CHAPTER 32
SENATE BILL No. 397
An Act concerning telecommunications providers; relating to
the use of public rights-of-
way; amending K.S.A. 12-2001 and 17-1902 and repealing the
existing sections.
Be it enacted by the Legislature of the State of Kansas:
Section 1. K.S.A. 12-2001 is hereby
amended to read as follows: 12-
2001. (a) The governing body of any city may permit any person,
firm or
corporation to:
(1) Manufacture, sell and furnish
artificial or natural gas light and
heat; electric light, water, power or heat; or steam heat to the
inhabitants;
(2) build street railways, to be operated
over and along or under the
streets and public grounds of such city;
(3) construct and operate
telegraph and telephone lines;
(4) (3) lay
pipes, conduits, cables and all appliances necessary for the
construction, operation of gas and electric-light or steam-heat
plants;
(5) (4) lay
pipes, conduits, cables and all appliances necessary for the
construction and operation of electric railways or bus
companies;
(6) (5) lay pipes
for the operation of a water plant for the distribution
or furnishing of water over, under and along the streets and alleys
of such
city; or
(7) (6) use the
streets in the carrying on of any business which is not
prohibited by law.
(b) If the governing body of a city
permits any activity specified in
subsection (a), the granting of permission to engage in the
activity shall
be subject to the following:
(1) All contracts granting or giving any
such original franchise, right
or privilege, or extending or renewing or amending any existing
grant,
right, privilege or franchise, to engage in such an activity shall
be made
by ordinance, and not otherwise.
(2) No contract, grant, right, privilege
or franchise to engage in such
an activity, now existing or hereafter granted, shall be extended
for any
longer period of time than 20 years from the date of such grant or
exten-
sion.
(3) No person, firm or corporation shall
be granted any exclusive
franchise, right or privilege whatever.
(4) The governing body of any city, at
all times during the existence
of any contract, grant, privilege or franchise to engage in such an
activity,
shall have the right by ordinance to fix a reasonable schedule of
maximum
rates to be charged such city and the inhabitants thereof for gas,
light and
heat, electric light, power or heat, steam heat or water; the rates
of fare
on any street railway or bus company; the rates of any
telephone company;
or the rates charged any such city, or the inhabitants thereof, by
any
person, firm or corporation operating under any other franchise
under
this act. The governing body at no time shall fix a rate which
prohibits
such person, firm or corporation from earning a reasonable rate
upon the
fair value of the property used and useful in such public service.
In fixing
and establishing such fair value, the value of such franchise,
contract and
privilege given and granted by the city to such person, firm or
corporation
shall not be taken into consideration in ascertaining the
reasonableness
of the rates to be charged to the inhabitants of such city.
(5) No such grant, right, privilege or
franchise shall be made to any
person, firm, corporation or association unless it provides for
adequate
compensation or consideration therefor to be paid to such city, and
re-
gardless of whether or not other or additional compensation is
provided
for such grantee shall pay annually such fixed
charge as may be prescribed
in the franchise ordinance. Such fixed charge may consist of a
percentage
of the gross receipts derived from the service permitted by the
grant,
right, privilege or franchise from consumers or recipients of such
service
located within the corporate boundaries of such city, and, in case
of public
utilities or common carriers situated and operated wholly or
principally
within such city, or principally operated for the benefit of such
city or its
people, from consumers or recipients located in territory
immediately
adjoining such city and not within the boundaries of any other
incorpo-
rated city; and in such case such city shall make and report to the
gov-
erning body all such gross receipts once each month, or at such
other
intervals as stipulated in the franchise ordinance and pay into the
treasury
the amount due such city at the time the report is made. The
governing
body shall also have access to and the right to examine, at all
reasonable
times, all books, receipts, files, records and documents of any
such grantee
necessary to verify the correctness of such statement and to
correct the
same, if found to be erroneous. If such statement of gross receipts
is
incorrect, then such payment shall be made upon such corrected
state-
ment.
On and after the effective date of the act,
any provision for compen-
sation or consideration, included in a franchise granted pursuant
to this
section which is established on the basis of compensation or
consideration
paid by the utility under another franchise, is hereby declared to
be con-
trary to the public policy of this state and shall be void and
unenforceable.
