ORD 18-851 - Establishing Regulations Relating to Small Cell DeploymentsORDINANCE NO. 18-851
AN ORDINANCE of the City of Federal Way, Washington, relating
to small cell deployments, franchising, and small cell permits in the
City's rights-of-way and federally required review periods; amending
Chapter 4.22 FWRC and adding new Chapters 4.23 and 4.24 FWRC.
(Amending Ordinance No. 17-833)
WHEREAS, Title 4 of the Federal Way Revised Code addresses City of Federal Way
("City") property franchise procedures; and
WHEREAS, the deployment of small cells in the public right-of-way is a matter of
importance to the City as the steward of the public rights-of-way; and
WHEREAS, the deployment of small cell facilities is necessary to provide the wireless
services that the citizens of the City require in order to carry on their personal and private
business; and
WHEREAS, the Federal Communications Commission as well as federal law have
established presumptively reasonable time limits known as "shot clocks" pursuant to regulations
such as 47 U.S.C. § 1455(a) and 47 C.F.R. §1.40001; and
WHEREAS, federal and state law set time limits on the processing of applications for
aspects of small cell deployment including franchising, permitting, and eligible facilities
requests; and
WHEREAS, the City Council deems it to be in the public interest to amend both its
franchising provisions to expedite the franchising and deployment of small cells in conjunction
with revisions to its zoning code, and specifically Chapter 19.255 FWRC, which will now be
codified in Chapter 19.256 FWRC.
Ordinance No. 18-851 Page 1 of. 13
NOW, THEREFORE, THE CITY COUNCIL OF THE CITY OF FEDERAL WAY,
WASHINGTON, DO ORDAIN AS FOLLOWS:
Section 1. FWRC 4.22.030 is hereby amended to read as follows:
4.22.030 Application — Contents.
The director is authorized to establish an application form or forms appropriate for
telecommunications entities, public utilities, and other qualified service providers to apply for a
franchise. The form shall contain at a minimum:
(1) Information identifying the applicant, its corporate or other organizational structure, and the
agent or individual filling out the application.
(2) Property and facility information, including, but not limited to:
(a) The nature of the application as an application for a new franchise, an application for
renewal or amendment, or an application for the transfer of a franchise.
(b) A description of the specific services that the applicant expects to provide within the city
including whether the services will be provided to the general public, to commercial
and/or residential customers, or to other utilities and service providers.
(c) A general description of the facilities to be located in the right-of-way including, but not
limited to, wireline facilities, cable wireless, and telecommunications service facilities,
conduits, pipelines, and other facilities appropriate to the specific utility or service
provider's utilization of the right-of-way.
(d) Where appropriate, information relating to pole attachment or lease agreements with the
owners of other facilities located in the right-of-way.
(e) Any licenses, certificates, or authorizations required from the Federal Communications
Commission, the Washington Utilities and Transportation Commission, and any other
federal or state agency with jurisdiction over the proposed activities to be conducted in
the right-of-way.
(f) Information relating to utility taxes including a description of the services provided and
any and all state and local taxes which may apply.
(g) The service area for which the franchise is requested, including a map of the area to be
covered by the franchise and specific locations of the initial build out and, if known,
proposed future build out locations including which proposed facilities will be
underground, ground based, and/or aerial. The applicant may designate the entire city at
its discretion or any portion thereof as the franchise area.
Ordinance No. 18-851 Page 2 of 13
(h) Upon request from the city, financial statements prepared in accordance with generally
accepted accounting principles demonstrating the applicant's financial ability to
construct, operate, maintain, relocate, and remove its facilities. This provision shall not
apply when prohibited by the Federal Telecommunications Act.
(i) An illustrative list of cities or towns in which the applicant holds a franchise including up
to the last five (5) Washington Cities or towns in which a franchise has been granted.
