130th Ohio General Assembly
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S. B. No. 117  As Introduced
As Introduced

127th General Assembly
Regular Session
2007-2008
S. B. No. 117


Senator Jacobson 

Cosponsors: Senators Miller, R., Spada, Buehrer, Mumper, Niehaus, Stivers, Mason 



A BILL
To amend sections 153.64, 4939.01, 4939.03, 4939.04, 4939.05, 4939.08, and 5739.01, to enact sections 1332.21, 1332.22, 1332.23, 1332.24, 1332.25, 1332.26, 1332.27, 1332.28, 1332.29, 1332.30, 1332.31, 1332.32, 1332.33, 1332.34, and 1332.35, and to repeal sections 505.90, 505.91, and 505.92 of the Revised Code to provide for the issuance of video service authorizations by the Director of Commerce.

BE IT ENACTED BY THE GENERAL ASSEMBLY OF THE STATE OF OHIO:
Section 1.  That sections 153.64, 4939.01, 4939.03, 4939.04, 4939.05, 4939.08, and 5739.01 be amended and sections 1332.21, 1332.22, 1332.23, 1332.24, 1332.25, 1332.26, 1332.27, 1332.28, 1332.29, 1332.30, 1332.31, 1332.32, 1332.33, 1332.34, and 1332.35 be enacted to read as follows:
Sec. 153.64.  (A) As used in this section:
(1) "Public improvement" means any construction, reconstruction, improvement, enlargement, alteration, or repair of a building, highway, drainage system, water system, road, street, alley, sewer, ditch, sewage disposal plant, water works, and all other structures or works of any nature by a public authority.
(2) "Public authority" includes the state, or a county, township, municipal corporation, school district, or other political subdivision, or any public agency, authority, board, commission, instrumentality, or special district of or in the state or a county, township, municipal corporation, school district, or other political subdivision.
(3) "Underground utility facilities" includes any item buried or placed below ground or submerged under water for use in connection with the storage or conveyance of water or sewage; or electronic, telephonic, or telegraphic communications; electricity; electric energy; petroleum products; manufactured, mixed, or natural gas; synthetic or liquified natural gas; propane gas; or other substances. "Underground utility facilities" includes, but is not limited to, all operational underground pipes, sewers, tubing, conduits, cables, valves, lines, wires, manholes, and attachments, whether owned by any public or private or profit or nonprofit person, firm, partnership, company, corporation, joint stock association, joint venture, or voluntary association, wherever organized or incorporated, except for a private septic system in a single- or double-family dwelling utilized only for that dwelling and not connected to any other system.
(4) "Underground utility protection service" means a notification center not an owner of an underground utility facility, existing for the purpose of receiving notice from public authorities and from other persons that plan to prepare plans and specifications for, or engage in, public improvements involving digging, blasting, excavating, or other underground construction activities and distributing this information to its members. "Registered underground utility protection service" means an underground utility protection service registered with the secretary of state and the public utilities commission of Ohio pursuant to division (F) of this section.
(5) "Owner of underground utility facility" does not include telephone companies classified as medium or small under rule 4901-7-01 of the Ohio Administrative Code, owners of pipelines that conduct liquid petroleum products, or cable television companies as defined in division (B) of section 505.90 of the Revised Code to the extent that it requires membership in an underground utility protection service.
(6) "Construction area" means the area delineated on the plans and specifications for the public improvement within which the work provided for in the contract will be performed.
(B) In any public improvement which may involve underground utility facilities, the public authority, prior to preparing plans and specifications, shall contact the registered underground utility protection services and the owners of underground utility facilities that are not members of a registered underground utility protection service for the existence and location of all underground utility facilities within the construction area. The public authority shall include, in the plans and specifications for such improvement, the identity and location of the existing underground utility facilities located in the construction area as provided to the public authority by the owner of the underground utility facility and the name, address, and telephone number of each owner of any underground utility facilities in the construction area that does not subscribe to a registered underground utility protection service. Any anticipated temporary or permanent relocation of underground utility facilities deemed necessary by the public authority shall be negotiated or arranged by the public authority with the owners of the underground utility facilities prior to the start of construction. If a temporary or permanent relocation of utility facilities is necessary, the owner of the underground utility facility shall be given a reasonable time to move such utility facilities unless the contractor to whom the contract for a public improvement is awarded or its subcontractor agrees with the owner of the underground utility facility to coordinate relocation with construction operations. The public authority, within ten calendar days after award of a contract for a public improvement, shall notify in writing all owners of underground utility facilities known to be located in the construction area of the public improvement of the name and address of the contractor to whom the contract for the public improvement was awarded. Where notice is given in writing by certified mail, the return receipt, signed by any person to whom the notice is delivered, shall be conclusive proof of notice.
(C) The contractor to whom a contract for a public improvement is awarded or its subcontractor, at least two working days, excluding Saturdays, Sundays, and legal holidays, prior to commencing construction operations in the construction area which may involve underground utility facilities, shall cause notice to be given to the registered underground utility protection services and the owners of underground utility facilities shown on the plans and specifications who are not members of a registered underground utility protection service, in writing, by telephone, or in person. Where notice is given in writing by certified mail, the return receipt, signed by any person to whom the notice is delivered, shall be conclusive proof of notice. The owner of the underground utility facility, within forty-eight hours, excluding Saturdays, Sundays, and legal holidays, after notice is received, shall stake, mark, or otherwise designate the location of the underground utility facilities in the construction area in such a manner as to indicate their course together with the approximate depth at which they were installed. The marking or locating shall be coordinated to stay approximately two days ahead of the planned construction.
(D) If the public authority fails to comply with the requirements of division (B) of this section, the contractor to whom the work is awarded or its subcontractor complies with the requirements of division (C) of this section, and the contractor or its subcontractor encounters underground utility facilities in the construction area that would have been shown on the plans and specifications for such improvement had the registered underground utility protection service or owner of the underground utility facility who is not a member of a registered underground utility protection service whose name, address, and telephone number is provided by the public authority been contacted, then the contractor, upon notification to the public authority, is entitled to an increase to the contract price for itself or its subcontractor for any additional work that must be undertaken or additional time that will be required and is entitled to an extension of the completion date of the contract for the period of time of any delays to the construction of the public improvement.
In the event of a dispute as to the application of this section, procedures may be commenced under the applicable terms of the construction contract, or if the contract contains no provision for final resolution of the dispute, pursuant to the procedures for arbitration in Chapter 2711. of the Revised Code.
This section does not affect rights between the contractors and the public authority for any increase in contract price or additional time to perform the contract when the public authority complies with division (B) of this section.
Any public authority who complies with the requirements of division (B) of this section and any contractor or its subcontractor who complies with the requirements of division (C) of this section shall not be responsible to the owner of the underground utility facility if underground utility lines are encountered not as marked in accordance with the provisions of division (C) of this section by the owner of the underground utility facility, unless the contractor or its subcontractor has actual notice of the underground utility facility. Except as noted in this division, this section does not affect rights between the contractor or its subcontractor and the owner of the underground utility facility for failure to mark or erroneously marking utility lines. The public authority shall not make as a requirement of any contract for public improvement any change in responsibilities between the public authority and the owners of the underground utility facilities in connection with damage, injury, or loss to any property in connection with underground utility facilities.
The contractor or its subcontractor shall alert immediately the occupants of nearby premises as to any emergency that he the contractor or subcontractor may create or discover at or near such premises. The contractor or its subcontractor shall report immediately to the owner or operator of the underground facility any break or leak on its lines or any dent, gouge, groove, or other damage to such lines or to their coating or cathodic protection, made or discovered in the course of their excavation.
(E) This section does not affect rights between the public authority and the owners of the underground utility facilities for responsibility for costs involving removal, relocation, or protection of existing underground utility facilities, or for costs for delays occasioned thereby.
(F) An underground utility protection service shall register with the secretary of state and the public utilities commission of Ohio, identifying its name, address, telephone number, membership, and other pertinent information. The secretary of state and commission shall establish procedures for accepting such registrations and providing information about registrants to public authorities on request.
Sec. 1332.21.  As used in sections 1332.21 to 1332.35 of the Revised Code:
(A) "Access to video service" means the capability of a video service provider to provide video service at a household address irrespective of whether an owner or landlord or other responsible person has granted entrance or a subscriber has ordered the service.
(B) "Basic local exchange service" has the same meaning as in section 4927.01 of the Revised Code.
(C) "Cable operator," "cable service," "cable system," "franchise," and "franchising authority" have the same meanings as in the "Cable Communications Policy Act of 1984," Pub. L. No. 98-549, 98 Stat. 2780, 2781, 47 U.S.C. 522.
(D) "Competitive video service agreement" means any agreement, memorandum of understanding, or other document that provides or has the effect of providing, whether or not as a franchise, authorization by a municipal corporation or township for the provision of video service within its boundaries by a person using telecommunications facilities to provide that service.
(E) "Household" means, consistent with the regulations of the United States census bureau, a house, an apartment, a mobile home, a group of rooms, or a single room that is intended for occupancy as separate living quarters. "Separate living quarters" are those in which the occupants live and eat separately from any other persons in the building and that have direct access from the outside of the building or through a common hall.
(F) "Low-income households" means those residential households that are located within the video service provider's video service area and have an average annual household income of less than thirty-five thousand dollars based on United States census bureau estimates on January 1, 2007.
(G) "PEG channel" means a channel, for public, educational, and governmental programming, made available by a video service provider or cable operator for noncommercial use.
(H) "Telecommunications service" has the same meaning as in the "Telecommunications Act of 1996," Pub. L. No. 104-104, Title I, Section 3, 110 Stat. 60, 47 U.S.C. 153.
