[HISTORY: Adopted by the Board of Commissioners of the Township of Upper Pottsgrove as indicated in article histories. Amendments noted where applicable.]
Article I Use of Township Rights-of-Way
[Adopted 12-4-2006 by Ord. No. 403]
No person shall construct, operate or continue to operate communications systems which occupy the streets, public rights-of-way and public places within the Township of Upper Pottsgrove, without having first been issued a license by the Township.
The purpose of this article is:
To regulate the erection, construction, reconstruction, installation, operation, maintenance, dismantling, testing, repair, and use of a 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 Township, as now or in the future may exist; and
To provide the Township with compensation for occupation and use of the Township's rights-of-way for a communications system;
To provide the Township with compensation for acquisition and maintenance of Township's rights-of-way when used for commercial purposes; and.
To provide the Township with compensation for the cost of regulation imposed by this article on a communications system.
For the purposes of this article and any license in accordance herewith, the following terms, phrases, words and their derivations shall have the meaning given herein unless otherwise specifically provided in this article, unless the context clearly indicates otherwise or unless such meaning would be inconsistent with the mainfest intent of the Board of Commissioners.
- The person who has applied for a right-of-way license.
- The form prescribed by Upper Pottsgrove Township which the applicant must complete in order to obtain a right-of-way license.
- COMMUNICATIONS SERVICE
- The services offered to customers involving the transmission of video, data and/or voice communications and/or content, both active and interactive, and associated usage, by or through any electronic, radio, satellite, cable, optical, microwave, or other medium or method now in existence or hereafter devised, regardless of the protocol used for such transmission or conveyance.
- COMMUNICATIONS SYSTEM
- A system used to provide communications services.
- 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 communications system licensed by the Township.
- The Federal Communications Commission or its legally appointed successor.
- The privilege granted by the Township by which the Township authorizes a person to erect, construct, reconstruct, operate, dismantle, test, use and maintain a communications system that occupies the streets, public ways or public places within the Township. 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 article for the erection, construction, reconstruction, operation, maintenance, dismantling, testing, repair and use of a communications system in the Township.
- LOCAL ACCESS TRANSPORT AREA (LATA)
- That geographic area and communications system in which the Township of Upper Pottsgrove Township is located and in which Bell of Pennsylvania is authorized by the Public Utilities Commission of Pennsylvania to provide local exchange access communications services.
- The surface and space in, on, above, and below any real property in which Upper Pottsgrove Township has an interest in law or in equity, including, but not limited to, any public street, boulevard, avenue, road, highway, easement, freeway, lane, alley, court, sidewalk, parkway, river, tunnel, viaduct, bridge, park, open space, or any other place.
- 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 communications services by the licensee within the Township or in any way derived from the operation of its communications system, including, but not limited to, any interconnection between its system in the Township and any system whatsoever. This sum shall be the basis for computing the fee imposed pursuant to this article. Such 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 required to be given to the Township under any provision of this article shall be deemed served when delivered by hand in writing to the Township Manager, at 1409 Farmington Avenue, Pottstown, Montgomery County, Pennsylvania, during normal business hours.
This article shall not be construed to create or hold the Township 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 or the approval or disapproval of any installation authorized herein constitute any representation, guarantee or warranty of any kind by, or create any liability upon, the Township or any official, agent or employee thereof.
No person shall enter upon or occupy any right-of-way for the purpose of installing, constructing, maintaining or operating a communications system without first having obtained a right-of-way license. Any person maintaining or operating a communications system as of the effective date of this article shall also obtain a right-of-way license.
Before a right-of-way license is issued, the holder of or applicant for a right-of-way license shall have applied for any and all regulatory approvals, licenses, or authorizations from the appropriate federal and state authorities, if required. Upon the request of the Township, the applicant shall submit written evidence of its applications for or receipt of all such approvals, licenses, or authorizations.
Nothing in this article shall be construed as a waiver of any ordinances or resolutions of Upper Pottsgrove Township or the Township's right to require prospective or current right-of-way license holders to secure and remit payment for any and all required licenses or authorizations.
A right-of-way license shall only be granted after an applicant has completed an application in the form that has been prescribed by the Township, which form may be revised from time to time. Upon request, an applicant shall be provided with a copy of the then-current application for a right-of-way license. The application shall request information regarding the applicant's proposed or actual physical use and occupation of the rights-of-way. Specifically, the application shall request: 1) a brief description of the communications service or services to be offered or provided in or through the Township; 2) specific information regarding the equipment it proposes to place or currently maintains in the rights-of-way; 3) the expected physical burden that such equipment will place or does place on the rights-of-way; and 4) whether the equipment will or does have a detrimental effect on public safety as it relates to the rights-of-way. If the completed application does not fully provide such requested information, the Township may request such additional information as is necessary to enable it to make a determination regarding the physical use and occupation of the rights-of-way by the applicant. The application may request less information from a license holder applying for a renewal of a right-of-way license.
Upon submission of a fully completed application to the Township and the accompanying fee, the Township shall review the application as follows. The Township shall grant or deny such application within 90 days. If the Township fails to grant or reject such application within the time periods specified above, the application shall be deemed approved. In each case, the Township shall review the application to determine whether such use would have a detrimental effect on public safety as it relates to the rights-of-way or would place an undue physical burden on the rights-of-way.
