[HISTORY: Adopted by the Board of Supervisors of the Township of
North Coventry 7-25-2005 by Ord. No. 128.
Amendments noted where applicable.]
No person shall construct, operate or continue to operate private communication
systems, which occupy the streets, public rights-of-way, and public places
within the Township of North Coventry ("Township"), without having been issued
a license by the Township.
The purpose of this chapter is:
A.
To regulate the erection, construction, reconstruction,
installation, operation, maintenance, dismantling, testing, repair, and use
of a private communication system in, upon, along, across, above, over, under
or in any manner connected within the streets, public ways or public places
within the Township limits, as now or in the future may exist; and
B.
To provide the Township with compensation for the occupation
and use of the Township's right-of-way for a private communication system;
and
C.
To provide the Township with compensation for acquisition
and maintenance of the Township's right-of-way when used for commercial
purposes; and
D.
To provide the Township with compensation for the costs
of the regulation imposed by this chapter with respect to a private communication
system.
For the purpose of this chapter and consistent with the manifest intent
of the Township, the following terms shall have the meanings indicated:
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 one or more television broadcast stations and
is franchised by the Township.
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
communication system licensed by the Township.
The Federal Communication 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 private 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 successors 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 communication system in the Township.
That geographic area and communication system in which the Township
of North Coventry is located and in which Bell of Pennsylvania is authorized
by the Public Utilities Commission of Pennsylvania to provide local exchange
access telecommunication services.
Any communication equipment or facilities, not part of the LATA or
part of a cable communication system franchised by the Township, that in any
manner is connected with the streets, public ways or public places within
the municipal limits of the Township, as now or in the future may exist.
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.
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 communication services by the licensee
within the Township or in any way derived from the operation of its private
communication 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 the computing the fee imposed pursuant to this chapter. 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 chapter shall be deemed served when delivered by hand in writing to
the North Coventry Township Manager at 845 South Hanover Street, Pottstown,
Pennsylvania during normal business hours.
This chapter 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 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 Township or any official,
agent or employee thereof.
A.
Any annual license issued by the Township in accordance
herewith shall be a nonexclusive license 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 private communication system.
B.
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 chapter all applicable federal, state
and local ordinances and regulations and the space occupied is not needed
for a public purpose.
A.
Any license issued for a private communication system
in accordance herewith shall apply only to the location or locations stated
on the license or licenses.
B.
Nothing in this chapter shall be construed as a representation,
promise or guarantee by the Township that any permit or other authorization
required under any Township law for the construction or installation of a
private communication system shall be issued.
All technical standards governing construction, reconstruction, installation,
operation, testing, use, maintenance and dismantling of a private communication
system provided for herein shall be in accordance with all applicable FCC
and other federal, state and local laws and regulations.
The Township Manager of North Coventry Township or his designee shall
have the following powers and duties:
A.
Receive and review applications for licenses for any
private communication system.
B.
Review and audit all reports and filings submitted by
the licensee to the Township pursuant to this chapter.
C.
Submit regulations regarding the construction, reconstruction,
operation, maintenance, dismantling, testing or use of any private communications
system established by license in accordance herewith to the Board of Supervisors
for review and promulgation.
A.
All persons submitting a request for a license to construct
a private communication 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 private communication system.
B.
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 chapter 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, that the license 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 the Board of Supervisors
of the Township.
A.
Any private communication 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 250 diameter inch or less of aerial wire per annum. In no event
shall the fee be less than $250 per annum.
B.
Any private communication system that serves customers
within the Township shall pay annually 5% of the annual total local gross
revenues derived from such customers.
A.
The annual compensation and license fee provided for in § 145-11A shall be payable annually on or before February 1 of each calendar year.
B.
The annual compensation and license fee provided for in § 145-11A shall be assessed quarterly for the preceding quarter, as of March 31, June 30, September 30 and December 31 of each year.
(1)
Each quarterly payment shall be payable and reportable
no less than 30 days after the relevant assessment date.
(2)
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.
(3)
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.
(4)
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 Township.
C.
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.
(1)
All fee payments shall be subject to audit by the Township
and assessment or refund if the payment is found to be in error.
(2)
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.
D.
Nothing in this chapter shall be construed to limit the
liability of the licensee for all applicable federal, state and local taxes.
A.
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 omission, if any, arising
from the use, operation or condition of the licensee's private communication
system.
B.
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 private communication system.
C.
The Board of Supervisors of the Township, 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 private communication system, the financial resources
of the licensee, risk involved to the Township 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 Township of its police powers.
A.
Before commencing construction of its private communication
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.
B.
Upon obtaining such written approval, the licensee shall
give the Manager of 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.
C.
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 private communication
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.
D.
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.
E.
The licensee shall restore any street, trail or sidewalk
it has disturbed in accordance with the relevant provision of any of the Township's
ordinances or regulations and shall, at its own costs and expense, restore
and replace any other property disturbed, damaged or in any other way injured
by or on account 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 such property to its owner.
F.
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, regarding, 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.
G.
Nothing in this chapter 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.
H.
The licensee shall maintain all wires, conduits, cables,
and other real and personal property and facilities in good condition, order
and repair.
I.
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
Manager.
J.
The licensee shall comply with all rules and regulations
of the Township governing the construction and installation of private communication
systems. In addition:
(1)
All aerial cables and wires shall be installed parallel
with existing telephone and electric utility wires; and
(2)
Multiple aerial configurations shall be in parallel arrangement
and bundled, in accordance with engineering and safety considerations; and
(3)
All underground installations shall be in the appropriate
size and type conduit or other enclosures approved by the Township Engineer;
and
(4)
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 private
communication system.
(a)
In areas where both telephone and electric utilities'
facilities are above ground at the time of the installation of the licensee's
private communication 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.
(5)
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.
(6)
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.
A.
The licensee shall not transfer or assign its interest
in any license issued in accordance herewith without the prior written authorization
of the Township.
B.
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 or public places of the Township or as a release of any
part of the Township's police powers.
Any person who violates or permits a violation of this chapter shall,
upon being found liable therefor in a civil enforcement proceeding commenced
by the Township before a Magisterial District Judge, pay a fine
of not more than $600, plus all court costs, including reasonable attorney's
fees, incurred by the Township in the enforcement of this chapter. No judgment
shall be imposed until the date of the determination of the violation by the
Magisterial District Judge. If the defendant neither pays nor timely appeals
the judgment, the Township may enforce the judgment pursuant to the applicable
Rules of Civil Procedure. Each day a violation exists shall constitute a separate
offense. Further, the appropriate officers or agents of the Township are hereby
authorized to seek equitable relief, including injunction, to enforce compliance
herewith.
