[HISTORY: Adopted by the Village Council of the Village of
Spring Lake 2-3-2003 by Ord. No. 276 (Ch. 78, Art. IV, of the 2000 Code
of Ordinances). Amendments noted where applicable.]
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 Village 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.
ACT
PERMIT
The terms used in this chapter 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
chapter to a telecommunications provider to use the public rights-of-way
in the Village for its telecommunications facilities.
[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
VILLAGE
VILLAGE COUNCIL
VILLAGE MANAGER
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:
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, and 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 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 federally licensed commercial
mobile service as defined in Section 332.(d) 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, 1991 PA 179, MCLA § 484.2102. "Telecommunications 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:
The Village of Spring Lake.
The Council of the Village of Spring Lake 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.
The Manager for the Village of Spring Lake or his or her
designee.
[2]
Editor's Note: See MCLA § 484.3103.
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 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 Village Clerk/Treasurer, one copy with
the Village Manager, and one copy with the Village Attorney. Upon
receipt, the Village Clerk/Treasurer shall make one copy of the application
and distribute a copy to the Village Manager or his or her designee.
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 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, 1976 PA 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 one-time, nonrefundable application fee
in the amount of $500.
E.
Additional information. The Village Manager may request an applicant
to submit such additional information which the Village 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 Village Manager. 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, 1991 PA 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 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 Village as of such date, that has not previously obtained authorization or a permit under Section 251 of the Michigan Telecommunications Act, 1991 PA 179, MCLA § 484.2251, shall submit to the Village 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 Village Manager. Pursuant to Section 15(3) of the Act, the Village 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 Subsection B below for access to a public right-of-way within the Village. Pursuant to Section 6(6) of the Act, the Village Manager shall notify the MPSC when the Village 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 Village Manager shall not unreasonably deny an application for a permit.
B.
Form of permit. If an application for permit is approved, the Village
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.
C.
Conditions. Pursuant to Section 15(4) of the Act, the Village 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 Village 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 right-of-way in the Village
without first obtaining a construction or engineering permit as required
by the Village for such construction within the public right-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 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 electronic
format unless and until the MPSC 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 § 345-4D, a telecommunications provider with telecommunications facilities in the Village'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 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 chapter, in compliance with the requirement of Section 13(4).
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 § 345-11 shall be void from the date the modification was made.
Pursuant to Section 10(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.
The Village Manager shall file an annual report with the Authority
on the use and disposition of funds annually distributed by the Authority,
as required under Section 10(5) of the Act.
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 chapter 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 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 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, 1976 PA 442, MCLA §§ 15.231 to 15.246, as provided in § 345-4C of this chapter.
B.
Allowing certain previously issued permits to satisfy the permit requirements of this chapter, in accordance with § 345-4F of this chapter.
C.
Allowing existing providers additional time in which to submit an application for a permit, and excusing such providers from the application fee of $500, in accordance with § 345-4G 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 Village, in accordance with § 345-5A of this chapter.
E.
Notifying the MPSC when the Village has granted or denied a permit, in accordance with § 345-5A of this chapter.
F.
Not unreasonably denying an application for a permit, in accordance with § 345-5A 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 § 345-5B 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 § 345-5C 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 telecommunications provider's access and use, in accordance with § 345-5D of this chapter.
J.
Not charging any telecommunications providers any additional fees
for construction or engineering permits.
Pursuant to Section 15(2) of the Act, this chapter 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.
The Village Manager or his or her designee is hereby designated
as the authorized Village official to issue municipal civil infraction
citations (directing alleged violators to appear in court) or municipal
civil infraction notices (directing alleged violators to appear at
the Municipal Chapter Violations Bureau).[1]
Any person who violates, disobeys, omits, neglects or refuses to comply with or resists the enforcement of this chapter shall be responsible for a municipal civil infraction, subject to § 1-2. Increased civil fines may be imposed for “repeated violations,” which means a second or subsequent municipal civil infraction violation committed by a person within any twelve-month period and for which a person admits responsibility or is determined to be responsible. The increased civil fine for repeat violations is set forth in § 1-2.
