CHAPTER 3-07
SPECIAL LICENSES
SECTIONS:
3-07-001-0001 DEFINITIONS:
3-07-001-0002 LICENSE REQUIRED:
3-07-001-0003 LICENSE PROPOSAL:
3-07-001-0004 COMPENSATION:
3-07-001-0005 PROVIDING FOR REPEAL OF CONFLICTING ORDINANCES:
3-07-001-0006 PROVIDING FOR SEVERABILITY:
3-07-001-0001 DEFINITIONS:
In this Chapter/Article, unless the context otherwise requires:
"Cable Service" shall mean (1) the one-way transmission to Subscribers of video programming or other programming service and (2) Subscriber interaction, if any, which is required for the selection or use of such video programming or other programming service.
"Cable System" shall mean a facility, consisting of a set of closed transmission paths and associated signal generation, reception, and control equipment, that is designed to provide Cable Service which includes video programming and which is provided to multiple subscribers within a community, but such term does not include (1) a facility that serves only to retransmit the television signals of one or more television broadcast stations; (2) a facility that serves subscribers without using any Streets; (3) a facility of a common carrier which is subject, in whole or in part, to the provisions of Title II of the Communications Act of 1934, as amended, except that such facility shall be considered a Cable System (other than for purposes of Section 621(c) of the Cable Act) to the extent such facility is used in the transmission of video programming directly to subscribers, unless the extent of such use is solely to provide interactive on-demand services; (4) an open video system that complies with Section 653 of the Cable Act; or (5) and facilities of any electric utility used solely for operating its electric utility systems.
"Commercial Mobile Radio Service" means two-way voice commercial mobile radio service as defined by the Federal Communications Commission in 47 United States Code Section 157.
"Facilities" means the plant, equipment, and property, including but not limited to poles, wires, pipe, conduits, pedestals, antenna, and other appurtenances placed in, on, or under highways and not owned by the City of Flagstaff and used in the provision of telecommunication services.
"Public Highway" or "Highway" means all roads, streets and alleys and all other dedicated public rights-of-way and public utility easements of the City of Flagstaff.
"Telecommunications" means the transmission, between or among points specified by the user, of information of the user’s choosing, without change in the form or content of the information as sent and received. The term does not include commercial mobile radio services, pay phone services, interstate services, or cable services.
"Telecommunications Corporation" means any public service corporation to the extent that it provides telecommunications services in this state.
"Telecommunications Services" means the offering of telecommunications for a fee directly to the public, or to such users as to be effectively available directly to the public regardless of the facilities used.
(Ord. 2009, Added, 11/02/1999)
3-07-001-0002 LICENSE REQUIRED:
A. No telecommunications corporation shall install, maintain, construct, or operate telecommunications facilities in any public highway in the City of Flagstaff, unless a license to provide telecommunications services has first been granted by the City of Flagstaff Council under this chapter.
B. Notwithstanding Subsection A, any telecommunications corporation that was providing telecommunications service within the State of Arizona as of October 31, 1997 pursuant to a grant made to it or its lawful predecessors prior to the effective date of the Arizona Constitution, may continue to provide telecommunications services pursuant to that state grant, until the state grant is lawfully repealed, revoked or amended, and need not obtain any further authorization from the City of Flagstaff to provide telecommunication services; provided, however, that such entity must in all other respects comply with the requirements applicable to telecommunications corporations, as provided in Title 9, Chapter 5, Article 7, Arizona Revised Statutes.
C. Nothing in this ordinance shall be deemed to affect the terms or conditions of any franchise, license, or permit issued by the City of Flagstaff prior to October 31, 1997, or to release any party from its obligations thereunder. Those franchises, licenses, or permits shall remain fully enforceable in accordance with their terms. The City of Flagstaff City Manager, with the Consent of the City of Flagstaff City Council, may enter into agreements with franchise holders, licensees or permittees to modify or terminate an existing franchise, license, or agreement.
D. A license to any telecommunications corporation to use the highways to install, maintain, construct or operate telecommunications facilities under this chapter shall not authorize the use of the highways to provide any other service; nor shall the issuance of the same invalidate any franchise, license or permit that authorizes the use of the highways for such other service; nor shall the fact that an entity holds a franchise, license or permit to make any other use of the highway or to provide any other service authorize installation, maintenance, construction or operation of telecommunications facilities in any highway in the City of Flagstaff, without obtaining a license hereunder.
E. Any license granted shall not be exclusive.
F. A Telecommunications licensee may enter into contracts for use of its facilities within the public highways to provide telecommunication services. Persons using such licensee’s facilities must themselves obtain a telecommunication license if such person constructs, installs, operates, or maintains telecommunication facilities within the public highway of the City of Flagstaff. If the persons using such licensee’s facilities do not construct, install, operate or maintain telecommunication facilities within the public highway of the City of Flagstaff, such persons need not obtain a separate license but the telecommunications licensee must disclose the identity of such persons to the City of Flagstaff.