In considering an application, the Township may use such outside experts as it deems necessary. In the event the Township deems it necessary to employ an outside expert to advise the Township with respect to a particular application, the reasonable costs of such expert shall be borne by the applicant.
Any license issued by the Township in accordance herewith shall be a nonexclusive license valid for a period of one year for the use of the streets, public ways or public places within the Township as specified in the license for the erection, construction, reconstruction, operation, maintenance, dismantling, testing and use of a communications system.
Any license issued by the Township is renewable annually upon establishment by the licensee to the satisfaction of the Township that the licensee is in compliance with this article, 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 communications system in accordance herewith shall apply only to the location or locations stated on the license or licenses.
Nothing in this article shall be construed as a representation, promise or guarantee by the Township that any license, permit, or other authorization required under any Township law for the construction or installation of a communications system shall be issued.
The Township may suspend any right-of-way license in the event any one or more of the following has occurred:
The license holder shall have caused damage to Township property or the right-of-way without the prior consent of the Township (except in the case of an emergency) and without completing property restoration.
The license holder or the license holder's equipment in the right-of-way has had a detrimental effect on public safety as it relates to the rights-of-way.
The license holder failed to pay any of the fees required under this article.
If the Township has reason to believe that one or more of the above events has occurred, it shall notify the license holder in writing. The license holder shall have 30 days to cure the violation, unless the Township reasonably determines that the event is an emergency, in which case the Township may impose a shorter time period to cure the violation.
If the license holder fails to cure the violation within the specified time period, the Township shall be permitted to immediately suspend the right-of-way license. The suspension shall be brought to the attention of the Board of Commissioners at its next regularly scheduled meeting, at which time the Board shall be permitted to uphold or withdraw the suspension. The license holder shall be provided an opportunity to be heard at such meeting.
All technical standards governing construction, reconstruction, installation, operation, testing, use, maintenance and dismantling of a communications system provided for herein shall be in accordance with all applicable FCC and other federal, state and local laws and regulations.
Upper Pottsgrove Township shall have the following powers and duties:
Receive and review applications for licenses for any communications system.
Review and audit all reports and filings submitted by the licensee to the Township pursuant to this article.
Submit regulations regarding the construction, reconstruction, operation, maintenance, dismantling, testing or use of any communications system established by license in accordance herewith to the Township Board of Commissioners for review and promulgation.
All persons submitting a request for a license to construct a communications system in accordance herewith shall file with their request bonds solely for the protection of the Township with a surety company or trust company or companies as surety or sureties in an amount determined by the Township to protect the Township from any and all damages or costs suffered or incurred by the Township 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 such 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 Township which arise out of or pertain to the license for a communications system.
None of the provisions of this section nor any bond accepted by the Township pursuant hereto, nor any damages recovered by the Township thereunder, shall be construed to excuse the faithful performance by or limit the liability of the licensee under this article or any license issued in accordance herewith or for damages either to the full amount of such bond or otherwise.
It shall be a term and condition of any license issued in accordance herewith that, as part of the consideration supporting the issuance of such license and the Township's permission thereby to occupy and use the streets of the Township, the licensee shall pay each year to the Township the following compensation and license fees. Future modifications to the license fee shall be made from time to time by a resolution of Upper Pottsgrove Township Board of Commissioners.
Any communications system which serves no customers other than itself shall pay compensation and license fees in the amount of $1 per linear foot for each diameter inch or less of underground conduit or wire or each 0.250 diameter inch or less of aerial wire per annum. In no event shall the fee be less than $250 per annum.
Any communication system that serves customers within the Township shall pay annually 5% of the annual total local gross revenues derived from such customers.
The annual compensation and license fee provided for in § 138-14A shall be payable annually on or before February 1 of each calendar year.
The annual compensation and license fee provided for in § 138-14B shall be assessed quarterly for the preceding quarter, as of March 31, June 30th, September 30 and December 31 of each year.
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 Township showing the basis for the computation and such other relevant data as may be required by the Township.
Each of such reports shall contain a notarized verification by the chief financial officer of the licensee, and such 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 Township at the expense of the licensee.
Failure to comply strictly with this section shall be deemed to be a violation of this article and shall subject the licensee to all penalties and remedies, both legal and equitable, which are available to the Township.
The acceptance of any payment required hereunder by the Township shall not be construed as an acknowledgment that the amount paid is the correct amount due, nor shall such acceptance of payment be construed as a release of any claim which the Township may have for additional sums due and payable.
All fee payments shall be subject to audit by the Township and assessment or refund if the payment is found to be in error.
In the event such audit results in an assessment by and an additional payment to the Township, such 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 article shall be construed to limit the liability of the licensee for all applicable federal, state and local taxes.
The Township 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 Township's negligent omissions, if any, arising from the use, operation or condition of the licensee's communications system.
The licensee shall indemnify, save and hold harmless and defend the Township 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 Township, 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 communications system.
