SENATORS Blessing, Mead

To amend section 5571.16, to enact new sections

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4939.01, 4939.02, 4939.03, and 4939.04 and sections

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4939.05, 4939.06, 4939.07, and 4939.09, and to

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repeal sections 4939.01, 4939.02, 4939.03, and

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4939.04 of the Revised Code to revise certain

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statutes governing the use of public ways and to

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declare an emergency.

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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 4939.09 of the Revised Code be enacted to	10
read as follows:	11

Sec. 4939.01.  As used in sections 4939.01 to 4939.07 and	12
4939.09 of the 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. 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 or any services	22
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 the consent of the municipal corporation owning or	81
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 for the right	127
or privilege to occupy or use a public way, and shall not levy a	128
public way fee except in accordance with this section.	129

(B)(1) A municipal corporation may levy different public	130
way fees based upon the amount of public ways occupied or used,	131
the type of utility service provided by a public utility, or any	132
different treatment required by the public health, safety, and	133
welfare.	134

(2) A municipal corporation may waive all or a portion of	135
any public way fee for a governmental entity or a charitable	136
organization.	137

(3) A municipal corporation shall not require any person,	138
including a reseller, that does not occupy or use a public way	139
owned or controlled by the municipal corporation to pay it a	140
public way fee.	141

(4) A municipal corporation that charges a franchise fee	142
related to cable service provided by a cable operator or otherwise	143
receives free service or other nonmonetary compensation as part of	144
a franchise between the 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 for	148
all such payments and the retail value of the free service or	149
other nonmonetary compensation.	150

(C) Public way fees levied by a municipal corporation	151
shall be based only on costs that the municipal corporation both	152
has actually incurred and can clearly demonstrate are or can be	153
properly allocated and assigned to the occupancy or use of a	154
public way. The costs shall be reasonably and competitively	155
neutrally allocated among all persons occupying or using public	156
ways owned or controlled by the municipal corporation, including,	157
but not limited to, persons for which payments are waived as	158
authorized by division (B) of this section or for which	159
compensation is otherwise obtained. No public way fee shall	160
exceed the amount of costs reasonably allocated by the municipal	161
corporation to such occupant or user or pursuant to any reasonable	162
classification of occupants or users.	163

(D) A municipal corporation that levies a public way fee	164
shall establish and maintain a special fund for all such fees	165
remitted to the municipal corporation and, with respect to that	166
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, and	168
5705.45 of the Revised Code and any other applicable provision of	169
Chapter 5705. of the Revised Code concerning the establishment or	170
maintenance of a special fund.	171

(E) At least forty-five days prior to the date of enactment	172
of a public way ordinance by a municipal corporation, the	173
municipal corporation shall file with the public utilities	174
commission a notice that the ordinance is being considered.	175

Sec. 4939.06. (A) If a public utility does not accept a	176
public way fee levied against it pursuant to the enactment of an	177
ordinance by a municipal corporation, the public utility may	178
appeal the public way fee to the public utilities commission. The	179
appeal shall be made by filing a complaint that the amount of a	180
public way fee, any related classification of public way occupants	181
or users, or the assignment or allocation of costs to the public	182
way fee is unreasonable, unjust, unjustly discriminatory, or	183
unlawful. The complaint shall be filed not later than thirty days	184
after the date the public utility first becomes subject to the	185
ordinance. The complaint is subject to the same procedures as a	186
complaint filed pursuant to section 4905.26 of the Revised Code.	187
The commission shall act to resolve the complaint by issuance of a	188
final order within one hundred twenty days after the date of the	189
complaint's filing.	190

(B) Only upon a finding by the commission that reasonable	191
grounds are stated for a complaint filed under division (A) of	192
this section, the commission by order shall suspend the public way	193
fee provisions of the municipal ordinance for the duration of the	194
commission's consideration of the complaint. For the purpose of	195
this division, if the commission so suspends an ordinance pursuant	196
to a complaint filed not later than thirty days after the date	197
that the ordinance first takes effect, the suspension shall apply	198
to the public way fee for every occupancy or use of the public way	199
to which the fee would otherwise apply. For any other complaint,	200
the suspension shall apply only to the public utility filing the	201
complaint. The municipal corporation may later collect any	202
suspended public way fee only if the commission finds that the	203
public way fee is not unreasonable, unjust, unjustly	204
discriminatory, or unlawful.	205

(C) If the commission finds that the public way fee or	206
classification complained of is unreasonable, unjust, unjustly	207
discriminatory, or unlawful, it shall determine by order the just	208
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 proceeding	211
most immediately preceding the date of any final order issued by	212
the commission under this section.	213

(B)(1) Notwithstanding any other provision of law or any	214
agreement establishing price caps, rate freezes, or rate increase	215
moratoria, a public utility subject to the rate-making	216
jurisdiction of the commission may file an application with the	217
commission for, and the commission shall then authorize by order,	218
timely and full recovery of a public way fee levied upon and	219
payable by the public utility both after January 1, 2002, and	220
after the test year of the public utility's most recent rate	221
proceeding or the initial effective date of rates in effect but	222
not established through a proceeding for an increase in rates. The	223
recovery shall be in a nondiscriminatory and competitively neutral	224
manner and pro rated on a per-line or per-line equivalent basis	225
among all retail, sale-for-resale, and wholesale customers subject	226
to the recovery.	227

