DRAFT

San Francisco Administrative Code

Chapter 11A: INTERNET FRANCHISE

Table of Contents

Sec. 11A.1   San Francisco Internet Policy

Sec. 11A.2   Board authority

Sec. 11A.3   Protection of tenants’ rights

Sec. 11A.4   Protection of private property values

Sec. 11A.5   Protection of network assets

Sec. 11A.6   Definitions

Sec. 11A.7   Franchisee obligations

Sec. 11A.8   MDU Access: No predatory practices

Sec. 11A.9   MDU Access: Tenant choice

Sec. 11A.10 Access to poles and conduit: One-Touch “Climb Once”

Sec. 11A.11 Access to public rights-of-way: Expedited permitting  

Sec. 11A.12 Recovery of abandoned facilities

Sec. 11A.13 Franchise administration

Sec. 11A.14 Franchise term

Sec. 11A.15 Enforcement

Sec. 11A.16 User protection

Sec. 11A.17 Severability

Sec. 11A.1 San Francisco Internet Policy

The Board finds and declares that:

(a) internet access service is a public utility in the City and County of San Francisco; and

(b) it is the policy of the City and County of San Francisco to insure reliable, high-quality internet access service at affordable rates for every citizen and business.

Sec. 11A.2  Board authority

The Board finds and declares that:

(a) it has the authority to grant internet franchises under the Constitution and laws of the State of California and the United States;

(b) other city initiatives have been unsuccessful in bringing reliable, high-quality, affordable internet access to all San Francisco communities;

(c) current federal, state, and local regulations and enforcement policies have failed to insure reliable, high-quality, affordable internet access for all;

(d) an internet franchise framework is a comprehensive, long-term approach to bringing reliable, high-quality, affordable internet access to all San Francisco communities, by promoting a competitive internet market in San Francisco;

(e) an internet franchise framework is a reasonable and prudent approach to bringing high-capacity communications network investment and operations management for San Francisco; and

(f) adoption of a San Francisco internet franchise is in the public interest; therefore,

(g) the Board should adopt an internet franchise for the City and County of San Francisco.

Sec. 11A.3 Protection of tenants’ rights

The Board finds and declares that:

(a) residential tenants have the right to choose the internet access service that meets their quality of service, reliability, and affordability requirements;

(b) commercial tenants have the right to choose the internet access service that meets their business requirements;

(c) tenants have the right to enter into an agreement with the internet access provider of their choice with the terms and conditions of their choice; and

(d) to insure tenants’ rights to the internet access service of their choice, franchises should be nonexclusive and optional for any internet access provider who wishes to operate within the City and County of San Francisco.

Sec. 11A.4 Protection of private property values

The Board finds and declares that:

(a) local land use regulation may reduce or increase the market value of a private property;

(b) local land use regulation increases the market value of private property when it creates or enhances a service that benefits property owners;  

(c) when a local land use regulation increases the market value of a private property, it is just and reasonable that any compensation that may be due the property owner for inconvenience, costs, or incursions resulting from the implementation of the regulation shall be offset by the increase in market value of the property resulting from the regulation; and

(d) a local land use regulation requiring the installation and operation of internet-capable facilities benefits the property and property owners and increases the property’s market value.

(e) a local land use regulation requiring building access for competitive providers chosen by tenants benefits the property and property owner and increases the property’s market value.

Sec. 11A.5  Protection of network assets

The Board finds and declares that, to support the city’s internet policy:

(a) the city should establish and maintain a comprehensive database of information on internet access  facilities and equipment within the city;

(b) the city should collect, develop, maintain, and make public, maps and information on city-owned and city-leased internet access service facilities;

(c) the city should collect and maintain mapping information, in GIS format according to specified standards, from incumbents on incumbent-owned facilities within the city, subject to appropriate security and confidentiality safeguards;

(d) the city should make incumbents’ infrastructure maps available online to any franchisee who has requested them, subject to appropriate security and confidentiality safeguards;

(e) the city should expedite the rights-of-way permitting process for internet franchisees who are installing or extending their infrastructure.

Sec. 11A.6 Definitions

For purposes of this Chapter, the terms listed below are defined as follows:

(a) “Board” means the San Francisco Board of Supervisors.

(b) “City” means the City and County of San Francisco.

(c) “Competitive provider” means an internet access service provider that is not an incumbent.

