§ 115.001 Purpose

The purpose of this chapter is to:

(A) Comply with the provisions of the 1996 Telecommunications Act as they apply to local governments, Carriers and the services they offer;

(B) Establish clear local guidelines, standards and time frames for the exercise of local authority with respect to the regulation of Carriers and services;

(C) Promote competition on a competitively neutral basis in the provision of telecommunications services;

(D) Encourage the provision of advanced and competitive telecommunications services on the widest possible basis to businesses, institutions and residents of the city;

(E) Permit and manage reasonable access to the public rights-of-way of the city for telecommunications purposes on a competitively neutral basis and conserve the limited physical capacity of those public rights-of-way held in trust by the city;

(F) Assure that the city's current and ongoing costs of granting and regulating private access to and the use of the public rights-of-way are fully compensated by the persons seeking such access and causing such costs to be incurred;

(G) Secure fair and reasonable compensation to the city and its residents for permitting private use of the public rights-of-way;

(H) Assure that all Carriers providing facilities or services within the city, or passing through the city, register and comply with the ordinances, rules and regulations of the city;

(I) Assure that the city can continue to fairly and responsibly protect the public health, safety and welfare of its citizens;

(J) Enable the city to discharge its public trust consistent with the rapidly evolving federal and state regulatory policies, industry competition and technological development.

(Ord. 2016, passed 5-22-00; Am. Ord. 2069, passed 5-12-03)

§ 115.002 Jurisdiction and Management of the Public Rights-of-Way

(A) The city has jurisdiction and exercises regulatory control over all public rights-of-way within the city under authority of the city charter and state law.

(B) Public rights-of-way include, but are not limited to, streets, roads, highways, bridges, alleys, sidewalks, trails, paths, public easements and all other public ways or areas, including the subsurface under and air space over these areas.

(C) The city has jurisdiction and exercises regulatory control over each public right-of-way whether the city has a fee, easement or other legal interest in the right-of-way. The city has jurisdiction and regulatory control over each right-of-way whether the legal interest in the right-of-way was obtained by grant, dedication, prescription, reservation, condemnation, annexation, foreclosure or other means.

(D) No person or entity may occupy or encroach on a public right-of-way without the permission of the city. The city grants permission to use rights-of-way by franchises and permits.

(E) The exercise of jurisdiction and regulatory control over a public right-of-way by the city is not official acceptance of the right-of-way, and does not obligate the city to maintain or repair any part of the right-of-way.

(F) The city retains the right and privilege to remove any telecommunications facilities located within the public rights-of-way of the city, as the city may determine to be necessary, appropriate or useful in response to any public health or safety emergency.

(Ord. 2016, passed 5-22-00; Am. Ord. 2069, passed 5-12-03)

§ 115.003 Applicability to Cable Service and Open Video System

To the extent not specifically precluded by the Cable Act or any other federal law, this chapter shall apply to cable service provided within the city and to Open Video Systems, as that term is used in section 653 of the Telecommunications Act.

(Ord. 2016, passed 5-22-00; Am. Ord. 2069, passed 5-12-03)

§ 115.004 Regulatory Fees and Compensation Not a Tax

(A) The regulatory fees and costs provided for in this chapter, and any compensation charged and paid for the public rights-of-way provided for in this chapter, are separate from, and in addition to, any and all federal, state, local and city taxes as may be levied, imposed or due from a Carrier, its customers or subscribers, or on account of the lease, sale, delivery or transmission of telecommunications services.

(B) The city has determined that any fee imposed by this chapter is not subject to the property tax limitations of Chapter XI, Section 11(b) of the Oregon Constitution.

(Ord. 2016, passed 5-22-00; Am. Ord. 2069, passed 5-12-03)

§ 115.005 Definitions

For the purpose of this chapter the following terms, phrases, words and their derivations shall have the meaning defined in this chapter. When not inconsistent with the context, words used in the present tense include the future, words in the plural number include the singular number and words in the singular number include the plural number. The words “shall” and “will” are mandatory and “may” is permissive. Words not defined in this chapter shall be given the meaning set forth in the Communications Policy Act of 1934, as amended, the Cable Communications Policy Act of 1984, the Cable Television Consumer Protection and Competition Act of 1992, and the Telecommunications Act of 1996. If not defined there, the words shall be given their common and ordinary meaning.

