REPRESENTATIVES Seitz, Niehaus, Hagan, Olman

To amend section 5571.16, to enact new sections

1

4939.01, 4939.02, 4939.03, and 4939.04 and sections

2

4939.05, 4939.06, 4939.07, and 4939.08; and to

3

repeal sections 4939.01, 4939.02, 4939.03, and

4

4939.04 of the Revised Code to revise certain

5

statutes governing the use of public ways and to

6

declare an emergency.

7

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

Section 1. That section 5571.16 be amended and new sections	8
4939.01, 4939.02, 4939.03, and 4939.04 and sections 4939.05,	9
4939.06, 4939.07, and 4939.08 of the Revised Code be enacted to	10
read as follows:	11

Sec. 4939.01.  As used in sections 4939.01 to 4939.08 of the	12
Revised Code:	13

(A) "Cable operator," "cable service," and "franchise" have	14
the same meanings as in the "Cable Communications Policy Act of	15
1984," 98 Stat. 2779, 47 U.S.C.A. 522.	16

(B) "Occupy or use" means, with respect to a public way, to	17
place a tangible thing in a public way for any purpose, including,	18
but not limited to, constructing, repairing, positioning,	19
maintaining, or operating lines, poles, pipes, conduits, ducts,	20
equipment, or other structures, appurtenances, or facilities	21
necessary for the delivery of public utility services or any	22
services provided by a cable operator.	23

(C) "Person" means any natural person, corporation, or	24
partnership and also includes any governmental entity.	25

(D) "Public utility" means any company described in section	26
4905.03 of the Revised Code except in divisions (A)(3) and (10) of	27
that section, which company also is a public utility as defined in	28
section 4905.02 of the Revised Code; and includes any electric	29
supplier as defined in section 4933.81 of the Revised Code.	30

(E) "Public way" means the surface of, and the space	31
within, through, on, across, above, or below, any public street,	32
public road, public highway, public freeway, public lane, public	33
path, public alley, public court, public sidewalk, public	34
boulevard, public parkway, public drive, and any other land	35
dedicated or otherwise designated for a compatible public use,	36
which, on or after the effective date of this section, is owned or	37
controlled by a municipal corporation. "Public way" excludes a	38
private easement.	39

(F) "Public way fee" means a fee levied to recover the costs	40
incurred by a municipal corporation and associated with the	41
occupancy or use of a public way.	42

Sec. 4939.02.  (A) It is the public policy of this state to	43
do all of the following:	44

(1) Promote the public health, safety, and welfare regarding	45
access to and the occupancy or use of public ways, to protect	46
public and private property, and to promote economic development	47
in this state;	48

(2) Promote the availability of a wide range of utility,	49
communication, and other services to residents of this state at	50
reasonable costs, including the rapid implementation of new	51
technologies and innovative services;	52

(3) Ensure that access to and occupancy or use of public	53
ways advances the state policies specified in sections 4927.02,	54
4928.02, and 4929.02 of the Revised Code;	55

(4) Recognize the authority of a municipal corporation to	56
manage access to and the occupancy or use of public ways to the	57
extent necessary with regard to matters of local concern, and to	58
receive cost recovery for the occupancy or use of public ways in	59
accordance with law;	60

(5) Ensure in accordance with law the recovery by a public	61
utility of public way fees and related costs;	62

(6) Promote coordination and standardization of municipal	63
management of the occupancy or use of public ways, to enable	64
efficient placement and operation of structures, appurtenances, or	65
facilities necessary for the delivery of public utility or cable	66
services;	67

(7) Encourage agreement among parties regarding public way	68
fees and regarding terms and conditions pertaining to access to	69
and the occupancy or use of public ways, and to facilitate the	70
resolution of disputes regarding public way fees.	71

(B) This policy establishes fair terms and conditions for	72
the use of public ways and does not unduly burden persons	73
occupying or using public ways or persons that benefit from the	74
services provided by such occupants or users.	75

Sec. 4939.03.  (A) No person shall occupy or use a public	76
way except in accordance with law.	77

(B) In occupying or using a public way, no person shall	78
unreasonably compromise the public health, safety, and welfare.	79

