In partial fulfillment of the obligation to see to the prudential
management of the Town's affairs and assets and in light of the continuing
technological revolution in telecommunications, the recent passage
of the Telecommunications Act of 1996 and the deregulation of the
electric and natural gas industries in the Commonwealth, the Town
hereby establishes a comprehensive and fair system of regulation for
all entities which desire to use the Town's rights-of-way.
As used in this bylaw, the following terms shall have the meanings
indicated:
APPLICANT
Any person or entity, including, without limitation implied,
public utility, telecommunications carrier, local exchange carrier
or municipal department which owns or exercises general responsibility
and control over any facility.
APPLICATION
The written application on a form prescribed by the awarding
authority with any required documentation and the application fee
by which an applicant or co-locator requests a right-of-way permit.
APPLICATION FEE
Such fee as may from time to time be established pursuant
to MGL c. 40, § 22F, and which shall accompany each application
for a right-of-way permit.
ATTACHMENT
Any device, apparatus, appliance, equipment, wire or cable
or other thing, including any telecommunication facility installed
or proposed to be installed on or in any existing facility whether
by applicant or co-locator or proposed to be installed on any new
facility by applicant or co-locator.
AWARDING AUTHORITY
The Select Board of the Town of Foxborough, which has authority
to exercise the powers granted by this bylaw.
[Amended 1-30-2023 STM by Art. 1]
CO-LOCATOR
Any person or entity other than applicant who desires to
use an existing or new facility.
CONTRACTOR
All officers or employees of applicant or co-locator who
perform or any person or entity engaged by or on behalf of applicant
or co-locator to perform construction, repair or maintenance work
on overhead or underground facilities owned by applicant and permitted
by the awarding authority which are located in the right-of-way. The
contractor, for purposes of this bylaw and for all questions of liability
in connection with any construction, repair or maintenance work on
overhead or underground facilities owned by applicant which are located
in the right-of-way, shall be conclusively deemed an agent of applicant
or co-locator for whom applicant or co-locator is fully responsible.
DEFAULT
The failure of the permit holder (including all contractors
or other agents of permit holder):
A.
To pay when due any license rental;
B.
To perform fully any covenant of the license or otherwise fail
to comply with any provision of the license agreement, the right-of-way
permit or the bylaw following 10 days' prior written notice to licensee
from Town;
C.
To keep its certificate of insurance in full force and effect;
or
D.
To provide the service that is outlined in its application (except
for interruptions in service due to emergency repair work) for a period
of six consecutive months.
DEPARTMENT
The Department of Public Utilities created by MGL Chapter
25.
EMERGENCY REPAIR WORK
Right-of-way work which must be commenced immediately to
correct a hazardous condition in which the safety of the public is
in imminent danger, such as a threat to life or health of the public
or where immediate correction is required to maintain or restore essential
public utility service.
EXCESS CAPACITY
The volume or capacity in any existing facility that is not
being used or is not proposed to be used as part of a concrete plan
for the future at the time that an application is made for a right-of-way
permit by an applicant or co-locator.
EXISTING FACILITY
An overhead or underground facility which is in existence
on the date of the application for a right-of-way permit.
FACILITY
Any overhead or underground facility or attachment thereto,
including without limitation any utility or other pipe, duct, line,
pole, wire, cable, transmission line, conduit, pedestal, wave guide,
dish, antenna, electronic or other thing located or proposed to be
located in, on, above, along, under or across a right-of-way.
FCC
Federal Communications Commission.
GRANT OF LOCATION
Permission granted by the awarding authority of the Town
to a public utility, in order to conduct its regulated activities,
to locate poles, piers, abutments or conduits or attachments thereto
or railway routes on, in, above, along, under or across a public way
in accordance with the procedures set out in MGL c. 166, § 22,
MGL c. 161, § 70, MGL c. 162, § 8, and with this
bylaw.
INSPECTOR OF WIRES
That individual appointed by the Town to fulfill the responsibilities
set out in MGL c. 166, § 32.
LICENSE AGREEMENT
An agreement between the Town and an applicant owner of a
facility setting forth detailed contractual terms and obligations
of the owner of a facility and entered into incident to the grant
of a right-of-way permit.
LICENSED CONTRACTOR
A contractor who holds a current and valid public works construction
license issued by the awarding authority.
LOCAL EXCHANGE CARRIER
Every person or entity that directly or indirectly owns,
controls, operates and manages plant, equipment or property within
the Town used or to be used for the purpose of offering telephone
service and which is licensed by the FCC and certified by the Department
under MGL Chapter 159 as a local exchange carrier.