(d) “Department” means the Department of Technology.

(e) “Developer” means a developer of a commercial or residential building with four or more units.

(f) “Facilities” means high-capacity internet access service-capable cables, radios, antennas, and associated equipment.

(g) “Franchisee” means an internet access service provider that has chosen to apply for and has been granted a San Francisco Internet Franchise.

(h) “Incumbent” means an owner of infrastructure that is or was, in whole or in part, publicly subsidized through guaranteed rates of return, state or federal universal service funds, network infrastructure loans or grants, special tax exemptions or credits, or any other public payments or discounts, or through an exclusive franchise.  This includes cable companies, telecommunications carriers, and electric utilities such as AT&T, Comcast, and PG&E.

(i)  “Infrastructure” means high-capacity internet access service-capable poles, conduit, cables, radios, antennas, and associated facilities and equipment.

(j)  “Internet franchise” means authorization granted by the Board to construct, install, and operate internet facilities in the City, with certain privileges and subject to certain obligations as specified in this Chapter.

(k)  “Internet access” means having high-speed two-way real-time interactive any-to-any connections between an end-user and any other point on earth that is connected to an internet backbone.

(l) “Landlord” means a property owner, or a property manager as agent of the property owner.

(m) “MDU” means a multiple-dwelling-unit residential property or a multi-unit commercial or mixed-use property.

(n) “Property” means a commercial or residential building of four or more units.

(o) “Property owner” means the owner of a commercial or residential building of four or more units, or the property manager as agent of the property owner.

(p) “Provider” means a provider of internet access service .

(q) “Tenant” means a residential or commercial leaseholder in a residential, commercial, or mixed-use property.

Sec. 11A.7 Franchisee obligations

(a) An internet franchise is optional and nonexclusive.   An internet access service provider operating in San Francisco may, at its option, obtain an internet franchise, with its associated benefits and obligations.

(b) Franchisees may not require a landlord to enter into an exclusive contract as a condition of providing internet access service.

(c) Franchisees must allow a landlord prior review of the plans, drawings, specifications, and methods for building penetrations and excavations, installations of new or upgraded conduit and other infrastructure, and the placement of any equipment and facilities.

(d) Franchisees must install equipment according to the plans and drawings submitted to the landlord, subject to modifications necessary for construction, using existing structural features where possible.

(e) Franchisees must locate any rooftop equipment so as not to interfere with other rooftop equipment or the integrity of the building design.  

(f) Franchisees must repair any damage to the property caused by the installation, operation, or removal of equipment or facilities.

(g) Franchisees must comply with all reasonable, nondiscriminatory rules of the landlord to protect the safety, security, appearance, and condition of the property, and the safety and convenience of tenants and others.  

(h)  Franchisees must allow other franchisees access to their conduit.

Sec. 11A.8  MDU Access: No predatory practices

(a) No Rev-Share.  Developers may not enter into any revenue-sharing agreement or any other formal or informal discriminatory agreement or practice that has the effect of favoring or disfavoring any authorized provider or providers in serving tenants or that has the effect of inhibiting access to the property by authorized providers.

(b) No Exclusive Facilities.  Developers may not enter into any facility installation agreement that has the effect of preventing any authorized provider or providers from installing facilities to each unit.

(c) No Collusion.  Developers may not enter into any pricing or fee agreement that has the effect of favoring or disfavoring any franchisee or franchisees in serving tenants, or that has the effect of inhibiting access to the property by franchisees.

(d) Developers of new properties and major renovations must install high-speed internet-capable cables, including horizontal cables from the intermediate distribution framework into each unit.  The city’s Planning Code and Building Code are hereby amended to include the provisions of this paragraph.

(e) Developers will be subject to fines and penalties for delays resulting from violations of this section, and must pay the franchisee the cost of delays resulting from violations of this section.

Sec. 11A.9  MDU Access: Tenant choice

(a) Landlords must allow building access to any franchisee requested by a tenant on an equal basis with all other providers.

(b ) Landlords must install, operate, and maintain, the facilities and power required for any franchisee requested by a tenant; alternatively, landlords must allow a franchisee to install the internet-capable cables required, including horizontal cables from the intermediate distribution framework into each unit.  Landlords must allow the franchisee to use those facilities for expansion or reinforcement of its network.

