TELECOMMUNICATIONS PERMIT ORDINANCE

Gulfport Code of Ordinances ch. 5, art. XIII

in effect

Gulfport Code of Ordinances § 5-311 Title.

Sec. 5-311. - Title. (1) Title. The title of the ordinance [from which this article derives] shall be "An Ordinance To Regulate The Use By Telecommunications Service Providers Of Public And City Rights-Of-Way And Property In The City Of Gulfport, Mississippi." (2) Common reference. The article may be commonly referred to as the "Telecommunications Permit Ordinance." (Ord. No. 2204, § II, 11-16-99)

Gulfport Code of Ordinances § 5-312 Policy and purposes.

Sec. 5-312. - Policy and purposes. (1) Policy. It shall be the policy of the governing authority of the City of Gulfport (herein "city") by application of this article to advance telecommunications services by encouraging competition among telecommunications providers to establish affordable rates and increased service options for local consumers, and to protect the public interest and existing utility service facilities by regulating the access to and use of streets, alleys, rights-of-way and other properties that are owned or dedicated by the city for municipal or public use. (2) General purpose. The general purpose of this article is to enable the city to exercise its historical rights, subject to limitations of state and federal law, to manage and control its public and city owned streets, alleys, rights-of-ways and other public and city-owned property in the municipality, and to require fair and reasonable compensation for such access by telecommunications service providers. (3) Objectives. The objectives of this article are: (a) To allow Gulfport's city government: 1. To preserve the physical integrity of it's public and municipal streets, alleys, rights-of-way and public or city-owned properties; 2. To control the orderly flow of vehicles and pedestrians; 3. To manage and coordinate telephone and telegraph cable and facilities in conjunction with other public utility facilities of various kinds located on, under, over, and crossing streets, alleys, rights-of-way, and properties owned or dedicated by the city for municipal or public use; 4. To coordinate construction schedules and require procedures for trenching, street cuts, and repairs required thereby; 5. To determine insurance, bonding and indemnity requirements; 6. To establish and enforce building codes when applicable to facility improvements in rights-of-way; and 7. To keep track of the various systems using the rights-of-way to prevent interference between them; (b) To establish a uniform method for requiring telecommunications providers to compensate the city on a competitively neutral and nondiscriminatory basis for use of city and public rights-of-way and properties; and (c) To encourage competition in the provision of telecommunications services by use of city and public rights-of-way and properties by telecommunications service providers without a competitive advantage or disadvantage among providers in their ability to obtain the use thereof. (Ord. No. 2204, § II, 11-16-99)

Gulfport Code of Ordinances § 5-313 Definitions.

Sec. 5-313. - Definitions. The governing authority of the City of Gulfport is the city council and mayor of the city, which is a municipal corporation organized, existing, and governed according to the mayor/council form of government as provided by the laws of the State of Mississippi. Gross receipts means all revenues determined according to accepted accounting principles originating or received in the city for recurring local services provided within the city limits and billed to an address in the city by telecommunications providers from the transmission or receipt of telephonic or other electronic messages or data, or from the sale or rental of equipment used to provide such communications services by facilities over or in city or public rights-of-way or property. Gross receipts shall not include customer premises equipment not located in, or using public or city rights-of-way or property. Gross receipts do not include taxes imposed, and/or assessed by law on subscribers, or revenues generated from sales to federal, state, city or local government. Permit contract is the written contract provided for by the telecommunications permit ordinance to be entered into between the City of Gulfport and the telecommunications provider, which shall be prepared by the legal department of the City of Gulfport and duly signed and executed on behalf of the city and the telecommunications provider upon such conditions as the contract and this article require. Permittee, under this article, is a telecommunications provider that has entered into a permit contract with the city and has been finally approved (or deemed to be approved) by the engineering department of the city to commence work in city or public rights-of-way or property in Gulfport, and to maintain the facilities installed therein. Rights-of-way or property means any street, alley, easement, or other right-of-way, or property in the city that is owned or dedicated by the city (or it's predecessor, Harrison County) for municipal or public use. This nomenclature excludes private property, which is not controlled by this article. Telecommunications provider, for purposes of this article, means any person or legal entity, including, but not limited to, corporations, partnerships of any kind, joint ventures, and associations or business trusts, requiring access to public or municipal rights-of-way or public or municipally owned property as hereinafter defined, for wire, cable or other transmission facilities or equipment for conveyance or reception of telephone or telegraph messages. (Ord. No. 2204, § II, 11-16-99)

Gulfport Code of Ordinances § 5-314 Permit contracts.

