Chapter 5.25 COMMUNICATIONS PROVIDER LICENSING

(1) The Veneta City Charter grants to the city all powers that the constitutions, statutes and common law of the United States and of the state of Oregon now or hereafter expressly or impliedly grant or allow.

(2) Among the powers granted to the city is the power to impose license requirements and charges. Such licenses may include charges for the privilege of conducting business within the city and for the use of the city rights-of-way.

(3) Numerous utilities rely on the existence of the city to enable them to provide goods and services to citizens of the city, including, without limitation, telephone, cable television, and other information and telecommunications services.

(4) Communication providers also seek to provide services which require, for their effective delivery, connection to, interaction with, or other use of facilities placed in the public ways by themselves and others.

(5) The city desires to facilitate making communication services available to citizens by itself working to provide amenities that make Veneta a better place to do business. For most utilities this includes, but is not limited to, the city permitting use of the public ways for the support of utility services, so long as such use is consistent with and does not unduly burden or interfere with the principal purpose of the public ways, which is to facilitate the free movement of persons and goods in commerce.

(6) The city holds the health, safety, quality of life and opportunities to prosper, as well as such physical assets as the public ways, in trust for all of its citizens, and has a responsibility to assure that any use of the city amenities, and especially its public ways, are used in a manner that benefits all of the citizens. Where it is deemed appropriate, the city should provide for the recovery of a fair and reasonable compensation for the use of the city and the city’s assets for the purpose of doing business.

(7) Many communications providers use only the public ways to provide services. Other communications providers make no use of the public ways, or only an indirect or limited use of the public ways, yet still these providers prosper in the city because of the amenities made possible by the city. Where those providers make franchise fee payments that provide compensation based on all the services provided, the franchise serves as an adequate replacement for other charges. Franchises are, however, often used as a means to install infrastructure, ostensibly for one purpose, which can then be used for multiple services. Where a provider provides services not covered by a franchise within the city, it is appropriate that the provider be subject to the charges set forth in this chapter, so that the payments accurately reflect the range of advantages derived from the opportunity to provide services within the city, and, where appropriate, especially the use of the rights-of-way of the city. The intent of this chapter is to treat all providers in an equal manner, subjecting all providers and all types of service that make use of the city’s amenities and assets to the same charges and fees. (Ord. 516 § 1, 2014; Ord. 482 § 1, 2008)

I. Communications Operations License

5.25.020 Definitions.

Terms used in this chapter shall have the following meanings:

(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) “Cable Acts” 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.

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

(4) “Cable service” shall have the same meaning as defined in the Cable Acts.

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

(6) “Licensee” means any entity granted a license hereunder.

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

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

(9) “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.

(10) “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.

(11) “Right-of-way” includes all public streets owned by the city and public utility easements granted to the city, 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.

(12) “License fee administrator” means the city administrator of the city or designee.

(13) “Communications carrier” includes every person or entity 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 communications service.

(14) “Communications facilities or system” means the 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 communications service.

(15) “Communications provider” means any provider of communications services and includes, but is not limited to, every person or entity that directly or indirectly owns, controls, operates or manages communications facilities within the city.

(16) “Communications 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, graphic and video programming or any other 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. “Communications service” includes all forms of telephone services and voice, video, data or information transport, but does not include (a) private communications system services provided without using the public rights-of-way, (b) over-the-air radio or television broadcasting to the public at large from facilities licensed by the Federal Communications Commission; and (c) direct to home satellite service within the meaning of Section 602 of the Telecommunications Act.

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

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

(19) “Utility 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.

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

(21) “Private communications network” means a system, including the construction maintenance or operation of the system, for the provision of a service or any portion of a service which is owned or operated exclusively by a person or entity for their use and not for resale, directly or indirectly. Includes services provided by the state of Oregon pursuant to ORS 190.240 and 283.140.

