(a) The purpose and intent of this Chapter is to:
(1) Manage the Public Ways with regard to Service Providers and Services.
(2) Establish clear local guidelines and time frames for the exercise of local authority with respect to the regulation of Service Providers using the Village's Public Ways.
(3) Establish certain policies applying to Cable Operators using the Village's Public Ways.
(4) Promote competition in utility, cable television and telecommunications industries.
(5) Encourage the provision of advanced and competitive utility, cable television and telecommunications services on the widest possible basis to the businesses, institutions and residents of the Village.
(6) Permit and manage reasonable access to the Public Ways of the Village for utility, cable television and telecommunications service purposes on a competitively neutral basis.
(7) Conserve the limited physical Capacity of the Public Ways held in public trust by the Village.
(8) Assure that the Village's current and ongoing costs of granting and regulating private access to and use of the Public Ways are fully paid by the Persons seeking such access and causing such costs.
(9) Reserve the right to secure fair and reasonable compensation to the Village and the residents of the Village on a competitively neutral and non discriminatory basis for permitting private use of the Public Ways.
(10) Assure that all Service Providers providing Facilities or Services within or through the Village comply with the ordinances, rules and regulations of the Village.
(11) Assure that the Village can continue to fairly and responsibly protect the public health, safety and welfare.
(12) Enable the Village to discharge its public trust consistent with rapidly evolving federal and State regulatory policies, industry competition and technological development.
(b) For the purpose of this Chapter, and the interpretation and enforcement thereof, the following words and phrases shall have the following meanings, unless the context of the sentence in which they are used shall indicate otherwise:
(1) Affiliate means a Person that (directly or indirectly) owns or controls, is owned or controlled by, or is under common ownership or control with another Person.
(2) Annual Gross Revenue means all revenue, as determined in accordance with generally accepted accounting principles (including, without limitation, subscription, equipment and advertising revenue), which is received directly or indirectly from the distribution of any Service over a Permit Holder's Facilities located within the Village. Gross Revenues do not include sales and use tax, franchise fees, and other governmental charges and fees collected by a Permit Holder.
(3) Cable Operator means a Person providing or offering to provide Cable Service within the Village as that term is defined in the Cable Communications Policy Act of 1984, codified at 47 U.S.C. §532, et seq., amended by the Cable Television Consumer Protection and Competition Act of 1992 and the Telecommunications Act of 1996, as each might be further amended.
(4) Excavation or Excavate means to dig into or in any way remove or physically disturb or penetrate any part of the Public Way.
(5) Excess Capacity means the volume or Capacity in any existing or future duct, conduit, manhole, or other Facility within the Public Way that is or will be available for use for additional Facilities.
(6) Facilities or System means the plant, equipment and property, including but not limited to, cables, fibers, wires, pipes, conduits, ducts, pedestals, antennae, electronics, poles, pipes, mains, plant, transmitters, receivers, equipment and other appurtenances located under, on or above the surface of the ground within the Public Ways of the Village and used or to be used to transmit, receive, distribute, provide or offer Services but also including Private Facilities.
(7) Mayor means the Village Mayor, or his or her designee.
(8) Other Ways means the highways, streets, alleys, Public Utility Easements or other rights-of-way within the Village, but under the jurisdiction and control of a governmental entity other than the Village.
(9) Overhead Facilities means utility poles and wires, cables and other such equipment running between and on such poles, including the underground supports and foundations for such facilities.
(11) Person means and includes corporations, companies, associations, joint stock companies or associations, firms, partnerships, limited liability companies, trusts and individuals and include their lessors, trustees and receivers.
(12) Private Facility means the plant, equipment and property, including but not limited to, cables, fiber optics, wires, pipes, conduits, ducts, pedestals, antennae, electronics and other appurtenances used or to be used to transmit, receive, distribute or provide telecommunications, Cable Service or other Services between or among private buildings or facilities where there is no offer of service to the public.
(13) Public Street means any highway, street, alley or other public right-of-way under the jurisdiction and control of the Village which has been acquired, established, dedicated or devoted to Street purposes.
(14) Public Utility Easement means any easement owned by the Village and acquired, established, dedicated or devoted for public utility purposes.
(15) Public Way means and includes all Public Streets and Public Utility Easements, as those terms are defined herein, now or hereafter owned by the Village, but only to the extent of the Village's right, title, interest or authority to grant a permit or franchise to occupy and use such streets and easements for Facilities including Cable Service Facilities.
(16) PUCO or Public Utilities Commission of Ohio means the State Administrative agency, or lawful successor, authorized to regulate and oversee certain Service Providers and Services in the State of Ohio.
