CHAPTER 126: TELECOMMUNICATIONS; CONSTRUCTION OF UTILITY FACILITIES IN THE RIGHTS-OF-WAY

(A) Purpose. The purpose of this chapter is to establish policies and procedures for constructing facilities on rights-of-way within the city’s jurisdiction, which will provide public benefit consistent with the preservation of the integrity, safe usage and visual qualities of the city rights-of-way and the city as a whole.

(B) Intent. In enacting this chapter, the city intends to exercise its authority over the rights-of-way in the city and, in particular, the use of the public ways and property by utilities, by establishing uniform standards to address issues presented by utility facilities, including without limitation:

(1) Prevent interference with the use of streets, sidewalks, alleys, parkways and other public ways and places;

(2) Prevent the creation of visual and physical obstructions and other conditions that are hazardous to vehicular and pedestrian traffic;

(3) Prevent interference with the facilities and operations of the city’s utilities and of other utilities lawfully located in rights-of-way or public property;

(4) Protect against environmental damage, including damage to trees, from the installation of utility facilities;

(5) Protect against increased stormwater run-off due to structures and materials that increase impermeable surfaces;

(6) Preserve the character of the neighborhoods in which facilities are installed;

(7) Preserve open space, particularly the tree-lined parkways that characterize the city’s residential neighborhoods;

(8) Prevent visual blight from the proliferation of facilities in the rights-of-way; and

(9) Assure the continued safe use and enjoyment of private properties adjacent to utility facilities locations.

(C) Facilities subject to this chapter. This chapter applies to all facilities on, over, above, along, upon, under, across or within the rights-of-way within the jurisdiction of the city. A facility lawfully established prior to the effective date of this chapter may continue to be maintained, repaired and operated by the utility as presently constructed and located, except as may be otherwise provided in any applicable franchise, license or similar agreement.

(D) Franchises, licenses or similar agreements. The city, in its discretion and as limited by law, may require utilities to enter into a franchise, license or similar agreement for the privilege of locating its facilities on, over, above, along, upon, under, across or within the city rights-of-way. Utilities that are not required by law to enter into an agreement may request that the city enter into an agreement. In an agreement, the city may provide for terms and conditions inconsistent with this chapter.

(E) Effect of franchises, licenses or similar agreements.

(1) Utilities other than telecommunications providers. In the event that a utility other than a telecommunications provider has a franchise, license or similar agreement with the city, the franchise, license or similar agreement shall govern and control during the term of the agreement and any lawful renewal or extension thereof.

(2) Telecommunications providers. In the event of any conflict with, or inconsistency between, the provisions of this chapter and the provisions of any franchise, license or similar agreement between the city and any telecommunications provider, the provisions of the franchise, license or similar agreement shall govern and control during the term of the agreement and any lawful renewal or extension thereof.

(F) Conflicts with other chapters. This chapter supersedes all chapters or parts of chapters adopted prior hereto that are in conflict herewith, to the extent of the conflict.

(G) Conflicts with state and federal laws. In the event that applicable federal or state laws or regulations conflict with the requirements of this chapter, the utility shall comply with the requirements of this chapter to the maximum extent possible without violating federal or state laws or regulations.

(H) Sound engineering judgment. The city shall use sound engineering judgment when administering this chapter and may vary the standards, conditions and requirements expressed in this chapter when the city so determines. Nothing herein shall be construed to limit the ability of the city to regulate its rights-of-way for the protection of the public health, safety and welfare.

(1980 Code, § 30.1101.1) (Ord. 9122, passed 3-11-2008)

§ 126.002 DEFINITIONS.

For the purpose of this chapter, the following definitions shall apply unless the context clearly indicates or requires a different meaning. Any term not defined in this section shall have the meaning ascribed to it in 92 Ill. Adm. Code § 530.30, unless the context clearly requires otherwise.

AASHTO. American Association of State Highway and Transportation Officials.

ANSI. American National Standards Institute.

APPLICANT. A person applying for a permit under this chapter.

ASTM. American Society for Testing and Materials.

BACKFILL. The methods or materials for replacing excavated material in a trench or pit.

BORE or BORING. To excavate an underground cylindrical cavity for the insertion of a pipe or electrical conductor.

CABLE OPERATOR. The term as defined in 47 U.S.C. § 522(5).

CABLE SERVICE. The term as defined in 47 U.S.C. § 522(6).

CABLE SYSTEM. The term as defined in 47 U.S.C. § 522(7).

CARRIER PIPE. The pipe enclosing the liquid, gas or slurry to be transported.

CASING. A structural protective enclosure for transmittal devices such as carrier pipes, electrical conductors and fiber optic devices.

