Section 13.88.050
Section 13.88.060
Section 13.88.070
Section 13.88.080
Refund
Other County Costs
Rights-of-Way Compensation
Utility Permit Fee
Annual Fees
Regulatory Fees and Compensation Not a Tax
Section 13.88.010 Reeistration Fee. Each application for registration shall be accompanied by a
fee, pursuant to the schedule of fees adopted by the Board.
Section 13.88.020 Application Fee. Prior to County's acceptance of an application for a license,
franchise or cable television franchise, or renewal thereof, applicants shall pay to the County an application fee
in the amount established pursuant to the schedule of fees adopted by the Board. The purpose of the application
fee is to be applied towards the recovery of County costs and expenses associated with the review of the
application including, but not limited to, actual costs of County staff time and resources as well as any outside
consultation expenses which the County reasonably determines are necessary to adequately review and analyze
the application. The application fee shall be deposited in an escrow account and shall be credited towards other
fees or deposits due to the County, less any ascertainable costs and expenses incurred by the County in
connection with the application. To the extent that the initial deposit is insufficient to fund full recovery of
County costs and expenses the applicant shall reimburse the County for such costs and expenses, within thirty
(30) days after written demand.
Section 13.88.030 Refund. Any application fee funds remaining after issuance of the license, cable
television franchise or franchise, or renewal thereof, shall be credited toward permit fees or
refunded to the applicant. An applicant whose application has been withdrawn, abandoned or
denied shall, within one hundred twenty (120) days of that event, be refunded the balance of its
fee under this Section, less all ascertainable costs and expenses incurred by the County in
connection with the application.
Section 13.88.040 Other County Costs. All Grantees shall, within thirty (30) days after written
demand with written supporting documentation having been provided to the Grantee, reimburse the County for
all direct and indirect costs and expenses incurred by the County in connection with any compliance review,
modification, amendment, or transfer of a license, franchise or cable television franchise.
Section 13.88.050 Riehts-of-Way Compensation. The license, franchise or cable television
franchisee or lessee of the County shall pay to the County a fair and reasonable compensation for the
authorization, including PEG and I-Net services, granted. The County and said grantee may agree upon the form
of such compensation in a lease, license, franchise, cable television franchise, or other written instrument, which
may include more favorable rates or free service, the provision of in-kind services, equipment and facilities, or
any combination thereof in partial satisfaction or in lieu of other obligations. Unless otherwise established by a
lease, license, franchise, cable television franchise, or other written instrument, the amount of such
compensation shall be established pursuant to the schedule of fees adopted by the Board.
Section 13.88.060 Utility Permit Fee. Prior to the County's issuance of a utility permit, the
applicant shall pay a permit fee to defray the County's actual attributable costs and expenses. The amount of
the utility permit fee shall be established pursuant to the schedule of fees adopted by the Board.
Section 13.88.070
Annual Fees. In addition to other fees provided for or referenced in this
43
Ordinance, the County reserves the right to require each licensee, franchisee, cable television franchisee or
lessee of the County to pay an annual fee to the County to reimburse the County's costs in connection with
administration and oversight of said grant, and in connection with reviewing, inspecting, monitoring and
supervising the use and occupancy of the Rights-of-Way. These amounts may be established by the Board or
specified in the license, franchise, cable television franchise, permit, lease or other authorization
Section 13.88.080 Reeulatory Fees and Compensation Not a Tax. The regulatory fees and costs
provided for or referred to in this Ordinance, and any compensation charged and paid for use of the Rights-of-
Way or other County property, are separate from, and additional to, any and all federal, State, local and County
taxes as may be levied, imposed or due from a Grantee, its customers or subscribers, on account of the lease,
sale, delivery or transmission of Telecommunications Services or Cable Services.
CHAPTER 13.92
MISCELLANEOUS
Section 13.92.010
Section 13.92.020
Section 13.92.030
Context
Effectiveness
Short Title
Section 13.92.010 Context. When not inconsistent with the context, words used in the present tense
include the future tense, words in the plural number include the singular number, and words in the singular
number include the plural number.
Section 13.92.020 Effectiveness. This ordinance shall take effect 30 days following adoption by the
Jefferson County Board of Commissioners on ~ ..:3 J;}.. 07J1)
Section 13.92.030 Short Title. Chapters 13.60 through 13.92 ofthe Jefferson County Code shall be
known as the Jefferson County Master Telecommunications Ordinance.
44
~
P AS SED and ADOPTED this 3 d day of :::sã ~ .,;< 000.
JEFFERSON COUNTY BOARD OF COUNTY COMMISSIONERS
SEAL
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ATTEST:
Approved as to form only this 2 0 ~
day of~C~jY) & R , 1999.
