Scottsdale, AZ Muni Code — Chapter 47 – STREETS, SIDEWALKS AND PUBLIC WORKS GENERALLY

ARTICLE VII. – TELECOMMUNICATIONS

Be sure not to miss this additional material:

Link to 2017 Arizona HB-2365: Streamline WTF Deployment
Link to Scottsdale Muni Code: Chapter 47, ARTICLE VII. – TELECOMMUNICATIONS
Link to Scotttsdale, AZ General Plan
Link to Scotttsdale, AZ web page re: 4G/5G Densified Infrastructure Grid
Link to Scotttsdale, AZ MAP of 4G/5G Densified Infrastructure Grid

Footnotes:

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Editor’s note— Ord. No. 4389, § 1(Res. No. 11403, § 1(Exh. A)), adopted June 11, 2019, changed the title of art. VII from "Telecommunication Service Providers" to read as herein set out.

Sec. 47-161. Purpose and findings.

(a) The purpose of this chapter is to establish a policy governing the management of public highways for the provision of telecommunications to enable the city to:

(1) Issue licenses to telecommunications providers on a competitively neutral and nondiscriminatory basis, except in cases where state law forbids establishment of a license requirement;

(2) Manage the public highways in order to minimize the impact and cost to Scottsdale citizens of the placement of telecommunications facilities within public highways;

(3) Assure that the city’s current and ongoing costs of granting access to and use of the rights-of-way are fully paid by the persons seeking such access and causing such costs.

(4) Promote competition among telecommunications service providers and encourage the universal availability of advanced telecommunications services to all residents and businesses of the city; and

(5) Minimize congestion, inconvenience, visual impact, and other adverse effects on the city’s public highways.

(b) Therefore, in this chapter the city council intends to:

(1) Ensure compliance with public health, safety and welfare measures for public highways;

(2) Conserve the limited physical capacity of the public highways held in public trust by the city; and

(3) Assure that the city’s current and ongoing costs of granting access to and use of the rights-of-way are fully paid by the persons seeking such access and causing such costs.

(Ord. No. 3368, § 1, 7-2-01; Ord. No. 4113, § 1(Res. No. 9551, Exh. A, § 2), 12-9-13, eff. 7-1-14; Ord. No. 4389, § 1(Res. No. 11403, § 1(Exh. A)), 6-11-19)

Sec. 47-162. Definitions.

For the purpose of this chapter, unless the context otherwise requires, the following terms, phrases, words and their derivatives shall have the meanings given herein.

Arterial streets are streets or highways used primarily for through traffic in such a manner that vehicular traffic from intersecting streets and highways is required by law to stop or yield before entering or crossing the street or highway.
Provider means a person, corporation, or any other public or private entity who constructs, installs, operates or maintains telecommunications facilities in the city rights-of-way.
Rights-of-way means all roads, streets and alleys and all other dedicated public rights-of-way and public utility easements of the city.
Telecommunications means 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 shall include
information services,
cable services,
VOIP services, and
advanced communication services as each is defined in 47 U.S.C. § 153 and
video service as defined in A.R.S. § 9-1401.

47 U.S.C. § 153

(1) Advanced communications services. The term “advanced communications services” means—

   (A) interconnected VoIP service;

   (B) non-interconnected VoIP service;

   (C) electronic messaging service; and

   (D) interoperable video conferencing service.

. . .

A.R.S. § 9-1401

28. "Video service":

   (a) Means the provision of multichannel video programming generally considered comparable to video programming delivered by a television broadcast station, video service or other digital television service, whether provided as part of a tier, on demand or on a per-channel basis, without regard to the technology used to deliver the video service, including internet protocol technology or any successor technology.

   (b) Includes cable service.

   (c) Does not include any of the following:

      (i) Video programming provided solely as part of, and through, a service that enables users t o access content, information, e-mail, messaging or other services that are offered via the public internet.

      (ii) Direct broadcast satellite service.

      (iii) Wireless multichannel video programming that is provided by a commercial mobile service provider.

Telecommunications facilities means the plant, equipment and property used in the provision of telecommunications and not owned by the city, including but not limited to poles, wires, pipe, conduits, pedestals, and other appurtenances placed in, on or under public highways but does not include wireless communication facilities.
Wireless communications facility (WCF) means a facility for the transmission and/or reception of radio frequency signals, including over-the-air broadcasting signals, usually consisting of antennas, equipment cabinet, a support structure, and/or other transmission and reception devices.

