(A) Unlawful to operate without a franchise. It shall be unlawful for any person to erect, install, maintain, operate, repair, replace, remove or restore communications facilities or to provide communications services by use of facilities in the rights-of-way in the city without a valid, unexpired franchise from the city, unless otherwise specifically authorized under applicable federal or state law, or otherwise provided by ordinance. Unless otherwise provided hereinafter by the city ordinance, reseller service providers and lessees shall not be required to obtain a franchise. Private communication systems shall not require a franchise, but shall be licensed pursuant to § 117.05. A cable operator, or an affiliate thereof, that provides cable services as herein defined under a valid cable franchise granted by the city, shall not be required to obtain a communications franchise hereunder; provided, however, if a cable operator, or an affiliate thereof, extends facilities in the right-of-way solely for the provision of telecommunications services, then it shall pay the linear per foot fee as set forth in this section, if no revenue for the computation of cable franchise fees are received from such extended facilities.
(B) Franchises nonexclusive. The authority granted by the city in any franchise shall be for the nonexclusive use of the rights-of-way. The city specifically reserves the right to grant, at any time, such additional franchises or other rights to use the rights-of-way for any purpose to any other person, including itself, as it deems appropriate, subject to all applicable laws.
(C) Nature of rights granted by any franchise. Franchises shall not convey title, equitable or legal, in the rights-of-way, and shall give only the right to occupy rights-of-way, for the purposes and for the period stated in this chapter and as may be further limited by the franchise. No franchise may excuse franchisee from obtaining appropriate access or attachment agreements before locating its facilities on another person's facilities. All franchises shall be
deemed to incorporate and be limited by the provisions of this chapter and shall create rights inuring solely to the benefit of the franchisee.
(D) Application and application fee required.
(1) Applications for an original communications franchise granted hereunder shall be filed with the city with ten additional copies. All applications received by the city from the applicants will become the sole property of the city. Applicants shall submit all requested information as provided by the terms of this chapter. The following information must be complete and verified as true by the applicant:
(a) Filing fee. Applications shall be accompanied by a nonrefundable application fee of $1,000 payable to the city. Said application fee shall defray in whole or part the city's costs to process any application filed under this chapter and negotiate, award and administer any franchise. Said application fee shall not be considered communications franchise fee payments.
(b) Name and address of applicant. The applicant's name, address, e-mail address and telephone and facsimile numbers; date of application and signature of applicant or appropriate corporate officer(s); the name, address and e-mail address, and telephone and facsimile numbers of a local representative who shall be available at all times; and information regarding how to contact the local representative in an emergency.
(c) Description of proposed system. A description of the applicant's proposed system design.
(d) Services. A statement setting forth a description of all the types of services proposed.
(e) Applicant organization. The applicant shall be a corporation or limited liability company authorized to do business in the Commonwealth of Kentucky, as certified by the
Secretary of State. Applicant must fully disclose the ownership of the facilities to be used in rendering the service.
(f) Technical description. Applicant shall provide a technical description of the type of system proposed by the applicant and applicant's plan for the installation of the system. The following information shall be included in the application:
1. If the applicant is proposing an underground installation in existing ducts or conduits within the rights-of-way, information in sufficient detail to identify the location of the existing ducts or conduits to be occupied.
2. If applicant is proposing an underground installation within new ducts or conduits to be constructed within the rights-of-way:
(i) The location, depth, size and quantity of proposed new ducts or conduits;
(ii) A preliminary installation schedule and completion date.
(g) Engineering statement. A statement from the applicant's senior technical staff member, or consultant, advising that the applicant's planned system and operations thereof would meet all the requirements set forth herein.
(h) Additional requirements.
1. Supplementary, additional or other information that the applicant deems reasonable for consideration may be submitted at the same time as its application but must be separately bound and submitted with the above number of copies. The city may, at its discretion, consider such additional information as part of the application.
