§ 98.202. Definitions.

For the purposes of this article, the following terms, words, phrases, and their derivations shall have the meanings set forth herein, regardless of whether or not the words and phrases are capitalized. When not inconsistent with the context, words in the present tense include the future tense, words in the plural number include the singular number, and words in the singular number include the plural number. The words "shall" and "will" are mandatory and "may" is permissive. Words not defined shall be given their common and ordinary meaning.

" Abandoned. " The designation given to a facility, except for a small cell facility or wireless support structure in the right-of-way, when its operations or use are discontinued in a manner that is not in accordance with Section 98.203(G)(1); or for a period exceeding ninety consecutive days or a total of one hundred eighty days in any three hundred sixty-five-day period, without notice of the discontinued operations or use given to the City by the provider and without the City's approval; and except for a period of discontinued operations or use that has been caused by acts of God. Small cell facilities or wireless support structures shall be deemed abandoned if the facilities or support structures are unused for a period of three hundred sixty-five days without the operator otherwise notifying the City and receiving the City's approval.

" Affiliate. " Each person who falls into one or more of the following categories: (i) each person having, directly or indirectly, a controlling interest in a provider, (ii) each person in which a provider has, directly or indirectly a controlling interest, (iii) each officer, director, general partner, limited partner or shareholder holding an interest of fifteen percent or more, joint venturer or joint venture partner, of a provider, and (iv) each person, directly or indirectly, controlling, controlled by, or under common control with the provider; provided that affiliate shall in no event mean any limited partner or shareholder holding an interest of less than fifteen percent of such provider, or any creditor of such provider solely by virtue of its status as a creditor and which is not otherwise an affiliate by reason of owning a controlling interest in, being owned by, or being under common ownership, common management, or common control with, such provider.

" Antenna. " Communications equipment that transmits or receives radio frequency signals in the provision of wireless service.

" Applicant. " Any person who seeks to obtain a certificate of registration and/or a permit.

" Application. " The process by which an Applicant submits a request to obtain certificate of registration and/or a permit.

" Application fee. " The fee paid to the City for application for a certificate of registration pursuant to Section 98.204(A).

" Bankruptcy Code. " The United States Bankruptcy Code of 1978, as amended including regulations promulgated by Title 11 of the United States Code.

" Best effort(s). " The best reasonable efforts under the circumstances, taking into consideration, among other appropriate matters, all applicable laws, regulations, safety, engineering and operational codes, available technology, human resources, and cost.

" Cable franchise. " Has the same meaning as "franchise" in the Cable Communications Policy Act of 1984, 98 Stat. 2779, 47 U.S.C. 522.

" Cable operator. " Has the same meaning as in the Cable Communications Policy Act of 1984, 98 Stat. 2779, 47 U.S.C. 522.

" Cable service. " Has the same meaning as in the Cable Communications Policy Act of 1984, 98 Stat. 2779, 47 U.S.C. 522.

" Certificate of registration. " The document issued to each provider and its unique system to occupy the rights-of-way within the City that outlines the terms of that occupancy of the rights-of-way.

" City. " The City of Akron, Ohio.

" City Council. " The governing body of the City of Akron, Ohio.

" Code (or C.O.) ." The codified ordinances of the City of Akron, Ohio.

" Co-location or collocation. " Means to install, mount, maintain, modify, operate, or replace wireless facilities on a wireless support structure.

" Construct. " Shall mean, but not be limited to, digging, boring, tunneling, trenching, excavating, obstructing, installing wires, installing conduit, installing pipes, installing transmission lines, installing poles, installing signs or installing facilities, other than landscaping, ornamental plantings in, on, above, within, over, below, under or through any part of the rights-of-way.

"Construct" shall also include the act of opening and/or cutting into the surface of any paved, unimproved, or improved surface that is any part of the right-of-way.

" Construction ." Shall mean, but not be limited to, the act or process of digging, boring, tunneling, trenching, excavating, obstructing, installing wires, installing conduit, installing pipes, installing transmission lines, installing poles, installing signs or installing facilities, other than landscaping, ornamental plantings in, on, above, within, over, below, under or through any part of the rights-of-way.

"Construction" shall also include the act of opening and/or cutting into the surface of any paved, unimproved or improved surface that is part of the right-of-way.

" Construction bond. " A bond posted to ensure proper and complete construction and/or repair of a facility and the affected rights-of-way pursuant to a permit.

" Construction and major maintenance plan. " A written plan including maps of the expected location, design, other related equipment and facilities of a provider that describes in full the construction intended to be accomplished by the provider in the rights-of-way over the next calendar year.

" Construction permit. " The permit specified in Section 98.216 et seq. which must be obtained before a person may construct in, locate in, occupy, maintain, move or remove facilities from, in or on a rights-of-way.

