[Adopted 2-17-2003 (Ch.
57 of the 1978 General 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 (Act No. 48 of the Public Acts of 2002) ("Act") 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.
Nothing in this article shall be construed in such a manner
as to conflict with the Act or other applicable law.
A. The terms used in this article shall have the following meanings:
ACT
The Metropolitan Extension Telecommunications Rights-of-Way
Oversight Act (Act No. 48 of the Public Acts of 2002), as amended
from time to time.
CITY COMMISSION
The City Commission of the City of Lapeer or its designee.
This section does not authorize delegation of any decision or function
that is required by law to be made by the City Commission.
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 authority created under the Local Community
Stabilization Authority Act.
[Amended at time of adoption of Code (see Ch. 1, General
Provisions, Art. II)]
MPSC
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.
[Amended at time of adoption of Code (see Ch. 1, General
Provisions, Art. II)]
PERSON
An individual, corporation, partnership, association, governmental
entity, or any other legal entity.
PUBLIC RIGHT-OF-WAY
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.
TELECOMMUNICATION 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 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.
TELECOMMUNICATIONS PROVIDER, PROVIDER and TELECOMMUNICATIONS
SERVICES
Those terms as defined in Section 102 of the Michigan Telecommunications
Act, 1991 PA 179, 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:
(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.
A. Permit 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 MPSC in accordance with Section
6(1) of the Act. A telecommunications provider shall file one copy
of the application with the City Clerk, one copy with the City Manager,
one copy with the City Engineer, and one copy with the City Attorney.
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,
that is exempt from public disclosure under 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 City may request an applicant to submit
such additional information which the City 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. 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 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 City under Section 251 of the
Michigan Telecommunications Act, 1991 PA 179, MCLA § 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, 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, 1991 PA 179, MCLA § 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, a telecommunications provider submitting an application under this subsection is not required to pay the $500 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 City Manager shall have the authority to approve or deny an application for a permit. Pursuant to Section 15(3) of the Act, 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 §
26-4B of this article for access to a public right-of-way within the City. Pursuant to Section 6(6) of the Act, the City Manager shall notify the MPSC 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 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 City 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 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.
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 Chapter 94 of the Code of Ordinances, as amended, for construction within the public rights-of-way.
No additional 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 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 City, submit route maps
showing the location of the telecommunications facilities to both
the MPSC and to the City. The route maps should be in paper and 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 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.
In addition to the nonrefundable application fee paid to the City set forth in §
26-4D above, 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.
In compliance with the requirements of Section 13(1) of the
Act, 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 the requirements of Section 13(4) of the Act, the City also hereby
approves modification of the fees of providers with telecommunication
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. 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. 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 a provider
or discovery by the City, 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 §
26-11 above shall be void from the date the modification was made.
Pursuant Section 10(4) of the Act, all amounts received by the
City from the Authority shall be used by the City solely for rights-of-way
related purposes. In conformance with that requirement, all funds
received by the City from the Authority shall be deposited into the
Major Street Fund and/or the Local Street Fund maintained by the City
under Act No. 51 of the Public Acts of 1951.
Pursuant to Section 10(5) of the Act, the Director of Financial
Services shall file an annual report with the Authority on the use
and disposition of funds annually distributed by the Authority if
the population of the City is greater than 10,000.
Pursuant to Section 13(6) of the Act, 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.
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 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.
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 provisions hereof should 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:
A. Exempting certain route maps from public disclosure under the Freedom of Information Act, 1976 PA 442, MCLA §§ 15.231 to 15.246, as provided in §
26-4C of this article;
B. Allowing certain previously issued permits to satisfy the permit requirements hereof, in accordance with §
26-4F of this article;
C. Allowing existing providers additional time in which to submit an application for a permit, and excusing such providers from the $500 application fee, in accordance with §
26-4G 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 City, in accordance with §
26-5A of this article;
E. Notifying the MPSC when the City has granted or denied a permit, in accordance with §
26-5A of this article;
F. Not unreasonably denying an application for a permit, in accordance with §
26-5A 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 §
26-5B 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 §
26-5C of this article;
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 §
26-5D of this article;
J. Not charging any telecommunications providers any additional fees for construction or engineering permits, in accordance with §
26-6 of this article;
K. Providing each telecommunications provider affected by the City's right-of-way fees with a copy of this article, in accordance with §
26-11 of this article;
L. Submitting an annual report to the Authority, in accordance with §
26-14 of this article; and
M. Not holding a cable television operator in default for a failure to pay certain franchise fees, in accordance with §
26-15 of this article.
Pursuant to Section 15(2) of the Act, this article shall not
limit the City's right to review and approve a telecommunication
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.
The City Manager or City Manager's designee is hereby designated
as the authorized City official to issue civil infraction citations
(directing alleged violators to appear in court) for violations under
this article.
Any person who violates any provision of this article or the
terms or conditions of a permit is responsible for a civil infraction,
and shall be subject to a civil fine, sanctions and remedies.
This article and each section, subsection, paragraph, subparagraph,
part, provision, sentence, word and portion thereof are hereby declared
to be severable, and if they or any of hem are declared to be invalid
or unenforceable for any reason by a court of competent jurisdiction,
it is hereby provided that the remainder of this article shall not
be affected thereby.