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(1) Definitions. Terms used in this Chapter shall have the following meanings, whether or not the terms are capitalized. Unless otherwise expressly stated, terms not defined in this Chapter shall be construed consistent with Title 47 of the United States Code, and, if not defined therein, with their common and ordinary meaning.
(a) Aerial Facilities. Poles, wires, cables, associated equipment, and other Facilities located above the surface of the ground, including their underground supports and foundations.
(b) Cable Acts. The Cable Communications Policy Act of 1984, as amended by the Cable Television Consumer Protection and Competition Act of 1992, as amended by portions of The Telecommunications Act of 1996, and as hereafter amended (47 U.S.C. §§ 521 et seq., as amended and hereafter amended).
(c) Cable Franchise. Shall have the meaning provided for the term "franchise" in the Cable Acts, 47 U.S.C. § 522(9).
(d) Cable Franchise Agreement. The agreement entered into by the City and a Cable Operator setting forth the terms and conditions of a Cable Franchise issued to the Cable Operator by the City.
(e) Cable Operator. Shall have the meaning provided in the Cable Acts, 47 U.S.C. § 522(5).
(f) Cable Service. Shall have the meaning provided in the Cable Acts, 47 U.S.C. § 522(6).
(g) Cable System. Shall have the meaning provided in the Cable Acts, 47 U.S.C. § 522(7).
(h) City Agency. Any department, board, commission, office, or agency of the City administration, including the Philadelphia Gas Works, but not including: concessionaires of the City; municipal, transportation, industrial development, housing, redevelopment, and other authorities and corporations established pursuant to the statutes of the Commonwealth; SEPTA; or the Philadelphia School District.
(i) City Work. All construction work performed by the City or any City Agency, with its own personnel or under contract, including repair, alteration, replacement, or maintenance of Facilities owned, operated, maintained, or controlled by the City or for which the City is responsible.
(j) Combined Underground Facilities. The aggregate of the pipes, conduit banks, conduits, and/or directly buried cables that a Licensee owns in an underground section of the ROW. For purposes of determining the linear feet of Combined Underground Facilities owned by a Licensee, all such Facilities located adjacent to each other in the same underground section of the ROW shall be considered a single Facility; for example, all conduits in a conduit bank shall be considered a single Facility, a conduit and the cable installed in the conduit shall be considered a single Facility, and multiple adjacent pipes shall be considered a single Facility.
(k) Commissioner. Collectively, the Streets Commissioner and designees.
(l) Communications Act. The Communications Act of 1934, 47 U.S.C. §§ 151 et seq., as amended and as hereafter amended.
(m) Construction Permit. Any permit issued pursuant to this Chapter or Chapters 9-300 or 11-200 for the construction or installation of Facilities in any Right-of-Way in the City, including, but not limited to, permits for excavation; for installation of underground conduit, ducts, manholes, handholes, and/or appurtenances thereto, or any other type of Underground Facilities; for construction or erection of poles, pole extensions, overhead fiber optic cable, appurtenances thereto, or any other type of Aerial Facilities; for installing fiber optic or other cable(s) in already installed conduit or ducts; for maintenance and repair activities that involve such construction, installation, or erection; or otherwise for the installation or construction of Facilities in any Right-of-Way.
(n) Emergency Condition. A condition that, in the judgment of the Commissioner, (i) constitutes an imminent risk to the health, welfare, or safety of the public, or (ii) has caused or is likely to cause Facilities already installed to be unusable and result in loss of the services provided through the Facilities.
(o) End User Device. Any device erected in and affixed permanently to the Right-of-Way, including, but not limited to, public pay telephones, that permits end-users to terminate or originate transmissions of voice or data.
(p) Facility(ies). Conduit, pipes, cables, wires, lines, towers, optic fiber, antennae, poles, associated equipment and appurtenances, and any other facilities (exclusive of water and sewer pipes in Plumber's Ditches and End User Devices) located in the Right-of-Way and designed, constructed, and/or used, by Telecommunications Providers, Cable Service and OVS Service providers, Information Service Providers, Public Utilities, or other Persons for transmitting, transporting, or distributing communications, telecommunications, electricity, natural gas or manufactured gas, oil, gasoline, steam, water, waste water, or any other form of energy, signal or substance.
(q) Franchise. A Cable Franchise or OVS Franchise.
(r) Franchisee. Any Person that is issued a Cable Franchise or an OVS Franchise.
(s) Franchise Agreement. A Cable Franchise Agreement or OVS Agreement.
(t) Information Service. Shall have the meaning provided in the Communications Act, 47 U.S.C. § 153(20).
