(A) Declaration of findings. The City of Forest Hills hereby declares as a legislative finding that the rights-of-way within the city:
(1) Are a unique and physically limited resource;
(2) Are critical to the travel and transport of persons and property in the city;
(3) Are intended for public uses and must be managed and controlled consistent with that intent;
(4) Can be partially occupied by the facilities of utilities and public service entities, to the enhancement of the health, welfare, and general economic well being of the city and its citizens; and
(5) Should be subject to specific additional regulations imposed in a competitively neutral and non-discretionary manner as established by this chapter to ensure coordination of users, maximize available space, and facilitate entry of a maximum number of providers of communications and other services in the public interest.
(B) Title. This chapter may be referred to and cited as the "Communications Services Franchise Ordinance".
(C) Applicability. The requirements of this chapter shall apply to the full extent of the terms herein and shall be limited in scope or application only to the extent as may be required by applicable federal or state law, including such changes in applicable law as may be hereinafter enacted. No provisions of this chapter shall be disregarded pursuant to this subsection except on express application to and determination by the city to such effect based on the specific factual circumstances demonstrated. The provisions of this chapter shall be deemed incorporated in each communications franchise granted.
(D) Preservation of authority. Any rights granted pursuant to this chapter and pursuant to any franchise authorized hereunder are subject to the authority of the city to adopt and enforce ordinances necessary to the health, safety, and welfare of the public. Franchisees and other holders of franchises shall be subject to and comply with all applicable laws enacted by the city pursuant to its Home Rule or statutory powers, to the extent not in conflict with Kentucky or federal law. Nothing in this chapter shall be deemed to waive a right, if any, that any party may have to seek judicial or regulatory review as to the provisions herein or as to actions of the parties under applicable federal, state, or local law currently in effect or as may hereinafter be amended.
(E) Public inspection of records. Certain information required to be filed with the city pursuant to this chapter is subject to inspection and copying by the public pursuant to the provisions of the Kentucky Open Records Act, KRS 61.870 et seq.
(F) Indemnification. As a condition of use of the rights-of-way, each franchisee at its sole cost and expense, shall indemnify, protect, defend (with counsel acceptable to the city) and hold harmless the city, its elected officials, officers, employees, and agents, from and against any and all claims, demands, losses, damages, liabilities, fines, charges, penalties, administrative and judicial proceedings and orders, judgments, remedial actions of any kind, and all costs and expenses of any kind, including, without limitation, reasonable attorney's fees and costs of defense arising, directly or indirectly, in whole or in part, out of or in relation to the city's award of the franchise, the rights granted to the franchisee, or the activities performed, or failed to be performed, by such franchisee under the franchise or use of the rights-of-way, except to the extent such acts or use arise from or are caused by the negligence or willful misconduct of the city, its elected officials, officers, or employees. This indemnification shall survive the expiration or termination of any franchise or use of the rights-of- way.
(G) Compliance with laws. in performing activities and exercising rights and obligations under any franchise, each franchisee and other holder of a franchise shall comply with all applicable federal, state and local laws, ordinances, regulations and policies, including, but not limited to, all laws, ordinances, regulations and policies relating to construction and use of public property.
(H) Enforcement; attorneys' fees. The city shall be entitled to enforce this chapter and any franchise through all remedies lawfully available, and each franchisee shall pay the city its costs of enforcement, including but not limited to reasonable attorneys' fees, in the event that franchisee is determined judicially to have violated the terms of this chapter or any franchise.
(I) Relationship of the parties. Under no circumstances shall any franchise authorized by this chapter be construed to create any relationship of agency, partnership, joint venture, or employment between the parties.
(J) Defined terms. 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 singular number include the plural number, and 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.
AFFILIATE. As to any person, each person, directly or indirectly, controlling, controlled by, or under common control with such person.
ANTENNA. Any device that transmits or receives signals. Such signals include but are not limited to radio and infrared waves for voice, data or video communications purposes.
CABLE FRANCHISE. The rights and obligations extended by the city to a person to own, lease, construct, maintain, or operate a cable system in the rights-of-way within the franchise area for the purpose of providing cable services.
CABLE INTERNET SERVICES. The provision by a person of access to the Internet or any Intranet to customers over a cable system and shall include the provision of incidental services that are required by law to be treated under the same regulation as such direct access service. The city shall treat cable Internet services as a cable service unless it is definitively determined under applicable law that cable Internet service is not a cable service, in which case any person providing or wishing to provide cable Internet services shall obtain a separate communications franchise from the city. All prior payments to the city attributable to cable Internet service under a cable franchise shall be irrefutably deemed to be lawful compensation, irrespective of any rates or terms required for any future use under any new communications franchise.