(I) "Video programming" means programming provided by, or generally considered comparable to programming provided by, a television broadcast station, as set forth in the "Cable Communications Policy Act of 1984," Pub. L. No. 98-549, 98 Stat. 2781, 47 U.S.C. 522.
(J) "Video service" means the provision of video programming over wires or cables located at least in part in public rights-of-way, regardless of the technology used to deliver that programming, including internet protocol technology or any other technology. The term includes cable service, but excludes video programming provided to subscribers by a commercial mobile service provider, as defined in the "Telecommunications Act of 1996," Pub. L. No. 104-104, Title VII, Sections 704(a) and 705, 110 Stat. 61, 151, 153, 47 U.S.C. 332; video programming provided solely as part of and via a service that enables users to access content, information, electronic mail, or other services offered over the public internet; and signals distributed by a cable television system to paying subscribers in the unincorporated area of a township prior to October 1, 1979, as authorized under section 505.91 of the Revised Code as that section existed prior to its repeal by ..... .B. ..... of the 127th general assembly, unless a franchise was subsequently issued to the same company as authorized under that section.
(K) "Video service area" means the service area specified pursuant to divisions (A) and (B) of section 1332.25 of the Revised Code.
(L) "Video service network" means wires or cables and associated facilities or components used to deliver video service and includes a cable system.
(M) "Video service provider" means a person granted a video service authorization under sections 1332.21 to 1332.35 of the Revised Code.
Sec. 1332.22. The general assembly finds and declares all of the following for the purposes of sections 1332.21 to 1332.35 of the Revised Code:
(A) Video service brings significant daily benefits to this state by providing news, education, and entertainment.
(B) This state's economy will be enhanced by investment in new communications and video programming infrastructure, including fiber optic and internet protocol technologies.
(C) Enhancing the existing broadband infrastructure and increasing consumer access to robust and reliable broadband products and services are also important, statewide public purposes.
(D) To date, there has been only minimal competitive entry by telephone companies into the facilities-based video programming market in this state, in part, because local franchise requirements may present barriers to entry.
(E) Increased competition in the provision of video service will provide new and more video programming choices for consumers in this state, and new providers have stated their desire to supply that service.
(F) The time-to-market interval is critical for new entrants seeking to compete with incumbents.
(G) Local franchise, right-of-way, and other requirements may present inordinate delays for new entrants.
(H) This state can and should provide a uniform regulatory framework by which persons can rapidly and expeditiously provide video service to residents of this state regardless of their jurisdictional locations, which framework will serve to clarify the authority and obligations of those persons under right-of-way laws of this state, promote rapid competitive entry into the video service market, and encourage additional, significant infrastructure investment.
(I) Maintaining an existing franchise in cases where new entrants obtain video service authorizations is not appropriate unless the incumbent chooses to maintain that franchise.
(J) The continued development of Ohio's video service market and promotion of infrastructure investment are matters of statewide concern and are properly subject to exercises of this state's police power.
(K) By analogy to Am. Financial Servs. Assn. et al. v. Cleveland, 112 Ohio St. 3d 170, 2006-Ohio-6043, citing Canton v. State, 95 Ohio St.3d 149, 2002-Ohio-2005, syllabus, sections 1332.21 to 1332.35 of the Revised Code are intended as a comprehensive legislative enactment operating uniformly throughout this state, setting forth police regulations, and prescribing a rule of conduct upon citizens generally.
Sec. 1332.23. (A) No person shall provide video service in this state on or after the effective date of this section except pursuant to a video service authorization issued under section 1332.24 of the Revised Code or pursuant to the terms and conditions of a franchise or competitive video service agreement continuing in effect only as provided under division (B)(1)(a) or (b) of this section. Such person includes a person operating or proposing to operate a video service network using telecommunications facilities located in public rights-of-way pursuant to a certificate, a franchise other than a video service authorization, a competitive service agreement, an ordinance, or a resolution that authorizes construction and operation of those facilities to provide telecommunications service.
(B)(1)(a) Solely at the option of a person that offers service under a franchise or competitive video service agreement in effect on the effective date of this section, the person may continue on and after that date to provide service within the franchise area or the respective municipal corporation or unincorporated area of a township pursuant to the terms and conditions of the franchise or agreement, except as otherwise provided in section 1332.30 of the Revised Code. However, no such franchise or agreement shall be renewed or extended beyond the existing term of the franchise or agreement or its earlier termination pursuant to the terms and conditions of the respective franchise or agreement.
(b) Any person that is providing video service in this state on the effective date of this section pursuant to the terms and conditions of an expired franchise or competitive video service agreement has ninety days beginning on the effective date of this section to file an application for a video service authorization under section 1332.25 of the Revised Code.
(2) A person that offers service under a franchise or competitive video service agreement pursuant to division (B)(1)(a) of this section may apply at any time under section 1332.25 of the Revised Code for a video service authorization to provide video service within this state. Upon the effective date of the video service authorization, the franchise or competitive video service agreement terminates, and, except as provided in division (F)(2) of section 1332.30 of the Revised Code, no provision of that franchise or agreement is enforceable.
(C) Video service constitutes cable service over a cable system for the purposes of sections 1332.01 to 1332.10 of the Revised Code.
Sec. 1332.24. (A)(1) In accordance with section 1332.25 of the Revised Code, the director of commerce may issue to any person, or renew, a video service authorization, which authorization confers on the person the authority to provide video service in its video service area; construct and operate a video service network in, along, across, or on public rights-of-way for the provision of video service; and, when necessary to provide that service, exercise the power of a telegraph company under section 4931.04 of the Revised Code. The term of a video service authorization or authorization renewal shall be ten years.
(2) For the purposes of the "Cable Communications Policy Act of 1984," Pub. L. No. 98-549, 98 Stat. 2779, 47 U.S.C. 521 et seq., a video service authorization shall constitute a franchise under that law, and the director shall be the sole franchising authority under that law for video service authorizations in this state.
(B)(1) The director has no authority to regulate video service in this state, including, but not limited to, the rates, terms, or conditions of that service. However, the director may investigate alleged violations of or failures to comply with division (A) of section 1332.23, division (C) of section 1332.25, division (A), (B), or (C) of section 1332.27, division (A) of section 1332.28, division (A) or (B) of section 1332.29, or section 1332.31 or 1332.32 of the Revised Code, or complaints concerning any such violation or failure.
(2) In conducting an investigation under division (B)(1) of this section, the director, by subpoena, may compel witnesses to testify in relation to any matter over which the director has jurisdiction and may require the production of any book, record, or other document pertaining to that matter. If a person fails to file any statement or report, obey any subpoena, give testimony, produce any book, record, or other document as required by a subpoena, or permit photocopying of any book, record, or other document subpoenaed, the court of common pleas of any county in this state, upon application made to it by the director, shall compel obedience by attachment proceedings for contempt, as in the case of disobedience of the requirements of a subpoena issued from the court or a refusal to testify.
(3) If the director finds that a person has violated or failed to comply with division (A) of section 1332.23, division (C) of section 1332.25, division (A), (B), or (C) of section 1332.27, division (A) of section 1332.28, division (A) or (B) of section 1332.29, or section 1332.31 or 1332.32 of the Revised Code, and the person has failed to cure the violation or failure after reasonable, written notice and reasonable time to cure, the director may apply to the court of common pleas of any county in this state for an order enjoining the activity or requiring compliance. Such an action shall be commenced not later than three years after the date the alleged violation or failure occurred or was reasonably discovered. Upon a showing by the director that the person has engaged in a violation or failure to comply, the court shall grant an injunction, restraining order, or other appropriate relief.
(C) The public utilities commission has no authority over a video service provider in its offering of video service or a cable operator in its offering of cable or video service, or over any person in its offering of video service pursuant to a competitive video service agreement.
Sec. 1332.25. (A) An application made to the director of commerce for a video service authorization under section 1332.24 of the Revised Code shall require and contain only the following:
(1) Specification of the location of the applicant's principal place of business and the names of the applicant's principal executive officers;
(2) Specification of the geographic and political boundaries of the applicant's proposed video service area;
(3) A general description of the type or types of technologies the applicant will use to deliver the video programming, which may include wireline, wireless, or any other alternative technology, subject, as applicable, to section 1332.29 of the Revised Code;
(4) An attestation that the applicant has filed or will timely file with the federal communications commission all forms required by that agency in advance of offering video service in this state;
(5) An attestation that the applicant will comply with applicable federal, state, and local laws;
(6) An attestation that the applicant is legally, financially, and technically qualified to provide video service.
(B) For the purpose of division (A)(2) of this section:
(1) The video service areas of video service providers may overlap.
(2) A specified video service area shall be coextensive with municipal, township unincorporated area, or county boundaries, except as authorized under division (B)(3) of this section, but nothing in sections 1332.21 to 1332.35 of the Revised Code shall require a video service provider to provide access to video service within the entire video service area.
(3) The specified video service area of a person using telecommunications facilities to provide video service on the effective date of this section or of any other person later so using telecommunications facilities shall be the geographic area in which the person offers basic local exchange service.
(4) The specified video service area of an applicant cable operator that offers service under a franchise in effect on the effective date of this section initially shall be, at minimum, the franchise area established under that franchise.
(C) A video service provider shall immediately file an application to amend its video service authorization with the director to reflect any change in the information required under division (A)(1), (2), or (3) of this section. An amendment pursuant to division (A)(2) of this section shall include any new delivery technology information required by division (A)(3) of this section.
