§ 11.14.100. Administrative provisions.

A.

Right-of-way license. A right-of-way license shall be required of any person who occupies or desires to construct, install, control or otherwise locate telecommunications facilities in, under, over or across any rights-of-way of the City, which facilities are not used to provide telecommunications service for hire, sale or resale to the general public or are used for the sole purpose of providing a private telecommunications system.

A right-of-way license is not required for persons already holding master permits for the same telecommunications facilities.

1.

Right-of-way license application. Any person who desires a right-of-way license pursuant to this chapter shall file an application with the City, which shall include the following information:

(a)

The identity of the applicant and the persons who exercise working control over the applicant. Publicly traded entities may provide copies of the pertinent portions of their most recent sworn filing(s) with the Federal Securities and Exchange Commission that evidence any working control ownership interests, to comply with this requirement.

(b)

A description of the telecommunications services that are or will be offered or provided by the applicant over its telecommunications facilities. Only general, non-proprietary information need be provided.

(c)

Whether the applicant intends to provide cable service, open video service or other video programming service, and sufficient information to determine whether such service is subject to the City's cable franchising requirements. Only general, non-proprietary information need be provided.

(d)

A network map of existing and proposed facilities to be located within the City, all in sufficient detail to identify:

(i)

The location and route requested for the applicant's proposed facilities, including any environmentally sensitive areas that may be subject to City's State Environmental Protection Act (SEPA) ordinance;

(ii)

The specific trees, structures, improvements, stormwater facilities/BMPs facilities and obstructions, if any, that the applicant proposes to temporarily or permanently remove or relocate; and

(iii)

To the extent known at the time of application, the location(s) where there are or will be interconnections of telecommunications facilities by the applicant.

2.

Map format/media. The Director shall have the discretion to prescribe the format and/or media of said maps, consistent with City ordinances and policies. To the extent compatible with the City's electronic mapping software, the applicant shall provide said maps in a computer readable electronic format, together with the following information:

(a)

A description of the transmission medium that will be used by the applicant to offer or provide such private telecommunications services.

(b)

A description of the City's existing available facilities, such as utility poles, conduits, vaults, etc., that the applicant proposes to use to provide such private telecommunications services in accordance with applicable City regulations and requirements.

(c)

If the applicant is proposing to install overhead facilities, evidence that surplus space is available for locating its private telecommunications facilities on existing utility poles along the proposed route.

(d)

If the applicant is proposing an underground installation in existing ducts or conduits within the rights-of-way, evidence that surplus space is available for locating its private telecommunications facilities in such existing ducts or conduits along the proposed route.

(e)

A preliminary construction schedule and completion date.

(f)

Information establishing that the applicant has obtained all other governmental approvals, permits and facilities leases, to construct the facilities.

(g)

All deposits or charges and application fees required pursuant to this chapter.

3.

Determination by the City. Within 90 days after receiving a complete application under PAMC 11.14.100.A, the Director shall issue a written determination granting or denying the right-of-way license in whole or in part. If the right-of-way license is denied, the written determination shall include the reasons for denial. The decision to grant or deny an application for a right-of-way license shall be based upon the following standards:

(a)

Whether the applicant's private telecommunications system which will occupy the right-of-way has received all requisite licenses, certificates and authorizations from the Federal Communications Commission, the Washington Utilities and Transportation Commission, or any other federal or state agency having jurisdiction.

(b)

Whether the application demonstrates that adequate technical, financial and legal resources are available to perform the requirements of this ordinance.

(c)

The damage or disruption, if any, of public or private facilities, improvements, service, travel or landscaping if the right-of-way license is granted.

(d)

The public interest in minimizing the cost and disruption of construction within the rights-of-way.

(e)

The effect, if any, on public health, safety and welfare if the right-of-way license is granted.

(f)

The availability of alternate routes and/or locations for the proposed facilities.

(g)

Applicable federal and state telecommunications laws, regulations and policies.

4.

Agreement. No right-of-way license shall be deemed to have been granted hereunder until the applicant and the City have executed a written agreement setting forth the particular terms and provisions under which the grantee has been granted the right to occupy and use rights-of-way of the City.

5.

Term of right-of-way license. Unless otherwise specified in a right-of-way license, a right-of-way license granted hereunder shall be valid for a term of five years, subject to renewal as provided in this chapter.

6.

Nonexclusive grant. No right-of-way license granted under this chapter shall confer any exclusive right, privilege, license or franchise to occupy or use the rights-of-way of the City for delivery of telecommunications services or any other purposes.

7.

