The purpose and intent of this chapter is to:
A. 
Establish a local policy concerning telecommunications carriers, providers and service;
B. 
Establish clear local guidelines and standards for the exercise of local authority with respect to the regulation of telecommunications carriers, providers and services;
C. 
Promote competition in telecommunications;
D. 
Minimize unnecessary local regulation of telecommunications carriers, providers and services;
E. 
Encourage the provision of advanced and competitive telecommunications services on the widest possible basis to the businesses, institutions and residents of the city;
F. 
Permit and manage reasonable access to the public ways of the city for telecommunications purposes on a competitively neutral basis;
G. 
Conserve the limited physical capacity of the public ways held in public trust by the city;
H. 
Assure that the city's current and ongoing costs of granting and regulating private access to and use of the public ways are fully paid by the persons seeking such access and causing such costs;
I. 
Secure fair and reasonable compensation to the city and the residents of the city for permitting private use of the public ways;
J. 
Assure that all telecommunications carriers providing facilities or services within the city comply with the ordinances, rules and regulations of the city;
K. 
Assure that the city can continue to fairly and responsibly protect the public health, safety and welfare;
L. 
Enable the city to discharge its public trust consistent with rapidly evolving federal and state regulatory policies, industry competition and technological development;
M. 
Telecommunications providers are exempt from the requirements of the provisions of this chapter until such time as the city amends this chapter.
For the purpose of this chapter, and the interpretation and enforcement thereof, the following words and phrases shall have the following meanings, unless the context of the sentence in which they are used shall indicate otherwise:
“Access channels”
means channels set aside by a franchisee exclusively for noncommercial public, educational, or governmental use (commonly referred to as “PEG” channels).
“Addressability”
means the ability of a system allowing a franchisee to authorize specific equipment to receive, change or to cancel any or all specified programming.
“Affiliate”
means a person who (directly or indirectly) owns or controls, is owned or controlled by, or is under common ownership or control with another person.
“Applicant”
means any person or entity that applies for any authorization, franchise, lease, or permit pursuant to this chapter.
“Basic cable service”
means the lowest level of service regularly provided to all subscribers that includes the retransmission of local broadcast signals.
“Cable Act”
shall mean the Cable Communications Policy Act of 1984, 47 U.S.C. 532, et seq., as now and hereafter amended.
“Cable facilities”
means equipment and wiring used to transmit audio and video signals to subscribers.
“Cable operator”
means a telecommunications carrier providing or offering to provide “cable service” within the city as that term is defined in the Federal Cable Act.
“Cable service”
shall have the same meaning provided by the Federal Cable Act.
“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 and other service to subscribers.
“Cablecast”
means the distribution of programming which originates within the facilities of the cable television system.
“Channel” or “cable channel”
means a portion of the electromagnetic frequency spectrum which is used in a cable system and which is capable of delivering a television signal as defined by the Federal Communications Commission.
“Character generator”
means a device used to generate alphanumerical programming to be cablecast on a cable channel.
“City”
means the city of Mill Creek, Washington.
“City property”
means and includes all real property owned by the city, other than public streets and utility easements as those terms are defined herein, and all property held in a proprietary capacity by the city, which are not subject to right-of-way licensing and franchising as provided in this chapter.
“Council”
means the city council of the city of Mill Creek, Washington, acting in its official capacity.
“Data communication”
means (1) the transmission of encoded information, or (2) the transmission of data from one point to another.
“Dwelling units”
for the purposes of this chapter means residential living facilities as distinguished from temporary lodging facilities such as hospitals, hotel and motel rooms and dormitories, and includes single-family residential units and individual apartments, condominium units, mobile homes, extended care facilities and other multiplefamily residential units.
“Emergency”
means a condition of imminent danger to the health, safety, and welfare of property or persons located within the city including, without limitation, damage to persons or property from natural consequences, such as storms, earthquakes, riots or wars.
