The purpose of this chapter is to:
1. 
Permit and manage reasonable, fair and equitable access to the public rights-of-way of the City for telecommunications purposes on a competitively neutral basis;
2. 
Establish predictable, enforceable, clear and nondiscriminatory local regulations, guidelines, standards and time frames for the exercise of local authority with respect to the regulation of telecommunications carriers and cable operators;
3. 
Conserve the limited physical capacity of the public rights-of-way held in public trust by the City;
4. 
Assure that the City’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 compensated by the persons seeking such access and causing such costs;
5. 
Assure that the City can continue to fairly and responsibly protect the public health, safety and welfare; and
6. 
Enable the City to discharge its public trust consistent with rapidly evolving Federal and State regulatory policies, industry competition and technological development.
(Ord. 1995 § 1 (part), 2002)
The Director is authorized to administer this chapter and to establish further rules, regulations and procedures for the implementation of this chapter.
(Ord. 1995 § 1 (part), 2002)
Except as otherwise provided in this chapter, and to the extent provided by law, this chapter shall have no effect on any license or telecommunications or cable franchise existing as of the date of adoption of this chapter until the expiration of said license, franchise or cable franchise; or an amendment to an unexpired license, franchise or cable franchise, unless both parties agree to defer full compliance to a specific date not later than the present expiration date.
(Ord. 1995 § 1 (part), 2002)
Notwithstanding the foregoing, the requirements of this chapter shall apply to any telecommunications carrier or cable operator who currently occupies rights-of-way without a license, franchise, cable franchise, right-of-way use permit or other agreement with the City. Any such telecommunications carrier or cable operator shall register or apply for a license, telecommunication franchise or cable franchise as provided by this chapter within 120 days of the effective date of this chapter. This chapter shall not apply to lessees that solely lease bandwidth (and do not own telecommunications facilities within the City), so long as the lessor has complied with the requirements of this chapter.
(Ord. 1995 § 1(part), 2002)
A. 
Business Registration.
All telecommunications carriers or cable operators having facilities within the City that offer or provide telecommunications or cable service within the City, who are not otherwise required to acquire a license or franchise, shall register with the City as set forth in TMC Chapter 5.04.
B. 
Exception to Registration.
A person that provides telecommunications or cable services solely to itself, its affiliates or members between points in the same building, or between closely located buildings under common ownership or control, provided that such person does not use or occupy any rights-of-way of the City or other ways within the City, is excepted from the registration requirements pursuant to this chapter.
(Ord. 1995 § 1 (part), 2002)
To the extent permitted by law, any telecommunications carrier or cable operator who currently occupies or desires in the future to occupy any rights-of-way with any facilities for the purpose of providing telecommunications or cable services shall file an application on a form provided by the Director for one or more of the following:
1. 
Right-of-Way License.
If the telecommunications carrier or cable operator provides or intends to provide services exclusively to persons or areas outside the City, a right-of-way use permit will be required in order to construct, install, control or otherwise locate telecommunication facilities in, under, over or across any rights-of-way. TMC Chapter 11.08 provides guidance.
2. 
Telecommunications Franchise.
Required if the telecommunications carrier provides or intends to provide service to any person or area within the City.
3. 
Cable Franchise.
Required if the cable operator provides or intends to provide cable services to any person or area in the City. Services similar to cable service, such as Open Video Systems, shall also be subject to this chapter, and subject to substantially similar terms and conditions as those contained in franchise agreement(s) issued to cable operator(s) in the City with respect to franchise fee obligations, public, educational, and governmental access programming obligations, and all other franchise obligations to the extent provided by law.
4. 
Persons Asserting an Existing State-Wide Grant.
Any person asserting an existing State-wide grant based on a predecessor telephone or telegraph company’s existence at the time of the adoption of the Washington State Constitution may continue to operate under the existing State-wide grant, provided the person provides the City with documentation evidencing the existing State-wide-grant. Upon acceptance of the documentation by the City, the person shall then be required to obtain all applicable right-of-way use permits from the City pursuant to TMC Chapter 11.08.
5. 
Facilities Lease Required.
Any person, including but not limited to service providers and non-service providers, who occupies or desires to locate telecommunications equipment on or in City property, including lands or City-owned physical facilities other than the public rights-of-way, shall not locate such facilities or equipment on City property unless granted a facilities lease from the City pursuant to this chapter. The City reserves unto itself the sole discretion to lease City property for telecommunication facilities, and no vested or other right shall be created by this section or any provision of this chapter applicable to such facilities leases. For purposes of this section, “City property” shall include site-specific locations in the rights-of-way.
