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Ordinance #33 - Telecommunications Facilities
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TELECOMMUNICATIONS FACILITIES
(Ord. No. 33)
 
AN ORDINANCE TO ADOPT THE TOWNSHIP OF BERRIEN TELECOMMU­NICATIONS FACILITIES ORDINANCE
 
THE TOWNSHIP OF BERRIEN ORDAINS:
 
Section 1. Adoption of Ordinance. The following ordinance is hereby adopted and shall be known as the Berrien Township "Telecommunications Facilities Ordinance."
 
TELECOMMUNICATIONS FACILITIES
 
15.001             Purpose.
 
Sec. 1. The purposes of this ordinance are to regulate access to and ongoing use of public rights-of-way by telecommunications providers for their telecommu­nications facilities while protecting the public health, safety, and welfare and exercising reasonable control of the public rights-of-way in compliance with the Metropolitan Extension Telecommunications Rights-of-Way Oversight Act, Act 48 of the Public Acts of Michigan of 2002 ("Act 48"), and other applicable law, and to ensure that the Township qualifies for distributions under Act 48 by modifying the fees charged to providers and complying with the Act.
(Ord. No. 33, Adopt. May 13, 2003)
 
15.002             Conflict.
 
Sec. 2. Nothing in this ordinance shall be construed in such a manner as to conflict with Act 48 or other applicable law.
(Ord. No. 33, Adopt. May 13, 2003)
 
15.003             Defined terms.
 
Sec. 3. For the purposes of this ordinance, certain terms used herein are defined as follows:

 

"Authority" means the Metropolitan Extension Telecommunications Rights-of­-Way Oversight Authority created pursuant to Section 3 of Act 48.

 

 

"Person" means an individual, corporation, partnership, association, govern­mental entity, or any other legal entity.

 

"Supervisor" means the Township Supervisor or his or her designee.

 

 

 (a) A cable television operator that provides a telecommunications service.
(b) Except as otherwise provided by Act 48, a person who owns telecommuni­cation facilities located within a public right-of-way.
(c) A person providing broadband internet transport access service.
"Township" means the Township of Berrien, Berrien County, Michigan.
"Township Board" means the Township Board of the Township or its designee.
This definition does not authorize delegation of any decision or function that is required by law to be made by the Township Board.
(Ord. No. 33, Adopt. May 13, 2003)
 
15.004             Permit required.
 
Sec. 4.
(a) Permit Required. Except as otherwise provided in Act 48, a telecommunica­tions provider using or seeking to use public rights-of-way in the Township for its telecommunications facilities shall apply for and obtain a permit pursuant to this ordinance.
(b) Application. Telecommunications providers shall apply for a permit on an application form approved by the MPSC in accordance with Section 6(1) of Act 48. A telecommunications provider shall file the application with the Township Clerk. The application shall be complete and include all informa­tion required by Act 48, including without limitation a route map showing the location of the provider's existing and proposed facilities in accordance with Section 6(5) of Act 48.
(c) Confidential Information. If a telecommunications provider claims that any portion of the route maps submitted by it as part of its application contain trade secret, proprietary or confidential information, which is exempt public disclosure under the Freedom of Information Act, Act 442 of the Public Acts of Michigan of 1976, as amended, MCL 15.231 et seq. ("Act 442"), pursuant to Section 6(5) of Act 48, the telecommunications provider shall prominently so indicate on the face of each map.
(d) Application Fee. Except as otherwise provided by Act 48, the application shall be accompanied by a one-time non-refundable application fee in the amount of $500.00.
(e) Additional Information. The Township Supervisor may request an applicant to submit such additional information which the Township Supervisor deems reasonably necessary or relevant. The applicant shall comply with all such requests in compliance with reasonable deadlines for such additional information established by the Township Supervisor. If the Township and the applicant cannot agree on the requirement of additional information requested by the Township, the Township or the applicant shall notify the MPSC as provided in Section 6(2) of Act 48.
(f) Previously Issued Permits. Pursuant to Section 5(1) of Act 48, authorizations or permits previously issued by the Township under Section 251 of the Michigan Telecommunications Act, Act 179 of the Public Acts of Michigan of 1991, as amended, MCL 484.2251 et seq. ("Act 179") and authorizations or permits issued by the Township to telecommunications providers prior to the 1995 enactment of Section 251 of Act 179 but after 1985 shall satisfy the permit requirements of this section.
(g) Existing Providers. Pursuant to Section 5(3) of Act 48, within 180 days from November 1, 2002, the effective date of Act 48, a telecommunications provider with facilities located in a public right-of-way in the Township as of such date, that has not previously obtained authorization or a permit under Section 251 of Act 179, shall submit to the Township an application for a permit in accordance with the requirements of this section. Pursuant to Section 5(3) of Act 48, a telecommunications provider submitting an application under this subsection (g) is not required to pay the $500.00 application fee required under subsection (d) above. A provider under this subsection (g) shall be given up to an additional 180 days to submit the permit application if allowed by the authority, as provided in Section 5(4) of Act 48.
(Ord. No. 33, Adopt. May 13, 2003)
 
