Did AT&T Kentucky need Louisville's new approval to carry IP video over facilities covered by its 1886 telephone franchise?

Plain-English summary

Kentucky's Attorney General concluded that a successor to the Ohio Valley Telephone Company's 1886 franchise could add IP-enabled video service through its existing Louisville Metro rights-of-way without seeking another legislative or municipal authorization. The old franchise covered the use of public roadways for telephone poles, lines, and related apparatus, and the Louisville council had consented to it in 1886. The AG said that adding video transmission to those facilities did not require a new franchise approval.

The opinion found no Kentucky authority directly deciding whether another communication service exceeded this historic telephone franchise. It used decisions from other states that allowed television signals to travel over telephone facilities covered by older easements and found no material distinction for IP-enabled video. Its conclusion was confined to additional services through existing rights-of-way. A footnote expressly left new-construction permits outside the question, and another declined to decide whether federal or state cable-provider laws applied.

Currency note

This opinion was issued in 2008. Subsequent statutory amendments, court decisions, or later AG opinions may have changed the analysis. Treat this page as historical context, not current legal advice. Verify current law before relying on any specific rule, deadline, or remedy mentioned here.

Common questions

Q: Did AT&T Kentucky need a new Louisville franchise approval for IP video? A: The AG said no for service carried through the existing rights-of-way of the 1886 franchise's successor. It concluded that adding IP-enabled video did not require additional legislative or municipal authorization.

Q: Did the opinion eliminate permits for new work in Metro rights-of-way? A: No. A footnote said the question concerned additional services, not construction of new facilities, and expressly declined to address Louisville Metro's construction-permit ordinance.

Q: Did the AG decide whether IP video was regulated as cable television? A: No. The opinion said federal and state laws governing cable-television providers were outside the question presented.

Background and statutory framework

The 1886 legislative act authorized Ohio Valley Telephone Company to operate telephone systems and use highways and streets for its lines, subject to Louisville's consent within the city. Louisville gave that consent by ordinance. The AG treated the resulting perpetual franchise as transferable and identified AT&T Kentucky as its successor. The legislators asked whether that successor could use or enhance existing facilities to provide IP-enabled video without another municipal approval.

The AG described the franchise as a right to use public roadways for communication facilities. Because Kentucky law had not resolved the exact technology question, it relied by analogy on out-of-state decisions about television transmission over telephone and telegraph lines. The conclusion covered the service addition through existing rights-of-way, while leaving new construction and cable-regulation questions open.

Citations and references

• 1885-1886 Session Acts, ch. 511: the legislative franchise examined in the opinion.
• OAG 62-644: earlier Kentucky AG opinion quoted for the franchise's original terms.

Source

• Landing page: https://kdla.access.preservica.com/uncategorized/IO_d961038e-aee1-40c8-8d7d-6193b980221a/
• Original PDF: https://kdla.access.preservica.com/download/file/IO_d961038e-aee1-40c8-8d7d-6193b980221a

Original opinion text

OAG 08-007

August 6, 2008

Subject: Whether the perpetual legislative franchise granted to the Ohio Valley Telephone Company and ratified by the City of Louisville in 1886 requires additional mu- nicipal approval before IP-enabled video services can be provided through existing rights-of-way

Requested by: Senator Denise Harper Angel 35th Senate District

Representative Ron Crimm
33rd Legislative District

Written by: James M. Herrick
Assistant Attorney General

Syllabus: A successor to the 1886 telephone franchise may add IP-enabled video transmission to its existing telecommunications services without securing fur- ther approvals.

Statute construed: 1885-1886 Session Acts, ch. 511

OAG cited: OAG 62-644

Opinion of the Attorney General

On April 3, 1886, the Ohio Valley Telephone Company was cre- ated as a corporate body by an act of the Kentucky General Assembly empowering it “to purchase, construct, maintain and operate, within OAG 08-007 Page 2

this State and elsewhere, telephone lines, exchanges and systems,” and providing that “[t]he said company may construct, equip and maintain said telephone systems and exchanges, and erect poles and string wires thereon, and operate its telephone lines over, along or un- der any highway, street or alley in the city of Louisville, with and by the consent of the general council of said city.” OAG 62-644. The act de- clared that “the said company may also construct, equip and maintain telephone lines along, over or under the highways, streets and alley, and across any water-course within this Commonwealth, so as not to obstruct the same.” (1885-1886 Session Acts, ch. 511, § 5.) This leg- islative act has been described as “an irrevocable, perpetual legislative franchise to maintain poles and lines upon any or all highways in the Commonwealth in such a manner as to afford no obstruction to public use.” Southern Bell Tel. & Tel. Co. v. Com., 266 S.W.2d 308, 310 (Ky. 1954).

The necessary consent of the city of Louisville was obtained through an ordinance passed on August 17, 1886. City of Louisville v. Cumberland Tel. & Tel. Co., 224 U.S. 649 (1912). Ohio Valley’s perpet- ual legislative franchise, having the nature of a property right, was transferable to successor entities. Id. Its current successor is AT&T Kentucky, which has acquired the franchise after a series of con- veyances. Senator Denise Harper Angel and Representative Ron Crimm have requested an opinion on the following question: “May a telecommunications service provider, pursuant to its statewide fran- chise, without municipal approval, use and/or enhance its existing transmission facilities within a municipality’s rights-of-way for the pur- pose of providing services other than those currently provided, includ- ing IP-enabled video services?”

