Bill Text: AZ HB2497 | 2016 | Fifty-second Legislature 2nd Regular | Chaptered
Bill Title: Equipment; permits; local government
Spectrum: Partisan Bill (Republican 1-0)
Status: (Passed) 2016-05-17 - Chapter 260 [HB2497 Detail]
Download: Arizona-2016-HB2497-Chaptered.html
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Senate Engrossed House Bill |
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State of Arizona House of Representatives Fifty-second Legislature Second Regular Session 2016
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CHAPTER 260
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HOUSE BILL 2497 |
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AN ACT
Amending section 9-506, Arizona Revised Statutes; amending title 9, chapter 5, article 7, Arizona Revised Statutes, by adding section 9-584; relating to public utilities.
(TEXT OF BILL BEGINS ON NEXT PAGE)
Be it enacted by the Legislature of the State of Arizona:
Section 1. Section 9-506, Arizona Revised Statutes, is amended to read:
9-506. Authority to issue license; limitations; permits for Wi‑Fi radio equipment; definitions
A. For the purpose of authorizing and regulating the construction, operation and maintenance of cable television systems, the licensing authority of a city, including a charter city, or town for an incorporated area, or the licensing authority of the county for unincorporated areas, either individually or jointly by intergovernmental contract, may issue a license to any person to use public streets, roads and alleys and shall impose conditions, restrictions and limitations upon on the use of public streets, roads and alleys and upon on the construction, operation and maintenance of cable television systems.
B. Subject to the limitations of this section, a licensing authority may adopt resolutions or ordinances implementing and controlling the license or joint license, issue a license containing other terms and conditions and impose a license fee on gross revenues. In addition to the limitations of this section, the license is subject to the limits established by the communications act of 1934, as amended (47 United States Code sections 151 through 615b) and the federal communications commission.
C. Other than the license fee on gross revenues authorized by this article and transaction privilege taxes as provided in this subsection, a licensing authority may not levy a tax, rent, fee or charge, however denominated, on a cable operator for the use of the public streets, roads or alleys to provide cable service or levy a tax, fee or charge on the privilege of engaging in the business of providing cable service in the area of jurisdiction. Taxes, rents, fees and charges include all:
(i) Access channel support except for in-kind services or payments as provided in subsection D of this section. ,
(ii) Rental, application, construction, permit, inspection, inconvenience and other fees and charges related to a cable operator's use of the public streets, roads and alleys, INCLUDING THE USE AUTHORIZED BY SUBSECTION i OF THIS SECTION. THIS SUBSECTION DOES NOT PROHIBIT A LICENSING AUTHORITY FROM LEVYING FEES AND CHARGES FOR MICROCELL EQUIPMENT ON A CABLE OPERATOR pursuant to SECTION 9-584 WITHOUT an OFFSET FOR LICENSE FEES. In addition, the following apply:
1. Any transaction privilege taxes otherwise authorized by law to be levied on the business of providing cable service or in relation to use of the public streets, roads or alleys to provide cable service may be levied on a cable operator if the taxes are levied only on gross revenues and the rate of the taxes is subject to paragraph 3 of this subsection. This subsection does not authorize the imposition of transaction privilege taxes on interstate telecommunications services.
2. The license fee and any transaction privilege taxes levied on gross revenues constitute a franchise fee within the meaning of 47 United States Code section 542(g)(1).
3. Under no circumstances may the total of the rates of the license fee and of any transaction privilege taxes on gross revenues levied or assessed by a licensing authority for the privilege of providing cable service and related use of the public streets, roads or alleys to provide cable service exceed a rate of five per cent percent, except during the transition period for certain licenses as provided in subsection H of this section.
4. A cable operator shall pass on to subscribers any reduction in the amount of fees, taxes or other charges paid by a cable operator and itemized to subscribers that results from the implementation of the amendment to this section effective on September 21, 2006.
D. A licensing authority may not require a cable operator to provide in-kind services, make in-kind payments or pay a fee in addition to the monetary license fee levied or assessed as provided in this section as part of or as a condition of issuing a license to provide cable service, except that:
1. A licensing authority may require a cable operator to provide channel capacity to transmit programming over which the cable operator exercises no editorial control except as authorized by 47 United States Code section 531(e). The channel capacity shall be limited to not more than two channels of public, educational or governmental access programming in the basic service tier of the cable television system and not more than two channels of noncommercial governmental programming, at least one of which may be programmed by the federal government, in the digital programming tier of the cable television system. If channel capacity is required, the programming shall be specified in the license and the cable operator may require that the channels regularly display an unobtrusive logo or other suitable identifier of the cable operator as set forth in the license.