(Ord. 1995 § 1 (part), 2002)
Within 120 days after receiving a complete application hereunder, the City Council shall make a determination on behalf of the City 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:
1. 
The applicant must have current registration issued by the FCC and WUTC.
2. 
The applicant must demonstrate the willingness and ability to mitigate and/or repair damage or disruption, if any, to public or private facilities, improvements, services or landscaping, if the application is granted.
3. 
The grant to use the rights-of-way will serve the community interest.
4. 
Applicable Federal, State and local laws, regulations, rules and policies will be met.
(Ord. 1995 § 1 (part), 2002)
The following conditions apply to each license, lease, or franchise granted hereunder:
1. 
Area and Location.
As part of the construction permitting process for specific routes requested within each license or telecommunications or cable franchise, a determination will be made whether sufficient capacity is available in the rights-of-way. Alternate routes or locations for the proposed facilities may be considered if feasible.
a. 
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.
b. 
Franchise Territory.
A telecommunications or cable franchise granted hereunder shall encompass all territory within the corporate limits.
c. 
Facilities Maps.
Upon request by the Director, the grantee shall provide the City with maps in a format prescribed by the Director, identifying the location of all telecommunications and cable facilities within the rights-of-way.
2. 
Leased Capacity.
A grantee shall have the right to offer or provide excess conduit capacity to another telecommunications or cable provider with prior City notification, provided that:
a. 
The grantee shall furnish the City 60 days advance written notice of any such proposed lease or agreement;
b. 
The proposed lessee shall comply with all of the requirements of this chapter prior to providing telecommunications or cable services.
3. 
Consistency within Class.
All licenses and telecommunications and cable franchises granted pursuant to this chapter shall contain substantially similar terms which, taken as a whole and considering relevant characteristics of applicants, are substantially consistent with those required of other licensees and telecommunications and cable franchises.
4. 
Limitations.
a. 
No grant shall convey any right, title or interest in rights-of-way but shall be deemed a license or franchise only to use and occupy the rights-of-way for the limited purposes and term stated in the grant.
b. 
No grant shall authorize or excuse a licensee or 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 grant shall expressly or implicitly authorize a licensee or franchisee to provide service to, or install a 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 and to the extent provided by law.
d. 
No grant shall confer any exclusive right, privilege or license to occupy or use the rights-of-way for delivery of telecommunications or cable services or for any other purposes.
e. 
Nothing herein shall be deemed or construed to impair or affect, in any way or to any extent, the City’s power of eminent domain.
5. 
Term.
Unless otherwise specified in a license, telecommunications franchise or cable franchise agreement, the term shall be for no more than three years.
(Ord. 1995 § 1 (part), 2002)
A. 
General Duties.
1. 
Except as otherwise provided herein, the holder of a right-of-way license, franchise or lease granted pursuant to this chapter, or otherwise authorized to use and occupy the public rights-of-way, shall – in addition to said right-of-way license, franchise, lease or grant – be required to obtain a right-of-way use permit from the City pursuant to TMC Chapter 11.08 before performing any work in City rights-of-way. No work, construction, development, excavation, installation or maintenance and repair of any equipment or facilities shall take place within the rights-of-way or upon City property until such time as the right-of-way use permit is issued.
2. 
All grantees shall have no ownership rights in rights-of-way, even though they may be granted a license, franchise or cable franchise to construct or operate their facilities.
3. 
Nothing herein shall limit or otherwise affect the authority of the City to require a lease for any use, occupation, construction, installation, maintenance or location upon any property owned in fee by the City.
B. 
Physical Location of Facilities.
Unless otherwise required in current or future City ordinances regarding underground construction requirements, all facilities shall be constructed, installed and located in accordance with hierarchy of the following terms and conditions:
1. 
Telecommunications and cable facilities shall be installed within an existing underground duct or conduit whenever excess capacity exists within such utility facility and permission can be obtained reasonably from the installer of such duct or conduit;
2. 
Whenever one or more existing telephone, electric utilities, cable systems or telecommunications facilities are located underground within rights-of-way, a licensee or franchisee shall occupy the same trench where reasonable and practical;
3. 
When sufficient capacity is not available under 11.32.090 A.1 or A.2 above, the telecommunications or cable facility shall be installed underground within the rights-of-way, below the sidewalk, or within the planter strip;
4. 