(C)(1) No person shall occupy or use a public way without	80
first obtaining any requisite consent of the municipal corporation	81
owning or controlling the public way.	82

(2) Except as otherwise provided in division (C)(5) of	83
this section, a municipal corporation, not later than sixty days	84
after the date of filing by a person of a completed request for	85
consent, shall grant or deny its consent.	86

(3) A municipal corporation shall not unreasonably	87
withhold or deny consent.	88

(4) If a request by a person for consent is denied, the	89
municipal corporation shall provide to the person in writing its	90
reasons for denying the request and such information as the person	91
may reasonably request to obtain consent.	92

(5) Except in the case of a public utility subject to the	93
jurisdiction and recognized on the rolls of the public utilities	94
commission or of a cable operator possessing a valid franchise	95
awarded pursuant to the "Cable Communications Policy Act of 1984,"	96
98 Stat. 2779, 47 U.S.C.A. 541, a municipal corporation, for good	97
cause shown, may withhold, deny, or delay its consent to any	98
person based upon the person's failure to possess the financial,	99
technical, and managerial resources necessary to protect the	100
public health, safety, and welfare.	101

(6) Initial consent for occupancy or use of a public way	102
shall be conclusively presumed for all lines, poles, pipes,	103
conduits, ducts, equipment, or other appurtenances, structures, or	104
facilities of a public utility or cable operator that, on the	105
effective date of this section, lawfully so occupy or use a public	106
way. However, such presumed consent does not relieve the public	107
utility or cable operator of compliance with any law related to	108
the ongoing occupancy or use of a public way.	109

Sec. 4939.04.  (A)(1) A municipal corporation shall provide	110
public utilities or cable operators with open, comparable,	111
nondiscriminatory, and competitively neutral access to its public	112
ways.	113

(2) Nothing in division (A)(1) of this section prohibits	114
a municipal corporation from establishing priorities for access to	115
or occupancy or use of a public way by a public utility or cable	116
operator when the public way cannot accommodate all public way	117
occupants or users, which priorities as applied to public	118
utilities or cable operators shall not be unduly discriminatory	119
and shall be competitively neutral.	120

(B) The management, regulation, and administration of a	121
public way by a municipal corporation with regard to matters of	122
local concern shall be presumed to be a valid exercise of the	123
power of local self-government granted by Section 3 of Article	124
XVIII of the Ohio Constitution.	125

Sec. 4939.05.  (A) A municipal corporation shall not	126
require any nonmonetary compensation or free service, or levy any	127
tax, for the right or privilege to occupy or use a public way, and	128
shall not levy a public way fee except in accordance with this	129
section.	130

(B)(1) A municipal corporation may levy different public	131
way fees based upon the amount of public ways occupied or used,	132
the type of utility service provided by a public utility, or any	133
different treatment required by the public health, safety, and	134
welfare.	135

(2) A municipal corporation may waive all or a portion of	136
any public way fee for a governmental entity or a charitable	137
organization.	138

(3) A municipal corporation shall not require any person,	139
including a reseller, that does not occupy or use a public way	140
owned or controlled by the municipal corporation to pay it a	141
public way fee.	142

(4) A municipal corporation that charges a franchise fee or	143
otherwise receives free service or other nonmonetary compensation	144
as part of a franchise between a cable operator and the municipal	145
corporation shall grant the cable operator, for the occupancy or	146
use of the public way related to the provision of any services	147
provided by the cable operator, a credit, offset, or deduction	148
against any public way fee or like charge for all such payments	149
and the retail value of the free service or other nonmonetary	150
compensation.	151

(C) Public way fees levied by a municipal corporation	152
shall be based only on costs that the municipal corporation both	153
has actually incurred and can clearly demonstrate are or can be	154
properly allocated and assigned to the occupancy or use of a	155
public way. The costs shall be reasonably and competitively	156
neutrally allocated among all persons occupying or using public	157
ways owned or controlled by the municipal corporation, including,	158
but not limited to, persons for which payments are waived as	159
authorized by division (B) of this section or for which	160
compensation is otherwise obtained. No public way fee shall	161
include a return on or exceed the amount of costs reasonably	162
allocated by the municipal corporation to such occupant or user or	163
pursuant to any reasonable classification of occupants or users.	164

