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Am. Sub. S. B. No. 255As Passed by the SenateAs Passed by the Senate
124th General Assembly | Regular Session | 2001-2002 |
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SENATORS Blessing, Mead, Spada, Mumper
A BILL
To amend section 5571.16, to enact new sections
4939.01, 4939.02, 4939.03, and 4939.04 and sections
4939.05, 4939.06, 4939.07, and 4939.09,
and to
repeal sections 4939.01, 4939.02, 4939.03,
and
4939.04 of the Revised Code to revise certain
statutes governing the use of public ways and to
declare an emergency.
BE IT ENACTED BY THE GENERAL ASSEMBLY OF THE STATE OF OHIO:
Section 1. That section 5571.16 be amended and new sections
4939.01, 4939.02, 4939.03, and 4939.04 and sections 4939.05,
4939.06, 4939.07, and 4939.09 of the Revised Code be
enacted to
read as follows:
Sec. 4939.01. As used in sections 4939.01 to 4939.07 and
4939.09 of the
Revised Code:
(A) "Cable operator," "cable service," and "franchise" have
the same meanings as in the "Cable Communications Policy Act of
1984," 98 Stat. 2779, 47 U.S.C. 522.
(B) "Occupy or use" means, with respect to a public way, to
place a tangible thing in a public way for any purpose, including,
but not limited to, constructing, repairing, positioning,
maintaining, or operating lines, poles, pipes, conduits, ducts,
equipment, or other structures, appurtenances, or facilities
necessary for the delivery of public utility or any services
provided by a cable operator.
(C) "Person" means any natural person, corporation, or
partnership and also includes any governmental entity.
(D) "Public utility" means any company described in section
4905.03 of the Revised Code except in divisions (A)(3) and (10) of
that section, which company also is a public utility as defined in
section 4905.02 of the Revised Code; and includes any electric
supplier as defined in section 4933.81 of the Revised Code.
(E) "Public way" means the surface of, and the space
within, through, on, across, above, or below, any public street,
public road, public highway, public freeway, public lane, public
path, public alley, public court, public sidewalk, public
boulevard, public parkway, public drive, and any other land
dedicated or otherwise designated for a compatible public use,
which, on or after the effective date of this section, is owned or
controlled by a municipal corporation. "Public way" excludes a
private easement.
(F) "Public way fee" means a fee levied to recover the costs
incurred by a municipal corporation and associated with the
occupancy or use of a public way.
Sec. 4939.02. (A) It is the public policy of this state to
do all of the following:
(1) Promote the public health, safety, and welfare regarding
access to and the occupancy or use of public ways, to protect
public and private property, and to promote economic development
in this state;
(2) Promote the availability of a wide range of utility,
communication, and other services to residents of this state at
reasonable costs, including the rapid implementation of new
technologies and innovative services;
(3) Ensure that access to and occupancy or use of public
ways advances the state policies specified in sections 4927.02,
4928.02, and 4929.02 of the Revised Code;
(4) Recognize the authority of a municipal corporation to
manage access to and the occupancy or use of public ways to the
extent necessary with regard to matters of local concern, and to
receive cost recovery for the occupancy or use of public ways in
accordance with law;
(5) Ensure in accordance with law the recovery by a public
utility of public way fees and related costs;
(6) Promote coordination and standardization of municipal
management of the occupancy or use of public ways, to enable
efficient placement and operation of structures, appurtenances, or
facilities necessary for the delivery of public utility or cable
services;
(7) Encourage agreement among parties regarding public way
fees and regarding terms and conditions pertaining to access to
and the occupancy or use of public ways, and to facilitate the
resolution of disputes regarding public way fees.
(B) This policy establishes fair terms and conditions for
the use of public ways and does not unduly burden persons
occupying or using public ways or persons that benefit from the
services provided by such occupants or users.
Sec. 4939.03. (A) No person shall occupy or use a public
way except in accordance with law.
(B) In occupying or using a public way, no person shall
unreasonably compromise the public health, safety, and welfare.
(C)(1) No person shall occupy or use a public way without
first obtaining the consent of the municipal corporation owning or
controlling the public way.
(2) Except as otherwise provided in division (C)(5) of
this section, a municipal corporation, not later than sixty days
after the date of filing by a person of a completed request for
consent, shall grant or deny its consent.
(3) A municipal corporation shall not unreasonably
withhold or deny consent.
(4) If a request by a person for consent is denied, the
municipal corporation shall provide to the person in writing its
reasons for denying the request and such information as the person
may reasonably request to obtain consent.
