HOUSE BILL No. 2588
AN ACT concerning counties; relating to the public right-of-way; authorizing
telecommunication, broadband and video service providers to operate in county
public right-of-way; limiting the fees and costs that a county may impose upon such
providers for such activities.
Be it enacted by the Legislature of the State of Kansas:
Section 1. (a) The Kansas legislature finds and declares that:
(1) The permitting, construction, modification, maintenance and
operation of telecommunications facilities are critical to ensuring that
all citizens in the state have true access to broadband and other
advanced technology and information;
(2) telecommunications facilities are critical to ensuring that
businesses and schools throughout the state remain competitive in the
global economy;
(3) telecommunications facilities that enable broadband services
have a significant economic benefit; and
(4) the permitting, construction, modification, maintenance and
operation of telecommunications facilities, to the extent specified in
this section, are declared to be matters of statewide concern and
interest.
(b) As used in this section:
(1) "Public right-of-way" means only the area of real property in
which a county has a dedicated or acquired right-of-way interest in the
real property. "Public right-of-way" includes the area on, below or
above the present and future streets, roads, highways, parkways or
boulevards dedicated or acquired as right-of-way by a county. "Public
right-of-way" does not include:
(A) The airwaves above a "public right-of-way" with respect to
wireless telecommunications or other non-wire telecommunications or
broadcast services;
(B) easements obtained by utilities or private easements; or
(C) any real property, structures or facilities under the ownership,
control or jurisdiction of the secretary of transportation.
(2) "Provider" means a local exchange carrier or
telecommunications carrier as such terms are defined in K.S.A. 66-
1,187 and amendments thereto, or a video service provider as defined
in K.S.A. 12-2022, and amendments thereto. "Provider" does not
include an applicant as defined in K.S.A. 66-2019, and amendments
thereto.
(c) Without abrogating any rights held by a video service provider
pursuant to a state-issued video service authorization, any provider
shall have the right pursuant to this section to construct, maintain and
operate poles, conduit, cable, switches and related appurtenances and
facilities along, across, upon and under any public right-of-way in this
state. Such poles, conduit, cable, switches and related appurtenances
and facilities shall be so constructed and maintained as not to obstruct
or hinder the usual travel or public safety on such public ways or the
legal use by other utilities or providers.
(d) A county shall impose any and all public right-of-way access
and permit processes in a nondiscriminatory and competitively neutral
manner to all similarly situated providers, including, but not limited to:
(1) The permit fees charged by the county;
(2) the forms and filings required by the county for a permit
application;
(3) the time with which a county may approve or deny a permit;
and
(4) options for waivers regarding such permit fees, forms and
filings.
(e) No county shall create, enact or erect any discriminatory,
unreasonable condition, requirement or barrier for entry into or use of
the public right-of-way by a provider.
(f) A county may only assess the following non-discriminatory
and competitively neutral fees against a provider, for the administration
and orderly use of the public right-of-way, provided that such fees
reimburse the county for the county's reasonable, actual and verifiable HOUSE BILL No. 2588—page 2
costs of managing the public right-of-way:
(1) A construction permit fee charged in connection with issuing a
construction permit to set fixtures in the public right-of-way that
compensates the county for the reasonable administrative expenses
incurred by the county for issuing, processing and verifying the permit
application;
(2) an excavation permit fee for each pavement cut to recover the
direct and reasonable costs associated with construction and repair
activity of the provider. Any excavation permit fee imposed by the
county shall be based upon a regional specific or other appropriate
study establishing the basis for such costs that takes into account the
life of the county road or highway prior to the construction or repair
activity and the remaining life of the road or highway. Such excavation
permit fee shall be expressly limited to the proportion of the cost
attributable to the activity of the provider that results in an actual
pavement cut; and
(3) inspection fees to recover all reasonable costs associated with
a county's inspection of the work of the provider in the right-of-way.
(g) A county shall authorize any video service provider as defined
in K.S.A. 12-2022, and amendments thereto, to offset any fees and
charges imposed pursuant to this section against payment of any video
service provider fee imposed pursuant to K.S.A. 12-2024, and
amendments thereto.
(h) A county may assess against a provider costs associated with
repairing and restoring the public right-of-way because of damage
caused by the provider, its assigns, contractors or subcontractors, or
both, in the public right-of-way. A county may require a provider to
furnish a performance bond, in a form acceptable to the county, from a
surety licensed to conduct surety business in the state of Kansas, to
ensure appropriate and timely performance in the construction and
maintenance of facilities located in the public right-of-way.
(i) A county may not assess any additional fees or costs against
providers for use or occupancy of the public right-of-way other than
those specified in this section. Any fees or costs imposed pursuant to
this section shall be imposed upon all such providers in a
nondiscriminatory and competitively neutral manner.
(j) Upon request by a provider, a county shall, in a timely manner,
provide an accounting for the reasonable, actual and verifiable costs
that are the basis for any fee permitted in subsection (f).
(k) This section may not be construed to affect any valid taxation
of a provider's facilities or services.
(l) Any ordinance enacted prior to the effective date of this act
governing the use and occupancy of the public right-of-way by a
provider shall not conflict with the provisions of this section.
(m) No provider shall enter into a contract or any other agreement
with a county to sell or provide a product or service that the provider's
business does not actually sell or provide.
(n) Any county or provider may bring an action in a court of
competent jurisdiction to enforce the provisions of this act. HOUSE BILL No. 2588—page 3
Sec. 2. This act shall take effect and be in force from and after its
publication in the statute book.
I hereby certify that the above BILL originated in the
HOUSE, and was adopted by that body
HOUSE adopted
Conference Committee Report
Speaker of the House.
Chief Clerk of the House.
Passed the SENATE
as amended
SENATE adopted
Conference Committee Report
President of the Senate.
Secretary of the Senate.
APPROVED
Governor.