(i) For franchises authorizing small cell deployment, whether and where small cell facilities
are to be located on existing utility poles, including city -owned light standards included
in the definition of utility pole, or will utilize replacement utility poles, new poles,
towers, and/or other structures. To the extent known, conduit and/or ground -mounted
equipment necessary for and intended for use in the deployment shall also be specified
regardless of whether the additional facilities are to be constructed by the applicant or
leased from an infrastructure provider. Detailed schematics and visual renderings of the
facilities shall be provided by the applicant. Failure to provide sufficient detail may result
in a later finding of a significant change in the facility if significant elements of the
facility were not shown on the originally approved franchise exhibit. Failure to include
significant elements may also result in the requirement that new or undocumented
elements complete the approval processes detailed in Chapters 4.23 and 19.256 FWRC.
(}k) Such other information as the director, in his/her discretion, shall deem appropriate.
Section 2. FWRC 4.22.050 is hereby amended to read as follows:
4.22.050 Completeness — Review and notification.
The Ddirector or his/her designee shall review thea franchise application upon submittal for
completeness and. If the director finds that any applicant has failed to provide an application
which reasonably fulfills the requirements of this -chapter and the application form, and/or is not
accompanied by the fee deposit established by the director, the dircctor shall, within 20 business
days of receipt of the application, notify the applicant within thirty (30) days of receipt of the
application that -whether the application is incomplete; provided; however, that an applicant may
consent to a different completeness review period.
supplemented fee deposit as provided above. A service provider may resubmit an incomplete
application within ninety (90) days of notice by the Director. Failure to resubmit an application
in a timely manner shall be deemed a withdrawal of that application. No application shall be
deemed complete without the fee deposit set by FWRC 4.22.040.
Ordinance No. 18-851
Page 3of13
Section 3. Chapter 4.22 of the Federal Way Revised Code is hereby amended to add a
new Section 4.22.055 to read as follows:
4.22.055 Public comment.
The city shall provide notice of a complete application for a franchise on the City's website with
a link to the franchise application. The notice shall include an email contact and telephone
number for the applicant to answer citizen inquiries.
The applicant is encouraged to host informational meetings for the public regarding the
deployment. The city shall post meeting notices, if any, for informational meetings on its
website. These meetings are for the public's information and are neither hearings nor part of any
land use appeal process.
Section 4. Title 4 of the Federal Way Revised Code is hereby amended to add a new
Chapter 4.23 to read as follows:
Chapter 4.23
SMALL CELL DEPLOYMENT: SMALL CELL PERMITS
4.23.010 Overview.
(1) In order to manage its right-of-way in a thoughtful manner that balances the need to
accommodate new and evolving technologies with the preservation of the natural and aesthetic
environment of the City of Federal Way while complying with the requirements of state and
federal law, the city has adopted this process for the deployment of small cell technology.
Service providers who seek to utilize the public right-of-way for small cell deployment in order
to provide personal wireless service, data transmission, or other related services to the citizens of
the city must have a valid franchise under Chapter 4.22 FWRC to utilize the right-of-way and a
Small Cell Permit to deploy that technology at each proposed location. Entities with franchises
who wish to utilize a small cell deployment to upgrade or expand their existing services shall
utilize the processes set forth in this chapter to obtain design approval of specific installations.
An entity without a franchise shall apply for a franchise as well as a Small Cell Permit for its
initial deployment, and the applications shall be processed concurrently as one Master Permit
within the meaning of RCW 35.99.010(3) and 35.99.030. For entities with a valid franchise, see
FWRC 4.23.020.
(2) Nothing in this ordinance revises or diminishes the rights and obligations of an existing
franchise.
(3) The term "small cell deployment" shall include the deployment of small cell facilities and
small cell networks as those terms are defined by RCW 80.36.375. Small cell deployment
Ordinance No. 18-851 Page 4 of 13
elements that require SEPA review may utilize these processes only in conjunction with SEPA
review.
(4) See Chapters 4.22, 19.05, and 19.256 FWRC for the definition of terms not specified in this
Chapter.
4.23.020 Application for small cell permits.
For locations in the public right-of-way, the Director of Public Works ("Director") is charged
with administration of small cell deployments and other personal wireless service review
processes established under Chapters 4.23 and 19.256 FWRC.
Unless previously provided with an application for a franchise, the following information shall
be provided by all applicants seeking to utilize small cell deployment.