~A )rt, <Ù O~ ~"'7'
,J,..A:::: I v \ -, Prosecuting Attorney
D-A\)\ 1) A LV A ~Z-
45
'"
JEFFERSON COUNTY
DEPARTMENT OF PUBLIC WORKS
P.O. Box 2070
1322 Washington St.
Port Townsend, WA 98368
(360) 385-9160
TO:
Board of County Commissioners:
Dan Harpole, Chair
Glen Huntingford, Member
Richard Wojt, Member
Frank Gifford, Director/County Engineer V #
Frank Gifford, Public Works Director/County Engineer
FROM:
DATE: .~,~ April 28, 1999
(Mt4:- ð/~ /)IDj..OO I I); ..Olé3Qbf) I tJ(, -1'11,J- '!9
SUBJ: UtilitIes, Telecommunications, and Wireless Ordinance Public Hearing and Staff Comment
In response to the public hearing conducted by the Board of Commissioners on Tuesday, Wednesday, April 27, 1999,
the Department of Public Works has reviewed the public testimony received during the public hearing and offers the
following observations for your consideration prior to Public Works forwarding the Ordinances, with minor
clarifications, to the Prosecuting Attorney's Office for a finallegal review:
MASTER UTILITIES ORDINANCE TESTIMONY
.
Lisa Vernier/Representing AT&T Wireless Services:
Section 13.56.050 Utility Permit Types
Comment: Issue with this is the equipment cabinets/shelters are very large and locating them underground is
unworkable. Asked for clarification on language if you are not talking about equipment shelters. If you were
including them to be required to be underground it would cause difficulty and expenses. She recommends the
language be changed.
Staff Comment Staff acknowledges that equipment sheds/shelters for wireless facilities may need to be above
ground and further submits that these construction issues will be addressed through the building permit
process applicable to wireless siting activities not located within the rights-ofway.
Staff Recommendation: For locations within the County rights-ofway staff suggest thefollowing language
clarification noted in underline and italicized:
Utility Permit Tvpes. As far as practicable all utility providers shall construct new utility facilities
underground. Above ,¡round facilities or extension of overhead facilities following county rights-of-
wav shall be undertaken onlv with the avvroval of the Director. Provided, however, that said approval
shall not be unreasonably withheld. Permittee shall convert existing overhead facilities to underground
facilities as and when equipment replacement is undertaken, or when other existing overhead facilities
are placed underground, or when new facilities are installed, unless such placement or replacement is
unsafe, impracticable, or economically unreasonable as determined by the Director the Bß.:lr,i. Line
extension policies and procedures established by the permittee uniformly applied through its service
area, shall be the standard in determining what is "practical, impractical or economically unreasonable"
under this ordinance.
100% Recycled Paper
I.
Malcolm Harris/Representing Summit Cablevision
Section 13.56.050 Utility Permit Types Comment: Supports the categories of projects created in this section.
Section 13.56.080 Determination by County Comment: Places additional requirements in Type A
categories, which put them, back into the complicated areas. This interferes with the intent of making Type A
projects an efficient process. Requests that separate tracking requirements be eliminated by not imposing
additional fees on type A projects.
Staff Comment/Recommendation: With respect to the comment addressed to chapter 13.56.080, the issue is
addressed in Chapter 13.56.190 whereby the permit fee attributable to the Type A activity shall be paid no later
than the tenth day of each month following the preceding month's activities. This system cannot be more
simplified relative to an efficient County management process for the Type A utility installation.
Section 13.56.190 Utility Permit Fee. Prior to issuance of a utility permit within County Rights-of-
Way, the applicant shall pay a utility permit fee to recover the County's actual attributable costs and
expenses. The amount of the utility permit fee is dependent upon the type of activity being conducted
within the County Rights-of-Way as defined in section 13.56.050. For all Type A activities, the annual
utility permit fee shall be 20% of the individual utility permit fee for each Type A activity conducted
within the Rights-of-Way. The annual utility permit fee shall be paid to the County no later than the
tenth day of each month following the preceding month's activities. For all Type B activities, the
individual utility permit fee shall be established pursuant to a schedule of fees adopted by the Board.
Staff recommendation: No revision recommended.
Section 13.56.370 Aesthetic and Scenic Considerations Comment: Requests the underground fiber-optic
systems location is modified from minimum 36" below finished surface to 30" which is the industry standard
for cable TV installations.
Staff Comment & Recommendation. With respect to the comment addressed to chapter 13.56.370, regarding
the installation of fiber optic cable at a depth of not less than thirty-six (36) inches, Staff concurs in remaining
consistent with section 13.56.350 (B), therefore, chapter 13.56.370 will be amended to read as follows:
a.
"Depth. All fiber optic systems shall be installed at a depth of thirty (30) vertical inches below
the finished surface or the bottom of the ditch for all installations within County Rights-of-
Way, or in compliance with applicable federal, state and industry requirements."
.
Paul Crane/Representing: US West Wireless
Section 13.56.030 Definitions Comment: The term "franchise" could mean having to give a percentage of
revenue to Jefferson County. Requests a different name other than franchise to address that definition.
Staff Comment: The Revised Code of Washington specifically grants Counties authority to franchise as cited in
Title 36 RCW: Chapter 36.55. Historically the franchise agreement provides a means for persons or private or
municipal corporations to use the public rights of way subject to the terms and conditions therein. Franchise
agreements are the standard and recognized instrument in establishing said terms and conditions.
Staff recommendation: No revision recommended.
Section 13.56.050 Utility Permit Types Comment: U.S. West has small equipment/cabinets that can be
mounted on a pole. Requests exceptions be stated other than general all underground equipment.
Staff Comment: The minor revision to Section now provides the Director or his/her designee with the
authority to approve any aboveground utility facility.
Staff recommendation: No revision recommended.
2
'.
