[HISTORY: Adopted by the Borough Council of the Borough of Franklin Park 9-20-2000 by Ord. No. 495-2000. Amendments noted where applicable.]
No person shall construct, operate or continue to operate a private communications system which occupies the streets, public ways and public places within the Borough without having been issued a license or licenses by the Borough.
The purpose of this chapter is to:
Regulate the erection, construction, reconstruction, installation, operation, maintenance, dismantling, testing, repair and use of a private communications system in, upon, along, across, above, over, under or in any manner connected with the streets, public ways or public places within the corporate limits of the Borough, as now or in the future may exist.
Provide the Borough with compensation for occupation and use of the Borough's rights-of-way for a private communications system.
Provide the Borough with compensation for acquisition and maintenance of the Borough's rights-of-way when used for commercial purposes.
Provide the Borough with compensation for the cost of regulation imposed by this chapter on a private communications system.
For the purposes of this chapter and any license in accordance herewith, the following terms, phrases, words and their derivations shall have the meanings given herein unless otherwise specifically provided in this chapter, unless the context clearly indicates otherwise or unless such meaning would be inconsistent with the manifest intent of Council.
- CABLE COMMUNICATIONS SYSTEM
- A nonbroadcast facility consisting of a set of transmission paths with associated signal generation, reception and control equipment, under common ownership and control, which distributes or is designed to distribute to subscribers the signals of television broadcast stations and is franchised by the Borough.
- A person who for a charge or payment of a fee receives, sends or uses any signal or service provided, collected or distributed by a private communications system licensed by the Borough.
- The Federal Communications Commission or its legally appointed successor.
- The privilege granted by the Borough by which the Borough authorizes a person to erect, construct, reconstruct, operate, dismantle, test, use and maintain a private communications system that occupies the streets, public ways or public places within the Borough. Any license issued in accordance herewith shall be a nonexclusive license.
- The person or its legal successor in interest who is issued a license or licenses in accordance with the provisions of this chapter for the erection, construction, reconstruction, operation, maintenance, dismantling, testing, repair and use of a private communications system in the Borough.
- LOCAL ACCESS TRANSPORT AREA (LATA)
- The geographic area and communications system in which the Borough is located and in which Bell Atlantic-Pennsylvania and any other telecommunications companies are authorized by the Public Utilities Commission of Pennsylvania to provide local exchange access telecommunications services.
- PRIVATE COMMUNICATIONS SYSTEM
- Any communications equipment or facilities, not part of the LATA or part of a cable communications system franchised by the Borough, that in any manner is connected with the streets, public ways or public places within the corporate limits of the Borough, as now or in the future may exist.
- PUBLIC WAY(S)
- The surface, the air above the surface and the area below the surface within any public right-of-way and any street, highway, lane, path, alley, sidewalk, boulevard, drive, bridge, tunnel, park, parkway, lane, square, viaduct, waterway or other public right-of-way, including public utility easements or rights-of-way in which the Borough has jurisdiction; and any other public ground or water within belonging to the Borough.
- Any area established for vehicular or public access use or the entire width between the boundary lines of every way publicly maintained when any part thereof is open for public purposes. "Street" includes, but is not limited to, highway, avenue, road, alley, right-of-way, lane, boulevard, concourse, bridge, tunnel, parks, parkways, waterways, docks, overheads, wharves and piers.
- TOTAL LOCAL GROSS REVENUES
- All cash, credits or property of any kind or nature reported as revenue items on licensee's audited income statements arising from or attributable to the sale or exchange of private communications services by the licensee within the Borough or in any way derived from the operation of its private communications system, including, but not limited to, any interconnection between its system in the Borough and any system whatsoever. This sum shall be the basis for computing the fee imposed pursuant to this chapter. The sum shall not include any bad debts, deposits, promotional or vendor discounts or credits nor sales, service, occupation or other excise tax to the extent that such taxes are charged separately from normal service charges and are remitted by the licensee directly to the taxing authority.
All notices are required to be given to the Borough.
This chapter shall not be construed to create or hold the Borough responsible or liable for any damage to persons or property by reason of any inspection or reinspection authorized herein or failure to inspect or reinspect, nor shall the issuance of any license nor the approval or disapproval of any installation authorized herein constitute any representation, guarantee or warranty of any kind by, nor create any liability upon, the Borough or any official, agent or employee thereof.
Any annual license issued by the Borough in accordance herewith shall be a nonexclusive license for the use of the streets, public ways or public places within the Borough as specified in the license for the erection, construction, reconstruction, operation, maintenance, dismantling, testing and use of a private communications system.
Any license issued by the Borough may be renewable annually upon establishment by the licensee to the satisfaction of the Borough that the licensee is in compliance with this chapter and all applicable federal, state and local ordinances and regulations and the space occupied is not needed for a public purpose.
Any license issued for a private communications system in accordance herewith shall apply only to the location or locations stated on the license or licenses.
