HomeMy WebLinkAbout98-3-5828City of Paducah's
Wire Telecommunications Systems
Licensing Ordinance of 1998
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City of Paducah's Wire Telecommunication
Systems licensing Ordinance of 1998
Section
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I. Short Title
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...................................
2
-Purpose .....................................1
3.Definitions ...................................
2
4 -Granting Clause; Prohibition ...................
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5.License Term
...............................12
6 -Transfer of the Licenses .......................
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7.License Territory and Line Extension Policy .......
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8.Wire Telecommunications System Design and
Construction ................................
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9.Use of Streets; Interconnection ..................
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10.Conformance to Certain Standards ...............
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I I.Required Services ............................ 20
12.Installation and Maintenance of Service
Connections in Public Buildings ................. 22
13.Performance Evaluations ......................
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14. System Technical Standards ....................
24
15.Rates and Charges for Services ..................
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16.License Fees................................25
17.Method of Accounting ........................
27
18.Fee Coordination with Existing and Future
Franchises..................................28
19.Administration of Licensing ....................
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20.Liability and Indemnification ...................
21.Revocation. and Termination of a License
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Acquisition of a Wire Telecommunications System .
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22.Reports and Records ..........................
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23.Customer Service Standards ....................
35
24.Protection of Subscriber Privacy ................
36
25. Security Fund ..............................
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26.Penalties...................................38
27.Other Provisions .............................
38
28.Time is of the Essence ........................
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29.Severability.................................
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30.Rights of Individuals, Affirmative Action
Program, and Equality of Employment ...........
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31.Reimbursement of City's Costs .................
41
32.Force Majeure ...............................
41
33.Relationship to New Federal and State Laws .......
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34.Effective Date ...............................
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ORDINANCE 98-3 - 5828
TO PROVIDE FOR THE GRANTING AND ADMINISTRATION OF LICENSES TO
CONSTRUCT AND OPERATE WIRE TELECOMMUNICATIONS SYSTEMS,
AND SETTING FORTH THE TERMS and CONDITIONS THEREOF
BE IT ORDAINED BY THE BOARD OF COMMISSIONERS OF THE CITY OF PADUCAH,
KENTUCKY:
SECTION 1. Short Title This ordinance shall be known and may be cited as the Paducah Wire
Telecommunications Systems Licensing Ordinance of 1998.
SECTION 2. P=ose The purpose and intent of this ordinance is to:
1. Establish a local policy concerning telecommunications providers and services;
2. Establish clear local guidelines, standards and time frames for the exercise of local
authority with respect to the regulation of telecommunications providers and services;
3. Promote competition in telecommunications;
4. Encourage the provision of advanced and competitive telecommunications services on
the widest possible basis to the businesses, institutions and residents of the city;
C '1 5. Permit and manage reasonable access to the public ways of the city for
telecommunications purposes on a competitively neutral basis;
6. Conserve the limited physical capacity of the public ways held in public trust by the
city;
7. Assure that the city's current and ongoing costs of granting and regulating private access
to and use of the public ways are fully paid by the persons seeking such access and
causing such costs;
Secure fair and reasonable compensation to the city and the residents of the city for
permitting private use of the public ways;
9. Assure that all telecommunications carriers providing facilities or services within the
city comply with the ordinances, rules and regulations of the City;
10. Assure that the city can continue to fairly and responsibly protect the public health,
safety and welfare;
11. Enable the city to discharge its public trust consistent with rapidly evolving federal and
state regulatory policies, industry competition and technological development.
1,
SECTION 3. Definitions For the purposes of this ordinance, the following terms, phrases, words,
abbreviations, and their derivations shall have the meanings given herein. When not inconsistent
with the context, words used in the present tense include the future, words in the plural number
include the singular number, words in the singular number include the plural number, and the use
of any gender shall be applicable to all genders whenever the sense requires. The words "shall" and
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"will" are mandatory and the word "may" is permissive. Words not defined herein shall be given
their common and ordinary meaning, except that technical words and terms used in the
telecommunications industry shall be given the meanings common to that industry, and terms
defined in the Federal Communications Act of 1934, as amended as of the date of enactment of this
Ordinance, shall be given the statutory meaning, unless otherwise provided herein.
1. "Affiliate" means a person that (directly or indirectly) owns or controls, is owned or
controlled by, or is under common ownership or control with another person
2. "Authority" means the Paducah Cable Communications Authority, the cable
communications administrative and regulatory body of the City of Paducah,
Kentucky.
3. "Board" means the Paducah -McCracken County Telecommunication and Informa-
tion System Service Board, a joint board created by the governments of the
City of Paducah and McCracken County. The general function of the Board is to
provide a broad array of information and telecommunication services to both
governments and their related entities and organizations, including, but not limited
to, the signal carriage and distribution of voice, video telemetry, digital and data
services, and the operation of all computer services, including, but not limited to, all
hardware and software for the City or County's personal computers (PC's) file/client
servers, main frames and PC's.
4. `Backhaul network" means the physical network that connects micro cells and pico
cells to a central switching point or the Public Switched Telephone Network
(PSTN).
5. "Broadband channel" means a physical or virtual transmissionP ath with a
transmission capacity of six (6) megabaud.
6. "Cable Act" shall mean the Cable Communications Policy Act of 1984, 47 U.S.C.
§532, et seq., as amended by the Federal Cable Act of 1992 and as hereinafter may
be amended.
7. "Cable operator" means a telecommunications carrier providing or offering to
provide "cable service" within the city as that term is defined in the Cable Act.
8. "Cable service" for the purpose of this ordinance shall have the same meaning
provided by the Cable Act.
9. "CATV" or "CATV" system means a cable television system as herein defined.
10. "Cable television system" means any system which receives, amplifies and/or
processes programming signals from one or more broadcast television and radio
stations, from microwave, satellite, or land line common carriers, and from other
independent sources, and which retransmits the same along with signals originated
by it, through a system of wires, cables, microwave links, or other means to persons
who subscribe to such service. A cable television system may also include PEG
access, leased access, and institutional networks as defined in Title VI of the federal
Cable Act, 47 U.S.C., subchapter V-A.
11. "Cable television service" means the one-way delivery by a cable operator of
television, radio, and other programming signals to those subscribers and other
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authorized persons, who are connected to the cable television system, and the
transmission of control signals from the subscribers to system switching and billing
computers in connection with the selection of video programming.
12. "City" means the City of Paducah, Kentucky.
13. "City Manager" means the Chief Executive Officer and/or the Manager of the City
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of Paducah, Kentucky and his or her office is the designated authority for providing
oversight, regulation and enforcement required in this ordinance.
14. "City property" means and includes all real properly owned by the City, other than
public streets and utility easements as those terms are defined herein, and all
property held in a proprietary capacity by the City, which are not subject to right-of-
way licensing and franchising as provided in this ordinance.
15. "Cell site" means the location of a transmitter/receiver and backhaul network
interface which provides telephonic or telecommunications type service to
subscribers. The locations include single pole mounted receiver/transmitter units,
receiver/transmitter units located on new or existing antennas structures,
receiver/transmitter units located in buildings and on rooftops.
16. "Channel" means a band of electromagnetic frequencies used to carry one or more
television, radio, or other communications signals (about 6 MHZ analog R.F.) or its
equivalent capacity.
17. "Paducah Cable Communications Authority" means the cable communications
administrative and regulatory body of the City of Paducah, Kentucky.
18. "Commission" means the Mayor and Board of Commission of the City of Paducah,
Kentucky.
19. "County" means McCracken County, Kentucky.
20. "Easements" means any strip of land created by a subdivider for public or private
utilities, sanitation, or other specified uses having limitations, the title to which shall
remain in the name of the property owner, subject to the right of way use designated
in the reservation of the servitude. No private facility may be constructed within the
easement without a written permit from the City.
21. "Educational authority" means any public or private school, college, trade school,
community college or university in the City of Paducah, or which lies partly within
the City.
22. "Engineering Department" means the Engineering Department of the City of
Paducah, Kentucky.
23. "Excess capacity" means the volume or capacity in any existing or future duct,
conduit, manhole, handhole or other utility facility within the public way that is or
will be available for use for additional telecommunications facilities.
24. "Facilities" means all wire telecommunications system duct spaces, manholes, poles,
conduits, underground and overhead passageways, and other equipment, structures
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and appurtenances and all associated cables, fibers, wires or other physical devices
used to transmit and/or receive communication signals, whether analog, digital or of
other characteristics, and whether for voice, data or other purposes.
25. "FCC" means the Federal Communications Commission, or its successor, the
federal agency authorized by law to make and enforce regulations concerning the
transmission of radio and television signals, the reception and use of common carrier
communications signals and all other matters relating to the construction and
operation of a cable television system.
26. "Franchise" means the authority granted by Ordinance 90-6-4427 or any subsequent
similar ordinance to construct, maintain, and operate a cable television system in
whole or in part within the City, unless the context otherwise requires.
