CHAPTER 5
TELECOMMUNICATIONS USE OF RIGHTS OF WAY
TELECOMMUNICATIONS USE OF RIGHTS OF WAY
SECTION:
7-5-1: Findings And Intent; Scope
7-5-2: Definitions
7-5-3: Franchise Required
7-5-4: Compensation And Other Payments
7-5-5: Franchise Applications
7-5-6: Construction And Technical Requirements
7-5-7: Franchise And License; Procedure For Transfer
7-5-8: Oversight And Regulation
7-5-9: Rights Of Town
7-5-10: Obligation To Notify
7-5-11: General Provisions
7-5-12: Federal, State And Town Jurisdiction
A. Declaration Of Findings And Intent:
1. Rights Of Way: The town finds that the rights of way within the town:
a. Are critical to the travel and transport of persons and property in the business and social life of the town;
b. Are intended for public uses and must be managed and controlled consistent with that intent;
c. Can be partially occupied by the facilities of utilities and other public service entities delivering utility and public services rendered for profit, to the enhancement of the health, welfare and general economic well being of the town and its citizens; and
d. Are a unique and physically limited resource requiring proper management to maximize the efficiency and to minimize the costs to the taxpayers of the foregoing uses and to minimize the inconvenience to and negative effects upon the public from such facilities' construction, placement, relocation and maintenance in the rights of way.
2. Compensation: The town finds that the town should receive fair and reasonable compensation for use of the rights of way.
3. Local Concern: The town finds that while telecommunications systems are in part an extension of interstate commerce, their operations also involve rights of way, municipal franchising and vital business and community service, which are of local concern.
4. Promotion Of Telecommunications Services: The town finds that it is in the best interests of its taxpayers and citizens to promote the rapid development of telecommunications services, on a nondiscriminatory basis, responsive to community and public interest, and to assure availability for municipal, educational and community services.
5. Franchise Standards: The town finds that it is in the interests of the public to franchise and to establish standards for franchising providers in a manner that:
a. Fairly and reasonably compensates the town on a competitively neutral and nondiscriminatory basis as provided herein;
b. Encourages competition by establishing terms and conditions under which providers may use the rights of way to serve the public;
c. Fully protects the public interests and the town from any harm that may flow from such commercial use of rights of way;
d. Protects the police powers and rights of way management authority of the town, in a manner consistent with federal and state law;
e. Otherwise protects the public interests in the development and use of the town infrastructure;
f. Protects the public's investment in improvements in the rights of way; and
g. Ensures that no barriers to entry of telecommunications providers are created and that such franchising is accomplished in a manner that does not prohibit or have the effect of prohibiting telecommunication services, within the meaning of the telecommunications act of 1996 ("act") [Pub.L. 104-104].
6. Power To Manage Rights Of Way: The town adopts this telecommunications chapter pursuant to its power to manage the rights of way, pursuant to common law, the Utah constitution and statutory authority, and receive fair and reasonable, compensation for the use of rights of way by providers as expressly set forth by section 253 of the act.
B. Scope: This chapter shall provide the basic local scheme for providers of telecommunications services and systems that require the use of the rights of way, including providers of both the system and service, those providers of the system only, and those providers who do not build the system but who only provide services. This chapter shall apply to all future providers and to all providers in the town prior to the effective date hereof, whether operating with or without a franchise as set forth in section 7-5-3 of this chapter.
C. Excluded Activities:
1. Cable TV: This chapter shall not apply to cable television operators otherwise regulated by a cable television ordinance.
2. Wireless Services: This chapter shall not apply to personal wireless service facilities.
3. Provisions Applicable To Excluded Providers: Providers excused by other law that prohibits the town from requiring a franchise shall not be required to obtain a franchise, but all of the requirements imposed by this chapter through the exercise of the town's police power and not preempted by other law shall be applicable. (Ord. 1997-O-5, 12-11-1997)
For purposes of this chapter, the following terms, phrases, words and their derivatives shall have the meanings set forth in this section, unless the context clearly indicates that another meaning is intended. Words used in the present tense include the future tense, words in the single number include the plural number, words in the plural number include the singular. The words "shall" and "will" are mandatory, and "may" is permissive. Words not defined shall be given their common and ordinary meaning.
APPLICATION: The process by which a provider submits a request and indicates a desire to be granted a franchise to utilize the rights of way of all, or a part, of the town. An "application" includes all written documentation, verbal statements and representations, in whatever form or forum, made by a provider to the town concerning: the construction of a telecommunications system over, under, on or through the rights of way; the telecommunications services proposed to be provided in the town by a provider; and any other matter pertaining to a proposed system or service.
COMPLETION DATE: The date that a provider begins providing services to customers in the town.
CONSTRUCTION COSTS: All costs of constructing a system, including make ready costs, other than engineering fees, attorney or accountant fees, or other consulting fees.