Nothing in this chapter shall be construed as a representation, promise or guarantee by the Borough that any permit or other authorization required under any Borough law for the construction or installation of a private communications system shall be issued.
All technical standards governing construction, reconstruction, installation, operation, testing, use, maintenance and dismantling of a private communications system provided for herein shall be in accordance with all applicable FCC and other federal, state and local laws and regulations, including but not limited to the most recent editions of the National Electrical Code and the National Electrical Safety Code.
All persons submitting a request for a license to construct a private communications system in accordance herewith shall file, with their request, bonds solely for the protection of the Borough with a surety company or trust company or companies as surety or sureties in an amount determined by the Director of Public Works to protect the Borough from any and all damages or costs suffered or incurred by the Borough as a result thereof, including, but not limited to, attorney's fees and costs of any action or proceeding, and including the full amount of compensation, indemnification, cost of removal or abandonment of any property or other costs which may be in default, up to the full principal amount of the bond; and the condition shall be a continuing obligation during the entire term of any license issued in accordance herewith and thereafter until the licensee shall have satisfied in full any and all obligations to the Borough which arise out of or pertain to the license for a private communications system.
None of the provisions of this section nor any bond accepted by the Borough pursuant hereto, nor any damages recovered by the Borough thereunder, shall be construed to excuse the faithful performance by or limit the liability of the licensee under this chapter or any license issued in accordance herewith or for damages either to the full amount of the bond or otherwise.
It shall be a term and condition of any license issued in accordance herewith that, as a part of the consideration supporting the issuance of such license and the Borough's permission thereby to occupy and use the streets of the Borough, the licensee shall pay each year to the Borough the following compensation and license fees:
Any private communications system which serves no customers other than itself shall pay compensation and license fees, payable per annum, as follows:
Any private communications system that serves customers within the Borough shall pay annually 5% of the annual total local gross revenues derived from the customers.
Any cable communications system or part thereof located in the Borough right-of-way and not franchised by the Borough in accordance with Chapter 98 of this Code shall obtain a license under this chapter. The license shall be granted for the sole purpose of providing cable television signals to customers located in an adjoining municipality. The compensation and license fees stated in Subsection A hereof shall not apply, provided that such adjoining municipality imposes no compensation and license fee requirements on any cable communications system or part thereof franchised by the Borough in accordance with Chapter 98 which may be located in the adjoining municipality.
Commencing January 1, 2001, and annually thereafter, the license charge shall be calculated by multiplying the previous year's license fee by the percentage change from the previous year in the National Consumer Price Index ("Index") published by the United State Department of Labor. In the event that such Index ceases to be published, the Director of the Department of General Services may select another measure of general price changes in the United States. By December 1, 1997, and each December 1 thereafter, the Department of General Services shall notify each licensee of the revised license charges to be effective on the following January 1. Every license agreement shall reflect the schedule of charges specified herein and the annual adjustments thereto.
The annual compensation and license fee provided for in § 157-10 shall be payable annually on or before February 1 of each calendar year.
The annual compensation and license fee provided for in § 157-10 shall be assessed quarterly for the preceding quarter.
Each quarterly payment shall be payable and reportable no less than 30 days after the relevant assessment date.
Each payment shall be accompanied by a report from the licensee in a form approved by the Borough, showing the basis for the computation and other relevant data as may be required.
Each of the reports shall contain a notarized verification by the Chief Financial Officer of the licensee, and the reports shall be verified annually, within 90 days of the close of business of the last day of the calendar year, by a certified public accountant selected by the Borough at the expense of the licensee.
Failure to comply strictly with this section shall be deemed to be a violation of this chapter and shall subject the licensee to all penalties and remedies, both legal and equitable, which are available to the Borough.
The acceptance of any payment required hereunder by the Borough shall not be construed as an acknowledgment that the amount paid is the correct amount due, nor shall the acceptance of payment be construed as a release of any claim which the Borough may have for additional sums due and payable.
All fee payments shall be subject to audit by the Borough Treasurer and assessment or refund if the payment is found to be in error.
In the event that audit results in an assessment by and an additional payment to the Borough, additional payment shall be subject to interest at the rate of 6% per year and to a penalty of 6% per year, which shall be due and payable immediately.
Nothing in this chapter shall be construed to limit the liability of the licensee for all applicable federal, state and local taxes.
The Borough shall not at any time be liable for any injury or damage occurring to any person or property from any cause whatsoever, including damages from the Borough's negligent omissions, if any, arising from the use, operation or condition of the licensee's private communications system.