15.005             Issuance of permit.
 
Sec. 5.
(a) Approval or Denial. The authority to approve or deny an application for a permit is hereby delegated to the Township Supervisor. Pursuant to Section 15(3) of Act 48, the Township Supervisor shall approve or deny an applica­tion for a permit within 45 days from the date a telecommunications provider files an application for a permit under Section 4(b) of this ordinance for access to a public right-of-way within the Township. Pursuant to Section 6(6) of Act 48, the Township Supervisor shall notify the MPSC when the Township Supervisor has granted or denied a permit, including information regarding the date on which the application was filed and the date on which permit was granted or denied. The Township Supervisor shall not unrea­sonably deny an application for a permit.
(b) Form of Permit. If an application for permit is approved, the Township Supervisor shall issue the permit in the form approved by the MPSC, with or without additional or different permit terms, in accordance with Sections 6(1), 6(2) and 15 of Act 48.
(c) Conditions. Pursuant to Section 15(4) of Act 48, the Township Supervisor may impose conditions on the issuance of a permit, which conditions shall be limited to the telecommunications provider's access and usage of the public right-of-way.
(d) Bond Requirement. Pursuant to Section 15(3) of Act 48, and without limitation on subsection (c) above, the Township Supervisor may: require that a bond be posted by the telecommunications provider as a condition of the permit. If a bond is required, it shall not exceed the reasonable cost to ensure that the public right-of-way is returned to its original condition during and after the telecommunications provider's access and use.
(Ord. No. 33, Adopt. May 13, 2003)
 
15.006             Construction/engineering permit.
 
Sec. 6. A telecommunications provider shall not commence construction upon, over, across, or under the public rights-of-way in the Township without first obtaining any applicable construction or engineering permit as required by this Ordinance, as amended, for construction within the public rights-of-way. No fee shall be charged for such construction or engineering permit.
(Ord. No. 33, Adopt. May 13, 2003)
 
15.007             Conduit or utility poles.
 
Sec. 7. Pursuant to Section 4(3) of Act 48, obtaining a permit or paying the fees required under Act 48 or under this ordinance does not give a telecommu­nications provider a right to use conduit or utility poles.
(Ord. No. 33, Adopt. May 13, 2003)
 
15.008             Route maps.
 
Sec. 8. Pursuant to Section 6(7) of Act 48, a telecommunications provider shall, within 90 days after the substantial completion of construction of new telecommunications facilities in the Township, submit route maps showing the location of the telecommunications facilities to both the MPSC and the Township. The route maps should be in electronic format unless and until the MPSC determines otherwise, in accordance with Section 6(8) of Act 48.
(Ord. No. 33, Adopt. May 13, 2003)
 
15.009             Repair of damage.
 
Sec. 9. Pursuant to Section 15(5) of Act 48, a telecommunications provider undertaking an excavation or construction or installing telecommunications facilities within a public right-of-way or temporarily obstructing a public right-of-way in the Township, as authorized by a permit, shall promptly repair all damage done to the street surface and all installations under, over, below, or within the public right-of-way and shall promptly restore the public right-of-way to its preexisting condition.
(Ord. No. 33, Adopt. May 13, 2003)
 
15.010             Establishment and payment of maintenance fee.
 
Sec. 10. In addition to the non-refundable application fee paid to the Town­ship set forth in subsection 4(d) above, a telecommunications provider with telecommunications facilities in the Township's public rights-of-way shall pay an annual maintenance fee to the authority pursuant to Section 8 of Act 48.
(Ord. No. 33, Adopt. May 13, 2003)
 
15.011             Modification of existing fees.
 
Sec. 11. In compliance with the requirements of Section 13(1) of Act 48, the Township hereby modifies, to the extent necessary, any fees charged to telecom­munications providers after November 1, 2002, the effective date of Act 48, relating to access and usage of the public rights-of-way, to an amount not exceeding the amounts of fees and charges required under Act 48, which shall be paid to the authority. In compliance with the requirements of Section 13(4) of Act 48, the Township also hereby approves modification of the fees of providers with telecommunication facilities in public rights-of-way within the Township’s bound­aries, so that those providers pay only those fees required under Section 8 of Act 48. The Township shall provide each telecommunications provider affected by the fee with a copy of this ordinance, in compliance with the requirement of Section 13( 4) of Act 48. To the extent any fees are charged to telecommunications providers in excess of the amounts permitted under Act 48, or which are otherwise inconsistent with Act 48, such imposition is hereby declared to be contrary to the Township’s policy and intent, and upon application by a provider or discovery by the Township, shall be promptly refunded as having been charged in error.
(Ord. No. 33, Adopt. May 13, 2003)
 