MEASURABLE INTERFERENCE
Interference as defined by FCC Regulations (47 C.F.R.) which
affects the telecommunications services provided by a permit holder.
MODIFICATION
A material physical change to an existing facility such that
its use or capacity is materially altered.
NEW FACILITY
An overhead or underground facility or an attachment that
has not yet been constructed but that is proposed and described in
an application for a right-of-way permit.
OCCUPIED AREA
The area in square feet to be occupied by an overhead facility
(including space adjacent to the facility and rendered practically
unusable by others, whether because of physical limitations or potential
measurable interference or otherwise), all as reasonably determined
by the awarding authority. In the case of pole lines, for the purposes
of computing square feet, the width dimension generally shall be determined
with reference to the maximum distance that protuberances such as
crossarms, guy wires, etc. extend perpendicularly from the center-line
of the poles. Also included in the license for a pole, and at no additional
rental, is the right to penetrate the surface of the right-of-way
to the depth reasonably necessary to support the pole.
OCCUPIED VOLUME
The volume measured in cubic feet occupied by an underground
facility (including space adjacent to the facility rendered practically
unusable by others, whether because of physical limitations or potential
measurable interference or otherwise), all as reasonably determined
by the awarding authority.
OVERHEAD FACILITY
Any tower, telecommunication facility and pole, including
poles and overhead wires and associated overhead structures, including
attachments located or proposed to be located above the surface of
the right-of-way, including the underground supports and foundations
for such facilities.
PERMIT HOLDER
An applicant or co-locator to whom a right-of-way permit
has been granted.
PERMIT TERM
The period commencing on the date of filing of an application
and ending upon the earlier to occur of:
A.
The expiration of the useful life of the facility as reasonably
determined by the awarding authority; or
B.
Thirty years from the date of application.
POLE ATTACHMENT
An attachment which is a wire or cable for transmission of
intelligence by telegraph, telephone or television, including cable
television, or for the transmission of electricity for light, heat,
or power or for the transmission of telecommunications services and
any related device, apparatus, appliance or equipment installed upon
any pole or in any telegraph duct or conduit owned or controlled in
whole or in part by one or more public utilities.
POLE or POLES AND OVERHEAD WIRES AND ASSOCIATED OVERHEAD STRUCTURES
Poles, towers, supports, wires, conductors, guys, stubs,
platforms, crossarms, braces, transformers, insulators, cut-outs,
switches, communication circuits, appliances, attachments, and appurtenances
located above ground, upon, along or across any public way or private
ways of the Town and used or useful in the transmission of intelligence
by electricity or otherwise, or for the transmission of television
signals, whether by electricity or otherwise, or for the transmission
of electricity for lighting, heating or power, or for the construction
or operation of a street railway or an electric railroad; provided
that said phrase shall not mean or include any of the following: poles,
towers, overhead wires and associated overhead structures used exclusively
in the transmission but not the distribution of electricity; poles
used exclusively for police and fire alarm boxes or any similar municipal
equipment installed under the supervision and to the satisfaction
of the engineer of the municipality; wires (exclusive of supporting
structures) crossing any portion of any underground utility district
from which overhead wires have been prohibited, or connecting to buildings
on the perimeter of such portion, when such wires originate in an
area from which poles and overhead wires and associated overhead structures
are not prohibited; overhead wires attached to the exterior surface
of a building by means of a bracket or other fixture and extending
from one location on the same building or to an adjacent building
without crossing any public right-of-way; radio antennas, their associate
equipment and supporting structures used by a utility for furnishing
communication services; and service terminals including transformers
in pedestals above ground used to distribute electric or communication
service in underground systems.
PUBLIC UTILITY
A gas and electric company subject to MGL Chapter 164, telephone and telegraph company subject to MGL Chapter 166, cable TV company subject to MGL Chapter 166A, water and aqueduct company subject to MGL Chapter 165, or street railway subject to MGL Chapter 161 or electric railroad subject to MGL Chapter
162.
PUBLIC UTILITY USE
The use of a facility by a public utility during the permit
term in conducting its regulated activities, but not including any
non-public utility use by such public utility or any use by a non-regulated
affiliate of a public utility or any other use by any other person
or entity.
PUBLIC WAY
Any road (including such appurtenances as berms, curbs, drains,
sewers, water mains, sidewalks and paved and unpaved shoulders within
the paper layout) to which the public has access and that the Town
is responsible for maintaining.
PUBLIC WORKS CONSTRUCTION LICENSE
A license required of all contractors who are not officers
or employees of a public utility or of a municipal department who
wish to perform street opening work in the public ways of the Town.