(u) Licensee. The recipient of a Right-of-Way Use License, Franchise, or other Right-of-Way Use Authorization that is issued by the City pursuant to this Chapter, and Persons holding existing franchises, authorizations pursuant to special ordinances, or other authorizations that are subject to the transitional provisions set forth in subsection 11-701(6).
(v) Open Video System or OVS. Shall have the meaning provided in Title 47 of the Code of Federal Regulations, 47 C.F.R. § 76.1500 (a).
(w) Open Video System Agreement or OVS Agreement. The agreement entered into by the City and an OVS Operator setting forth the terms and conditions of an OVS Franchise issued to the OVS Operator by the City.
(x) Open Video System Franchise or OVS Franchise. Right-of-Way Use Authorization pursuant to this Chapter authorizing a Person to own, construct, operate and maintain an OVS System and provide OVS Service over an OVS System within the City.
(y) Open Video System Operator or OVS Operator. Shall have the meaning provided in Title 47, Part 76 of the Code of Federal Regulations, 47 C.F.R. § 76.1500(b).
(z) Open Video System Service or OVS Service. Video programming services, Cable Service, and other services similar to Cable Service that are provided over an Open Video System.
(aa) Person. Individual natural persons; corporations, companies, associations, joint stock companies, firms, partnerships, limited liability companies, and other entities; concessionaires of the City; municipal, transportation, industrial development, housing, redevelopment, and other authorities and corporations established pursuant to statute of the Commonwealth; the Philadelphia School District; and other government entities; provided, that Person does not include or apply to the City or to any City Agency.
(bb) Plumber's Ditch. A trench or other excavation made in the Right-of-Way for the purpose of maintaining, repairing, or replacing a water or sewer pipe used to connect a building or other structure with a water or sewer pipe located in the Right-of-Way in order to provide water or sewer service to the building or structure.
(cc) Public Utilities Commission or PUC. The State administrative agency, or lawful successor, authorized to regulate and oversee Public Utilities and Telecommunications Providers and Telecommunications Service in the Commonwealth of Pennsylvania, to the extent provided by law.
(dd) Right-of-Way or Rights-of-Way or ROW. The surface of and space above and below any real property in the City in which the City has a regulatory interest, or interest as a trustee for the public, as such interests now or hereafter exist, including, but not limited to, all Streets, highways, avenues, roads, alleys, sidewalks, pedestrian and vehicle tunnels and passageways, concourses, viaducts, bridges, and skyways under the control of the City, and any unrestricted public or utility easements established, dedicated, platted, improved or devoted for Utility purposes; provided, that the following lands are not included in the Right-of-Way: lands administered by the Division of Aviation of the Commerce Department; lands owned by the City that are not Streets; and lands, other than the following Streets, that are under the care and jurisdiction of the Fairmount Park Commission: Belmont Avenue, Bells Mill Road, Benjamin Franklin Parkway, Cobbs Creek Parkway, Cresheim Valley Drive, Haverford Avenue, Henry Avenue, Hunting Park Avenue, Kelly Drive, Lansdowne Avenue, Lincoln Drive, Montgomery Drive, Parkside Avenue, Rhawn Street, Roosevelt Boulevard, the Schuylkill Expressway, Southern Parkway, and West River Drive. The phrases "in the Right(s)-of-Way" and "in the right(s)-of-way" mean "in, on, over, along, above and/or under the Right(s)-of-Way" or "right(s)-of-way".
(ee) Right-of-Way Use Agreement or ROW Use Agreement. Written agreement required and entered into pursuant to this Chapter giving a Person the non-exclusive right to own, construct, operate and maintain Facilities in any Right-of-Way in the City.
(ff) Right-of-Way Use Authorization or ROW Use Authorization. A Right-of-Way Use License, Cable Franchise, or OVS Franchise issued pursuant to this Chapter.
(gg) SEPTA. The Southeastern Pennsylvania Transportation Authority.
(hh) Service(s). Any Telecommunications Service, Cable Service, OVS Service, service providing Video Programming, Information Service, Utility service (including, but not limited to, electric, gas, water, or steam service), or other form of service provided by means of Facilities located in the Right-of-Way.
(ii) Street. A strip of land or part thereof within the Right-of-Way, whether dedicated or not, that is intended or used for vehicular and/or pedestrian traffic. The phrase "in the (a) Street(s)" means "in, on, over, along, above and/or under the (a) Street(s)".
(jj) Telecommunications. Shall have the meaning provided in the Communications Act, 47 U.S.C. § 153(43).
(kk) Telecommunications Facilities. The plant, equipment and property within the City used to transmit, receive, distribute, provide or offer Telecommunications Service.
