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§ 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)
§ 111.07 NON-EXCLUSIVE GRANT.
   No franchise agreement granted under this chapter shall confer any exclusive right, privilege, license, or franchise to occupy or use the public rights-of-way for delivery of communications service, or any other purposes.
(Ord. 557-2019, passed 12-9-2020)
REGISTRATION
§ 111.20 SCOPE.
   This chapter shall apply to all communications providers who use or occupy the public rights-of-way whether or not they provide communications services to persons within the city. The purpose of registration is:
   (A)   To assure that all communications providers who have facilities within the city rights-of-way, and/or who provide communications services within the city using the public right-of-way, comply with the ordinances, rules, and regulations of the city;
   (B)   To provide the city with accurate and current information concerning communications providers who offer communications service within the city, or who owns or operates a communications facilities within the city; and
   (C)   To assist the city in the enforcement of this chapter, management and caretaking of the public right-of-way, and the collection of any city franchise fees or right-of-way use fees or charges.
(Ord. 557-2019, passed 12-9-2020)
§ 111.21 REGISTRATION REQUIRED.
   (A)   Unless excepted in division (B) below, all communication providers who own, operate, or use facilities within the city’s public right-of-way, and all communication providers who provide communication services to any customer within the city, shall register with the city, on a form provided by the city, within 45 days of the effective date of this chapter. Any prospective communications providers who want to install or use communications facilities within the city’s public right-of-way or want to provide communications services within the city after the effective date of this chapter shall register with the city, on a form provided by the city, prior to installing facilities or providing services.
   (B)   After registering with the city pursuant to division (A) above, the communication provider shall, by December 31 of each year, file with the city a new annual registration form if it intends to maintain facilities or provide services at any time in the following calendar year.
      (1)   Communications providers who file an initial registration pursuant to division (A) above on or after September 30 shall not be required to file an annual registration until December 31 of the following year.
      (2)   Communications providers who are a non-breaching party to an unexpired franchise agreement which obligates the provider to pay a franchise fee on all the services it provides within the city are not required to file an annual registration during the term of the franchise agreement.
   (C)   (1)   In lieu of filing the city’s registration form, a communications provider may submit to the city a copy of the its application and approved license from either:
         (a)   The State Public Utility Commission (PUC); or
         (b)   The Federal Communications Commission.
      (2)   To the extent not included in the application and license materials submitted pursuant to this division (C), registrants also shall provide the following information:
         (a)   The identity and legal status of the registrant, including the name, address, and telephone number of the duly authorized officer, agent, or employee responsible for the accuracy of the registration information;
         (b)   The name, address, and telephone number for the duly authorized officer, agent, or employee to be contacted in case of an emergency; and
         (c)   A description of the registrant’s existing or proposed facilities within the city, a description of the facilities that the registrant intends to construct, and a description of the communications service that the registrant intends to offer or provide to persons, firms, businesses, or institutions within the city.
(Ord. 557-2019, passed 12-9-2020)
§ 111.22 REGISTRATION FEE.
   (A)   Unless excepted in division (B) below, each registration form shall be accompanied by a nonrefundable registration fee in an amount to be determined by resolution of the City Council. The registration fee required by this section shall be subject to all applicable limitations imposed by federal or state law.
   (B)   Communications providers who are a non-breaching party to an unexpired franchise agreement, which obligates the provider to pay a franchise fee on all the services it provides within the city, shall not be required to pay a registration fee.
(Ord. 557-2019, passed 12-9-2020)
§ 111.23 EXEMPTIONS FROM REGISTRATION.
   The following communications providers and facilities are exempted from registration:
   (A)   Communications facilities owned and operated exclusively by the state or a political subdivision of this state, for their own use; and
   (B)   A private communications network, provided in a manner that does not occupy any public rights-of-way.
(Ord. 557-2019, passed 12-9-2020)
COMMUNICATIONS FRANCHISE AGREEMENTS REQUIRED
§ 111.35 REGISTRATION, APPLICATION, AGREEMENT.
   (A)   Rights-of-way. Prior to occupying city public rights-of-way, all communications providers shall register with the city pursuant to § 111.21, shall file a franchise application with the city pursuant to § 111.36 below, and shall enter into a franchise agreement with the city.
