Section 5.35.010 Definitions.

Chapter 5.35 FRANCHISE - TELECOMMUNICATIONS

For purposes of this Chapter the following terms, phrases, words, and their derivatives shall have the meanings set forth in this Section, unless the context clearly indicates that another meaning is intended. Words used in the present tense may include the future tense, words in the single number may include the plural number, words in the plural number may include the singular. The words "shall" and "will" are mandatory, and "may" is permissive. Words not defined shall be given their common and ordinary meaning.

"Application" means the process by which a provider submits a request and indicates a desire to be granted a Franchise to utilize the rights-of-way of all, or a part, of the City. An application includes all written documentation, verbal statements and representations, in whatever form or forum, made by a provider to the City concerning: the construction of a Telecommunications System over, under, on or through the Rights-of-Way; the Telecommunications Services proposed to be provided in the City by a Provider; and any other matter pertaining to a proposed System or Service.

"City" means Vernal City, Utah.

"Completion Date" means the date that a provider begins providing services to customers in the City.

"Construction Costs" means all costs of constructing a system, including make ready costs, other than engineering fees, attorneys or accountants fees, or other consulting fees.

"Control" or "Controlling Interest" means actual working control in whatever manner exercised, including, without limitation, working control through ownership, management, debt instruments or negative control, as the case may be, of the system or of a provider. A rebuttable presumption of the existence of control or a controlling interest shall arise from the beneficial ownership, directly or indirectly, by any person, or group of persons acting in concert, of more than twenty-five percent (25%) of any provider (which person or group of persons is hereinafter referred to as "Controlling Person"). "Control" or "Controlling Interest" as used herein may be held simultaneously by more than one (1) person or group of persons.

"FCC" means the Federal Communications Commission, or any successor thereto.

"Franchise" means the rights and obligation extended by the City to a provider to own, lease, construct, maintain, use or operate a system in the rights-of-way within the boundaries of the City. Any such authorization, in whatever form granted, shall not mean or include: (a) any other permit or authorization required for the privilege of transacting and carrying on a business within the City required by the ordinances and laws of the City; (b) any other permit, agreement or authorization required in connection with operations on rights-of-way or public property including, without limitation, permits and agreements for placing devices on or in poles, conduits or other structures, whether owned by the City or a private entity, or for excavating or performing other work in or along the rights-of-way.

"Franchise Agreement" means a contract entered into in accordance with the provisions of this ordinance between the City and a Franchisee that sets forth, subject to this ordinance, the terms and conditions under which a Franchise will be exercised.

"Gross Revenue" includes all revenues of a provider that may be included as gross revenue within the meaning of Chapter 26, Title 11 Utah Code annotated, 1953, as amended, and Title 10, Chapter 1, Section 401, et seq.

"Infrastructure Provider" means a Person providing to another, for the purpose of providing Telecommunication Services to customers, all or part of the necessary System which uses the Rights-Of-Way.

"Open Video Service" means any video programming services provided to any Person through the use of Rights-of-Way, by a Provider that is certified by the FCC to operate an Open Video System pursuant to sections 651, et seq., of the Telecommunications Act (to be codified at 47 U.S.C. Title VI, Part V), regardless of the System used.

"Open Video System" means the system of cables, wires, lines, towers, wave guides, optic fiber, microwave, laser beams, and any associated converters, equipment, or facilities designed and constructed for the purpose of producing, receiving, amplifying or distributing Open Video Services to or from subscribers or locations within the City.

"Operator" means any person who provides service over a Telecommunications System and directly or through one (1) or more persons owns a controlling interest in such system, or who otherwise controls or is responsible for the operation of such a system.

"Ordinance" or "Telecommunications Ordinance" means this Telecommunications Ordinance concerning the granting of franchises in and by the City for the construction, ownership, operation, use or maintenance of a Telecommunications System.

"Person" includes any individual, corporation, partnership, association, joint stock company, trust, or any other legal entity, but not the City.

"Personal Wireless Services Facilities" has the same meaning as provided in Section 704 of the Act (47 U.S.C. 332(c)(7)©), which includes what is commonly known as cellular and PCS Services that do not install any system or portion of a system in the rights-of-way.

"Provider" means an Operator, Infrastructure Provider, Resaler, or System Lessee.

"PSC" means the Public Service Commission, or any successor hereto.

"Resaler" refers to any person that provides local exchange service over a system for which a separate charge is made, where that person does not own or lease the underlying system used for the transmission.

"Rights-of-Way" means the surface of and the space above and below any public street, sidewalk, alley, or other public way of any type whatsoever, now or hereafter existing as such within the City, but shall not include City electric utility easements and rights of-way until a separate joint facilities (pole attachment) agreement is entered into by the City and provider. City may have easements and rights-of-way that may be prescriptive in nature. Nothing in this Ordinance or in any franchise agreement shall "surcharge the easement or right-of-way," or be implied to in any way grant or extend the permission or right to use an easement or right-of-way beyond those rights the City has acquired. Easements and rights-of-way may also be subject to third party prior or after-acquired interests and each franchise applicant and provider shall be responsible to examine each individual easement and right-of-way before using the easement or right-of-way. The City shall have no duty or obligation to defend any interest in any easement or right-of-way and Providers shall remain solely responsible to make any necessary legal arrangements required as a result of other persons claiming an interest in the City easement or right-of-way.

"Signal" means any transmission or reception of electronic, electrical, light or laser or radio frequency energy or optical information in either analog or digital format.

"System Lessee" refers to any person that leases a system or a specific portion of a system to provide services.

"Telecommunications" means the transmission, between or among points specified by the user, of information of the user's choosing (e.g., data, video, and voice), without change in the form or content of the information sent and received.

"Telecommunications System" or "System" means all conduits, manholes, poles, antennas, transceivers, amplifiers and all other electronic devices, equipment, Wire and appurtenances owned, leased, or used by a provider, located in the Rights-of-Way and utilized in the provision of services, including fully digital or analog, voice, data and video imaging and other enhanced Telecommunications Services. Telecommunications system or systems also includes an Open Video System.

"Telecommunications Service(s)" or "Services" means any telecommunications services provided by a provider within the City that the provider is authorized to provide under federal, state and local

law, and any equipment and/or facilities required for and integrated with the services provided within the City, except that these terms do not include "cable service" as defined in the Cable Communications Policy Act of 1984, as amended by the Cable Television Consumer Protection and Competition Act of 1992 (47 U.S.C. § 521, et seq.), and the Telecommunications Act of 1996. Telecommunications System or Systems also includes an Open Video System.

"Wire" means fiber optic telecommunications cable, wire, coaxial cable, or other transmission medium that may be used in lieu thereof for similar purposes.

(Ord. 2009-25, Add, 10/30/2009)