In order to enable the City to treat Persons providing similar Services similarly, as may be appropriate to comply with applicable law and considering differences in circumstances, and to comply with requirements of federal law which may require the City to separate its authority over Cable Systems from its authority over other providers of Telecommunications Services, the City requires individual Franchises for the provision of particular Services. The revocation of a Franchise for one particular Service in and of itself will not affect the authority of a Franchise holder to continue to occupy the Public Rights-of-Way to provide services for which it holds other Franchises. No Franchise shall be exclusive. The issuance of a Franchise shall not affect the City’s right to itself construct, operate, or repair any Telecommunications Facility, with or without a Franchise.
(Ord. 27910 Ex. A, 2010-08-03)
A. 
Any Person, other than an Exempt Operator or as otherwise provided in this subsection, must obtain a Franchise prior to constructing a Telecommunications Facility or providing Telecommunications Services. An Exempt Operator may, but is not required to, apply for and obtain a Franchise prior to constructing a Telecommunications Facility or providing Telecommunications Services.
B. 
A Person that has received a Franchise pursuant to Subtitle 16A shall not, unless otherwise directed by the City, be required to obtain a Franchise to provide Telecommunications Services pursuant to Subtitle 16B. Should state or federal law change in a manner that provides the City with regulatory authority over telecommunications providers that does not exist as of the effective date of this Subtitle, the City may, in its discretion, require a Franchise of such Person pursuant to Subtitle 16B. If the City requires a Franchise from any Person that already holds a franchise awarded under Subtitle 16A, the City must impose such requirement upon all similarly situated holders of franchises under Subtitle 16A that also provide Telecommunications Services. Nothing herein shall prevent Persons holding a franchise under Subtitle 16A from challenging the City’s authority to require a Franchise under Subtitle 16B, to the extent permitted by state or federal law.
(Ord. 27910 Ex. A, 2010-08-03)
No Franchise shall convey title, equitable or legal, in the Public Rights-of-Way. The right granted is only the right to occupy those portions of the Public Rights-of-Way to which the City has the right to grant access, for the purposes and for the period stated in the Franchise, and, subject to the limitations in this Subtitle or applicable law, the right may not be subdivided or subleased to a person other than the holder of the Franchise. Every Franchise shall be:
A. 
Interpreted in a manner that conforms to the requirements of Article VIII of the Tacoma City Charter; provided, however, that unless otherwise authorized by state law, the provisions of Section 8.2 of the Charter shall not apply;
B. 
Deemed to include all the provisions that are required to be in a Franchise under that article, as if fully set forth in the Franchise;
C. 
Deemed to provide for forfeiture under the circumstances set forth in provisions of this Subtitle and any Franchise ordinance thereunder; and
D. 
Drafted to specify the specific easements granted by City for Operator’s use of the Public Rights-of-Way.
(Ord. 27910 Ex. A, 2010-08-03)
No reference herein, or in any Franchise to a Public Rights-of-Way, shall be deemed to be a representation or guarantee by the City that its interest, or other right to control the use of such property, is sufficient to permit its use for such purposes, and a Franchise shall be deemed to grant no more than those rights which the City may have the undisputed right and power to give.
(Ord. 27910 Ex. A, 2010-08-03)
In addition to satisfying the other applicable requirements of this Subtitle, every Franchise for a Telecommunications System shall contain the following provisions:
A. 
The Franchise shall provide that neither the granting of any Franchise, or any provision thereof, shall constitute a waiver or bar to the exercise of any governmental right or power, police power, or regulatory power of the City as may exist at the time the Franchise is issued or thereafter be obtained.
B. 
The Franchise shall only authorize occupancy of the Public Rights-of-Way to provide the Services and for the purposes described in the Franchise.
C. 
The rights granted, pursuant to a Franchise, shall be a privilege that is held in the public trust and personal to the original Franchisee. The Franchise shall ensure that no Transfer of the Franchise may occur, directly or indirectly, without the prior consent of the City; except as contemplated by Section 16B.02.120, or as otherwise expressly provided in this Subtitle.
D. 
A Franchise shall ensure that any Person placing a Telecommunications System in the Public Rights-of-Way will not unlawfully discriminate in hiring, in contracting, or in the provision of Services.
E. 
