12-2001.Granting of franchises; certain provisions
declared void;
purposes; conditions; assessment of fees.
(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) lay pipes, conduits, cables and all appliances
necessary
for the construction, operation of gas and electric-light or steam-heat plants;
(4) lay pipes, conduits, cables and all appliances
necessary for the
construction
and operation of electric railways or bus
companies;
(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
(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
extension.
(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; 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 regardless of whether or not other or additional
compensation is provided for such grantee shall pay 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 incorporated city; and
in such case such city shall make and report to the governing 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
statement.
On and after the effective date of the act, any provision for
compensation 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 contrary to the public policy of this state and
shall be void and unenforceable. Any such
provision, included in a franchise granted pursuant to this section 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 consideration 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
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.
(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 enlargements 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 collected
residential lines; business lines; ISDN lines; PBX trunks and simulated
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 premises, 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 consumers
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 maximum 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
telecommunications 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 business 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 telecommunications local
exchange service provider to all pay phone service providers; (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 elements,
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. Uncollectible and late charges shall
not be included within gross receipts. If a telecommunications local exchange
service provider offers additional services 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 telecommunications 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 subsection
(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 telecommunications local
exchange service provider does not include an interexchange carrier that does
not provide local exchange service, competitive access provider that does not
provide local exchange service or any wireless telecommunications local
exchange service provider.
(9) "Telecommunications services" means providing the means of transmission,
between or 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.
(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 established 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 necessitated 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 revoked without reasonable notice and an
opportunity for a public hearing before the city governing body. A city
governing body's denial or revocation 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 franchise,
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
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.
(f) A franchisee shall make and report to the governing body once each
quarter, or at such other intervals as stipulated in the contract franchise
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 unreasonable 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 jurisdiction 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 telecommunications 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 injunctive relief and 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 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 service 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 erroneous, 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 telecommunications 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 appropriate 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 assessed in a competitively neutral manner,
may not unduly impair competition, must be nondiscriminatory and must comply
with state and federal 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 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 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 telecommunications local
exchange service provider, but in such case the city shall not collect an
access line fee or gross receipts fee from the
reseller telecommunications 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 telecommunications
local exchange service providers:
(1) Requirement that particular business offices or other
telecommunications facilities be located in the city;
(2) requirement for filing reports and documents that are not reasonably
related to the collection of compensation pursuant to this act;
(3) requirement for inspection of the business records of a
telecommunications 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 current 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 subdivision 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 compliance 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 minimum 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 franchise 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 nondiscriminatory, 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 application 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.
History: L. 1945, ch. 98, § 1; L. 1949, ch. 119, § 1; L.
1953, ch. 70, § 1; L. 1976, ch. 83, § 1; L. 1981, ch. 173, § 28;
L. 1985, ch. 71, § 2;
L. 2002, ch. 32, § 1; July 1.
12-2001.Granting of franchises; certain provisions
declared void;
purposes; conditions; assessment of fees.
(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) lay pipes, conduits, cables and all appliances
necessary
for the construction, operation of gas and electric-light or steam-heat plants;
(4) lay pipes, conduits, cables and all appliances
necessary for the
construction
and operation of electric railways or bus
companies;
(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
(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
extension.
(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; 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 regardless of whether or not other or additional
compensation is provided for such grantee shall pay 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 incorporated city; and
in such case such city shall make and report to the governing 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
statement.
On and after the effective date of the act, any provision for
compensation 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 contrary to the public policy of this state and
shall be void and unenforceable. Any such
provision, included in a franchise granted pursuant to this section 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 consideration 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
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.
(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 enlargements 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 collected
residential lines; business lines; ISDN lines; PBX trunks and simulated
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 premises, 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 consumers
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 maximum 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
telecommunications 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 business 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 telecommunications local
exchange service provider to all pay phone service providers; (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 elements,
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. Uncollectible and late charges shall
not be included within gross receipts. If a telecommunications local exchange
service provider offers additional services 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 telecommunications 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 subsection
(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 telecommunications local
exchange service provider does not include an interexchange carrier that does
not provide local exchange service, competitive access provider that does not
provide local exchange service or any wireless telecommunications local
exchange service provider.
(9) "Telecommunications services" means providing the means of transmission,
between or 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.
