Chapter 4939 | Use Of Municipal Public Way

Section 4939.01 | Municipal public way definitions.

• Effective: August 1, 2018
• Latest Legislation: House Bill 478 - 132nd General Assembly

As used in sections 4939.01 to 4939.09 of the Revised Code:

(A) "Abandoned" means any small cell facilities or wireless support structures that are unused for a period of three hundred sixty-five days without the operator otherwise notifying the municipal corporation and receiving the municipal corporation's approval.

(B) "Antenna" means communications equipment that transmits or receives radio frequency signals in the provision of wireless service.

(C) "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.A. 522.

(D) "Collocation" or "collocate" means to install, mount, maintain, modify, operate, or replace wireless facilities on a wireless support structure.

(E) "Decorative pole" means a pole, arch, or structure other than a street light pole placed in the public way specifically designed and placed for aesthetic purposes and on which no appurtenances or attachments have been placed except for any of the following:

(1) Electric lighting;

(2) Specially designed informational or directional signage;

(3) Temporary holiday or special event attachments.

(F) "Eligible facilities request" has the same meaning as in 47 U.S.C. 1455(a)(2).

(G) "Historic district" means a building, property, or site, or group of buildings, properties, or sites that are either of the following:

(1) Listed in the national register of historic places or formally determined eligible for listing by the keeper of the national register, the individual who has been delegated the authority by the federal agency to list properties and determine their eligibility for the national register, in accordance with section VI.D.1.a.i-v of the nationwide programmatic agreement codified at 47 C.F.R. part 1, Appendix C;

(2) A registered historic district as defined in section 149.311 of the Revised Code.

(H) "Micro wireless facility" means a small cell facility that is not more than twenty-four inches in length, fifteen inches in width, and twelve inches in height and that does not have an exterior antenna more than eleven inches in length suspended on cable strung between wireless support structures.

(I) "Municipal electric utility" has the same meaning as in section 4928.01 of the Revised Code.

(J) "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 services or any services provided by a cable operator.

(K) "Operator" means a wireless service provider, cable operator, or a video service provider that operates a small cell facility and provides wireless service as defined in division (T) of this section. For the purpose of this chapter, "operator" includes a wireless service provider, cable operator, or a video service provider that provides information services as defined in the "Telecommunications Act of 1996," 110 Stat. 59, 47 U.S.C. 153(20), and services that are fixed in nature or use unlicensed spectrum.

(L) "Person" means any natural person, corporation, or partnership and also includes any governmental entity.

(M) "Public utility" means a wireless service provider as defined in division (A)(20) of section 4927.01 of the Revised Code or any company described in section 4905.03 of the Revised Code except in divisions (B) and (I) 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.

(N) "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, public easement, and any other land dedicated or otherwise designated for a compatible public use, which, on or after July 2, 2002, is owned or controlled by a municipal corporation. "Public way" excludes a private easement.

(O) "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.

(P) "Small cell facility" means a wireless facility that meets both of the following requirements:

(1) Each antenna is located inside an enclosure of not more than six cubic feet in volume or, in the case of an antenna that has exposed elements, the antenna and all of its exposed elements could fit within an enclosure of not more than six cubic feet in volume.

(2) All other wireless equipment associated with the facility is cumulatively not more than twenty-eight cubic feet in volume. The calculation of equipment volume shall not include electric meters, concealment elements, telecommunications demarcation boxes, grounding equipment, power transfer switches, cut-off switches, and vertical cable runs for the connection of power and other services.

(Q) "Utility pole" means a structure that is designed for, or used for the purpose of, carrying lines, cables, or wires for electric or telecommunications service. "Utility pole" excludes street signs and decorative poles.

(R) "Video service provider" has the same meaning as in section 1332.21 of the Revised Code.

(S)(1) "Wireless facility" means equipment at a fixed location that enables wireless communications between user equipment and a communications network, including all of the following:

(a) Equipment associated with wireless communications;

(b) Radio transceivers, antennas, coaxial or fiber-optic cable, regular and backup power supplies, and comparable equipment, regardless of technological configuration.

(2) The term includes small cell facilities.

(3) The term does not include any of the following:

(a) The structure or improvements on, under, or within which the equipment is collocated;

(b) Coaxial or fiber-optic cable that is between wireless support structures or utility poles or that is otherwise not immediately adjacent to or directly associated with a particular antenna.