" County. " Summit County, Ohio. County specifically excludes any and all contractors, agents or other persons acting on behalf of said county.

" Decorative pole. " 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 the following (i) electric lighting; (ii) specifically designed informational or directional signage; or (iii) temporary holiday or special event attachments.

" Department of Planning. " The Departments of Integrated Development and/or Planning and Urban Development of the City.

" Department of Public Service. " The Department of Public Service of the City.

" Design guidelines. " Detailed guidelines and specifications promulgated by the City in accordance with Ohio Revised Code § 4939 for the design and installation of small cell facilities and wireless support structures in the right-of-way.

" Director of Planning. " The duly appointed Deputy Mayor for Integrated Development and/or the Director of the Department of Planning, or their designee.

" Director of Public Service. " The duly appointed Director of the Department of Public Service, or his/ her designee.

" Emergency. " A condition that poses a clear and immediate danger to life or health, or of a significant loss of property.

" Facility(ies). " Any tangible thing located in any rights-of-way within the City, and includes wireless facilities and wireless support structures; but shall not include boulevard plantings, ornamental plantings or gardens planted or maintained in the rights-of-way between a person's property and the street edge of pavement.

" FCC. " The Federal Communications Commission, or any successor thereto.

" FERC. " The Federal Energy Regulatory Commission as created and amended in accordance with the Federal Power Act, 16 U.S.C. 792, or its statutory successor.

" Finance Director. " The duly appointed Director of the Department of Finance for the City, or his/ her designee.

" Full. " Right-of-way that is unable to accommodate any additional facilities as determined by the Director of Planning or the Director of Public Service in accordance with the principles of public health, safety, and welfare following a reasonable analysis taking into consideration all applicable law, commonly accepted industry standards, and routine engineering practices.

" Height. " The distance measured from the pre-existing grade level to the highest point on the structure, including the small cell facility, even if said highest point is an antenna or lightening protection device.

" Historic District. " A building, property, or site, or group of buildings, properties, or sites, that are either of the following:

1.

Listed in the National Register for 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 § 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 § 149.311 of the O.R.C.

" Inspector. " Any person authorized by the Director of Public Service to carry out inspections related to the provisions of this article.

" Law. " Any local, state and/or federal legislative, judicial or administrative order, certificate, decision, statute, constitution, ordinance, resolution, regulation, rule, tariff or other requirement in effect either at the time of execution of this article or at any time during the location of, and/or while a provider's facilities are located in the public rights-of-way.

" Mayor. " The duly elected mayor of the City of Akron, Ohio or his/her designee.

" Micro wireless permit. " A permit, which must be obtained before a person can construct, modify, collocate, or replace a small cell facility or wireless support structure, as set forth in Section 98.209, in or on the rights-of-way.

" Minor maintenance permit. " A permit, which must be obtained before a person can perform minor maintenance, as set forth in Section 98.218, in or on the rights-of-way.

" Ohio Manual of Uniform Traffic Control Devices (OMUTCD). " The uniform system of traffic control devices promulgated by the Ohio Department of Transportation pursuant to O.R.C. § 4511.09.

" Operator. " A wireless service provider, cable operator, or a video service provider that operates a small cell facility and provides wireless service. For purposes of this article, "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(24), and services that are fixed in nature or use unlicensed spectrum.

" O.R.C. " The Revised Code of the State of Ohio.

" Ohio Utility Protection Service. " The utility protection service as defined in O.R.C. § 153.64 and/or § 3781.26 or a statutory successor thereto.

" Open video service. " Any video programming services provided to any person through the use of rights-of-way, which person is certified by the FCC to operate an Open Video System pursuant to § 651 et seq. of the Telecommunications Act of 1996 (codified at 47 U.S.C. Title VI, Part V), regardless of the facilities used.

" Permit. " A construction permit, micro wireless permit, or a minor maintenance permit as the context requires.

" Permit cost. " All direct, incidental and indirect costs actually incurred or realized by the City for permit issuance, permit oversight and pavement degradation resulting from Construction activity.

" Permit fee. " Money paid to the City for a permit.

" Permittee. " Any person to whom a construction permit, micro wireless permit and/ or minor maintenance permit has been granted by the City and not revoked.

" Person. " Any natural person or corporate entity, business association or other business entity including, but not limited to, a firm, a partnership, a joint venture, a sole proprietorship, a political subdivision, a public or private agency of any kind, a utility, a successor or assign of any of the foregoing, or any other legal entity.

" Provider. " A person who owns or operates a system and has a valid Certificate of Registration. The City, County, schools, information technology centers, small cell facility operators, and cable operators operating pursuant to a valid cable franchise, or video service provider operating pursuant to a valid video service authorization shall also be considered providers.

