Ohio Reasonable Regulatory Fee
In Ohio, a reasonable regulatory fee is distinguishable from a tax. State ex rel. Petroleum Underground Storage Tank Release Comp. Bd. v. Withrow (1991), 62 Ohio St.3d 111, 579 N.E.2d 705; State ex rel. Gordon v. Rhodes (1952), 158 Ohio St. 129, 48 O.O. 64, 107 N.E.2d 206.
Such a reasonable regulatory fee can include not only the costs of managing the use of public ways by telecommunications service providers but can also cover costs of providing enhanced facilities for such use such as the enhanced facilities provided by Dublin in the current case, provided such enhancements are reasonable. Gordon, supra.
While Chapter 4939 does allow some limited fees, those are not adequate to cover the full cost of managing the use of the public ways much less the cost of developing appropriate municipal facilities related to such use.
A fee adequate to cover management of the facilities would include compensation for damage, and wear and tear, that results from the use of the street by utility service providers or cable operators.
With regard to such matters, Chapter 4939 limits a municipality to seeking compensation when a utility service provider fails to return a street to its "prior condition of usefulness."
Utility service providers and cable operators are not required by Chapter 4939 to return public ways to the condition they were in prior to the installation of their equipment.
Municipalities can charge no more than is required to return the public way to its prior condition of usefulness.
The power of local self-government which Chapter 4939 would eliminate might also be used to enact reasonable regulations to protect the aesthetics of municipal public ways from unreasonably nonaesthetic use of those public ways by utility service providers and cable operators.
A municipality's concern for the aesthetics of its public ways is a significant interest.
The Ohio Supreme Court has indicated that "there is a legitimate governmental interest in maintaining the aesthetics of the community" because "the appearance of a community relates closely to its citizens happiness, comfort and general well-being." Hudson v. Albrecht (1984), 9 Ohio St.3d 69, 9 OBR 273, 458 N.E.2d 852.
By allowing for-profit businesses to forgo the reasonable costs of doing business, by requiring municipalities to bear the costs, loss of revenues, and damages resulting therefrom, Chapter 4939 effectively requires municipalities to subsidize the businesses of utility service providers and cable operators.
Assuming that there is a statewide interest in providing such businesses with a subsidy, there is no statewide interest in requiring that municipalities bear the costs or other deleterious effects of such subsidies.