(17) Reconstruct means substantial physical change to all or a portion of a Facility or System involving construction with the Public Street, Public Utility Easements, or Public Ways.
(18) Service means the offering of utilities or telecommunications for a fee directly to the public, or to such classes of users as to be effectively available to the public, regardless of the Facilities used.
(19) Service Provider means and includes every Person that directly or indirectly owns, controls, operates or manages plant, equipment or property within the Village, used or to be used for the purpose of offering Service within the Village or outside of the Village's boundaries.
(20) State means the State of Ohio.
(21) Surplus Space means that portion of the Usable Space on a utility pole which has the necessary clearance from other pole users, as required by the orders and regulations of PUCO and other applicable State and local orders and regulations, to allow its use by a Service Provider for a pole attachment.
(22) Underground Facilities means Facilities located under the surface of the ground, excluding the underground foundations or supports for Overhead Facilities.
(23) Usable Space means the total distance between the top of a utility pole and the lowest possible attachment point that provides the minimum allowable vertical clearance as specified in the orders and regulations of the PUCO.
(25) Village means Village of Highland Hills.
(26) Village Property means and includes all real property owned by the Village, other than Public Streets and Public Utility Easements as those terms are defined herein, and all property held in a proprietary capacity by the Village, which are not subject to Public Way permits and franchising as provided in this Chapter.
(c) Preemption by State and Federal Law. Except as may be preempted by applicable State or Federal laws, rates, regulations, and orders, this Chapter shall apply and be controlling over each Service Provider engaged in the business of transmitting, supplying or furnishing of Services originating, passing through, or terminating in the Village.
(d) Annual Registration. Except as otherwise provided herein, any and all Service Providers who desire to construct, install, operate, maintain or otherwise locate Facilities in, under, over or across any Public Way of the Village shall first register with the Village on an annual basis, on a form provided by the Village, pursuant to Section 925.02 of this Chapter. Further, any Service Provider who currently maintains any Facility in, over or across any Public Way of the Village at the time of the effective date of this Chapter shall register with the Village pursuant to Section 925.02 within ninety (90) days of the effective date of this Chapter.
(e) Use Permits. Except as otherwise provided therein, any Service Provider who desires to construct, reconstruct, install, operate, maintain or otherwise locate Facilities in, under, over or across any Public Way of the Village for the purpose of either:
(1) Providing Service to Persons and areas outside the Village, or
(2) Providing Service to Persons or areas in the Village, shall first obtain a Use Permit permitting the use of such Public Ways pursuant to Section 925.03 of this Chapter.
(f) Private Facilities. Persons who wish to use any Public Way of the Village for Private Facilities shall first register pursuant to Section 925.02 and obtain a Use Permit and a Construction Permit (if applicable). The applicant shall comply with Section 925.03(b) “Use Permit Application” of this Chapter and, upon receiving a Use Permit, shall comply with all provisions of Section 925.05, “Construction Standards” (if applicable), of this Chapter. For purposes of compensation to the Village for use of the Public Way, a Private Facility shall be treated as a Service Provider which has obtained an Outside Services Use Permit.
(g) Cable Television Franchise. Any Person who desires to construct, reconstruct, install, operate, maintain or locate Facilities in any Public Way of the Village for the purpose of providing Cable Service to Persons in the Village shall first obtain a cable television franchise from the Village as provided in Section 925.07 of this Chapter.
Except as provided in Section 925.01(h) below, all Cable Operators providing Cable Service within the Village shall comply with the registration, Use Permit and Construction Permit requirements of this Chapter.
(h) Application to Existing Franchise Ordinances and Agreements. This Chapter shall have no effect on any existing franchise ordinance or franchise agreement until:
(1) The expiration of said franchise ordinance or agreement; or
(2) An amendment is made to an unexpired franchise ordinance or franchise agreement, unless both parties agree to defer full compliance with this Chapter.
(i) Exemption for Village-Owned or Operated Facilities. Nothing in this Chapter shall be construed to apply the provisions of this Chapter to Facilities wholly owned or operated by the Village or any of its operations.
(j) Application to Existing Code Provisions. This Chapter shall not apply matters including lateral lines of water, sanitary sewer and storm water drains; driveways and sidewalks; and street culverts and curb entrance cuts, down-spout openings and down-spout connections.
(k) Severability. If any section, subsection, sentence, clause, phrase, or other portion of this Chapter, or its application to any Person, is, for any reason, declared invalid, in whole or in part by any court or agency of competent jurisdiction, said decision shall not affect the validity of the remaining portions hereof. (Ord. 2002-29. Passed 6-19-02.)