(5) Except in the case of a public utility subject to the
jurisdiction and recognized on the rolls of the public utilities
commission or of a cable operator possessing a valid franchise
awarded pursuant to the "Cable Communications Policy Act of 1984,"
98 Stat. 2779, 47 U.S.C.A. 541, a municipal corporation, for good
cause shown, may withhold, deny, or delay its consent to any
person based upon the person's failure to possess the financial,
technical, and managerial resources necessary to protect the
public health, safety, and welfare.
(6) Initial consent for occupancy or use of a public way
shall be conclusively presumed for all lines, poles, pipes,
conduits, ducts, equipment, or other appurtenances, structures, or
facilities of a public utility or cable operator that, on the
effective date of this section, lawfully so occupy or use a public
way. However, such presumed consent does not relieve the public
utility or cable operator of compliance with any law related to
the ongoing occupancy or use of a public way.
Sec. 4939.04. (A)(1) A municipal corporation shall provide
public utilities or cable operators with open, comparable,
nondiscriminatory, and competitively neutral access to its public
ways.
(2) Nothing in division (A)(1) of this section prohibits
a municipal corporation from establishing priorities for access to
or occupancy or use of a public way by a public utility or cable
operator when the public way cannot accommodate all public way
occupants or users, which priorities as applied to public
utilities or cable operators shall not be unduly
discriminatory
and shall be competitively neutral.
(B) The management, regulation, and administration of a
public way by a municipal corporation with regard to matters of
local concern shall be presumed to be a valid exercise of the
power of local self-government granted by Section 3 of Article
XVIII of the Ohio Constitution.
Sec. 4939.05. (A) A municipal corporation shall not
require any nonmonetary compensation or free service for the right
or privilege to occupy or use a public way, and shall not levy a
public way fee except in accordance with this section.
(B)(1) A municipal corporation may levy different public
way fees based upon the amount of public ways occupied or used,
the type of utility service provided by a public utility, or any
different treatment required by the public health, safety, and
welfare.
(2) A municipal corporation may waive all or a portion of
any public way fee for a governmental entity or a charitable
organization.
(3) A municipal corporation shall not require any person,
including a reseller, that does not occupy or use a public way
owned or controlled by the municipal corporation to pay it a
public way fee. (4) A municipal corporation that charges a franchise fee
related to cable service provided by a cable operator or otherwise
receives free service or other nonmonetary compensation as part of
a franchise between the cable operator and the municipal
corporation shall grant the cable operator, for the occupancy or
use of the public way related to the provision of any services
provided by the cable operator, a credit, offset, or deduction for
all such payments and the retail value of the free service or
other nonmonetary compensation.
(C) Public way fees levied by a municipal corporation
shall be based only on costs that the municipal corporation both
has actually incurred and can clearly demonstrate are or can be
properly allocated and assigned to the occupancy or use of a
public way. The costs shall be reasonably and competitively
neutrally allocated among all persons occupying or using public
ways owned or controlled by the municipal corporation, including,
but not limited to, persons for which payments are waived as
authorized by division (B) of this section or for which
compensation is otherwise obtained. No public way fee shall
exceed the amount of costs reasonably allocated by the municipal
corporation to such occupant or user or pursuant to any reasonable
classification of occupants or users.
(D) A municipal corporation that levies a public way fee
shall establish and maintain a special fund for all such fees
remitted to the municipal corporation and, with respect to that
special fund, shall be subject to sections 5705.09, 5705.10,
5705.14, 5705.15, 5705.16, 5705.39, 5705.40, 5705.41, 5705.44, and
5705.45 of the Revised Code and any other applicable provision of
Chapter 5705. of the Revised Code concerning the establishment or
maintenance of a special fund.
(E) At least forty-five days prior to the date of enactment
of a public way ordinance by a municipal corporation, the
municipal corporation shall file with the public utilities
commission a notice that the ordinance is being considered.
Sec. 4939.06. (A) If a public utility does not accept a
public way fee levied against it pursuant to the
enactment of an
ordinance by a municipal corporation, the public
utility may
appeal the public way fee to the public utilities
commission. The
appeal shall be made by filing a complaint that
the amount of a
public way fee, any related classification of
public way occupants
or users, or the assignment or allocation of
costs to the public
way fee is unreasonable, unjust, unjustly
discriminatory, or
unlawful. The complaint shall be filed not
later than thirty days
after the date the public utility first
becomes subject to the
ordinance. The complaint is subject to the
same procedures as a
complaint filed pursuant to section 4905.26
of the Revised Code.