Bob Rogers/Representing US West
Section 13.56.050 Utility Permit Types Comment: Requests clarification that service connections are not
included in type A. That service connection is in type C but not in A
Staff Comment; Only those individual service connections requiring trenching up to 200 feet of County rights-
of way would require a Type A permit as stated. Individual service connections OVERHEAD not interfering
with other utilities, nor impacting the rights-ofway would remain an exempt activity.
Staff Recommendation: Staff recommends the following language clarification to the exemption section C, to
read as follows:
"Exempted Activities. Utility providers conducting the following exempted activities within County
Rights-of-Way shall not be required to obtain an utility permit; however, utility providers shall comply
with all other provisions of this Chapter: stringing cables on utility poles and associated maintenance
thereof, individual overhead service connections, accessing and maintenance of existing manholes,
handholes, pedestals, closures and vaults, and replacing above-ground meters, transformers, closures,
and pedestals, and performing emergency work."
MASTER TELECOMMUNICATIONS ORDINANCE TESTIMONY
.
Brad KemplRepresenting Sprint/United Telephone Companv of the Northwest
Section 13.60.080 Penalties
Comment: Enforcement Clarification Request
Staff Comment: The Section identifies that a violation of the proposed Ordinance is designated as a Class
1 Civil Infraction pursuant to 7.80 RCw. 7.80 RCW identifies a court of limited jurisdiction, including
district courts, as having jurisdiction over an alleged civil infraction. RCW 7.80.040 Enforcement Officer
Defined states: "... 'enforcement officer' shall mean a person authorized to enforce the provisions of the
title or ordinance in which the civil infraction is established" The Jefferson County Prosecuting Attorney
upholds the laws of the State of Washington and provides for and defends Jefferson County in civil
litigation.
Staff Recommendation: No revision recommended.
Section 13.68.030 Determination by County
Comment: Licensing Clarification and "Due Process" Request
Staff Comment: The Telecommunications Act addresses state and local regulation of telecommunications
providers at 47 USC 253. The proposed Ordinance states that licensing is required "to the extent permitted
by law". The licensing requirement does not result in the prohibition nor the effect of prohibiting the ability
of any entity to provide interstate or intrastate telecommunications services. The licensing requirement
does allow local government to efficiently manage the public rights of way in a timely and competitively
neutral way, without discrimination, and in a manner which conserves the limited physical capacity of the
public rights of way. Chapter 13.80 Conditions of Grant of License, Franchise, or Cable Television
Franchise identifies, in Section j 3.80.210, a public hearing and appeal process for Grantees who have
been granted rights and are bound by the obligations of the Ordinance,
Staff Recommendation: No revision recommended.
3
---
Section 13.68.040 A!!reement & Section 13.72.040 A!!reement
Comment: (1) Clarificatjon on Agreement Requirements, (2) Franchise and Compliance with Statutory
Requirements, (3) "Dispute" Resolution regarding Franchise
Staff Comment: (1) Agreements: In Section 13.68.040 the license is the agreement. In Section 13.72.040
the franchise is the agreement. The general content of agreements for licenses and franchises are clearly
identified. Section 13.68.010 License requires a license for any telecommunications carrier providing
services in the public rights of way exclusively to person or areas outside Jefferson County. Section
13.72.010 requires a franchise for any telecommunications carrier providing services in the public rights of
way to person or areas within Jefferson County. (2) Per 36.55.080 RCW Record of Franchise, all
franchises become public record and are recorded with the county auditor of each county. Jefferson County
will be in compliance with Federal laws. (3) Section 13.72.030 identifies the process and objective criteria
for County determination of franchise application. If the application is denied, the Ordinance requires a
determination including reasons for the denial based on the objective and non-discriminatory criteria for
use of the public rights of way. The applicant may resubmit with the deficiencies noted per the objective
and non-discriminatory criteria corrected.
Staff Recommendation: No revision recommended.
Section 13.72.100 Compensation to County
Comment: Questions on NegotiaÛons
Staff Comment: The Section identifies that compensation shall be in an amount established by the Board of
County Commissioners. The Board will establish any change in the current compensation schedule in an
open and non-discriminatory public process resulting in final adoption ordinance and/or resolution..
Staff Recommendation: No revision recommended.
Section 13.72.110 Nondiscrimination
Comment: Unnecessary to include due to inclusion in existing state statutes
Staff Comment: Staff has reviewed the three RCW sections cited by the testifier. All are located in Chapter
80.36 RCW Telecommunications.
Staff Recommendation: Staff does not believe that inclusion of this Section contradicts statutory
regulations. This section serves to clarify the obligations of entities applying for a franchise to occupy the
public rights of way and to provide telecommunications services to any person or area of the County. No
revision recommended.
Section 13.72.160 Obligation to Cure as a Condition of Renewal
Comment: Request provisjon of "due process"
Staff Comment: Ordinance Chapter 13.80 Conditions of Grant of License, Franchise, or Cable Television
Franchise identifies conditions including Section 13.80.200 Revocation and Termination of Grant, Section
13.80.210 Notice and Duty to Cure, and Section 13.80.220 Hearing.
Staff Recommendation: No revision recommended.