Rights granted. No right-of-way license granted under this chapter shall convey any right, title or interest in the rights-of-way, but shall be deemed a right-of-way license only to use and occupy the rights-of-way for the limited purposes and term stated in the right-of-way license. Further, no right-of-way license shall be construed as any warranty of title.

8.

Specified route. A right-of-way license granted under this chapter shall be limited to a grant of specific rights-of-way and defined portions thereof.

9.

Amendment of right-of-way license. A new application shall be required of any person who desires to extend or locate its private telecommunications facilities in rights-of-way of the City, which are not included in a right-of-way license previously granted under this chapter. If ordered by the City to locate or relocate its private telecommunications facilities in rights-of-way not included in a previously granted right-of-way license, the City shall grant an amendment to the right-of-way license without further application.

10.

Renewal of right-of-way license. A grantee that desires to renew its right-of-way license under this chapter for an additional term shall, not more than 180 days nor less than 90 days before expiration of the current right-of-way license, file an application with the City for renewal which shall include the following:

(a)

The information required pursuant to PAMC 11.14.100.A.

(b)

Any information required pursuant to the right-of-way license agreement between the City and the grantee.

(c)

All deposits or charges and application fees required pursuant to this chapter.

11.

Renewal determination. Within 90 days after receiving a complete application for renewal, the Director shall issue a written determination granting or denying the renewal application in whole or in part. If the renewal application is denied, the written determination shall include the reasons for denial. The decision to grant or deny an application for the renewal of a right-of-way license shall, in addition to the standards set forth in PAMC 11.14.100.A.3., be based upon the following standards:

(a)

The continuing capacity of the rights-of-way to accommodate the applicant's existing facilities.

(b)

The applicant's compliance with the requirements of this chapter and the right-of-way license.

(c)

Applicable federal, state and local telecommunications laws, rules and policies.

12.

Obligation to cure as a condition of renewal. No right-of-way license shall be renewed until any ongoing violations or defaults in the grantee's performance under the right-of-way license, or of the requirements of this chapter, have been cured, or a plan detailing the corrective action to be taken by the grantee has been approved by the City.

B.

Master permit. A master permit shall be required of any service provider who desires to construct, install, control or otherwise locate telecommunications facilities in, under, over or across, any right-of-way of the City, and to provide telecommunications service for hire, sale or resale to the general public; provided, however, that a right-of-way license in accordance with PAMC 11.14.100.A. may, with the approval of the Director, be substituted for a master permit for de minimis (i.e., significantly less than city-wide or route specific) uses of rights-of-way made in conjunction with a telecommunications system located entirely upon publicly or privately owned property.

1.

Master permit application. Any person that desires a master permit pursuant to this chapter shall file an application with the City which shall include:

(a)

The identity of the applicant and the persons who exercise working control over the applicant. Publicly traded entities may provide copies of the pertinent portions of their most recent sworn filing(s) with the Federal Securities and Exchange Commission that evidence any working control ownership interests, to comply with this requirement.

(b)

A description of the telecommunications services that are or will be offered or provided by the applicant over its telecommunications facilities. Only general, non-proprietary information need be provided.

(c)

Whether the applicant intends to provide cable service, open video service or other video programming service, and sufficient information to determine whether such service is subject to the City's cable franchising requirements. Only general, non-proprietary information need be provided.

(d)

At the time of the application, a network map of existing and proposed facilities to be located within the City, all in sufficient detail to identify:

(i)

The location and route requested for applicant's proposed facilities, including any environmentally sensitive areas that may be subject to the City's SEPA ordinance.

(ii)

The specific trees, structures, improvements, stormwater facilities/BMPs facilities and obstructions, if any, that the applicant proposes to temporarily or permanently remove or relocate; and

(iii)

To the extent known at the time of application, the names of other telecommunications carriers, operators or providers to which there will be an interconnection of telecommunications facilities by the applicant.

(e)

An accurate map showing the location of any existing telecommunications facilities in the City that applicant intends to use or lease to the extent not previously provided.

(f)

The area or areas of the City that the applicant desires to serve and the initial schedule, if any, for build-out to the master area.

(g)

All deposits or charges and application fees required pursuant to this chapter.

2.

