(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) Commissioner. Collectively, the Streets Commissioner and designees.
(k) Communications Act. The Communications Act of 1934, 47 U.S.C. §§ 151 et seq., as amended and as hereafter amended.
(l) Department. The Department of Streets.
(m) 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.
(n) End User Device. Any device erected in and affixed permanently to the Right-of-Way, including, but not limited to, pay telephones and kiosks, that allow a Person using an End User Device to terminate or originate transmissions of voice or data.
(o) Facility(ies). Conduit, pipes, cables, wires, lines, towers, optic fiber, antennae, poles, End User Devices, associated equipment and appurtenances, and any other facilities (exclusive of water and sewer pipes in Plumber’s Ditches) located in the Right-of-Way and designed, constructed, and/or used, by Telecommunications Providers, Cable Service and OVS Service providers, Information Service Providers, City Agencies, 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.
(p) Franchise. A Cable Franchise or OVS Franchise.
(q) Franchisee. Any Person that is issued a Cable Franchise or an OVS Franchise.
(r) Franchise Agreement. A Cable Franchise Agreement or OVS Agreement.
(s) Guaranteed Pavement Information System (“GPIS”). The online permitting system developed and used by the Department in connection with the Department’s street opening permit process and to exchange information between Facility owners and the City related to construction, projects and events which may affect City Rights-of-Way.
(t) Information Service. Shall have the meaning provided in the Communications Act, 47 U.S.C. § 153(20).
(u) 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).
(v) 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.
(w) Open Video System Franchise or OVS Franchise. A Franchise authorizing a Person to own, construct, operate and maintain an OVS System and provide OVS Service over an OVS System within the City.
(x) 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).
(y) 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.
(z) 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.
(aa) 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.
(bb) Public Utilities Commission or PUC. The Public Utility Commission of the Commonwealth of Pennsylvania.
(cc) Registered User. Any Person or City Agency that is issued a ROW Registration by the City pursuant to this Chapter, or Persons holding existing franchises, authorizations pursuant to special ordinances of City Council, or other authorizations that are subject to the transitional provisions set forth in subsection 11-701(4).
(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 Registration or ROW Registration. An authorization, issued pursuant to this Chapter, that grants an owner of an Underground Facility or Franchise access to the City’s GPIS system and that acts as a City reference source for all authorized users of the Right-of-Way.
(ff) SEPTA. The Southeastern Pennsylvania Transportation Authority.
(gg) 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.
(hh) 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)”.
(ii) Street Closure Permit. A permit issued by the Department authorizing the temporary (partial or full) closure of the Right-of-Way, including the roadway and/or footway, for the temporary placement of equipment necessary to perform work. These permits are also commonly known as “Street Occupancy” or “Lane Closure” permits.
(jj) Street Opening Permit. A permit required by the Philadelphia Code and/or the Department’s regulations and issued by the Department to open or excavate within the City Right-of-Way. Street Opening Permits, other than those issued for test borings and monitoring wells, are also commonly known as GPIS permits.
(kk) Telecommunications. Shall have the meaning provided in the Communications Act, 47 U.S.C. § 153(43).
(ll) Telecommunications Facilities. The plant, equipment and property within the City used to transmit, receive, distribute, provide or offer Telecommunications Service.
(mm) Telecommunications Provider. Includes every Person who provides Telecommunications Service over Telecommunications Facilities.
(nn) Telecommunications Service. Shall have the meaning provided in the Communications Act, 47 U.S.C. § 153(46).
(oo) Transfer of Interest. As applied to a Right-of-Way Registration 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 Registration or such Facilities, including, but not limited to, actual control over the ROW Registration.
(pp) Underground Facilities. Facilities located under the surface of the ground or pavement, excluding the underground foundations or supports for Aerial Facilities.
(qq) Video Programming. Programming provided by, or generally considered comparable to programming provided by, a television broadcast station.
(2) Right-of-Way Registration Required.
(a) ROW Registration. Any Person or City Agency who owns, constructs, operates, maintains, relocates, removes, or repairs Underground 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 shall obtain a ROW Registration issued by the Department and comply with the insurance, indemnity and security requirements of this Section. All ROW Registrations shall be made by application provided by the Department.
(b) Decisions of the Department with respect to any application for a Right-of-Way Registration shall be appealable, within thirty (30) 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 Registration.
(c) Access to GPIS. The Department may require that any Person or City Agency obtain a ROW Registration and submit such additional information and documentation as the Department may require by regulation as a condition of obtaining access to GPIS.
(d) Insurance, Indemnification and Security.
(.1) Insurance. The Registered User shall furnish, at the Registered User’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.
(.2) Indemnification.
(.a) Each Registered User 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 Registered User, including, but not limited to, a failure of the Registered User or such Person, agent, or employee to comply with this Chapter, Chapter 9-300, Chapter 11-200, or any Street Closure Permit or Street Opening Permit required under this Chapter. The Registered User shall have the City named as an additional insured on the insurance required under subsection (.1) and any insurance the Registered User 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 Registered User 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 Registered User or Person.
(.3) Security. In addition to the requirements of subsections (.1) and (.2), the Commissioner may require a Registered User to furnish security, in the form of a surety bond or an unconditional letter of credit in an amount and form satisfactory to the Law Department where the Commissioner determines that additional security is necessary. If required by the Commissioner, the Registered User shall furnish security, as a condition of any Street Closure Permit or Street Opening Permit required under this Chapter 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 Street Closure Permits or Street Opening Permits required under this Chapter and shall maintain the security as long as it is performing any work in the ROW.
(.4) Application to City Agencies. The insurance, indemnification and security required under this subsection shall not apply to any department, board, commission, office, or agency of the City, but shall apply to the Philadelphia Gas Works; concessionaires of the City; municipal, transportation, industrial development, housing, redevelopment, and other authorities and corporations established pursuant to the statutes of the Commonwealth; and the School District of Philadelphia.
(3) Use Authorized. No ROW Registration 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 Registration; 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 the access granted by the ROW Registration.
(4) 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.
(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.
(5) Owner’s Consent. No ROW Registration or Construction Permit expressly or impliedly authorizes any Person or City Agency 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.
(6) Poles with Overhead Wire Reporting Requirement. The Department is authorized to promulgate regulations requiring owners of poles with overhead wires in the Right-of-Way to file an annual written report with the Department, on a form established by the Department, specifying the number, type and location of poles maintained and located in the City of Philadelphia.
Notes
| 145 |