§ 11.14.020. Definitions.

For the purposes of this chapter, the following terms, phrases, words, and abbreviations shall have the meanings given herein. 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; and the masculine gender includes the feminine gender. The words "shall" and "will" are mandatory, and "may" is permissive. Words not defined in this chapter shall have the same meaning as in Title VI of the Communications Act of 1934, as amended, 47 U.S.C. §§ 521 et seq., and if not defined therein, their common and ordinary meaning. References to governmental entities (whether persons or entities) refer to those entities or their successors in authority. If specific provisions of law referred to herein are renumbered, then the reference shall be read to refer to the renumbered provision. References to laws, ordinances or regulations shall be interpreted broadly to cover government actions, however nominated, and include laws, ordinances and regulations now in force or hereinafter enacted or amended.

A.

"Access," "PEG access," or "PEG use" refers to the availability of a cable system or open video system for public, education or government use (including institutional network use) by various agencies, institutions, organizations, groups, and individuals, including the City of Port Angeles and its designated access providers, to acquire, create, and distribute programming not under a franchisee's editorial control.

B.

"Affiliate" means a person, who (directly or indirectly) owns or controls, is owned or controlled by, or is under common ownership or control with another person.

C.

"Applicant" means any person or entity that applies for any right-of-way license, franchise, lease, or other permit pursuant to this chapter.

D.

"Application fee" means the charge specified in section 11.14.110 herein, and designed to recover the City's actual administrative costs in processing applications for any right-of-way license, franchise, lease or other permit pursuant to this chapter, including applications for the transfer thereof.

E.

"Basic service" means any service tier regularly provided to all subscribers which includes the public, educational, and government access channels and the retransmission of local television broadcast signals.

F.

"Cable communications system" means the Cable Communications Policy Act of 1984, 47 U.S.C. 521 et seq., as amended by the Cable Television Consumer Protection and Competition Act of 1992, as further amended by the Telecommunications Act of 1996, and as may be further amended from time to time.

G.

"Cable communications system" refers to open video systems (OVS) and cable systems.

H.

"Cable facilities" has the same meaning as "cable system".

I.

"Cable system" means a facility, consisting of a set of closed transmission paths and associated signal generation, reception and control equipment that is designed to provide cable service which includes video programming and which is provided to multiple subscribers within a community, but such term does not include:

1.

A facility that serves only to retransmit the television signals of one or more television broadcast stations;

2.

A facility that serves subscribers without using any public right-of-way;

3.

A facility of a common carrier which is subject, in whole or in part, to the provisions of Title II (Common Carriers) of the Communications Act of 1934, as amended, except that such facility shall be considered a cable system to the extent such facility is used in the transmission of video programming directly to subscribers, unless the extent of such use is solely to provide interactive on-demand services;

4.

Any facilities of any electric utility used solely for operating its electric utility systems; or

5.

An open video system that is certified by the FCC.

A reference to a cable system includes pedestals, equipment enclosures (such as equipment cabinets), amplifiers, power guards, nodes, cables, fiber optics and other equipment necessary to operate the cable system.

J.

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

K.

"Channel" means a time or frequency slot or technical equivalent on the cable system, discretely identified and capable of carrying full motion color video and audio, and may include other non-video subcarriers and digital information.

L.

"City" means the City of Port Angeles, a municipality of the State of Washington, in its present incorporated form or in any later reorganized, consolidated, enlarged or reincorporated form.

M.

"City Manager" means the City Manager and the City Manager's designee.

N.

"City property" means and includes all real property, utility poles, conduits, bridges and other facilities owned or controlled by the City, other than public streets and utility easements as those terms are defined herein, and all property held in a proprietary capacity by the City, which are not subject to right-of-way licensing and master permitting as provided in this chapter.

O.

"Construction, operation or repair" and similar formulations of those words, indicating actions, interpreted broadly, encompassing, among other things, installation, extension, maintenance, replacement of components, relocation, undergrounding, grading, site preparation, adjusting, testing, make-ready, and excavation.

P.

"Council" means the City Council of the City of Port Angeles, Washington.

Q.

"Director" means the Director of Public Works and Utilities of the City of Port Angeles and his/her designee.