Determination by the City. Within 120 days after receiving a complete application under PAMC 11.14.100.B. hereof, the City shall issue a written determination granting or denying the application in whole or in part unless the applicant agrees to a longer period or the master permit sought requires action of the Council and such action cannot reasonably be obtained within 120 days. If the application is denied, the City's decision shall be supported by substantial evidence contained in the written determination, which shall include the reasons for denial. Prior to granting or denying a master permit under this chapter, the Council shall conduct a public hearing and make a decision based upon the standards set forth below. The Council shall not approve any master permit hereunder until the next regularly scheduled Council meeting following the public hearing. Said standards are:

(a)

Whether the applicant's telecommunications system which will occupy the right-of-way has received all requisite licenses, certificates and authorizations from the Federal Communications Commission, the Washington Utilities and Transportation Commission, or any other federal or state agency having jurisdiction.

(b)

To the extent allowed under applicable law or if the applicant is a provider of cable television service, whether the applicant's application demonstrates adequate technical, financial and legal resources are available.

(c)

The damage or disruption, if any, of public or private facilities, improvements, service, travel or landscaping if the master permit license is granted.

(d)

The public interest in minimizing the cost and disruption of construction within the rights-of-way.

(e)

The effect, if any, on public health, safety and welfare if the master permit license is granted.

(f)

The availability of alternate routes and/or locations for the proposed facilities.

(g)

Applicable federal and state telecommunications laws, regulations and policies.

3.

Agreement and ordinance. No master permit shall be deemed to have been granted hereunder until the applicant and the City have executed a written agreement, as adopted by ordinance, which ordinance shall set forth the particular terms and provisions under which the service provider has been granted the right to occupy and use rights-of-way of the City.

4.

Term of master permit grant. Unless otherwise specified in a master permit agreement, a master permit granted hereunder shall be valid for a term of ten years subject to renewal as provided in this chapter.

5.

Nonexclusive grant. No master permit granted under this chapter shall confer any exclusive right or privilege to occupy or use the rights-of-way of the City for delivery of telecommunications services or any other purposes.

6.

Rights granted. No master permit granted under this chapter shall convey any right, title or interest in the rights-of-way, but shall be deemed a master permit only to use and occupy the rights-of-way for the limited purposes and term stated in the master permit. Further, no master permit shall be construed as any warranty of title.

7.

Amendment of master permit grant. A new master permit application and grant shall be required of any person who desires to extend its master permit territory or to locate its telecommunications facilities in rights-of-way of the City which are not included in a master permit previously granted under this chapter. If ordered by the City to locate or relocate its telecommunications facilities in rights-of-way not included in a previously granted master permit, the grantee shall be granted a master permit amendment without further application.

8.

Renewal of master permit. A service provider that desires to renew its master permit under this chapter for an additional term shall, not more than 180 days nor less than 120 days before expiration of the current master permit, file an application with the City for renewal of its master permit, which application shall include the following:

(a)

The information required pursuant to PAMC 11.14.100.A.

(b)

Any information required pursuant to the master permit agreement between the City and the grantee.

(c)

All deposits or charges and application fees required pursuant to this chapter.

9.

Renewal determination. Within 120 days after receiving a complete application for renewal, the City shall issue a written determination granting or denying the renewal application in whole or in part. If the renewal application is denied, the City's decision shall be supported by substantial evidence contained in the determination, which shall include the reasons for denial. Prior to granting or denying renewal of a master permit under this chapter, the Council shall conduct a public hearing and make a decision based upon the standards set forth in PAMC 11.14.100.B.2., and the following additional standards:

(a)

The continuing capacity of the rights-of-way to accommodate the applicant's existing facilities.

(b)

The applicant's compliance with the requirements of this chapter and the master permit agreement.

(c)

Applicable federal, state and local telecommunications laws, rules and policies.

10.

Obligation to cure as a condition of renewal. No master permit shall be renewed until any ongoing violations or defaults in the service provider's performance of the master permit agreement, or of the requirements of this chapter, have been cured, or a plan detailing the corrective action to be taken by the service provider has been approved by the City.

11.

Expedited processing of use permits. A master permit may contain a procedure for expedited processing of a use permit based on reasonable necessity arising from hardship or emergency.

C.

Facilities lease. The Council may, in its sole discretion, approve facilities leases for the location of telecommunications facilities and other facilities upon City property, as that term is defined in this chapter or upon right-of-way as permitted under RCW 35.21.860(1)(e). Neither this section nor any other provision of this chapter shall be construed to create an entitlement or vested right in any person or entity.

1.

Lease application. Any person that desires to solicit the City's approval of a facilities lease for telecommunications facilities pursuant to this chapter shall file a lease application with the City, which shall include the following:

(a)

The identity of the applicant.

(b)

A description of the telecommunications facilities or other equipment proposed to be located upon City property.

(c)

A description of the City property upon which the applicant proposes to locate telecommunications facilities or other equipment.