(ll) Telecommunications Provider. Includes every Person who provides Telecommunications Service over Telecommunications Facilities.
(mm) Telecommunications Service. Shall have the meaning provided in the Communications Act, 47 U.S.C. § 153(46).
(nn) Transfer of Interest. As applied to a Right-of-Way Use Authorization and/or the Facilities authorized thereby: the assignment, transfer, or other disposition, directly or indirectly, by sale, lease, merger, consolidation, or other act, by operation of law or otherwise, of any interest, in whole or in part, in the ROW Use Authorization or such Facilities, including, but not limited to, actual control over the ROW Use Authorization.
(oo) Underground Facilities. Facilities located under the surface of the ground or pavement, excluding the underground foundations or supports for Aerial Facilities.
(pp) Video Programming. Programming provided by, or generally considered comparable to programming provided by, a television broadcast station.
(2) Right-of-Way Use Authorization and Agreement Required.
(a) ROW Use Authorization. Except as otherwise provided in this Chapter, no Person shall own, construct, operate, maintain, or repair Facilities in any Right-of-Way of the City to provide or to enable others to provide Services to Persons or areas in the City or outside the City unless a Right-of-Way Use Authorization is first issued to the owner of such Facilities. The types of Right-of-Way Use Authorization are a Right-of-Way Use License, a Cable Franchise, and an Open Video System Franchise.
(b) Authorization of Commissioner Required. Any Right-of-Way Use License shall be authorized and issued only by the Commissioner, and shall not become effective unless or until so authorized and issued. Any Cable Franchise or Open Video System Franchise shall be authorized only by separate ordinance of City Council, and shall not become effective unless or until so authorized. In considering such an authorization, the Commissioner and, where applicable, Council shall consider whether the applicant has demonstrated:
(.1) that it has no substantial history of non-compliance with applicable law and regulation relating to the management of, and the construction and maintenance of Facilities in, Streets and Rights-of-Way, wherever located;
(.2) that it possesses all licenses, permits, and authorizations required by the Federal Communications Commission, the PUC, the Commonwealth, and the City as a condition of its using the Right-of- Way and furnishing the Services and operating the Facilities proposed by the applicant;
(.3) in the case of a Franchise, that its Cable System or Open Video System is responsive to the needs and interests of the local community and has satisfied such further requirements of Council as are permissible under the Communications Act.
Decisions of the Commissioner with respect to any application for a Right-of-Way Use Authorization shall be appealable, within thirty days, to the Board of License and Inspection Review. Nothing in this Chapter, however, shall create any obligation on the part of Council to grant any application or any entitlement in any applicant to any Right-of-Way Use Authorization.
(c) ROW Use Agreement. No ROW Use Authorization shall be effective, nor shall the applicant receive any rights, benefits, or privileges pursuant to the authorization, unless and until the applicant has executed a Right- of-Way Use Agreement, in form and content established by regulation.
(d) Insurance, Indemnification and Security.
(.1) Insurance. The Licensee shall furnish, at the Licensee's expense, insurance for general liability, property damage, bodily injury, and wrongful death, in form, amount and duration determined by the Commissioner by regulation, to cover a loss that may be incurred for construction, reconstruction, repair, relocation or installation of Facilities or other work in the ROW. The City shall be named as an additional insured as provided in subsection (.2). The Commissioner may accept a plan of self-insurance as a substitute for such insurance, if the Commissioner determines that such self-insurance adequately protects the City and the public.
(.a) Each Licensee shall fully indemnify and save harmless and, if requested, defend the City, its officers, agents and employees, of and from liability for damages or injury to the Right-of-Way or to Persons or property in a claim or suit seeking to impose liability on the City, its officers, agents or employees, arising out of an act or omission of a Person, agent, or employee engaged or employed in, about or upon the work by, at the instance of, or with the approval or consent of the Licensee, including, but not limited to, a failure of the Licensee or such Person, agent, or employee to comply with this Chapter, Chapter 9-300, Chapter 11-200, or any Construction Permit. The Licensee shall have the City named as an additional insured on the insurance required under subsection (.1) and any insurance the Licensee requires of such Person, agent, or employee. The coverage of the City as an additional insured shall be limited to the acts or omissions of the Licensee or such Person, agent, servant, or employee.
(.b) The indemnification required under subsection (.a) shall not apply to any liability to the extent it is caused by the negligent or willful acts of the City, its officers, agents or employees; shall be solely for the benefit of the City, its officers, agents or employees; and is not intended to create any rights in any other Licensee or Person.
