(a) Administration. The Mayor shall be the principal municipal official responsible for the administration of Chapter 997, except as otherwise provided herein. The Mayor may delegate any or all of the duties hereunder to a designee.
(b) Rights of Way Occupancy. Each person who occupies, uses or seeks to occupy or use the rights of way to operate a system located in the rights of way, or who has, or seeks to have, a system located in any rights of way, shall apply for and obtain a certificate of registration pursuant to Chapter 997. Any person owning, operating or maintaining a system in the rights of way without a certificate of registration, including persons operating under a permit, license or franchise issued by the Municipality prior to the effective date of Chapter 997 shall apply for and obtain a certificate of registration from the Municipality, unless exempted by Section 997.02(d). Application will consist of providing the information set forth in Section 997.03 and as reasonably required by the Mayor.
(c) No Construction Without a Certificate of Registration. Following the effective date of Chapter 997, no person shall construct or perform any work on or in, or use any system or any part thereof located on or in any rights of way without first obtaining a Certificate of Registration. Whoever violates this section is guilty of a misdemeanor of the fourth degree as provided for in Section 997.99.
(d) Exceptions.
(1) The following entities are not obligated to obtain a certificate of registration: the Municipality and resellers of services or persons that do not own any system or facilities in the rights of way.
(2) The following entities are required to participate in the certificate of registration process, but shall be exempt from the financial obligations of the application fee required by Section 997.03(a) and the registration maintenance fee required by Section 997.05(A): Cable operators for the purpose of providing only cable service and operating pursuant to a valid cable franchise, and video service provider for the purpose of providing only video service and operating pursuant to a valid video service authorization issued in accordance with Ohio R.C. 1332.24. In addition, cable operators shall be exempt from any requirement of the certificate of registration process that is in direct conflict with the requirements of, and/or specifically exempted by, a valid current and valid cable franchise with the Municipality.
(3) If a public utility, as defined by Ohio R.C. 4905.02, or a public utility company, as defined by Ohio R.C. 4905.03, previously has been granted a certificate of registration under Section 997.03 of the Village of Perry Codified Ordinances, then such public utility shall be exempt from the requirement of Section 997.03 to apply for and/or obtain a renewal of the certificate of registration unless such public utility intends to use or occupy new and additional right-of-way. Such public utility shall not be required to submit an annual application for the renewal of a certificate of registration and shall not be required to comply with the other application and reporting requirements set forth in Section 997.03 and Section 997.04 of the Village of Perry Codified Ordinances.
(4) Other exceptions permitted by Ohio R.C. Chapter 4939.
(e) Systems in Place Without a Certificate of Registration. Any system or part of a system found in a rights of way for which a certificate of registration has not been obtained shall be deemed to be a nuisance and an unauthorized use of the rights of way. The Municipality may exercise any remedies or rights it has at law or in equity, including, but not limited to abating the nuisance; taking possession of the facilities and/or non-complying portion of such system; and/or prosecuting the violator.
(f) Future Uses. In allowing providers and permittees to place facilities in the rights of way, the Municipality shall not be liable for any damages caused thereby to any provider's facilities that are already in place or that shall be placed in the rights of way unless those damages arise out of the sole negligence, gross negligence, willful misconduct, or fraud of the Municipality. No provider is entitled to rely on the provisions of this Chapter as creating a special duty to any provider.
(g) Discontinuance of Operations, Abandoned and Unused Facilities.
(1) A provider who has discontinued or is discontinuing its operations of any system in the Municipality shall:
A. Provide information satisfactory to the Municipality that the provider's obligations for its system in the rights of way under this section and any other sections in the Code have been lawfully assumed by another applicant and/or provider; or
B. Submit a written proposal to re-use its facilities in a manner that promotes the Municipality's goals of providing innovative and economic solutions to efficiently and economically utilize limited rights of way capacity. Such proposal must be approved by the Municipality Engineer; or
C. Submit a written proposal for abandonment of facilities in place indicating why good engineering practice would support this type of solution. The Municipal Engineer must approve said proposal; or
D. Completely remove all specifically identified portion(s) of its system in a manner acceptable to the Municipality within a reasonable amount of time if the Municipality believes that there exists a reasonable justification for such removal; or
E. Submit to the Municipality within a reasonable amount of time and in accordance with Ohio R.C. 4905.20 and 4905.21, a proposal for transferring ownership of its facilities to the Municipality. If a provider proceeds under this clause, the Municipality may, at its option where lawful:
1. Purchase the facilities; or
2. Unless a valid removal bond has already been posted pursuant to Section 997.17(B), require the provider to post a bond in an amount sufficient to reimburse the Municipality for reasonably anticipated costs to be incurred in removing the facilities.
