Alabama Advisory Opinions October 09, 2002: AGO 2003-006 (October 9, 2002)

AGO 2003-006.

Dear Mr. Bussman:

This opinion of the Attorney General is issued in response to your request on behalf of the Improvement Authority of the City of Fort Payne.

QUESTION 1

Whether, pursuant to section 11-50B-8(g) of the Code of Alabama, the governing body of the City of Fort Payne must hold an election prior to authorizing the Improvement Authority's proceeding to acquire, establish, purchase, construct, maintain, lease, or operate a cable system, if no petition, as provided in subsection (c), is filed with the clerk of the City of Fort Payne within the time prescribed under subsection

(b). FACTS AND ANALYSIS

Municipalities and municipal instrumentalities are given the authority to "acquire, establish, purchase, construct, maintain, enlarge, extend, lease, improve, and operate cable systems, telecommunications equipment and telecommunications systems, and furnish cable service, interactive computer service, Internet access, other Internet services, and advanced telecommunications service, or any combination thereof" in accordance with certain provisions. ALA. CODE § 11-50B-3 (Supp. 2002). Before a governing body of a municipality or municipal instrumentality may begin to provide and operate cable service, the governing body must conduct a public hearing. ALA. CODE § 11-50B-8(b) (Supp. 2002). Your request states that the Improvement Authority of the City of Fort Payne has scheduled a public hearing for the purpose of providing cable service. A petition from the qualified voters of the municipality may be submitted to the municipality in which the Improvement Authority is organized within 30 days after the date of publication of the notice of the public hearing. Id. The petition may request that an election be held to determine whether the qualified electors of the municipality favor the proposed furnishing of cable service by the Improvement Authority. ALA. CODE § 11-50B-8(c) (Supp. 2002).

Your question is whether the City of Fort Payne must hold an election if no petition is filed within the time period prescribed. The answer is no. If no petition is filed, or if the petition is insufficient, the Code provides that the governing body of the City of Fort Payne may, at its discretion, determine whether to authorize the Improvement Authority's proceeding to provide cable service. ALA. CODE § 11-50B-8(g) (Supp. 2002).

The City of Fort Payne is not required to hold an election to determine whether the Improvement Authority may proceed to acquire, establish, purchase, construct, maintain, lease, or operate a cable system if no petition is timely filed or if the petition filed is insufficient.

QUESTION 2

Whether, pursuant to section 11-50B-8(h) and (i) of the Code of Alabama, the governing body of the City of Fort Payne may designate a day for the holding of a special election when a petition, as provided in subsection (c), has been filed and there is no previously scheduled general or special municipal election.

If a petition is filed and an order is entered in favor of the sufficiency of the petition, as set forth in section 11-50B-8 of the Code of Alabama, not more than 60 days before and not less than 30 days before a previously scheduled general municipal election or a special municipal election, the petition question shall be presented at that scheduled general or special municipal election. ALA. CODE § 11-50B-8(h) (Supp. 2002). Subsection (h) provides that, if there is no previously scheduled general or special municipal election, the governing body of the municipality, at its next regular meeting following presentation of the petition or the final order concerning sufficiency of the petition, shall designate a day for holding the election, which shall not be less than 30 days nor more than 60 days from the date of the regular meeting. Id . Subsection (i) provides that unless otherwise provided, the election laws governing the conduct of municipal elections shall apply to this election. ALA. CODE § 11-50B-8(i) (Supp. 2002). Under general municipal election laws, special municipal elections must be held on the second or fourth Tuesday of the month ordered by the municipal governing body. ALA. CODE § 11-46-21 (1992).

When an election is required to be held, and there is no previously scheduled general or special municipal election, the City of Fort Payne must designate a special election date in accordance with sections 11-50B-8 and 11-46-21 of the Code of Alabama.

QUESTION 3

Whether, pursuant to section 11-50B-8(l) of the Code of Alabama, a municipal election is required before the Improvement Authority of the City of Fort Payne may commence furnishing telecommunications services, subject to the approval of the governing body of the City of Fort Payne

FACTS AND ANALYSIS

Subsection (l) of section 11-50B-8 requires the governing body of a public provider of telecommunications services to conduct a public hearing before these services may be furnished. ALA. CODE § 11-50B-8(l) (Supp. 2002). Nothing in this subsection, or any other provision of section 11-50B-8, requires the governing body of the municipality to hold an election before telecommunication services may be provided. The right to petition for an election to authorize these services (similar to the petition to authorize cable service) is not set forth in the statute. Accordingly, an election is not required, and the governing body of the municipality, within its discretion, may make a determination, after the public hearing, whether to authorize the proceeding for telecommunications services.

An election is not required to be held before the City of Fort Payne authorizes the Improvement Authority of the City of Fort Payne to furnish telecommunications services.

I hope this opinion answers your questions. If this Office can be of further assistance, please contact Brenda F. Smith of my staff.

Sincerely,

BILL PRYOR

Attorney General

By: CAROL JEAN SMITH

Chief, Opinions Division

BP/BFS

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