The following article is hereby adopted and shall be known as
the Township of Buchanan "Telecommunications Facilities Ordinance."
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 48 of the Public Acts of Michigan
of 2002 ("Act 48"), MCLA § 484.3101 et seq., and other applicable
law, and to ensure that the Township qualifies for distributions under
Act 48 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 Act 48 or other applicable law.
For the purposes of this chapter, certain terms used herein
are defined as follows:
ACT 48
The Metropolitan Extension Telecommunications Rights-of-Way
Oversight Act, Act 48 of the Public Acts of Michigan of 2002, MCLA
§ 484.3101 et seq., as amended from time to time.
AUTHORITY
The Local Community Stabilization Authority created by PA
of 86 of 2014 (MCLA § 123.1347).
[Amended at time of adoption of Code (see Ch. 1, General
Provisions, Art. I)]
MPSC
The Michigan Public Service Commission of the State of Michigan
Department of Licensing and Regulatory Affairs, and shall have the
same meaning as the term "Commission" in Act 48.
[Amended at time of adoption of Code (see Ch. 1, General
Provisions, Art. I)]
PERMIT
A non-exclusive permit issued pursuant to Act 48 and this
article to a telecommunications provider to use the public rights-of-way
in the Township for its telecommunications facilities.
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.
SUPERVISOR
The Township Supervisor or his or her designee.
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, Act 179 of the Public Acts of Michigan of 1991, as amended, MCLA
§ 484.2102 et seq. 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 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, or service provided by any wireless,
two-way communication device. For the purpose of Act 48 and this article
only, a provider also includes all of the following:
A.
A cable television operator that provides a telecommunications
service.
B.
Except as otherwise provided by Act 48, a person who owns telecommunication
facilities located within a public right-of-way.
C.
A person providing broadband internet transport access service.
TOWNSHIP
The Township of Buchanan, Berrien County, Michigan.
TOWNSHIP BOARD
The Township Board of the Township or its designee. This
definition does not authorize delegation of any decision or function
that is required by law to be made by the Township Board.
A telecommunications provider shall not commence construction
upon, over, across, or under the public rights-of-way in the Township
without first obtaining any applicable construction or engineering
permit as required by this article, as amended, for construction within
the public rights-of-way. No fee shall be charged for such construction
or engineering permit.
Pursuant to Section 4(3) of Act 48, obtaining a permit or paying
the fees required under Act 48 or under this article does not give
a telecommunications provider a right to use conduit or utility poles.
Pursuant to Section 6(7) of Act 48, 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 the Township. The route maps should be in electronic
format unless and until the MPSC determines otherwise, in accordance
with Section 6(8) of Act 48.
Pursuant to Section 15(5) of Act 48, 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 §
233-5D above, 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 Act 48.
In compliance with the requirements of Section 13(1) of Act
48, the Township hereby modifies, to the extent necessary, any fees
charged to telecommunications providers after November 1, 2002, the
effective date of Act 48, relating to access and usage of the public
rights-of-way, to an amount not exceeding the amounts of fees and
charges required under Act 48, which shall be paid to the authority.
In compliance with the requirements of Section 13(4) of Act 48, 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 Act 48. 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 Act 48. To the extent any fees are charged to telecommunications
providers in excess of the amounts permitted under Act 48, or which
are otherwise inconsistent with Act 48, 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 Act 48, if Section 8 of Act 48 is found to be invalid or unconstitutional, the modification of fees under §
233-12 above shall be void from the date the modification was made.
Pursuant to Section 10(4) of Act 48, all amounts received by
the Township from the authority shall be used by the Township solely
for rights-of-way related purposes.
Pursuant to Section 10(5) of Act 48, if required by Act 48,
the Township Supervisor 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 Act 48, 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 Act 48, 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 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 Act 48, 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 Act 48, including, but not limited to, the following:
A. Exempting certain route maps from Act 442, as provided in §
233-5C of this article;
B. Allowing certain previously issued permits to satisfy the permit requirements hereof, in accordance with §
233-5F 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 §
233-5G 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 Township, in accordance with §
233-6A of this article;
E. Notifying the MPSC when the Township has granted or denied a permit, in accordance with §
233-6A of this article;
F. Not unreasonably denying an application for a permit, in accordance with §
233-6A 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 §
233-6B 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 §
233-6C 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 §
233-6D of this article;
J. Not charging any telecommunications providers any additional fees for construction or engineering permits, in accordance with §
233-7 of this article;
K. Providing each telecommunications provider affected by the Township's right-of-way fees with a copy of this article, in accordance with §
233-12 of this article;
L. Submitting an annual report to the authority, in accordance with §
233-15 of this article; and
M. Not holding a cable television operator in default for a failure to pay certain franchise fees, in accordance with §
233-16 of this article.
Pursuant to Section 15(2) of Act 48, 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.
The various parts, sentences, paragraphs, sections and clauses
of this article are hereby declared to be severable. If any part,
sentence, paragraph, section or clause of this article is adjudged
unconstitutional or invalid by a court or administrative agency of
competent jurisdiction, the unconstitutionality or invalidity shall
not affect the constitutionality or validity of any remaining provisions
of this article.