CHAPTER 9-35
CARRIER AND UTILITY FRANCHISES AND REGULATION
9-35-1 Street lighting--Utility poles, pipes, and other facilities in public places--Rate regulation--Municipally owned utilities.
9-35-2 Street railway tracks in first or second class municipalities--Duration of franchise--Municipality's option to purchase.
9-35-3 Grant of franchise subject to approval by voters--Exception.
9-35-4 Adoption of franchise ordinance--Publication and notice of election.
9-35-5 Majority vote of voters required for franchise.
9-35-6 Maximum duration of franchise.
9-35-7 Extension of streets, alleys, sewers, and waterworks through railroad property--Restoration of railroad property.
9-35-8 Maintenance of railroad crossings and drainage works.
9-35-9 Maintenance by railroads of safety devices at crossings--Grade changes--Fencing of right-of-way.
9-35-10 Steam, heat, and refrigeration systems--Bond issues.
9-35-11 Buses and taxis--Intercity service.
9-35-12 Municipal bus or transit service authorized--Territory serviced.
9-35-13 Petition for bus or transit service.
9-35-14 Contents of petition for bus or transit service--Conduct of election.
9-35-15 Air pollution abatement in operation of municipal bus service.
9-35-16 "Community antenna television system" defined.
9-35-17 Need for local regulation of CATV systems.
9-35-18 Regulation of CATV systems by ordinance.
9-35-19 Service requirement for CATV systems--Performance bonds--Expiration dates.
9-35-20 Quality standards for CATV systems--Regulation of rents or rates and installation charges.
9-35-21 Map of underground equipment of CATV system.
9-35-22 Occupational tax against CATV system.
9-35-23 Prior ordinances for operation of CATV systems validated.
9-35-24 Construction, maintenance, and lease of CATV system by municipality.
9-35-25 Definitions.
9-35-26 Authority of franchising authority to require franchise of cable operator--Ordinance.
9-35-27 Grant of additional franchises to other cable operators--Terms.
9-35-1. Street lighting--Utility poles, pipes, and other facilities in public places--Rate regulation--Municipally owned utilities.
Every municipality may regulate and provide for the lighting of streets, laying of gas or water pipes, and erection of lampposts, electric towers, and apparatus in connection therewith; to fix and determine the charges for telephone and telephone service connections subject to the powers of the Public Utilities Commission; to regulate the placement of water pipelines, the erection of poles for telegraph, telephone, or electric wires in the public grounds, streets, or alleys, and the placing of wire thereon and to require the removal thereof from such places and to require the placing of such wires under ground; and to grant and regulate rights and franchises for such purposes. However, no franchise or any franchise election may be required of any public utility which has been assigned a service area pursuant to § 49-34A-44, telephone company subject to chapter 49-31, or a rural water system. Municipally owned electric utilities may regulate the sale and use of electric power and energy and fix and determine their own rates therefor provided that nothing contained herein may be construed to prevent a municipality from forming its own electric system.
Source: SL 1890, ch 37, art V, § 1, subdiv 13; RPolC 1903, § 1229, subdiv 13; SL 1913, ch 119, § 53, subdiv 13; RC 1919, § 6169 (18); SL 1921, ch 307; SDC 1939, § 45.0201 (78); SL 1975, ch 283, § 57; SL 1976, ch 296, § 29; SL 1978, ch 65; SL 1985, ch 65.
9-35-2. Street railway tracks in first or second class municipalities--Duration of franchise--Municipality's option to purchase.
Every first or second class municipality shall have power to permit, regulate, or prohibit the constructing or laying of tracks of any street railway in any street, alley, or public place; but such permission shall not be for a longer time than twenty years, and any contract in pursuance thereof shall provide that at the option of the municipality, declared not more than three years nor less than one year before the expiration of such permission, the plant and property, if any, belonging to or used by the grantee named in such permission, or his successor in interest, shall, at the termination of such permit or franchise, upon the payment of the fair valuation thereof, exclusive of any franchise valuation, be and become the property of the municipality; but such option shall not be exercised unless the municipality shall then have authority to acquire and operate such a plant or property.
