Request By:
Mr. Michael E. Caudill
Warren County Attorney
431 1/2 East 10th Street
Bowling Green, Kentucky 42101
Opinion
Opinion By: Robert F. Stephens, Attorney General; By: Charles W. Runyan, Assistant Deputy Attorney General
Warren County and the City of Bowling Green are considering granting one cable television franchise which would service the city and county.
Question No. 1 reads:
"Can the City and the County act jointly and pass a joint cable TV ordinance providing for:
a. Joint advertising?
b. Joint consideration of bids?
c. Joint awarding of the franchise, which would cover both City and the County?
d. Provide that a percentage of the gross receipts from city subscribers go to the city and a percentage of the gross receipts of the county subscribers go to the county?
e. Joint control over the franchise? "
There is no question that the Fiscal Court of Warren County and the legislative body of the City of Bowling Green may separately issue a cable television franchise covering their particular boundaries [the county as to the unincorporated territory]. This authority derives from §§ 163 and 164 of the Kentucky Constitution. The court, in Ray v. City of Owensboro, Ky., 415 S.W.2d 77 (1067) 79, made it clear that the right granted to local governments [cities and counties] to grant franchises under § 163 of the Kentucky Constitution are today not limited to those specific utilities. 1 Thus the court has applied §§ 163 and 164 specifically to cable television. City of Owensboro v. Top Vision Cable Co. of Ky., Ky., 487 S.W.2d 283 (1972). The purpose of these sections [163 and 164, Const.] was to give the municipality control of the streets, roads, and public grounds and to make it possible for the municipality to provide the services of various utilities to its inhabitants. See Ray, above, page 79. Thus the right to grant franchises applies to all utilities and services which might today be proper subjects for control, when the original intent and purpose of the act is considered.
Consistent with this constitutional purpose are those statutes vesting in the legislative bodies of cities and counties, respectively, exclusive control and jurisdiction of streets and public grounds lying within their geographical jurisdictions. As relates to fiscal court, see KRS 67.080 and 67.083. As concerns cities of the second class, see KRS 94.360.
Judge Dietzman wrote in Kentucky Utilities Co. v. Board of Com'rs, 254 Ky. 527, 71 S.W.2d 1024 (1934) 27, that "a reading of the debates of the constitutional convention bearing upon this section 163 of the constitution will disclose that the main and actuating purpose of the framers of that instrument was to prevent the legislature from authorizing the indiscriminate use of the streets of the city by public utilities without the city being able to control the decision as to what streets and what public ways were to be occupied by such utilities."
While §§ 163 and 164 of the constitution are self-operative in nature, we are of the opinion that the Interlocal Cooperation Act, and specifically KRS 65.240, would permit the city and county to grant jointly one cable television franchise [upon advertised bid solicitation] which would service the county and city. The intent underlying the Interlocal Cooperation Act is that whatever the unit of government may do alone, it may be done jointly with another governmental unit. We see nothing in the joint action which would militate against the self-executing nature of §§ 163 and 164 or against the exclusivity of governmental control over streets, roads and public grounds. The joint action would take place with the idea of effecting the most efficient and economic system for the whole city and county.
The first step would be the entering into an interlocal agreement between the city and county pursuant to KRS 65.210 et seq. See especially KRS 65.250 and 65.260 [approval of attorney general].
The joint contract [interlocal agreement] and the steps taken to effectuate §§ 163 and 164 may properly include joint advertising, joint consideration of bids, joint awarding of the franchise covering the city and county areas, a provision that the consideration payable to the city and county shall be a certain percentage of the gross receipts from city subscribers going to the city and a percentage of gross receipts of county subscribers going to the county respectively, and the joint control over the franchise. The total consideration payable to the two units of government should not exceed per year three percent (3%) of the gross receipts from subscribers to the entire system.
An exclusive franchise may be granted where, in the sound discretion of the legislative bodies of the two governments, the public interest demands that competition in the cable television field be restrained or limited. See Ray v. City of Owensboro, Ky., 415 S.W.2d 77 (1967); Akers v. Floyd County Fiscal Court, Ky., 556 S.W.2d 146 (1977) 150.
You ask whether there are restrictions on the number of votes required to award a city-county franchise? The city commission is composed of four commissioners and a mayor; and the fiscal court is composed of eight magistrates and a county/judge executive.
A majority of the fiscal court is required to pass an ordinance. KRS 67.078. Each of the nine members has the right to vote on the issue.
In a city of second class [commissioner and city manager form] four commissioners are authorized. KRS 89.430. The mayor and the commissioners shall constitute a board of commissioners. KRS 89.500. The affirmative vote of a majority of the members shall be necessary to the passage of an ordinance. KRS 89.540. Each member has the right to vote on the issue. KRS 89.500.
Footnotes
Footnotes
1 Railway, gas, water, steam heating, telephone, electric light.