EDITOR'S NOTE: This chapter, previously titled "Excavations," was repealed in its entirety and re-enacted under its present title by Ordinance 96-149, passed May 7, 1997.
1016.01 Purpose and intent; definitions.
1016.02 Annual registration of service providers.
1016.03 Use permits.
1016.04 General public way use regulations.
1016.05 Construction standards.
1016.06 Fees and compensation.
1016.07 Cable television franchise.
1016.99 Penalties; equitable remedies.
CROSS REFERENCES
Establishment and care of streets - see Ohio R.C. 715.19, 717.01, 723.01
Openings by the municipality - see Ohio R.C. 723.02
Damage from excavation - see Ohio R.C. 723.49 et seq.
Digging, excavating and piling earth on streets - see Ohio R.C. 5589.10
Community Television Advisory Committee - see ADM. Ch. 280
Obstruction and special uses of public ways - see TRAF. Ch. 412
Operation of vehicle in barricaded area - see TRAF. 432.24
Barricades and warning lights for obstructions in streets - see GEN. OFF. 660.12
Utilities generally - see S.U. & P.S. Ch. 1050
(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 City's public ways.
(3) Establish certain policies applying to cable operators using the City'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 City.
(6) Permit and manage reasonable access to the public ways of the City 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 City.
(8) Assure that the City'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 City and the residents of the City, on a competitively neutral and nondiscriminatory basis, for permitting private use of the public ways.
(10) Assure that all service providers providing facilities or services within or through the City comply with the ordinances, rules and regulations of the City.
(11) Assure that the City can continue to fairly and responsibly protect the public health, safety and welfare.
(12) Enable the City 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 hereof, 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 who or which (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 City. Gross revenues do not include sales and use taxes, 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 City as that term is defined in the Cable Communications Policy Act of 1984, codified at 47 U.S.C. §532 et seq., as 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) "City" means the City of Hudson.
(5) "City Manager" means the City Manager, or his or her designee.
(6) "City property" means and includes all real property owned by the City, other than public streets and public utility easements as those terms are defined herein, and all property held in a proprietary capacity by the City, which are not subject to public way permits and franchising as provided in this chapter.
(7) "Excavation" or "excavate" means to dig into or in any way remove or physically disturb or penetrate any part of the public way.
(8) "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.
(9) "Facilities" or "system" means the plant, equipment and property, including, but not limited to, cables, fibers, wires, pipes, conduits, ducts, pedestals, antennas, electronics, poles, pipes, mains, plant, equipment and other appurtenances located under, on or above the surface of the ground within the public ways of the City and used or to be used to transmit, receive, distribute, provide or offer services, but also including private facilities.
(10) "Other ways" means the highways, streets, alleys, public utility easements or other rights-of-way within the City, but under the jurisdiction and control of a governmental entity other than the City.
(11) "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.
(13) "Person" means and includes corporations, companies, associations, joint stock companies or associations, firms, partnerships, limited liability companies, trusts and individuals, and includes their lessors, trustees and receivers.
(14) "Private facility" means the plant, equipment and property, including, but not limited to, cables, fiber optics, wires, pipes, conduits, ducts, pedestals, antennas, 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.
(15) "Public street" means any highway, street, alley or other public right-of-way under the jurisdiction and control of the City, which has been acquired, established, dedicated or devoted to street purposes.
(16) "Public utility easement" means any easement owned by the City and acquired, established, dedicated or devoted for public utility purposes.
(17) "Public way" means and includes all public streets and public utility easements, as those terms are defined herein, now or hereafter owned by the City, but only to the extent of the City'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.
(18) "PUCO" or "Public Utilities Commission of Ohio" means the State administrative agency, or its lawful successor, authorized to regulate and oversee certain service providers and services in the State of Ohio.
(19) "Reconstruct" means substantial physical change to all or a portion of a facility or system involving construction within the public streets, public utility easements or public ways.
(20) "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.
(21) "Service provider" means and includes every person who or which, directly or indirectly, owns, controls, operates or manages plant, equipment or property within the City, used or to be used for the purpose of offering service within the City or outside of the City's boundaries.
(22) "State" means the State of Ohio.
(23) "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.
(24) "Underground facilities" means facilities located under the surface of the ground, excluding the underground foundations or supports for overhead facilities.
(25) "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.
(26) "Use permit" shall have the meaning given to it in Section 1016.03(a).
(c) Pre-emption by State and Federal Law. Except as may be pre-empted 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 City.
(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 City shall first register with the City on an annual basis, on a form provided by the City, pursuant to Section 1016.02. Further, any service provider who currently maintains any facility in, over or across any public way of the City at the time of the effective date of this chapter shall register with the City pursuant to Section 1016.02 within ninety days of the effective date of this chapter.
