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ARTICLE IX. VIDEO SERVICE PROVIDER RIGHT-OF-WAY MANAGEMENT
(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)
This ordinance shall be interpreted and applied so as to be consistent with the Metro Act and corresponding provisions of the forms of Metro Act permit approved by the MPSC, including applicable MPSC, metro authority and Court decisions and determinations relating to same.
(Ord. 3760, passed 11-23-2009)
ACT. The Uniform Video Services Local Franchise Act, being Act 480 of the Public Acts of 2006, MCLA §§ 484.3301 and following, as amended from time to time.
CABLE OPERATOR. Shall have the same meaning as in the Act.
CLAIMS. Shall have the meaning set forth in § 15-90(a).
FACILITIES. The lines, equipment and other facilities of a permittee which use or occupy the public right-of-way in the delivery of video services in municipality.
FRANCHISE AGREEMENT. The franchise agreement entered into or possessed by a video service provider with municipality as required by Section 3(1) of the Act, if it is the standardized, uniform form of franchise agreement established by the MPSC.
MANAGER. Municipality’s Mayor or his designee.
METRO ACT. The Metropolitan Extension Telecommunications Rights-of-Way Oversight Act, being Act 48 of the Public Acts of 2002, MCLA §§ 484.3101 and following.
METRO ACT PERMIT. A permit to use the public right-of-way issued by municipality under Chapter 15 of the municipality’s Code of Ordinances, which implements the Metro Act, after a provider’s application for same to municipality.
METRO AUTHORITY. Shall have the same meaning as “authority” in the Metro Act.
MPSC. The Michigan Public Service Commission, and shall have the same meaning as the term “Commission” in the Act and the Metro Act.
MUNICIPALITY. The City of Flint.
PERMITTEE. A video service provider without a currently valid Metro Act permit but with either (a) a preexisting agreement, or (b) a currently valid franchise agreement.
(1) Upon applying to municipality for and then obtaining a Metro Act permit from municipality, a video service provider is not a
PERMITTEE and is no longer required to comply with this ordinance. A video service provider is also not a PERMITTEE and is not required to comply with this ordinance if it and municipality enter into a voluntary franchise agreement as described in § 15-94(b) of this ordinance.
PERSON. An individual, corporation, association, partnership, governmental entity, or any other legal entity.
PREEXISTING AGREEMENT. A cable television franchise predating the effective date of the Act, January 1, 2007, which has not expired or been terminated.
PUBLIC RIGHT-OF-WAY. Shall have the same meaning as in the Act.
STREET CONSTRUCTION AND STREET RESURFACING. Shall have the meanings set forth in § 15-89(i) of this ordinance.
VIDEO SERVICE. Shall have the same meaning as in the Act.
VIDEO SERVICE PROVIDER. Shall have the same meaning as in the Act, and shall include an “incumbent video provider” as referred to in Section 5(2) of the Act.
(Ord. 3760, passed 11-23-2009)
Statutory reference:
Definitions, see 47 U.S.C. 522
Metropolitan Extension Telecommunications Rights-of-Way Oversight Act, see MCLA 484.3101 et seq.
Uniform Video Services Local Franchise Act, see MCLA 484.3301 et seq.
Compliance, insurance exception: All permittees shall comply with this ordinance, except that a permittee need not comply with the insurance provisions of § 15-91 of this ordinance if it is maintaining the insurance required by Section II.J of the standardized uniform form of franchise agreement established by the MPSC (which in accordance with the Act states that incumbent video providers shall comply with the terms which provide insurance for right-of-way related activities that are contained in its last cable franchise or consent agreement from the franchising entity entered into before the effective date of the Act).
(Ord. 3760, passed 11-23-2009)
(a) Permittee contacts. Permittee shall provide the Manager with the names, addresses and the like for engineering and construction related information for permittee and its facilities as follows:
(1) The address, e-mail address, phone number and contact person (title or name) at permittee’s local office (in or near municipality).
(2) If permittee’s engineering drawings, as-built plans and related records for the facilities will not be located at the preceding local office, the location address, phone number and contact person (title or department) for them.
(3) The name, title, address, e-mail address and telephone numbers of permittee’s engineering contact person(s) with responsibility for the design, plans and construction of the facilities.
(4) The address, phone number and contact person (title or department) at permittee’s home office/regional office with responsibility for engineering and construction related aspects of the facilities.
(5) Permittee shall at all times provide manager with the phone number at which a live representative of permittee (not voice mail) can be reached 24 hours a day, seven (7) days a week, in the event of a public emergency.
(6) Permittee shall notify municipality in writing pursuant to the notice provisions of its franchise agreement or preexisting agreement (whichever is then in effect) of any changes in the preceding information.
(b) Route maps. Within ninety (90) days after the substantial completion of construction of new facilities in municipality, permittee shall submit route maps showing the location of the facilities to municipality, in the same manner and subject to the same provisions as apply to telecommunications providers under Section 6(7) and 6(8) of the Metro Act, MCLA § 484.3106(7) and (8).
(c) As-built records. Permittee, without expense to municipality, shall, upon forty-eight (48) hours notice, give municipality access to all “as-built” maps, records, plans and specifications showing the facilities or portions thereof in the public right-of-way. Upon request by municipality, permittee shall inform municipality as soon as reasonably possible of any changes from previously supplied maps, records or plans and shall mark up maps provided by municipality so as to show the location of the facilities.
(Ord. 3760, passed 11-23-2009)
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