[HISTORY: Adopted by the City Council of
the City of Rockwood 10-16-2002 by Ord. No. 410. Amendments noted where
applicable.]
GENERAL REFERENCES
Subdivision regulations — See
Ch.
221.
Wireless communications facilities — See
Ch.
263.
The purposes of this chapter are to regulate
access to and ongoing use of public rights-of-way by telecommunications
providers for their telecommunications facilities while protecting
the public health, safety, and welfare and exercising reasonable control
of the public rights-of-way in compliance with the Metropolitan Extension
Telecommunications Rights-of-Way Oversight Act (Act No. 48 of the
Public Acts of 2002) ("Act") and other applicable law, and to ensure
that the City qualifies for distributions under the Act by modifying
the fees charged to providers and complying with the Act.
Nothing in this chapter shall be construed in
such a manner as to conflict with the Act or other applicable law.
A. The terms used in this chapter shall have the following
meanings:
ACT
The Metropolitan Extension Telecommunications Rights-of-Way
Oversight Act (Act No. 48 of the Public Acts of 2002), as amended
from time to time. (Note: A copy of the Act can be obtained on the
Internet at http://www.cis.state.mi.us/mpsc/comm/rightofway/rightofway.htm.)
CITY
The City of Rockwood.
CITY COUNCIL
The City Council of the City of Rockwood or its designee.
This section does not authorize delegation of any decision or function
that is required by law to be made by the City Council.
PERMIT
A nonexclusive permit issued pursuant to the Act and this
chapter to a telecommunications provider to use the public rights-of-way
in the City for its telecommunications facilities.
B. All other terms used in this chapter shall have the
same meaning as defined or as provided in the Act, including without
limitation the following:
AUTHORITY
The Metropolitan Extension Telecommunications Rights-of-Way
Oversight Authority created pursuant to Section 3 of the Act.
MPSC
The Michigan Public Service Commission in the Department
of Consumer and Industry Services, and shall have the same meaning
as the term "Commission" in the Act.
PERSON
An individual, corporation, partnership, association, governmental
entity, or any other legal entity.
PUBLIC RIGHT-OF-WAY
The area on, below, or above a public roadway, highway, street,
alley, easement or waterway. Public right-of-way does not include
a federal, state, or private right-of-way.
TELECOMMUNICATION FACILITIES or FACILITIES
The equipment or personal property, such as copper and fiber
cables, lines, wires, switches, conduits, pipes, and sheaths, which
are used to or can generate, receive, transmit, carry, amplify, or
provide telecommunication services or signals. Telecommunication facilities
or facilities do not include antennas, supporting structures for antennas,
equipment shelters or houses, and any ancillary equipment and miscellaneous
hardware used to provide federally licensed commercial mobile service
as defined in Section 332(d) of Part I of Title III of the Communications
Act of 1934, Chapter 652, 48 Stat. 1064, 47 U.S.C. 332, and further
defined as commercial mobile radio service in 47 CFR 20.3, and service
provided by any wireless, two-way communication device.
TELECOMMUNICATIONS PROVIDER, PROVIDER and TELECOMMUNICATIONS
SERVICES
Those terms as defined in Section 102 of the Michigan Telecommunications
Act, 1991 PA 179, M.C.L.A. 484.2102. "Telecommunication provider"
does not include a person or an affiliate of that person when providing
a federally licensed commercial mobile radio service as defined in
Section 332(d) of Part I of the Communications Act of 1934, Chapter
652, 48 Stat. 1064, 47 U.S.C. 332, and further defined as commercial
mobile radio service in 47 CFR 20.3, or service provided by any wireless,
two-way communication device. For the purpose of the Act and this
chapter only, a provider also includes all of the following:
(1)
A cable television operator that provides a
telecommunications service.
(2)
Except as otherwise provided by the Act, a person
who owns telecommunication facilities located within a public right-of-way.
(3)
A person providing broadband internet transport
access service.
A. Permit required. Except as otherwise provided in the
Act, a telecommunications provider using or seeking to use public
rights-of-way in the City for its telecommunications facilities shall
apply for and obtain a permit pursuant to this chapter.
B. Application. Telecommunications providers shall apply
for a permit on an application form approved by the MPSC in accordance
with Section 6(1) of the Act. A telecommunications provider shall
file one copy of the application with the City Clerk, one copy with
the City Manager, and one copy with the City Attorney. Upon receipt,
the City Clerk shall make 10 copies of the application and distribute
a copy to the City Council. Applications shall be complete and include
all information required by the Act, including without limitation
a route map showing the location of the provider's existing and proposed
facilities in accordance with Section 6(5) of the Act. (NOTE: A copy
of the application form as approved by the Commission can be obtained
on the Internet at http://www.cis.state.mi.us/mpsc/comm/rightofway/rightofway.htm.)
C. Confidential information. If a telecommunications
provider claims that any portion of the route maps submitted by it
as part of its application contain trade secret, proprietary, or confidential
information, which is exempt from the Freedom of Information Act,
1976 PA 442, M.C.L.A. 15.231 to 15.246, pursuant to Section 6(5) of
the Act, the telecommunications provider shall prominently so indicate
on the face of each map.
