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Chapter 90 TELECOMMUNICATIONS* Article I. In General Secs. 90-1-90-10. Reserved. Article II. Metropolitan Extension Telecommunications Rights-of-Way Oversight Sec. 90-11. Purpose. Sec. 90-12. Conflict. Sec. 90-13. Terms defined. Sec. 90-14. Permit required. Sec. 90-15. Issuance of permit. Sec. 90-16. Construction/engineering permit. Sec. 90-17. Conduit or utility poles. Sec. 90-18. Route maps. Sec. 90-19. Repair of damage. Sec. 90-20. Establishment and payment of maintenance fee. Sec. 90-21. Modification of existing fees. Sec. 90-22. Savings clause. Sec. 90-23. Use of funds. Sec. 90-24. Annual report. Sec. 90-25. Cable television operators. Sec. 90-26. Existing rights. Sec. 90-27. Compliance. Sec. 90-28. Reservation of police powers. Sec. 90-29. Authorized city officials. Sec. 90-30. Municipal civil infraction. *State law references-Michigan telecommunications act, MCL 484.2101 et seq.; metropolitan extension telecommunications rights-of-way oversight act, MCL 484.3101 et seq.; Michigan broadband development authority act, MCL 484.3201 et seq.; uniform video services local franchise act, MCL 484.3301 et seq. CD90:1 TELECOMMUNICATIONS § 90-13 ARTICLE I. IN GENERAL Permit means a non-exclusive permit issued pursuant to the Act and this article to a telecom- Secs. 90-1-90-10. Reserved. munications provider to use the public rights-of- way in the city for its telecommunications facili- ties. ARTICLE II. METROPOLITAN EXTENSION TELECOMMUNICATIONS (b) All other terms used in this article shall RIGHTS-OF-WAY OVERSIGHT have the same meaning as defined or as provided in the act, including, without limitation, the fol- lowing: Sec. 90-11. Purpose. Authority means the Metropolitan Extension The purposes of this article are to regulate Telecommunications Rights-of-Way Oversight Au- access to, and ongoing use of, public rights-of-way thority created pursuant to section 3 of the act by telecommunications providers for their tele- (MCL 484.3103). communications facilities while protecting the public health, safety, and welfare and exercising MPSC means the Michigan Public Service Com- reasonable control of the public rights-of-way in mission in the Department of Consumer and compliance with the metropolitan extension tele- Industry Services, and shall have the same mean- communications rights-of-way oversight act, Pub- ing as the term "commission" in the Act, lic Act No. 48 of 2002 (MCL 484.3101 et seq.) ("act"), and other applicable law, and to ensure Public right-of-way means the area on, below, that the city qualifies for distributions under the or above a public roadway, highway, street, alley, Act by modifying the fees charged to providers easement or waterway. The term "public right-of- and complying with the act. way" does not include a federal, state, or private (Ord. No. 2091, § 90-1, 10-22-2002) right-of-way. Telecommunication facilities or facilities means Sec. 90-12. Conflict. the equipment or personal property, such as cop- per and fiber cables, lines, wires, switches, con- Nothing in this article shall be construed in duits, pipes, and sheaths, which are used to or can such a manner as to conflict with the act or other generate, receive, transmit, carry, amplify, or pro- applicable law. vide telecommunication services or signals. Tele- (Ord. No. 2091, § 90-2, 10-22-2002) communication facilities or facilities do not in- clude antennas, supporting structures for antennas, Sec. 90-13. Terms defined. equipment shelters or houses, and any ancillary (a) The terms used in this article shall have equipment and miscellaneous hardware used to the following meanings: provide federally-licensed commercial mobile ser- vice as defined in section 332(d) of part I of title Act means the Metropolitan extension telecom- III of the communications act of 1934, Chapter munications rights-of-way oversight act, Public 652, 48 Stat. 1064, 4 7 USC 332 and further Act No. 48 of 2002 (MCL 484.3101 et seq.), as defined as commercial mobile radio service in 4 7 amended from time to time. CFR 20.3, and service provided by any wireless, City means the City of Muskegon. two-way communication device. City commission means the city commission of Telecommunications provider, provider and tele- the City of Muskegon or its designee. This section communications services mean those terms as does not authorize delegation of any decision or defined in section 102 of the Michigan telecom- function that is required by law to be made by the munications act, Public Act No. 179 of 1991 (MCL city commission. 