CHAPTER 10-7
FRANCHISE CODE

10-7-1 Authority and Benefits of Tribal Government.

(A)    This Chapter is adopted pursuant to the authority vested in the Potawatomi Tribal Council under the Constitution and By-Laws of the Prairie Band of Potawatomi Indians.

(B)    Pursuant to the Nation’s retention of the full spectrum of sovereign powers, the Tribal Council hereby establishes this Chapter to further the best interests of the Nation, its members, and their communities and for the purposes of managing the natural gas, electrical, telecommunications, and other utility functions on the Nation’s lands, and to regulate all such matters of Utilities and for the purposes of facilitating economic development and achieving the Nation’s clean energy and sustainability goals, and providing and saving tribal revenues by effectively managing tribal utility resources.

(C)    Among the benefits provided by the Nation to tribal members and to non-members residing or conducting business on the Nation’s lands are the following: the provision of governmental services, including public sewage collection systems, water systems to provide safe drinking water and fire protection, tribal roads, solid waste collection, and social services and education programs; the maintenance of public health, safety, and law and order, including tribal police, hazardous emergency response, environmental protection, comprehensive land use planning and regulation, and the provision of a Tribal Court system with general jurisdiction for the resolution of civil disputes and limited jurisdiction for the prosecution of criminal actions; the protection of lands and resources; the provision of public recreational amenities and facilities such as recreational facilities, meeting rooms, and parks; the support of cultural and religious events and activities; the promotion and regulation of businesses and economic development; and the provision of employment to both members and non-members of the Tribe.

(D)    This Chapter clarifies the obligations of Utilities which provide services on the Reservation. As a condition for carrying on Utility and commercial transactions on the Reservation, and as a condition for the operation and maintenance of Utility facilities on the Reservation or to conduct Utility commercial transactions, all Utilities shall be bound by the obligations set forth herein, and as described in the corresponding Franchise Agreement.

(Enacted by PBP TC No. 2025-052, February 15, 2025)

10-7-2 Definitions.

(A)    “Franchise” means a Utility’s right to provide defined services under the jurisdiction of the Nation on all or part of the Reservation, or an agreement made with a Utility pursuant to this Chapter. A Franchise may be “Exclusive” which means that only one entity has the right to provide services within the franchised area, or “Nonexclusive” which means that more than one entity may provide similar services within that franchised area.

(B)    “Nation, Tribe, or Tribal” means or refers to the Prairie Band Potawatomi Nation.

(C)    “Order” means a decision of the Tax Commission regarding a Franchise.

(D)    “Reservation” means the Prairie Band of Potawatomi Indian Reservation as defined in Article I of the Prairie Band Potawatomi Nation’s Constitution.

(E)    “Tax Commission” means the body established in Chapter 10-1 of this Code.

(F)    “Tribal Council” means the Prairie Band Potawatomi Nation’s governing body.

(G)    “Utility” means any business operating on the Reservation which furnishes the public with communications services, electricity services, natural gas services, water services, sewer services, solid waste services, or public transportation services; and any business providing any of these services off the Reservation which owns facilities or real property interests on or crossing the Nation’s lands. No department of the Nation or entity formed by the Nation and owned at least 51% by the Nation shall be considered a “Utility” for purposes of this Chapter.

(Enacted by PBP TC No. 2025-052, February 15, 2025)

10-7-3 Franchise Requirement.

At the discretion of the Tax Commission, any type of Utility shall be subject to the requirement to Franchise:

(A)    All Utilities which have received a Notice of Franchise from the Tax Commission and are operating on the Reservation must obtain and maintain either an Exclusive or Non-exclusive Franchise from the Nation as is documented in a Franchise Agreement. All Franchises shall be Nonexclusive unless specifically described as Exclusive in the Franchise Agreement.

(B)    All Utilities which have received Notice of Franchise from the Tax Commission are required to pay an annual Franchise Fee in the amount of $25,000 for for-profit Utilities and $10,000 for non-profit Utilities. The Tax Commission shall provide each Utility a form to complete at the beginning of the calendar year which specifies a due date for submission of the Franchise Fee and completed form.