(.3) Security. In addition to the requirements of subsections (.1) and (.2), the Commissioner may require a Licensee to furnish security, in the form of a surety bond or an unconditional letter of credit where the Commissioner determines that additional security is necessary. If required by the Commissioner, the Licensee shall furnish security, as a condition of any Construction Permit and prior to commencing any work in the ROW, in an amount sufficient to ensure completion of the work in accordance with this Chapter, Chapters 9-300 and 11-200, and the Construction Permit(s); and shall maintain the security as long as it is performing any work in the ROW.
(3) Application for ROW Use Authorization. Application for a ROW Use Authorization, other than an application for a Cable Franchise or OVS Franchise, shall be made on a form, established by the Commissioner by regulation. Within a reasonable period of time after receiving a complete application hereunder, the Commissioner shall make a determination, based on the standards enumerated in subsection (2)(b), approving or denying the application in whole or in part. If the application is wholly or partly denied, the determination shall include the reasons for denial. The Commissioner shall establish by regulation a minimum application fee, the amount of which shall initially be three thousand five hundred dollars ($3,500) in the case of applications for Right-of-Way Use Licenses where the Licensee's Facilities will occupy, in the aggregate, more than two thousand (2,000) linear feet in the Right-of-Way, and seven hundred dollars ($700) where the Licensee's Facilities will occupy, in the aggregate, two thousand (2,000) or fewer linear feet in the Right-of-Way. The application fee will be paid at the time of application. The Commissioner shall review the application fees at least every three (3) years and make such increases or decreases, by regulation, as are appropriate based on the applicable costs of the City.
(4) Use Authorized. No ROW Use Authorization shall confer any exclusive right, privilege or license to occupy or use the Right-of-Way for any purpose; or mean or include any exclusive right or privilege of transacting and carrying on any business within the City; or explicitly or impliedly preclude or affect the City's right to authorize use of the Right-of-Way by other Persons to own, construct, operate, maintain, and/or provide the same or different Facilities or Services, or for other purposes as the City determines appropriate; or affect the City's right to itself construct, operate or maintain any type of Facilities or offer any type of Services in the Right-of-Way, with or without a ROW Use Authorization; or authorize, or excuse any entity from securing, such further easements, leases, permits or other approvals as may be required by applicable law or regulation to occupy and use the Right-of- Way; or convey any right, title or interest in any Right-of-Way greater or other than an agreement only to use and occupy the Right-of-Way for the purposes and term provided in the authorization, the authorizing ordinance of Council, if required under this Chapter, and/or the Right-of-Way Use Agreement; or be construed as any warranty of title.
(5) Transitional Provisions.
(a) Persons already authorized to occupy the Right-of-Way. Any Person holding a special ordinance, license, or other authorization from the City to own, construct, operate, and/or maintain Facilities in the Right-of- Way to provide Services, or Facilities for others, may continue to conduct those activities expressly authorized, and to own, construct, operate and/or maintain those specific Facilities and route(s) authorized for the purposes provided in the authorization until the earlier of (i) the conclusion of the present term of its existing authorization (but not any renewal or extension thereof) or (ii) one year after the effective date of this Chapter; provided, that in the case of a Franchise, such authorization shall continue until the expiration of the current term of the Franchise. Notwithstanding the foregoing, such Persons (with the exception of Franchisees) shall apply for a superseding ROW Use Authorization pursuant to this Chapter within one hundred and twenty (120) days after the effective date of the Chapter; and shall be subject to this Chapter to the extent permitted by law.
(b) Pending applications. Applications for an authorization to occupy or use the Right-of-Way that are pending on the effective date of this Chapter shall be subject to this Chapter. A Person with a pending application shall submit additional information to comply with the requirements of this Chapter and applicable regulations of the Commissioner governing applications within thirty (30) days from the effective date of this Chapter.
(c) Persons operating without a ROW Use Authorization. The owner or operator of any Facilities currently located in the Right-of-Way, the construction, operation, or maintenance of which is not currently authorized but is required to be authorized under this Chapter, shall have one hundred and twenty (120) days from the effective date of this Chapter to file its application(s) for a ROW Use Authorization. Any Person timely filing such an application shall not be subject to a penalty for failure to have such a ROW Use Authorization, as long as said application remains pending; provided, however, that nothing herein shall relieve any person of any liability for its failure to obtain any permit or other authorization required under other provisions of this Code, or City ordinances or regulations, and nothing herein shall prevent the City from requiring removal of any facilities installed in violation of this Code or City ordinances or regulations.
(6) Owner's Consent. No ROW Use Authorization expressly or impliedly authorizes a Licensee to provide any Services to, or install any Facilities on, any private property without the owner's consent, or to use publicly or privately owned poles, ducts or conduits without a separate agreement with the owners thereof for such use.