The purpose of this title is to:
A. 
Establish a local policy concerning telecommunications systems, cable systems, open video systems, and private communication systems for use of the public rights-of-way;
B. 
Establish a policy that promotes availability of high-quality and diverse telecommunications services to city residents, businesses, the city, and other public institutions; promotes the availability of diverse, multimedia information resources to the community; provides for the development of a communications infrastructure that provides opportunities for more open government, enhancing educational opportunities throughout the community, providing public access to the communications infrastructure, and building a stronger community; while ensuring that the city has the authority to act to protect the public, safety, and welfare in the face of a rapidly changing industry that is placing increasing demand on public resources;
C. 
Establish clear and nondiscriminatory local guidelines, standards and time frames for the exercise of local authority with respect to the regulation of the use of public rights-of-way by telecommunications operators, cable operators, open video system operators, private communication operators, and resellers, and their respective facilities and licenses;
D. 
Promote competition in communications;
E. 
Minimize unnecessary local regulation of providers and services;
F. 
Encourage the provision of advanced and competitive telecommunications, cable or open video system services on the widest possible basis to the businesses, institutions and residents of the city;
G. 
Permit and manage reasonable access to the public rights-of-way of the city for communications purposes on a competitively neutral basis, to the extent required by law;
H. 
Conserve the limited physical capacity of the public rights-of-way held in public trust by the city;
I. 
Assure that the city's current and ongoing costs of granting and regulating private access to and use of the public rights-of-way are fully paid by the persons seeking such access and causing such costs;
J. 
Secure fair and reasonable compensation to the city and the residents of the city, in a nondiscriminatory manner, for permitting private use of the public rights-of-way;
K. 
Encourage economic development while preserving aesthetic and other community values and preventing proliferation of above ground facilities;
L. 
Assure that all persons providing telecommunications, cable, or open video facilities or services within the city comply with the ordinances, rules and regulations of the city;
M. 
Ensure the ability of the city to obtain sufficient information from persons subject to its jurisdiction to enable effective decisions regarding their access to city rights-of-way and effective management of activity in the rights-of-way;
N. 
Assure that the city can continue to fairly and responsibly protect the public health, safety and welfare;
O. 
Enable the city to discharge its public trust consistent with rapidly evolving federal and state regulatory policies, industry competition and technological development;
P. 
Reserve to the city and provide for the fullest exercise possible of the authority and discretion of the city to require that:
1. 
Facilities are installed and maintained within the public rights-of-way in such manner and at such points so as not to inconvenience the public use of the public rights-of-way or to adversely affect the public safety and welfare;
2. 
All noncity users of the rights-of-way shall be required to reimburse and hold harmless the city for the actual costs incurred by the city by reason of the construction or presence in the public rights-of-way of the facilities of such other users.
(Ord. 1402 § 1(11.01.1), 2001)
The administration of this title shall be governed by the following telecommunications and video programming policy guidelines:
A. 
The city of Fife supports efforts to establish an open, competitive marketplace for telecommunications and video programming services. The city promotes and encourages competition for voice, data, video, and video programming services that make the latest and best technology available and keep service prices affordable for all city residents and businesses. An integral component of this open marketplace is the consistent application of regulations to all telecommunications and video programming providers and the preservation of local authority over matters of local impact.
B. 
The following policy guidelines express the commitment of the city to support telecommunications and video programming services and to manage its rights-of-way proactively while balancing the interests and needs of the community:
1. 
The city will manage access to the public rights-of-way for telecommunications purposes in a nondiscriminatory, competitively neutral and nonexclusive way to the extent required under applicable law and, to the extent allowed under applicable law, to receive fair compensation. The city will also manage access to its public rights-of-way for cable service purposes in a nondiscriminatory, competitively neutral and nonexclusive way to the extent required by applicable law and, to the extent allowed by applicable law, to receive fair compensation.
a. 
The public interest will be protected by collecting full and fair market compensation, associated fees, taxes, administrative costs, and construction costs for use of the rights-of-way.
2. 
