[Adopted 4-22-2003 by Ord. No. 100 (Ch. 28, Art. III, of
the 2007 Code of Ordinances)]
The purposes of this article 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, Public Act No. 48 of 2002 (MCLA § 484.3101
et seq.) and other applicable law, and to ensure that the Township
qualifies for distributions under the Act by modifying the fees charged
to providers and complying with the Act.
Nothing in this article shall be construed in such a manner
as to conflict with the Act or other applicable law.
A.
ACT
PERMIT
TOWNSHIP BOARD
TOWNSHIP SUPERINTENDENT
Generally. The following words, terms and phrases, when used in this
article, shall have the meanings ascribed to them in this subsection,
except where the context clearly indicates a different meaning:
The Metropolitan Extension Telecommunications Rights-of-Way
Oversight Public Act No. 48 of 2002 (MCLA § 484.3101 et
seq.).
A nonexclusive permit issued pursuant to the Act and this
article to a telecommunications provider to use the public rights-of-way
in the Township for its telecommunications facilities.
The Township Board of the Charter Township of Oakland or
its designee. This section does not authorize delegation of any decision
or function that is required by law to be made by the Township Board.
The Township Superintendent or his designee, or, if there
is no appointed Superintendent, then such term shall mean the Township
Supervisor.
B.
AUTHORITY
MPSC
PUBLIC RIGHT-OF-WAY
TELECOMMUNICATION FACILITIES or FACILITIES
TELECOMMUNICATIONS PROVIDER, PROVIDER and TELECOMMUNICATIONS
SERVICES
Other terms. 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.
The Michigan Public Service Commission in the Department
of Licensing and Regulatory Affairs, and shall have the same meaning
as the term "commission" in the Act.[1]
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 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.
The same as those terms are as defined in Section 102 of
the Michigan Telecommunications Act, Public Act No. 179 of 1991 (MCLA
§ 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
article only, a provider also includes all of the following:
A.
Required. Except as otherwise provided in the Act, a telecommunications
provider using or seeking to use public rights-of-way in the Township
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 [MCLA § 484.3106(1)]. A telecommunications
provider shall file one copy of the application with the Township
Superintendent, one copy with the Township Clerk, and one copy with
the Township Attorney. Upon receipt, the Township Superintendent shall
make copies of the application and distribute a copy to the directors
of each the following departments and consultants: building, planning,
engineering, fire and police. 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 [MCLA
§ 484.3106(5)].
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, Public Act No.
442 of 1976 (MCLA § 15.231 et seq.), pursuant to Section
6(5) of the Act [MCLA § 484.3106(5)], 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.
E.
Additional information. The Township Superintendent may request an
applicant to submit such additional information which the Township
Superintendent 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 Township
Superintendent. If the Township and the applicant cannot agree on
the requirement of additional information requested by the Township,
the Township or the applicant shall notify the MPSC as provided in
Section 6(2) of the Act [MCLA § 484.3106(2)].
F.
Previously issued permits. Pursuant to Section 5(1) of the Act [MCLA
§ 484.3105(1)] authorizations or permits previously issued
by the Township under Section 251 of the Michigan Telecommunications
Act, Public Act No. 179 of 1991 (MCLA § 484.2251) and authorizations
or permits issued by the Township 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 [MCLA § 484.3105(3)], 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 Township as of such date, that has not previously obtained authorization or a permit under Section 251 of the Michigan Telecommunications Act, Public Act No. 179 of 1991 (MCLA § 484.2251), shall submit to the Township an application for a permit in accordance with the requirements of this article. Pursuant to Section 5(3) of the Act [MCLA § 484.3105(3)], a telecommunications provider submitting an application under this subsection is not required to pay the application fee required under Subsection D of this section. 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 [MCLA § 484.3105(4)].
A.
Approval or denial. The authority to approve or deny an application for a permit is hereby delegated to the Township Superintendent. Pursuant to Section 15(3) of the Act [MCLA § 484.3115(3)], the Township Superintendent 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 § 370-13B for access to a public right-of-way within the Township. Pursuant to Section 6(6) of the Act [MCLA § 484.3106(6)], the Township Superintendent shall notify the MPSC when the Township Superintendent 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 Township Superintendent shall not unreasonably deny an application for a permit.