2. A licensing authority may require a cable operator to incur costs and expenses to provide, maintain and operate facilities and equipment of the cable television system, including facilities and equipment for signal carriage, processing, reformatting and interconnection:
(a) To connect the cable television system, as it may be relocated from time to time, to transmit programming to and from existing locations of public, educational or governmental access facilities and to allow monitoring of access programming at the facilities.
(b) To transmit public, educational and governmental access channels to subscribers with the same prevailing quality, functionality and identification as other channels.
3. A licensing authority may require a cable operator to provide the basic service tier of cable service at no monthly service charge to offices and facilities of the licensing authority.
4. The value of any channel capacity provided pursuant to paragraph 1 of this subsection, the costs and expenses incurred pursuant to paragraph 2 of this subsection and the value of basic service provided pursuant to paragraph 3 of this subsection may not be offset against the license fee levied or assessed under this section.
E. This section does not prohibit a cable operator from agreeing to provide in-kind services or make in-kind payments in the area of jurisdiction that are prohibited by subsection D of this section if the agreement with the licensing authority is not part of, or entered into as a condition of being issued, a new, renewed or amended license to provide cable service. An agreement that requires in-kind cable service or payments shall set forth the total annual fair market value of the in-kind cable service and payments, which shall be less than or equal to and offset against the license fee levied or assessed annually pursuant to this section. The license shall authorize the cable operator to retain license fees and taxes collected from its subscribers in the amount of this offset. In-kind cable services and payments include any channel capacity and all capital costs and charges for or in support of the use of any channel capacity that the cable operator agrees to provide under this subsection.
F. Notwithstanding subsection C of this section, a licensing authority may require that a cable operator:
1. Bear reasonable costs that are associated with damage caused to public streets, roads and alleys by construction, maintenance and operation of its facilities in the public streets, roads and alleys and that are imposed on a competitively neutral and nondiscriminatory basis in relation to costs borne by telecommunications corporations under section 9‑582, subsection C.
2. Pay fines, fees, charges or damages for breach of the terms and conditions of the license.
G. This section does not affect the authority of a licensing authority to manage the public streets, roads and alleys within its boundaries or to exercise its police powers.
H. A license that is in effect on September 21, 2006, including one that is later renewed or extended for a term that begins before July 1, 2007, is enforceable in accordance with its terms and conditions as of July 1, 2007 and is not subject to the provisions of the amendment to this section effective on September 21, 2006. If a license that is in effect on September 21, 2006 is later extended or renewed for a term that begins after June 30, 2007, the extended or renewed license is subject to the provisions of the amendment to this section effective on September 21, 2006 and of the amendment to this section, effective on september 19, 2007, effective on the first day of the renewal or extension term, unless the term begins before January 1, 2008, in which case the limitation in subsection C, paragraph 3 of this section on the rates of the license fee and of any transaction privilege taxes on gross revenues is:
1. Five per cent percent, if the gross effective rate is five per cent percent or less.
2. If the gross effective rate is more than five per cent percent, five per cent percent plus the following percentage:
(a) In the first year of the extension or renewal term, the gross effective rate minus five per cent percent, multiplied by two-thirds.
(b) In the second year of the term, the gross effective rate minus five per cent percent, multiplied by one-third.
(c) In the third year of the term, and thereafter, zero per cent percent.
I. ON APPLICATION A LICENSING AUTHORITY SHALL ISSUE TO A CABLE OPERATOR A PERMIT TO ATTACH ALLOWED WI-FI RADIO EQUIPMENT TO THE CABLE TELEVISION SYSTEM IN PUBLIC STREETS, ROADS AND ALLEYS IN THE AREA OF JURISDICTION. THE PERMITS SHALL ALLOW INSTALLATION, OPERATION AND MAINTENANCE OF THE ALLOWED WI-FI RADIO EQUIPMENT. A LICENSING AUTHORITY MAY REQUIRE THAT ALL OF THE ALLOWED WI-FI RADIO EQUIPMENT AT A SINGLE LOCATION FIT WITHIN A FIFTEEN-INCH CUBE AND BE CONTAINED ENTIRELY WITHIN A GROUND‑MOUNTED PEDESTAL OTHERWISE ALLOWED BY THE LICENSE OR BE CONNECTED DIRECTLY TO AND MOUNTED AT THE SAME HEIGHT AS ONE OF THE CABLE OPERATOR'S AERIAL HORIZONTAL CONDUCTORS OTHERWISE ALLOWED BY THE LICENSE.
