For the purpose of this ordinance, the following terms, phrases, words and their derivations shall have the meaning given in this section. When not inconsistent with the context, words used in the present tense include the future tense, words in the plural number include the singular number, and words in the singular number include the plural number. The word "shall" is mandatory and "may" is permissive. Words not defined in this section shall be given their common and ordinary meaning.
CITY. The City of Albuquerque, a municipal corporation of the State of New Mexico.
CITY CLERK. The City Clerk of the City of Albuquerque or a designated representative.
COMPANY. Is and refers to American Communication Services of Albuquerque, Inc. ("ACSI").
COUNCIL. The legislative body of the City of Albuquerque sometimes referred to as "City Council."
DIRECTOR. The Director of the Public Works Department of the City of Albuquerque or his\her designee.
FACILITIES. Are and refer to and include, but are not limited to, plant, works, systems, improvements and equipment owned, leased or otherwise used by the company such as poles, wires, fixtures, equipment, underground circuits and conduit in public rights-of-way and other property necessary or convenient for the transmission and distribution of telecommunication service where such poles, wires, fixtures, equipment, underground circuits and conduit and other property necessary or convenient for the transmission and distribution of telecommunication service are located within rights-of-way and public places.
FRANCHISE. The authorization granted herein to rent and use rights-of-way and public places to construct, operate, and maintain company facilities in the city or any portion or portions thereof.
GROSS REVENUE.
(1) Includes any and all revenue, exclusive of gross receipts tax and exclusive of any tax passed through to consumers on behalf of governmental agencies, received by the company for services provided to customers through use of the facilities, provided by the company, including but not limited to:
(a) All telecommunications service revenues charged on a flat rate basis over facilities;
(b) One half of all telecommunications service revenues charged on a flat rate basis over facilities outside the city limits, but within Bernalillo County;
(c) All telecommunications service revenues charged on a usage sensitive or mileage basis over facilities;
(d) One half of all telecommunications service revenues charged on a usage sensitive or mileage basis over facilities outside the city limits, but within Bernalillo County;
(e) All revenues from installation service charges;
(f) All revenues from connection or disconnection fees;
(g) All revenues from penalties or charges to customers for checks returned from banks, net of back costs paid;
(h) All revenues from equipment sold or rented to customers upon customers' premises;
(i) All revenues from joint pole or conduit use;
(j) All revenues from charges for access to local and long distance networks. However, gross revenue shall not include such access revenues if a local exchange carrier has paid a franchise fee on any such revenue;
(k) All revenues from authorized rental, lease, resale or use of any portion of the company's network in the city, including plant, facilities or capacity leased to others;
(l) Recoveries of bad debts previously written off and revenues from the sale or assignment of bad debts. Gross revenues may be adjusted for net write-off of uncollectible accounts computed on the average annual rate for the entire company;
(m) All revenues from enhanced data service;
(n) All interconnect revenues from interexchange carriers. However, gross revenue shall not include interconnection services revenues received from any source if a local exchange carrier has paid a franchise fee on any such revenue;
(o) All revenues from co-location connection fees; and
(p) The company acknowledges that transport services provided to an affiliate or subsidiary will be subject to an actual or imputed charge comparable to charges to nonaffiliated customers. Such actual or imputed charges to affiliates or subsidiaries shall be reflected in gross revenues of the company for purpose of calculating the franchise fee owed. This ordinance does not authorize affiliates or subsidiaries to undertake telecommunication services as contemplated by this ordinance.
(2) The company is not required to measure each category of revenues separately; however, in the event of an audit by the city, the company will be required to provide an appropriate justification for amounts reported as gross revenues under this section.
(3)
GROSS REVENUE shall not include proceeds from the sale of bonds, mortgages or other evidence of indebtedness, securities or stocks. Gross receipts taxes are not included in the above definition of gross revenue, and, therefore, are not included in the calculation of the franchise fee due under this ordinance.
(4) The company warrants that, as of the effective date of this ordinance, all services of the company will be provided through facilities located within the limits of the city or Bernalillo County. In accordance with this section and § 13-4-7-13 herein, the company agrees to give the city not less than 60 days notice of its intent to extend its facilities, and thus its services, outside of Bernalillo County.
LINE EXTENSION. Any extension of distribution or transmission facilities into areas within the boundaries of the city not then served by the company.
MAYOR. The Mayor of the City of Albuquerque or his/her designated representative.
PUBLIC PLACES. All sidewalks, alleys, or other public ways and any and all public sources, spaces, grounds and buildings of the city within the city limit.
REASONABLE ATTORNEY FEES. Charges for legal representation as may be incurred by the city.
RIGHTS-OF-WAY. All present and future streets, avenues, highways, alleys, bridges and public ways, (excluding railroad rights-of-way, parks and airport property) of the city within the city limit.
TELECOMMUNICATIONS SERVICE.
(1) Any switched or other one-way or two-way transmission of voice or data, including but not necessarily limited to:
(a) Services interconnecting interexchange carriers for the purpose of any one-way or two-way transmission of voice or data;
(b) Services connecting interexchange carriers or competitive access carriers to local exchange providers for the purpose of any one-way or two-way transmission of voice or data;
(c) Services connecting interexchange carriers to any entity, other than another interexchange carrier or the local exchange provider for the purpose of any one-way or two-way transmission of voice or data;
(d) Service providing private line point-to-point service for end users for the purpose of any one-way or two-way transmission of voice or data;
(e) Nonentertainment video, video conferencing or point-to-point private line service; or
(f) Subject to the exclusions in divisions (2) through (4) below, any service regulated by state regulatory agencies or the Federal Communications Commission ("FCC") which the state agency or FCC has authorized the company to provide, if the company has provided advance notice of same to city.
(2)
TELECOMMUNICATIONS SERVICE shall not include local exchange telephone services or other services directly regulated by the New Mexico State Corporation Commission ("SCC"). Before proposing to provide local exchange telephone services in the city, the company agrees to obtain prior SCC approval to provide that service, and to obtain a separate franchise from the city for the provision of such local exchange telephone service.
(3)
TELECOMMUNICATIONS SERVICE shall not include cable services as defined in Title 47, Chapter 5. Subchapter V-A of the United States Code, as amended (47 USCA § 521, et seq.) or as recognized by the FCC. Before proposing to provide such cable services in the city, the company agrees to obtain a separate franchise from the city for the provision of this service.
(4)
TELECOMMUNICATIONS SERVICE shall not include video dial tone or personal communication service. However, in the event the company desires to provide such service, it agrees to, as part of any franchise authorizing provision of that service, to pay a separate fee to the city for the provision of video dial tone, personal communication service or like service.
Notwithstanding the above, and subject to the payment of franchise fees, the company shall have the right under this ordinance to provide, by means of its facilities, transport services for the bulk transport of transmissions signals, whether digital or analog, and whether voice, video or data, that are in part or in whole a local exchange telephone service, a cable service, as defined above, a video dial tone and a personal communication service, to any company authorized to provide such services by the city, the State of New Mexico, or federal government authority having jurisdiction over such services.
TREASURER. The Treasurer of the City of Albuquerque.
(Ord. 50-1995)