(Ord. No. 3368, § 2, 7-2-01; Ord. No. 4113, § 1(Res. No. 9551, Exh. A, § 2), 12-9-13, eff. 7-1-14; Ord. No. 4389, § 1(Res. No. 11403, § 1(Exh. A)), 6-11-19)

Sec. 47-163. Telecommunications license.

(a) No telecommunications provider shall construct, install, maintain or operate telecommunications facilities in any rights-of-way in the city unless a license has first been granted by the city council under this chapter (hereinafter "license") to such telecommunications provider.

(b) Unless otherwise exempted by law, no telecommunications provider shall install or construct telecommunications facilities in any public highway in the city unless a ROW encroachment permit (hereinafter "permit") allowing work or construction within the public highway has first been granted under this chapter to such telecommunications provider.

(d) Nothing in this chapter shall be deemed to affect the terms or conditions of any license or permit issued by the city prior to the effective date of this article or to release any party from its obligations thereunder. Those licenses or permits shall remain fully enforceable in accordance with their terms. Provided, however, any renewal, extension, amendment or other modification of such license or permit shall be subject to the provisions of this article as they exist at the time of such renewal, extension, amendment or other modification. The city manager, with consent of the city council, may enter into agreements with licensees to modify or terminate an existing license or agreement.

(e) A license to any telecommunications provider to use the rights of way to construct, install, maintain or operate telecommunications facilities under this chapter shall not authorize the use of the highways to provide any other service unless expressly stated therein; nor shall the issuance of the same invalidate any license or permit that authorizes the use of the highways for such other service; nor shall the fact that an entity holds a license, or permit to make any other use of the highway or to provide any other service, authorize installation, maintenance, construction or operation of telecommunications facilities in any rights of way in the city without obtaining a license and permit hereunder.

(f) Any license granted shall not be exclusive.

(g) A telecommunications provider may enter into contracts for use of its facilities within the rights of way to provide telecommunications. The licensee must disclose all persons with whom it contracts to use its facilities in the rights of way within the city. Persons using such licensee’s facilities must themselves obtain a telecommunications license if such person constructs, installs, operates or maintains telecommunication facilities within the public highway of the city.

(h) The issuance of a license by the city is not a representation or warranty that such license is a legally sufficient substitute for a franchise and is not a representation or warranty that a franchise is not required.

(Ord. No. 3368, § 3, 7-2-01; Ord. No. 4113, § 1(Res. No. 9551, Exh. A, § 2), 12-9-13, eff. 7-1-14; Ord. No. 4389, § 1(Res. No. 11403, § 1(Exh. A)), 6-11-19)

Sec. 47-164. License application.

(a) A telecommunications provider desiring a license under this chapter to operate and maintain telecommunication facilities in rights of way in the city shall file an application with the city manager or designee requesting a license in the form prescribed by the city manager and shall pay a fee in the amount of two thousand dollars ($2,000.00). The amount of the fee is reasonably related to the cost directly incurred by the city to review and process the application.

(b) At the discretion of the city manager, an application for a telecommunications license may be processed simultaneously with the same applicant’s application for a permit to install the applicant’s telecommunication system facilities.

Each application for a license shall include a project narrative describing the types of services that will be offered and the following information:

(1) The names, addresses, and telephone numbers of the applicant, including those for responsible parties during the application, construction and implementation process. This includes a 24-hour emergency telephone contact;

(2) Reserved;

(3) A statement identifying by place and date any other telecommunications or cable licenses awarded to the applicant, its parent or subsidiary; and the status of said licenses;

(4) Specific route maps for the applicant’s infrastructure in Scottsdale including all areas proposed to be served for both** 1) initial construction** and 2) full project build-out. The initial construction map shall serve as Exhibit "A" as indicated in subsection 47-165(b)(5) below;

(5) A proposed time schedule for the installation of all facilities necessary to become operational throughout the entire service area together with a document comparing the schedule with the city’s proposed street maintenance schedule and the city’s five year capital improvement plan;

(6) A copy or abstract of any agreement covering the license area, if existing, between the applicant and the local telephone and/or other utilities providing for the use of any facilities of the utility including but not limited to poles, lines or conduits; and

(7) A statement or description of any exemptions from this article claimed pursuant to state or federal law and the basis therefore; and

(8) Any other details, statements, information or references, pertinent to the subject matter of such application which shall be required or requested by the city manager and/or city council, or by any other provision of law.

