08 LC 36
0901ER
Senate
Bill 408
By:
Senators Shafer of the 48th, Heath of the 31st, Murphy of the 27th, Rogers of
the 21st, Hamrick of the 30th and others
A
BILL TO BE ENTITLED
AN ACT
AN ACT
To
amend Chapter 5 of Title 46 of the Official Code of Georgia Annotated, relating
to telephone and telegraph service, so as to change certain provisions relating
to local government franchising authority; to provide for related matters; to
repeal conflicting laws; and for other purposes.
BE
IT ENACTED BY THE GENERAL ASSEMBLY OF GEORGIA:
SECTION
1.
Chapter
5 of Title 46 of the Official Code of Georgia Annotated, relating to telephone
and telegraph service, is amended by revising Code Section 46-5-1, relating to
the power of eminent domain by telephone and telegraph companies, the placement
of posts and other fixtures, regulation of construction of fixtures, posts, and
wires near railroad tracks, and liability of telegraph and telephone companies
for damages, as follows:
"46-5-1.
(a)(1)
Any telegraph or telephone company chartered by the laws of this or any other
state shall have the right to construct, maintain, and operate its lines
and
facilities upon, under, along, and over
the public
roads
and highways
and rights of
way of this
state,
with the approval of the county or municipal authorities in charge of such
roads,
highways, and
rights of way. The approval of such municipal authorities shall be limited to
the process set forth in paragraph (3) of subsection (b) of this Code section,
and the approval of the county shall be limited to the permitting process set
forth in subsection (c) of this Code
section. Upon making due compensation,
as defined for
municipal authorities in paragraph (9) of subsection (b) of this Code section
and as provided for counties in subsection (c) of this Code
section, a telegraph or telephone company
shall have the right to construct, maintain, and operate its lines through or
over any lands of this state; on, along, and upon the right of way and
structures of any railroads; and, where necessary, under or over any private
lands; and, to that end, a telegraph or telephone company may have and exercise
the right of eminent domain.
(2)
Notwithstanding any other law, a municipal authority or county shall
not:
(A)
Require any telephone company to apply for or enter into an individual license,
franchise, or other agreement with such municipal authority or county;
or
(B)
Impose any occupational license tax or fee as a condition of placing or
maintaining lines and facilities in its public roads and highways or rights of
way, except as specifically set forth in this Code
section.
(b)(3)
Whenever a telegraph or telephone company exercises its powers
under
paragraph (1) of this subsection,
under
subsection (a) of this Code section, the
posts, arms, insulators, and other fixtures of its lines
must
shall
be erected, placed, and maintained so as not to obstruct or interfere with the
ordinary use of such railroads or public
roads and
highways, or with the convenience of any
landowners, more than may be unavoidable. Any lines constructed by a telegraph
or telephone company on the right of way of any railroad company shall be
subject to relocation so as to conform to any uses and needs of
the
such
railroad company for railroad purposes. Such fixtures, posts, and wires shall be
erected at such distances from the tracks of said railroads as will prevent any
and all damage to said railroad companies by the falling of said fixtures,
posts, or wires upon said railroad tracks; and such telegraph or telephone
companies shall be liable to said railroad companies for all damages resulting
from a failure to comply with this Code section.
(4)
No municipal authority or county shall impose upon a telephone company any
build-out requirements on network construction or service deployment, and, to
the extent that a telephone company has elected alternative regulation pursuant
to Code Section 46-5-165, such company may satisfy its obligations pursuant to
paragraph (2) of Code Section 46-5-169 by providing communications service, at
the company´s option, through any affiliated companies and through the use
of any technology or service arrangement.
