2006 Code of Virginia § 56-468.1 - (Effective until January 1, 2007) Public Rights-of-Way Use Fee

56-468.1. (Effective until January 1, 2007) Public Rights-of-Way Use Fee.

A. As used in this article:

"Access lines" are defined to include residence and business telephonelines and other switched common lines connecting the customer premises to theend office switch. Access lines do not include local, state, and federalgovernment lines; access lines used to provide service to users as part ofthe Virginia Universal Service Plan; interstate and intrastate dedicated WATSlines; special access lines; off-premises extensions; official lines used byproviders of telecommunications service for administrative, testing,intercept, and verification purposes; and commercial mobile radio servicelines.

"Certificated provider of telecommunications service" means a publicservice corporation or locality holding a certificate issued by the StateCorporation Commission to provide local exchange or interexchange telephoneservice.

"Locality" has the same meaning as contained in 15.2-102.

"New installation of telecommunications facilities" or "new installation"includes the construction of new pole lines and new conduit systems, and theburying of new cables in existing public rights-of-way. New installation doesnot include adding new cables to existing pole lines and conduit systems.

"Public highway" means, for purposes of computing the Public Rights-of-WayUse Fee, the centerline mileage of highways and streets which are part of theState Highway System as defined in 33.1-25, the secondary system ofhighways as defined in 33.1-67, the highways of those cities and certaintowns defined in 33.1-41.1 and the highways and streets maintained andoperated by counties which have withdrawn or elect to withdraw from thesecondary system of state highways under the provisions of 11 of Chapter415 of the Acts of Assembly of 1932 and which have not elected to return.

B. Notwithstanding any other provisions of law, there is hereby established aPublic Rights-of-Way Use Fee to replace any and all fees of generalapplication (except for zoning, subdivision, site plan and comprehensive planfees of general application) otherwise chargeable to a certificated providerof telecommunications service by the Commonwealth Transportation Board or alocality in connection with a permit for such occupation and use granted inaccordance with 56-458 or 56-462. Cities and towns whose public streetsand roads are not maintained by the Virginia Department of Transportation,and any county that has withdrawn or elects to withdraw from the secondarysystem of state highways under the provisions of 11 of Chapter 415 of theActs of Assembly of 1932, may impose the Public Rights-of-Way Use Fee only bylocal ordinance. Localities, their authorities or commissions, and theCommonwealth Transportation Board may allow certificated providers oftelecommunications services to use their electric poles or electric conduitsin exchange for payment of a fee.

C. The amount of the Public Rights-of-Way Use Fee shall be calculatedannually by the Department of Transportation (VDOT), based on thecalculations described in subsection D of this section. In no year shall theamount of the fee be less than fifty cents per access line per month.

D. The annual rate of the Public Rights-of-Way Use Fee shall be calculated bymultiplying the number of public highway miles in the Commonwealth by ahighway mileage rate (as defined in subsection E of this section), and byadding the number of feet of new installations in the Commonwealth(multiplied by one dollar per foot), and dividing this sum by the totalnumber of access lines in the Commonwealth. The monthly rate shall be thisannual rate divided by twelve.

E. The annual multiplier per mile is $250 from July 1, 1998, through June 30,1999; $300 per mile for the year July 1, 1999, through June 30, 2000; $350per mile for the year July 1, 2000, through June 30, 2001; and $425 per milebeginning July 1, 2001 and thereafter.

F. The data used for the calculation in subsection D shall be based on thefollowing information and schedule: (i) all certificated providers oftelecommunications services shall remit to VDOT by December 1 of each yeardata indicating the number of feet of new installations made during theone-year period ending September 30 of that year, which shall be auditable byaffected localities, and the number of access lines as of September 30 ofthat year, which shall be auditable by affected localities; and (ii) thepublic highway mileage from the most recently published VDOT report. By thefollowing January 15, VDOT shall calculate the Public Rights-of-Way Use Feeto be used in the fiscal year beginning the next ensuing July 1 and report itto all affected localities and certificated providers of local exchangetelephone services.

G. A certificated provider of local exchange telephone service shall collectthe Public Rights-of-Way Use Fee on a per access line basis by adding the feeto each ultimate end user's monthly bill for local exchange telephoneservice. The Public Rights-of-Way Use Fee shall, when billed, be stated as adistinct item separate and apart from the monthly charge for local exchangetelephone service. Until the ultimate end user pays the Public Rights-of-WayUse Fee to the local exchange service provider, the Public Rights-of-Way UseFee shall constitute a debt of the consumer to the locality or VDOT. If anyultimate end user refuses to pay the Public Rights-of-Way Use Fee, the localexchange service provider shall notify the locality or VDOT, as appropriate.After the consumer pays the Public Rights-of-Way Use Fee to the localexchange service provider, such fee collected shall be deemed to be held intrust by the local exchange service provider until remitted to the localityor VDOT.