(c) Upon receiving an application for a license that satisfies the conditions of subsection 47-164(b), the city manager may inquire into matters relevant to the issuance of the license and, if the city manager determines all matters therein are satisfactory, shall proffer a telecommunications license to the applicant within a reasonable time for its review. If the applicant agrees to the terms and conditions of the license, and otherwise satisfies the conditions set forth herein, the request shall be submitted to city council for consideration. Notwithstanding the foregoing, the city need not issue or renew a license for any reason permitted under Arizona or federal law or if the applicant has previously had its telecommunications services license revoked.

(d) The city may retain outside experts to assist in the review and processing of complex telecommunications license applications and all costs for such experts in excess of the application processing fee shall be disclosed to the applicant and recovered by the city through mutual agreement.

(Ord. No. 3368, § 4, 7-2-01; Ord. No. 4113, § 1(Res. No. 9551, Exh. A, § 2), 12-9-13, eff. 7-1-14; Ord. No. 4389, § 1(Res. No. 11403, § 1(Exh. A)), 6-11-19)

Sec. 47-165. License terms.

(a) Length of license. Any license granted by the city pursuant to this chapter shall commence upon adoption of the license and acceptance of the license by the provider. The license shall be effective for a period of up to ten (10) years, and subject to the conditions and restrictions provided in the instrument and this chapter. Additionally, the license may provide for a renewal period of up to ten (10) years upon substantially the same terms and conditions; provided, however, that the renewed license shall be updated to reflect any substantive changes in this Chapter.

(b) Every license shall be subject to the following provisions:

&nbsp(1) Licenses shall be personal to the licensee. Except as provided in the license, no transfer of a license or licensee, or change of control over the same (including, but not limited to, transfer by forced or voluntary sale, merger, consolidation, receivership, or any other means) shall occur unless prior application is made to the city and prior consent is obtained by the city council, which consent will not be unreasonably withheld or delayed. In making a determination as to whether to approve a transfer, the city may consider the same information and qualifications required of an original application for a license; whether the licensee is in compliance with its license and this chapter and, if not, the proposed transferee’s commitment to cure such noncompliance; whether the transfer would result in an evasion of other applicable provisions of law, or impair lawful contracts; and the effect of the transfer on the city’s interests. No application for a transfer of a license shall be granted unless the proposed transferee agrees in writing that it will abide by and accept all terms of this chapter and the license, and that it will assume all obligations, liabilities, and responsibility for all acts and omissions, known and unknown, of the previous licensee under this chapter and the license for all purposes, including renewal. Approval by the city of a transfer of a license does not constitute a waiver or release of any of the rights of the city under this chapter or the license, whether arising before or after the date of the transfer.

&nbsp(2) Notwithstanding the foregoing, prior consent shall not be required for one transfer to any company which is owned or controlled or under common control and with the same direct parent as licensee, and which is intended after such transfer to remain under the ownership or control of that parent or an entity under common control or with the same direct parent, provided that, no such transfer shall be valid unless licensee and the proposed transferee submit a binding agreement and warranty to the city stating that:

&nbsp &nbspa. The proposed transferee has read, accepts, and agrees to be bound by the license;

&nbsp &nbspb. The proposed transferee assumes all obligations, liabilities and responsibility under the license for the acts and omissions of licensee, known and unknown, for all purposes, and agrees that the transfer shall not permit it to take any position or exercise any right which licensee could not have exercised; and

&nbsp &nbspc. The transfer will not substantially diminish the financial resources available to the licensee. Prior to completing such transfer described in this subsection 47-165(b)(2), licensee and the proposed transferee shall submit to the city a description of the nature of the transfer, and submit complete information regarding the effect of the transfer on the direct and indirect ownership and control of the license.

&nbsp(3) Every licensee shall obtain the insurance, and provide proof of insurance as required by the city; post the performance bonds and security fund required by the city; and agree to fully indemnify the city, its officers, agents, boards and commissions, in a form satisfactory to the city; and agree that it shall have no recourse whatsoever against the city or its officials, boards, commissions, agents or employees for any loss, costs, expense or damages arising out of any provision or requirement of the city because of the enforcement of the license or because of defects in this chapter or the license issued;

(4) The city shall have continuing jurisdiction and supervision over any facilities located within or on city rights-of-way. Daily administrative, supervisory and enforcement responsibilities of the provisions of this chapter shall be delegated and entrusted to the city manager to interpret, administer and enforce the provisions of this chapter, and to promulgate standards regarding** the construction, reconstruction, relocation, maintenance, dismantling, abandonment or use of the facilities within the city rights-of-way. Every licensee shall comply with and be bound by the administrative and enforcement provisions as may be prescribed from time to time by the city.