J. SUBSECTION I OF THIS SECTION DOES NOT:
1. AFFECT ANY AUTHORITY OF A POLITICAL SUBDIVISION, INCLUDING AN AGRICULTURAL IMPROVEMENT DISTRICT or any OTHER SPECIAL TAXING DISTRICT, THE LICENSING AUTHORITY OR ANY OTHER PERSON CONTROLLING UTILITY POLES IN THE PUBLIC STREETS, ROADS AND ALLEYS TO DENY, LIMIT, RESTRICT OR DETERMINE THE TERMS AND CONDITIONS FOR THE USE OF OR ATTACHMENT TO THE UTILITY POLES OR ATTACHMENTS TO OTHER POLES OF THE POLITICAL SUBDIVISION, LICENSING AUTHORITY OR OTHER PERSON BY A CABLE OPERATOR.
2. PROHIBIT A LICENSING AUTHORITY FROM IMPOSING COMPETITIVELY NEUTRAL AND NONDISCRIMINATORY REQUIREMENTS FOR A CABLE OPERATOR TO UNDERGROUND AERIAL FACILITIES TO WHICH ALLOWED WI-FI EQUIPMENT IS ATTACHED.
3. PROHIBIT THE IMPOSITION OF A TAX, RENT, FEE OR CHARGE ON REVENUE FROM SERVICES PROVIDED THROUGH ALLOWED WI-FI RADIO EQUIPMENT.
4. AFFECT THE AUTHORITY OF A LICENSING AUTHORITY TO MANAGE THE PUBLIC STREETS, ROADS AND ALLEY WITHIN ITS BOUNDARIES OR TO EXERCISE ITS POLICE POWERs INCLUDING REVIEW AND APPROVAL OF AN APPLICATION BEFORE ISSUING A PERMIT.
I. k. For the purposes of subsection H of this section: ,
1. "ALLOWED WI-FI RADIO EQUIPMENT" MEANS RADIO EQUIPMENT THAT USES ONLY UNLICENSED RADIO SPECTRUM AND THAT ENABLES WIRELESS COMMUNICATION WITH A COMMUNICATIONS NETWORK FOR UNLICENSED SERVICES SUCH AS WI-FI SERVICE.
2. "Gross effective rate" means one hundred per cent percent multiplied by the fraction in which the numerator is the sum of all taxes, fees and charges of the licensing authority that the cable operator itemized to subscribers and paid to the licensing authority under the license for the twelve calendar months immediately preceding September 21, 2006 and the denominator is the cable operator's gross revenues for that period in the area of jurisdiction.
Sec. 2. Title 9, chapter 5, article 7, Arizona Revised Statutes, is amended by adding section 9-584, to read:
9-584. Microcell equipment in public highways; permits; fees; limitations; definitions
A. A POLITICAL SUBDIVISION SHALL ALLOW THE FOLLOWING PERSONS TO INSTALL, OPERATE AND MAINTAIN MICROCELL EQUIPMENT IN THE PUBLIC HIGHWAYS WITHIN THE POLITICAL SUBDIVISION:
1. A TELECOMMUNICATIONS CORPORATION WITHIN THE LICENSED AREA OF A LICENSE ISSUED BY THE POLITICAL SUBDIVISION UNDER THIS ARTICLE.
2. A TELECOMMUNICATIONS CORPORATION DESCRIBED IN SECTION 9-582, SUBSECTION E.
3. A CABLE OPERATOR IN THE AREA OF JURISDICTION LICENSED BY THE POLITICAL SUBDIVISION UNDER SECTION 9-506.
B. ON APPLICATION A POLITICAL SUBDIVISION SHALL ISSUE PERMITS FOR THE INSTALLATION, OPERATION AND MAINTENANCE OF MICROCELL EQUIPMENT IN THE PUBLIC HIGHWAYS WITHIN THE POLITICAL SUBDIVISION ON A COMPETITIVELY NEUTRAL AND NONDISCRIMINATORY BASIS TO ALL PERSONS SPECIFIED IN SUBSECTION A OF THIS SECTION.