CITY. The City of Quincy.

CLEAR ZONE. The total roadside border area, starting at the edge of the pavement, available for safe use by errant vehicles. This area may consist of a shoulder, a recoverable slope, a non-recoverable slope and a clear run-out area. The desired width is dependent upon the traffic volumes and speeds, and on the roadside geometry. Distances are specified in the AASHTO Roadside Design Guide.

COATING. Protective wrapping or mastic cover applied to buried pipe for protection against external corrosion.

CODE. The municipal code of the city.

COMMISSION. The Illinois Commerce Commission.

CONDUCTOR. Wire carrying electrical current.

CONDUIT. A casing or encasement for wires or cables.

CONSTRUCTION or CONSTRUCT. The installation, repair, maintenance, placement, alteration, enlargement, demolition, modification or abandonment in place of facilities.

COVER. The depth of earth or backfill over buried utility pipe or conductor.

CROSSING FACILITY. A facility that crosses one or more right-of-way lines of a right-of-way.

DIRECTOR OF UTILITIES AND ENGINEERING. The Director of Utilities and Engineering or his or her designee.

DISRUPT THE RIGHT-OF-WAY. For the purposes of this chapter, any work that obstructs the right-of-way or causes a material adverse effect on the use of the right-of-way for its intended use. The work may include, without limitation, the following: excavating or other cutting; placement (whether temporary or permanent) of materials, equipment, devices or structures; damage to vegetation; and compaction or loosening of the soil, and shall not include the parking of vehicles or equipment in a manner that does not materially obstruct the flow of traffic on a highway.

EMERGENCY. Any immediate maintenance to the facility required for the safety of the public using or in the vicinity of the right-of-way or immediate maintenance required for the health and safety of the general public served by the utility.

ENCASEMENT. Provision of a protective casing.

EQUIPMENT. Materials, tools, implements, supplies and/or other items used to facilitate construction of facilities.

EXCAVATION. The making of a hole or cavity by removing material or laying bare by digging.

EXTRA HEAVY PIPE. Pipe meeting ASTM standards for this pipe designation.

FACILITY. All structures, devices, objects and materials (including, but not limited to, track and rails, wires, ducts, fiber optic cable, antennas, vaults, boxes, equipment enclosures, cabinets, pedestals, poles, conduits, grates, covers, pipes, cables and appurtenances thereto) located on, over, above, along, upon, under, across or within rights-of-way under this chapter. For purposes of this chapter, the term FACILITY shall not include any facility owned or operated by the city.

FREESTANDING FACILITY. A facility that is not a crossing facility or a parallel facility, such as an antenna, transformer, pump or meter station.

FRONTAGE ROAD. Roadway, usually parallel, providing access to land adjacent to the highway where it is precluded by control of access to a highway.

GROSS REVENUES.

(1) All consideration of any kind or nature, including, without limitation, cash, credits, property and in-kind contributions received by the holder for the operation of a cable or video system to provide cable service or video service within the holder’s cable service or video service area within the city.

(2) GROSS REVENUES shall include the following:

(a) Recurring charges for cable or video service;

(b) Event-based charges for cable service or video service, including, but not limited to, pay-per-view and video-on-demand charges;

(d) Service charges related to the provision of cable service or video service, including but not limited to activation, installation and repair charges;

(e) Administrative charges related to the provision of cable service or video service, including but not limited to service order and service termination charges;

(f) Late payment fees or charges, insufficient funds check charges and other charges assessed to recover the costs of collecting delinquent payments;

(g) A prorated portion of all revenue derived by the holder or its affiliates pursuant to compensation arrangements for advertising or for promotion or exhibition of any products or services derived from the operation of the holder’s network to provide cable service or video service within the city. The allocation shall be based on the number of subscribers in the city divided by the total number of subscribers in relation to the relevant regional or national compensation arrangement;

(h) Compensation received by the holder that is derived from the operation of the holder’s network to provide cable service or video service with respect to commissions that are received by the holder as compensation for promotion or exhibition of any products or services on the holder’s network, such as a “home shopping” or similar channel, subject to division (2)(i) of this definition;

(i) In the case of a cable service or video service that is bundled or integrated functionally with other services, capabilities or applications, the portion of the holder’s revenue attributable to the other services, capabilities or applications shall be included in the gross revenue unless the holder can reasonably identify the division or exclusion of the revenue from its books and records that are kept in the regular course of business; and

(j) The service provider fee permitted by ILCS Ch. 220, Act 5, § 21-801(b).