(T) "Wireless service" means any services using licensed or unlicensed wireless spectrum, whether at a fixed location or mobile, provided to the public using wireless facilities.

(U) "Wireless service provider" means a person who provides wireless service as defined in division (A)(19) of section 4927.01 of the Revised Code.

(V) "Wireless support structure" means a pole, such as a monopole, either guyed or self-supporting, street light pole, traffic signal pole, a fifteen-foot or taller sign pole, or utility pole capable of supporting small cell facilities. As used in this chapter, "wireless support structure" excludes all of the following:

(1) A utility pole or other facility owned or operated by a municipal electric utility;

(2) A utility pole or other facility used to supply traction power to public transit systems, including railways, trams, streetcars, and trolleybuses.

(W) "Wireline backhaul facility" is a facility used for the transport of communications service or any other electronic communications by coaxial, fiber-optic cable, or any other wire.

(X) "Work permit" means a permit issued by a municipal corporation that must be obtained in order to perform any work in, on, above, within, over, below, under, or through any part of the public way, including, but not limited to, the act or process of digging, boring, tunneling, trenching, excavating, obstructing, or installing, as well as the act of opening and cutting into the surface of any paved or improved surface that is part of the public way.

Section 4939.02 | State policy.

• Effective: August 1, 2018
• Latest Legislation: House Bill 478 - 132nd General Assembly

(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) Promote the rapid deployment of small cell facility infrastructure and related capital investment in this state by ensuring that municipal corporations grant or deny consent to install, operate, modify, or replace wireless facilities in a timely manner;

(4) 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;

(5) 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;

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

(7) 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;

(8) 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;

(9) Protect the integrity of the residential and historic locations and ensure that access to and occupancy or use of public ways in such districts is technologically and aesthetically appropriate.

(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.

Section 4939.03 | Prohibited conduct concerning public ways.

• Effective: August 1, 2018
• Latest Legislation: House Bill 478 - 132nd General Assembly

(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, under this section or section 1332.24 or 4939.031 of the Revised Code, any requisite consent of the municipal corporation owning or controlling the public way.

(2) Except as otherwise provided in division (C) (6) of this section and sections 4939.031 and 4939.036 of the Revised Code, 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. If a request for consent is denied for an activity described in section 4939.031 of the Revised Code, the reasons required under this division shall be supported by substantial, competent evidence and the denial of consent shall not unreasonably discriminate against the entity requesting the 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 July 2, 2002, 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.

Section 4939.031 | Small cell facilities and wireless support structures; Requests for consent from micro wireless facilities.

• Effective: August 1, 2018
• Latest Legislation: House Bill 478 - 132nd General Assembly

(A) Subject to section 4939.0314 of the Revised Code and approval of an application under this section, an operator may, as a permitted use not subject to zoning review or approval, collocate a small cell facility and construct, maintain, modify, operate, or replace wireless support structures in, along, across, upon, and under the public way. An operator shall comply with generally applicable standards that are consistent with this chapter and adopted by a municipal corporation for construction and public safety in a public way. All structures and facilities shall be constructed and maintained so as not to impede or impair public safety or the legal use of the public way by the municipal corporation, the traveling public, or other public utilities.

(B) A municipal corporation, not later than ninety days after the date of filing by an entity of a completed request for consent under divisions (B)(1) and (2) of this section or one hundred twenty days under division (B)(3) of this section to be done in a public way, shall, subject to this chapter, grant or deny its consent to:

(1) Collocate small cell facilities on a wireless support structure;

(2) Replace or modify a small cell facility on a wireless support structure, if consent is required under this section;

(3) Construct, modify, or replace a wireless support structure associated with a small cell facility.

(C) If a municipal corporation fails to approve or deny a request for consent under this section or a request for a relevant work permit within the required time period, provided the time period is not tolled under section 4939.036 of the Revised Code, the request shall be deemed granted upon the requesting entity providing notice to the municipal corporation that the time period for acting on the request has lapsed.

(D) Except as provided in division (B) of section 4939.0311 of the Revised Code, this chapter, and any franchise, pole attachment, or other agreements between a municipal corporation and a cable operator or public utility, a municipal corporation shall not require any zoning or other approval, consent, permit, certificate, or condition for the construction, replacement, location, attachment, or operation of a small cell facility in the public way, or otherwise prohibit or restrain the activities as described in this section.