(D) Within ten days after its filing or within ten days after the filing of supplemental information necessary to make it complete, the director shall determine the completeness of an application filed under division (A) or (C) of this section relative to the respective requirements of divisions (A), (B), and (C) of this section and, as applicable, shall notify the applicant of an incompleteness determination, state the bases for that determination, and inform the applicant that it may resubmit a corrected application. The director shall issue a video service authorization, authorization renewal, or amended authorization within twenty days after the director's determination that the filed application is complete.
If the director does not notify the applicant regarding the completeness of the application within the time period specified in this division or does not issue the authorization requested by a completed application within the applicable time period, the application shall be deemed complete, and the authorization or amended authorization deemed issued on the thirty-first day after the application's filing date.
Sec. 1332.26. (A) No political subdivision shall require a video service provider to obtain from it any authority to provide video service within its boundaries.
(B) Except as authorized under division (C) of this section and under sections 1332.30, 1332.33, and 1332.34 of the Revised Code, no political subdivision shall request anything of value from a video service provider for providing video service; impose any fee, license, or gross receipt tax on the provision of video service by such a provider; or impose any franchise or other requirement on the provision of video service by a video service provider, including, but not limited to, any provision regulating rates charged by a video service provider or establishing any build-out requirement or requirement to deploy any facility or equipment.
(C)(1) A municipal corporation or township by ordinance or resolution may require a video service provider providing video service within its respective boundaries to conform its provision of that service to customer service requirements that are consistent with and not more stringent than those specified in 47 C.F.R. 76.309(c).
(2) Division (C)(1) of this section does not apply if there are two or more persons offering video service, excluding providers of direct-to-home satellite service, within the respective boundaries or if the video service provider is subject to effective competition, as defined in 47 C.F.R. 76.905, in its video service area.
Sec. 1332.27. (A) Before providing video service to one or more subscribers within its video service area or any additional video service area under division (C) of section 1332.25 of the Revised Code, a video service provider shall provide ten days' advance, written notice of that service or additional service to the respective municipal corporation, township, or county.
(B) A video service provider may transfer its video service authorization to a successor. Within ten days after completing the transfer, the provider shall provide written notice to the respective municipal corporation, township, or county. The transfer is not valid until the date that the successor files a complete affidavit with the director of commerce containing the information specified in division (A) of section 1332.25 of the Revised Code. The director has no authority to act upon the notice or the completed affidavit.
(C) A video service provider may terminate video service to its video service area, but only after providing thirty days' advance, written notice to the director, affected subscribers, and the respective municipal corporations, townships, or counties comprising the video service area. The director has no authority to act upon the notice.
Sec. 1332.28. (A) Consistent with the "Telecommunications Act of 1996," Pub. L. No. 104-104, Title III, Sections 303(a), 110 Stat. 61, 124, 47 U.S.C. 541(a)(3), no video service provider shall deny access to video service to any group of potential residential subscribers in its video service area because of the race or income of the residents in the local area in which the group resides.
(B) It is an affirmative defense to a violation of division (A) of this section if the video service provider can demonstrate either of the following:
(1) Three years after the date it began providing video service in its video service area, at least twenty-five per cent of households with access to the provider's video service are low-income households.
(2) Five years after the date it began providing video service in its video service area and thereafter, at least thirty per cent of the households with access to the provider's video service are low-income households.
Sec. 1332.29. (A)(1) A video service provider that both uses telecommunications facilities to provide video service and has more than one million telephone access lines in this state shall provide access to video service to at least:
(a) Twenty-five per cent of the households in its video service area within two years after the date it began providing video service in that area;
(b) Fifty per cent of the households in its video service area within five years after the date it began providing video service in that area, except that a video service provider need not meet that fifty per cent requirement until two years after at least thirty per cent of the households with access to the provider's video service under its video service authorization subscribe to the service for six consecutive months.
(2) A video service provider may comply with division (A)(1)(a) or (b) of this section through the use of alternative technology, except satellite technology, that offers service, functionality, and content demonstrably similar to the service, functionality, and content the provider otherwise provides through its video service network.
(B) A video service provider shall file an annual report with the director of commerce describing its compliance with division (A) of this section or, as applicable, its progress toward that compliance.
(C) A video service provider may apply to the director for a waiver of or for an extension of time to comply with division (A)(1) of this section. The director may grant the waiver or extension only if the director determines that the video service provider has made substantial and continual effort to comply and determines that one or more of the following caused the provider's inability to comply:
(1) The provider is unable to obtain access to public and private rights-of-way under reasonable terms and conditions.
(2) Developments or buildings are not subject to competition because of existing, exclusive service arrangements.
(3) Developments or buildings are inaccessible using reasonable technical solutions under commercially reasonable terms and conditions.
(4) A natural disaster prevents compliance.
(5) There are other factors beyond the provider's control.
If an extension of time is granted, the director shall establish a new compliance deadline. If a waiver is granted, the director shall specify the requirement or requirements waived.
Sec. 1332.30. (A) Any municipal corporation or township that lies within a video service provider's video service area may require the video service provider by written notice to provide PEG channels for noncommercial use. Following such a request, a video service provider shall provide the PEG channels one hundred twenty days after the municipal corporation or township is able to deliver the PEG channel content. The provider may use any service tier viewed by more than fifty per cent of the subscribers in the video service area to provide PEG channels under this section.
(1) Except as provided in division (A)(2) of this section, the number of required PEG channels shall not exceed three if the respective municipal corporation or township has a population of at least fifty thousand, or two if the population is less than fifty thousand. If there is more than one video service provider providing PEG channels in the municipal corporation or township, the number of channels shall be the same for all the video service providers.
(2) If a video service provider distributes video programming through a single headend or video hub office to a video service area consisting of one or more municipal corporations or the unincorporated areas of one or more townships, or of one or more municipal corporations and unincorporated areas, that have, in the aggregate, a population of at least fifty thousand, none of those municipal corporations or townships shall require the provider to provide, in the aggregate, channel capacity for more than three PEG channels. In the situation where the aggregate population is less than fifty thousand, none of those municipal corporations or townships shall require the provider to provide, in the aggregate, channel capacity for more than two PEG channels. The foregoing limits shall constitute the total number of PEG channels that may be designated on all video service networks that share a common headend or video hub office, regardless of the number of municipal corporations or townships served, and the populations of all those municipal corporations or unincorporated areas shall be aggregated for the purpose of applying those limits.
(B) No municipal corporation or township shall require a video service provider to provide any institutional network or equivalent capacity on its video service network.
(C) Except as otherwise provided in this section, no municipal corporation or township shall require a video service provider to provide any funds, services, programming, facilities, or equipment related to public, educational, or governmental use of channel capacity. The operation of a PEG channel and the production of any programming that appears on the channel shall be the sole responsibility of the municipal corporation or township. The video service provider shall bear only the responsibility for the transmission to subscribers of the PEG channel programming.
(D) The municipal corporation or township shall ensure that any PEG channel content and programming it submits to a video service provider is compatible with the technology or protocol the provider uses to deliver video service, and shall not require or necessitate any alteration or change in content or transmission signal.
(E) A video service provider may reclaim and program a PEG channel that it determines is not substantially utilized. At such time as the municipal corporation or township that caused the establishment of the PEG channel can later certify that the channel will be substantially utilized, the video service provider, within one hundred twenty days after the date the video service provider receives that certification, shall restore the reclaimed channel as a PEG channel. However, the provider shall be under no obligation to carry that channel on any specified tier of service. For the purpose of this division and division (F)(2) of this section, a PEG channel is "substantially utilized" when at least twelve hours of noncharacter-generated content are programmed on that channel each calendar day and at least eighty per cent of the programming is nonrepeat and locally produced.
(F)(1) The provisions of this section preempt and supersede any provision of a franchise, competitive video service agreement, ordinance, or resolution granted, enacted, or adopted by a municipal corporation or township and in effect on the effective date of this section regarding PEG channels and the provision of institutional network or equivalent capacity under that franchise, agreement, ordinance, or resolution.
(2) However, if such a franchise, agreement, ordinance, or resolution requires fewer PEG channels than those required pursuant to division (A) of this section, the requirement of the respective franchise, agreement, ordinance, or resolution shall apply to all video service providers providing video service within the respective municipal or township unincorporated area boundaries, and the municipal corporation or township later may require activation of additional PEG channels, not exceeding the number required pursuant to division (A) of this section, if it specifies that the additional channels will be substantially utilized.
Sec. 1332.31. A video service provider shall implement an informal process for handling inquiries from any person concerning billing issues, service issues, and other subscriber complaints.
Sec. 1332.32. Not later than six months after the effective date of its video service authorization, a video service provider shall carry emergency interrupt service announcements transmitted by local television broadcasters and shall transmit national, state, and local emergency interrupt service announcements as required by 47 C.F.R. 11.11 et seq. or as otherwise required by the federal communications commission.
Sec. 1332.33. (A) Not sooner than forty-five days after the end of each calendar quarter, a video service provider shall pay a video service provider fee to each municipal corporation and each township in which it offers video service. The fee shall be calculated quarterly by determining the provider's gross revenue for the preceding calendar quarter as described in division (B) of this section and multiplying the result by the percentage specified in division (C)(1) or (2) of this section.
(B) Gross revenue shall be computed in accordance with generally accepted accounting principles.
(1) Gross revenue shall consist of all of the following revenue for the calendar quarter that is collected by the provider for video service from all its subscribers having a service address within any portion of the municipal corporation or, respectively, the unincorporated area of the township:
(a) Recurring monthly charges for video service;
(b) Event-based charges for video service, including, but not limited to, pay-per-view and video-on-demand charges;
(c) Charges for rental of set top boxes and other video service equipment;
(d) Service charges related to the provision of video service, including, but not limited to, activation, installation, and repair;
(e) Administrative charges related to the provision of video service, including, but not limited to, service order and service termination charges.
