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Home My WebLink AboutOrdinance 6311 03/03/20140 ORDINANCE NO. 6311 AN ORDINANCE AMENDING THE SPRINGFIELD MUNICIPAL CODE SECTION 4.600 "DEFINITIONS" TO ADD /AMEND DEFINITIONS TO TELECOMMUNICATION BUSINESS LICENSE TAX, AND AMENDING SECTION 4.706 "FEES FOR USE OF PUBLIC WAYS", SECTION 4.712 "REGULATORY FEES AND COMPENSATION NOT A TAX ", SECTION 4.714: "PENALTIES AND INTEREST FOR LATE PAYMENT ", AND SECTION 4.716 "AUDITS", AND ADOPTING A SEVERABILITY CLAUSE WHEREAS, telecommunication companies who have facilities in the City's right -of -way are required to pay a fee to the City for its use of its right -of -way; WHEREAS, some cities charge such a fee as a franchise fee, while in other cities it may be in the form of a business license or, as the City does, as a right -of -way use fee; WHEREAS, an incumbent local exchange carriers (ILEC) is the default service provider for a local telephone service and state statute limits the City to charging 7% on the revenue from the local exchange service for use of the City's right -of -way; • WHEREAS, local exchange revenue is the revenue from the dial tone access charge on a bill and there is no limit on what cities may charge competitive local exchange carriers (CLEC); WHEREAS, the "phone company" of yesteryear has evolved over time and today's phone companies offer many different services did not previously exist including cell backhaul, voice mail, call forwarding, caller identification, call waiting, and others; and WHEREAS, the City now wishes to establish a method of charging for the true use of the right -of -way. NOW, THEREFORE, the City of Springfield ordains as follows: Section 1. Section 4.600 "Definitions" of the Springfield Municipal Code is hereby amended to include the following two additional definitions: "Internet Service. Internet Service means a service that includes computer processing applications, provides the user with additional or restructured information, or permits the user to interact with stored information through the internet or a proprietary subscriber network. 'Internet service' includes provision of internet electronic mail, access to the internet for information retrieval, and hosting of information for • retrieval over the internet or the graphical subnetwork called the world wide web. 'Internet means the international computer network of both Attachment 2 - Paae 1 n �J federal and nonfederal interoperable packet switched data networks, including the graphical subnetwork called the world wide web." "Public Safety Radio System. Public safety radio system means a radio system whose licensing and use of radio transmitters by state and local government and non - government entities is regulated by the Federal Communications Commission as engaged in public safety activities." Section 2. Section 4.600 " Definitions" "Telecommunications service" of the Springfield Municipal Code is hereby amended to read as follows: "Telecommunications service. The providing or offering for rent, sale or lease, or in exchange for other value received, of the transmittal of voice, data, image, graphic and video programming or any other information between or among points by wire, cable, fiber optics, laser, microwave, radio, satellite or similar facilities, with or without benefit of any closed transmission medium and without regard to the nature of the transmission protocol employed, but does not include: (1) cable television services; (2) private telecommunications network services; • (3) over - the -air radio or television broadcasting to the public -at- large from facilities licensed by the Federal Communications Commission or any successor thereto; (4) direct -to -home satellite service within the meaning of Section 602 of the Telecommunications Act of 1996; (5) services provided solely for the purpose of providing internet service to the consumer; (6) public safety radio systems; (7) mobile service within the meaning of 47 U.S.C. § 153(33) (2012); and (8) services to devices exclusively utilizing electromagnetic spectrum unlicensed by the Federal Communications Commission." Section 3. Section 4.706 of the Springfield Municipal Code is hereby repealed and rewritten to read as follows: "(1) (a) All persons providing utility services shall pay to the City of Springfield a tax in the amount of five percent of gross revenues, as herein defined, subject to limitations in other state or federal laws. (b) All utilities owned and operated by the City of Springfield, except a municipal utility as defined in ORS 757.005(1), shall pay to the • City of Springfield a utility tax fixed by resolution of the council. Attachment 2 - Paae 2 ORDINANCE NO.6311 (c) All persons subject to the tax imposed by subsection (a) who are parties to a franchise or public way use agreement shall be entitled to a credit against the tax due under subsection 9a) in the amount of the payments made pursuant to such franchise or public way use agreement. (2) This fee shall be in addition, and not in lieu of any taxes, fees or charges provided under this Municipal Code. (3) Unless otherwise agreed such tax or fee shall be paid quarterly, on or before the 45th day following the end of the calendar quarter." Section 4. Section 4.710 "Compensation for City Property" of the Springfield Municipal Code is hereby amended to read as follows: "If the right is granted, by lease, license, franchise or other manner, to use and occupy city property other than the public ways for the installation of facilities, the compensation to be paid shall be fixed by the city and shall be separate and distinct from any taxes or fees imposed in sections 4.702 through 4.708." • Section S. Repeal Section 4.712 "Regulatory Fees and Compensation Not a Tax" from the Springfield Municipal Code. Section 6. Section 4.714 "Penalties and Interest for Late Payment' of the Springfield Municipal Code is hereby amended to read as follows: "If any tax or fee provided for herein shall not be timely paid, a penalty in the amount of 10 percent of such fee shall be assessed and due as of the date the underlying tax or fee was due. Interest on taxes, fees and penalties shall accrue at the rate of one and one -half percent per month, commencing with the 15th day after the tax, fee or penalty shall be due." Section 7. Section 4.716 "Audits" for the Springfield Municipal Code is hereby amended to read as follows: "The city may examine the books and records of the utility to verify the amounts due under a franchise, public way use agreement or fee or tax as provided in section 4.706. The utility shall either maintain such books and records at a location within the state of Oregon or, in the alternative, shall provide them to the city when requested, at no expense to the city. In the event such examination discloses an underpayment in the amount due to the city of more than five percent, the city may impose a penalty of 10 percent of the additional amount due, plus costs of the audit, and interest as provided herein from the original date due." ORDINANCE N0..6311 Attachment 2 - Paae 3 _. _ _ ? 0 Section 8. Severability Clause. If any section, subsection, sentence, clause, phrase or portion of this Ordinance is, for any reason, held invalid or unconstitutional by a court of competent jurisdiction, such portion shall be deemed a separate, distinct and individual provision and such holding shall not affect the validity of the remaining portion hereof. Section 9. Effective Date of Ordinance. This Ordinance shall take effect 30 days after its adoption by the Council and approval by the Mayor. ADOPTED by the Common Council of the City of Springfield this 3 day of MARCH 2014, by a vote of 6 for and 0 against. APPROVED by the Mayor of the City of Springfield this 3 day of MARCH 2014. ATTEST: • c/ City Recorder REVIEWED ACS OVEN S T e T OFFICEOF ITYAT RNEY n U Mayor Attachment 2 - Paae 4 ORDINANCE NO. 6311