484.2102). The term "telecommunication pro- vider" does not include a person or an affiliate of City manager means the city manager of the that person when providing a federally-licensed City of Muskegon or his designee. commercial mobile radio service as defined in CD90:3 § 90-13 MUSKEGON CITY CODE section 332(d) of part I of the communications act (c) Confidential information. If a telecommuni- of 1934, Chapter 652, 48 Stat. 1064, 4 7 USC 332 cations provider claims that any portion of the and further defined as commercial mobile radio route maps submitted by it as part of its applica- service in 47 CFR 20.3, or service provided by any tion contain trade secret, proprietary, or confiden- wireless, two-way communication device. For the tial information, which is exempt from the free- purpose of the act and this article only, a provider dom of information act, Public Act No. 442 of 1976 also includes all of the following: (MCL 15.231 et seq.), pursuant to section 6(5) of the act (MCL 484.3106(5)), the telecommunica- (1) A cable television operator that provides a tions provider shall prominently so indicate on telecommunications service. the face of each map. (2) Except as otherwise provided by the act, a (d) Application fee. Except as otherwise pro- person who owns telecommunication fa- vided by the act, the application shall be accom- cilities located within a public right-of- panied by a one-time nonrefundable application way. fee in the amount of $500.00. (3) A person providing broadband internet (e) Additional information. The city manager transport access service. may request an applicant to submit such addi- (Ord. No. 2091, § 90-3, 10-22-2002) tional information which the city manager deems reasonably necessary or relevant. The applicant Sec. 90-14. Permit required. shall comply with all such requests in compliance (a) Permit required. Except as otherwise pro- with reasonable deadlines for such additional vided in the act, a telecommunications provider information established by the city manager. If using or seeking to use public rights-of-way in the the city and the applicant cannot agree on the city for its telecommunications facilities shall requirement of additional information requested apply for and obtain a permit pursuant to this by the city, the city or the applicant shall notify article. the MPSC as provided in section 6(2) of the act (MCL 484.3106(2)). (b) Application. (f) Previously issued permits. Pursuant to sec- (1) Telecommunications providers shall ap- tion 5(1) of the act (MCL 484.3105(1)), authoriza- ply for a permit on an application form tions or permits previously issued by the city approved by the MPSC in accordance with under section 251 of the Michigan telecommuni- section 6(1) of the act (MCL 484.3106(1)). cations act, Public Act No. 179 of 1991 (MCL 484.2251), and authorizations or permits issued (2) A telecommunications provider shall file: by the city to telecommunications providers prior a. One copy of the application with the to the 1995 enactment of section 251 of the city clerk; Michigan telecommunications act, but after 1985, shall satisfy the permit requirements of this arti- b. One copy with the city manager; and cle. c. One copy with the city attorney. (g) Existing providers. Pursuant to section 5(3) (3) Upon receipt, the city clerk shall make of the act (MCL 484.3105(3)), within 180 days three copies of the application and distrib- from November 1, 2002, the effective date of the ute a copy to the departments of public act, a telecommunications provider with facilities works, engineering, and finance. Applica- located in a public right-of-way in the city as of tions shall be complete and include all such date, that has not previously obtained au- information required by the act, includ- thorization or a permit under section 251 of the ing, without limitation, a route map show- Michigan telecommunications act, Public Act No. ing the location of the provider's existing 179 of 1991 (MCL 484.2251), shall submit to the and proposed facilities in accordance with city an application for a permit in accordance with section 6(5) of the act (MCL 484.3106(5)). the requirements of this article. Pursuant to CD90:4 TELECOMMUNICATIONS § 90-19 section 5(3) of the act (MCL 484.3105(3)), a tele- public right-of-way is returned to its original communications provider submitting an applica- condition during and after the telecommunica- tion under this subsection is not required to pay tions provider's access and use. the $500.00 application fee required under sub- (Ord. No. 2091, § 90-5, 10-22-2002) section (d) of this section. A provider under this subsection shall be given up to an additional 180 Sec. 90-16. Construction/engineering permit. days to submit the permit application if allowed by the authority, as provided in section 5(4) of the A telecommunications provider shall not com- act (MCL 484.3105(4)). mence construction upon, over, across, or under (Ord. No. 2091, § 90-4, 10-22-2002) the public rights-of-way in the city without first obtaining a construction or engineering permit as Sec. 90-15. Issuance of permit. required under this chapter, as amended, for construction within the public rights-of-way. No (a) Approval or denial. The authority to ap- fee shall be charged for such a construction or prove or deny an application for a permit is engineering permit. hereby delegated to the city manager. Pursuant to (Ord. No. 2091, § 90-6, 