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GENERAL PROVISIONS
§ 112.001  PURPOSE; EMERGENCY CLAUSE.
   (A)   Purpose. The purpose and intent of this chapter is to:
      (1)   Respond to increased use of the public way by telecommunications providers and to technological advances in the telecommunications industry;
      (2)   Comply with the 1996 Telecommunications Act as it applies to local governments, telecommunications providers, and the services those providers offer;
      (3)   Encourage the provision of advanced and competitive telecommunications services on the widest possible basis to businesses, institutions, and residents of the city on a competitively neutral basis;
      (4)   Permit and manage reasonable access to the public way of the city for telecommunications purposes on a competitively-neutral basis and conserve the limited physical capacity of the public way held in trust by the city;
      (5)   Assure that the city’s current and ongoing costs of granting and regulating private access to and the use of the public way are fully compensated by the persons seeking such access and causing such costs;
      (6)   Recognize the public way as a valuable city asset and secure fair and reasonable compensation to the city and its residents for permitting private use of the public way, and for physical damage and aesthetic harm to the public way from construction and installation of facilities in the public way;
      (7)   Assure that all telecommunications providers providing facilities and/or services within the city, or passing through the city, register and comply with the ordinances, rules, and regulations of the city;
      (8)   Enable the city to discharge its public trust consistent with the rapidly evolving federal and state regulatory policies, industry competition, and technological development; and
      (9)   Assure telecommunications providers that investing in infrastructure in the city is a secure and wise investment, while reserving to the city the ability to respond to new developments in the industry at the time of franchise renewal and by amending its ordinances.
   (B)   Application with existing agreements. To the extent that this chapter is not in conflict with and can be implemented with existing ordinances and franchise agreements, this chapter shall apply to all existing ordinances and franchise agreements for use of the public right-of-way for telecommunications.
   (C)   Emergency clause. Whereas passage of this chapter is deemed to be necessary for the preservation of the public health, safety, and welfare of the citizens of the city, an emergency is hereby declared to exist, and this chapter shall be in full force and effect upon its passage by the City Council and approval of the Mayor.
(Ord. 2021-01, passed 3-10-2021)
§ 112.002  DEFINITIONS.
   For the purpose of this chapter, the following definitions shall apply unless the context clearly indicates or requires a different meaning. Terms not defined in this section shall be given the meaning set forth in the Communications Policy Act of 1984, the Cable Communications Policy Act of 1984, the Cable Television Consumer Protection and Competition Act of 1992, and the Telecommunications Act of 1996. If not defined there, the words shall be given their common and ordinary meaning.
   CABLE SERVICE. The one-way transmission to subscribers of video programming, or other video, audio, or data service using the same means of transmission as used to transmit video programming; and subscriber interaction, if any, which is required for the selection or use of such video programming or other programming service.
   CITY PROPERTY. All real property owned by the city, other than the public way and utility easements as defined herein.
   CONDUIT. Any structure, or portion thereof, containing one or more ducts, conduits, manholes, handholes, bolts, or other facilities used for any telegraph, telephone cable television, electrical or communications conductors, or cable facilities.
   CONSTRUCTION. Any activity in the public 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.
   DUCT. A single enclosed raceway for conductors or cable.
   EMERGENCY. The meaning provided in O.R.S. 401.025
   FRANCHISE. An agreement between the city and a grantee which grants a privilege to use the public way and utility easements within the city for a dedicated purpose, for specific compensation, and for a specified period of time.
   GRANTEE. The person to whom or the entity to which a franchise is granted by the city.
   GROSS REVENUE. All revenue earned by a grantee from operations within the city, including, but not limited, to service to customers located within the city and other telecommunications providers or other persons who use the grantee’s facilities within the city to provide service to customers.
   PERMITTEE. A person to whom, or entity to which, the city has granted a permit to construct or install a telecommunications facility or facilities in the public way.
   PERSON. An individual, corporation, company, association, joint stock company or association, firm, partnership, or limited liability company.
   PRIVATE TELECOMMUNICATIONS 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, her, or their use and not for resale, directly or indirectly. PRIVATE TELECOMMUNICATIONS NETWORK includes services provided by the state pursuant to O.R.S. 190.240 and O.R.S. 283.140.
   PUBLIC WAY. Includes, but is not limited to, any street, road, bridge, alley, sidewalk, trail, path, and utility easement, including the subsurface under and airspace over these areas.
      (1)   This definition applies only to the extent of the city’s right or authority to grant a franchise to occupy and use such areas for telecommunications facilities.
      (2)   PUBLIC WAY does not include city-owned buildings, parks, or other property.
   TELECOMMUNICATIONS ACT. The Communication Policy Act of 1934, as amended by subsequent enactments, including the Telecommunications Act of 1996 (47 U.S.C. §§ 151 et seq.), and as hereafter amended.
   TELECOMMUNICATION CARRIER. A telecommunication utility or a cooperative corporation formed under O.R.S. Chapter 62 that provides telecommunications service as defined in O.R.S. 759.005.
   TELECOMMUNICATIONS PROVIDER.
