951.04 RIGHTS-OF-WAY ADMINISTRATION.

   (a)   Administration. The Mayor shall be the principal City official responsible for the administration of this chapter, except as otherwise provided herein. The Mayor may delegate any or all of the duties hereunder to the Director of Public Service or other designee.

   (b)    Rights-of-Way Occupancy. Each Person who occupies, uses or seeks to occupy or use the Rights-of-Way to operate a System located in the Rights-of-Way, or who has, or seeks to have, a System located in any Rights-of-Way, shall apply for and obtain a Certificate of Registration pursuant to this chapter. Any Person owning, operating or maintaining a System in the Rights-of-Way without a Certificate of Registration, including Persons operating under a permit, license or franchise issued by the City prior to the effective date of this chapter shall apply for and obtain a Certificate of Registration from the City within ninety (90) days of the effective date of this chapter, unless exempted by Section 951.04 (d). The ninety (90) day requirement will be extended if, due to an inability on the City's behalf, all Persons obtaining or wishing to obtain a Certificate of Registration are not accommodated within the ninety (90) day period. The application for a Certificate of Registration will consist of providing the information set forth in Section 951.05 (b) and as reasonably required by the Mayor or his/her designee.

   (c)   No Construction Without a Certificate of Registration. Except for Minor Maintenance as provided in Section 951.19 , following the effective date of this chapter, no Person shall Construct or perform any work on or in any Rights-of-Way, nor shall a Provider use any System or any part thereof located on or in any Rights-of-Way without first obtaining a Certificate of Registration. Whoever violates this section is guilty of a misdemeanor of the fourth (4th) degree as provided for in Section 951.99 .

   (d)   Exceptions.

      (1)   The following entities are not obligated to obtain a Certificate of Registration: the City and resellers of Services that do not own any System or Facilities in the Rights-of-Way.

      (2)   The following entities are required to participate in the Certificate of Registration process, but shall be exempt from the financial obligations of the Application Fee required by Section 951.05 (a) and the Registration Maintenance Fee required by Section 951.07( (a): a county; Cable Operators for the purpose of providing only Cable Service and operating pursuant to a valid Cable Franchise; a Video Service Provider for the purpose of providing only Video Service and operating pursuant to a valid Video Service Authorization issued in accordance with Ohio R.C. Section 1332.24; a Small Cell Facility Operator for the purpose of providing Wireless Service; and any entity which possesses an existing and valid non-terminable, non-amendable or non-revocable written privilege or authority previously granted by the City for the use or occupancy of the Right-of-Way, whereby such exemption shall be limited to a specific term and limited conditions or obligations as previously granted. In addition, cable operators shall be exempt from any requirement of the certificate of registration process that is in direct conflict with the requirements of, and/or specifically exempted by, a valid current and valid cable franchise with the city.

   (e)   Systems in Place Without a Certificate of Registration. Any system or part of a system found in Rights-of-Way for which a Certificate of Registration has not been obtained or is not otherwise exempted under Section 951.04 (d)(1) shall be deemed to be a nuisance and an unauthorized use of the Rights-of-Way. The City may exercise any remedies or rights it has at law or in equity, including, but not limited to abating the nuisance; taking possession of the facilities and/or noncomplying portion of such system; and/or prosecuting the violator.

   (f)    Future Uses. Subject to applicable Law, in allowing Providers and Permittees to place Facilities in the Rights-of-Way, the City shall not be liable for any damages caused thereby to any Provider's Facilities that are already in place or that shall be placed in the Rights-of-Way unless those damages arise out of the sole negligence, gross negligence, willful misconduct, or fraud of the City. No Provider is entitled to rely on the provisions of this chapter as creating a special duty to any Provider.

   (g)   Discontinuance of Operations, Abandoned and Unused Facilities.