(E) For purposes of submitting a request for municipal corporation consent under this section, "operator" also includes any person that, at the time of filing the request, provides the municipal corporation the person's written authorization to perform the specific work for which consent has been requested on behalf of an operator.

Section 4939.032 | Applications for requests for consent.

• Effective: August 1, 2018
• Latest Legislation: House Bill 478 - 132nd General Assembly

Applications for requests for consent pursuant to section 4939.03 or 4939.031 of the Revised Code shall include the name of the person who owns or will own the small cell facility or wireless support structure for which consent is requested. A permit or other record of consent issued by a municipal corporation that authorizes the use of the public way pursuant to section 4939.03 or 4939.031 of the Revised Code shall include the name of the person who owns or will own the facility or structure.

Section 4939.033 | Request for consent to collocate.

• Effective: August 1, 2018
• Latest Legislation: House Bill 478 - 132nd General Assembly

A person who is not an operator under section 4939.031 of the Revised Code shall request, pursuant to and in accordance with the requirements of section 4939.03 of the Revised Code, municipal corporation consent to collocate a small cell facility and construct, maintain, modify, operate, or replace wireless support structures in, along, across, upon, and under a public way.

Section 4939.036 | Tolling of time period for consent.

• Effective: August 1, 2018
• Latest Legislation: House Bill 478 - 132nd General Assembly

(A) The time period required in section 4939.031 of the Revised Code may be tolled only:

(1) By mutual agreement between the entity requesting consent and the municipal corporation;

(2) In cases where the municipal corporation determines that the application is incomplete; or

(3) If the number of requests for consent for small cell facilities or wireless support structures received is likely to result in difficulty processing applications within the time limits set forth in section 4939.031 of the Revised Code due to the lack of resources of the municipal corporation, then the municipal corporation may toll the time limits as follows:

(a) The time period may be tolled for up to twenty-one days for the first fifteen small cell facility or wireless support structure requests received by a municipal corporation above the thresholds provided in divisions (A)(3)(a)(i) to (v) of this section and for the first thirty small cell facility or wireless support structure requests received by a municipal corporation above the thresholds provided in division (A)(3)(a) (vi) of this section, within any consecutive thirty-day period:

(i) For a municipal corporation having a population of thirty thousand persons or less when it receives applications for at least fifteen small cell facility or wireless support structure requests;

(ii) For a municipal corporation having a population of thirty thousand one to forty thousand persons when it receives applications for at least twenty small cell facility or wireless support structure requests;

(iii) For a municipal corporation having a population of forty thousand one to fifty thousand persons when it receives applications for at least twenty-five small cell facility or wireless support structure requests;

(iv) For a municipal corporation having a population of fifty thousand one to sixty thousand persons when it receives applications for at least thirty small cell facility or wireless support structure requests;

(v) For a municipal corporation having a population of sixty thousand one to one hundred thousand persons when it receives applications for at least sixty small cell facility or wireless support structure requests;

(vi) For a municipal corporation having a population of one hundred thousand one persons or more when it receives applications for at least ninety small cell facility or wireless support structure requests.

(b) Further, for every additional fifteen requests that the municipal corporation receives above the thresholds provided in divisions (A)(3)(a)(i) to (v) of this section, and every additional thirty requests that the municipal corporation receives above the threshold provided in division (A)(3)(a)(vi) of this section within any consecutive thirty-day period, the municipal corporation may toll the time period for those requests for up to fifteen days in addition to the time period provided in division (A)(3)(a) of this section.

(c) In no instance shall a municipal corporation toll the time period for any small cell facility or wireless support structure request by more than ninety consecutive days. Upon request, a municipal corporation shall provide an operator written notice of the time limit for a small cell facility or wireless support structure request.

(B) To toll the time period for incompleteness, the municipal corporation shall provide written notice to the person requesting consent not later than thirty days after receiving the request, clearly and specifically delineating all missing documents or information. The missing documents or information shall be reasonably related to determining whether the request meets the requirements of applicable federal and state law. Any notice of incompleteness requiring other information or documentation, including information of the type described in section 4939.0313 of the Revised Code or documentation intended to illustrate the need for the request or to justify the business decision for the request, does not toll the time period.