(C)    Unless explicitly provided in a Franchise Agreement, this Chapter does not impair, amend, or displace any existing agreement between the Nation and a Utility relating to the provision of specific services.

(D)    Franchise obligations may be enforced by the Tax Commission and the Tribal Courts as follows:

(1)    Any Utility which fails to pay its annual Franchise Fee by the associated due date shall be subject to a fine in the amount of $10,000 in addition to the Franchise Fee.

(2)    Any Utility which fails to sign a Franchise Agreement or enter into good faith negotiations related to any service term within the Franchise Agreement by a due date established by the Tax Commission shall be subject to a fine in the amount of $25,000 in addition to a reasonable Franchise Fee to be determined by the Tax Commission based on known information related to the Utility’s services or presence on the Nation’s lands.

(3)    Continued failure to pay an annual Franchise Fee and/or failure to sign a Franchise Agreement, or enter into good faith negotiations related to any service term within the Franchise Agreement by a due date established by the Tax Commission shall subject a Utility to enforcement proceedings in the Tribal Court, including a revocation of Franchises or other permissions to operate on the Reservation and including exclusion from the Reservation or forfeiture of real property or personal property assets.

(Enacted by PBP TC No. 2025-052, February 15, 2025)

10-7-4 Procedures for Franchising.

(A)    Franchises shall be issued via a Franchise Agreement which has been reviewed and approved by the Tribal Council and signed by the Chairman of the Tribal Council. Such signature shall follow:

(1)    The Tax Commission’s written recommendation to the Chairman of the Tribal Council after the Tax Commission has considered all relevant facts, advice from the Tribal Attorney, and the best interests of the Nation, and

(2)    Signature by the Utility’s authorized representative.

(B)    Entities with existing Franchise Agreements pursuant to this Chapter:

(1)    Existing Franchise Agreements shall automatically renew every year on the date they were signed for a period of ten (10) years, unless notice to the Utility is provided by the Tax Commission that a new Franchise Agreement is desired by the Nation.

(2)    In the event of such notice to a Utility, the process set forth in Section 10-7-4(C) of this Chapter shall initiate.

(C)    Entities operating on the Reservation without existing Franchise Agreements pursuant to this Chapter:

(1)    At any time, the Tax Commission may issue a Notice of Franchise to a Utility providing service to customers on the Reservation.

(2)    Each Notice of Franchise shall contain:

(a)    A copy of this Franchise Code.

(b)    A statement which indicates whether the Franchise will be Exclusive or Nonexclusive, and if Exclusive, then the geographical service area within the Reservation which is proposed by the Nation to be Exclusive to the Utility.

(c)    A draft Franchise Agreement which shall contain non-negotiable provisions as provided in 10-7-5 of this Code and may contain, at the Nation’s discretion, additional negotiable service provisions.

(d)    Exhibits to the Franchise Agreement to be completed by the Utility containing:

(i)    Information related to the Obligations of a Franchisee as set forth herein.

(ii)    Information regarding the rates charged for services and each type of services provided.

(iii)    Other information as requested.

(e)    A date approximately thirty (30) days after the Notice of Franchise by which the Utility shall be required to reply in writing to the Notice of Franchise. Such reply shall contain:

(i)    A statement either stating the Utility’s intent to sign the Franchise Agreement or the Utility’s intent to negotiate service provisions which are unique to the Utility.

(ii)    Completed Exhibits to the Franchise Agreement.

(f)    A date approximately ninety (90) days after the Notice of Franchise by which the Franchise Agreement must be signed by the Utility’s authorized representative, unless a written extension is granted by the Tax Commission during which good faith negotiations of the Utility’s service provisions are ongoing.

(D)    Any entity which is not a department of the Nation or entity formed by the Nation and owned at least 51% by the Nation that wishes to provide any new Utility service on the Reservation may apply in writing for a Franchise Agreement to the Tax Commission. The Tax Commission shall consider all requests for new Franchises and shall process those that are determined to be in the best interests of the Nation, and which do not conflict with existing Franchise Agreements.

