CHAPTER 5
TELECOMMUNICATIONS; USE OF RIGHTS OF WAY
SECTION:
7-5-1: Findings And Intent; Scope
7-5-2: Definitions
7-5-3: Franchise Or License Required
7-5-4: Compensation And Other Payments
7-5-5: Franchise And License Applications
7-5-6: Construction And Technical Requirements
7-5-7: Franchise And License Nontransferable
7-5-8: Oversight And Regulation
7-5-9: Rights Of Town
7-5-10: Rights Of Individuals
7-5-11: General Provisions
7-5-12: Public Educational And Governmental Access
7-5-13: Federal, State And Town Jurisdiction
7-5-1: FINDINGS AND INTENT; SCOPE:
   A.   Declaration Of Findings And Intent:
      1.   Rights Of Way: The town finds that the public streets, alleys, easements and other rights of way within the town:
         a.   Are critical to the travel and transport of persons and property in the business and social life of the town;
         b.   Are intended for public uses and must be managed and controlled consistent with that intent;
         c.   Can be partially occupied by the facilities of utilities and other public service entities delivering utility and public services rendered for profit, to the enhancement of the health, welfare and general economic well-being of the town and its citizens;
         d.   Are a unique and physically limited resource requiring proper management to maximize the efficiency and to minimize the costs to the taxpayers of the foregoing uses and to minimize the inconvenience to and negative effects upon the public from such facilities' construction, placement, relocation and maintenance in the rights of way; (Ord. 1998-2, 4-9-1998)
         e.   Are an asset of the town that taxpayers spent at least three thousand dollars ($3,000.00) in the past fiscal year to acquire, and six thousand dollars ($6,000.00) to improve. (Ord. 1998-2, 4-9-1998; amd. 2001 Code)
      2.   Use Valuable Economic Right: The town finds that the right to occupy portions of the rights of way for limited times for the business of providing telecommunications services or open video services is a valuable economic right to use a unique public resource that has been acquired and is maintained at great expense to the town and its taxpayers, and the economic benefit of such rights should be shared with all the taxpayers of the town.
      3.   Local Concern: The town finds that while telecommunications systems are in part an extension of interstate commerce, their operations also involve rights of way, municipal franchising and vital business and community service, which are of local concern.
      4.   Promotion Of Telecommunications Services: The town finds that it is in the best interests of its citizens to promote the rapid development of telecommunications facilities responsive to community and public interest, to assure that telecommunications companies provide adequate, economical and efficient service to their subscribers and to assure availability for municipal services, educational and community services.
      5.   Franchise Standards: The town council finds that it is in the interests of the public to franchise or license, and to establish standards for franchising or licensing operators, infrastructure providers, resellers and system lessees in a manner that:
         a.   Compensates the town for the fair market value of the property used and for ongoing costs associated with the use of such property;
         b.   Encourages competition by establishing terms and conditions under which providers may use valuable public property to serve the public;
         c.   Fully protects the public and the town from any harm that may flow from such private commercial use of rights of way;
         d.   Protects the regulatory authority of the town in a manner consistent with federal and state law;
         e.   Otherwise protects the public interests in the development and use of town infrastructure; and
         f.   Protects the public's investment in improvements in the rights of way.
      6.   Authority: The town adopts this telecommunications chapter pursuant to its power to manage the rights of way and receive reasonable, nondiscriminatory compensation for the use of rights of way by telecommunications providers as expressly set forth by sections 253 and 653 of the telecommunications act of 1996 ("act") (P.L. No. 104-104), and Utah constitution article XI.
   B.   Scope Of Chapter: This chapter shall provide the basic local regulatory scheme for providers of telecommunications services, including providers of only the physical plant necessary to operate a communications system, unless otherwise expressly excluded. This chapter shall apply to all regulated providers, whether operating with or without a franchise or license. Providers maintaining a presence in the right of way or other public property pursuant to an ordinance granted by the town prior to the effective date hereof, or maintaining a presence without such consent, shall comply with the provisions of this chapter.