CONTROL OR CONTROLLING INTEREST: Actual working control in whatever manner exercised, including, without limitation, working control through ownership, management, debt instruments or negative control, as the case may be, of the system or of a provider. A rebuttable presumption of the existence of control or a controlling interest shall arise from the beneficial ownership, directly or indirectly, by any person or group of persons acting in concert of more than twenty five percent (25%) of any provider (which person or group of persons is hereinafter referred to as "controlling person"). "Control" or "controlling interest", as used herein, may be held simultaneously by more than one person or group of persons.
FCC: The federal communications commission, or any successor thereto.
FRANCHISE: The rights and obligation extended by the town to a provider to own, lease, construct, maintain, use or operate a system in the rights of way within the boundaries of the town. Any such authorization, in whatever form granted, shall not mean or include: a) any other permit or authorization required for the privilege of transacting and carrying on a business within the town required by the ordinances and laws of the town; b) any other permit, agreement or authorization required in connection with operations on rights of way or public property, including, without limitation, permits and agreements for placing devices on or in poles, conduits or other structures, whether owned by the town or a private entity, or for excavating or performing other work in or along the rights of way.
FRANCHISE AGREEMENT: A contract entered into in accordance with the provisions of this chapter between the town and a franchisee that sets forth, subject to this chapter, the terms and conditions under which a franchise will be exercised.
GROSS REVENUE: Includes all revenues of a provider that may be included as gross revenue within the meaning of Utah Code Annotated title 11, chapter 26, as amended.
INFRASTRUCTURE PROVIDER: A person providing to another, for the purpose of providing telecommunication services to customers, all or part of the necessary system which uses the rights of way.
OPEN VIDEO SERVICE: Any video programming services provided to any person through the use of rights of way, by a provider that is certified by the FCC to operate an open video system pursuant to section 651 et seq., of the telecommunications act (to be codified at 47 USC title VI, part V), regardless of the system used.
OPEN VIDEO SYSTEM: The system of cables, wires, lines, towers, wave guides, optic fiber, microwave, laser beams, and any associated converters, equipment or facilities designed and constructed for the purpose of producing, receiving, amplifying or distributing open video services to or from subscribers or locations within the town.
OPERATOR: Any person who provides service over a telecommunications system and directly or through one or more persons owns a controlling interest in such system, or who otherwise controls or is responsible for the operation of such a system.
ORDINANCE OR TELECOMMUNICATIONS ORDINANCE: This telecommunications ordinance concerning the granting of franchises in and by the town for the construction, ownership, operation, use or maintenance of a telecommunications system.
PSC: The public service commission, or any successor thereto.
PERSON: Includes any individual, corporation, partnership, association, joint stock company, trust, or any other legal entity, but not the town.
PERSONAL WIRELESS SERVICES FACILITIES: Has the same meaning as provided in section 704 of the act (47 USC 332(c)(7)(c)), which includes what is commonly known as cellular and PSC services that do not install any system or portion of a system in the rights of way.
PROVIDER: An operator, infrastructure provider, reseller or system lessee.
RESELLER: Refers to any person that provides local exchange service over a system for which a separate charge is made, where that person does not own or lease the underlying system used for the transmission.
RIGHTS OF WAY: The surface of and the space above and below any public street, sidewalk, alley or other public way of any type whatsoever, now or hereafter existing as such within the town.
SIGNAL: Any transmission or reception of electronic, electrical, light or laser, or radio frequency energy or optical information, in either analog or digital format.
SYSTEM LESSEE: Refers to any person that leases a system or a specific portion of a system to provide services.
TELECOMMUNICATIONS: The transmission, between or among points specified by the user, of information of the user's choosing (e.g., data, video and voice), without change in the form or content of the information sent and received.
TELECOMMUNICATIONS SERVICE OR SERVICES: Any telecommunications services provided by a provider within the town that the provider is authorized to provide under federal, state and local law, and any equipment and/or facilities required for and integrated with the services provided within the town, except that these terms do not include "cable service" as defined in the cable communications policy act of 1984, as amended by the cable television consumer protection and competition act of 1992 (47 USC section 521 et seq.), and the telecommunications act of 1996.
TELECOMMUNICATIONS SYSTEM OR SYSTEM: All conduits, manholes, poles, antennas, transceivers, amplifiers and all other electronic devices, equipment, wire and appurtenances owned, leased or used by a provider, located in the rights of way and utilized in the provision of services, including fully digital or analog, voice, data and video imaging and other enhanced telecommunications services. Telecommunications system or systems also includes an open video system.
TOWN: The town of Alta, Utah.
WIRE: Fiber optic telecommunications cable, wire, coaxial cable, or other transmission medium that may be used in lieu thereof for similar purposes. (Ord. 1997-O-5, 12-11-1997)
Loading...