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The City of Portland, Oregon

Office for Community Technology

Broadband & Communications Policy, Cable Regulation & Consumer Protection and Utility Franchises, Licenses & Wireless

Phone: 503-823-5385

111 SW Columbia St, Suite 600, Portland, OR 97201

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Portland ROW Code FAQ

 

Below are a core set of questions that we believe will provide answers to your most pressing inquiries at this point in the process. We will continue to build out this FAQ as the process moves forward and we receive your feedback.

Date: October 2021 – Updated*

1. Who will this change impact?

 

The new, shared city code will apply to any current or future entity that provides a utility service and/or uses infrastructure in the right-of-way, whether or not the entity owns the infrastructure in the right-of-way.

In other words, these changes will apply, on a rolling basis (see question 7 below), to any entity that has an active franchise agreement with the City or that is subject to the existing utility license fee for use of the right-of-way. Any affiliates or subsidiaries will also be subject to the new code if those companies are also offering utility services in Portland.

For example, this would include: a utility providing electric, natural gas, cable, pipeline or telecommunications services. Resellers and voice over IP providers will also be subject to the new code. 

2.What will be different?

The new code will replace, over time, all active franchise agreements. The new code will also replace the Utility License Code (7.14).

The new code will:

 Require a 5-year license. (City to develop a standardized form, which will be administratively more simple than negotiating a franchise.)

  • Require an annual registration process to ensure the City has up-to-date information. 
  • Standardize interest rates for late payments, which may or may not be different from your current agreement. (All will be subject to the interest rate currently listed under the Utility License Code 7.14.)
  • Standardize penalties for violations from $100 - $1,000 per violation per occurrence, which may or may not be different from your current agreement. (Currently, the Utility License Code is a minimum of $500 or up to 2% of gross revenues. Franchise violations are typically set at $1000 per occurrence.)
  • Standardize due dates for payments.

 3. What will NOT be different?

The charge for the use of the right-of-way – 5% of gross revenues – will remain the same whether you are currently subject to a franchise agreement or utility license fee. Payments will still be made quarterly. (How the 5% is calculated will be clearly spelled out in the administrative rules – not in the new code.)

If you pay by foot or attachment, your cost will still be calculated in this way – and you will still be able to make payments annually.

To be very clear, the new code will not change the way entities apply for permits to physically access the right-of-way.

3.a Will there be a process by which the definition of gross revenues will be decided?*

As stated above, gross revenues will be clearly spelled out in the administrative rules. Know that before that decision gets made and before any new rule is decided, the Director must inform any interested parties of any new rules and provide a period for public comment. This is spelled out in the draft code.

At the conclusion of the public comment period, the Director will either adopt the proposed rule, modify it or reject it, taking into consideration the comments received. If a substantial modification is made, an additional public comment period will be held.

4. Why is the City making this change?

The City needs to streamline its work to most efficiently provide access to the right-of-way. Currently, the City negotiates and manages separate agreements that have different expiration dates, sometimes decades apart from one another. All entities that use the right-of-way should be playing by the same, and most up-to-date, rules.

5. Are there other cities that have done this?

Yes, other neighboring jurisdictions have shifted to a shared, standardized code. These changes mean the City will treat subject entities equitably and more efficiently than individually negotiated franchises.

6. What is the process and timeline for this work?

OCT will first engage existing users of the right-of-way. That includes other city bureaus as well as all private sector entities. This work will happen during the summer and fall of 2020. The process will include an invitation for comment from affected entities as well as public meetings for any community member to offer feedback. OCT’s goal is to have a solid draft of the proposed new code in January of 2022. 

To follow, the draft will be reviewed by the City Auditor and the City Attorney’s office. After that, the code will be filed for consideration by the City Council.

OCT’s goal is to have City Council approve the new code by June 30, 2022. The effective date of the new code will be January 1, 2023, though not all entities will be immediately subject to the new code (see question 7 below).

Timeline

 

Outreach to Existing Franchise/Code Entities

Summer/Fall 2021

Public Meetings/Public Comment Period

Winter 2021

Draft Right of Way Code

January 2022

Filed for City Council Consideration

March 2022

Effective Date

January 2023

7. If I have an active franchise agreement, will it be null and void on January 1, 2023?

Not necessarily. We are going to shift entities over to the city code on a rolling basis, depending on the expiration date of your existing franchise agreement.

For any entity with an expiration date PRIOR to January 1, 2023, or those currently operating under holdover tenant status, they will immediately shift to the city code on January 1, 2023. This also means that if your franchise agreement expires prior to January 1, 2023, the city will honor the agreement through December 31, 2022.

For any entity with an expiration date on or AFTER January 1, 2023, you will shift to the city code the day after your existing franchise agreement expires. For example, if your agreement expires in February 10, 2023, we will notify weeks prior to walk you through the process to shift you to the new code, which you would be subject to on February 11, 2023.

8. If I am immediately subject to the new code, when do I register?

Once the City Council passes the ordinance creating the new city code, OCT will send out an update and more detailed instructions. You will have sufficient notice and opportunity to apply for a 5-year license before the due date

9. If I am currently subject to the Utility License Code, how does the timeline affect me?

Because every entity will be subject to the new code, you will be invited to apply for a 5-year license prior to January 1, 2023 so that there is no gap in authorization.

10. My company would like to obtain a franchise prior to the implementation of the ROW code, is that possible?*

 Short answer: no. See below for more specific responses.

 Scenario 1: Entity already operates via the utility license code.

 Entity should continue to operate under the utility license code until the ROW code is implemented in January 2023.

 Scenario 2: Entity has a current franchise with the City of Portland.

 As stated above, for any entity with an expiration date PRIOR to January 1, 2023, or those currently operating under holdover tenant status, they will immediately shift to the city code on January 1, 2023. This also means that if your franchise agreement expires prior to January 1, 2023, the city will honor the agreement through December 31, 2022. 

For any entity with an expiration date on or AFTER January 1, 2023, you will shift to the city code the day after your existing franchise agreement expires. For example, if your agreement expires in February 10, 2023, we will notify weeks prior to walk you through the process to shift you to the new code, which you would be subject to on February 11, 2023. 

Scenario 3: Entity is a new entrant.

Entity should apply under the utility license code and will operate under the utility license code until the ROW code is implemented in January 2023.

Entities intending to open the Right-Of-Way and lay wires / conduit / pipes (or use on poles) must enter into a Letter of Agreement along with their utility license application to include insurance and bond requirements and fee structure.

If this applies to you, please contact us at ComTech@PortlandOregon.gov to get started.

11. I would like to offer comments immediately. Where do I send them?

Please send any comments to: ComTech@PortlandOregon.gov

Have questions or would like to set up a phone call with OCT staff? Please contact us by email (ComTech@PortlandOregon.gov) to set up a phone call.