(1) Specific locational information including GIS coordinates of all facilities, and
(2) Specific design information and plans, addressing poles or other support structures,
attachments, conduit, and any ground -mounted equipment, and
(3) A narrative addressing how the proposed plans are consistent with the franchise exhibit(s), if
applicable, or otherwise meet the design requirements of this Chapter.
4.23.025 Implementation; Small cell permits.
The rights granted under the franchise are implemented through the issuance of Small Cell
Permits. The franchise application, required under Chapter 4.22 FWRC, may be accompanied by
one or more applications for a Small Cell Permit to deploy small cells. An initial franchise and
any related Small Cell Permit applications shall be processed concurrently as one Master Permit.
(1) Up to fifteen (15) sites may be specified in one Small Cell Permit application for processing.
The Director may allow up to five (5) additional sites in one application in order to consider
small cell sites within one logical service area together.
(2) Issuance of a Small Cell Permit to install a small cell deployment shall be contingent upon
approval of a franchise under Chapter 4.22 FWRC, or the possession of a valid franchise.
(3) If more than one application for a Small Cell Permit is submitted by an applicant, they shall
be considered in the order received. If multiple applications are submitted on the same date, the
applicant shall indicate which application should be considered first. All Small Cell Permits that
are submitted in conjunction with a franchise application shall be considered as one Master
Permit. RCW 35.99.010(3).
(4) An applicant with an existing franchise may, at the applicant's sole discretion, elect to utilize
the expedited review process set forth in FWRC 4.23.100.
Ordinance No. 18-851 Page 5 of 13
(5) Any element of a deployment that qualifies as either an Eligible Facilities Request or a
collocation shall be specifically designated by the applicant and may be addressed separately by
the Director in order to comply with the shot clocks established by federal law and Chapter 4.24
FWRC.
(6) The Director may approve, deny, or conditionally approve all or any portion of the sites
proposed in the Small Cell Permit application.
(7) Any application for a Small Cell Permit that contains an element that is not exempt from
SEPA review, shall simultaneously apply under Chapter 43.21C RCW and Title 14 FWRC. See
also FWRC 19.256.130.
(8) Radio Frequency Certification. The applicant shall submit a sworn affidavit signed by an RF
Engineer with knowledge of the proposed project affirming that the small cell deployment will
be compliant with all FCC and other governmental regulations in connection with human
exposure to radio frequency emissions for every frequency at which the small cell facility and
associated wireless backhaul will operate. If additional facilities necessary to the small cell
deployment are to be provided by another franchisee, the Small Cell Permit to deploy such
facilities shall be contingent on submittal of an RF Certification by the other franchisee for such
facilities, if such facilities will emit RF emissions; this RF Certification shall address the
cumulative impact of the RF emissions and certify compliance with federal requirements. The
terms Radio Frequency or RF radiation are included in the terms Electromagnetic Frequency or
EMF.
(9) Regulatory Authorization. Issuance of the Use Permit for the facilities shall also be contingent upon
the applicant's provision of proof of FCC and other regulatory approvals required to provide the
service(s) or utilize the technologies sought to be installed.
4.23.030 Review process — Small cell permits.
The following provisions relate to applications for a Small Cell Permit:
(1) Federal Law. Review of the site locations proposed by the applicant shall be governed by the
provisions of 47 U.S.C. § 253 and 47 U.S.C. § 332 and applicable case law. Applicants shall be
treated in a competitively neutral and non-discriminatory manner with other service providers
utilizing supporting infrastructure that is functionally equivalent, i.e., service providers whose
facilities are similarly situated in terms of structure, placement or cumulative impacts. Small Cell
Permit review under this chapter shall neither prohibit nor have the effect of prohibiting the
ability of an applicant to provide telecommunications services.
(2) Concealment. In any zone not designated by FWRC 19.256.110 for design review ("design
review") and/or for facilities designated within a franchise, the City will permit small cell
deployment on existing or replacement utility poles conforming to the City's generally
applicable pole design standard adopted pursuant to Chapter 19.256 FWRC and/or consistent
with the relevant franchise exhibit. Accordingly, small cell facilities installed pursuant to this
Ordinance No. 18-851 Page 6 of 13
concealment authorization may be expanded pursuant to an Eligible Facilities Request only when
such expansion does not defeat the facility's concealment elements.
