Chapter 5.30
COMMUNICATIONS
Sections:
5.30.010 Communications—Title.
5.30.020 Communications—General.
5.30.030 Communications—Definitions.
5.30.040 Communications—Registration required.
5.30.050 Communications—License required.
5.30.060 Communications—Registration fees.
5.30.070 Communications—Annual license fees.
5.30.080 Communications—Fees generally.
5.30.090 Communications—Inspection and conditions relating to licensee’s facilities.
5.30.100 Communications—Removal of facilities—Relocation—Termination of use of right-of-way.
5.30.110 Communications—Administrative rules.
5.30.120 Communications—Penalties.
5.30.010 Communications—Title.
This chapter shall be known and cited as the city of Sutherlin communications ordinance. (Ord. 949 § 1 (part), 2004)
5.30.020 Communications—General.
The provisions of Section 5.30.070 and the rules adopted by the city manager pursuant to Section 2.09.020 are intended to authorize and regulate communication activities in the city and on public property to the extent permitted under the laws of the United States and the state of Oregon. (Ord. 949 § 1 (part), 2004)
5.30.030 Communications—Definitions.
For the purpose of this chapter, the following terms are defined:
“Adjusted gross revenues” means all gross revenues attributable to a period less the sum of: (1) gross revenues for the period upon which the operator has paid a license fee under this chapter, and (2) separately billed city license fee surcharges for the period. The operator claiming a deduction for license fee surcharges must submit copies of all invoices for the surcharges claimed as a condition to claiming a deduction for the surcharges.
“Cable services” means:
1. The one-way transmission to subscribers of (a) video programming, or (b) other programming service; and
2. Subscriber interaction, if any, which is required for the selection or use of such video programming or other programming service.
“Cable system” means a facility, consisting of a set of closed transmission paths and associated signal generation, reception, and control equipment, that is designed to provide cable service which includes video programming and which is provided to multiple subscribers within a community. A reference to a cable system includes pedestals, equipment enclosures (such as equipment cabinets), amplifiers, power guards, nodes, cables, fiber optics and other equipment necessary to operate the cable system. As used herein, “cable system” does not include:
1. A facility that serves only to retransmit the television signals of one or more television broadcast stations;
2. A facility that serves subscribers without using any public rights-of-way or public utility easements;
3. A facility of a common carrier which is subject, in whole or in part, to the provisions of Title II (Common Carriers) of the Communications Act of 1934, as amended, except that such facility shall be considered a cable system to the extent such facility is used in the transmission of video programming directly to subscribers; or
4. A facility of any electric utility used solely for operating its electric utility systems.
“Communication activities” means and includes telecommunications services, cable services, open video system services, and private communications system services.
“Communication company facility” means and includes a telecommunications facility, cable system, open video system, or any part of any of the foregoing, but not a private communications system.
“FCC” means the Federal Communications Commission or its designee.
“Gross revenues” means any and all revenue, of any kind, nature or form, without deduction for expense, derived from the ownership or management of communication business facilities within the city, from communication activities within the city, or billed to communication activities customer accounts with addresses within the city. Gross revenues shall be calculated using consistently applied, generally acceptable accounting practices and methods described in an operator’s registration or license application.
“License” refers to the authorization granted by the city to an operator to occupy the space in, upon, across, beneath, or over any public right-of-way in the city with a facility used in communication activities. Any such authorization, in whatever form granted, shall not exempt the licensee from the need to obtain any other permits, registration or authorization required by this code, including, but not limited to:
1. The registration required to be made under Section 5.30.040; or
2. Any permit, agreement or authorization required in connection with operations in the public right-of-way or on other public property including, without limitation, permits and agreements for placing devices on or in poles, conduits or other structures, whether owned by the city or a private entity, or for excavating or performing other work in or along public rights-of-way.
“License fee surcharge” means any amount itemized as a surcharge for the payment of license fees under this chapter and added to the base fees, rentals or other charges made by a licensee to another operator for the use of a facility by the operator.
“Open video system” or “OVS” means a facility consisting of a set of transmission paths and associated signal generation, reception, and control equipment that is designed to provide cable service, which includes video programming, which is provided to multiple subscribers within a community, and which the Federal Communications Commission or its successor has certified as compliant with Part 76 of the Rules of the Federal Communications Commission, 47 CFR, Part 76, as amended from time to time.
“Operator” means any person who engages in communication activities using a communication company facility or a private communications system located within the city or who owns, operates, controls, or is otherwise responsible for a communication company facility. A person who leases a communication company facility as a lessee, or as a lessor, shall be treated as an operator for purposes of this code.
“Person” includes any individual, corporation, partnership, association, joint stock company, trust, limited liability company, or any other legal entity.
