[10-28-2002 by Ord. No.
1200]
The purposes of this article are to regulate access to and ongoing
use of the 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 (MCL 484.3101
et seq.) 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.
[10-28-2002 by Ord. No.
1200]
Nothing in this article shall be construed in such a manner
as to conflict with the Metropolitan Extension Telecommunications
Rights-of-Way Oversight Act, Public Act No. 48 of 2002 (MCL 484.3101
et seq.) or other applicable law.
[10-28-2002 by Ord. No.
1200]
(a) The following words, terms and phrases, when used in this article,
shall have the meanings ascribed to them in this section, except where
the context clearly indicates a different meaning:
ACT
The Metropolitan Extension Telecommunications Rights-of-Way
Oversight Act, Public Act No. 48 of 2002 (MCL 484.3101 et seq.).
CITY COUNCIL
The City Council or its designee. This definition 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
article 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 article 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 (MCL
484.3103).
MPSC
The State Public Service Commission in the Department of
Licensing and Regulatory Affairs and shall have the same meaning as
the term "Commission" in the Act.
[6-26-2017 by Ord. No.
17-005]
PUBLIC RIGHT-OF-WAY
The area on, below, or above the public roadway, highway,
street, alley, easement or waterway. The term "public right-of-way"
does not include a federal, state or private right-of-way.
TELECOMMUNICATIONS FACILITY
The equipment or personal property, such as copper and fiber
cables, lines, wires, switches, conduits, pipes, and sheets, which
are used to or can generate, receive, transmit, carry, amplify, or
provide telecommunications services or signals. Telecommunications
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 communications devices.
TELECOMMUNICATIONS PROVIDER, PROVIDER and TELECOMMUNICATIONS
SERVICES
As defined in Section 102 of the Michigan Telecommunications
Act, Public Act No. 179 of 1991 (MCL 484.2102). The term "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 article 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.
[10-28-2002 by Ord. No.
1200]
(a) 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 article.
(b) Application. Telecommunications providers shall apply for a permit
on an application form approved by the State Public Service Commission
in accordance with Section 6(1) of the Act [MCL 484.3106(1)]. 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 two copies of the application
and distribute the copies to the Public Works Director and to the
Planning Director. Applications shall be complete and shall 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 [MCL 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 any trade secret or proprietary or confidential
information, which is exempt from the Freedom of Information Act,
Public Act No. 442 of 1976 (MCL 15.231 et seq.), pursuant to Section
6(5) of the Act [MCL 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 as
set forth in MCLA § 484.3106(4).
[6-26-2017 by Ord. No.
17-005]
(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
State Public Service Commission as provided in Section 6(2) of the
Act [MCL 484.3106(2)].
(f) Previously issued permits. Pursuant to Section 5(1) of the Act [MCL
484.3105(1)], authorizations or permits previously issued by the City
under Section 251 of the Michigan Telecommunications Act, Public Act
No. 179 of 1991 (MCL 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 article.
(g) Existing providers. Pursuant to Section 5(3) of the Act [MCL 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 City 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 (MCL 484.2251), shall submit to the City an application for a permit in accordance with the requirements of this article. Pursuant to Section 5(3) of the Act [MCL 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 [MCL 484.3105(4)].
[10-28-2002 by Ord. No.
1200]
(a) Approval or denial. The authority to approve or deny an application for a permit required under this article is hereby delegated to the City Manager. Pursuant to Section 15(3) of the Act [MCL 484.3115(3)], 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 §
42-94(b) of this article for access to a public right-of-way within the City. Pursuant to Section 6(6) of the Act [MCL 484.3106(6)], the City Manager shall notify the State Public Service Commission 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 State Public
Service Commission, with or without additional or different permit
terms, in accordance with Sections 6(1), 6(2) and 15 of the Act [MCL
484.3106(1), 484.3106(2) and 484.3115].
(c) Conditions. Pursuant to Section 15(4) of the Act [MCL 484.3115(4)],
the City Manager may impose conditions on the issuance of a permit,
which condition 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 [MCL 484.3115(3)] and without limitation on Subsection
(c) of this section, 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.
[10-28-2002 by Ord. No.