D. Application fee. Except as otherwise provided by the
Act, the application shall be accompanied by a one-time nonrefundable
application fee in the amount of $500.
E. Additional information. The City Manager may request
an applicant to submit such additional information which the City
Manager deems reasonably necessary or relevant. The applicant shall
comply with all such requests in compliance with reasonable deadlines
for such additional information established by the City Manager. If
the City and the applicant cannot agree on the requirement of additional
information requested by the City, the City or the applicant shall
notify the MPSC as provided in Section 6(2) of the Act.
F. Previously issued permits. Pursuant to Section 5(1)
of the Act, authorizations or permits previously issued by the City
under Section 251 of the Michigan Telecommunications Act, 1991 PA
179, M.C.L.A. 484.2251, and authorizations or permits issued by the
City to telecommunications providers prior to the 1995 enactment of
Section 251 of the Michigan Telecommunications Act but after 1985
shall satisfy the permit requirements of this chapter.
G. Existing providers. Pursuant to Section 5(3) of the
Act, within 180 days from November 1, 2002, the effective date of
the Act, a telecommunications provider with facilities located in
a public right-of-way in the City as of such date that has not previously
obtained authorization or a permit under Section 251 of the Michigan
Telecommunications Act, 1991 PA 179, M.C.L.A. 484.2251, shall submit
to the City an application for a permit in accordance with the requirements
of this chapter. Pursuant to Section 5(3) of the Act, a telecommunications
provider submitting an application under this subsection is not required
to pay the application fee of $500 required under Subsection
D above.
A provider under this subsection shall be given up to an additional
180 days to submit the permit application if allowed by the Authority,
as provided in Section 5(4) of the Act.
A. Approval or denial. The authority to approve or deny
an application for a permit is hereby delegated to the City Manager.
Pursuant to Section 15(3) of the Act, the City Manager shall approve
or deny an application for a permit within 45 days from the date a
telecommunications provider files an application for a permit under
§
228-4B of this chapter for access to a public right-of-way
within the City. Pursuant to Section 6(6) of the Act, the City Manager
shall notify the MPSC when the City Manager has granted or denied
a permit, including information regarding the date on which the application
was filed and the date on which permit was granted or denied. The
City Manager shall not unreasonably deny an application for a permit.
B. Form of permit. If an application for permit is approved,
the City Manager shall issue the permit in the form approved by the
MPSC, with or without additional or different permit terms, in accordance
with Sections 6(1), 6(2) and 15 of the Act. (NOTE: Copies of the permit
forms currently approved by the MPSC can be obtained on the Internet
at http://www.cis.state.mi.mpsc/comm/rightofway/rightofway.htm.)
C. Conditions. Pursuant to Section 15(4) of the Act,
the City Manager may impose conditions on the issuance of a permit,
which conditions shall be limited to the telecommunications provider's
access and usage of the public right-of-way.
D. Bond requirement. Pursuant to Section 15(3) of the
Act, and without limitation on Subsection
C above, the City Manager
may require that a bond be posted by the telecommunications provider
as a condition of the permit. If a bond is required, it shall not
exceed the reasonable cost to ensure that the public right-of-way
is returned to its original condition during and after the telecommunications
provider's access and use.
A telecommunications provider shall not commence
construction upon, over, across, or under the public rights-of-way
in the City without first obtaining a construction or engineering
permit as required under Chapter
45 of this Code, as amended, for
construction within the public rights-of-way. No fee shall be charged
for such a construction or engineering permit.
Pursuant to Section 4(3) of the Act, obtaining
a permit or paying the fees required under the Act or under this chapter
does not give a telecommunications provider a right to use conduit
or utility poles.
Pursuant to Section 6(7) of the Act, a telecommunications
provider shall, within 90 days after the substantial completion of
construction of new telecommunications facilities in the City, submit
route maps showing the location of the telecommunications facilities
to both the MPSC and to the City. The route maps should be in [paper
or electronic] format unless and until the Commission determines otherwise,
in accordance with Section 6(8) of the Act.
Pursuant to Section 15(5) of the Act, a telecommunications
provider undertaking an excavation or construction or installing telecommunications
facilities within a public right-of-way or temporarily obstructing
a public right-of-way in the City, as authorized by a permit, shall
promptly repair all damage done to the street surface and all installations
under, over, below, or within the public right-of-way and shall promptly
restore the public right-of-way to its preexisting condition.
In addition to the nonrefundable application
fee paid to the City set forth in §
228-4D above, a telecommunications
provider with telecommunications facilities in the City's public rights-of-way
shall pay an annual maintenance fee to the Authority pursuant to Section
8 of the Act.
