14-200-101. Jurisdiction over utilities — Appeal — Definition.

14-200-101. Jurisdiction over utilities — Appeal — Definition. (a) As used in this section, “public utility” means any electric, gas, sewer, water, or telephone company or utility, and any company or utility providing similar services, except a company excluded from the definition of “public utility” under § 23-1-101(9)(B)(ii), a consolidated utility district under the General Consolidated Public Utility System Improvement District Law, § 14-217-101 et seq., and a water or light commission under § 14-201-101 et seq. (b)(1) Acting by ordinance or resolution of its council, board of directors, or commission, every city and town shall have jurisdiction to: (A)(i) Except as provided in § 23-4-201, determine the terms and conditions upon which the public utility may be permitted to occupy the streets, highways, or other public places within the municipality, including without limitation: (a) The rates, quality, and character of each kind of product or service to be furnished or rendered by a public utility; and (b) A reasonable franchise fee. (ii) The ordinance or resolution shall be deemed prima facie reasonable. (iii) A franchise fee for a public utility, including a telephone company providing services other than basic local exchange service, shall not exceed the higher of the amount in effect on January 1, 1997, or four and twenty-five-hundredths percent (4.25%) of revenue collected by the public utility from its customers in the city or town for rates and fees charged by the public utility, unless agreed to by the affected utility or approved by the voters of the municipality; (B) Require a telephone company providing basic local exchange service to pay a reasonable franchise fee not to exceed the higher of the amount of the telephone company's franchise fee on January 1, 1997, or a fee equal to four and one-quarter percent (4.25%) of the revenues received by the telephone company from providing basic local exchange services, unless: (i) A higher rate or franchise fee is approved by the voters of the municipality; or (ii) The telephone company agrees to pay a higher percentage on services offered in addition to basic local exchange services; (C) Require of any public utility such additions and extensions to its physical plant within the municipality as shall be reasonable and necessary in the interest of the public and to designate the location and nature of all such additions and extensions, the time within which they must be completed, and all conditions under which they must be constructed; and (D) Provide a penalty for noncompliance with the provisions of any ordinance or resolution adopted pursuant to the provisions of this chapter. (2) Nothing in this section shall limit the authority of the public utility to collect from its customers residing in each municipality an amount that equals the franchise fee assessed by the municipality on the public utility. (3) If franchise fees assessed for basic local exchange services are based on revenues, the revenues shall consist of revenues from basic local service, excluding, among other things, extension, terminal equipment, toll, access, yellow pages, and other miscellaneous equipment revenues. (4)(A) No cause of action that challenges the right of a municipality to assess a franchise fee against a public utility for permission to occupy the streets, highways, or other public places within the municipality shall result in the award of money damages. (B) However, consistent with the provisions of Arkansas Constitution, Article 16, § 13, any cause of action for illegal exaction found to be meritorious may result in the granting of injunctive relief. (c)(1) Any public utility affected by any such ordinance or resolution or any other party authorized to complain to the Arkansas Public Service Commission under § 23-3-119 may appeal the action of the council or commission by filing within twenty (20) days of receipt of notice of the ordinance or resolution by the utility's registered agent for service of process of the final action a written complaint with the commission setting out how the ordinance or resolution is unjust, unreasonable, or unlawful, whereupon the commission shall proceed with an investigation, hearing, or determination of the matters complained of, with the same procedure that it would dispose of any other complaint made to it, and with like effect. (2) Such appeal shall not suspend the enforcement of any provisions of the ordinance or resolution unless the commission, after a hearing and upon notice and for good cause shown, orders the suspension conditioned upon the filing of a bond with the commission as provided for in § 23-4-408. (3) Nothing in this section shall be construed to in any way limit or restrict the jurisdiction or the powers of the commission as in other sections granted. (4) In the event the municipal boundaries of a city or town are altered or amended by annexation or otherwise, the city or town shall notify the utility's registered agent for service of process of the alteration or amendment, and the utility shall not be liable for any additional franchise fees for the right to furnish utility service or occupy the streets, highways, or public places in newly added or annexed areas unless the notice shall have been given. (d) In all matters of which by this act the commission and cities and towns are each given original jurisdiction, such jurisdiction shall be concurrent. Cities and towns shall take no action with respect to any matter under investigation by the commission until the matter has finally been disposed of by the commission. The commission shall take no action with respect to any matter which is the subject of an ordinance or resolution pending before the council or commission of any city or town until the matter has finally been disposed of. (e) Nothing in this act shall deprive or be construed as depriving any municipality of the benefits or rights accrued or accruing to it under any franchise or contract to which it may be a party, and neither the commission nor any court exercising jurisdiction under this act shall deprive the municipality of any such benefit or right. (f)(1) No city or town may impose additional franchise fees upon any provider of regulated broadband services under the Broadband Over Power Lines Enabling Act, § 23-18-801 et seq. (2) A city or town may impose franchise fees upon any provider of nonregulated broadband services under the Broadband Over Power Lines Enabling Act, § 23-18-801 et seq., at the same rates that the city or town charges other providers of broadband network services.