(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 established 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 necessitated 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 revoked without reasonable notice and an
opportunity for a public hearing before the city governing body. A city
governing body's denial or revocation 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 franchise,
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
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.
(f) A franchisee shall make and report to the governing body once each
quarter, or at such other intervals as stipulated in the contract franchise
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 unreasonable 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 jurisdiction 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 telecommunications 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 injunctive relief and 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 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 service 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 erroneous, 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 telecommunications 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 appropriate 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 assessed in a competitively neutral manner,
may not unduly impair competition, must be nondiscriminatory and must comply
with state and federal 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 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 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 telecommunications local
exchange service provider, but in such case the city shall not collect an
access line fee or gross receipts fee from the
reseller telecommunications 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 telecommunications
local exchange service providers:
(1) Requirement that particular business offices or other
telecommunications facilities be located in the city;
(2) requirement for filing reports and documents that are not reasonably
related to the collection of compensation pursuant to this act;
(3) requirement for inspection of the business records of a
telecommunications 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 current 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 subdivision 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 compliance 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 minimum 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 franchise 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 nondiscriminatory, 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 application 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.
History: L. 1945, ch. 98, § 1; L. 1949, ch. 119, § 1; L.
1953, ch. 70, § 1; L. 1976, ch. 83, § 1; L. 1981, ch. 173, § 28;
L. 1985, ch. 71, § 2;
L. 2002, ch. 32, § 1; July 1.
12-2001.Granting of franchises; certain provisions
declared void;
purposes; conditions; assessment of fees.
(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) lay pipes, conduits, cables and all appliances
necessary
for the construction, operation of gas and electric-light or steam-heat plants;
(4) lay pipes, conduits, cables and all appliances
necessary for the
construction
and operation of electric railways or bus
companies;
(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
(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
extension.
(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; 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 regardless of whether or not other or additional
compensation is provided for such grantee shall pay 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 incorporated city; and
in such case such city shall make and report to the governing 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
statement.
On and after the effective date of the act, any provision for
compensation 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 contrary to the public policy of this state and
shall be void and unenforceable. Any such
provision, included in a franchise granted pursuant to this section 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 consideration 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
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.
(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 enlargements 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 collected
residential lines; business lines; ISDN lines; PBX trunks and simulated
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 premises, 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 consumers
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 maximum 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
telecommunications 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 business 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 telecommunications local
exchange service provider to all pay phone service providers; (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 elements,
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. Uncollectible and late charges shall
not be included within gross receipts. If a telecommunications local exchange
service provider offers additional services 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 telecommunications 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 subsection
(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 telecommunications local
exchange service provider does not include an interexchange carrier that does
not provide local exchange service, competitive access provider that does not
provide local exchange service or any wireless telecommunications local
exchange service provider.
(9) "Telecommunications services" means providing the means of transmission,
between or 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.
(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 established 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 necessitated 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 revoked without reasonable notice and an
opportunity for a public hearing before the city governing body. A city
governing body's denial or revocation 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 franchise,
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
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.
(f) A franchisee shall make and report to the governing body once each
quarter, or at such other intervals as stipulated in the contract franchise
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 unreasonable 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 jurisdiction 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 telecommunications 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 injunctive relief and 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 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 service 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 erroneous, 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 telecommunications 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 appropriate 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 assessed in a competitively neutral manner,
may not unduly impair competition, must be nondiscriminatory and must comply
with state and federal 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 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 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 telecommunications local
exchange service provider, but in such case the city shall not collect an
access line fee or gross receipts fee from the
reseller telecommunications 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 telecommunications
local exchange service providers:
(1) Requirement that particular business offices or other
telecommunications facilities be located in the city;
(2) requirement for filing reports and documents that are not reasonably
related to the collection of compensation pursuant to this act;
(3) requirement for inspection of the business records of a
telecommunications 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 current 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 subdivision 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 compliance 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 minimum 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 franchise 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 nondiscriminatory, 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 application 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.
History: L. 1945, ch. 98, § 1; L. 1949, ch. 119, § 1; L.
1953, ch. 70, § 1; L. 1976, ch. 83, § 1; L. 1981, ch. 173, § 28;
L. 1985, ch. 71, § 2;
L. 2002, ch. 32, § 1; July 1.