(a) Findings and Purpose.
(1) The City of Xenia, Ohio (the "City") is vitally concerned with the use of all Rights-of-Way in the City as such Rights-of-Way are a valuable and limited resource.
(2) Changes in the public utilities and communication industries have increased the demand and need for access to Rights-of-Way and placement of facilities and structures therein.
(3) It is necessary to comprehensively plan and manage access to, and structures and facilities in, the Rights-of-Way.
(4) The City has authority under the laws and Constitution of the State of Ohio, including, but not limited, to Article 18, Sections 3, 4, and 7, to regulate public and private entities which use the Rights-of-Way.
(b) Scope. The provisions of this Chapter shall apply to all users of the Rights-of-Way. To the extent that anything in this Chapter conflicts with other sections of the Xenia City Code, then the provisions of this Chapter shall control.
(c) Definitions. For the purposes of this Chapter, the following terms, phrases, words, and their derivations have the meanings set forth herein. When not inconsistent with the context, words in the present tense include the future tense, words in the plural number include the singular number, and words in the singular number include the plural number. The words "shall" and "will" are mandatory and "may" is permissive. Words not defined shall be given their common and ordinary meaning.
References hereafter to "sections" are, unless otherwise specified, references to sections in this Chapter. Defined terms remain defined terms whether or not capitalized.
(1) "Abandoned" means the designation given to a facility, except for a small cell facility or wireless support structure in the right-of-way, when its operations or use are discontinued for a period exceeding ninety (90) consecutive days or a total of one hundred eighty (180) days in any three hundred sixty-five (365) day period, without notice of the discontinued operations or use given to the City by a Provider and without the City's approval, and except for a period of discontinued operations or use that has been caused by acts of God. Small cell facilities or wireless support structures shall be deemed abandoned if the facilities or support structures are unused for a period of three hundred sixty-five (365) days without the operator otherwise notifying the City and receiving the City's approval.
(2) "Affiliate" means each person who falls into one or more of the following categories:
A. Each person having, directly or indirectly, a controlling interest in a Provider;
B. Each person in which a Provider has, directly or indirectly, a controlling interest;
C. Each officer, director, general partner, limited partner or shareholder holding an interest of fifteen percent (15%) or more, joint venture or joint venture partner, of a Provider; and
D. Each person, directly or indirectly, controlling, controlled by, or under common control with the Provider; provided that an affiliate shall in no event mean any limited partner or shareholder holding an interest of less than fifteen percent (15%) of such Provider, or any creditor of such Provider solely by virtue of its status as a creditor and which is not otherwise an affiliate by reason of owning a controlling interest in, being owned by, or being under common ownership, common management, or common control with such Provider.
(3) "Antenna" means communications equipment that transmits or receives radio frequency signals in the provision of wireless service.
(4) "Applicant" means any person who seeks to obtain or renew a Certificate of Registration and/or Permit.
(5) "Application" means the process by which an applicant submits a request to obtain Certificate of Registration or a Permit.
(6) "Application Fee" means the fee paid to the City with an application for a Certificate of Registration pursuant to Section 1028.06(a) of this Chapter.
(7) "Bankruptcy Code" means the United States Bankruptcy Code of 1978, as amended including regulations promulgated by Title 11 of the United States Code.
(8) "Best Effort(s)" means the best reasonable efforts under the circumstances, taking into consideration, among other appropriate matters, all applicable laws, regulations, safety, engineering and operational codes, available technology, human resources and cost.
(9) "Business Day" means any Monday, Tuesday, Wednesday, Thursday, or Friday excluding legal holidays observed by the City.
(10) "Cable Franchise" means the same as "franchise" in the Cable Communications Policy Act of 1984, 98 Stat. 2779, 47 USC 522.
(11) "Cable Operator" means the same as in the Cable Communications Policy Act of 1984, 98 Stat. 2779, 47 USC 522.
(12) "Cable Service" means the same as in the Cable Communications Policy Act of 1984, 98 Stat. 2779, 47 USC 522.
(13) "Certificate of Registration" means the document issued to each Provider and its unique system to occupy the rights-of-way within the City that outlines the terms of that occupancy of the rights-of-way.
(14) "City" means the City of Xenia, Ohio.
(15) "City Council" means the governing body of the City of Xenia, Ohio.
(16) "City Manager" means the duly appointed City Manager of the City, or his or her designee.
(17) "Code" means the Xenia City Code ("XCC"), also known as the Codified Ordinances of the City.
(18) "Collocation" or "Co-location" means to install, mount, maintain, modify, operate, or replace wireless facilities on a wireless support structure.
