(A) Declaration of findings. The city hereby declares as a legislative finding that the rights-of-way controlled by 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 providers of communications service, 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, non-discriminatory, and non-discretionary manner as established by this chapter to ensure coordination of providers of communications service,
maximize available space, and facilitate entry of a maximum number of providers of communications service and other services in the public interest.
(B) Title. This chapter may be referred to and cited as the "Communications Service 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 division 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 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 generally applicable ordinances and regulations necessary to the health, safety, and welfare of the public, as may be amended from time to time (to the extent not in conflict with state or federal law, or franchisee's franchise). 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 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 to that franchisee, 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. The city shall give franchisee written notice of its obligation to indemnify the city within ten (10) days of receipt of a claim or action pursuant to this section. In the event any such claim arises, the city shall tender the defense thereof to the franchisee and the franchisee shall have the right to defend, settle, or compromise any claims arising hereunder and the city shall cooperate fully herein. If the city determines in good faith that its interests cannot be represented by the franchisee, the franchisee shall be excused from any obligation to indemnify the city.
(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 and state laws, and, consistent with § 119.01(D), local laws, ordinances, regulations and policies, including, but not limited to, all laws, ordinances, regulations and policies relating to construction and use of rights-of-way.
(H) Enforcement; attorneys' fees. The city shall be entitled to enforce this chapter and any franchise granted hereunder 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 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 city and the franchisee.
(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." Has the same meaning as in 47 C.F.R. 1.6002(b), an apparatus designed for the purpose of emitting radio frequency (RF) radiation, to be operated or operating from a fixed location pursuant to FCC authorization, for the provision of personal wireless service and any commingled information services.
"COMMUNICATIONS." The transmission via the facilities, in whole or in part, of video, audio, data, writings, signs, signals, pictures, sounds or other forms of information or intelligence through wire, wireless or other electronic means, regardless of the federal or state statutory or regulatory scheme to which such transmissions may be subject.
"COMMUNICATIONS SERVICE." The transmission of communications via facilities, to a customer, or to any other person, including a private communications system owner's provision of communications via a private communications system, that is within or outside the territorial limits of the city. "COMMUNICATIONS SERVICE" includes, but is not limited to, "telecommunications service," "enhanced service," "information service," "internet access service," "broadband service," "cable service," "video programming service," "other programming service," and internet-based or "over the top" video service offerings, as those terms are now, or may in the future be, defined under federal law. The term also includes the use of all instrumentalities, facilities, conduits, apparatus and services or functionalities (among other things, the receipt, forwarding, storage, generation or delivery of communications), incidental to or designed to directly or indirectly facilitate or accept communications.
"CUSTOMER." A person located within the territorial limits of the city who ultimately uses or is intended to ultimately use communications service provided by a franchisee and is the ultimate last user of a communications service.
"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 franchise granted under this chapter, 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 a franchisee to install or operate any facilities in the rights-of-way to provide communications service. 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 FEE." The fee imposed by the city on franchisee for use of the rights-of-way pursuant to a franchise granted under this chapter.
"FRANCHISEE." The person to whom a franchise is granted, or its successors, assigns, or transferees.
"LESSEE." A person who provides communications service 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.
"PERSON." Individual, partnership, association, corporation, joint venture, legal entity or organization of any kind.
"POLE." A utility, lighting, or similar pole made of wood, concrete, metal, or other material, located or to be located within a public right-of-way. The term does not include a tower or support structure.
"PRIVATE COMMUNICATIONS SYSTEM." A system used for delivering communications by a person solely in connection with the internal communications needs of such person's business, provided that such person does not use, or permit the use of, such system to provide communications service to a customer or any other person.
"PRIVATE COMMUNICATIONS SYSTEM OWNER." A person that owns or leases a private communications system.
"RESELLER SERVICE PROVIDER." A person who provides communications service within the city solely by reselling communications service 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 property dedicated or commonly used now or hereafter for utility purposes and facilities in the city. "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, public works property, buildings or overhead lighting.
"SMALL WIRELESS FACILITIES." Wireless facilities that meet each of the following conditions:
(a) The facilities are mounted on poles, towers, or support structures fifty-five (55) feet or less in height including their antennas;
(b) Each antenna associated with the deployment, excluding associated antenna equipment, is no more than three (3) cubic feet in volume;
(c) All other wireless facilities associated with the structure, including the wireless facilities associated with the antenna and any associated equipment on the structure, including colocations, is no more than fifteen (15) cubic feet in volume, cumulatively. The following types of associated, ancillary equipment are not included in the calculation of equipment volume: electric meter, telecommunications demarcation box, grounding equipment, power transfer switch, cut-off switch, and vertical cable runs for connection of power and other services;
(d) The facilities do not require antenna structure registration under federal law;
(e) The facilities do not result in human exposure to radio frequency radiation in excess of the applicable safety standards provided in federal law; and
(f) Small wireless facilities do not include poles, towers, or support structures.
"STATE." The Commonwealth of Kentucky.
"SUPPORT STRUCTURE." A structure in the right-of-way other than a pole or a tower to which a wireless facility is attached at the time of the application for an installation permit.
"SYSTEM." Any and all equipment, structures, materials or
tangible components located in the rights-of-way and used to provide communications service, 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 service.
"TOWER." Any structure in the public right-of-way built for the sole or primary purpose of supporting a wireless facility. A “TOWER” does not include a pole or a support structure.
"WIRELESS FACILITY." A portion of a system that enables wireless services, but does not include: (i) the support structure, tower, or pole on, under, or within which the equipment is located or collocated; or (ii) coaxial, fiber-optic or other cabling that is between facilities or poles or that is otherwise not immediately adjacent to or directly associated with a particular antenna. A small wireless facility is one (1) example of a wireless facility.
"WIRELESS SERVICES." Any personal wireless services using licensed or unlicensed spectrum as defined in federal law, whether at a fixed location or mobile, provided to the public.
(Ord. 2022-1831, passed 9-8-220