(Enacted by PBP TC No. 2025-052, February 15, 2025)

10-7-5 Obligations of Utilities.

(A)    A Franchise Agreement may contain exemptions from one of more of these obligations. No exemption will be effective unless it explicitly references this provision and the exempted subsection number in the Franchise Agreement. All exemptions will be interpreted narrowly. A particular Franchise Agreement may contain additional obligations specific to the service provided.

(B)    The following obligations attach to Utilities:

(1)    Jurisdiction of the Nation. All Utilities shall explicitly be subject to the laws and jurisdiction of the Nation, as set forth in the Constitution and the Prairie Band Potawatomi Nation Law and Order Codes.

(2)    Obligation to Serve. All Utilities serving customers on the Reservation shall promptly accept all new customers and shall continue providing such services to existing customers who comply with utility policies and using procedures consistent with Tribal law or with rates and procedures applied to other customers within the State of Kansas until notice has been provided to the Utility by the Tax Commission that a certain provision of service is no longer an obligation, or until the Tax Commission approves rates and/or conditions governing such service which are different from those customarily provided to other customers within the State of Kansas.

(3)    Public Benefit Funds Collected. All funds collected from Utility customers within the Reservation which are collected for the benefit of the public under a State of Kansas approved rate but which are not deemed to be a prohibited State Tax, shall be utilized by the Utility to benefit residents of the Reservation. Such funds collected from customers within the Reservation may not be used to benefit other customers of the Utility not within the Reservation.

(4)    Competition. All Utilities to serve customers within the Reservation shall be in competition with others providing similar services, as follows:

(a)    Unless contrary to federal law, all infrastructure designed for the delivery of the service shall be open to use by any other service providers. Use of the infrastructure owned by one service provider by another service provider may be subject to charges by the owning entity, however, such charges shall be provided under the same terms and conditions that the service provider owning the infrastructure provides to itself.

(b)    Such charges shall be public information, to be shared with interested parties at their request.

(c)    Use of the infrastructure shall be provided on a first come first served basis. All capacity of the infrastructure not in use during the period of a request shall be available for use by the next requesting service provider who has customers ready and willing to use the system.

(d)    Capacity for use of the system may be sold in reasonable minimum quantities.

(e)    Any customer who switches to a new service provider using the same infrastructure must do so in writing.

(5)    Reporting. On an annual basis, and at the request of the Tax Commission, all Utilities shall provide to the Tax Commission:

(a)    Schedules of their services provided, and their rate or tariff for each service.

(b)    Maps or updates to maps of their service territory and the infrastructure therein. The Tax Commission may require that such maps may be in an electronic format sufficient for input into a GIS database.

(c)    The annual measured usage of each category of service provided on the Reservation.

(d)    The annual measured usage of each service provided to the Nation and/or its subsidiaries, if such subsidiary makes use of the service provided within the Reservation.

(e)    The annual amount of any Public Benefits Funds collected, and the manner of use of those funds.

(f)    An annual corporate or other report verified by the oath of an officer thereof, if applicable.

(g)    Other information as is requested by the Tax Commission after reasonable notice.

(6)    Quality and Reliability of Service. All Utilities shall maintain reliable service consistent with service provided to similarly situated customers within the State of Kansas unless Tribal law or a Franchise Agreement requires otherwise. A Franchise Agreement may indicate higher standards of reliability where such standards are in the best interest of the Nation, however, the Tax Commission shall also approve rate increases as necessary and just to fund needed infrastructure or technical improvements for meeting such higher standards.

(7)    Indian Employment. All Utilities shall be bound by tribal employment laws and are subject to audit by the Nation.

(8)    Metering and Billing.

(a)    At all times, Utilities’ Meters shall be properly calibrated so that accurate measurement of services used is maintained. Evidence of such calibration shall be provided to the Tax Commission upon request. The Tax Commission shall have authority to audit the measurement of all services provided under terms described by the Tax Commission.

(b)    Utilities’ Bills shall be in a format which provides information to customers in a manner that is easy to understand, and which promotes conservation of resources.

