Chapter 5.10
TELECOMMUNICATIONS PROVIDER LICENSING

Sections:

5.10.010    Telecommunications license.

5.10.020    Telecommunications license – Fees and compensation.

5.10.030    Telecommunications license fee.

5.10.040    General provisions.

5.10.010 Telecommunications license.

A. Definitions. Terms used in this chapter shall have the following meanings:

“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.

“Cable Act” means the Cable Communications Policy Act of 1984, as amended by the Cable Television Consumer Protection and Competition Act of 1992, as amended by the Telecommunications Act of 1996 and as hereafter amended.

“Cable operator” means an entity providing or offering to provide cable service within the city as that term is defined in the Cable Act.

“Cable service” shall have the same meaning as defined in the Cable Act.

“Excess capacity” means the volume or capacity in any existing or future duct, conduit, maintenance hole, handhole or other utility facility within the public way that is or will be available for use for additional telecommunications facilities, including 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 Public Utility Commission, to allow its use by a telecommunications carrier for a pole attachment.

“FCC” or “Federal Communications Commission” means the federal administrative agency, or lawful successor, authorized to regulate and oversee telecommunications carriers, services and providers on a national level.

“Licensee” means any entity granted a license hereunder.

“Overhead facilities” means utility poles, utility facilities and telecommunications facilities located above the surface of the ground, including the underground supports and foundations for such facilities.

“Person” means any individual or entity engaging in activities regulated by this chapter.

“Public street” means any highway, street, alley or other public right-of-way dedicated for motor vehicle travel under the jurisdiction and control of the city.

“Public utility easement” means any easement granted to the city, acquired, established, dedicated or devoted for access for public utility facilities for construction, operations, and maintenance purposes.

“Public ways” includes all public streets, roads and thoroughfares owned by the city and public utility easements granted to the city, as those terms are defined herein, but only to the extent of the city’s right, title, interest or authority to grant permission to occupy and use such streets and easements.

“Telecommunications carrier” includes every person that directly or indirectly uses, owns, controls, operates or manages plant, equipment or property within the city or telecommunications facilities, used or to be used for the purpose of offering telecommunications services to persons inside the city or to persons outside the city using city public ways. The term “telecommunications carrier” or “telecommunications provider” expressly includes providers of cable service.

“Telecommunications facilities or system” means all plant, equipment and property including, but not limited to, cables, wires, conduits, ducts, pedestals, antennas, electronics and other appurtenances used or to be used to transmit, receive, distribute, provide or offer telecommunications service.

“Telecommunications provider” includes every person who provides telecommunications services.

“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, or video images, graphic and video programming, or any other information between or among points by wire, cable, fiber optics, laser, microwave, radio, satellite or other facilities, with or without benefit of any closed transmission medium. For the purposes of this chapter, telecommunications services includes cable services.

“Underground facilities” means utility and telecommunications facilities located under the surface of the ground, excluding the underground foundations or supports for overhead facilities.

“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 regulations of the Public Utility Commission.

“Utility” means any telecommunications utility, as defined in ORS 759.005(1), and any telecommunications carrier, telecommunications provider or other entity providing telecommunications services.

“Utility facilities” or “facilities” means the plant, equipment and property 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 services. The term shall include all such things owned by the utility and all such things as the utility shall have a property interest in, including things held by the utility or on its behalf under a lease, rental agreement or indefeasible right of use for a term of years.

“Utility services” means all services provided by a utility to customers located within the city limits of the city of Creswell or provided to customers wherever located using facilities physically located within the city limits of the city of Creswell.

B. Telecommunications License Required. A telecommunications license shall be required of any utility who desires to provide telecommunications service to persons in the city, who occupies or uses city public ways to provide telecommunications services, or who desires to provide telecommunications services to persons or areas outside the city using city public ways or using facilities located in the city.

No utility shall use the public ways or shall provide telecommunications services within the city nor shall such utility provide services outside the city using facilities located within the city unless licensed as provided herein. Any violation of the provisions of this section shall be a misdemeanor punishable in accordance with city ordinances. Utilities who utilize facilities of another licensed utility for the distribution of their services shall be required to have a separate license. The purpose of licensing under this section is to:

1. Provide the city with accurate and current information concerning the utilities who offer telecommunications services within the city, who occupy the city public ways, or who own or operate utility facilities within the city;

2. Assist the city in maintaining and managing critical transportation infrastructure including the city public ways and in promoting the expansion of competitive telecommunications services throughout the city;

3. Assist the city in enforcement of this chapter;

4. Assist the city in the collection and enforcement of any municipal franchise fees, license, permit or other fees or charges that may be due the city; and

5. Assist the city in monitoring compliance with local, and, to the extent authorized by law, with state and federal laws.