Sec. 5-314. - Permit contracts. (1) Permit contract. Telecommunications providers are required by this article to contract with the city before being permitted to lay, construct, install, and/or operate and thereafter maintain fiber optics or other telecommunications cable, or any appurtenances or appendages, apparatuses, appliances or other facilities for the transmission or receipt of telephone, telegraph or other electronic messages, data or communications in, on, under, across or over city or public rights-of-way or property (as defined in section 5-313 above) in the City of Gulfport. All contracts shall contain certain uniform and nondiscriminatory provisions, and require approval by the governing authority. No contract shall be unreasonably refused by the governing authority of the city to any telecommunications provider certified by the Public Service Commission of the State of Mississippi, who is not in violation of any local ordinance, regulation, or contract, or of any federal or state laws or regulations and has made proper application for a permit contract. A telecommunications provider shall be permitted to install operate and maintain facilities in city or public rights-or-way or property (as defined in section 5-313 above) when it and the city have entered into and executed a permit contract, the "permit process fees" hereinafter provided by subsection 5-315(3), have been paid by the telecommunications provider to the city, and a right to access city or public rights-of-way or property has been approved as provided by section 5-316 hereof. (2) Video cable company exemption and requirements. This article does not apply to cable companies operating cable and equipment in city or public rights-of-way or property for commercial video programming, except that cable companies providing commercial video programming services shall be required to enter into a franchise with the City of Gulfport under similar terms, conditions and limitations set forth in Ordinance No. 2019 by and between the City of Gulfport and Post-Newsweek Cable TV and shall comply with any federal, state, or local laws or regulations legally applicable to such video cable service provider. No telecommunications provider shall utilize city or public rights-of-way or property to provide commercial video programming until it has in effect an approved video cable franchise with the City of Gulfport. (3) Government exemption. Any department or agency of the City of Gulfport, Harrison County, State of Mississippi or the federal government requiring cable installation to be used exclusively for law enforcement, emergency and public service communications and not for profit shall be exempt from entering into a permit contract under this article, provided that said government department or agency shall notify the city engineering department and public works director/coordinator of the work schedule and provide proposed "as built" plans therefor prior to commencing any work or excavation in, on, across, adjacent to, or over city or public rights-of-way or property in the City of Gulfport. (4) Form and effect of contract. The "telecommunications permit contract" (herein "permit contract") shall be in writing, shall conform to and incorporate by inclusion or reference all of the conditions and requirements of this article. No contract or permit given by the City of Gulfport under this article shall be interpreted to grant the telecommunications provider an "exclusive" franchise, permit, or final approval for access and use of city or public rights-of-way or property. If any condition, clause, paragraph, section, or word of this article, or of the permit contract given under this article is, or shall become legally unenforceable, the same shall be severed therefrom, and all remaining conditions, clauses, paragraphs, sections or words shall be and continue to be in full force and effect. In the event that any clause or condition of a permit contract given pursuant to this article shall be in conflict with this article, the provisions of this article shall prevail. Where not in conflict with this article and legally enforceable, the permit contract and this article shall be uniformly enforced. This article shall not limit the form of permit contract on a case by case basis from including formal terms and conditions, or additional, or amended terms and conditions covering special circumstances, or provisions added to protect the public interest, or to amplify or effectuate the intentions of this article so long as said terms and conditions are not in conflict with this article and are not designed to give competitive advantage or special privilege to a telecommunications provider. (5) Term of permit contract. The term of the permit contract shall be specified in the permit contract, and shall be for the term of ten (10) years, unless a shorter period is agreed to by the telecommunications provider and the City of Gulfport. (6) Renewal of permit contract. At anytime during the period of six (6) months prior to the expiration of the term of a valid permit contract, the telecommunications provider shall be entitled to renewal of its contract for a new term for the same period as provided in subsection (5) by application to the city council, which will be approved subject to the following conditions: (a) Any information in the contract that is no longer current shall be corrected and a new contract with the same or similar provisions shall be executed. (b) An application renewal fee according to standard charges then imposed not to exceed five hundred dollars ($500.00) shall be paid to the city. (c) The applicant for contract renewal shall not be in violation of any city ordinance, its existing permit contract, or any state or federal law or regulation pertinent to its use of city rights-of-way or property, and may be required to present proof of current certification by the Public Service Commission of Mississippi. (Ord. No. 2204, § II, 11-16-99)

Gulfport Code of Ordinances § 5-315 Application and approval.

