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Chapter 90
TELECOMMUNICATIONS*
Article I. In General
Secs. 90-1-90-10. Reserved.
Article II. Metropolitan Extension Telecommunications Rights-of-Way
Oversight
Sec. 90-11. Purpose.
Sec. 90-12. Conflict.
Sec. 90-13. Terms defined.
Sec. 90-14. Permit required.
Sec. 90-15. Issuance of permit.
Sec. 90-16. Construction/engineering permit.
Sec. 90-17. Conduit or utility poles.
Sec. 90-18. Route maps.
Sec. 90-19. Repair of damage.
Sec. 90-20. Establishment and payment of maintenance fee.
Sec. 90-21. Modification of existing fees.
Sec. 90-22. Savings clause.
Sec. 90-23. Use of funds.
Sec. 90-24. Annual report.
Sec. 90-25. Cable television operators.
Sec. 90-26. Existing rights.
Sec. 90-27. Compliance.
Sec. 90-28. Reservation of police powers.
Sec. 90-29. Authorized city officials.
Sec. 90-30. Municipal civil infraction.
*State law references-Michigan telecommunications act, MCL 484.2101 et seq.; metropolitan extension telecommunications
rights-of-way oversight act, MCL 484.3101 et seq.; Michigan broadband development authority act, MCL 484.3201 et seq.; uniform
video services local franchise act, MCL 484.3301 et seq.
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TELECOMMUNICATIONS § 90-13
ARTICLE I. IN GENERAL Permit means a non-exclusive permit issued
pursuant to the Act and this article to a telecom-
Secs. 90-1-90-10. Reserved. munications provider to use the public rights-of-
way in the city for its telecommunications facili-
ties.
ARTICLE II. METROPOLITAN
EXTENSION TELECOMMUNICATIONS (b) All other terms used in this article shall
RIGHTS-OF-WAY OVERSIGHT have the same meaning as defined or as provided
in the act, including, without limitation, the fol-
lowing:
Sec. 90-11. Purpose.
Authority means the Metropolitan Extension
The purposes of this article are to regulate
Telecommunications Rights-of-Way Oversight Au-
access to, and ongoing use of, public rights-of-way
thority created pursuant to section 3 of the act
by telecommunications providers for their tele-
(MCL 484.3103).
communications facilities while protecting the
public health, safety, and welfare and exercising MPSC means the Michigan Public Service Com-
reasonable control of the public rights-of-way in mission in the Department of Consumer and
compliance with the metropolitan extension tele- Industry Services, and shall have the same mean-
communications rights-of-way oversight act, Pub- ing as the term "commission" in the Act,
lic Act No. 48 of 2002 (MCL 484.3101 et seq.)
("act"), and other applicable law, and to ensure Public right-of-way means the area on, below,
that the city qualifies for distributions under the or above a public roadway, highway, street, alley,
Act by modifying the fees charged to providers easement or waterway. The term "public right-of-
and complying with the act. way" does not include a federal, state, or private
(Ord. No. 2091, § 90-1, 10-22-2002) right-of-way.
Telecommunication facilities or facilities means
Sec. 90-12. Conflict. the equipment or personal property, such as cop-
per and fiber cables, lines, wires, switches, con-
Nothing in this article shall be construed in
duits, pipes, and sheaths, which are used to or can
such a manner as to conflict with the act or other
generate, receive, transmit, carry, amplify, or pro-
applicable law.
vide telecommunication services or signals. Tele-
(Ord. No. 2091, § 90-2, 10-22-2002)
communication facilities or facilities do not in-
clude antennas, supporting structures for antennas,
Sec. 90-13. Terms defined.
equipment shelters or houses, and any ancillary
(a) The terms used in this article shall have equipment and miscellaneous hardware used to
the following meanings: provide federally-licensed commercial mobile ser-
vice as defined in section 332(d) of part I of title
Act means the Metropolitan extension telecom- III of the communications act of 1934, Chapter
munications rights-of-way oversight act, Public 652, 48 Stat. 1064, 4 7 USC 332 and further
Act No. 48 of 2002 (MCL 484.3101 et seq.), as defined as commercial mobile radio service in 4 7
amended from time to time. CFR 20.3, and service provided by any wireless,
City means the City of Muskegon. two-way communication device.
