The issuance of a permit or permits under this subchapter and the access to and use of the public utility easements and rights-of-way by a telecommunications provider shall not constitute a waiver of or otherwise adversely affect the following reserved rights.
(A) Right to require franchise. Article VII, § 29 of the 1963 Michigan Constitution requires that all public utilities obtain a franchise to conduct a local business within the township. The applicability of this requirement to telecommunications providers may be challenged under § 102(dd) of the State Telecommunications Act, being Public Act 480, M.C.L.A. §§ 484.2101 et seq. which purports to define telecommunications services as not constituting public utility services. Due to this and other legal and regulatory issues, and to avoid the expense and delay of litigation that may be unnecessary, the township hereby determines that telecommunications providers shall not be required at this time to obtain franchises for the transaction of local business within the township. Telecommunications providers shall be required to obtain and maintain a permit for access to and ongoing use of the public utility easements and rights-of-way and to otherwise comply with the terms of this subchapter. A permit shall not constitute a franchise. The township reserves the right to require telecommunications providers to obtain a franchise in the future to transact local business within the township.
(B) Rights regarding takings claim. Certain cable or telecommunications providers have initiated or supported legal proceedings in which they contend that federal law grants them the right to physically occupy the rights-of-way and other property of a municipality for the purpose of providing telecommunications service without compensating the municipality for the use or value of the property so occupied or the cost of acquiring and maintaining such property. Municipalities dispute that claim. The township believes that if such a claim were sustained, it would, among other things, constitute an unlawful taking by the United States in violation of the Fifth Amendment of the United States Constitution. The legal issues involved in the disputes have not been finally decided. The township desires to act on applications for permits granting access to its public utility easements and rights-of-way at this time rather than wait for determination of these issues, provided this can be done without waiver or loss of any rights of the township or a permittee. Therefore, notwithstanding any other provision hereof, a permittee is not precluded by this subchapter from seeking relief from the fee provisions of § 115.25 from any court or agency of competent jurisdiction. If a permittee seeks such relief, the township reserves the right to assert a takings claim and to take all action it deems necessary in support thereof. Neither this subchapter nor the issuance or acceptance of a permit hereunder constitutes or will be claimed to constitute a waiver or relinquishment of any rights or defenses of either the township or the permittee in connection with these disputed issues, and the acceptance of a permit constitutes an acknowledgment and agreement thereto by the permittee.
(C) Option to obtain consent agreement. The township finds that legislative, legal and regulatory issues in connection with use of the public utility easements and rights-of-way by telecommunications providers and the resulting potential for litigation and delay are likely to have an adverse impact on the development of a healthy, competitive telecommunications infrastructure in the community. This would be detrimental to the township and its residents as well as to telecommunications providers. The issues affect, among other things, both the cost to telecommunications providers and compensation to the township for the maintenance and use of its public utility easements and rights-of-way. In order to promote certainty, encourage competition and avoid litigation, the township will, at the request and sole option of an applicant or permittee, consider entering into a consent agreement for use of the public utility easements and rights-of-way for the provision of telecommunications services on terms and conditions mutually acceptable to the township and the telecommunications provider. It is the township’s intent that such an agreement would satisfy the requirement for a permit under this subchapter, and would include, among other things, a fee of up to 5% of the applicable gross revenues of the telecommunications provider, which would include the permit fee; an extended term of up to 15 years; authorization to conduct a local business in the township pursuant to Article VII, § 29 of the 1963 Michigan Constitution; and a covenant to abide by the terms of the agreement as a compromise of disputed issues and uncertain outcomes, notwithstanding the resolution of these legislative, regulatory and legal requirements in the future. A permittee may request a consent agreement at any time.
(Prior Code, § V-2.01)