S. B. No. 255 As Introduced

SENATOR Blessing

A BILL

To re-enact sections 4939.01, 4939.02, and 4939.03,

to amend sections 4939.01, 4939.02, and 4939.03 as

re-enacted by this act, and to repeal section

4939.04 of the Revised Code, to re-enact certain

provisions of the utility and cable public

right-of-way law as enacted by Am. Sub. H.B. 283 of

the 123rd General Assembly; to change the

definitional section of that law, as re-enacted by

this act, to broaden the application of the law to

gas and petroleum or other hazardous liquid

pipelines; to state, as an express prohibition, a

provision of law relating to additional consent for

an existing use of a public way; to provide that

only those customers of a utility service provider

that receive service from the provider within a

political subdivision may be charged for specified

costs levied by the subdivision on the provider for

the use of public ways; to remove an exemption in

the law concerning any legal requirements of

political subdivisions, in effect prior to January

1, 1999, for certain compensation for the right or

privilege of use of a public way; and to declare an

emergency.

BE IT ENACTED BY THE GENERAL ASSEMBLY OF THE STATE OF OHIO:

Section 1. That sections 4939.01, 4939.02, and 4939.03 of	24
the Revised Code be re-enacted to read as follows:	25

Sec. 4939.01. As used in this chapter:

(A) "Utility service provider" means a natural gas company,	27
local exchange telephone company, interexchange telecommunications	28
company, electric company, or any other person that occupies a	29
public way to deliver natural gas, electric, or telecommunications	30
services.	31

(B) "Cable operator" has the same meaning as in section 2 of	32
the "Cable Communications Policy Act of 1984," 98 Stat. 2779, 47	33
U.S.C.A. 522, as amended.	34

(C) "Public way" means any public street, road, highway,	35
public easement, or public waterway, and includes the entire width	36
of any right of way associated with any public way.	37

Sec. 4939.02. (A) A utility service provider or cable	38
operator has the right to construct, repair, position, maintain,	39
or operate lines, poles, pipes, conduits, ducts, equipment, and	40
related appurtenances and facilities along, across, over, upon,	41
and under any public way in the state, subject to the applicable	42
provisions of this chapter and any other chapter of the Revised	43
Code. The lines, poles, pipes, conduits, ducts, equipment, and	44
related appurtenances and facilities shall be constructed and	45
positioned in such a way that safety is not unreasonably	46
compromised in the use of the public way.	47

(B) The state, or any political subdivision of the state,	48
shall not discriminate among utility service providers or cable	49
operators, or grant a preference to any utility service provider	50
or cable operator, in the issuance of permits or the passage of	51
laws, ordinances, or resolutions for the use of public ways, or	52
create or erect any requirements for entry upon and use of the	53
public ways that are not necessary to protect the health, safety,	54
and welfare of the public.	55

(C) Nothing in this section shall be construed to authorize	56
any utility service provider or cable operator to construct lines,	57
poles, pipes, conduits, ducts, equipment, and related	58
appurtenances and facilities along, across, upon, and under any	59
public way owned by a political subdivision without first	60
obtaining the consent of the political subdivision for such	61
construction, if consent is required by the political subdivision.	62

(D) This section does not require any utility service	63
provider or cable operator that, as of September 29, 1999,	64
occupies, or has obtained the consent of a political subdivision	65
to occupy, a public way in the political subdivision, to apply for	66
additional or continued consent of the political subdivision as to	67
any existing lines, poles, pipes, conduits, ducts, equipment, and	68
related appurtenances and facilities that are in place on the	69
effective date of this section. The political subdivision shall	70
not discriminate against any other utility service provider or	71
cable operator seeking to use the same public way.	72

(E) The construction, repair, placement, maintenance, or	73
operation of lines, poles, pipes, conduits, ducts, equipment, and	74
related appurtenances and facilities by a utility service provider	75
or a cable operator is declared to be a matter of statewide	76
concern.	77

(F) Consent for the use of a public way by a political	78
subdivision shall be based on the lawful exercise of the police	79
power of the political subdivision and shall not be unreasonably	80
withheld, nor shall any preference or disadvantage be created	81
through the granting or withholding of consent. A political	82
subdivision shall grant its consent under this division within	83
thirty days after the date a utility service provider or cable	84
operator applies for consent for the use of a public way.	85

