As Passed by the House

124th General Assembly
Regular Session
Am. Sub. S. B. No. 255

SENATORS Blessing, Mead, Spada, Mumper

REPRESENTATIVES Seitz, Niehaus, Hagan, Olman

To amend section 5571.16, to enact new sections1
4939.01, 4939.02, 4939.03, and 4939.04 and sections2
4939.05, 4939.06, 4939.07, and 4939.08; and to3
repeal sections 4939.01, 4939.02, 4939.03, and4
4939.04 of the Revised Code to revise certain5
statutes governing the use of public ways and to6
declare an emergency.7


       Section 1. That section 5571.16 be amended and new sections8
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 to10
read as follows:11

       Sec. 4939.01.  As used in sections 4939.01 to 4939.08 of the12
Revised Code:13

        (A) "Cable operator," "cable service," and "franchise" have14
the same meanings as in the "Cable Communications Policy Act of15
1984," 98 Stat. 2779, 47 U.S.C.A. 522.16

        (B) "Occupy or use" means, with respect to a public way, to17
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 facilities21
necessary for the delivery of public utility services or any22
services provided by a cable operator.23

        (C) "Person" means any natural person, corporation, or24
partnership and also includes any governmental entity.25

        (D) "Public utility" means any company described in section26
4905.03 of the Revised Code except in divisions (A)(3) and (10) of27
that section, which company also is a public utility as defined in28
section 4905.02 of the Revised Code; and includes any electric29
supplier as defined in section 4933.81 of the Revised Code.30

        (E) "Public way" means the surface of, and the space31
within, through, on, across, above, or below, any public street,32
public road, public highway, public freeway, public lane, public33
path, public alley, public court, public sidewalk, public34
boulevard, public parkway, public drive, and any other land35
dedicated or otherwise designated for a compatible public use,36
which, on or after the effective date of this section, is owned or37
controlled by a municipal corporation. "Public way" excludes a38
private easement.39

        (F) "Public way fee" means a fee levied to recover the costs40
incurred by a municipal corporation and associated with the41
occupancy or use of a public way.42

       Sec. 4939.02.  (A) It is the public policy of this state to43
do all of the following:44

        (1) Promote the public health, safety, and welfare regarding45
access to and the occupancy or use of public ways, to protect46
public and private property, and to promote economic development47
in this state;48

        (2) Promote the availability of a wide range of utility,49
communication, and other services to residents of this state at50
reasonable costs, including the rapid implementation of new51
technologies and innovative services;52

        (3) Ensure that access to and occupancy or use of public53
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 to56
manage access to and the occupancy or use of public ways to the57
extent necessary with regard to matters of local concern, and to58
receive cost recovery for the occupancy or use of public ways in59
accordance with law;60

        (5) Ensure in accordance with law the recovery by a public61
utility of public way fees and related costs;62

        (6) Promote coordination and standardization of municipal63
management of the occupancy or use of public ways, to enable64
efficient placement and operation of structures, appurtenances, or65
facilities necessary for the delivery of public utility or cable66

        (7) Encourage agreement among parties regarding public way68
fees and regarding terms and conditions pertaining to access to69
and the occupancy or use of public ways, and to facilitate the70
resolution of disputes regarding public way fees.71

        (B) This policy establishes fair terms and conditions for72
the use of public ways and does not unduly burden persons73
occupying or using public ways or persons that benefit from the74
services provided by such occupants or users.75

       Sec. 4939.03.  (A) No person shall occupy or use a public76
way except in accordance with law.77

        (B) In occupying or using a public way, no person shall78
unreasonably compromise the public health, safety, and welfare.79

        (C)(1) No person shall occupy or use a public way without80
first obtaining any requisite consent of the municipal corporation81
owning or controlling the public way.82

        (2) Except as otherwise provided in division (C)(5) of83
this section, a municipal corporation, not later than sixty days84
after the date of filing by a person of a completed request for85
consent, shall grant or deny its consent.86

        (3) A municipal corporation shall not unreasonably87
withhold or deny consent.88

        (4) If a request by a person for consent is denied, the89
municipal corporation shall provide to the person in writing its90
reasons for denying the request and such information as the person91
may reasonably request to obtain consent.92

        (5) Except in the case of a public utility subject to the93
jurisdiction and recognized on the rolls of the public utilities94
commission or of a cable operator possessing a valid franchise95
awarded pursuant to the "Cable Communications Policy Act of 1984,"96
98 Stat. 2779, 47 U.S.C.A. 541, a municipal corporation, for good97
cause shown, may withhold, deny, or delay its consent to any98
person based upon the person's failure to possess the financial,99
technical, and managerial resources necessary to protect the100
public health, safety, and welfare.101

