[Adopted 10-14-2003 by Ord. No. 2003-26]
The meanings of the terms used in this article shall be as follows:
APPLICANT
Any telecommunications provider that has applied for a right-of-way permit or a construction permit.
APPLICATION
The form prescribed by the City of Hazleton that the applicant must complete in order to obtain a right-of-way permit.
CONSTRUCTION
The building, erection or installation in, along, on, above, within or under a right-of-way. Such term does not include maintenance or repair of facilities in the right-of-way or a single line extension from facilities in the right-of-way.
CONSTRUCTION PERMIT
The written authorization that must be obtained from the City before a telecommunications provider may perform construction in the rights-of-way.
EMERGENCY
An interruption of service or a condition that poses a clear and immediate danger to life or health, or significant loss of property.
FACILITIES
Any portion of a telecommunications system located in, along, on, above, within or under the rights-of-way.
IN
When used in conjunction with rights-of-way, such term means in, along, on, above, within or under a right-of-way.
MAINTENANCE
Work of a minor nature to keep an existing condition from failure or decline.
PERMIT HOLDER
The telecommunications provider that has obtained a right-of-way permit.
RESTORE or RESTORATION
The process by which a right-of-way is returned to a state that is as good as or better than its condition before construction.
RIGHT-OF-WAY
The surface and space in, along, on, above, within or under any real property in which the City 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 or any other place, other than real property owned in fee by the City.
RIGHT-OF-WAY PERMIT or PERMIT
A written authorization granted by the City to an applicant for use of the rights-of-way in the City.
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 PROVIDER or PROVIDER
Any firm, partnership, association, corporation, company or other business entity that provides telecommunications services to customers.
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 facilities used.
TELECOMMUNICATIONS SYSTEM
The wires, lines, cables, optic fiber, conduits, wave guides, towers, antennae or other distribution facilities and any associated equipment designed, constructed and installed for the purpose of providing, distributing, receiving or amplifying telecommunications to or from locations within the City.
UNDERGROUND FACILITIES
All facilities that are located wholly or partially under a right-of-way.
This article is enacted pursuant to Title II of the Federal Communications Act, 47 U.S.C. § 253, the applicable regulations of the Federal Communications Commission, applicable Pennsylvania law and the general police powers applicable to municipalities in the Commonwealth of Pennsylvania.
A. 
No telecommunications provider shall enter upon or occupy any right-of-way for the purpose of installing, constructing, maintaining or operating a telecommunications system without first having obtained a right-of-way permit from the City. Any provider maintaining or operating a telecommunications system as of the effective date of this article shall obtain a right-of-way permit. The right-of-way permit is in addition to, and is not a substitute for, any other permits required by the City.
B. 
Before a right-of-way permit is issued, the applicant shall have obtained any and all required approvals, permits or authorizations from applicable federal and state regulatory authorities. Upon request by the City, the applicant shall submit written evidence of its receipt of all such approvals, permits or authorizations.
C. 
Any telecommunications provider that obtains a rights-of-way permit shall have the nonexclusive right to utilize the City's rights-of-way subject to the terms and conditions contained herein and applicable federal, state and local law.
A. 
A right-of-way permit shall only be granted after an applicant has completed an application in the form prescribed by the City, which form may be revised from time to time. Upon request, an applicant shall be provided with an application for a right-of-way permit. The application shall request information regarding the applicant's proposed or actual physical use and occupation of the rights-of-way.
(1) 
Specifically, the application shall request information pertaining to the following:
(a) 
A general description of the telecommunications service or services to be offered or currently offered in or through the City;
(b) 
Specific information regarding the facilities it proposes to install or currently maintains in the rights-of-way;
(c) 
The expected physical burden that such facilities will place or do place on the rights-of-way; and
(d) 
Whether the facilities will or do have a detrimental effect on public safety as it relates to the rights-of-way.
(2) 
If the completed application does not fully provide the requested information, the City may request such additional information as is necessary.
B. 
