[Adopted 9-6-2016 by Ord. No. 04-16]
Terms used in this article shall have the following meanings, whether or not the terms are capitalized. Unless otherwise expressly stated, terms not defined in this article shall be construed consistent with Title 47 of the United States Code and, if not defined therein, with their common and ordinary meaning.
- A person that (directly or indirectly) owns or controls, is owned or controlled by, or is under common ownership or control with another person.
- Any device used for the transmission of radio, television, wireless telephone, pager, commercial mobile service, or any other wireless signals.
- Facilities consisting of a set of closed transmission paths and associated signal generation, reception, and control equipment that is designed to provide service which includes video programming and which is provided to multiple subscribers within the Township, but such term does not include:
- A. A facility that serves only to retransmit the television signals of one or more television broadcast stations;
- B. A facility that serves subscribers without using any right-of-way;
- C. A facility of a common carrier which is subject, in whole or in part, to the provisions of Title II of the Communications Act of 1934, as amended, except that such facility shall be considered a cable system [other than for purposes of 47 U.S.C. § 541(c)], to the extent such facility is used in the transmission of video programming directly to subscribers, unless the extent of such use is solely to provide interactive on-demand services;
- D. An open video system that complies with 47 U.S.C. § 573; or
- E. Any facilities of any electric utility used solely for operating its electric utility system.
- COMMERCIAL COMMUNICATIONS FACILITY
- The antenna, nodes, control boxes, towers, poles, conduits, ducts, pedestals, electronics and other equipment used for the purpose of transmitting, receiving, distributing, providing, or accommodating wireless communications services.
- COMMUNICATIONS ACT
- The Communications Act of 1934, as amended as of the time of enactment of this article.
- Any tangible asset used to install, repair, or maintain a facility in the right-of-way.
- Conduit, pipes, cables, wires, lines, towers, optic fiber, poles, associated equipment and appurtenances, and any other facilities located in the right-of-way and designed, constructed, and/or used, by telecommunications providers, public utilities, or other persons for transmitting, transporting, or distributing communications, telecommunications, electricity, natural gas or manufactured gas, oil, gasoline, steam, or any other form of energy, signal or substance. The term "facility" or "facilities" may include "commercial communications facilities" as defined below.
- A person who enjoys a nonexclusive privilege to occupy or use a public right-of-way to provide nonexempt Service under this article and who is in continuous compliance with this article.
- A. All gross revenue of the grantee or any affiliate of the grantee derived from the use or occupancy of the right-of-way for the provision of nonexempt services to persons having a residence or place of business in the Township. "Gross revenue" shall include amounts earned, regardless of:
- (1) Whether the amounts are paid in cash, in trade, or by means of some other benefit to the grantee or its affiliates;
- (2) Whether the services with which the revenue is associated are provided at cost or the revenue amount can be matched against an equivalent expenditure; and/or
- (3) How the amounts are initially recorded by the grantee or its affiliates.
- B. "Gross revenue" shall not be a net of:
- (1) Expense, including but not limited to any operating expense; capital expense; sales expense; or commission;
- (2) Any accrual, including, without limitation, any accrual for commissions; or
- (3) Any other expenditure, regardless of whether such expense, deduction, accrual, or expenditure reflects a cash payment.
- C. "Gross revenue" shall not be double counted, viz., gross revenue which has been included as gross revenue of both the grantee and an affiliate but which sum is included in gross revenue due solely to a transfer of funds between the grantee and the affiliate shall not be counted for purposes of determining gross revenue.
- NONTOWER COMMERCIAL COMMUNICATIONS FACILITY (NONTOWER CCF)
- All nontower wireless communications facilities, including but not limited to, antennas and related equipment. Nontower CCF shall not include support structures for antennas and related equipment.
- Corporations, companies, associations, joint-stock companies, firms, partnerships, limited-liability companies, and other entities; municipal, industrial development, housing, redevelopment, and other authorities and corporations established pursuant to statutes of the Commonwealth of Pennsylvania; and individuals, provided that person does not include or apply to the Township or to any department or agency of the Township.