      (1)   Any person that provides telecommunications services to any person or premises within the city;
      (2)   Any person that directly or indirectly owns, leases, operates, manages, or otherwise controls telecommunications facilities within the city; or
      (3)   Any person that is directly or indirectly owned or controlled by any person described in this definition.
         (a)   For purposes of this definition, OWNS or CONTROLS means that one person or entity owns more than 25% of the stock or assets or has more than 25% common partners, directors, or owners with another entity.
         (b)   In addition, any person that leases, purchases, or otherwise receives telecommunications service or use of a telecommunications facility for less than a reasonable price, so as to create a reasonable inference that the two parties did not deal at arm’s length, shall be deemed to be owned or controlled by the second party.
   TELECOMMUNICATIONS FACILITIES. The plant and equipment, other than customer premises equipment, used by a telecommunications provider to provide telecommunications services.
   TELECOMMUNICATIONS SERVICE. The transmission, for money or other consideration, of telecommunications in electromagnetic, electronic, or optical form.
      (1)   TELECOMMUNICATIONS SERVICE includes, but is not limited to, telephony, data transport, internet service, video, and cable television.
      (2)   TELECOMMUNICATIONS SERVICE does not include:
         (a)   One-way broadcast of radio or television signals;
         (b)   Direct-to-home satellite service within the meaning of the Telecommunications Act of 1996, § 602;
         (c)   Surveying;
         (d)   Private telecommunications networks that do not use the public way; or
         (e)   Communications of the customer which take place on the customer side of on-premise equipment.
   TELECOMMUNICATIONS SYSTEM. See TELECOMMUNICATIONS FACILITIES above.
   TELECOMMUNICATIONS UTILITY. Has the same meaning as given in O.R.S. 759.005(1).
   UTILITY EASEMENT. Any easement granted to or owned by the city and acquired, established, dedicated, or devoted for public utility purposes.
   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 purposes of providing utility or telecommunication services.
(Ord. 2021-01, passed 3-10-2021)
§ 112.003  JURISDICTION AND MANAGEMENT OF THE PUBLIC WAY.
   (A)   The city has jurisdiction and exercises regulatory management over the public way whether the city has a fee, easement, or other legal interest in the public way and whether the legal interest was obtained by grant, dedication, prescription, reservation, condemnation, annexation, foreclosure, or other means.
   (B)   No person may occupy or encroach on a public way or other city property without the permission of the city. The city grants permission to use public way by franchises and permits.
   (C)   The city retains the right and privilege to cut or move any telecommunications facilities located within the public way as the city may determine to be necessary, appropriate, or useful in response to a public health or safety emergency.
(Ord. 2021-01, passed 3-10-2021)  Penalty, see § 10.99
§ 112.004  REGULATORY FEES AND COMPENSATION NOT A TAX.
   The fees provided for in this chapter and any compensation charged and paid for use of the public way provided for in this chapter are not a tax and are separate from, and in addition to, any and all federal, state, local, and city charges as may be levied, imposed, or due from a telecommunications provider, its customers or subscribers, or on account of the lease, sale, delivery, or transmission of telecommunications services.
(Ord. 2021-01, passed 3-10-2021)
§ 112.005  DUTY TO PROVIDE INFORMATION.
   (A)   Upon request, each grantee shall provide the city with an accurate map or maps certifying the location of all of the grantee’s telecommunications facilities within the public way.
   (B)   Within ten business days of a written request from the city, each grantee shall furnish the city with information sufficient to demonstrate that grantee has complied with all requirements of this chapter. All books, records, maps, and other documents maintained by the grantee with respect to its facilities within the public way shall be made available for inspection by the city at reasonable times and intervals.
(Ord. 2021-01, passed 3-10-2021)
FRANCHISE APPLICATION
§ 112.020  REGISTRATION AND FRANCHISE REQUIREMENTS.
   (A)   This chapter requires all telecommunications providers to register with the city and requires all telecommunications providers who use the public way to obtain a franchise from the city.
   (B)   A telecommunications provider that holds a current, valid franchise from the city may continue to provide the services authorized by its franchise for the duration of the current term of the franchise.
   (C)   Nothing in this chapter is intended to override state or federal law, and any provision that would conflict with state or federal law if applied to a particular registrant or grantee shall be unenforceable to the extent of the conflict and only to that extent.
(Ord. 2021-01, passed 3-10-2021)
§ 112.021  REGISTRATION REQUIRED; FEE.
   (A)   Except as provided in § 112.022, all telecommunications providers shall register within 30 days from the effective date of this chapter, March 3, 2021, or prior to providing any service to customers within the city. The purpose of registration is to provide the city with accurate and current information concerning the telecommunications providers who offer to provide telecommunications facilities within the city. Applicants shall provide the following information:
      (1)   The appropriate license from the state’s Public Utility Commission (PUC) or the Federal Communications Commission (FCC);
      (2)   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;
      (3)   The name, address, and telephone number for the duly authorized officer, agent, or employee to be contacted in case of an emergency; and
      (4)   A description of the general types and the locations of telecommunications facilities that the registrant currently owns or leases within the city; a description of the general types and the locations of telecommunications facilities that the registrant intends to construct within the city within two years of the date of registration or filing required by this section and a description of types of the telecommunications service or services (e.g., local telephone, long distance telephone, cable service, other telecommunications service, and whether service is to be provided to end-users or to other telecommunications providers) that the registrant intends to offer or provide to individuals, firms, businesses, or institutions within the city.