R.

"Downstream channel" means a channel designed and activated to carry a transmission from the headend to other points on a cable communications system, including interconnections.

S.

"Educational access" or "educational use" means access where educational institutions are the primary or designated programmers or users having editorial control over their communications.

T.

"Emergency" means a condition of imminent danger to the health, safety and welfare of property or persons located within the City 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 facilities within the right-of-way that is or will be available for use for additional telecommunications facilities.

V.

"Facilities" has the same meaning as telecommunications facilities.

W.

"Facilities lease" or "lease" means the legal authorization to occupy and use specific City property and/or specific areas of City right-of-way for the specified time and under the specified terms as agreed to between the City and the lessee.

X.

"FCC" or "Federal Communications Commission" means the federal administrative agency or lawful successor, authorized to regulate and oversee telecommunications, cable and open video carriers, operators and providers on a national level.

Y.

"Fiber optics" means the technology of guiding and projecting light for use as a communications medium.

Z.

"Franchise" means the prior authorization, granted by the City to the operator of a cable communications system giving the operator the non-exclusive right to occupy the space in, under, over or across rights-of-way of the City to provide a specified service within the City. Such franchises do not include and are not a substitute for:

1.

Any other permit or authorization required for the privilege of transacting and carrying on a business within the City required by the ordinances and laws of the City;

2.

Any permit, agreement or authorization required in connection with operations on or in public streets or property, including by way of example and not limitation, right-of-way construction, use and street cut permits;

3.

Any permits or agreements for occupying any City property or property of private entities to which access is not specifically granted by the franchise including, without limitation, permits and agreements for placing devices on or in any City property including, without limitation, poles, conduits, buildings, other structures or railroad easements, or property of a private entity; or

4.

The right to place devices in the right-of-way, such as pay telephones, for end user use in terminating or originating transmissions.

By way of example, and without limiting the foregoing, this chapter shall not be read to diminish or in any way affect the authority of the City to control and charge for the use of its real estate, fixtures or personal property. Therefore, any person who desires to use such property must obtain additional approvals, master permits, use permits or agreements for that purpose, as may be required by the City or state law.

AA.

"Franchisee" means the person, firm or corporation to whom or which a franchise, as defined in this section, was previously granted by the City and the lawful successor, transferee or assignee of said person, firm or corporation subject to such conditions as may be established in this chapter.

BB.

"Franchise area" means the area of the City that a franchisee is authorized to serve by the terms of its franchise or by operation of law.

CC.

"Franchise fee."

1.

In consideration of the grant and exercise of a franchise to construct, install, operate, or provide services using facilities in the public rights-of-way, a franchisee shall pay to the City a franchise fee expressed as a percentage of gross revenues. The franchise shall specify the fee to be paid, and the gross revenues to be included in the fee calculation. If a franchise granted pursuant to this chapter specifies a franchise fee established as the result of limiting applicable law, the City shall have the option to renegotiate the amount of the franchise fee upon a change in applicable law. Nothing herein requires a person to pay amounts in excess of any limits that may be established by state or federal law.

2.

UVPP fees. A UVPP (unaffiliated video program provider) that provides services using a cable communications system for which charges are assessed to subscribers, but are not received by the franchisee, shall pay a fee in lieu of a franchise fee on such service pursuant to the franchise fee calculation contained in the franchisee's franchise.

DD.

"Government access" or "government use" means access where government institutions or their designees are the primary or designated programmers or users having editorial control over their communications.

EE.

"Grantee" means the holder of a franchise right-of-way license, master permit, use permit or facilities lease.

FF.

