(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.)