(2) Gross revenue shall not include any of the following:
(a) Any taxes, fees, or assessments that are collected by the video service provider from video service subscribers for pass-through to any federal, state, or local government agency, including the video service provider fee authorized under this section and the federal communication commission user fee;
(b) Uncollectible charges, except that uncollectible charges, all or part of which are written off as bad debt but subsequently collected, less the expenses of their collection shall be included in gross revenue in the quarter collected;
(c) Late payment charges;
(d) Maintenance charges;
(e) Charges for services other than video service, reasonably identifiable on books or records the video service provider keeps in the regular course of business or by other reasonable means, that are aggregated or bundled with amounts billed to video service subscribers, including, but not limited to, any revenue received by a video service provider or its affiliates for telecommunications service, information service, or the provision of directory or internet advertising, including yellow pages, white pages, banner advertising, and electronic publishing;
(f) Reimbursement by programmers of marketing costs actually incurred by the video service provider;
(g) Any revenue not expressly enumerated in division (B)(1) of this section.
(C)(1) If in the calendar quarter a franchise fee is payable by a cable operator under a franchise in effect in a municipal corporation or township as provided under division (B) of section 1332.23 of the Revised Code, the percentage of gross revenue payable in that calendar quarter by a video service provider to the municipal corporation or township shall be the same percentage of gross revenue payable in that calendar quarter pursuant to that franchise, not to exceed five per cent. If there is more than one such franchise of a cable operator in effect in that quarter, the lowest such percentage shall be used.
(2) Otherwise, the percentage shall be zero or such higher percentage, not to exceed five per cent, as is specified in an ordinance or resolution that the municipal corporation or township may enact or adopt for the purpose of this section.
(D) A video service provider that pays a video service provider fee pursuant to this section may include a portion of that fee in the regular bill of each of its video service subscribers that has a service address within any portion of the municipal corporation or, respectively, within the unincorporated area of the township.
Sec. 1332.34. (A) At its sole expense and not more often than once per calendar year, a municipal corporation or township may conduct an audit for the purpose of verifying the accuracy of a video service provider's calculation of the video service provider fees it paid to the municipal corporation or township in the audit period. For the purpose of the audit, the video service provider shall make available for inspection, at the location where such records are kept in the normal course of business, those records pertaining to its gross revenue as defined in division (B) of section 1332.33 of the Revised Code. The provider need not retain those records for longer than three years after the year for which the fee was payable, unless the municipal corporation or township has commenced an action under division (C) of this section.
(B)(1) No municipal corporation or township shall employ, appoint, or retain any person for compensation that is dependent in any manner upon the outcome of an audit under division (A) of this section, including compensation dependent on the audit findings or the recovery of fees or other payment.
(2) No person shall solicit or accept compensation that is dependent in any manner upon the outcome of an audit under division (A) of this section, including compensation dependent on the audit findings or the recovery of fees or other payment by the municipal corporation, township, or video service provider.
(C) An action by the municipal corporation or township or by the video service provider to dispute the amount of video service provider fee due based on the audit results shall be brought in a court of competent jurisdiction not later than two years following the end of the quarter to which the disputed amount relates.
(D) A municipal corporation or township shall be deemed to accept as full payment any payment of a video service provider fee that it does not challenge as provided under division (C) of this section.
Sec. 1332.35.  Nothing in sections 1332.21 to 1332.34 of the Revised Code is intended to be inconsistent with the "Cable Communications Policy Act of 1984," 98 Stat. 2779, 47 U.S.C. 521 to 573.
Sec. 4939.01. As used in sections 4939.01 to 4939.08 of the Revised Code:
(A) "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.
(B) "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.
(C) "Person" means any natural person, corporation, or partnership and also includes any governmental entity.
(D) "Public utility" means any company described in section 4905.03 of the Revised Code except in divisions (A)(3) and (10) 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.
(E) "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, and any other land dedicated or otherwise designated for a compatible public use, which, on or after the effective date of this section, is owned or controlled by a municipal corporation. "Public way" excludes a private easement.
(F) "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.
(G) "Video service provider" has the same meaning as in section 1332.21 of the Revised Code.
Sec. 4939.03.  (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 any requisite consent of the municipal corporation owning or controlling the public way.
(2) Except (a) Consent to occupy or use a public way shall be deemed granted for all lines, poles, pipes, conduits, ducts, equipment, or other appurtenances, structures, or facilities of a public utility, cable operator, or video service provider thirty-one days after it files a completed request for consent with the municipal corporation or on such earlier date as that request is granted by the municipal corporation.
(b) In the case of a request for consent made by any other person to a municipal corporation and except as otherwise provided in division (C)(5) of this section, a municipal corporation, shall grant or deny its consent 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 by the person.
(3) A For persons under division (C)(2)(b) of this section, 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.
(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, or a video service provider, 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 the effective date of this section July 2, 2002, lawfully so occupy or use a public way. However, such presumed consent does not relieve the public utility or, cable operator, or video service provider of compliance with any law related to the ongoing occupancy or use of a public way.
Sec. 4939.04.  (A)(1) A municipal corporation shall provide public utilities or, cable operators, and video service providers 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 prioritizing access to or occupancy or use of a public way by a public utility or, cable operator, or video service provider when the public way cannot accommodate all public way occupants or users, which priorities as applied to public utilities or cable operators shall provided the prioritization is not be unduly discriminatory and shall be is 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.
Sec. 4939.05.  (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, subject to sections 1332.23 and 1332.26 of the Revised Code, 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 or that receives video service provider fees from a video service provider pursuant to section 1332.33 of the Revised Code shall grant the cable operator or, respectively, the video service provider, for the occupancy or use of the public way related to the its 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, for their duration, that are made by the cable operator or, respectively, by the video service provider and, as applicable in the case of a cable operator, 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.
Sec. 4939.08. (A) Nothing in sections 4939.01 to 4939.07 of the Revised Code applies to a franchise or to any agreement with a public utility or cable operator, for the balance of its term, if the franchise or agreement meets all of the following:
(1) The franchise was granted, or the agreement was authorized by ordinance or otherwise and was entered into, by a municipal corporation prior to the effective date of this section July 2, 2002.
(2) The franchise or agreement authorizes the occupation or use of public ways.
(3) The public utility 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) Except as otherwise provided in division (A) of section 4939.06 of the Revised Code, nothing in sections 4939.01 to 4939.07 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.
(C) Nothing in sections 4939.01 to 4939.07 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 4939.07 and this section of the Revised Code prohibits a municipal corporation from doing either of the following:
(1) Charging a cable operator, but not a video service provider, a franchise fee in accordance with the "Cable Communications Policy Act of 1984," 98 Stat. 2779, 47 U.S.C.A. 542, and sections 1332.21 to 1332.35 of the Revised Code or charging a video service provider a video service provider fee under section 1332.33 of the Revised Code;
(2) Allowing a credit, offset, or deduction against the payment of a construction permit fee for any such franchise fee a cable operator pays to the municipal corporation or, respectively, for any such video service provider fee a video service provider pays to the municipal corporation.
Sec. 5739.01.  As used in this chapter:
(A) "Person" includes individuals, receivers, assignees, trustees in bankruptcy, estates, firms, partnerships, associations, joint-stock companies, joint ventures, clubs, societies, corporations, the state and its political subdivisions, and combinations of individuals of any form.
(B) "Sale" and "selling" include all of the following transactions for a consideration in any manner, whether absolutely or conditionally, whether for a price or rental, in money or by exchange, and by any means whatsoever:
(1) All transactions by which title or possession, or both, of tangible personal property, is or is to be transferred, or a license to use or consume tangible personal property is or is to be granted;
(2) All transactions by which lodging by a hotel is or is to be furnished to transient guests;
(3) All transactions by which:
(a) An item of tangible personal property is or is to be repaired, except property, the purchase of which would not be subject to the tax imposed by section 5739.02 of the Revised Code;
(b) An item of tangible personal property is or is to be installed, except property, the purchase of which would not be subject to the tax imposed by section 5739.02 of the Revised Code or property that is or is to be incorporated into and will become a part of a production, transmission, transportation, or distribution system for the delivery of a public utility service;
(c) The service of washing, cleaning, waxing, polishing, or painting a motor vehicle is or is to be furnished;
(d) Until August 1, 2003, industrial laundry cleaning services are or are to be provided and, on and after August 1, 2003, laundry and dry cleaning services are or are to be provided;
(e) Automatic data processing, computer services, or electronic information services are or are to be provided for use in business when the true object of the transaction is the receipt by the consumer of automatic data processing, computer services, or electronic information services rather than the receipt of personal or professional services to which automatic data processing, computer services, or electronic information services are incidental or supplemental. Notwithstanding any other provision of this chapter, such transactions that occur between members of an affiliated group are not sales. An affiliated group means two or more persons related in such a way that one person owns or controls the business operation of another member of the group. In the case of corporations with stock, one corporation owns or controls another if it owns more than fifty per cent of the other corporation's common stock with voting rights.
(f) Telecommunications service, including prepaid calling service, prepaid wireless calling service, or ancillary service, is or is to be provided, but not including coin-operated telephone service;
(g) Landscaping and lawn care service is or is to be provided;
(h) Private investigation and security service is or is to be provided;
(i) Information services or tangible personal property is provided or ordered by means of a nine hundred telephone call;
(j) Building maintenance and janitorial service is or is to be provided;
(k) Employment service is or is to be provided;
(l) Employment placement service is or is to be provided;
(m) Exterminating service is or is to be provided;
(n) Physical fitness facility service is or is to be provided;
(o) Recreation and sports club service is or is to be provided;
(p) On and after August 1, 2003, satellite broadcasting service is or is to be provided;
(q) On and after August 1, 2003, personal care service is or is to be provided to an individual. As used in this division, "personal care service" includes skin care, the application of cosmetics, manicuring, pedicuring, hair removal, tattooing, body piercing, tanning, massage, and other similar services. "Personal care service" does not include a service provided by or on the order of a licensed physician or licensed chiropractor, or the cutting, coloring, or styling of an individual's hair.
