CHAPTER 111: COMMUNICATION FACILITIES; FRANCHISE
Section
General Provisions
   111.01   Title
   111.02   Jurisdiction; management
   111.03   Regulatory fees; compensation not a tax
   111.04   Definitions
   111.05   Governing law
   111.06   Written agreement
   111.07   Non-exclusive grant
Registration
   111.20   Scope
   111.21   Registration required
   111.22   Registration fee
   111.23   Exemptions from registration
Communications Franchise Agreements Required
   111.35   Registration, application, agreement
   111.36   Application
   111.37   Determination
   111.38   Scope of agreement
   111.39   Term of grant
   111.40   Franchise territory
   111.41   Fees
   111.42   New facilities; services
   111.43   Term renewals
   111.44   Renewal determinations
   111.45   Obligation to cure
   111.46   Assignment, transfer of franchise
   111.47   Termination of franchise
   111.48   Notice, duty to cure
   111.49   Public hearing
   111.50   Standards for termination; lesser sanction
   111.51   Other city costs
   111.52   Damage to facilities
   111.53   Duty to provide information
   111.54   Use of provider’s services, facilities
   111.55   Compensation for city property
   111.56   Cable franchise
   111.57   Leased capacity
   111.58   Insurance
   111.59   General indemnification
   111.60   Performance surety
 
   111.99   Penalty
Cross-reference:
   Regulations on the construction of communication facilities, location of facilities, see §§ 153.01 through 153.15, and 153.30 through 153.34
GENERAL PROVISIONS
§ 111.01 TITLE.
   This chapter shall be referred to as the “Right-of-Way Management Ordinance.”
(Ord. 557-2019, passed 12-9-2020)
§ 111.02 JURISDICTION; MANAGEMENT.
   (A)   The city has jurisdiction and exercises regulatory management authority over all city public rights-of-way pursuant to the City Charter and state law. The city’s purpose for exerting its management authority over the public rights-of-way is to protect and efficiently manage the public’s resources and to ensure fair and non-discriminatory access to the public right-of-way.
   (B)   The city has jurisdiction and exercises regulatory management over each public right-of-way, whether the city has a fee, easement, or other legal interest in the right-of-way. The city has jurisdiction and regulatory management of each right-of-way, whether the legal interest in the right-of-way was obtained by grant, dedication, prescription, reservation, condemnation, annexation, foreclosure, or other means.
   (C)   No person may occupy or encroach on a public right-of-way without the permission of the city. The city grants permission to use rights-of-way through franchise agreements and construction permits.
   (D)   The exercise of jurisdiction and regulatory management of a public right-of-way by the city is not official acceptance of the right-of-way, and does not obligate the city to maintain or repair any part of the right-of-way.
   (E)   The city retains the right and privilege to cut or move any communications facilities located within the public rights-of-way as the city may determine to be necessary, appropriate, or useful in response to a public health or safety emergency.
   (F)   The city desires the ready availability of communication services for all its residential and commercial citizens by providing infrastructure and amenities that make the city a better place to do business. The city is committed to authorizing the private access and use of the public rights-of-way for such services so long as such use is consistent with, and does not unduly burden or interfere with, the principal purpose of the public ways, which is to facilitate the free transit of persons and goods in commerce.
   (G)   The city holds the health, safety, quality of life, and opportunities to prosper, as well as such physical assets such as the public right-of-way, in trust for all of its citizens, and has a fiduciary responsibility to assure that any use of city resources, especially its public ways, benefits all of the citizens and, where it is deemed appropriate, allows for the recovery of a fair and reasonable compensation from private entities using public resources.
   (H)   If communications providers make “percentage of gross revenue” payments, which include only a portion of the communications services they provide within the city, then they are not compensating the city fairly for their private use and enjoyment of public assets and resources. Such communications providers may derive an unfair advantage, and their failure to compensate may place similarly-situated communications providers in an inferior and unfair competitive position. Unfair competition does not foster the city’s desired technological and business growth. Among the purposes of this chapter is not only to ensure that the public is properly compensated for the private use and enjoyment of city assets and resources, but also to ensure that all similarly-situated communications providers are treated similarly and fairly in order to foster technological growth and innovation.
(Ord. 557-2019, passed 12-9-2020)
§ 111.03 REGULATORY FEES; COMPENSATION NOT A TAX.
   (A)   The fees and costs addressed in this chapter, and any compensation charged and paid for regarding the use of the public rights-of-way addressed in this chapter, are separate from and in addition to any and all other federal, state, local, and city fees, taxes, or charges as may be levied, imposed, or due from a communications provider, its customers or subscribers, or on account of the lease, sale, delivery, or transmission of communications services.
   (B)   The city has determined that any fee provided for by this chapter is not subject to the property tax limitations of Article XI, §§ 11 and 11b of the State Constitution. These fees are not imposed on property or property owners.
   (C)   The fees and costs provided for in this chapter are subject to applicable federal and state laws.
(Ord. 557-2019, passed 12-9-2020)
§ 111.04 DEFINITIONS.
   For the purpose of this chapter, the following definitions shall apply unless the context clearly indicates, or requires, a different meaning.
   CABLE ACT. The Cable Communications Policy Act of 1984, 47 U.S.C. §§ 521 et seq.
   CABLE SERVICE. To be interpreted consistent with federal law, and means the one-way transmission to subscribers of video programming or other programming service and subscriber interaction, if any, required for the selection or use of such video programming or other programming service.
   CABLE SERVICE PROVIDER. Any provider of cable service.
   CITY. The City of Falls City, an Oregon municipal corporation, and individuals authorized to act on the city’s behalf.
   CITY COUNCIL. The elected governing body of the city.
