Chapter 47.44 RCW

FRANCHISES ON STATE HIGHWAYS

Sections

47.44.010Wire and pipe line and tram and railway franchisesApplicationRules on hearing and notice.
47.44.020Grant of franchiseConditionsHearing.
47.44.030Removal of facilitiesNoticeReimbursement, when.
47.44.031Removal of facilitiesLimitation.
47.44.040Franchises across joint bridges.
47.44.050Permit for short distances.
47.44.060Penalties.
47.44.081ExceptionLeases for deployment of personal wireless service facilities.
47.44.150Measure of damages.
47.44.160Broadband facilities and infrastructureCollaboration.


Wire and pipe line and tram and railway franchisesApplicationRules on hearing and notice.

(1) The department of transportation may grant franchises to persons, associations, private or municipal corporations, the United States government, or any agency thereof, to use any state highway for the construction and maintenance of water pipes, flume, gas, oil or coal pipes, telephone, telegraph, fiber optic, electric light and power lines and conduits, trams or railways, and any structures or facilities that are part of an urban public transportation system owned or operated by a municipal corporation, agency, or department of the state of Washington other than the department of transportation, and any other such facilities. In order to minimize the disruption to traffic and damage to the roadway, the department is encouraged to develop a joint trenching policy with other affected jurisdictions so that all permittees and franchisees requiring access to ground under the roadway may do so at one time.
(2) All applications for the franchise must be made in writing and subscribed by the applicant, and describe the state highway or portion thereof over which franchise is desired and the nature of the franchise. The application must also include the identification of all jurisdictions affected by the franchise and the names of other possible franchisees who should receive notice of the application for a franchise.
(3) The department of transportation shall adopt rules providing for a hearing or an opportunity for a hearing with reasonable public notice thereof with respect to any franchise application involving the construction and maintenance of utilities or other facilities within the highway right-of-way which the department determines may (a) during construction, significantly disrupt the flow of traffic or use of driveways or other facilities within the right-of-way, or (b) during or following construction, cause a significant and adverse effect upon the surrounding environment.

NOTES:

FindingsIntent2021 c 258: See note following RCW 47.44.160.
Urban public transportation system defined: RCW 47.04.082.



Grant of franchiseConditionsHearing.

(1) If the department of transportation deems it to be for the public interest, the franchise may be granted in whole or in part, with or without hearing under such regulations and conditions as the department may prescribe, with or without compensation, but not in excess of the reasonable cost for investigating, handling, and granting the franchise. The department may require that the utility and appurtenances be so placed on the highway that they will, in its opinion, least interfere with other uses of the highway.
(2) If a hearing is held, it must be conducted by the department, and may be adjourned from time to time until completed. The applicant may be required to produce all facts pertaining to the franchise, and evidence may be taken for and against granting it.
(3) The facility must be made subject to removal when necessary for the construction, alteration, repair, or improvement of the highway and at the expense of the franchise holder, except that the state shall pay the cost of the removal whenever the state is entitled to receive proportionate reimbursement therefor from the United States in the cases and in the manner set forth in RCW 47.44.030. Renewal upon expiration of a franchise must be by application.
(4) A person constructing or operating such a utility on a state highway is liable to any person injured thereby for any damages incident to the work of installation or the continuation of the occupancy of the highway by the utility, and except as provided above, is liable to the state for all necessary expenses incurred in restoring the highway to a permanent suitable condition for travel. A person constructing or operating such a utility on a state highway is also liable to the state for all necessary expenses incurred in inspecting the construction and restoring the pavement or other related transportation equipment or facilities to a permanent condition suitable for travel and operation in accordance with requirements set by the department. Permit and franchise holders are also financially responsible to the department for trenching work not completed within the contractual period and for compensating for the loss of useful pavement life caused by trenching. No franchise may be granted for a longer period than fifty years, and no exclusive franchise or privilege may be granted.
(5) The holder of a franchise granted under this section is financially responsible to the department for trenching work not completed within the period of the permit and for compensating for the loss of useful pavement life caused by trenching. In the case of common trenching operations, liability under this subsection will be assessed equally between the franchisees. The assessed parties may thereafter pursue claims of contribution or indemnity in accord with such fault as may be determined by arbitration or other legal action.



Removal of facilitiesNoticeReimbursement, when.

