[HISTORY: Adopted by the Borough Council
of the Borough of Yeadon 5-21-1998 by Ord. No. 1267 (Ch. 834 of the 1995
Code). Amendments noted where applicable.]
The purpose of this chapter is to:
A.
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;
B.
Provide the Borough with compensation for occupation
and use of the Borough's rights-of-way for a private communications
system;
C.
Provide the Borough with compensation for acquisition
and maintenance of Borough rights-of-way when used for commercial
purposes; and
D.
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
issued in accordance herewith, the following terms, phrases and 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:
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 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 his, her or its legal successor in interest
who or that 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.
Any telecommunications facilities that are not part of the
PSTN or part of a cable communications system franchised by the Borough,
or any telecommunications service or facility made available at a
privately negotiated, nontariffed rate, which in any manner uses or
occupies the streets, public ways or public places within the corporate
limits of the Borough as now or in the future may exist.
The telecommunications network operated by Bell Atlantic
and used to provide local exchange telephone services within the Borough,
and other networks that are directly interconnected to Bell Atlantic's
local exchange network and used to provide telecommunications services
to the general public within 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, park, parkway, waterway,
dock, overhead, wharf and pier.
All cash, credits or property of any kind or nature reported
as revenue items on a 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 which are in anyway
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. 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.
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 therefor by the Director of Code Enforcement.
A.
Any annual license issued by the Borough under this
chapter 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.
B.
Any license issued by the Borough is 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.
A.
Any license issued for a private communications system
under this chapter 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 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.
It shall be a term and condition of any license
issued under this chapter 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:
A.
Any licensee that serves no customers within the Borough
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 year. In no
event shall the fee be less than $250 per year.
B.
Any licensee that serves customers within the Borough
shall pay annually 5% of the annual total local gross revenues from
such customers to be calculated on the basis of all revenues derived
from transmissions that bypass the PSTN. Revenues derived from transmissions
that enter a private communications system through the PSTN shall
not be part of the total local gross revenues for purposes of calculating
compensation and license fees.
A.
The annual compensation and license fees provided for in § 115-6A shall be payable annually on or before February 1 of each calendar year.
B.
The annual compensation and license fees provided for in § 115-6B 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 Borough Manager showing the
basis for the computation and such other relevant data as may be required
by the Borough Manager.
(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 Borough at the expense of the licensee.
C.
The acceptance of any payment required hereunder by
the Borough shall not be construed as an acknowledgement 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 Borough may
have for additional sums due and payable.
(1)
All fee payments shall be subject to audit by the
Borough Auditor and assessment or refund if the payment if found to
be in error.
(2)
In the event that such audit results in an assessment
by and an additional payment to the Borough, 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 licensee shall not transfer or assign its interest
in any license issued under this chapter without the prior written
authorization of the Director of Code Enforcement. For purposes of
this section, a merger or consolidation shall be deemed a transfer
or assignment.
B.
Nothing in any approval by the Director of Code Enforcement
authorizing any transfer or assignment of any license issued under
this chapter 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.
The Director of Code Enforcement shall have
the following powers and duties:
A.
To receive and review applications for licenses for
any private communications system;
B.
To review and audit all reports and filings submitted
by a licensee to the Borough pursuant to this chapter; and
C.
To submit regulations regarding the construction,
reconstruction, operation, maintenance, dismantling, testing or use
of any private communications system established by license under
this chapter to the Borough Manager for promulgation.
A.
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 the Director of
Code Enforcement. Applications for such approval shall be made in
the form prescribed by the Department of Code Enforcement.
B.
Upon obtaining such written approval, the licensee
shall give the Department of Code Enforcement 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 under
this chapter shall include therein proposed agreements for the use
of existing utility poles and conduits, if applicable, with the owner
or owners of such facilities to be used or affected by the construction
of the proposed private communications system, which agreements shall
become effective on the date of the execution of the license issued
under this chapter in the event that such person is issued a license.
D.
No licensee or any other person shall 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 the penalty set forth in § 115-17 and to all other remedies, legal or equitable, which are available to the Borough.
E.
The licensee shall restore any street or sidewalk
it has disturbed in accordance with this Code and shall, at its own
cost and expense, restore and replace any other property disturbed,
damaged or in any 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.
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 Borough because of street
or other public excavation, construction, repair, regrading or grading;
traffic conditions; the installation of sewers, drains, water pipes,
Borough-owned power or signal lines or tracks; the 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.
G.
Nothing in this chapter or any license issued hereunder
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 Borough agencies 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
as-built maps and records of its system and facilities which occupy
the streets, public ways and public places within the Borough and
shall furnish, as soon as they are available, two complete copies
of such maps and records to the Department of Code Enforcement. The
licensee shall provide updated as-built maps on a yearly basis.
J.
The licensee shall comply with all rules and regulations
issued by the Department of Code Enforcement governing the construction
and installation of private communications systems. In addition:
(1)
All aerial cables and wires shall be installed parallel
with existing telephone and electric utility wires.
(2)
Multiple aerial configurations shall be in parallel
arrangement and bundled, in accordance with engineering and safety
considerations.
(3)
All underground installations shall be in the appropriate
size and type of conduit or other enclosure approved by the Director
of Code Enforcement.
(4)
All installations shall be underground in those areas
of the Borough where both telephone and electric utilities facilities
are underground at the time of the installation of the licensee's
private communications system. In areas where both telephone and electric
utilities facilities are above ground at the time of the installation
of the licensee's private 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.
(5)
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
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 Borough, of any tree or other vegetation
before it trims or prunes the same.
A.
All persons submitting a request for a license to
construct a private communications system under this chapter shall
file with their requests 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 Code Enforcement 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 the costs of any action or proceeding, and including
the full amount of any compensation and indemnification and the 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. The conditions
shall be a continuing obligation during the entire term of any license
issued under this chapter 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.
B.
None of the provisions of this section, nor any bond
accepted by the Borough pursuant hereto, nor any damages recovered
by the Borough hereunder, shall be construed to excuse the faithful
performance by, or limit the liability of, the licensee under this
chapter or any license issued hereunder, or for damages either to
the full amount of such bond or otherwise.
A.
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.
B.
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; or
liabilities or damages, in law or equity, of any and every kind of
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.
C.
The Borough Manager, in consultation with the Borough
Solicitor, shall set the type and coverage of insurance required.
In setting the amount, the Manager shall take into consideration the
size and location of the private communications system, the financial
resources of the licensee, the risk involved to the Borough and to
the general public as well as other salient factors.
All notices required to be given to the Borough
under any provision of this chapter shall be deemed served when delivered
by hand in writing to the Borough Manager during normal business hours.
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.
Nothing in this chapter or in any license issued
hereunder shall be construed as an abrogation by the Borough of any
of its police powers.
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 warrant
of any kind by, nor create any liability upon, the Borough or any
official, agent or employee thereof.
Whoever violates or fails to comply with any
of the provisions of this chapter shall be fined not less than $100
and not more than $1,000 or imprisoned not more than 10 days in the
Borough lockup or not more than 30 days in the county jail or workhouse,
or both, for each offense. A separate offense shall be deemed committed
each day during or on which a violation or noncompliance occurs or
continues.