15.012             Savings clause.
 
Sec. 12. Pursuant to Section 13(5) of Act 48, if Section 8 of Act 48 is found to be invalid or unconstitutional, the modification of fees under section 11 above shall be void from the date the modification was made.
(Ord. No. 33, Adopt. May 13, 2003)
 
15.013             Use of funds.
 
Pursuant to Section 10(4) of Act 48, all amounts received by the Township from the authority shall be used by the Township solely for rights-of-way related purposes.
(Ord. No. 33, Adopt. May 13, 2003)
 
15.014             Annual report.
 
Pursuant to Section 10(5) of Act 48, if required by Act 48, the Township Supervisor shall file an annual report with the authority on the use and disposition of funds annually distributed by the authority.
(Ord. No. 33, Adopt. May 13, 2003)
 
15.015             Cable television operators.
 
Sec. 15. Pursuant to Section 13(6) of Act 48, the Township shall not hold a cable television operator in default or seek any remedy for its failure to satisfy an obligation, if any; to pay after November 1, 2002, the effective date of Act 48, a franchise fee or similar fee on that portion of gross revenues from charges the cable operator received for cable modem services provided through broadband internet transport access services.
(Ord. No. 33, Adopt. May 13,2003)
 
15.016             Existing rights.
 
Sec. 16. Pursuant to Section 4(2) of the Act, except as expressly provided herein with respect to fees, this ordinance shall not affect any existing rights that a telecommunications provider or the Township may have under a permit issued by the Township or under a contract between the Township and a telecommuni­cations provider related to the use of the public rights-of-way.
(Ord. No. 33, Adopt. May 13, 2003)
 
15.017             Compliance.
 
Sec. 17. The Township hereby declares that its policy and intent in adopting this ordinance is to fully comply with the requirements of Act 48, and the provisions hereof should be construed in such a manner as to achieve that purpose. The Township shall comply in all respects with the requirements of Act 48, including but not limited to the following:
(a) Exempting certain route maps from Act 442, as provided in section 4(c) of this ordinance;
(b) Allowing certain previously issued permits to satisfy the permit require­ments hereof, in accordance with section 4(f) of this ordinance;
(c) Allowing existing providers additional time in which to submit an applica­tion for a permit, and excusing such providers from the $500 application fee, in accordance with section 4(g) of this ordinance;
(d) Approving or denying an application for a permit within 45 days from the date a telecommunications provider files an application for a permit for access to and usage of a public right-of-way within the Township, in accordance with section 5(a) of this ordinance;
(e) Notifying the MPSC when the Township has granted or denied a permit, in accordance with section 5(a) of this ordinance;
(f) N at unreasonably denying an application for a permit, in accordance with section 5(a) of this ordinance;
(g) Issuing a permit in the form approved by the MPSC, with or without additional or different permit terms, as provided in section 5(b) of this ordinance;
 (h) Limiting the conditions imposed on the issuance of a permit to the telecommunications provider's access and usage of the public right-of-way, in accordance with section 5(c) of this ordinance;
(i) Not requiring a bond of a telecommunications provider which exceeds the reasonable cost to ensure that the public right-of-way is returned to its original condition during and after the telecommunication provider's access and use, in accordance with section 5( d) of this ordinance;
(j) Not charging any telecommunications providers any additional fees for construction or engineering permits, in accordance with section 6 of this ordinance;
(k) Providing each telecommunications provider affected by the Township's right-of-way fees with a copy of this ordinance, in accordance with section 11 of this ordinance;
(1) Submitting an annual report to the authority, in accordance with section 14 of this ordinance; and
(m) Not holding a cable television operator in default for a failure to pay certain franchise fees, in accordance with section 15 of this ordinance.
(Ord. No. 33, Adopt. May 13, 2003)
 
15.018             Reservation of police powers.
 
Sec. 18. Pursuant to Section 15(2) of Act 48, this ordinance shall not limit the Township's right to review and approve a telecommunication provider's access to and ongoing use of a public right-of-way or limit the Township's authority to ensure and protect the health, safety, and welfare of the public.
(Ord. No. 33, Adopt. May 13, 2003)
 
15.019             Severability.
 
Sec. 19. The various parts, sentences, paragraphs, sections and clauses of this ordinance are hereby declared to be severable. If any part, sentence, paragraph, section or clause of this ordinance is adjudged unconstitutional or invalid by a court or administrative agency of competent jurisdiction, the unconstitutionality or invalidity shall not affect the constitutionality or validity of any remaining provisions of this ordinance.
(Ord. No. 33, Adopt. May 13, 2003)


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