Request By:
Mr. Harold Asher Miller
City Commissioner
City of Bowling Green
P.O. Box 130
Bowling Green, Kentucky 42101
Opinion
Opinion By: Robert F. Stephens, Attorney General; By: Walter C. Herdman, Assistant Deputy Attorney General
This is in answer to your letter of August 29 in which you request an opinion concerning the following:
"It is my understanding the Bowling Green city commission may soon be presented with a CATV franchise ordinance. I would like to know: Could the Bowling Green city commission, by its own initiative, place on the ballot at the next general election, the question of whether to award an exclusive franchise agreement. This would be prior to passage of an ordinance and different from existing K.R.S. that provides for a challenge, by petition, of any ordinance passed by the city, thus forcing such question on the ballot. Further, could this apply to the awarding of any franchise by the city?"
Our response to your initial question concerning the referendum with respect to the CATV franchise ordinance would be in the negative. As a matter of fact, we do not believe that such an ordinance can be submitted to the voters by either initiative or referendum under KRS 89.600 and KRS 89.610.
The right to operate a community T.V. service is a subject for franchise under Sections 163 and 164 of the Constitution and Ch. 96 KRS as held in the case of
City of Owensboro v. Top Vision Cable Co. of Kentucky, Ky., 487 S.W.2d 283 (1972).
The court in the case of
Seaton v. Lackey, 298 Ky. 188, 182 S.W.2d 336 (1944), had before it the question of whether or not the above referred to initiative and referendum statutes could be invoked with respect to the sale of a new motor bus franchise by the city commission and the court declared that such a franchise could not be submitted to a vote of the people under either of said statutes since the granting of a new franchise was in reality an administrative matter. At the same time however, the court declared that its decision would equally apply to an ordinance initially establishing a utility franchise [as would be the case in this instance] even though the enactment of such a franchise ordinance would be an exercise in legislative discretion, since § 163 of the Constitution vests sole discretionary power in granting franchises with the city legislative body. Concerning this point we quote as follows from the Seaton case:
"If the ordinance under consideration were for the original creation of the utility it prescribes, its enactment would be in the exercise of a legislative discretion. But, even in that event, the right to referendum and initiative is doubtful under Section 163 of the Constitution (which has been held applicable to motor transportation utilities in
People's Transit Co. v. Louisville R. Co., 220 Ky. 728, 295 S.W. 1055). That section vests the discretionary power of granting such franchises solely in the legislative body or board of the city; and we have held it applicable to public utilities only upon the granting of the initial franchise.
City of Paris v. Kentucky Utilities Co., 280 Ky. 492, 133 S.W.2d 559. . . ."
In view of the foregoing, we do not believe that passage of the CATV franchise ordinance can be determined either under the referendum or initiative statutes, namely KRS 89.600 and KRS 89.610. It also follows that in the absence of any statutory authority to place a public question on the ballot, such cannot be done. OAG 76-428 (copy enclosed).
We must refrain from answering your general question concerning the award of any franchise by the city since our regulations require that we respond only to specific factual situations. Regulation 40 KAR 1:020(4).