(A) Unlawful to operate without a franchise. Unless otherwise specifically authorized under applicable federal or state law, 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 the city that are used to provide communications services without a valid, unexpired franchise from the city. Unless otherwise provided hereinafter by 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 § 119.07.
(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 modified by the franchise in a nondiscriminatory and competitively neutral manner. 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.
(1) Applications for an original franchise granted hereunder shall be filed with the city pursuant to the advertisement. 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) Application fee. Applications shall be accompanied by a non-refundable application fee of five thousand dollars ($5,000.00) payable to the city. 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 altered every two (2) years, to the nearest ten dollar ($10.00) increment, if required, in proportion change to the most recently-published Consumer Price Index (CPI) for communications services at the time. The 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.
(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 officers); the name, address and e-mail address, and telephone and facsimile numbers of a local representative who shall be reasonably available at all times; and information regarding how to contact the local representative in an emergency.
(c) Description of proposed system. Applicants for an original franchise to construct a new system shall provide a description of the proposed system. At a minimum, the description shall include:
1. General description of the project by geographical area.
2. Provide a description of the proposed system components to include but not be limited to:
a. Anticipated number and general location of small cell antennae;
b. Location (aerial/underground) of fiber. Where possible, provide estimated percent aerial and percent underground;
c. Anticipated ground level elements (GLEs) and general locations.
3. 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 local ordinances and/or regulations.
4. 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.
(d) Communications service. Applicant shall provide a statement setting forth a general description of the communications service the applicant plans to provide over the system.
(e) Applicant organization. The applicant shall be a corporation or limited liability company, partnership or other person authorized to do business in the state, as certified by the Secretary of State, but only to the extent such certification is applicable to the applicant. The applicant must fully disclose the ownership of the proposed facilities and system.
(f) 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 three (3) 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 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 rights-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.
(g) Supplementation to applications. The city reserves the right to require such supplementary, additional or other information that it deems reasonably necessary for its determinations.
(h) The city's rights reserved. The city reserves the right to waive ail formalities and/or technicalities where the best interest of the city may be served, provided that it shall exercise this right in a nondiscriminatory and competitively neutral manner.
(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 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 city's rights-of-way for the purposes of providing communications service on a nonexclusive basis within the city, subject, however, to the standards, terms and conditions herein set forth within this chapter, 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 PSC. The city may establish standard franchises setting forth the minimum requirements for all franchisees. Renewals, cancellations, terminations or expirations of franchises granted to cable operators shall be governed by and comply with the provisions of section 626 of the federal cable act, 47 U.S.C. § 546, or any such successor statute, and applicable law, including judicial review and appeals.
(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 the city that are consistent with the terms and provisions of this chapter and applicable law;
(2) File such bond or bonds as required in this chapter; and
(3) Advise the city in writing of franchisee's address for mail and official notifications from the city.
(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 and associated fee payments, and all other city codes and ordinances in effect as of the date of the award of its franchise or thereafter adopted or amended, to the extent permitted by state or federal law, subject to § 119.01(D). 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 ail matters be subordinate to the city'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 the city and its rights under applicable laws and regulations to regulate the construction, operation, and maintenance of franchisee's system, subject to § 119.01(D), 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 concerning the rights-of-way and utility standards. Notwithstanding the foregoing, the city will administer and enforce the provisions of this chapter and any franchises granted pursuant thereto in a nondiscriminatory and competitively neutral manner, including with respect to any governmental entity providing or seeking to provide communications service (whether directly or pursuant to an agreement with any person) using the rights-of-way.
(2) The city reserves the right to exercise its police powers. 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 police powers.
(3) Franchisee shall not be excused from complying with any of the requirements of this chapter or any subsequently adopted and lawfully binding 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.
(H) Emergencies.
(1) Franchisee shall assign a management level individual to coordinate with, and assist the city in the development of emergency plans.