2. Applications may be modified at any time prior to the opening of the applications, provided that any modifications must be duly executed in the manner that the applicant's application must be executed.
3. A copy of the applicant's certificate of authority from the Public Service Commission ("PSC") where the applicant is lawfully required to have such certificate from the PSC.
4. A copy of the applicant's certificate of authority from the FCC where the
applicant is lawfully required to have such certificate from the FCC.
5. A copy of all insurance policies and certificates required under this chapter.
6. A statement signed by the applicant that the applicant agrees to be bound by all provisions of the franchise and agrees to obtain all applicable permits and authorizations prior to constructing, installing, or operating a system in the right-of-way.
7. The information provided by applicant shall be certified as true and correct and applicant shall be responsible to certify to the city any material changes to the information provided in the completed application during the term of any franchise.
(i) Supplementation to applications. The city reserves the right to require such supplementary, additional or other information that it deems reasonably necessary for its determinations.
(j) The city's rights reserved. The city reserves the right to waive all formalities and/or technicalities where the best interest of the city may be served.
(E) Standards and procedures for approval or renewal of franchises. Franchises shall be granted in accordance with Kentucky Constitution Sections 163 and 164. The city shall authorize franchises or renewals to any eligible franchisee for the right and privilege to construct, own, operate, repair, replace and maintain facilities in, through and along the city's rights-of-way for the purposes of providing communications services on a nonexclusive basis within the city, subject, however, to the standards, terms and conditions herein set forth within this chapter, which shall be deemed incorporated therein, and any special conditions as may be provided for in the franchise. All franchisees shall be required to obtain and maintain any necessary and lawful permit, license certification, grant, registration or any other authorization required by any appropriate governmental entity, including, but not limited to, the city, the FCC and the Kentucky Public Service Commission. The city may establish standard franchises setting forth the minimum requirements for all franchisees.
(F) Acceptance and effective date of franchise. Any franchise granted hereunder, together with the rights, privileges and authority granted thereby, shall take effect and be in force from and after the effective date of a resolution granting a franchise hereunder, provided that on or before said date franchisee shall:
(1) Enter into and execute such contracts and documents as required by the city that are consistent with the terms and provisions of this section;
(2) File certificates of insurance as set forth in this chapter;
(3) File such bond or bonds as required in this chapter; and
(4) Advise the Mayor in writing of franchisee's address for mail and official notifications from the city.
(G) Cable service and open video systems (OVS); separate franchise required. A communications franchise shall not permit a franchisee to provide cable services as a cable operator (as defined by 47 U.S.C. § 522(5)) within the city. Upon a franchisee's request for a franchise to provide cable services as a cable operator (as defined by 47 U.S.C. § 522(5)) within the city, the city shall timely negotiate such cable franchise in good faith with the franchisee. A communications franchise shall also not permit a franchisee to operate an open video system. A person may operate an open video system only if that person obtains a separate franchise permitting same, and such person remits the maximum fees permitted by 47 U.S.C. § 573(c)(2)(B) and where such person otherwise complies with FCC regulations promulgated pursuant to 47 U.S.C. § 573. Absent such applicable separate franchise from the city, a franchisee shall be prohibited from offering OVS service and any such service shall be considered a breach of its franchise.
(H) Use of rights-of-way; police powers; franchisee's use subordinate.