(3) GROSS REVENUES do not include any of the following:

(a) Revenues not actually received, even if billed, such as bad debt, subject to ILCS Ch. 220, Act 5, § 21-801(c)(l)(vi);

(b) Refunds, discounts or other price adjustments that reduce the amount of gross revenues received by the holder of the state-issued authorization to the extent the refund, rebate, credit or discount is attributable to cable service or video service;

(c) Regardless of whether the services are bundled, packaged or functionally integrated with cable service or video service, any revenues received from services not classified as cable service or video service, including, without limitation, revenue received from telecommunication services, information services or the provision of directory or internet advertising, including yellow pages, white pages, banner advertisement and electronic publishing or any other revenues attributed by the holder to noncable service or nonvideo service in accordance with the holder’s books and records and records kept in the regular course of business and any applicable laws, rules, regulations, standards or orders;

(d) The sale of cable services or video services for resale in which the purchaser is required to collect the service provider fee from the purchaser’s subscribers to the extent the purchaser certifies in writing that it will resell the service within the city and pay the fee permitted by ILCS Ch. 220, Act 5, § 21-801(b) with respect to the service;

(e) Any tax or fee of general applicability imposed upon the subscribers or the transaction by a city, state, federal or any other governmental entity and collected by the holder of the state-issued authorization and required to be remitted to the taxing entity, including sales and use taxes;

(f) Security deposits collected from subscribers; and

(g) Amounts paid by subscribers to “home shopping” or similar vendors for merchandise sold through any home shopping channel offered as part of the cable service or video service.

(3) Revenue of an affiliate of a holder shall be included in the calculation of gross revenues to the extent the treatment of the revenue as revenue of the affiliate rather than the holder has the effect of evading the payment of the fee permitted by ILCS Ch. 220, Act 5, § 21-801(b) which would otherwise be paid by the cable service or video service.

HAZARDOUS MATERIALS. Any substance or material which, due to its quantity, form, concentration, location or other characteristics is determined by the Director of Utilities and Engineering to pose an unreasonable and imminent risk to the life, health or safety of persons or property or to the ecological balance of the environment, including, but not limited to explosives, radioactive materials, petroleum or petroleum products or gases, poisons, etiology (biological) agents, flammables, corrosives or any substance determined to be hazardous or toxic under any federal or state law, statute or regulation.

HIGHWAY. A specific type of right-of-way used for vehicular traffic including rural or urban roads or streets. HIGHWAY includes all highway land and improvements, including roadways, ditches and embankments, bridges, drainage structures, signs, guardrails, protective structures and appurtenances necessary or convenient for vehicle traffic.

HIGHWAY CODE. The Illinois Highway Code, ILCS Ch. 605, Act 5, §§ 1-101 et seq., as amended from time to time.

HOLDER. A person or entity that has received authorization to offer or provide cable or video service from the ICC pursuant to the Illinois Cable and Video Competition Law, ILCS Ch. 220, Act 5, § 21-401.

IDOT. Illinois Department of Transportation.

ICC. Illinois Commerce Commission.

JACKING. Pushing a pipe horizontally under a roadway by mechanical means with or without boring.

JETTING. Pushing a pipe through the earth using water under pressure to create a cavity ahead of the pipe.

JOINT USE. The use of pole lines, trenches or other facilities by two or more utilities.

J.U.L.I.E. The Joint Utility Locating Information for Excavators utility notification program.

MAJOR INTERSECTION. The intersection of two or more major arterial highways.

OCCUPANCY. The presence of facilities on, over or under right-of-way.

PARALLEL FACILITY. A facility that is generally parallel or longitudinal to the centerline of a right-of-way.

PARKWAY. Any portion of the right-of-way not improved by street or sidewalk.

PAVEMENT CUT. The removal of an area of pavement for access to facility or for the construction of a facility.

PEG. Public, education and governmental.

PEG ACCESS SUPPORT FEE. The amount paid under this chapter and ILCS Ch. 220, Act 5, § 21-801(d) by the holder to the city for the service areas within its territorial jurisdiction.

PERMITTEE. The entity to which a permit has been issued pursuant to §§ 126.016 and 126.017 of this chapter.

PRACTICABLE. That which is performable, feasible or possible, rather than that which is simply convenient.

PRESSURE. The internal force acting radially against the walls of a carrier pipe expressed in pounds per square inch gauge (psig).

PETROLEUM PRODUCTS PIPELINES. Pipelines carrying crude or refined liquid petroleum products including, but not limited to, gasoline, distillates, propane, butane or coal-slurry.

PROMPT. That which is done within a period of time specified by the city. If no time period is specified, the period shall be 30 days.

PUBLIC ENTITY. A legal entity that constitutes or is part of the government, whether at local, state or federal level.