(C) The time period resumes when the entity makes a supplemental submission in response to the municipal corporation's notice of incompleteness.

(D) If a supplemental submission is inadequate, the municipal corporation shall notify the entity not later than ten days after receiving the supplemental submission that the supplemental submission did not provide the information identified in the original notice delineating missing documents or information. The time period may be tolled in the case of second or subsequent notices under the procedures identified in divisions (A) to (C) of this section. Second or subsequent notices of incompleteness may not specify missing documents or information that was not delineated in the original notice of incompleteness.

Section 4939.037 | Applicability of regulations.

• Effective: August 1, 2018
• Latest Legislation: House Bill 478 - 132nd General Assembly

Nothing in this chapter precludes a municipal corporation from applying its generally applicable health, safety, and welfare regulations when granting consent for a small cell facility or wireless support structure.

Section 4939.038 | Eligible facilities request.

• Effective: August 1, 2018
• Latest Legislation: House Bill 478 - 132nd General Assembly

Notwithstanding sections 4939.031 to 4939.037 of the Revised Code, a municipal corporation shall approve within sixty days, and may not deny, an eligible facilities request under 47 C.F.R. 1.40001.

Section 4939.039 | Indemnification for municipalities and officials.

• Effective: August 1, 2018
• Latest Legislation: House Bill 478 - 132nd General Assembly

Any operator who owns or operates small cell facilities or wireless support structures in the public way shall indemnify, protect, defend, and hold the municipal corporation and its elected officials, officers, employees, agents, and volunteers harmless against any and all claims, lawsuits, judgments, costs, liens, losses, expenses, fees to include reasonable attorney fees and costs of defense, proceedings, actions, demands, causes of action, liability and suits of any kind and nature, including personal or bodily injury or death, property damage or other harm for which recovery of damages is sought, to the extent that it is caused by the negligence of the operator who owns or operates small cell facilities and wireless service in the public way, any agent, officer, director, representative, employee, affiliate, or subcontractor of the operator, or their respective officers, agents, employees, directors, or representatives while installing, repairing, or maintaining facilities in a public way.

Section 4939.0311 | Consent not required.

• Effective: August 1, 2018
• Latest Legislation: House Bill 478 - 132nd General Assembly

(A) Consent of a municipal corporation shall not be required for either of the following activities conducted in the public way:

(1) Routine maintenance of wireless facilities;

(2) The replacement of wireless facilities with wireless facilities that are consistent with the municipal corporation's current design guidelines and that are either of the following:

(a) Substantially similar to the existing wireless facilities;

(b) The same size or smaller than the existing wireless facilities.

(B) A municipal corporation may require a work permit for any activity described in division (A) of this section and for any activity for which consent is authorized under section 4939.031 of the Revised Code. Any such permit shall be subject to any applicable law in this chapter.

(C) Notwithstanding the amendments and enactments made to sections 4939.01 to 4939.09 of the Revised Code by H.B. 478 of the 132nd General Assembly, a cable or video service provider shall not be required to obtain permits from a municipal corporation or to pay fees, with the exception of work permits and associated fees, to place, operate, maintain, or replace micro wireless facilities pursuant to an existing franchise or video service authorization under Chapter 1332. of the Revised Code; nor shall a holder of an existing franchise or video service authorization be required to obtain additional authorizations or to pay additional fees for the placement of micro wireless facilities already covered under an existing franchise or video service authorization under Chapter 1332. of the Revised Code.

(D) The permitting procedures and authorizations set forth in the amendments and enactments made to sections 4939.01 to 4939.09 of the Revised Code by H.B. 478 of the 132nd General Assembly shall apply only to the placement of small cell facilities and wireless support structures in the public way, and do not authorize the construction and operation of a wireline backhaul facility.

Section 4939.0312 | Consolidated requests.

• Effective: August 1, 2018
• Latest Legislation: House Bill 478 - 132nd General Assembly

(A) A municipal corporation shall permit a person seeking to construct, modify, collocate, or replace more than one small cell facility or more than one wireless support structure within the jurisdiction of a single municipal corporation to file, at the person's discretion, a consolidated application for consent under section 4939.031 of the Revised Code for up to thirty small cell facilities requests in a single application or up to thirty wireless support structure requests in a single application and receive a single permit for the construction, modification, collocation, or replacement of the small cell facilities or wireless support structures. However, this single application may only address multiple small cell facilities or multiple wireless support structures if they each involve substantially the same type of small cell facilities or substantially the same type of wireless support structures. A municipal corporation may separately address small cell facility collocations or wireless support structures for which incomplete information has been received or which are denied.