(3) Concealment Element Plan. Small cell deployment in Design Zones and Undergrounded
Areas, as well as new poles, are subject to approval of a Concealment Element Plan. See FWRC
19.256.150.
4.23.040 Facilities designated in the franchise and/or small cell permit application.
Small cell deployments may be approved by reference to exhibits in an approved franchise.
Approval of the franchise with exhibits shall be deemed to approve the site and the design of
small cell facilities set forth in the franchise. This approval is limited to the specific location,
facility, and design elements shown on the exhibits to the franchise. Any element not shown on
an exhibit must be approved by the governing review processes listed in this chapter and, when
applicable, Chapter 19.256 FWRC. All facilities shall comply with the concealment standards
adopted by the City in FWRC 4.23.030 and FWRC 19.256.150, if applicable. An existing
franchisee may, at its option:
(1) Apply to amend the existing franchise to designate sites for small cell deployment, as well as
approve the small cell facilities to be installed and the concealment measures to be utilized;
and/or
(2) Apply for a Small Cell Permit, which shall include:
(a) Small cell facilities to be installed on existing or replacement utility poles, utilizing the
concealment option provided in FWRC 4.23.030(2), which are approved by the Director
through Process I; and/or
(b) Small cell facilities that comply with generally applicable objective design standards
adopted by the City in Chapter 19.256 FWRC, which are approved by the Director
through Process I; and/or
(c) Small cell facilities for new utility poles or installations in a Design Zone or
Undergrounded Areas, utilizing the design standards and concealment element plan set
forth in Chapter 19.256 FWRC, which are approved by the Director through Process II.
4.23.050 Small cell permit and minor deviations.
(1) Utilizing the procedures established for Process I review in Chapter 19.55 FWRC, the
Director shall review applications for Small Cell Permits for consistency with relevant franchise
exhibits and design standards. In this review, the Director may authorize minor deviations from
the dimensional design and concealment technologies referenced in the exhibits to the franchise
or design standards as follows.
Ordinance No. 18-851 Page 7 of 13
(2) A deviation in height of the pole of up to ten (10) feet above the height of the existing pole,
or the height established for the zoning district, by the franchise or from a design approved for a
Design Zone, may be permitted. Additional height may only be allowed to the extent necessary
to allow the required safety clearance from electrical wires.
(3) Deviations in the dimensions or volume of small cell facilities that do not exceed the
cumulative total provided by the definition of a small cell facility in RCW 80.36.375 may be
considered a minor deviation when an applicant replaces components of an existing, approved
small cell facility. Similarly, the addition of antennas on a pole, not to exceed a cumulative total
of twelve (12) cubic feet shall be considered a minor deviation; provided, however, that in each
instance the new or revised facilities do not defeat the concealment features set by the city's
generally applicable pole design standard adopted pursuant to the franchise, Chapter 19.256
FWRC, and/or as a concealment element under FWRC 19.256.150.
(4) Small Cell Permits to install facilities including approval of minor deviations shall be
processed within thirty (30) days of receipt of a complete application and final approval of a
franchise, whichever occurs last. Completeness shall be determined in the same manner as for a
franchise application under FWRC 4.22.050.
(5) The decision of the Director to approve a Small Cell Permit with a minor deviation, if any,
shall be final and is not subject to appeal under city code or further legislative review.
4.23.060 Significant deviations.
Any request for significant deviations from the approved small cell facilities design designated in
the franchise, previously approved Small Cell Permit or city's design standards shall be
considered under the provisions of Chapter 19.60 FWRC, Process II pursuant to the timelines
established in Chapter 4.24 FWRC. An applicant seeking approval of a new pole or a
replacement pole in a Design Zone or Undergrounded Areas designated by FWRC 19.256.110
shall be subject to the same Process II review and timeline.
4.23.070 Wireless communication facility and small cell deployment facility approvals and
processes.
