§ 138-126. Definitions.

For purposes of this article, the following terms, phrases, words and their derivations shall have the meanings set forth in this section, unless the context clearly indicates that another meaning is intended.

Affiliated person means such person who falls into one or more of the following categories: (i) each person having directly or indirectly, a controlling interest in the applicant or franchisee; (ii) each person in which the applicant or franchisee has, directly or indirectly, a controlling interest; (iii) each officer, director, joint venturer or joint venture partner, of the applicant or franchisee; and (iv) each person, directly or indirectly, controlling, controlled by, or under common control with the applicant or franchisee; provided that "affiliated person" shall in no event mean the city or any creditor of the applicant solely by virtue of its status as a creditor and which is not otherwise an affiliated person by reason of owning a controlling interest in, being owned by, or being under common ownership, common management or common control with, the applicant or franchisee.

Applicant means any person seeking to obtain a franchise or revocable license pursuant to this article.

Cable services means "cable services" as defined in the Communications Act of 1934, as amended by the Cable Communications Policy Act of 1984, the Cable Television Consumer Protection and Competition Act of 1992, and the Telecommunications Act of 1996 and as may be further amended from time to time (the "Cable Act"). In the event that "cable services" is no longer defined in the Cable Act or the definition in the Cable Act otherwise becomes inapplicable, "cable services" shall mean "cable services" as defined in the Cable Act immediately prior to such term no longer being defined in the Cable Act or such definition otherwise becoming inapplicable.

Control or controlling interest means actual working control in whatever manner exercised, including, without limitation, working control through ownership, management, debt instruments or negative control, as the case may be, of the applicant or the equipment in the streets. A rebuttable presumption of the existence of control or a controlling interest shall arise from the beneficial ownership, directly or indirectly, by any person, or group of persons acting in concert, of more than five percent of any person (which person or group of persons is hereinafter referred to as "controlling person"). "Control" or "controlling interest" as used herein may be held simultaneously by more than one person or group of persons.

Equipment means any and all transmission facilities, poles, wires, electrical conductors, fiber, conduits, subways, manholes, fixtures, appliances and appurtenances that are used in connection with the provision of telecommunications services.

Franchise means an initial authorization, or renewal thereof, issued by the city in accordance with the provisions of this article, which authorizes the occupation and use of the streets to construct, install, operate, upgrade, repair, maintain, and remove equipment used to provide telecommunications services upon, along, over and under the streets. A franchise does not guarantee the universal use of the right-of-way. Each site-specific use of the right-of-way shall be assessed during the permit application process for that particular site.

Franchisee means a person which is party to a franchise issued by the city.

Gross revenues means all revenue that is received, directly or indirectly by the franchisee with facilities in the right-of-way, from or in connection with the provision of telecommunication services over the franchisee's telecommunications system in the established corporate limits of the city; provided that gross revenue shall not include any fees or any sales or excise taxes collected for direct pass-through to any entity with facilities in the right-of-way other than an affiliated person, including any local, state or federal government, and further provided that gross revenue shall not include any revenue generated by the rental, lease, sale, or other use of a franchisee's facilities by a person who is also a franchisee.

Peachtree Corridor means those commercial areas in the City of Atlanta known as Midtown, Downtown, and Buckhead and which are more specifically defined in the handbook of the department of public works.

Revocable license means an initial authorization or renewal thereof, issued by the city in accordance with the provisions of this article, which authorizes the limited occupation and use of specifically identified streets, provided that a revocable license shall be issued only in the limited circumstances set forth in sections 138-127 and 138-135 of this article.

Revocable license fee means a payment for the fair and reasonable compensation for the use of the city's right-of-way in providing telecommunication services. This fee shall not include fees associated with any other license agreement with the city.

Telecommunications means the 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.

Telecommunications franchise fee means a payment of for the fair and reasonable compensation for the use of the city's right-of-way in providing telecommunication services. This fee shall not include fees associated with any other franchise agreement with the city.

Telecommunications provider means any person who:

(1)

Owns, constructs, operates or maintains equipment in the streets used to provide telecommunications services regardless of whether such telecommunications services originate or terminate in the city; or

(2)

Provides telecommunications services that originate or terminate in the city by means of:

a.

Specifically identifiable equipment in the streets, which equipment is owned by such person or made available to such person under a lease or any other arrangement for a period longer than 120 days; or

b.

Equipment in the streets if the use of such equipment is continuing and substantial, and the city has determined that it is necessary and appropriate to impose the requirements of this chapter in order to preserve the application of this article on a competitively neutral and nondiscriminatory basis consistent with applicable law.

Telecommunications services means the offering of telecommunications for a fee directly to the public, or to resellers or other such classes of users as to be effectively available directly to the public, regardless of the facilities used. The term "telecommunications services" shall not include cable services.

Telecommunications system means the plant, equipment, real property (including interests in real property), tangible and intangible personal property, buildings, offices, furniture, customer lists, cable, wires, optical fibers, amplifiers, antenna, switches, and all other electronic devices equipment and facilities used to provide telecommunications services.

Utility easement means any easement owned by the city and acquired, established, dedicated, or devoted for public utility purposes not inconsistent with telecommunications facilities.

Universal access provider means a local exchange company that is obligated to provide basic local exchange service in Atlanta in response to reasonable requests for such service.

(Ord. No. 2001-22, § 2, 3-14-01)