27. "Government official" means any elected officer, or the chief administrative
officer or his deputy, of any governmental body, agency, or authority that has the
power to levy and collect taxes, or to make and enforce laws, ordinances, or
administrative regulations; and members of the judiciary.
28. "Gross revenues" means all revenues or consideration of any kind or nature received
directly or indirectly by the licensee, its affiliates, and subsidiaries or any entity
under common ownership or control with the licensee, from and in connection with
the operation of the wired telecommunications system licensed under this ordinance,
including, but not limited to, installation fees, subscriber fees, channel -lease fees,
advertising, pay television services, information services and bypass services, as
computed in accord with Sections 16, 17 and 18 herein; but excluding any separately
stated taxes imposed directly on any Subscriber or User, collected by the licensee as
required by law and wholly transmitted to a city, state, or federal government. A
license fee pursuant to Section 16 of this Ordinance is not such a tax. It is a license
fee for the use and regulation of public property and rights-of-way. It is not to be
added to a customer's bill as a tax.
29. "KDOT" or "Kentucky Department of Transportation" means the state adminis-
trative agency, or lawful successor, having jurisdiction over all state highways.
30. "License" means the authority granted by this ordinance to construct, maintain, or
operate a wired telecommunications system in whole or in part within the City,
unless the context otherwise requires. The term does not include any other license or
permit that may be required by any other applicable law or regulation for the
privilege of transacting and carrying on a business within the City or for disturbing
the surface of any streets, alleys or rights-of-way.
31. "Licensee" means the holder of a license for a wire telecommunications system
issued under this Ordinance.
32. "Local Access Transport Area" (LATA) means the geographic area and communi-
cations system in which the grantor is located and in which the local exchange
carrier or any subsequent telephone company is authorized by the Public Service
Commission of Kentucky to provide local exchange access telecommunications
services.
33. "Local exchange telephone service license or franchise" means the privilege granted
by the City whereby it authorizes a person, firm or corporation to erect, construct,
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reconstruct, operate, dismantle, test, use, maintain, repair, rebuild or replace a
system that provides local telephone service with a network of wires, cable and fiber
optics that occupies any portion of the streets, public ways or public places within
the City's incorporated area. Any franchise issued in accordance herewith shall be
a nonexclusive franchise or license.
34. a) "Local telephone service" means access to a local licensed or franchised
exchange telephone system, and the privilege of telephonic quality
communication with substantially all persons having telephone or radio
telephone stations constituting a part of such local telephone system; or any
facility or service provided in connection with a service described above.
Any person, firm or organization applying for a licenise under this
ordinance must be authorized by the Kentucky Public Service Commission
to provide local exchange telephone service.
b) The term "local telephone service" does not include any service which is
a toll telephone service; personal communications service; private communi-
cation service; cellular mobile telephone or telecommunication service;
conventional mobile telephone or telecommunication service; conventional
mobile radio, or pagers and paging service, including but not limited to
"beepers" and any other form of mobile and portable one-way or two-way
communication; telephone, typewriter or computer exchange service or any
kind of wireless communication systems.
35. "Mayor and Board of Commissioners" means the Paducah City Mayor and
Board of Commissioners, the governing body of the City of Paducah, Kentucky.
36. "Open video system" means telecommunications distribution facilities certified by
the Federal Communications Commission pursuant to Section 653 of the Communi-
cations Act of 1934, as amended by the Telecommunications Act of 1996.
37. "Other ways" means the highways, streets, alleys, utility easements or other rights-
of-way within the City, but under the jurisdiction and control of a governmental
entity other than the City.
38. "Overhead facilities" means utility poles, utility facilities and telecommunications
facilities located above the surface of the ground.
39. "Pay television service" means a television service for which the subscriber must
pay a separate and distinct charge in order to receive a particular service or services
of programs or a particular program, and that is transmitted in a form that is
unintelligible to the subscriber unless a special device has been installed or supplied
by the licensee to render the signal intelligible.
40. "Person" is any person, firm, partnership, governmental entity, cooperative,
association, company, corporation or organization of any kind.
41. Private communications system means any system of communications lines,
cables, equipment or facilities which is used to provide a telephone, video, data,
telemetry, intercom or telecommunications service that in any manner occupies
easements, streets, public ways or public places within the corporate limits of the
City, as now or in the future may exist. Private communications system does not
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include any part of a state, county, or municipally franchised local exchange
telephone company or part of a cable television system or telephone system
franchised by the City or any part of a federal, state, county or local government
owned telecommunications system.
42. "Public street" means any highway, street, alley or other public right of way for
motor vehicle travel under the jurisdiction and control of the City which has been
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acquired, established, dedicate or devoted to highway purposes not inconsistent with
telecommunications facilities.
43. "Public way" means and includes all public streets and utility easements, as those
terms are defined herein, now or hereafter owned by the City, but only to the extent
of the City's right, title, interest or authority to grant a license or franchise to occupy
and use such streets and easements for telecommunications facilities.
44. "PSC" or "Kentucky Public Service Commission" means the state administrative
agency, or lawful successor, authorized to regulate and oversee telecommunications
carriers, services and providers in the state of Kentucky.
45. "Public survey" means a survey of the general population of the City or of any other
segment of the general population, by such methods and procedures as are likely to
produce statistically valid and reliable results.
46. "Recurring local service revenues" means and shall include but are not limited to, all
service revenues set out now or which may in the future represent those presently set
out in revenue accounts as established by the Federal Communications Commission
for the local service revenues and network access services revenues in accordance
with 47 CRF Section 32 Subpart D and any cross referenced accounts or sub -
accounts as may be established by the City relating to those FCC Account
Numbers.
47. "Rights of way" means all present and future streets, avenues, highways, alleys,
bridges and public ways (excluding railroad rights-of-way) within the city limits of
the City.
48. "State" means the state of Kentucky.
49. "Telecommunications system" - see "Telecommunications facilities."
50. "State Commission" means the Kentucky Public Service Commission (PSC
51. "Street" means the surface of and the space above and below any public street, road,
highway, freeway, lane, path, public way or place, sidewalk, alley, boulevard,
parkway, drive, or other easement now or hereafter held by the City, and includes
other easements or rights of way as may be now or hereafter held by the City for the
purpose of installing poles, wires, cables, conductors, ducts, conduits, vaults,
manholes, amplifiers, appliances, attachments, and other devices or property as may
be necessary for the construction, operation, and maintenance of a wire telecom-
munications system.
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52. "Subscriber" means a recipient of services delivered over a wire telecommunications
system in return for the payment of a periodic regular subscription fee.
53. "Surplus space" means that portion of the usable space on a utility pole which has
the necessary clearance from other pole users, as required by the orders and
regulations of the Kentucky Public Service Commission (PSC), to allow its use by
a telecommunications carrier for a pole attachment.
54. "Telecommunications" means the transmission for hire of writings, signs, signals,
pictures, voices, sounds, and data of all kinds by aid of wire, cable, or other like
connective medium between the points of origin and reception of such transmission.
55. "Telecommunications carrier" means and includes every person that directly or
indirectly owns, controls, operates or manages plant, equipment or property within
the City, used or to be used for the purpose of offering telecommunications service.
56. "Telecommunications facilities" means the plant, equipment and property,
including, but not limited to, cables, wires, conduits, ducts, pedestals, antennae,
electronics and other appurtenances used or to be used to transmit, receive,
distribute, provide or offer telecommunications services.
57. "Telecommunications provider" means and includes every person who provides
telecommunications service over telecommunications facilities without any
ownership or management control of the facilities such as resellers of local and long
distance telephone services.
58. "Telecommunications service" means the providing or offering for rent, sale or
lease, or in exchange for other value received, of the transmittal of voice, data,
image, graphics and video programming information between or among points by
wire, cable, fiber optics, laser, microwave, radio, satellite or similar facilities, with
or without benefit of any closed transmission medium.
59. "Toll telephone service" means:
a) A telephonic -quality communication for which there is a toll charge which
varies in amount with the distance or elapsed transmission time of each
individual communication; or
b) A service which entitles the subscriber or user, upon the payment of a
periodic charge which is determined as a flat amount or upon the basis of
total elapsed transmission time, to the privilege of an unlimited number of
telephonic communications to or from all or a substantial portion of the
persons having telephone or radio telephone stations in a specified area
which is outside the Local Telephone System Area (LATA) in which the
station provided with this service is located.
60. "Underground facilities" means utility and telecommunications facilities located
under the surface of the ground, excluding the underground foundations or supports
for overhead facilities.
61. "Usable space" means the total distance between the top of a utility pole and the
lowest possible attachment point that provides the minimum allowable vertical
clearance as specified in the orders and regulation of the Kentucky Public Service
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Commission, the National Electrical Code (NEC), and the National Electrical Safety
Code (NESC).