      (1)   A Provider who has discontinued or is discontinuing its operations of any System in the City shall:

         A.   Provide information satisfactory to the City that the Provider's obligations for its System in the Rights-of-Way under this section and any other sections in the Code have been lawfully assumed by another Applicant and/or Provider; or

         B.   Submit a written proposal to re-use its Facilities in a manner that promotes the City's goals of providing innovative and economic solutions to efficiently and economically utilize limited Rights-of-Way capacity. Such proposal must be approved or denied by the Director of Public Service. A denial by the Director of Public Service shall be done in writing and describe the reasons for such a denial. The denial may be appealed by the Provider to the Mayor. The decision of the Mayor shall be final; or

         C.   Submit a written proposal for abandonment of Facilities indicating why good engineering practice would support this type of solution. The Director of Public Service must approve or deny said proposal. A denial by the Director of Public Service shall be done in writing and describe the reasons for such a denial. The denial may be appealed by the Provider to the Mayor. The decision of the Mayor shall be final; or

         D.   Completely remove all specifically identified portion(s) of its System in a manner acceptable to the City within a reasonable amount of time if the City believes that there exists a reasonable justification for such removal; or

         E.   Submit to the City within a reasonable amount of time and in accordance with Ohio R.C. Section 4905.20 and Section 4905.21, a proposal for transferring ownership of its Facilities to the City. If a Provider proceeds under this clause, the City may, at its option where lawful:

            1.   Purchase the Facilities; or

            2.   Unless a valid Removal Bond has already been posted pursuant to Section 951.21 , require the Provider to post a bond in an amount sufficient to reimburse the City for reasonably anticipated costs to be incurred in removing the Facilities.

      (2)   Facilities of a Provider that fail to comply with this Section and which remain Unused Facilities shall be deemed to be abandoned. Abandoned Facilities are deemed to be a nuisance. The City may exercise any remedies or rights it has at law or in equity, including, but not limited to:

         A.   Abating the nuisance;

         B.   Taking possession of the Facilities and restoring them to a useable condition subject to a finding of the PUCO pursuant to the requirements of Ohio R.C. Section 4905.20 and 4905.21; or

         C.   Requiring removal of the Facilities by the Provider or by the Provider's surety.

      (3)   If the City requires a Provider to remove Unused Facilities in any Rights-of-Way, the City shall use reasonable efforts to insure that this removal occur in conjunction with other scheduled excavations of the Rights-of-Way. If the City abates the nuisance it may take all action necessary to recover its costs and to abate said nuisance, including but not limited to, those methods set forth in Ohio R.C. Section 715.261.

   (h)   Nature of Issuance. A Certificate of Registration shall not convey equitable or legal title in the Rights-of-Way. A Certificate of Registration is only the nonexclusive, limited right to occupy Rights-of-Way in the City, for the limited purposes and for the limited period stated in the Certificate of Registration and in accordance with this chapter. The rights to occupy the Right-of-Way may not be subdivided or subleased; provided, however, that two (2) or more Providers may locate Facilities in the same area of the Rights-of-Way so long as each such Provider complies with the provisions of this chapter. Such Providers may file a joint application for a Construction Permit. A Certificate of Registration does not excuse a Provider from obtaining appropriate access or pole attachment agreements before co-locating its Facilities on Facilities of others, including the City's Facilities. A Certificate of Registration does not prevent a Provider from leasing space in or on the Provider's System, so long as the sharing of Facilities does not cause a violation of law, including the provisions of this chapter. A Certificate of Registration does not excuse a Provider from complying with any provisions of the Code or other applicable law.

   (i)   Other Approvals, Permits, and Agreements. In addition to a Certificate of Registration, Providers shall obtain all regulatory approvals, permits, authorizations, or licenses necessary for the offering or provision of such Services from the appropriate federal, state and local authorities and upon the City's reasonable request, shall provide copies of such documents to the City. Further, a Certificate of Registration issued pursuant to this chapter shall not entitle a Provider to use, alter, convert to, or interfere with, the Facilities, Small Cell Facilities, Wireless Facilities, Wireless Support Structures, easements, poles, conduits, lines, pipelines, wires, fiber, cable or any other real or personal property of any kind under the management or control of the City.

(Ord. 30-2019. Passed 4-22-19.)