(9)    Disconnection or Discontinuation of Service Policies. Utilities shall maintain reasonable public policies for disconnection of customers and for discontinuation of service to customers. Such policies shall provide for reasonable notice but not less than thirty (30) days prior to disconnection, except in the case of emergencies. In the event of a disconnection or discontinuation of service to a customer for failure to pay during winter months of cold, or inclement or hazardous weather, notice of a pending disconnection shall be extended for a period of thirty (30) additional days. Reconnection fees not requiring physical infrastructure changes shall include payments of past due amounts and a service fee of no more than ten dollars ($10.00) per reconnection.

(10)    Provision of Data. Utilities, upon request of the Tax Commission, shall furnish to the Tax Commission, in such form and such detail as the Tax Commission shall prescribe, all tabulations, computations, and all other information required by it to carry into effect any of the provisions of this Chapter and shall make answers to the best of their knowledge, to all questions submitted by the Tax Commission. Whenever required by the Tax Commission, every Utility shall deliver to the Tax Commission copies of any and all maps, profiles, contracts, agreements, franchises, reports, books, accounts, papers, and records in its possession or in any way relating to its property or affecting its business containing evidence relating to the merits of or pertinent to the hearing of any issue pending before the Tax Commission.

(11)    Inventory of Physical Properties. Utilities, upon request of the Tax Commission, shall file with the Tax Commission an inventory of all its physical properties on the Reservation, designating the exact location of its property by GIS location. Such inventory shall show in detail the cost of construction together with the depreciation charges incident thereto since construction, or may show the replacement cost of such properties, if in the opinion of the Tax Commission the original cost and depreciation charges cannot be obtained. In the event any Utility refuses or neglects to file such inventory, or the inventory so filed is inaccurate, the Tax Commission may send its agents upon the ground and make an inventory as desired by the Tax Commission. The entire cost of making such inventory by the agents of the Tax Commission shall be paid by the Utility from its profit and loss account and shall not be charged to operating expenses, and such payment shall be made to the Tribe.

(12)    Improvements. Utilities may make improvements to their existing facilities with reasonable advance notice to the Tax Commission. Utilities shall make improvements to their existing plant, scales, equipment, apparatus, facilities, or other physical property, or erect new structures in a manner and within the time specified by the Tax Commission upon a finding of the Tax Commission, after the opportunity to be heard by the Utility, that such improvement, addition, extension, repair, or change promotes the security or convenience of its customers or the public.

(13)    Interconnection Standards and Obligations. Utilities shall maintain reasonable public policies for interconnection to their facilities. No Utility shall disapprove an interconnection that meets national standards of safety and reliability. The Nation and its subsidiaries shall have the right to interconnect wholesale or retail facilities to the facilities of any Utility under the same terms and conditions as the Utility interconnects to its own facilities.

(14)    Joint Use of Equipment. Utilities shall permit the use of their conduits, subways, tracks, wires, poles, pipes, or other equipment or any part thereof on, over, or under any street or highway, by any other Utility, after an opportunity to be heard, upon Order of the Tax Commission. The Order shall include findings that:

(a)    Public convenience and necessity require the joint use of poles or facilities,

(b)    Such use will not result in irreparable injury to the owner or other users of the equipment,

(c)    The Utility to whom the use is permitted is liable to the owner, or other users of such conduits, subways, tracks, wires, poles, pipes, or other equipment for such damage as may result from their use, and

(d)    Appropriate compensation is set forth.

(15)    Safety. Utilities shall act in a manner as to promote and safeguard the health and safety of its employees, customers, and the public, and to this end to prescribe the installation, use, maintenance, and operation of appropriate safety or other devices and appliances, and to establish appropriate standards of equipment, and to require the performance of any other act necessary for the health or safety of its employees, customers, or the public.

(16)    Authority to Enter Premises. Utilities shall allow representatives of the Nation and their agents to enter upon any premises occupied by any Utility for the purpose of making the examinations and tests and exercising any of the other powers provided for in this Chapter and to set up and use on such premises any apparatus and necessary appliances. The agents and employees of such Utility shall have the right to be present at the making of such examination and tests.