(2) If at any time, in case of fire or disaster or other emergency situation in the city, it shall become necessary in the reasonable judgment of the city 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. Nothing in this chapter shall prohibit or limit any rights of a franchisee under applicable law to recover its reasonable costs incurred pursuant to this division to cut, raise, lower, or relocate facilities from the person(s) responsible for the fire, disaster, or other emergency situation.
(I) Term. A franchise shall be for a term not to exceed ten (10) years.
(J) Franchise fees. During any period of time which the city 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, the city will provide at least sixty (60) days' prior written notice to current franchisees. If at any time the city 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 city the later of one hundred and twenty (120) days after such election, or thirty (30) days after the last day of the first calendar quarter expiring after franchisee received written notice from the city that the city has opted to exercise its constitutional right to impose and collect franchisee fees. The percentage of franchise fee and method of calculation imposed on any franchisee shall be equal when compared to the percentage or method of calculation of the franchise fee applicable to any other franchisee authorized by the city to provide the same communications service. If the franchise fee is based on gross revenues, the franchise fee shall not exceed five percent (5%) of gross revenues received by franchisee for services upon which such franchise fee can be lawfully assessed under federal law, as determined in accordance with generally accepted accounting principles, and gross revenues will not include (1) any taxes, fees or assessments collected by the franchisee for pass-through to a government agency, including the franchise fee or any FCC user fee; (2) bad debt; (3) credits, refunds and deposits paid to customers; and (4) any exclusions available under applicable state law.
(K) 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 thirty (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 the city on or before the date which is thirty (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 chapter).
(L) Interest on late payments and under payments. If any 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 one and one-half percent (1.5%) per month, unless such other maximum rate is established by applicable law.
(M) Fee statement. In the event that the city imposes a franchise fee, any franchise fee payment shall be accompanied by a statement (a "fee statement") showing the manner in which the franchise fee was calculated. If the franchise fee is based on linear feet in the rights-of-way, within ninety (90) calendar days following the end of any calendar year in which the city 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 its 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 thirty (30) calendar days after the date on which its operations in the city cease. In calculating the amount of linear feet of rights-of-way occupied by its facilities, a franchisee shall include all facilities, including antenna and other wireless facilities, and all facilities whether installed underneath the rights-of-way or on poles.
(N) No accord and satisfaction. No acceptance by the city 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 the city. Notwithstanding the foregoing, franchisees shall not be required to maintain any books and records related to its calculation of the franchise fee or any other payment longer than three (3) years.
(O) Description of communications service. During the term of the franchise, franchisee shall either include the material types of communications services offered over its facilities in the rights-of-way within the city on a publicly available website, or provide the city with a description of any material changes to the types of communications service offered over its facilities in the rights-of-way within the city 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.
(P) 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 the city. A franchisee shall be fully responsible for the payment of all applicable taxes.
(Q) Assignment of franchise. A franchisee shall provide the city with written notice of any transfer or assignment of the franchise, which shall be accompanied by a transfer/assignment fee of two thousand five hundred dollars ($2,500.00). 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 the city. 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. The city'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 coverage 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.
(R) 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 the city shall carry out the proceedings specified in § 119.10(B).
(S) Security for payment of fees.
(1) In the event that the city imposes a franchise fee, every franchisee shall provide to the city an irrevocable letter of credit in the amount of twenty-five thousand dollars ($25,000.00), or one-half of the annual franchise fee owed, whichever is less, to secure the payment of the franchise fee for the first two (2) years in which the franchisee is subject to a franchise fee. If there has been no default in paying the franchise fee nor any late payment of the franchise fee during such two (2) year period, the letter of credit shall be released, and if there has been no default nor any late payment of any payment due to the city by any incumbent franchisee for the past two (2) years, no letter of credit shall be required.
(2) This division is inoperative during any period of time during which the city elects to participate in the state baseline and local growth funds under KRS 136.600, et seq., and to have franchisees taxed accordingly.
(T) Special rules for governmental entities. Nothing in this chapter shall be read to require a governmental entity to comply with this chapter where the city cannot enforce the ordinance 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. 2022-1831, passed 9-8-22)