The Franchise shall be for a specified term set forth in the Franchise. No Franchise issued under this Subtitle shall be for a term of longer than ten years, unless the Council determines that a longer period would be in the City’s interest.
F. 
Such other terms as are required to be included by the City Charter.
(Ord. 27910 Ex. A, 2010-08-03)
A. 
Written application.
1. 
A written application shall be filed with the City for the grant of an initial Franchise. Each entity that is required to hold a Franchise must submit an application therefore to the City Manager in accordance with the requirements of this Chapter 16B.02. To be accepted for filing, an applicant must file an original and one electronic copy of a complete application for a Franchise. An application may be filed by any Person on that Person’s own initiative or in response to a request for proposals. The City Manager is authorized to issue requests for proposals from time to time.
2. 
The City shall accept and review only those applications that include complete responses to every requirement of this Section 16B.02.060. Submission of an application that does not include the requisite information set forth in Section 16B.02.060 and the Application Fee shall not commence the time period for granting or denying any application. The applicant shall submit additional or updated information as necessary to ensure the requisite information provided is complete and accurate throughout the City’s review of the application.
B. 
Contents of applications. Except as expressly modified by the City for good cause, a request for proposals for a Telecommunications Franchise shall be deemed to require, and any application submitted pursuant to this Section 16B.02.060 shall contain, at a minimum, the following information:
1. 
Identity of the applicant, including the name, address, telephone number, and web site (if applicable); the name, address, telephone number, and e-mail address of all individual(s) authorized to represent the applicant before the City during its consideration of the Franchise(s) requested; and representatives of the applicant who will be responsible for management and oversight of Franchise related issues.
2. 
An applicant shall list all Telecommunications Systems in which it owns more than 5 percent of the system. In the discretion of the City, the applicant may list only those Telecommunications Systems in the state of Washington in which it owns more than 5 percent of the system.
3. 
Identification of the area of the City to be served by the proposed Telecommunications System, including a description of the proposed Franchise Area’s boundaries.
4. 
Technical qualifications, planned Services, and operations.
(a) 
The application shall describe the applicant’s planned initial and proposed Telecommunications Services geographic area, including a map of all areas proposed to be served and proposed dates for offering Service to each area, including a description of the miles of plant to be installed and a description of the size of equipment cabinets, shielding, and electronics that will be installed along the plant route, the power sources that will be used and a description of the noise, exhaust, and pollutants, if any, that will be generated by the operation of the same. Notwithstanding these requirements, if some of the descriptive data is not available at the time of application, a Franchise may be granted subject to conditions that the data be filed and approved by the City before construction begins and that the Franchise will be deemed to be forfeited if the data is not supplied and approved. The application shall additionally state whether the applicant proposes to provide Telecommunications Services to the entire Franchise Area, and, if so, a proposed timetable for meeting that goal.
(b) 
If the applicant has or asserts existing authority to access the Public Right-of-Way in any of the initial or proposed Service areas listed in Section 16B.02.060B.4(a) above, the applicant shall state the basis for such authority or asserted authority and attach the relevant agreements or other documentation of such authority.
(c) 
The applicant shall describe its planned construction and extension or phase schedule, as applicable, including system extension plans or policy, describing when and where construction will begin, how it will proceed, and when it will be completed; and describe the current status of the applicant’s existing or proposed arrangements, with area utilities, including pole attachments, vault, or conduit sharing agreements as applicable. Information shall include a designation of the portions of the system that will be placed above ground and the portions that will be placed underground, and the construction techniques that the Operator proposes to use in installing the system above ground and underground; and the expected effect on Public Rights-of-Way usage, including information on the ability of the Public Rights-of-Way to accommodate the proposed system, including, as appropriate given the system proposed, an estimate of the availability of space in conduits and an estimate of the cost of any necessary rearrangement of existing facilities. In addition, applicant shall provide a description, where appropriate, of how Services will be converted from existing facilities to new facilities, and what will be done with existing facilities. If an applicant reasonably believes that any information provided pursuant to this subsection is proprietary or a trade secret, as defined in RCW 42.56.270(11), it shall so note in a conspicuous manner on its application.
(d) 
The applicant shall describe its plan to ensure that the safety, functioning, and appearance of property and convenience and safety of other persons not be adversely affected by installation or construction of the applicant’s facilities, and that property owners are justly compensated for any damages caused by the installation, construction, operation, or removal of the facilities.