(d)

Demonstration of compliance with Title 17 PAMC, Zoning, if applicable.

(e)

Preliminary plans and specifications in sufficient detail to identify:

(i)

The location(s) of existing telecommunications facilities or other equipment upon the City property, whether publicly or privately owned.

(ii)

The location and source of electric and other utilities required for the installation and operation of the proposed facilities.

(f)

Accurate scale conceptual drawings and diagrams of sufficient specificity to analyze the aesthetic impacts of the proposed telecommunications facilities or other equipment.

(g)

An accurate map showing the location of any existing telecommunications facilities in the City that applicant intends to use or lease.

(h)

All deposits or charges and application fees required pursuant to this chapter.

2.

Determination by the City. Within 120 days after receiving a complete application under PAMC 11.14.100.C., the City shall issue a written determination granting or denying the application in whole or in part. If the lease application is denied, the written determination shall include the reasons for denial. The decision to grant or deny an application for a facilities lease shall be based upon the following standards:

(a)

Whether the applicant's facilities, which will occupy the City property, have received all requisite licenses, certificates and authorizations from the Federal Communications Commission, the Washington Utilities and Transportation Commission, or any other federal or state agency having jurisdiction.

(b)

Whether the applicant's application demonstrates that adequate technical, financial and legal resources are available.

(c)

The damage or disruption, if any, of public or private facilities, improvements, service, travel or landscaping if the lease is granted.

(d)

The public interest in minimizing the cost and disruption of construction upon City property and within the rights-of-way.

(e)

The effect, if any, on public health, safety and welfare if the lease requested is approved.

(f)

The availability of alternate locations for the proposed facilities.

(g)

The potential for radio frequency and other interference with existing public and private telecommunications or other facilities located upon the City property.

(h)

The potential for radio frequency and other interference or impacts upon residential, commercial and other uses located within the vicinity of the City property.

(i)

Applicable federal and state telecommunications laws, regulations and policies.

3.

Agreement. No facilities lease shall be deemed to have been granted hereunder until the applicant and the City have executed a written agreement setting forth the particular terms and provisions under which the lessee has been granted the right to occupy and use the City property.

4.

Term of facilities lease. Unless otherwise specified in a lease agreement, a facilities lease granted hereunder shall be valid for a term of one year, subject to annual renewal as provided in this chapter.

5.

Nonexclusive lease. No facilities lease granted under this chapter shall confer any exclusive right, privilege, license, master permit or franchise to occupy or use City property for delivery of telecommunications services or any other purposes.

6.

Rights granted. No facilities lease granted under this chapter shall convey any right, title or interest in the City property, but shall be deemed a facilities lease only to use and occupy the City property for the limited purposes and term stated in the lease agreement. Further, no facilities lease shall be construed as any warranty of title.

7.

Interference with other users. No facilities lease shall be granted under this chapter unless it contains a provision, which is substantially similar to the following:

"The City may have previously entered into leases with other tenants for their equipment and antennae facilities. Lessee acknowledges that the City may also be leasing the City property for the purposes of transmitting and receiving telecommunications signals from the City property. The City, however, is not in any way responsible or liable for any interference with lessee's use of the City property which may be caused by the use and operation of any other tenant's equipment, even if caused by new technology. In the event that any other tenant's activities interfere with the lessee's use of the City property, and the lessee cannot resolve this interference with the other tenants, the lessee may, upon 30 days' notice to the City, terminate this lease and restore the City property to its original condition, reasonable wear and tear excepted. The lessee shall cooperate with all other tenants to identify the causes of and work towards the resolution of any electronic interference problem. In addition, the lessee agrees to eliminate any radio or television interference caused to City-owned facilities or surrounding residences at lessee's own expense and without installation of extra filters on City-owned equipment. Lessee further agrees to accept such interference as may be received from City-operated telecommunications or other facilities located upon the City property subject to this lease."

8.

Ownership and removal of improvements. No facilities lease shall be granted under this chapter unless it contains a provision, which states that all buildings, landscaping and all other improvements, except telecommunications equipment, shall become the property of the City upon expiration or termination of the lease. In the event that telecommunications facilities or other equipment are left upon City property after expiration or termination of the lease, they shall become the property of the City if not removed by the lessee upon 30 days' written notice from the City.

In the event that the City requires removal of such improvements, such removal shall be accomplished at the sole expense of the lessee and completed within 90 days after receiving notice from the City requiring removal of the improvements, or removal will be accomplished by the City at lessee's expense.

9.

Cancellation of lease by lessee.