(17)    Net Metering. All electrical Utilities shall have policies providing for Net Metering on the Reservation. Net Metering is the ability of utility customers to install distributed generation and/or battery systems behind the Utilities’ meter and to run that generator as needed, while the meter nets power coming to the customer and the power going out of the customer’s meter.

(18)    Energy Conservation. Utilities shall promote energy and other resource conservation as is set forth in this Code.

(19)    Low Income Programs. Utilities shall maintain a program for subsidizing low-income persons within the Reservation as is set forth in this Code.

(20)    Environmental Obligations. Utilities shall protect the environment as is set forth in this Code and in other Federal and the Nation’s laws.

(21)    Special Responsibilities. Utilities shall have the special utility responsibilities set forth in this Code and in other Federal and the Nation’s laws.

(22)    Maintenance. Utilities shall have the maintenance obligations as set forth in this Code.

(23)    Federal Regulations. Utilities shall have all obligations described in federal regulation, including but not limited to those set forth in 25 U.S.C. 169.

(24)    Nation’s Departments and Entities. Utilities shall cooperate with the departments of the Nation and any entity formed by the Nation and owned at least 51% by the Nation in meeting the Nation’s goals.

(Enacted by PBP TC No. 2025-052, February 15, 2025)

10-7-6 Energy Efficiency.

(A)    Weatherization. Utilities providing electrical utility related services shall promote the weatherization of buildings through programs. Any state or federal funds received for these programs by the Utility shall be available for use within the Reservation, if like funding is not also available to the Reservation.

(B)    Energy Efficiency. Utilities providing electrical utility related services shall promote efficient use of energy through educational programs, technical assistance programs, energy audits, and financial assistance for improving energy efficiency. Any state or federal funds received for these programs by the Utility shall be available for use within the Reservation, if like funding is not also available to the Reservation.

(Enacted by PBP TC No. 2025-052, February 15, 2025)

10-7-7 Low Income Program.

(A)    Utilities providing electrical utility related services shall maintain a program for subsidizing low-income persons within the Reservation through programs consistent with those available to customers within the State of Kansas. Any state or federal funds received for these programs by the Utility shall be available for use within the Reservation, if like funding is not also available to the Reservation.

(B)    The Nation may provide Utilities with names of customers to be targeted for these programs if the Nation determines that the elderly or handicapped, or others should receive a preference in this program.

(Enacted by PBP TC No. 2025-052, February 15, 2025)

10-7-8 Environmental Program.

(A)    Facilities on Reservation. Utilities shall be bound by Federal and Tribal environmental laws regarding all facilities on the Reservation. Utilities have a duty to protect plants, animals, water, air, and land within the Reservation including areas and resources of cultural, religious, and historical significance to the Tribe while doing business on the Reservation and shall adjust their practices when environmental harm can be avoided. Utilities shall work with [all Tribal offices] when issues arise regarding their actions within the Reservation.

(B)    Notice of Off-reservation Environmental Issues. Utilities shall provide written notice to the Nation of all new activities or proposals of the Utility that may have a significant impact on the regional environment. Such notice is required of, but not limited to:

(1)    Proposed construction of new facilities likely to cost over $50,000.

(2)    Proposed changes in company policy significantly affecting the environment.

(3)    Applications for licenses or extension of licenses to Federal entities.

(4)    Transfer of significant ownership of assets of the company.

(5)    Major Federal or State initiatives.

(Enacted by PBP TC No. 2025-052, February 15, 2025)

10-7-9 Special Utility Responsibilities.

In exercising its functions within the boundaries of the Reservation, Utilities shall adhere to the following principles:

(A)    No Utility shall, as to rates, charges, service, facilities or in any other respect, make or grant any preference or advantage to any corporation or person or subject any corporation or person to any prejudice or disadvantage, except as set forth in Tribal law. No Utility shall establish or maintain any unreasonable difference as to rates, charges, service, facilities or in any other respect, as between localities on the Reservation.

