Request By:
Mr. James P. Pruitt, Jr.
Attorney at Law
The Call Building
Pikeville, Kentucky 41501
Opinion
Opinion By: Robert F. Stephens, Attorney General; By: Charles W. Runyan, Assistant Deputy Attorney General
On behalf of the Pike Fiscal Court you have drafted an ordinance governing Cable Television Franchises within Pike County.
The question has arisen as to whether or not Pike Fiscal Court is the proper franchise authority for areas which may fall within incorporated municipalities and cities. You thus request an opinion as to the effect of an attempt by the Pike Fiscal Court to grant Cable Television Franchises which extend into a city's incorporated area.
Section 164 of the Kentucky Constitution has been held to be self-operative and confers upon municipalities and counties authority to grant franchises pertaining to subjects over which they were given supervisory jurisdiction by the laws of the state. Christian-Todd Telephone Co. v. Commonwealth, 156 Ky. 557, 161 S.W. 543 (1913); Irvine Toll Bridge Co. v. Estill Co., 210 Ky. 170, 275 S.W. 634 (1925); Tri-State Ferry Co. v. Birney, 235 Ky. 540, 31 S.W.2d 932 (1930); and Warfield Natural Gas Co. v. Lawrence County, 300 Ky. 410, 189 S.W.2d 357 (1945). Since fiscal courts have control over the use of county roads and bridges (not state highway projects) within their respective counties [KRS 67.080 and KRS Chs. 178 and 179], it is our opinion that counties, through their fiscal courts, are authorized to grant franchises for the use of the public ways of the counties by television antenna cable systems pursuant to § 164, Kentucky Constitution.
Likewise, in City of Owensboro v. Top Vision Cable Co. of Ky., Ky., 487 S.W.2d 283 (1972), the court held that a city may grant a franchise covering the operation of a community antenna television service within a city. The court described such a franchise as an agreement between the granting authority and the holder, such agreement partaking of the usual incidents of a contract. Here again a city's right to apply the provisions of §§ 163 and 164 of the Constitution rests upon the city's statutory supervisory control over a city's streets or ways. See § 163, Kentucky Constitution, KRS Ch. 96, KRS 85.140, 93.050, 94.110, 94.360, and Ray v. City of Owensboro, Ky., 415 S.W.2d 77 (1967).
We now come to the question as to whether a fiscal court can grant a cable television franchise involving territory within the corporate boundaries of a city located in the county in question. We do not think so. There are at least two reasons for this conclusion. For one thing, since a city has exclusive jurisdiction over city streets or ways, the fiscal court cannot impinge upon such exclusive authority to be exercised by the city over such ways within its boundaries. Thus a fiscal court can only exercise its franchise authority in connection with roads or ways located within the county boundaries, but excluding streets or ways located within municipal boundaries. Secondly, the language in Ray v. City of Owensboro, above, suggests strongly that the number of franchises to be granted by a particular granting authority would be left to the governing body of the city or county, depending upon public necessity. The court wrote that "only where the public interest demands should competition be restrained or limited." Thus if it is possible for a local government to grant an exclusive franchise, it follows that it would be impossible for a city to grant an exclusive franchise and then suffer the fiscal court's granting another exclusive franchise in the same city territory.
Even considering the wide powers vested in fiscal courts by the Home Rule statute, KRS 67.083, it is our opinion that even the latter statute does not permit a fiscal court to cross over into municipal territory with its cable television franchises, since the city's exclusive-authority-over-streets-statutes would be in conflict with such attempted county action.