5. 
A demonstration of the financial qualifications of the applicant, including at a minimum, a statement regarding the applicant’s financial ability to complete the construction to meet the time frame proposed and to operate the Telecommunications System proposed certified by the applicant’s chief financial officer or most senior financial officer; or alternatively, a public company may submit Securities and Exchange Commission (“SEC”) filings to the extent they provide substantive information on the applicant’s financial qualifications.
6. 
A demonstration of the applicant’s technical ability to construct and/or operate the proposed Telecommunications System.
7. 
A demonstration that the applicant is legally qualified, which proof must include a statement from the applicant:
(a) 
Whether it has received, or is in a position to receive, necessary authorizations from state and federal authorities;
(b) 
Whether it has not engaged in conduct (fraud, racketeering, violation of antitrust laws, consumer protection laws, or similar laws) that allows City to conclude the applicant cannot be relied upon to comply with requirements of Franchise, or provisions of this Subtitle;
(c) 
Whether it or any Affiliate that will be directly or indirectly involved in Franchise operational or management issues has been found in violation by a regulatory authority or franchising authority of any Franchise ordinance or agreement, contract or regulation governing a Telecommunications System during the preceding five years. If so, the applicant shall identify the judicial or administrative proceeding, giving the date, name of tribunal, and result or disposition of that proceeding;
(d) 
Whether it has been found in violation by a regulatory authority of any other type (e.g. utility or cable) of Franchise, ordinance, agreement, permit, contract, or regulation during the preceding five years. If so, the applicant shall identify the judicial or administrative proceeding, giving the date, name of tribunal, and result or disposition of that proceeding;
(e) 
Whether it is willing to enter into a Franchise and to abide by the provisions of applicable law, including those relating to the construction, operation, or repair of its facilities, and has not entered into any agreement that would prevent it from doing so.
8. 
Declaration of applicant. Each application shall be accompanied by a declaration substantially in the form set forth below:
This application is submitted by the undersigned who has been duly authorized to make the representations within on behalf of the applicant and certifies the representations are true and correct.
The applicant recognizes that all representations are binding on it, that all application commitments are enforceable, and that material misrepresentations or omissions, or failure to adhere to any such representation may result in a denial of an application by the City.
The applicant shall comply with all applicable local laws.
Consent is hereby given to the City and its representatives to make inquiry into the legal, character, technical, financial, and other qualifications of the applicant by contacting any persons or organizations named herein as references, or by any other appropriate means.
 
“I certify (or declare) under penalty of perjury under the laws of the state of Washington that the foregoing is true and correct”:
(Date and Place)
(Signature)
(Ord. 27910 Ex. A, 2010-08-03)
A. 
Minimum deposit. Every application for a new Franchise shall be accompanied by an initial minimum deposit in the amount of $5,000 or, in the discretion of the City Manager related to the costs anticipated to be incurred by the City in connection with the Franchise application review process, such higher amount as may be necessary to cover the City’s costs in processing the application.
B. 
Publication expenses. In addition, an applicant that is awarded a Franchise, shall pay to the City a sum of money sufficient to reimburse it for all publication expenses incurred by it in connection with the granting of a Franchise, pursuant to the provisions of Subtitle 16B. Such payment shall be made by delivery of payment to the City Treasurer within 30 days after the City furnishes the Franchisee with a written statement of such expenses.
C. 
Failure to remit fees. No Franchise shall become effective until all required fees and costs are paid.
(Ord. 27910 Ex. A, 2010-08-03)
Unless otherwise provided by law, information submitted as part of a Franchise application is open to public inspection and subject to the Washington Public Records Act (Chapter 42.56 RCW). It is the applicant’s responsibility to be familiar with the Washington Public Records Act. An applicant may specifically identify any information it considers proprietary by providing said information to City in a separate envelope marked “Proprietary Information.” In the event that: (A) the City receives a request from another party to disclose any information which the applicant has deemed proprietary, and if the City Attorney determines that said information may be subject to being disclosed; or (B) the City determines that the information should be disclosed in connection with its enforcement of any provision of this Subtitle, or in the exercise of its police or regulatory powers, then the City shall notify the applicant of the applicant’s opportunity to seek a protective order from a court with appropriate jurisdiction. In the event an action is not commenced within ten working days, the City may disclose said information. By submitting information which the applicant deems proprietary or otherwise exempt from disclosure, the applicant agrees to defend and hold harmless the City from any claim for disclosure under the Washington Public Records Act, including, but not limited to, any expenses including out-of-pocket costs and attorneys’ fees, as well as any judgment entered against the City for the attorney fees of the party requesting disclosure.
