Fort Walton Beach Ordinance — 1459--Communication Facilities in ROW — reading text

ORDINANCE NO. 1459 AN ORDINANCE OF THE CITY OF FT. WALTON BEACH, FLORIDA, RELATING TO COMMUNICATIONS FACILITIES IN PUBLIC RIGHTS-OF-WAY; PROVIDING FOR _ TITLE; PROVIDING FOR INTENT AND PURPOSE; PROVIDING FOR DEFINITIONS; PROVIDING FOR REGISTRATION FOR PLACING OR MAINTAINING COMMUNICATIONS FACILITIES IN PUBLIC RIGHTS-OF-WAY; PROVIDING FOR NOTICE OF TRANSFER, SALE OR ASSIGNMENT OF ASSETS IN PUBLIC RIGHTS-OF- WAY; PROVIDING FOR PLACEMENT OR MAINTENANCE OFA COMMUNICATIONS FACILITY IN PUBLIC RIGHTS-OF-WAY; PROVIDING FOR SUSPENSION OF PERMITS; PROVIDING FOR APPEALS; PROVIDING FOR INVOLUNTARY TERMINATION OF REGISTRATION; PROVIDING FOR EXISTING COMMUNICATIONS FACILITIES IN PUBLIC RIGHTS-OF-WAY; PROVIDING FOR INSURANCE; PROVIDING FOR INDEMNIFICATION; PROVIDING FOR CONSTRUCTION BOND; PROVIDING FOR SECURITY FUND; PROVIDING FOR ENFORCEMENT REMEDIES; PROVIDING FOR ABANDONMENT OF A COMMUNICATIONS FACILITY; PROVIDING FOR FORCE MAJEURE; PROVIDING FOR RESERVATION OF RIGHTS AND REMEDIES; PROVIDING FOR SEVERABILITY; PROVIDING AN EFFECTIVE DATE. WHEREAS, effective January 1, 2001, Section 337.401, Florida Statutes (2000), is amended to state that because federal and state law require the nondiscriminatory treatment of providers of telecommunications services and because of the desire to promote competition among providers of telecommunications services, it is the intent of the Legislature that municipalities and counties treat telecommunications companies in a nondiscriminatory and competitively neutral manner when imposing rules or regulations governing the placement or maintenance of telecommunications facilities in the public roads or rights-of-way. Rules or regulations imposed by a municipality or county relating to telecommunications companies placing or maintaining telecommunications facilities in its roads or rights-of-way must be generally applicable to all telecommunications companies and, notwithstanding any other law, may not require a telecommunications company to apply for or enter into an individual license, franchise, or other agreement with the municipality or county as a condition of placing or maintaining telecommunications facilities in its roads or rights- of-way; and WHEREAS, effective October 1, 2001, Section 337.401, Florida Statutes (2000), is further amended to state that because of the unique circumstances applicable to providers of communications services and the fact that federal and state law require the nondiscriminatory treatment of providers of telecommunications services, and because of the desire to promote competition among providers of communications services, it is the intent of the Legislature that municipalities and counties treat providers of communications services in a nondiscriminatory and competitively neutral manner when imposing rules or regulations governing the placement or maintenance of communications facilities in the public roads or rights-of-way. Rules or regulations imposed by a municipality or county relating to providers of communications services placing or maintaining communications facilities in its roads or rights-of-way must be generally applicable to all providers of communications services and, notwithstanding any other law, may not require a provider of communications services, except as otherwise provided for providers of cable service, to apply for or enter into an individual license, franchise, or other agreement with the municipality or county as a condition of placing or maintaining communications facilities in its roads or rights-of- way; and WHEREAS, it is the intent of the City of Fort Walton Beach, Florida (City) to exercise the City’s authority over communications services providers’ placement and maintenance of facilities in the public rights-of-way; and WHEREAS, it is the City’s intent to treat each communications services provider in a nondiscriminatory and competitively neutral manner in exercising such authority; and Page -2- WHEREAS, the public rights-of-way which are subject to the jurisdiction and control of the City: (1) are critical to the travel of persons and the transport of goods and other tangibles in the business and social life of the community by all citizens; (2) are a unique and physically limited resource and proper management by the City is necessary to maximize efficiency, minimize the costs to the taxpayers of the foregoing uses, and to minimize the inconvenience to and negative effects upon the public from such facilities' placement and maintenance in the public rights-of-way; and (3) are intended for public uses and must be managed and controlled consistently with that intent while keeping public safety a paramount objective; and WHEREAS, it is the intent of the City to exercise its authority to adopt reasonable rules and regulations to the fullest extent allowed by Federal and State law; and WHEREAS, it is the intent of the City that this Ordinance shall not apply to cable service providers. NOW, THEREFORE, BE IT ORDAINED BY THE CITY OF FT. WALTON BEACH, FLORIDA, AS FOLLOWS: Section 1 - Title This Ordinance shall be known and may be cited as the Fort Walton Beach Communications Rights-of-Way Ordinance. Section 2 - Intent and Purpose It is the intent of the City to promote the public health, safety and general welfare by: providing for the placement or maintenance of Communications Facilities in the Public Rights-of- Way within the City; adopting and administering reasonable rules and regulations not inconsistent with State and Federal law, including Section 337.401, Florida Statutes (2000), as it may be amended, the City’s home-rule authority, and in accordance with the provisions of the Federal Page -3- Telecommunications Act of 1996 and other Federal and State law; establishing reasonable rules and regulations necessary to manage the placement or maintenance of Communications Facilities in the Public Rights-of-Way by all Communications Services Providers; and minimizing disruption to the Public Rights-of-Way. In regulating its Public Rights-of-Way, the City shall be governed by and shall comply with all applicable Federal and State laws. Section 3 - Definitions For purposes of this Ordinance, the following terms, phrases, words and their derivations shall have the meanings given. Where 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. The words "shall" and "will" are mandatory, and "may" is permissive. Words not otherwise defined shall be construed to mean the common and ordinary meaning. 