62. "User" means a person other than the licensee, who uses a wire telecommunications
system to transmit information of his own devising, or obtained from other
independent sources, through the system.
63. "Utility easement" means any easement owned by the City and acquired, estab-
lished, dedicated or devoted for public utility purposes not inconsistent with
telecommunications facilities.
64. "Utility facilities" means the plant, equipment and properly, including, but not
limited to, the poles, pipes, mains, conduits, ducts, cables, wires, plant and
equipment located under, on or above the surface of the ground within the public
ways of the City and used or to be used for the purpose of providing utility or
telecommunications services.
65. "Wire telecommunications system" means a tangible closed facility for the
transmission of telecommunications, as herein defined, including all instrument-
alities, facilities, apparatus, and services incidental to such transmission.
66. "Wire" as used in this Ordinance, includes fiber optic cable, coaxial cable, and other
tangible bounded media for the non -acoustical, one-way or two-way transmission of
intelligence between or among two or more discrete locations.
67. "Wireless telecommunications system" means any system which uses a form of
cellular telephony which allows business and residential subscribers to access and/or
make telephone calls to each other through the wireless telecommunications system
or over the Public Switched Telephone Network (PSTN) using small cordless
telephone devices which communicate with limited range cells (transmitter/receiver
sites) connected to a backhaul network.
SECTION 4. Granting Clause.• Prohibition
1. There is hereby granted by the City to entities holding licenses issued by the City
pursuant to the provisions of this Ordinance, herein called "the licensee," the right
and privilege to erect, construct, maintain, and operate in, upon, along, across, over,
above, and under the streets and rights-of-way of the City, and all extensions or
relocations thereof, poles, wires, cables, underground conduits, manholes, and other
conductors and fixtures necessary for the maintenance and operation of a wire
telecommunications system.
2. No license granted under this ordinance shall entitle the licensee to occupy public
streets or rights-of-way to provide cable television service. The provision of cable
television service requires a separate cable television system franchise.
( 3. This grant is made on the condition that, in the sole judgment of the Mayor and
Board of Commissioners, the licensee is a qualified licensee. For the purposes of
this section and of this Ordinance, a qualified licensee is a person, partnership, joint
venture, or corporation, authorized to do business in the State of Kentucky, and who
is not (or whose partners ventures, or stockholders, as the case may be, are not), a
government official; and who has the necessary financial, managerial, and technical
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capacity to build, maintain, and operate a wired telecommunications system and to
provide the services to the public over such system.
4. The right to use and occupy said streets for the purposes herein set forth shall not be
exclusive, and the City reserves the right to grant a similar use of said streets to any
person at any time during the period of the license. The licensee shall not be held
responsible for any cost incurred by the City or by another licensee or franchisee in
order to prepare utility poles or underground easements to accommodate another
licensee's or franchisee's equipment.
5. This Ordinance does not repeal any existing ordinance of the City by implication.
Any license granted under this ordinance remains subject to the reserved police
powers of the City to enact or enforce laws relating to the health, safety, morality,
and general welfare of the community. In case of a conflict between this Ordinance
and any license granted hereunder, the Ordinance shall govern.
6. It shall be unlawful for any person to erect, construct, maintain or operate a wire
telecommunications system in, upon, along, across, over, above, and under the
streets and rights-of-way of the City without a valid license or franchise therefor.
SECTION 5. License Term
1. Licenses granted under this ordinance shall continue in force and effect for a term of
ten (10) years from the thirtieth day after their respective approvals by the City,
provided that within thirty (30) days after the date of the final passage of their
approval, the licensee shall file with the City Clerk his or her unconditional
acceptance of the terms of the license and promise to comply and abide by all its
provisions, terms, and conditions. Such acceptance and promise shall be in writing
duly executed and sworn to, b and on behalf of the licensee before
Y a notary public
or other officer authorized by law to administer oaths. In the event that such
instrument as aforesaid shall not be filed within the time required, this ordinance and
the rights, privileges, and license as hereby granted shall ipso facto be, and become,
terminated, null, and void.
2. The licenses issued hereunder are not renewable or extendible.
3. The licenses issued hereunder do not convey any property right in or with respect to
any public property, right-of-way, right of user or the like.
4. The licenses issued hereunder are subject to all generic ordinances adopted or
amended by the City heretofore or hereafter while the same are in effect.
SECTION 6. Transfer of the Licenses
1. Any license issued hereunder shall not be assigned, transferred, sold, or disposed of,
in whole or in part, directly or indirectly, by voluntary sale, merger, consolidation,
or otherwise, or by force or involuntary sale, without prior consent of the City on
proper application, and then on only such conditions as may be prescribed to
` guarantee the continued performance of the licensee or to otherwise protect the
public interest in telecommunications facilities and services. The City is hereby
empowered to take legal or equitable action to set aside, annul, revoke or cancel the
license, or the transfer of the license, if said transfer is not made according to the
procedures established hereby. This provision shall apply equally to any change in
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the ownership of the licensee's parent corporation, if any, or its successor in interest,
or any other transfer of control, de jure or de facto.
2. Any proposed transfer or assignment shall only be made by a written document,
copies of which shall be filed with the City Clerk at least thirty (30) days prior to the
proposed date of the transfer or assignment, accompanied by a check for the transfer
processing fee. The City Communications Officer or the Mayor and Board of
Commissioners may require the filing of pertinent data pertaining to the terms of the
transfer or the qualifications of the transferee. Any papers filed with the City Clerk
or the City Manager in connection with transfers and assignments shall be routinely
available for public inspection. The City Clerk shall notify the Mayor and Board of
Commissioners of the receipt of such notice of proposed transfer or assignment, and
the Mayor and Board of Commissioners may within twenty (20) days of such notice
call a public hearing to approve or disapprove such transfer or assignment. The
licensee shall promptly notify its subscribers in advance of any such hearing by mail
prior to the public hearing. The City shall not withhold its consent unreasonably;
provided, however, that the proposed assignee shall agree to comply with all the
provisions of the license and must be able to provide proof of financial respon-
sibility as determined by the Mayor and Board of Commissioners. If such a
hearing is called by the Mayor and Board of Commissioners, the City Manager shall
submit his or her recommendation not less than ten (10) days in advance thereof. In
the absence of any such hearing the Mayor and Board of Commissioners shall act on
the application within thirty (30) days of the date the application is deemed
complete.
3. Nothing in this section shall prevent the licensee from assigning, mortgaging, or
pledging its interest or equity in the wire telecommunications system authorized by
this license, or any part thereof, for purposes of financing, except that in any case the
licensee shall not assign, encumber, or pledge its interest or equity in the system or
any part thereof for any purpose other than financing improvements or extensions to
the system authorized by this license, or a general pledge of all the assets of its
parent, if any, or those of its successors in interest, to provide major funding of the
parent.
4. For the purposes of determining whether it shall consent to a transfer, the City or its
agents may inquire into all qualifications of the prospective transferee and such
other matters as the City may deem necessary to determine whether the transfer is in
the public interest and should be approved, denied, or conditioned. The licensee and
any prospective transferees shall assist the City in any such inquiry, and if they fail
to do so, the request for transfer may be denied.
5. Any transfer without the City's prior written approval shall be ineffective, and shall
make the license subject to cancellation at the City's sole discretion, and to any other
remedies available under the license or other applicable law. Any such cancellation
may be by resolution of the City Mayor and Board of Commissioners and shall not
be subject to the requirements of Section 21 (Revocation and Termination) of this
ordinance. No act or omission by the City shall be construed as expressing approval
of or acquiescence in such a transfer in the absence of the City's express written
approval.
6. As a condition of considering a transfer, the City may require that the transferor or
the transferee pay the City's out-of-pocket expenses and a reasonable fee in
considering the application for transfer of a license. The transferor and transferee
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shall agree that any payments made to the City are not a franchise fee and fall within
one or more of the exceptions in 47 U.S.C. § 542(g)(2), and that no such payments
may be passed through to subscribers in any form.
7. For purposes of this Section, "parent" shall mean any entity that directly or
indirectly, whether immediately or through any number of intermediaries, owns or
C11 controls any interest in the licensee, except that an entity owning less than one
percent of the stock in a publicly traded corporation shall not be considered a
"parent" unless it exercises actual control over a licensee.
8. For purposes of this Section, "control" means the legal or practical ability to exert
actual working control over the affairs of a licensee or parent, either directly or
indirectly, whether by contractual agreement, majority ownership interest, or any
lesser ownership interest, or in any other manner. A rebuttable presumption that a
transfer of control has occurred shall arise upon the acquisition or accumulation of
five percent (5 %) or more of the ownership of the licensee or a parent by any person
or group of persons acting in concert, none of whom already own or control fifty
percent (50%) or more of such right or control, singly or collectively.
SECTION 7. License Territory and Line Extension Policy
1. Any license issued hereunder shall be for the present territorial limits of the City of
Paducah and for any area henceforth added thereto during the term of the license.
