[1]
Editor's Note: This article shall take effect on 12-22-2003.
[Ord. of 12-2-2003]
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.
[Ord. of 12-2-2003]
Nothing in this article shall be construed in such a manner
as to conflict with the Act or other applicable law.
[Ord. of 12-2-2003]
The terms used in this article shall have the following meanings:
The Metropolitan Extension Telecommunications Rights-of-Way
Oversight Act (Act No. 48 of the Public Acts of 2002), as amended
from time to time.
The City of Ithaca.
The City Council of the City of Ithaca 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 Council.
The City Manager or his or her designee.
A non-exclusive 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.
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 Consumer and Industry Services, and shall have the same meaning
as the term "Commission" in the Act.
An individual, corporation, partnership, association, governmental
entity, or any other legal entity.
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.
Those terms as defined in Section 102 of the Michigan Telecommunications
Act, 1991 PA 179, MCL 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:
[Ord. of 12-2-2003]
(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,
and one copy with the City Attorney. Upon receipt, the City Clerk
shall make copies of the application and distribute a copy to City
Council. 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,
which is exempt from the Freedom of Information Act, 1976 PA 442,
MCL 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 non-refundable application fee
in the amount of $500.
(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
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, 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, 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, MCL 484.2251, shall submit to the City an application for a permit in accordance with the requirements of this ordinance. 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.
[Ord. of 12-2-2003]
(a)
Approval or denial. The authority to approve or deny an application for a permit is hereby delegated to the City Manager. 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 § 34-124(b) 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.
[Ord. of 12-2-2003]
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 34 of this Code, as amended, for construction within the public rights-of-way. No fee shall be charged for such a construction or engineering permit.
[Ord. of 12-2-2003]
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.
[Ord. of 12-2-2003]
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 or electronic]
format unless and until the MPSC determines otherwise, in accordance
with Section 6(8) of the Act.
[Ord. of 12-2-2003]
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.
[Ord. of 12-2-2003]
In addition to the non-refundable application fee paid to the City set forth in § 34-124(d) 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.
[Ord. of 12-2-2003]
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.
[Ord. of 12-2-2003]
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 § 34-131 above shall be void from the date the modification was made.
[Ord. of 12-2-2003]
Pursuant to 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. Depositing the amounts received into the major street
fund and/or local street fund, maintained by the City under Act No.
51 of the Public Acts of 1951, would help ensure compliance with this
requirement of the Act.
[Ord. of 12-2-2003]
Pursuant to Section 10(5) of the Act, the City Manager shall
file an annual report with the authority on the use and disposition
of funds annually distributed by the authority.
[Ord. of 12-2-2003]
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 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.
[Ord. of 12-2-2003]
Pursuant to Section 4(2) of the Act, except as expressly provided
herein with respect to fees, this ordinance 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.
[Ord. of 12-2-2003]
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 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 the Freedom of Information Act, 1976 PA 442, MCL 15.231 to 15.246, as provided in § 34-124(c) of this article;
(b)
Allowing certain previously issued permits to satisfy the permit requirements hereof, in accordance with § 34-124(f) 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 § 34-124(g) 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 § 34-125(a) of this article;
(e)
Notifying the MPSC when the City has granted or denied a permit, in accordance with § 34-125(a) of this article;
(f)
Not unreasonably denying an application for a permit, in accordance with § 34-125(a) 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 § 34-125(b) 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 § 34-125(c) 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 § 34-125(d) of this article;
(j)
Not charging any telecommunications providers any additional fees for construction or engineering permits, in accordance with § 34-126 of this article;
[Ord. of 12-2-2003]
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.
[Ord. of 12-2-2003]
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.
[Ord. of 12-2-2003]
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 chapter violations bureau) for violations
under this article as provided by the City Code.
[Ord. of 12-2-2003]
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 the Code of Ordinances. Nothing in this section
shall be construed to limit the remedies available to the City in
the event of a violation by a person of this article or a permit.
