Session of 2024
HOUSE BILL No. 2806
By Committee on Federal and State Affairs
Requested by Jessica Lucas on behalf of IdeaTek
2-19
AN ACT concerning counties; relating to the public right-of-way;
authorizing certain telecommunications 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
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amendments thereto. "Provider" does not include an applicant as defined
in K.S.A. 66-2019, and amendments thereto.
(c) 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 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 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 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 expenses incurred by the
county for issuing, processing and verifying the permit application;
(2) an excavation fee for each pavement cut to recover the costs
associated with construction and repair activity of the provider or the
provider's assigns, contractors or subcontractors, or both. Any excavation
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 fee shall be expressly limited to activity 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
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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, insuring
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.
Sec. 2. This act shall take effect and be in force from and after its
publication in the statute book.
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