[HISTORY: Adopted by the City Council of the City of Roseville 1-25-2000 by Ord. No. 1133; amended in its entirety 11-26-2002 by Ord. No. 1172. Subsequent amendments noted where applicable.]
This chapter regulates access to and the ongoing use of public utility easements and rights-of-way by telecommunications providers for the purpose of protecting public health, safety and welfare through reasonable control of public utility easements and rights-of-way as authorized under the Michigan Telecommunications Act (Act No. 216 of the Public Acts of 1995, as amended, MCL 484.2101 et seq.) and as authorized pursuant to the Metropolitan Extension Telecommunications Right-of-Way Oversight Act, No. 48, P.A. 2002, as amended other state statutes and Article VII, Section 29, of the 1963 Michigan Constitution by:
Minimizing disruption to public utility easements and rights-of-way by regulating access to and ongoing use of the same and the construction, installation, operation, maintenance and use of facilities in such easements and rights-of-way;
Establishing that the City and public are protected from liability for use of public utility easements and rights-of-way by telecommunications providers;
Providing for the payment of nondiscriminatory permit, application and fees as provided in the Metropolitan Extension Telecommunications Right-of-Way Oversight Act; and
Assisting telecommunications providers in understanding requirements of the City for use of public utility easements and rights-of-way and providing a fair and nondiscriminatory policy for such use as prescribed by and consistent with state law, including the Metropolitan Extension Telecommunications Right-of-Way Oversight Act.
The issuance of a permit and access to and use of public utility easements and rights-of-way shall not constitute a waiver or otherwise adversely affect the following reserved rights:
Right to require a franchise. Article VII, Section 29, of the 1963 Michigan Constitution requires that all public utilities obtain a franchise to conduct local business within a City. To avoid the expense and delay of litigation that may be unnecessary, the City determines that telecommunications providers shall not be required at this time to obtain franchises for the transaction of business within the City. Telecommunications providers shall be required to obtain and maintain a permit for access to and ongoing use of the public utility easements and rights-of-way and to otherwise comply with the terms of this chapter. Such permit shall not constitute a franchise. The City reserves the right to require telecommunications providers to obtain a franchise in the future to transact local business within the City. The City reserves the right to require cable operators to obtain a franchise currently to transact local business within the City.
Rights regarding taking claims. Certain cable telecommunications providers have initiated or supported legal proceedings in which they contend that federal law grants them the right to physically occupy the rights-of-way and other property of a municipality for the purpose of providing telecommunications service without compensation to the municipality for the use or value of the property so occupied or the cost of acquiring and maintaining such property. Municipalities dispute that claim. The City believes that if such a claim were sustained it would, among other things, constitute an unlawful taking by the United States in violation of the Fifth Amendment to the United States Constitution. The legal issues involved in such disputes have not been finally decided. The City desires to act upon applications for permits granting access to its public utilities easements and rights-of-way at this time rather than wait for a determination of these issues, provided this can be done without waiver or loss of any rights of the City or a permittee. Notwithstanding any other provision, a permittee is not precluded by this chapter from seeking relief from the fee provisions of § 310-5C from any court or agency of competent jurisdiction. If a permittee seeks such relief, the City reserves the right to assert a takings claim to take all action it deems necessary in support thereof. Neither this chapter nor the issuance of any permit shall be deemed in any way to modify or abridge or reduce the scope or extent of any right which would have existed on behalf of the City and permittee if this chapter had not been adopted and such permit issued.
Unless otherwise stated, the terms and phrases used in this chapter have the following meanings:
- The City of Roseville.
- The Public Service Commission and the Department of Consumer and Industry Services of the State of Michigan.
- A nonexclusive limited authorization for the construction, maintenance and operation of a telecommunications system on, under or over or across the public right-of-way of the City and to transact local business thereon as further defined pursuant to the terms and conditions of the permit. Permits shall be in the form of a written agreement granted and approved by resolution of the City Council of the City to use the public utilities and rights-of-way of the City for fiber optics, wires, poles, pipes, conduits or other telecommunications equipment.
- Any individual, corporation, partnership, association, governmental entity or any other legal entity.
- PUBLIC RIGHT-OF-WAY
- An area on, below or above a public roadway, street, alley, easement or waterway. Public right-of-way does not include a federal, state or private right-of-way.
- Any person who contracts with the permittee for or is in any manner provided with telecommunications services by permittee.
- TELECOMMUNICATIONS 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 generate, receive, transmit, carry amplify or provide the telecommunications services or signals. Telecommunications 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 the federally licensed commercial mobile services as defined in Section 332(d) of Part 1 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 or PROVIDER and TELECOMMUNICATIONS SERVICES
- Those terms as defined in Section 102 of the Michigan Telecommunications Act of 1991, P.A. 179, M.C.L. 484.2102. Telecommunications provider does not include a person or an affiliate of the person when providing a federally licensed commercial mobile service as defined in Section 332(d) of Part 1 of the Communications Act of 1934, Chapters 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 this Act only, provider also includes all of the following:
No person shall install, construct, maintain or otherwise a operate telecommunications facilities or a telecommunications provider in the City without a permit granted by resolution of the City Council.
No person shall transact business on telecommunications facilities or act as a telecommunications provider unless the owner or operator of such system has been granted a permit pursuant to this chapter, subject, however, to any limitation provided by constitution or law.
A person shall obtain any and all regulatory approvals, permits, authorizations or licenses necessary to provide telecommunications services from all other governmental authorities furnishing evidence of such approvals, permits, authorizations or licenses prior to the issuance of any permit pursuant to this chapter.