(e) Use Permits. Except as otherwise provided herein, 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 City for the purpose of either providing service to persons and areas outside the City or providing service to persons or areas in the City, shall first obtain a use permit permitting the use of such public ways pursuant to Section 1016.03.
(f) Private Facilities. Persons who wish to use any public way of the City for private facilities shall first register pursuant to Section 1016.02 and obtain a use permit and a construction permit (if applicable). The applicant shall comply with Section 1016.03(b) and, upon receiving a use permit, shall comply with all provisions of Section 1016.05 (if applicable). For purposes of compensation to the City 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 or which desires to construct, reconstruct, install, operate, maintain or locate facilities in any public way of the City for the purpose of providing cable service to persons in the City shall first obtain a cable television franchise from the City as provided in Section 1016.07.
Except as provided in subsection (h) hereof, all cable operators providing cable service within the City 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 City-Owned or Operated Facilities. Nothing in this chapter shall be construed to apply the provisions of this chapter to facilities owned or operated by the City or any of its operations.
(j) Application to Existing Code Provisions. This chapter shall not apply to the subject matter of Section 1012.04, Chapter 1044 and Sections 1428.07 and 1428.08 of these Codified Ordinances, located in the City's public ways, including lateral lines of water, sanitary sewer and storm water drains; driveways and sidewalks; and street culverts and curb entrance cuts, downspout openings and downspout connections.
(Ord. 96-149. Passed 5-7-97.)
(a) Annual Registration Required. All service providers that offer or provide any service for a fee, either within the City or outside the City's corporate limits via facilities within the City, shall register each calendar year, on or before January 1, with the City, pursuant to this section, after filing an initial registration with the City prior to making application for a use permit. Further, any service provider who offers or provides service as described immediately above, at the time of the effective date of this chapter, shall register with the City pursuant to this section within ninety days of the effective date of this chapter. Registration forms will be provided by the City and shall require the following information:
(1) The identity, legal status and Federal tax identification number of the registrant, including any affiliates.
(2) The name, address and telephone number of the local officer, agent or employee responsible for the accuracy of the registration statement.
(3) A description of the registrant's existing or proposed facilities within the City.
(4) A description of the service that the registrant intends to offer or provide, or is currently offering or providing, to persons, firms, businesses or institutions within the City. Where a service is or will be provided by a nonaffiliated provider, the registrant shall identify that provider.
(5) If services include the provision of video programming, the registrant shall indicate the method of providing that service as one of the following: a radio-based system; common carriage; a cable system; or an open video system.
(6) Information sufficient to determine whether the transmission, origination or receipt of the services provided or to be provided by the registrant is taxable under City ordinances.
(7) Information sufficient to determine that the registrant has applied for and received any certificate of authority required by PUCO to provide services or facilities within the City.
(8) Information sufficient to determine that the registrant has applied for and received any construction permit, operating license, certification or other approval required by the Federal Communications Commission (FCC) to provide telecommunications or cable services or facilities within the City.
(9) A current "to scale" map or drawing that clearly locates all existing and proposed services or facilities, including horizontal and vertical information, facility type, size, depth and other such relevant information.
(10) Such other information as the City Manager may reasonably require.
(b) Registration Fee. Each service provider shall pay an initial registration fee of five hundred dollars ($500.00). In each year thereafter, each service provider shall pay an annual registration fee of three hundred fifty dollars ($350.00).
(c) Purpose of Registration. The purpose of registration under this section is to:
(1) Provide the City with accurate and current information concerning the service providers who offer or provide services within the City, or that own or operate facilities within the City;
(2) Assist the City in monitoring the usage of the public ways in order to ensure that the public receives the maximum possible benefit from that use and that the use is consistent with the best management and care of the public ways;
(3) Assist the City in the collection and enforcement of any Municipal taxes, franchise fees, compliance fees or charges that may be due the City; and
(4) Assist the City in monitoring compliance with local, State and Federal laws.
(Ord. 96-149. Passed 5-7-97.)
(a) Permit Required. 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 City will be required to obtain one of the two use permits described below. Any service provider who is currently maintaining, operating, constructing, installing or otherwise locating facilities in, over or across any public way of the City at the time of the effective date of this chapter shall apply for the appropriate use permit within ninety days of the effective date of this chapter. The use permits are as follows:
(1) An outside services use permit is required for the construction, reconstruction, installation, location, operation or maintenance of facilities whose sole purpose is to provide services to persons or areas outside the City.