“Excess capacity”
means the volume or capacity in any existing or future duct, conduit, manhole, handhole or other utility facility within the public way that is or will be available for use for additional telecommunications facilities.
“FCC” or “Federal Communications Commission”
means the federal administrative agency, or lawful successor, authorized to regulate and oversee telecommunications carriers, services and providers on a national level.
“Fiber optics”
means the technology of guiding and projecting light for use as a communications medium.
“Franchise”
shall mean the initial authorization, or renewal thereof, approved by an ordinance of the city, which authorizes the franchisee to construct, install, operate, or maintain telecommunications facilities in, under, over, or across public ways of the city and/or to also provide telecommunications service to persons or areas in the city.
“Franchisee”
means the person, firm or corporation to whom or which a franchise, as defined in this chapter, is granted by the council under this chapter and the lawful successor, transferee or assignee of said person, firm or corporation subject to such conditions as may be defined in this chapter.
“Gross revenues”
means any and all revenues (as that term is defined by generally accepted accounting principles) received directly or indirectly from all sources which arise out of or are derived from the operation of a franchisee’s cable system in the city. When the revenue of the franchisee includes gross revenues from sources outside of the city, a franchisee shall prorate the gross revenues among its sources by multiplying such gross revenues by a fraction, the numerator of which is the number of franchisee’s subscribers in the city and the denominator of which is the total number of all a franchisee’s subscribers. “Gross revenues” shall not include the following:
A. 
Fees and payments from subscribers who do not live in the city;
B. 
Taxes on services furnished by a franchisee, which are imposed on any subscriber or used by any governmental unit, agency or instrumentality and which are collected by a franchisee for such entity;
C. 
Bad debt write-offs;
D. 
Revenue from the sale of equipment or other assets of the cable system to persons not purchasing services from the cable system;
E. 
Revenue from transactions involving real property owned or leased by the franchisee; or
F. 
Amounts collected from subscribers as a franchise fee to be paid to city.
“Headend”
means the electronic equipment located at the start of a cable system, usually including antennas, preamplifiers, frequency converters, demodulators and related equipment.
“Installation”
means the connection of the cable system from feeder cable to subscribers’ receivers.
“Institutional networks (I-Nets)”
means that portion of a cable system which is designated principally for the provision of non-entertainment services to public schools, or public agencies such as public libraries separate and distinct from the subscriber network, or on secured channels of the subscriber network.
“Interactive services”
means services provided to subscribers where the subscriber (1) receives information consisting of either television or other signals and transmits signals generated by the subscriber or equipment under his/her control for the purpose of selecting what information shall be transmitted to the subscriber or for any other purpose, and (2) has the ability to transmit signals to any other location for any purpose.
“Office”
means the person or entity designated by the city as being responsible for the administration of a franchise for the city.
“Operator”
means the person, firm or corporation to whom a franchise is granted pursuant to the provisions of this chapter.
“Other ways”
means the highways, streets, alleys, utility easements or other rights-of-way within the city, but under the jurisdiction and control of a governmental entity other than the city.
“Overhead facilities”
means utility poles, utility facilities and telecommunications facilities located above the surface of the ground, including the underground supports and foundations for such facilities.
“Person”
means and includes corporations, companies, associations, joint stock companies or associations, firms, partnerships, limited liability companies and individuals and includes their lessors, trustees and receivers.
“Premium services”
means video programming offered on a pay-per-channel or pay-per-program basis.
“Property of franchisee”
means all property owned, installed or used by a franchisee in the conduct of its business in the city under the authority of a franchise granted pursuant to this chapter.
“Proposal”
means the response, by an individual or organization, to a request by the city regarding the provision of cable services, or an unsolicited plan submitted by an individual or organization seeking to provide cable services in the city.
“Public street”
means any highway, street, alley or other public right-of-way for motor vehicle travel under the jurisdiction and control of the city which has been acquired, established, dedicated or devoted to highway or street purposes.