C. License Application. Any utility that is required to have a telecommunications license shall file a license application, using the form provided for such purpose, with the city, which shall include, at minimum, the following information:

1. The identity and contact information of the license applicant, including all affiliates of the applicant.

2. A description of all telecommunications services that are or will be offered or provided by licensee.

3. Proof that the applicant has obtained or has applied for all other governmental approvals and permits to construct and operate the facilities and to offer or provide the services. Such approvals include, without limitation, any land use permits or authorizations. In the event any other required government approval is not obtained, any license granted hereunder may be subject to modification or revocation.

4. Identification of any adverse circumstances affecting the use of the public ways and a description of efforts to mitigate such circumstances.

5. All fees, deposits or charges required pursuant to this chapter.

6. The legal qualifications and financial and technical ability of the applicant to provide the proposed services.

7. Proof of compliance with all requirements of applicable city, state and federal laws and regulations and other city contracts regarding the public ways.

D. Determination by the City. Within 120 days after receiving a complete application under subsection (C) of this section, the city shall, if the application conforms with the requirements of the law and the standards provided herein, issue the license. If the application is denied, the denial shall be in writing and state the reasons for denial.

E. Effect of Telecommunications License.

1. The license granted hereunder shall authorize and permit the licensee, subject to other provisions of Creswell ordinances and other applicable provisions of state or federal law, to operate in the city and provide the telecommunications services covered by the license. In addition to a grant of authority to operate within the city, and subject to other requirements of law regarding the activities involved in the placement of facilities in the public ways of the city, the license shall authorize the licensee to place and maintain facilities in, and occupy, the public ways of the city for so long as the licensee shall comply with the provisions of this code, and continue to hold any and all licenses, franchises, or permits required by city, state or federal law for the provision of such services as covered by this license; provided, however, that all work, construction, placement or operation of such facilities shall be in compliance with the provisions of the Creswell Municipal Code, including the standard construction specifications. Nothing in such license shall authorize the licensee to use the facilities or property of another, which use, if any, shall be subject to agreement with the owner of such facility or property and any applicable provisions of law. Nothing in such license shall operate or be construed as an approval of such business or a regulation of the practices of such business.

2. Licenses granted under this chapter are subject to the city’s reservation of the right, in every event, without limitation, to:

a. Construct, install, maintain and operate any public improvement, work or facility in, on, over or under the public ways;

b. Perform or authorize or direct the performance of any work that the city may find desirable or convenient in, on, over or under any public way;

c. Vacate, alter, or close any public way; provided, however, that no vacation shall obligate a utility to abandon any facility located within such public way; or

d. Require, in the public interest, the removal or relocation, temporarily or permanently, of facilities maintained by the utility in the public ways of the city. The utility shall remove and relocate such facilities within 120 days after receiving notice in writing to do so from the city. Such removal or relocation shall be without cost or expense to the city. When such removal or relocation is required for the primary convenience or benefit of any private person or nongovernmental agency or instrumentality, the utility may be entitled to reimbursement for the reasonable cost thereof from such person, agency or instrumentality, to the extent permitted by law.

3. The possession of a telecommunications license from the city shall not provide the licensee with any right or privilege to alter or avoid any charge or cost allocation for the relocation of utility facilities, nor shall a license provide a different or greater claim for compensation than otherwise apportioned by law or agreement.

F. Nonexclusive Grant. No telecommunications license granted under this chapter shall confer any exclusive right, privilege, license or franchise to conduct business in the city, or to exclusively occupy or use the public ways of the city for delivery of telecommunications utility services or any other purposes.

G. Rights Granted. No license granted under this chapter shall convey any ownership right, title or interest in the public ways, but shall be deemed a license only to conduct authorized activities within the city to offer telecommunications services and, where appropriate, to use and occupy the public ways for the limited purposes and terms stated in the license. Further, no license shall be construed as any warranty of title. All rights remain subject to all applicable city ordinances, regulations, and rules.

H. Term of License. Unless otherwise specified in an unexpired franchise agreement, a telecommunications license granted hereunder shall be in effect for a term of five years.