- RIGHT-OF-WAY, RIGHTS-OF-WAY or ROW
- The surface of and space above and below any real property in the Township in which the Township has a regulatory interest, or interest as a trustee for the public, as such interests now or hereafter exist, including, but not limited to, all streets, highways, avenues, roads, alleys, sidewalks, tunnels, viaducts, bridges, skyways, or any other public place, area or property under the control of the Township, and any unrestricted public or utility easements established, dedicated, platted, improved or devoted for utility purposes, but excluding lands other than streets that are owned by the Township. The phrase "in the right(s)-of-way" means "in, on, over, along, above and/or under the right(s)-of-way."
- Any telecommunications service, cable service video programming service, information service, utility service (including, but not limited to, electric, gas, water, or steam service), or other form of service provided by means of facilities located in the right-of-way.
- A strip of land or part thereof within the right-of-way, whether dedicated or not, that is intended or used for vehicular and pedestrian traffic. The phrase "in the (a) street(s)" means "in, on, over, along, above and/or under the (a) street(s)."
- Any telecommunications system, or integral part thereof.
- The transmission, between or among points specified by the user, of information of the user's choosing, without change in the form or content of the information as sent and received.
- TOWER-BASED COMMERCIAL COMMUNICATIONS FACILITY (TOWER-BASED CCF)
- Any structure that is used for the purpose of supporting one or more antennas, including, but not limited to, self-supporting lattice towers, guy towers and monopoles, utility poles and light poles and hub facilities for distributed antenna systems.
- The Township of Bethlehem, Northampton County, Pennsylvania.
- TOWNSHIP CODE or CODE
- The Code of Ordinances of the Township of Bethlehem, Northampton County, Pennsylvania.
- TOWNSHIP ENGINEER
- The person engaged by the Township to perform engineering services on behalf of the Township.
- TOWNSHIP PROPERTY
- All real property now or hereafter owned by the Township, whether in fee ownership or other interest.
- TOWNSHIP WORK
- All construction work performed by the Township or any of its departments, either with its own personnel or under contract, including repair, alteration, replacement, or maintenance of facilities owned, operated, maintained, or controlled by the Township or for which the Township is responsible.
- UNDERGROUND FACILITIES
- Utility and telecommunications facilities located under the surface of the ground, excluding the underground foundations or supports for tower-based facilities.
- WIRELESS COMMUNICATIONS FACILITY(IES)
- The antennas, nodes, control boxes, towers, poles, conduits, ducts, pedestals, electronics and other equipment used for the purpose of transmitting, receiving, distributing, providing or accommodating wireless telecommunications services.
- WIRELESS SUPPORT STRUCTURE
- A freestanding structure, such as a tower-based CCF or any other support structure that could support the placement or installation of a commercial communications facility.
Editor's Note: See 47 U.S.C. § 151 et seq.
Each person, other than on a transitory basis, who occupies or uses or seeks to occupy or use the right-of-way to provide a nonexempt service to persons, residences or businesses within the Township, or places any equipment or facility in a right-of-way other than on a transitory basis, including persons with installation and maintenance responsibilities by lease, sublease or assignment, must register with the Township. A completed provider certification form (included as Appendix A) and associated documents as outlined on the form shall be submitted to and accepted by the Township.
Editor's Note: Appendix A is on file in the Township offices.
It shall be unlawful for any person to construct, repair, remove, relocate or perform any work on or use any facilities or any part thereof in a right-of-way unless in compliance with these rights-of-way management provisions. Continuous compliance with these right-of-way provisions grants to grantee a nonexclusive privilege to construct, repair, remove, relocate or perform any work on or use any facilities or any part thereof in the rights-of-way within the Township and to occupy or use the rights-of-way for the purpose of providing nonexempt service to persons, residences or businesses within the Township.
Exemptions. These right-of-way management provisions shall not apply to the occupation or use of the right-of-way to provide:
The transportation of passengers or property or both as a common carrier by means of elevated street railway, inclined plan railway, railroad, street railway or underground street, railway, tackles-trolley omnibus or by any combination of such means.
The transportation of artificial or natural gas, electricity, petroleum or petroleum products or water or any combination of such substances for the public.
The production, generation, manufacture, transmission, storage, distribution or furnishing of natural or artificial gas, electricity, steam, air-conditioning or refrigerating service or any combination thereof to or for the public.
The diverting, developing, pumping, impounding, distributing or furnishing of water from either surface or subsurface sources to or for the public.
The collection, treatment or disposal of sewage for the public.