“Public way”
means and includes all public streets and utility easements, as those terms are defined herein, now or hereafter owned by the city, but only to the extent of the city's right, title, interest or authority to grant a license or franchise to occupy and use such streets and easements for telecommunications facilities.
“State”
means the state of Washington.
“Subscriber”
means a person or entity or user of the cable system who lawfully receives cable services or other service therefrom with franchisee's express permission.
“Surplus space”
means that portion of the usable space on a utility pole which has the necessary clearance from other pole users, as required by the federal or state orders and regulations, to allow its use by a telecommunications carrier for a pole attachment.
“Telecommunications carrier”
means and includes every person that directly or indirectly owns, controls, operates or manages plant, equipment or property within the city, used or to be used for the purpose of offering telecommunications service.
“Telecommunications facilities”
means the plant, equipment and property, including but not limited to cables, wires, conduits, ducts, pedestals, antennas, electronics and other appurtenances used or to be used to transmit, receive, distribute, provide or offer telecommunications services.
“Telecommunications provider”
means and includes every person who provides telecommunications services over telecommunications facilities without any ownership or management control of the facilities.
“Telecommunications service”
means the providing or offering for rent, sale or lease, or in exchange for other value received, of the transmittal of voice, data, image, graphic and video programming information between or among points by wire, cable, fiber optics, laser, microwave, radio, satellite or similar facilities, with or without benefit of any closed transmission medium.
Telecommunications System.
See “Telecommunications facilities.”
“Underground facilities”
means utility and telecommunications facilities located under the surface of the ground, excluding the underground foundations or supports for overhead facilities.
“Universal service”
means a level of and definition of telecommunications services as the term is defined by the FCC through its authority granted pursuant to Section 254 of the Act.
“Usable space”
means the total distance between the top of a utility pole and the lowest possible attachment point that provides the minimum allowable vertical clearance as specified in any federal or state orders and regulations.
“Utility easement”
means any easement owned by the city and acquired, established, dedicated or devoted for public utility purposes not inconsistent with telecommunications facilities.
“Utility facilities”
means the plant, equipment and property, including but not limited to the poles, pipes, mains, conduits, ducts, cables, wires, plant and equipment located under, on or above the surface of the ground within the public ways of the city and used or to be used for the purpose of providing utility or telecommunications services.
Except as otherwise provided herein, all cable operators, telecommunications carriers, and telecommunications providers engaged in the business of transmitting, supplying or furnishing of telecommunications service of any kind originating or terminating in the city shall apply for and obtain a telecommunications business registration from the city pursuant to Chapter 5.06 MCMC.
Except as otherwise provided herein, any telecommunications carrier who desires to construct, install, operate, maintain, or otherwise locate telecommunications facilities in, under, over or across any public way of the city for the purpose of providing telecommunications service to persons and areas outside the city or for privately owned systems or telecommunications networks, which are operated solely for purposes other than offering telecommunications services to other persons or the general public, shall first obtain a telecommunications right-of-way use authorization granting the use of such public ways from the city pursuant to Article II of this chapter.
Except as otherwise provided herein, any telecommunications carrier who desires to construct, install, operate, maintain or otherwise locate telecommunications facilities in, under, over or across any public way of the city, and to also provide telecommunications service to persons or areas in the city, shall first obtain a telecommunications franchise granting the use of such public ways from the city pursuant to Article III of this chapter.
Except as otherwise provided herein, any telecommunications carrier or other person who desires to construct, install, operate, maintain or otherwise locate telecommunications facilities in, under, over or across any public way in the city for the purpose of providing telecommunications service to persons or areas outside of or in the city shall first obtain a conditional use permit from the city pursuant to MCMC § 17.02.050 and Chapter 17.28 MCMC.
