City Ordinance Chapter 090 - Telecommunications

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                                                        Chapter 90


                                                   Article I. In General
                       Secs. 90-1-90-10. Reserved.

                        Article II. Metropolitan Extension Telecommunications Rights-of-Way
                       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.

                                          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-
  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-
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

§ 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
                                                          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
           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

                                          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,

§ 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.
(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-

                                          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
  (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);


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