H. Within two months after the end of each calendar quarter, eachcertificated provider of local exchange telephone service shall remit theamount of Public Rights-of-Way Use Fees it has billed to ultimate end usersduring such preceding quarter, as follows:

1. The certificated provider of local exchange telephone service shall remitdirectly to the applicable locality all Public Rights-of-Way Use Fees billedin (i) cities, (ii) towns whose public streets and roads are not maintainedby VDOT, and (iii) any county that has withdrawn or elects to withdraw fromthe secondary system of state highways under the provisions of 11 ofChapter 415 of the Acts of Assembly of 1932 and that has elected not toreturn, provided, however, that such counties shall use a minimum of tenpercent of the Public Rights-of-Way Use Fees they receive for transportationconstruction or maintenance purposes. Any city currently subject to 15.2-3530 shall use a minimum of ninety percent of the Public Rights-of-WayUse Fees it receives for transportation construction or maintenance purposes.

2. The Public Rights-of-Way Use Fees billed in all other counties shall beremitted by each certificated provider of local exchange telephone service toVDOT. VDOT shall allocate the total amount received from certificatedproviders to the construction improvement program of the secondary system ofstate highways. Within such allocation to the secondary system, VDOT shallapportion the amounts so received among the several counties, other thanthose described in clause (iii) of subdivision 1, on the basis of population,with each county being credited a share of the total equal to the proportionthat its population bears to the total population of all such counties. Forpurposes of this section the term "population" shall mean either populationaccording to the latest United States census or the latest populationestimate of the Weldon Cooper Center for Public Service of the University ofVirginia, whichever is more recent. Such allocation and apportionment ofPublic Rights-of-Way Use Fees shall be in addition to, and not in lieu of,any other allocation of funds to such secondary system and apportionment tocounties thereof provided by law.

I. Any locality with a franchise agreement, ordinance implementing afranchise agreement or other form of consent allowing the use of the publicrights-of-way, existing prior to July 1, 1998, or any city or town with anordinance or code section imposing a franchise fee or charge in effect as ofFebruary 1, 1997, may elect to continue enforcing such existing franchise,ordinance or code section or other form of consent in lieu of receiving thePublic Rights-of-Way Use Fee; provided, however, that such city or town doesnot (i) discriminate among telecommunications service providers and (ii)adopt any additional rights-of-way management practices that do not complywith 56-458 C and 56-462 C. The Public Rights-of-Way Use Fee shall not beimposed in any such locality.

Any locality electing to adopt the Public Rights-of-Way Use Fee by ordinanceshall notify all affected certificated providers of local exchange telephoneservice no later than March 15 preceding the fiscal year. Such notice shallbe in writing and sent by certified mail from such locality to the registeredagent of the affected certificated provider of local exchange telephoneservice. For localities adopting the Public Rights-of-Way Use Fee byordinance in 1998, collection of the fee shall begin on the first day of themonth occurring ninety days after receipt of notice as required by thissubsection.

(1998, cc. 742, 758; 2002, cc. 479, 489.)

56-468.1. (Effective January 1, 2007 - see Editor's notes for expiration)Public Rights-of-Way Use Fee.

A. As used in this article:

"Access lines" are defined to include residence and business telephonelines and other switched (packet or circuit) lines connecting the customerpremises to the public switched telephone network for the transmission ofoutgoing voice-grade telecommunications services. Centrex, PBX, or othermultistation telecommunications services will incur a Public Rights-of-WayUse Fee on every line or trunk (Network Access Registrar or PBX trunk) thatallows simultaneous unrestricted outward dialing to the public switchednetwork. ISDN Primary Rate Interface services will be charged five PublicRights-of-Way Use Fees for every ISDN Primary Rate Interface network facilityestablished by the customer. Other channelized services in which eachvoice-grade channel is controlled by the telecommunications service providershall be charged one fee for each line that allows simultaneous unrestrictedoutward dialing to the public switched telephone network. Access lines do notinclude local, state, and federal government lines; access lines used toprovide service to users as part of the Virginia Universal Service Plan;interstate and intrastate dedicated WATS lines; special access lines;off-premises extensions; official lines internally provided and used byproviders of telecommunications service for administrative, testing,intercept, and verification purposes; and commercial mobile radio service.

"Cable operator" and "cable system" have the same meanings as containedin subsection A of 15.2-2108.1:1.