Within 180 days from November 1, 2002, a provider with facilities located in a public right-of-way as of November 1, 2002, that has not previously obtained authorization or a permit under Section 251 of the Michigan Telecommunications Act, 1991 P.A. 179, MCL 484.2251, shall submit a application for a permit to the City of Roseville if it has facilities located in a public right-of-way in the City of Roseville.
Nothing in this chapter shall be construed as a waiver of any codes, ordinances or regulations of the City or the City's right to require providers or persons utilizing telecommunications service to secure appropriate permits or authorizations for such use.
For applications and permits issued after November 1, 2002, application shall be submitted upon a prescribed form by the Commission. The initial application form, unless otherwise agreed to by the City and provider, shall be those approved by the Commission as of August 16, 2001.
If the City and provider cannot agree on the requirement of additional information requested by the City or the use of additional permit terms, either the City or the provider shall notify the Commission, which shall appoint a mediator within seven days from the date if no one is to make recommendations within 30 days from the date of the appointment for resolution of the dispute. The terms and provisions of the Metropolitan Extension Telecommunications Right-of-Way Oversight Act, as amended, shall control resolution of any such dispute.
Except as otherwise provided in the Metropolitan Extension Telecommunications Right-of-Way Oversight Act, provider shall file an application or permit and pay a one-time five-hundred-dollar application fee for access to or use of public rights-of-way if sought by the provider within the City.
The City shall approve or deny permits for access to public rights-of-way pursuant to this chapter within 45 days from the date provider files a complete application for permit.
The City may grant one or more permits for telecommunications systems, services or equipment in the City subject to this chapter. The City specifically reserves the right to grant at any time such additional permits as it deems appropriate. Additional permits shall not be deemed to modify, revoke, terminate or damage any right previously granted to any other permittee.
No permit shall be valid unless authorized by resolution adopted by the City Council, approving a written agreement containing terms and conditions pursuant to which the permit is granted which shall be executed by the Mayor and Clerk and filed with the City Clerk and all fees have been paid, bond, insurance or letter of credit or other requirements of the permit satisfied.
The provider shall cause to be filed with the City with the application route maps showing the location of the provider's existing and proposed facilities in the format as required by the Metropolitan Extension Telecommunications Right-of-Way Oversight Authority. Within 90 days after the substantial completion of construction of the new facilities, a provider shall submit route maps showing the location of telecommunications facilities to the City and Commission in the manner and format as approved by the Metropolitan Extension Telecommunications Right-of-Way Oversight Authority.
All facilities and equipment of any telecommunications system operating with a permit within the City shall be constructed and maintained at a state of the art level in accordance with the applicable requirements and specifications of the National Electric Code, National Building Code, shall participate in MISS DIG and shall comply with all applicable rules and regulations of the Michigan Public Service Commission, Federal Communications Commission and all other pertinent ordinances and codes of the City. No construction shall occur which involves cutting or patching or tunneling beneath any paved surface, whether concrete, asphalt or other pavement, unless plans have been approved by the Building Department of the City and any other applicable governmental entity having jurisdiction of such paved surfaces. Before commencement of any construction activity, including but not limited to any digging, boring, or the placement of any facilities, the provider shall have a preconstruction meeting with representatives of the City, including the City Engineer, the Director of Building and Inspection and the Director of the Department of Public Works. If the City representatives and provider representatives are unable to agree on arrangements for coordinating and minimizing the disruption of public rights-of-way and with the application of applicable standards, they shall follow the provision for mediation, pursuant to the Metropolitan Extension Telecommunications Right-of-Way Oversight Act, Section 7, as amended.
Permits shall not be sold, transferred, assumed, assigned or sublet in any manner, either directly or indirectly. A substantial change in ownership, either through stock purchase, merger or consolidation, shall require reapplication for a permit.
Provider shall indemnify and hold the City, its officers, employees, agents or contractors harmless from any injury claim, demand, suit, judgment, execution, liability, debt, damages or penalty arising out of, resulting from or alleged to arise or result from any act or omission of the provider in the construction, operation, maintenance, repair or removal of the telecommunications system and equipment or of the issuance of a permit.
Provider shall at all times during the life of the permit carry and require its contractors and subcontractors to carry public liability, property damage, workers compensation and vehicle insurance in such form and amount as determined by the City and set forth in the agreement. All insurance shall provide for a thirty-day notice to the City in the event of material alteration or cancellation of coverage prior to the effective date of such alteration or cancellation. Failure to provide or maintain insurance for any period in excess of 60 days shall render the permit null and void.
City may require as a condition of the permit that a bond be posted by the provider which shall not exceed the reasonable cost to insure that the public right-of-way is returned to its original condition during and after the provider's access and use. The bond may be in the form of a construction bond issued by a Best A-rated company as approved on the recommendation of the City Controller and/or as approved on the recommendation of the City Controller and/or cash or letter of credit in a form as approved by the City Controller.
No telecommunications system or equipment may be relocated or removed unless plans showing the proposed relocated site are submitted and filed with the City and approved by the Building Department, which shall not unreasonably refuse to approve any such relocation or removal. Any and all rights-of-way shall be restored in a reasonable manner forthwith to substantially the same condition which was existing prior to such relocation or removal.
Any person violating the terms and conditions of this chapter shall be subject to penalties as provided in this Code for violation of a misdemeanor.
In the event any section, paragraph, sentence, or word of this chapter shall be declared for any reason invalid, all other provisions shall remain in full force and effect.
Any ordinance or part thereof in conflict is expressly repealed.
This chapter shall become effective immediately upon adoption and publication.