1200]
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
this chapter for construction within the public rights-of-way. No
fee shall be charged for such a construction or engineering permit.
[10-28-2002 by Ord. No.
1200]
Pursuant to Section 4(3) of the Act [MCL 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.
[10-28-2002 by Ord. No.
1200]
Pursuant to Section 6(7) of the Act [MCL 484.3106(7)], 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 State Public Service Commission and the City. The route
maps should be in paper format on twenty-four-inch by thirty-six-inch
paper and electronic format as designated by the City Manager unless
and until the State Public Service Commission determines otherwise,
in accordance with Section 6(8) of the Act [MCL 484.3106(8)].
[10-28-2002 by Ord. No.
1200]
Pursuant to Section 15(5) of the Act [MCL 484.31015(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 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.
[10-28-2002 by Ord. No.
1200]
In addition to the nonrefundable application fee paid to the City set forth in §
42-94(d), 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 (MCL 484.3108).
[10-28-2002 by Ord. No.
1200]
In compliance with the requirements of Section 13(1) of the
Act [MCL 484.3113(1)], 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 requirements of Section 13(4) of
the Act [MCL 484.3113(4)], the City also hereby approves modification
of the fees of providers with telecommunications 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 (MCL 484.3108).
The City 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 [MCL 484.3113(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 City's
policy and intent and upon application by the provider or discovery
by the City shall be promptly refunded as having been charged in error.
[10-28-2002 by Ord. No.
1200]
Pursuant to Section 13(5) of the Act [MCL 484.3113(5)], if Section 8 of the Act (MCL 484.3108) is found to be invalid or unconstitutional, the modification of fees under §
42-101 shall be void from the date the modification was made.
[10-28-2002 by Ord. No.
1200]
Pursuant to Section 10(4) of the Act [MCL 484.3110(4)], all
amounts received by the City from the Authority shall be used by the
City solely for right-of-way related purposes.
[10-28-2002 by Ord. No.
1200]
Pursuant to Section 10(5) of the Act [MCL 484.3110(5)], 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 this article.
[10-28-2002 by Ord. No.
1200]
Pursuant to Section 13(6) of the Act [MCL 484.3113(6)], 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 the 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.
[10-28-2002 by Ord. No.
1200]
Pursuant to Section 4(2) of the Act [MCL 484.3104(2)], except
as expressly provided in this article with respect to fees, this article
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.
[10-28-2002 by Ord. No.
1200]
The City hereby declares that its policy and intent in adopting
this article is to fully comply with the requirements of the Act,
and the sections of this article shall 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:
(1) Exempting certain route maps from the Freedom of Information Act, Public Act No. 442 of 1976 (MCL 15.231 et seq.), as provided in §
42-94(c);
(2) Allowing certain previously issued permits to satisfy the permit requirements of this article, in accordance with §
42-94(f);
(3) 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 §
42-94(g);
(4) 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 §
42-95(a);
(5) Notifying the State Public Service Commission when the City has granted or denied a permit, in accordance with §
42-95(a);
(6) Not unreasonably denying an application for a permit, in accordance with Section
42-95(a);
(7) Issuing a permit in the form approved by the state public service commission, with or without additional or different permit terms, as provided in Section
42-95(b);
(8) 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 Section
42-95(c);
(9) 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 Section
42-95(d);
(10)
Not charging any telecommunications providers any additional fees for construction or engineering permits, in accordance with §
42-96;
(11)
Providing each telecommunications provider affected by the City's right-of-way fees with a copy of this article, in accordance with §
42-101;
(12)
Submitting an annual report to the Authority, in accordance with §
42-104; and
(13)
Not holding a cable television operator in default for a failure to pay certain franchise fees, in accordance with §
42-105.
[10-28-2002 by Ord. No.
1200]
Pursuant to Section 15(2) of the Act [MCL 484.3115(2)], this
article shall not limit the City's right to review and approve
a telecommunications 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.
[10-28-2002 by Ord. No.
1200]
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 or municipal
civil infraction violation notices directing alleged violators to
appear at the Municipal Ordinance Violations Bureau for violations
under this article as provided by this Code.