(D) A municipal corporation that levies a public way fee	165
shall establish and maintain a special fund for all such fees	166
remitted to the municipal corporation and, with respect to that	167
special fund, shall be subject to sections 5705.09, 5705.10,	168
5705.14, 5705.15, 5705.16, 5705.39, 5705.40, 5705.41, 5705.44, and	169
5705.45 of the Revised Code and any other applicable provision of	170
Chapter 5705. of the Revised Code concerning the establishment or	171
maintenance of a special fund.	172

(E) At least forty-five days prior to the date of enactment	173
of a public way ordinance by a municipal corporation, the	174
municipal corporation shall file with the public utilities	175
commission a notice that the ordinance is being considered.	176

Sec. 4939.06. (A) If a public utility does not accept a	177
public way fee levied against it pursuant to the enactment of an	178
ordinance by a municipal corporation, the public utility may	179
appeal the public way fee to the public utilities commission. The	180
appeal shall be made by filing a complaint that the amount of a	181
public way fee, any related classification of public way occupants	182
or users, or the assignment or allocation of costs to the public	183
way fee is unreasonable, unjust, unjustly discriminatory, or	184
unlawful. The complaint shall be filed not later than thirty days	185
after the date the public utility first becomes subject to the	186
ordinance. The complaint is subject to the same procedures as a	187
complaint filed pursuant to section 4905.26 of the Revised Code.	188
The commission shall act to resolve the complaint by issuance of a	189
final order within one hundred twenty days after the date of the	190
complaint's filing.	191

(B) Only upon a finding by the commission that reasonable	192
grounds are stated for a complaint filed under division (A) of	193
this section, the commission by order shall suspend the public way	194
fee provisions of the municipal ordinance for the duration of the	195
commission's consideration of the complaint. For the purpose of	196
this division, if the commission so suspends an ordinance pursuant	197
to a complaint filed not later than thirty days after the date	198
that the ordinance first takes effect, the suspension shall apply	199
to the public way fee for every occupancy or use of the public way	200
to which the fee would otherwise apply. For any other complaint,	201
the suspension shall apply only to the public utility filing the	202
complaint. The municipal corporation may later collect, for the	203
suspension period, any suspended public way fee only if the	204
commission finds that the public way fee is not unreasonable,	205
unjust, unjustly discriminatory, or unlawful.	206

(C) If the commission finds that the public way fee or	207
classification complained of is unreasonable, unjust, unjustly	208
discriminatory, or unlawful, it shall determine by order the just	209
and reasonable public way fee or classification.	210

Sec. 4939.07. (A) As used in this section, "most recent,"	211
with respect to any rate proceeding, means the rate proceeding	212
most immediately preceding the date of any final order issued by	213
the public utilities commission under this section.	214

(B)(1) Notwithstanding any other provision of law or any	215
agreement establishing price caps, rate freezes, or rate increase	216
moratoria, a public utility subject to the rate-making	217
jurisdiction of the commission may file an application with the	218
commission for, and the commission shall then authorize by order,	219
timely and full recovery of a public way fee levied upon and	220
payable by the public utility both after January 1, 2002, and	221
after the test year of the public utility's most recent rate	222
proceeding or the initial effective date of rates in effect but	223
not established through a proceeding for an increase in rates.	224

(2) Any order issued by the commission pursuant to its	225
consideration of an application under division (B)(1) of this	226
section shall establish a cost recovery mechanism including, but	227
not limited to, an adder, tracker, rider, or percentage surcharge,	228
for recovering the amount to be recovered; specify that amount;	229
limit the amount to not more and not less than the amount of the	230
total public way fee incurred; and require periodic adjustment of	231
the mechanism based on revenues recovered.	232

(a) In the case of a cost recovery mechanism for a public	233
way fee levied on and payable by a public utility but determined	234
unreasonable, unjust, unjustly discriminatory, or unlawful by the	235
commission pursuant to division (C) of section 4939.06 of the	236
Revised Code, the mechanism shall provide for recovery, only from	237
those customers of the public utility that receive its service	238
within the municipal corporation, of the difference between that	239
public way fee and the just and reasonable public way fee	240
determined by the commission under division (C) of section 4939.06	241
of the Revised Code.	242

