As Passed by the Senate

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

SENATORS Blessing, Mead, Spada, Mumper

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 4939.09, 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 4939.09 of the Revised Code be enacted to10
read as follows:11

       Sec. 4939.01.  As used in sections 4939.01 to 4939.07 and12
4939.09 of the 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. 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 or any services22
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 the consent of the municipal corporation owning or81
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 for the right127
or privilege to occupy or use a public way, and shall not levy a128
public way fee except in accordance with this section.129

        (B)(1) A municipal corporation may levy different public130
way fees based upon the amount of public ways occupied or used,131
the type of utility service provided by a public utility, or any132
different treatment required by the public health, safety, and133

        (2) A municipal corporation may waive all or a portion of135
any public way fee for a governmental entity or a charitable136

        (3) A municipal corporation shall not require any person,138
including a reseller, that does not occupy or use a public way139
owned or controlled by the municipal corporation to pay it a140
public way fee.141

        (4) A municipal corporation that charges a franchise fee142
related to cable service provided by a cable operator or otherwise143
receives free service or other nonmonetary compensation as part of144
a franchise between the 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 deduction for148
all such payments and the retail value of the free service or149
other nonmonetary compensation.150

        (C) Public way fees levied by a municipal corporation151
shall be based only on costs that the municipal corporation both152
has actually incurred and can clearly demonstrate are or can be153
properly allocated and assigned to the occupancy or use of a154
public way. The costs shall be reasonably and competitively155
neutrally allocated among all persons occupying or using public156
ways owned or controlled by the municipal corporation, including,157
but not limited to, persons for which payments are waived as158
authorized by division (B) of this section or for which159
compensation is otherwise obtained. No public way fee shall160
exceed the amount of costs reasonably allocated by the municipal161
corporation to such occupant or user or pursuant to any reasonable162
classification of occupants or users.163

        (D) A municipal corporation that levies a public way fee164
shall establish and maintain a special fund for all such fees165
remitted to the municipal corporation and, with respect to that166
special fund, shall be subject to sections 5705.09, 5705.10,167
5705.14, 5705.15, 5705.16, 5705.39, 5705.40, 5705.41, 5705.44, and168
5705.45 of the Revised Code and any other applicable provision of169
Chapter 5705. of the Revised Code concerning the establishment or170
maintenance of a special fund.171

        (E) At least forty-five days prior to the date of enactment172
of a public way ordinance by a municipal corporation, the173
municipal corporation shall file with the public utilities174
commission a notice that the ordinance is being considered.175

       Sec. 4939.06. (A) If a public utility does not accept a176
public way fee levied against it pursuant to the enactment of an177
ordinance by a municipal corporation, the public utility may178
appeal the public way fee to the public utilities commission. The179
appeal shall be made by filing a complaint that the amount of a180
public way fee, any related classification of public way occupants181
or users, or the assignment or allocation of costs to the public182
way fee is unreasonable, unjust, unjustly discriminatory, or183
unlawful. The complaint shall be filed not later than thirty days184
after the date the public utility first becomes subject to the185
ordinance. The complaint is subject to the same procedures as a186
complaint filed pursuant to section 4905.26 of the Revised Code.187
The commission shall act to resolve the complaint by issuance of a188
final order within one hundred twenty days after the date of the189
complaint's filing.190

       (B) Only upon a finding by the commission that reasonable191
grounds are stated for a complaint filed under division (A) of192
this section, the commission by order shall suspend the public way193
fee provisions of the municipal ordinance for the duration of the194
commission's consideration of the complaint. For the purpose of195
this division, if the commission so suspends an ordinance pursuant196
to a complaint filed not later than thirty days after the date197
that the ordinance first takes effect, the suspension shall apply198
to the public way fee for every occupancy or use of the public way199
to which the fee would otherwise apply. For any other complaint,200
the suspension shall apply only to the public utility filing the201
complaint. The municipal corporation may later collect any202
suspended public way fee only if the commission finds that the203
public way fee is not unreasonable, unjust, unjustly204
discriminatory, or unlawful.205

       (C) If the commission finds that the public way fee or206
classification complained of is unreasonable, unjust, unjustly207
discriminatory, or unlawful, it shall determine by order the just208
and reasonable public way fee or classification.209

       Sec. 4939.07. (A) As used in this section, "most recent,"210
with respect to any rate proceeding, means the rate proceeding211
most immediately preceding the date of any final order issued by212
the commission under this section.213

       (B)(1) Notwithstanding any other provision of law or any214
agreement establishing price caps, rate freezes, or rate increase215
moratoria, a public utility subject to the rate-making216
jurisdiction of the commission may file an application with the217
commission for, and the commission shall then authorize by order,218
timely and full recovery of a public way fee levied upon and219
payable by the public utility both after January 1, 2002, and220
after the test year of the public utility's most recent rate221
proceeding or the initial effective date of rates in effect but222
not established through a proceeding for an increase in rates. The223
recovery shall be in a nondiscriminatory and competitively neutral224
manner and pro rated on a per-line or per-line equivalent basis225
among all retail, sale-for-resale, and wholesale customers subject226
to the recovery.227