REGULATED ACTIVITIES (OF PUBLIC UTILITIES)
The transmission of natural gas and electricity by a gas or electric company subject to MGL Chapter 164, the transmission of voice or telegraph messages by a telephone and telegraph company subject to MGL Chapter 166, the transmission of video broadcasts by television or cable television (including other activities deemed incidental thereto by federal law) subject to MGL Chapter 166A, the provision of street railway services subject to MGL Chapter 161 or transportation by electric railroad subject to MGL Chapter
162.
RIGHT-OF-WAY
The surface and space on, along, above and below any real
property which is a public way or other way in which the Town has
an interest in law or equity, whether held in fee or other estate
or interest, or as trustee for the public, including, but not limited
to, any public street, boulevard, road, highway, freeway, lane, alley,
court, sidewalk, parkway, river, tunnel, viaduct, bridge, park, skyway,
or skyway bridge.
RIGHT-OF-WAY PERMIT
A permit granted by the awarding authority to an applicant
for permission to construct, to repair and maintain, and to use overhead
and underground facilities that it owns and which are located or to
be located in the right-of-way. Also a permit granted by the awarding
authority to a co-locator for an attachment to a new or existing facility.
RIGHT-OF-WAY WORK
Any construction, repair or maintenance of utility or other
pipes, ducts, lines, poles, wires, cables, conduits, pedestals, antennas,
dishes, electronics or other thing located in, on, above, under or
across a right-of-way.
STREET OPENING WORK
Any cutting, excavating, compacting, construction, repair
or other disturbance in or under a public way, together with restoration
of the public way in accordance with the Town's Street Opening Bylaw following such disturbance, but excluding the location
or relocation of utility poles for which a grant of location has been
obtained pursuant to MGL c. 166, § 22.
TELECOMMUNICATIONS
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.
TELECOMMUNICATIONS CARRIER
Every person or entity that directly or indirectly owns,
controls, operates or manages plant, equipment or property within
the Town used or to be used for the purpose of offering telecommunications
service and which is licensed by the FCC and certified by the Department
under MGL Chapter 159 as a telecommunications common carrier.
TELECOMMUNICATIONS FACILITY
A facility other than customer premises equipment used by
a telecommunications carrier to provide telecommunications service
and includes software integral to such equipment (including upgrades),
cables, wires, lines, wave guides, electronics, dishes and antennas.
TELECOMMUNICATIONS SERVICE
The offering of telecommunications for a fee directly to
the public or to such classes of users as to be effectively available
directly to the public regardless of the telecommunications facilities
used.
TOWN
The Town of Foxborough.
TRANSMISSION LINE
Lines and associated structures used for the transmission
of electric energy sold, or to be sold, at wholesale in interstate
commerce.
UNDERGROUND FACILITY
Any pipe, duct, line and conduit and telecommunications facility
or other thing including attachments located or proposed to be located
under the surface of the ground, but excluding the underground foundations
or supports for overhead facilities.
USABLE SPACE
The total usable capacity of any overhead or underground
facility located in the right-of-way as reasonably determined by the
awarding authority.
Each applicant holding a right-of-way permit for a facility,
except to the extent exempt as provided in Subsection C hereafter,
shall make an annual license rental payment to the Town for the nonexclusive
right to use certain rights-of-way in the Town of Foxborough. Annual
license rental payments shall be computed as set out in Subsections
A and B hereafter.
A. Overhead license rental payments.
(1) The overhead license rental payment for each overhead facility shall
be computed by multiplying the occupied area of the facility by the
applicable overhead license rental rate.
(2) The occupied area of an overhead facility shall be determined in
the reasonable discretion of the awarding authority.
(3) The overhead license rental rate shall be determined annually by
the awarding authority within 60 days of the commencement of each
fiscal year utilizing assessment data for the fiscal year just ended.
The rate for the fiscal year in which an application is filed (or
the year of the effective date in the case of grandfathered facilities)
shall be the applicable rate for the entire permit term.
(4) An annual overhead license rate shall be calculated by:
(a)
Determining the assessed value of all taxable land in the Town
for the previous fiscal year; and
(b)
Dividing the amount obtained in Subsection
A(4)(a) by the total number of acres of land in Town subject to tax in that fiscal year and by expressing this quotient on a dollar per square foot basis (this represents a reasonable method to derive the value of the Town's investment in its rights-of-way); and
(c)
Determining, in the reasonable judgment of the awarding authority,
the Town's combination of these two items shall be expressed as an
amortization constant. (This constant represents the Town's reasonable
judgment of the term over which the Town should recover its investment
in its rights-of-way and a reasonable return on such investment.);
and
(d)
Multiplying the quotient obtained in Subsection
A(4)(b) above by the constant determined in Subsection
A(4)(c) and by expressing this product in dollars per square foot.