10-22-2002) 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 Sec. 90-17. Conduit or utility poles. telecommunications provider files an application Pursuant to section 4(3) of the act (MCL for a permit under section 90-14(b) for access to a 484.3104(3)), obtaining a permit or paying the public right-of-way within the city. Pursuant to fees required under the act or under this article section 6(6) of the act (MCL 484.3106(6)), the city does not give a telecommunications provider a manager shall notify the MPSC when the city right to use conduit or utility poles. manager has granted or denied a permit, includ- (Ord. No. 2091, § 90-7, 10-22-2002) ing information regarding the date on which the application was filed and the date on which per- mit was granted or denied. The city manager Sec. 90-18. Route maps. shall not unreasonably deny an application for a permit. Pursuant to section 6(7) of the act (MCL 484.3106(7)), a telecommunications provider shall, (b) Form ofpermit. If an application for permit within 90 days after the substantial completion of is approved, the city manager shall issue the construction of new telecommunications facilities permit in the form approved by the MPSC, with in the city, submit route maps showing the loca- or without additional or different permit terms, in tion of the telecommunications facilities to both accordance with sections 6(1), 6(2) and 15 of the the MPSC and to the city. The route maps should act (MCL 484.3106(1), (2), 484.3115). be in paper and electronic format unless and until the MPSC determines otherwise, in accordance (c) Conditions. Pursuant to section 15(4) of the with section 6(8) of the act (MCL 484.3106(8)). act (MCL 484.3115(4)), the city manager may (Ord. No. 2091, § 90-8, 10-22-2002) impose conditions on the issuance of a permit, which conditions shall be limited to the telecom- munications provider's access and usage of the Sec. 90-19. Repair of damage. public right-of-way. Pursuant to section 15(5) of the act (MCL (d) Bond requirement. Pursuant to section 15(3) 484.3115(5)), a telecommunications provider un- of the act (MCL 484.3115(3)), and without limita- dertaking an excavation or construction or install- tion on subsection (c) of this section, the city ing telecommunications facilities within a public manager may require that a bond be posted by right-of-way or temporarily obstructing a public the telecommunications provider as a condition of right-of-way in the city, as authorized by a permit, the permit. If a bond is required, it shall not shall promptly repair all damage done to the exceed the reasonable cost to ensure that the street surface and all installations under, over, CD90:5 § 90-19 MUSKEGON CITY CODE below, or within the public right-of-way and shall invalid or unconstitutional, the modification of promptly restore the public right-of-way to its fees under section 90-21 shall be void from the preexisting condition. date the modification was made. (Ord. No. 2091, § 90-9, 10-22-2002) (Ord. No. 2091, § 90-12, 10-22-2002) Sec. 90-20. Establishment and payment of Sec. 90-23. Use of funds. maintenance fee. Pursuant section 9(4) of the act (MCL In addition to the nonrefundable application 484.3109(4)), all amounts received by the city fee paid to the city set forth in section 90-14(d), a from the authority shall be used by the city solely telecommunications provider with telecommuni- for rights-of-way related purposes. cations facilities in the city's public rights-of-way (Ord. No. 2091, § 90-13, 10-22-2002) shall pay an annual maintenance fee to the au- thority pursuant to section 8 of the act (MCL Sec. 90-24. Annual report. 484.3108). (Ord. No. 2091, § 90-10, 10-22-2002) Pursuant to section 10(5) of the act (MCL 484.3110(5)), the city manager shall file an an- Sec. 90-21. Modification of existing fees. nual report with the authority on the use and disposition of funds annually distributed by the In compliance with the requirements of section authority. 13(1) of the act (MCL 484.3113(1)), the city hereby (Ord. No. 2091, § 90-14, 10-22-2002) modifies, to the extent necessary, any fees charged to telecommunications providers after November Sec. 90-25. Cable television operators. 1, 2002, the effective date of the act, relating to access and usage of the public rights-of-way, to an Pursuant to section 13(6) of the act (MCL amount not exceeding the amounts of fees and 484.3113(6)), the city shall not hold a cable tele- charges required under the act, which shall be vision operator in default or seek any remedy for paid to the authority. In compliance with the its failure to satisfy an obligation, if any, to pay requirements of section 13(4) of the act (MCL after November 1, 2002, the effective date of this 484.3113(4)), the city also hereby approves modi- act, a franchise fee or similar fee on that portion fication of the fees of providers with telecommu- of gross revenues from charges the cable operator nication facilities in public rights-of-way within received for cable