(B) In the case of a consolidated application, the fees provided for in section 4939.0316 of the Revised Code may be cumulative. However, a municipal corporation, at its discretion, may opt to reduce such fees in order to encourage persons to submit consolidated applications.

(C) In the case of a consolidated application, each small cell facility or wireless support structure proposed to be constructed, modified, collocated on, or replaced shall constitute a separate request for consent for purposes of tolling the response deadline as authorized under section 4939.036 of the Revised Code. A request by a single operator for a new or replacement support structure and associated small cell facility constitutes one request.

Section 4939.0313 | Restrictions on municipal authority.

• Effective: August 1, 2018
• Latest Legislation: House Bill 478 - 132nd General Assembly

With respect to the provision of any small cell facility or the associated wireless support structure in a public way, a municipal corporation shall not do any of the following:

(A) Require a person to submit information about, or evaluate a person's business decisions with respect to, the person's service, customer demand, or quality of service to or from a particular area or site as a condition for approval of the request;

(B) Require a person to submit information about the need for the small cell facility or the associated wireless support structure, including additional wireless coverage, capacity, or increased speeds, as a condition for approval of the request;

(C) Require a person to justify the need for the new small cell facility or associated wireless support structure, or to submit business information, including strategy documents, propagation maps, or telecommunications traffic studies as a condition for approval of the request;

(D) Require the removal of existing wireless support structures or small cell facilities, wherever located, as a condition for approval of the request, unless the existing wireless support structures or small cell facilities have been unused or abandoned. This division shall not preclude a municipal corporation from adopting reasonable rules intended to ensure the public health, safety, and welfare with respect to the removal of an abandoned wireless support structure or abandoned wireless facility.

(E) Impose restrictions with respect to objects in navigable airspace that are stricter than or in conflict with any restrictions imposed by the federal aviation administration;

(F) Unreasonably discriminate among providers of functionally equivalent services;

(G) Condition the grant of consent on the requirement that a person purchase or lease facilities, networks, or services owned or operated by the municipal corporation, in whole or in part, or owned or operated, in whole or in part, by any entity in which the municipal corporation has an economic governance interest;

(H) Condition the grant of consent on the requestor's agreement to permit other wireless facilities to be placed at, attached to, or located on the associated wireless support structure;

(I) Impose setback or fall-zone requirements for the associated wireless support structure that are different from requirements imposed on other similar types of structures in the public way;

(J) Impose environmental testing, sampling, or monitoring requirements that exceed rules and regulations established under state or federal law or that are not imposed on other types of construction or elements of the construction;

(K) Impose any regulations pertaining to radio frequency emissions or exposure to such emissions that are contrary to or exceed rules of the federal communications commission;

(L) Except as set forth in section 4939.0314 of the Revised Code, impose separation requirements regarding spacing between an operator's facilities and other wireless facilities, wireless support structures, utility poles, ground-mounted equipment, or other utility facilities within the public way.

Section 4939.0314 | Powers of municipality regarding placement of small cell facilities or wireless support structures.

• Effective: August 1, 2018
• Latest Legislation: House Bill 478 - 132nd General Assembly

With respect to the placement of any small cell facility or wireless support structure in a public way, a municipal corporation may do any of the following:

(A) Reserve space for future public safety or transportation uses in the public way or on a wireless support structure or pole owned by a municipal corporation in a documented and approved plan in place at the time an application is filed. A reservation of space shall not preclude placement of a pole or collocation of a small cell facility. If replacement of the municipal corporation's pole or wireless support structure is necessary to accommodate the collocation of the small cell facility and the future use, the operator shall pay for the replacement of the pole or wireless support structure, and the replaced pole or wireless support structure must accommodate the future use.

(B) Require reasonable and nondiscriminatory spacing requirements for the location of new wireless support structures set forth in an ordinance, local rule, or design guidelines. Such spacing requirements shall not prohibit, or have the effect of prohibiting, the provision of wireless service to any location.