4
Section 13.80.050 Relocation or Removal of Facilities
Comment: (1) "Permittee" undefined, (2) Questions the process proposed for the public's removal,
relocation, or vacating Sprint facilities including notification procedures and compensation
Staff Comment: (1) "Permittee" is a typographic error and needs to conform to the definition "Grantee"
which is used throughout the Chapter and defined in Section 13.60.020 Definitions. (2) Section 13.80.050
identifies the criteria whereby the County shall require alteration of telecommunications carrier facilities,
the formal notice procedures and notification time frames required of the County. Existing franchise
agreement with United Telephone Company of the Northwest, RCW 36.55.060 (4) which requires
relocation when "reasonably necessary" for the construction, alteration, or improvement of county roads,
common law in the State of Washington that public utilities must bear the costs of removing and relocating
their facilities when necessary for the public use, and, specific to US West, the March 13, 1998 Order No.
97-2-08395-3 Granting Summary Judgement that US West "shall be required to pay the costs associated
with the necessary relocation of its facilities along the public rights of way and county roads when
necessary for public use" are the basis for the Section.
Staff Recommendation: Delete "Permittee JJ and Add "Grantee JJ. No additional revision recommended.
Section 13.80.080 Emereency Removal or Relocation
Comment: Disruption of Sprint facilities can also impact other emergency-related uses
Staff Comment:: Disruption of any utility is recognized as extremely disruptive and potentially dangerous
and in recognition of the seriousness of the issue the Section also uses the word "privilege JJ. The Section
states: "The County retains the right and privilege to cut or move any Telecommunications Facilities
located within the Rights-of-Way as the County may determine to be necessary, appropriate or useful in
response to any public health or safety emergency. JJ
Staff Recommendation: No revision recommended.
Section 13.80.090 Damaee to Grantee's Facilities
Comment: Questions the process proposed for the public's removal, relocation, or vacating Sprint facilities
including notification procedures and compensation
Staff Comment: The County recognizes that damage or disruption to a Grantee'sfacilities may seriously
impact the provision of services, including perhaps, emergency services to the public. The Section identifies
that the County will be responsible for damage caused by negligence on the part of the County. The County
has been and will continue to work closely with all utilities and telecommunications carriers to ensure work
is performed in our best mutual interests.
Staff Recommendation: No revision recommended.
Section 13.80.150 Securitv Fund
Comment: Concerned about costs, enforcement, and dispute resolution
Staff Comment: Bonding may be an acceptable security instrument to Jefferson County. The current
compensation ordinance requires a $37.00 payment for a license to use the right of way. There are no
annual fees. There is a one time application fee of $37.00 to Open the Rights-of-way, and a one-time
application fee $38.00 to Work in the Rights-of-way. A Franchise Application Fee is $160.00. A Franchise
Re-Application Fee is $160.00. Currently a Department of Public Works staff person is assigned at the
Jefferson County Permit Center to manage public rights of way management considerations. To work in
the public rights of way without meeting the conditions and obligations identified in the Ordinance, the
5
entity may, at the discretion of the Public Works Director, be subject to Section 13.80.060 Removal of
Unauthorized Facilities.
Staff Recommendation: No revision recommended.
Section 13.80.160 Asshmments or Transfers of Grant. Section 13.80.170 Transactions Affectin2
Control of Grant
Comment: Concerned about transfer of ownership procedures
Staff Comment: The Sections define and identify the conditions whereby "provision for a successor to
assume" ownership or control of a license, franchise, or cable television franchise for use of the public
rights of way issued by the County are transferred.
Staff Recommendation: No revision recommended.
Section 13.88.040 Other County Costs
Comment: Requests clarification of costs
Staff Comment: There currently are no costs.
Staff Recommendation: No revision recommended.
Section 13.88.050 Ri2hts DfWay Compensation
Comment: Concerned that the Ordinance may be requiring telecommunication carriers to provide pricing
in violation of state statute
Staff Comment: The Section identifies that the Board of County Commissioners shall in an amount and type
establish compensation. The Board will establish any change in the current compensation schedule in an
open and non-discriminatory public process resulting in final and lawful adoption ordinance and/or
resolution..
Staff Recommendation: No revision recommended.
Section 13.88.070 Annual Fees
Comment: Requests clarification of fees
, Staff Comment: There currently are no costs.
Staff Recommendation: No revision recommended.
.
MY. Malcolm Harris/Representing Summit Cablevision
Section 13.60.020 Definitions
Comment: "Telecommunications Carrier" implies Cable Television Carrier
Staff Comment: Section clearly defines "Cable Operator", "Cable Service", and Cable Television
Facilities" , as distinct from "Telecommunications Carrier", specifically to provide the clarity requested.
The Ordinance definitions do recognize that a" cable operator" may choose to branch into the
telecommunications field and become a "telecommunications carrier n, or vice-versa. The Ordinance
6
recognizes therefore that federal law differs with respect to telecommunications carriers and cable
operators, in fact, requiring separate franchises.
Staff Recommendation: No revision recommended.
Section 13.60.070 Application. to Existin~ Franchises
Comment: Delete Paragraph "c" due to inconsistency with existing franchise
Staff Comment: As stated in the April 27, 199 Public Testimonies, Ms. Nancy Ervin, Summit
Communications confirmed that the transfer of ownership from Summit Communications to Millennium
Digital Media is complete. The Section clearly identifies that "Except as otherwise provided in this
Ordinance, and to the extent provided by law...." We believe the specific paragraph (c) is not intended to
constitute a breach of an existing franchise agreement, be in conflict with the Federal Cable Acts, or
contravene the Contracts Clause of the Constitution.