   (B)   Multiple franchises not required. Notwithstanding anything to the contrary in this chapter, a communications provider who is a non-breaching party to an unexpired franchise agreement for a service it provides within the city shall not be required to enter into a multiple or different franchise agreements for its provision of a different service within the city as long as the provider has registered all its services with the city pursuant to § 111.21. Further, nothing in this section waives a provider’s duty to pay franchise fees or the right-of-way use fee as required under § 111.41.
   (C)   Any person whose communications facilities occupy the public right-of-way, with or without a valid franchise agreement from the city, must comply with all provisions of this chapter, specifically including payment of any applicable right-of-way fees pursuant to § 111.41.
(Ord. 557-2019, passed 12-9-2020)
§ 111.36 APPLICATION.
   (A)   Any person who desires a franchise agreement with the city must first file a franchise application with the City Manager.
   (B)   The purpose of a franchise application is to provide the city with necessary information regarding the communications provider’s services and public right-of-way needs.
   (C)   The franchise application shall include, at minimum, the following information:
      (1)   The identity of the applicant;
      (2)   A description of the services to be offered or provided by the applicant over its facilities, including an indication of whether the applicant will provide solely cable service;
      (3)   Engineering plans, specifications, and a network map in a form customarily used by the applicant of the facilities located or to be located within the public rights-of-way in the city, including the location and route requested for the applicant’s proposed facilities;
      (4)   The area or areas of the city the applicant desires to serve and a preliminary construction schedule for build-out to the entire franchise area;
      (5)   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 communications service proposed; and
      (6)   An accurate map showing the location of any existing facilities in the city that the applicant intends to use or lease.
   (D)   Any communications provider occupying the public rights-of-way without a franchise agreement as of the effective date of this chapter shall file a franchise application pursuant to this section within 45 days of the effective date of this chapter.
(Ord. 557-2019, passed 12-9-2020)
§ 111.37 DETERMINATION.
   (A)   The city shall issue a written preliminary determination granting or denying the franchise application in whole or in part.
   (B)   If the franchise application is denied, the written determination shall include the reasons for denial.
   (C)   The city shall evaluate the franchise application based upon: the continuing capacity of the public rights-of-way to accommodate the prospective franchisee’s proposed facilities; the prospective franchisee’s legal, technical, and financial ability to comply with the provisions of this chapter; and the prospective franchisee’s compliance with applicable federal, state, and local laws, rules, contractual obligations, and regulations.
(Ord. 557-2019, passed 12-9-2020)
§ 111.38 SCOPE OF AGREEMENT.
   (A)   No franchise granted pursuant to this chapter shall convey any right, title, or interest in the public rights-of-way, but shall be a non-exclusive grant to use and occupy the public rights-of-way for the limited purposes, terms, and conditions provided in the franchise agreement.
   (B)   The rights granted by any franchise agreement are limited to the right to use the public rights-of-way for the provision of COMMUNICATIONS SERVICES, as defined in § 111.04. Nothing in the franchise shall be construed to prevent the city from grading, paving, repairing, and/or altering any public rights-of-way, constructing, laying down, repairing, relocating, or removing city infrastructure or establishing any other public work, utility, or improvement of any kind, including repairs, replacement, or removal of any city infrastructure. If a franchisee’s facilities interfere with the construction, repair, replacement, alteration, or removal of any public rights-of-way, public work, city utility, city improvement, or city infrastructure, except those used to provide competing communications services, such facilities shall be removed or relocated as provided in §§ 153.33 and 153.34, in a manner acceptable to the city and consistent with industry standard engineering and safety codes.
   (C)   A franchise agreement granted hereunder shall at all times comply with the requirements of this chapter, unless this chapter expressly authorizes different terms. In this chapter, such authorization is indicated by the introductory phrase, “Unless otherwise specified in an unexpired Franchise Agreement...”
   (D)   To the extent that this chapter can be implemented consistently with an unexpired franchise agreement adopted prior to this chapter, the terms of this chapter shall prevail.
   (E)   To the extent that this chapter conflicts with, and cannot be implemented consistently, an unexpired franchise agreement adopted prior to this chapter, the terms of the unexpired franchise agreement shall prevail.
(Ord. 557-2019, passed 12-9-2020)
§ 111.39 TERM OF GRANT.
   Unless otherwise provided in an unexpired franchise agreement, a franchise granted hereunder shall be in effect for an initial term of five years, and may be renewed subject to §§ 111.42 and 111.43.
(Ord. 557-2019, passed 12-9-2020)
§ 111.40 FRANCHISE TERRITORY.