Any such provision, included in a franchise granted pursuant to
this sec-
tion and in force on the effective date of this act which requires
payments
to the city by a utility to increase by virtue of the compensation
or con-
sideration required to be paid under a franchise granted by another
city
to the utility's predecessor in interest, is hereby declared to be
contrary
to the public policy of this state and shall be void and
unenforceable.
(6) No such right, privilege or franchise
shall be granted effective until
the ordinance granting the same has been read in full at
three regular
meetings of the governing body. Immediately after the final
passage, the
ordinance shall be published in the official city paper
once a week for
two consecutive weeks. Such ordinance shall not take effect
and be in
force until after the expiration of 60 days from the date
of its final passage.
If, pending the passage of any such ordinance or during the
time between
its final passage and the expiration of 60 days before such
ordinance takes
effect, 20% of the qualified voters of such city voting for
mayor, or in case
no mayor is elected then the commissioner or council member
receiving
the highest number of votes, at the last preceding city
election present a
petition to the governing body asking that the franchise
ordinance be
submitted for adoption to popular vote, the mayor of the
city shall issue
a proclamation calling a special election for that purpose.
The procla-
mation calling such special election shall specifically
state that such elec-
tion is called for the adoption of the ordinance granting
such franchise,
and the ordinance shall be set out in full in the
proclamation. The proc-
lamation shall be published once each week for two
consecutive weeks
in the official city newspaper, and the last publication
shall not be less
than 30 days before the day upon which the special election
is held. If,
at the special election, the majority of votes cast shall
be for the ordinance
and the making of the grant, the ordinance shall thereupon
become ef-
fective. If a majority of the votes cast at the special
election are against
the ordinance and the making of the grant, the ordinance
shall not confer
any rights, powers or privileges of any kind whatsoever
upon the appli-
cants therefor and shall be void adopted as
provided by law.
All expense of publishing any ordinance
adopted pursuant to this sec-
tion shall be paid by the proposed grantee. If a sufficient
petition is filed
and an election is called for the adoption of any such
ordinance, the
applicants for the grant, right, privilege or franchise,
upon receipt by the
applicants of written notice that such petition has been
filed and found
sufficient and stating the amount necessary for the
purpose, shall im-
mediately deposit with the city treasurer in cash an amount
sufficient to
cover the entire expense of such election. The mayor shall
not issue a
proclamation calling such election until such money is
deposited with the
treasurer. Upon such failure to so deposit such money the
ordinance shall
be void.
(7) All contracts, grants, rights,
privileges or franchises for the use of
the streets and alleys of such city, not herein mentioned, shall be
governed
by all the provisions of this act, and all amendments, extensions
or en-
largements of any contract, right, privilege or franchise
previously granted
to any person, firm or corporation for the use of the streets and
alleys of
such city shall be subject to all the conditions provided for in
this act for
the making of original grants and franchises. The provisions of
this section
shall not apply to railway companies for the purpose of reaching
and
affording railway connections and switch privileges to the owners
or users
of any industrial plants, or for the purpose of reaching and
affording
railway connections and switch privileges to any agency or
institution of
the state of Kansas.
(c) As used in this act:
(1) ``Access line'' shall mean and be
limited to retail billed and col-
lected residential lines; business lines; ISDN lines; PBX trunks
and sim-
ulated exchange access lines provided by a central office based
switching
arrangement where all stations served by such simulated exchange
access
lines are used by a single customer of the provider of such
arrangement.
Access line may not be construed to include interoffice
transport or other
transmission media that do not terminate at an end user
customer's prem-
ises, or to permit duplicate or multiple assessment of access
line rates on
the provision of a single service or on the multiple
communications paths
derived from a billed and collected access line. Access line
shall not include
the following: Wireless telecommunications services, the sale or
lease of
unbundled loop facilities, special access services, lines
providing only data
services without voice services processed by a
telecommunications local
exchange service provider or private line service
arrangements.
(2) ``Access line count'' means the
number of access lines serving con-
sumers within the corporate boundaries of the city on the last
day of each
month.