   C.   Excluded Activity:
      1.   This chapter shall not apply to cable television operators otherwise regulated by the cable television ordinance.
      2.   Providers excused by other law that prohibits the town from requiring a franchise or license shall not be required to obtain a franchise or license, but all of the requirements imposed by this chapter through the exercise of the town's police power and not preempted by other law shall be applicable. (Ord. 1998-2, 4-9-1998)
7-5-2: DEFINITIONS:
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 single number include the plural number, 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.
AFFILIATED PERSON: Each person who has, directly or indirectly, a controlling interest in an operator, infrastructure provider, reseller or system lessee, and/or each person in which an operator, infrastructure provider or reseller has, directly or indirectly, a controlling interest; provided, however, that "affiliated person" shall in no event mean the town.
APPLICATION: The process by which a provider submits a request and indicates a desire to be granted a franchise or license to utilize the rights of way of all, or a part of, the town. An application includes all written documentation, verbal statements and representations, in whatever form or forum, made by a provider to the town concerning: the construction of a telecommunications system or open video system over, under, on or through the public rights of way; the telecommunications services or open video services proposed to be provided in the town by a provider; the area proposed to be served within the town by a provider; the portion of the public rights of way proposed to be used by a provider; the manner in which services are to be provided to consumers; the rates to be charged for services provided through a proposed system; and any other matter pertaining to a proposed system or service.
COMPLETION DATE: The date that a provider begins providing services to customers on the system.
CONSTRUCTION COSTS: All costs of constructing a system, including make-ready costs, other than engineering fees, attorney or accountant fees, or other consulting fees.
CONSTRUCTION STANDARDS: The telecommunication construction standards of the town.
CONTROL OR CONTROLLING INTEREST: Actual working control in whatever manner exercised, including, without limitation, working control through ownership, management, debt instruments or negative control, as the case may be, of the system or of a provider. A rebuttable presumption of the existence of control or a controlling interest shall arise from the beneficial ownership, directly or indirectly, by any person, or group of persons acting in concert, of more than five percent (5%) of any provider (which person or group of persons is hereinafter referred to as "controlling person"). "Control" or "controlling interest", as used herein, may be held simultaneously by more than one person or group of persons.
DARK FIBER: Fiber optic telecommunications cable or lines not currently dedicated to transmit or receive information.
FCC: The federal communications commission, or any successor thereto.
FIBER: Fiber optic telecommunications cable, wire, coaxial cable, or other transmission medium that may be used in lieu thereof for similar purposes.
FRANCHISE: The rights and obligation extended by the town to a provider to own, lease, construct, maintain or operate a system in the rights of way within the boundaries of the town for the purposes of providing services in the town. Any such authorization, in whatever form granted, shall not mean or include:
   A.   Any other permit or authorization required for the privilege of transacting and carrying on a business within the town required by the ordinances and laws of the town;
   B.   Any permit, agreement or authorization required in connection with operations on public streets or property, including, without limitation, permits and agreements for placing devices on or in poles, conduits or other structures, whether owned by the town or a private entity, or for excavating or performing other work in or along public rights of way.
FRANCHISE AGREEMENT: A contract entered into in accordance with the provisions of this chapter between the town and a franchisee that sets forth, subject to this chapter, the terms and conditions under which a franchise will be exercised.
FRANCHISE AREA OR LICENSE AREA: The area served by franchisee or licensee and described in a franchise agreement or license.
GROSS REVENUE: Includes all revenue, received directly or indirectly by franchisee or by any affiliated person from or in connection with any telecommunications services or open video services that originate in and/or terminate in or transit the town, including revenue derived from the sale or lease of equipment and/or facilities provided by franchisee or any affiliated person if such facilities and/or equipment are required for and integrated with the services provided by franchisee, and any revenue derived from interconnecting telecommunication service providers for services provided by the franchisee; provided, however, that gross revenue shall not include taxes collected to pay to legitimate taxing authorities and; provided, further, that a franchisee may deduct from its gross revenues, revenues received from a reseller/lessee or reseller that submits a certification stating that it has paid the fees it owes for the applicable reporting period.
INFRASTRUCTURE PROVIDER: A person providing to another, for the purpose of providing communications services to customers, all or part of the necessary physical plant, including fiber, which uses the rights of way.
INITIAL SYSTEM: The system depicted in exhibit A which is on file in the town office and hereby incorporated by reference.