C. ALL APPLICATION FEES, PERMIT FEES AND CHARGES LEVIED BY A POLITICAL SUBDIVISION FOR APPLICATIONS OR PERMITS SHALL BE LEVIED ON A COMPETITIVELY NEUTRAL AND NONDISCRIMINATORY BASIS AND DIRECTLY RELATED TO THE COSTS INCURRED BY THE POLITICAL SUBDIVISION IN PROVIDING SERVICES RELATING TO THE GRANTING OR ADMINISTRATION OF APPLICATIONS OR PERMITS. THESE FEES AND CHARGES ALSO SHALL BE REASONABLY RELATED IN TIME TO THE OCCURRENCE OF THE COSTS.
D. A POLITICAL SUBDIVISION MAY NOT CHARGE A RECURRING FEE, RENT OR OTHER CHARGE FOR USE OF AERIAL STRAND-MOUNTED MICROCELL EQUIPMENT IN PUBLIC HIGHWAYS WITHIN THE POLITICAL SUBDIVISION IF THE POLITICAL SUBDIVISION LEVIES A RENT, FEE OR CHARGE ON A PERSON IDENTIFIED IN SUBSECTION A OF THIS SECTION FOR THE USE OF THE PUBLIC HIGHWAYS TO PROVIDE A SERVICE. THIS SUBSECTION DOES NOT PROHIBIT A POLITICAL SUBDIVISION FROM CHARGING A COMPETITIVELY NEUTRAL AND NONDISCRIMINATORY RENT, FEE OR CHARGE FOR THE USE OF UTILITY POLES OR OTHER POLES OF THE POLITICAL SUBDIVISION. ONLY A QUALIFIED SERVICE PROVIDER MAY USE MICROCELL EQUIPMENT TO PROVIDE COMMERCIAL MOBILE SERVICES.
E. EXCEPT AS THE POLITICAL SUBDIVISION AGREES IN THE POLITICAL SUBDIVISION'S SOLE DISCRETION, AT EACH SITE MICROCELL EQUIPMENT IS LIMITED TO:
1. NOT MORE THAN TWO STRAND-MOUNTED ANTENNAE AND RADIO PAIRS THAT ARE OWNED BY A PERSON SPECIFIED IN SUBSECTION A OF THIS SECTION OR A QUALIFIED SERVICE PROVIDER AND THAT ARE USED TO PROVIDE COMMERCIAL MOBILE SERVICE.
2. RELATED DEVICES THAT ARE OWNED BY A PERSON SPECIFIED IN SUBSECTION A OF THIS SECTION AND THAT ARE MOUNTED ON STRAND BETWEEN UTILITY POLES, INCLUDING POWER SUPPLIES, HOUSINGS, CABLES AND SIMILAR SUPPORTING FURNISHINGS AND IMPROVEMENTS.
F. THIS SECTION DOES NOT:
1. AFFECT ANY AUTHORITY OF A POLITICAL SUBDIVISION, AN AGRICULTURAL IMPROVEMENT DISTRICT OR any OTHER SPECIAL TAXING DISTRICT, OR ANY OTHER PERSON CONTROLLING UTILITY POLES IN THE PUBLIC HIGHWAYS TO DENY, LIMIT, RESTRICT OR DETERMINE THE TERMS AND CONDITIONS FOR USE OF OR ATTACHMENT TO THE UTILITY POLES OR ATTACHMENTS TO OTHER POLES OF THE POLITICAL SUBDIVISION, DISTRICT OR OTHER PERSON BY A PERSON SPECIFIED IN SUBSECTION A OF THIS SECTION.
2. PROHIBIT A POLITICAL SUBDIVISION FROM IMPOSING COMPETITIVELY NEUTRAL AND NONDISCRIMINATORY REQUIREMENTS FOR A PERSON IDENTIFIED IN SUBSECTION A OF THIS SECTION TO UNDERGROUND AERIAL FACILITIES TO WHICH MICROCELL EQUIPMENT IS ATTACHED.