Staff Recommendation: No revision recommended.
Chapter 13.76 Cable Franchise
Comment: Clarify that only Chapter 13.76 is applicable to cable television service
Staff Comment: A careful reading of the Ordinance is required due to the complexity of the issues
surrounding statutory requirements at federal level regarding cable services. There is no limit in
additional efforts to clarify but staff is attempting to balance concise language, legal precedent, and clarity
for the lay reader.
Staff Recommendation: Additional language such as "as defined under Federal Law, and as separate and
distinct from telecommunications licenses and cable television franchises" could be added in Chapter
13.72 Franchises under Section 13.72.010 Franchise, and in Chapter 13.68 Licenses under Section
13.68.010 License.
Ordinance in General
Comment: Exact fees and costs and other compensation are not identified.
Staff Comment: Costs are identified in franchise agreement.. There is a one time application fee of $37.00
to Open the Rights-aI-way, and a one-time application fee $38.00 to Work in the Rights-aI-way. A
Franchise Application Fee is $160.00. A Franchise Re-Application Fee is $160.00. The Board in a public
process adopts this compensation schedule.
Staff Recommendation: No revision recommended.
.
Ms. Lisa Vemier/Representing AT&T Wireless and AT&T
Section 13.13,76,240 Internet Accessibility
Comment: Remove and delete from Ordinance; AT&T has no intention of preventing customers from
using ISP of customer's choice
Staff Comment: This issue goes to the heart of the best way to spur development of high-speed Internet
access and the role of government in partnership with business. Cable television is and will continue to
provide high speed Internet access through its proprietary infrastructure. Currently, for example, in the
Seattle metropolitan area, customers are allowed to choose a competing Internet Service Provider other
than the cable service's dedicated internet service, but subscribers must still pay for the cable service's
7
proprietary internet service provider system to ensure no "disruption" to other cable services provided to
subscribers. The Section begins by stating "When permitted by Federal and State law... " Staff believes
this condition provides satisfactory protection for both parties.
Staff Recommendation: No revision recommended.
.
Mr. Ben WelchlReuresenting Townsend Communications
Section 13.13.76.240 Internet Accessibility
Comment: Supports open and reasonably priced access to cable television systems by Internet Service
Providers, if supported by the FCC and other state and federal laws, as a way to ensure diverse services to
the public.
Staff Comment: Please refer to Staff Comment on 1. Vernier's testimony directly above
WIRELESS SERVICES ORDINANCE
.
Malcolm HarrislRepresenting Summit Cablevision
Section 18.42.020 Exemptions
Comment
Summit Cable commented that cable television reception towers should be specifically exempt from the
provisions of the ordinance. Comment had been previously received from Puget Sound Energy that "facilities
installed in conjunction with and support of Automated Meter Reading technology maintained by a government
entity, public utility, or other franchised utility" should be exempt.
Staff Comment: This section begins with the statement that "This chapter applies to the location, placement,
construction and modification of licensed or unlicensed personal wireless service facilities as defined in this
chapter. }J Cable TV reception towers and Automated Meter Reading technology are not personal wireless
service facilities. They are not subject to the ordinance. It is unnecessary and potentially confusing to list in the
Exemptions section all of the various types of communications facilities that are not personal wireless service
facilities.
Staff Recommendation: No revision recommended.
.
Lisa VemierlRepresenting AT&T Wireless
Section 18.42.070 Colocation Procedure
Comment:
This section requires that at the time a pre-application conference is scheduled for a new tower, the applicant
shall demonstrate that a letter has been mailed to all other wireless providers licensed to provide service in the
County informing them of the applicant's proposal and inquiring about the opportunities for colocation.
AT&T Wireless commented that communication between providers at this stage of project development may
be perceived as collusion constituting a violation of anti-trust laws. It was recommended that the process of
colocation notification be moved to the time of permit application. Because permit applications are matters of
public record, the issue of collusion would not arise.
u.S. West Wireless stated that this section should state that no response from another provider should imply
that no colocation opportunity exists.
8
Staff Comment: The cola cation procedure is intended to foster meaningful opportunities to reduce the
impacts of wireless towers by reducing their number through colocation. In order to achieve this goal
it is necessary to require early notice to other providers. This is best done prior to initiating the
application process. After that point, land or leases have been acquired, engineering and planning
analysis has been undertaken, and tower plans are complete. There is less incentive and opportunity
for colocation.
Staff has discussed this issue with Mr. Phil Grillo, Miller Nash LLP, expert in wireless communication law
serving as legal counsel to the Department in the development of the Ordinance.
Staff Recommendation:
The requirement to request information regarding colocation opportunities when scheduling a pre-application
meeting should be retained. Regarding the lack of response to the colocation inquiry, the following statement
could be added to the ordinance: . "If a response to the colocation notice is not received. this shall be
interpreted that there are no opportunities for colocation ".