Source: SL 1890, ch 37, art V, § 1, subdiv 24; SL 1901, ch 221, § 1; RPolC 1903, § 1229, subdiv 24; SL 1907, ch 92, § 1; SL 1911, ch 96; SL 1913, ch 119, § 53, subdiv 24; RC 1919, § 6170 (2); SDC 1939, § 45.0202 (10); SL 1992, ch 60, § 2.
9-35-3. Grant of franchise subject to approval by voters--Exception.
The governing body may not grant a franchise to any public utility authorizing it to occupy any of the streets, alleys, or public places of the municipality without submitting the proposition of issuing such franchise to a vote of the voters thereof at a general or special election called for the purpose. However, no franchise election is required when granting a franchise to a natural gas utility which is regulated by the Public Utilities Commission.
Source: SL 1913, ch 119, § 123; RC 1919, § 6248; SL 1921, ch 310; SDC 1939, § 45.1006; SL 1986, ch 79.
9-35-4. Adoption of franchise ordinance--Publication and notice of election.
Before submitting such proposition the governing body shall first approve the proposed franchise by an ordinance duly adopted and published incorporating the proposed franchise in full and providing for submission of such proposition at an election to be held not sooner than thirty days after the publication thereof.
The notice of election and the proposition so submitted shall refer to such ordinance by number and shall include the full title thereof.
Source: SL 1921, ch 310; SDC 1939, § 45.1006.
9-35-5. Majority vote of voters required for franchise.
No such franchise or franchise ordinance shall be effective, except as otherwise specifically provided, unless the proposal to grant the same be approved at such election by a majority vote of the voters of such municipality voting thereon.
Source: SL 1913, ch 119, § 53, subdiv 78; SL 1913, ch 119, § 123; RC 1919, § 6248; SL 1921, ch 310; SDC 1939, § 45.1006.
9-35-6. Maximum duration of franchise.
Unless otherwise specifically provided, no franchise shall be granted for a longer period than twenty years.
Source: SL 1890, ch 37, art V, § 1, subdiv 24; RPolC 1903, § 1229, subdiv 24; SL 1903, ch 221; SL 1907, ch 92, § 1; SL 1913, ch 119, § 53, subdiv 24; SL 1913, ch 119, § 123; RC 1919, § 6248; SL 1921, ch 310; SDC 1939, § 45.1006.
9-35-7. Extension of streets, alleys, sewers, and waterworks through railroad property--Restoration of railroad property.
Every municipality shall have power to extend any street, alley, or highway over, under, or across, or to construct any sewer, water pipe, or main under or through any railroad track, right-of-way, or land of any railroad company within the corporate limits, but where no compensation is paid therefor, the municipality shall restore such track, right-of-way, or land to its former state as nearly as may be and so as not to impair its usefulness.
Source: SL 1890, ch 37, art V, § 1, subdiv 71; RPolC 1903, § 1229, subdiv 71; SL 1913, ch 119, § 53, subdiv 71; RC 1919, § 6169 (8); SDC 1939, § 45.0201 (92).
9-35-8. Maintenance of railroad crossings and drainage works.
Every municipality shall have power to require railroad companies to make, keep open, and repair their crossings of streets and public roads, and to require them to make, keep open, and repair ditches, drains, sewers, and culverts along and under their tracks, so that drainage of adjacent property shall not be impeded and the right-of-way shall be properly drained.
Source: SL 1909, ch 50; RC 1919, § 6169 (16); SDC 1939, § 45.0201 (93).
9-35-9. Maintenance by railroads of safety devices at crossings--Grade changes--Fencing of right-of-way.
Every first or second class municipality shall have power to require railroad companies to keep flagmen and maintain lights at railroad crossings of streets and provide for the safety of persons and property; to compel them to construct, maintain, and operate gates at railroad crossings of streets when the keeping of a flagman is not sufficient protection; to compel them to raise or lower their tracks to conform to any grade which may be established by the municipality and to keep such tracks on the level with the street or highway surface, so that such tracks may be crossed at any place on such street or highway; to require them to fence their railroads and construct and repair cattle guards, viaducts, or overhead crossings, and to provide for and change the location, grade, and crossing of any railroad; all subject to the powers vested in the Public Utilities Commission.