“Private communications system” means a facility that provides communications services for the exclusive use of the owner’s business, but not for hire to others, and which facility is placed, in whole or in part, in the public right- of-way.
“Radio common carrier” means any individual or entity in the business of making available facilities to provide radio communications service, audio paging or cellular communications services for hire.
“Reseller” means any person that provides telecommunications services using a telecommunications facility for which a separate service charge is made, where that person does not own, lease, control or manage the telecommunications facility used to provide the service.
“Telecommunications carrier” means a telecommunications utility, as defined in ORS 729.005, or a cooperative corporation organized under ORS chapter 62 that provides telecommunications services.
“Telecommunications facility” means a facility that is used to provide one or more telecommunications services. The term “telecommunications facility” includes radio transmitting towers, other supporting structures and associated facilities, including fiber, used to transmit telecommunications signals. An open video system is not a telecommunications facility to the extent that it provides only video services; a cable system is not a telecommunications facility to the extent that it provides only cable service.
“Telecommunications services” means the transmission for hire of information in electromagnetic frequency, electronic or optical form, including, but not limited to, voice, video, or data, whether or not the transmission medium is owned by the provider itself, and whether or not the transmission medium is wireline or wireless. Telecommunications services include all forms of telephone services and voice, data and video transport, but do not include:
1. Cable services;
2. OVS services;
3. Private communications system services;
4. Over-the-air radio or television broadcasting to the public at large from facilities licensed by the Federal Communications Commission or any successor thereto; or
5. Direct-to-home satellite service within the meaning of Section 602 of the Telecommunications Act of 1996. (Ord. 949 § 1 (part), 2004)
5.30.040 Communications—Registration required.
A. No operator may, without first registering with the city and then paying the fees required by Section 5.30.060, engage in any communications activity in the city.
B. Registration under this section shall be submitted on a form provided by the city. The registration shall be accompanied by any additional documents required therein or in rules issued by the city manager pursuant to Section 2.09.020. (Ord. 949 § 1 (part), 2004)
5.30.050 Communications—License required.
A. No operator may, without first applying for and receiving a license from the city, occupy, possess, maintain, operate, have or locate any telecommunications facility in, upon, beneath, over or across any public right-of-way or on other public property for:
1. A cable system or cable services;
2. A telecommunications facility or telecommunications services;
3. An open video system or services via an open video system; or
4. As a private communications system.
B. An application for a license under this section shall be submitted on a form provided by the city. The application shall be accompanied by any additional documents required by the application or in rules issued by the city manager pursuant to Section 2.09.020.
C. A separate license must be obtained for each type of facility with respect to which a person is an operator.
D. Each license will require the licensee to comply with all applicable provisions of this chapter and all applicable laws, rules and regulations concerning the construction, installation, operation and maintenance of the licensee’s facilities, including, but not limited to, provisions for the location and relocation of utilities and construction of privately engineered facilities in the public way.
E. So long as it registers with the city as required by Section 5.30.040 and pays the registration fees required by Section 5.30.060, a reseller may use another person’s facilities to engage in telecommunications activities in the right-of-way without obtaining a license, but only if the reseller does not, either itself or through an affiliate, own or lease, control or manage any facilities in the right-of-way and is not involved in construction, maintenance or repair of facilities in the right-of-way.
F. So long as it registers with the city as required by Section 5.30.040 and pays the annual registration fees required by Section 5.30.060 as well as other applicable fees, an operator is not required to obtain a license under this section or pay an annual license fee under Section 5.30.070 if the operator’s only use of the public right-of-way is to place wireless transmitting or receiving facilities above the ground on existing poles or similar structures in the right-of-way and the operator does not install or use lines, wires or cables.
G. Except as provided in this subsection, an operator holding an outstanding permit or franchise from the city for a communication company facility to provide specified services, or for a private communications system, may continue to operate under its existing permit or franchise to the conclusion of its present term (but not for any renewal or extension thereof) with respect to those activities expressly authorized by the permit or franchise. Any such permittee or franchisee may elect to apply for a superseding license under this chapter, and must apply for a license under this chapter if intending to provide services other than, or in addition to, the services authorized under its existing permit or franchise. Upon such election, all such permittees and franchisees shall register and pay registration fees and license fees as required by Sections 5.30.060 and 5.30.070 and be subject to the provisions of this chapter to the full extent permitted by law. Any permits or licenses that are revocable shall be automatically revoked as of January 1, 2004, and the permittee or licensee shall be required to obtain a new license pursuant to the provisions of this chapter.
H. A license granted pursuant to this section shall not convey equitable or legal title in the rights-of-way or other public property.
I. The license may not be assigned or transferred without the prior written consent of the city, which consent shall be withheld only for reasons related to the preservation and protection of public property and public services.