        (6) Initial consent for occupancy or use of a public way102
shall be conclusively presumed for all lines, poles, pipes,103
conduits, ducts, equipment, or other appurtenances, structures, or104
facilities of a public utility or cable operator that, on the105
effective date of this section, lawfully so occupy or use a public106
way. However, such presumed consent does not relieve the public107
utility or cable operator of compliance with any law related to108
the ongoing occupancy or use of a public way.109

       Sec. 4939.04.  (A)(1) A municipal corporation shall provide110
public utilities or cable operators with open, comparable,111
nondiscriminatory, and competitively neutral access to its public112

        (2) Nothing in division (A)(1) of this section prohibits114
a municipal corporation from establishing priorities for access to115
or occupancy or use of a public way by a public utility or cable116
operator when the public way cannot accommodate all public way117
occupants or users, which priorities as applied to public118
utilities or cable operators shall not be unduly discriminatory119
and shall be competitively neutral.120

        (B) The management, regulation, and administration of a121
public way by a municipal corporation with regard to matters of122
local concern shall be presumed to be a valid exercise of the123
power of local self-government granted by Section 3 of Article124
XVIII of the Ohio Constitution.125

       Sec. 4939.05.  (A) A municipal corporation shall not126
require any nonmonetary compensation or free service, or levy any127
tax, for the right or privilege to occupy or use a public way, and128
shall not levy a public way fee except in accordance with this129

        (B)(1) A municipal corporation may levy different public131
way fees based upon the amount of public ways occupied or used,132
the type of utility service provided by a public utility, or any133
different treatment required by the public health, safety, and134

        (2) A municipal corporation may waive all or a portion of136
any public way fee for a governmental entity or a charitable137

        (3) A municipal corporation shall not require any person,139
including a reseller, that does not occupy or use a public way140
owned or controlled by the municipal corporation to pay it a141
public way fee.142

        (4) A municipal corporation that charges a franchise fee or143
otherwise receives free service or other nonmonetary compensation144
as part of a franchise between a cable operator and the municipal145
corporation shall grant the cable operator, for the occupancy or146
use of the public way related to the provision of any services147
provided by the cable operator, a credit, offset, or deduction148
against any public way fee or like charge for all such payments149
and the retail value of the free service or other nonmonetary150

        (C) Public way fees levied by a municipal corporation152
shall be based only on costs that the municipal corporation both153
has actually incurred and can clearly demonstrate are or can be154
properly allocated and assigned to the occupancy or use of a155
public way. The costs shall be reasonably and competitively156
neutrally allocated among all persons occupying or using public157
ways owned or controlled by the municipal corporation, including,158
but not limited to, persons for which payments are waived as159
authorized by division (B) of this section or for which160
compensation is otherwise obtained. No public way fee shall161
include a return on or exceed the amount of costs reasonably162
allocated by the municipal corporation to such occupant or user or163
pursuant to any reasonable classification of occupants or users.164

        (D) A municipal corporation that levies a public way fee165
shall establish and maintain a special fund for all such fees166
remitted to the municipal corporation and, with respect to that167
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, and169
5705.45 of the Revised Code and any other applicable provision of170
Chapter 5705. of the Revised Code concerning the establishment or171
maintenance of a special fund.172

        (E) At least forty-five days prior to the date of enactment173
of a public way ordinance by a municipal corporation, the174
municipal corporation shall file with the public utilities175
commission a notice that the ordinance is being considered.176

       Sec. 4939.06. (A) If a public utility does not accept a177
public way fee levied against it pursuant to the enactment of an178
ordinance by a municipal corporation, the public utility may179
appeal the public way fee to the public utilities commission. The180
appeal shall be made by filing a complaint that the amount of a181
public way fee, any related classification of public way occupants182
or users, or the assignment or allocation of costs to the public183
way fee is unreasonable, unjust, unjustly discriminatory, or184
unlawful. The complaint shall be filed not later than thirty days185
after the date the public utility first becomes subject to the186
ordinance. The complaint is subject to the same procedures as a187
complaint filed pursuant to section 4905.26 of the Revised Code.188
The commission shall act to resolve the complaint by issuance of a189
final order within one hundred twenty days after the date of the190
complaint's filing.191