"Gross revenues" means all cash, credits, property, or other consideration of any kind or nature received directly or indirectly by a franchisee or its affiliates, from any source whatsoever arising from, attributable to, or in any way derived from a franchisee's operation of a cable communications system to provide cable service within the franchise area. Gross revenues include, but are not limited to, fees charged to subscribers for cab; fees charged to subscribers for any optional, premium, per-channel, or per-program service; monthly fees charged to subscribers for any tier of service other than basic service; installation, disconnection, re-connection, and change-in-service fees; leased channel fees; fees, payments, or other payment received as consideration from programmers for carriage of programming on the cable communications system; converter rentals or sales; studio rental, production equipment, and personnel fees; advertising revenues, including a per capita share of advertising revenues for advertising carried on more than one cable communications system; revenues from home shopping channels; sales of programming guides; late fees; and such other revenue sources as may now exist or hereafter develop. The definition shall be interpreted in a manner that permits the City to collect the maximum franchise fee permitted by law, irrespective of the source of revenue. Gross revenues, however, shall not include any bad debt (defined as unpaid subscriber or advertiser accounts), any taxes on services furnished by a franchisee or UVPP and imposed directly upon any subscriber or user (as opposed to the franchisee or UVPP) by the state, City, or other governmental unit and collected by a franchisee or UVPP on behalf of said governmental unit. The franchise fee is not such a tax, and the amount paid as a franchise fee shall not be deducted from gross revenues.

GG.

"License" or "right-of-way license" refers to the legal authorization, in lieu of a franchise or master permit, to use a particular, discrete, and limited portion of the public rights-of-way to construct, maintain or repair a telecommunications facility or a private telecommunications system by a non-service provider. The term license or right-of-way license shall not mean or include:

1.

Any other permit or authorization required for the privilege of transacting and carrying on a business within the City;

2.

Any other permit, agreement or authorization required in connection with operations on public streets or property, including by way of example and not limitation, right-of-way construction permits or use permits as defined in Chapter 11.08 PAMC;

3.

Any permits or agreements for occupying any City property or property of private entities to which access is not specifically granted by the right-of-way license including, without limitation, permits and agreements for placing devices on or in any City property including, without limitation, poles, conduits buildings, other structures or railroad easements, or property of a private entity; or

4.

The right to place devices in the right-of-way, such as pay telephones, for end-user use in originating and terminating transmissions, otherwise authorized, such as by a facilities lease.

HH.

"Master permit" means the agreement between the City in which it grants general permission to a service provider to enter, use, and occupy the right-of-way for the purpose of locating facilities. For purposes of this chapter, a franchise, except for a cable television franchise, is a master permit.

A cable television franchise granted pursuant to this chapter shall, with respect to the cable services provided by a cable communications system operator, be in lieu of the master permit license required by this chapter.

The term master permit shall not mean or include:

1.

Any other permit or authorization required for the privilege of transacting and carrying on a business within the City.

2.

Any other permit, agreement or authorization required in connection with operations on public streets or property, including by way of example and not limitation, right-of-way construction permits and use permits as defined in Chapter 11.08 PAMC.

3.

Any permits or agreements for occupying any other property of the City or private entities to which access is not specifically granted by the master permit including, without limitation, permits and agreements for placing devices on or in poles, conduits other structures, or railroad easements, whether owned by the City, or a private entity.

4.

The right to place devices in the right-of-way, such as pay telephones, for end-user use in originating and terminating transmissions, otherwise authorized, such as by a facilities lease.

II.

"Non-service provider" means any person installing, constructing, monitoring or operating a private telecommunications system or installing, constructing, maintaining facilities, including but not limited to, conduit and/or unlit dark fiber located in the right-of-way that is not used to provide telecommunications service for hire, sale or resale to the general public.

JJ.

"Open video system" or "OVS" means a facility consisting of a set of transmission paths and associated signal generation, reception and control equipment that is designed to provide cable service, which includes video programming, which is provided to multiple subscribers within a community, and which the Federal Communications Commission or its successor has certified as compliant with Part 76 of its rules, 47 C.F.R., Part 76, as amended from time-to-time.

KK.

"Open video system service" means video programming by means of an open video system.

LL.

"Operator," when used with reference to a system, refers to a person: (a) who, directly or through one or more affiliates, provides service over a cable communications system and directly or through one or more affiliates owns a significant interest in such facility; or (b) who otherwise controls or is responsible for, through any arrangement, the management and operation of such a system.

MM.

"Other ways" means the highways, streets, alleys, utility easements or other rights-of-way within the City; but under the jurisdiction and control of a governmental or private entity other than the City.

NN.

"Overhead facilities" refers to electric utility and telecommunications facilities located above the surface of the ground, including the underground supports and foundations for such facilities.

OO.