Upon submission of a fully completed application and the accompanying fee, the City shall review the application as follows. For new applicants, the City shall grant or deny such applications within 60 days. For existing permit holders applying for a renewal of their permits, the City shall grant or deny such applications within 30 days. If the City fails to grant or reject an application within the time periods specified, the application shall be deemed approved. In each case, the City 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.
C. 
In considering an application, the City may use such outside experts as it deems necessary. In the event the City deems it necessary to employ an outside expert or experts to advise the City with respect to a particular application, the reasonable costs of such expert or experts shall be borne by the applicant.
The right-of-way permit shall be valid for a period of one year. Permit holders that wish to apply for a renewal of a right-of-way permit shall submit a fully completed application to the City at least 30 days prior to the expiration of the permit.
A. 
No telecommunications provider shall perform any construction in the rights-of-way without first obtaining a construction permit from the City.
B. 
Except in the case of an emergency, before commencing any construction in the rights-of-way, a telecommunications provider shall submit to the City detailed plans of the proposed construction activity. Such plans shall include the type of construction activity, the facilities proposed to be installed or erected, the specific locations of the construction activity and the scheduled beginning and ending dates of all planned construction. Such plans shall also include the name(s), address(es) and experience of any and all subcontractors whom the applicant intends to utilize. Such information may be submitted concurrently with an application for a right-of-way permit.
C. 
Upon submission of all such information required in Subsection B above, the City shall review such information and either grant or deny a construction permit within 60 days. If the City fails to grant or deny the construction permit within such time period, the permit shall be deemed granted. In each such case, the City shall review the information provided herein to determine whether such construction would have a detrimental impact on public safety as it relates to the rights-of-way. The City may impose conditions on the construction permit regulating the times, locations, and manner of construction to preserve effective traffic flow, prevent hazardous road conditions and/or minimize noise impacts.
[Amended at time of adoption of Code (see Ch. 1, General Provisions, Art. I)]
A. 
Each new applicant for a right-of-way permit shall include with its application an application fee in such amount as provided in the fee schedule adopted by resolution of the City Council. This fee, which may be adjusted from time to time by the City Council, is directly related to the City's costs in reviewing the application (excluding expert costs) and managing the rights-of-way with respect to each permit holder. Such costs in managing the rights-of-way include, but are not limited to, the costs of maintaining the rights-of-way, including inspection costs and traffic control expenses, the cost of the degradation of the rights-of-way and administrative expenses. This fee will not be refunded in the event the application is denied. If the application is granted, the application fee will apply to the full term of the right-of-way permit of one year. If the applicant applies for a construction permit concurrently with the application for a right-of-way permit, then the application fee contained herein shall apply to both the right-of-way permit and the construction permit.
B. 
Each existing permit holder applying for a renewal of its right-of-way shall pay to the City an annual fee in the amount as provided in the fee schedule set by resolution of the City Council at least 30 days prior to the expiration of the right-of-way permit. This fee, which may be adjusted from time to time by the City Council, is directly related to the City's costs in managing the rights-of-way with respect to each permit holder. Such costs include, but are not limited to, the costs of maintaining the rights-of-way, including inspection costs and traffic control expenses, the costs of the degradation of the rights-of-way and administrative expenses.
C. 
Each applicant for a construction permit shall include with its application an application fee in the amount as provide in the fee schedule set by resolution of the City Council. This fee, which may be adjusted from time to time by the City Council, is directly related to the City's costs in reviewing the application and determining time, place and manner restrictions on the construction activity. If the application for a construction permit is denied, this fee shall not be refunded. If the application is granted, then the applicant shall also pay, within 30 days of the presentation of a statement, the City's actual costs based on the hourly rate established by resolution of the City Council. Such actual costs include, but are not limited to, costs of disruption and rerouting of traffic, inspection costs and administrative costs.
D. 