(C) Adopt reasonable written design guidelines with objective, technologically feasible criteria that reasonably match the aesthetics and character of the immediate area regarding all of the following:

(1) The location of any ground-mounted small cell facilities;

(2) The location of a small cell facility on a wireless support structure;

(3) The appearance and concealment of small cell facilities, including those relating to materials used for arranging, screening, or landscaping;

(4) The design and appearance of a wireless support structure including any height requirements adopted by a municipality in accordance with division (F) of this section.

Any such guidelines shall be applied in a nondiscriminatory manner. Materials utilized to comply with the appearance and concealment criteria established in the guidelines shall not be considered part of the small cell facility for purposes of facility size restrictions in this chapter.

(D) Propose an alternate location to the proposed location of a new wireless support structure that is within one hundred feet of the proposed location or within a distance that is equivalent to the width of the public way in or on which the new wireless support structure is proposed, whichever is greater, which the operator shall use if it has the right to use the alternate location on reasonable terms and conditions and the alternate location does not impose technical limits or additional costs.

(E) Require that a collocation or a new wireless support structure for which a permit is granted shall be completed within one hundred eighty days after issuance of the permit, unless the municipal corporation and the operator agree to extend this period or a delay is caused by make-ready work for a municipally owned wireless support structure or decorative pole or by the lack of commercial power or backhaul availability at the site, provided that the operator has made a timely request within sixty days after the issuance of the permit for commercial power or backhaul services, and the additional time to complete installation does not exceed three hundred sixty days after issuance of the permit. Otherwise, the permit shall be void unless the municipal corporation grants an extension in writing to the operator.

(F) Set restrictions for the height of a wireless support structure and the placement of a wireless facility as follows:

(1) For a new wireless support structure, the overall height of the wireless support structure and any collocated antennas shall not be more than forty feet in height above ground level.

(2) Notwithstanding division (F) of this section, and except that the cap shall not be below thirty-five feet in height above ground level, a municipal corporation may adopt design guidelines under division (C) of this section to cap the permissible height of small cell facilities in areas meeting the following criteria :

(a) The area is within three hundred feet of the proposed site for a new wireless support structure in the same public way or a connecting public way, and there are no wireless support structures or utility poles taller than thirty feet in height above ground level;

(b) The maximum allowable height for building construction in the underlying zoning district is thirty-five feet in height above ground level or less.

(3) For an existing wireless support structure, the antenna and any associated shroud or concealment material are permitted to be collocated at the top of the existing wireless support structure and shall not increase the height of the existing wireless support structure by more than five feet.

(G) Require an operator to comply with reasonable and nondiscriminatory requirements that prohibit public utilities or cable operators from installing structures and facilities in the public way because an area is either designated solely for undergrounding or structures and facilities are required to be placed elsewhere in the public way, if the following apply:

(1) The municipal corporation has required all structures and facilities, including structures and facilities owned by a municipal electric company, but not including structures and facilities owned by a municipal corporation or a transit authority, to be placed underground or elsewhere in the public way or a utility easement by a date certain that is three months prior to the submission of the application;

(2) Subject to the provisions of this chapter, the municipal corporation does not prohibit the replacement of wireless support structures or the collocation of small cell facilities on wireless support structures in the designated area;

(3) The municipal corporation permits operators to seek a waiver of the undergrounding or alternative location requirements for the placement of a new wireless support structure to support small cell facilities if the operator is unable to achieve its service objective using a small cell facility under the following circumstances:

(a) From a location in the public way where the prohibition does not apply;

(b) In a utility easement the operator has the right to access ; or

(c) In or on other suitable locations or structures made available by the municipal corporation at reasonable rates, fees, and terms. A municipal corporation shall process waivers in a reasonable and nondiscriminatory manner that does not have the effect of prohibiting the provision of wireless service.

(H) Subject to section 4939.0313 of the Revised Code, and except for facilities excluded from evaluation for effects on historic properties under 47 C.F.R. 1.1307(a)(4) of the federal communications commission's rules, a municipal corporation may require reasonable, technically feasible, and nondiscriminatory design or concealment measures in an historic district. Any such design or concealment measures may not have the effect of prohibiting any operator's technology, nor may any such measures be considered a part of the small cell facility for purposes of the size restrictions in the definition of small cell facility.