3. PROHIBIT A POLITICAL SUBDIVISION FROM IMPOSING A TAX, RENT, FEE OR CHARGE ON REVENUE FROM SERVICES PROVIDED THROUGH MICROCELL EQUIPMENT.
4. AFFECT THE AUTHORITY OF A POLITICAL SUBDIVISION TO MANAGE THE PUBLIC HIGHWAYS WITHIN the political subdivision's BOUNDARIES OR TO EXERCISE the political subdivision's POLICE POWERS, INCLUDING REVIEW AND APPROVAL OF AN APPLICATION BEFORE ISSUING A PERMIT.
G. FOR THE PURPOSES OF THIS SECTION:
1. "MICROCELL EQUIPMENT" MEANS DEVICES THAT ARE CONNECTED TO THE AERIAL FACILITIES OF A PERSON SPECIFIED IN SUBSECTION A OF THIS SECTION AND THAT ARE USED SOLELY FOR TRANSMITTING, PROCESSING AND RECEIVING VOICE AND DATA WIRELESS TELECOMMUNICATIONS SERVICES. MICROCELL EQUIPMENT DOES NOT INCLUDE ANY GROUND-BASED EQUIPMENT.
2. POLITICAL SUBDIVISION DOES NOT INCLUDE AN AGRICULTURAL IMPROVEMENT DISTRICT OR OTHER SPECIAL TAXING DISTRICT THAT CONTROLS UTILITY POLES OR AN IRRIGATION DISTRICT.
3. "QUALIFIED SERVICE PROVIDER" MEANS A PERSON THAT HAS ALL APPLICABLE AUTHORIZATIONS REQUIRED TO PROVIDE COMMERCIAL MOBILE SERVICE USING MICROCELL EQUIPMENT.
4. "UTILITY POLE" MEANS A POLE OR SIMILAR STRUCTURE AND ATTACHED APPURTENANCES INCLUDING STRAND THAT IS DESIGNED FOR TELECOMMUNICATIONS, CABLE, DATA OR ELECTRIC FUNCTIONS.
Sec. 3. Legislative findings
Wireless services bring important daily benefits to the residents of this state, including sending and receiving constitutionally protected speech and other communications. Varying access to the public highways, streets, roads and alleys across multiple subdivisions of this state can impede the use of these services by, and their delivery to, the residents of this state. Therefore, the legislature finds, determines and declares that this act is necessary as a matter of statewide concern to ensure that cities, towns and counties, including charter cities, compatibly and effectively authorize, administer and manage the use of the public highways, streets, roads and alleys for the provision of certain licensed and unlicensed wireless communication services. It is the public policy of this state that this act be enforced to the fullest extent permitted by federal law.
Sec. 4. Retroactivity; applicability
A. Section 9-506, subsection C, Arizona Revised Statutes, as amended by this act, prohibiting a licensing authority from levying a tax, rent, fee or charge for certain use of the public streets, roads and alleys for allowed Wi-Fi radio equipment applies retroactively to supersede any requirements and agreements to pay such tax, rent, fee or charge that were adopted or made took effect on or before the effective date of this act, except that any requirement to pay application, construction, permit, inspection and other fees and charges with respect to allowed Wi-Fi radio equipment that the cable operator agreed to on or before December 31, 2015, is not subject to the amendment and remains enforceable in accordance with its terms and conditions until the license of the cable operator is renewed or extended for a term that begins after the effective date of this act. On the first day of the renewal, or extension, term of the cable license, any requirement to pay such charges that the cable operator agreed to becomes subject to the amendment.
B. Section 9-506, subsection I, Arizona Revised Statutes, as added by this act, allowing a licensed cable operator to attach to the cable television system and operate and maintain allowed Wi-Fi radio equipment in public streets, roads and alleys applies to all licenses issued before the effective date of this act.
C. Section 9-584, Arizona Revised Statutes, as added by this act, allowing certain persons to install, operate and maintain microcell equipment in the public highways within a political subdivision applies to all persons specified in this act, including those with telecommunications or cable licenses or other authorizations that took effect or were issued before the effective date of this act.
APPROVED BY THE GOVERNOR MAY 17, 2016.
FILED IN THE OFFICE OF THE SECRETARY OF STATE MAY 17, 2016.