Extraordinary expenses. In addition to the fees set forth above, a permit holder shall pay, within 30 days of the presentation of a statement, any extraordinary or unusual expenses reasonably incurred by the City as a result of the permit holder's use of the rights-of-way, provided that the City notifies the permit holder of the expected expenses prior to them being incurred and provides the permit holder with an opportunity to mitigate such expenses. Examples of extraordinary or unusual costs include, but are not limited to, the cost of obtaining and operating heavy equipment to repair the rights-of-way and overtime or special pay for police officers or other emergency services. The statement of such expenses presented to the permit holder shall be directly related to the City's actual costs.
A. 
The City shall have the right to limit the installation or placement of new or additional facilities in the right-of-way if there is insufficient space in the right-of-way or on existing poles or other facilities to reasonably accommodate the new or additional facilities. The City shall consider requests for occupying and using the rights-of-way in the order of receipt of fully completed applications for right-of-way permits. The City 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.
B. 
The City shall have the right to inspect and monitor the telecommunications systems and the facilities related thereto located in the rights-of-way in order to prevent interference between and among such systems and facilities and the equipment of other users occupying the rights-of-way.
C. 
A permit holder shall allow the City to make inspections of any part of the permit holder's telecommunications system or facilities located in the rights-of-way at any time.
A. 
The construction of any facilities in the rights-of-way shall not endanger or interfere with the safety of persons or property. All operating, maintenance, construction and repair personnel shall be thoroughly trained in the safe use of all equipment and in the safe operation of vehicles. Such personnel shall follow all safety procedures required by applicable federal, state and local laws and regulations. The permit holder shall routinely inspect and maintain all areas of the telecommunications system so that conditions that could develop into safety hazards shall be corrected before they become a hazard.
B. 
The permit holder shall construct its facilities so as not to unreasonably interfere with the other users of the rights-of-way. A permit holder shall make use of existing poles and other facilities available to the permit holder to the greatest extent possible. Any attachments to existing facilities shall only be made with the prior written permission of the owners of such facilities.
C. 
Whenever a permit holder or any of its subcontractors shall disturb any pavement, sidewalk or other public property in order to perform any underground activities, the permit holder will fully comply by registering with Pennsylvania's "One Call" system pursuant to 73 P.S. § 176 et seq. Each permit holder shall perform construction activity in a manner consistent and in compliance with the detailed plans it submitted to the City and all applicable federal, state and local laws and regulations.
D. 
Whenever a permit holder or any of its subcontractors shall cause damage to the right-of-way or to City property in the right-of-way, the permit holder shall restore such right-of-way or property within 10 business days, weather permitting.
E. 
All construction activity shall be performed in an orderly and workmanlike manner, and in close coordination with public utilities serving the City following accepted industry procedures and practices. All wires, cables and other horizontal facilities shall be installed, where possible, parallel with electric and telephone lines, and multiple cable configurations shall be arranged in parallel and bundles with due respect for engineering considerations.
F. 
All applicable facilities shall be installed underground where required by City ordinance or regulation consistent with the same requirement being imposed on all other similarly situated companies, including public utilities.
G. 
Except in the case of an emergency, at least three days prior to the commencement of any construction activity, the permit holder shall notify nearby residents of such construction activity in a manner that is satisfactory to the City. The name of the permit holder shall be clearly disclosed to such residents.
H. 
All construction activities by a permit holder in the rights-of-way shall be performed in accordance with applicable provisions of the City Code and any subsequent ordinances and regulations regarding construction or excavation work.
A. 
A permit holder shall, at its sole cost and expense, indemnify and hold harmless the City, its elected and appointed officials, employees and agents, at all times against any and all claims, causes of action, liability, damages, demands, losses and expenses, including reasonable attorneys' fees, resulting from or in any manner arising out of the permit holder's action or inaction in the construction, operation, maintenance, repair or removal of any of its facilities in the rights-of-way. The obligation to indemnify and hold harmless shall include, but not be limited to, the obligation to defend any actions or proceedings against the City, pay judgments, injuries, liabilities, damages, attorneys' fees, reasonable expert fees, court costs and all other costs of indemnification. The City shall notify the permit holder in a timely manner of any claims subject to indemnification and shall cooperate with all reasonable requests by the permit holder for information, documents, testimony or other assistance appropriate to a resolution of such claims.