Approval of a Small Cell Permit and/or other approval referenced in this chapter are conditioned
on the following requirements:
(1) Satisfy applicable bulk requirements such as noise and light regulations.
(2) Comply with adopted design and concealment standards, applicable to replacement utility
poles and new utility poles in a Design Zone or Undergrounded Areas.
(3) Obtain the written approval of the owner of any utility pole for the installation of its facilities
on such utility pole. Approval of a franchise under Chapter 4.22 FWRC does not authorize
attachment to city -owned utility poles or other structures.
Ordinance No. 18-851 Page 8 of 13
(4) Unless specifically provided for in a franchise, obtain a lease or other applicable
authorization from the city to utilize the city's ground space for the installation of any new pole,
a replacement utility pole over sixty (60) feet, or to locate any new ground based structure, base
station, or other attendant equipment on city right-of-way or city property;
(5) Comply with all city construction standards and state and federal codes when operating in the
right-of-way and obtain a required permit to enter the right-of-way for construction.
(6) A Small Cell Permit that includes a facility not exempt from SEPA review, shall be
processed in accord with the provisions of Title 14 FWRC.
(7) Small Cell facilities approved pursuant to this chapter shall be considered as an outright
permitted use when located within the right-of-way.
4.23.080 Additional review procedures.
Personal wireless service facilities/wireless communication facilities in Design or Shorelines
Management Zones, Undergrounded Areas or Environmentally Critical Areas are subject to
review as provided in Title 14 FWRC, Chapter 15.05 FWRC, and Chapters 19.256 and 19.145
FWRC.
4.23.090 Expedited review.
An applicant may opt for expedited review. Absent such a request, the city will process
applications on a first-come, first-served basis, taking into account its resources and the federal
shot clocks incorporated by Chapter 4.24 FWRC. An applicant requesting expedited review may
select a third -party consultant from a list established by the city through requests for
qualifications or may propose an independent reviewing entity for review by the city. Such entity
shall be engaged pursuant to a third -party contract. The applicant shall be responsible for paying
all costs incurred in the expedited review process. Nothing herein shall be deemed to require an
applicant to utilize expedited review.
4.23.100 Compliance with state processing limitations.
Review of Small Cell Permits shall comply with the provisions of RCW 35.99.030. Applications
shall be reviewed, completeness determined, and the timeframe tolled as provided in this Chapter
and Chapters 4.22 and 4.24 FWRC.
Section 5. Title 4 of the Federal Way Revised Code is hereby amended to add a new
Chapter 4.24 to read as follows:
Ordinance No. 18-851 Page 9 of 13
Chapter 4.24
ELIGIBLE FACILITIES REQUESTS: FEDERALLY REQUIRED REVIEW PERIODS
4.24.010 Purpose.
Congress and the Federal Communications Commission ("FCC") have, pursuant to the authority
granted by 47 U.S.C. § 253(c) and 47 U.S.C. § 332(a), required local governments to act on
personal wireless service facility applications within a reasonable period of time and have
established time limits or "shot clocks" for local review. The Washington State Legislature has
also adopted similar limitations under the provisions of Chapter 35.99 RCW. Accordingly, the
city adopts the following time limits for review of applications for Eligible Facility Requests,
Small Cell Permits, and other approvals for service providers of telecommunication services
whether reviewed pursuant to Title 4 or Chapter 19.256 FWRC.
4.24.020 Eligible facilities request — Application and review.
(1) Application Review.
(a) Application. The Community Development Director ("Director") shall prepare and make
publicly available an application form that shall be limited to the information necessary
for the City to consider whether an application is an Eligible Facilities Request. The
application may not require the applicant to demonstrate a need or business case for the
proposed modification.
(b) Type of Review. Upon receipt of an application for an Eligible Facilities Request
pursuant to this Chapter, the Director shall review such application to determine whether
the application qualifies as an Eligible Facilities Request.
(c) Timeframe for Review. Within sixty (60) days of the date on which an applicant submits
an application seeking approval under this Chapter, the Director shall approve the
application unless it determines that the application is not covered by this Section as an
Eligible Facilities Request.