(3) ``Access line fee'' means a fee
determined by a city, up to a maxi-
mum as set out in this act and amendments thereto, to be used by
a
telecommunications local exchange service provider in
calculating the
amount of access line remittance.
(4) ``Access line remittance'' means
the amount to be paid by a tele-
communications local exchange service provider to a city, the
total of
which is calculated by multiplying the access line fee, as
determined in
the city, by the number of access lines served by that
telecommunications
local exchange service provider within that city for each month
in that
calendar quarter.
(5) ``Commission'' means the state
corporation commission.
(6) ``Gross receipts'' means only
those receipts collected from within
the corporate boundaries of the city enacting the franchise and
which are
derived from the following: (A) Recurring local exchange service
for busi-
ness and residence which includes basic exchange service, touch
tone,
optional calling features and measured local calls; (B)
recurring local
exchange access line services for pay phone lines provided by a
telecom-
munications local exchange service provider to all pay phone
service pro-
viders; (C) local directory assistance revenue; (D) line status
verification/
busy interrupt revenue; (E) local operator assistance revenue;
and (F)
nonrecurring local exchange service revenue which shall include
customer
service for installation of lines, reconnection of service and
charge for
duplicate bills. All other revenues, including, but not limited
to, revenues
from extended area service, the sale or lease of unbundled
network ele-
ments, nonregulated services, carrier and end user access, long
distance,
wireless telecommunications services, lines providing only data
service
without voice services processed by a telecommunications local
exchange
service provider, private line service arrangements, internet,
broadband
and all other services not wholly local in nature are excluded
from gross
receipts. Gross receipts shall be reduced by bad debt expenses.
Uncollec-
tible and late charges shall not be included within gross
receipts. If a
telecommunications local exchange service provider offers
additional serv-
ices of a wholly local nature which if in existence on or before
July 1,
2002, would have been included with the definition of gross
receipts, such
services shall be included from the date of the offering of such
services in
the city.
(7) ``Local exchange service'' means
local switched telecommunica-
tions service within any local exchange service area approved by
the state
corporation commission, regardless of the medium by which the
local
telecommunications service is provided. The term local exchange
service
shall not include wireless communication services.
(8) ``Telecommunications local
exchange service provider'' means a
local exchange carrier as defined in subsection (h) of K.S.A.
66-1,187, and
amendments thereto, and a telecommunications carrier as defined
in sub-
section (m) of K.S.A. 66-1,187, and amendments thereto, which
does, or
in good faith intends to, provide local exchange service. The
term telecom-
munications local exchange service provider does not include an
interex-
change carrier that does not provide local exchange service,
competitive
access provider that does not provide local exchange service or
any wire-
less telecommunications local exchange service
provider.
(9) ``Telecommunications services''
means providing the means of
transmission, between or among points specified by the user, of
infor-
mation of the user's choosing, without change in the form or
content of
the information as sent and received.
(d) A city may require a
telecommunications local exchange service
provider which intends to provide local exchange service in that
city, to
enter into a valid contract franchise ordinance enacted pursuant
to this
act. Compensation for the contract franchise ordinance shall be
estab-
lished pursuant to subsection (j). A contract franchise
complying with the
provisions of this act shall be deemed reasonable and shall be
adopted by
the governing body of a city absent a compelling public interest
necessi-
tated by public health, safety and welfare. A contract franchise
must be
competitively neutral and may not be unreasonable or
discriminatory. No
telecommunications contract franchise ordinance shall be denied
or re-
voked without reasonable notice and an opportunity for a public
hearing
before the city governing body. A city governing body's denial
or revo-
cation of a contract franchise ordinance may be appealed to a
district
court.
(e) If the governing body of a city
requires a contract franchise as
specified in subsection (d), the contract franchise shall be
subject to the
following:
(1) All contracts granting or giving
any such original contract fran-
chise, right or privilege or extending, renewing or amending any
existing
grant, right, privilege or franchise, to engage in such an
activity shall be
made by ordinance and not otherwise;
(2) no contract, grant, right,
privilege or contract franchise to engage
in such an activity, now existing or hereafter granted, shall be
extended
for any longer period of time than 20 years from the date of
such grant
or extension;
(3) no telecommunications local
exchange service provider shall be
granted any exclusive contract franchise, right or privilege
whatever;
(4) no such right, privilege or
contract franchise shall be effective until
the ordinance granting the same has been adopted as provided by
law.