The licensee hereby agrees to make its telecommunications services available to all
property within the city limits in all areas where commercially practicable.
2. The licensee shall extend its services to areas annexed to the City of Paducah
subsequent to the effective date of this Ordinance within six (6) months in any part
of the annexed area in which it is commercially practicable to do so.
3. If the licensee extends service into the City's extraterritorial jurisdiction prior to
annexation, any and all such extensions shall be built in the same manner and
quality as though the area being served were within the City limits.
4. The existence of a bona fide offer from a prospective subscriber shall be prima
evidence of commercial practicability.
SECTION 8. Wire Telecommunications System Design and Construction
1. Within twelve (12) months from the approval of any license under this Ordinance,
the licensee shall build, operate, and maintain a wire telecommunications system in
the City.
2. Unless excused by the force majeure provisions of this Ordinance (Section 32, Force
Majeure), a licensee shall file a sworn certificate with the City Clerk and the
City Manager's office within six (6) months of licensee's acceptance of the license
under Section 5-1 (License Term), of this Ordinance affirming that construction of
the outside physical plant of the wire telecommunications has commenced under the
license. If the licensee fails to timely file such a certificate, the license shall be
deemed null and void.
3. Unless excused by the force majeure provisions of this Ordinance (Section 32), a
licensee shall file a sworn certificate with the City Manager's office within twelve
(12) months of licensee's acceptance of the license under Section 5-1 of this
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Ordinance affirming that no less than twenty-five percent (25%) of the route miles
of such wire telecommunications system have been construction and are operational
and being maintained. If the licensee fails to timely file such a certificate, the license
shall be deemed null and void.
4. The City Manager's office may extend the time for filing such a certificate upon a
showing that construction has been delayed in order to coordinate pole placement or
street cuts or other disruptive construction activity with another licensee or
franchisee of the City or a governmental body, agency, or authority.
SECTION 9. Use of Streets; Interconnection
1. The licensee shall have the right to use the streets of the City for the construction,
operation, and maintenance of a wired telecommunications system as prescribed,
regulated, and limited by provisions of this license, and by local, state, and federal
law, both present and future.
2. Licensees shall utilize existing poles, conduits, and other facilities whenever
possible. Prior to the utilization of any street for the placement of the transmission
plant of the wire telecommunications system, the licensee shall secure and place on
file with the City Clerk a utility pole usage agreement with each utility within the
City currently owning such poles, conduits, and other facilities that are to be used by
the licensee. To the extent that existing poles, posts, conduits, and other such
structures or replacements therefor are not available or will not be available to the
licensee within a reasonable time, the licensee may purchase, lease, or in any manner
1 acquire land or rights-of-way upon or under which to erect and maintain its own
poles, conduits, and other such structures. Any license hereunder is subject to
existing and future statutes and ordinances requiring the placement of utility plant
underground.
3. All transmission and distribution structures, lines, and equipment erected by the
licensee within the City shall be so located as to cause the minimum interference
with the proper use of streets and to cause the minimum interference with the rights
and reasonable convenience of property owners who adjoin the said streets.
4. In case of disturbance of any street or paved area the licensee shall, at its own cost
and expense and in a manner approved by the City Engineer replace and restore such
street and/or paved area to as good condition as before the work involving the
disturbance was done. If such restoration or replacement is not completed within 30
days of the date of excavation, or if the completed work is found by the City
Engineer to be unsatisfactory, the City may repair or replace the inadequate work or
complete the unfinished work and bill the Licensee for the cost of such work,
including at least labor, equipment, materials, supervision, and overhead.
5. If at any time during the period of the license the City shall elect to alter or change
the grade of any street, or construct any other public works, where the cables or
1 other facilities of the licensee are located, the licensee, upon reasonable notice by the
City Engineer, City Public Works
Street Department or the City Communications
Officer, shall remove, relay, and relocate its poles, wires, cables, underground
conduits, manholes, and other fixtures at its own expense, and at no expense to the
City.
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6. The licensee shall, on the request of any person holding a moving permit issued by
the City, temporarily remove, raise, or lower its wires to permit the moving of
buildings. The expense of such temporary removal, raising, or lowering of wires
shall be paid by the person requesting the same, and the licensee shall be authorized
to require the payment in advance. Such payment shall not exceed the licensee's
cost. The licensee shall arrange for such temporary wire changes prior to the
expiration of six (6) days from the date notice is given by the person holding the
moving permit.
7. The licensee shall have the authority to trim trees upon and overhanging streets and
easements of the City so as to prevent the branches of such trees from coming in
contact with the wires and cables of the licensee, except that at the option of the
City, such trimming may be done by it or under its supervision and direction at the
expense of the licensee if licensee has failed after two (2) weeks' notice to perform
such work. City may at any time with licensee's concurrence perform such work at
licensee's expense.
8. In all sections of the City where the cables, wires, and other like facilities of public
utilities are placed underground, the licensee shall place its cables, wires, or other
like facilities underground.
9. The licensee shall be responsible for obtaining at its expense all necessary permits
for stringing, pulling, or otherwise installing communications cables, carrier wires,
wires or guys within the City, including erection of poles, the making of cuts in the
pavement of the streets or sidewalks within the City, and trenching in public
rights-of-way. Licensee shall participate in the 'BUD" (before you dig) or an
equivalent program in the state to the extent available and applicable. Licensee shall
promptly mark its underground lines and facilities upon reasonable request of the
City or other authorized occupants of municipal rights-of-way, and shall request,
upon reasonable notice before digging, the marking of other occupants' underground
lines and facilities.
10. To minimize unnecessary exhaustion of utility space under or over public streets by
build -outs of wire telecommunications systems; to reduce unnecessary wear -and -tear
on, and disruption of, the pavement of public streets and sidewalks by such systems;
and to enhance the utility of telecommunications services available to businesses and
persons resident in the City, licensees under this ordinance may be required by the
City's Communications Officer, insofar as is economically reasonable and
technically feasible, to interconnect their respective systems with other local wire
telecommunications systems and with local cable television systems by a date
certain. Interconnection of services provided for in Section 11 (Required Services),
may be required by the administrators of the respective educational and govern-
mental services. The requirements of this paragraph constitute a continuing
obligation of each licensee during the term of his license; provided. however, that
this paragraph requiring interconnection shall not apply to wire telecommunications
systems only transmitting in McCracken County; but all wire telecommunications
systems shall be subject to paragraph (2) of this section and Section 14 (Technical
Standards).
11. The cost of such interconnection shall be equitably apportioned between or among
the systems being interconnected. If the licensees or licensee and cable grantee, as
the case may be, cannot agree on the division of costs, the system seeking to build
out may be required to bond the full costs of interconnection or that portion thereof
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that the City of Paducah finds fair and reasonable, subject to the outcome of
arbitration or other resolution of the disagreement over apportionment by the City
Manager's office, and the interconnection shall be effectuated by the date certain
without waiting for the final apportionment of costs.
12. The local exchange carrier (LEC) (i.e., the local telephone company) providing
existing local switched telephone service in the City of Paducah must immediately
begin efforts to allow full access to all local switched telephone services upon final
adoption by the Federal Communications Commission (FCC) of a set of rules and
regulations governing competitive access providers entry into the local telephone
services market. Further the LEC must also, upon approval by the FCC, unbundle
and make available network elements, upon request to all would be competitors for
resale. These network elements may include, but not be limited to, network
interface devices, local loops, local and tandem switches - including all software
feature provided by switches - interoffice transmission facilities, signaling and call
related database facilities, operations support system and operator and directory
assistance facilities. The prices for these services must be cost based, and if not set
by the Kentucky Public Service Commission (PSC) in a timely manner to meet the
open competition requirements of the Telecommunications Act of 1996, the
telecommunications cost prices will be set by the City of Paducah.
SECTION 10. Conformance to Certain Standards
1. The methods of construction, installation, and maintenance of the wire tele-
communications system shall comply with the current edition of the National
Electrical Safety Code (ANSI CI -1994), and its the National Electrical Code or their
successors to the extent that such codes are consistent with local law affecting the
construction, installation, and maintenance of electrical supply and communications
lines. To the extent that such Codes are inconsistent with other provisions of this
license or with local laws, as amended from time -to -time, the latter shall govern.
2. Any tower constructed for use in the wire telecommunications system shall comply
with the standards contained in Structural Standards for Steel Antenna Towers and
Antenna Supporting; Structures, EIA Standards RS -222-A as published by the
Engineering Department of the Electronic Industries Association, 2500 Wilson
Boulevard, Arlington, Virginia 22201, as amended from time -to -time.
3. The installation and physical dimensions of any tower constructed for use in
conjunction with the wire telecommunications system shall comply with all
appropriate Federal Aviation Agency regulations, including, but not limited to,
Objects Affecting Navigable Airspace, 14 C.F.R. § 77.1 et seq as amended from
time -to -time.
