In response to Ohio House Bill 478, new right of way (ROW) ordinances are currently being considered by a number of Ohio municipalities. Ohio House Bill 478 amends Ohio’s existing laws governing use and occupancy of the public ROW to further accommodate small cell facilities in support of 5G cell phone technology. The new legislation will go into effect on August 1, 2018. See "Ohio House Bill 478" for more information.
As a result of the forthcoming changes to ORC Chapter 4939 by Ohio House Bill 478, a flurry of Public Way Notices (PWN) have recently been filed with the Public Utilities Commission of Ohio (PUCO) by municipalities considering the enactment of new or revised ROW ordinances. Since May 1, 2018, 28 PWNs have been filed with PUCO.
Although it seems likely that many of the newly proposed ROW ordinances being considered by municipalities are intended to apply to small cell facilities in the ROW, ambiguous language in certain sections of the new proposed ordinances could allow municipalities to impose their new requirements upon energy companies with existing facilities in the public ROW. Such application may cause permitting delays and increased costs for an energy company attempting to repair, replace, or maintain its infrastructure.
For instance, on May 4, 2018, an Ohio village filed a PWN for a proposed ordinance entitled "Small Cell Facilities for Wireless Support Structures." The title reflects that the proposed ordinance is intended to govern only wireless communication facilities in the ROW, but inexact drafting within the Village’s new proposed ordinance could put energy companies at risk of falling under the new ROW rules for the Village. Examples include:
The term "Facilities" is undefined and used throughout the proposed ordinance, whereas the terms "Micro Wireless Facility" "Small Cell Facility", "Eligible Facilities" and "Wireless Facility" are all defined. One could argue that when "Facilities" is used alone, it means something other than those specifically defined terms. Thus, "Facilities" could be read to include underground or aboveground transmission and distribution lines.
The term "Work Permit" is defined broadly as "A permit issued by the Village that must be obtained in order to perform any work in… any part of the public ROW…” This requirement could apply to any work by a utility on infrastructure located within the ROW, as it is not limited to ROW work involving small cell facilities and wireless support structures.
Similar problems from imprecise drafting may continue in other forthcoming ROW ordinances from municipalities that have recently filed PWNs.
Drafts of the proposed ordinances are not yet available from the majority of municipalities that have recently filed. This is because of a new tactic employed by these municipalities - to file notice with PUCO of their consideration and proposed enactment of a public way ordinance, pursuant to ORC § 4939.04(E), without attaching the proposed ordinance supposedly under consideration. Many municipalities responded that the ordinance supposedly under consideration had not yet been drafted following written request of the proposed ordinances by the author. It seems these municipalities are taking the position that notice to PUCO of their consideration of an undrafted ROW ordinance somehow starts the 45-day notice period under ORC § 4939.04(E).
Application of new municipal ROW ordinances to energy service providers is not limited to the situation of imprecise drafting within an ordinance geared towards small cell facilities. Some of the PWNs filed with PUCO are for newly proposed municipal public way ordinances with broad and sweeping changes regarding a city’s governance of the public way, intended to impact energy service providers.
For example, Akron’s new proposed ordinance requires initial and annual registration with the City, and mandates registration fees, annual maintenance fees, new construction permit fees, and bonds for registration, construction, restoration, and removal, among other costly and burdensome requirements.
It is important for energy companies to be aware of the upcoming changes to municipal ROW ordinances in Ohio due to amendment of ORC 4939 from House Bill 478.
For more information on this topic, contact a member of Benesch’s Energy Practice Group.
Michael L. Snyder at firstname.lastname@example.org or 216.363.4446
Addisah Sherwood at email@example.com or 216.363.4592
Ohio Revised Code Chapter 4939 governs use of municipal public ways and generally grants authority to municipalities to manage the rights of way in their jurisdiction. House Bill 478 will amend Chapter 4939 to provide, among other things, that municipalities must permit wireless service providers, cable providers, and video service providers, to attach small cell wireless facilities to municipally owned support structures located in the right of way, including on utility poles, traffic signals, and street lights. Additionally, they must permit the same providers to construct, maintain, operate, or replace a wireless support structure in the right of way.