I. Coordination of Activities. Holders of a license are directed to coordinate their activities affecting the public ways with the city and other users and occupiers of the public ways. All licensees shall participate in coordination meetings held by the city for the purpose of facilitating such cooperation and coordination.

J. Amendment of License. A new license application and grant shall be required of any telecommunications utility that desires to extend additional or offer additional telecommunications services in the city if such services are not included in a license previously granted under this chapter.

K. Renewal Applications. A licensee that desires to renew its license under this section shall, not more than 180 days nor less than 90 days before expiration of the current license, file a renewal application with the city which shall include all information required for initial licensing.

L. Renewal Determinations. Within 90 days after receiving a complete application under subsection (K) of this section, the city shall issue a written determination applying the following standards, as applicable, and, if the application conforms with the requirements of law, grant the application:

1. Demonstrated legal qualifications, financial and technical ability of the applicant.

2. Compliance with requirements of applicable state and federal laws and regulations.

3. The applicant’s compliance with the requirements of this chapter and other Creswell ordinances. If the renewal application is denied, the written determination shall include the reasons for nonrenewal.

M. Obligation to Cure as a Condition of Renewal. No license shall be renewed until any existing violations or defaults in the licensee’s performance of the requirements of this chapter or in the performance of other contracts and agreements regarding the use of the public ways have been cured, or a plan detailing the corrective action to be taken by the licensee has been approved by the city. [Ord. 507 § 1 (Att. A § 1), 2017; Ord. 421 § 1, 2004].

5.10.020 Telecommunications license – Fees and compensation.

A. Purpose. It is the purpose of this section to require applicants and licensees to reimburse the city for reasonable direct and indirect costs and expenses of the city related to the processing of the application and license and for enforcement and administration of this chapter.

B. Application and Review Fee.

1. Any applicant for a license, including a renewal or amendment of an existing license, pursuant to CMC 5.10.010 shall pay an application review fee which shall be fixed by resolution of the council.

2. The application and review fee shall be deposited with the city as part of the application filed pursuant to CMC 5.10.010.

3. An applicant whose license or franchise application has been withdrawn, abandoned or denied within 60 days of its application and review fee written request shall be refunded the balance of its deposit under this section, less:

a. Any nonrefundable portion of the application and review fee, as may be fixed by resolution of the council; or

b. All costs and expenses incurred by the city in connection with the application, whichever is greater.

4. The council may elect to establish a graduated scale of application fees, reflecting the relative scope of utility activities within the city. Any applicant seeking to qualify for a reduced fee shall provide the necessary documentation at the time of application showing eligibility for any fee reduction. The decision of the city manager regarding the applicability of a fee reduction shall be final.

C. Other City Costs. In addition to the application and review fee, all license or franchise grantees shall, within 30 days after written demand therefor, reimburse the city for all direct and indirect costs and expenses incurred by the city in connection with any issuance, modification, amendment, renewal or transfer of the license or franchise or any license or franchise agreement to the extent permitted by law.

D. Compensation for City Property. If the right is granted, by lease, license, franchise or other manner, to use and occupy city property other than the public ways for the installation of facilities or any other reason, the compensation to be paid shall be fixed by the city by written agreement and shall be separate and distinct from any fees and taxes imposed herein.

E. Regulatory Fees and Compensation Not a Tax. The regulatory fees and costs provided for in this chapter, and any compensation charged and paid for city property provided for in subsection (D) of this section, are separate from, and additional to, any and all federal, state, local and city taxes as may be levied, imposed or due from a utility, its customers or subscribers, or on account of the lease, sale, delivery or transmission of utility services.

F. Penalties and Interest for Late Payment. If any fee provided for herein shall not be timely paid, a penalty in the amount of 10 percent of such fee may be assessed and due as of the date the underlying fee was due. Interest on fees and penalties shall accrue at the rate of one and one-half percent per month, commencing with the fifteenth day after the fee or penalty shall be due. [Ord. 519 § 3, 2018; Ord. 507 § 1 (Att. A § 2), 2017; Ord. 421 § 2, 2004].

5.10.030 Telecommunications license fee.

A. Telecommunications License Fee Imposed. There is hereby imposed a fee in the amount of five percent of gross revenue upon the privilege of conducting a utility business and providing telecommunications services required to be licensed under CMC 5.10.010(B), and upon any telecommunications provider required to be licensed, as defined herein, for their use and occupation of the public right-of-way. The city council may amend the telecommunications license fee by resolution of the city council. This telecommunications license fee is imposed upon telecommunications providers for their use and occupation of the city public ways and for the privilege of operating a telecommunications business within the city.