       (B) Only upon a finding by the commission that reasonable192
grounds are stated for a complaint filed under division (A) of193
this section, the commission by order shall suspend the public way194
fee provisions of the municipal ordinance for the duration of the195
commission's consideration of the complaint. For the purpose of196
this division, if the commission so suspends an ordinance pursuant197
to a complaint filed not later than thirty days after the date198
that the ordinance first takes effect, the suspension shall apply199
to the public way fee for every occupancy or use of the public way200
to which the fee would otherwise apply. For any other complaint,201
the suspension shall apply only to the public utility filing the202
complaint. The municipal corporation may later collect, for the203
suspension period, any suspended public way fee only if the204
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 or207
classification complained of is unreasonable, unjust, unjustly208
discriminatory, or unlawful, it shall determine by order the just209
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 proceeding212
most immediately preceding the date of any final order issued by213
the public utilities commission under this section.214

       (B)(1) Notwithstanding any other provision of law or any215
agreement establishing price caps, rate freezes, or rate increase216
moratoria, a public utility subject to the rate-making217
jurisdiction of the commission may file an application with the218
commission for, and the commission shall then authorize by order,219
timely and full recovery of a public way fee levied upon and220
payable by the public utility both after January 1, 2002, and221
after the test year of the public utility's most recent rate222
proceeding or the initial effective date of rates in effect but223
not established through a proceeding for an increase in rates.224

       (2) Any order issued by the commission pursuant to its225
consideration of an application under division (B)(1) of this226
section shall establish a cost recovery mechanism including, but227
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 the230
total public way fee incurred; and require periodic adjustment of231
the mechanism based on revenues recovered.232

       (a) In the case of a cost recovery mechanism for a public233
way fee levied on and payable by a public utility but determined234
unreasonable, unjust, unjustly discriminatory, or unlawful by the235
commission pursuant to division (C) of section 4939.06 of the236
Revised Code, the mechanism shall provide for recovery, only from237
those customers of the public utility that receive its service238
within the municipal corporation, of the difference between that239
public way fee and the just and reasonable public way fee240
determined by the commission under division (C) of section 4939.06241
of the Revised Code.242

       (b) In all other cases, recovery shall be from all customers243
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-resale246
or wholesale telecommunications customers shall provide for247
recovery limited to any public way fee not included in established248
rates and prices for those customers and to the pro rata share of249
the public way fee applicable to the portion of the facilities250
that are sold, leased, or rented to the customers and are located251
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 any256
agreement establishing price caps, rate freezes, or rate increase257
moratoria, a public utility subject to the rate-making258
jurisdiction of the commission may file an application with the259
commission for, and the commission by order shall authorize, such260
accounting authority as may be reasonably necessary to classify261
any cost described in division (D)(2) of this section as a262
regulatory asset for the purpose of recovering that cost.263

       (2) A cost eligible for recovery under this division shall be264
only such cost as meets both of the following:265

       (a) The cost is directly incurred by the public utility as a266
result of local regulation of its occupancy or use of a public way267
or an appropriate allocation and assignment of costs related to268
implementation of this section, excluding any cost arising from a269
public way fee levied upon and payable by the public utility.270

       (b) The cost is incurred by the public utility both after271
January 1, 2002, and after the test year of the public utility's272
most recent rate proceeding or the initial effective date of rates273
in effect but not established through a proceeding for an increase274
in rates.275

       (3) If the commission determines, upon an application under276
division (D)(1) of this section or its own initiative, that277
classification of a cost described in division (D)(2) of this278
section as a regulatory asset is not practical or that deferred279
recovery of that cost would impose a hardship on the public280
utility or its customers, the commission shall establish a charge281
and collection mechanism to permit the public utility full282
recovery of that cost. A hardship shall be presumed for any283
public utility with less than fifteen thousand bundled sales284
service customers in this state and for any public utility for285
which the annualized aggregate amount of additional cost that286
otherwise may be eligible for such classification exceeds the287
greater of five hundred thousand dollars or fifteen per cent of288
the total costs that are described in division (D)(2)(a) of this289
section and were considered by the commission for the purpose of290
establishing rates in the public utility's most recent rate291
increase proceeding or the rate increase proceeding of the public292
utility's predecessor, whichever is later.293

       (E) Any application submitted to the commission under294
divisions (B) to (D) of this section shall be processed by the295
commission as an application not for an increase in rates under296
section 4909.18 of the Revised Code. The application shall include297
such information as the commission reasonably requires. The298
commission shall conclude its consideration of the application and299
issue a final order not later than one hundred twenty days after300
the date that the application was submitted to the commission. A301
final order regarding a recovery mechanism authorized pursuant to302
this section shall provide for such retroactive adjustment as the303
commission determines appropriate.304