(b)(1)
Except as set forth in paragraph (6) of this subsection, any telephone company
that places or seeks to place lines and facilities in the public roads and
highways or rights of way of a municipal authority shall provide to such
municipal authority the following information:
(A)
The name, address, and telephone number of a principal office and local agent of
such telephone company;
(B)
Proof of certification from the Georgia Public Service Commission of such
telephone company to provide telecommunications services in this
state;
(C)
Proof of insurance or self-insurance of such telephone company adequate to
defend and cover claims of third parties and of municipal
authorities;
(D)
A description of the telephone company´s service area, which description
shall be sufficiently detailed so as to allow a municipal authority to respond
to subscriber inquiries. For the purposes of this paragraph, a telephone company
may, in lieu of or as supplement to a written description, provide a map on 8
1/2 by 11 inch paper that is clear and legible and that fairly depicts the
service area within the boundaries of the municipal authority. If such service
area is less than the boundaries of an entire municipal authority, the map shall
describe the boundaries of the geographic area to be served in clear and concise
terms;
(E)
A description of the services to be provided;
(F)
An affirmative declaration that the telephone company shall comply with all
applicable federal, state, and local laws and regulations, including municipal
ordinances and regulations, regarding the placement and maintenance of
facilities in the public rights of way that are reasonable, nondiscriminatory,
and applicable to all users of the public rights of way, including the
requirements of Chapter 9 of Title 25, the 'Georgia Utility Facility Protection
Act'; and
(G)
A statement in bold type at the top of the application as follows: 'Pursuant to
paragraph (2) of subsection (b) of Code Section 46-5-1 of the Official Code of
Georgia Annotated, the municipal authority shall notify the applicant of any
deficiencies in this application within 15 business days of receipt of this
application.'
(2)
If an application is incomplete, the municipal authority shall notify the
telephone company within 15 business days of the receipt of such application;
such notice shall specifically identify all application deficiencies. If no such
notification is given within 15 business days of the receipt of an application,
such application shall be deemed complete.
(3)
Within 60 calendar days of the receipt of a completed application, the municipal
authority shall adopt such application by resolution. The failure of a municipal
authority to adopt an application within 60 calendar days of the receipt of a
completed application shall constitute final adoption of such
application.
(4)
If it modifies its service area or provisioned services identified in the
original application, the telephone company shall notify the municipal authority
of changes to the service area or the services provided. Such notice shall be
given at least 20 days prior to the effective date of such change. Such
notification shall contain a geographic description of the new service area or
areas and new services to be provided within the jurisdiction of the affected
municipal authority, if any. The municipal authority shall provide to all
telephone companies located in its rights of way written notice of annexations
and changes in municipal corporate boundaries which, for the purposes of this
Code section, shall become effective 30 days following receipt.
(5)
An application adopted pursuant to this Code section may be terminated by a
telephone company by submitting a notice of termination to the affected
municipal authority. For purposes of this Code section, such notice shall
identify the telephone company, the affected service area, and the effective
date of such termination, which shall not be less than 60 calendar days from the
date of filing the notice of termination.
(6)
Any telephone company that has previously obtained permits for the placement of
its facilities, has specified the name of such telephone company in such permit
application, has previously placed its facilities in any public right of way,
and has paid and continues to pay any applicable municipal authority´s
occupational license taxes, permit fees, franchise fees, except as set forth in
paragraph (8) of this subsection, or, if applicable, county permit fees shall be
deemed to have complied with this Code section without any further action on the
part of such telephone company except as set forth in paragraphs (8), (9), (11),
and (17) of this subsection.
(7)
Any telephone company that has placed lines and facilities in the public roads
and highways or rights of way of a municipal authority without first obtaining
permits or otherwise notifying the appropriate municipal authority of its
presence in the public roads and highways or rights of way shall provide the
information required by paragraph (1) of this subsection, if applicable, to such
municipal authority on or before July 1, 2008. As of July 1, 2008, if any
telephone company, other than those who meet the requirements of paragraph (6)
of this subsection, has failed or fails to provide the information required by
paragraph (1) of this subsection to the municipal authority in which its lines
or facilities are located, such municipal authority shall provide written notice
to such telephone company giving that company 15 calendar days from the date of
receipt of such notice to comply with subsection (b) of this Code section. In
the event the 15 calendar day cure period expires without compliance, such
municipal authority may petition the Georgia Public Service Commission which
shall, after an opportunity for a hearing, order the appropriate
relief.
(8)(A)
In the event any telephone company has an existing, valid municipal franchise
agreement as of January 1, 2008, the terms and conditions of such existing
franchise agreement shall only remain effective and enforceable until the
expiration of the existing agreement or December 31, 2012, whichever shall first
occur.