(22) “Person” means any individual, firm, sole proprietorship, corporation, company, partnership, co-partnership, joint-stock company, trust, limited liability company, association or other organization, including any natural person or any other legal entity. (Ord. 516 § 2.01, 2014; Ord. 482 § 2.01, 2008)

5.25.030 Communications utility license required.

A communications utility license shall be required of any utility who desires to provide communications service to persons in the city or to persons or areas outside the city using facilities located in the city. No utility shall provide services within the city nor shall such utility provide services outside the city using facilities located within the city unless licensed as provided herein. 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 chapter is to:

(1) Provide the city with accurate and current information concerning the utilities who offer communications services within the city, or that own or operate utility facilities within the city;

(2) Assist the city in enforcement of this chapter;

(3) Assist the city in the collection and enforcement of any municipal taxes, franchise fees, license, permit or other fees or charges that may be due the city;

(4) Assist the city in monitoring compliance with local and, to the extent authorized by law, with state and federal laws. (Ord. 516 § 2.02, 2014; Ord. 482 § 2.02, 2008)

5.25.040 License application.

Any utility that is required to have a communications utility license shall file an application, using the form provided for such purpose, with the city, which shall include the following information:

(1) The identity of the license applicant, including all affiliates of the applicant.

(2) A description of the communications services that are or will be offered or provided by licensee.

(3) Information to establish 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 decisions. In the event any other required government approval is not obtained any license granted hereunder shall be subject to modification to reflect the absence of such approval upon the city’s discovery of, or notice of the absence of required information.

(4) Identification of any adverse circumstances affecting the use of the public way, and a description of efforts to mitigate such circumstances.

(5) All fees, deposits or charges required pursuant to this chapter. (Ord. 516 § 2.03, 2014; Ord. 482 § 2.03, 2008)

5.25.050 Determination by the city.

Within 120 days after receiving a complete application under VMC 5.25.040, the city shall, if the application conforms with the requirements of law, issue the license.

If the application is denied, the denial shall be in writing and state the reasons for denial. (Ord. 516 § 2.04, 2014; Ord. 482 § 2.04, 2008)

5.25.060 Effect of utility license.

(1) The license granted hereunder shall authorize and permit the licensee, subject to other provisions of Veneta ordinances and other applicable provisions of state or federal law, to operate in the city and provide the communications 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, and to a franchise granted by the city, if applicable, the license shall authorize the licensee to 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 and permits required by 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 Veneta ordinances, including the standard construction specifications of the applicable building codes. 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) The city reserves 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; or

(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; or

(c) Vacate, alter, or close any public way; provided, however, that no vacation shall obligate a utility to remove or 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, provided, however, that when such removal or relocation is required for the convenience or benefit of any private person, or non-governmental agency or instrumentality, utility shall be entitled to reimbursement for the reasonable cost thereof from such person, agency or instrumentality, to the extent permitted by law.

(3) Whenever the city shall perform or cause or permit to be performed, any work in the public way or the vicinity of the public way where such work may disturb or interfere with a utility’s facilities, the city shall, or shall require its permittee, to notify, in writing, the utility sufficiently in advance of such contemplated work to enable utility to take such measures, including removal or relocation of such facilities, as may be deemed necessary to protect such facilities, at its own expense.

(4) The possession of a utility 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. (Ord. 516 § 2.05, 2014; Ord. 482 § 2.05, 2008)

5.25.070 Nonexclusive grant.

No license granted under this chapter shall confer any exclusive right, privilege, license or franchise to conduct business in the city, or to occupy or use the public ways of the city for delivery of utility services or any other purposes. (Ord. 516 § 2.06, 2014; Ord. 482 § 2.06, 2008)

5.25.080 Rights granted.

No license granted under this chapter shall convey any right, title or interest in the public ways, but shall be deemed a license only to conduct authorized activities within the city to offer communications services and, where appropriate, to use and occupy the public ways for the limited purposes and term stated in the grant. Further, no license shall be construed as any warranty of title. In the event that a conflict arises or is discovered between the terms or requirements of this chapter and the terms or requirements of any other ordinance adopted by the city of Veneta, the most recently adopted ordinance shall prevail insofar as there is an actual conflict, and the adoption of that ordinance shall be considered an amendment to the conflicting provisions of the otherwise conflicting ordinance. (Ord. 516 § 2.07, 2014; Ord. 482 § 2.07, 2008)

5.25.090 Term of grant.

Unless otherwise specified in a license agreement, a communications license granted hereunder shall be in effect for a term of five years. (Ord. 516 § 2.08, 2014; Ord. 482 § 2.08, 2008)