Source: SL 1890, ch 37, art V, § 1, subdiv 25 to 27; RPolC 1903, § 1229, subdiv 25 to 27; SL 1913, ch 119, § 53, subdiv 25 to 27; SL 1913, ch 122; RC 1919, § 6170 (3) to (5); SDC 1939, § 45.0202 (9); SL 1992, ch 60, § 2.
9-35-10. Steam, heat, and refrigeration systems--Bond issues.
Every first or second class municipality shall have power to establish, maintain, and operate, and to regulate the construction or operation of conduits of railroads, or other means of transit or transportation, and of plants and equipment for the production or transmission of steam, heat, or refrigeration, and to issue bonds for such purposes.
Source: SL 1913, ch 119, § 53, subdiv 14; RC 1919, § 6170 (1); SDC 1939, § 45.0202 (11); SL 1992, ch 60, § 2.
9-35-11. Buses and taxis--Intercity service.
The governing body of each municipality in this state is empowered and vested with exclusive jurisdiction to license, regulate, fix the routes of travel, and the speed and point for stops, of all motor carriers of passengers, operators of taxicabs and motor buses conducting operations in such municipality or in a zone adjacent thereto not a part of another municipality and not to exceed two miles around the boundaries of such municipality. When such transportation service is being rendered between adjoining municipalities, the governing bodies of each municipality may act jointly to regulate intercity service.
Source: SL 1953, ch 272, §§ 1, 2; SDC Supp 1960, § 45.0201-1 (13); SL 2023, ch 25, § 1.
9-35-12. Municipal bus or transit service authorized--Territory serviced.
A municipality may, by vote of its voters as provided in §§ 9-35-13 and 9-35-14, provide bus or transit service within the municipality or a zone adjacent thereto, enter into agreements with other persons for such services, and appropriate funds for such purposes.
Source: SL 1970, ch 65, § 1; SL 1995, ch 48.
9-35-13. Petition for bus or transit service.
Fifteen percent of the registered voters, based upon the total number of registered voters at the last preceding general election may petition for a special election as to the exercise of any of the powers referred to in § 9-35-12.
Source: SL 1970, ch 65, § 2; SL 1988, ch 63, § 8.
9-35-14. Contents of petition for bus or transit service--Conduct of election.
The petition shall set forth the question or questions which the petitioners desire submitted to the voters, and shall be filed with the city auditor. The form of such petition and the conduct of the election shall be carried on in the manner set forth by chapter 9-20.
Source: SL 1970, ch 65, § 3.
9-35-15. Air pollution abatement in operation of municipal bus service.
Municipalities providing bus or transit service under the provisions of §§ 9-35-12 to 9-35-14, inclusive, shall take all reasonable measures to abate and prevent air pollution caused by the operation of such bus or transit service.
Source: SL 1970, ch 65, § 4.
9-35-16. "Community antenna television system" defined.
"Community antenna television system," hereinafter referred to as "CATV system" or "system" means a system of coaxial cables or other electrical conductors and equipment used or to be used primarily to receive television or radio signals directly or indirectly off-the-air and transmit them to subscribers for a fee.
Source: SL 1972, ch 52, § 1.
9-35-17. Need for local regulation of CATV systems.
CATV systems are hereby declared to be a business affected with such a public interest that they must be regulated locally.
Source: SL 1972, ch 52, § 2.
9-35-18. Regulation of CATV systems by ordinance.
Notwithstanding the provisions of § 9-35-3, all municipalities shall have exclusive jurisdiction by ordinance to regulate, prohibit, and consent to the construction, installation, operation, and maintenance of CATV systems within their corporate limits.
Source: SL 1972, ch 52, § 3.
9-35-19. Service requirement for CATV systems--Performance bonds--Expiration dates.