(d) Tolling of the Time Frame for Review. The sixty (60) day review period begins to run
when the application is filed, and may be tolled only by mutual agreement by the Director
and the applicant or in cases where the Director determines that the application is
incomplete. The timeframe for review of an Eligible Facilities Request is not tolled by a
moratorium on the review of applications.
(i) To toll the timeframe for incompleteness, the Director shall provide written notice to
the applicant within thirty (30) days of receipt of the application, clearly and
specifically delineating all missing documents or information required in the
application.
Ordinance No. 18-851 Page 10 of 13
(ii) The timeframe for review begins running again when the applicant makes
supplemental submission in response to the Director's notice of incompleteness.
(iii) Following a supplemental submission, the Director will notify the applicant within
ten (10) days that the supplemental submission did not provide the information
identified in the original notice delineating missing information. The timeframe is
tolled in the case of second or subsequent notices pursuant to the procedures
identified in this sub -section. Second or subsequent notice of incompleteness may
not specify missing documents or information that was not delineated in the original
notice of incompleteness.
(2) Determination That Application Is Not an Eligible Facilities Request. If the Director
determines that the applicant's request does not qualify as an Eligible Facilities Request, the
Director shall deny the application. To the extent additional information is necessary, the
Director may request such information from the applicant to evaluate the application under other
provisions of this Chapter and applicable law.
(3) Failure to Act. In the event the Director fails to approve or deny a request for an Eligible
Facilities Request within the timeframe for review (accounting for any tolling), the request shall
be deemed granted. The deemed grant does not become effective until the applicant notifies the
Director in writing after the review period has expired (accounting for any tolling) that the
application has been deemed granted.
(4) Remedies. Both the applicant and the city may bring claims related to Section 6409(a) of the
Spectrum Act to any court of competent jurisdiction.
4.24.030 Collocation.
Collocations other than those within the definition of an Eligible Facilities Requests shall be
processed within ninety (90) days of receipt of an application. The Director will notify the
applicant within thirty (30) days of receipt of an application whether it is complete or if
additional information is required.
4.24.040 New wireless communication facilities.
Applications for new wireless communication facilities not subject to RCW 35.99.030 shall be
processed within 150 days of receipt of an application. The Director will notify the applicant
within 30 days of receipt of an application whether it is complete or if additional information is
required.
Section 6. Severability. Should any section, subsection, paragraph, sentence, clause, or
phrase of this ordinance, or its application to any person or situation, be declared unconstitutional
or invalid for any reason, such decision shall not affect the validity of the remaining portions of
Ordinance No. 18-851 Page 11 of 13
this ordinance or its application to any other person or situation. The City Council of the City of
Federal Way hereby declares that it would have adopted this ordinance and each section,
subsection, sentence, clauses, phrase, or portion thereof, irrespective of the fact that any one or
more sections, subsections, sentences, clauses, phrases, or portions be declared invalid or
unconstitutional.
Section 7. Corrections. The City Clerk and the codifiers of this ordinance are authorized
to make necessary corrections to this ordinance including, but not limited to, the correction of
scrivener/clerical errors, references, ordinance numbering, section/subsection numbers and any
references thereto.
Section 8. Ratification. Any act consistent with the authority and prior to the effective
date of this ordinance is hereby ratified and affirmed.
Section 9. Effective Date. This ordinance shall take effect and be in force thirty (30) days
from and after its passage and publication, as provided by law.
PASSED by the City Council of the City of Federal Way this 5th day of June, 2018.
Ordinance No. 18-851 Page 12 of 13
ATTEST:
CITY OF FEDERAL WAY:
ANIE COURTNEY Q C, CITY CLERK
APPROVED AS TO FORM:
J. RYAN CALL, CITY ATTORNEY
FILED WITH THE CITY CLERK:
PASSED BY THE CITY COUNCIL:
PUBLISHED:
EFFECTIVE DATE:
ORDINANCE NO.:
05/09/2018
06/05/2018
06/08/2018
07/09/2018
18-851
Ordinance No. 18-851 Page 13 of 13