It has long been recognized in this state that a statewide telephone system, with its need for coordinated intra and interstate communications, is a matter of statewide concern, heavily outweighing any possible municipal interest.City of Englewood v. Mountain States Tel. Tel. Co., 163 Colo. 400, 405, 431 P.2d 40, 43 (1967). The considerations upon which this court based its conclusion inCity of Englewood have not changed in any way that would affect the vitality of this general holding.

The court of appeals also discussed two other cases in concluding that the matter here is one of mixed local and state concern. In City of Englewood v. Mountain States Telephone Telegraph Co., 163 Colo. 400, 406-07, 431 P.2d 40, 43 (1967), we observed that a statewide telephone system is a matter of statewide concern, but also explained that the city had the power to regulate utility poles. There, we highlighted the importance of the state's interest in a statewide telephone system in light of the municipality's assertion that, contrary to a state statute, it could terminate a telephone company's operations if the company did not renew its franchise agreement with the city.

We have defined a franchise as "a special right or privilege, granted by a government to an individual or corporation — such a right as does not ordinarily belong to citizens in general." City of Englewood v. Mountain State Tel. Tel. Co., 163 Colo. 400, 405, 431 P.2d 40, 43 (1967); see also Community Tele-Communications v. Heather Corp., 677 P.2d 330 (Colo. 1984); City of Englewood v. Crabtree, 157 Colo. 593, 404 P.2d 525, cert. dismissed, 382 U.S. 934 (1965); see generally 12 E. McQuillin, Municipal Corporations § 34.03, at 11 (3d ed. 1986).

; see generally 12 E. McQuillan, Law of Municipal Corporations § 34.74a (3d ed. 1986 rev. vol.). It is true that the court held, in Englewood v. Mountain States Telephone Telegraph Co., 163 Colo. 400, 405, 431 P.2d 40, 42 (1967), that a statutory statewide franchise agreement, see § 38-5-101, et seq., C.R.S. (1982 Repl. Vol. 16A), permits a utility "not only to maintain its facilities in plaintiff's public ways, but also [grants] the right to construct and operate additional ones therein without obtaining a city franchise." Additionally, the court there stated that a statewide telephone system is also a matter of statewide concern heavily outweighing any possible municipal interest.

A franchise is "a special right or privilege, granted by a government to an individual or corporation." City of Greeley, 744 P.2d at 744 ( quoting City of Englewood v. Mountain States Tel. Tel. Co., 163 Colo. 400, 405, 431 P.2d 40, 43 (1967)). Article XX of the Colorado Constitution gives taxpaying electors of home rule cities absolute control over the granting of franchises, and thus the state and its agents, including the PUC, cannot confer a franchise relating to the streets of home rule cities without obtaining municipal consent in the form of a vote from city electors.

In stark contrast, the majority opinion perpetuates a monopoly. ¶ 11 City of Englewood v. Mountain States Telephone and Telegraph Company, 163 Colo. 400, 431 P.2d 40, 42 (Colo. 1967), involved facts very similar to those present here. There the Supreme Court of Colorado En Banc cited the Eighth circuit's McPhee case, cited above, with approval.

This testimony was uncontroverted. In addition, City of Englewood v. Mountain States Telephone Telegraph Co., 163 Colo. 400, 406, 431 P.2d 40, 43 (1967), supports the view that telephone companies traditionally provide a communication service which allows customers to contact other customers who may be at many different locations. See also Federal Communications Commission Rules Regulations, part 68 (October 1982) (part 68 addresses connection of equipment to telephone company lines, and strives to protect the "telephone network").

In recent years, although we have not addressed the permit-franchise issue in the context of cable television, we have indicated our continuing acceptance of the basic definition of "franchise" as "a special right or privilege granted by a government to an individual or corporation — such a right as does not ordinarily belong to citizens in general." City of Englewood v. Mountain States Telephone Telegraph Co., 163 Colo. 400, 405, 431 P.2d 40, 43 (1967). We have also upheld various permits or contracts which, in our opinion, did not "rise to the dignity of a franchise."

Black's Law Dictionary (rev. 4th ed. 1968). See also Dunmar Investment Co. v. Northern Natural Gas Co., 185 Neb. 400, 176 N.W.2d 4 (1970); City of Englewood v. Mountain States Tel. Tel. Co., 163 Colo. 400, 431 P.2d 40 (1967); In Re South Lakewood Water Company, 61 N.J. 230, 294 A.2d 13 (1972). Section 2, of chapter 265 as amended authorizes respondent to:

48 (1951) (held, matter of municipal elections is of local concern and provisions of charter supersede all laws of state in conflict therewith); Heubeck v. City of Baltimore, 205 Md. 203, 107 A.2d 99 (Md.Ct.App. 1954) (provision in constitution which empowered home rule city prescribed that general laws would prevail over city ordinances); City of Kalamazoo v. Titus, 208 Mich. 252, 175 N.W. 480 (1919) (home rule power derived from public act rather than constitution; court looked to local nature of activity sought to be regulated in reconciling ordinance and state statute); Carlberg v. Metcalf, 120 Neb. 481, 234 N.W. 87 (1930) (home rule city deriving power from constitution; held, state statute prevails when activity not of local concern); State ex rel. Cozart v. Carran, 133 Ohio St. 50, 11 N.E.2d 245 (1937) (home rule power deriving from state constitution limited to regulating local matters not in conflict with general laws). For more recent refinements of this rule, see generally Englewood v. Mountain States Tel. and Tel. Co., 163 Colo. 400, 431 P.2d 40 (1967); Square Deal Coal Haulers and Yardmen's Club, Inc. v. City of Cleveland, 176 N.E.2d 348 (Ohio C.P. 1961); City of Akron v. Williams, 172 N.E.2d 28 (Ohio Mun.Ct. 1960); Neapolitan v. U.S. Steel Corp., 149 N.E.2d 589 (Ohio Ct. App. 1956). This rule was not born of a need to preclude municipal legislation when the state has preempted an entire area of law.