(b) In all other cases, recovery shall be from all customers	243
of the public utility generally.	244

(C) In the case of recovery under division (B)(2)(a) or (b)	245
of this section, the recovery mechanism payable by sale-for-resale	246
or wholesale telecommunications customers shall provide for	247
recovery limited to any public way fee not included in established	248
rates and prices for those customers and to the pro rata share of	249
the public way fee applicable to the portion of the facilities	250
that are sold, leased, or rented to the customers and are located	251
in the public way. The recovery shall be in a nondiscriminatory	252
and competitively neutral manner and prorated on a per-line or	253
per-line equivalent basis among all retail, sale-for-resale, and	254
wholesale telecommunications customers subject to the recovery.	255

(D)(1) Notwithstanding any other provision of law or any	256
agreement establishing price caps, rate freezes, or rate increase	257
moratoria, a public utility subject to the rate-making	258
jurisdiction of the commission may file an application with the	259
commission for, and the commission by order shall authorize, such	260
accounting authority as may be reasonably necessary to classify	261
any cost described in division (D)(2) of this section as a	262
regulatory asset for the purpose of recovering that cost.	263

(2) A cost eligible for recovery under this division shall be	264
only such cost as meets both of the following:	265

(a) The cost is directly incurred by the public utility as a	266
result of local regulation of its occupancy or use of a public way	267
or an appropriate allocation and assignment of costs related to	268
implementation of this section, excluding any cost arising from a	269
public way fee levied upon and payable by the public utility.	270

(b) The cost is incurred by the public utility both after	271
January 1, 2002, and after the test year of the public utility's	272
most recent rate proceeding or the initial effective date of rates	273
in effect but not established through a proceeding for an increase	274
in rates.	275

(3) If the commission determines, upon an application under	276
division (D)(1) of this section or its own initiative, that	277
classification of a cost described in division (D)(2) of this	278
section as a regulatory asset is not practical or that deferred	279
recovery of that cost would impose a hardship on the public	280
utility or its customers, the commission shall establish a charge	281
and collection mechanism to permit the public utility full	282
recovery of that cost. A hardship shall be presumed for any	283
public utility with less than fifteen thousand bundled sales	284
service customers in this state and for any public utility for	285
which the annualized aggregate amount of additional cost that	286
otherwise may be eligible for such classification exceeds the	287
greater of five hundred thousand dollars or fifteen per cent of	288
the total costs that are described in division (D)(2)(a) of this	289
section and were considered by the commission for the purpose of	290
establishing rates in the public utility's most recent rate	291
increase proceeding or the rate increase proceeding of the public	292
utility's predecessor, whichever is later.	293

(E) Any application submitted to the commission under	294
divisions (B) to (D) of this section shall be processed by the	295
commission as an application not for an increase in rates under	296
section 4909.18 of the Revised Code. The application shall include	297
such information as the commission reasonably requires. The	298
commission shall conclude its consideration of the application and	299
issue a final order not later than one hundred twenty days after	300
the date that the application was submitted to the commission. A	301
final order regarding a recovery mechanism authorized pursuant to	302
this section shall provide for such retroactive adjustment as the	303
commission determines appropriate.	304

(F) A public utility shall not be required to waive any	305
rights under this section as a condition of occupancy or use of a	306
public way.	307

(G) The commission may issue such rules as it considers	308
necessary to carry out this section.	309

Sec. 4939.08. (A) Nothing in sections 4939.01 to 4939.07 of	310
the Revised Code applies to a franchise or to any agreement with a	311
public utility or cable operator, for the balance of its term, if	312
the franchise or agreement meets all of the following:	313

(1) The franchise was granted, or the agreement was	314
authorized by ordinance or otherwise and was entered into, by a	315
municipal corporation prior to the effective date of this section.	316

(2) The franchise or agreement authorizes the occupation or	317
use of public ways.	318

(3) The public utility agrees with the applicable public way	319
fees, or nonmonetary compensation, if any, or the cable operator	320
pays the applicable fee or utilizes the credit, offset, or	321
deduction specified in division (B)(4) of section 4939.05 of the	322
Revised Code.	323

