[Ord. No. 128, 10-7-2002]
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 (MCL 484.3101
et seq.) (the "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.
[Ord. No. 128, 10-7-2002]
Nothing in this article shall be construed in such a manner
as to conflict with the Act or other applicable law.
[Ord. No. 128, 10-7-2002]
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. All other terms
used in this article shall have the same meaning as defined or as
provided in the Act.
The metropolitan extension telecommunications rights-of-way
oversight act, Public Act No. 48 of 2002 (MCL 484.3101 et seq.).
The Metropolitan Extension Telecommunications Rights-of-Way
Oversight Authority created pursuant to Section 3 of the Act (MCL
484.3103).
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.
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 area on, below, or above a 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.
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. The term "telecommunications
facilities" or "facilities" does 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 USC 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, Public Act No. 179 of 1991 (MCL 484.2102). The term "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 USC 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:
The Village Council of the Village of Baroda 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.
[Ord. No. 128, 10-7-2002]
(a)
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 state public service commission
(MPSC) 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 Village Clerk and one copy with the Village 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 (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 trade secret, 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 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 (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 Village
under Section 251 of the Michigan telecommunications act, Public Act
No. 179 of 1991 (MCL 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 (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 Village 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 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 (MCL 484.3105(3)), a telecommunications provider submitting an application under this subsection is not required to pay the $500 application fee required under Subsection (c) 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)).
[Ord. No. 128, 10-7-2002]
(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 (MCL 484.3115(3)), 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 Section 28-22(b) for access to a public right-of-way within the Village. Pursuant to Section 6(6) of the Act (MCL 484.3106(6)), 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 (MCL 484.3106(1), (2), 484.3115).
(c)
Conditions. Pursuant to Section 15(4) of the Act (MCL 484.3115(4)),
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 (MCL 484.3115(3)), and without limitations on Subsection (c) of this section, 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.
[Ord. No. 128, 10-7-2002]
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.
[Ord. No. 128, 10-7-2002]
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.
[Ord. No. 128, 10-7-2002]
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 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 commission determines otherwise, in accordance
with Section 6(8) of the Act (MCL 484.3106(8)).
[Ord. No. 128, 10-7-2002]
Pursuant to Section 15(5) of the Act (MCL 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 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.
[Ord. No. 128, 10-7-2002]
In addition to the nonrefundable application fee paid to the Village set forth in § 28-22(d), 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 (MCL 484.3108).
[Ord. No. 128, 10-7-2002]
In compliance with the requirements of Section 13(1) of the
Act (MCL 484.3113(1)), 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 (MCL 484.3113(4)), 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
(MCL 484.3108). 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 (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 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.
[Ord. No. 128, 10-7-2002]
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 § 28-29 shall be void from the date the modification was made.
[Ord. No. 128, 10-7-2002]
Pursuant to Section 9(4) of the Act (MCL 484.3109(4)), 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 Public Act No. 51 of 1951 (MCL
247.651 et seq.).
[Ord. No. 128, 10-7-2002]
Pursuant to Section 10(5) of the Act (MCL 484.3110(5)), the
Village Clerk shall file an annual report with the authority on the
use and disposition of funds annually distributed by the authority.
[Ord. No. 128, 10-7-2002]
Pursuant to Section 13(6) of the Act (MCL 484.3113(6)), 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 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.
[Ord. No. 128, 10-7-2002]
Pursuant to Section 4(2) of the Act (MCL 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 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.
[Ord. No. 128, 10-7-2002]
(a)
The Village hereby declares that its policy and intent in adopting
the ordinance from which this article is derived 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:
(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 § 28-22(c).
(2)
Allowing certain previously issued permits to satisfy the permit requirements of this article, in accordance with § 28-22(f).
(3)
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 § 28-22(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 Village, in accordance with § 28-23(a).
(5)
Notifying the MPSC when the Village has granted or denied a permit, in accordance with § 28-23(a).
(7)
Issuing a permit in the form approved by the MPSC, with or without additional or different permit terms, as provided in § 28-23(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 § 28-23(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 § 28-23(d).
(10)
Not charging any telecommunications providers any additional fees for construction permits, in accordance with § 28-24.
[Ord. No. 128, 10-7-2002]
Pursuant to Section 15(2) of the Act (MCL 484.3115(2)), this
article shall not limit the Village's right to review and approve
a telecommunication 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.
[Ord. No. 128, 10-7-2002]
The Village Clerk or his 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 violation notices (directing alleged violators to appear
at the municipal ordinance violations bureau) for violations under
this article as provided by this Code.
[Ord. No. 128, 10-7-2002]
A person who violates any provision of this article or the terms
or conditions of a permit is responsible for a municipal civil infraction,
and shall be subject to a fine of $100 plus costs. Nothing in this
section shall be construed to limit the remedies available to the
Village in the event of a violation by a person of this article or
a permit.