Sec. 5-315. - Application and approval. (1) Application for permit. A telecommunications providers permit as required by this article shall be applied for by written request to the office of the city attorney, unless another city office shall be designated by the mayor to receive the applications. The request shall be by letter unless the city shall provide a uniform application form. The application shall include the name of the applicant, status of the applicant (i.e. corporation, general partnership, limited partnership, etc.), the state of domicile, the domiciliary address and local address, if any, and a copy of the certificate of convenience and necessity, if required by state law, for the provider to act as a public utility according to the statutes of the State of Mississippi regulating public utilities (Sec. 77-3-2, et seq., Mississippi Code of 1972 Annotated, as amended). Further, said request shall state the proposed use of city or public streets and rights-of-way or property as defined herein, and the type of services intended by the use of public or city rights-of-way or property. The telecommunications provider shall furnish such additional information as the city attorney's office may reasonably and uniformly require to complete the permit contract. (2) Approval of contract. The city attorney's office shall prepare for execution by the telecommunications provider, the telecommunications permit contract using a standard form of contract for execution in triplicate by the telecommunications provider within five (5) days after receipt of a complete application; and immediately after the contract is executed by the telecommunications provider, the city attorney shall submit the contract to the mayor and president of the city council for scheduling on the agenda of the city council at the next regular council meeting according to the council's scheduling procedure. If the application and contract is in order, the council shall act at such meeting to authorize execution of the permit contract by the city, and to direct the city clerk or general finance office to accept payment of the permit process fee. A telecommunications provider's permit contract shall be approved, when the permit process fee is paid and the telecommunications provider receives duplicate signed originals or duplicate certified copies of the executed contract from the city clerk or council clerk. An original executed contract shall be retained by the council clerk to be appended to the council minutes as evidence of contract approval. (3) Permit process fees. The permit process fee to be paid to the City of Gulfport by the telecommunications provider in order to be permitted and to validate a permit contract shall be one thousand dollars ($1,000.00). The permit process fee shall be charged as a cost of process, including legal review and preparation of contract, and for engineering and public works review of application and plans and site inspection. (Ord. No. 2204, § II, 11-16-99)

Gulfport Code of Ordinances § 5-316 Plan review and permit to commence work.