5.25.100 Coordination of activities.

Wherever possible, all holders of a license are directed to coordinate their activities affecting the public ways and shall be obliged to participate in coordination meetings to be held by the city for the purpose of facilitating such cooperation and coordination. (Ord. 516 § 2.09, 2014; Ord. 482 § 2.09, 2008)

5.25.110 Amendment of license.

A new license application and grant shall be required of any utility that desires to extend additional or different services in the city which are not included in a license previously granted under this chapter. (Ord. 516 § 2.10, 2014; Ord. 482 § 2.10, 2008)

5.25.120 Renewal applications.

A licensee that desires to renew its license under this chapter shall, not more than 180 days nor less than 90 days before expiration of the current license, file an application with the city for renewal of its license which shall include the information required for initial licensing. (Ord. 516 § 2.11, 2014; Ord. 482 § 2.11, 2008)

5.25.130 Renewal determinations.

Within 90 days after receiving a complete application under VMC 5.25.120, 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 Veneta ordinances.

If the renewal application is denied, the written determination shall include the reasons for nonrenewal. (Ord. 516 § 2.12, 2014; Ord. 482 § 2.12, 2008)

5.25.140 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 have been cured, or a plan detailing the corrective action to be taken by the licensee has been approved by the city. Ord. 516 § 2.13, 2014; (Ord. 482 § 2.13, 2008)

II. Utility License – Fees and Compensation

5.25.150 Purpose.

It is the purpose of this section to provide for the payment and recovery of all direct and indirect costs and expenses of the city related to the enforcement and administration of this chapter and other city practices and policies that make possible the conditions that allow licensees to operate within the city of Veneta. Any revenues received in excess of the cost of administering the ordinance shall be used to improve the public safety of the city of Veneta. Public safety services are one of the most important services provided to the businesses and their customers in Veneta. (Ord. 516 § 3.01, 2014; Ord. 482 § 3.01, 2008)

5.25.160 Application and review fee.

(1) Any applicant for a license, including a renewal or amendment of an existing license, pursuant to Article I of this chapter shall pay a fee of $100.00.

(2) The application and review fee shall be deposited with the city as part of the application filed pursuant to Article I of this chapter.

(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 its deposit under this section. (Ord. 516 § 3.02, 2014; Ord. 482 § 3.02, 2008)

5.25.170 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. (Ord. 516 § 3.03, 2014; Ord. 482 § 3.03, 2008)

5.25.180 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, the compensation to be paid shall be fixed by the city and shall be separate and distinct from any fees imposed herein. (Ord. 516 § 3.04, 2014; Ord. 482 § 3.04, 2008)

5.25.190 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 VMC 5.25.180, 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. (Ord. 516 § 3.05, 2014; Ord. 482 § 3.05, 2008)

5.25.200 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 shall 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. 516 § 3.06, 2014; Ord. 482 § 3.06, 2008)

III. Communications Utility License Fee

5.25.210 Communications provider 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 communications services required to be licensed under VMC 5.25.020, upon any communications provider required to be licensed, as defined herein, in consideration of the authority of such provider to conduct such business and to take advantage of the business conditions provided by the city of Veneta, including the use of the rights-of-way. (Ord. 516 § 4.01, 2014; Ord. 482 § 4.01, 2008)

5.25.220 Minimum fee.

In no event shall the fee due for any calendar year be less than:

(1) In the case of a communications provider providing services within the city of Veneta, $500.00.

(2) In the case of a communications provider not providing services within the city of Veneta, but occupying the public rights-of-way within the city, the greater of (a) a charge of $2.00 for each linear foot of public ways occupied by the facilities of the provider, or (b) $350.00. If the communications provider can show that this minimum amount creates a hardship, the city may grant an exemption.

(3) Licensees who can show that their gross annual revenues for services provided within the city of Veneta are less than $10,000 may apply for an exemption from the payment of the license fee. Where the license fee administrator can determine from the evidence provided that the applicant for an exemption is providing less than the threshold amount 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 license fee administrator may grant an exemption. Such an exemption shall be good only for the calendar year granted. The license fee administrator may waive the minimum fee requirement of this section, if it is determined to be in the best interests of the city, as set forth in this chapter. (Ord. 516 § 4.02, 2014; Ord. 482 § 4.02, 2008)

5.25.230 Returns.

(1) For purposes of calculating fees dues under this section, every communications provider subject to licensing and fees 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 return certified by an officer of the provider showing the amount of fee due and accompanied by the amount due.