modem services provided through the city's boundaries, so that those providers pay broadband internet transport access services. only those fees required under section 8 of the act. (Ord. No. 2091, § 90-15, 10-22-2002) The city shall provide each telecommunications provider affected by the fee with a copy of this Sec. 90-26. Existing rights. article, in compliance with the requirement of section 13(4) of the act (MCL 484.3113(4)). To the Pursuant to section 4(2) of the act (MCL extent any fees are charged telecommunications 484.3104(2)), except as expressly provided herein providers in excess of the amounts permitted with respect to fees, this article shall not affect under the act, or which are otherwise inconsistent any existing rights that a telecommunications with the act, such imposition is hereby declared to provider or the city may have under a permit be contrary to the city's policy and intent, and, issued by the city or under a contract between the upon application by a provider or discovery by the city and a telecommunications provider related to city, shall be promptly refunded as having been the use of the public rights-of-way. charged in error. (Ord. No. 2091, § 90-16, 10-22-2002) (Ord. No. 2091, § 90-11, 10-22-2002) Sec. 90-27. Compliance. Sec. 90-22. Savings clause. The city hereby declares that its policy and Pursuant to section 13(5) of the act (MCL intent in adopting this article is to fully comply 484.3113(5)), if section 8 of the act is found to be with the requirements of the act, and the provi- CD90:6 TELECOMMUNICATIONS § 90-30 sions hereof should be construed in such a man- (10) Not charging any telecommunications pro- ner as to achieve that purpose. The city shall viders any additional fees for construction comply in all respects with the requirements of or engineering permits, in accordance with the act, including, but not limited to, the follow- section 90-16; ing: (11) Providing each telecommunications pro- (1) Exempting certain route maps from the vider affected by the city's right-of-way freedom of information act, Public Act No. fees with a copy of this article, in accor- 442 of 1976 (MCL 15.231 et seq.), as dance with section 90-21; provided in section 90-14(c); (12) Submitting an annual report to the au- (2) Allowing certain previously issued per- thority, in accordance with section 90-24; mits to satisfy the permit requirements and hereof, in accordance with section 90- (13) Not holding a cable television operator in 14(f); default for a failure to pay certain fran- (3) Allowing existing providers additional time chise fees, in accordance with section 90- in which to submit an application for a 25. permit, and excusing such providers from (Ord. No. 2091, § 90-17, 10-22-2002) the $500.00 application fee, in accordance with section 90-14(g); Sec. 90-28. Reservation of police powers. (4) Approving or denying an application for a Pursuant to section 15(2) of the act (MCL permit within 45 days from the date a 484.3115(2)), this article shall not limit the city's telecommunications provider files an ap- right to review and approve a telecommunication plication for a permit for access to and provider's access to and ongoing use of a public usage of a public right-of-way within the right-of-way or limit the city's authority to ensure city, in accordance with section 90-15(a); and protect the health, safety, and welfare of the public. (5) Notifying the MPSC when the city has (Ord. No. 2091, § 90-18, 10-22-2002) granted or denied a permit, in accordance with section 90-15(a); Sec. 90-29. Authorized city officials. (6) Not unreasonably denying an application The city manager or his designee is hereby for a permit, in accordance with section designated as the authorized city official to issue 90-15(a); municipal civil infraction citations for violations (7) Issuing a permit in the form approved by under this article as provided by this Code. the MPSC, with or without additional or (Ord. No. 2091, § 90-20, 10-22-2002) different permit terms, as provided in section 90-15(b); Sec. 90-30. Municipal civil infraction. (8) Limiting the conditions imposed on the A person who violates any provision of this issuance of a permit to the telecommuni- article or the terms or conditions of a permit is cations provider's access and usage of the responsible for a municipal civil infraction, and public right-of-way, in accordance with shall be subject to appropriate municipal civil section 90-15(c); infraction fines. Nothing in this section shall be construed to limit the remedies available to the (9) Not requiring a bond of a telecommunica- city in the event of a violation by a person of this tions provider which exceeds the reason- article or a permit. able cost to ensure that the public right- (Ord. No. 2091, § 90-21, 10-22-2002) of-way is returned to its original condition during and after the telecommunication provider's access and use, in accordance with section 90-15(d); CD90:7
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