(B) Except as otherwise provided in division (A) of section	324
4939.06 of the Revised Code, nothing in sections 4939.01 to	325
4939.07 of the Revised Code applies to an ordinance both governing	326
public ways and enacted by a municipal corporation prior to	327
September 29, 1999, unless, on or after that date, the ordinance	328
is materially modified.	329

(C) Nothing in sections 4939.01 to 4939.07 of the Revised	330
Code authorizes a municipal corporation to levy a fee, other than	331
a public way fee authorized by section 4939.05 of the Revised	332
Code, on a pipeline company or an operator of a pipeline facility	333
regulated under the "Accountable Pipeline Safety and Partnership	334
Act of 1996," 110 Stat. 3793, 49 U.S.C.A. 60101, or on an	335
operating partner or affiliated business unit operating under	336
guidelines of the federal energy regulatory commission as they	337
relate to the construction and operation of a pipeline.	338

(D) Nothing in sections 4939.01 to 4939.07 and this section	339
of the Revised Code prohibits a municipal corporation from doing	340
either of the following:	341

(1) Charging a cable operator a franchise fee in accordance	342
with the "Cable Communications Policy Act of 1984," 98 Stat. 2779,	343
47 U.S.C.A. 542;	344

(2) Allowing a credit, offset, or deduction against the	345
payment of a construction permit fee for any franchise fee a cable	346
operator pays to the municipal corporation.	347

Sec. 5571.16.  The board of township trustees may, by	348
resolution, may require any person, firm or corporationperson to	349
obtain a permit before making any excavation in a public highway	350
or highway right-of-way within its jurisdiction, except an	351
excavation to repair, rehabilitate, or replace a pole already	352
installed for the purpose of providing electric or	353
telecommunications service. The board may, as a condition to the	354
granting of such permit:	355

(A) Require the applicant to submit plans indicating the	356
location, size, type, and duration of the excavation contemplated;	357

(B) Specify methods of excavation, refilling, and	358
resurfacing to be followed;	359

(C) Require the use of such warning devices as it deems	360
necessary to protect travelers on the highway;	361

(D) Require the applicant to indemnify the township against	362
liability or damage as the result of such excavation;	363

(E) Require the applicant to post a deposit or bond, with	364
sureties to the satisfaction of the board, conditioned upon the	365
performance of all conditions to such permit.	366

Applications for permits under this section shall be made to	367
the township clerk upon forms to be furnished by the board. Such	368
applications, including, but not limited to, a single application	369
for an excavation project to install six or more poles for the	370
purpose of providing electric or telecommunications service or to	371
install a pole associated with underground electric or	372
telecommunications service, shall be accompanied by a fee of two	373
fifty dollars per application, which fee shall be returned to the	374
applicant if the application is denied. Except as otherwise	375
provided in this section, no application or fee shall be required	376
for an excavation project to install five or fewer poles for the	377
purpose of providing electric or telecommunications service, but	378
the person making that excavation shall provide verifiable notice	379
of the excavation to the township clerk at least three business	380
days prior to the date of the excavation.	381

No person shall make an excavation in any township highway or	382
highway right-of-way in violation of any resolution adopted	383
pursuant to this section; except that, in the case of an emergency	384
requiring immediate action to protect the public health, safety,	385
and welfare, an excavation may be made without first obtaining a	386
permit, if such application is made at the earliest possible	387
opportunity.	388

As used in this section, "person" has the same meaning as in	389
section 1.59 of the Revised Code, and "right-of-way" has the same	390
meaning as in division (UU)(2) of section 4511.01 of the Revised	391
Code.	392

Section 2. That existing section 5571.16 and sections	393
4939.01, 4939.02, 4939.03, and 4939.04 of the Revised Code are	394
hereby repealed.	395

Section 3. Section 5571.16 of the Revised Code, as amended by	396
this act, shall take effect ninety days after the effective date	397
of this section.	398

Section 4. This act is hereby declared to be an emergency	399
measure necessary for the immediate preservation of the public	400
peace, health, and safety. The reason for such necessity is to	401
provide, at the earliest possible time, for resolution of	402
litigated issues concerning public ways of a municipal	403
corporation. Therefore, this act shall go into immediate effect.	404