(c) Landlords must install, operate, and maintain high-speed internet-capable wireless facilities on the roof of the building for any franchisee requested by a tenant; alternatively, landlords must allow the franchisee to install wireless equipment on the roof of the building, according to specifications as applied to any and all providers.  The landlord must allow the franchisee to use the rooftop equipment for expansion or reinforcement of its network.

(d) Landlords must allow franchisees to enter the property, at reasonable times during normal business hours and upon reasonable notice, in order to maintain, operate, and upgrade their equipment. This right of access does not include entry into individual units.

(g) No Rev-Share.  Landlords may not enter into any revenue-sharing agreement or any other formal or informal agreement or discriminatory practice that has the effect of favoring or disfavoring any franchisee or franchisees in serving tenants, or that has the effect of inhibiting access to the property by franchisees.  

(f) No Exclusive Facilities.  Landlords may not enter into any facility installation agreement with a provider that has the effect of preventing any franchisee from installing facilities to each unit.

(h) No Exclusive Agreements. Landlords may not enter into an exclusive agreement with a provider that is required by the provider as a condition of providing internet access to the building or to any tenant.

(e) No Collusion.  Landlords may not enter into any formal or informal pricing or fee agreement that has the effect of favoring or disfavoring any franchisee in serving tenants, or that has the effect of inhibiting access to the property by any franchisee.

(i) Landlords will be subject to fines and penalties for violations of this section and for delays resulting from violations of this section.

(j) The city shall not require franchisees to obtain permits to install facilities, including facilities for any wireless devices, regardless of technology, whether mobile or fixed, on or in new or existing buildings.  

Installations must comply with federal Treatment of Historic Properties guidelines and Public Works Code requirements for surface-mounted facilities and personal wireless services facilities.

(k) The relevant sections of the Police Code, Planning Code, Public Works Code, and Building Code are hereby amended to add paragraphs (b), (c), (i), and (j) of this section.

Sec. 11A.10 Access to poles and conduit: One-Touch “Climb Once”

(a) Incumbents must provide franchisees access to infrastructure for any wireless devices, regardless of technology, whether mobile or fixed, on nondiscriminatory terms and at nondiscriminatory rates, subject to applicable state and federal law.

(b) Incumbents must provide franchisees access to all engineering-feasible poles, subject to applicable state and federal law, upon request, promptly and without delay.

(c) Incumbents must provide franchisees access to underground conduit, subject to applicable state and federal law, and access to the manholes needed to install, maintain, and deploy service, upon request, promptly and without delay.

(d) Incumbents must make their most up-to-date infrastructure maps available to franchisees online, subject to appropriate security and confidentiality safeguards, upon request, promptly and without delay.

(e) Incumbents must replace decommissioned poles, if allowed by law, within a reasonable time, but at most within two years of decommissioning.

(f) Incumbents must determine what constitutes full conduit based on the physical capacity of the conduit and must allow a requesting franchisee to conduct its own independent determination of conduit capacity. The Department shall establish criteria for determining whether the conduit is full and, if the parties disagree, shall make the final determination.

(g) Incumbents must determine what constitutes a full manhole based on the physical capacity of the manhole and must allow a requesting franchisee to conduct its own independent determination of manhole capacity. The Department shall establish criteria for determining whether the manhole is full and, if the parties disagree, shall make the final determination.

(h) Incumbents may not require franchisees to install and add new facilities to the incumbent’s own facilities as a condition of granting access.

(i) Incumbents who provide power for pole-mounted facilities must provide power to franchisees for any wireless devices, regardless of technology, whether mobile or fixed, on nondiscriminatory terms and at nondiscriminatory rates. Pole power must be provided based on the power draw of the facilities, without the use of meters.

(j) Incumbents must allow any licensed technicians to perform the engineering assessments and communications work needed to prepare poles for access, under the oversight of the pole owner and the attacher; incumbents must allow a single approved and certified construction crew to complete all the make-ready work needed to prepare the poles for access by prospective attachers.

(k) Incumbents’ pole access fees shall be determined based on the cost of administration of pole access.

(l) Incumbents will be subject to fines and penalties for violations of this section.

Sec. 11A.11 Access to public rights-of-way: Expedited permitting

(a) The city shall determine rights-of-way permit fees based on the cost of administration of rights-of-way access.