(1) A franchisee shall construct and maintain its facilities in accordance with all applicable federal, state and local laws, including all permit requirements, and fee payments, and all other city codes and ordinances in effect as of the date of the award of its franchise or thereafter adopted to the extent not in contravention of state or federal law. The grant of a franchise does not in any way affect the continuing authority of the city through the proper exercise of its Home Rule or statutory powers to adopt and enforce ordinances necessary to provide for the health, safety and welfare of the public. The city makes no express or implied representation or warranty regarding its rights to authorize the installation or construction of facilities on any particular segment of rights-of-way. The burden and responsibility for making all such determinations in advance of construction or installation shall be entirely upon the franchisee. The use of the rights-of-way authorized by any franchise shall in all matters be subordinate to the city's use and rights therein. Without limiting the generality of the foregoing:
(a) All rights and privileges granted herein are subject to the police powers of the city and its rights under applicable laws and regulations to regulate the construction, operation, and maintenance of franchisee's system, including, but not limited to, the right to adopt and enforce additional ordinances and regulations as the city shall find necessary in the exercise of its police powers, the right to adopt and enforce applicable zoning, building, permitting and safety ordinances and regulations, the right to adopt and enforce regulations relating to equal employment opportunities and the right to adopt and enforce ordinances and regulations containing rights-of-way, communications, and utility standards.
(b) The city reserves the right to exercise its police powers, notwithstanding anything in this chapter and in any franchise to the contrary. Any conflict between the provisions of this chapter or a franchise and any other present or future lawful exercise of the city's police powers shall be resolved in favor of the latter.
(c) Franchisee shall not be excused from complying with any of the requirements of this chapter or any subsequently adopted amendments to this chapter, by any failure of the city on any one or more occasions to seek, or insist upon, compliance with such requirements or provisions.
(d) If federal or state law alter the required services, fees, costs, conditions or standards upon which the communications system is to operate, the city shall have the right to amend this chapter to make it consistent with the modified federal or state laws.
(e) Any franchise granted pursuant to this chapter shall be subject to any present and future legislation or resolution, which may be enacted by the city.
(I) Emergencies.
(1) Franchisee shall assign a management level person to coordinate with, and assist the city's Emergency Management Agency, in the development of emergency plans.
(2) If at any time, in case of fire or disaster in the city, it shall become necessary in the reasonable judgment of the city, to cut or move any facilities, such cutting or moving may be done and any repairs rendered necessary thereby shall be made by franchisee, at its sole expense.
(J) Term. A franchise shall be effective for a term of ten years from its effective date.
(K) Communications franchise fees. Franchisee shall pay to the city as annual compensation for the use of the rights-of-way a communications franchise fee equal to:
(1) $100.00 per antenna in the rights-of-way; plus
(2) A fee equal to the lesser of (i) $10,000.00, or (ii) the sum of the following:
(a) For each single cable, wire, fiber, conduit or other linear facility, or bundle of the same up to two inches in diameter placed above-ground, $1.00 per foot of rights-of-way on which it is placed or over which it is suspended; plus
(b) For each bundle of cable, wire, fiber, conduit or other linear facility greater than two inches in diameter placed above ground, $0.50 per foot of rights-of-way on which it is placed or over which it is suspended; plus
(c) For each single cable, wire, fiber, conduit or other linear facility, or aggregate of the same placed below-ground contemporaneously, $0.50 per foot of rights-of-way used to accommodate the same.
(L) Holders of multiple franchises. Persons holding a communications franchise and also a cable franchise shall fairly and accurately apportion and attribute revenues received to the various services offered.
(M) Timing of payment of communications franchise fees. Unless otherwise agreed to in writing, all communications franchise fees shall be due and payable on a quarterly basis and payment shall be made on or before the date which is 30 calendar days after the last day of the calendar quarter for which the payment applies (the "due date"); provided, however, that in the event that a franchisee ceases to provide service for any reason (including as a result of a transfer), such franchisee shall make a final payment of any amounts owed to the city on or before the date which is 30 calendar days after the date on which its operations in the city cease (which shall be deemed a "due date" for purposes of this section).
(N) Interest on late payments and under payments. If any communications franchise fee, or any portion thereof, is not received by the city on or before the due date, interest thereon shall accrue from the due date until received, at the rate of 1.5% per month, unless such other maximum rate is established by applicable law.
