(A)
AFFILIATE. Each Person who falls into one or more of the following categories: (i) each Person having directly or indirectly, a controlling interest in a provider; (ii) each Person in which a Provider has, directly or indirectly, a controlling interest; (iii) each officer, director, general partner, limited partner holding an interest of five percent (5%) or more, joint venturer, or joint venture partner of a Provider; and (iv) each Person, directly or indirectly, controlling, controlled by, or under common control with the Provider—provided that AFFILIATE shall in no event mean any limited partner holding an interest of less than five percent (5%) of such Provider, or any creditor of such Provider solely by virtue of its status as a creditor and which is not otherwise an AFFILIATE by reason of owning a controlling interest in, being owned by, or being under common ownership, common management, or common control with such Provider.
(B)
APPLICANT. Any Person who files an application with the City under § § 13-4-10-3 in order to obtain the necessary permission to use the Public Rights-of-Way to provide Telecommunications Service within the City.
(C)
CITY. The City of Albuquerque, New Mexico, a home rule municipal corporation, or as appropriate, any board, bureau, authority, agency, commission, department or any other entity of the City of Albuquerque, or any authorized officer, official, employee, or agent thereof.
(D)
CITY CLERK. City Clerk of the City of Albuquerque or a designated representative.
(E)
CITY REQUIREMENTS. All laws, rules, regulations, policies, and directives of general application of the City of Albuquerque in effect at present or to be adopted in the future by the City Council or the City.
(F)
COUNCIL. The legislative body of the City of Albuquerque, sometimes referred to as CITY COUNCIL.
(G)
DIRECTOR OF PUBLIC WORKS or DIRECTOR. The Director of the Public Works Department of the City or his or her designee, charged with the administration of the Public Rights-of-Way.
(H)
EMERGENCY. Repair, restoration, or replacement of an existing structure made necessary because of a sudden unexpected event which has created a condition which is an immediate and continuing threat to the safety of property or persons or the operations of a Provider.
(I)
GROSS REVENUE.
(1) Includes all revenues derived directly or indirectly by a Provider from or in connection with the Telecommunications Services set forth in individual Municipal Authority and/or Franchise Contracts offered within the City through or by means of a Telecommunications Network within the City, exclusive of any Municipal Authority or Franchise Fee or tax passed through to consumers on behalf of governmental agencies, received by the Provider for services provided to customers through use of the Network.
GROSS REVENUE shall include any revenue received by a Provider or any Affiliate through any means which is intended to have the effect of evading the payment of compensation that would otherwise be paid to the City for a Municipal Authority or Franchise Contract granted pursuant to this ordinance.
(2)
GROSS REVENUE shall not include (i) proceeds from the sale of bonds, mortgages, or other evidence of indebtedness, securities, or stocks; or (ii) gross receipts taxes, bad debt write-offs, and customer credits; or (iii) revenue of any Affiliate or Provider from long distance service, commercial mobile radio service, cellular, personal communica-tions service, other wireless communications service, or directory advertising—provided that, unless otherwise provided in a Municipal Authority or Franchise Contract, GROSS REVENUE may include revenues received by a Provider or an Affiliate from (a) access fees, interconnection fees, or any other fees relating to or arising out of the wireless use of the Telecommunications Network (including the facilities and equipment of such Network) by any Person providing commercial mobile radio service, cellular, personal communications service, other wireless communications service; and (b) any services listed on Appendix “A.” Each of the above are not included in the definition of GROSS REVENUE and, therefore, are not included in the calculation of any fee due under a Municipal Authority.
(3)
GROSS REVENUE shall not include the wholesale revenue of any Provider to the extent that the Person providing such wholesale revenue to the Provider pays to the City, pursuant to an agreement with the City, an annual Municipal Authority Fee under § 13-4-10-4 of this ordinance, or an amount equivalent thereto, calculated on the basis of such Person's GROSS REVENUE (as defined in this ordinance) from the provision of Telecommunications Service in the City.