Section 18.42.090 Deshm Review Standards Subsection a. 4. Colocation
Section Summary: More than three providers may co-locate on an existing tower or alternative support,
provided that engineering data prepared by a structural engineer licensed in the State of Washington is
submitted to the Building Official that certifies that additional antennas can be safely added to the tower.
Comment:
AT&T expressed concern that this section would require providers to design and construct towers to
accommodate the antennas of other providers without providing compensation for the additional expense that
this would entail. It was suggested that a second provider should be allowed to locate adjacent to the existing
tower or, If the County requires colocation, the County should reimburse the provider for added expenses
related to increased structural capacity.
Staff Comment: This section does not require providers to construct towers with the structural capacity for
colocating additional antennas. Rather this is intended to provide assurance through the building permit
review that a tower or alternative support has the structural capacity for additional antennas, if more than
three are proposed.
Staff has discussed this issue with the Building Official. He stated that a structural analysis by a licensed
engineer would be required for approval of an application to colocate an additional antenna on an existing
tower.
Staff Recommendation: This requirement is already provided through the building permit review. Section
18.42. 090.a.4 could be deleted without an adverse effect on public safety.
Section 18.42.090 Desi~n Review Standards Subsection a. 6. Fencin~ and Security
Summary ofIssue: Wireless facility towers and accessory equipment shall be enclosed by a minimum six feet
high security fence.
Comment: u.s. West Wireless stated that this requirement was not necessary for antennas placed on utility
poles.
Staff Comment: Staff concurs that this would be unnecessary. It is not intended by the ordinance. The section
refers to towers. They are defined in the ordinance as "a structure designed and constructed specifically to
support an Antenna Array.. .Any device that is used to attach an antenna or antenna array to an existing
support structure is excluded from the definition of and regulations applicable to towers. " An antenna mounted
on a utility pole would not constitute a tower and would not require a security fence unless there was accessory
equipment that was located on the ground.
Staff Recommendation: No revision recommended.
9
.
Paul CranelW&H Pacific Representing US West Wireless
Subsection b. Desi!!n Review Standards-Conditional Uses
Summary ofIssue: In addition to the Wireless Facility General Design Review Standards set forth above,
wireless communication facilities subject to conditional use review shall comply with the following design
review standards:
1. Protecting Points of Visual Interest: Views towards the following points of visual interest from residential
structures located within 250 feet of a proposed wireless communication facility subject to conditional use
review shall be protected from significant degradation to the greatest extent practicable:
a) Mountains
b) Marine Waters and Shorelines
c) Public Parks and Significant Public Open Spaces
d) Historic Structures
The applicant for a conditional use wireless communication facility shall either demonstrate that the points of
visual interest listed above will not be significantly degraded by the proposal or demonstrate that a significant
wireless telecommunication service can only be provided by development of the proposed facility.
2. Methods for Protecting Points of Visual Interest: The following standards may be used to protect the points
of visual interest listed above:
a) Use alternative facility designs and locations on the parcel to minimize the degradation of
views from residences to the point of visual interest.
b) Maintain existing trees and shrubs on the site and/or provide additional landscaping.
c) Obtain leases or easements for the life of the proposal to protect trees and shrubs on
adjoining properties that will screen the proposed facility or to allow the planting of
additional trees and shrubs.
3. In the event that it is not practicable to protect the visual points of interest listed above from significant
degradation, the applicant for a conditional use wireless communications facility shall minimize the visual
effect to the greatest extent practicable and shall also demonstrate through appropriate analysis that:
a) There are not other locations within the same parcel where the visual effects would be less.
b) Colocation or attachment on an alternative structure within the service area is not feasible.
c) Development on an altemative site with decreased visual effects within the service area is
not feasible.
In the event that it is not practicable to protect the visual points of interest listed above from significant
degradation, the applicant for a conditional use wireless communications facility shall minimize the visual
effect to the greatest extent practicable and shall also demonstrate through appropriate analysis that:
There are not other locations within the same parcel where the visual effects would be less.
Colocation or attachment on an alternative structure within the service area is not feasible.
Development on an alternative site with decreased visual effects within the service area is not feasible.
Comment:
u.S. West Wireless stated that this section is vague and arbitrary. The term "significant open space" was cited
as an example. In order to have greater predictability and consistency this section needs to be based on a
formula. There was also objection to requiring a lease to protect vegetation on adjacent property.
Staff Comment
This section addresses the most difficult aspect of regulating wireless facilities: balancing the needs of wireless
providers to site large towers against the Federally recognized authority of local government to exercise
zoning authority over the placement of wireless facilities. The types of concerns addressed by this section are
often complex and controversial. It is very difficult to address these concerns through the application of a
formula or by referring to lists of specific view amenities.
10
That is why these uses are proposed to be subject to conditional use review in residential and commercial
areas. Conditional use review requires the decision-maker to exercise discretion in applying design review
standards, but that discretion must be supported by a record that is established at a public hearing and is
subject to appeal at a closed record hearing. Reliance upon the public hearing process is preferable to reliance
on a rigid formula.
Finally, it should be noted that obtaining a lease or easement to protect screening vegetation on adjacent
property is only one of three standards that mav be used to protect points of visual interest. This is a legitimate
requirement in cases where visual impacts are mitigated by screening vegetation that is not under the control
of the applicant.
Staff Recommendation: Revision is not recommended.