(I) If multiple requests are received by the municipal corporation to install two or more poles that would violate applicable spacing requirements under division (B) of this section, or to collocate two or more small cell facilities on the same wireless support structure, notwithstanding division (I) of section 4939.0313 of the Revised Code, the municipal corporation may resolve conflicting requests through whatever reasonable and nondiscriminatory manner the municipal corporation deems appropriate.

(J) Impose reasonable requirements for bonds, escrow deposits, letters of credit, or any other type of financial surety to ensure removal of abandoned or unused wireless facilities or damage to municipal property caused by an operator or its agent.

Section 4939.0315 | Moratorium prohibited.

• Effective: August 1, 2018
• Latest Legislation: House Bill 478 - 132nd General Assembly

No municipal corporation may institute a moratorium on the filing, acceptance of filings, consideration, or approval of requests for consent described in section 4939.031 of the Revised Code.

Section 4939.0316 | Fees.

• Effective: August 1, 2018
• Latest Legislation: House Bill 478 - 132nd General Assembly

Any fee charged by a municipal corporation under section 4939.031 of the Revised Code for granting or processing an application for consent shall not exceed a one-time fee of two hundred fifty dollars per small cell facility. Beginning on the effective date of this section, a municipal corporation may adjust this fee ten per cent every five years, rounded to the nearest five dollars. During each five-year period, the adjustment may be applied incrementally or as a single adjustment.

Section 4939.0317 | Duration of approval term.

• Effective: August 1, 2018
• Latest Legislation: House Bill 478 - 132nd General Assembly

A municipal corporation's approval term of an attachment to a wireless support structure shall be for a period of not less than ten years, with presumption of renewal for successive five-year terms, subject to terms providing for early termination or nonrenewal for cause or by mutual agreement and unless otherwise agreed to by both the operator and the municipal corporation, except for generally applied permitting to safeguard the public health, safety, and welfare. An operator may remove its small cell facilities at any time subject to applicable work permit requirements and may stop paying annual charges or fees under division (B) of section 4939.0322 of the Revised Code.

Section 4939.0322 | Collocation of wireless support structure; reimbursement charges.

• Effective: August 1, 2018
• Latest Legislation: House Bill 478 - 132nd General Assembly

(A) A municipal corporation shall permit, consistent with this chapter and for the purpose of providing wireless service, a collocation of a small cell facility by an operator to a wireless support structure owned by the municipal corporation and located in the public way, provided that the operator comply with any applicable design guidelines under division (C) of section 4939.0314 of the Revised Code and reasonable terms and conditions for such collocations adopted by the municipal corporation that are consistent with the design guidelines and this chapter. The municipal corporation may condition approval of the collocation on replacement or modification of the wireless support structure at the operator's cost if the municipal corporation determines that replacement or modification is necessary for compliance with its written construction or safety standards. A replacement or modification of the wireless support structure shall conform to the applicable design guidelines and the municipal corporation's applicable specifications for the type of structure being replaced. The municipal corporation may retain ownership of a replacement wireless support structure.

(B) The total annual charges to reimburse the municipal corporation for the attachment shall not exceed two hundred dollars per small cell facility collocated on a wireless support structure owned by the municipal corporation and located in the public way. Beginning on the effective date of this section, a municipal corporation may adjust this charge ten per cent every five years, rounded to the nearest five dollars. During each five-year period, the adjustment may be applied incrementally or as a single adjustment.

(C) Except for any applicable work permit under division (B) of section 4939.0311 of the Revised Code and financial surety under division (J) of section 4939.0314 of the Revised Code, a municipal corporation may not charge an operator any other charge or fee for a small cell facility or associated wireless support structure except as set forth in section 4939.0316 and division (B) of section 4939.0322 of the Revised Code. The fees set forth in sections 4939.0316 and 4939.0322 of the Revised Code are not public way fees.

(D) Placement of small cell facilities in the public way or attachment of small cell facilities to a wireless support structure and any fees associated therewith shall not subject a municipal corporation to any state or local tax liabilities or assessments.