A franchisee or licensee with written authorization from the utility pole owner to install overhead facilities shall install its telecommunications or cable facilities on pole attachments to existing utility poles only, and then only if surplus space is available;
5. 
When a franchisee or licensee has been granted authority to install overhead facilities as in 11.32.090 B.4 above and the City directs such facilities to be relocated to allow construction or reconstruction within the right-of-way, a licensee or franchisee that occupies the same rights-of-way shall concurrently relocate its facilities underground at its own expense.
C. 
Conduit Occupancy.
In furtherance of the public purpose of reduction of rights-of-way excavation, it is the goal of the City 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.
1. 
City Use.
At the option of the City, whenever new conduit is laid by the licensee or franchisee, the City shall be provided access to the open trench or bore hole, and space shall be made available for purposes of installing two 4-inch conduits for City use. There shall be no cost to the City associated with the trenching, backfilling, boring or surface restoration involved with these activities.
2. 
Use by Others.
When the City reasonably determines such construction is in an area in which another telecommunications or cable provider may also construct telecommunications or cable facilities in the future, the City may require the franchisee or licensee to construct or install excess conduit capacity in the rights-of-way. The expense of such excess conduit capacity shall be borne by the City or other such person that contracts with the City to bear the expense. The grantee may manage the excess conduit itself and be permitted to charge a reasonable market lease rate for occupancy of the additional conduit space, provided such lease revenues shall be first applied to reimburse the City for its actual contribution to the construction of the excess conduit (plus interest compounded at the Washington State Local Government Investment Pool rate during the time in question).
D. 
Occupancy of City-Owned Conduit.
In furtherance of the same object of 11.32.090-C, if the City owns conduit in the path of a grantee’s proposed facilities, and provided it is technologically feasible for a grantee to occupy the conduit owned by the City, a grantee shall be required to occupy the conduit owned by the City in order to reduce the necessity to excavate the rights-of-way. The grantee shall pay to the City for such occupancy a reasonable fee, to be determined by the City Council.
E. 
Relocation or Removal of Facilities.
Within 90 days following written notice from the City, a grantee shall, at its own expense, temporarily or permanently remove, relocate, place underground, change or alter the position of any telecommunications or cable facilities within the rights-of-way whenever the Director shall have determined that such removal, relocation, undergrounding, change or alteration is reasonably necessary for:
1. 
The construction, repair, maintenance or installation of any City or other public improvement in or upon the rights-of-way; or
2. 
The operations of the City or other governmental entity in or upon the rights-of-way.
F. 
Removal of Unauthorized Facilities.
1. 
A telecommunications or cable facility is unauthorized and subject to removal in the following circumstances:
a. 
Upon expiration or termination of the grantee’s license, telecommunications franchise or cable franchise unless otherwise provided by law.
b. 
Upon abandonment of a facility within the rights-of-way.
c. 
If the facility was constructed or installed without prior issuance of a required encroachment or utility permit, license, telecommunications franchise, or cable franchise.
d. 
If the facility was constructed or installed at a location not permitted by the grantee’s license, franchise or cable franchise.
e. 
To the extent permitted by law, any such other reasonable circumstances affecting public health, safety and welfare deemed necessary by the Director.
2. 
The Director may exercise discretion to allow an unauthorized facility to come into compliance with this chapter upon written request of the unauthorized telecommunications carrier or cable operator made within 30 days after said carrier or operator is notified that the facility is unauthorized pursuant to this chapter. Notice shall be given in accordance with TMC Section 11.32.120. The Director shall make the determination of whether to allow said carrier or operator to cure by using the standards of review set forth in TMC Section 11.32.120.
3. 
Notwithstanding any other provision of this chapter, the Director may, if deemed appropriate, allow a grantee or other person who may own, control or maintain telecommunications or cable facilities within the rights-of-way to abandon such facilities in place. No facilities of any type may be abandoned in place without the express written consent of the Director. Any plan for abandonment or removal of such facilities must be first approved by the Director, and all necessary permits must be obtained prior to commencement of such work in accordance with TMC Section 11.08.270. Upon permanent abandonment of any telecommunications or cable facilities of such persons in place, the facilities shall become the property of the City, and such persons shall submit to the Director an instrument in writing, to be approved by the City Attorney, transferring ownership of such facilities to the City. The consideration for the conveyance is Tukwila’s permission to abandon the facilities in place. The provisions of this section shall survive the expiration, revocation or termination of any license, franchise or cable franchise granted under this chapter.