All municipalities may require every person offering a CATV system to furnish any person applying therefor along lines of its wires, cables, or other conduits, with such service and may require performance bonds or expiration dates contingent upon construction or commencement of operations.
Source: SL 1972, ch 52, § 3.
9-35-20. Quality standards for CATV systems--Regulation of rents or rates and installation charges.
All municipalities may prescribe reasonable quality standards for CATV systems and regulate and fix reasonable and compensatory rents or rates for such system, including installation charges.
Source: SL 1972, ch 52, § 3.
9-35-21. Map of underground equipment of CATV system.
Municipalities may require the filing with the municipality by the person constructing, installing, operating, or maintaining a CATV system of a proper map showing the exact location of all underground cables and equipment, together with a statement showing the exact nature of the same.
Source: SL 1972, ch 52, § 4.
9-35-22. Occupational tax against CATV system.
Municipalities may, by appropriate ordinance, levy an annual occupational tax against any person now maintaining and operating any CATV system within its boundaries; and may levy an annual occupation tax against any person hereafter constructing, installing, operating, or maintaining a CATV system.
Source: SL 1972, ch 52, § 5.
9-35-23. Prior ordinances for operation of CATV systems validated.
All ordinances, permits, rights, or authorities heretofore adopted granting the right to install and to operate a CATV system, whether or not an election was held thereon, are hereby validated.
Source: SL 1972, ch 52, § 6.
9-35-24. Construction, maintenance, and lease of CATV system by municipality.
All municipalities which have never granted a franchise for cable television prior to July 1, 1988, may construct, maintain, and lease to others for operations community antenna television systems as defined in § 9-35-16; may issue revenue bonds pursuant to the provisions of chapter 9-40 for such purposes; and may combine such a system with other municipal systems and services into a single utility.
Source: SL 1982, ch 78; SL 1988, ch 79.
9-35-25. Definitions.
Terms used in §§ 9-35-25 to 9-35-27, inclusive, mean:
(1) "Cable operator," any person who provides cable service over a cable system;
(2) "Cable service," the one-way transmission to subscribers of video programming or other programming service and the subscriber interaction, if any, which is required for the selection or use of such video programming or other programming service;
(3) "Cable system," a facility consisting of a set of closed transmission paths and associated signal generation, reception, and control equipment that is designed to provide cable service to multiple subscribers within a community. The term does not include a facility that serves subscribers without using the public right-of-way; a facility of a telecommunications company that provides telecommunications service as defined and regulated by chapter 49-31, except to the extent that the facility is used to transmit video programming directly to subscribers, unless the extent of such use is solely to provide interactive on-demand services;
(4) "Franchise," an authorization, established by ordinance, issued by a franchising authority, which authorizes the construction and operation of a cable system;
(5) "Franchising authority," a municipality;
(6) "Other programming service," information that a cable operator makes available to all subscribers generally;
(7) "Public, educational, or governmental access facilities," channel capacity designated for public, educational, and governmental use and the facilities and equipment for the use of such channel capacity; and
(8) "Video programming," programming provided by, or generally considered comparable to programming provided by, a television broadcast station.
Source: SL 2005, ch 53, § 1.
9-35-26. Authority of franchising authority to require franchise of cable operator--Ordinance.
A franchising authority may require a franchise of any cable operator for the operation of a cable system within its jurisdiction. The exercise of such authority shall be pursuant to an ordinance detailing the basic requirements for a franchise and the terms and conditions for any other contractual arrangement thereafter deemed appropriate and consistent with §§ 9-35-25 to 9-35-27, inclusive, and federal law.
Source: SL 2005, ch 53, § 2.
9-35-27. Grant of additional franchises to other cable operators--Terms.
A franchising authority may grant one or more additional franchises to other cable operators under terms that are not substantially more favorable than that which the cable operator designated by § 9-35-26 is required to meet. The terms that may not be substantially more favorable are with regard to right-of-way access; public, educational, or governmental access facilities requirements; and franchise fees.
Source: SL 2005, ch 53, § 3.