       (2) Any order issued by the commission pursuant to its228
consideration of an application under division (B)(1) of this229
section shall establish a cost recovery mechanism including, but230
not limited to, an adder, tracker, rider, or percentage surcharge,231
for recovering the amount to be recovered; specify that amount;232
limit the amount to not more and not less than the amount of the233
total public way fee incurred; and require periodic adjustment of234
the mechanism based on revenues recovered.235

       (a) In the case of a cost recovery mechanism for a public236
way fee levied and payable by a public utility but determined237
unreasonable, unjust, unjustly discriminatory, or unlawful by the238
commission pursuant to division (C) of section 4939.06 of the239
Revised Code, the mechanism shall provide for recovery, only from240
those customers of the public utility that receive its service241
within the municipal corporation, of the difference between that242
public way fee and the just and reasonable public way fee243
determined by the commission under division (C) of section 4939.06244
of the Revised Code.245

       (b) In all other cases, recovery shall be from all customers246
of the public utility generally.247

       (C) In the case of recovery under division (B)(2)(a) or (b)248
of this section, the recovery mechanism payable by sale-for-resale249
or wholesale telecommunications customers shall provide for250
recovery limited to any public way fee not included in established251
rates and prices for those customers and to the pro rata share of252
the public way fee applicable to the portion of the facilities253
that are sold, leased, or rented to the customers and are located254
in the public way.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 the recovery mechanism specified in division302
(C) of this section shall provide for such retroactive adjustment303
as the 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. 4939.09. (A) Nothing in sections 4939.01 to 4939.07 and310
this section of the Revised Code applies to a franchise or to any311
agreement with a public utility or cable operator, for the balance312
of its term, if the franchise or agreement meets all of the313

       (1) The franchise was granted, or the agreement was315
authorized by ordinance or otherwise and was entered into, by a316
municipal corporation prior to the effective date of this section.317

       (2) The franchise or agreement authorizes the occupation or318
use of public ways.319

       (3) The public utility agrees with the applicable public way 320
fees, or non-monetary compensation, if any, or the cable operator 321
pays the applicable fee or utilizes the credit, offset, or 322
deduction specified in division (B)(4) of section 4939.05 of the 323
Revised Code.324

       (B) Except as otherwise provided in division (A) of section325
4939.06 of the Revised Code, nothing in sections 4939.01 to326
4939.07 and this section of the Revised Code applies to an327
ordinance both governing public ways and enacted by a municipal328
corporation prior to September 29, 1999, unless, on or after that329
date, the ordinance is materially modified. 330

       (C) Nothing in sections 4939.01 to 4939.07 and this section331
of the Revised Code authorizes a municipal corporation to levy a332
fee, other than a public way fee authorized by section 4939.05 of333
the Revised Code, on a pipeline company or an operator of a334
pipeline facility regulated under the "Accountable Pipeline Safety335
and Partnership Act of 1996," 110 Stat. 3793, 49 U.S.C. 60101, or336
on an operating partner or affiliated business unit operating337
under guidelines of the federal energy regulatory commission as338
they relate to the construction and operation of a pipeline.339

       Sec. 5571.16.  The board of township trustees may, by340
resolution, may require any person, firm, or corporation to obtain341
a permit before making any excavation in a public highway or342
highway right-of-way within its jurisdiction. The board may, as a343
condition to the granting of such permit:344

       (A) Require the applicant to submit plans indicating the345
location, size, type, and duration of the excavation contemplated;346

       (B) Specify methods of excavation, refilling, and347
resurfacing to be followed;348

       (C) Require the use of such warning devices as it deems349
necessary to protect travelers on the highway;350

       (D) Require the applicant to indemnify the township against351
liability or damage as the result of such excavation;352

       (E) Require the applicant to post a deposit or bond, with353
sureties to the satisfaction of the board, conditioned upon the354
performance of all conditions to such permit.355

       Applications for permits under this section shall be made to356
the township clerk upon forms to be furnished by the board. Such357
applications shall be accompanied by a fee of twofifty dollars, 358
which shall be returned to the applicant if the application is359

       No person shall make an excavation in any township highway or361
highway right-of-way in violation of any resolution adopted362
pursuant to this section; except that, in the case of an emergency363
requiring immediate action to protect the public health, safety,364
and welfare, an excavation may be made without first obtaining a365
permit, if such application is made at the earliest possible366

       As used in this section, "right-of-way" has the same meaning368
as in division (UU)(2) of section 4511.01 of the Revised Code.369

       Section 2. That existing section 5571.16 and sections370
4939.01, 4939.02, 4939.03, and 4939.04 of the Revised Code are371
hereby repealed.372

       Section 3. Section 5571.16 of the Revised Code, as amended by373
this act, shall take effect ninety days after the effective date374
of this section.375

       Section 4. This act is hereby declared to be an emergency376
measure necessary for the immediate preservation of the public377
peace, health, and safety. The reason for such necessity is to378
provide, at the earliest possible time, for resolution of379
litigated issues concerning public ways of a municipal380
corporation. Therefore, this act shall go into immediate effect.381