If the department deems it necessary that a facility be removed from the highway for the safety of persons traveling thereon or for construction, alteration, improvement, or maintenance purposes, it shall give notice to the franchise holder to remove the facility at his or her expense and as the department orders. However, notwithstanding any contrary provision of law or of any existing or future franchise held by a public utility, the department shall pay or reimburse the owner for relocation or removal of any publicly, privately, or cooperatively owned public utility facilities when necessitated by the construction, reconstruction, relocation, or improvement of a highway that is part of the national system of interstate and defense highways for each item of cost for which the state is entitled to be reimbursed by the United States in an amount equal to at least ninety percent thereof under the provisions of section 123 of the federal aid highway act of 1958 and any other subsequent act of congress under which the state is entitled to be reimbursed by the United States in an amount equal to at least ninety percent of the cost of relocation of utility facilities on the national system of interstate and defense highways.

NOTES:

Reviser's note: As to the constitutionality of this section, see Wash. State Highway Com v. Pac. Nw. Bell Tel. Co., 59 Wn.2d 216, 367 P.2d 605 (1961).



Removal of facilitiesLimitation.

The provisions of RCW 47.44.030 authorizing the department to pay or reimburse the owner of a utility apply only to relocation or removal of utility facilities required by state construction contracts which are advertised for bids by the department after June 30, 1959.



Franchises across joint bridges.

Whenever any bridge exists on the route of any state highway and crosses any stream, body of water, gulch, navigable water, swamp, or other topographical formation constituting the boundary of this state or the boundary of a county, city, or town of this state and the bridge is owned or operated by this state jointly with any such county, city, or town, or with any municipal corporation of this state, or with such other state or with any county, city, or town of such other state, the department is empowered to join with the proper officials of the county, city, or town, or the municipal corporation of this state or of such other state or of such county, city, or town of such other state in granting franchises to persons or private or municipal corporations for the construction and maintenance on the bridge of water pipes, flumes, gas pipes, telephone, telegraph, and electric light and power lines and conduits, trams and railways, and any structures or facilities that are part of an urban public transportation system owned or operated by a municipal corporation, agency, or department of the state of Washington other than the department, or any other such facilities. All such franchises shall be granted in the same manner as provided for the granting of like franchises on state highways. Any revenue accruing to the state of Washington from the franchises shall be paid to the state treasurer and deposited to the credit of the fund from which this state's share of the cost of joint operation of the bridge is paid.

NOTES:

Urban public transportation system defined: RCW 47.04.082.



Permit for short distances.

(1) The department may grant a permit to construct or maintain on, over, across, or along any state highway any water, gas, telephone, telegraph, light, power, or other such facilities when they do not extend along the state highway for a distance greater than three hundred feet. The department may require such information as it deems necessary in the application for any such permit, and may grant or withhold the permit within its discretion. Any permit granted may be canceled at any time, and any facilities remaining upon the right-of-way of the state highway after thirty days written notice of the cancellation are an unlawful obstruction and may be removed in the manner provided by law.
(2) The holder of a permit granted under this section is financially responsible to the department for trenching work not completed within the period of the permit and for compensating for the loss of useful pavement life caused by trenching. In the case of common trenching operations, liability under this subsection will be assessed equally between the permit holders. The assessed parties may thereafter pursue claims of contribution or indemnity in accord with such fault as may be determined by arbitration or other legal action.



Penalties.

(1) Any person, firm, or corporation who constructs or maintains on, over, across, or along any state highway any water pipe, flume, gas pipe, telegraph, telephone, electric light, or power lines, or tram or railway, or any other such facilities, without having first obtained and having at all times in full force and effect a franchise or permit to do so in the manner provided by law is guilty of a misdemeanor. Each day of violation is a separate and distinct offense.
(2) Any person, firm, or corporation who constructs or maintains on, over, across, or along any state highway any water pipe, flume, gas pipe, telegraph, telephone, electric light or power lines, or tram or railway, or any other such facilities, without having first obtained and having at all times in full force and effect a franchise or permit to do so in the manner provided by law is liable for a civil penalty of one hundred dollars per calendar day beginning forty-five days from the date notice is given and until application is made for a franchise or permit or until the facility is removed as required by notice. The state shall give notice by certified mail that a franchise or permit is required or the facility must be removed and shall include in the notice sufficient information to identify the portion of right-of-way in question. Notice is effective upon delivery.
(3) If a person, firm or corporation does not apply for a permit or franchise within forty-five days of notice given in accordance with subsection (2) of this section or the state determines that the facility constructed or maintained without a permit or franchise would not be granted a permit or franchise, the state may order the facility to be removed within such time period as the state may specify. If the facility is not removed, the state, in addition to any other remedy, may remove the facility at the expense of the owner.
[ 1989 c 224 § 1; 1961 c 13 § 47.44.060. Prior: 1943 c 265 § 1; 1937 c 53 § 82; Rem. Supp. 1943 § 6400-82.]



