(A) Unlawful to operate without a franchise. Unless otherwise specifically authorized under applicable federal or state law, or otherwise provided by ordinance, it shall be unlawful for any person to own, erect, install, maintain, operate, repair, replace, remove or restore any facilities in the rights-of-way in Louisville Metro that are used to provide Communications Services without a valid, unexpired franchise from Louisville Metro. Unless otherwise provided hereinafter by Louisville Metro 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 § 116.07.
(B) Franchises nonexclusive. The authority granted by Louisville Metro in any franchise shall be for the nonexclusive use of the rights-of-way. Louisville Metro 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.
(D) Application and application fee required. Applications for an original franchise granted hereunder shall be filed with Louisville Metro pursuant to the advertisement. All applications received by Louisville Metro from the applicants will become the sole property of Louisville Metro. 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:
(1) Application fee. Applications shall be accompanied by a non-refundable application fee of $2,500 payable to Louisville Metro. The application fee shall be established at the rate set forth above, effective upon final passage of this chapter. Thereafter, the application fee shall be increased every two years, in increments of ten dollars, if required, based on the most recently-published Consumer Price Index (CPI) at the time. The application fee shall defray in whole or part Louisville Metro's costs to process any application filed under this chapter and negotiate, award and administer any franchise.
(2) 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.
(3) Description of proposed system. Applicant shall provide a description of the proposed system. At a minimum, the description shall include:
(a) General description of the project by geographical area. Projects shall be developed and implemented by Louisville Metro Council District and presented in this application as such.
(b) Provide a description of the proposed system components to include but not be limited to:
1. Anticipated number and general location of small cell antennae;
2. Location (aerial/ underground) of fiber. Where possible, provide estimated percent aerial and percent underground;
3. Anticipated ground level elements (GLE's) and general locations.
(c) For underground fiber installation, discuss proposed installation methodologies. The narrative shall address compliance with FCC standards as related to applicable equipment such as small cell antennae and current acceptable RF design standards currently in practice as well as to those standards found in the Public Works and Assets Utility Policy, latest revision.
(d) Discuss anticipated project phasing based on geographic and/or right-of-way limitations, limitations imposed by local events and those internal limitations affected by finance and project logistics.
(4) Communications Service. A statement setting forth a description of all the types of Communications Service the applicant plans to provide over the system.
(5) Applicant organization. The applicant shall be a corporation or limited liability company, partnership or other business entity authorized to do business in the state, as certified by the Secretary of State. The applicant must fully disclose the ownership of the proposed facilities and system.
(6) Additional requirements.
(a) 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. Louisville Metro may, at its discretion, consider such additional information as part of the application.
(b) 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.
(c) 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.
(d) 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.
(e) A copy of all insurance policies and certificates required under this chapter with a signed statement from Louisville Metro's Risk Management Department, who shall notify the Director of Finance when such policies and certificates are acceptable to Louisville Metro.
(f) 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 rights-of-way.
(g) The information provided by applicant shall be certified as true and correct, and applicant shall be responsible to certify to Louisville Metro any material changes to the information provided in the completed application during the term of any franchise.
(7) Supplementation to applications. Louisville Metro reserves the right to require such supplementary, additional or other information that it deems reasonably necessary for its determinations.
(8) Louisville Metro's rights reserved. Louisville Metro reserves the right to waive all formalities and/or technicalities where the best interest of Louisville Metro may be served.
(E) Standards and procedures for approval or renewal of franchises. Franchises shall be granted in accordance with Kentucky Constitution §§ 163 and 164. Louisville Metro shall grant 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 Louisville Metro's rights-of-way for the purposes of providing Communications Service on a nonexclusive basis within Louisville Metro, subject, however, to the standards, terms and conditions herein set forth within this chapter, which shall be deemed incorporated into every franchise, 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, Louisville Metro, the FCC and the PSC. Louisville Metro 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 that date franchisee shall:
(1) Enter into and execute such agreements and documents as required by Louisville Metro that are consistent with the terms and provisions of this chapter;
(2) File such bond or bonds as required in this chapter; and
(3) Advise the Director of Finance in writing of franchisee's address for mail and official notifications from Louisville Metro.
(G) Use of rights-of-way; police powers; franchisee's use subordinate. A franchisee shall construct and maintain its facilities in accordance with all applicable federal, state and local laws, including all permit requirements, the Public Works and Assets Utility Policy, and fee payments, and all other Louisville Metro codes and ordinances in effect as of the date of the award of its franchise or thereafter adopted or amended, to the full extent permitted by state or federal law. The grant of a franchise does not in any way affect the continuing authority of Louisville Metro 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. Louisville Metro 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 Louisville Metro's use and rights therein. Without limiting the generality of the foregoing:
(1) All rights and privileges granted herein are subject to the police powers of Louisville Metro 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 Louisville Metro 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 concerning the rights-of-way and utility standards.
(2) Louisville Metro 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 Louisville Metro's police powers shall be resolved in favor of the latter.
(3) 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 Louisville Metro on any one or more occasions to seek, or insist upon, compliance with such requirements or provisions.
(4) Any franchise granted pursuant to this chapter shall be subject to any present and future legislation or resolution, which may be enacted by Louisville Metro, and to the Public Works and Assets Utility Policy.
(H) Emergencies.