B. Minimum Fee. In no event shall the fee due for any calendar year be less than:

1. In the case of a telecommunications provider providing services within the city of Creswell, $500.00.

2. In the case of a telecommunications provider not providing services within the city of Creswell, the greater of the product of the number of linear feet of public ways occupied by the telecommunications utility facilities and $3.00 per linear foot, or $500.00.

3. Licensees who can show that their gross annual revenues for services provided within the city of Creswell are less than $10,000 may apply for a whole or partial exemption from the payment of the license fee. Where the city can determine from the evidence provided that the applicant for an exemption is providing less than $10,000 worth of services within the city and where the evidence shows that the applicant is receiving a concomitantly small advantage derived from doing business within the city and where the administrative costs to the city of processing the license fee payments would exceed the benefit to the city, the city may grant an exemption. Such an exemption shall be good only for the calendar year granted.

C. Payment of Fee.

1. Every telecommunications provider subject to licensing or fees under this chapter shall pay such fee on the basis of a calendar year, and shall file, quarterly, before the forty-fifth day following the end of a calendar quarter, a statement certified by an officer of the provider certifying the amount of fee due and accompanied by the amount due.

2. Such statement shall show the amount of gross revenue earned within the city for the period covered by the payment, which shall be computed as provided in this section and shall show any offsets, deductions or credits against the revenue or the amount of fee due. The compensation due to the city for the period covered by the statement shall be computed on the basis of the gross revenue so reported. If the licensee fails to pay the entire amount of compensation due the city through error or otherwise, the difference due the city shall be paid by the licensee within 15 days from discovery of the error or determination of the correct amount, with interest at the rate of nine percent per annum compounded monthly. Any overpayment to the city through error or otherwise shall be offset against the next payment due from the licensee.

3. In the event a licensee files a statement claiming that the compensation due to the city is the minimum fee provided by subsection (B)(1) of this section applies, the licensee shall also file a statement as provided in subsection (C)(2) of this section.

4. If the licensee files a statement claiming a per linear foot-based fee as provided under subsection (B)(2) of this section, it shall also file certification by an engineer licensed to practice within the state of Oregon setting forth the calculation of the number of linear feet of public way occupied by the licensee. After the first such report, the licensee claiming an exemption under subsection (B)(2) of this section may substitute for the engineer’s report a true statement from a person knowledgeable about such matters attesting that no additional installations have been made.

5. The city may audit any statement filed by the licensee, and may require the licensee to submit such information as shall reasonably be required to establish the accuracy of any payment of fee or return documenting the amount of fee due. In the event such audit shall disclose a discrepancy in favor of the city in excess of five percent of the amount paid, there is hereby imposed a penalty in the amount of 10 percent of the difference between the amount paid and the amount found, upon audit, to be due.

6. Acceptance by the city of any payment due under this section shall not be deemed to be a waiver by the city of any rights to conduct such audit, nor shall the acceptance by the city of any such payments preclude the city from later establishing that a larger amount was actually due, or from collecting any balance due to the city.

D. Gross Revenue. For purposes of this chapter the term “gross revenue(s)” shall mean any and all revenue of any kind, nature or form and without deduction for expense; all inflows or enhancements of assets or settlements of its liabilities (or a combination of both) of whatsoever kind and nature derived by the licensee or its affiliates, subsidiaries or parent of the licensee on account of or resulting from the licensee’s telecommunications services provided to city residents or delivered within the city of Creswell. Gross revenue calculations shall account for the value of any and all subsidies, discounts, rebates or other considerations or forbearances by the licensee associated with the delivery of such telecommunications services within the city of Creswell. In determining gross revenues for the calculation of the telecommunications license fee, the city shall consider mobile or cellular telecommunications services to occur within the city if such mobile or cellular telecommunications are used by a customer whose place of primary use is within the city. As used in this section, “place of primary use” means the residential street address or the primary business street address of the customer. The city shall apply this provision consistently with the Mobile Telecommunications Sourcing Act, 4 U.S.C. 116 to 126.

E. Credits and Exemptions.

1. Credits. If any licensee is a party to a franchise agreement, public way use agreement, or other contract allowing use of the city public ways and such agreement or contract requires the licensee to pay a fee for the use of the public ways to provide telecommunications services, any such payment to the city shall be credited against the license fees due and owing under this chapter.