(Ord. 1995 § 1(part), 2002)
A. 
Adding or Modifying Services.
Additions or modifications to initial route(s) identified for licenses which are determined to be significant by the Director will require a new license.
B. 
Relocation of Services.
If ordered by the City to locate or relocate its telecommunications or cable facilities in rights-of-way not included in a previously granted license, telecommunications franchise or cable franchise, the City shall grant a license or franchise amendment without further application.
C. 
Assignments or Transfers.
All assignees or transferees of interest in a license, franchise, or cable franchise of any telecommunications carrier or cable operator must comply with the terms and conditions of this chapter, the license, telecommunications franchise, or cable franchise agreement, the requirements of the FCC, and the requirements of the WUTC. If said assignee or transferee fails to comply with such requirements, the license, telecommunications franchise, or cable franchise assigned or transferred is subject to revocation.
(Ord. 1995 § 1(part), 2002)
A. 
Renewal Application.
A licensee or franchisee that desires to renew its license or franchise hereunder shall, not more than 180 days nor less than 120 days before expiration of the current license or franchise, file an application with the City for renewal of its license or franchise.
B. 
Renewal Determination.
Within 90 days after receiving an application hereunder, the City Council shall make a determination on behalf of the City 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 this chapter shall apply when determining whether to grant or deny the application, and the City may further consider the applicant’s compliance with requirements of this chapter and the license or franchise agreement.
C. 
Obligation to Cure as a Condition of Renewal.
No license or franchise shall be renewed until any on-going violations or defaults in the licensee’s or franchisee’s performance of the license or franchise agreement, of the requirements of this chapter, and all applicable laws, statutes, codes, ordinances, rules and regulations have been cured, or a plan detailing corrective action to be taken by the licensee or franchisee has been approved by the Director. Failure to comply with the terms of an approved corrective action plan shall be grounds for non-renewal or revocation of the license or franchise.
(Ord. 1995 § 1(part), 2002)
A license, telecommunications franchise or cable franchise granted by the City to use or occupy rights-of-way may be revoked pursuant to the provisions of TMC Sections 11.32.090F, 11.32.110C, and 11.32.120.
1. 
Notice and Duty to Cure.
In the event that the Director believes that grounds exist for revocation of a license or franchise, written notice shall be given of the apparent violation or noncompliance, including a short and concise statement of the nature and general facts of the violation or noncompliance. The Grantee shall be given a reasonable period of time, not exceeding 30 days to furnish evidence:
a. 
That corrective action has been, or is being actively and expeditiously pursued, to remedy the violation or noncompliance.
b. 
That rebuts the alleged violation or non-compliance.
c. 
That it would be in the public interest to impose some monetary damages, penalty or sanction less than revocation.
2. 
Standards for Revocation or Lesser Sanctions.
If persuaded that the grantee has violated or failed to comply with a material provision of this chapter or of a license, telecommunications franchise or cable franchise or applicable codes, statutes, or rules and regulations, the City Council shall make a preliminary determination whether to revoke the license, telecommunications franchise or cable franchise, and issue a written order, or to impose monetary damages, a penalty, or other such lesser sanction 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.
(Ord. 1995 § 1(part), 2002)
A. 
Insurance Required.
Commercial General Liability Insurance, and, if necessary, Umbrella Liability Insurance, which will cover bodily injury, property damage, and any other exposure which can be reasonably identified as potentially arising from the grantee’s activities within the rights-of-way shall be required. The limit of liability shall not be less than $2,000,000 for each occurrence. The City, its elected and appointed officers, officials, employees, agents, and representatives shall be named as additional insured with respect to 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 completed operations, explosions, collapse, and underground hazards. Such insurance shall name the City as additional insured and provide a certificate of insurance with a 45-day cancellation notice.
B. 
Bond Required.
The grantee or the contractor for the grantee shall post with the City a bond from a surety qualified to do bonding business in this state, a cash deposit or an assigned savings account or other security acceptable to the City in an amount equal to 150% of the cost of the work as estimated by the Director or in an amount as set forth in the franchise agreement. Such bond, deposit or other security shall be conditioned upon the grantee or its contractor performing the work pursuant to the terms of this chapter, including the restoration and/or replacement of the street, sidewalk, or other rights-of-way within the time specified by the Director.
(Ord. 1995 § 1(part), 2002)
A. 