The licensee shall indemnify, save and hold harmless and defend the Borough from all liens; charges; claims, including but not limited to libel, slander, invasion of privacy and unauthorized use of any trademark, trade name or service mark; demands; suits; actions; fines; penalties; losses; costs, including but not limited to reasonable legal fees and court costs; judgments; injuries; liabilities or damages, in law or equity, of any and every kind and nature whatsoever, including damages caused by or arising out of any act of negligent omission of the Borough, its officers, servants, agents, employees or contractors, or otherwise, arising out of or in any way connected with the installation, operation, maintenance or condition of the licensee's private communications system.
The Director of Public Works, in consultation with the Borough Solicitor, shall set the type and coverage of insurance required. In setting the amount, the Director shall take into consideration the size and location of the private communications system, the financial resources of the licensee, risk involved to the Borough and to the general public, as well as other salient factors.
Nothing in this chapter or in any license issued in accordance herewith shall be construed as an abrogation by the Borough of any of its police powers.
Before commencing construction of its private communications system in, above, over, under, across, through or in any way connected with the streets, public ways or public places of the Borough, the licensee shall first obtain the written approval of all appropriate Borough agencies, including, but not limited to, the Department of General Services, Bureau of Cable Communications. Applications for approval shall be made in the form prescribed by the Department of General Services, Bureau of Cable Communications.
Upon obtaining written approval, the licensee shall give the Bureau of Cable Communications and the appropriate agency written notice within a reasonable time of proposed construction, but in no event shall the notice be given less than 10 days before the commencement.
Any person who submits a request for a license in accordance herewith shall include therein proposed agreements for the use of existing utility poles and conduits, if applicable, with the owner(s) of the facilities to be used or affected by the construction of the proposed private communications system, which agreements shall become effective on the date of execution of the license issued in accordance herewith in the event that the person is issued a license.
It shall be unlawful for the licensee or any other person to open or otherwise disturb the surface of any street, sidewalk, driveway, public way or other public place for any purpose whatsoever without obtaining approval to do so after proceeding in the manner prescribed in Subsections A and B hereof. Violation of this section shall subject the licensee to all penalties and remedies prescribed therein and to all other remedies, legal or equitable, which are available to the Borough.
The licensee shall restore any street or sidewalk it has disturbed in accordance with the provisions of the Subdivision Land Developer Ordinance and shall, at its own cost and expense, restore and replace any other property disturbed, damaged or in any way injured by or on accounts of its activities to as good as the condition such property was in immediately prior to the disturbance, damage or injury, or pay the fair market value of the property to its owner.
The licensee shall, at its own cost and expense, protect, support, temporarily disconnect, relocate in the same street or other public place, or remove from the street or other public place, any of its property when required to do so by the Borough because of street or other public excavation, construction, repair, regrading or grading; traffic conditions; installation of sewers, drains, water pipes, Borough-owned power or signal lines or tracks; vacation or relocation of streets or any other type of structure or improvement of a public agency; or any other type of improvement necessary for the public health, safety or welfare.
Nothing in this chapter or any license issued in accordance herewith shall be construed as authorizing the licensee to erect and maintain new utility companies; the licensee shall likewise place its facilities underground at its sole cost and expense.
The licensee, upon reasonable notice by the Borough, shall temporarily or permanently remove, adjust, raise or lower its facilities within the right-of-way when the Borough determines that the action is needed for public use of the right-of-way, including but not limited to the passage of nonstandard vehicles.
The licensee shall obtain the written permission of the owner, including the Borough, of any tree or other vegetation before it trims or prunes the same.
The Borough may install or affix and maintain wires and equipment for municipal purposes upon any and all of licensee's ducts, conduits or equipment without charge to the Borough. For the purposes of this section, the term "municipal purposes" includes but is not limited to the use of the structures and installations for Borough fire, police, other emergency, traffic, water, telephone and/or signal systems. Any value of such use of licensee's facilities may not be deducted from any fees payable to the Borough. Licensee shall not be responsible for any damage resulting to the wires or property of the Borough occurring as a result of the Borough's use of licensee's conduits.
The licensee shall not transfer or assign its interest in any license issued in accordance herewith without the prior written authorization of the Director, Department of General Services. For purposes of this section, a merger or consolidation shall be deemed a transfer or assignment.
Nothing in any approval by the Director, Department of General Services, authorizing any transfer or assignment of any license issued in accordance herewith, shall be construed to waive or release any rights of the Borough in and to the streets, public ways and public places of the Borough or as a release of any of the Borough's police powers.
Any person, firm or corporation who shall violate any provision of this chapter or fails to comply therewith or with any of the requirements thereof, upon being found liable therefor in a civil enforcement proceeding commenced by the Borough, shall pay a judgment of not less than $100 nor more than $600 plus costs, including reasonable attorneys' fees incurred by the Borough. A separate offense shall arise for each day or portion thereof in which a violation of this chapter is found to exist and for each section of this chapter found to have been violated. The Borough may also commence appropriate actions in equity or other to prevent, restrain, correct, enjoin or abate violations of this chapter. All penalties collected for violations of this chapter shall be paid to the Borough Treasurer.