(O) Fee statement. Each communications franchise fee payment shall be accompanied by a statement (a "fee statement") showing the manner in which the communications franchise fee was calculated. Within 90 calendar days following the end of the calendar year, each franchisee shall submit a statement, certified as true, setting forth the amount of linear foot and antennae within the facilities provided, however, that in the event that a franchisee ceases to provide service for any reason (including as a result of a transfer), such franchisee shall provide such a statement within 30 calendar days after the date on which its operations in the city cease.
(P) No accord and satisfaction. No acceptance by the city of any communications franchise fee or any other payment shall be construed as an accord that the amount paid is in fact the correct amount, nor shall acceptance of any communications franchise fee or any other payment be construed as a release of any claim of the city.
(Q) Description of service. During the term of the franchise, franchisee shall provide the city with a description of any material changes to the types of communications services offered within the city during the prior year. Any individual service or item for which the franchisee has a separate charge shall be considered a separate service.
(R) Communications franchise fee not a tax; payment of taxes. The communications franchise fee is compensation for the use of the rights-of-way and shall in no way be deemed a tax of any kind. The communications franchise fees required herein shall be in addition to, not in lieu of; all taxes, charges, assessments, licenses, fees and impositions otherwise applicable that are or may be imposed by the city. A franchisee shall be fully responsible for the payment of all applicable taxes.
(S) Assignment of franchise. A franchisee shall provide the city with written notice of any transfer of the franchise. A franchisee shall not sell, assign, sublet, dispose of or otherwise transfer a franchise (or any of the rights or privileges granted by such franchise) to another entity, without the prior written consent of the city. The city's consent to such a transfer shall not be withheld if the entity would have qualified for an original franchise had it applied and if the entity demonstrates it has the same insurance policies and bonds in place as is required of the original franchisee. Nothing in any approval by the city of any transfer pursuant to this section shall be construed to waive, release or delegate any rights or powers of the city to hold the original franchisee liable for any violation of its franchise.
(T) Forfeiture of franchise and privilege. In case of failure on the part of a franchisee, its successors and assigns, to comply with any of the provisions of this chapter or its franchise, or if the franchisee, its successors and assigns, should do or cause to be done any act or thing prohibited by or in violation of this chapter or the terms of its franchise, the franchisee, its successors and assigns, shall forfeit all rights and privileges permitted by this chapter and its franchise, and all rights hereunder shall cease, terminate and become null and void, provided that said forfeiture shall not take effect until the city shall carry out the following proceedings: Before the city declares the forfeiture or revocation of a franchise, it shall first serve a written notice upon the franchisee, setting forth in detail the neglect or failure complained of, and the company shall have 30 days thereafter, or such other reasonable period established by the city, in which to cure the default by complying with the conditions of its franchise and fully remedying any default or violation. If at the end of such 30 day or other reasonable period, the city determines that the conditions have not been complied with, the city shall take action by an affirmative vote of a majority of the Council present at the meeting and voting, to terminate the franchise, setting out the grounds upon which the franchise is to be forfeited or revoked. Nothing herein shall prevent the city from invoking any other remedy available at law or in equity.
(U) Security for payment of fees. Every franchisee shall provide to the city an irrevocable letter of credit in the amount of $10,000.00 or one half of the annual franchise fee owed, whichever is less, to secure the payment of the communications franchise fee for the first two years of the franchise. After which, if there has been no default in paying the franchise fee nor any late payment of the franchise fee, the letter of credit shall be released.
(V) Special rules for governmental entities. Nothing herein requires the city to apply the provisions of this chapter to a governmental entity if the city determines that it is not in the public interest to do so, and nothing in this chapter shall be read to require a governmental entity to comply with this chapter where the city cannot enforce the chapter against such entity as a matter of law. The city is authorized to enter into agreements with other governmental agencies to facilitate the city's use and management of the rights-of-way, and such agreements shall be enforceable according to their respective terms and notwithstanding any provision of this chapter.
(Ord. 2005-03, passed 8-8-05)