(r) On and after August 1, 2003, the transportation of persons by motor vehicle or aircraft is or is to be provided, when the transportation is entirely within this state, except for transportation provided by an ambulance service, by a transit bus, as defined in section 5735.01 of the Revised Code, and transportation provided by a citizen of the United States holding a certificate of public convenience and necessity issued under 49 U.S.C. 41102;
(s) On and after August 1, 2003, motor vehicle towing service is or is to be provided. As used in this division, "motor vehicle towing service" means the towing or conveyance of a wrecked, disabled, or illegally parked motor vehicle.
(t) On and after August 1, 2003, snow removal service is or is to be provided. As used in this division, "snow removal service" means the removal of snow by any mechanized means, but does not include the providing of such service by a person that has less than five thousand dollars in sales of such service during the calendar year.
(4) All transactions by which printed, imprinted, overprinted, lithographic, multilithic, blueprinted, photostatic, or other productions or reproductions of written or graphic matter are or are to be furnished or transferred;
(5) The production or fabrication of tangible personal property for a consideration for consumers who furnish either directly or indirectly the materials used in the production of fabrication work; and include the furnishing, preparing, or serving for a consideration of any tangible personal property consumed on the premises of the person furnishing, preparing, or serving such tangible personal property. Except as provided in section 5739.03 of the Revised Code, a construction contract pursuant to which tangible personal property is or is to be incorporated into a structure or improvement on and becoming a part of real property is not a sale of such tangible personal property. The construction contractor is the consumer of such tangible personal property, provided that the sale and installation of carpeting, the sale and installation of agricultural land tile, the sale and erection or installation of portable grain bins, or the provision of landscaping and lawn care service and the transfer of property as part of such service is never a construction contract.
As used in division (B)(5) of this section:
(a) "Agricultural land tile" means fired clay or concrete tile, or flexible or rigid perforated plastic pipe or tubing, incorporated or to be incorporated into a subsurface drainage system appurtenant to land used or to be used directly in production by farming, agriculture, horticulture, or floriculture. The term does not include such materials when they are or are to be incorporated into a drainage system appurtenant to a building or structure even if the building or structure is used or to be used in such production.
(b) "Portable grain bin" means a structure that is used or to be used by a person engaged in farming or agriculture to shelter the person's grain and that is designed to be disassembled without significant damage to its component parts.
(6) All transactions in which all of the shares of stock of a closely held corporation are transferred, if the corporation is not engaging in business and its entire assets consist of boats, planes, motor vehicles, or other tangible personal property operated primarily for the use and enjoyment of the shareholders;
(7) All transactions in which a warranty, maintenance or service contract, or similar agreement by which the vendor of the warranty, contract, or agreement agrees to repair or maintain the tangible personal property of the consumer is or is to be provided;
(8) The transfer of copyrighted motion picture films used solely for advertising purposes, except that the transfer of such films for exhibition purposes is not a sale.
(9) On and after August 1, 2003, all transactions by which tangible personal property is or is to be stored, except such property that the consumer of the storage holds for sale in the regular course of business.
Except as provided in this section, "sale" and "selling" do not include transfers of interest in leased property where the original lessee and the terms of the original lease agreement remain unchanged, or professional, insurance, or personal service transactions that involve the transfer of tangible personal property as an inconsequential element, for which no separate charges are made.
(C) "Vendor" means the person providing the service or by whom the transfer effected or license given by a sale is or is to be made or given and, for sales described in division (B)(3)(i) of this section, the telecommunications service vendor that provides the nine hundred telephone service; if two or more persons are engaged in business at the same place of business under a single trade name in which all collections on account of sales by each are made, such persons shall constitute a single vendor.
Physicians, dentists, hospitals, and veterinarians who are engaged in selling tangible personal property as received from others, such as eyeglasses, mouthwashes, dentifrices, or similar articles, are vendors. Veterinarians who are engaged in transferring to others for a consideration drugs, the dispensing of which does not require an order of a licensed veterinarian or physician under federal law, are vendors.
(D)(1) "Consumer" means the person for whom the service is provided, to whom the transfer effected or license given by a sale is or is to be made or given, to whom the service described in division (B)(3)(f) or (i) of this section is charged, or to whom the admission is granted.
(2) Physicians, dentists, hospitals, and blood banks operated by nonprofit institutions and persons licensed to practice veterinary medicine, surgery, and dentistry are consumers of all tangible personal property and services purchased by them in connection with the practice of medicine, dentistry, the rendition of hospital or blood bank service, or the practice of veterinary medicine, surgery, and dentistry. In addition to being consumers of drugs administered by them or by their assistants according to their direction, veterinarians also are consumers of drugs that under federal law may be dispensed only by or upon the order of a licensed veterinarian or physician, when transferred by them to others for a consideration to provide treatment to animals as directed by the veterinarian.
(3) A person who performs a facility management, or similar service contract for a contractee is a consumer of all tangible personal property and services purchased for use in connection with the performance of such contract, regardless of whether title to any such property vests in the contractee. The purchase of such property and services is not subject to the exception for resale under division (E)(1) of this section.
(4)(a) In the case of a person who purchases printed matter for the purpose of distributing it or having it distributed to the public or to a designated segment of the public, free of charge, that person is the consumer of that printed matter, and the purchase of that printed matter for that purpose is a sale.
(b) In the case of a person who produces, rather than purchases, printed matter for the purpose of distributing it or having it distributed to the public or to a designated segment of the public, free of charge, that person is the consumer of all tangible personal property and services purchased for use or consumption in the production of that printed matter. That person is not entitled to claim exemption under division (B)(42)(f) of section 5739.02 of the Revised Code for any material incorporated into the printed matter or any equipment, supplies, or services primarily used to produce the printed matter.
(c) The distribution of printed matter to the public or to a designated segment of the public, free of charge, is not a sale to the members of the public to whom the printed matter is distributed or to any persons who purchase space in the printed matter for advertising or other purposes.
(5) A person who makes sales of any of the services listed in division (B)(3) of this section is the consumer of any tangible personal property used in performing the service. The purchase of that property is not subject to the resale exception under division (E)(1) of this section.
(6) A person who engages in highway transportation for hire is the consumer of all packaging materials purchased by that person and used in performing the service, except for packaging materials sold by such person in a transaction separate from the service.
(E) "Retail sale" and "sales at retail" include all sales, except those in which the purpose of the consumer is to resell the thing transferred or benefit of the service provided, by a person engaging in business, in the form in which the same is, or is to be, received by the person.
(F) "Business" includes any activity engaged in by any person with the object of gain, benefit, or advantage, either direct or indirect. "Business" does not include the activity of a person in managing and investing the person's own funds.
(G) "Engaging in business" means commencing, conducting, or continuing in business, and liquidating a business when the liquidator thereof holds itself out to the public as conducting such business. Making a casual sale is not engaging in business.
(H)(1)(a) "Price," except as provided in divisions (H)(2) and (3) of this section, means the total amount of consideration, including cash, credit, property, and services, for which tangible personal property or services are sold, leased, or rented, valued in money, whether received in money or otherwise, without any deduction for any of the following:
(i) The vendor's cost of the property sold;
(ii) The cost of materials used, labor or service costs, interest, losses, all costs of transportation to the vendor, all taxes imposed on the vendor, including the tax imposed under Chapter 5751. of the Revised Code, and any other expense of the vendor;
(iii) Charges by the vendor for any services necessary to complete the sale;
(iv) On and after August 1, 2003, delivery charges. As used in this division, "delivery charges" means charges by the vendor for preparation and delivery to a location designated by the consumer of tangible personal property or a service, including transportation, shipping, postage, handling, crating, and packing.
(v) Installation charges;
(vi) Credit for any trade-in.
(b) "Price" includes consideration received by the vendor from a third party, if the vendor actually receives the consideration from a party other than the consumer, and the consideration is directly related to a price reduction or discount on the sale; the vendor has an obligation to pass the price reduction or discount through to the consumer; the amount of the consideration attributable to the sale is fixed and determinable by the vendor at the time of the sale of the item to the consumer; and one of the following criteria is met:
(i) The consumer presents a coupon, certificate, or other document to the vendor to claim a price reduction or discount where the coupon, certificate, or document is authorized, distributed, or granted by a third party with the understanding that the third party will reimburse any vendor to whom the coupon, certificate, or document is presented;
(ii) The consumer identifies the consumer's self to the seller as a member of a group or organization entitled to a price reduction or discount. A preferred customer card that is available to any patron does not constitute membership in such a group or organization.
(iii) The price reduction or discount is identified as a third party price reduction or discount on the invoice received by the consumer, or on a coupon, certificate, or other document presented by the consumer.
(c) "Price" does not include any of the following:
(i) Discounts, including cash, term, or coupons that are not reimbursed by a third party that are allowed by a vendor and taken by a consumer on a sale;
(ii) Interest, financing, and carrying charges from credit extended on the sale of tangible personal property or services, if the amount is separately stated on the invoice, bill of sale, or similar document given to the purchaser;
(iii) Any taxes legally imposed directly on the consumer that are separately stated on the invoice, bill of sale, or similar document given to the consumer. For the purpose of this division, the tax imposed under Chapter 5751. of the Revised Code is not a tax directly on the consumer, even if the tax or a portion thereof is separately stated.