   (B)   Each application for registration as a telecommunications provider shall be accompanied by a non-refundable registration fee in the amount of $100. This fee may be waived by the City Recorder on a case-by-case basis.
   (C)   Registration as a telecommunications provider need not be renewed, but the registrant must notify the City Recorder of any change to the information required by divisions (A)(1), (A)(2), and (A)(3) above and must file annually with the City Recorder an updated version of the information required by division (A) above
(Ord. 2021-01, passed 3-10-2021)
§ 112.022  REGISTRATION; EXCEPTIONS.
   The following telecommunications providers are exempt from registration:
   (A)   Telecommunications providers that are owned and operated exclusively for its own use by the United States, the state, or a political subdivision of the state; and
   (B)   A private telecommunications network, if that network does not occupy any public way of the city.
(Ord. 2021-01, passed 3-10-2021)
§ 112.023  FRANCHISE REQUIREMENT.
   Any telecommunications provider who desires to occupy any public right of way of the city shall first obtain a franchise as provided in this chapter. For purposes of this section, OCCUPY THE PUBLIC WAY means to own, lease, rent, or possess the right to make physical changes to a telecommunications facility in the public way, but does not include the use of a telecommunications facility in the public way if such use is limited to providing telecommunications service to customers without any ownership, leasehold, or other possessory interest in, or the right to make any physical changes to, the telecommunications facility. Only one franchise is required for a single telecommunications facility that occupies the public way; if an owner leases its facility to another telecommunications provider and the owner has obtained a franchise, the lessee need not also obtain a franchise.
(Ord. 2021-01, passed 3-10-2021)
§ 112.024  APPLICATION; REVIEW FEE.
   (A)   Any person who desires a telecommunications franchise must register as a telecommunications provider and shall file with the City Recorder an application which includes the following information:
      (1)   The identity of the applicant;
      (2)   A description of the telecommunications services that are to be offered or provided by the applicant over its telecommunications facilities;
      (3)   Engineering plans, specifications, and a network map of the facilities located within the public rights of way in the city, including the location and route requested for applicant’s proposed telecommunications facilities. The city may require the information to be provided in electronic form readable by city computers, or may specify another format;
      (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 telecommunications services proposed; and
      (6)   An accurate map showing the location of any existing telecommunications facilities, if any, in the city that applicant intends to use or lease.
   (B)   An application and review fee of $500 shall be paid to the city as part of the application filed pursuant to division (A) above. This fee may be waived by the City Recorder on a case-by-case basis.
(Ord. 2021-01, passed 3-10-2021)
§ 112.025  FRANCHISE GRANTED; FEE.
   (A)   Determination by the city. The City Recorder shall issue a written determination granting or denying the application in whole or in part. If the application is denied, the written determination shall include the reasons for denial. A denial may be appealed to the City Council which may elect to hear the appeal or may elect to appoint a Hearings Officer to hear the appeal and make a report to the City Council, which shall have the final authority.
   (B)   Rights granted. No franchise granted pursuant to this chapter shall convey any right, title, or interest in the public way, but shall be deemed a grant to use and occupy the public way for the limited purposes and term and upon the conditions stated in the franchise agreement.
   (C)   Term of grant. Unless otherwise specified in a franchise agreement, a telecommunications franchise granted hereunder shall be in effect for a term of ten years.
   (D)   Franchise territory. Unless otherwise specified in a franchise agreement, a telecommunications franchise granted hereunder shall be the entire city to be served by the grantee and the public way necessary to serve such area.
   (E)   Franchise fee. Each grantee shall pay to the city, on an annual basis and on terms to be determined by the City Council, a franchise fee; a telecommunications carrier shall pay 5% of its gross revenue derived from exchange access services, as defined in O.R.S. 401.710 or a successor statute, less net collectibles from such revenue.
(Ord. 2021-01, passed 3-10-2021)
§ 112.026  AMENDMENT OF FRANCHISE.
   Conditions for amending a franchise are as follows.
   (A)   If the city orders the telecommunications provider to locate or relocate its telecommunications facilities in a public way not included in a previously granted franchise, the city shall grant an amendment without further application or additional fee.
   (B)   (1)   A new application and amended franchise shall be required of any telecommunications provider that desires to provide a different type of service (e.g., cable, telephony, and the like) which was not included in a franchise previously granted by the city.
      (2)   A new application and amended franchise will not be required if a telecommunications provider adds new or enhanced services of the same type authorized by its existing franchise (e.g., a cable service provider offers digital music service as well as video, or a telephonic- service provider adds features like call waiting, call forwarding, or caller ID).
(Ord. 2021-01, passed 3-10-2021)
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