All expense of publishing any ordinance adopted pursuant to this
section
shall be paid by the proposed grantee; and
(5) no city shall have the authority
or jurisdiction to regulate telecom-
munications local exchange service providers based upon the
content, na-
ture or type of telecommunications service or signal to be
provided or the
quality of service provided to customers.
(f) A franchisee shall make and report
to the governing body once
each quarter, or at such other intervals as stipulated in the
contract fran-
chise ordinance, the compensation collected and pay into the
treasury the
amount due such city at the time the report is made.
(g) A city may assess a one-time
application fee to recover its costs
associated with the review and approval of a contract franchise
provided
that such application fee reimburses the city for its
reasonable, actual and
verifiable costs of reviewing and approving the contract
franchise. An
application fee must be competitively neutral and may not be
unreason-
able or discriminatory.
(h) Within 90 days of the receipt of a
completed application for a
telecommunications contract franchise, a city shall process and
submit the
application and contract franchise to the city's governing body,
and the
governing body shall take a final vote concerning such contract
franchise
unless the telecommunications local exchange service provider
and city
agree otherwise.
(i) In considering the adoption and
passage of a telecommunications
contract franchise ordinance, no city shall have the authority
or jurisdic-
tion to regulate telecommunications local exchange service
providers
based upon the content, nature or type of telecommunications
service or
signal to be provided, or the quality of service provided to
customers.
(j) The governing body of a city may
require telecommunications local
exchange service providers to collect and remit to each such
city an access
line fee of up to a maximum of $2.00 per month per access line
or a fee
on gross receipts as described in subsection (j)(2). The access
line fee shall
be a maximum of $2.25 per month per access line in 2006; a
maximum of
$2.50 in 2009; a maximum of $2.75 in 2012 and
thereafter.
(1) To determine an access line
remittance fee, the telecommunica-
tions local exchange service provider shall calculate and remit
an amount
equal to the access line fee established by a city multiplied by
the access
line count. Such amount shall be due not later than 45 days
after the end
of the remittal period. The city shall have the right to
examine, upon
written notice to the telecommunications local exchange service
provider,
no more than once per calendar year, those access line count
records
necessary to verify the correctness of the access line count. If
the access
line count is determined to be erroneous, then the
telecommunications
local exchange service provider shall revise the access line
fees accordingly
and payment shall be made upon such corrected access line count.
If the
city and the telecommunications local exchange service provider
cannot
agree on the access line count, or are in dispute concerning the
amounts
due under this section for the payment of access line fees,
either party
may seek appropriate relief in a court of competent
jurisdiction, and that
court may impose all appropriate remedies, including monetary
and in-
junctive relief and reasonable costs and attorney fees. All
claims author-
ized in this section must be brought within three years of the
date on
which the disputed payment was due. The access line fee imposed
under
this section must be assessed in a competitively neutral manner,
may not
unduly impair competition, must be nondiscriminatory and must
comply
with state and federal law.
(2) As an alternative to the access
line fee specified in subsection (j)(1),
the governing body of a city may require telecommunications
local
exchange service providers to collect and remit to each such
city a fee of
up to a maximum of 5% of gross receipts as defined in this act.
The
telecommunications local exchange service provider shall
calculate the
gross receipts and multiply such receipts by the fee, up to a
maximum of
5%, established by the city. The telecommunications local
exchange serv-
ice provider shall remit such fee to the city no more frequently
than each
quarter unless the telecommunications local exchange service
provider
agrees otherwise, and not later than 45 days after the end of
the remittal
period. The city shall have the right to examine, upon written
notice to
the telecommunications local exchange service provider, no more
than
once per calendar year, those records necessary to verify the
correctness
of the gross receipts fee. If the gross receipts fee is
determined to be er-
roneous, then the telecommunications local exchange service
provider
shall revise the gross receipts fee accordingly and payment
shall be made
upon such corrected gross receipts fee. If the city and the
telecommuni-
cations local exchange service provider cannot agree on the
gross receipts
fee, or are in dispute concerning the amounts due under this
section for
the payment of gross receipts fees, either party may seek
appropriate relief
in a court of competent jurisdiction, and that court may impose
all ap-
propriate remedies, including monetary and injunctive relief,
reasonable
costs and attorney fees. All claims authorized in this section
must be
brought within three years of the date on which the disputed
payment
was due. The gross receipts fee imposed under this section must
be as-
sessed in a competitively neutral manner, may not unduly impair
com-
petition, must be nondiscriminatory and must comply with state
and fed-
eral law.