(a)

All facilities leases are contingent upon the prospective lessee obtaining all necessary permits, approvals and licenses for the proposed facilities. In the event that the prospective lessee is unable to obtain all such permits, approvals and licenses, it may cancel its lease, and obtain a pro rata refund of any rents paid, without further obligation by giving 30 days' written notice to the City.

(b)

In the event that the holder of a facilities lease determines that the City property is unsuitable for its intended purpose, the lessee shall have the right to cancel the lease upon 120 days' written notice to the City. However, no prepaid rent shall be refundable.

10.

Amendment of facilities lease. Except as provided within an existing lease agreement, a new lease application and lease agreement shall be required of any telecommunications carrier or other entity that desires to expand, modify or relocate its telecommunications facilities or other equipment located upon City property. If ordered by the City to locate or relocate its telecommunications facilities or other equipment on the City property, the City shall grant a lease amendment without further application.

11.

Renewal application. A lessee that desires to renew its facilities lease under this chapter shall, not more than 120 days nor less than 60 days before expiration of the current facilities lease, file an application with the City for renewal of its facilities lease which shall include the following:

(a)

The information required pursuant to PAMC 11.14.100.C.;

(b)

Any information required pursuant to the facilities lease agreement between the City and the lessee;

(c)

All deposits or charges and application fees required pursuant to this chapter.

12.

Renewal determination. Within 60 days after receiving a complete application for renewal, the City shall issue a written determination granting or denying the renewal application in whole or in part. If the renewal application is denied, the written determination shall include the reasons for denial. The decision to grant or deny an application for the renewal of a facilities lease shall, in addition to the standards set forth in PAMC 11.14.100.C.2., be based upon the following additional standards:

(a)

The continuing capacity of the City property to accommodate the applicant's existing facilities.

(b)

The applicant's compliance with the requirements of this chapter and the lease agreement.

(c)

Applicable federal, state and local telecommunications laws, rules and policies.

13.

Obligation to cure as a condition of renewal. No facilities lease shall be renewed until any ongoing violations or defaults in the lessee's performance of the lease agreement, or of the requirements of this chapter, have been cured, or a plan detailing the corrective action to be taken by the lessee has been approved by the City.

14.

There shall be no appeal of the City's determination under PAMC 11.14.100.C.

D.

Appeal of City determination. Any person aggrieved by the granting or denying of a right-of-way license, master permit, use permit or the renewals thereof pursuant to this chapter shall have the right to appeal to the Council as follows:

1.

All appeals filed pursuant to this subsection must be filed in writing with the Director within ten working days of the date of the decision appealed from.

2.

All appeals filed pursuant to this subsection shall specify the alleged error of law or fact, or new evidence which could not have been reasonably available at the time of the Director's decision, which shall constitute the basis of the appeal.

3.

Upon receipt of a timely written notice of appeal, the Director shall advise the Council of the pendency of the appeal and request that a date for considering the appeal be established.

4.

The Council shall have the option of directing that the appeal be heard before a hearing examiner who shall forward a recommendation to the Council, which shall take final action on the appeal. Referral to a hearing examiner may be made by motion approved by a majority of the Council members present at the time of voting;

5.

All relevant evidence shall be received during the hearing on the appeal.

6.

Unless substantial relevant information is presented which was not considered by the Director, such decision shall be accorded substantial weight, but may be reversed or modified by the Council if, after considering all of the evidence in light of the applicable goals, policies and provisions of this chapter, the Council determines that a mistake has been made. Where substantial new relevant information which was not considered in the making of the decision appealed from has been presented, the Council shall make its decision only upon the basis of the facts presented at the hearing of the appeal, or may elect to remand the matter for reconsideration by the Director in light of the additional information.

7.

For all appeals decided pursuant to this subsection, the City shall provide a record that shall consist of written findings and conclusions.

8.

A service provider adversely affected by the final action of the City denying a master permit, or by an unreasonable failure to act on a master permit according to the procedures established by the City, may commence an action within 30 days of the decision or the expiration of any reconsideration period, whichever is later, with a court having jurisdiction over such action. Any action against the City for denial of a master permit or unreasonable failure to act on a master permit shall be limited to injunctive relief.

9.

No action to obtain judicial review shall be commenced unless all rights of appeal provided by this Subsection are fully exhausted. The cost of transcription of all records ordered certified by the court for such review shall be borne by the party seeking such review. A copy of each transcript prepared by such party shall be submitted to the City for confirmation of its accuracy.

(Ord. 3567 § 4, 12/20/2016; Ord. 3083 § 1 (part), 6/29/2001)