(19) "Construct" means, but shall not be limited to, digging, boring, tunneling, trenching, excavating, obstructing, installing wires, installing conduit, installing pipes, installing transmission lines, installing poles, installing signs, or installing facilities, other than landscaping, ornamental plantings, in, on, above, within, over, below, under, or through any part of the rights-of-way. Construct shall also include the act of opening and/or cutting into the surface of any paved or improved surface that is any part of the right-of-way.
(20) "Construction" means, but shall not be limited to, the act or process of digging, boring, tunneling, trenching, excavating, obstructing, installing wires, installing conduit, installing pipes, installing transmission lines, installing poles, installing signs, or installing facilities, other than landscaping, ornamental plantings in, on, above, within, over, below, under, or through any part of the right-of-way. "Construction" shall also include the act of opening and/or cutting into the surface of any paved or improved surface that is part of the right-of-way.
(21) "Construction Bond" means a bond posted to ensure proper and complete construction and/or repair of a facility and the affected rights-of-way pursuant to a Permit.
(22) "Construction Cost" means the cost of installation, materials, engineering costs, and other incidental fees required for the construction, repair, or replacement of the real and/or personal property or facilities affected by construction in the rights-of-way.
(23) "Construction Permit" means the Permit, as specified in Section 1028.16 of this Chapter which must be obtained before a person may construct in, locate in, occupy, maintain, move, or remove facilities from, in, or on a right-of-way.
(24) "Construction and Major Maintenance Plan" means a written plan including maps of the expected location, design, other related equipment, and facilities of a Provider which describes in full the construction intended to be accomplished by the Provider in the rights-of-way over the next calendar year.
(25) "County" means Greene County, Ohio. County specifically excludes any and all contractors, agents, or other persons acting on behalf of such County.
(26) "Credible" means worthy of being believed.
(27) "Decorative Pole" means a pole, arch, or structure, other than a street light pole, placed in the right-of-way specifically designed and placed for aesthetic purposes and on which no appurtenances or attachments have been placed, except for the following: electric lighting means specifically designed informational or directional signage; or temporary holiday or special event attachments.
(28) "Department of Public Service" means the City's Department of Public Service.
(29) "Design Guidelines" means detailed guidelines and specifications promulgated by the City in accordance with ORC Chapter 4939 for the design and installation of small cell facilities and wireless support structures in the right-of-way.
(30) "Emergency" means a condition that poses a clear and immediate danger to life or health, or a significant loss of property.
(31) "Facility(ies)" means any tangible thing located in any rights-of-way within the City, and includes wireless facilities and wireless support structures, but shall not include boulevard plantings, ornamental plantings, or gardens planted or maintained in the rights-of-way between a person's property and the street edge of pavement.
(32) "FCC" means the Federal Communications Commission, or any successor thereto.
(33) "FERC" means the Federal Energy Regulatory Commission as created and amended in accordance with the Federal Power Act, 16 USC 792, or its statutory successor.
(34) "Full" means unable to accommodate any additional facilities as determined by the Public Service Director following a reasonable analysis taking into consideration all applicable laws, commonly accepted industry standards, and routine engineering practices.
(35) "Graffiti" means unauthorized writings, drawings, signs or other materials illegally scribbled, scratched, sprayed or posted on any surface.
(36) "Height" means the distance measured from the pre-existing grade level to the highest point on the structure, including the small cell facilities, even if said highest point is an antenna or lightening protection device.
(37) "Historic District" means a building, property, or site or group of buildings, properties, or sites that are either of the following:
A. Listed in the National Register of Historic Places or formally determined eligible for listing by the keeper of the National Register, who is the individual who has been delegated the authority by the federal agency to list properties and determine their eligibility for the National Register in accordance with Section VI.D.1.a.i-v of the nationwide programmatic agreement, codified at 47 CFR Part 1, Appendix C.
B. A registered historic district, as defined in ORC 149.311.
(38) "In" when used in conjunction with rights-of-way, means in, on, above, within, over, below, under or through a right-of-way.
(39) "Inspector" means any person authorized by the Public Service Director to carry out inspections related to the provisions of this Chapter.
(40) "Law(s)" means any local, state, or federal legislative, judicial, or administrative order, certificate, decision, statute, constitution, ordinance, resolution, regulation, rule, tariff, or other requirement in effect either at the time of execution of this Chapter or at any time during the location of, and/or while a Provider's facilities are located in, the public rights-of-way.
(41) "Law Director" means the City's duly appointed Director of Law of the City, or his or her designee.
(42) "Micro Wireless Permit" means a Permit that must be obtained before a person can construct, modify, collocate, or replace a small cell facility or wireless support structure, as set forth in Section 1028.19 of this Chapter, in or on the rights-of-way.
(43) "Minor Maintenance Permit" means a Permit, as specified Section 1028.18 of this Chapter, which must be obtained before a person can perform minor maintenance, as set forth in Section 1028.20 of this Chapter, in or on the rights-of-way.