(B)
In the event any telephone company is paying an existing occupational license
tax or fee, based on actual recurring local services revenues, as of January 1,
2008, such payment shall be considered the payment of due compensation without
further action on the part of the municipal authority. In the event that the
rate of such existing tax or fee exceeds 3 percent of actual recurring local
service revenues, a payment by such
telephone
company at the rate of 3 percent shall be considered the payment of due
compensation without further action on the part of the municipal
authority.
(9)
As used in this Code section, 'due compensation' for a municipal authority means
an amount equal to no more than 3 percent of actual recurring local service
revenues received by such company from its retail, end user customers located
within the boundaries of such municipal authority. 'Actual recurring local
service revenues' means those revenues customarily included in the Uniform
System of Accounts as prescribed by the Federal Communications Commission for
Class 'A' and 'B' companies; provided, however, that only the local service
portion of the following accounts shall be included:
(A)
Basic local service revenue, as defined in 47 C.F.R. 32.5000;
(B)
Basic area revenue, as defined in 47 C.F.R. 32.5001;
(C)
Optional extended area revenue, as defined in 47 C.F.R. 32.5002;
(D)
Public telephone revenue, as defined in 47 C.F.R. 32.5010;
(E)
Local private line revenue, as defined in 47 C.F.R. 35.5040; provided, however,
that the portion of such accounts attributable to audio and video program
transmission service where both terminals of the private line are within the
corporate limits of the municipal authority shall not be included;
(F)
Other local exchange revenue, as defined in 47 C.F.R. 32.5060;
(G)
Local exchange service, as defined in 47 C.F.R. 32.5069;
(H)
Network access revenue, as defined in 47 C.F.R. 32.5080;
(I)
Directory revenue, as defined in 47 C.F.R. 32.5320; provided, however, that the
portion of such accounts attributable to revenue derived from listings in
portion of directories not considered white pages shall not be
included;
(J)
Nonregulated operating revenue, as defined in 47 C.F.R. 32.5280; provided,
however, that the portion of such accounts attributable to revenues derived from
private lines shall not be included; and
(K)
Uncollectible revenue, as defined in 47 C.F.R. 32.5300.
Any
charge imposed by a municipal authority shall be assessed in a nondiscriminatory
and competitively neutral manner.
(10)
Any due compensation paid to municipal authorities pursuant to paragraph (9) of
this subsection shall be in lieu of any other permit fee, encroachment fee,
degradation fee, disruption fee, business license tax, occupational license tax,
occupational license fee, or other fee otherwise permitted pursuant to the
provisions of subparagraph (A) of paragraph (7) of Code Section 36-34-2 or
Code Section 32-4-92 et seq. or any other provision of law regardless of
nomenclature.
(11)
A telephone company with facilities in the public rights of way of a municipal
authority shall begin assessing due compensation, as defined in paragraph (a) of
this subsection, on subscribers on the date that service commences unless such
company is currently paying a municipal authority´s occupational license
tax. Such due compensation shall be paid directly to each affected municipal
authority within 30 calendar days after the last day of each calendar quarter.
In the event that due compensation is not paid on or before 30 calendar days
after the last day of each calendar quarter, the affected municipal authority
shall provide written notice to such telephone company, giving such company 15
calendar days from the date such company receives such notice to cure any such
nonpayment. In the event the due compensation remitted to the affected
municipal authority is not postmarked on or before the expiration of the 15 day
cure period, such company shall pay interest thereon at a rate of 1 percent per
month to the affected municipal authority. If the 15 day cure period expires on
a Saturday, a Sunday, or a state legal holiday, the due date shall be the next
business day. A telephone company shall not be assessed any interest on late
payments if due compensation was submitted in error to a neighboring municipal
authority.