No telecommunications carrier or other entity who desires to locate telecommunications or other equipment on city property shall locate such facilities or equipment on city property unless granted a facilities lease from the city pursuant to Article IV of this chapter. The city council reserves the sole discretion to lease city property for telecommunications and other facilities, and no vested or other right shall be created by this section or any provision of this chapter applicable to such facilities leases.
Except as otherwise provided herein, the holder of an authorization, franchise, or lease granted pursuant this chapter shall, in addition to said authorization, franchise, or lease, be required to obtain a right-of-way work permit from the city pursuant to Article VII of this chapter. No work, construction, development, excavation, or installation of any equipment or facilities shall take place within the public ways or upon city property until such time as the right-of-way work permit is issued.
A. 
Except as provided in subsection B of this section, this chapter shall have no effect on any existing franchise ordinance, franchise agreement, lease, permit, or other authorization to use or occupy a public way in the city until:
1. 
The expiration of said franchise ordinance, agreement, lease, permit, or authorization; or
2. 
The amendment to an unexpired franchise ordinance, franchise agreement, lease, permit, or authorization, unless both parties agree to defer full compliance to a specific date not later than the present expiration date.
B. 
This chapter and Chapter 5.06 MCMC shall be applicable to any existing franchise ordinance, franchise agreement, lease, permit, or other authorization to use or occupy a public way or public property in the city if such existing authorization provides for the applicability of a “model telecommunications ordinance” or any other city rules and regulations to the franchise ordinance, franchise agreement, lease, permit, or other authorization.
C. 
Nothing in this chapter shall be deemed to create an obligation upon any person for which the city is forbidden to require pursuant to federal, state, or other law.
Except as otherwise provided herein, all cable operators, telecommunications carriers, and telecommunications providers engaged in the business of transmitting, supplying or furnishing telecommunications service of any kind originating or terminating in the city is subject to the city's right, which is expressly reserved, to require said operator, carrier, or provider to make an equitable and nondiscriminatory contribution to the preservation and advancement of universal service.
A. 
Civil Penalty.
1. 
Any person, and the officers, directors, managing agents, or partners of any corporation, firm, partnership or other organization or business, violating or failing to comply with any of the provisions of this chapter shall be subject to a penalty in an amount not less than $100.00 nor more than $1,000 per day for each violation from the date set for compliance until compliance with the order is achieved.
2. 
In addition to any penalty which may be imposed by the city, any person violating or failing to comply with any of the provisions of this chapter shall be liable for all damage to public or private property arising from such violation, including the cost of restoring the affected area to its condition prior to the violation.
3. 
The penalty imposed by this section shall be collected by civil action brought by the city. The city manager or designee shall notify the city attorney in writing of the name of any person subject to the penalty, and the city attorney shall, with the assistance of the city manager or designee, take appropriate action to collect the penalty.
4. 
The violator may show as full or partial mitigation of liability:
a. 
That the violation giving rise to the action was caused by the willful act, or neglect, or abuse of another; or
b. 
That correction of the violation was commenced promptly upon receipt of the notice thereof, but that full compliance within the time specified was prevented by inability to obtain necessary materials or labor, inability to gain access to the subject structure, or other condition or circumstance beyond the reasonable control of the violator.
B. 
Additional Relief. The city may seek legal or equitable relief to enjoin any acts or practices and abate any condition which constitutes or will constitute a violation of the applicable provisions of this chapter when civil or criminal penalties are inadequate to effect compliance. In addition to the penalties set forth in this section, violation of the terms of this chapter may also result in the revocation of any authorization, franchise, approval, lease, or permit issued or granted hereunder, as set forth in MCMC § 12.16.1270 through 12.16.1300.
Nothing in this chapter shall be construed as limiting any judicial remedies that the city may have, at law or in equity, for enforcement of this chapter, or the application of general penalties specified in Chapter 1.16 MCMC.
The fees, charges and fines provided for in this chapter and any compensation charged and paid for the public ways provided for 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 telecommunications services.