§ 138-127. Granting authority.

(a)

It shall be unlawful for any person to use or occupy the streets as a telecommunications provider, or construct, operate or maintain equipment in the streets used to provide telecommunications services, without a franchise or revocable license granted in accordance with the provisions of this article. A franchise may be granted for all or any defined portion of the city. A revocable license is granted only for a specified portion of (a) particular street(s). Franchises and revocable licenses are not required for telecommunications providers that do not construct, operate, or maintain equipment in the streets.

(b)

It shall be unlawful for any person seeking to use the streets to construct, operate or maintain equipment to provide telecommunications for or in connection with the internal operations of such person's business, residence or employment and not for or in connection with the provision or offering of telecommunications services for sale or resale to any person in the city, without first obtaining a revocable license in accordance with the provisions found in sections 138-129 and 138-135 of this article. A revocable license is intended to be a limited grant of authority to use and occupy specifically identified streets to provide telecommunications and shall be granted only if:

(1)

The use or occupation of such streets, together with all revocable licenses previously granted to such person and affiliated persons, shall not exceed 500 linear feet; and

(2)

The use or occupation of such streets does not involve:

a.

The offering or provision of telecommunications services to or from any person in the city; or

b.

The origination or termination of any telecommunications service to or from any person in the city. In determining whether the provisions of clause (2) of this section 138-127 are satisfied, the city may consider whether it is necessary or appropriate to require a license or franchise to preserve the application of this article on a competitively neutral and non-discriminatory basis consistent with applicable law.

(c)

The city council may grant one or more franchises and revocable licenses in accordance with this article, provided that the city council reserves the right to modify any provision of this article by amendment hereof.

(d)

The grant of any franchise or revocable license shall be made by adoption of a separate ordinance by the city council and shall be on such terms and conditions as shall be specified in said separate ordinance and/or a franchise or license agreement between the city and the franchisee or licensee.

(e)

Any franchise or revocable license granted shall be nonexclusive. The city specifically reserves the right to grant, at any time, such additional franchises, revocable licenses or other authorizations for use of the streets by any means, as the city deems appropriate.

(f)

A franchise or revocable license granted in accordance with the provisions of this article shall not be construed to grant any rights or authorization to provide cable services in the city, and any person seeking to provide cable services in the city shall first obtain a separate franchise in accordance with the City of Atlanta Cable Communications Ordinance, 94-0-1777.

(g)

In the event an application for a revocable license would cause a telecommunications provider to exceed the limits established in section 138-127, or fail to comply with the requirements therein, then such telecommunications provider must apply for a franchise in accordance with the provisions of this article, and the use of specifically identified streets pursuant to all previously granted revocable licenses shall thereafter be pursuant to and in accordance with any such franchise that may be granted. It shall be unlawful to provide service pursuant to a revocable license where the licensee exceeds the limitations or fails to meet the requirements contained in section 138-27(g).

(h)

Compensation. It is the purpose of this section to fix a fair and reasonable compensation to be paid for the use of the city's rights-of-way.

(1)

Measure of compensation—Telecommunication franchisees and revocable licensees shall pay the city an annual franchise fee equal to three percent of the franchisee's annual gross revenue provided that a telecommunications franchisee or revocable licensee shall not be required to pay more than $11,000,000.00 in telephony franchise fees for the reasonable use and occupancy of the rights-of-way. The $11,000,000.00 cap will be increased annually at the anniversary date of the execution of the agreement by the rate of inflation Which will be measured by the percentage change in the gross domestic product-price index "GDP PI"), which is the gross domestic product fixed weight price index calculated by the United States Department of Commerce. In addition, in any calendar year that telecommunication franchisee's or revocable licensee's gross revenue does not exceed $500,000.00, the telephony franchisee fee shall be $15,000.00 per year.

(2)

Where a request is made for a determination that ascertaining the amount of gross revenue of a particular franchisee or licensee is impossible, upon such determination the requesting party shall pay compensation to the city at a rate of $8.00 per linear foot for the use of the right-of-way within the Peachtree Corridor, and $2.00 per linear foot for the use of the right-of-way outside the Peachtree Corridor. Such impossibility shall be determined by an auditor and other professionals selected by the city and paid for by the requestor, and as used above, the term impossible shall not mean inconvenient or difficult for the franchisee or licensee, but instead, shall mean that gross revenue is truly incapable of calculation.

(3)

The measure of compensation for equipment installed for private use only, which is not used to provide telecommunications services or facilities to end-users or other third parties, shall be $1,000.00 per year.

(4)

Such fees represent the fair and reasonable compensation to be paid for the use of the city's public rights-of-way.

(5)

Certification and payment of fees. Fees shall be paid on a quarterly basis for the prior quarter, and shall be due on April 1, July 1, October 1, and the first business day of January of each year. Projections from the prior year shall be adjusted in the first quarter in the following year. On or before each quarterly payment date, all franchisees shall provide a certificate, signed and attested to by appropriate corporate officers or authorized corporate representative which verifies the franchisee's gross revenue for the prior quarter.

(6)

Quarterly reports. On or before each quarterly payment date, each telecommunications franchisee and revocable licensee shall submit a quarterly report to the mayor's office of telecommunication to indicate reasonable documentation of the accuracy of the franchise fees or license fees paid.

(7)

Inspection and audit. Each franchisee shall submit a certificate on a quarterly basis verifying and reporting its gross revenue to the city. The city reserves the right to audit or review the accuracy of the reports submitted for the purpose of insuring compliance with this article. Such audits or reviews shall be conducted by an auditor chosen by the city. In cases where the franchisee has failed to submit a certificate verifying gross revenue for two consecutive quarters the costs of such audit shall be borne by the franchisee. In addition, should cases where the audit or review reveals an understatement of' gross revenue more than five percent by the franchisee, all reasonable costs and expenses of such audit or review shall be borne by the franchisee and the franchisee shall make full payment of the relevant obligation, including interest at the legal rate set forth in O.C.G.A. Section 7-4-2.

Provided further that if, as a result of any audit or review conducted by the franchisee, it is determined that the franchisee has overpaid franchise fees to the city, then the city shall make full refund of the overpayment, including interest at the legal rate set forth in O.C.G.A. Section 7-4-2, which may be in the form of a credit on future franchise fees, and the city has received an underpayment of franchise fees, city shall receive the legal rate of' interest on all such underpayments.

(8)

In the event the franchise fee is passed through by a telecommunications provider to the citizens of Atlanta as a cost of providing service, such fees shall be labeled as City of Atlanta right-of-way franchise fee.

(i)

Franchisee and revocable licensee shall report linear miles, linear feet, cable-run, and fiber-run miles, depth and width of all manholes and handholes for their use and occupancy in the right-of-way.

(Ord. No. 2001-22, § 2, 3-14-01; Ord. No. 2001-82, §§ 1, 5—7, 11-13-01; Ord. No. 2003-72, §§ 4, 5, 6-8-03)