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136.660 Prohibitions -- Local franchise fee or tax defined.
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(2)
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Except as provided in subsection (3) of this section, to the extent legally
permissible, every political subdivision of this state shall be prohibited from the
following:
(a) Levying any franchise fee or tax on multichannel video programming
service or communications service, or collecting any franchise fee or tax
from providers or purchasers of multichannel video programming service
or communications service;
(b) Requiring any provider to enter into or extend the term of any provision of
a franchise or other agreement that requires the payment of a franchise
fee or tax; or
(c) Enforcing any provision of any ordinance or agreement to the extent that
the provision obligates a provider to pay to the political subdivision a
franchise fee or tax.
For purposes of this section, "franchise fee or tax" means:
(a) Any tax, charge, or fee, that is required by ordinance or agreement to be
paid to a political subdivision by or through a provider, in its capacity as a
provider, regardless of whether the tax, charge, or fee, is:
1.
Designated as a franchise fee, sales tax, excise tax, user fee,
occupancy fee, subscriber charge, license fee, or otherwise;
2.
Measured by the amounts charged for services, the type or amount
of equipment or facilities deployed, or otherwise;
3.
Intended as compensation for the use of public or private
rights-of-way, the right to conduct business, or otherwise; or
4.
Permitted or required to be separately stated on the purchaser's bill;
or
(b) Any in-kind payment of property or services that is required to be
furnished by a provider by any ordinance that is enacted or agreement
that is entered into after January 1, 2006.
The prohibitions in this section shall not apply to:
(a) Ad valorem taxes levied under KRS 132.020;
(b) Emergency telephone surcharges;
(c) Surety bonds;
(d) In-kind payments of property or services provided under contracts or
agreements in existence prior to January 1, 2006;
(e) Letters of credit designed to protect against damages to public
rights-of-way for violations of regulatory requirements;
(f) Permit or inspection fees of general applicability that are:
1.
Related to construction in the rights-of-way; and
2.
Levied solely to defray the actual costs of administering the
permitting process or inspection program;
(g) Pole attachment fees;
(h) Fees for the placement of antennas, towers, and other similar devices on
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publicly owned property that are imposed by a political subdivision
pursuant to a written agreement;
(i) Any charge or fee that is imposed on a provider by a political subdivision
for the use of property or facilities owned by the political subdivision, if
that provider is imposing similar charges or fees on other providers for the
use of property or facilities owned or controlled by that provider;
(j) Any requirement by a political subdivision that a provider designate or set
aside channel capacity for public, educational, or governmental use; or
construct institutional networks; or provide similar services or facilities for
public use and benefit that political subdivisions are specifically
authorized to require by federal telecommunications laws; and
(k) Gross revenues utility taxes imposed under KRS 160.613 and 160.614.
Notwithstanding any provision of law to the contrary, if a political subdivision
imposes or otherwise attempts to require the payment of a franchise fee or tax,
the political subdivision shall not receive any share of the proceeds of the tax
levied by KRS 136.604 or 136.616 for the period that the imposition or attempt
occurs.
To the extent that a provider actually pays a franchise fee or tax with respect to
multichannel video programming service or communications service that is also
subject to the taxes imposed by KRS 136.604 or 136.616, the provider shall be
entitled to a credit against the amount payable to the department under KRS
136.604 and 136.616 in the amount of the franchise fee or tax, up to the
amount of the total tax due with respect to the multichannel video programming
service and communications service provided in that political subdivision,
school district, or special district.
Nothing in this section shall prohibit a provider from donating property or
services to a political subdivision, school district, or special district or prohibit a
political subdivision, school district, or special district from receiving donated
property or services.
Nothing in this section shall prohibit a political subdivision from requiring
communications service providers or cable service providers to obtain a
franchise as required by Section 163 of the Constitution of Kentucky and from
regulating to the fullest extent authorized by state and federal law the use of
local rights-of-way by communications service providers or cable service
providers.
Effective:January 1, 2006
History: Created 2005 Ky. Acts ch. 168, sec. 118, effective January 1, 2006.
Legislative Research Commission Note (1/01/2006). 2005 Ky. Acts chs. 11, 85,
95, 97, 98, 99, 123, and 181 instruct the Reviser of Statutes to correct statutory
references to agencies and officers whose names have been changed in 2005
legislation confirming the reorganization of the executive branch. Such a
correction has been made in this section.
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