15.10.020 Definitions.
For the purpose hereof, and the interpretation and enforcement thereof, the following words and phrases shall have the meanings given herein, unless the context of the sentence in which they are used shall indicate otherwise. 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 herein shall be construed consistent with Title 47 USC, 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.
“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 right-of-way permit, franchise, lease, or other permit pursuant hereto.
“Application fee” means the charge specified in Chapter 15.80 PMC, and designed to recover the City’s actual costs in processing applications for any right-of-way permit, franchise, lease, or other permit pursuant hereto, including applications for the transfer thereof.
“Cable service” means:
(a) The one-way transmission to subscribers of (i) video programming, or (ii) other programming service; and
(b) Subscriber interaction, if any, which is required for the selection or use of such video programming or other programming service.
“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:
(a) A facility that serves only to retransmit the television signals of one or more television broadcast stations;
(b) A facility that serves subscribers without using any public right-of-way;
(c) 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;
(d) Any facilities of any electric utility used solely for operating its electric utility systems; or
(e) An OVS that is certified by the FCC.
A reference to a cable system includes the cable system as a whole, or any part thereof, including all facilities, pedestals, equipment cabinets, electronic equipment and devices appurtenant to the system.
“City” means the City of Pasco, Washington, and all departments, divisions, employees, and agencies thereof.
“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 is not subject to right-of-way use permitting and franchising as provided herein.
“Communications 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 communications service.
“Communications operator” means a person:
(a) Who provides service over a communications system and directly or through one or more affiliates owns a significant interest in such facility; or
(b) Who 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 hereof.
“Communications provider” means and includes every person who provides communications services over communications facilities without any ownership or management control of the facilities.
“Communications facility” means a device which alone or as part of an aggregation of devices is capable of transmitting signals from place to place.
“Communications system” refers to a telecommunications system, but does not include a cable system or open video system, as said terms are defined herein or in applicable federal law, to the extent the system is used to provide cable service or open video system service as said terms are defined herein or in applicable federal law.
“Council” means the City Council of the City of Pasco, Washington acting in its official capacity.
“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 communications facilities.
“FCC” or “Federal Communications Commission” means the federal administrative agency, or lawful successor, authorized to regulate and oversee telecommunications, cable, and open video 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, granted by the City to an operator of a telecommunications system, cable system, or an open video system hereunder giving the operator the nonexclusive right to occupy the space in, under, over or across public ways of the City to provide a specified service within a franchise area. Any franchise shall be issued in the form of an ordinance of the City, and must be accepted by the franchisee to become effective in the time and manner specified in the Pasco Municipal Code or the franchise ordinance. Such franchise shall not include or be a substitute for:
(a) 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;
(b) 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 construction and street cut permits;
(c) 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
(d) 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 its 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.
“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.
“Franchisee” means the person, firm or corporation to whom or which a franchise, as defined in this section, is granted by the Council hereunder and the lawful successor, transferee or assignee of said person, firm or corporation, subject to such conditions as may be defined herein.
“Gross revenues” shall have the meaning set forth in Chapter 5.45 PMC and/or an applicable franchise agreement under which a franchise fee is collected based upon the franchisee’s gross revenues.
“Open video system” or “OVS” means an open video system as defined in FCC rules, 47 CFR § 76.1500, that has been certificated by the FCC under 47 CFR § 76.1502 to serve an area that includes the City. A reference to an OVS includes pedestals, equipment enclosures (such as equipment cabinets), amplifiers, power guards, nodes, cables, fiber optics and other equipment necessary to operate the OVS, or installed in conjunction with the OVS.
“Open video system service” or “OVS service” means video programming by means of an OVS.
“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” refers to electric utility and communications 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, but not the City.
“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.
“Private communications system owner” means a person that owns or leases a private communications system.
“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 hereto.
“Proposal” means the response, by an individual or organization, to a request by the City regarding the provision of communications services; or an unsolicited plan submitted by an individual or organization seeking to provide communications services in the City.
“Public right-of-way” or “public way” means and includes the public streets and easements which, under the Pasco Municipal Code, City ordinances, and applicable laws, the City has authority to grant franchises, permits, or leases for use thereof, or has regulatory authority thereover, and as may be more specifically defined in the franchise, permit, or lease granting any right to or use thereof. Public ways for the purpose hereof do not include buildings, parks, poles, or similar facilities or property owned by or leased to the City, including, by way of example and not limitation, structures in the public way such as utility poles and light poles.
“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 transportation purposes. For the purposes of this section, the term “alley” shall have its ordinary meaning and shall generally be considered to mean a public right-of-way which affords a secondary means for vehicular or utility access to abutting property and which is not intended for general traffic circulation.
“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.
“Right-of-way use permit” 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 right-of-way use permit shall not mean or include:
(a) 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;
(b) Any permit, agreement, or authorization required in connection with operations on public streets or property, including by way of example and not limitation, construction or street cut permits;
(c) Any permits or agreements for occupying any other property of the City or private entities to which access is not specifically granted by the right-of-way use permit 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
(d) The right to place devices in the right-of-way, such as pay telephones, for end-user use in originating and terminating transmissions.
“State” means the State of Washington.
“Surplus space” means that portion of the usable space on a utility pole, or in a duct or conduit which has the necessary clearance from other users, as required by federal or state orders and regulations, to allow its use by a communications carrier for a pole attachment or other communications facility.
“Telecommunications facilities.” See “Telecommunications system.”
“Telecommunications service” or “communications service” means the transmission for rent, sale or lease, or in exchange for other value received, 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, open video system service, or over-the-air broadcasts to the public-at-large from facilities licensed by the Federal Communications Commission or any successor thereto.
“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. A cable system is not a telecommunications system to the extent that it provides only cable service; an open video system is not a telecommunications system to the extent that it provides only video services.
“Transfer” means any transaction in which:
(a) 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);
(b) There is any change, acquisition, or direct or indirect transfer of control of the franchisee or right-of-way use permit holder; or
(c) The rights and/or obligations held by the franchisee or right-of-way use permit holder under the franchise or right-of-way use permit are transferred, sold, assigned, or leased, in whole or in part, directly or indirectly, to another party. It will be presumed that any transfer or cumulative transfer of voting interest of 10 percent or more is transfer of control within the meaning of subsection (b) of this definition.
“Underground facilities” means utility and communications facilities located under the surface of the ground, excluding the underground foundations or supports for overhead facilities.
“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 communications 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, communications services. [Ord. 4298 § 1, 2016; Ord. 3287 § 1, 1998; Code 1970 § 15.10.020.]