(E) To the extent that an investor-owned electric utility whose rates are regulated by the public utilities commission, its affiliate, an electric cooperative, or an independent transmission company is not an operator as defined by this chapter, nothing in sections 4939.01 and 4939.031 to 4939.039 of the Revised Code shall be construed to modify, add to, replace, or supersede any construction standard or engineering practice, tariff, contractual obligation or right, or federal or state law or regulation regarding utility poles, similar structures, or equipment of any type owned or controlled by that investor-owned electric utility, affiliate, electric cooperative, or independent transmission company.

Section 4939.0323 | Exclusive agreements.

• Effective: August 1, 2018
• Latest Legislation: House Bill 478 - 132nd General Assembly

A municipal corporation shall not enter into an exclusive arrangement with any entity for the right to attach to the municipal corporation's wireless support structures.

Section 4939.0329 | Construction, modification, or maintenance of oversized pole or wireless support structure under public way.

• Effective: August 1, 2018
• Latest Legislation: House Bill 478 - 132nd General Assembly

A person may construct, modify, or maintain a utility pole or wireless support structure along, across, and under a public way in excess of the size limits, to the extent permitted by the municipal corporation's applicable regulations.

Section 4939.04 | Management, regulation, and administration of public ways by municipal corporations.

• Effective: July 2, 2002
• Latest Legislation: Senate Bill 255 - 124th General Assembly

(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.

Section 4939.05 | Levy of public way fees by municipal corporation.

• Effective: July 2, 2002
• Latest Legislation: Senate Bill 255 - 124th General Assembly

(A) A municipal corporation shall not require any nonmonetary compensation or free service, or levy any tax, 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 or otherwise receives free service or other nonmonetary compensation as part of a franchise between a 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 against any public way fee or like charge 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 include a return on or 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.

Section 4939.06 | Appeal of levy of public way fee.

• Effective: July 2, 2002
• Latest Legislation: Senate Bill 255 - 124th General Assembly

(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, for the suspension period, 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.

Section 4939.07 | Application to recover fees and costs.

• Effective: July 2, 2002
• Latest Legislation: Senate Bill 255 - 124th General Assembly

(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 public utilities 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.

(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 on 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. The recovery shall be in a nondiscriminatory and competitively neutral manner and prorated on a per-line or per-line equivalent basis among all retail, sale-for-resale, and wholesale telecommunications customers subject to the recovery.

(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 a recovery mechanism authorized pursuant to 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.

Section 4939.08 | Relocation of facilities.

• Effective: August 1, 2018
• Latest Legislation: House Bill 478 - 132nd General Assembly

If requested by a municipal corporation, in order to accomplish construction and maintenance activities directly related to improvements for the health, safety, and welfare of the public, an operator shall relocate or adjust its facilities within the public way at no cost to the municipal corporation, as long as such request similarly binds all users in or on such public way. Such relocation or adjustment shall be completed in accordance with local law.

Last updated May 28, 2021 at 5:37 PM

Section 4939.09 | Exceptions for prior franchises or agreements.

• Effective: August 1, 2018
• Latest Legislation: House Bill 478 - 132nd General Assembly

(A) Nothing in sections 4939.01 to 4939.08 of the Revised Code applies to a franchise or to any agreement with a public utility, cable operator, or operator, for the balance of its term, if the franchise or agreement meets all of the following, as applicable:

(1)(a) With respect to a public utility or cable operator, the franchise was granted, or the agreement was authorized by ordinance or otherwise and was entered into, by a municipal corporation prior to July 2, 2002.

(b) With respect to an operator, the agreement was authorized by ordinance or otherwise and was entered into by a municipal corporation and the operator prior to the effective date of the amendments to this section by S.B. 331 of the 131st general assembly.

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

(3) The public utility or operator agrees with the applicable public way fees, or nonmonetary 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)(1) Except as otherwise provided in division (A) of section 4939.06 of the Revised Code, nothing in sections 4939.01 to 4939.08 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.

(2) Division (B)(1) of this section does not apply to operators and their facilities.

(C) Nothing in sections 4939.01 to 4939.08 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.A. 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.

(D) Nothing in sections 4939.01 to 4939.08 and this section of the Revised Code prohibits a municipal corporation from doing either of the following:

(1) Charging a cable operator a franchise fee in accordance with the "Cable Communications Policy Act of 1984," 98 Stat. 2779, 47 U.S.C.A. 542;

(2) Allowing a credit, offset, or deduction against the payment of a construction permit fee for any franchise fee a cable operator pays to the municipal corporation.