• Aboveground or Overhead Facilities. Utility poles, utility facilities and telecommunications facilities above the surface of the ground, including the underground supports and foundations for such facilities.
• Affiliated Interest. The same meaning as ORS 759.010.
• Cable Act. The Cable Communications Policy Act of 1984, 47 U.S.C. §§ 521, et seq., as now and hereafter amended.
• Cable Service. The one-way transmission to subscribers of video programming, or other programming service; and subscriber interaction, if any, which is required for the selection or use of such video programming or other programming service.
• Carrier. Any provider of telecommunications services within the city. Carrier includes Telecommunications Carriers, Telecommunications Utilities and Resellers.
• City Property. All real property owned by the city, other than public streets and utility easements as those are defined in this chapter, 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 chapter.
• Conduit. Any structure, or section of any structure, containing one or more ducts, conduits, manholes, handholes, bolts, or other facilities used for any telegraph, telephone, cable television, electrical, or communications conductors, or cable right-of-way, owned or controlled, in whole or in part, by one or more public or private utilities.
• Control or Controlling Interest. Actual working control in whatever manner exercised.
• Duct. A single enclosed raceway for conductors or cable.
• FCC or Federal Communications Commission. The federal administrative agency, or lawful successor, authorized to regulate and oversee Carriers, services and providers on a national level.
• Franchise. An agreement between the city and a Grantee which grants a privilege to use public right-of-way and utility easements within the city for a dedicated purpose and for specific compensation.
• Grantee. The person to which a franchise or permit is granted by the city.
• Gross Revenue. Except for a telecommunications utility, gross revenue means gross revenue derived by Grantee from the provision of telecommunications services originating or terminating in the city using facilities covered by the franchise. For the purposes of this definition, net uncollectibles from revenue included in gross revenues may be excluded from gross revenues. For a telecom-munications utility, gross revenue means those revenues derived from exchange access services, as defined in ORS 401.710, less net uncollectibles from such revenues. If a telecommunications utility provides telecommunication services in addition to exchange access services, then gross revenue for those additional services shall have the meaning defined in the first sentence of this section.
• Local Exchange Service. Service provided within the boundaries of an exchange as the exchange appears on the exchange maps filed with and approved by the Oregon Public Utility Commission. Local exchange service includes “shared telecommunications service,” as defined in ORS Chapter 759.
• Oregon Public Utilities Commission or OPUC. The statutorily created state agency in the State of Oregon responsible for licensing, regulation and administration of certain communications providers as set forth in Oregon Law.
• Person. An individual, corporation, company, association, joint stock company or association, firm, partnership, or limited liability company.
• Private Telecommunictions Network. A system, including the construction, maintenance or operation of the system, for the provision of a service or any portion of a service, by a person for the exclusive use of that person and not for resale, directly or indirectly. Private Telecommunications Network includes services provided by the State of Oregon pursuant to ORS 190.240 and 283.140.
• Public Rights-of-Way. Include, but are not limited to, streets, roads, highways, bridges, alleys, sidewalks, trails, paths, public easements and all other public ways, including the subsurface under and air space over these areas, but only to the extent of the city's right, title, interest or authority to grant a franchise to occupy and use such streets and easements for telecommunications facilities. Public Rights-of-Way do not include trails, paths or sidewalks within parks or other areas of the city unless the trail, path or sidewalk has been dedicated as a right-of-way.
• Public Street. Any highway, street, alley or other public right-of-way for motor vehicle travel under the jurisdiction and regulatory control of the city which has been acquired, established, dedicated or devoted to vehicular travel and pedestrian purposes not inconsistent with telecommunications facilities.
• Reseller. Any person that provides telecommunications service using a telecom-munications facility within a public right-of-way for which service a separate charge is made, where that person does not own, lease, control or manage the telecommunications facility used to provide the service.
• Telecommunications. The transmission between and 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.
• Telecommunications Act. The Telecommunications Act of 1996 (47 U.S.C. §§ 151 et seq.) as adopted and as hereafter amended.
• Telecommunications Carrier. Any competitive telecommunications services provider that provides telecommunications services within the city. Telecommunications Carrier includes every person that directly or indirectly owns, controls, operates or manages telecommunications facilities within the city but does not include a telecommunications utility acting in its capacity as an incumbent local exchange carrier.
• Telecommunications Facilities or System. The equipment, other than customer premises equipment, used by a carrier to provide telecommunications services.
• Telelecommunications Service. The offering of telecommunications for a fee directly to the public, or to such classes of users as to be effectively available directly to the public, regardless of the facilities used. Telecommunications Services includes but is not limited to any service provided for the purpose of voice, video or data transmission, including, but not limited to, local exchange service, access service, extended area service, call origination, interconnection, switching, transport, or call termination and any other telecommunications services identified and authorized by the FCC or the OPUC.
• Telecommunications Utility. Has the same meaning as ORS 759.005(1)(a) and is limited to incumbent local exchange carriers (ILECs).
• Underground Facilities. Utility and telecommunications facilities located under the surface of the ground, excluding the underground foundations or supports for “Overhead facilities.”
• Usable Space. All the space on a pole, except the portion below ground level, the 20 feet of safety clearance space above ground level, and the safety clearance space between communications and power circuits.
• Utility Easement. Any easement within the public right-of-way designated on a subdivision plat or partition map as a utility easement, public utility easement or “P.U.E.” or any easement granted to or owned by the city and acquired, established, dedicated or devoted for public utility purposes not inconsistent with the telecommunications facilities.
• Utility Facilites. The plant, equipment and property, including but not limited to the poles, pipes, mains, conduits, ducts, cable, wires, transformers, plant and equipment located under, on, or above the surface of the ground within the public right-of-way of the city and used or to be used for the purpose of providing utility or telecommunications services.

(Ord. 2016, passed 5-22-00; Am. Ord. 2069, passed 5-12-03)