        (F) A public utility shall not be required to waive any305
rights under this section as a condition of occupancy or use of a306
public way.307

       (G) The commission may issue such rules as it considers308
necessary to carry out this section.309

       Sec. 4939.08. (A) Nothing in sections 4939.01 to 4939.07 of310
the Revised Code applies to a franchise or to any agreement with a311
public utility or cable operator, for the balance of its term, if312
the franchise or agreement meets all of the following:313

       (1) The franchise was granted, or the agreement was314
authorized by ordinance or otherwise and was entered into, by a315
municipal corporation prior to the effective date of this section.316

       (2) The franchise or agreement authorizes the occupation or317
use of public ways.318

       (3) The public utility agrees with the applicable public way319
fees, or nonmonetary compensation, if any, or the cable operator320
pays the applicable fee or utilizes the credit, offset, or321
deduction specified in division (B)(4) of section 4939.05 of the322
Revised Code.323

       (B) Except as otherwise provided in division (A) of section324
4939.06 of the Revised Code, nothing in sections 4939.01 to325
4939.07 of the Revised Code applies to an ordinance both governing326
public ways and enacted by a municipal corporation prior to327
September 29, 1999, unless, on or after that date, the ordinance328
is materially modified. 329

       (C) Nothing in sections 4939.01 to 4939.07 of the Revised330
Code authorizes a municipal corporation to levy a fee, other than331
a public way fee authorized by section 4939.05 of the Revised332
Code, on a pipeline company or an operator of a pipeline facility333
regulated under the "Accountable Pipeline Safety and Partnership334
Act of 1996," 110 Stat. 3793, 49 U.S.C.A. 60101, or on an335
operating partner or affiliated business unit operating under336
guidelines of the federal energy regulatory commission as they337
relate to the construction and operation of a pipeline.338

       (D) Nothing in sections 4939.01 to 4939.07 and this section339
of the Revised Code prohibits a municipal corporation from doing340
either of the following:341

       (1) Charging a cable operator a franchise fee in accordance342
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 the345
payment of a construction permit fee for any franchise fee a cable346
operator pays to the municipal corporation.347

       Sec. 5571.16.  The board of township trustees may, by348
resolution, may require any person, firm or corporationperson to349
obtain a permit before making any excavation in a public highway350
or highway right-of-way within its jurisdiction, except an351
excavation to repair, rehabilitate, or replace a pole already352
installed for the purpose of providing electric or353
telecommunications service. The board may, as a condition to the354
granting of such permit:355

       (A) Require the applicant to submit plans indicating the356
location, size, type, and duration of the excavation contemplated;357

       (B) Specify methods of excavation, refilling, and358
resurfacing to be followed;359

       (C) Require the use of such warning devices as it deems360
necessary to protect travelers on the highway;361

       (D) Require the applicant to indemnify the township against362
liability or damage as the result of such excavation;363

       (E) Require the applicant to post a deposit or bond, with364
sureties to the satisfaction of the board, conditioned upon the365
performance of all conditions to such permit.366

       Applications for permits under this section shall be made to367
the township clerk upon forms to be furnished by the board. Such368
applications, including, but not limited to, a single application369
for an excavation project to install six or more poles for the370
purpose of providing electric or telecommunications service or to371
install a pole associated with underground electric or372
telecommunications service, shall be accompanied by a fee of two373
fifty dollars per application, which fee shall be returned to the374
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 or382
highway right-of-way in violation of any resolution adopted383
pursuant to this section; except that, in the case of an emergency384
requiring immediate action to protect the public health, safety,385
and welfare, an excavation may be made without first obtaining a386
permit, if such application is made at the earliest possible387

       As used in this section, "person" has the same meaning as in389
section 1.59 of the Revised Code, and "right-of-way" has the same390
meaning as in division (UU)(2) of section 4511.01 of the Revised391

       Section 2. That existing section 5571.16 and sections393
4939.01, 4939.02, 4939.03, and 4939.04 of the Revised Code are394
hereby repealed.395

       Section 3. Section 5571.16 of the Revised Code, as amended by396
this act, shall take effect ninety days after the effective date397
of this section.398

       Section 4. This act is hereby declared to be an emergency399
measure necessary for the immediate preservation of the public400
peace, health, and safety. The reason for such necessity is to401
provide, at the earliest possible time, for resolution of402
litigated issues concerning public ways of a municipal403
corporation. Therefore, this act shall go into immediate effect.404