Cc:
Jue1ie Dalzell, Prosecuting Attorney
Shirley Waters, Deputy Prosecuting Attomey
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11
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HARRIS, MERICLE, WAKA YAM A & MASON
A Professional Limited Liability Company
ATTORNEYS AT LAW
MALCOLM S. HARRIS
e-mail: mharr@ halcyon. corn
999 THIRD A VENUE, SUITE 3210
SEA TILE, WASHINGTON 98104
FAX (206) 624-8560
(206) 621-1818
April 22, 1999
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Port Townsend Office
213 TAYLOR STREET
PORT TOWNSEND, WASHINGTON 98368
FAX (360) 379-9378
(360) 379-9377
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APR 2 3 1999
JEFFERSON COUNTY
BOARD OF COMMISSiONERS
The Honorable Jefferson County Commissioners
Jefferson County Courthouse
P.O. Box 1220
Port Townsend, WA 98368
Re: Jefferson County Cable TV Franchise
Dear Commissioners:
I am writing to you on behalf of my client, Summit Cablevision, to communicate
their comments upon the draft Ordinance entitled "Telecommunications Use of Jefferson
County Rights of Way", proposed to be added as Chapter 13.60 of the Jefferson County
Code, and upon the related Utilities and Wireless Ordinances.
A.
Telecommunications Ordinance
(1) The first issue which we would like to address is a serious constitutional
question. As you know, Summit already has a franchise from Jefferson County (resolution
No. 63-81, dated June 23, 1981, which runs until 2006. That franchise was granted
pursuant to the terms of Ordinance No. 2-81. Those documents spelled out the
contractual terms upon which Summit was granted a non-exclusive right to operate its
cable franchise in Eastern Jefferson County. The rights granted to Summit are rights
which Summit is entitled to enjoy for the balance of the term of the contract.
Among the rights which were granted to Summit was the right to assign the
contract to another cable operator. Section 15 of Ordinance No. 2-81 reads as follows:
All the provisions, conditions, regulations and requirements herein
contained shall be binding upon the successors, assigns and
independent contractors of the grantee, and all rights and privileges
of the grantee shall inure to its successors, assigns and such
Jefferson County Commissioners
April 22, 1999
Page 2
contractors equally as if they were specifically mentioned
herein wherever the grantee is mentioned.
The grantee, its successors and assigns shall have the right to sell,
transfer or assign said franchise upon giving written notice of its
intention to do so not less than sixty (60) days in advance of the date
of any proposed transfer to the Clerk of the Board of Jefferson
County Commissioners.
These provisions were expressly incorporated into the franchise resolution at paragraph
(2) thereof:
(2) The terms and conditions of Jefferson County Ordinance No. 2-
81, an ordinance prescribing terms and conditions for franchise
agreements granted by Jefferson County, are incorporated herein by
reference and made a part of this Resolution for all purposes as fully
as if set forth in this Resolution.....
We are concerned that the proposed new ordinance seeks to alter the rights granted
to Summit under the existing franchise agreement. The ordinance provides, at Section
13.60.070 that:
.....this Ordinance shall have no effect on any existing franchise or
agreement until:
(a) ...
(b)...
(c) Any transaction which results in transfer of
ownership or working control on the franchisee.
The County seems to be taking the position that the existing franchise will be terminated
and that the County will have the right to negotiate a new contract if and when Summit
should decide to transfer the franchise agreement to a new operator. This is completely
inconsistent with Summit's existing contractual right to freely assign the franchise.
The Washington State Constitution, at Article 1, Section 23, provides as follows:
No bill of attainder, ex post facto law or law impairing the obligations
of contracts shall ever be passed. [emphasis added]
Jefferson County Commissioners
April 22, 1999
Page 3
We therefore believe that subsection (c) of Section 13.60.070 of the new Ordinance is
unconstitutional, since it would impair Summit's contractual right to assign the contract
at any time during the remaining term of the contract. Summit therefore demands that
subsection (c) be deleted from the ordinance.
This is not just an academic issue. The value of any existing franchise contract
would be seriously impaired if the County has, in effect, a right to demand renegotiation
of the contract when an assignment occurs. This would make it almost impossible to sell
a franchise, since the proposed assignee would have no ability to assess the costs of
operating the franchise and would be faced with the daunting prospect of renegotiating
a new contract.
(2) The next issue which we would like to address is the question of which
sections of the Ordinance apply to a Cable TV franchisee. Obviously, Chapter 13.75
("Cable Franchises") applies, but what about the earlier chapters, which discuss licenses,
fees and other provisions. The definition of "Telecommunications Carrier" is so broad,
they we are concerned that the whole Ordinance may apply to a Cable TV operator, not
just the section on Cable Franchises. For instance, do sections 13.60.040, 050 and 060 all
apply to a Cable TV operator, or just section 060? Does Chapter 13.72 ("Franchises") apply
to Cable TV operators, or just Chapter 13.76 ("Cable Franchises"). Are the "cable Television
Franchise Fees" (Section 13.76.100) the only fees which will be charged to a Cable operator,
or must he also pay the other registration fees, license fees, "Compensation to County"
(Section 13.72.100) and other charges set forth in the ordinance?