B.
Form of permit. If an application for permit is approved, the Township
Superintendent 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 [MCLA §§ 484.3106(1),
(2), 484.3115].
C.
Conditions. Pursuant to Section 15(4) of the Act [MCLA § 484.3115(4)],
the Township Superintendent 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 [MCLA § 484.3115(3)], and without limitation on Subsection C of this section, the Township Superintendent 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 Township
without first obtaining a construction or engineering permit if required
under other Township ordinances for construction within the public
rights-of-way. Notwithstanding any other provisions of Township ordinances
to the contrary, no fee shall be charged for such a construction or
engineering permit.
Pursuant to Section 4(3) of the Act [MCLA § 484.3104(3)],
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 [MCLA § 484.3106(7)],
a telecommunications provider shall, within 90 days after the substantial
completion of construction of new telecommunications facilities in
the Township, submit route maps showing the location of the telecommunications
facilities to both the MPSC and to the Township. The route maps should
be in electronic format unless and until the MPSC determines otherwise,
in accordance with Section 6(8) of the Act [MCLA § 484.3106(8)].
In the event the MPSC makes a determination that the route maps are
to be in a format other than electronic and/or are to meet certain
detail requirements, the format and detail of the route maps submitted
to the Township under this section shall be the same as determined
by the MPSC.
Pursuant to Section 15(5) of the Act [MCLA § 484.3115(5)],
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 Township,
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 Township set forth in § 370-13, a telecommunications provider with telecommunications facilities in the Township's public rights-of-way shall pay an annual maintenance fee to the Authority pursuant to Section 8 of the Act (MCLA § 484.3108).
In compliance with the requirements of Section 13(1) of the
Act [MCLA § 484.3113(1)], the Township 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 Township also hereby approves modification of
the fees of providers with telecommunication facilities in public
rights-of-way within the Township's boundaries, so that those
providers pay only those fees required under Section 8 of the Act.
The Township 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 Township's policy and intent,
and upon application by a provider or discovery by the Township, 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 § 370-20 shall be void from the date the modification was made.
Pursuant to Section 10(4) of the Act [MCLA § 484.3110(4)],
all amounts received by the Township from the Authority shall be used
by the Township solely for rights-of-way related purposes. In conformance
with that requirement, all funds received by the Township from the
Authority shall be deposited into a fund maintained by the Township
for right-of-way related purposes.
Pursuant to Section 10(5) of the Act [MCLA § 484.3110(5)],
the Township Superintendent 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 [MCLA § 484.3113(6)],
the Township 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 [MCLA § 484.3104(2)],
except as expressly provided herein with respect to fees, this article
shall not affect any existing rights that a telecommunications provider
or the Township may have under a permit issued by the Township or
under a contract between the Township and a telecommunications provider
related to the use of the public rights-of-way.
The Township 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 Township 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, Public Act No. 442 of 1976 (MCLA § 15.231 et seq.), as provided in the Act and in § 370-13C;
B.
Allowing certain previously issued permits to satisfy the permit requirements hereof, in accordance with § 370-13F;
C.
Allowing existing providers additional time in which to submit an application for a permit, and excusing such providers from the application fee, in accordance with § 370-13G;
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 Township, in accordance with § 370-14A;
E.
Notifying the MPSC when the Township has granted or denied a permit, in accordance with § 370-14A;
G.
Issuing a permit in the form approved by the MPSC, with or without additional or different permit terms, as provided in § 370-14B;
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 § 370-14C;
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 § 370-14D;
J.
Not charging any telecommunications providers any additional fees for construction or engineering permits, in accordance with § 370-15;
Pursuant to Section 15(2) of the Act [MCLA § 484.3115(2)],
this article shall not limit the Township's right to review and
approve a telecommunication provider's access to and ongoing
use of a public right-of-way or limit the Township's authority
to ensure and protect the health, safety, and welfare of the public.
A violation of any section in this article shall be a misdemeanor.
Nothing in this section shall be construed to limit the remedies available
to the Township under the Act or otherwise by law in the event of
a violation by a person of this article or a permit issued hereunder.