Sec. 5-316. - Plan review and permit to commence work. (1) Engineering process and permit to commence work. (a) Approval required: No new cable, conduit, or facility construction, installation, excavation, expansion or enlargement of existing facilities in, on, under, across, or over city or public rights-of-way or property (as defined in section 5-313) shall be permitted or authorized under the permit contract until approved according to this section. Maintenance, repairs or replacement of facilities existing as of the effective date of this article, or of facilities already approved and installed under this article are not subject to this section, unless said work shall require relocation, enlargement or expansion of facilities. (b) Submissions: There shall be submitted to the engineering department of the City of Gulfport for engineering and public works review, the following: (i) an original (duplicate original) or a certified copy of the fully executed telecommunications permit contract and (ii) duplicate copies of plans, specifications, maps and other documentation, or data, if any, essential to review the proposed installation of transmission lines, conduit, equipment, and facilities to be constructed or installed with symbols, marks and annotations necessary to accurately identify all public or city ways, streets, easements lands, buildings, conduit or overhead poles or lines where the work is to be undertaken. Specifications as to grade, depth or height in which facilities shall be located shall be submitted where necessary or reasonably required to avoid potential interruption or impediment to existing or planned utility services. Maps and plans shall be drawn to scale or in a manner where distances can be accurately determined and shall allow proper review and interpretation. A proposed work schedule shall be submitted. Where a dangerous or hazardous situation or traffic hazard may occur as a result of the proposed work, an identification of safety measures to be taken may be required, if not submitted. (c) Review, approval/revocation: Engineering shall furnish a copy of plans and documentation to the public works department and coordinate review with the public works department, and within fifteen (15) days after receiving the documentation required by (b) above, the engineering department by letter or other official writing to the telecommunications provider shall (i) give final approval to commence work according to plans, or according to reasonable modifications or conditions specified in writing, or (ii) specify in writing to the telecommunications provider additional information or documentation required, after receipt of which the engineering department shall have five (5) days to complete review and respond in writing, or (iii) in the event that the engineering department in conjunction with the public works department determines that the work as planned cannot for good cause be allowed in city or public rights-of-way or property, it shall give refusal and its reason therefor in writing to the telecommunications provider. If refusal to permit the planned work is for a reason that cannot be cured because modification to plans required by (i) or (ii) above are not submitted and approved within six (6) months from the date of the city engineer's written notice, the permit contract shall be treated as revoked, and a new contract shall be required under section 5-314 to apply for a permit. Failure on the part of the engineering department to respond in writing as hereinabove provided in this subsection (c) within twenty-one (21) days after submittal as required by subsection (b) may be treated by the telecommunications provider as permit approval. (d) Notice of when work will commence. The telecommunications provider shall notify the engineering department in writing two (2) business days prior to commencing work as to the time and place that it shall commence work according to approved plans. Failure to give such advance notification, or to obtain a waiver of notice from the engineering department shall be grounds for the City of Gulfport to stop work, and/or to suspend or revoke permit approval. Any subsequent work permitted under this section, excluding maintenance, repairs or replacement work exempted under subsection (a) above in city or public rights-of-way or property shall require the aforesaid two (2) business days advance notice. (2) Appeals from refusal to allow work to commence. In the event that the engineering department refuses to allow work to commence or revokes the contract permit, the telecommunications provider shall have the right to appeal to the city council by submitting a written notice of appeal to the clerk of the city council within fifteen (15) days after the date of written refusal or permit revocation. Written notice of appeal shall state the reasons upon which the telecommunications provider is aggrieved by the final decision of engineering and/or public works, and the city council shall hear the appeal expeditiously and give a final decision with such conditions, if any, as it deems proper in conformity with this article. (Ord. No. 2204, § II, 11-16-99)

Gulfport Code of Ordinances § 5-317 Periodic fees.

Sec. 5-317. - Periodic fees. (1) Periodic fee requirements. A telecommunications provider, who has entered into a telecommunications permit contract with the City of Gulfport and has been approved for right to access and to commence work as required by section 5-316 above, shall pay periodic fees as a "permittee," to be determined according to subsection (2). This fee is charged permittees for continuing access to and use of city or public rights-of-way and property, and shall defray ongoing costs to the city from administering, monitoring, and regulating the maintenance, use and operation of the permittee of it's facilities installed in city or public rights-of-way or property, including the expense of on-site inspections and traffic and safety precautions. (2) Calculation and payment of periodic fees. The permittee required to pay periodic fees according to subsection (1) shall pay to the City of Gulfport a quarterly fee of two (2) percent of "gross receipts" as defined in section 5-313. The periodic fees becoming due hereunder shall be discounted by an amount equal to the amount paid by permittee for "permit process fee" under subsection 5-315(3). Gross receipts of "wholesale or discounted" revenue received from a reseller shall be accounted for separately and shall be subject to the quarterly fee of two (2) percent. The periodic fee is not in lieu of any other city fees or taxes assessable to the permittee. The periodic fee shall be due and payable on the fifteenth day of the month following each quarter of the year. The permit contract shall contain uniform provisions for computing and paying the periodic fee, and for auditing "gross receipts," and shall provide standard penalties for failure to timely furnish information or pay the periodic permit fees on gross receipts. (3) Exemption from fees. (a) Fees under subsection 5-315(3) and section 5-317 shall not be assessed to any telecommunications provider who is legally operating in city or public rights-of-way or property and not under obligation to pay fees on the effective date of this article, but upon expiration or termination of its permit, franchise or other right of access, this article and the fees required hereunder shall thereafter apply. This article and the fees provided hereunder shall be applicable to permit contracts for new, expanded, or extended service facilities in city or public rights-of-way and city or public property where no permit contract is in effect under this article. (b) Incumbent Bell Company. To the extent that the incumbent Bell Company is exempt from periodic fees on gross receipts required buy this section by proper application of Southern Bell Telephone & Telegraph Company vs. City of Meridian, 131 So. 2d 666 (Miss. 1961) or by operation of state or federal law, it shall not be charged a fee under this article. This article shall not be interpreted to preclude the city from levying utility taxes or fees to the incumbent company that may be legally entitled to assess or impose without respect to this article. (Ord. No. 2204, § II, 11-16-99)

Gulfport Code of Ordinances § 5-318 Obligations and default.