(k) Notwithstanding any other
provision of this act, payment by a
telecommunications local exchange service provider that complies
with
the terms of an unexpired franchise ordinance that applies to
the provider
satisfies the payment attributable to the provider required by
this act.
(l) Beginning January 1, 2004, and
every 36 months thereafter, a city,
subject to the public notification procedures set forth in
subsection (m),
may elect to adopt an increased access line fee or gross
receipts fee subject
to the provisions and maximum fee limitations contained in this
act or
may choose to decline all or any portion of any increase in the
access line
fee.
(m) Adoption of an increased access
line fee or gross receipts fee by
a city shall not become effective until the following public
notification
procedures occur: (1) Notice of the new fee has been provided at
a regular
meeting of the governing body; (2) immediately thereafter,
notification of
the new fee shall be published in the official city paper once a
week for
two consecutive weeks; and (3) sixty days have passed from the
date of
the regular meeting of the governing body at which the new fee
was
proposed. If, during the period of public notification of the
new fee or
prior to the expiration of 60 days from the date of the regular
meeting of
the governing body at which the new fee was proposed, 20% of the
qual-
ified voters of such city voting for mayor, or in case no mayor
is elected
then the commissioner or council member receiving the highest
number
of votes at the last preceding city election, present a petition
to the gov-
erning body asking that the new fee be submitted to popular
vote, the
mayor of the city shall issue a proclamation calling for an
election for that
purpose. Such election shall be held in conjunction with the
next available
general election. The proclamation calling such election shall
specifically
state that such election is called for the adoption of the new
fee, and the
new fee shall be set out in full in the proclamation. The
proclamation shall
be published once each week for two consecutive weeks in the
official city
newspaper, and the last publication shall not be less than 30
days before
the day upon which the election is held. If, at the election the
majority of
votes cast shall be for the new fee, the new fee shall thereupon
become
effective. If a majority of the votes cast at the election are
against the new
fee, the new fee shall not become effective and shall be
void.
(n) A city may require a
telecommunications local exchange service
provider to collect or remit an access line fee or a gross
receipts fee to
such city on those access lines that have been resold to another
telecom-
munications local exchange service provider, but in such case
the city shall
not collect an access line fee or gross receipts fee from the
reseller tele-
communications local exchange service provider and shall not
require the
reseller to enter into a contract franchise ordinance pursuant
to subsection
(d).
(o) A city may not impose the
following regulations on telecommu-
nications local exchange service providers:
(1) Requirement that particular
business offices or other telecom-
munications facilities be located in the city;
(2) requirement for filing reports and
documents that are not reason-
ably related to the collection of compensation pursuant to this
act;
(3) requirement for inspection of the
business records of a telecom-
munications local exchange service provider except to the extent
necessary
to conduct the review of the records related to the access line
count or
gross receipts fee as provided for in this act;
(4) requirement for city approval of
transfers of ownership or control
of the business or assets of a telecommunications local exchange
service
provider except that a city may require that such provider
maintain cur-
rent point of contact information and provide notice of a
transfer within
a reasonable time; and
(5) requirement concerning the
provisioning or quality of services,
facilities, equipment or goods in-kind for use by the city,
political subdi-
vision or any other telecommunications local exchange service
provider
or public utility.
(p) Information provided to
municipalities and political subdivisions
under this act shall be governed by confidentiality procedures
in compli-
ance with K.S.A. 45-215 and 66-1220a et seq. and amendments
thereto.
