[Ord. 06-11, 11/27/2006, § 1]
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 New Hanover without having first been
issued a license by the Township.
[Ord. 06-11, 11/27/2006, § 2]
1. The purpose of this part is:
A. 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.
B. To provide the Township with compensation for occupation and use
of the Township's rights-of-way for a communications system.
C. To provide the Township with compensation for acquisition and maintenance
of Township's rights or way when used for commercial purposes.
D. To provide the Township with compensation for the cost of regulation
imposed by this chapter on a communication system.
[Ord. 06-11, 11/27/2007, § 3]
For the purposes of this part 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 part, unless the context clearly indicates otherwise
or unless such meaning would be inconsistent with the manifest intent
of the Board of Supervisors:
APPLICANT
The person who has applied for a right-of-way license.
APPLICATION
The form prescribed by New Hanover 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.
CUSTOMER
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 communication system licensed by the Township.
FCC
The Federal Communications Commission or its legally appointed
successor.
LICENSE
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.
LICENSEE
The person or its legal successor in interest who is issued
a license or licenses in accordance with the provisions of this part
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 New Hanover is located and in which Bell of
Pennsylvania is authorized by the Public Utilities Commission of Pennsylvania
to provide local exchange access communication services.
RIGHT-OF-WAY
The surface and space in, on, above, and below any real property
in which New Hanover 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.
STREET
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 is 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 part. 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.
[Ord. 06-11, 11/27/2007, § 4]
All notices required to be given to the Township under any provision
of this part shall be deemed served when delivered by hand in writing
to the Township Manager, at 2943 North Charlotte Street, Gilbertsville,
Montgomery County, Pennsylvania, during normal business hours.
[Ord. 06-11, 11/27/2007, § 5]
This part 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.
[Ord. 06-11, 11/27/2006, § 6]
1. 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 part shall also obtain a right-of-way license.
2. 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.
3. Nothing in this part shall be construed as a waiver of any ordinances
or resolutions of New Hanover 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.
[Ord. 06-11, 11/27/2006, § 7]
1. 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:
(A) a brief description of the communications service or services
to be offered or provided in or through the Township; (B) specific
information regarding the equipment it proposes to place or currently
maintains in the rights-of-way; (C) the expected physical burden that
such equipment will place or does place on the rights-of-way; and
(D) 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.
2. 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.
3. 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.
[Ord. 06-11, 11/27/2006, § 8]
1. Any license issued by the Township in accordance herewith shall be
a nonexclusive licence 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.
2. 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 part, all applicable federal, state and
local ordinances and regulations and the space occupied is not needed
for a public purpose.
[Ord. 06-11, 11/27/2006, § 9]
1. Any license issued for a communications system in accordance herewith
shall apply only to the location or locations stated on the license
or licenses.
2. Nothing in this part 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.
[Ord. 06-11, 11/27/2006, § 10]
1. The Township may suspend any right-of-way license in the event any
one or more of the following has occurred:
A. 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.
B. 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.
C. The license holder failed to pay any of the fees required under this
part.
D. The license holder failed to indemnify, hold harmless and insure the Township in accordance with the provision contained in §
13-416 below.
2. 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.
3. 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 Supervisors 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.
[Ord. 06-11, 11/27/2006, § 11]
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.
[Ord. 06-11, 11/27/2006, § 12]
1. New Hanover Township shall have the following powers and duties:
A. Receive and review applications for licenses for any communications
system.
B. Review and audit all reports and filings submitted by the licensee
to the Township pursuant to this part.
C. 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 Supervisors for review and promulgation.
[Ord. 06-11, 11/27/2006, § 13]
1. 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.
2. 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 part or any license
issued in accordance herewith or for damages either to the full amount
of such bond or otherwise.
[Ord. 06-11, 11/27/2006, § 14; as amended by Ord.
17-03, 3/27/2017]
1. 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 licensee shall pay each
year to the Township the following compensation and license fees:
A. Any communications system which serves no customers other than itself
shall pay compensation and license fees in an amount as established
from time to time by resolution of the Board of Supervisors.
B. Any communication system that serves customers within the Township
shall pay annually 5% of the annual total local gross revenues derived
from such customers.
[Ord. 06-11, 11/27/2006, § 15]
1. The annual compensation and license fee provided for in §
13-414, Subsection
1A, shall be payable annually on or before February 1 of each calendar year.
2. The annual compensation and license fee provided for in §
13-414, Subsection
1B, shall be assessed quarterly for the preceding quarter, as of March 31, June 30, September 30 and December 31 of each year.
A. Each quarterly payment shall be payable and reportable no less than
30 days after the relevant assessment date.
B. 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.
C. 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.
D. Failure to comply strictly with this section shall be deemed to be
a violation of this part and shall subject the licensee to all penalties
and remedies, both legal and equitable which are available to the
Township.
3. 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.
A. All fee payments shall be subject to audit by the Township and assessment
or refund if the payment is found to be in error.
B. 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.
4. Nothing in this part shall be construed to limit the liability of
the licensee for all applicable federal, state and local taxes.
[Ord. 06-11, 11/27/2006, § 16]
1. 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.
2. 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.
3. The Board of Supervisors, 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.
[Ord. 06-11, 11/27/2006, § 17]
1. 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.
2. 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.
3. 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.
[Ord. 06-11, 11/27/2006, § 18]
Nothing in this part or in any license issued in accordance
herewith shall be construed as an abrogation by the Township of its
police powers.
[Ord. 06-11, 11/27/2006, § 19]
1. 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.
2. 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.
3. 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.
4. 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
1 and
2 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.
5. 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.
6. 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.
7. Nothing in this part 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.
8. The licensee shall maintain all wires, conduits, cables, and other
real and personal property and facilities in good condition, order
and repair.
9. 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.
10. The licensee shall comply with all rules and regulations of the Township
governing the construction and installation of communications systems.
In addition:
A. All aerial cables and wires shall be installed parallel with existing
telephone and electric utility wires.
B. Multiple aerial configurations shall be in parallel arrangement and
bundled, in accordance with engineering and safety considerations.
C. All underground installations shall be in the appropriate size and
type conduit or other enclosures approved by the Township.
D. 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.
(1)
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 its sole cost and expense.
E. 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.
F. 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.
[Ord. 06-11, 11/27/2006, § 20]
1. The licensee shall not transfer or assign its interest in any license
issued in accordance herewith without the prior written authorization
of the Township.
2. 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.
[Ord. 06-11, 11/27/2006, § 21]
1. 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.
2. 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.
[Ord. 06-11, 11/27/2006, § 22; as amended by Ord.
17-03, 3/27/2017]
In addition to any other legal and equitable remedies permitted
by law, any person or persons, firm or corporation who shall violate
any provision of this part, upon conviction thereof in an action brought
before a magisterial district judge in the manner provided for the
enforcement of summary offenses under the Pennsylvania Rules of Criminal
Procedure, shall be sentenced to pay a fine of not more than $1,000
plus costs and, in default of payment of said fine and costs, to a
term of imprisonment not to exceed 90 days. Each day that a violation
of this part continues or each section of this part which shall be
found to have been violated shall constitute a separate offense.