LICENSE: The rights and obligations extended by the town to a provider to own, construct, maintain, lease or operate a system in the rights of way within the boundaries of the town for the sole purpose of providing services to persons or areas outside the town. Any such authorization, in whatever form granted, shall not mean or include:
   A.   Any other permit or authorization required for the privilege of transacting and carrying on a business within the town required by the ordinances and laws of the town;
   B.   Any permit, agreement or authorization required in connection with operations on public streets or property, including, without limitation, permits and agreements for placing devices on or in poles, conduits or other structures, whether owned by the town or a private entity, or for excavating or performing other work in or along public rights of way.
OPEN VIDEO SERVICE: Any video programming services provided to any person through the use of rights of way, by a provider that is certified by the FCC to operate an open video system pursuant to sections 651 et seq., of the telecommunications act (to be codified at 47 USC title VI, part V), regardless of the facilities used.
OPEN VIDEO SYSTEM: The system of cables, wires, lines, towers, wave guides, optic fiber, microwave, laser beams, and any associated converters, equipment or facilities designed and constructed for the purpose of producing, receiving, amplifying or distributing open video services to or from subscribers or locations within the town.
OPERATOR: Any person who provides service over a communications transmission system and directly or through one or more affiliates owns a significant interest in such facility, or who otherwise controls or is responsible for the operation of such a system.
ORDINANCE OR TELECOMMUNICATIONS ORDINANCE: This chapter concerning the granting of franchises and licenses in and by the town for the construction, ownership, operation or maintenance of a telecommunications system or open video system.
PERSON: Includes any individual, corporation, partnership, association, joint stock company, trust, or any other legal entity, but not the town.
PROVIDER: An operator, infrastructure provider, reseller or system lessee.
RESELLER: Refers to any person that provides service over a facility for which a separate charge is made, where that person does not own or lease the underlying facility used for the transmission.
RIGHTS OF WAY: The surface of and the space above and below any public street, sidewalk, alley, or other public way of any type whatsoever, now or hereafter existing as such within the town.
SERVICE OR TELECOMMUNICATIONS SERVICE: Any telecommunications services provided by a provider within the town that the provider is authorized to provide under federal, state and local law, and any equipment and/or facilities required for and integrated with the services provided within the town, except that these terms do not include "cable service" as defined in the cable communications policy act of 1984, as amended by the cable television consumer protection and competition act of 1992 (47 USC section 521 et seq.), and the telecommunications act of 1966.
SIGNAL: Any transmission or reception of electronic, electrical, light or laser or radio frequency energy or optical information in either analog or digital format.
SYSTEM: The open video system or wired communications system constructed, operated or maintained by any provider in the town, including, without limitation, all real property and interests in real property, all tangible and intangible personal property, buildings, offices, furniture, customer lists, cables, wires, optical fibers, amplifiers and all other electronic devices, equipment and facilities used in connection therewith and all rights, contracts and understandings with regard to any matter related thereto, and described in exhibit A which is on file in the town office and hereby incorporated by reference.
SYSTEM LESSEE: Refers to any person that leases a facility or a specific portion of a facility to provide services.
TELECOMMUNICATIONS: The transmission, between or among points specified by the user, of information of the user's choosing (e.g., data, video and voice), without change in the form or content of the information sent and received.
TELECOMMUNICATIONS FACILITIES OR FACILITIES: All conduits, manholes, poles, antennas, transceivers, cable (including fiber optic cable) and appurtenances owned by a provider, located in the streets, utility easements, public property, rights of way and air space over rights of way, and utilized in the provision of services, including fully digital or analog voice, data and video imaging and other enhanced telecommunications services.
TOWN: The town of Hatch, or any board, bureau, authority, agency, commission, department or any other entity of the town, or any authorized officer, official, employee or agent thereof, including individual volunteers or volunteer boards or commissions, or any successor thereto.
WIRED COMMUNICATIONS TRANSMISSION SYSTEM OR WIRED COMMUNICATIONS SYSTEM: A facility consisting of a set of closed transmission path and associated signal generation, reception and control equipment that is designed and used for the transmission of video, voice or data signals, which facility occupies public streets, alleys or rights of way or other public places within the town, other than cable communications systems, wireless communications systems and open video systems. (Ord. 1998-2, 4-9-1998; amd. 2001 Code)
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