The commission shall act to resolve the
complaint by issuance of a
final order within one hundred twenty days
after the date of the
complaint's filing. (B) Only upon a finding by the commission that reasonable
grounds are stated for a complaint filed under division (A) of
this section, the commission by order shall suspend the public way
fee provisions of the municipal ordinance for the duration of the
commission's consideration of the complaint. For the purpose of
this division, if the commission so suspends an ordinance pursuant
to a complaint filed not later than thirty days after the date
that the ordinance first takes effect, the suspension shall apply
to the public way fee for every occupancy or use of the public way
to which the fee would otherwise apply. For any other complaint,
the suspension shall apply only to the public utility filing the
complaint. The municipal corporation may later collect any
suspended public way fee only if the commission finds that the
public way fee is not unreasonable, unjust, unjustly
discriminatory, or unlawful. (C) If the commission finds that the public way fee or
classification complained of is unreasonable, unjust, unjustly
discriminatory, or unlawful, it shall determine by order the just
and reasonable public way fee or classification.
Sec. 4939.07. (A) As used in this section, "most recent,"
with respect to any rate proceeding, means the rate proceeding
most immediately preceding the date of any final order issued by
the commission under this section. (B)(1) Notwithstanding any other provision of law or any
agreement establishing price caps, rate freezes, or rate increase
moratoria, a public utility subject to the rate-making
jurisdiction of the commission may file an application with the
commission for, and the commission shall then authorize by order,
timely and full recovery of a public way fee levied upon and
payable by the public utility both after January 1, 2002, and
after the test year of the public utility's most
recent rate
proceeding or the initial effective date of rates in
effect but
not established through a proceeding for an increase in
rates. The
recovery shall be in a nondiscriminatory and
competitively neutral
manner and pro rated on a per-line or
per-line equivalent basis
among all retail, sale-for-resale, and
wholesale customers subject
to the recovery. (2) Any order issued by the commission pursuant to its
consideration of an application under division (B)(1) of this
section shall establish a cost recovery mechanism including, but
not limited to, an adder, tracker, rider, or percentage surcharge,
for recovering the amount to be recovered; specify that amount;
limit the amount to not more and not less than the amount of the
total public way fee incurred; and require periodic adjustment of
the mechanism based on revenues recovered. (a) In the case of a cost recovery mechanism for a public
way fee levied and payable by a public utility but determined
unreasonable, unjust, unjustly discriminatory, or unlawful by the
commission pursuant to division (C) of section 4939.06 of the
Revised Code, the mechanism shall provide for recovery, only from
those customers of the public utility that receive its service
within the municipal corporation, of the difference between that
public way fee and the just and reasonable public way fee
determined by the commission under division (C) of section 4939.06
of the Revised Code. (b) In all other cases, recovery shall be from all customers
of the public utility generally. (C) In the case of recovery under division (B)(2)(a) or (b)
of this section, the recovery mechanism payable by sale-for-resale
or wholesale telecommunications customers shall provide for
recovery limited to any public way fee not included in established
rates and prices for those customers and to the pro rata share of
the public way fee applicable to the portion of the facilities
that are sold, leased, or rented to the customers and are located
in the public way. (D)(1) Notwithstanding any other provision of law or any
agreement establishing price caps, rate freezes, or rate increase
moratoria, a public utility subject to the rate-making
jurisdiction of the commission may file an application with the
commission for, and the commission by order shall authorize, such
accounting authority as may be reasonably necessary to classify
any cost described in division (D)(2) of this section as a
regulatory asset for the purpose of recovering that cost. (2) A cost eligible for recovery under this division shall be
only such cost as meets both of the following: (a) The cost is directly incurred by the public utility as a
result of local regulation of its occupancy or use of a public
way
or an appropriate allocation and assignment of costs related to
implementation of this section, excluding any cost arising from a
public way fee levied upon
and payable by the public utility. (b) The cost is incurred by the public utility both after
January 1, 2002, and after the test year of the
public utility's
most recent rate proceeding or the initial
effective date of rates
in effect but not established through a
proceeding for an increase
in rates. (3) If the commission determines, upon an application under
division (D)(1) of this section or its own initiative, that
classification of a cost described in division (D)(2) of this
section as a regulatory asset is not practical or that deferred
recovery of that cost would impose a hardship on the public
utility or its customers, the commission shall establish a charge
and collection mechanism to permit the public utility full
recovery of that cost. A hardship shall be presumed for any
public utility with less than fifteen thousand bundled sales
service customers in this state and for any public utility for
which the annualized aggregate amount of additional cost that
otherwise may be eligible for such classification exceeds the
greater of five hundred thousand dollars or fifteen
per cent of
the total costs that are described in division
(D)(2)(a) of this
section and were considered by the commission
for the
purpose of
establishing rates in the public utility's most
recent
rate
increase proceeding or the rate increase proceeding of
the
public
utility's predecessor, whichever is later. (E) Any application submitted to the commission under
divisions (B) to (D) of this section shall be processed by the
commission as an application not for an increase in rates under
section 4909.18 of the Revised Code. The application shall include
such information as the commission reasonably requires. The
commission shall conclude its consideration of the application and
issue a final order not later than one hundred twenty days after
the date that the application was submitted to the commission. A
final order regarding the recovery mechanism specified in division
(C) of this section shall provide for such retroactive adjustment
as the commission determines appropriate. (F) A public utility shall not be required to waive any
rights under this section as a condition of occupancy or use of a
public way. (G) The commission may issue such rules as it considers
necessary to carry out this section.