(q) Except as otherwise provided, this
act does not affect the validity
of a franchise agreement or contract ordinance with a
telecommunications
local exchange service provider so long as the franchise
agreement or
contract ordinance does not include a linear foot charge and/or
a mini-
mum fee, was enacted prior to the effective date of this act,
and was agreed
to by the telecommunications local exchange service provider.
Under such
circumstances, a city may continue to enforce a previously
enacted fran-
chise agreement or contract ordinance and to collect franchise
fees and
other charges under that franchise agreement or contract
ordinance until
the date on which the agreement or ordinance expires by its own
terms
or is terminated in accordance with the terms of this act.
Notwithstanding
any other provision hereof, where such a franchise agreement or
contract
ordinance exists between a city and a telecommunications local
exchange
service provider prior to the effective date of this act, during
the term of
such existing franchise agreement or contract ordinance the city
must
offer to new applicants franchise agreements or contract
franchises whose
terms and conditions are as a whole competitively neutral and
nondis-
criminatory, as compared to such existing agreement.
(r) Without prejudice to a
telecommunications local exchange service
provider's other rights and authorities, a telecommunications
local
exchange service provider which is assessed, collects and remits
an ap-
plication fee, access line fee or gross receipts fee assessed by
a city shall
add to its end-user customer's bill, statement or invoice a
surcharge equal
to the pro rata share of any such fees.
(s) Subsections (c) through (r) apply
only to telecommunications local
exchange service providers.
Sec. 2. K.S.A. 17-1902 is hereby
amended to read as follows: 17-
1902. Telephone companies shall have all the rights and
powers conferred
and be subject to all the liabilities imposed by the
general laws of this
state upon telegraph companies. (a) (1)
``Public right-of-way'' means only
the area of real property in which the city has a dedicated or
acquired
right-of-way interest in the real property. It shall include the
area on,
below or above the present and future streets, alleys, avenues,
roads, high-
ways, parkways or boulevards dedicated or acquired as
right-of-way. The
term does not include the airwaves above a right-of-way with
regard to
wireless telecommunications or other nonwire telecommunications
or
broadcast service, easements obtained by utilities or private
easements in
platted subdivisions or tracts.
(2) ``Provider'' shall mean a local
exchange carrier as defined in sub-
section (h) of K.S.A. 66-1,187, and amendments thereto, or a
telecom-
munications carrier as defined in subsection (m) of K.S.A.
66-1,187, and
amendments thereto.
(3) ``Telecommunications services''
means providing the means of
transmission, between or among points specified by the user, of
infor-
mation of the user's choosing, without change in the form or
content of
the information as sent and received.
(4) ``Competitive infrastructure
provider'' means an entity which
leases, sells or otherwise conveys facilities located in the
right-of-way, or
the capacity or bandwidth of such facilities for use in the
provision of
telecommunications services, internet services or other
intrastate and in-
terstate traffic, but does not itself provide services directly
to end users
within the corporate limits of the city.
(b) Any provider shall have the right
pursuant to this act to construct,
maintain and operate poles, conduit, cable, switches and related
appur-
tenances and facilities along, across, upon and under any public
right-of-
way in this state. Such appurtenances and facilities shall be so
constructed
and maintained as not to obstruct or hinder the usual travel or
public
safety on such public ways or obstruct the legal use by other
utilities.
(c) Nothing in this act shall be
interpreted as granting a provider the
authority to construct, maintain or operate any facility or
related appur-
tenance on property owned by a city outside of the public
right-of-way.
(d) The authority of a provider to use
and occupy the public right-
of-way shall always be subject and subordinate to the reasonable
public
health, safety and welfare requirements and regulations of the
city. A city
may exercise its home rule powers in its administration and
regulation
related to the management of the public right-of-way provided
that any
such exercise must be competitively neutral and may not be
unreasonable
or discriminatory. Nothing herein shall be construed to limit
the authority
of cities to require a competitive infrastructure provider to
enter into a
contract franchise ordinance.