   CITY PROPERTY. All real property owned by the city and all property held in a proprietary capacity by the city, but does not include PUBLIC RIGHTS-OF-WAY and UTILITY EASEMENTS, as defined herein.
   COMMUNICATIONS FACILITIES or FACILITIES. All plant, equipment, and systems, other than customer premises equipment, used by any communications provider. For the purposes of this chapter, facilities used by cable service providers to provide cable service are COMMUNICATIONS FACILITIES.
   COMMUNICATIONS PROVIDER(S) or PROVIDER(S). Any provider of communications services and includes, but is not limited to every person who directly or indirectly owns, controls, operates, or manages communications facilities within the city, and cable service providers.
   COMMUNICATIONS SERVICE(S) or SERVICE(S). Any service provided for the purpose of transmission of information including, but not limited to, voice, video, or data, without regard to the transmission protocol employed, whether or not the transmission medium is owned by the provider itself. COMMUNICATIONS SERVICES includes all forms of telephone services and voice, video, data, or information transport, and expressly includes cable service offered by a cable service provider, but does not include:
      (1)   OPEN VIDEO SYSTEM SERVICE, as defined in 47 C.F.R. part 76;
      (2)   Private communications system services provided without using the public rights-of-way;
      (3)   Over-the-air radio or television broadcasting to the public-at-large from facilities licensed by the Federal Communications Commission, or any successor thereto; and
      (4)   Direct-to-home satellite service within the meaning of § 602 of the Telecommunications Act, being Pub. Law No. 104-104, Title VI, § 602, February 8, 1996, 110 Stat. 144, 47 U.S.C. § 152, note.
   CONDUIT. Any structure, or portion thereof, containing one or more ducts, conduits, manholes, bolts, cables, fiber, or other infrastructure used by or for any telegraph, telephone, electrical utility, conductors, or cable service.
   CONSTRUCTION. Any activity in the public rights-of-way resulting in physical change thereto, including excavation or placement of structures, but excluding routine maintenance or repair of existing facilities.
   CONTROL. Actual working control in whatever manner exercised.
   DAYS. Calendar days, unless otherwise specified.
   DUCT. A single enclosed raceway for conductors or cable.
   EMERGENCY. The meaning provided for in O.R.S. 401.025.
   FACILITIES. See COMMUNICATIONS FACILITIES, as defined herein.
   FEDERAL COMMUNICATIONS COMMISSION. The Federal Administrative Agency, or its lawful successor, authorized to regulate and oversee communications or cable service providers on a national level.
   FRANCHISE or FRANCHISE AGREEMENT. An agreement between the city and a communications provider which grants a privilege to the communications provider to use the public right-of-way within the city for a limited, dedicated purpose, and in return for specific compensation.
   FRANCHISEE. A communications provider who is a non-breaching party to an unexpired franchise agreement.
   OPUC. The statutorily created state agency in the state responsible for licensing and regulation of certain communications providers as set forth in state law, or its lawful successor.
   OVERHEAD FACILITIES. Utility poles, utility facilities, and communications facilities above the surface of the ground, including the underground supports and foundations for such facilities.
   PERSON. An individual, corporation, company, association, joint stock company, or association, firm, partnership, or limited liability company.
   PRIVATE COMMUNICATIONS NETWORK. A system, including the construction, maintenance, or operation of the system, for the provision of a service, or any portion of a service, which is owned or operated exclusively by a person for his or her own use and not for resale, directly or indirectly. PRIVATE COMMUNICATIONS NETWORK includes services provided by the state pursuant to O.R.S. 190.240 and 283.140.
   PUBLIC RIGHTS-OF-WAY or RIGHT-OF-WAY. Includes, but are not limited to, city streets, roads, highways, bridges, alleys, sidewalks, trails, paths, public easements, and other public ways generally open to travel, including the subsurface under, and air space over, these ways; but does not include parks, parkland or other city property not generally open to the public for travel. This definition applies only to the extent of the city’s right, title, interest, or authority to grant a franchise to occupy and use such areas for communications facilities. PUBLIC RIGHTS-OF-WAY or RIGHT-OF-WAY shall also include UTILITY EASEMENTS, as defined below.
   RIGHT-OF-WAY USE FEE. The fee imposed upon a communications provider for its occupation of or use of the city’s public right-of-way without an unexpired franchise agreement which authorizes all communications services provided and imposes a franchise fee on such services.
   STATE. The State of Oregon.
   TELECOMMUNICATIONS ACT. The Communications Policy Act of 1934, as amended by subsequent enactments, including the Telecommunications Act of 1996, 47 U.S.C. §§ 151 et seq.
   UNDERGROUND FACILITIES. Utility and communications facilities located under the surface of the ground, but does not include underground foundations or supports for overhead facilities.
   UTILITY EASEMENT. Any easement granted to or owned by the city and acquired, established, dedicated, or devoted for public utility purposes. UTILITY EASEMENT does not include any easement dedicated solely for city use or facilities, or any easement where the proposed use is inconsistent with the terms and conditions of the easement granted to or owned by the city.
   UTILITY FACILITIES. The plant, equipment, and property, including, but not limited to, the poles, pipes, mains, conduits, ducts, cable, wires, plant, and equipment located under, on, or above the surface of the ground within the public right-of-way of the city and used, or to be used, for the purpose of providing utilities, cable, or communications service.
(Ord. 557-2019, passed 12-9-2020)
§ 111.05 GOVERNING LAW.
   Any franchise agreement granted under this chapter is subject to the provisions of the Constitutions and laws of the United States and the state, and the ordinances and Charter of the city.
(Ord. 557-2019, passed 12-9-2020)
§ 111.06 WRITTEN AGREEMENT.
   No franchise agreement shall be granted hereunder except by a writing duly executed by the franchisee and the city.
(Ord. 557-2019, passed 12-9-2020)
Loading...