ExceptionLeases for deployment of personal wireless service facilities.

This chapter does not apply to leases issued for the deployment of personal wireless service facilities as provided in RCW 47.04.045.



Measure of damages.

In any action for damages against the state of Washington, its agents, contractors, or employees by reason of damages to a utility or other facility located on a state highway, the damages are limited to the cost of repair of the utility or facility and are recoverable only in those instances where the utility or facility is authorized to be located on the state highway. However, the state is subject to the penalties provided in RCW 19.122.070 (1) and (2) only if the state has failed to give a notice meeting the requirements of RCW 19.122.030 to utilities or facilities that are authorized to be located on the state highway.



Broadband facilities and infrastructureCollaboration.

(1) The department is directed to adopt and maintain an agency policy that requires the department to proactively provide broadband facility owners with information about planned state highway projects to enable collaboration between broadband facility owners and the department to identify opportunities for the installation of broadband facilities during the appropriate phase of these projects when such opportunities exist.
(2) If no owners are ready or able to participate in coordination of the installation of broadband infrastructure concurrently with state highway projects, the department may enlist its contractors to install broadband conduit as part of road construction projects in order to directly benefit the transportation system and motor vehicle users by:
(a) Reducing future traffic impacts to the traveling public on the roadway;
(b) Supporting the vehicle miles traveled reduction and congestion management goals of the state by allowing for more telework; or
(c) Proactively preparing the transportation system for the widespread development and use of autonomous vehicles.
(3) Broadband facility owners must first obtain a franchise granted by the department pursuant to RCW 47.44.010 and 47.44.020 before installing broadband facilities within the department's conduit. The costs for installation and maintenance of such broadband facilities shall be the responsibility of the broadband facility owner. The department may adopt rules establishing a fee schedule for occupancy of broadband facilities within the department's conduit consistent with federal law.
(4) As used in this section:
(a) "Broadband conduit" means a conduit used to support broadband infrastructure, including fiber optic cables.
(b) "Broadband infrastructure" has the same meaning as in RCW 43.330.530.

NOTES:

FindingsIntent2021 c 258: "(1) The legislature finds that:
(a) Increasing broadband access to unserved areas of the state provides an increasingly essential public benefit to the citizens of Washington by allowing full participation in society and the modern economy, and enabling access to health care, education, the use of other technologies, and essential services, including public safety;
(b) Facilitating and accelerating affordable and quality statewide broadband access for all Washingtonians will require sustained investment, research, local and community participation, and the formation of strategic partnerships between private, public, and nonprofit entities;
(c) Providing for additional coordination and removal of barriers across sectors to increase broadband access in unserved areas is in the best interest of the state;
(d) Maximizing the use of rights-of-way during construction or repair of transportation systems offers cost-effective opportunities for extending and improving broadband and high-speed internet connections throughout the state; and
(e) Expanding broadband access, especially broadband conduit along roadways, provides commensurate benefits to the transportation system and motor vehicle users in terms of reducing the use of roads and alleviating congestion by allowing for more telework, and laying the foundation for a transportation system increasingly more reliant on autonomous vehicles.
(2) The legislature also finds that there is a need to utilize near-term options and opportunities along state highway rights-of-way to drive broadband network expansion and for undertaking longer-term planning of activities to develop additional paths to facilitate the expansion of broadband networks along state highway rights-of-way.
(3) Therefore, the legislature intends to expedite the expansion of broadband access to unserved areas throughout the state by increasing broadband infrastructure coordination, including through collaboration between the statewide broadband office and the department of transportation; proactively facilitating installation and improvement of infrastructure during state road construction projects; and studying recommendations related to the department of transportation's role in broadband service expansion efforts." [ 2021 c 258 § 1.]