City commission means the city commission of Telecommunications provider, provider and tele-
the City of Muskegon or its designee. This section communications services mean those terms as
does not authorize delegation of any decision or defined in section 102 of the Michigan telecom-
function that is required by law to be made by the munications act, Public Act No. 179 of 1991 (MCL
city commission. 484.2102). The term "telecommunication pro-
vider" does not include a person or an affiliate of
City manager means the city manager of the that person when providing a federally-licensed
City of Muskegon or his designee. commercial mobile radio service as defined in
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§ 90-13 MUSKEGON CITY CODE
section 332(d) of part I of the communications act (c) Confidential information. If a telecommuni-
of 1934, Chapter 652, 48 Stat. 1064, 4 7 USC 332 cations provider claims that any portion of the
and further defined as commercial mobile radio route maps submitted by it as part of its applica-
service in 47 CFR 20.3, or service provided by any tion contain trade secret, proprietary, or confiden-
wireless, two-way communication device. For the tial information, which is exempt from the free-
purpose of the act and this article only, a provider dom of information act, Public Act No. 442 of 1976
also includes all of the following: (MCL 15.231 et seq.), pursuant to section 6(5) of
the act (MCL 484.3106(5)), the telecommunica-
(1) A cable television operator that provides a
tions provider shall prominently so indicate on
telecommunications service.
the face of each map.
(2) Except as otherwise provided by the act, a
(d) Application fee. Except as otherwise pro-
person who owns telecommunication fa-
vided by the act, the application shall be accom-
cilities located within a public right-of-
panied by a one-time nonrefundable application
way.
fee in the amount of $500.00.
(3) A person providing broadband internet
(e) Additional information. The city manager
transport access service.
may request an applicant to submit such addi-
(Ord. No. 2091, § 90-3, 10-22-2002)
tional information which the city manager deems
reasonably necessary or relevant. The applicant
Sec. 90-14. Permit required. shall comply with all such requests in compliance
(a) Permit required. Except as otherwise pro- with reasonable deadlines for such additional
vided in the act, a telecommunications provider information established by the city manager. If
using or seeking to use public rights-of-way in the the city and the applicant cannot agree on the
city for its telecommunications facilities shall requirement of additional information requested
apply for and obtain a permit pursuant to this by the city, the city or the applicant shall notify
article. the MPSC as provided in section 6(2) of the act
(MCL 484.3106(2)).
(b) Application.
(f) Previously issued permits. Pursuant to sec-
(1) Telecommunications providers shall ap- tion 5(1) of the act (MCL 484.3105(1)), authoriza-
ply for a permit on an application form tions or permits previously issued by the city
approved by the MPSC in accordance with under section 251 of the Michigan telecommuni-
section 6(1) of the act (MCL 484.3106(1)). cations act, Public Act No. 179 of 1991 (MCL
484.2251), and authorizations or permits issued
(2) A telecommunications provider shall file: by the city to telecommunications providers prior
a. One copy of the application with the to the 1995 enactment of section 251 of the
city clerk; Michigan telecommunications act, but after 1985,
shall satisfy the permit requirements of this arti-
b. One copy with the city manager; and
cle.
c. One copy with the city attorney.
(g) Existing providers. Pursuant to section 5(3)
(3) Upon receipt, the city clerk shall make of the act (MCL 484.3105(3)), within 180 days
three copies of the application and distrib- from November 1, 2002, the effective date of the
ute a copy to the departments of public act, a telecommunications provider with facilities
works, engineering, and finance. Applica- located in a public right-of-way in the city as of
tions shall be complete and include all such date, that has not previously obtained au-
information required by the act, includ- thorization or a permit under section 251 of the
ing, without limitation, a route map show- Michigan telecommunications act, Public Act No.
ing the location of the provider's existing 179 of 1991 (MCL 484.2251), shall submit to the
and proposed facilities in accordance with city an application for a permit in accordance with
section 6(5) of the act (MCL 484.3106(5)). the requirements of this article. Pursuant to
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TELECOMMUNICATIONS § 90-19
section 5(3) of the act (MCL 484.3105(3)), a tele- public right-of-way is returned to its original
communications provider submitting an applica- condition during and after the telecommunica-
tion under this subsection is not required to pay tions provider's access and use.
the $500.00 application fee required under sub- (Ord. No. 2091, § 90-5, 10-22-2002)
section (d) of this section. A provider under this
subsection shall be given up to an additional 180 Sec. 90-16. Construction/engineering permit.
days to submit the permit application if allowed
by the authority, as provided in section 5(4) of the A telecommunications provider shall not com-
act (MCL 484.3105(4)). mence construction upon, over, across, or under
(Ord. No. 2091, § 90-4, 10-22-2002) the public rights-of-way in the city without first
obtaining a construction or engineering permit as
Sec. 90-15. Issuance of permit. required under this chapter, as amended, for
construction within the public rights-of-way. No
(a) Approval or denial. The authority to ap- fee shall be charged for such a construction or
prove or deny an application for a permit is engineering permit.