"PEG" means public, educational, and government access channels collectively.

PP.

"Person" means and includes corporations, companies, associations, joint stock companies or associations, firms, partnerships, limited liability companies and individuals and includes their lessors, trustees and receivers but does not include the City.

QQ.

"Personal wireless service" means commercial mobile services, unlicensed wireless services, and common carrier wireless exchange access services, as defined by federal law and regulations.

RR.

"Private telecommunications facilities" means all of the plant, equipment, fixtures, appurtenances, antennas, and other facilities necessary to furnish and deliver private telecommunications services, including but not limited to, poles with crossarms, poles without crossarms, wires, lines, conduits, cables, communication and signal lines and equipment, braces, guys, anchors, faults, and all attachments, appurtenances and appliances necessary or incidental to the distribution and use of private telecommunications services. "Private telecommunications facilities" also includes any conduit, lines, fiber or unlit dark fiber that is not used to provide telecommunications services for hire, sale or resale to the general public.

SS

"Private telecommunications system" means a telecommunications system controlled by a person or entity for the sole and exclusive use of such person, entity or affiliate thereof, including the provision of private shared telecommunications services within a user group located in discrete private premises in building complexes, campuses or high rise buildings, by such party or entity, but not encompassing in any respect, a system offered for hire, sale or resale to the general public. For the purposes of this chapter, "private telecommunications system" also includes facilities comprised of conduit, lines, fiber or unlit dark fiber located in the right-of-way that are not used to provide telecommunications services for hire, sale or resale to the general public.

TT.

"Private telecommunications system owner" means a person that owns or leases a private telecommunications system.

UU.

"Proposal" means the response, by an individual or organization, to a request by the City regarding the provision of telecommunications services. "Proposal" also includes an unsolicited plan submitted by an individual or organization seeking to provide telecommunications services in the City.

VV.

"Public access" or "public use" means access where organizations, groups, or individual members of the general public, on a non-discriminatory basis, are the primary or designated programmers or users having editorial control over their communications.

WW.

"Public property" means "City property" as defined herein.

XX.

"Public rights-of-way" means "right-of-way" as defined herein.

YY.

"Revocation" means the City's affirmative act of terminating a franchise.

ZZ.

"Right-of-way" means land acquired or dedicated for roads and public streets and easements for which, under City ordinances and other applicable laws, the City has authority to grant master permits, licenses or leases for use thereof, or has regulatory authority thereover, and may be more specifically defined in the master permit, license or lease granting any right to or use thereof. "Rights-of-way" for the purpose of this chapter do not include buildings, parks, poles, conduits or similar facilities or property owned by or leased to the City, including, by way of example and not limitation, structures in the right-of-way such as utility poles, and bridges.

AAA.

"School" means any accredited primary school, secondary school, college, and university.

BBB.

"Service provider" means every corporation, company, association, joint stock association, firm, partnership, or person owning, operating, or managing any facilities used to provide and providing telecommunications or cable television service for hire, sale, or resale to the general public. Service provider includes the legal successor to any such corporation, company, association, joint stock association, firm, partnership, or person.

CCC.

"State" means the State of Washington.

DDD.

"Subscriber" means the City or any person who is lawfully receiving, for any purpose or reason, any cable service via a cable communications system with franchisee's express permission, whether or not a fee is paid for such service.

EEE.

"Surplus space" means that portion of the usable space on a utility pole, or in a duct or conduit which has the necessary clearance from other users, as required by federal or state orders and regulations, to allow its use by a telecommunications carrier for a pole attachment or other telecommunications facility.

FFF.

"Telecommunications facilities" means all of the plant, equipment, fixtures, appurtenances, antennas, and other facilities necessary to furnish and deliver telecommunications services, including but not limited to, poles with crossarms, poles without crossarms, wires, lines, conduits, cables, communication and signal lines and equipment, braces, guys, anchors, faults, and all attachments, appurtenances and appliances necessary or incidental to the distribution and use of telecommunications services.

GGG.