(iv) Notwithstanding divisions (H)(1)(b)(i) to (iii) of this section, any discount allowed by an automobile manufacturer to its employee, or to the employee of a supplier, on the purchase of a new motor vehicle from a new motor vehicle dealer in this state.
(2) In the case of a sale of any new motor vehicle by a new motor vehicle dealer, as defined in section 4517.01 of the Revised Code, in which another motor vehicle is accepted by the dealer as part of the consideration received, "price" has the same meaning as in division (H)(1) of this section, reduced by the credit afforded the consumer by the dealer for the motor vehicle received in trade.
(3) In the case of a sale of any watercraft or outboard motor by a watercraft dealer licensed in accordance with section 1547.543 of the Revised Code, in which another watercraft, watercraft and trailer, or outboard motor is accepted by the dealer as part of the consideration received, "price" has the same meaning as in division (H)(1) of this section, reduced by the credit afforded the consumer by the dealer for the watercraft, watercraft and trailer, or outboard motor received in trade. As used in this division, "watercraft" includes an outdrive unit attached to the watercraft.
(I) "Receipts" means the total amount of the prices of the sales of vendors, provided that cash discounts allowed and taken on sales at the time they are consummated are not included, minus any amount deducted as a bad debt pursuant to section 5739.121 of the Revised Code. "Receipts" does not include the sale price of property returned or services rejected by consumers when the full sale price and tax are refunded either in cash or by credit.
(J) "Place of business" means any location at which a person engages in business.
(K) "Premises" includes any real property or portion thereof upon which any person engages in selling tangible personal property at retail or making retail sales and also includes any real property or portion thereof designated for, or devoted to, use in conjunction with the business engaged in by such person.
(L) "Casual sale" means a sale of an item of tangible personal property that was obtained by the person making the sale, through purchase or otherwise, for the person's own use and was previously subject to any state's taxing jurisdiction on its sale or use, and includes such items acquired for the seller's use that are sold by an auctioneer employed directly by the person for such purpose, provided the location of such sales is not the auctioneer's permanent place of business. As used in this division, "permanent place of business" includes any location where such auctioneer has conducted more than two auctions during the year.
(M) "Hotel" means every establishment kept, used, maintained, advertised, or held out to the public to be a place where sleeping accommodations are offered to guests, in which five or more rooms are used for the accommodation of such guests, whether the rooms are in one or several structures.
(N) "Transient guests" means persons occupying a room or rooms for sleeping accommodations for less than thirty consecutive days.
(O) "Making retail sales" means the effecting of transactions wherein one party is obligated to pay the price and the other party is obligated to provide a service or to transfer title to or possession of the item sold. "Making retail sales" does not include the preliminary acts of promoting or soliciting the retail sales, other than the distribution of printed matter which displays or describes and prices the item offered for sale, nor does it include delivery of a predetermined quantity of tangible personal property or transportation of property or personnel to or from a place where a service is performed, regardless of whether the vendor is a delivery vendor.
(P) "Used directly in the rendition of a public utility service" means that property that is to be incorporated into and will become a part of the consumer's production, transmission, transportation, or distribution system and that retains its classification as tangible personal property after such incorporation; fuel or power used in the production, transmission, transportation, or distribution system; and tangible personal property used in the repair and maintenance of the production, transmission, transportation, or distribution system, including only such motor vehicles as are specially designed and equipped for such use. Tangible personal property and services used primarily in providing highway transportation for hire are not used directly in the rendition of a public utility service. In this definition, "public utility" includes a citizen of the United States holding, and required to hold, a certificate of public convenience and necessity issued under 49 U.S.C. 41102.
(Q) "Refining" means removing or separating a desirable product from raw or contaminated materials by distillation or physical, mechanical, or chemical processes.
(R) "Assembly" and "assembling" mean attaching or fitting together parts to form a product, but do not include packaging a product.
(S) "Manufacturing operation" means a process in which materials are changed, converted, or transformed into a different state or form from which they previously existed and includes refining materials, assembling parts, and preparing raw materials and parts by mixing, measuring, blending, or otherwise committing such materials or parts to the manufacturing process. "Manufacturing operation" does not include packaging.
(T) "Fiscal officer" means, with respect to a regional transit authority, the secretary-treasurer thereof, and with respect to a county that is a transit authority, the fiscal officer of the county transit board if one is appointed pursuant to section 306.03 of the Revised Code or the county auditor if the board of county commissioners operates the county transit system.
(U) "Transit authority" means a regional transit authority created pursuant to section 306.31 of the Revised Code or a county in which a county transit system is created pursuant to section 306.01 of the Revised Code. For the purposes of this chapter, a transit authority must extend to at least the entire area of a single county. A transit authority that includes territory in more than one county must include all the area of the most populous county that is a part of such transit authority. County population shall be measured by the most recent census taken by the United States census bureau.
(V) "Legislative authority" means, with respect to a regional transit authority, the board of trustees thereof, and with respect to a county that is a transit authority, the board of county commissioners.
(W) "Territory of the transit authority" means all of the area included within the territorial boundaries of a transit authority as they from time to time exist. Such territorial boundaries must at all times include all the area of a single county or all the area of the most populous county that is a part of such transit authority. County population shall be measured by the most recent census taken by the United States census bureau.
(X) "Providing a service" means providing or furnishing anything described in division (B)(3) of this section for consideration.
(Y)(1)(a) "Automatic data processing" means processing of others' data, including keypunching or similar data entry services together with verification thereof, or providing access to computer equipment for the purpose of processing data.
(b) "Computer services" means providing services consisting of specifying computer hardware configurations and evaluating technical processing characteristics, computer programming, and training of computer programmers and operators, provided in conjunction with and to support the sale, lease, or operation of taxable computer equipment or systems.
(c) "Electronic information services" means providing access to computer equipment by means of telecommunications equipment for the purpose of either of the following:
(i) Examining or acquiring data stored in or accessible to the computer equipment;
(ii) Placing data into the computer equipment to be retrieved by designated recipients with access to the computer equipment.
(d) "Automatic data processing, computer services, or electronic information services" shall not include personal or professional services.
(2) As used in divisions (B)(3)(e) and (Y)(1) of this section, "personal and professional services" means all services other than automatic data processing, computer services, or electronic information services, including but not limited to:
(a) Accounting and legal services such as advice on tax matters, asset management, budgetary matters, quality control, information security, and auditing and any other situation where the service provider receives data or information and studies, alters, analyzes, interprets, or adjusts such material;
(b) Analyzing business policies and procedures;
(c) Identifying management information needs;
(d) Feasibility studies, including economic and technical analysis of existing or potential computer hardware or software needs and alternatives;
(e) Designing policies, procedures, and custom software for collecting business information, and determining how data should be summarized, sequenced, formatted, processed, controlled, and reported so that it will be meaningful to management;
(f) Developing policies and procedures that document how business events and transactions are to be authorized, executed, and controlled;
(g) Testing of business procedures;
(h) Training personnel in business procedure applications;
(i) Providing credit information to users of such information by a consumer reporting agency, as defined in the "Fair Credit Reporting Act," 84 Stat. 1114, 1129 (1970), 15 U.S.C. 1681a(f), or as hereafter amended, including but not limited to gathering, organizing, analyzing, recording, and furnishing such information by any oral, written, graphic, or electronic medium;
(j) Providing debt collection services by any oral, written, graphic, or electronic means.
The services listed in divisions (Y)(2)(a) to (j) of this section are not automatic data processing or computer services.
(Z) "Highway transportation for hire" means the transportation of personal property belonging to others for consideration by any of the following:
(1) The holder of a permit or certificate issued by this state or the United States authorizing the holder to engage in transportation of personal property belonging to others for consideration over or on highways, roadways, streets, or any similar public thoroughfare;
(2) A person who engages in the transportation of personal property belonging to others for consideration over or on highways, roadways, streets, or any similar public thoroughfare but who could not have engaged in such transportation on December 11, 1985, unless the person was the holder of a permit or certificate of the types described in division (Z)(1) of this section;
(3) A person who leases a motor vehicle to and operates it for a person described by division (Z)(1) or (2) of this section.
(AA)(1) "Telecommunications service" means the electronic transmission, conveyance, or routing of voice, data, audio, video, or any other information or signals to a point, or between or among points. "Telecommunications service" includes such transmission, conveyance, or routing in which computer processing applications are used to act on the form, code, or protocol of the content for purposes of transmission, conveyance, or routing without regard to whether the service is referred to as voice-over internet protocol service or is classified by the federal communications commission as enhanced or value-added. "Telecommunications service" does not include any of the following:
(a) Data processing and information services that allow data to be generated, acquired, stored, processed, or retrieved and delivered by an electronic transmission to a consumer where the consumer's primary purpose for the underlying transaction is the processed data or information;
(b) Installation or maintenance of wiring or equipment on a customer's premises;
(c) Tangible personal property;
(d) Advertising, including directory advertising;
(e) Billing and collection services provided to third parties;
(f) Internet access service;
(g) Radio and television audio and video programming services, regardless of the medium, including the furnishing of transmission, conveyance, and routing of such services by the programming service provider. Radio and television audio and video programming services include, but are not limited to, cable service, as defined in 47 U.S.C. 522(6), video service delivered by video service providers under sections 1332.21 to 1332.35 of the Revised Code, and audio and video programming services delivered by commercial mobile radio service providers, as defined in 47 C.F.R. 20.3;
(h) Ancillary service;
(i) Digital products delivered electronically, including software, music, video, reading materials, or ring tones.
(2) "Ancillary service" means a service that is associated with or incidental to the provision of telecommunications service, including conference bridging service, detailed telecommunications billing service, directory assistance, vertical service, and voice mail service. As used in this division:
(a) "Conference bridging service" means an ancillary service that links two or more participants of an audio or video conference call, including providing a telephone number. "Conference bridging service" does not include telecommunications services used to reach the conference bridge.