(5) Every license will be a nonexclusive,** revocable license**, right and privilege to construct, install, operate, and maintain the facilities along certain streets and public ways in the city as specifically identified on a map to be attached to the license as Exhibit "A".

(6) Upon written consent of the city manager or designee, which consent shall not unreasonably be withheld or delayed, the licensee may expand or extend the system to streets and public ways not currently identified on the map included as an exhibit to the license. The licensee agrees that any such expansions or extensions shall be governed by the terms and conditions of this license and such conditions and/or stipulations that the city may require to minimize specific traffic impacts in all or part of the requested extension area. The licensee shall annually prepare an updated map that shows the expansions and extensions, which shall be attached to this license to replace the existing exhibit upon the city’s granting of consent for the expansion or extension.

(7) The licensee agrees to provide and maintain accurate digital maps in an electronic format specified by the city that shows the location of all facilities it will use in the highways within the city, and comply with such other mapping requirements as the city may establish from time to time.

(1) Every provider shall be subject to the city’s exercise of such police, regulatory and other powers as the city now has or may later obtain, and a provider may not waive the application of the same, and the license must be exercised in strict conformity therewith. Every license shall be subject to revocation if the provider fails to comply with the terms and conditions of the license or applicable law. A license shall not be revoked unless the provider is given written notice of the defect in performance and fails to cure the defect within sixty (60) days of the notice, except where the city finds that the defect in performance is due to intentional misconduct, is a violation of criminal law, or is part of a pattern of violations where the provider has already had notice and an opportunity to cure. A hearing shall be held before a license is revoked or not renewed if the provider requests a hearing. In the event of a conflict between this chapter and other provisions of the Code, the stricter requirement shall apply.

(2) Any remedies available to the city are cumulative, and are not limited by the recovery of any amounts pursuant to the insurance provisions of the license, or pursuant to any indemnity clause.

(3) If the licensee fails to pay amounts owed to the city by the time prescribed for payment, the licensee shall pay interest on the amounts owed, at the rate of one percent per month.

(4) If licensee fails or refuses to meet any requirement of the license or this chapter and fails or refuses to remedy or perform any requirement after receiving written notice of violation, the city, at its sole discretion may elect to terminate the license.

(d) Reserved.

(e) Termination or revocation. Upon termination or revocation in accordance with subsections 47-165(c)(1), and (4), or through failure to renew, the licensee shall have two years to obtain a permit and remove its facilities from the public highway. In the event a licensee’s facilities are not removed from the public highway within two years of termination the facilities shall be deemed abandoned and shall become the property of the city without further notice or compensation.

(Ord. No. 3368, § 5, 7-2-01; Ord. No. 4113, § 1(Res. No. 9551, Exh. A, § 2), 12-9-13, eff. 7-1-14; Ord. No. 4389, § 1(Res. No. 11403, § 1(Exh. A)), 6-11-19)

Sec. 47-166. Compensation.

(a)Each telecommunications provider shall:

&nbsp(1) Pay any applicable transaction privilege tax or applicable use tax, as may be specified from time to time in the Scottsdale City Code;

&nbsp(2) Pay an annual fee based on the number of linear feet of conduit, not to exceed an aggregate of four inches in diameter, in the rights of way in which facilities are placed. For the fiscal year 2019-20 and continuing each successive year thereafter until changed by the City Council, the rate per linear foot shall be as follows:

Network Mileage Range	Per Foot Annual Rate
0—75 miles	$0.31
76 miles to 150 miles	$0.21
Above 150 miles	$0.11

All miles for the Provider’s Network shall be paid at the applicable rate for the total number of miles

&nbsp(3) Pay** rights-of-way construction permit fees** established from time to time by the city;

&nbsp(4)Pay all costs associated with the construction, installation, maintenance and operation of its facilities in the public highways used to provide telecommunications, including reasonable costs associated with damage caused to the public highways by the licensee;

&nbsp(5) Pay a license application processing fee of two thousand dollars ($2,000.00) to cover the cost of reviewing and processing the application;

&nbsp(6) Pay** the inspection fee** to cover the cost of inspection of the construction, work or installation to insure it meets all city requirements; and

&nbsp(7) Pay a one-time pavement damage fee to be established by the City Manager or designee for each linear foot of cuts to pavement in the rights-of-way and pay any and all additional reasonable costs for any other damage caused to the public highways by the licensee, the licensee’s facilities, or the licensee’s use of the public highways.

