(A) Except as provided in Section 58-12-325, a person or entity providing cable service in this State on the effective date of this article under a franchise previously granted by the governing body of a municipality or county is not subject to nor may it avail itself of the state-issued certificate of franchise authority provisions of this article with respect to the municipality or county until the franchise expires. Notwithstanding the foregoing, any such cable service provider may seek authorization to provide service in areas where it currently does not have an existing franchise agreement pursuant to provisions of this article.

(B) Subject to the provisions of subsection (A), a person or entity seeking to provide cable or video service in this State after the effective date of this article must file an application for a state-issued certificate of franchise authority with the Secretary of State as required by this section. The application must be on a form to be established by the Secretary of State and must be accompanied by a fee, not to exceed one hundred ten dollars, to be established by the Secretary of State. If the person or entity is not authorized by other provisions of law to construct, maintain, or operate any type of facilities in the public rights-of-way, the person or entity shall file the application before constructing, maintaining, or operating any facilities in the public rights-of-way. If the person or entity is authorized by other provisions of law to construct, maintain, or operate any type of facilities in the public rights-of-way, the person or entity shall file the application before providing cable or video service in any given service area. Such application must be accompanied by an affidavit submitted by the applicant and signed by an officer or general partner of the applicant affirming the following:

(1) that the applicant agrees to comply with all applicable federal and state laws and regulations;

(2) a written description of the municipalities and a written description of the unincorporated areas of counties to be served, in whole or in part, by the applicant, which written description must be amended by the applicant before the provision of cable or video service within an area not described in a previous application or amendment filed by the applicant. For purposes of this subsection, a map or other graphic representation may supplement, but not substitute for, the written description; and

(3) the location of the principal place of business and the names of the principal executive officers of the applicant.

A holder of a state-issued certificate of franchise authority who seeks to amend the certificate to include additional areas to be served shall file an amended application with the Secretary of State that reflects the new service areas to be served.

However, a holder of a state-issued certificate of franchise authority must begin to deploy cable or video service in each of the municipalities and in each of the unincorporated areas of counties described in subsection (B)(2) within one year of the date of the issuance of the certificate or the certificate becomes null and void. This provision shall not be construed to require deployment of cable or video service throughout the municipalities or the unincorporated areas of the counties described in subsection (B)(2).

(C) Within five days of receipt of an application or amended application, the Secretary of State must notify each affected municipality and county of its receipt of the application or amended application and must request from each affected municipality and county: (1) the franchise fee rate imposed on the incumbent cable service provider, if any, as of the date of the application or amended application; (2) the number of public, educational, and governmental (PEG) access channels the municipality or county has activated under the incumbent cable provider's franchise agreement as of the date of the application or amended application; and (3) whether the municipality or county consents to the state-issued certificate of franchise authority sought in the application or amended application and, if such consent is denied, an explanation of the reasons for the denial of the requested consent. The notification must contain a copy of the application of the cable or video service provider including the description of the area to be served.

(D) A municipality or county must respond to a request issued by the Secretary of State pursuant to subsection (C) within sixty-five days of the date of such request. If a municipality or county does not timely respond with the franchise fee rate imposed on the incumbent cable service provider, if any, as of the date of the application or amended application, the franchise fee rate for the applicant in such municipality or county shall be two percent of gross revenue until the county or municipality provides a response and the Secretary of State issues an amended certificate of franchise authority containing a franchise fee in compliance with Section 58-12-330. If a municipality or county does not timely respond with the number of PEG access channels the municipality or county has activated under the incumbent cable provider's franchise agreement as of the date of the application or amended application or with a statement that it has not activated any PEG access channels under the incumbent cable provider's franchise agreement as of such date, the applicant shall not be required to provide any PEG access channels to the municipality or county until the municipality or county provides a response and the Secretary of State issues an amended certificate of franchise authority containing the number of PEG access channels to be provided to the municipality or county in compliance with Section 58-12-370. If a municipality or county denies consent or does not timely indicate its unconditional consent to the state-issued certificate of franchise authority sought in the application or amended application, the Secretary of State shall deny the application or amended application with regard to that municipality or county and shall note on the notice of denial that the reason for the denial was the refusal of the applicable municipality or county to grant consent. If the applicant takes the position that the denial of the application or amended application is actionable, it may seek any appropriate relief under state or federal law in state or federal court, and if the applicant takes the position that the denial of consent by the municipality or county is actionable, it may add the municipality or county denying consent as a party to such action. If the Secretary of State denies the application or amended application under the provisions of this subsection and the affected municipality or county subsequently indicates its unconditional consent to the state-issued certificate of franchise authority sought in the application or amended application, the Secretary of State must promptly issue an amended certificate of franchise authority that includes such municipality or county.

(E) Within eighty days after making the request described in subsection (C), the Secretary of State shall issue the applicant a certificate of franchise authority to operate as a cable or video service provider and the certificate shall contain the following:

(1) a nonexclusive grant of authority to provide cable or video service in the areas set forth in the application;

(2) a nonexclusive grant of authority to construct, maintain, and operate facilities along, across, or on public rights-of-way in the delivery of that service, subject to the laws of this State including the lawful exercise of police powers of the municipalities and counties in which the service is delivered;

(3) the franchise fee rate for each municipality or county described in the application in compliance with Section 58-12-330; and

(4) the number of public, educational, and governmental access channels to be provided upon request to each municipality or county described in the application, in compliance with Section 58-12-370.

(F) The certificate of franchise authority issued by the Secretary of State is fully transferable to a successor in interest to the applicant to which it is initially granted, provided that the successor in interest files with the Secretary of State an affidavit that complies with the requirements of subsection (B). A notice of transfer must be filed with the Secretary of State and the affected municipalities or counties within ten days of the completion of the transfer. The Secretary of State is neither required nor authorized to act upon the notice.

(G) A holder of a state-issued certificate of franchise authority shall comply with any applicable federal law or regulation addressing a-la-carte programming options.

(H) The certificate of state franchise authority issued pursuant to this article may be terminated by the cable or video service provider by submitting written notice of the termination to the Secretary of State and the affected municipalities or counties. The Secretary of State is neither required nor authorized to act upon such notice.

(I) The state-issued certificate of franchise authority issued pursuant to this article supersedes and is in lieu of any franchise authority or approval required by Sections 58-12-10 and 58-12-30.

(J) The Secretary of State shall keep for public examination a record of all certificates applied for or granted pursuant to the provisions of this article.

(K) The holder of a state-issued certificate of franchise authority shall give written notification to a municipality or county of the date on which it will actually begin providing service in any part of such municipality or county.

HISTORY: 2006 Act No. 288, Section 4, eff May 23, 2006; 2007 Act No. 8, Section 2, eff March 30, 2007.