(Ord. 27910 Ex. A, 2010-08-03)
A. 
Acceptance of application. Within ten business days of receipt of an application for a new Franchise, the City shall review the application to ensure all requisite information is included in the application. If the application is not complete, the City will notify the applicant in writing, listing the requisite information that is required to complete the application. If the application is complete, the City will notify the applicant in writing that all requisite information has been received.
B. 
Staff review. The City staff shall review all completed applications based on the review criteria set forth herein. If, during the review of an application, staff reasonably requires additional information from the applicant, staff will promptly request the information from the applicant, in writing. After completing the review, staff shall provide an analysis of the application to the City Council.
C. 
Franchise negotiations. Upon acceptance of a complete application, the City shall commence the process for negotiating a Franchise agreement with the applicant. Unless otherwise agreed to by the parties, Franchise negotiations shall be completed, and a date scheduled for the initial City Council consideration within 120 days of acceptance of a complete application.
D. 
Review criteria. The City may deny an application if, based on the information provided in the application and/or any terms of a proposed Franchise agreement: (1) the applicant does not have the financial, technical, or legal qualifications to provide Telecommunications Service; or (2) the applicant’s proposed terms do not comply with applicable federal, state, and local laws, policies and regulations, including, but not limited to, relevant existing contractual obligations of the City.
E. 
Grant or denial of franchise application. If the City finds that it is in the public interest to issue a Franchise considering the factors set forth above, the City may adopt a Franchise ordinance setting forth the terms and conditions of the Franchise, which Franchise shall become effective upon satisfaction of conditions precedent to effectiveness, and when signed and accepted by the applicant. If the City denies a Franchise, it will cause a written explanation of the denial to issue, which may be in any appropriate form. Without limiting its authority to deny an application for a Franchise, the City specifically reserves the right to reject any application that is incomplete. Nothing in this Subtitle shall be construed in any way to limit the discretion and legislative authority of the City Council in making decisions relative to the granting, denial, or renewal of a Franchise.
(Ord. 27910 Ex. A, 2010-08-03)
An Operator may submit a proposal for renewal of a Franchise. Such a proposal may be submitted at any time and the City may, after affording the public adequate notice and opportunity for comment, grant or deny such proposal at any time. An application for renewal will be considered under the same substantive criteria as new applications, and may be denied for failure to meet those criteria, and/or failure to comply with the obligations of the current Franchise.
(Ord. 27910 Ex. A, 2010-08-03)
A. 
An application for modification of a Franchise shall include, at minimum, the following information:
1. 
The specific modification requested;
2. 
The justification for the requested modification, including the impact of the requested modification on subscribers and others, and the financial impact on the applicant if the modification is approved or disapproved, demonstrated through submission of pro forma financial statements or similar financial documentation, or other evidence of the impacts on subscribers;
3. 
Any other information that the applicant believes is necessary for the City to make an informed determination on the application for modification; and
4. 
A declaration of the applicant or applicant’s authorized officer certifying the truth and accuracy of the information in the application, and certifying that the application is consistent with the requirements of applicable law.
B. 
Public meetings. An applicant shall be notified of any public meetings held in connection with the evaluation of its application and shall be given a reasonable opportunity to be heard.
(Ord. 27910 Ex. A, 2010-08-03)
A. 
City approval required. No Transfer shall occur without prior written notice to and approval of the City Council, which shall not be unreasonably withheld. The granting of approval for a Transfer in one instance shall not render unnecessary approval of any subsequent Transfer.
B. 
Application.
1. 
The Franchisee shall promptly notify the City of any proposed Transfer involving a Telecommunications System.
2. 