"Centrex" means a business telephone service offered by a local exchangecompany from a local central office; a normal single line telephone servicewith added custom calling features including but not limited to intercom,call forwarding, and call transfer.

"ISDN Primary Rate Interface" means digital communications servicecontaining 24 bearer channels, each of which is a full 64,000 bits-per-second.

"Locality" has the same meaning as contained in 15.2-102.

"Network Access Register" means a central office register associated withCentrex service that is required in order to complete a call involving accessto the public switched telephone network outside the confines of that Centrexcompany. Network Access Register may be incoming, outgoing, or two-way.

"New installation of telecommunications facilities" or "new installation"includes the construction of new pole lines and new conduit systems, and theburying of new cables in existing public rights-of-way. New installation doesnot include adding new cables to existing pole lines and conduit systems.

"PBX" means public branch exchange and is telephone switching equipmentowned by the customer and located on the customer's premises.

"PBX trunk" means a connection of the customer's PBX switch to the centraloffice.

"Provider of local telecommunications service" means a public servicecorporation or locality holding a certificate issued by the State CorporationCommission to provide local exchange telephone service and any other personwho provides local telephone services to the public for a fee, other than aCMRS provider as that term is defined in 56-484.12.

"Provider of telecommunications service" means a public service corporationor locality holding a certificate issued by the State Corporation Commissionto provide local exchange or interexchange telephone service to the publicfor a fee and any other person who provides local or long distance telephoneservices to the public for a fee, other than a CMRS provider as that term isdefined in 56-484.12.

"Public highway" means, for purposes of computing the Public Rights-of-WayUse Fee, the centerline mileage of highways and streets which are part of theState Highway System as defined in 33.1-25, the secondary system ofhighways as defined in 33.1-67, the highways of those cities and certaintowns defined in 33.1-41.1 and the highways and streets maintained andoperated by counties which have withdrawn or elect to withdraw from thesecondary system of state highways under the provisions of 11 of Chapter415 of the Acts of Assembly of 1932 and which have not elected to return.

"Subscriber" means a person who receives video programming, as defined in47 U.S.C. 522(20), distributed by a cable operator, as defined insubsection A of 15.2-2108.1:1, and does not further distribute it.

B. 1. Notwithstanding any other provisions of law, there is herebyestablished a Public Rights-of-Way Use Fee to replace any and all fees ofgeneral application (except for zoning, subdivision, site plan andcomprehensive plan fees of general application) otherwise chargeable to aprovider of telecommunications service by the Commonwealth TransportationBoard or a locality in connection with a permit for such occupation and usegranted in accordance with 56-458 or 56-462. Cities and towns whosepublic streets and roads are not maintained by the Virginia Department ofTransportation, and any county that has withdrawn or elects to withdraw fromthe secondary system of state highways under the provisions of 11 ofChapter 415 of the Acts of Assembly of 1932, may impose the PublicRights-of-Way Use Fee on the ultimate end-users of local telecommunicationsservice only by local ordinance. Localities, their authorities orcommissions, and the Commonwealth Transportation Board may allow providers oftelecommunications services and cable operators to use their electric polesor electric conduits in exchange for payment of a fee.

2. The Public Rights-of-Way Use Fee established by this section is herebyimposed on all cable operators that use the public rights-of-way.

C. The amount of the Public Rights-of-Way Use Fee shall be calculatedannually by the Department of Transportation (VDOT), based on thecalculations described in subsection D of this section. In no year shall theamount of the fee be less than $0.50 per access line per month.

D. The annual rate of the Public Rights-of-Way Use Fee shall be calculated bymultiplying the number of public highway miles in the Commonwealth by ahighway mileage rate (as defined in subsection E of this section), and byadding the number of feet of new installations in the Commonwealth(multiplied by $1 per foot), and dividing this sum by the total number ofaccess lines in the Commonwealth. The monthly rate shall be this annual ratedivided by 12.

E. The annual multiplier per mile is $425 per mile beginning July 1, 2001 andthereafter.

F. The data used for the calculation in subsection D shall be based on thefollowing information and schedule: (i) all providers of telecommunicationsservices shall remit to VDOT by December 1 of each year data indicating thenumber of feet of new installations made during the one-year period endingSeptember 30 of that year, which shall be auditable by affected localities,and the number of access lines as of September 30 of that year, which shallbe auditable by affected localities; and (ii) the public highway mileage fromthe most recently published VDOT report. By the following January 15, VDOTshall calculate the Public Rights-of-Way Use Fee to be used in the fiscalyear beginning the next ensuing July 1 and report it to all affectedlocalities and providers of local telecommunications services.

