§ 5.60.160. Telecommunications service provided by telephone corporations.

(a)

The city council finds and determines as follows:

(1)

The Federal Telecommunications Act of 1996 preempts and declares invalid all state rules that restrict entry or limit competition in both local and long-distance telephone service.

(2)

The California Public Utilities Commission (CPUC) is primarily responsible for the implementation of local telephone competition, and it issues certificates of public convenience and necessity to new entrants that are qualified to provide competitive local telephone exchange services and related telecommunications service, whether using their own facilities or the facilities or services provided by other authorized telephone corporations.

(3)

Public Utilities Code § 234(a) defines a "telephone corporation" as every corporation or person owning, controlling, operating, or managing any telephone line for compensation within this state.

(4)

Public Utilities Code § 616 provides that a telephone corporation may condemn any property necessary for the construction and maintenance of its telephone line.

(5)

Public Utilities Code § 2902 authorizes municipal corporations to retain their powers of control to supervise and regulate the relationships between a public utility and the general public in matters affecting the health, convenience, and safety of the general public, including matters such as the use and repair of public streets by any public utility and the location of the poles, wires, mains, or conduits of any public utility on, under, or above any public streets.

(6)

Public Utilities Code § 7901 authorizes telephone and telegraph corporations to construct telephone or telegraph lines along and upon any public road or highway, along or across any of the waters or lands within this state, and to erect poles, posts, piers, or abutments for supporting the insulators, wires, and other necessary fixtures of their lines, in such manner and at such points as not to incommode the public use of the road or highway or interrupt the navigation of the waters.

(7)

Public Utilities Code § 7901.1 confirms the right of municipalities to exercise reasonable control as to the time, place, and manner in which roads, highways, and waterways are accessed, which control must be applied to all entities in an equivalent manner. Nothing in section 7901.1 adds to or subtracts from any existing authority that municipalities have with respect to the imposition of fees.

(8)

Government Code § 50030 provides that any permit fee imposed by a city for the placement, installation, repair, or upgrading of telecommunications facilities, such as lines, poles, or antennas, by a telephone corporation that has obtained all required authorizations from the CPUC and the FCC to provide telecommunications services, must not exceed the reasonable costs of providing the service for which the fee is charged, and must not be levied for general revenue purposes.

(b)

In recognition of and in compliance with the statutory authorizations and requirements set forth in subsection (a) of this section, the following regulatory provisions are applicable to a telephone corporation that desires to provide telecommunications service by means of facilities that are proposed to be constructed within the city's public rights-of-way:

(1)

The telephone corporation must apply for and obtain, as may be applicable, an excavation permit, an encroachment permit, or a building permit (ministerial permit).

(2)

In addition to the information required by this Code in connection with an application for a ministerial permit, a telephone corporation must submit to the city the following supplemental information:

a.

A copy of the certificate of public convenience and necessity issued by the CPUC to the applicant, and a copy of the CPUC decision that authorizes the applicant to provide the telecommunications service for which the facilities are proposed to be constructed in the city's public rights-of-way. Any applicant that, prior to 1996, provided telecommunications service under administratively equivalent documentation issued by the CPUC may submit copies of that documentation in lieu of a certificate of public convenience and necessity.

b.

If the applicant has obtained from the CPUC a certificate of public convenience and necessity to operate as a competitive local carrier, the following additional requirements are applicable:

1.

As required by Decision No. 95-12-057 of the CPUC, the applicant must establish that it has timely filed with the city a quarterly report that describes the type of construction and the location of each construction project proposed to be undertaken in the city during the calendar quarter in which the application is filed, so that the city can coordinate multiple projects, as may be necessary.

2.

If the applicant's proposed construction project will extend beyond the utility rights-of-way into undisturbed areas or other rights-of-way, the applicant must establish that it has filed a petition with the CPUC to amend its certificate of public convenience and necessity and that the proposed construction project has been subjected to a full-scale environmental analysis by the CPUC, as required by decision No. 95-12-057 of the CPUC.

3.

The applicant must inform the city whether its proposed construction project will be subject to any of the mitigation measures specified in the Negative Declaration "Competitive Local Carriers (CLCS) Projects for Local Exchange Communication Service throughout California" or to the Mitigation Monitoring Plan adopted in connection with decision No. 95-12-057 of the CPUC. The city's issuance of a ministerial permit will be conditioned upon the applicant's compliance with all applicable mitigation measures and monitoring requirements imposed by the CPUC upon telephone corporations that are designated as competitive local carriers.