(2) An inside services use permit is required for the construction, reconstruction, installation, location, operation or maintenance of facilities for the purpose of providing services to any person or area within the City.
(b) Permit Application. Any person who is required to obtain a use permit pursuant to this section shall file an application with the City which shall include the following information:
(1) The identity of the applicant, including all affiliates of the applicant.
(2) A description of the services that will be offered or provided by the applicant over its facilities.
(3) A description of the transmission medium that will be used by the applicant to offer or provide such services.
(4) Preliminary engineering plans, specifications and a network map of the facilities located, or to be located, within the City, all in sufficient detail to identify:
A. The location and route requested for the applicant's proposed facilities on a "to scale" drawing established using State Plane Coordinates and which includes all information listed herein.
B. The location of all overhead and underground public utility, utility, telecommunications, cable, water, sanitary sewer, storm water drainage and other facilities in the public way along the proposed route.
C. The location(s), if any, for interconnection with the facilities of other service providers.
D. The specific trees, structures, improvements, facilities and obstructions, if any, that the applicant proposes to temporarily or permanently remove or relocate.
(5) If the applicant is proposing to install overhead facilities, evidence that surplus space is available for locating its facilities on existing utility poles along the proposed route.
(6) If the applicant is proposing an underground installation in existing ducts or conduits within the public ways, information in sufficient detail to identify:
A. The excess capacity currently available in such ducts or conduits before installation of the applicant's facilities; and
B. The excess capacity, if any, that will exist in such ducts or conduits after installation of the applicant's facilities.
(7) If the applicant is proposing an underground installation within new ducts or conduits to be constructed within the public ways:
A. The location and depth proposed for the new ducts or conduits; and
B. The excess capacity that will exist in such ducts or conduits after installation of the applicant's facilities
(8) A preliminary construction schedule and completion date.
(9) Financial statements prepared in accordance with generally accepted accounting principles demonstrating the applicant's financial ability to construct, operate, maintain, relocate and remove the facilities.
(10) Information in sufficient detail to establish the applicant's technical qualifications, experience and expertise regarding the facilities and services described in the application.
(11) Information to establish that the applicant has obtained all other governmental approvals and permits to construct and operate the facilities and to offer or provide the services.
(12) All fees, deposits or charges required pursuant to Section 1016.06.
(13) Such other and further information as may be required by the City Manager.
(c) Inside Services Use Permit; Additional Required Information. Any service provider wishing to obtain an inside services use permit must provide the following additional information in its permit application:
(1) An accurate map showing the location of any existing facilities in the City that the applicant intends to use or lease, on a "to scale" drawing established using State Plane Coordinates.
(2) A description of the services or facilities that the applicant will offer or make available to the City and other public, educational and governmental institutions.
(3) A description of the applicant's access and line extension policies.
(4) The area or areas of the City the applicant desires to serve and a schedule for build-out to the entire area addressed by the permit.
(5) All fees, deposits or charges required pursuant to Section 1016.06.
(6) Such other and further information as may be requested by the City Manager.
(d) Determination by the City. Within 120 days after receiving a complete application under subsections (b) and (c) hereof, the City Manager shall issue a written determination granting or denying the application in whole or in part, applying the following standards:
(1) The financial and technical ability of the applicant.
(2) The legal ability of the applicant.
(3) The capacity of the public ways to accommodate the applicant's proposed facilities.
(4) The capacity of the public ways to accommodate additional facilities if the permit is issued.
(5) The damage or disruption, if any, of public or private facilities, structures, improvements, service, travel or landscaping if the permit is issued.
(6) The public interest in minimizing the cost and disruption of construction within the public ways.
(7) The effect, if any, on public health, safety and welfare if the permit is issued.
(8) The availability of alternate routes and/or locations for the proposed facilities.
(9) Applicable Federal and State laws, regulations and policies.
(10) Such other factors as may demonstrate that the permission to use the public ways will serve the community interest.
If the application is denied, the written determination shall include the reasons for denial.
(e) Amendment of Permit.
(1) A new outside services use permit shall be required of any outside services use permit holder that desires:
A. To extend its facilities in the City's public ways; or
B. To locate its facilities in public ways of the City in areas that are not included in a use permit previously issued under this chapter.
(2) A new inside services use permit shall be required of any inside services use permit holder that desires:
A. To extend its designated service area under an inside services use permit; or
B. To locate its facilities in public ways of the City that are not included in an inside services use permit previously issued under this chapter.
(3) If ordered by the City to locate or relocate its facilities in public ways not included in a previously issued permit, the City shall issue a permit amendment consistent with the City's order without further application.
(Ord. 96-149. Passed 5-7-97.)
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