At least 120 calendar days prior to the contemplated effective date of a Transfer involving a Telecommunications System, the Franchisee shall submit to the City an application for approval of the Transfer. Such an application shall provide complete information on the proposed transaction, including details on the legal, financial, technical, and other qualifications of the Transferee subject to applicable law. At a minimum, the following information must be included in the application, provided that, a Franchisee is not required to duplicate information that it submits to the City to comply with its obligations under federal or state law:
(a) 
Any contracts or other documents that relate to the proposed Transfer;
(b) 
A demonstration statement regarding the applicant’s financial ability to comply with the Franchise and to operate the Telecommunications System proposed, certified by the applicant’s chief financial officer; or alternatively, a public company may submit SEC filings to the extent they provide substantive information on the applicant’s financial qualifications.
(c) 
Any shareholder reports or filings with the SEC that discuss the transaction;
(d) 
Other information necessary to provide a complete and accurate understanding of the financial position of the Telecommunications System before and after the proposed Transfer; and
3. 
For the purposes of determining whether it shall consent to a Transfer, the City, or its agents, may inquire into all qualifications of the prospective Transferee and such other matters subject to applicable law as the City may deem necessary to determine whether the Transfer is in the public interest and should be approved, denied, or conditioned, as provided under Section 16B.02.120C. The Franchisee and any prospective Transferees shall assist the City in any such inquiry, and if they fail to do so, the request for Transfer may be denied.
C. 
Determination by City. In making a determination as to whether to grant, deny, or grant subject to conditions an application for a Transfer of a Franchise under this Section 16B.02.120C, the City shall consider the legal, financial, and technical qualifications of the Transferee to operate the Telecommunications System; whether the incumbent Telecommunications Operator is in compliance with its Franchise and this Subtitle and, if not, the proposed Transferee’s commitment to cure such noncompliance; whether the Transferee owns or controls any other Telecommunications System in the City, and whether operation by the Transferee or approval of the Transfer would adversely affect the public, or the City’s interest under this Subtitle, the Franchise, or other applicable law.
D. 
Transferee’s agreement. No application for a Transfer of a Franchise, subject to this Section 16B.02.120, shall be granted unless the Transferee agrees in writing that it will abide by and accept all lawful terms of this Subtitle and the Franchise, and that it will assume the obligations, liabilities, and responsibility for all acts and omissions, known and unknown, of the previous Franchisee under this Subtitle and the Franchise for all purposes, including renewal, unless the City, in its sole discretion, expressly waives this requirement in whole or in part.
E. 
Approval does not constitute waiver. Approval by the City of a Transfer of a Franchise, pursuant to this Section 16B.02.120, does not constitute a waiver or release of any of the rights of the City under this Subtitle or a Franchise, whether arising before or after the date of the Transfer.
F. 
Exception for intra-company transfers. Notwithstanding the foregoing, a Franchise may provide that Transfers to Affiliates of a Franchisee shall be excepted from the requirements of Section 16B.02.120A and B where (1) the Affiliate is wholly-owned and managed by an entity that will guarantee the performance under a Franchise or provide other adequate assurance acceptable to the City; and (2) the Transferee Affiliate:
1. 
Notifies the City of the Transfer at least 60 days before it occurs and, at that time provides the agreements and warranties required by this Section 16B.02.120, describes the nature of the Transfer, and submits complete information describing who will have direct and indirect ownership and control of the Telecommunications System after the Transfer;
2. 
Warrants that it has read, accepts, and agrees to be bound by each and every term of the Franchise and related amendment, regulations, ordinances, and resolutions then in effect;
3. 
Agrees to assume all responsibility for all liabilities, acts, and omissions known and unknown, of its predecessor Franchisees for all purposes, including renewal;
4. 
Agrees that the Transfer shall not permit it to take any position or exercise any right which could not have been exercised by its predecessor Franchisees;
5. 
Warrants that the Transfer will not substantially increase the financial burdens upon or substantially diminish the financial resources available to the Franchisee (the warranty to be based on comparing the burdens upon and resources that will be available to the Transferee compared to its predecessors), or otherwise adversely affect the ability of the Franchisee to perform;
6. 
Warrants that the Transfer will not in any way adversely affect the City;
7. 
Notifies the City that the Transfer is complete within 30 days of the date the Transfer is complete; and
8. 
Agrees that the Transfer in no way affects any evaluation of its legal, financial, or technical qualifications that may occur under the Franchise or applicable law after the Transfer, and does not directly or indirectly authorize any additional Transfers.
(Ord. 27910 Ex. A, 2010-08-03)