(c)

The city reserves all rights that it now possesses or may later acquire with respect to the regulation of any cable or telecommunications service that is provided, or proposed to be provided, by a telephone corporation, These reserved rights may relate, without limitation, to the imposition of reasonable conditions in addition to or different from those set forth in this section, the exaction of a fee or other form of consideration or compensation for use of public rights-of-way, and related matters; provided, however, that such regulatory rights and authority must be consistent with federal and state law that is applicable to cable or telecommunications services provided by telephone corporations.

(d)

The city council finds and determines that numerous and repetitive excavations in the public rights-of-way diminish the useful life of the surface pavement and generally cause adverse negative impacts for local residents, local businesses, and vehicular and pedestrian traffic. The city council further finds and determines that the utility substructure in the public rights-of-way is subject to potential adverse negative impacts as a consequence of new economic and regulatory policies that foster increased competition between various utility service providers, including telephone corporations, and between other service providers, such as cable system operators. In order to mitigate these potential adverse negative impacts, the following policies are adopted:

(1)

The city manager is directed to develop and to implement public rights-of-way policies and procedures that incorporate, to the extent reasonably feasible, the following requirements that are intended to encourage the shared use by utility and other service providers of existing facilities in the public rights-of-way:

a.

A requirement that utility and other service providers requesting permits review information provided by the city that identifies the location of facilities, such as underground conduits, that are available for shared use, and the owners of those facilities.

b.

A requirement that utility and other service providers requesting permits submit a written statement that describes in reasonable detail the efforts made to obtain from other utility service providers the right to use excess capacity within existing facilities, and to thereby avoid the construction of new facilities.

c.

Annual map.

1.

A requirement that utility and other service providers occupying the public rights-of-way submit annually to the city a map, which may be in a uniform electronic-data format to be specified by the city, that shows the location of their respective facilities in the public rights-of-way.

2.

Notwithstanding the foregoing, an updated annual map need not be provided unless there are changes to the location of the service provider's facilities in the public rights-of-way.

d.

Such additional requirements as will encourage utility and other service providers to share excess capacity within previously-constructed facilities and to coordinate the construction of new facilities so as to minimize the number of excavations in the public rights-of-way.

(2)

The city manager is directed to ensure that all utility and other service providers, including telephone corporations and cable system operators, comply with all local design, construction, maintenance, and safety standards that are consistent with state and federal laws and regulations and that are contained within, or are related to, any permit that authorizes the construction of facilities within the public rights-of-way, including all applicable insurance provisions.

(3)

Based upon the city's projected plans for street construction or renovation projects, the city manager is authorized to establish on a quarterly basis one or more construction time periods or windows for the installation of facilities within the public rights-of-way. Cable system operators, telephone corporations, and other utility service providers that submit applications for permits to construct facilities after a predetermined date may be required to delay such construction until the next quarterly window that is established by the city.

(e)

The city council finds and determines that the installation in the public rights-of-way of numerous aboveground facilities by utility service providers, including telephone corporations, and other service providers, may create safety hazards and adverse visual impacts. Consequently, the public works department is authorized to impose reasonable conditions in order to mitigate those potential adverse impacts that may result, whether on an individual or a cumulative basis, from permitted aboveground facilities. Those conditions may include or relate to, without limitation, the following:

(1)

Prior to issuance of the requisite permits, all aboveground facilities proposed to be installed by a utility service or other service provider in the public rights-of-way must be clearly delineated on the plans when they are submitted for the city's review.

(2)

The design and installation by qualified professionals of landscaping and barriers to minimize public view of aboveground facilities whose location has been approved by the city.

(3)

The maintenance of all aboveground facilities in good condition, including compliance with the city's ordinances regarding graffiti removal. In this regard, a utility or other service provider may be required to affix to its aboveground facilities a coded label or marker that identifies the specific facility and sets forth a telephone number that may be called to report any damage, destruction, or graffiti vandalism involving that facility.

(4)

The placement of aboveground facilities, such as overhead drops, as close as possible to other utility drops, consistent with all applicable electrical codes.

(5)

Reasonable limitations upon the number of aboveground facilities that may be installed within a designated geographical area.

(6)

Reasonable limitations upon the dimensions or volume, or both, of aboveground facilities.

(7)

The specification of colors of aboveground facilities reasonably requested by the city to ensure that these facilities blend with the surrounding environment to the maximum extent possible.

(8)

Such additional conditions regulating the time, place, and manner of installations of aboveground facilities as will reasonably mitigate potential safety hazards and adverse visual impacts attributable to these facilities.

(f)

The city reserves all rights that it now possesses or may later acquire to adopt and implement city-wide requirements for the undergrounding of aboveground facilities, or any portion thereof, in a competitively neutral and nondiscriminatory manner. To the extent authorized by law, all utility and other service providers will be required to comply with those requirements at their sole expense.

(Code 1969, § 5.60.160; Ord. No. 766, § 2(part), 2000)