17-1902.   Rights, powers and liabilities oftelecommunications service providers; occupation of public right-of-way;prohibition of use.(a) (1) "Public right-of-way" means only the area of real property in whichthe city has a dedicated or acquired right-of-way interest in the realproperty. It shall include the area on, below or above the present and futurestreets, alleys, avenues, roads, highways, parkways or boulevards dedicated oracquired as right-of-way. The term does not include the airwaves above aright-of-way with regard to wireless telecommunications or other nonwiretelecommunications or broadcast service, easements obtained by utilities orprivate easements in platted subdivisions or tracts.

      (2)   "Provider" means a local exchange carrier asdefined in subsection(h) of K.S.A. 66-1,187, and amendments thereto, or a telecommunications carrieras defined in subsection (m) of K.S.A. 66-1,187, and amendments thereto, ora video service provider as defined inK.S.A. 2007 Supp.12-2022, andamendments thereto.

      (3)   "Telecommunications services" means providing the means of transmission,between or among points specified by the user, of information of the user'schoosing, without change in the form or content of the information as sent andreceived.

      (4)   "Competitive infrastructure provider" means an entity which leases, sellsor otherwise conveys facilities located in the right-of-way, or the capacity orbandwidth of such facilitiesfor use in the provision of telecommunications services, internet services orother intrastate and interstate traffic, but does not itself provide servicesdirectly 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 appurtenancesand facilities along, across, upon and under any public right-of-way in thisstate. Such appurtenances and facilities shall be so constructed and maintainedas not to obstruct or hinder the usual travel or public safety on such publicways or obstruct the legal use by other utilities.

      (c)   Nothing in this act shall be interpreted as granting a provider theauthority to construct, maintain or operate any facility or relatedappurtenance 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-wayshall always be subject and subordinate to the reasonable public health, safetyand welfare requirements and regulations of the city. A city may exercise itshome rule powers in its administration and regulation related to themanagement of the public right-of-way provided that any such exercise must becompetitively neutral and may not be unreasonable or discriminatory. Nothingherein shall be construed to limit the authority of cities to require acompetitive infrastructure provider to enter into a contract franchiseordinance.

      (e)   The city shall have the authority to prohibit the use or occupation of aspecific portion of public right-of-way by a provider due to a reasonablepublic interest necessitated by public health, safety and welfare so long asthe authority is exercised in a competitively neutral manner and is notunreasonable or discriminatory. A reasonable public interest shall include thefollowing:

      (1)   The prohibition is based upon a recommendation of the city engineer, isrelated to public health, safety and welfare and is nondiscriminatory amongproviders, including incumbent providers;

      (2)   the provider has rejected a reasonable, competitively neutral andnondiscriminatory justification offered by the city for requiring an alternatemethod or alternate route that will result in neither unreasonable additionalinstallation expense nor a diminution of service quality;

      (3)   the city reasonably determines, after affording the provider reasonablenotice and an opportunity to be heard, that a denial is necessary to protectthe public health and safety and is imposed on a competitively neutral andnondiscriminatory basis; or

      (4)   the specific portion of the public right-of-way for which the providerseeks use and occupancy is environmentally sensitive as defined by state orfederal law or lies within a previously designated historic district asdefined by local, state or federal law.

      (f)   A provider's request to use or occupy a specific portion of the publicright-of-way shall not be denied without reasonable notice and an opportunityfor a public hearing before the city governing body. A city governing body'sdenial of a provider's request to use or occupy a specific portion of thepublic right-of-way may be appealed to a district court.

      (g)   A provider shall comply with all laws and rules andregulations governing the use of public right-of-way.

      (h)   A city may not impose the following regulations on providers:

      (1)   Requirementsthat particular business offices or other telecommunications facilities belocated in the city;

      (2)   requirements for filing applications, reports and documents that are notreasonably related to the use of a public right-of-way or this act;

      (3)   requirements for city approval of transfers of ownership or control ofthe business or assets of a provider's business, except that a city mayrequire that such entity maintain current point of contact information andprovide notice of a transfer within a reasonable time; and

      (4)   requirements concerning the provisioning of or quality of customerservices, facilities, equipment or goods in-kind for use by the city, politicalsubdivision or any other provider or public utility.

      (i)   Unless otherwise required by state law, in the exercise of its lawfulregulatory 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 andadministratively complete application of a provider for any permit, license orconsent to excavate, set poles, locate lines, construct facilities, makerepairs, effect traffic flow, obtain zoning or subdivision regulationapprovals, or for other similar approvals, and shall make reasonable effort notto unreasonably delay or burden that provider in the timely conduct of itsbusiness. The city shall use its best reasonable efforts to assist the providerin obtaining all such permits, licenses and other consents in an expeditiousand timely manner.