" Public utility or utility. " A wireless service provider as defined in subsection (A)(20) of section 4927.1 of the Revised Code or any company described in § 4905.03 of the O.R.C., except in subsections (B) and (I) of that section, which company is also a "public utility" as defined in O.R.C. § 4905.02 and regulated by the PUCO; and includes any electric supplier as defined in O.R.C. § 4933.81.

" PUCO. " The Public Utilities Commission of Ohio as defined in O.R.C. § 4901.02.

" Registration maintenance fee. " The money paid to the City to maintain a certificate of registration and compensate the City for actual costs incurred by the City in the management, administration and control of the rights-of-way of the City, and which are not reasonably recoverable by the City through construction permit fees or other approved recovery mechanisms.

" Removal bond. " A bond posted to ensure the availability of sufficient funds to remove a provider's facilities upon abandonment or disuse, or discontinuance of a provider's use or occupation of the rights-of-way.

" Restoration. " The process and the resultant effects by which a rights-of-way is returned to a condition as good as or better than its condition immediately prior to the Construction. "Restoration" shall occur in accordance with the rules or regulations as may be further enacted and amended by the City.

" Right(s)-of-way. " The surface of, and the space within, through on, across, above or below, the paved or unpaved portion of 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 the City. "Right-of-Way" excludes a private easement.

" Right(s)-of-way cost. " All direct, incidental and indirect costs borne by the City for the management and administration of the rights-of-way and this article.

" Rules and regulations. " Any rules or regulations adopted by the Director of Public Service pursuant to Section 98.207 of this article.

" Service(s). " The offering of any service or utility for a fee directly to the public, or to such classes of users as to be effectively available directly to the public, or alternatively, the provision (for a fee or otherwise) of any service or utility between two or more points for a proprietary purpose to a class of users other than the general public that in the opinion of the Mayor constitutes a service.

" Small cell facility. " 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.

" State. " The State of Ohio.

" Supplementary application. " Any application made to construct on or in more of the rights-of-way than previously allowed, to extend a permit that had already been issued, or to otherwise modify or amend the specifics of a permit application.

" System. " Any system of conduit, cables, ducts, pipes, wires, lines, towers, antennas, wave guides, fiber optics, microwave, laser beams and any associated converters, equipment or facilities or utilities designed and constructed for the purpose of producing, receiving, amplifying, delivering or distributing services within the City. A system shall specifically include, but not necessarily be limited to: electric distribution and/or transmission systems, natural or artificial gas distribution and/or transmission systems, water distribution systems, storm sewer systems, sanitary sewer systems, cable television systems, video service networks, telecommunications systems (whether voice, video, data, or other), fiber optic systems, and wireless communications systems.

" System representative. " The specifically identified agent/employee of a provider who is authorized to direct field activities of that provider and serve as official notice agent for system-related information. Any such system representative shall be required to be available at all times to receive notice of and immediately direct response to system related emergencies or situations.

" Trenchless technology. " Shall mean, but not be limited to, the use of directional boring, horizontal drilling, microtunneling and other techniques in the Construction of underground portions of facilities which result in the least amount of disruption and damage to rights-of-way as possible.

" Underground facilities. " All lines, cables, conduits, pipes, posts, tanks, vaults and any other facilities which are located wholly or partially underneath rights-of-way.

" Unused facility(ies). " Facilities located in the rights-of-way which have remained unused for twelve months and for which the provider is unable to provide the City with a credible plan detailing the procedure by which the provider intends to begin actively using such facilities within the next twelve months, or that the provider has a potential purchaser or user of the Facilities who will be actively using the facilities within the next twelve months, or that the availability of such facilities is required by the provider to adequately and efficiently operate its system.

" Utility corridor(s). " Those specific areas of the rights-of-way designated as such by the Director of Public Service pursuant to this article.

" Video service. " Means the same as "video service" as defined in O.R.C. § 1332.21(J).

" Video service authorization (VSA). " A "video service authorization" as issued to a video service provider by the Director of the Ohio Department of Commerce in accordance with O.R.C. § 1332.24(A)(1).

" Video service network. " Means the same as "video service network" in O.R.C. § 1332.21(L).

" Video service provider (VSP). " Means the same as "video service provider" in O.R.C. § 1332.21(M).

" Wireless facility. "

A.

Equipment at a fixed location that enables wireless communications between user equipment and a communications network, including all of the following:

1.

Equipment associated with wireless communications;

2.

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

B.

The term includes small cell facilities.

C.

The term does not include any of the following:

1.

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

2.

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. An antenna, accessory equipment, distributed antenna system, small cell facility, micro wireless facility, or other device or equipment used to provide wireless service, including such devices and equipment as provided for in § 4939 of the Ohio Revised Code.

" Wireless service. " Any services using licensed or unlicensed wireless spectrum, whether at a fixed location or mobile, provided to the public using wireless facilities.

" Wireless support structure. " 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 article, "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.

(Ord. 266-2018)