(2) Any order issued by the commission pursuant to its	228
consideration of an application under division (B)(1) of this	229
section shall establish a cost recovery mechanism including, but	230
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 the	233
total public way fee incurred; and require periodic adjustment of	234
the mechanism based on revenues recovered.	235

(a) In the case of a cost recovery mechanism for a public	236
way fee levied and payable by a public utility but determined	237
unreasonable, unjust, unjustly discriminatory, or unlawful by the	238
commission pursuant to division (C) of section 4939.06 of the	239
Revised Code, the mechanism shall provide for recovery, only from	240
those customers of the public utility that receive its service	241
within the municipal corporation, of the difference between that	242
public way fee and the just and reasonable public way fee	243
determined by the commission under division (C) of section 4939.06	244
of the Revised Code.	245

(b) In all other cases, recovery shall be from all customers	246
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-resale	249
or wholesale telecommunications customers shall provide for	250
recovery limited to any public way fee not included in established	251
rates and prices for those customers and to the pro rata share of	252
the public way fee applicable to the portion of the facilities	253
that are sold, leased, or rented to the customers and are located	254
in the public way.	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 the recovery mechanism specified in division	302
(C) of this section shall provide for such retroactive adjustment	303
as the 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. 4939.09. (A) Nothing in sections 4939.01 to 4939.07 and	310
this section of the Revised Code applies to a franchise or to any	311
agreement with a public utility or cable operator, for the balance	312
of its term, if the franchise or agreement meets all of the	313
following:	314

(1) The franchise was granted, or the agreement was	315
authorized by ordinance or otherwise and was entered into, by a	316
municipal corporation prior to the effective date of this section.	317

(2) The franchise or agreement authorizes the occupation or	318
use of public ways.	319

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

(B) Except as otherwise provided in division (A) of section	325
4939.06 of the Revised Code, nothing in sections 4939.01 to	326
4939.07 and this section of the Revised Code applies to an	327
ordinance both governing public ways and enacted by a municipal	328
corporation prior to September 29, 1999, unless, on or after that	329
date, the ordinance is materially modified.	330

(C) Nothing in sections 4939.01 to 4939.07 and this section	331
of the Revised Code authorizes a municipal corporation to levy a	332
fee, other than a public way fee authorized by section 4939.05 of	333
the Revised Code, on a pipeline company or an operator of a	334
pipeline facility regulated under the "Accountable Pipeline Safety	335
and Partnership Act of 1996," 110 Stat. 3793, 49 U.S.C. 60101, or	336
on an operating partner or affiliated business unit operating	337
under guidelines of the federal energy regulatory commission as	338
they relate to the construction and operation of a pipeline.	339

Sec. 5571.16.  The board of township trustees may, by	340
resolution, may require any person, firm, or corporation to obtain	341
a permit before making any excavation in a public highway or	342
highway right-of-way within its jurisdiction. The board may, as a	343
condition to the granting of such permit:	344

(A) Require the applicant to submit plans indicating the	345
location, size, type, and duration of the excavation contemplated;	346

(B) Specify methods of excavation, refilling, and	347
resurfacing to be followed;	348

(C) Require the use of such warning devices as it deems	349
necessary to protect travelers on the highway;	350

(D) Require the applicant to indemnify the township against	351
liability or damage as the result of such excavation;	352

(E) Require the applicant to post a deposit or bond, with	353
sureties to the satisfaction of the board, conditioned upon the	354
performance of all conditions to such permit.	355

Applications for permits under this section shall be made to	356
the township clerk upon forms to be furnished by the board. Such	357
applications shall be accompanied by a fee of twoone hundred	358
dollars, which shall be returned to the applicant if the	359
application is denied.	360

No person shall make an excavation in any township highway or	361
highway right-of-way in violation of any resolution adopted	362
pursuant to this section; except that, in the case of an emergency	363
requiring immediate action to protect the public health, safety,	364
and welfare, an excavation may be made without first obtaining a	365
permit, if such application is made at the earliest possible	366
opportunity.	367

As used in this section, "right-of-way" has the same meaning	368
as in division (UU)(2) of section 4511.01 of the Revised Code.	369

Section 2. That existing section 5571.16 and sections	370
4939.01, 4939.02, 4939.03, and 4939.04 of the Revised Code are	371
hereby repealed.	372

Section 3. Section 5571.16 of the Revised Code, as amended by	373
this act, shall take effect ninety days after the effective date	374
of this section.	375

Section 4. This act is hereby declared to be an emergency	376
measure necessary for the immediate preservation of the public	377
peace, health, and safety. The reason for such necessity is to	378
provide, at the earliest possible time, for resolution of	379
litigated issues concerning public ways of a municipal	380
corporation. Therefore, this act shall go into immediate effect.	381