Request By:
Mr. John David Cole
Attorney at Law
Central Building
1033 State Street
P.O. Box 3400
Bowling Green, Kentucky 42101
Opinion
Opinion By: Robert F. Stephens, Attorney General; By: Charles W. Runyan, Assistant Deputy Attorney General
You are involved with a group of investors, who presently seek to acquire a cable television franchise from the City of Bowling Green and perhaps from Warren County.
You ask whether the investors should first seek to have the City of Bowling Green grant a cable television franchise. You also ask whether the new home rule legislation involving county government pre-empts this area.
H.B. 152, § 3, of the 1978 Session, amends KRS 67.083, inter alia, by giving fiscal courts of any county the authority to enact ordinances dealing with the licensing and franchising of cable television. It is our opinion that this new legislation does not pre-empt the granting of cable television franchises in favor of the county as relates to municipal territory within the county.
Actually, the franchise power of a city or a county exists by virtue of the fact that cable television (cable and wire) is constructed over county road systems or over city streets, over which the fiscal court and the city have jurisdiction.
Ray v. City of Owensboro, Ky., 415 S.W.2d 77 (1967). In order words, the fiscal court has exclusive jurisdiction over county roads which lie within the unincorporated areas of the county. See KRS Chapter 178. And the city legislative body of a second class city has exclusive jurisdiction over city streets, that is, streets or roads lying within the boundaries of the city. See KRS 94.360 and
Blackburn v. City of Pineville, Ky., 313 S.W.2d 860 (1958) 861. Thus H.B. 152 does not cut across these sharp lines of jurisdiction of the cities and counties.
It must be noted that before the enactment of H.B. 152, counties, through the fiscal court, already had the authority to grant cable television franchises within unincorporated territories lying within the county under the authority of Section 164 of the Kentucky Constitution. However, Section 3 of H.B. 152 merely recognizes the authority of the fiscal court to grant such franchises under an appropriate ordinance as a proper implementation of Section 164 of the Constitution.
In summary, it is our opinion that under § 164 of the Constitution and under H.B. 152, the City of Bowling Green can grant a cable television franchise, as it relates to territory within the municipal boundaries, and the fiscal court may grant a similar franchise, involving territory which is unincorporated within the county boundaries, provided that the explicit requirements of § 164 of the Constitution be followed. One of the requirements of that section is that such local governments, before granting a franchise, must duly advertise for and receive bids, and award the franchise to the highest and best bidder. See Ray v. City of Owensboro, above, and
Willis v. Davis, Ky., 534 S.W.2d 255 (1976) 256. In other words, the granting of such a franchise by either the city or the county within their respective jurisdictions cannot be effected on a negotiated basis.
Although such franchises, if issued at all, would have to be granted by separate legislative action on the part of the city and Warren County, there is nothing in the law that would prohibit cooperation between the city and county legislative officials designed to produce franchise contracts that would be highly similar in their nature and content. The uniformity in approaching the problem, we think, would be a desirable goal. See OAG 78-89 and 78-208 of related interest.