ORDINANCE NO. 1970
(An ordinance adding Chapter 3.32, amending Section 8.04.050 and Chapter 13.36, and repealing Chapter 14.01 of the Hood River Municipal Code)
WHEREAS, the City of Hood River currently manages the use of the public rights of way through franchise agreements with utilities and telecommunications entities (ROW Users) and through the City’s regulatory authority of the rights of way, codified primarily in Chapter 13.36 of the Hood River Municipal Code;
WHEREAS, some ROW Users seeking to limit cities’ franchising authority and regulatory authority over public rights of way have brought and continue to bring lawsuits challenging that authority, and have sought and continue to seek adoption of new federal and state legislation limiting that authority;
WHEREAS, as a result of litigation challenging cities’ authority, courts have consistently upheld a city’s regulatory authority to manage public rights of way when the laws are of general applicability;
WHEREAS, the City has individually negotiated franchise agreements for use of the public rights of way with three telecommunications providers (Embarq, Charter, and Hood River Electric Coop), an electric utility (PacifiCorp), and a gas utility (Northwest Natural Gas) and each of these agreements have different provisions regarding the rights and obligations of the franchisees in using the public rights of way;
WHEREAS, the City believes there may be other ROW Users providing service to City residents who do not have franchise agreements and/or are not compensating for use of the public rights of way;
WHEREAS, managing public rights of way through individually negotiated and drafted franchise agreements is an old model that provides minimal efficiency and use of public resources due to the time and expense of negotiating, approving and administering these agreements;
WHEREAS, a regulatory approach to managing use of public rights of way by ROW Users would create laws of general applicability that would apply to all ROW Users desiring to occupy the public rights of way, whether with wire, pipes, or poles;
WHEREAS, by moving to a regulatory approach, ROW Users will be treated more equally;
WHEREAS, by moving to a regulatory approach, the City will be better able to adapt to changes in law and technology with respect to the services delivered by ROW Users and will be better prepared in the future as industries evolve and the services provided change;
WHEREAS, the City recognizes that some ROW Users, such as cable service providers, are still required to have a franchise agreement with the City, but those franchise agreements would only address matters not addressed by the Hood River Municipal Code, such as the franchise fee and public, educational and governmental access (PEG);
WHEREAS, the City recognizes that it may be in the City’s best interests to have individually negotiated franchise agreements with ROW Users when certain issues need to be addressed and are not addressed via City ordinance; and
WHEREAS, the purposes of this ordinance are to:
A. Comply with the provisions of the 1996 Telecommunications Act as they apply to local governments, telecommunications carriers and the services those carriers offer;
B. Promote competition in the provision of services provided by ROW Users on a competitively neutral basis;
C. Encourage the provision of advanced and competitive services provided by ROW Users on the widest possible basis to businesses, institutions, and residents of the City;
D. Permit and manage reasonable access to the public rights of way of the City for ROW Users on a competitively neutral basis and conserve the limited physical capacity of those public rights of way held in trust by the City;
E. Assure that the City’s current and ongoing costs of granting and regulating private access to and the use of the public rights of way are fully compensated by ROW Users seeking access and causing costs;
F. Secure fair and reasonable compensation to the City and its residents for permitting ROW Users to use of the public right of way;
G. Assure that all ROW Users providing facilities and/or services within the City, or passing through the City, comply with the ordinances, rules and regulations of the City;
H. Assure that the City can continue to fairly and responsibly protect the public health, safety and welfare of its citizens;
I. Enable the City to discharge its public trust consistent with the rapidly evolving federal and state regulatory policies, industry competition, and technological development.
NOW, THEREFORE, THE CITY OF HOOD RIVER ORDAINS AS FOLLOWS:
1. Chapter 3.32 is added to the Hood River Municipal Code as set forth in Exhibit A.
2. Section 8.04.050 of the Hood River Municipal Code (pertaining to garbage service franchise fees) is amended to read as follows [addition shown in underline; deletion shown in strikeout]:
8.04.050 Franchise - Application and Franchise Fee; Granting and Transfer of Franchises [Garbage Service].
A. Any person desiring to provide a collection service shall apply to the City for a franchise on a form provided by the City. Attachments required by the form shall be included with the application form. The application shall be accompanied by a non-refundable application fee in an amount set by Council resolution.
