Request By:
Mr. Samuel E. Phillips
Taylor County Judge/Executive
Courthouse
Campbellsville, Kentucky 42718
Opinion
Opinion By: Robert F. Stephens, Attorney General; By: Charles W. Runyan, Assistant Deputy Attorney General
The Fiscal Court of Taylor County has several times advertised for bids for a cable TV franchise in unincorporated portions of the county, but no responsive bid has been received. Campbellsville Cable T.V., Inc., was the only bidder, but they made up their own specifications.
Campbellsville Cable T.V., Inc., has been doing business in subdivisions outside of the city limits of Campbellsville since they received a city franchise. The city franchise expires May 31, 1984.
You request an opinion as to whether the fiscal court can legally require Campbellsville Cable T.V., Inc., to accept a contract that will expire on May 31, 1984, thus enabling the city and county to jointly award a cable T.V. franchise.
Pursuant to the interlocal cooperation legislation, KRS 65.240, and §§ 163 and 164 of the Kentucky Constitution, the city and county may engage in a joint cable T.V. franchise. See OAG 79-208, covering that subject. However, the city already has a franchise and is bound until May 31, 1984, unless the holder of the franchise and the city and county all agree to start over and the city and county advertise for a new and joint franchise.
The fiscal court, as a purely county venture, must advertise, if it wishes to let a franchise, for the letting of a cable T.V. franchise pursuant to §§ 163 and 164, Kentucky Constitution. However, it cannot force any bidder to respond to the fiscal court's specifications. 1
The fiscal court's authority to let a cable T.V. franchise is bottomed on the fiscal court's power to control its roads and rights of way. See KRS 67.080, 67.083, §§ 163 and 164, Kentucky Constitution, and Ray v. City of Owensboro, Ky., 415 S.W.2d 77 (1967) 79. Where the cable T.V. is strung along county roads and rights of way, only the fiscal court of that county can grant a cable T.V. franchise. In such situation a cable T.V. company operating a cable system on county roads and rights of way without a franchise subjects itself to a suit by fiscal court seeking removal of the cable T.V. facilities from such county roads and rights of way, as well as any ordinance making the continued possession by the cable T.V. company of county roads and rights of way a misdemeanor. In your situation, if the cable T.V. company is not occupying county roads or rights of way with their facilities in these subdivisions in unincorporated territory, then the criminal ordinance could not legally apply to that factual situation.
In summary, the fiscal court cannot compel the cable T.V. company to make any particular response to its advertisement for franchise bids. However, the cable T.V. company cannot place its cable T.V. facilities along county roads and rights of way in the absence of a county franchise.
As concerns the company's holding out for a 15 year franchise, that is a corporate matter. Section 164 provides that no franchise can be granted for a term exceeding 20 years. A franchise for a lesser number of years, however, can be granted.
Footnotes
Footnotes
1 Obviously where no bidder responds in terms of the fiscal court's specifications, no franchise can be awarded. In simple terms, a contract requires a meeting of the minds.