      (j)   If there is an emergency necessitating response work or repair, aprovider may begin that repair or emergency response work or take any actionrequired under the circumstances, provided that theprovidernotifies the affected city promptly after beginning the work and timelythereafter meets any permit or other requirement had there not been such anemergency.

      (k)   A city may require a provider to repair all damage to a publicright-of-way caused by the activities of that provider, or of any agentaffiliate, employee, or subcontractor of that provider, while occupying,installing, repairing or maintaining facilities in a public right-of-way and toreturn the right-of-way, to its functional equivalence before the damagepursuant to the reasonable requirements and specifications of the city. If theprovider fails to make the repairs required by the city, the city may effectthose repairs and charge the provider the cost of those repairs. If a cityincurs damages as a result of a violation of this subsection, then the cityshall have a cause of action against a provider for violation of thissubsection, and may recover its damages, including reasonable attorney fees, ifthe provider is found liable by a court of competent jurisdiction.

      (l)   If requested by a city, in order to accomplish construction andmaintenance activities directly related to improvements for the health, safetyand welfare of the public, aprovider shall promptly removeits facilities from the public right-of-way or shall relocate or adjust itsfacilities within the public right-of-way at no cost to the politicalsubdivision. Such relocation or adjustment shall be completed as soon asreasonablypossible within the time set forth in any request by the city for suchrelocation or adjustment. Any damages suffered by the city or its contractorsas a result of such provider's failure to timely relocate or adjust itsfacilities 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 aprovider.

      (n)   A city may assess any of the following fees against a provider, for useand occupancy of the public right-of-way, provided that such fees reimburse thecity for its reasonable, actual and verifiable costs of managing thecity right-of-way, and are imposed on all such providers in a nondiscriminatoryandcompetitively neutral manner:

      (1)   A permit fee in connection with issuing each construction permit to setfixtures 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 issuing, processingand verifying the permit application;

      (2)   an excavation fee for each street or pavement cut to recover the costsassociated with construction and repair activity of the provider, theirassigns, contractors and/or subcontractors with the exception of constructionandrepair activity required pursuant to subsection (l) of this act related toconstruction and maintenance activities directly related to improvements forthe health, safety and welfare of the public; provided, however, imposition ofsuch excavation fee must be based upon a regional specific or otherappropriate study establishing the basis for such costs which takes intoaccount the life of the city street prior to the construction or repairactivity and the remaining life of the city street. Such excavation fee isexpressly limited to activity that results in an actual street or pavement cut;

      (3)   inspection fees to recover all reasonable costs associated with cityinspection of the work of the provider in theright-of-way;

      (4)   repair and restoration costs associated with repairing and restoring thepublic 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 suretylicensed to conduct surety business in the state of Kansas, insuringappropriate and timely performance in the construction and maintenance offacilities located in the public right-of-way.

      (o)   A city may not assess any additional fees against providers for use oroccupancy of the public right-of-way other than those specified in subsection(n).

      (p)   This act may not be construed to affect any valid taxation of aprovider's facilities or services.

      (q)   Providers shall indemnify and hold the city and its officers andemployees harmless against any and all claims, lawsuits, judgments, costs,liens, losses, expenses, fees (including reasonable attorney fees and costs ofdefense), proceedings, actions, demands, causes of action, liability and suitsof any kind and nature, including personal or bodily injury (including death),property damage or other harm for which recovery of damages is sought, to theextent that it is found by a court of competent jurisdiction to be caused bythe negligence of the provider, any agent, officer, director, representative,employee, affiliate or subcontractor of the provider, or their respectiveofficers, agents, employees, directors or representatives, while installing,repairing or maintaining facilities in a public right-of-way. The indemnityprovided by this subsection does not apply to any liabilityresulting from the negligence of the city, its officers, employees, contractorsor subcontractors. If a provider and the city are found jointly liable by acourt of competent jurisdiction, liability shall be apportioned comparativelyin accordance with the laws of this state without, however, waiving anygovernmental immunity available to the city under state law and without waivingany defenses of the parties under state or federal law. This section issolely for the benefit of the city and provider and does not create or grantany rights, contractual or otherwise, to any other person or entity.

      (r)   A provider or city shall promptly advise the other in writing of anyknown claim or demand against the provider or the city related to or arisingout of the provider's activities in a public right-of-way.

      (s)   Nothing contained in K.S.A. 17-1902, and amendments thereto, is intendedto affect the validity ofany franchise fees collected pursuant to state law or a city's home ruleauthority.

      (t)   Any ordinance enacted prior to the effective date of this act governingthe use and occupancy of the public right-of-way by a provider shall notconflict with the provisions of this act.

      History:   L. 1907, ch. 140, § 3; R.S. 1923, 17-1902;L. 2002, ch. 32, § 2;L. 2006, ch. 93, § 7; July 1.