 

(b) The city shall publish rights-of-way permit fees in fee schedules that provide adequate notice and regulatory certainty of the fees to be charged under specified circumstances. 

(c) The city shall establish an expedited rights-of-way permitting process for franchisees requesting the use of public rights-of-way to install or extend their infrastructure.

(d) The city shall not require franchisees to obtain permits to install facilities, including facilities for any wireless devices, regardless of technology, whether mobile or fixed, on city buildings or on poles located in public rights-of-way.  Installations must comply with federal Treatment of Historic Properties guidelines and Public Works Code requirements for surface-mounted facilities and personal wireless services facilities.

(e) Incumbents and other providers who use public rights-of-way must share their infrastructure with franchisees who request it, subject to applicable law.  Incumbents who violate this provision will be subject to fines and penalties.

 

(f) The relevant sections of the Police Code, Planning Code, Public Works Code, and Building Code are amended to include the provisions of this section.  

Sec. 11A.12 Recovery of abandoned facilities

(a) Unused facilities for which there is no identified owner shall become the property of a franchisee that discovers the facilities and conducts a diligent search for the owner, according to a process prescribed by the Department of Technology.

(b) A diligent search must include the use of the appropriate facility locating service.

(c) Unused and unidentified facilities discovered by the city shall become the property of the city, according to a process prescribed by the Department.

Sec. 11A.13  Franchise administration

(a) The Department of Technology shall administer the internet franchise. The Department shall establish an Internet Franchise Office to administer the provisions of this chapter and shall promulgate rules and procedures as needed for the effective administration of the franchise.

(d) Any internet access service provider operating within the City may apply for an Internet Franchise.  The franchise application shall include:  

1) the applicant's legal name and any name under which it has done and will do business;

2) the physical address and telephone number of the applicant's principal place of business in the city;

3) the legal name, address, and telephone number of the applicant's parent company, if any;

4) the names and titles of the applicant's principal officers;

5) documentation showing that the applicant possesses the financial, legal, and technical qualifications necessary to operate as an internet access service provider;

6) documentation showing that the applicant is currently providing unbundled, stand-alone internet access service to end users;

7) certification that the company has not been sanctioned for and is not under investigation by a city agency, department, or commission;

8) certification that no officer or other principal of the company is or has been associated with an internet provider that has filed for bankruptcy, been sanctioned by or is under investigation by a state or federal regulatory agency, or has been found in violation of a civil or criminal statute; and

9) payment of a franchise application fee.

(e) The franchise application fee shall be determined based on the cost of administration of franchise applications.

(f) The Department shall evaluate each application for validity and completeness and shall recommend the appropriate action to the Board of Supervisors. The Department may grant, transfer, extend, or renew a franchise upon application, subject to adoption by the Board of Supervisors.

Sec. 11A.14  Franchise term

(a) The franchise term shall be fourteen years.  

(b) A franchise may be transferred to an affiliate, upon application, if the franchisee submits additional information explaining the affiliate’s ownership and control.

(c) Upon termination of a franchise, or abandonment of any facilities, the Department may require a franchisee to remove its facilities and restore the property as specified by the Department.

(d) The Department may revoke a franchise if it finds that a franchisee has violated a requirement of the franchise or has otherwise acted against the public interest.

(e) A franchise may be renewed upon application.  If the franchisee has applied for renewal before the expiration of the franchise, the franchise provisions continue for up to twelve months until the renewal is adopted.

Sec. 11A.15  Enforcement

(a) The Department of Technology shall promulgate rules and procedures as needed for enforcing the provisions of this chapter.  

(b) Any party who has been harmed by a violation of this chapter may file a complaint with the Department against a property owner or landlord, builder, or franchisee, for any violation of the provisions of this chapter.  

(c) The Department shall establish a complaint process for anyone who has been harmed by a violation of this Chapter, and shall establish and impose fines or other penalties for violations of this Chapter.  An entity found in violation may request administrative review by the Director of the Department.  The Director’s decision is the final administrative determination; that determination may be appealed pursuant to California Code of Civil Procedure Section 1094.5.

Sec. 11A.16  User protection

(a) The city shall maintain an online provider rating system for end users of internet access services.

Sec.11A.17 Severability

(a) If any part, provision, section, or paragraph of this chapter, or the application of it, is held invalid, the remainder of the part, provision, section, or paragraph shall not be affected and shall continue in full force and effect.

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