(b) "Detailed telecommunications billing service" means an ancillary service of separately stating information pertaining to individual calls on a customer's billing statement.
(c) "Directory assistance" means an ancillary service of providing telephone number or address information.
(d) "Vertical service" means an ancillary service that is offered in connection with one or more telecommunications services, which offers advanced calling features that allow customers to identify callers and manage multiple calls and call connections, including conference bridging service.
(e) "Voice mail service" means an ancillary service that enables the customer to store, send, or receive recorded messages. "Voice mail service" does not include any vertical services that the customer may be required to have in order to utilize the voice mail service.
(3) "900 service" means an inbound toll telecommunications service purchased by a subscriber that allows the subscriber's customers to call in to the subscriber's prerecorded announcement or live service, and which is typically marketed under the name "900" service and any subsequent numbers designated by the federal communications commission. "900 service" does not include the charge for collection services provided by the seller of the telecommunications service to the subscriber, or services or products sold by the subscriber to the subscriber's customer.
(4) "Prepaid calling service" means the right to access exclusively telecommunications services, which must be paid for in advance and which enables the origination of calls using an access number or authorization code, whether manually or electronically dialed, and that is sold in predetermined units of dollars of which the number declines with use in a known amount.
(5) "Prepaid wireless calling service" means a telecommunications service that provides the right to utilize mobile telecommunications service as well as other non-telecommunications services, including the download of digital products delivered electronically, and content and ancillary services, that must be paid for in advance and that is sold in predetermined units of dollars of which the number declines with use in a known amount.
(6) "Value-added non-voice data service" means a telecommunications service in which computer processing applications are used to act on the form, content, code, or protocol of the information or data primarily for a purpose other than transmission, conveyance, or routing.
(7) "Coin-operated telephone service" means a telecommunications service paid for by inserting money into a telephone accepting direct deposits of money to operate.
(8) "Customer" has the same meaning as in section 5739.034 of the Revised Code.
(BB) "Laundry and dry cleaning services" means removing soil or dirt from towels, linens, articles of clothing, or other fabric items that belong to others and supplying towels, linens, articles of clothing, or other fabric items. "Laundry and dry cleaning services" does not include the provision of self-service facilities for use by consumers to remove soil or dirt from towels, linens, articles of clothing, or other fabric items.
(CC) "Magazines distributed as controlled circulation publications" means magazines containing at least twenty-four pages, at least twenty-five per cent editorial content, issued at regular intervals four or more times a year, and circulated without charge to the recipient, provided that such magazines are not owned or controlled by individuals or business concerns which conduct such publications as an auxiliary to, and essentially for the advancement of the main business or calling of, those who own or control them.
(DD) "Landscaping and lawn care service" means the services of planting, seeding, sodding, removing, cutting, trimming, pruning, mulching, aerating, applying chemicals, watering, fertilizing, and providing similar services to establish, promote, or control the growth of trees, shrubs, flowers, grass, ground cover, and other flora, or otherwise maintaining a lawn or landscape grown or maintained by the owner for ornamentation or other nonagricultural purpose. However, "landscaping and lawn care service" does not include the providing of such services by a person who has less than five thousand dollars in sales of such services during the calendar year.
(EE) "Private investigation and security service" means the performance of any activity for which the provider of such service is required to be licensed pursuant to Chapter 4749. of the Revised Code, or would be required to be so licensed in performing such services in this state, and also includes the services of conducting polygraph examinations and of monitoring or overseeing the activities on or in, or the condition of, the consumer's home, business, or other facility by means of electronic or similar monitoring devices. "Private investigation and security service" does not include special duty services provided by off-duty police officers, deputy sheriffs, and other peace officers regularly employed by the state or a political subdivision.
(FF) "Information services" means providing conversation, giving consultation or advice, playing or making a voice or other recording, making or keeping a record of the number of callers, and any other service provided to a consumer by means of a nine hundred telephone call, except when the nine hundred telephone call is the means by which the consumer makes a contribution to a recognized charity.
(GG) "Research and development" means designing, creating, or formulating new or enhanced products, equipment, or manufacturing processes, and also means conducting scientific or technological inquiry and experimentation in the physical sciences with the goal of increasing scientific knowledge which may reveal the bases for new or enhanced products, equipment, or manufacturing processes.
(HH) "Qualified research and development equipment" means capitalized tangible personal property, and leased personal property that would be capitalized if purchased, used by a person primarily to perform research and development. Tangible personal property primarily used in testing, as defined in division (A)(4) of section 5739.011 of the Revised Code, or used for recording or storing test results, is not qualified research and development equipment unless such property is primarily used by the consumer in testing the product, equipment, or manufacturing process being created, designed, or formulated by the consumer in the research and development activity or in recording or storing such test results.
(II) "Building maintenance and janitorial service" means cleaning the interior or exterior of a building and any tangible personal property located therein or thereon, including any services incidental to such cleaning for which no separate charge is made. However, "building maintenance and janitorial service" does not include the providing of such service by a person who has less than five thousand dollars in sales of such service during the calendar year.
(JJ) "Employment service" means providing or supplying personnel, on a temporary or long-term basis, to perform work or labor under the supervision or control of another, when the personnel so provided or supplied receive their wages, salary, or other compensation from the provider or supplier of the employment service or from a third party that provided or supplied the personnel to the provider or supplier. "Employment service" does not include:
(1) Acting as a contractor or subcontractor, where the personnel performing the work are not under the direct control of the purchaser.
(2) Medical and health care services.
(3) Supplying personnel to a purchaser pursuant to a contract of at least one year between the service provider and the purchaser that specifies that each employee covered under the contract is assigned to the purchaser on a permanent basis.
(4) Transactions between members of an affiliated group, as defined in division (B)(3)(e) of this section.
(5) Transactions where the personnel so provided or supplied by a provider or supplier to a purchaser of an employment service are then provided or supplied by that purchaser to a third party as an employment service, except "employment service" does include the transaction between that purchaser and the third party.
(KK) "Employment placement service" means locating or finding employment for a person or finding or locating an employee to fill an available position.
(LL) "Exterminating service" means eradicating or attempting to eradicate vermin infestations from a building or structure, or the area surrounding a building or structure, and includes activities to inspect, detect, or prevent vermin infestation of a building or structure.
(MM) "Physical fitness facility service" means all transactions by which a membership is granted, maintained, or renewed, including initiation fees, membership dues, renewal fees, monthly minimum fees, and other similar fees and dues, by a physical fitness facility such as an athletic club, health spa, or gymnasium, which entitles the member to use the facility for physical exercise.
(NN) "Recreation and sports club service" means all transactions by which a membership is granted, maintained, or renewed, including initiation fees, membership dues, renewal fees, monthly minimum fees, and other similar fees and dues, by a recreation and sports club, which entitles the member to use the facilities of the organization. "Recreation and sports club" means an organization that has ownership of, or controls or leases on a continuing, long-term basis, the facilities used by its members and includes an aviation club, gun or shooting club, yacht club, card club, swimming club, tennis club, golf club, country club, riding club, amateur sports club, or similar organization.
(OO) "Livestock" means farm animals commonly raised for food or food production, and includes but is not limited to cattle, sheep, goats, swine, and poultry. "Livestock" does not include invertebrates, fish, amphibians, reptiles, horses, domestic pets, animals for use in laboratories or for exhibition, or other animals not commonly raised for food or food production.
(PP) "Livestock structure" means a building or structure used exclusively for the housing, raising, feeding, or sheltering of livestock, and includes feed storage or handling structures and structures for livestock waste handling.
(QQ) "Horticulture" means the growing, cultivation, and production of flowers, fruits, herbs, vegetables, sod, mushrooms, and nursery stock. As used in this division, "nursery stock" has the same meaning as in section 927.51 of the Revised Code.
(RR) "Horticulture structure" means a building or structure used exclusively for the commercial growing, raising, or overwintering of horticultural products, and includes the area used for stocking, storing, and packing horticultural products when done in conjunction with the production of those products.
(SS) "Newspaper" means an unbound publication bearing a title or name that is regularly published, at least as frequently as biweekly, and distributed from a fixed place of business to the public in a specific geographic area, and that contains a substantial amount of news matter of international, national, or local events of interest to the general public.
(TT) "Professional racing team" means a person that employs at least twenty full-time employees for the purpose of conducting a motor vehicle racing business for profit. The person must conduct the business with the purpose of racing one or more motor racing vehicles in at least ten competitive professional racing events each year that comprise all or part of a motor racing series sanctioned by one or more motor racing sanctioning organizations. A "motor racing vehicle" means a vehicle for which the chassis, engine, and parts are designed exclusively for motor racing, and does not include a stock or production model vehicle that may be modified for use in racing. For the purposes of this division:
(1) A "competitive professional racing event" is a motor vehicle racing event sanctioned by one or more motor racing sanctioning organizations, at which aggregate cash prizes in excess of eight hundred thousand dollars are awarded to the competitors.
(2) "Full-time employee" means an individual who is employed for consideration for thirty-five or more hours a week, or who renders any other standard of service generally accepted by custom or specified by contract as full-time employment.
