(a) Under the Uniform Video Services Local Franchise Act, video service providers may obtain a franchise to provide video services in the municipality using a standardized uniform form of franchise agreement established by the MPSC. This form includes the right to use the public right-of-way to provide such service but does not contain right-of-way management and related provisions.
(b) Municipality’s cable television franchise with its current cable operator predates the Uniform Video Services Local Franchise Act and may be interpreted to have right-of-way management and related provisions, directly or through the Charter and City Code provisions referenced therein. The Act states that as of January 1, 2007, “any provisions” of such an agreement “that are inconsistent with or in addition to” the standardized, uniform form of franchise agreement established by the MPSC “are unreasonable and unenforceable by the franchising entity.” Although the municipality and other local units of government have challenged this provision of the Act in Court, there has been no final resolution of the challenges, and there may not be one for some time.
(c) Telecommunications providers who obtain a standardized, uniform form of franchise agreement generally will have previously obtained from municipality a permit under the Metro Act to construct and maintain their telecommunications facilities in the public right-of-way. These Metro Act permits set forth the terms and conditions for the right-of-way usage; standard forms of such permits were agreed to in a collaborative process between municipalities and providers that was initiated by the MPSC; and such standard forms have since been approved by the legislature and the MPSC.
(d) Because telecommunications providers typically provide video services over combined video and telecommunications facilities, such Metro Act permits generally provide adequate public right-of-way related protections for municipality and the public when such providers are providing video services.
(e) Other video service providers, in particular new providers or existing cable operators, may not have a Metro Act permit issued by municipality.
(f) The Uniform Video Services Local Franchise Act and the standardized, uniform franchise agreement require video service providers with such an agreement to comply with all valid and enforceable local regulations regarding the use and occupation of the public right-of-way in the delivery of video services, including the police powers of the franchising entity, and makes such right-of-way usage subject to the laws of the State of Michigan and the police powers of the franchising entity.
(g) The Uniform Video Services Local Franchise Act and the standardized uniform franchise agreement state that franchising entities shall provide video service providers with open, comparable, nondiscriminatory and competitively neutral access to the public right-of-way, and may not discriminate against a video service provider for the authorization or placement of a video-service or communications network in the public right-of-way.
(h) The Michigan Constitution reserves reasonable control of the highways, streets, alleys and public places to local units of government, which may exercise such authority through the use of their police powers.
(i) The purpose of this ordinance is to promote and protect the public health, safety and welfare and exercise reasonable control over the public right-of-way by regulating the use and occupation of such rights-of-way by video service providers who lack a Metro Act permit from the municipality. This ordinance does so by setting forth terms and conditions for such usage and occupation from the forms of Metro Act permit approved by the MPSC and approved by the legislature in Section 6(1) of the Metro Act, thus providing open, comparable, nondiscriminatory and competitively neutral access to the public right-of-way and not discriminating against a video service provider for the authorization or placement of a video service or communications network in the public right-of-way.
(Ord. 3760, passed 11-23-2009)