The question presented, therefore, is whether the perpetual fran- chise originally granted in 1886 for telephone purposes is limited to telephone service only, or can include the use of the same rights-of- way for other forms of telecommunication without the franchisee’s having to secure additional municipal approval from the Louisville/Jef- OAG 08-007 Page 3

ferson County Metro Government. 1 If the statewide franchise is broad enough to include forms of communication other than simple tele- phony, then the city council’s ratification in 1886, using similar lan- guage to the act of the General Assembly, may be construed as equally broad.

A franchise “is a right or privilege granted by a sovereign power to a party to do some act which such party could not do without a grant from the government.” Eastern Ky. Resources v. Arnett, 934 S.W.2d 270, 275 (Ky. 1996). The privilege granted to the Ohio Valley Telephone Company and its successors is, in essence, the right to use the public roadways for its poles, lines, and apparatus.2 We have found no Kentucky authority stating whether the provision of other communi- cation services in addition to traditional telephone service is in excess of the scope of the 1886 franchise for “telephone systems.” Some em- inent-domain cases from other jurisdictions, however, provide useful guidance on this question by analogy.

In Ohio Tel. & Tel. Co. v. Steen, 85 N.E.2d 579 (Ohio 1949), the Ohio Court of Common Pleas found that where a communications com- pany had the right to appropriate private land for telephone and tele- graph lines, the fact that the cables would later be used also for televi- sion transmissions did not alter the purpose for which the condemna- tion was taking place. The court opined that “the transmission of tele- vision is merely an advancement or improvement in the art of telegra-

1
We do not address the issue of whether a telephone company providing IP-enabled video services is subject to federal or state laws governing cable television providers, as that question is not presented here. 2 In a letter to this Office dated July 21, 2008, Jefferson County Attorney Irv Maze re - lates that under Chapter 53 of the Louisville/Jefferson County Metro Code of Ordi- nances, “any person who for any purpose encroaches on Metro rights-of-way for pur- poses of constructing underground conduits or facilities must obtain a permit from the Metro Department of Public Works & Assets and is subject to the regulation of the Department while so doing. AT&T Kentucky, as well as its predecessors, have ac- knowledged that particular regulatory regime, and have always fully complied with it.” Since the question here concerns the provision of additional services, not the construction of new facilities, we need not address Chapter 53. OAG 08-007 Page 4

phy and telephony and therefore the right of eminent domain for tele- graph and telephone purposes conferred by [statute] is applicable to television.” Id. at 580.

Similarly, in Ball v. American Tel. & Tel. Co., 86 So.2d 42 (Miss.
1956), the Supreme Court of Mississippi addressed the question: “May a telephone and telegraph company, which has constructed a tele- phone and telegraph cable line under an easement acquired by exer- cising the right of eminent domain, use the facilities thus constructed for television transmission along with telephone and telegraph trans- mission?” Id. at 44. The court’s analysis was as follows:

Television is but one of many scientific achievements of the past few decades made possible by developments of the carrier art. Some of the others are radio, teletype, and the phototelegraph, each of which employs electrical im- pulses in the transmission process. Transmission tech- niques developed by or as an adjunct of the telephone business has made possible the services performed by these devices. We should not construe the eminent do- main statutes so as to require the telephone and telegraph companies to secure new easements for every new device that employs the use of electrical impulses even when the new device performs a function other than the transmis- sion of sound or articulate voice. To do so would lead to absurd and unreasonable results. We conclude that televi- sion transmission is an integral part of the telephone and telegraph business as it has developed and now exists. It follows that an easement acquired by eminent domain for telephone and telegraph lines, as the statute authorizes, may be used for television transmission along with other telephone and telegraph purposes.

We are confident that we commit no sin against the rights of private property. There is in fact no additional servitude on the servient estate. The cable that was laid under the appellant’s land was constructed by authority of OAG 08-007
Page 5

the statute as a new telephone and telegraph line, and ap- pellant has been tendered full payment for the right to lay and maintain the cable. What concern is it then whether the silent and invisible impulses flowing through the cable carry radio, teletype, telephotography, telephone, tele- graph, or television communication?

Id. at 45; see also Pacific Tel. & Tel. Co. v. City of Los Angeles, 282 P.2d 36 (Cal. 1955).

Under this analysis, we perceive no material distinction between television transmissions and IP (Internet Protocol) -enabled video ser- vices. Therefore, based on this analysis and having considered the in- put of interested parties, it is our opinion that the perpetual legislative franchise would enable a successor entity of the Ohio Valley Telephone Company to provide such services within its existing rights-of-way in the Louisville Metro area without securing additional legislative or mu- nicipal authorizations.3

Jack Conway
Attorney General

James M. Herrick
Assistant Attorney General

3
This conclusion is consistent with opinions rendered by the Attorneys General of Al- abama, Mississippi, and Oklahoma. See Al. Op. Atty. Gen. No. 2008-021 (December 14, 2007); Miss. A.G. Opinion No. 2007-00486 (September 28, 2007); Okl. A.G. Opin. No. 06-15 (May 3, 2006).