(44) "Ohio Manual of Uniform Traffic Control Devices (OMUTCD)" means the uniform system of traffic control devices promulgated by the Ohio Department of Transportation pursuant to ORC 4511.09.
(45) "ORC" means the Revised Code of the State of Ohio.
(46) "Ohio Utility Protection Service" means the utility protection service as defined and described in ORC 153.64 and/or ORC 3781.25 - 3781.32 or any statutory successor(s) thereto.
(47) "Operator" means a wireless service provider, cable operator, or a video service provider that operates a small cell facility and provides wireless service. For the purposes of this Chapter, "Operator" includes a wireless service provider, cable operator, or a video service provider that provides information services as defined in the Telecommunications Act of 1996, 110 Stat.59, 47 USC 153(20), as services that are fixed in nature or use unlicensed spectrum.
(48) "Permit" means a Construction Permit, Micro Wireless Permit, or a Minor Maintenance Permit, unless otherwise specified.
(49) "Permit Cost" means all direct, incidental, and indirect costs actually incurred or realized by the City for permit issuance, permit oversight, and pavement degradation resulting from construction activity.
(50) "Permit Fee" means money paid to the City for a permit to construct in the rights-of-way as required by this Chapter.
(51) "Permittee" means any person to whom a Construction Permit, Micro Wireless Permit, and/or a Minor Maintenance Permit has been granted by the City and not revoked.
(52) "Person" means any natural or corporate person, business association, or other business entity including, but not limited to, a partnership, a sole proprietorship, a political subdivision, a public or private agency of any kind, a utility, a successor or assign of any of the foregoing, or any other legal entity.
(53) "Provider" means a person who owns or operates a system and has a valid Certificate of Registration. The City, County, small cell facility operators, and cable operators operating pursuant to a valid cable franchise, or video service providers operating pursuant to a valid VSA shall also be considered Providers.
(54) "Public Service Director" means the duly appointed Director of the City's Department of Public Service, or his or her designee.
(55) "Public Utility" means a wireless service provider, as defined in ORC 4927.01(A)(20) or any company described in ORC 4905.03, except in ORC 4905.03(B) and (I), which company is also a "Public Utility" as defined in ORC 4905.02, and includes any electric supplier, as defined in ORC 4933.81.
(56) "PUCO" means the Public Utilities Commission of Ohio, as defined in ORC 4901.02.
(57) "Registration Maintenance Fee" means the money paid to the City to maintain a Certificate of Registration and compensate the City for all actual costs incurred by the City in the management, administration, and control of the rights-of-way of the City, and which are not reasonably recoverable by the City through Construction Permit fees or other approved recovery mechanisms.
(58) "Removal Bond" means a bond posted to ensure the availability of sufficient funds to remove a Provider's facilities upon abandonment, disuse, or discontinuance of a Provider's use or occupation of the rights-of-way.
(59) "Restoration" means the process and the resultant effects by which a right-of-way is returned to a condition as good as or better than its condition immediately prior to the construction. Restoration shall occur in accordance with the Rules and Regulations as may be enacted or amended from time to time.
(60) "Right(s)-of-Way" means the surface and space in, on, above, within, over, below, under or through any real property in which the City has an interest in law or equity, whether held in fee, or other estate or interest, or as a trustee for the public including, but not limited to, any public street, boulevard, road, highway, freeway, lane, alley, court, sidewalk, parkway, river, tunnel, viaduct, bridge, conduit or any other place, area, or real property owned by or under the legal or equitable control of the City that, consistent with the purposes for which it was dedicated, may be used for the purposes of constructing, operating, repairing or replacing a system. Rights-of-way shall not include buildings, parks, or other public property or easements that have not been dedicated to compatible uses, except to the extent the use or occupation of such property is specifically granted in a Permit or by law.
(61) "Right(s)-of-Way Cost" means all direct, incidental and indirect costs borne by the City for the management and administration of the rights-of-way and this Chapter.
(62) "Rule(s) and Regulation(s)" means any rules or regulations adopted by the Public Service Director pursuant to Section 1028.09(e) of this Chapter.
(63) "Service(s)" means the offering of any service or utility for a fee directly to the public, or to such classes of users as to be effectively available directly to the public, or alternatively, the provision (for a fee or otherwise) of any service or utility between two or more points for a proprietary purpose to a class of users other than the general public that, in the opinion of the Public Service Director, constitutes a service.
(64) "Small Cell Facility" means a wireless facility that meets both of the following requirements:
A. Each antenna is located inside an enclosure of not more than six cubic feet (6 cu. ft.) in volume or, in the case of an antenna that has exposed elements, the antenna and all of its exposed elements could fit within an enclosure of not more than six cubic feet (6 cu. ft.) in volume.