4. Any antenna transmitting structure used in conjunction with the wire telecommuni-
cations system shall comply with Construction, Marking, and Lighting of Antenna
Structures, 47 C.F.R. § 17.1 et seq as amended from time -to -time.
SECTION 11. Required Services
1. Whereas a substantial public interest exists, and there is a need for, certain services
and facilities to be provided for the use of governmental and educational institutions,
licenses under this ordinance shall provide that not less than four broadband
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channels shall be included in the initial construction and operation of the wire
telecommunications system, as follows:
a. Two educational services for the exclusive use of educational authorities in
this State.
b. Two governmental services, for the exclusive use of the City of Paducah,
McCracken County, the State of Kentucky, and any other agency of
government having offices or providing services to the public in the City.
2. The administration of the educational service shall be vested a joint board composed
of a representative of the Paducah Junior College Board (i.e. Paducah Community
College), Paducah Library Board and the Paducah School Board. This Board, to be
formed by the City, shall have the right, subject to the approval of the Mayor and
Board of Commissioners, to make and enforce policies or rules for the use of the
educational service.
3. The administration of the governmental service shall be vested in theCity Manager,
and it shall have the exclusive right to make and enforce policies or rules for the use
of the governmental access service, subject to the approval of the Mayor and Board
of Commissioners.
4. The licensee agrees to provide additional educational or governmental service within
ninety (90) days after the administrator of an existing access service, as defined
herein above, certifies to the Mayor and Board of Commissioners and licensee that
the existing service is in use at least seventy percent (70%) of the time between 8:00
A.M. and 10:00 P.M., each day of the week for a sustained period of not less than
three months, and that the Joint Community Education Services Board or the
City Manager's office, as the case may be, has determined that there is a need for
additional service; provided, however, that the licensee may not required to increase
the entire system's capacity solely in order to provide additional service under
this section.
5. Notwithstanding the foregoing Sections 11-3 and 11-4 (Required Services)
no person shall make a transmission on any such service -containing information of
a predominantly commercial nature or for commercial purposes; that is, or that
contains, material that advocates a candidate for political office (unless all of the
candidates for the same office are invited to appear at the same time and in the same
manner); that is, or that contains, information concerning a lottery or gambling; or
that is, or that contains, any material that is otherwise prohibited by law. The
responsibility for the enforcement of this section shall be held exclusively by the
City. The licensee is relieved of all responsibility or liability concerning the
material transmitted on these services.
6. Where the Mayor and Board of Commissioners finds that the transmission services
required by this section are already being provided by another licensee or franchisee
and that substantially duplicating capacity is not or will not likely be additionally
required to fulfill governmental or educational needs or for redundancy or restoral,
' then or later during the term of the license, the licensee shall provide the economic
equivalent in money or in-kind services to the City or another public or charitable
institution within the County, in amount or by formula acceptable to Mayor and
Board of Commissioners and set forth in the license.
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7. Nothing in this Ordinance shall prevent or prohibit the licensee from constructing
and operating a studio or other production facility, or from offering as a service a
locally originated television or radio service of the licensee's own devising, or from
soliciting and displaying advertising on any such locally -originated service, or from
leasing a portion of such service to others for commercial purposes.
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8. With respect to any open video system, in lieu of the requirements of this section,
the Mayor and Board of Commissioners may require the operator of such open
video system to provide services required of cable operators in the Paducah Cable
Television Regulatory Ordinance (Ordinance No. 90-6-4427).
SECTION 12. Installation and Maintenance of Service Connections in Public Buildings
1. The licensee shall provide one service connection for the transmission and reception
of all wire transmission services of the licensee to each of the following locations
to the extent that they are or may be served by an existing trunk cable owned or
utilized by the licensee:
a. All governmental structures as may be now or hereinafter designated by the
City Manager's office;
b. All state -approved school buildings, both public and private, as may be now
or hereinafter designated by the chief administrative officer of any
educational authority;
C. Any other public building designated by the City Manager's office. Such
service connections shall be provided to a building designated by the
appropriate official within sixty (60) days of the date when service is
available from an existing or new trunk cable. Each appropriate official shall
be responsible for notifying the licensee that service is required sufficiently
in advance that the licensee may make arrangements to lay its equipment as
needed.
2. No charge shall be made by the licensee for any service provided under this
Section.
SECTION 13. Performance Evaluations
1. The Mayor and Board of Commissioners shall have the right under this Ordinance
at any time to review the performance of the licensee and to ascertain that all
provisions of the license are being fully and faithfully carried out. The Mayor and
Board of Commissioners may utilize the City Communications Officer in the
performance evaluation process.
2. At least ninety (90) days before conducting a performance evaluation, the City
Communications Officer shall prepare a report or reports, containing its findings
concerning the licensee's performance of all provisions of the license. Said report' or reports shall be submitted to the Mayor and Board of Commissioners not less than
- thirty (30) days before the scheduled performance evaluation, and a copy shall be
provided to the licensee.
3. The performance evaluation may -- and upon request of the licensee shall -- include
a public hearing at which the report or reports described in Section 13-2 above shall
Iro
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be presented, and the significant findings therein shall be read, and at which any
citizen may appear to present evidence or opinions regarding the licensee's
performance, facilities, or services. The Mayor and Board of Commissioners further
may receive any other evidence, reports, documents, or testimony from any person,
bearing on the licensee's performance, and may employ a consultant or consultants
f to conduct any investigation or to make recommendations concerning the licensee's
performance. The licensee shall be afforded a full opportunity to respond to all such
reports, citizens' comments, and consultants' findings. The licensee shall promptly
make available to the Mayor and Board of Commissioners and the City Communi-
cations Officer, or to consultants retained by the Mayor and Board of Commis-
sioners, any records, documents, or other information as the Mayor and Board of
Commissioners may request.
4. Upon written notification from the City Communications Officer, the licensee shall
notify its subscribers of the time, place, and purposes of the performance evaluation
by mail no later than fifteen (15) days immediately preceding the scheduled
performance evaluation.
5. Following each performance evaluation, the Mayor and Board of Commissioners
shall adopt by resolution its findings, if any. The Mayor and Board of Com-
missioners further may order any changes in the licensee's operations that the
Mayor and Board of Commissioners finds to be reasonable and necessary to comply
with the terms of the license. The licensee shall be afforded an opportunity to
challenge the reasonableness, necessity, and cost of any such change. Once the
Mayor and Board of Commissioners has ordered such change, the licensee shall be
given a reasonable period of time in which to make any installation or construction
that may be required. No change shall be ordered by the Mayor and Board of
Commissioners where the authority to do so has been and continues to be preempted
by the FCC or the Kentucky Public Service (PSC) or other agency of competent
jurisdiction and authority, or where a court of competent jurisdiction has found that
the Mayor and Board of Commissioners has no such authority.
6. All records and minutes of each performance evaluation shall be retained by the City
Clerk and be available for inspection throughout the remaining term of the license.
The City Clerk shall forward a copy of the minutes of the performance evaluation to
the licensee.
7. Upon application of the licensee to the Mayor and Board of Commissioners prior to
expiration of this license, the licensee may seek a new license to permit continued
operation of its wired telecommunication system, and the Mayor and Board of
Commissioners shall determine whether it is in the public interest to consider the
issuance of a new license to replace the licensee's existing license upon its
expiration; and if such determination is affirmative, the City Manager and the
licensee shall initiate the necessary negotiations. Nothing herein shall require the
Mayor and Board of Commissioners to award an extension or renewal of the license,
nor prevent consideration of the same after the date specified herein. The licensee
�- may continue operation under the terms of its existing license while it is actively
prosecuting its application for a succeeding license.
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SECTION 14. System Technical Standards
1. The licensee shall construct and maintain the wire telecommunications system
according to the technical standards established by regulation or rule of the FCC, as
stated in FCC Rules and Regulations, as now exist or may hereinafter be amended.
2. All wire telecommunications systems of licensees, insofar as financially and
technically feasible, shall be compatible one with another and with similar systems
adjacent to the City. Services and facilities provided under Section 11 (Required
Services) of this Ordinance shall be inter -operable.
SECTION 15. Rates and Charges for Services
1. The City shall have the right under this ordinance to regulate the rates charged by
the licensee for transmission services provided by and through the system, except
where such rates are otherwise subject to real and effective competition or regulation
by a federal or state authority of competent and legal jurisdiction.
2. The licensee may, at its option, reduce rates for any services, or waive said rates
temporarily (but for not more than thirty (30) days for any user), for promotional
purposes, but not in such fashion as to discriminate unduly against other users.
Nothing herein shall prevent the licensee from reducing its rates for any service for
all subscribers.
SECTION 16. License Fees
1. In consideration of the grant of a license to use the public rights-of-way under this
ordinance, the licensee may be required to pay a wired telecommunication system
license fee to the City annually. The City of Paducah, Kentucky reserves the right
to assess and establish an annual competitively neutral and non-discriminatory
rights-of-way and license fee at a later date. The amount of the fee shall be assessed
and established by the Mayor and Board of Commissioners in the form of an
amendment to this ordinance.