Telecommunications and video programming franchises will be managed to preserve the integrity of the city's infrastructure, ensure efficient use of city property and ensure compliance with city ordinances, rules and regulations.
a. 
Minimal disruption of public property will be ensured.
b. 
Telecommunications and cable service providers will be required to place their facilities underground in accordance with city policies.
3. 
Investments by telecommunications and video programming providers will be encouraged in order to enhance economic development programs and provide jobs, opportunities, and choices for its citizens.
a. 
Public and private partnerships are encouraged to meet public service needs and to actively pursue state, federal, and private grant funding that offers public benefit in advanced telecommunications.
4. 
Universal access to telecommunications and video programming services is encouraged for all residents and businesses.
5. 
In order to effectively manage and regulate the use of public rights-of-way by private entities in the best interests of the city and its citizens it is necessary for the city to reserve and exercise all legislative, administrative and discretionary authority it may have to the full extent allowed or not prohibited by law and nothing in this title shall be construed to diminish or in any way to limit the discretionary, administrative or legislative authority of the city and its officials as respects the management and use of the city's public rights-of-way or in respect to the granting, delaying or denying any franchise, permit or license.
(Ord. 1402 § 1(11.01.2), 2001)
A. 
Generally. For the purposes of this title, the following terms, phrases, words, and abbreviations shall have the meanings given herein, unless otherwise expressly stated. 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. Unless otherwise expressly stated, words not defined in this title shall be construed consistent with Title 47 of the United States Code (U.S.C.), 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.
B. 
"Affiliate"
means a person that (directly or indirectly) owns or controls, is owned or controlled by, or is under common ownership or control with, another person.
C. 
"Application fee"
means the charge specified in FMC 11.01.110(A) and designed to recover the city's actual costs in processing applications for franchises or licenses, including applications for the transfer thereof.
D. 
"Cable service"
means:
1. 
The one-way transmission to subscribers of (a) video programming, or (b) other programming service; and
2. 
Subscriber interaction, if any, which is required for the selection or use of such video programming or other programming service.
E. 
"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.
F. 
"City"
means the city of Fife and all departments, divisions, and agencies thereof.
G. 
"City manager"
means the city manager or the city manager's designee.
H. 
"Communications facility"
means a device which alone or as part of an aggregation of devices is capable of transmitting signals from place to place.
I. 
"Communications system"
refers to a telecommunications system, cable system, or open video system.
J. 
"Construction, operation or repair"
and similar formulations of that term means the named actions interpreted broadly, encompassing, among other things, installation, extension, maintenance, replacement of components, relocation, undergrounding, grading, site preparation, adjusting, testing, make-ready, and excavation.
K. 
"FCC"
means the Federal Communications Commission or its successor.
L. 
"Franchise"
refers to the authorization granted by the city to an operator of a telecommunications system, cable system, or an open video system under this title giving the operator the nonexclusive right to occupy the space, or use facilities upon, across, beneath, or over any public right-of-way in the city, to provide a specified service within a franchise area. Any franchise shall be issued in the form of an ordinance, and must be accepted by the franchisee to become effective in the time and manner specified in the Fife Municipal Code, or the franchise ordinance. Such franchise shall not include or be 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, street cut permits;
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 franchise 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; 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 title shall not be read to diminish or in any way affect the authority of the city to control and charge for the use of the city's real estate, fixtures or personal property. Therefore, any person who desires to use such property must obtain additional approvals, franchises, or agreements for that purpose, as may be required by the city.
M. 
"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.
N. 
"Franchisee"
refers to a person holding a franchise granted by city ordinance.
O. 
"Gross revenues"
means any and all revenue, of any kind, nature or form, as more particularly defined under the succeeding chapters in this title.
P. 
"License"
refers to the legal authorization, terminable at will, to use a particular, discrete, and limited portion of the public rights-of-way to construct, operate, or repair a communications facility or a private communications system. The term "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 required by the ordinances and laws of the city;
2. 
Any permit, agreement, or authorization required in connection with operations on public streets or property, including by way of example and not limitation, street cut permits;
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 license 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; 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.
