(A) Following the effective date of this chapter, no person shall erect, install, construct, or maintain telecommunications equipment within the public right-of-way unless the person has first obtained a franchise for such use granted by the City Council under such terms and restrictions as are set forth in this chapter and in the franchise agreement or has obtained some other specific grant of authority from the city for the use of the public right-of-way.
(B) No person shall operate telecommunications equipment which is erected, installed, or constructed within the public right-of-way following the effective date of this chapter unless the person has first obtained a Certificate of Public Convenience and Necessity from the California Public Utilities Commission setting forth the terms and conditions under which such person may operate such telecommunications equipment.
(C) The procedures set forth herein shall not be applied to any facility, or the operation and maintenance of any facility, which is now or hereafter otherwise specifically authorized to locate in the public right-of-way by federal, state, or local laws, and for which all required approvals by the city are properly obtained. Any applicant for a franchise who contends that its telecommunications services or telecommunications system is subject to the provisions of Public Utilities Code Section 7901 shall bear the burden of proving the applicability of such statute to the city.
(D) This chapter shall apply to any existing cable television system operating pursuant to a franchise awarded by the city which the franchisee uses to install, or maintain telecommunications equipment. This chapter shall also apply to any existing entity operating any telecommunications equipment pursuant to Public Utilities Code Section 7901 to the extent that this chapter is not preempted by such statute.
(E) Before applying for a franchise to install, maintain, or operate telecommunications equipment in a public right-of-way in the city, the franchisee shall obtain all required regulatory approvals, permits, authorizations or licenses (collectively "approvals") from the appropriate federal, state and local authorities. The applicant shall submit evidence of such approvals to the city upon the written request of the city. The applicant shall also submit an application, in a form prescribed by the city, and an application fee, in an amount set by resolution of the City Council, as set forth in § 4.06.070 (A)(3) of this chapter.
(F) This chapter shall not be construed as a waiver of any codes, ordinances, or regulations of the city or as a waiver of the city's right to require a franchisee or any person utilizing the telecommunications services to secure appropriate permits, licenses, or authorizations for such use. No fee or charge may be imposed upon a franchisee for any such permit or authorization, other than the standard fees or charges generally applicable to all persons for such permits or authorizations. Such standard fee or charge shall not be offset against the annual business license fee or franchise fee a franchisee is required to pay to the city pursuant to § 4.06.150 of this chapter.
(G) The procedures set forth in this section shall not be applied to:
(1) Any existing telecommunications system, or the operation and maintenance of any existing telecommunications system, which serves 100 or more parcels, residences, and/or business locations (or any combination thereof) within the city, and for which all other required approvals by the city are properly obtained.
(2) A planned telecommunications system if the construction plans approved by the city show a system that will pass within 300 feet of 100 or more parcels, residences, and/or business locations in the city, and will be capable of offering telecommunications services to more than 100 parcels, residences, and/or business locations in the city, or which will prove wholesale access to providers of telecommunications services to 100 or more parcels, residences, and/or business locations within the city, and for which all other required approvals by the city are properly obtained. For planned telecommunications systems attempting to comply with this section, any applicable franchise fee required by this chapter shall accrue, plus interest at a 10% annual rate, but the city shall stay its collection of the franchise fee and interest for three years from the first issuance of an excavation permit for the system. If the applicant does not construct its planned system to the extent necessary to provide and does not provide telecommunications services to, or does not construct its planned system to the extent necessary to provide and does not provide wholesale access to a provider of telecommunications services to 100 or more parcels, residences, and/or business locations (or any combination thereof) within three years of the city's first issuance of an excavation permit for the system, then this division (G) shall not apply, the applicant shall comply with Chapter 4.06, and the city shall collect any accrued franchise fees plus interest.
(3) The operation and maintenance of any telecommunications system to which wholesale access is provided for providers of telecommunications services to 100 or more parcels, residences, and/or business locations (or any combination thereof) within the city, and for which all other required approvals by the city are properly obtained.
(H) An applicant seeking a determination of compliance with division (G) shall complete an application form approved by the City Manager. The application form shall contain at least the following information:
(1) For existing telecommunications systems:
(a) A list or map of addresses, parcel numbers, or other similar information, and a set of plans or similar drawings which show the applicant's facilities do pass within 300 feet of 100 or more parcels, residences, and/or business locations within the city.
(b) A statement signed by a corporate officer of applicant or other similar responsible party affirming that the applicant's telecommunications system provides telecommunications service to 100 or more parcels, residences, and/or business locations (or any combination thereof within the city.
(2) For planned telecommunications systems:
(a) A list or map of addresses, parcel numbers, or other similar information, and a set of plans or similar drawings which show the applicant's facilities are planned to be constructed to pass within 300 feet of 100 or more parcels, residences, and/or business locations within the city, or are planned to be constructed to provide wholesale access to any other telecommunications system which passes within 300 feet of 100 or more parcels, residences, and/or business locations within the city.
(b) A statement signed by a corporate officer of applicant or other similar responsible party affirming that the applicant's telecommunications system is being constructed so that it will be capable of providing telecommunications service to 100 or more parcels, residences, and/or business locations (or any combination thereof) within the city within three years of the first issuance of an excavation permit for the planned system, or will be capable of providing wholesale access within three years of the first issuance of an excavation permit for the planned system to a telecommunications system providing telecommunications service to 100 or more parcels, residences, and/or business locations (or any combination thereof) within the city.
(3) For telecommunications systems which provide wholesale telecommunications services in the city:
(a) A list or map of addresses, parcel numbers, or other similar information, and a set of plans or similar drawings which show applicant's facilities and sufficient information to establish its provision of service to any other telecommunications system which passes within 300 feet of 100 or more parcels, residences, and/or business locations within the city.
(b) A statement signed by a corporate officer of applicant or other similar responsible party affirming applicant's provision of service to any other telecommunications system which serves 100 or more parcels, residences, and/or business locations (or any combination thereof) within the city.
(I) The application for determination of compliance with division (G) shall be reviewed by the Director of Public Works (or his or her designee) to determine if the application is in compliance with the requirements of division (G). The determination shall be completed within 21 days of receipt of the completed application form, and written notice of the determination shall be sent by first class mail to the applicant. If additional information from the applicant is required to complete the review, the city shall request the information in writing, and the review period shall be extended by the same amount of time required to obtain the additional information.
(J) An applicant may appeal the determination of compliance with division (G) by filing a written notice of appeal with the City Manager no later than ten working days after receiving notice of the determination. The notice of appeal shall set forth the name, mailing address and telephone number of the person appealing. The notice of appeal shall include or attach a statement describing the action being appealed, setting forth the grounds for the appeal, and describing the action requested of the City Manager. The scope of the appeal shall be limited to the grounds specified in the notice of appeal. No later than 30 days after the filing of a timely notice of appeal, the City Manager shall render a decision on the appeal. The City Manager's decision may affirm, reverse or modify the decision appealed. A copy of the City Manager's decision shall be provided to the person appealing at the address shown on the notice of appeal. Said person may appeal the City Manager's decision to the City Council by filing a written notice of appeal no later than ten working days after the City Manager's decision is received by the person, in accordance with the procedures in § 5.82.050.
(Ord. 4387, passed 1-24-00; Am. Ord. 4405, passed 2-26-01) Penalty, see § 4.06.120