B. 
A permit holder shall at all times during the term of a permit carry and require its subcontractors to carry liability, property damage, worker's disability, and vehicle insurance in such form and amount as shall be determined by the City as set forth in the permit. A permit holder shall name the City as an additional insured on its liability insurance policies. All required insurance coverage shall provide for 30 days' written notice to the City in the event of material alteration or cancellation of such coverage.
A. 
A permit holder shall annually provide the City, upon application for renewal of the permit, or upon request, the current maps of the horizontal and vertical locations of its existing facilities and a summary of all additions and deletions of facilities in the rights-of-way, unless no changes have occurred in the previous year. If no changes have occurred in the previous year, permit holder shall so inform the City.
B. 
A permit holder shall submit to the City such reasonable information directly related to the permit holder's use and occupation of the rights-of-way as the City may request. All information provided to the City shall be maintained by the City as proprietary and confidential to the extent permitted under applicable law if such information is designated in good faith as such prior to the time it is provided to the City.
A right-of-way permit may be transferred or assigned, upon 30 days' written notice to the City, provided that the transferee or assignee agrees in writing to comply with all of the obligations and requirements contained in this article.
A permit holder may be required, prior to construction, to obtain a performance bond in a reasonable amount set by the City based upon the construction cost of the facilities to be installed in the rights-of-way and the extent of the disturbance of such rights-of-way. The performance bond shall ensure the permit holder's faithful performance of its construction obligations. The City may reduce or cancel the bond requirement when construction is completed.
A. 
In addition to all other rights and powers of the City, the City reserves the right to terminate a permit and all rights and privileges of a permit holder for any of the following reasons:
(1) 
A permit holder fails, after 30 days' prior written notice, to comply with any of the material provisions of the permit or this article.
(2) 
A permit holder practices fraud or deceit in its conduct or relations with the City pursuant to the permit.
(3) 
A permit holder seeks, or an involuntary case is brought against the permit holder, seeking liquidation, reorganization, or other relief under any bankruptcy, insolvency or similar laws and such proceeding shall remain undismissed for a period of 180 days.
(4) 
The permit holder abandons the telecommunication system or any of its facilities in the City.
B. 
No termination shall be effective unless and until the Hazleton City Council shall have adopted a resolution setting forth the cause and reason for the termination and the effective date, which resolution shall not be adopted without 30 days' prior notice to permit holder and an opportunity for the permit holder to be heard before the City Council with respect to the proposed resolution.
A. 
Upon expiration or termination of the permit, if the permit is not renewed, the permit holder shall, upon 60 days' prior written notice to the permit holder, remove its facilities from the rights-of-way and shall restore said areas. If such removal is not completed within six months of such notice, the City may deem any property not removed as abandoned and the City may remove it at the former permit holder's expense.
B. 
During the term of the permit, if the permit holder decides to abandon or no longer use all or part of its telecommunications system and/or facilities, it shall provide the City with written notice of its decision, which notice shall describe the facilities and their locations. The City shall have the right to require the permit holder to remove the facilities upon 60 days' prior written notice to the permit holder. If such removal is not completed within six months of such notice, the City may remove it at the permit holder's expense.
[Amended at time of adoption of Code (see Ch. 1, General Provisions, Art. I)]
If a telecommunications provider or a permit holder violates any of the terms of this article, it shall be subject to the penalties provided in Chapter 1, Article II, Violations and Penalties.
The City, by granting any permit under this article, does not waive, reduce, impair or surrender the lawful exercise of its police powers to provide for the health, safety and welfare of the public as vested in the City under applicable federal, state and local laws pertaining to the regulation or use of the rights-of-way.
The provisions of this article shall be applied and enforced in a neutral and nondiscriminatory manner with respect to all telecommunications providers requiring a permit from the City.