Sec. 5-318. - Obligations and default. (1) Location and compliance. The permittee shall construct, maintain and operate said transmission cable and facilities in such locations, and/or at such depths or heights, below or above the grades of rights-of-way or property surfaces as applicable safety codes require and according to plans and specifications submitted under subsection 5-316(1), and all ordinances, laws, or government regulations, federal, state, or local, now legally in force or which may hereafter legally take effect and be applicable to the construction, installation, repair or maintenance of said transmission cable or facilities or of other utility facilities located in, on, under or above city or public rights-of-way or property (as defined in section 5-313). Expansion, enlargement or relocation of facilities, not previously approved, shall require the same plan approval process required for initial plan approval under section 5-316 above, except that no new permit contract or permit process fee shall be required if a permit contract is already in effect. Maintenance, repair, and minor improvements of facilities properly in place shall not require a contract or further approval unless a safety hazard shall be caused by the construction. (2) Indemnity. (a) Permittees shall indemnify and hold the City of Gulfport, it's officers and employees harmless against any and all claims, lawsuits, judgments, costs, liens, losses, expenses, fees (including reasonable attorney's fees and costs of defense), proceedings, actions, demands, causes of action, liability, and suits of any kind and nature, including personal or bodily injury (including death), property damage, or other harm for which recovery of damages is sought that is found by a court of competent jurisdiction to be caused solely by the negligent act, error, or omission of the permittee, its agent, officer, director, representative, employee, affiliate, or subcontractor, while installing, repairing, or maintaining facilities in city or public rights-of-way or city or public property as defined in section 5-313, or resulting from noncompliance with approved plans and specifications of this article or violation of terms or conditions of the permit contract. The indemnity hereby required does not apply to any liability resulting from the negligence of the municipality, its officers, employees, or subcontractors. Where comparative negligence is adjudicated, damages shall be apportioned according to the laws of the State of Mississippi. The city does not by this article waive any statutory or common law immunity. (b) Telecommunications provider or City of Gulfport shall promptly advise the other in writing of any known claim or demand related to or arising out of providers activities in city or public rights-of-way or property. (3) Insurance. Permittee shall maintain workers-compensation insurance as required by law and employees liability and general liability insurance coverage, terms of which shall be provided in the permit contract. Where a company provides insurance, under a qualified self insurance plan, the city may accept coverage under this plan and require such certifications as it deems necessary to assure that the plan meets all state law requirements and is a reliable plan backed by satisfactory reserves. (4) Violation of permit. For violation of this article by the telecommunications provider, the City of Gulfport shall be entitled to prosecute enforcement action and/or other action for ordinance violation and for such penalties as may be provided for violation of a city ordinance or state law. Also, violation of the terms of this article or of the permit contract shall be an event of default of the permit contract, and in addition to other remedies available to the city, the city shall be entitled to specifically enforce performance, or to cancel the permit contract unless said default is cured by the telecommunications provider on or before thirty (30) calendar days after written notice of default is served by the city on the provider. (5) Transfer of telecommunications permit contract. Transfer or assignment of a permit contract granted under this article shall be effective only after notice of transfer is given by the telecommunications provider to the city, which shall be in writing and include the same information as to address, domicile, principal ownership, management, and other essential information required from the original telecommunications provider under subsection 5-315(1). No transfer or assignment shall relieve transferor from any obligation to the city existing at the time of transfer. Failure to pay accrued fees becoming due after transfer shall invalidate the permit contract transfer. (Ord. No. 2204, § II, 11-16-99)

Source: City of Gulfport, Mississippi, Code of Ordinances (Municode Library, library.municode.com)URL: https://library.municode.com/ms/gulfport/codes/code_of_ordinances?nodeId=PTIICOOR_CH5LIBURE_ARTXIIITEPEORFetched: 11/1/2026