2. The licensee shall cooperate with the City in filing any applications that may be
necessary to obtain approval of the license fee provided for herein, and the licensee
shall affirmatively support the granting of any approval required.
3. Licensee shall include in gross revenues subject to the percentage fee specified in
paragraph (1) above all revenues for or in connection with telecommunications
services and facilities provided for hire in the City. Licensee's revenues derived
from transmissions to or from points within the City from or to points outside the
City, respectively, or transiting, the City shall be fairly and consistently apportioned.
As to licensee's revenues subject to the state sales tax, a consistent revenue base
shall be used in computing that portion of the fee due under paragraph (1) above.
The and the City may from time -to -time agree on alternative systems of appor-
tionment and/or estimation. Where revenues are derived from services procured
from another licensee under this Ordinance, the licensed reselling provider shall
provide a resale certificate to the licensed underlying provider certifying that
an equal or greater license fee has been or will be paid to the City with respect to the
services resold by the licensed reselling provider. Upon submission of such
certificate to the City, those revenues shall be excluded from the revenues of the
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underlying provider, as computed for the purpose of this section, to the extent
necessary to avoid the collection of multiple license fees based on the same
revenues.
4. It is intended that the license fee will promote the health, safety, and welfare of the
citizens and taxpayers of the community in part by providing funding for City of
Paducah, Kentucky and associated entities in the development and operation of
telecommunication and information systems and services and to allow and provide
for the necessary regulation of a licensee's activities and its use of the streets, public
ways, right-of-way, and easements. The City of Paducah, Kentucky reserves the
right to designate the use of the rights-of-way and license fee at a later date. The
designation of the use of these fees shall be made by the Mayor and Board of
Commissioners in the form of an amendment to this ordinance.
5. The arms -length revenue -equivalent for telecommunications services provided to
non licensee affiliates of the licensee shall be included in the computation of revenue
base for the purposes of paragraph (1). Licensee shall submit with each quarterly
payment schedules showing the basis and effect of computations pursuant to this
paragraph and Section 18 (Fee Coordination).
6. The payment due to the City in accordance with Section 16-1 (License Fees) above
shall be completed and paid quarterly, based on the licensee's fiscal year. The
licensee shall file with the City of Paducah within thirty (30) days after the close of
each of the licensee's fiscal quarters, a statement showing the gross revenues
received by the licensee during the immediately preceding quarter, and the amount
of the license fee now due. The payment of the license fee shall be made at the time
such statement is submitted. A copy of the licensee's income statement for the
entire year, audited by an independent Certified Public Accountant, shall accompany
the fourth quarter payment for each year. If revenues are received from affiliates
and subsidiaries, audited income statements thereof shall also accompany the fourth
payment for each year. In addition to other remedies under this Ordinance or the
license, the City may charge interest on delinquent payments at the rate established
in Kentucky for delinquent tax payments at the time.
7. The City shall have the right to inspect the licensee's financial records and those of
licensee's subsidiaries and affiliates from which revenue was earned, the right of
audit, and the right to recompute any amounts determined to be payable under this
license; provided, however, that such audit shall take place within thirty-six (36)
months following the close of each of the licensee's fiscal years. Any additional
amount due as a result of such audit shall be paid within thirty (30) days following
written notice to the licensee by the City, which notice shall include a copy of the
audit report. The cost of such audit shall be borne by the licensee if it is determined
that the licensee's annual payment to the City for the preceding year is increased
thereby by more than five percent (5%); otherwise, the cost shall be borne by the
City.
8. No acceptance of any payment by the City shall be construed as a release or as an
accord and satisfaction of any claim the City may have for further or additional sums
payable as a license fee for the performance of any obligation of the licensee or as
evidence of the City's acceptance of or acquiescence to any act or omission of the
grantee.
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9. In lieu payments to the City pursuant to Section 11-6 (Required Services) shall also
be made on a quarterly basis unless otherwise provided by the City Mayor and
Board of Commissioners.
SECTION 17. Method of Accountin
The licensee shall maintain complete and accurate records of its accounts, in accordance with the
standard and accepted accounting methods applicable to the competitive telecommunications
industry, as recommended by the American Institute of Certified Public Accountants (AICPA) and
the Financial Accounting Standards Board (FASB) and in compliance with the rules and regulations
of any federal or state regulatory agency having jurisdiction over licensee.
SECTION 18. Fee Coordination with Existing and Future Franchises
1. There shall be credited against the license fee prescribed in Section 16 (License
Fees) of this Ordinance for a wire telecommunications system any amount received
by the City as a franchise or license fee as such from the operator of any cable
television system that is transported on such wire telecommunications system during
that period, to the extent necessary to avoid the collection of duplicating franchise
and licensee fees based on the same revenues.
2. Revenues received under tariffs for local telephone exchange service by a tele-
communications common carrier under an existing franchise or right-of-way
agreement heretofore adopted by the City shall be excluded from the licensee's
gross revenues for the purposes of Section 16-1 (License Fees). This exclusion
applies only to the term of the local telephone franchise or agreement during which
this ordinance was originally adopted; it does not apply to any extension of the term
of the franchise or agreement or to any renewal of such franchise or agreement.
SECTION 19. Administration of Licensing
1. Applications for Licenses
a. Any qualified person desiring to hold a license under this ordinance may file
an application with, and in the form prescribed by, the City Communications
Officer, accompanied by the corresponding application fee, as fixed from
time -to -time by the Mayor and Board of Commissioners. Among other data,
the application shall contain a detailed description of the real party in
interest, its officers and owners and/or stockholders its controlling and
related persons and entities, its financial qualifications, a schedule of the
construction proposed, a detailed description of its proposed plans for
operation, including a route map and the material terms of any agreements it
may have or contemplate with others for the use, lease, or attachment of
telecommunications facilities.
b. Any provider with existing wire telecommunication system facilities in the
City's rights-of-way shall submit an application for license to maintain such
facilities within ninety (90) days of the enactment of this ordinance or
acquisition of such rights-of-way by the City through annexation or
dedication as the case may be. In default of such application, the provider's
continued occupancy or use shall be deemed illegal under Section 4-6
(License Term).
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460
C. Upon receipt of the completed application and the fee, the City Commu-
nications Officer shall notify the applicant to publish a legal notice
advising the public of the receipt of such application and of its availability
for public inspection. The applicant shall submit proof of publication for
three successive weeks in the manner prescribed by the City Manager by
rule. In the event the application is materially amended after publication of
the first notice, the City Communications Officer may require the applicant
to publish a legal notice advising the public of the receipt of the material
amendment.
d. The City Communications Officer, in the course of reviewing the application
for license, may request that additional information concerning the applicant,
his qualifications, and his proposed operations be furnished by the applicant.
Members of the public may file written comments on the application with
the City Manager's office within two weeks of the date of the last publi-
cation required by paragraph 2(c) above.
e. When the City Communications Officer has completed his review of the
application - but not before the conclusion of the public comment period,
provided for in paragraph 2(d) above, the City Manager's office shall
forward the application to the City Mayor and Board of Commissioners with
its recommendation that the application be granted, granted with conditions,
or denied. The applicant shall publish a legal notice advising the public of
such recommendations and its availability for public inspections. The
applicant and members of the public shall have ten days from the date of
publication of such notice to file with the City Clerk a request that the City
Mayor and Board of Commissioners conduct a public hearing on the
application and recommendation after notice. Upon receipt of the application
and recommendation and request(s) for hearing, if any, the City Mayor and
Board of Commissioners may schedule a public hearing after notice on the
application before the full Mayor and Board of Commissioners, a committee
thereof, or a municipal hearing officer.
f. After notice of receipt of the application and recommendation from the
City Manager's office, and after the public hearing or hearings, if any, the
City Mayor and Board of Commissioners shall promptly vote to approve,
approve with conditions, or deny the application.
2. Administration of Licenses
a. The position of City Communications Officer shall be established and
maintained. The City Communications Officer shall be an employee of the
City and shall report to the City Manager.
b. The duties of the City Communications Officer shall include:
1. To receive complaints and grievances from telecommunications
system subscribers or other members of the public, to advise the
licensee concerning such complaints and grievances, and to report to
the Mayor, Board of Commissioners and the City Manager
on all complaints or grievances received and their resolution, as
appropriate.
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461
2. To prepare reports, recommendations, and other documents
concerning the licensee's performance, facilities, services, rates, and
all other matters pertaining to all wire telecommunications systems,
and to submit the same to the City Manager.
3. To advise the City Manager and the Paducah -McCracken County
Telecommunications and Information Services Board concerning any
matters pertaining to the City's use of cable TV and telecommuni-
cations equipment and service of any sort whatsoever.