(2) Facilities of a provider who fail to comply with this section and which remain unused facilities shall be deemed to be abandoned. Abandoned facilities are deemed to be a nuisance. The Municipality may exercise any remedies or rights it has at law or in equity, including, but not limited to:
A. Abating the nuisance;
B. Taking possession of the facilities and restoring them to a useable condition subject to a finding of the PUCO pursuant to the requirements of Ohio R.C. 4905.20 and 4905.21; or
C. Requiring removal of the facilities by the provider or by the provider's surety.
(3) If the Municipality requires a provider to remove unused facilities in any rights of way, the Municipality shall use reasonable efforts to direct that this removal occur in conjunction with other scheduled excavations of the rights of way. If the Municipality abates the nuisance it may take all action necessary to recover its costs and to abate said nuisance, including but not limited to, those methods set forth in Ohio R.C. 715.261.
(h) Nature of Issuance. A certificate of registration shall not convey equitable or legal title in the rights of way. A certificate of registration is only the nonexclusive, limited right to occupy rights of way in the Municipality, for the limited purposes and for the limited period stated in the certificate of registration and in accordance with Chapter 997 of this Code. The rights to occupy the right of way may not be subdivided or subleased; provided, however, that two or more providers may collocate facilities in the same area of the rights of way so long as each such provider complies with the provisions of Chapter 997. Collocating providers may file a joint application for a construction permit. A certificate of registration does not excuse a provider from obtaining appropriate access or pole attachment agreements before co-locating its facilities on facilities of others, including the Municipality's facilities. A certificate of registration does not prevent a provider from leasing space in or on the provider's system, so long as the sharing of facilities does not cause a violation of law, including the provisions of Chapter 997. A certificate of registration does not excuse a provider from complying with any provisions of the Code or other applicable law.
(i) Other Approvals, Permits, and Agreements. In addition to a certificate of registration, providers shall obtain any and all regulatory approvals, permits, authorizations, or licenses necessary for the offering or provision of such services from the appropriate federal, state and local authorities and upon the Municipality's reasonable request, shall provide copies of such documents to the Municipality. Further, a certificate of registration issued pursuant to Chapter 997 shall not entitle a provider to use, alter, convert to, or interfere with, the facilities, easements, poles, conduits, lines, pipelines, wires, fiber, cable or any other real or personal property of any kind whatsoever under the management or control of the Municipality.
(j) Rules and Regulations. The Municipal Engineer may propose, and Council may adopt (and from time to time amend) the rules and regulations regarding Chapter 997, construction standards and occupancy requirements of the right of way. Such rules and regulations shall not materially increase the obligation of any provider hereunder, provided however that none of the following shall in any way be considered a material increase in obligation; the adoption of rules and regulations increasing fees; the requiring of the placement of facilities in designated portions of the rights of way (underground or otherwise); the overbuilding of facilities; or the requiring of joint-builds. Prior to the adoption or amendment of the rules and regulations, the Municipality shall provide written notice and a copy of the proposed language of such adoption or amendment, via United States regular mail, to each provider who holds a then current certificate of registration. Each provider shall then have thirty days following the date of the Municipality's mailing to provide written comment regarding the proposed language to the Municipality. At least forty-five days, but not more than sixty days following the date of the Municipality's mailing, the Municipality shall schedule and hold a meeting, to make available a forum at which all then current providers may address any questions, concerns and make reasonable suggestions regarding the proposed new rules and regulations to the Municipality. The Municipal Engineer shall, following said meeting and the review of the providers' comments and suggestions, adopt or amend the rules and regulations in a manner that best serves the Municipality, for approval by Municipal Council
(Ord. 2019-06. Passed 6-13-19; Ord. 2019-11. Passed 9-26-19.)