   Unless otherwise provided in an unexpired franchise agreement, a communications franchise granted hereunder shall be limited to a specific geographic area of the city to be served by the franchisee and the public rights-of-way necessary to serve such areas, and may include the entire city.
(Ord. 557-2019, passed 12-9-2020)
§ 111.41 FEES.
   (A)   A franchise agreement granted hereunder shall require the franchisee to pay a franchise fee in an amount determined by resolution of the City Council.
   (B)   Every communications provider occupying or using the public rights-of-way without an unexpired franchise agreement which imposes a franchise fee, whether or not the provider owns the facilities used to provide its services, shall pay a right-of-way use fee in the amount of the franchise fee determined by resolution of the City Council.
   (C)   (1)   The city shall provide a right-of-way use fee credit to any communications providers who, pursuant to a franchise agreement, pays to the city franchise fees due and owing. The amount of the right-of-way use fee credit shall be equal to the franchise fees paid to the city during that right-of-way use fee billing period.
      (2)   (a)   The City Manager, or his or her designee, may, at his or her sole discretion and through the adoption of written rules grant a full or partial right-of-way use fee annual waiver for a communications provider who can demonstrate that it has received, earned, or derived (or expects to receive, earn, or derive) little or no gross revenues from its use or occupation of the right-of-way during that year.
         (b)   Such written rule shall establish the maximum threshold gross revenue amounts necessary for such waiver to apply.
   (D)   If the communications provider’s sole use of the public right-of-way, is to place wireless facilities above the ground on existing poles or similar structures in the public right-of-way and the operator does not install or use lines, wires, or cables, such communications provider is not required to pay a right-of-way use fee or a franchise fee under this section, as long as it complies with all other applicable requirements of this chapter and all other applicable city codes, regulations, and rules. Nothing in this division (D) limits the city’s authority to charge reasonable rental or pole attachment rates for the private use of city property.
   (E)   Unless otherwise specified in an unexpired franchise agreement, the franchise fees required by this section shall be paid within 30 days after the end of each calendar quarter. Each payment shall be accompanied by an accounting of gross revenues and a calculation of the amount payable.
   (F)   Unless otherwise specified in an unexpired franchise agreement, the franchisee shall pay interest at the rate of 9% per year for any payment made after the due date.
   (G)   The franchise fee or right-of-way use fee required in this section remain subject to any applicable limitations imposed by federal or state statutes.
(Ord. 557-2019, passed 12-9-2020)
§ 111.42 NEW FACILITIES; SERVICES.
   (A)   A new registration shall be required of any franchisee who desires to extend or locate its facilities within the public rights-of-way if such facilities are not previously included in an unexpired franchise agreement with the city.
   (B)   A new registration shall be required of any franchisee who desires to provide an additional communication service which was not previously included in an unexpired franchise agreement with the city.
(Ord. 557-2019, passed 12-9-2020)
§ 111.43 TERM RENEWALS.
   Unless otherwise provided in an unexpired franchise agreement and unless prohibited understate or federal law, a franchise, if renewed, shall be renewed in the following manner.
   (A)   Franchisees who desire to renew an unexpired franchise under this chapter shall, not less than 180 days before expiration of the current franchise agreement, file a request for renewal with the city.
   (B)   The renewal shall include the following information:
      (1)   The information required pursuant to § 111.36;
      (2)   Any additional information required pursuant to the existing franchise agreement between the city and the franchisee; and
      (3)   Any desired amendments to the existing franchise agreement, including the desired renewal term; provided, that such amendments do not violate or conflict with this chapter.
(Ord. 557-2019, passed 12-9-2020)
§ 111.44 RENEWAL DETERMINATIONS.
   (A)   Within 90 days after receiving a complete renewal request under § 111.43, the city shall issue a written determination granting or denying the renewal request in whole or in part. Such renewal shall be for a renewal term or terms to be mutually decided on by the parties. If the renewal request is denied, the written determination shall provide the reasons for non-renewal.
   (B)   The city shall evaluate the renewal based upon the capacity of the rights-of-way to accommodate the franchisee’s facilities, the franchisee’s legal, technical, and financial ability to comply with the provisions of this chapter, and the franchisee’s compliance with any applicable federal, state, and local laws, contractual obligations, rules, or regulations.
(Ord. 557-2019, passed 12-9-2020)
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