The conveyance or transmission of messages or communications except as set forth in § 225-30C by telephone or telegraph for the public.
The diverting, pumping or impounding of water for the development or furnishing of hydroelectric power to or for the public.
The transportation of oxygen or nitrogen, or both, by pipeline or conduit for the public.
Commercial communications facilities not exempt. Wireless telecommunications facilities proposed within rights-of-way are not exempt and are subject to the requirements of this article. This article does not exempt any person or corporation who or which furnishes, installs or maintains wireless telecommunication facilities, including the installation of relay stations and facilities, communications facilities, aerials, antennas and aerial masts which are regulated pursuant to other regulations or ordinances of the Township, as amended, and as may further be revised in the future.
This article does not authorize a person to provide cable service. A person seeking to provide cable service must obtain permission from the Township under separate legislation of the Township.
This article does not authorize the grantee to attach to any pole or other structure in the right-of-way, devices for the intentional transmission or radiation of radio frequency emissions or energy by any means now known or hereafter developed.
Co-location of facilities. Facilities may be co-located on wireless support structures and other facilities, including poles that exist on or before the enactment date of this article, including aboveground facilities. All co-located facilities are subject to the following requirements: If the eligible facilities request or a nontower commercial communication facility or base station is a co-location, modification, or a replacement that substantially changes the existing wireless support structure and is located in the right-of-way, then the requirements contained herein will be applicable.
Co-location. Nontower CCFs in the right-of-way shall be located on existing poles/base stations, such as existing utility poles or light poles or other wireless support structures.
Nontower CCF installations located above the surface grade in the public right-of-way, including, but not limited to, those on streetlights and joint utility poles, shall consist of equipment components that are no more than six feet in height and that are compatible in scale and proportion to the structures upon which they are mounted. All equipment shall be the smallest and least visibly intrusive equipment feasible.
Antennas and all support equipment shall be treated to match the supporting structure. Nontower CCFs and accompanying equipment shall be painted, or otherwise coated, to be visually compatible with the support structure upon which they are mounted.
Equipment location. Nontower CCFs and accessory equipment shall be located so as not to cause any physical or visual obstruction to pedestrian or vehicular traffic, or to otherwise create safety hazards to pedestrians and/or motorists or to otherwise inconvenience public use of the right-of-way as determined by the Township. In addition:
In no case shall ground-mounted equipment, walls, or landscaping be located within 18 inches of the face of the curb.
Ground-mounted equipment shall be located underground. In the event an applicant can demonstrate, to the satisfaction of the Township Engineer, that ground-mounted equipment cannot be placed underground, then all such equipment shall be screened, to the fullest extent possible, through the use of landscaping or other decorative features to the satisfaction of the Township.
Required electrical meter cabinets shall be screened to blend in with the surrounding area to the satisfaction of the Township.
Any graffiti on the nontower CCFs or on any accessory equipment shall be removed at the sole expense of the owner within 10 business days of notice of the existence of the graffiti.
Any underground vaults related to nontower CCFs shall be reviewed and approved by the Township.
Time, place and manner. The Township shall determine the time, place and manner of construction, maintenance, repair and/or removal of all nontower CCFs in the right-of-way based on public safety, traffic management, physical burden on the right-of-way, and related considerations. For public utilities, the time, place and manner requirements shall be consistent with the police powers of the Township and the requirements of the public utility Code.
Relocation or removal of facilities. Within 60 days following written notice from the Township, or such longer period as the Township determines is reasonably necessary or such shorter period in the case of an emergency, an owner of a nontower CCF in the right-of-way shall, at its own expense, temporarily or permanently remove, relocate, change or alter the position of any nontower CCF when the Township, consistent with its police powers and applicable public utility Commission regulations, shall have determined that such removal, relocation, change or alteration is reasonably necessary under the following circumstances:
The construction, repair, maintenance or installation of any Township or other public improvement in the right-of-way;
The operations of the Township or other governmental entity in the right-of-way;
Vacation of a street or road or the release of a utility easement; or
An emergency as determined by the Township.