B. Underground license rental payment.
(1) The underground license rental payment for each underground facility
shall be computed by multiplying the occupied volume of the facility
by the applicable underground license rental rate.
(2) The occupied volume of an underground facility shall be determined
in the reasonable discretion of the awarding authority.
(3) The underground license rental rate shall be determined annually
by the awarding authority within 60 days of the commencement of each
fiscal year utilizing assessment data for the fiscal year just ended.
The rate for the fiscal year in which an application is filed (or
the year of the effective date in the case of grandfathered facilities)
shall be the applicable rate for the entire permit term.
(4) An annual underground license rate shall be calculated by dividing the product obtained from the calculation described in Subsection
A(4)(d) above by the usable depth of the rights-of-way in the Town of Foxborough as reasonably determined by the awarding authority and expressing the quotient so obtained in dollars per cubic foot.
C. Exemption from rental payments. Applicants utilizing facilities (which
includes use by co-locators) on the terms described below shall be
exempt from the payment of underground or overhead license rental
payments during the periods described as follows:
(1) Applicants which are municipal departments to the extent that such
facilities are used only for municipal purposes are exempt from the
payment of rental payments hereunder.
(2) Applicants with grandfathered facilities shall be exempt from the
payment of rental payments to the extent of the type and extent of
the uses being made of such grandfathered facilities as of the effective
date and during the period commencing on the effective date and ending
on the expiration or earlier termination of the permit term.
(3) Applicants with grandfathered facilities which after the effective date propose to make uses of them, or allow co-locators to make uses of them, which are not public utility uses, shall have the exemption described in Subsection
C(2) above reduced pro-tanto as reasonably determined by the awarding authority and shall forthwith begin paying a pro-tanto portion of the annual rental payment for the use of the facility no longer subject to exemption. The rental payment shall be calculated as described above and the calculation shall utilize the fiscal year in which the application for nonexempt use is made. The pro-tanto nonexempt portion of the annual rental payment shall be reasonably determined by the awarding authority by comparing the portion of the occupied area or occupied volume subject to nonexempt use to the total occupied area or occupied volume of the facility. Evidence of well-established uniform practices evidenced by written policies or procedures of applicants in establishing pole attachment fees or other similar charges to co-locators or in allocating costs among affiliates shall be considered as prima facie evidence in determining reasonable allocation by the awarding authority.
(4) Applicants with new and existing facilities which after the effective date propose to make public utility use or allow co-locators to make public utility use of a facility shall be pro-tanto exempt during the permit term from the payment of the appropriate annual rental payment otherwise payable with respect to such facility to the extent of its public utility use determined as set out in Subsection
C(3) above.
(5) The routine replacement of a portion of a facility or a minor adjustment
of the location of part of a facility (such as the replacement or
relocation of a pole or replacement of wires or cables) in situations
where the use and capacity remain unchanged in some circumstances
may require an applicant or co-locator to file an application for
a right-of-way permit but in such situations the exempt status of
the facility shall not be affected.
(6) All exemptions except those for municipal departments shall end upon
the end of the initial permit term, but in no event later than 30
years from the effective date unless then applicable law shall require
a continuation of the exemption.
A person or entity aggrieved by a decision of the awarding authority
under this bylaw may appeal such decision to the appropriate court
of competent jurisdiction or, to the extent applicable law provides,
to the Department or the FCC.
If any clause, section, or other part of this bylaw shall be
held invalid or unconstitutional by any court of competent jurisdiction,
the remainder of this bylaw shall not be affected thereby but shall
remain in full force and effect.
Notwithstanding any provision of this bylaw to the contrary,
any (i) applicant that holds a valid license issued by the Town pursuant
to MGL c. 166A, § 3 (a "CATV license"); or (ii) applicant
that is a public utility and that holds a valid grant of location
issued pursuant to MGL Chapter 166 to install, maintain and operate
its facilities in the rights-of-way shall not be required to submit
to the Town an application for permission to install, maintain or
operate facilities legally authorized by such applicant's CATV license
or grant of location and shall be exempt from complying with the provisions
of this bylaw, provided, and to the extent that, such applicant's
CATV license or grant of location authorizes the applicant to install,
maintain and operate its facilities in the Town and provided that
such applicant remains in compliance with all the requirements and
conditions of:
C. MGL Chapter 164, MGL Chapter 166 and MGL Chapter 166A, as applicable;
and
D. Regulations of the Department.