(B)    Except in emergency situations, the Utility shall use reasonable efforts to include the customers within the boundaries of the Reservation in the decision-making processes which it undertakes for decisions directly affecting service within the Reservation.

(C)    All powers of the Utility shall be exercised in good faith and in a manner believed to be in the best interests of the Tribe and Utility’s customers.

(Enacted by PBP TC No. 2025-052, February 15, 2025)

10-7-10 Maintenance Obligations.

(A)    All Utilities shall provide written notice to the Nation at least three (3) business days prior to entering the Reservation for maintenance purposes. Such written notice shall include a description of the maintenance to be performed and the expected timeline for the completion of the maintenance procedures. In the case of an emergency, the Utility shall use its best efforts to provide such notice to the Nation prior to entering the Reservation. If the Utility enters the Reservation during an emergency prior to providing written notice to the Nation, the Utility shall provide written notice within twenty-four (24) hours of entering the Reservation. Franchise documents shall provide the point of contact for notice.

(B)    Utilities shall allow Tribal representatives to accompany them during maintenance. Tribal representatives shall have the authority to establish reasonable procedures for protection of cultural plants, cultural places, and the environment.

(C)    Utilities shall keep the trimming of trees and other vegetation to a minimum. In accordance with Chapter 18-13, Utilities shall obtain a valid tribal permit issued by the Tribal Police Fish and Wildlife Division prior to taking, cutting, and harvesting any timber or wood.

(Enacted by PBP TC No. 2025-052, February 15, 2025)

10-7-11 Ownership of Wires and Facilities.

(A)    Unless an easement or right-of-way document signed by the Tribe and approved by the Bureau of Indian Affairs exists with regard to Utility facilities, no Utility holds real property rights or may claim that real property rights have been transferred due to the existence of facilities on the Reservation. All facilities without such documentation are deemed to be personal property. All infrastructure affixed to real property and other fixtures are deemed to be personal property.

(B)    Any new facilities installed on the Reservation by Utilities in order to extend service to new customers shall be the personal property of the Tribe, and not the personal property of the Utility, when the new facilities are paid for by the Tribe. The Utility shall provide notice to the Tribe of each such facility constructed.

(C)    Any facilities which are the personal property of the Tribe pursuant to this Section that are used by Utility to deliver their product or service shall be operated and maintained by the Utility in a manner consistent with the operation and maintenance of their own facilities.

(Enacted by PBP TC No. 2025-052, February 15, 2025)

10-7-12 Rates and Tariffs.

(A)    Rate Obligations:

(1)    All charges made, demanded, or received by any Utility for any product or commodity furnished or to be furnished or any service rendered or to be rendered shall be just and reasonable. Every unjust or unreasonable charge made, demanded, or received for such product or commodity or service is prohibited and declared unlawful.

(2)    All rates for standard services shall be publicly available to customers.

(3)    No Utility, except as in this Title, shall charge, demand, collect, or receive a greater or less or different compensation for the Utility services than in the filed rates consistent with other customers within the State of Kansas until notice has been provided to the Utility by the Tax Commission that a certain provision of service is no longer an obligation, or until the Tribal Council or the Tax Commission approves rates and/or conditions governing such service which are different from those customarily provided to other customers within the State of Kansas.

(4)    All rules and regulations made by a Utility affecting or pertaining to its charges or service to the public shall be just and reasonable.

(B)    The Tax Commission may, after due process, in its sole discretion, order an approval of special rates for one or more large users of a particular utility service, however, such negotiated rates shall be demonstrated to be fair to all other customers and in the best interest of the Nation.

(C)    No Utility owning, controlling, or operating any property located within the Reservation which is used in the generation, transmission, distribution, or supply of electric power and energy to the Reservation public or any portion thereof shall merge, sell, lease, assign or transfer, directly or indirectly, in any manner whatsoever, any such property or interest therein, or the operation, management or control thereof, or any Franchise covering the same, except when authorized to do so by the Tax Commission after due process.

(Enacted by PBP TC No. 2025-052, February 15, 2025)