The Board of Commissioners, in consultation with the Township Solicitor, shall set the type and coverage of insurance required. In setting the amount, the Township shall take into consideration the size and location of the communications system, the financial resources of the licensee, risk involved to the Township and to the general public, as well as other salient factors.
The Township shall have the right to limit the placement of new or additional equipment in the right-of-way if there is insufficient space to reasonably accommodate all requests to occupy and use the rights-of-way. The Township shall consider requests for occupying and using the rights-of-way in the order of receipt of fully completed applications for right-of-way licenses. The Township shall strive, to the extent possible, to accommodate all requests, but shall be guided by the physical condition of the right-of-way and whether such use would have a detrimental effect on public safety as it relates to the right-of-way.
The Township shall have the right to monitor the communications system and the equipment related thereto located in the rights-of-way in order to prevent interference between and among such systems and equipment.
A license holder shall allow the Township to make inspections of any part of the license holder's communications system located in the rights-of-way at any time upon three days' notice, or, in the case of an emergency, upon demand.
Nothing in this article or in any license issued in accordance herewith shall be construed as an abrogation by the Township of its police powers.
Before commencing construction of its communications system in, above, over, under, across, through or in any way connected with the streets, public ways or public places of the Township, the licensee shall first obtain the written approval of the Township.
Upon obtaining such written approval, the licensee shall give the Township written notice within a reasonable time of proposed construction, but in no event shall such notice be given less than 10 days before such 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 such facilities to be used or affected by the construction of the proposed communications system, which agreements shall become effective on the date of execution of the license issued in accordance herewith in the event that such 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 Township.
The licensee shall restore any street or sidewalk it has disturbed in accordance with the relevant provisions of all Township ordinances and shall, at its own cost and expense, restore and replace any other property disturbed, damaged or in any other way injured by or on account of its activities to a condition as good as the condition such property was in immediately prior to the disturbance, damage or injury or pay the fair market value of such 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 such street or other public place, any of its property when required to do so by the Township because of street or other public excavation, construction, repair, regrading, or grading; traffic conditions; installation of sewers, drains, water pipes, Township-owned power or signal lines, 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 and welfare.
Nothing in this article or any license issued in accordance herewith shall be construed as authorizing the licensee to erect and maintain new poles in areas serviced by existing poles. The licensee shall obtain written approval from the Township before erecting any new poles or underground conduits where none exist.
The licensee shall maintain all wires, conduits, cables, and other real and personal property and facilities in good condition, order and repair.
The licensee shall keep accurate, complete and current maps and records of its system and facilities which occupy the streets, public ways and public places within the Township and shall furnish as soon as they are available two complete copies of such maps and records to the Township.
The licensee shall comply with all rules and regulations of the Township governing the construction and installation of communications systems. In addition:
All aerial cables and wires shall be installed parallel with existing telephone and electric utility wires.
Multiple aerial configurations shall be in parallel arrangement and bundled, in accordance with engineering and safety considerations.
All underground installations shall be in the appropriate size and type conduit or other enclosures approved by the Township.
All installations shall be underground in those areas of the Township where both telephone and electric utilities' facilities are underground at the time of the installation of the licensee's communications system.
In areas where both telephone and electric utilities' facilities are above ground at the time of the installation of the licensee's communications system, the licensee may install its system above ground on existing utility poles only, upon the condition that at such time as those facilities are placed underground by the telephone and electric utility companies, the licensee shall likewise place its facilities underground at its sole cost and expense.
The licensee, upon reasonable notice by the Township, shall temporarily or permanently remove, adjust, raise or lower its facilities within the right-of-way when the Township determines that such 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 Township, of any tree or other vegetation before it trims or prunes the same.
The licensee shall not transfer or assign its interest in any license issued in accordance herewith without the prior written authorization of the Township.
Nothing in any approval by the Township authorizing any transfer or assignment of any license issued in accordance herewith shall be construed to waive or release any rights of the Township in and to the streets, public ways and public places of the Township or as a release of any part of the Township's police powers.
Upon expiration or termination of the license, if the license is not renewed, the license holder shall, upon 60 days' prior written notice to the license holder, remove its equipment from the rights-of-way and shall restore said areas. If such removal is not completed within six months of such notice, the Township may deem any property not removed as abandoned and the Township may remove it at the former license holder's expense. In the event that the license holder installed and/or operated any underground conduit or pipe which is six inches or more in diameter, license holder shall fill said conduit or pipe with material in a manner satisfactory to the Township.
During the term of the license, if the license holder decides to abandon or no longer use all or part of its communications system, it shall provide the Township with written notice of its decision at least 30 days prior to such decision, which notice shall describe the equipment and its location. The Township shall have the right to require the license holder to remove the equipment upon 60 days' prior written notice to the license holder. If such removal is not completed within six months of such notice, the Township may remove it at the license holder's expense.
In addition to any other legal and equitable remedies permitted by law, any person or persons, firm or corporation who shall fail to comply with any provision of this article, upon conviction thereof, shall be sentenced to pay a fine of not more than $600 per day, plus costs of prosecution. However, each and every day in which any person or persons, firm or corporation shall be in violation of any provision of this article shall constitute a separate offense.