hereby delegated to the city manager. Pursuant to (Ord. No. 2091, § 90-6, 10-22-2002)
section 15(3) of the act (MCL 484.3115(3)), the
city manager shall approve or deny an application
for a permit within 45 days from the date a Sec. 90-17. Conduit or utility poles.
telecommunications provider files an application
Pursuant to section 4(3) of the act (MCL
for a permit under section 90-14(b) for access to a
484.3104(3)), obtaining a permit or paying the
public right-of-way within the city. Pursuant to
fees required under the act or under this article
section 6(6) of the act (MCL 484.3106(6)), the city
does not give a telecommunications provider a
manager shall notify the MPSC when the city
right to use conduit or utility poles.
manager has granted or denied a permit, includ-
(Ord. No. 2091, § 90-7, 10-22-2002)
ing information regarding the date on which the
application was filed and the date on which per-
mit was granted or denied. The city manager Sec. 90-18. Route maps.
shall not unreasonably deny an application for a
permit. Pursuant to section 6(7) of the act (MCL
484.3106(7)), a telecommunications provider shall,
(b) Form ofpermit. If an application for permit within 90 days after the substantial completion of
is approved, the city manager shall issue the construction of new telecommunications facilities
permit in the form approved by the MPSC, with in the city, submit route maps showing the loca-
or without additional or different permit terms, in tion of the telecommunications facilities to both
accordance with sections 6(1), 6(2) and 15 of the the MPSC and to the city. The route maps should
act (MCL 484.3106(1), (2), 484.3115). be in paper and electronic format unless and until
the MPSC determines otherwise, in accordance
(c) Conditions. Pursuant to section 15(4) of the
with section 6(8) of the act (MCL 484.3106(8)).
act (MCL 484.3115(4)), the city manager may
(Ord. No. 2091, § 90-8, 10-22-2002)
impose conditions on the issuance of a permit,
which conditions shall be limited to the telecom-
munications provider's access and usage of the Sec. 90-19. Repair of damage.
public right-of-way.
Pursuant to section 15(5) of the act (MCL
(d) Bond requirement. Pursuant to section 15(3) 484.3115(5)), a telecommunications provider un-
of the act (MCL 484.3115(3)), and without limita- dertaking an excavation or construction or install-
tion on subsection (c) of this section, the city ing telecommunications facilities within a public
manager may require that a bond be posted by right-of-way or temporarily obstructing a public
the telecommunications provider as a condition of right-of-way in the city, as authorized by a permit,
the permit. If a bond is required, it shall not shall promptly repair all damage done to the
exceed the reasonable cost to ensure that the street surface and all installations under, over,
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§ 90-19 MUSKEGON CITY CODE
below, or within the public right-of-way and shall invalid or unconstitutional, the modification of
promptly restore the public right-of-way to its fees under section 90-21 shall be void from the
preexisting condition. date the modification was made.
(Ord. No. 2091, § 90-9, 10-22-2002) (Ord. No. 2091, § 90-12, 10-22-2002)
Sec. 90-20. Establishment and payment of Sec. 90-23. Use of funds.
maintenance fee.
Pursuant section 9(4) of the act (MCL
In addition to the nonrefundable application 484.3109(4)), all amounts received by the city
fee paid to the city set forth in section 90-14(d), a from the authority shall be used by the city solely
telecommunications provider with telecommuni- for rights-of-way related purposes.
cations facilities in the city's public rights-of-way (Ord. No. 2091, § 90-13, 10-22-2002)
shall pay an annual maintenance fee to the au-
thority pursuant to section 8 of the act (MCL Sec. 90-24. Annual report.
484.3108).
(Ord. No. 2091, § 90-10, 10-22-2002) Pursuant to section 10(5) of the act (MCL
484.3110(5)), the city manager shall file an an-
Sec. 90-21. Modification of existing fees. nual report with the authority on the use and
disposition of funds annually distributed by the
In compliance with the requirements of section authority.
13(1) of the act (MCL 484.3113(1)), the city hereby (Ord. No. 2091, § 90-14, 10-22-2002)
modifies, to the extent necessary, any fees charged
to telecommunications providers after November
Sec. 90-25. Cable television operators.