Additional Requirements.
In addition to and distinct from the insurance requirements of this chapter, a grantee releases and shall defend, indemnify, and hold harmless the City from any and all claims, losses, costs, liabilities, damages, and expenses (except those damages caused solely by the negligence of the City), including, but not limited to, those of the grantee’s lessees, and also including, but not limited to, reasonable attorney’s fees arising out of or in connection with the telecommunications or cable facilities, the performance of any work, the operation of any telecommunications or cable facilities, or the grantee’s system, or the acts or omissions of the grantee or any of its suppliers or contractors of any tier, or anyone acting on the Grantee’s behalf in connection with said installation of telecommunications or cable facilities, performance of work, or operation of telecommunications or cable facilities or grantee’s system.
B. 
Inclusions.
Such indemnity, protection, and hold harmless shall include any demand, claim, suit, or judgment for damages to property or injury to or death of persons, including officers, agents, and employees of any person including payment made under or in connection with any Worker’s Compensation Law or under any plan for employee’s disability and death benefits, which may arise out of or be caused or contributed to directly or indirectly by the erection, maintenance, presence, operation, use, or removal of the grantee’s telecommunication or cable facilities, including any claims or demands of customers of the grantee with respect thereto.
C. 
Indemnification.
The City shall not be liable to the grantee or to the grantee’s customers, and the grantee hereby indemnifies, protects and saves harmless the City against any 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 of the grantee, or for interference with the operation of the telecommunications or cable facilities.
D. 
Application.
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 City.
E. 
Successors and Assigns.
All provisions of this chapter shall apply to the successors and assigns of the Grantee.
(Ord. 1995 § 1(part), 2002)
A. 
Fees.
The fees to be paid to the City at the time of application for registration, license, lease, franchise, or right-of-way use permits shall be established by resolution of the City Council. All fees paid shall be nonrefundable. Fees may include, but not limited to, business registration, administrative fee, application review, utility permit and inspection, pavement mitigation, and other regulatory fees.
B. 
Compensation to City.
RCW 35.21.860 currently prohibits a municipal franchise fee for permission to use the public rights-of-way from any person engaged in the “telephone business,” as defined in RCW 82.04.065. If this statutory prohibition is repealed, the City reserves the right to impose and receive a fee of a percentage, up to the maximum allowed by law, of the grantee’s gross receipts from its business activities in the City. The City shall collect fees for other telecommunications activities not covered by the statutory prohibition. The fee shall be compensation for use of the rights-of-way and shall not be applied as credit towards business license fees or taxes required under TMC Chapter 11.32 and TMC Title 5. Each license granted hereunder is subject to the City’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 or franchise, provided nothing in this chapter shall prohibit the City and a licensee or franchisee from agreeing upon the compensation to be paid or services to be provided. In the absence of such an agreement, such compensation shall be in an amount reasonably established by the City Council. Provided that the compensation required from any telecommunications provider or carrier engaged in the telephone business as defined in RCW 82.04.065 shall be consistent with RCW 35.21.860.
C. 
Fees and Compensation Not a Tax.
The fees, charges and fines provided for in this chapter and any compensation charged and paid for the rights-of-way provided herein, whether fiduciary or in-kind, are separate from and additional to any and all Federal, State, local and City taxes as may be levied, imposed or due from a telecommunications carrier or provider, its customers, or subscribers or on account of the lease, sale, delivery, or transmission of telecommunication services.
D. 
Compensation for City Property Occupancy and Use and Facility Leases.
Each facilities lease granted under this chapter or a lease for use and occupancy of a specific site in the right-of-way is subject to the City’s right, which is expressly reserved, to fix a fair and reasonable compensation to be paid for the rights granted to the lessee; provided, nothing in this chapter shall prohibit the City and a lessee from agreeing to the compensation to be paid. Notwithstanding any other provision in this chapter, any charges for use and occupancy of a specific site in the right-of-way pursuant to an agreement between the City and a service provider of personal wireless services shall be in accordance with RCW 35.21.860(1)I.
(Ord. 1995 § 1(part), 2002)
Nothing in this chapter shall be construed as limiting any other remedies that the City may have, at law or in equity, for enforcement of TMC Chapter 11.32. Notwithstanding the existence or use of any other remedy, the City may seek legal or equitable relief to enjoin any acts or practices and abate any conditions that constitute or will constitute a violation of this chapter.
(Ord. 1995 § 1(part), 2002)