In summary, the ordinance is absolutely festooned with charges, fees, Registration
Fees (Section 13.88.010), Application Fees (Section 13.88.020), license requirements,
reimbursement requirements, "other County costs" (Section 13.88.040), "Utility Permit Fee"
(Section 13.88.060), "Annual Fees" (Section 13.88.070) -- but it is completely unclear which
of these fees apply to a Cable operator. If they all apply, then their cumulative affect is
downright abusive and unreasonable.
(3) Whether or not the County intends or is legally entitled to charge all of these
fees to a cable operator, some of them are so vague and open-ended that there is no way
to insure that the County will be reasonable in calculating the amount of such charges.
For instance, what are the "direct and indirect costs" referred to in Section 13.88.040? If
imposed, how would the annual fee (Section 13.88.070) be calculated? Is there any way
that a franchisee can predict what these costs would be?
Jefferson County Commissioners
April 22, 1999
Page 4
As indicated above, we do not believe that the County can now adopt any
Ordinance which impairs or alters the essential economic provisions of Summit's existing
franchise. We therefore assume that none of the new provisions in this Ordinance will
affect Summit's operations during the remainder of the existing franchise, Le., until 2006,
and thereafter only as agreed to. We believe, however, that both the County and Summit
must be looking ahead to the negotiations for the renewal of the cable franchise in
advance of its expiration. If an unreasonable Ordinance is adopted now, it will be very
difficult for the County to attract cable TV operators to Jefferson County in the future.
(4) Unfortunately, the proposed Ordinance gives us the impression that the
County believes that the cable franchising process is just a "cash cow" which the County
can "milk" for revenues. We believe that the County must understand that CATV
operators are engaged in a serious struggle to survive against the competition from
satellite operators. Unless the County appreciates these economic realities, it is uncertain
whether any cable operator will want to provide cable service in sparsely-populated areas
like Jefferson County in the future. It used to be that cable was the only medium by which
persons could receive television programming in such areas. When satellite service first
appeared, it was not able to make serious inroads on cable service, since it was burdened
by serious disadvantages: (1) the cost for monthly satellite service was very high, (2) the
installation costs for large dish antennas was many hundreds or even thousands of dollars,
(3) the large dish antennas were not allowed in many communities, and (4) satellite
contained no local programming. All of those disadvantages have now vanished! The
montWy cost of satellite service is about the same as cable, the new 18" dish antennas are
inexpensive and not prohibited by any community, and local programming is now
available on some satellite services. In other words, all of the competitive advantages
which cable previously enjoyed are gone -- and all of satellite's advantages have been
preserved: they do not have to pay any local taxes, pole fees or franchise fees, nor do
they have to provide any special local programming or PEG or I-net services mandated
by local governments. They just come out of the ether and do what they want to do!!
This is true, even though they still use the roads and rights of way in the County for
purposes of providing installation and servicing for their customers.
Given these economic and technological realities, local governments must recognize
that they can no longer assume that cable operators are just another expanding revenue
source. If local governments want to have the services which only cable can provide (PEG
channels, I-net services), then they must foster an atmosphere in which the cable operator
can compete and survive. We respectfully observe that the proposed Ordinance does
Jefferson County Commissioners
April 22, 1999
Page 5
accomplish that goal and will serve as statutory framework which will discourage, rather
than encourage, cable operators to provide service in Jefferson County.
B.
Wireless Ordinance.
We request that the CATV headends be specifically exempted from the Colocation
and other requirements of the Wireless Ordinance. While the goal of colocating
communications towers is certainly worthwhile, it has been our experience that colocation
of CATV and cellular telephone towers can cause serious interference with the quality of
CATV television programming. Summit's principal headend in Jefferson County is now
located in the City of Port Townsend and is the subject of a Conditional Use Permit which
effectively deals with all of the setback and environmental issues. This headend is a
receiver only and does not transmit any electromagnetic radiation. Summit does not want
that facility or others to be located near any facility which transmits RF signals.
c.
Utility Ordinance.
(1) In section 13.56.050, a "Type A" category of projects is created to provide
speedy review of smaller projects. We welcome this efficient treatment of such projects,
but note that Section 13.56.080 is somewhat inconsistent with the spirit of the "Type A'
project, since it requires that additional fees be paid retroactively for such projects. This
would impose additional accounting and administrative costs upon the franchisee to track
those projects separately, which makes them complicated and inefficient again!
(2) Section 13.56.370 requires that fiber optic cable be at least 36" below the
surface. We request that this be changed to 30", which is the industry standard. Most
plows and other equipment used to bury such cables is designed to go only 30" deep and
the additional 6" will require the use of specialized equipment. There is no safety reason
for placing such cable deeper, and Summit would bear the risk of damage, so we do not
understand why the County would care about the depth. We note elsewhere in the
Ordinance that 30" is specified for other types of cable (see section 13.56.350 b.).
" .
Jefferson County Commissioners
Apri122,1999
Page 6
Thank you for considering these comments and giving us the opportunity to
consult with you prior to adoption of the new Ordinances. We will appear at the public
hearing on April 27 and hope that we can discuss these issues in greater detail.
Yours very truly,
HARRIS, MERICLE, 1,VAKAYAlIÆA & MASON
..,
Malcolm S. Harris
cc:
Will Butterfield
Stephen Weed
Nancy Ervin