2. Exemptions. If a licensee asserts with specificity that an applicable state or federal statute exempts licensee from paying all or part of the fees due and owing under this chapter, the licensee may file a statement which cites the applicable statute and itemizes and explains the alleged exemption. If the city determines that the limitation or exemption applies, it shall provide an amended statement reflecting the amended amount due and owing, which shall be the sum of:

a. Any amount due hereunder not subject to the exemption; and

b. Regarding any amounts subject to the exemption, the lesser of:

i. The fee due under this section; or

ii. The fee due under the applicable state or federal statute.

3. The city may allow, at its sole discretion, a licensee to provide goods or services to the city in lieu of all or a portion of the license fee due under this chapter, subject to a written agreement signed by the city and the licensee.

F. Penalties and Interest.

1. If any payment due hereunder shall not be timely made, there is imposed a penalty in the amount of 10 percent of the amount due.

2. Interest on any payment not timely made, and upon all penalties imposed, shall accrue at the annual rate of nine percent, compounded daily, for each day beyond the due date, until the date paid.

G. Lien. The fee imposed by subsection (A) of this section, together with the interest and penalties provided by subsection (F) of this section and the filing fees paid to the department of records of Lane County, Oregon, and auditing or other costs which may be incurred when the fee becomes delinquent under subsection (C) of this section, shall be, and until paid remain, a lien from the date of its recording with the department of records of Lane County, Oregon, and superior to all subsequent recorded liens on all real property or tangible personal property of the licensee located within the city of Creswell and may be foreclosed on and sold as necessary to discharge the lien, if the lien has been so recorded. Notice of lien may be issued by the city manager or designee whenever the licensee is in default in the payment of the fee, interest or penalty, and shall be recorded with the department of records and a copy sent to the delinquent licensee. The personal property subject to the lien and seized by any deputy of the city manager may be sold by the city at public auction after 10 days’ notice thereof published in a newspaper in the city.

1. Any such lien as shown on the records of the department of records shall, upon the payment of the fees, penalty and interest for which the lien has been imposed, be released by the city manager when the full amount has been paid to the city. The person making the payment shall receive a receipt therefor stating that the full amount of the fees, penalties, and interest have been paid and that the lien is thereby released and the record of lien satisfied. [Ord. 519 § 3, 2018; Ord. 507 § 1 (Att. A § 3), 2017; Ord. 421 § 3, 2004].

5.10.040 General provisions.

A. Severability. If any article, section, subsection, sentence, clause, phrase, term, provision, condition, covenant or portion of this chapter is for any reason held to be invalid or unenforceable by a court of competent jurisdiction, or is held to be superseded by state or federal legislation, rules, regulations or decision, the remainder of the chapter shall not be affected thereby but shall be deemed as a separate, distinct and independent provision, and such holding shall not affect the validity of the remaining portions of the chapter, and each remaining section, subsection, sentence, clause, phrase, provision, condition, covenant and portion of this chapter shall be valid and enforceable to the fullest extent permitted by law. In the event that federal or state laws, rules or regulations preempt a provision or limit the enforceability of a provision of this chapter, then the provision shall be read to be preempted only to the extent required by law. In the event such federal or state law, rule, or regulation is subsequently repealed, rescinded, amended or otherwise changed so that the provision hereof that had been preempted is no longer preempted, such provision shall thereupon return to full force and effect, and shall thereafter be binding, without the requirement of further action on the part of the city.

B. Compliance with Laws. Telecommunications providers shall comply with all applicable federal and state laws, as well as all ordinances, resolutions, rules and regulations of the city heretofore or hereafter adopted or established during the entire term of any franchise granted under this chapter.

C. Application to Existing Ordinances and Franchise Agreements. To the extent that this chapter is not in conflict with and can be implemented consistently with existing ordinances and unexpired franchise agreements governing the use of the public right-of-way for telecommunications services, this chapter shall apply to all existing ordinances and unexpired franchise agreements governing the use of the public right-of-way for telecommunications. In the event of a conflict between this chapter and the terms of a franchise agreement governing the use of the public right-of-way for telecommunications services which is adopted after the effective date of the ordinance codified in this chapter, the terms of this chapter shall prevail. [Ord. 507 § 1 (Att. A § 4), 2017].