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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)
(a) [Reserved.]
(b) Overlashing. Permittee shall not allow the wires or any other facilities of a third party to be overlashed to permittee’s facilities without municipality’s prior written consent. Municipality’s right to withhold written consent is subject to the authority of the MPSC under Section 361 of the Michigan Telecommunications Act, MCLA § 484.2361.
(c) No burden on public right-of-way. Permittee, its contractors, subcontractors and the facilities shall not unduly burden or interfere with the present or future use of any of the public rights-of-way. Permittee’s aerial cables and wires shall be suspended so as to not endanger or injure persons or property in or about the public right-of-way. If municipality reasonably determines that any portion of the facilities constitutes an undue burden or interference, due to changed circumstances, permittee, at its sole expense, shall modify the facilities or take such other actions that municipality may determine is in the public interest to remove or alleviate the burden, and permittee shall do so within a reasonable time period. Municipality shall attempt to require all occupants of a pole or conduit whose facilities are a burden to remove or alleviate the burden concurrently.
(d) No priority. This ordinance does not establish any priority of use of the public right-of-way by permittee over any present or future permittees or parties having agreements with municipality or franchises for such use. In the event of any dispute as to the priority of use of the public right-of-way, the first priority shall be to the public generally, the second priority to municipality, the third priority to the State of Michigan and its political subdivisions in the performance of their various functions, and thereafter as between other permit, agreement or franchise holders, as determined (except as otherwise provided by law) by municipality in the exercise of its powers, including the police power and other powers reserved to and conferred on it by the State of Michigan.
(e) Restoration of property. Permittee, its contractors and subcontractors shall immediately (subject to seasonal work restrictions) restore, at permittee’s sole expense, in a manner approved by municipality, any portion of the public right-of-way that is in any way disturbed, damaged, or injured by the construction, installation, operation, maintenance or removal of the facilities to a reasonably equivalent (or, at permittee’s option, better) condition as that which existed prior to the disturbance. In the event that permittee, its contractors or subcontractors fail to make such repair within a reasonable time, municipality may make the repair and permittee shall pay the costs municipality incurred for the repair.
(f) Marking. Permittee shall mark its facilities installed after the effective date of this ordinance as follows: Aerial portions of the facilities shall be marked with a marker on permittee’s lines on alternate poles which shall state permittee’s name and provide a toll-free number to call for assistance. Direct buried underground portions of the facilities shall have: (1) a conducting wire placed in the ground at least several inches above permittee’s cable (if such cable is nonconductive); (2) at least several inches above that, a continuous colored tape with a statement to the effect that there is buried cable beneath; and (3) stakes or other appropriate above-ground markers with permittee’s name and a toll-free number indicating that there is buried cable below. Bored underground portions of the facilities shall have a conducting wire at the same depth as the cable and shall not be required to provide the continuous colored tape. Portions of the facilities located in conduit, including conduit of others used by permittee, shall be marked at its entrance into and exit from each manhole and handhole with permittee’s name and a toll-free telephone number.
(g) Tree trimming. Permittee may trim trees upon and overhanging the public right-of-way so as to prevent the branches of such trees from coming into contact with the facilities, consistent with any standards adopted by municipality. Permittee shall dispose of all trimmed materials. Permittee shall minimize the trimming of trees to that essential to maintain the integrity of the facilities. Except in emergencies, all trimming of trees in the public right-of-way shall have the advance approval of Manager.
(h) Installation and maintenance. The construction and installation of the facilities shall be performed pursuant to plans approved by municipality. The open cut of any public right-of-way shall be coordinated with the Manager or Manager’s designee. Permittee shall install and maintain the facilities in a reasonably safe condition. If the existing poles in the public right-of-way are overburdened or unavailable for permittee’s use, or the facilities of all users of the poles are required to go underground, then permittee shall, at its expense, place such portion of its facilities underground, unless municipality approves an alternate location. Permittee may perform maintenance on the facilities without prior approval of municipality, provided that permittee shall obtain any and all permits required by municipality in the event that any maintenance will disturb or block vehicular traffic or are otherwise required by municipality.