4. To procure and review audits of the financial, technical and
operational activities of providers licensed hereunder to assure
conformity to this ordinance and the terms of their respective
licenses.
5. Under the direction of the City Manager, to administer the govern-
mental services and the use thereof.
3. The City Communications Officer shall from time -to -time submit to the City
Manager and the Mayor and Board of Commissioners a proposed budget for the
Office of City Communications Officer, showing the salaries to be paid to the City
Communications Officer and any other personnel to be assigned to the Office, and
all other projected expenses of the office.
4. The recipient of the license shall advise the City Manager, or the Mayor and Board
of Commissioners, from time -to -time as appropriate, concerning any matter
pertaining to wire telecommunications systems, this Ordinance, or the licensees'
services coming to its attention.
SECTION 20. Liability and Indemnification
1. The licensee shall indemnify and hold the City harmless from any and all loss
sustained by the City on account of any suit, judgment, execution, claim, or demand
whatsoever against the City resulting from the licensee's construction, operation, or
maintenance of the wire telecommunications system.
2. By its acceptance of its license, the licensee specifically agrees that it will pay all
expenses and costs incurred by the City in defending itself with regard to all
damages and penalties described in Section 20 (Liability and Indemnification)
above. These expenses shall include all out-of-pocket expenses, such as attorney
fees, and shall also include the reasonable value of any services rendered by the City
Attorney or his assistants or any City employee.
3. Licensees shall carry throughout the terms of their licenses personal and property
damage liability insurance with insurance companies qualified to do business in the
State of Kentucky. Such insurance shall show the City as a co-insured party. Unless
otherwise specified in the license, the amounts of such insurance to be carried for
liability due to property damage shall be ONE HUNDRED THOUSAND AND
NO/lOOths DOLLARS ($100,000.00) as to any one occurrence; against liability due
to injury to or death of person, FIVE HUNDRED THOUSAND AND NO/100ths
DOLLARS ($500,000.00) as to any one person and ONE MILLION AND
NO/lOOths DOLLARS ($1,000,000.00) as to any one occurrence. The Mayor and
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Board of Commissioners by resolution from time -to -time may raise insurance limits
to reflect current risk assessments, and affected licensees shall file certificates
evidencing compliance within six (6) weeks thereafter. Licensees and their
contractors and subcontractors shall comply with legal requirements for workmen's
compensation, and the City may require evidence of such compliance.
4. The insurance policy or policies obtained by the licensee in compliance with this
section must be approved by the City Manager's office or its designated repre-
sentative and, along with written evidence of payment of required premiums,
shall be filed and maintained with the City Clerk during the term of the license.
Upon failure to file and maintain such evidence of compliance, the license shall be
deemed null and void.
SECTION 21. Revocation and Termination of a License: Acquisition of a Wire
Telecommunications System
1. The Mayor and Board of Commissioners shall have the right to revoke and terminate
or to foreshorten any license issued under this ordinance for any of the following
causes:
a) If the licensee is not, or does not continue to be, a qualified licensee as
defined in Section 4-2 (Granting Clause) herein, and the defect is not
remedied within a reasonable time after due notice is given by the City.
b) If the licensee has committed a series of major violations of this license, as
defined in Section 26-1 (Penalties) herein, such as to indicate that the
licensee is unable or unwilling to comply with its license, and the licensee
has failed to correct or desist from the violations within a reasonable time
after due notice has been given by the City.
c) If the licensee files in any court a petition of voluntary bankruptcy, or is
involuntarily adjudged bankrupt in any court of competent jurisdiction, or if
the licensee's title and interest in the cable system authorized by this license
or the license itself is taken by execution in any court of competent
jurisdiction, or is forfeited or subject to forfeiture before any court, or is
placed in receivership or trusteeship.
2. If at any time the City Manager has reason to believe that the licensee is in jeopardy
of having its license revoked and terminated for any reason, other than by reason of
a transfer without approval under Section 6 (Transfers), the City shall so notify the
licensee in writing, and order the licensee to show cause before the Mayor and
Board of Commissioners within thirty (30) days why such revocation or termination
should not take place. If the licensee fails to show cause, or in any case if the Mayor
and Board of Commissioners finds that any of the causes listed in Section 21-1
herein pertain, that adequate notice has previously been given, and that the licensee
has failed to correct the defects or violations as required, the Mayor and Board of
Commissioners may declare the license to be revoked and terminated, and may
proceed to acquire the wire television system as provided in Section 21-4 herein.
3. In any case if the license is voluntarily surrendered by the licensee, the Mayor and
Board of Commissioners may at its option proceed with the acquisition of the wire
telecommunications system as provided in Section 21-4 herein.
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4. The City may acquire the wire telecommunications system under the conditions
stated herein above in subsections 21-1, 2, or 3 by the following procedure:
a) The Mayor and Board of Commissioners shall notify the licensee in writing,
delivered by certified mail or by an officer of the Paducah Police Depart-
ment, that the City intends to purchase the wire telecommunications
system.
b) Within thirty (30) days after such notice, the Mayor and Board of Com-
missioners and the licensee each shall appoint a qualified and experi-
enced wire telecommunications property appraiser, and they together
shall appoint a third appraiser mutually acceptable to them. If the Mayor
and Board of Commissioner's appraiser and the licensee's appraiser are
unable to agree on the appointment of a third appraiser, either party may ask
the American Arbitration Association to appoint the third appraiser.
C) The appraisers thus appointed shall determine the net asset value or
depreciated original cost of the wire telecommunications system, in
accordance with the usual and customary standards of appraisal in the
industry. No value shall be given to the license itself, nor to any intangible
asset claimed by the licensee.
d) Upon receiving the reports of the three appraisers, the Mayor and Board of
Commissioners shall have the right to purchase the wire telecommunications
system from the licensee for the value set by any two of the appraisers; or if
no two of the appraisers agree, then for the value that is the lesser of the
average of the values set by all three appraisers and the average of the values
set by the Mayor and Board of Commissioner's appraiser and the third
appointed appraiser.
e) The purchase price shall be paid in cash to the licensee, or the licensee's
successor in interest, within ninety (90) days after the Mayor and Board of
Commissioners decides to purchase the wire telecommunications system. All
right, title, and interest in the system shall transfer to the City upon
presentation of the payment.
f) The Mayor and Board of Commissioners may grant a period of time during
which the licensee may continue to operate the wire telecommunications
system, after the purchase has been consummated, to enable the licensee to
conclude his business in an orderly manner, and to enable the City to assume
control of the system in an orderly manner. During this transitional period,
the licensee shall cooperate fully with any persons appointed or employed by
the City to assume the management of the system.
g) If the Mayor and Board of Commissioners decide not to purchase the
system, after having revoked and terminated the license, either under this
section or Section 6 (Transfers), then the licensee shall have six months in
which to remove his cables and other equipment from the City's streets,
easements, sidewalks, and rights-of-way. Licensee shall restore any public
property disrupted, damaged, or moved in the course of removing the cable
system. If such work is not completed to the satisfaction of the City Engineer
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465
3. The licensee shall interrupt system service after 7:00 am. and before 1:00 a.m. only
with good cause and for the shortest time possible, and, except in emergency
situations, only after giving notice that service will be interrupted. Service may be
interrupted between 1:00 a.m. and 7:00 a.m. for routine testing, maintenance and
repair, without notification, any night except Friday, Saturday, or Sunday, or the
night preceding a holiday.
4. The licensee shall maintain a written record listing date and time of trouble and
service complaints, identifying the user, and describing the nature of each complaint
and when and what action was taken by the licensee in response thereto; such record
shall be kept at the licensee's office, reflecting the operations for the immediately
preceding six (6) months, and shall be available for inspection by the City
Communications Officer from time -to -time upon reasonable request therefor.
In addition to the above requirements, the licensee shall comply with any customer
service standards under applicable law. To the extent that such requirements differ,
the licensee shall comply with the more stringent of such requirements.
SECTION 24. Protection of Subscriber Privacy
1. The licensee shall not initiate or use any form, procedure or device for procuring
information or data from users' terminals by use of the system, without prior valid
authorization from each user so affected, except as used internally for the operation,
maintenance, or improvement of wire telecommunications service or in connection
with the billing thereof or accounting therefor.
2. The licensee shall not, without prior valid authorization from each subscriber so
affected, provide any list of subscribers' names or addresses to any other party
except where required by law or order of a court of competent jurisdiction.
3. The licensee shall not divulge to any person any information whatsoever concerning
individual users, except with the written permission of each affected user in advance
of such divulgence, unless requested to do so by a government or governmental
agency, or by subpoena issued by a court of competent jurisdiction. The licensee
shall make available to the City or its agents such traffic and financial information
as the City may request in aid of its auditing.