Installation of new facilities. Tower-based facilities may be installed aboveground subsequent to the enactment of this article if they are installed within the right-of-way in accordance with the following requirements. The following regulations shall apply to tower-based commercial communications facilities located in the right-of-way:
No tower-based CCF shall be located within the existing or future right-of-way of any secondary street as designated by the Township;
Tower-based CCFs are permitted in all other existing rights-of-way;
The applicant shall provide proof of authorization from the owner of the right(s)-of-way for the location(s) of the proposed tower(s); and
The application shall be accompanied by plans and other materials, as required by this article, describing the use and locations proposed. Such plans and other materials shall provide sufficient basis for evaluating the applicant's requests.
Gap in coverage. An applicant for a tower-based CCF must demonstrate that a significant gap in wireless coverage exists with respect to all wireless operators in the applicable area and that the type of tower-based CCF being proposed is the least intrusive means by which to fill that gap in wireless coverage. The existence or nonexistence of a gap in wireless coverage shall be a factor in the Township's decision on an application for approval of tower-based CCFs in the right-of-way.
Height. Any tower-based CCF in right-of-way shall be designed at the minimum functional height and shall not exceed a maximum total height of 50 feet, which height shall include all subsequent additions or alterations. All tower-based CCF applicants must submit documentation to the Township justifying the total height of the structure.
Co-location. An application for a new tower-based CCF in the right-of-way shall not be approved unless the Township finds that the proposed wireless communications equipment cannot be accommodated on an existing structure, such as a utility pole or traffic light pole. Any applications for approval of a tower-based CCF shall include a comprehensive inventory of all existing towers and other suitable structures within a one-mile radius from the point of the proposed tower, unless the applicant can show to the satisfaction of the Township that a different distance is more reasonable, and shall demonstrate conclusively why an existing tower or other suitable structure cannot be utilized.
Time, place and manner. The Township shall determine the time, place and manner of construction, maintenance, repair and/or removal of all tower-based CCFs in the right-of-way based on public safety, traffic management, physical burden on the right-of-way, and related considerations. For public utilities, the time, place and manner requirements shall be consistent with the police powers of the Township and the requirements of the public utility Code.
Equipment location. Tower-based CCFs and accessory equipment shall be located so as not to cause any physical or visual obstruction to pedestrian or vehicular traffic, or to otherwise create safety hazards to pedestrians and/or motorists or to otherwise inconvenience public use of the right-of-way as determined by the Township. In addition:
In no case shall ground-mounted equipment, walls, or landscaping be located within 18 inches of the face of the curb;
Ground-mounted equipment that cannot be placed underground shall be screened, to the fullest extent possible, through the use of landscaping or other decorative features to the satisfaction of the Township;
Required electrical meter cabinets shall be screened to blend in with the surrounding areas to the satisfaction of the Township;
Any graffiti on the tower or on any accessory equipment shall be removed at the sole expense of the owner within 10 business days of notice of the existence of the graffiti; and
Any underground vaults related to tower-based CCFs shall be reviewed and approved by the Township.
The tower-based CCF shall employ the most current standards available in an effort to appropriately blend into the surrounding environment and minimize aesthetic impact;
Any height extension to an existing tower-based CCF shall require prior approval of the Township, and shall not increase the overall height of the tower-based CCF to more than 50 feet; and
Any proposed tower-based CCF shall be designed structurally, electrically, and in all respects to accommodate both the CCF applicant's antennas and comparable antennas for future users.
Additional antennas. As a condition of approval for all tower-based CCFs in the right-of-way, the CCF applicant shall provide the Township with a written commitment that it will allow other service providers to co-locate antennas on tower-based CCFs where technically and economically feasible. The owner of a tower-based CCF shall not install any additional antennas without obtaining the prior written approval of the Township.
Relocation or removal of facilities. Within 60 days following written notice from the Township, or such longer period as the Township determines is reasonably necessary or such shorter period in the case of an emergency, an owner of tower-based CCFs in the right-of-way shall, at its own expense, temporarily or permanently remove relocate, change or alter the position of any tower-based CCF when the Township, consistent with its police powers and applicable public utility Commission regulations, shall determine that such removal, relocation, change or alteration is reasonably necessary under the following circumstances:
The construction, repair, maintenance or installation of any Township or other public improvement in the right-of-way;
The operations of the Township or other governmental entity in the right-of-way;
Vacation of a street or road or the release of a utility easement; or
An emergency as determined by the Township.