Sec. 4939.03. (A) A political subdivision of the state	86
shall not levy a tax, fee, or charge or require any nonmonetary	87
compensation or free service for the right or privilege of using	88
or occupying a public way for purposes of delivering natural gas,	89
electric, telecommunications, or cable television service.	90

(B) A political subdivision may charge a utility service	91
provider or a cable operator a construction permit fee to the	92
extent that such fee applies to all persons seeking a construction	93
permit. The fee shall be limited to the recovery of the direct	94
incremental costs incurred by the political subdivision in	95
inspecting and reviewing any plans and specifications and in	96
granting the associated permit.	97

(C) A utility service provider or cable operator that places	98
lines, poles, pipes, conduits, ducts, equipment, and related	99
appurtenances and facilities in a public way shall restore the	100
public way to its former state of usefulness. To the extent a	101
utility service provider or cable operator does not comply with	102
this division, a political subdivision may charge the utility	103
service provider or cable operator the necessary costs to restore	104
the public way to its former state of usefulness.	105

(D) Nothing in this chapter shall be construed to prohibit a	106
political subdivision from doing either of the following:	107

(1) Charging a cable operator a franchise fee in accordance	108
with section 2 of the "Cable Communications Policy Act of 1984,"	109
98 Stat. 2779, 47 U.S.C.A. 542, as amended;	110

(2) Allowing a credit, offset, or deduction against the	111
payment of a construction permit fee for any franchise fee a cable	112
operator pays to the political subdivision.	113

(E) A utility service provider, including a reseller, that	114
does not own, operate, maintain, install, or construct any	115
facility in a public way and that does not otherwise disturb the	116
public way shall not be required to pay a fee or to obtain a	117
construction permit to access the public way.	118

Section 2. That sections 4939.01, 4939.02, and 4939.03 of the	119
Revised Code, as re-enacted by this act, be amended to read as	120
follows:	121

Sec. 4939.01. As used in this chapter:

122

(A) "Utility service provider" means a natural gas company,	123
pipeline company, local exchange telephone company, interexchange	124
telecommunications company, electric company, or any other person	125
that occupies a public way to deliver natural gas, electric, or	126
telecommunications services.	127

(B) "Cable operator" has the same meaning as in section 2 of	128
the "Cable Communications Policy Act of 1984," 98 Stat. 2779, 47	129
U.S.C.A. 522, as amended.	130

(C) "Public way" means any public street, road, highway,	131
public easement, or public waterway, and includes the entire width	132
of any right of way associated with any public way.	133

(D) "Pipeline company" means the owner of a pipeline facility	134
regulated under the "Accountable Pipeline Safety and Partnership	135
Act of 1996," 110 Stat. 3793, 3805, 49 U.S.C.A. 60101, et seq.	136

Sec. 4939.02. (A) A utility service provider or cable	137
operator has the right to construct, repair, position, maintain,	138
or operate lines, poles, pipes, conduits, ducts, equipment, and	139
related appurtenances and facilities along, across, over, upon,	140
and under any public way in the state, subject to the applicable	141
provisions of this chapter and any other chapter of the Revised	142
Code. The lines, poles, pipes, conduits, ducts, equipment, and	143
related appurtenances and facilities shall be constructed and	144
positioned in such a way that safety is not unreasonably	145
compromised in the use of the public way.	146

(B) The state, or any political subdivision of the state,	147
shall not discriminate among utility service providers or cable	148
operators, or grant a preference to any utility service provider	149
or cable operator, in the issuance of permits or the passage of	150
laws, ordinances, or resolutions for the use of public ways, or	151
create or erect any requirements for entry upon and use of the	152
public ways that are not necessary to protect the health, safety,	153
and welfare of the public.	154

(C) Nothing in this section shall be construed to authorize	155
any utility service provider or cable operator to construct lines,	156
poles, pipes, conduits, ducts, equipment, and related	157
appurtenances and facilities along, across, upon, and under any	158
public way owned by a political subdivision without first	159
obtaining the consent of the political subdivision for such	160
construction, if consent is required by the political subdivision.	161

