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Bill Analysis

Legislative Service Commission


S.B. 255

124th General Assembly

(As Introduced)

BILL SUMMARY
CONTENT AND OPERATION

Overview

The bill addresses the use of public right-of-ways by utility service providers and cable operators. It re-enacts most of R.C. Chapter 4939., the "use of public ways" law, that was initially enacted in Am. Sub. H.B. 283 of the 123rd General Assembly (the biennial operating appropriations act). That chapter was subsequently held to have been invalidly enacted under the Ohio Constitution's one-subject rule in City of Dublin v. State, No. 99CVH-08-7007 (Ct. of Common Pleas, Franklin County, Ohio, April 1, 2002).[1] The re-enactment of the use of public ways law is subject to the bill's emergency clause, and takes immediate effect.

The bill amends the re-enacted public ways law to also apply it to pipeline companies. It eliminates a prohibition against political subdivisions levying charges or requiring free service for the right or privilege of using a public way to deliver utility or cable services. Instead, the bill limits how those charges may be passed through to customers. The bill repeals a "grandfather clause" in the public ways law regarding legal requirements of political subdivisions that were in effect prior to January 1, 1999, for the right or privilege of using or occupying a public right-of-way. These amendments to the public ways law, the elimination of the prohibition, and the repeal take effect 90 days after the bill's effective date.

Utility service providers

(R.C. 4939.01)

As re-enacted

The bill defines a "utility service provider" as a natural gas company, local exchange telephone company, interexchange telecommunications company, electric company, or any other person that occupies a public way to deliver natural gas, electric, or telecommunications services. (A "public way" is any public street, road, highway, public easement, or public waterway, and includes the entire width of any right-of-way associated with any public way.)

Under the amendments

The bill adds pipeline companies to its definition of "utility service provider," which results in those companies being subject to all of the bill's provisions that are applicable to utility service providers. A "pipeline company" is the owner of a pipeline facility regulated under the federal Accountable Pipeline Safety and Partnership Act of 1996. Basically, a pipeline facility is a natural, flammable, or toxic or corrosive gas pipeline facility and a petroleum or other hazardous liquid pipeline facility.

Charges for the right or privilege of using or occupying a public way

(R.C. 4939.03(A) and (E))

As re-enacted

The bill, in a re-enacted provision, prohibits a political subdivision from levying a tax, fee, or charge, or requiring any nonmonetary compensation or free service, for the right or privilege of using or occupying a public way for purposes of delivering natural gas, electric, telecommunications, or cable television service.[2]

Under the amendments

The prohibition is eliminated by the bill's amendments. Instead, the bill requires that a utility service provider that passes through or charges customers all or any portion of a tax, fee, charge, or cost of nonmonetary compensation or free service levied by a political subdivision for the right or privilege of using or occupying a public way for the purpose of delivering service, or that passes through or charges any cost related to carrying this out, must so pass through or charge only those customers that receive the service within the geographical limits of that political subdivision, and no other customers. This limitation does not apply to a fee or cost charged the utility service provider for a construction permit or to restore a public way to its former state of usefulness.

Repeal of a grandfather provision regarding certain legal requirements

(Section 4)

The bill repeals a law (R.C. 4939.04) that stated that the prohibition against the levying of a tax, fee, or charge or requiring nonmonetary compensation or free service by a political subdivision for the right or privilege of using or occupying a public way does not apply to, or otherwise affect, any legal requirement of a political subdivision for that right or privilege, if the requirement took effect on or before December 31, 1998. The validity of any such requirement was to have been determined in accordance with the law in effect prior to September 29, 1999, as that law was interpreted at any time. The law further stated that the prohibition did not apply to any subsequent amendment of that legal requirement, or additional requirement, that took effect after December 31, 1998.

HISTORY

ACTIONDATEJOURNAL ENTRY
    Introduced
04-11-02p. 1660






[1] Ohio Constitution, Art. II, 15(D) states, "No bill shall contain more than one subject, which shall be clearly expressed in its title."

[2] In City of Dublin v. State, above, the court held that this provision divested municipalities of their powers of local self-government and thus was unconstitutional under the home rule provision of the Ohio Constitution, Article XVIII, 3.
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