(12)
Each municipal authority may, no more than once annually, audit the business
records of a telephone company to the extent necessary to ensure payment in
accordance with this Code section. As used in this Code section, 'audit' means
a comprehensive review of the records of a company which is reasonably related
to the calculation and payment of due compensation. Once any audited period of a
company has been the subject of a requested audit, such audited period of such
company shall not again be the subject of any audit. In the event of a dispute
concerning the amount of due compensation due to an affected municipal authority
under this Code section, an action may be brought in a court of competent
jurisdiction by an affected municipal authority seeking to recover an additional
amount alleged to be due or by a company seeking a refund of an alleged
overpayment; provided, however, that any such action shall be brought within
three years following the end of the quarter to which the disputed amount
relates, although such time period may be extended by written agreement between
the company and such affected municipal authority. Each party shall bear the
party´s own costs incurred in connection with any dispute. No municipal
authority shall make the employment, appointment, payment, or retention of any
person or entity engaged to perform an audit in any manner dependent or
contingent upon the outcome of any such audit, including, without limitation,
the audit findings and the recovery of fees, or the recovery of any other
payments. A person or entity performing an audit may not solicit or accept
compensation dependent or contingent in any manner upon the outcome of any such
audit, including, without limitation, the audit findings, the recovery of fees,
or the recovery of any other payments by a municipal authority. The auditing
municipal authority shall bear the cost of the audit; provided, however, that if
an affected municipal authority files an action to recover alleged underpayments
of due compensation and a court of competent jurisdiction determines the company
has underpaid due compensation due for any 12 month period by 10 percent or
more, such company shall be required to pay such municipal authority´s
reasonable costs associated with such audit along with any due compensation
underpayments; provided, further, that late payments shall not apply. All
undisputed amounts due to a municipal authority resulting from an audit shall be
paid to the municipal authority within 45 days, or interest shall
accrue.
(13)
The information provided pursuant to paragraph (1) of this subsection and any
records or information furnished or disclosed by a telephone company to an
affected municipal authority pursuant to paragraph (12) of this subsection shall
be exempt from public inspection under Code Section 50-18-70. It shall be the
duty of such telephone company to mark all such documents as exempt from Code
Section 50-18-70, et seq., and the telephone company shall defend, indemnify,
and hold harmless any municipal authority and any municipal officer or employee
in any request for, or in any action seeking, access to such
records.
(14)
No acceptance of any payment shall be construed as a release or as an accord and
satisfaction of any claim an affected municipal authority may have for further
or additional sums payable as due compensation.
(15)
Any amounts overpaid by a company as due compensation shall be deducted from
future due compensation owed.
(16)
A telephone company paying due compensation pursuant to this Code section may
designate that portion of a subscriber´s bill attributable to such charge
as a separate line item of the bill and recover such amount from the
subscriber.
(17)
Nothing in this Code section shall affect the authority of a municipal authority
to require telephone companies accessing the public roads and highways and
rights of way of a municipal authority to obtain permits and otherwise comply
with the reasonable regulations established pursuant to paragraph (10) of
subsection (a) of Code Section 32-4-92.
(18)
If a telephone company does not have retail, end user customers located within
the boundaries of a municipal authority, then the payment by such company to a
municipal authority for the use of its rights of way at rates that do not exceed
the rates set by regulations promulgated by the Department of Transportation
shall be considered the payment of due compensation.
(c)
If a telephone company accesses the public roads and highways and rights of way
of a county and such county requires such telephone company to pay due
compensation, such due compensation shall be limited to an administrative cost
recoupment fee which shall not exceed such county´s direct, actual costs
incurred in its permitting process, including issuing and processing permits,
plan reviews, physical inspection and direct administrative costs; and such
costs shall be demonstrable and shall be equitable among users of such
county´s roads and highways or rights of way. Permit fees shall not include
the costs of highway or rights of way acquisition or any general administrative,
management, or maintenance costs of the roads and highways or rights of way and
shall not be imposed for any activity that does not require the physical
disturbance of such public roads and highways or rights of way or does not
impair access to or full use of such public roads and highways or rights of way.
Nothing in this Code section shall affect the authority of a county to require a
telephone company to comply with reasonable regulations for construction of
telephone lines and facilities in public highways or rights of way pursuant to
the provisions of paragraph (6) of Code Section
32-4-42."
SECTION
2.
All
laws and parts of laws in conflict with this Act are repealed.