Article 5 — Use of Public Rights-of-Way

• (a) 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 and consistent with all applicable laws and regulations, 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:

    • (i) 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;

    • (ii) 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;

    • (iii) 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. 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;

    • (iv) 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 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.

• (b) The City Council finds and determines that the installation in the public rights-of-way of numerous above-ground 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 above-ground facilities. Those conditions may include or relate to, without limitation, the following:

  • (1) Prior to issuance of the requisite permits, all above-ground facilities proposed to be installed by a utility 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 above-ground facilities whose location has been approved by the City.

  • (3) The maintenance of all above-ground 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 above-ground 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 above-ground 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 above-ground facilities that may be installed within a designated geographical area.

  • (6) Reasonable limitations upon the dimensions or volume, or both, of above-ground facilities.

• (7) The specification of colors of above-ground 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 above-ground facilities as will reasonably mitigate potential safety hazards and adverse visual impacts attributable to these facilities.

• (c) The City reserves all rights that it now possesses or may later acquire to adopt and implement City-wide requirements for the undergrounding of above-ground 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.

• (Ord. 629, § 2; Ord. 07-714, § 1)

Article 6 Definitions

• (a) For the purposes of this chapter, the words, terms, phrases, and their derivations set forth in this chapter have the meanings set forth below. Words used in the present tense include the future tense, and words in the singular include the plural number.

"Affiliate" shall mean, when used in relation to any person, another person who owns or controls, is owned or controlled by, or is under common ownership or control with, such person. For purposes of this definition, the term "own" means to own an equity interest, or its equivalent, of 10% or more.

"Cable service" shall mean the one-way transmission to subscribers of video programming, or other programming services, and subscriber interaction, if any, that is required for the selection or use of that video programming or other programming service. For the purposes of this definition, "video programming" means programming provided by, or generally considered comparable to programming provided by, a television broadcast station; and "other programming service" means information that a cable system operator makes available to all subscribers generally.

"Cable system or cable television system" shall mean 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 that includes video programming and that is provided to multiple subscribers within a community. The term "cable system" does not include:

• (i) A facility that serves only to retransmit the television signals of one or more television broadcast stations;

• (ii)

  • A facility that serves subscribers without using any public right-of-way;

• (iii) A facility of a common carrier that is subject, in whole or in part, to the provisions of Title II of the Communications Act, except that such facility will be considered a cable system (other than for purposes specified in Section 621(c) of the Communications Act) 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;

• (iv)

  • An open video system that complies with Section 653 of the Communications Act; or

• (v) Any facilities of an electric utility that are used solely for operating its electric utility system.

"Cable system operator" shall mean any person or group of persons:

• (i) Who provides cable service over a cable system and directly or through one or more affiliates owns a significant interest in that cable system; or

• (ii) Who otherwise controls or is responsible for, through any arrangement, the management and operation of that cable system.

"City" shall mean the City of Artesia as represented by its City Council or by any delegate acting within the scope of its delegated authority.

"CFR" shall mean the Code of Federal Regulations. Thus, the citation of "47 CFR 80.1" refers to Title 47, part 80, section 1, of the Code of Federal Regulations.

"Communications Act" shall mean the Communications Act of 1934 (47 U.S.C. Sections 153, et seq.), as amended by the Cable Communications Policy Act of 1984, the Cable Television Consumer Protection and Competition Act of 1992, and the Telecommunications Act of 1996.

"FCC or federal communications commission" shall mean the Federal administrative agency, or any lawful successor, that is authorized to regulate telecommunications services and telecommunications service providers on a national level.

"Franchise" shall mean an initial authorization, or the renewal of an initial authorization, granted by the City Council, whether such authorization is designated as a franchise, agreement, permit, license, resolution, contract, certificate, or otherwise, that authorizes the construction or operation of a cable system or an open video system.

"Franchise fee" shall mean any fee or assessment of any kind that is authorized by State or Federal law to be imposed by the City on a grantee as compensation in the nature of rent for the grantee's use of the public rights-of-way. The term "franchise fee" does not include:

• (i) Any tax, fee, or assessment of general applicability (including any such tax, fee, or assessment imposed on both utilities and grantees or their services);

• (ii) Capital costs that are required by the franchise to be incurred by a grantee for public, educational, or governmental access facilities;

• (iii) Costs or charges that are incidental to the award or enforcement of the franchise, including payments for bonds, security funds, letters of credit, insurance, indemnification, penalties, or liquidated damages; or

• (iv)

• Any fee imposed under Title 17, United States Code.