RESTORATION. The repair of a right-of-way, highway, roadway or other area disrupted by the construction of a facility.

RIGHT-OF-WAY or RIGHTS-OF-WAY. Any street, alley, other land or waterway, dedicated or commonly used for pedestrian or vehicular traffic or other similar purposes, including utility easements, in which the city has the right and authority to authorize, regulate or permit the location of facilities other than those of the city. RIGHT-OF-WAY or RIGHTS-OF-WAY shall not include any real or personal city property that is not specifically described in the previous two sentences and shall not include city buildings, fixtures and other structures or improvements, regardless of whether they are situated in the right-of-way.

ROADWAY. The part of the highway that includes the pavement and shoulders.

SALE OF TELECOMMUNICATIONS AT RETAIL. The transmitting, supplying or furnishing of telecommunications and all services rendered in connection therewith for a consideration, other than between a parent corporation and its wholly owned subsidiaries or between wholly owned subsidiaries, when the gross charge made by one corporation to another corporation is not greater than the gross charge paid to the retailer for their use or consumption and not for sale.

SECURITY FUND. The amount of security required pursuant to § 126.037.

SERVICE. The provision of cable service or video service to subscribers and the interaction of subscribers with the person or entity that has received authorization to offer or provide cable or video service from the Commission pursuant to ILCS Ch. 220, Act 5, § 21-401.

SERVICE PROVIDER FEE. The amount paid under this chapter and ILCS Ch. 220, Act 5, § 21-801 by the holder to a city for the service areas within its territorial jurisdiction.

SHOULDER. A width of roadway, adjacent to the pavement, providing lateral support to the pavement edge and providing an area for emergency vehicular stops and storage of snow removed from the pavement.

SOUND ENGINEERING JUDGMENT. A decision(s) consistent with generally accepted engineering principles, practices and experience.

TELECOMMUNICATIONS. This term includes, but is not limited to, messages or information transmitted through use of local, toll and wide area telephone service, channel services, telegraph services, teletypewriter service, computer exchange service, private line services, mobile radio services, cellular mobile telecommunications services, stationary two-way radio, paging service and any other form of mobile or portable one-way or two-way communications, and any other transmission of messages or information by electronic or similar means, between or among points by wire, cable, fiber optics, laser, microwave, radio, satellite or similar facilities. PRIVATE LINE means a dedicated non-traffic sensitive service for a single customer that entitles the customer to exclusive or priority use of a communications channel or a group of channels, from one or more specified locations to one or more other specified locations. TELECOMMUNICATIONS shall not include value added services in which computer processing applications are used to act on the form, content, code and protocol of the information for purposes other than transmission. TELECOMMUNICATIONS shall not include purchase of telecommunications by a telecommunications service provider for use as a component part of the service provided by the provider to the ultimate retail consumer who originates or terminates the end-to-end communications. TELECOMMUNICATIONS shall not include the provision of cable services through a cable system as defined in the Cable Communications Act of 1984 (47 U.S.C. §§ 521 et seq.), as now or hereafter amended, or cable or other programming services subject to an open video system fee payable to the city through an open video system as defined in the Rules of the Federal Communications Commission (47 C.F.R. §§ 76.1500 et seq.), as now or hereafter amended.

TELECOMMUNICATIONS PROVIDER. Any person that installs, owns, operates or controls facilities in the right-of-way used or designed to be used to transmit telecommunications in any form.

TELECOMMUNICATIONS RETAILER. Every person engaged in making sales of telecommunications at retail as defined herein.

TRENCH. A relatively narrow open excavation for the installation of an underground facility.

UTILITY. The individual or entity owning or operating any facility as defined in this chapter.

VENT. A pipe to allow the dissipation into the atmosphere of gases or vapors from an underground casing.

VIDEO SERVICE.

(1) The term as defined in § 21-201(v) of the Illinois Cable and Video Competition Law of 2007, ILCS Ch. 220, Act 5, § 21-201(v).

(2) Video programming and subscriber interaction, if any, that is required for the selection or use of video programming services, and which is provided through wireline facilities located at least in part in the public right-of-way without regard to delivery technology, including internet protocol technology. This definition does not include any video programming provided by a commercial mobile service provider defined in 47 U.S.C. § 332(d) or any video programming provided solely as part of, and via, service that enables users to access content, information, electronic mail or other services offered over the public internet.

WATER LINES. Pipelines carrying raw or potable water.

WET BORING. Boring using water under pressure at the cutting auger to soften the earth and to provide a sluice for the excavated material.

(1980 Code, §§ 30.1101.2; 30.1103.1) (Ord. 9116, passed 12-31-2007; Ord. 9122, passed 3-11-2008)

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