(1) Franchisee shall assign a management level individual to coordinate with, and assist Louisville Metro's Emergency Management Agency, in the development of emergency plans.
(2) If at any time, in case of fire or disaster or other emergency situation in Louisville Metro, it shall become necessary in the reasonable judgment of Louisville Metro to cut raise, lower, or relocate any facilities, such cutting raising, lowering, or relocating may be done, and any repairs rendered necessary thereby shall be made by franchisee, at its sole expense.
(I) Term. A franchise shall be for a term not to exceed 20 years.
(J) Franchise fees. During any period of time which Louisville Metro opts to forego imposing a franchise fee and to instead participate in the Multichannel Video Programming and Service Tax system set forth under KRS 136.600 et seq., a franchisee shall not be required to pay franchise fees. Before imposing franchise fees, Louisville Metro will provide at least 60 days' prior written notice to current franchisees. If at any time Louisville Metro elects to exercise its constitutional right to impose and collect franchise fees, franchisee's first franchise fee payment under this chapter shall be paid to the Louisville Metro the later of 120 days after such election, or 30 days after the last day of the first calendar quarter expiring after franchisee received written notice from Louisville Metro that Louisville Metro has opted to exercise its constitutional right to impose and collect franchisee fees.
(K) Use of franchise fees. Louisville Metro shall dedicate and use all franchise fees received under this chapter for maintenance of the rights-of-way and for government access television.
(L) Timing of payment of franchise fees. Unless otherwise agreed to in writing, all 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 Communications Service for any reason (including as a result of a sale or transfer of the franchisee's system), such franchisee shall make a final payment of any amounts owed to Louisville Metro on or before the date which is 30 calendar days after the date on which its operations in Louisville Metro cease (which shall be deemed a "due date" for purposes of this chapter).
(M) Interest on late payments and under payments. If any franchise fee, or any portion thereof, is not received by Louisville Metro 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.
(N) Fee statement. In the event that Louisville Metro imposes a franchisee fee, any franchise fee payment shall be accompanied by a statement (a "fee statement") showing the manner in which the franchise fee was calculated. Within 90 calendar days following the end of any calendar year in which Louisville Metro imposes a franchise fee, each franchisee shall submit a statement, certified as true, setting forth the amount of linear feet of rights-of-way occupied by it facilities, provided, however, that in the event that a franchisee ceases to provide Communications 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 Louisville Metro cease. In calculating the amount of linear feet of rights-of-way occupied by its facilities, a franchise shall include all facilities, including antenna and other wireless facilities, and all Facilities whether installed underneath the rights-of-way or on poles or other structures above the rights-of- way.
(O) No accord and satisfaction. No acceptance by Louisville Metro of any 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 franchise fee or any other payment be construed as a release of any claim of Louisville Metro.
(P) Description of Communications Service. During the term of the franchise, franchisee shall provide Louisville Metro with a description of any material changes to the types of Communications Service offered over its facilities in the rights-of-way within Louisville Metro during the prior year. Any individual Communications Service or item for which the franchisee has a separate charge shall be considered a separate Communications Service.
(Q) Franchise fee not a tax; payment of taxes. The 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 franchise fees required herein shall be in addition to, not in lieu of, any and all taxes, charges, assessments, licenses, fees and impositions otherwise applicable to franchisee that are or may be imposed by Louisville Metro. A franchisee shall be fully responsible for the payment of all applicable taxes.
(R) Assignment of franchise. A franchisee shall provide Louisville Metro with written notice of any transfer or assignment 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), franchisee's system, or control of franchisee to another entity other than by operation of law or to an entity controlling, controlled by, or under common control with the franchisee, without the prior written consent of Louisville Metro. No such consent shall be required, however, for a transfer in trust, by mortgage, by other hypothecation, or by assignment of any rights, title, or interest of the franchisee in the franchise or system to secure indebtedness. Louisville Metro's consent to such a transfer shall not be withheld if the acquiring entity would have qualified for an original franchise had it applied and if the acquiring entity demonstrates it has the same or equivalent insurance policies and bonds in place as is required of the original franchisee. Nothing in any approval by Louisville Metro of any transfer pursuant to this section shall be construed to waive, release or delegate any rights or powers of Louisville Metro to hold the original franchisee liable for any violation of its franchise.
(S) 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 material provisions of this chapter or its franchise, or if the franchisee, its successors and assigns, should do or cause to be done any material 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 Louisville Metro shall carry out the proceedings specified in § 116.10(B).
(T) Security for payment of fees.
(1) In the event that Louisville Metro imposes a franchise fee, every franchisee shall provide to Louisville Metro an irrevocable letter of credit in the amount of $25,000, or one half of the annual franchise fee owed, whichever is less, to secure the payment of the franchise fee for the first two years in which the franchisee is subject to a franchise fee. If, thereafter, 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.
(2) This subsection is inoperative during any period of time during which Louisville Metro elects to participate in the state baseline and local growth funds under KRS 136.600 et seq., and to have franchisees taxed accordingly.
(U) Special rules for governmental entities. Nothing herein requires Louisville Metro to apply the provisions of this chapter to a governmental entity if Louisville Metro 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 Louisville Metro cannot enforce the chapter against such entity as a matter of law. Louisville Metro is authorized to enter into agreements with other governmental agencies to facilitate Louisville Metro'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.
(Lou. Metro Ord. No. 77-2018, approved 5-29-2018)