"Franchise service area or service area" shall mean the entire geographic area of the City as it is now constituted, or may in the future be constituted, unless otherwise specified in the resolution granting a franchise, or in a franchise agreement.

"Grantee" shall mean any person that is awarded a franchise in accordance with this chapter, and that person's lawful successor, transferee, or assignee.

"Gross annual cable service revenues" shall mean the annual gross revenues derived from the grantee's operations of its cable television system to provide cable services within the City, excluding uncollected bad debt, refundable deposits, rebates or credits, and further excluding any sales, excise, or other taxes or charges that are required to be collected for direct pass-through to the local, State or Federal government. Revenues identified and collected from subscribers as franchise fees may not be excluded from a grantee's gross annual cable service revenues.

"Multichannel video programming distributor or video programming distributor" shall mean a person such as, but not limited to, a cable system operator, an open video system operator, a multichannel multipoint distribution service, a direct broadcast satellite service, or a television receive-only satellite program distributor, who makes available multiple channels of video programming for purchase by subscribers or customers.

"Open video system" shall mean a facility consisting of a set of transmission paths and associated signal generation, reception, and control equipment that is designed to provide cable service, including video programming, and that is provided to multiple subscribers within the City, provided that the FCC has certified that such system is authorized to operate in the City and complies with 47 CFR 1500 et seq., entitled "Open Video Systems."

"Open video system operator" shall mean any person or group of persons who provides cable service over an open video system and directly or through one or more affiliates owns a significant interest in that open video system, or otherwise controls or is responsible for the management and operation of that open video system.

"Person" shall mean an individual, partnership, limited liability company, association, joint stock company, trust, corporation, or governmental entity.

"Public, educational or government access facilities or PEG access facilities" shall mean the total of the following:

• (i) Channel capacity designated for noncommercial public, educational, or government use; and

• (ii) Facilities and equipment for the use of that channel capacity.

"Subscriber or customer or consumer" shall mean any person who, for any purpose, subscribes to the services provided by a multichannel video programming distributor and who pays the charges for those services.

"Street or public right-of-way" shall mean each of the following that has been dedicated to the public and maintained under public authority or by others and is located within the City limits: streets, roadways, highways, avenues, lanes, alleys, sidewalks, easements, rights-ofway, and similar public property that the City from time to time authorizes to be included within the definition of a street.

"Telecommunications" shall mean the transmission, between or among points specified by the user, of information of the user's choosing, without change in the form or content of the information as sent and received.

"Telecommunications equipment" shall mean equipment, other than customer premises equipment, used by a telecommunications service provider to provide telecommunications service, including software that is integral to that equipment.

Telecommunications service shall mean the offering of telecommunications directly to the public for a fee, or to such classes of users as to be effectively available directly to the public, regardless of the equipment or facilities that are used.

"Telecommunications service provider" shall mean any provider of telecommunications service.

U.S.C. § shall mean the United States Code. Thus, the citation of "47 U.S.C. § 153" refers to Title 47, section 153, of the United States Code.

"Video programming provider" shall mean any person or group of persons who has the right under the Federal copyright laws to select and to contract for the carriage of specific video programming on a cable system or an open video system.

"Video provider" shall mean any person, company, or service that provides one or more channels of video programming to a residence, including a home, multifamily dwelling complex, congregate-living complex, condominium, apartment, or mobilehome, where some fee is paid for that service, whether directly or as included in dues or rental charges, and whether or not public rights-of-way are used in the delivery of that video programming. A "video provider" includes, without limitation, providers of cable television service, open video system service, master antenna television, satellite master antenna television, direct broadcast satellite, multipoint distribution services, and other providers of video programming, whatever their technology.

• (b) Unless otherwise expressly stated, words, terms, and phrases not defined in this chapter will be given their meaning as used in Title 47 of the United States Code, as amended, and, if not defined in that Code, their meaning as used in Title 47 of the Code of Federal Regulations.

• (Ord. 629, § 2; Ord. 07-714, § 1)