20.02.020 Definitions.
For the purpose of this title, 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:
A. “The Act” means the Communications Act of 1934, as amended.
B. “Affiliate” means an entity which (directly or indirectly) owns or controls, is owned or controlled by, or is under common ownership with franchisee. For purposes of this definition, the term “own” means to own an equity interest (or the equivalent thereof) of more than 10 percent.
C. “Applicable law” means any statute, ordinance, judicial decision, executive order or regulation having the force and effect of law that determines the legal standing of a case or issue.
D. “Applicant” means any person or entity that applies for any franchise, cable franchise, lease, or permit pursuant to this title.
E. “Cable operator” means any person or group of persons (1) who provides cable service over a cable system and directly or through one or more affiliates owns a significant interest in such cable system, or (2) who otherwise controls or is responsible for, through any arrangement, the management and operation of such a cable system.
F. “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.
G. “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 way;
3. A facility of a common carrier which is subject, in whole or in part, to the provisions of Title II of the Federal Communications Act (47 USC 201 et seq.), except that such facility shall be considered a cable system (other than for purposes of Section 621(c) (47 USC 541(c))) 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. An open video system that complies with federal statutes; or
5. Any facilities of any electric utility used solely for operating its electric utility system.
H. “Carrier” means any provider of telecommunications services, except that this term does not include aggregators of telecommunications services as defined in Section 225 of the Act. (See also “Telecommunications carrier.”)
I. “City” means the city of Auburn, Washington as defined in ACC 1.04.010 to include all future areas annexed into the city.
J. “City property” means and includes all real property owned by the city, other than public ways 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 franchising as provided in this title.
K. “Council” means the city council of the city of Auburn, Washington acting in its official capacity constituting the legislative body of the city.
L. “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.
M. “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, cable, or utility facilities.
N. “FCC” or “Federal Communications Commission” means the federal administrative agency, or lawful successor, authorized to regulate and oversee cable and telecommunications carriers, services and providers on a national level.
O. “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, cable or other utility facilities in, under, over, or across public ways and to also provide service to persons or areas in the city.
P. “Franchise area” means all areas within the current city limits and within any future adjusted boundaries of the city limits. The effective date of any such changes in the city limits will be the effective date(s) of any future annexations.
Q. “Franchisee” means a person, as defined herein, firm or corporation to whom or which a franchise, as defined in this section, is granted by the council under this title and the lawful successor, transferee or assignee of said person, firm or corporation subject to such conditions as may be defined in the franchise and in this title.
R. “Gross revenue” shall mean a cable operator’s gross revenues derived from the operation of the cable system to provide cable services. Gross revenues for the purposed of calculating franchise fees shall be as set forth in any franchise agreement.
S. “Lessee” means the holder of a lease for use of city or public property which has been approved by the city council of the city of Auburn.
T. “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.
U. “Overhead facilities” means utility poles, telecommunications, cable, or other utility facilities located above the surface of the ground, including the underground supports and foundations for such facilities.
V. “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.
W. “Proposal” means an application by any person or entity that applies for any franchise, cable franchise lease, or permit pursuant to this title.
X. “Public place” means an area generally open to public access including all public ways, parks, plazas, publicly owned buildings, theaters, and entrances or doorways to places of business that front on a public way.
Y. “Public street” means any highway, street, alley or other public way for motor vehicle travel under the jurisdiction and control of the city which has been acquired, established, dedicated or devoted to the movement of motorized and nonmotorized traffic, including city streets as part of state highways under Chapter 47.24 RCW.
Z. “Public way(s)” shall mean the surface, the air space above the surface, and the space below the surface of any public street, including, but not limited to, any public alley, bridge, land path, trail, court, circle, roundabout, boulevard, drive, tracts, right-of-way or sidewalk under the jurisdiction of the city as is now, or in the future, laid out, improved or unimproved within the limits of the city presently and as such limits may be hereafter extended.
AA. “State” means the state of Washington.
BB. “Subscriber” or “customer” means a person or user of the utility, telecommunications, or cable system who lawfully receives utility, telecommunications, or cable services, or other service therefrom, with franchisee’s express permission.
CC. “Substantial change” for purposes of this chapter means a modification that substantially changes the physical dimensions of an eligible support structure located in the public way if, after the modification, the structure meets any of the following criteria:
1. It increases the height of the structure by more than 10 percent or more than 10 feet, whichever is greater;
2. It involves adding an appurtenance to the body of the structure that would protrude from the edge of the structure by more than six feet;
3. It involves installation of more than the standard number of new equipment cabinets for the technology involved, but not to exceed four cabinets; or, for wireless communication towers in the public way and base stations, it involves installation of any new equipment cabinets on the ground if there are no preexisting ground cabinets associated with the structure, or else involves installation of ground cabinets that are more than 10 percent larger in height or overall volume than any other ground cabinets associated with the structure;
4. It entails any excavation or deployment outside the current site as that term is defined in 47 CFR 1.6100;
5. It would defeat the concealment elements of the eligible support structure; or
6. It does not comply with conditions associated with the original approval of the construction or modification of the eligible support structure or base station equipment, unless noncompliance is only in a manner that would exceed the thresholds identified in subsections (CC)(1) through (4) of this section.
For purposes of determining whether a substantial change exists, changes in height are measured from the original support structure as it existed at the time the first EFR request was approved for that structure in cases where facilities are or will be separated horizontally; in other circumstances, changes in height are measured from the dimensions of the wireless communication tower or base station, inclusive of originally approved appurtenances and any modifications that were approved prior to February 22, 2012.
DD. “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 applicable law, orders, and regulations, to allow its use by a utility, cable, or telecommunications carrier for a pole attachment.
EE. “Telecommunications carrier” means and includes every person that directly or indirectly owns, controls, operates or manages plant, equipment or facilities within the public ways, for the purpose of offering telecommunications services within the city. (See also “Carrier.”)
FF. “Telecommunications facilities or system” means the definition contained in ACC 5.84.020 with the exception of real estate, easements, and property.
GG. “Telecommunications operator” means and includes every person who provides telecommunications services within the city over telecommunications facilities located within the city’s public ways, without any ownership, management or control of the facilities.
HH. “Telecommunications provider” means and includes every person who utilizes facilities within the city’s public ways to provide services outside the city only.
II. “Telecommunications service” means the transmission of information by wire, radio, optical cable, electromagnetic, or other similar means for hire, sale, or resale to the general public. For the purpose of this subsection, “information” means knowledge or intelligence represented by any form of writing, signs, signals, pictures, sounds, or any other symbols. For the purpose of this chapter, telecommunications service excludes the over-the-air transmission of broadcast television or broadcast radio signals.
JJ. “Underground facilities” means utility, telecommunications, and cable facilities located under the surface of the ground, excluding the underground foundations or supports for overhead facilities.
KK. “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.
LL. “Utility easement” means any easement in which the city holds an interest or an interest has been acquired, established, dedicated or devoted for city utility purposes.
MM. “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 and used or to be used for the purpose of providing utility or telecommunications services.
NN. “Utility provider” means any natural gas, electric power, pipeline, water or sewer not owned or operated by the city of Auburn, or other company desiring to utilize the public ways for transporting, purveying, or delivering bulk products, or providing power or gas services within the city, or needing to transport bulk product or services through the city to other destinations for commercial purposes.
OO. “WUTC” means the Washington State Utility and Transportation Commission. (Ord. 6798 § 3 (Exh. C), 2020; Ord. 5271 § 1, 1999; Ord. 5034 § 1, 1998.)