(a) Telecommunications franchise. A telecommunications franchise shall be required of any telecommunications carrier who desires to occupy public ways of the municipality and to provide telecommunications services to any person or area in the municipality.
(b) Franchise application. Any person that desires a telecommunications franchise pursuant to this section shall file an application with the municipality which shall include the following information:
(1) The identity of the franchise application, including all affiliates of the applicant;
(2) A description of the telecommunications services that are or will be offered or provided by the franchise applicant over its existing or proposed facilities;
(3) A description of the transmission medium that will be used by the franchisee to offer or provide such telecommunications services;
(4) Preliminary engineering plans, specifications and a network map of the facilities to be located within the municipality, all in sufficient detail to identify:
A. The location and route requested for applicant’s proposed telecommunications facilities;
B. The location of all overhead and underground public utility, telecommunication, cable, water, sewer drainage and other facilities in the public way along the proposed route;
C. The location(s), if any, for interconnection with the telecommunications facilities of other telecommunications carriers; and
D. The specific trees, structures, improvements, facilities and obstructions, if any, that applicant proposes to temporarily or permanently remove or relocate.
(5) If applicant is proposing to install overhead facilities, evidence that surplus space is available for locating its telecommunications facilities on existing utility poles along the proposed route;
(6) If applicant is proposing an underground installation in existing ducts or conduits within the public ways, information in sufficient detail to identify:
A. The excess capacity currently available in such ducts or conduits before installation of applicant’s telecommunications facilities; and
B. The excess capacity, if any, that will exist in such ducts or conduits after installation of applicant’s telecommunications facilities.
(7) If applicant is proposing an underground installation within new ducts or conduits to be constructed within the public ways:
A. The location proposed for the new ducts or conduits; and
B. The excess capacity that will exist in such ducts or conduits after installation of applicant’s telecommunications facilities.
(8) A preliminary construction schedule and completion dates;
(9) A preliminary traffic control plan in accordance with the ODOT Manual on Uniform Traffic Control Devices;
(10) Financial statements prepared in accordance with generally accepted accounting principles demonstrating the applicant’s financial ability to construct, operate, maintain, relocate and remove the facilities;
(11) Information in sufficient detail to establish the applicant’s technical qualifications, experience and expertise regarding the telecommunications facilities and services described in the application;
(12) Information to establish that the applicant has obtained all other governmental approvals and permits to construct and operate the facilities and to offer or provide the telecommunications services;
(13) Whether the applicant intends to provide cable service, video dialtone service or other video programming service, and sufficient information to determine whether such service is subject to cable franchising.
(14) An accurate map showing the location of any existing telecommunications facilities in the municipality that applicant intends to use or lease;
(15) A description of the services or facilities that the applicant will offer or make available to the municipality and other public, educational and governmental institutions;
(16) A description of applicant’s access and line extension policies;
(17) The area or areas of the municipality the applicant desires to serve and a schedule for build-out to the entire franchise area;
(18) All fees, deposits or charges required pursuant to § 872.13 of this chapter; and
(19) Such other and further information as may be requested by the Municipal Manager.
(c) Determination by the municipality. Within 150 days after receiving a complete application under division (b) hereof, the Municipal Manager shall issue a written determination granting or denying the application in whole or in part, applying the following standards. If the application is denied, the written determination shall include the reasons for denial.
(1) The financial and technical ability of the applicant.
(2) The legal ability of the applicant.
(3) The capacity of the public ways to accommodate the applicant’s proposed facilities.
(4) The capacity of the public ways to accommodate additional utility and telecommunications facilities if the franchise is granted.
(5) The damage or disruption, if any, of public or private facilities, improvements, service, travel or landscaping if the franchise is granted.
(6) The public interest in minimizing the cost and disruption of construction within the public ways.
(7) The service that applicant will provide to the community and region.
(8) The effect, if any, on public health, safety and welfare if the franchise requested is granted.
(9) The availability of alternate routes and/or locations for the proposed facilities.
(10) Applicable federal and state telecommunications laws, regulations and policies.
(11) Such other factors as may demonstrate that the grant to use the public ways will serve the community interest.
(d) Agreement. No franchise shall be granted hereunder unless the applicant and the municipality have executed a written agreement setting forth the particular terms and provisions under which the franchise to occupy and use public ways of the municipality will be granted.
(e) Nonexclusive grant. No franchise granted under this section shall confer any exclusive right, privilege, license or franchise to occupy or use the public ways of the municipality for delivery of telecommunications services or any other purposes.
(f) Term of grant. Unless otherwise specified in a franchise agreement, a telecommunications franchise granted hereunder shall be valid for a term of ten years.