(i) Pavement cut coordination.
(1) Permittee shall coordinate its construction and all other work in the public right-of-way with municipality’s program for street construction and rebuilding (collectively “street construction”) and its program for street repaving and resurfacing (except seal coating and patching) (collectively, “street resurfacing”).
(2) The goals of such coordination shall be to encourage permittee to conduct all work in the public right-of-way in conjunction with or immediately prior to any street construction or street resurfacing planned by municipality.
(j) Compliance with laws. Permittee shall comply with all valid and enforceable Federal and State statutes and regulations; and all valid and enforceable local regulations regarding the use and occupation of the public right-of-way, including the police powers of municipality, regarding the construction, installation, and maintenance of its facilities, now in force or which hereafter may be promulgated. Before any installation is commenced, permittee shall secure all necessary permits, licenses and approvals from municipality or other governmental entity as may be required by law, including, without limitation, all utility line permits and highway permits. Municipality shall not unreasonably delay or deny issuance of any such permits, licenses or approvals. Permittee shall comply in all respects with applicable codes and industry standards, including but not limited to the National Electrical Safety Code (latest edition adopted by Michigan Public Service Commission) and the National Electrical Code (latest edition). Permittee shall comply with all zoning and land use ordinances and historic preservation ordinances as may exist or may hereafter be amended. This section does not constitute a waiver of permittee’s right to challenge laws, statutes, ordinances, rules or regulations now in force or established in the future.
(k) Street vacation. If municipality vacates or consents to the vacation of public right-of-way within its jurisdiction, and such vacation necessitates the removal and relocation of permittee’s facilities in the vacated public right-of-way, permittee shall consent to the vacation and remove its facilities at its sole cost and expense when ordered to do so by municipality or a Court of competent jurisdiction. Permittee shall relocate its facilities to such alternate route as municipality and permittee mutually agree, applying reasonable engineering standards.
(l) Relocation. If municipality requests permittee to relocate, protect, support, disconnect or remove its facilities because of street or utility work, or other public projects, permittee shall relocate, protect, support, disconnect, or remove its facilities, at its sole cost and expense, including where necessary to such alternate route as municipality and permittee mutually agree, applying reasonable engineering standards. The work shall be completed within a reasonable time period.
(m) Public emergency. Municipality shall have the right to sever, disrupt, dig up or otherwise destroy facilities of permittee if such action is necessary because of a public emergency. If reasonable to do so under the circumstances, municipality shall attempt to provide notice to permittee. Public emergency shall be any condition which poses an immediate threat to life, health or property caused by any natural or manmade disaster, including, but not limited to, storms, floods, fire, accidents, explosions, water main breaks, hazardous material spills, etc. Permittee shall be responsible for repair at its sole cost and expense of any of its facilities damaged pursuant to any such action taken by municipality.
(n) Miss Dig. If eligible to join, permittee shall subscribe to and be a member of “Miss Dig,” the association of utilities formed pursuant to Act 53 of the Public Acts of 1974, as amended, MCLA §§ 460.701 et seq., and shall conduct its business in conformance with the statutory provisions and regulations promulgated thereunder.
(o) Underground relocation. If permittee has its facilities on poles of Consumers Energy, Detroit Edison or another electric or telecommunications provider and Consumers Energy, Detroit Edison or such other electric or telecommunications provider relocates its system underground, then permittee shall relocate its facilities underground in the same location at permittee’s sole cost and expense.
(p) Identification. All personnel of permittee and its contractors or subcontractors, who have as part of their normal duties contact with the general public, shall wear on their clothing a clearly visible identification card bearing permittee’s name, their name and photograph. Permittee shall account for all identification cards at all times. Every service vehicle of permittee and its contractors or subcontractors shall be clearly identified as such to the public, such as by a magnetic sign with permittee’s name and telephone number.
(Ord. 3760, passed 11-23-2009)
Statutory reference:
Protection of underground facilities, see MCLA 460.701 et seq.
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