(Ord. 2009, Added, 11/02/1999)
3-07-001-0003 LICENSE PROPOSAL:
A. A Telecommunications corporation desiring a license to construct, install, operate and maintain telecommunication facilities in streets and other highways of the City of Flagstaff shall file a proposal with the City Manager, in the form prescribed by the City of Flagstaff, and shall pay a filing fee determined by the City Manager. The amount of the fee shall be reasonably related to the cost directly incurred by the City of Flagstaff relating to the granting or administration of the license and can be appealed to the City Manager.
B. Each application shall, at a minimum,
1. Show where the facilities the applicant will use will be located, or contain such other information as the City of Flagstaff may deem necessary in order to ensure that the applicant will comply with requirements for use of the highways;
2. identify the applicant, its name, address and telephone number;
3. contain a description of the services to be provided; and
4. set out a description of any agreement with any other entity that would permit such entity to use the facilities.
C. Upon receiving an application for a license that satisfies the conditions of Section B, the City of Flagstaff shall promptly proffer a telecommunications license to the applicant for its review, and may inquire into matters relevant to the issuance of the license. If the applicant agrees to the terms and conditions of the license, the request shall be approved. Notwithstanding the foregoing, the City need not issue or renew a license if the applicant has previously had a license or permit revoked, or for any other reason permitted under Arizona law.
D. As a condition of issuing or renewing a license to use the public highways to construct, install, operate and maintain telecommunication facilities, the City may require that:
1. The applicant shows that it has received a Certificate Of Public Convenience And Necessity from the Arizona Corporation Commission.
2. The applicant agrees to comply with the highway use requirements that the City of Flagstaff may establish from time to time.
3. The applicant agrees to provide and maintain accurate maps showing the location of all the facilities it will use in the highways within the City of Flagstaff, and to comply with such other mapping requirements as the City of Flagstaff may establish from time to time.
4. The applicant obtains the insurance, and provides proof of insurance as required by the City of Flagstaff; posts the performance bonds and security fund required by the City of Flagstaff; agrees to fully indemnify the City of Flagstaff, its officers, agents, boards and commissions, in a form satisfactory to the City of Flagstaff; and agrees that it shall have no recourse against the City of Flagstaff for monetary damages as a result of any damage that may result from the City of Flagstaff’s exercise of its rights under the license, or applicable provisions of law.
5. The applicant agrees to comply with and be bound by the administrative and enforcement provisions as may be prescribed from time to time by the City of Flagstaff which may include:
a. Provisions covering assignment.
b. The right to inspect records to determine compliance by the licensee.
c. Provisions for renewal.
E. Any license granted by the City of Flagstaff pursuant to this chapter shall commence upon adoption of the license and acceptance of the license by the provider. The license shall be for a term of five years, and subject to the conditions and restrictions provided in the instrument and this chapter.
F. Every licensee shall be subject to the City of Flagstaff’s exercise of such police, regulatory and other powers as the City of Flagstaff now has or may later obtain, and a license may not waive the application of the same, and must be exercised in strict conformity therewith. Every license shall be subject to revocation if the licensee fails to comply with the terms and conditions of the license or applicable law. Provided, however, that a license shall not be revoked unless the licensee is given written notice of the defect in performance and fails to cure the defect within 60 days of the notice, except where the City of Flagstaff finds that the defect in performance is due to intentional misconduct, is a violation of criminal law, or is part of a pattern of violations where the licensee has already had notice and opportunity to cure. A hearing shall be held before a license is revoked or not renewed if the licensee requests a hearing.
G. The issuance of a license by the City of Flagstaff is not a representation or warranty that such license is a legally sufficient substitute for a franchise and is not a representation or warranty that a franchise is not required.
(Ord. 2009, Added, 11/02/1999)
3-07-001-0004 COMPENSATION:
A. The city shall not levy a tax, rent, fee, or charge to a telecommunications corporation for the use of a public highway to provide telecommunications services, or levy a tax, fee, or charge upon the privilege of engaging in the business of providing telecommunications services, except that, in connection with its provisions of telecommunications services and its use of the highways to provide the same, each telecommunications corporation shall:
1. Pay a transaction privilege tax on the business of providing telecommunications services or applicable use tax.
2. Pay public highway construction permit fees established from time to time by the city.
3. Pay all reasonable costs associated with the construction, maintenance, and operation of its facilities in the public highways used to provide telecommunications services, including reasonable costs associated with damage caused to the public highways.
B. Nothing in this section is intended to limit the obligation of any person to pay amounts owed under any franchise or license. Provided that, for franchises or licenses issued after the effective date of this ordinance, payments required under such franchise or license for the provision of telecommunications services shall comply with the provisions of A.R.S. Section 9-581.
(Ord. 2009, Added, 11/02/1999)
3-07-001-0005 PROVIDING FOR REPEAL OF CONFLICTING ORDINANCES:
All ordinances and parts of ordinances in conflict with the provisions of this Ordinance or any part of the Code adopted herein by reference, are hereby repealed.
(Ord. 2009, Added, 11/02/1999)
3-07-001-0006 PROVIDING FOR SEVERABILITY:
If any section, subsection, sentence, clause, phrase, or portion of this Ordinance or any part of the Code adopted herein by reference, is for any reason held to be invalid or unconstitutional by the decision of any court of competent jurisdiction, such decision shall not affect the validity of the remaining portions thereof.
(Ord. 2009, Added, 11/02/1999)