Q. 
"Open video system" or "OVS"
refers to 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 CFR, Part 76, as amended from time to time.
R. 
"Operator"
when used with reference to a system, refers to a person who (1) provides service over a communications system and directly or through one or more affiliates owns a significant interest in such facility, or (2) otherwise controls or is responsible for, through any arrangement, the management and operation of such a facility. A person that operates under agreement a telecommunications system or a specific portion of a telecommunications system to provide telecommunications services shall be treated as an operator for purposes of this title.
S. 
"Overhead facilities"
refers to electric utility and communications facilities located above the surface of the ground, including the underground supports and foundations for such facilities.
T. 
"Person"
includes any individual, corporation, partnership, association, joint stock company, trust, or any other legal entity, but not the city.
U. 
"Private communications system"
means a facility placed in whole or in part in the public rights-of-way for the provision of communications in connection with a person's business, but not encompassing in any respect the provision of telecommunications services.
V. 
"Private communications system owner"
means a person that owns or leases a private communications system.
W. 
"Programmer"
refers to any person who provides video programming to subscribers over a cable system or an open video system, excluding video programming delivered not for a charge over a public, educational, or governmental ("PEG") channel.
X. 
"Public rights-of-way"
mean land acquired or dedicated for public roads and streets which under the applicable ordinances and laws the city has authority to grant franchises, permits or licenses for use thereof or has regulatory authority thereover and as may be more specifically defined in the franchise, permit or license granting any right to or use thereof but for purposes of this title does not include (1) state highways, (2) land dedicated for roads, streets and highways not open and not improved for motor vehicle use by the public, (3) structures such as, but not limited to, poles and conduits located within the right-of-way, (4) parks and open space, and (5) publicly owned shorelines or harbor areas.
Y. 
"Reseller"
refers to any person who resells a telecommunications service, for which he makes a separate charge, provided over a telecommunications system, where that person does not own or lease the underlying telecommunications system used for the transmission.
Z. 
"Telecommunications service"
means the transmission for hire of information in electronic or optical form, including, but not limited to, voice, video, or data, whether or not the transmission medium is owned by the provider itself. Telecommunications service includes telephone service but does not include cable service or over-the-air broadcasts to the public-at-large from facilities licensed by the Federal Communications Commission or any successor thereto.
AA. 
"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 light poles in the public rights-of-way through which telecommunications services are originated or terminated. An open video system is not a telecommunications system to the extent that it provides only video services; a cable system is not a telecommunications system to the extent that it provides only cable service.
BB. 
"Title,"
when used in the context of referring to this title of the Fife Municipal Code, shall mean Title 11 of the Fife Municipal Code and Chapters 11.01 through 11.07 FMC.
CC. 
"Transfer"
means any transaction in which:
1. 
All or a portion of the communications system is sold or assigned (except a sale or assignment that results in removal of a particular portion of the facility from the public rights-of-way);
2. 
There is any change, acquisition, or direct or indirect transfer of control of the franchisee or licensee; or
3. 
The rights and/or obligations held by the franchisee, permittee or licensee under the franchise, permit or license are transferred, sold, assigned, or leased, in whole or in part, directly or indirectly, to another party. It will be presumed, except where expressly provided otherwise in a franchise, permit or license, that a change of control within the meaning of subsection (CC)(2) of this section has occurred: where a change in voting interest results in a person, or persons acting in concert, obtaining a 50 percent or greater interest in franchisee, permittee or licensee; or a change in voting interest results in a person, or persons acting in concert, that held 50 percent or greater interest reducing that interest to below 50 percent; or which adversely affects the ability of the franchisee, permittee or licensee to carry out its franchise, permit or license obligations; or where there is a change in actual working control. In succeeding provisions of this title, all these activities are referred to as franchise transfers.
DD. 
"Underground facilities"
refers to electric utility and communications facilities located under the surface of the ground, excluding the underground foundations or supports for overhead facilities.
(Ord. 1402 § 1(11.01.3), 2001)