(2) Such return shall show the amount of gross revenue of the utility within the city for the period covered by the payment computed on the basis set out in this section, and shall show any offsets, deductions or credits against the revenue or the amount of fee due. The compensation 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 10 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 return claiming the minimum fee provided by VMC 5.25.220 shall be due, the licensee shall nonetheless file a return as provided in subsection (2) of this section and shall, if claiming under VMC 5.25.220(2), file a report duly certified 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 under VMC 5.25.220(2) may substitute for the engineer’s report a statement from a person knowledgeable about such matters, attesting that no additional installations have been made, if such a statement can be made.

(4) The city may audit any return filed by the licensee, and 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.

(5) 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. (Ord. 516 § 4.03, 2014; Ord. 482 § 4.03, 2008)

5.25.240 Gross revenue.

For purposes of this article, “gross revenue” shall mean any and all revenue, of any kind, nature or form, 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 and any affiliates, subsidiaries or parent of the licensee on account of goods or services from the licensee’s ongoing operations delivered within the city of Veneta. Gross revenue shall include any and all subsidies, discounts, rebates or other considerations or forbearances by the licensee associated with the delivery of such goods and services within the city of Veneta. In determining gross revenues for the calculation of fees, the city shall consider mobile communications services to occur within the city if they 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 USC 116 to 126. (Ord. 516 § 4.04, 2014; Ord. 482 § 4.04, 2008)

5.25.250 Exemptions and credits.

If any licensee is a party to a franchise, public way use agreement, or other contract with the city which requires the payment of a fee for the use of the public ways of the city, any payments made under such agreement during the filing year shall be credited against any fee due hereunder to the extent the revenue upon which such payments are based is subject to fees required hereunder. Revenues not included in the franchise or other agreement but otherwise earned because of transactions in the city shall remain subject to the license fee.

(1) If a licensee asserts that any other provisions of local, state or federal law impose a limit upon the revenue subject to fees or charges that can be imposed in connection with the use of public ways, such licensee shall file a return which:

(a) Itemizes the gross revenue subject to fees under this article;

(b) Itemizes the portion of such revenue that is subject to the limitation claimed to exist under other provisions of local, state or federal law.

(2) The license fee liability of a licensee claiming a limitation on revenue subject to fees shall be the sum of:

(a) The fee due hereunder on that portion of the licensee revenue not subject to the limitation; and

(b) On the portion of revenue subject to a limitation, the lesser of:

(i) The fee due under this article; or

(ii) The license fee due under the other provision of local, state or federal law.

(3) Any licensed utility shall be allowed, as a credit against fees due hereunder, the reasonable value of any and all services rendered to or goods provided to the city without fee, if any, during the preceding calendar year. (Ord. 516 § 4.05, 2014; Ord. 482 § 4.05, 2008)

5.25.260 Penalties and interest.

(1) Any violation of the provisions of this chapter shall be a violation punishable in accordance with city ordinances. Any person found to have violated any of the provisions of this chapter or the license shall be subject to a penalty of not less than $100.00 nor more than $1,000 for each offense. A separate and distinct offense shall be deemed committed each day on which a violation occurs or continues. The city may use all enforcement methods available to the city in accordance to city ordinances and state law.

(2) In addition to other penalties, 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.

(3) Interest on any payment not timely made, and upon all penalties imposed, shall accrue at the annual rate of 10 percent, compounded daily, for each day beyond the due date, until the date paid. (Ord. 516 § 4.06, 2014; Ord. 482 § 4.06, 2008)

5.25.270 Lien.

The fee imposed by VMC 5.25.210, together with the interest and penalties provided by VMC 5.25.260 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 VMC 5.25.230 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 Veneta 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 license fee administrator whenever the operator is in default in the payment of the fee, interest and 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 license fee administrator may be sold by the license fee administrator at public auction after 10 days’ notice thereof published in a newspaper in the city.

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 license fee administrator 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. 516 § 4.07, 2014; Ord. 482 § 4.07, 2008)