"Telecommunications service" means the transmission of information by wire, radio, optical cable, electromagnetic, or other similar means for hire, sale, or resale to the general public. For the purposes of this chapter, "information" means knowledge or intelligence represented by any form of writing, signs, signals, pictures, sounds, or any other symbols. For the purpose of this chapter, "telecommunications service" excludes the over-the-air transmission of broadcast television or broadcast radio signals.

HHH.

"Telecommunications system" means a tangible facility that is used to provide one or more telecommunications services, any portion of which occupies public rights-of-way. The term "telecommunications system" by way of example, and not limitation, includes wires, equipment cabinets, guys, conduit, radio transmitting towers, poles, other supporting structures and associated and appurtenant facilities used to transmit telecommunications signals. The term "telecommunications system" includes all devices mounted on electric utility poles in the public rights-of-way through which telecommunications services are originated or terminated. A cable system is not a telecommunications system to the extent that it provides only cable service and an open video system is not a telecommunications system to the extent that it provides only video services.

III.

"Termination" means the conclusion of a franchise by any means, including, but not limited to, by expiration of its term, abandonment, or revocation.

JJJ.

"Transfer" means any transaction in which: (1) all or a portion of any facilities or any rights to use or operate facilities located in the public rights-of-way are sold, conveyed, transferred, assigned, encumbered (except as set forth herein) or leased, in whole or in part, directly or indirectly, by one or more transactions to another person, whether voluntarily or by operation of law or otherwise (but not including the sale of such facilities that are removed); or (2) there is any change, acquisition, or transfer in the identity of the person in control of the franchisee, or any person that controls franchisee, including, without limitation, by forced or voluntary sale, merger, consolidation, or receivership; or (3) the rights or obligations under the franchise are sold, conveyed, transferred, assigned, assumed, encumbered (except as set forth herein) or leased, in whole or in part, directly or indirectly, by one or more transactions to another person, whether voluntarily or by operation of law or otherwise for purposes of clause (2) above, any transfer or cumulative transfer of a voting interest by a person or group of persons acting in concert of 20 percent or more of franchisee, or person that controls franchisee, or any change in the managing general partners of a franchisee is a change of control. "Transfer" does not include: (1) a lease to a UVPP pursuant to 47 U.S.C. §§ 532 or 573; (2) the transmission of a commodity or electronic signal using facilities on a common carrier basis; (3) a lease or other right to use a franchisee's pole or conduit facilities pursuant to 47 U.S.C. § 224, or (4) a pledge in trust, mortgage or other encumbrance against the facilities or any portion thereof, given to a bona fide institutional lender in connection with a loan or other financing required to secure the construction, operation, or repair of the facilities ("loan"), provided that such loan is subject to the rights and powers of the City pursuant to the franchise and applicable law, including, without limitation, the right of the City to approve any transfer upon foreclosure. "Transferring," "transferor" and "transferee" shall have correlative meanings.

KKK.

"Unaffiliated video program provider" (UVPP) means a person or entity that does not have a franchise but that delivers services using a cable service or other communications service (as that term is used in 47 U.S.C. § 542(h)) to subscribers for which charges are assessed to subscribers but are not received by a franchisee.

LLL.

"Upstream channel" means a channel designed and activated to carry transmissions from a point on the cable communications system, other than the headend, to the headend or another point on the cable communications system.

MMM.

"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 any federal or state order or regulation.

NNN.

"Use permit" means the legal authorization from the City, in addition to a master permit or franchise, to enter and use a specified portion of the public rights-of-way for the purpose of installing, repairing, or removing identified facilities.

OOO.

"User" means a person or the City utilizing a channel, capacity or equipment and facilities for purposes of producing or transmitting material, as contrasted with the receipt thereof in the capacity of a subscriber.

PPP.

"Utility easement" means any easement owned by the City and acquired, established, dedicated or devoted for public utility purposes not inconsistent with telecommunications facilities, excluding easements not specifically allowing license, franchise or lease holders.

QQQ.

"Utility facilities" means the 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 the rights-of-way of the City and used or to be used for the purpose of providing utility and telecommunications services.

RRR.

"Working control" means the ability to affect management decisions. It will be presumed that voting interest of 20 percent or more is considered working control within the meaning of this chapter.

(Ord. 3550 § 2, 2/16/2016; Ord. 3083 § 1 (part), 6/29/2001)