1. "Abandonment" shall mean the permanent cessation of all uses of a Communications Facility; provided that this term shall not include cessation of all use of a Facility within a physical structure where the physical structure continues to be used. By way of example, and not limitation, cessation of all use of a cable within a conduit, where the conduit continues to be used, shall not be "Abandonment" of a Facility in Public Rights-of-Way. 2. “City" shall mean Fort Walton Beach, Florida, a municipality incorporated under the laws of the State of Florida. 3. "Communications Services" shall mean the transmission, conveyance or routing of - voice, data, audio, video, or any other information or signals to a point, or between or among points, by or through any electronic, radio, satellite, cable, optical, microwave, or other medium or method now in existence or hereafter devised, regardless of the protocol used for such transmission or Page -4- conveyance. Notwithstanding the foregoing, for purposes of this Ordinance "cable service", as defined in Section 202.11(2), Florida Statutes (2000), as it may be amended, is not included in the definition of "Communications Services," and cable service providers may be subject to other ordinances of the City. 4, "Communications Services Provider" shall mean any Person including a municipality or county providing Communications Services to the general public through the placement or maintenance of a Communications Facility in Public Rights-of-Way. "Communications Services Provider" shall also include any Person including a municipality or county that places or maintains a Communications Facility in Public Rights-of-Way but does not provide Communications Services. 5. "Communications Facility" or "Facility" or "System" shall mean any permanent or temporary plant, equipment and property, including but not limited to cables, wires, conduits, ducts, fiber optics, poles, antennae, converters, splice boxes, cabinets, hand holes, manholes, vaults, drains, surface location markers, appurtenances, and other equipment or pathway placed or maintained or to be placed or maintained in the Public Rights-of-Way of the City and used or capable of being used to transmit, convey, route, receive, distribute, provide or offer Communications Services. 6. “Emergency” shall mean a condition that affects the public’s health, safety or welfare, which includes an unplanned out-of-service condition of a pre-existing service. 7. "FCC" shall mean the Federal Communications Commission. 8. "In Public Rights-of-Way" or "in the Public Rights-of-Way" shall mean in, on, over, under or across the Public Rights-of-Way. 9. "Ordinance" shall mean this Ordinance. 10. "Person" shall include any individual, children, firm, association, joint venture, partnership, estate, trust, business trust, syndicate, fiduciary, corporation, organization or legal entity Page -5- of any kind, successor, assignee, transferee, personal representative, and all other groups or combinations, and shall include the City to the extent the City acts as a Communications Services Provider. 11. "Place or maintain" or "placement or maintenance" or "placing or maintaining" shall mean to erect, construct, install, maintain, place, repair, extend, expand, remove, occupy, locate or relocate. A Communications Services Provider that owns or exercises physical control over Communications Facilities in Public Rights-of-Way, such as the physical control to maintain and repair, is "placing or maintaining" the Facilities. A Person providing service only through resale or only through use of a third party’s unbundled network elements is not "placing or maintaining" the Communications Facilities through which such service is provided. The transmission and receipt of radio frequency signals through the airspace of the Public Rights-of-Way does not constitute "placing or maintaining" Facilities in the Public Rights-of-Way. 12. "Public Rights-of-Way" shall mean a public right-of-way, public utility easement, highway, street, bridge, tunnel or alley for which the City is the authority that has jurisdiction and control and may lawfully grant access to pursuant to applicable law, and includes the surface, the air space over the surface and the area below the surface. "Public Rights-of-Way" shall not include private property. "Public Rights-of-Way”" shall not include any real or personal City property except as described above and shall not include City buildings, fixtures, poles, conduits, facilities or other structures or improvements, regardless of whether they are situated in the Public Rights-of-Way. 13. "Registrant" shall mean a Communications Services Provider that has Registered with the City in accordance with the provisions of this Ordinance. 14. "Registration" or "Register" shall mean the process described in this Ordinance whereby a Communications Services Provider provides certain information to the City. Page -6- 15. “Stealth technology” shall mean communications facilities designed in such a way that the facilities and their various component parts (antennae, cables, wires, lattice support) are camouflaged and compatible with the structure upon which they are mounted. Section 4 - Registration for Placing or Maintaining Communications