[Adopted 11-18-2002 by Ord. No. 2002-003 (Section 47.000 of
the 2001 Code)]
A.
ACT
PERMIT
VILLAGE
VILLAGE COUNCIL
The terms used in this article shall have the following meanings:
The Metropolitan Extension Telecommunications Rights-of-Way
Oversight Act (Act No. 48 of the Public Acts of 2002), as amended
from time to time.[1]
A nonexclusive permit issued pursuant to the Act and this
article to a telecommunications provider to use the public rights-of-way
in the Village for its telecommunications facilities.
The Village of Michiana.
The Village Council of the Village of Michiana or its designee.
This section does not authorize delegation of any decision or function
that is required by law to be made by the Village Council.
[1]
Editor's Note: See MCLA § 484.3101 et seq.
B.
AUTHORITY
MPSC
PERSON
PUBLIC RIGHT-OF-WAY
TELECOMMUNICATIONS FACILITIES or FACILITIES
TELECOMMUNICATIONS PROVIDER, PROVIDER and TELECOMMUNICATIONS
SERVICES
All other terms used in this article shall have the same meaning
as defined or as provided in the Act, including without limitation
the following:
The Metropolitan Extension Telecommunications Rights-of-Way
Oversight Authority created pursuant to Section 3 of the Act.[2]
The Michigan Public Service Commission in the Department
of Consumer and Industry Services; shall have the same meaning as
the term "Commission" in the Act.
An individual, corporation, partnership, association, governmental
entity, or any other legal entity.
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.
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 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.
Those terms as defined in Section 102 of the Michigan Telecommunications Act, P.A. 1991, No. 179, MCLA § 484.2102. "Telecommunications provider" does not include a person or an affiliate of that person when providing a federally licensed "commercial mobile service" as defined in Section 332(d) of Part 1 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 article only, a provider also includes all of the following;
[2]
Editor's Note: See MCLA § 484.3105.
A.
Permit required. Except as otherwise provided in the Act, a telecommunications
provider using or seeking to use public rights-of-way in the Village
for its telecommunications facilities shall apply for and obtain a
permit pursuant to this article.
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 Village Clerk and one copy with the Village
Attorney. Upon receipt, the Village Clerk shall make one copy of the
application and distribute a copy to the Public Works Department.
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.
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, P.A. 1976, No.
442, MCLA §§ 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 onetime nonrefundable application fee in
the amount of $500.
E.
Additional information. The Village Clerk may request an applicant
to submit such additional information which the Village Clerk 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 Village Clerk. If the Village
and the applicant cannot agree on the requirement of additional information
requested by the Village, the Village 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 Village under Section 251 of the
Michigan Telecommunications Act, P.A. 1991, No. 179, MCLA § 484.2251,
and authorizations or permits issued by the Village 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 article.
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 Village as of such date, that has not previously obtained authorization or a permit under Section 251 of the Michigan Telecommunications Act, P.A. 1991, No. 179, MCLA § 424.2251, shall submit to the Village an application for a permit in accordance with the requirements of this article. Pursuant to Section 5(3) of the Act, a telecommunications provider submitting an application under this subsection is not required to pay the five-hundred-dollar application fee 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 Village Clerk. Pursuant to Section 15(3) of the Act, the Village Clerk 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 § 308-2B of this article for access to a public right-of-way within the Village. Pursuant to Section 6(6) of the Act, the Village Clerk shall notify the MPSC when the Village Clerk has granted or denied a permit, including information regarding the date on which the application was filed and the date on which the permit was granted or denied. The Village Clerk shall not unreasonably deny an application for a permit.
B.
Form of permit. If an application for permit is approved, the Village
Clerk 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.
C.
Conditions. Pursuant to Section 15(4) of the Act, the Village Clerk
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 limitations on Subsection C above, the Village Clerk 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 Village
without first obtaining a construction or engineering permit as required
under this Code, as amended, for construction within the public rights-of-way.
No fee shall be charged for such a construction or engineering permit
from the Village.
Pursuant to Section 4(3) of the Act, obtaining a permit or paying
the fees required under the Act or under this article 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 Village, submit route
maps showing the location of the telecommunications facilities to
both the MPSC and to the Village. The route maps should be in paper
format unless and until the Village Council 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 Village, 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 Village set forth in § 308-2D above, a telecommunications provider with telecommunications facilities in the Village public right-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 Village 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
Village also hereby approves modification of the fees of providers
with telecommunications facilities in public rights-of-way within
the Village's boundaries so that those providers pay only those
fees required under Section 8 of the Act. The Village shall provide
each telecommunications provider affected by the fee with a copy of
this article, 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 Village's policy and intent, and
upon application by a provider or discovery by the Village 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 § 308-9 above shall be void from the date the modification was made.
Pursuant to Section 9(4) of the Act, all amounts received by
the Village from the Authority shall be used by the Village solely
for rights-of-way-related purposes. In conformance with that requirement,
all funds received by the Village from the Authority shall be deposited
into the Major Street Fund and/or the Local Street Fund maintained
by the Village under Act No. 51 of the Public Acts of 1951.[1]
[1]
Editor's Note: See MCLA § 247.651 et seq.
Pursuant to Section 10(5) of the Act, the Village Clerk 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 Village 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 article shall not affect any existing
rights that a telecommunications provider or the Village may have
under a permit issued by the Village or under a contract between the
Village and a telecommunications provider related to the use of the
public rights-of-way.
The Village hereby declares that its policy and intent in adopting
this article 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 Village 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, P.A. 1976, No. 442, MCLA §§ 15.231 to 215.246, as provided in § 308-2C of this article.
B.
Allowing certain previously issued permits to satisfy the permit requirements of this article, in accordance with § 308-2F of this article.
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 § 308-2G of this article.
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 Village, in accordance with § 308-3A of this article.
E.
Notifying the MPSC when the Village has granted or denied a permit, in accordance with § 308-3A of this article.
F.
Not unreasonably denying an application for a permit, in accordance with § 308-3A of this article.
G.
Issuing a permit in the form approved by the MPSC, with or without additional or different permit terms, as provided in § 308-3B of this article.
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 § 308-3C of this article.
I.
Not requiring a bond of a telecommunications provider which exceeds the reasonable cost to ensure that a public right-of-way is returned to its original condition during and after the telecommunication provider's access and use, in accordance with § 308-3D of this article.
J.
Not charging any telecommunications providers any additional fees for construction permits, in accordance with § 308-4 of this article.
Pursuant to Section 15(2) of the Act, this article shall not
limit the Village's right to review and approve a telecommunications
provider's access to and ongoing use of a public right-of-way
or limit the Village's authority to ensure and protect the health,
safety and welfare of the public.[1]
Any person who shall violate any of the provisions of this article
shall, upon conviction thereof, be punished by a fine not to exceed
$500 or by imprisonment in the County Jail not exceeding 90 days,
or both such fine and imprisonment, in the discretion of the court,
together with the costs of prosecution.