(D) ~~This section does not require any~~A utility service	162
provider or cable operator that, as of ~~the effective date of this~~	163
~~section~~September29, 1999, occupies, or has obtained the consent	164
of a political subdivision to occupy, a public way in the	165
political subdivision, shall not be required to apply for	166
additional or continued consent of the political subdivision as to	167
any existing lines, poles, pipes, conduits, ducts, equipment, and	168
related appurtenances and facilities that are in place on ~~the~~	169
~~effective date of this section~~September29, 1999. The political	170
subdivision shall not discriminate against any other utility	171
service provider or cable operator seeking to use the same public	172
way.	173

(E) The construction, repair, placement, maintenance, or	174
operation of lines, poles, pipes, conduits, ducts, equipment, and	175
related appurtenances and facilities by a utility service provider	176
or a cable operator is declared to be a matter of statewide	177
concern.	178

(F) Consent for the use of a public way by a political	179
subdivision shall be based on the lawful exercise of the police	180
power of the political subdivision and shall not be unreasonably	181
withheld, nor shall any preference or disadvantage be created	182
through the granting or withholding of consent. A political	183
subdivision shall grant its consent under this division within	184
thirty days after the date a utility service provider or cable	185
operator applies for consent for the use of a public way.	186

Sec. 4939.03. (A) ~~A political subdivision of the state shall~~	187
~~not levy a tax, fee, or charge or require any nonmonetary~~	188
~~compensation or free service for the right or privilege of using~~	189
~~or occupying a public way for purposes of delivering natural gas,~~	190
~~electric, telecommunications, or cable television service.~~	191

~~(B)~~ A political subdivision of this state may charge a	192
utility service provider or a cable operator a construction permit	193
fee to the extent that such fee applies to all persons seeking a	194
construction permit. The fee shall be limited to the recovery of	195
the direct incremental costs incurred by the political subdivision	196
in inspecting and reviewing any plans and specifications and in	197
granting the associated permit.	198

~~(C)~~(B) A utility service provider or cable operator that	199
places lines, poles, pipes, conduits, ducts, equipment, and	200
related appurtenances and facilities in a public way shall restore	201
the public way to its former state of usefulness. To the extent a	202
utility service provider or cable operator does not comply with	203
this division, a political subdivision may charge the utility	204
service provider or cable operator the necessary costs to restore	205
the public way to its former state of usefulness.	206

~~(D)~~(C) Nothing in this chapter shall be construed to	207
prohibit a political subdivision from doing either of the	208
following:	209

(1) Charging a cable operator a franchise fee in accordance	210
with section 2 of the "Cable Communications Policy Act of 1984,"	211
98 Stat. 2779, 47 U.S.C.A. ~~542,as~~542, as amended;	212

(2) Allowing a credit, offset, or deduction against the	213
payment of a construction permit fee for any franchise fee a cable	214
operator pays to the political subdivision.	215

~~(E)~~(D) A utility service provider, including a reseller,	216
that does not own, operate, maintain, install, or construct any	217
facility in a public way and that does not otherwise disturb the	218
public way shall not be required to pay a fee or to obtain a	219
construction permit to access the public way.	220

(E) A utility service provider that passes through or charges	221
customers all or any portion of a tax, fee, charge, or cost of	222
nonmonetary compensation or free service levied by a political	223
subdivision for the right or privilege of using or occupying a	224
public way for the purpose of delivering service, or that passes	225
through or charges any cost related to carrying out this division,	226
shall so pass through or charge only those customers that receive	227
the utility service provider's service within the geographical	228
limits of that political subdivision, and no other customers. This	229
limitation does not apply regarding a fee or cost charged the	230
utility service provider pursuant to division (A) or (B) of this	231
section.	232

Section 3. That all existing versions of sections 4939.01,	233
4939.02, and 4939.03 of the Revised Code are hereby repealed.	234

Section 4. That section 4939.04 of the Revised Code is hereby	235
repealed.	236

Section 5. Sections 2, 3, and 4 of this act shall take effect	237
ninety days after the effective date of this act.	238

Section 6. This act is hereby declared to be an emergency	239
measure necessary for the immediate preservation of the public	240
peace, health, and safety. The reason for such necessity is to	241
provide, at the earliest possible time, for the re-enactment of	242
certain utility and cable right-of-way provisions, as enacted by	243
Am. Sub. H.B. 283 of the 123rd General Assembly, to provide for	244
their continuation as part of Ohio law. Therefore, this act shall	245
go into immediate effect.	246