The authorization of the installation of facilities hereunder shall not exempt an applicant from compliance with the requirements of any other ordinance of the Township, including the provisions of the Township's Zoning Ordinance provisions dealing with commercial communications facilities.
All facilities and equipment installed or erected by the grantee pursuant to the terms hereof shall be located so as to cause a minimum of interference with the proper use of rights-of-way and with the rights and reasonable convenience of property owners who own property that adjoins any said rights-of-way.
If during the course of the grantee's construction, operation, and/or maintenance of its facilities and equipment there occurs a disturbance of any right-of-way by the grantee, the grantee shall, at its expense, replace and restore such right-of-way to a condition which existed immediately prior to such disturbance. If the grantee excavates the surface of any right-of-way, the grantee shall be responsible for restoration of the right-of-way and its surface within the area affected by the excavation. The Township reserves the right, after providing notice to the grantee, to remove and/or repair any work done by the grantee which is inadequate. The reasonable cost thereof, including the cost of inspection and supervision, shall be paid by the grantee. All excavations made by the grantee in the right-of-way shall be properly safeguarded for the prevention of accidents.
The grantee shall notify the Township and all affected property owners regarding the grantee's need to trim trees or other natural growth upon and overhanging rights-of-way so as to prevent the branches of such trees from coming in contact with its facilities or equipment. Trimming shall be limited to the area required to clear its facilities or equipment. The Township shall be notified, in writing, 48 hours in advance of any tree or shrub trimming or clearing, and at the discretion of the Township, appoint a designee to inspect and monitor trimming and clearing operations.
All such work in the rights-of-way shall be performed in accordance with applicable safety codes and technical requirements.
Prior to beginning any construction of facilities, the grantee shall provide the Township with a written construction schedule for work in the right-of-way which schedule shall be updated as changed. Upon completion of initial construction and upon completion of construction of any modification to its facilities, the grantee shall provide the Township with a map showing the location of its installed facilities, in the rights-of-way. Such maps shall be provided in both paper forms, as well as in an electronic format for the placement on the Township's GIS system. Annually thereafter, the grantee shall provide a map to the Township showing the location of the grantee's facilities in the rights-of-way on a scale of 150 per inch or whatever standard scale the Township adopts for general use.
The grantee may make excavations in rights-of way for any facility subject to obtaining any applicable excavation permits from the Township. Prior to doing such work, the grantee must apply for, and obtain, appropriate permits from the Township, and give appropriate notices to any other licensees and/or permittees of the Township, and/or other units of government owning or maintaining facilities which may be affected by the proposed excavation.
Nothing in the Article shall be construed to prevent the Township or other agency of government or municipal authority from constructing sewers, grading, paving, repairing and/or altering any street and/or laying down, repairing and/or removing water mains and/or constructing and/or establishing any other public work or improvement. If any of the grantee's facilities or equipment interferes with the construction or repair of any street or public improvement, including construction, repair or removal of a sewer or water main, the grantee's facilities or equipment shall be removed or replaced in the manner the respective Township or other agency of government or municipal authority shall direct. Any and all such removal or replacement shall be at the expense of the grantee. Should the grantee fail to remove, adjust or relocate its facilities by the date established by the Township or other agency of government or municipal authority, the Township or other agency of government or municipal authority may cause and/or effect such removal, adjustment or relocation, and the expense thereof shall be paid by the grantee, including all reasonable costs and expenses incurred by the Township or other agency of government or municipal authority due to the grantee's delay.
Compensation for right-of-way use. Every grantee registered with the Township is subject to the Township's right to fix annually a fair and reasonable compensation to be paid for use and occupancy of the right-of-way. Such compensation for right-of-way use shall be directly related to the Township's actual right-of-way management costs, including, but not limited to, the costs of issuing the permit and the administration and performance of all reviewing, inspecting, permitting, supervising and other right-of-way management activities by the Township; and
Annual right-of-way management fee. Each grantee that is not exempt shall pay an annual fee to the Township to compensate the Township for its costs incurred in connection with reviewing, permitting, inspecting and supervising the ongoing use and occupancy of the right-of-way. The annual right-of-way management fee shall be determined by the Township and authorized by resolution of Township Board of Commissioners and shall be based on the Township's actual right-of-way management costs as applied to such grantee. This annual right-of-way management fee shall not be adjusted for at least two years from the effective date of this article, except for purposes of inflation as determined by the National Consumer Price Index published by the United States Department of Labor. Any adjustments to the fee subsequent to two years from the effective date shall be authorized by resolution of Township Board of Commissioners, shall be based on the Township's actual right-of-way management costs as applied to such grantee and shall be implemented only after providing at least 30 days' prior written notice to all then-current grantees. The costs recovered under this subsection shall not include costs recovered by any other fee provided in this article or in related chapters.