SECTION 25. Security Fund
Within thirty days after the approval of a license under of this ordinance, the
licensee shall deliver to the City Manager a letter of credit issued by a local
federally -chartered banking institution in the sum of TWENTY-FIVE THOUSAND
AND NO/lOOths DOLLARS ($25,000.00), which letter of credit shall remain in
place until expiration of the license. The City Manager shall place said letter of
credit in safekeeping until expiration of the license.
2. If the licensee fails to pay to the City any amount due under its license within ten
(10) days after the date when said amount becomes due, or within ten (10) days after
the City has given written notice to the licensee that an amount is due, whichever is
later, or if the Mayor and Board of Commissioners orders any fine or penalty to be
assessed against the licensee in accordance with Section 26 (Penalties) herein said
amount shall be drawn against the letter of credit issued in favor of licensee, as
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466
required in Section 25 (Security Fund) above, by the Paducah Cable Communi-
cations Authority and paid to the City. The City Manager shall notify the licensee of
any such withdrawal.
3. The letter of credit shall carry such terms as needed in order to ensure the City that
the amount guaranteed thereby shall be maintained in the full sum of TWENTY-
FIVE THOUSAND AND NO/lOOths DOLLARS ($25,000.00) throughout the
term of this license.
4. Upon the termination of this license for any reason, including its expiration, the
City Manager shall return the letter of credit to the licensee after all obligations of
the licensee under this license have been met and all sums due to the City have been
paid by licensee. At that time, all obligations hereunder shall terminate.
5. The rights reserved to the City under this section are in addition to all other rights of
the City, and no action, proceeding, or exercise of a right, or failure to exercise any
right, with respect to such letter of credit shall affect any other right of the City.
SECTION 26. Penalties
The Mayor and Board of Commissioners in its sole judgment may assess against the
licensee the following penalties:
a. For each violation of its license, City orders and resolutions, or other
applicable laws, or for each day that the same violation occurs or continues,
except as provided in Section 25(a)(2) below, a fine in the amount of ONE
HUNDRED AND NO/100ths DOLLARS ($100.00).
b. Each violation of Section 6 (Transfers), Section 8 (Design and Construction),
Section 11 (Required Services), Section 16 (License Fees), Section 20
(Liability and Indemnification), Section 23-1, Section 24, Section 25,
Section 30, Section 31, or of any other provision of this Ordinance, the
violation of which is designated as a "major violation," shall constitute a
major violation. The penalty for a major violation or for each day that the
same violation occurs or continues shall be a fine of FIVE HUNDRED AND
NO/lOOths DOLLARS ($500.00).
2. Upon receiving any complaint or report of a violation by a licensee of this
Ordinance or any license issued thereunder, or on its own initiative, the Mayor and
Board of Commissioners may instruct the City Manager to conduct an investigation
into the causes and facts concerning the said complaint and to report the findings
thereof to the Mayor and Board of Commissioners within thirty (30) days. The
licensee shall be afforded the opportunity to reply to the complaint in open hearing,
and to challenge any information presented to the Mayor and Board of Commis-
sioners. The Mayor and Board of Commissioners shall adjudge the truth or
falsity of the complaint and determine the amount of the penalty, if any, if a
violation has occurred, and may order the penalty to be paid forthwith, including any
penalty applicable to such time as a violation continued prior to the Mayor and
Board of Commissioner's order.
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SECTION 27. Other Provisions
467
1. No person shall construct, operate or continue to operate a wireless communication
system, wire telecommunication system, or a private communication system which
occupy the streets, public ways and pubic places within the City without having
been issued a permit or a license by the City of Paducah, or a franchise for
telephone, telecommunication service, data network services, open distribution
system or a cable television or cable communications system granted by the City of
Paducah.
2. New license or franchise application and grant shall be required of any tele-
communications carrier that desires to extend its license or franchise territory or
to locate its telecommunications facilities in public ways of the City which are not
included in a license previously granted under this ordinance.
3. Within thirty (30) days following written notice from the City, a license or franchise
grantee shall, at its own expense, temporarily or permanently remove, relocate,
change or alter the position of any telecommunications facilities within the public
ways whenever the City Manager's office, after due deliberation and consideration,
has determined that such removal, relocation, change or alteration is reasonably
necessary.
4. Whenever any existing electric utilities, cable facilities or telecommunications
facilities are located underground within a public way of the City, a licensee with
permission to occupy the same public way must also locate its telecommunications
facilities underground.
5. Whenever any new or existing electric utilities, cable facilities or telecommuni-
cations facilities are located or relocated underground within a public way of the
City, a grantee that currently occupies the same public way shall relocate its
facilities underground within a reasonable period of time, which shall not be later
than the end of the grant term. Absent extraordinary circumstances or undue
hardship as determined by the City Engineer, such relocation shall be made
concurrently to minimize the disruption of the public ways.
6. Whenever new telecommunications facilities will exhaust the capacity of a public
street or utility easement to reasonably accommodate future telecommunications
carriers or facilities, the grantee shall provide additional ducts, conduits, manholes
and other facilities for nondiscriminatory access to future telecommunications
carriers.
7. The licensee shall not engage in the business of selling, repairing or installing
computers, two way radio, television receivers or radio receivers within the City of
Paducah during the term of the license.
SECTION 28. Time is of the Essence
Whenever this Ordinance sets forth a time for an act to be performed by or on behalf of the licensee,
such time shall be deemed of the essence. Subject to Section 32 (Force Majeure) any failure of the
licensee to perform within the time allotted shall constitute a violation of the license.
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SECTION 29. Severability
M.,
1. If any section, subsection, sentence, clause, phrase, or portion of this Ordinance is
for any reason held invalid or unconstitutional by any court of competent juris-
diction, or is superseded or pre-empted by any state or federal law or regulation,
such portion shall be deemed a separate, distinct, and independent provision, and
such holding shall not affect the validity of the remaining portions thereof. However,
in such event, the Mayor and Board of Commissioners shall have the right to replace
the invalid sections.
SECTION 30. Rights of Individuals. Affirmative Action Program and Equality of Employment
1. The licensee shall not deny service, deny access, or otherwise discriminate against
any person on the basis of race, color, religion, national origin, sex, or age. The
licensee shall comply at all times with all applicable federal, state, and city laws,
regulations, and ordinances, and all executive and administrative orders, prohibiting
discrimination.
2. The licensee shall establish an Affirmative Action Program, concerning em-
ployment, promotion, and termination policies of the licensee with respect to his
employees as may be required by the FCC's rules, regulations, and guidelines from
time -to -time, and the licensee shall so notify its employees. A copy of the written
description of the program shall be made available for inspection upon request of the
City or any member of the public.
3. The licensee shall afford equal employment opportunities to all qualified applicants,
and shall not discriminate in hiring, setting of wages or salaries, promotions,
discipline of employees, lay-offs, terminations, or in the assignment of rights,
privileges, and duties, on the basis of race, color, religion, national origin, sex, or
age.
SECTION 31. Reimbursement of City's Costs
1. Licensee shall reimburse the City, upon claim of the Mayor and Board of Com-
missioners, for all costs associated with the negotiation and award of this license
the total amount of such reimbursement cost. Such costs shall include, but not be
limited to, services provided by legal counsel and technical consultants retained to
assist the Mayor and Board of Commissioners, the publication of notices of the
Ordinance or of proposed rates; and all other costs directly associated with the
requested action. The licensee shall not be required to reimburse any costs of the
City in connection with the performance evaluations required by this Ordinance.
SECTION 32. Force Majeure
1. When any provision or condition to be performed by the licensee under the terms of
this license is prevented, delayed, or interrupted by lack of labor or materials caused
by conditions beyond the reasonable control of licensee, or by fire, storm, flood,
war, rebellion, insurrection, sabotage riot, strike, or failure of carriers to transport, to
make delivery, or to furnish facilities for transportation, or as a result of some law,
order, rule, regulation, or necessity of governmental authority, whether local, state,
or federal, or as the result of the filing of a suit by, for, or against the licensee, in
which the licensee's license may be affected, or as a result of any cause whatsoever
beyond the reasonable control of the licensee, this license nevertheless shall remain
W
in full force and effect. The licensee shall not be liable for any breach of any express
or implied covenant or obligation under its license when the same is prevented,
delayed, or interrupted, provided the licensee shall make a good faith effort to carry
out or complete, as the case may be, his duties and obligations thereunder in a timely
manner.
SECTION 33. Relationship to New Federal and State Laws
No provision of this Ordinance shall be superseded by any provision of federal or state law unless
such law specifically so stipulates or otherwise requires.
SECTION 34. Effective Date
1. This Ordinance shall be read on two separate days and will become effective upon
summary publication pursuant to Kentucky Revised Statutes (KRS) Chapter 424.
Albert Jones, May
ATTEST:
Lenita Smith, City Clerk
Introduced by the Board of Commissioners February 24, 1998
Adopted by the Board of Commissioners March 10, 1998
Recorded by Lenita Smith, City Clerk, March 10, 1998
Published by The Paducah Sun, March 17, 1998
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