(4)
GROSS REVENUE shall be measured and monitored periodically.
(J)
MUNICIPAL AUTHORITY or FRANCHISE CONTRACT. The right granted by the City to rent and use Public Rights-of-Way to provide Telecommunications Service within the City, to the public, or to other Providers, as specified by the terms of such Municipal Authority or Franchise Contract.
(K)
PERSON. An individual, corporation, association, partnership, joint venture, or other legally recognized entity, whether for profit or not for profit, but shall not mean the City.
(L)
PROVIDER.
(1) Any Person who provides any Telecommunications Service within the City by means of: (i) a Telecommunications Network owned by such Person or its Affiliate; (ii) specifically identifiable facilities of a Telecommunications Network reserved or made available for the use of such Person or its Affiliate under a lease or any other arrangement for a term longer than 120 days; or (iii) facilities of a Telecommunications Network not owned by such Person or its Affiliate and not specifically identifiable but obtained from another Person (including another Provider) if the use of such facilities is continuing and substantial. A Person owning or operating telecommunications facilities that merely pass through the City and such Person and facilities do not offer Telecommunications Service to subscribers within the City shall not be subject to this ordinance, provided that Person has received other appropriate authorization from the City to rent or occupy the Public Rights-of-Way.
(2) Except to the extent that a
PROVIDER or a Person uses the Public Rights-of-Way, a PROVIDER or any Person which provides commercial mobile radio service, cellular, personal communications service, or other wireless communications service shall not be subject to this ordinance with respect to such service.
(M)
PUBLIC RIGHTS-OF-WAY. Present and future surface, air space above the surface (but not including air space used by wireless carriers for the transmission of telecommunications services), and area below the surface of any public street, highway, lane, path, alley, sidewalk, boulevard, drive, bridge, tunnel, easement, or similar public property in which the City holds any property interest or exercises any rights of management or control and which, consistent with the purposes for which it was acquired or dedicated, may be used for the installation, maintenance, and operation of a Telecommunications Network.
(N)
PUBLIC STRUCTURES. Any building or structure owned by the City.
(O)
SYSTEM or TELECOMMUNICATIONS SYSTEM. The TELECOMMUNICATIONS SYSTEM which is to be constructed, operated, and maintained by a Provider, pursuant to this ordinance and an agreement between the City and the Provider, including without limitation all real property and interests in real property, all tangible and intangible personal property, buildings, offices, furniture, customer lists, cable, wires, optical fibers, and amplifiers, and all other electronic devices, equipment, and facilities used in connection therewith, and all rights, contracts, and understandings with regard to any matter related thereto.
(P)
TELECOMMUNICATIONS NETWORK or NETWORK. Any System which includes facilities and/or equipment placed in the Public Rights-of-Way and used to provide any Telecommunications Service.
(Q)
TELECOMMUNICATIONS.
(1) All transmissions between or among points specified by the user of information of the user's choosing (whether voice, video, or data), without change in the form or content of the information as sent and received, where such transmissions are accomplished by means of a Telecommunications Network.
(2)
TELECOMMUNICATIONS shall not include cable services as defined in Title 47, Chapter 5, Subchapter V-A of the United States Code, as amended (47 USC § 521 et seq.) and shall not include telecommunications services provided and used by a public utility as that term is defined at § 62-3-3(G) NMSA 1978, or successor statute, for (i) its internal system communication needs; and (ii) provided directly or indirectly to its customers, including but not limited to electronic meter reading, load control, demand side management, power quality monitoring, and other activities related to the delivery of electricity or natural gas.
(R)
TELECOMMUNICATIONS SERVICE. The offering of Telecommunications within the City for a fee directly to the public, or to such classes of users as to be effectively available directly to the public. Examples of TELECOMMUNICATIONS SERVICE are attached in Appendix “A.”
(Ord. 20-1997)