(UU)(1) "Lease" or "rental" means any transfer of the possession or control of tangible personal property for a fixed or indefinite term, for consideration. "Lease" or "rental" includes future options to purchase or extend, and agreements described in 26 U.S.C. 7701(h)(1) covering motor vehicles and trailers where the amount of consideration may be increased or decreased by reference to the amount realized upon the sale or disposition of the property. "Lease" or "rental" does not include:
(a) A transfer of possession or control of tangible personal property under a security agreement or a deferred payment plan that requires the transfer of title upon completion of the required payments;
(b) A transfer of possession or control of tangible personal property under an agreement that requires the transfer of title upon completion of required payments and payment of an option price that does not exceed the greater of one hundred dollars or one per cent of the total required payments;
(c) Providing tangible personal property along with an operator for a fixed or indefinite period of time, if the operator is necessary for the property to perform as designed. For purposes of this division, the operator must do more than maintain, inspect, or set-up the tangible personal property.
(2) "Lease" and "rental," as defined in division (UU) of this section, shall not apply to leases or rentals that exist before June 26, 2003.
(3) "Lease" and "rental" have the same meaning as in division (UU)(1) of this section regardless of whether a transaction is characterized as a lease or rental under generally accepted accounting principles, the Internal Revenue Code, Title XIII of the Revised Code, or other federal, state, or local laws.
(VV) "Mobile telecommunications service" has the same meaning as in the "Mobile Telecommunications Sourcing Act," Pub. L. No. 106-252, 114 Stat. 631 (2000), 4 U.S.C.A. 124(7), as amended, and, on and after August 1, 2003, includes related fees and ancillary services, including universal service fees, detailed billing service, directory assistance, service initiation, voice mail service, and vertical services, such as caller ID and three-way calling.
(WW) "Certified service provider" has the same meaning as in section 5740.01 of the Revised Code.
(XX) "Satellite broadcasting service" means the distribution or broadcasting of programming or services by satellite directly to the subscriber's receiving equipment without the use of ground receiving or distribution equipment, except the subscriber's receiving equipment or equipment used in the uplink process to the satellite, and includes all service and rental charges, premium channels or other special services, installation and repair service charges, and any other charges having any connection with the provision of the satellite broadcasting service.
(YY) "Tangible personal property" means personal property that can be seen, weighed, measured, felt, or touched, or that is in any other manner perceptible to the senses. For purposes of this chapter and Chapter 5741. of the Revised Code, "tangible personal property" includes motor vehicles, electricity, water, gas, steam, and prewritten computer software.
(ZZ) "Direct mail" means printed material delivered or distributed by United States mail or other delivery service to a mass audience or to addressees on a mailing list provided by the consumer or at the direction of the consumer when the cost of the items are not billed directly to the recipients. "Direct mail" includes tangible personal property supplied directly or indirectly by the consumer to the direct mail vendor for inclusion in the package containing the printed material. "Direct mail" does not include multiple items of printed material delivered to a single address.
(AAA) "Computer" means an electronic device that accepts information in digital or similar form and manipulates it for a result based on a sequence of instructions.
(BBB) "Computer software" means a set of coded instructions designed to cause a computer or automatic data processing equipment to perform a task.
(CCC) "Delivered electronically" means delivery of computer software from the seller to the purchaser by means other than tangible storage media.
(DDD) "Prewritten computer software" means computer software, including prewritten upgrades, that is not designed and developed by the author or other creator to the specifications of a specific purchaser. The combining of two or more prewritten computer software programs or prewritten portions thereof does not cause the combination to be other than prewritten computer software. "Prewritten computer software" includes software designed and developed by the author or other creator to the specifications of a specific purchaser when it is sold to a person other than the purchaser. If a person modifies or enhances computer software of which the person is not the author or creator, the person shall be deemed to be the author or creator only of such person's modifications or enhancements. Prewritten computer software or a prewritten portion thereof that is modified or enhanced to any degree, where such modification or enhancement is designed and developed to the specifications of a specific purchaser, remains prewritten computer software; provided, however, that where there is a reasonable, separately stated charge or an invoice or other statement of the price given to the purchaser for the modification or enhancement, the modification or enhancement shall not constitute prewritten computer software.
(EEE)(1) "Food" means substances, whether in liquid, concentrated, solid, frozen, dried, or dehydrated form, that are sold for ingestion or chewing by humans and are consumed for their taste or nutritional value. "Food" does not include alcoholic beverages, dietary supplements, soft drinks, or tobacco.
(2) As used in division (EEE)(1) of this section:
(a) "Alcoholic beverages" means beverages that are suitable for human consumption and contain one-half of one per cent or more of alcohol by volume.
(b) "Dietary supplements" means any product, other than tobacco, that is intended to supplement the diet and that is intended for ingestion in tablet, capsule, powder, softgel, gelcap, or liquid form, or, if not intended for ingestion in such a form, is not represented as conventional food for use as a sole item of a meal or of the diet; that is required to be labeled as a dietary supplement, identifiable by the "supplement facts" box found on the label, as required by 21 C.F.R. 101.36; and that contains one or more of the following dietary ingredients:
(i) A vitamin;
(ii) A mineral;
(iii) An herb or other botanical;
(iv) An amino acid;
(v) A dietary substance for use by humans to supplement the diet by increasing the total dietary intake;
(vi) A concentrate, metabolite, constituent, extract, or combination of any ingredient described in divisions (EEE)(2)(b)(i) to (v) of this section.
(c) "Soft drinks" means nonalcoholic beverages that contain natural or artificial sweeteners. "Soft drinks" does not include beverages that contain milk or milk products, soy, rice, or similar milk substitutes, or that contains greater than fifty per cent vegetable or fruit juice by volume.
(d) "Tobacco" means cigarettes, cigars, chewing or pipe tobacco, or any other item that contains tobacco.
(FFF) "Drug" means a compound, substance, or preparation, and any component of a compound, substance, or preparation, other than food, dietary supplements, or alcoholic beverages that is recognized in the official United States pharmacopoeia, official homeopathic pharmacopoeia of the United States, or official national formulary, and supplements to them; is intended for use in the diagnosis, cure, mitigation, treatment, or prevention of disease; or is intended to affect the structure or any function of the body.
(GGG) "Prescription" means an order, formula, or recipe issued in any form of oral, written, electronic, or other means of transmission by a duly licensed practitioner authorized by the laws of this state to issue a prescription.
(HHH) "Durable medical equipment" means equipment, including repair and replacement parts for such equipment, that can withstand repeated use, is primarily and customarily used to serve a medical purpose, generally is not useful to a person in the absence of illness or injury, and is not worn in or on the body. "Durable medical equipment" does not include mobility enhancing equipment.
(III) "Mobility enhancing equipment" means equipment, including repair and replacement parts for such equipment, that is primarily and customarily used to provide or increase the ability to move from one place to another and is appropriate for use either in a home or a motor vehicle, that is not generally used by persons with normal mobility, and that does not include any motor vehicle or equipment on a motor vehicle normally provided by a motor vehicle manufacturer. "Mobility enhancing equipment" does not include durable medical equipment.
(JJJ) "Prosthetic device" means a replacement, corrective, or supportive device, including repair and replacement parts for the device, worn on or in the human body to artificially replace a missing portion of the body, prevent or correct physical deformity or malfunction, or support a weak or deformed portion of the body. As used in this division, "prosthetic device" does not include corrective eyeglasses, contact lenses, or dental prosthesis.
(KKK)(1) "Fractional aircraft ownership program" means a program in which persons within an affiliated group sell and manage fractional ownership program aircraft, provided that at least one hundred airworthy aircraft are operated in the program and the program meets all of the following criteria:
(a) Management services are provided by at least one program manager within an affiliated group on behalf of the fractional owners.
(b) Each program aircraft is owned or possessed by at least one fractional owner.
(c) Each fractional owner owns or possesses at least a one-sixteenth interest in at least one fixed-wing program aircraft.
(d) A dry-lease aircraft interchange arrangement is in effect among all of the fractional owners.
(e) Multi-year program agreements are in effect regarding the fractional ownership, management services, and dry-lease aircraft interchange arrangement aspects of the program.
(2) As used in division (KKK)(1) of this section:
(a) "Affiliated group" has the same meaning as in division (B)(3)(e) of this section.
(b) "Fractional owner" means a person that owns or possesses at least a one-sixteenth interest in a program aircraft and has entered into the agreements described in division (KKK)(1)(e) of this section.
(c) "Fractional ownership program aircraft" or "program aircraft" means a turbojet aircraft that is owned or possessed by a fractional owner and that has been included in a dry-lease aircraft interchange arrangement and agreement under divisions (KKK)(1)(d) and (e) of this section, or an aircraft a program manager owns or possesses primarily for use in a fractional aircraft ownership program.
(d) "Management services" means administrative and aviation support services furnished under a fractional aircraft ownership program in accordance with a management services agreement under division (KKK)(1)(e) of this section, and offered by the program manager to the fractional owners, including, at a minimum, the establishment and implementation of safety guidelines; the coordination of the scheduling of the program aircraft and crews; program aircraft maintenance; program aircraft insurance; crew training for crews employed, furnished, or contracted by the program manager or the fractional owner; the satisfaction of record-keeping requirements; and the development and use of an operations manual and a maintenance manual for the fractional aircraft ownership program.
(e) "Program manager" means the person that offers management services to fractional owners pursuant to a management services agreement under division (KKK)(1)(e) of this section.
Section 2. That existing sections 153.64, 4939.01, 4939.03, 4939.04, 4939.05, 4939.08, and 5739.01 and sections 505.90, 505.91, and 505.92 of the Revised Code are hereby repealed.
Section 3.  Section 5739.01 of the Revised Code is presented in this act as a composite of the section as amended by both Sub. H.B. 293 and Am. Sub. H.B. 699 of the 126th General Assembly. The General Assembly, applying the principle stated in division (B) of section 1.52 of the Revised Code that amendments are to be harmonized if reasonably capable of simultaneous operation, finds that the composite is the resulting version of the section in effect prior to the effective date of the section as presented in this act.
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