J. Neither the issuance of a license hereunder nor any provisions contained therein shall constitute a waiver or bar to the exercise of any governmental right or power, police power, or regulatory power of the city as may exist at the time the license is issued or thereafter obtained. (Ord. 949 § 1 (part), 2004)
5.30.060 Communications—Registration fees.
A. Administrative Fee. Each person required to register under Section 5.30.040, except the registrant of a private communications system, shall pay to the city an initial administrative fee in an amount set by resolution of the city council that is calculated to recover all of the city’s costs incurred in processing the registration, as well as a share of the city’s costs in preparation of the city’s communications plan, the ordinance codified in this chapter, and the implementing rules.
B. Annual Registration Fee. Any person required to register under Section 5.30.040 shall pay an annual registration fee in the amount of two percent of the registrant’s annual adjusted gross revenues. (Ord. 949 § 1 (part), 2004)
5.30.070 Communications—Annual license fees.
A. Operator License Fee. As compensation for use of public property or right-of-way, each operator required to obtain a license pursuant to Section 5.30.050 other than a telecommunications carrier shall pay a fee in the amount of five percent of the licensee’s gross revenues derived from communication activities within the city.
B. Telecommunications Carriers. As compensation for use of rights-of-way, each telecommunications carrier licensed as such pursuant to Section 5.30.050 shall pay an annual fee in the amount of seven percent of the licensee’s gross revenues, as defined in ORS 221.515, and, if different, from any revenues upon which the carrier imposes a license fee surcharge.
C. Private Communications System. In lieu of the fees required by subsections A and B of this section, a private communications system licensee shall pay to the city an annual fee based on a per-foot rate to be established by resolution of the city council in an amount that fairly compensates the city for use of public property, but in no event less than the amount needed to ensure no degradation of the public property.
D. Effect of Federal and State Law. To the extent that federal or state law, or an existing franchise agreement, limits the amount of fees which the city may impose on, or the compensation it may require from, an operator, nothing in this chapter shall require the payment of any greater amount, unless and until the federal or state limits are raised or the franchise agreement expires or is otherwise terminated. (Ord. 949 § 1 (part), 2004)
5.30.080 Communications—Fees generally.
A. In Lieu of Fee Payment.
1. In lieu of part or all of the annual registration and license fees, the city may accept in-kind services which the registrant or licensee is willing to provide and which the city manager determines have a value to the city equal to or greater than the registration and license fees, or the portion of those fees in lieu of which the city will accept services. If the city manager agrees to the in-kind payment, the registration or license shall reflect this agreement.
2. Prior to the city manager agreeing to such an arrangement, the operator shall provide to city, at the operator’s expense, an analysis prepared by an independent entity which demonstrates that the value of the in-kind service is equal to or greater than the license fee (or portion of fee) to be waived. In addition, the city manager shall give at least twenty (20) days’ notice to the city council of the proposed arrangement. If any two city councilors give the manager written objections to the proposed arrangement within the twenty (20) day period, the manager shall not agree to the proposal unless the council votes to approve the proposal.
3. If an operator fails to provide all or a portion of the in-kind service reflected in the registration or license, the operator shall be liable to the city for the full amount of the annual registration and license fees pursuant to subsections (A)(1) and (A)(2) of this section for the year or years in which the in-kind service or a portion thereof is not provided. In addition, the city manager may terminate the arrangement for in-kind services and amend the registration or license accordingly.
B. Manner of Payment of Annual Registration and License Fees.
1. Unless otherwise specified, the annual registration and license fees shall be paid to the city quarterly and not later than forty-five (45) days after the end of each calendar quarter.
2. Each payment shall be accompanied by a statement showing the manner in which the fee was calculated, and shall be personally delivered or mailed to the city on or before the due date. If mailed, the postmark shall be considered the date of delivery.
3. For good cause, the city may extend for a period not to exceed one month the time for making payment and filing the statement. Any person or operator to whom an extension is granted shall pay an extension fee of two percent of the amount of fee due, payable before the expiration of the extension period. If the statement is not filed and the fee is not paid by the end of the extension period, then the extension fee shall be added to all other delinquent fees as a nonpayment penalty due on the original payment date, and the extension shall be rescinded.
4. Any fee or penalty not paid when due shall accrue interest at the rate of one and one-half percent per calendar month until paid, without proration for any partial month.
5. No acceptance by the city of any payment hereunder shall be construed as an accord that the amount paid is in fact the correct amount, nor shall such acceptance of such payment be construed as a release of any claim the city may have for additional sums payable.
6. The payments hereunder are not payments in lieu of any tax, fee or other assessment except as specifically provided in this section, or as required by applicable law.