1, 2002, the effective date of the act, relating to
access and usage of the public rights-of-way, to an Pursuant to section 13(6) of the act (MCL
amount not exceeding the amounts of fees and 484.3113(6)), the city shall not hold a cable tele-
charges required under the act, which shall be vision operator in default or seek any remedy for
paid to the authority. In compliance with the its failure to satisfy an obligation, if any, to pay
requirements of section 13(4) of the act (MCL after November 1, 2002, the effective date of this
484.3113(4)), the city also hereby approves modi- act, a franchise fee or similar fee on that portion
fication of the fees of providers with telecommu- of gross revenues from charges the cable operator
nication facilities in public rights-of-way within received for cable modem services provided through
the city's boundaries, so that those providers pay broadband internet transport access services.
only those fees required under section 8 of the act. (Ord. No. 2091, § 90-15, 10-22-2002)
The city shall provide each telecommunications
provider affected by the fee with a copy of this Sec. 90-26. Existing rights.
article, in compliance with the requirement of
section 13(4) of the act (MCL 484.3113(4)). To the Pursuant to section 4(2) of the act (MCL
extent any fees are charged telecommunications 484.3104(2)), except as expressly provided herein
providers in excess of the amounts permitted with respect to fees, this article shall not affect
under the act, or which are otherwise inconsistent any existing rights that a telecommunications
with the act, such imposition is hereby declared to provider or the city may have under a permit
be contrary to the city's policy and intent, and, issued by the city or under a contract between the
upon application by a provider or discovery by the city and a telecommunications provider related to
city, shall be promptly refunded as having been the use of the public rights-of-way.
charged in error. (Ord. No. 2091, § 90-16, 10-22-2002)
(Ord. No. 2091, § 90-11, 10-22-2002)
Sec. 90-27. Compliance.
Sec. 90-22. Savings clause.
The city hereby declares that its policy and
Pursuant to section 13(5) of the act (MCL intent in adopting this article is to fully comply
484.3113(5)), if section 8 of the act is found to be with the requirements of the act, and the provi-
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TELECOMMUNICATIONS § 90-30
sions hereof should be construed in such a man- (10) Not charging any telecommunications pro-
ner as to achieve that purpose. The city shall viders any additional fees for construction
comply in all respects with the requirements of or engineering permits, in accordance with
the act, including, but not limited to, the follow- section 90-16;
ing: (11) Providing each telecommunications pro-
(1) Exempting certain route maps from the vider affected by the city's right-of-way
freedom of information act, Public Act No. fees with a copy of this article, in accor-
442 of 1976 (MCL 15.231 et seq.), as dance with section 90-21;
provided in section 90-14(c); (12) Submitting an annual report to the au-
(2) Allowing certain previously issued per- thority, in accordance with section 90-24;
mits to satisfy the permit requirements and
hereof, in accordance with section 90- (13) Not holding a cable television operator in
14(f); default for a failure to pay certain fran-
(3) Allowing existing providers additional time chise fees, in accordance with section 90-
in which to submit an application for a 25.
permit, and excusing such providers from (Ord. No. 2091, § 90-17, 10-22-2002)
the $500.00 application fee, in accordance
with section 90-14(g); Sec. 90-28. Reservation of police powers.
(4) Approving or denying an application for a Pursuant to section 15(2) of the act (MCL
permit within 45 days from the date a 484.3115(2)), this article shall not limit the city's
telecommunications provider files an ap- right to review and approve a telecommunication
plication for a permit for access to and provider's access to and ongoing use of a public
usage of a public right-of-way within the right-of-way or limit the city's authority to ensure
city, in accordance with section 90-15(a); and protect the health, safety, and welfare of the
public.
(5) Notifying the MPSC when the city has (Ord. No. 2091, § 90-18, 10-22-2002)
granted or denied a permit, in accordance
with section 90-15(a); Sec. 90-29. Authorized city officials.
(6) Not unreasonably denying an application The city manager or his designee is hereby
for a permit, in accordance with section designated as the authorized city official to issue
90-15(a); municipal civil infraction citations for violations
(7) Issuing a permit in the form approved by under this article as provided by this Code.
the MPSC, with or without additional or (Ord. No. 2091, § 90-20, 10-22-2002)
different permit terms, as provided in
section 90-15(b); Sec. 90-30. Municipal civil infraction.
(8) Limiting the conditions imposed on the A person who violates any provision of this
issuance of a permit to the telecommuni- article or the terms or conditions of a permit is
cations provider's access and usage of the responsible for a municipal civil infraction, and
public right-of-way, in accordance with shall be subject to appropriate municipal civil
section 90-15(c); infraction fines. Nothing in this section shall be
construed to limit the remedies available to the
(9) Not requiring a bond of a telecommunica- city in the event of a violation by a person of this
tions provider which exceeds the reason- article or a permit.
able cost to ensure that the public right- (Ord. No. 2091, § 90-21, 10-22-2002)
of-way is returned to its original condition
during and after the telecommunication
provider's access and use, in accordance
with section 90-15(d);
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