G. A provider of local telecommunications service shall collect the PublicRights-of-Way Use Fee on a per access line basis and the cable operator shallcollect the Public Rights-of-Way Use Fee on a per subscriber basis by addingthe fee to each ultimate end user's monthly bill for local telecommunicationsservice or cable service. A company providing both local telecommunicationsservice and cable service to the same ultimate end user may collect only onePublic Rights-of-Way Use Fee from that ultimate end user based on (i) thelocal telecommunications service if the locality in which the ultimate enduser resides has imposed a Public Rights-of-Way Use Fee on localtelecommunications service or (ii) cable service if the locality in which thesubscriber resides has not imposed a Public Rights-of-Way Use Fee on localtelecommunications service. The Public Rights-of-Way Use Fee shall, whenbilled, be stated as a distinct item separate and apart from the monthlycharge for local telecommunications service and cable service. Until theultimate end user pays the Public Rights-of-Way Use Fee to the localtelecommunications service provider or cable operator, the PublicRights-of-Way Use Fee shall constitute a debt of the consumer to thelocality, VDOT, or the Department of Taxation, as may be applicable. If anyultimate end user or subscriber refuses to pay the Public Rights-of-Way UseFee, the local telecommunications service provider or cable operator shallnotify the locality, VDOT, or the Department of Taxation, as appropriate. Allfees collected in accordance with the provisions of this section shall bedeemed to be held in trust by the local telecommunications service providerand the cable operator until remitted to the locality, VDOT, or theDepartment of Taxation, as applicable.

H. Within two months after the end of each calendar quarter, each provider oflocal telecommunications service shall remit the amount of PublicRights-of-Way Use Fees it has billed to ultimate end users during suchpreceding quarter, as follows:

1. The provider of local telecommunications service shall remit directly tothe applicable locality all Public Rights-of-Way Use Fees billed in (i)cities; (ii) towns whose public streets and roads are not maintained by VDOT;and (iii) any county that has withdrawn or elects to withdraw from thesecondary system of state highways under the provisions of 11 of Chapter415 of the Acts of Assembly of 1932 and that has elected not to return,provided, however, that such counties shall use a minimum of 10% of thePublic Rights-of-Way Use Fees they receive for transportation construction ormaintenance purposes. Any city currently subject to 15.2-3530 shall use aminimum of 90% of the Public Rights-of-Way Use Fees it receives fortransportation construction or maintenance purposes.

2. The Public Rights-of-Way Use Fees billed in all other counties shall beremitted by each provider of local telecommunications service to VDOT. VDOTshall allocate the total amount received from providers to the constructionimprovement program of the secondary system of state highways. Within suchallocation to the secondary system, VDOT shall apportion the amounts soreceived among the several counties, other than those described in clause(iii) of subdivision 1, on the basis of population, with each county beingcredited a share of the total equal to the proportion that its populationbears to the total population of all such counties. For purposes of thissection the term "population" shall mean either population according to thelatest United States census or the latest population estimate of the WeldonCooper Center for Public Service of the University of Virginia, whichever ismore recent. Such allocation and apportionment of Public Rights-of-Way UseFees shall be in addition to, and not in lieu of, any other allocation offunds to such secondary system and apportionment to counties thereof providedby law.

I. The Public Rights-of-Way Use Fee billed by a cable operator shall beremitted to the Department of Taxation for deposit into the CommunicationSales and Use Tax Trust Fund by the twentieth day of the month following thebilling of the fee.

J. Any locality with a franchise agreement, ordinance implementing afranchise agreement or other form of consent allowing the use of the publicrights-of-way by a provider of local telecommunications service, existingprior to July 1, 1998, or any city or town with an ordinance or code sectionimposing a franchise fee or charge on a provider of local telecommunicationsservice in effect as of February 1, 1997, may elect to continue enforcingsuch existing franchise, ordinance or code section or other form of consentin lieu of receiving the Public Rights-of-Way Use Fee; provided, however,that such city or town does not (i) discriminate among telecommunicationsservice providers and (ii) adopt any additional rights-of-way managementpractices that do not comply with 56-458 C and 56-462 C. The PublicRights-of-Way Use Fee shall not be imposed in any such locality.

Any locality electing to adopt the Public Rights-of-Way Use Fee by ordinanceshall notify all affected providers of local telecommunications service nolater than March 15 preceding the fiscal year. Such notice shall be inwriting and sent by certified mail from such locality to the registered agentof the affected provider or providers of local telecommunications service.

(1998, cc. 742, 758; 2002, cc. 479, 489; 2006, c. 780.)