7. Within ninety (90) days following the end of the calendar year, each person who paid a fee based on gross revenues shall submit a statement, certified as true by an independent auditor or the chief financial officer of such person, setting forth its gross revenues, by category, and describing what revenues were included and excluded in calculating the fee or fees, and any adjustments made to gross revenues.
8. The city may, from time to time, and upon reasonable advance written notice, inspect, copy and audit any and all books and records of a registrant or licensee reasonably necessary to the determination of whether fees have been accurately computed and paid.
9. Notwithstanding the foregoing, in the event a registrant or licensee that is obligated to pay a fee ceases to provide service for any reason (including as a result of a transfer), such registrant or licensee shall make a final payment of any amounts owed to the city within ninety (90) calendar days of the date its operations in the city cease, and shall provide a statement of gross revenues for the calendar year through the date operations ceased, which statement shall contain the information and certification required by this section.
10. Any person required to pay a penalty under this section may appeal to the city manager as provided in Section 2.09.030. (Ord. 949 § 1 (part), 2004)
5.30.090 Communications—Inspection and conditions relating to licensee’s facilities.
A. Every licensee’s communication company facility shall be subject to the right of periodic inspection and testing by the city to determine compliance with the provisions of this code, a franchise or license agreement, or other applicable laws that the city has some responsibility to enforce. The city shall have the right, upon request, to be notified and be present when the licensee’s communication company facility is tested by the operator. Each operator must respond to requests for information regarding its existing system and plans for the system as the city may from time to time issue, including requests for information regarding its plans for construction, operation and repair and the purposes for which the facility is being constructed, operated or repaired. The city engineer may require such information including GIS format or other drawings, surveys and plans as deemed necessary to determine whether the proposed work conforms to the requirements of this code.
B. Each operator of a communication company facility or private communications system that places facilities underground shall be a member of the regional notification center for subsurface installations (Underground Services Alert) and shall field mark the locations of its underground communications facilities upon request. The operator shall locate its facilities for the city at no charge.
C. The work to be performed by an operator shall be publicized as the city may from time to time direct.
D. Each licensee shall provide the city a plan for any initial system construction, or for any substantial rebuild, upgrade or extension of its facility, which shall show its timetable for construction of each phase of the project, and the areas of the city that will be affected.
E. The installation, construction and operation of all facilities in or affecting the public right-of-way shall be subject to the provisions of this code concerning construction and use of the public right-of-way, including, without limitation, provisions concerning permitting, inspection and relocation. (Ord. 949 § 1 (part), 2004)
5.30.100 Communications—Removal of facilities—Relocation—Termination of use of right-of-way.
A. Every licensee that ceases to operate a communication company facility located within the city shall, upon written request of the city made within two years of the cessation of operation of such facility, promptly remove the facility, or any part thereof, and restore the property and right-of-way to the condition prior to installation. If the licensee neglects, refuses, or fails to remove the facility or part thereof, or to restore the property, the city shall have the option of removing the facility and restoring its property at the expense of the licensee, or treating the facility as abandoned and assuming ownership of the facility. The obligation to remove shall survive the termination of the license. The city may require a licensee, prior to installation of a facility, to post a bond in an amount sufficient to cover the cost of removal of the facility and restoration of the property and right-of-way.
B. Relocation of a facility required to accommodate a public use of the public right-of-way shall be at the sole expense of the licensee.
C. If any licensee violates any provision of this chapter or administrative rules adopted pursuant to Section 5.30.110 and fails to remedy the violation within ten days of receiving notice of the violation, the city manager may terminate the licensee’s use of the right-of-way. (Ord. 949 § 1 (part), 2004)
5.30.110 Communications—Administrative rules.
The city manager shall adopt administrative rules pursuant to Section 2.09.020 in order to implement the provisions of this chapter. Such rules may include, but are not limited to:
A. The information required to be provided in an application for registration and for a license, including a description of the services to be provided and the location and design of the proposed facilities;
B. Criteria for determining whether the applicant for a license is financially, technically, and legally qualified to successfully complete any proposed facility to be installed in, on, under or over the public right-of-way;
C. Contents of a licensee’s plans for construction, rebuilding, upgrade or extension of facilities, including the period of time such plans must cover;
D. Licensee and registrant reporting requirements;
E. Terms and renewals of registrations and licenses; and
F. Terms for the transfer of licenses.
The rules may further differentiate between telecommunications facilities and telecommunications services providers, open video systems, cable systems, and private communications systems. (Ord. 949 § 1 (part), 2004)
5.30.120 Communications—Penalties.
A violation of Section 5.30.040 shall be punishable by a civil penalty not to exceed one thousand five hundred dollars ($1,500.00). Every day in which a person engages in communications activity in the city in violation of Section 5.30.040 constitutes a separate violation. (Ord. 949 § 1 (part), 2004)