CABLE SERVICES shall have the same meaning as is ascribed to the term "Cable Service" at 47 U.S.C. 522(6).
CABLE SYSTEM shall have the same meaning as is ascribed to the term "Cable System" at 47 U.S.C. 522(7).
THE CITY. The City of Forest Hills, Kentucky.
COMMUNICATIONS. The transmission via the facilities, in whole or in part, between or among points specified by the user, of information of the user's choosing (e.g., data, video, voice), without change in the form or content of the information as sent and received, regardless of the statutory or regulatory scheme to which such transmissions may be subject.
COMMUNICATIONS FRANCHISE. A franchise for use of the rights-of-way for communications services as authorized herein and executed by the city and franchisee.
COMMUNICATIONS FRANCHISE FEE. The fee imposed by the city on franchisee for use of the rights-of-way pursuant to a communications franchise granted under this chapter.
COMMUNICATIONS SERVICE. The transmission via facilities, in whole or in part, of any writings, signs, signals, pictures, sounds or other forms of intelligence through wire, wireless or other means, including, but not limited to, any "telecommunications service," "enhanced service," "information service," or "Internet service," as such terms are now, or may in the future be, defined under federal law, and including all instrumentality, facilities, conduit, apparatus ("communications facilities"), and services (among other things, the receipt, forwarding, and delivery of telecommunications) incidental to or designed to directly or indirectly facilitate or accept such transmission. This term does not include cable service or open video system service, but cable services and open video system service shall be subject to separate franchising requirements and applications. This term does not include over-the-air radio or television broadcasts to the public at large licensed by the FCC or any successor thereto.
FACILITIES. Any portion of a system located in, along, over, upon, under, or through the rights-of-way.
FCC. The Federal Communications Commission of the United States of America or any successor thereto.
FRANCHISE. A communications franchise as defined herein or any other franchise granted by the city pursuant to Sections 163 and 164 of the Kentucky Constitution or by the Kentucky General Assembly prior to the adoption of Sections 163 and 164 of the Kentucky Constitution which permits the use of the rights-of-way for communications services. Use of this definition in this chapter is not intended to include any license or permit for the privilege of transacting and carrying on a business within the city, as may be required by any other ordinance or laws of the city or the state.
FRANCHISE AREA. Unless otherwise specified in the applicable franchise, the entire area of the city as it is now constituted or may in the future be constituted, except that such area shall not include any area within another municipality within the city.
FRANCHISEE. The party subject to a communications franchise, or its successors, assigns, or transferees.
LESSEE. A person who provides communications services within the city solely by leasing facilities and who has no control over what, where or how any facilities are erected, installed, maintained, operated, repaired, removed, restored or otherwise used.
OPEN VIDEO SYSTEM (OVS) SERVICE shall have the same meaning as is ascribed to the term at 47 U.S.C. 573.
PRIVATE COMMUNICATION SYSTEM. A system used by a person solely in connection with such person's business, provided that such person does not use, or permit the use of, such system to provide communications services to any other person.
PRIVATE COMMUNICATIONS SYSTEM OWNER. A person that owns or leases a private communications system.
RENEWAL. A new communications franchise granted to an existing franchisee.
RESELLER SERVICE PROVIDER. A person who provides communications services within the city solely by reselling communications services and who has no control over what, where or how any facilities are erected, installed, maintained, operated, repaired, removed, restored or otherwise used.
RIGHTS-OF-WAY. The surface and space on, above and below every street, alley, road, highway, lane or other public right-of-way dedicated or commonly used now or hereafter for utility purposes and facilities thereon, including, but not limited to, overhead lighting facilities. RIGHTS-OF- WAY shall not include public property owned or leased by the city and not intended for rights-of-way use, including, but not limited to, parks or public works facilities.
STATE. The Commonwealth of Kentucky.
SYSTEM. Any and all equipment, structures, materials or tangible components located in the rights-of-way and used to provide communications services, including without limitation all plant (whether inside or outside), cabinets, surface location markers, fiber strands, electronic equipment, amplification equipment, optic equipment, transmission and distribution structures, antennae, lines, pipes, mains, conduit, ducts, regenerators, repeaters, vaults, pedestals, manholes, handholds, pull boxes, splice closures, wires, cables, towers, wave guides, and anything else designed and constructed for the purpose of producing, receiving, amplifying or distributing communications services.
TELECOMMUNICATIONS ACT. The Telecommunications Act of 1996 coded at Title 47 of the United States Code.
(Ord. 2005-03, passed 8-8-05)