The grantee shall save the Township, its agents, employees and elected and appointed officials harmless from and against all claims, damages, losses and expenses, including reasonable attorney's fees, sustained on account of any suit, judgment, execution, claim or demand whatsoever arising out of the construction, leasing, operation or maintenance of the grantee's equipment, facilities, and services specified by this article, whether or not any act or omission complained of is authorized, allowed and/or prohibited by this article and the rights granted thereunder.
The grantee shall obtain and maintain in full force and effect throughout the term of this article insurance with an insurance company licensed to do business and doing business in the Commonwealth of Pennsylvania and acceptable to the Township. All companies will be required to be rated A-VII or better by A.M. Best or A or better by Standard and Poors. The grantee shall provide the Township with proof of such insurance so required.
The grantee shall obtain and maintain in full force and effect, at the grantee's sole expense, insurance coverage in the following types and minimum amounts:
The Township shall receive, without expense, copies of certificates of insurance evidencing coverage stated above.
The grantee agrees that with respect to the above-required insurance, all insurance certificates will contain the following required provisions.
Name the Township and its officers, employees, board members and elected and appointed officials as additional insured parties (as the interests of each insured may appear) as to all applicable coverage (except workers' compensation).
Provide 60 days' written notice to the Township for cancellation, nonrenewal, or material change.
Provide that all provisions of this article concerning liability, duty, and standard of care, including the indemnity provisions, shall be underwritten by contractual coverage sufficient to include such obligations within applicable policies, subject to policy terms and conditions.
Companies issuing the insurance policies shall have no recourse against the Township for payment of any premiums or assessments which all are set at the sole risk of the grantee. Insurance policies obtained by the grantee shall provide that the issuing company waives all right of recovery by way of subrogation against the Township in connection with any damage covered by these policies.
The grantee shall obtain and maintain, at its sole cost and expense, and file with the Township, a corporate surety bond with a surety company authorized to do business in the Commonwealth of Pennsylvania in the amount of 15% of the grantee's estimated costs to secure the grantee's performance of its obligations and faithful adherence to all requirements of this article.
No action, proceeding or exercise of right with respect to such bond shall affect the Township's rights to demand full and faithful performance under this article or limit the grantee's liability for damages.
The bond shall contain the following endorsement: "It is hereby understood and agreed that this bond may not be cancelled by the surety nor any intention not to renew be exercised by the surety until 60 days after receipt by the Township of Bethlehem, by registered mail, of written notice of such intent."
All expenses of the above-noted insurance and bond shall be paid by the grantee.
The insurance policies mentioned herein shall contain an endorsement stating the following:
Neither the provisions of this article nor any insurance accepted by the Township pursuant hereto, nor any damages recovered by the Township thereunder, shall be construed to excuse faithful performance by the grantee and/or limit the liability of the grantee under the article issued hereunder and/or for damages, either to the full amount of the bond or otherwise.
General. In addition to all other rights, remedies and powers reserved and/or retained by the Township under this rights-of-way article or otherwise, the Township reserves the right to bring a civil action to collect any sums due to the Township by the grantee and/or forfeit or revoke all privileges of the grantee under this article in the event of willful or repeated violation of this article.
Penalties. Any person which commits or suffers the violation of this article shall, upon being found liable in a civil enforcement proceeding commenced by the Township, pay a fine of $600 plus all court costs, including reasonable attorneys' fees incurred by the Township. A separate offense shall arise for each day or portion thereof in which a violation is found to exist or for each section of this article which is found to have been violated. In addition, the Township also may enforce this article by an action brought in equity.
The grantee shall at all times be subject to the exercise of the police power of the Township. The grantee shall comply with all lawful ordinances, codes, laws, rules and regulations of the Township, County of Northampton, Commonwealth of Pennsylvania, and the United States of America which are now in effect or hereafter enacted.