(g) Rights granted. No franchise granted under this section shall convey any right, title or interest in the public ways, but shall be deemed a franchise only to use and occupy the public ways for the limited purposes and term stated in the grant. Further, no franchise shall be construed as any warranty of title.
(h) Franchise territory. A telecommunications franchise granted under this section shall be limited to the specific geographic area of the municipality to be served by the franchise grantee, and the specific public ways necessary to serve such areas.
(i) Location of facilities. Unless otherwise specified in a franchise agreement, all facilities shall be constructed, installed and located in accordance with the following terms and conditions.
(1) Telecommunications facilities shall be installed within an existing underground duct or conduit whenever excess capacity exists within such utility facility.
(2) A franchisee with permission to install overhead facilities shall install its telecommunications facilities on pole attachments to existing utility poles only, and then only if surplus space is available.
(3) Whenever any existing electric utilities, cable facilities or telecommunications facilities are located underground within a public way of the municipality, a franchisee with permission to occupy the same public way must also locate its telecommunications facilities underground.
(4) Whenever any new or existing electric utilities, cable facilities or telecommunications facilities are located or relocated underground within a public way of the municipality, a grantee that currently occupies the same public way shall relocate its facilities underground within a reasonable period of time, which shall not be later than the end of the grant term. Absent extraordinary circumstances or undue hardship as determined by the Municipal Engineer, such relocation shall be made concurrently to minimize the disruption of the public ways.
(5) Whenever new telecommunications facilities will exhaust the capacity of a public street or utility easement to reasonably accommodate future telecommunications carriers or facilities, the grantee shall provide additional ducts, conduits, manholes and other facilities for nondiscriminatory access to future carriers.
(j) Construction permits. All franchisees are required to obtain construction permits for telecommunications facilities as required in § 872.14 of this chapter provided, however, that nothing in this section shall prohibit the municipality and a franchisee from agreeing to alternative plan review, permit and construction procedures in a franchise agreement, provided such alternative procedures provide substantially equivalent safeguards for responsible construction practices.
(k) Compensation to municipality. Each franchise granted under this section is subject to the municipality’s right, which is expressly reserved, to annually fix a fair and reasonable compensation to be paid for the property rights granted to the franchisee; provided, nothing in this section shall prohibit the municipality and a franchisee from agreeing to the compensation to be paid.
(l) Nondiscrimination. A franchisee shall make its telecommunications services available to any customer within its franchise area who shall request such service without discrimination as to the terms, conditions, rates or charges for grantee’s services; provided, however, that nothing in this section shall prohibit a franchisee from making any reasonable classifications among differently situated customers.
(m) Service to the municipality. A franchisee shall make its telecommunications services available to the municipality at its most favorable rate for similarly situated users, unless otherwise provided in a license or franchise agreement.
(n) Amendment of grant.
(1) A new franchise application and grant shall be required of any telecommunications carrier that desires to extend its franchise territory or to locate its telecommunications facilities in public ways of the municipality which are not included in a franchise previously granted under this chapter.
(2) If ordered by the municipality to locate or relocate its telecommunications facilities in public ways not included in a previously granted franchise, the municipality shall grant a franchise amendment without further application.
(o) Renewal applications. A grantee that desires to renew its franchise under this chapter shall, not more than 240 days nor less than 150 days before expiration of the current franchise, file an application with the municipality for renewal of its franchise which shall include the following information:
(1) The information required pursuant to division (b) of this section; and
(2) Any information required pursuant to the franchise agreement between the municipality and the grantee.
(p) Renewal determinations. Within 150 days after receiving a complete application under division (o) hereof, the Municipal Manager shall issue a written determination granting or denying the renewal application in whole or in part, applying the following standards. If the renewal application is denied, the written determination shall include the reasons for non-renewal.
(1) The financial and technical ability of the applicant.
(2) The legal ability of the applicant.
(3) The continuing capacity of the public ways to accommodate the applicant’s existing facilities.
(4) The applicant’s compliance with the requirements of this chapter and the franchise agreement.
(5) Applicable federal, state and local telecommunications laws, rules and policies.
(6) Such other factors as may demonstrate that the continued grant to use the public ways will serve the community interest.
(q) Obligation to cure as a condition of renewal. No franchise shall be renewed until any ongoing violations or defaults in the grantee’s performance of the franchise agreement, or of the requirements of this chapter, have been cured, or a plan detailing the corrective action to be taken by the grantee has been approved by the municipality.
(Ord. 00-O-1838, passed 10-3-2000)