1. The franchisee shall pay a franchise fee in an amount set by resolution of the Council equal to three percent (3%) of the franchisees gross revenue from the collection service. The fee shall be payable on either a quarterly basis, on the fifteenth days of April, July, October, and January of each year, or on a monthly basis by the 20th of each month, at the option of the franchisee. The amount of the annual franchise fee shall be reviewed on an annual basis, and may be increased upon the Council's determination that an increase is in the public interest.
2. All solid waste collected by a franchisee within the City for processing and/or disposal shall be delivered to the transfer station operated by Hood River Garbage Company with ultimate disposal at the Wasco County Landfill, or directly to the Wasco County Landfill.
3. The City Council may increase or limit the number of franchises which may be in effect at any given time, to protect the public health and welfare, and ensure the ability of existing franchisees to operate in an efficient and successful manner. Franchises shall be transferable only upon the express approval of the transferee by the City Council.
4. The franchise shall not take effect until the franchisee has filed with the City Recorder a written acceptance of the franchise.
5. A franchise granted by the City shall be for a continuing five (5) year term from and after the issuance date. Unless the franchisee notifies the City in writing thirty (30) days prior to the annual anniversary of the issuance date of its election not to extend the franchise, the franchise shall automatically extend an additional five (5) years on the same terms and conditions as provided in this ordinance, as it may from time to time be amended.
a. Upon delivery of the notice required in subsection (4) above, the remaining term for the franchise shall be for a period of four (4) years from the anniversary of the issuance date of that year.
b. The City may elect not to extend a franchise by written notice to the franchisee ninety (90) days prior to the anniversary of the issuance date, in which case, the franchisee shall have a flat term of four (4) years remaining following the anniversary of the issuance date.
3. Chapter 13.36 of the Hood River Municipal Code is amended as set forth in Exhibit B.
4. Chapter 14.01—Telecommunications Registration and Franchising (Ord 1781 (1999)) is repealed in its entirety.
5. Franchise Agreements. The amendments in Sections 1 and 3 of this Ordinance become effective with respect to the following utilities as of the following expiration dates. With respect to Hood River Electric Cooperative, the amendments in Sections 1 and 3 of this Ordinance become effective on the effective date of this Ordinance.
Utility Ordinance No. Expiration Date
PacifiCorp Ordinance 1860
Extended by Ordinance 1973 11/9/09
Charter Ordinance 1723 3/13/11
Embarq Ordinance 1639 12/22/11
Northwest Natural Gas Ordinance 1832 3/26/13
6. Severability. If any provision of this Ordinance is for any reason held to be invalid or unenforceable by any court of competent jurisdiction, or superseded by state or federal legislation, rules, regulations or decision, the remainder of this Ordinance shall not be affected as a result, but shall be deemed as a separate, distinct and independent provision and the holding shall not affect the validity of the remaining portions of this Ordinance and each remaining provision of this Ordinance shall be valid and enforceable to the fullest extent permitted by law. In the event that federal or state laws, rules or regulations preempt a provision or limit the enforceability of a provision of this Ordinance, then the provision shall be read to be preempted only to the extent required by law. In the event the federal or state law, rule or regulation is subsequently repealed, rescinded, amended or otherwise changed so that the provision of this Ordinance that had been preempted is no longer preempted, the provision shall then return to full force and effect, and shall thereafter be binding, without the requirement of further action on the part of the City.
Read for the first time: _________________________, 2009.
Read for the second time and passed: _________________________, 2009, to become effective thirty (30) days hence.
Signed , 2009.
Arthur Babitz, Mayor
Jennifer McKenzie, City Recorder