(e) The city shall have the authority
to prohibit the use or occupation
of a specific portion of public right-of-way by a provider due
to a reason-
able public interest necessitated by public health, safety and
welfare so
long as the authority is exercised in a competitively neutral
manner and
is not unreasonable or discriminatory. A reasonable public
interest shall
include the following:
(1) The prohibition is based upon a
recommendation of the city en-
gineer, is related to public health, safety and welfare and is
nondiscrim-
inatory among providers, including incumbent
providers;
(2) the provider has rejected a
reasonable, competitively neutral and
nondiscriminatory justification offered by the city for
requiring an alter-
nate method or alternate route that will result in neither
unreasonable
additional installation expense nor a diminution of service
quality;
(3) the city reasonably determines,
after affording the provider rea-
sonable notice and an opportunity to be heard, that a denial is
necessary
to protect the public health and safety and is imposed on a
competitively
neutral and nondiscriminatory basis; or
(4) the specific portion of the public
right-of-way for which the pro-
vider seeks use and occupancy is environmentally sensitive as
defined by
state or federal law or lies within a previously designated
historic district
as defined by local, state or federal law.
(f) A provider's request to use or
occupy a specific portion of the
public right-of-way shall not be denied without reasonable
notice and an
opportunity for a public hearing before the city governing body.
A city
governing body's denial of a provider's request to use or occupy
a specific
portion of the public right-of-way may be appealed to a district
court.
(g) A provider shall comply with all
laws and rules and regulations
governing the use of public right-of-way.
(h) A city may not impose the
following regulations on providers:
(1) Requirements that particular
business offices or other telecom-
munications facilities be located in the city;
(2) requirements for filing
applications, reports and documents that
are not reasonably related to the use of a public right-of-way
or this act;
(3) requirements for city approval of
transfers of ownership or control
of the business or assets of a provider's business, except that
a city may
require that such entity maintain current point of contact
information
and provide notice of a transfer within a reasonable time;
and
(4) requirements concerning the
provisioning of or quality of cus-
tomer services, facilities, equipment or goods in-kind for use
by the city,
political subdivision or any other provider or public
utility.
(i) Unless otherwise required by state
law, in the exercise of its lawful
regulatory authority, a city shall promptly, and in no event
more than 30
days, with respect to facilities in the public right-of-way,
process each
valid and administratively complete application of a provider
for any
permit, license or consent to excavate, set poles, locate lines,
construct
facilities, make repairs, effect traffic flow, obtain zoning or
subdivision
regulation approvals, or for other similar approvals, and shall
make rea-
sonable effort not to unreasonably delay or burden that provider
in the
timely conduct of its business. The city shall use its best
reasonable efforts
to assist the provider in obtaining all such permits, licenses
and other
consents in an expeditious and timely manner.
(j) If there is an emergency
necessitating response work or repair, a
provider may begin that repair or emergency response work or
take any
action required under the circumstances, provided that the
telecommu-
nications provider notifies the affected city promptly after
beginning the
work and timely thereafter meets any permit or other requirement
had
there not been such an emergency.
(k) A city may require a provider to
repair all damage to a public
right-of-way caused by the activities of that provider, or of
any agent
affiliate, employee, or subcontractor of that provider, while
occupying,
installing, repairing or maintaining facilities in a public
right-of-way and
to return the right-of-way, to its functional equivalence before
the damage
pursuant to the reasonable requirements and specifications of
the city. If
the provider fails to make the repairs required by the city, the
city may
effect those repairs and charge the provider the cost of those
repairs. If a
city incurs damages as a result of a violation of this
subsection, then the
city shall have a cause of action against a provider for
violation of this
subsection, and may recover its damages, including reasonable
attorney
fees, if the provider is found liable by a court of competent
jurisdiction.
(l) If requested by a city, in order
to accomplish construction and
maintenance activities directly related to improvements for the
health,
safety and welfare of the public, a telecommunications company
promptly
shall remove its facilities from the public right-of-way or
shall relocate or
adjust its facilities within the public right-of-way at no cost
to the political
subdivision. Such relocation or adjustment shall be completed as
soon as
reasonably possible within the time set forth in any request by
the city
for such relocation or adjustment. Any damages suffered by the
city or
its contractors as a result of such provider's failure to timely
relocate or
adjust its facilities shall be borne by such
provider.