In compliance with the requirements of Section
13(1) of the Act, the City hereby modifies, to the extent necessary,
any fees charged to telecommunications providers after November 1,
2002, the effective date of the Act, relating to access and usage
of the public rights-of-way, to an amount not exceeding the amounts
of fees and charges required under the Act, which shall be paid to
the Authority. In compliance with the requirements of Section 13(4)
of the Act, the City also hereby approves modification of the fees
of providers with telecommunication facilities in public rights-of-way
within the City's boundaries, so that those providers pay only those
fees required under Section 8 of the Act. The City shall provide each
telecommunications provider affected by the fee with a copy of this
chapter, in compliance with the requirement of Section 13(4) of the
Act. To the extent any fees are charged telecommunications providers
in excess of the amounts permitted under the Act, or which are otherwise
inconsistent with the Act, such imposition is hereby declared to be
contrary to the City's policy and intent, and upon application by
a provider or discovery by the City shall be promptly refunded as
having been charged in error.
Pursuant to Section 13(5) of the Act, if Section
8 of the Act is found to be invalid or unconstitutional, the modification
of fees under §
228-11 above shall be void from the date
the modification was made.
Pursuant Section 9(4) of the Act, all amounts
received by the City from the Authority shall be used by the City
solely for rights-of-way-related purposes. In conformance with that
requirement, all funds received by the City from the Authority shall
be deposited into the Major Street Fund and/or the Local Street Fund
maintained by the City under Act No. 51 of the Public Acts of 1951.
Pursuant to Section 10(5) of the Act, the City
Manager shall file an annual report with the Authority on the use
and disposition of funds annually distributed by the Authority.
Pursuant to Section 13(6) of the Act, the City
shall not hold a cable television operator in default or seek any
remedy for its failure to satisfy an obligation, if any, to pay after
November 1, 2002, the effective date of this Act, a franchise fee
or similar fee on that portion of gross revenues from charges the
cable operator received for cable modem services provided through
broadband internet transport access services.
Pursuant to Section 4(2) of the Act, except
as expressly provided herein with respect to fees, this chapter shall
not affect any existing rights that a telecommunications provider
or the City may have under a permit issued by the City or under a
contract between the City and a telecommunications provider related
to the use of the public rights-of-way.
The City hereby declares that its policy and
intent in adopting this chapter is to fully comply with the requirements
of the Act, and the provisions hereof should be construed in such
a manner as to achieve that purpose. The City shall comply in all
respects with the requirements of the Act, including but not limited
to the following:
A. Exempting certain route maps from the Freedom of Information
Act, 1976 PA 442, M.C.L.A. 15.231, 215.246, as provided in §
228-4C
of this chapter;
B. Allowing certain previously issued permits to satisfy
the permit requirements hereof, in accordance with §
228-4F
of this chapter;
C. Allowing existing providers additional time in which
to submit an application for a permit, and excusing such providers
from the five-hundred-dollar application fee, in accordance with §
228-4G
of this chapter;
D. Approving or denying an application for a permit within
45 days from the date a telecommunications provider files an application
for a permit for access to and usage of a public right-of-way within
the City, in accordance with §
228-5A of this chapter;
E. Notifying the MPSC when the City has granted or denied
a permit, in accordance with §
228-5A of this chapter;
F. Not unreasonably denying an application for a permit,
in accordance with §
228-5A of this chapter;
G. Issuing a permit in the form approved by the MPSC,
with or without additional or different permit terms, as provided
in §
228-5B of this chapter;
H. Limiting the conditions imposed on the issuance of
a permit to the telecommunications provider's access and usage of
the public right-of-way, in accordance with §
228-5C of
this chapter;
I. Not requiring a bond of a telecommunications provider
which exceeds the reasonable cost to ensure that the public right-of-way
is returned to its original condition during and after the telecommunication
provider's access and use, in accordance with §
228-5D of
this chapter;
J. Not charging any telecommunications providers any
additional fees for construction or engineering permits, in accordance
with §
228-6 of this chapter;
K. Providing each telecommunications provider affected
by the City's right-of-way fees with a copy of this chapter, in accordance
with §
228-11 of this chapter;
L. Submitting an annual report to the Authority, in accordance
with §
228-14 of this chapter; and
M. Not holding a cable television operator in default
for a failure to pay certain franchise fees, in accordance with §
228-15
of this chapter.
Pursuant to Section 15(2) of the Act, this chapter
shall not limit the City's right to review and approve a telecommunication
provider's access to and ongoing use of a public right-of-way or limit
the City's authority to ensure and protect the health, safety, and
welfare of the public.
The various parts, sentences, paragraphs, sections,
and clauses of this chapter are hereby declared to be severable. If
any part, sentence, paragraph, section, or clause of this chapter
is adjudged unconstitutional or invalid by a court or administrative
agency of competent jurisdiction, the unconstitutionality or invalidity
shall not affect the constitutionality or validity of any remaining
provisions of this chapter.
The City Manager or his or her designee is hereby
designated as the authorized City official to issue municipal civil
infraction citations directing alleged violators to appear in court
for violations under this chapter as provided by the City Code.
A person who violates any provision of this
chapter or the terms or conditions of a permit is responsible for
a municipal civil infraction, and shall be subject to the civil infraction
fines and penalties set forth in §
1-9 of Chapter
1 of the
Codified Ordinances. Nothing in this section shall be construed to
limit the remedies available to the City in the event of a violation
by a person of this chapter or a permit.
All ordinances and portions of ordinances inconsistent
with this chapter are hereby repealed.