B. All other wireless equipment associated with the facility in cumulatively not more than twenty-eight cubic feet (28 cu. ft.) in volume. The calculation of equipment volume shall not include electric meters, concealment elements, telecommunication demarcation boxes, grounding equipment, power transfer switches and vertical cable runs for the connection of power and other services.
(65) "State" means the State of Ohio.
(66) "Supplementary Application" means any application made to construct on or in more of the rights-of-way than previously allowed, or to extend a Permit that had already been issued or otherwise modify or amend the specifics of a Permit application.
(67) "System" means any system of conduit, ducts, cables, pipes, wires, lines, towers, antennae, wave guides, optic fiber, microwave, laser beams, and any associated converters, equipment, or facilities or utilities designed and constructed for the purpose of producing, receiving, amplifying, delivering, or distributing service within the City. A system shall specifically include, but not necessarily be limited to, electric distribution and/or transmission systems, natural or artificial gas distribution and/or transmission systems, water distribution systems, storm sewer systems, sanitary sewer systems, cable television systems, video service networks, telecommunications systems (whether voice, video, data or other), fiber optic systems, and wireless communications systems.
(68) "System Representative" means the specifically identified agent/employee of a Provider who is authorized to direct field activities of that Provider and serve as official notice agent for system-related information. Any such System Representative shall be required to be available at all times to receive notice of and immediately direct response to system related emergencies or situations.
(69) "Transfer" means the disposal by the Provider, directly or indirectly, by gift, assignment, voluntary sale, merger, consolidation, or otherwise, of fifty-one percent (51%) or more at one time of the ownership or controlling interest in the system, or fifty-one percent (51%) cumulatively over the term of a Certificate of Registration of such interests to a corporation, partnership, limited partnership, trust, or association, or person or group of persons acting in concert.
(70) "Trenchless Technology" means, but shall not be limited to, the use of directional boring, horizontal drilling, microtunneling, and other techniques in the construction of underground portions of facilities which result in the least amount of disruption and damage to the rights-of-way as possible.
(71) "Underground Facility(ies)" means all lines, cables, conduits, pipes, posts, tanks, vaults and any other facilities, which are located wholly or partially underneath the rights-of-way.
(72) "Unused Facility(ies)" means facilities located in the rights-of-way which have remained unused for twelve (12) months and for which the Provider is unable to provide the City with a credible plan detailing the procedure by which the Provider intends to begin actively using such facilities within the next twelve (12) months, or that it has a potential purchaser or user of the facilities who will be actively using the facilities within the next twelve (12) months, or, that the availability of such facilities is required by the Provider to adequately and efficiently operate its system.
(73) "Utility(ies)" means any water, sewer, gas, drainage, sprinkler, or culvert pipe and any electric power, telecommunications, signal communications, or cable television conduit, fiber, wire, cable, or an operator thereof.
(74) "Utility Corridor(s)" means those specific areas of the rights-of-way designated as such by the Public Service Director pursuant to Section 1028.06(f)(1) of this Chapter.
(75) "Video Service" means the same as "video service" in ORC 1332.21(J).
(76) "Video Service Authorization (or VSA)" means a "video service authorization" as issued to a video service provider by the Director of the Ohio Department of Commerce in accordance with ORC 1332.24(A)(1).
(77) "Video Service Network" means the same as "video service network" in ORC 1332.21(L).
(78) "Video Service Provider (or VSP)" means the same as "video service provider" in ORC 1332.21(M).
(79) "Wireless Facility" means:
A. Equipment at a fixed location that enables wireless communications between user equipment and a communications network, including all of the following:
(i) Equipment associated with wireless communications;
(ii) Radio transceivers, antennas, coaxial or fiber-optic cable, regular and backup power supplies, and comparable equipment, regardless of technological configuration.
B. The term includes small cell facilities.
C. The term does not include any of the following:
(i) The structure or improvements on, under, or within which the equipment is collocated;
(ii) Coaxial or fiber-optic cable that is between wireless support structures or utility poles or that is otherwise not immediately adjacent to or directly associated with a particular antenna. An antenna, accessory equipment, distributed antenna system, small cell facility, micro wireless facility, or other device or equipment used to provide wireless service, including such devices and equipment as provided for in ORC Chapter 4939.
(80) "Wireless Service" means any service using licensed or unlicensed wireless spectrum, whether at a fixed location or mobile, provided to the public using wireless facilities.
(81) "Wireless Support Structure" means a pole, such as a monopole, either guyed or self-supporting, street light pole, traffic signal pole, a fifteen-foot (15') or taller sign pole, or utility pole capable of supporting small cell facilities. As used in this Chapter, "Wireless Support Structure" excludes any of the following:
A. A utility pole or other facility owned or operated by a municipal electric utility.
B. A utility pole or other facility used to supply traction power to public transit systems including railways, trams, streetcars, and trolleybuses.
(Ord. 2022-46. Adopted 12/08/22)