&nbsp(8) Pay an additional linear foot fee to be established by the City Manager or designee to the extent that the conduit to be installed exceeds an aggregate of four inches in diameter.

(b) The city manager is authorized to review the costs associated with construction, maintenance and operation of facilities in the public highways to provide telecommunications services and to establish any fee required to recover those costs. Nothing in this section is intended to limit the obligation of any person to pay amounts owed under any license.

(Ord. No. 3368, § 6, 7-2-01; Ord. No. 4113, § 1(Res. No. 9551, Exh. A, § 2), 12-9-13, eff. 7-1-14; Ord. No. 4389, § 1(Res. No. 11403, § 1(Exh. A)), 6-11-19)

Sec. 47-166a. Credit for amounts paid; in-kind exchange.

(a) Any telecommunications provider who is required to pay an annual fee to the city, other than a transaction privilege or use tax, for use of the rights-of-way pursuant to a franchise agreement or license with the city issued pursuant to another provision of this code, the city charter, or state or federal law shall be entitled to a credit in such amount against any fees due under section 47-166(a)(2).

(b) If the city manager or designee determines that it is in the best interests of the city, a license issued pursuant to this article may provide for a corresponding credit against the fees due under sec. 47-166(a)(2) if the telecommunications provider agrees to provide either facilities or services for the city as part of the license.

(Ord. No. 4389, § 1(Res. No. 11403, § 1(Exh. A)), 6-11-19)

Sec. 47-167. Coordination to minimize disruption to the city’s public highways.

(a) The city finds that the management of the public ways has been made more complex because of the increase in building construction and influx of seasonal visitors, and a corresponding increase in vehicular traffic, along the city’s major arterial streets.

(b) In order to minimize the number of street cuts, to preserve and prolong the integrity of the public highways, the City of Scottsdale requires that all telecommunications applicants comply with all city right-of-way construction and management policies, including participation in joint trench projects as designated by the city.

(Ord. No. 3368, § 7, 7-2-01; Ord. No. 4113, § 1(Res. No. 9551, Exh. A, § 2), 12-9-13, eff. 7-1-14; Ord. No. 4389, § 1(Res. No. 11403, § 1(Exh. A)), 6-11-19)

Sec. 47-168. Exemptions; issuance of exempt license.

(a) Any telecommunications provider that claims that it is exempt from some or all of the provisions of this chapter pursuant to state or federal law shall notify the city of its claim and the nature and basis thereof. If the city is satisfied that an exemption applies, the city may issue a license to use the rights of way pursuant to such state or federal law. Provided, however, any such license issued will be strictly limited to allowing the provision of those services that are exempted by law and if the telecommunications provider desires to provide additional services that are not exempt from this chapter, the telecommunications provider must obtain an additional license in accordance with this article.

(b) If feasible, the grant of authority pursuant to state or federal law as set forth in subsection (a) and a grant of authority pursuant to this article may be combined into a single license.

(c) If any telecommunications provider claims that it is entitled to use the rights-of-way without necessity of obtaining a license from the city pursuant to a provision of state or federal law, such provider shall only use the rights-of-way to provide such services as may be exempt under state or federal law and shall not provide any additional services not exempted by law without first obtaining a license pursuant to the provisions of this article.

(d) The provisions of this Article shall not apply to any entity holding a utility franchise agreement with the city or any governmental or quasi-governmental entity providing utility service in the city to the extent that such entity installs telecommunications facilities solely for the purpose of monitoring, coordinating, or otherwise improving the delivery of such utility service.

(e) The provisions of this Article shall not apply to the installation of up to twenty-five (25) linear feet of conduit in the rights-of-way that is directly associated with a wireless communication facility which is separately licensed by the City in accordance with section 47-169

(Ord. No. 4389, § 1(Res. No. 11403, § 1(Exh. A)), 6-11-19)

Sec. 47-169. Wireless communication facilities.

(a) The city manager or designee may issue separate licenses for wireless communication facilities in the rights of way in accordance with the basic zoning ordinance, any standard terms and conditions adopted by the City Council through resolution, and any other applicable law.

(Ord. No. 4389, § 1(Res. No. 11403, § 1(Exh. A)), 6-11-19)