Sec. 4939.09. (A) Nothing in sections 4939.01 to 4939.07 and
this section of
the Revised Code applies to a franchise or to any
agreement with a
public utility or cable operator, for the balance
of its term, if
the franchise or agreement meets all of the
following: (1) The franchise was granted, or the agreement was
authorized by ordinance or otherwise and was entered into, by a
municipal corporation prior to the effective date of this section. (2) The franchise or agreement authorizes the occupation or
use of public ways. (3) The public utility agrees with the
applicable public way fees,
or non-monetary compensation, if any,
or the cable operator pays
the applicable fee or utilizes the
credit, offset, or deduction
specified in division (B)(4) of
section 4939.05 of the Revised
Code. (B) Except as otherwise provided in division (A) of section
4939.06 of the Revised Code, nothing in sections 4939.01 to
4939.07 and this section of the Revised Code applies to an
ordinance both governing
public ways and enacted by a municipal
corporation prior to
September 29, 1999, unless, on or after that
date, the ordinance
is materially modified.
(C) Nothing in sections 4939.01 to 4939.07 and this section
of the Revised
Code authorizes a municipal corporation to levy a
fee, other than
a public way fee authorized by section 4939.05 of
the Revised
Code, on a pipeline company or an operator of a
pipeline facility
regulated under the "Accountable Pipeline Safety
and Partnership
Act of 1996," 110 Stat. 3793, 49 U.S.C. 60101, or
on an operating
partner or affiliated business unit operating
under guidelines of
the federal energy regulatory commission as
they relate to the
construction and operation of a pipeline.
Sec. 5571.16. The board of township trustees
may, by
resolution,
may require any
person, firm, or corporation to obtain
a permit before making any excavation in
a public highway
or
highway right-of-way within its jurisdiction. The board may, as a
condition to
the granting of such permit: (A) Require the applicant to submit plans
indicating the
location, size, type, and duration of the excavation
contemplated; (B) Specify methods of excavation, refilling, and
resurfacing
to be followed; (C) Require the use of such warning devices as it deems
necessary to protect travelers on the highway; (D) Require the applicant to indemnify the township against
liability or
damage as the result of such excavation; (E) Require the applicant to post a
deposit or bond, with
sureties to the satisfaction of the board, conditioned
upon the
performance of all conditions to such permit. Applications for permits
under this section shall be made to
the township clerk upon forms to be
furnished by the board. Such
applications shall be accompanied by a fee of
two
fifty
dollars, which shall be returned to the applicant if the
application is
denied. No person shall make an excavation in any township highway
or
highway right-of-way in violation
of any resolution adopted
pursuant to this section; except that, in the case
of an emergency
requiring immediate action to protect the public health,
safety,
and welfare, an excavation may be made without first obtaining a
permit, if such application is made at the earliest possible
opportunity.
As used in this section, "right-of-way" has the same meaning
as in division (UU)(2) of section 4511.01 of the Revised Code.
Section 2. That existing section 5571.16 and sections
4939.01, 4939.02, 4939.03, and 4939.04 of the Revised Code are
hereby repealed.
Section 3. Section 5571.16 of the Revised Code, as amended by
this act, shall take effect
ninety days after the effective date
of this section.
Section 4. This act
is
hereby declared to be an emergency
measure necessary for the
immediate preservation of the public
peace, health, and safety.
The reason for such necessity is to
provide, at the earliest
possible time, for resolution of
litigated issues concerning
public ways of a municipal
corporation. Therefore, this act shall go into immediate
effect.
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