(m) No city shall create, enact or
erect any unreasonable condition,
requirement or barrier for entry into or use of the public
rights-of-way
by a provider.
(n) A city may assess any of the
following fees against a provider, for
use and occupancy of the public right-of-way, provided that such
fees
reimburse the city for its reasonable, actual and verifiable
costs of man-
aging the city right-of-way, and are imposed on all such
providers in a
nondiscriminatory and competitively neutral manner:
(1) A permit fee in connection with
issuing each construction permit
to set fixtures in the public right-of-way within that city as
provided in
K.S.A. 17-1901, and amendments thereto, to compensate the city
for is-
suing, processing and verifying the permit
application;
(2) an excavation fee for each street
or pavement cut to recover the
costs associated with construction and repair activity of the
provider, their
assigns, contractors and/or subcontractors with the exception of
construc-
tion and repair activity required pursuant to subsection (l) of
this act
related to construction and maintenance activities directly
related to im-
provements for the health, safety and welfare of the public;
provided,
however, imposition of such excavation fee must be based upon a
regional
specific or other appropriate study establishing the basis for
such costs
which takes into account the life of the city street prior to
the construction
or repair activity and the remaining life of the city street.
Such excavation
fee is expressly limited to activity that results in an actual
street or pave-
ment cut;
(3) inspection fees to recover all
reasonable costs associated with city
inspection of the work of the telecommunications provider in the
right-
of-way;
(4) repair and restoration costs
associated with repairing and restor-
ing the public right-of-way because of damage caused by the
provider, its
assigns, contractors, and/or subcontractors in the right-of-way;
and
(5) a performance bond, in a form
acceptable to the city, from a surety
licensed to conduct surety business in the state of Kansas,
insuring ap-
propriate and timely performance in the construction and
maintenance
of facilities located in the public right-of-way.
(o) A city may not assess any
additional fees against providers for use
or occupancy of the public right-of-way other than those
specified in sub-
section (n).
(p) This act may not be construed to
affect any valid taxation of a
telecommunications provider's facilities or
services.
(q) Providers shall indemnify and hold
the city and its officers and
employees harmless against any and all claims, lawsuits,
judgments, costs,
liens, losses, expenses, fees (including reasonable attorney
fees and costs
of defense), proceedings, actions, demands, causes of action,
liability and
suits of any kind and nature, including personal or bodily
injury (includ-
ing death), property damage or other harm for which recovery of
damages
is sought, to the extent that it is found by a court of
competent jurisdiction
to be caused by the negligence of the provider, any agent,
officer, director,
representative, employee, affiliate or subcontractor of the
provider, or
their respective officers, agents, employees, directors or
representatives,
while installing, repairing or maintaining facilities in a
public right-of-
way.
The indemnity provided by this subsection
does not apply to any lia-
bility resulting from the negligence of the city, its officers,
employees,
contractors or subcontractors. If a provider and the city are
found jointly
liable by a court of competent jurisdiction, liability shall be
apportioned
comparatively in accordance with the laws of this state without,
however,
waiving any governmental immunity available to the city under
state law
and without waiving any defenses of the parties under state or
federal
law. This section is solely for the benefit of the city and
provider and does
not create or grant any rights, contractual or otherwise, to any
other
person or entity.
(r) A provider or city shall promptly
advise the other in writing of
any known claim or demand against the provider or the city
related to or
arising out of the provider's activities in a public
right-of-way.
(s) Nothing contained in K.S.A.
17-1902, and amendments thereto, is
intended to affect the validity of any franchise fees collected
pursuant to
state law or a city's home rule authority.
(t) Any ordinance enacted prior to the
effective date of this act gov-
erning the use and occupancy of the public right-of-way by a
provider
shall not conflict with the provisions of this act.
New Sec. 3. If any provision of
this act, or the application of such
provision to any person or circumstance is held invalid or
unconstitutional,
it shall be conclusively presumed that the legislature would not
have en-
acted the remainder of this act without such invalid or
unconstitutional
provisions.
Sec. 4. K.S.A. 12-2001 and 17-1902 are hereby
repealed.
Sec. 5. This act shall take effect and be in force
from and after its
publication in the statute book.
Approved April 5, 2002.
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