85. III. Definitions
85. III. Definitions Applicant: Any person or entity, including without limitation implied, Public Utility, Telecommunications Carrier, Local Exchange Carrier or municipal department which owns or exercises general responsibility and control over any Facility. Application: The written application on a form prescribed by the Awarding Authority executed by the Applicant together with a plan showing the location and details of the Facility in question and the Application Fee by which an Applicant or Co-Locator requests a Right-of-Way Permit. Application Fee: A fifty dollar ($50.00) non-refundable processing fee which shall accompany each application for a Right-of-Way Permit. Attachment: Any device, apparatus, appliance, equipment, wire or cable or other thing including any Telecommunication Facility installed or proposed to be installed on or in any Existing Facility whether by Applicant or Co-Locator or proposed to be installed on any New Facility by Applicant or Co-Locator. Awarding Authority: The Select Board of the Town of Canton which has authority to exercise the powers granted by this By-Law. Co-Locator: Any person or entity other than Applicant who desires to use an Existing or New Facility. Contractor: All officers or employees of Applicant or Co-Locator who perform or any person or entity engaged by or on behalf of Applicant or Co-Locator to perform construction, repair or maintenance work on Overhead or Underground Facilities 150 owned by Applicant and permitted by the Awarding Authority which are located in the Right-of-Way. The Contractor for purposes of this By-Law and for all questions of liability in connection with any construction, repair or maintenance work on Overhead or Underground Facilities owned by Applicant which are located in the Right-of-Way shall be conclusively deemed an agent of Applicant or Co-Locator for whom Applicant or Co-Locator is fully responsible. Default: The failure of the Permit Holder (including all Contractors or other agents of Permit Holder) (i) to pay when due any License Rental Payment, if any, (ii) to perform fully any covenant of the License or otherwise fail to comply with any provision of the License Agreement, the Right-of-Way Permit or the By-Law following ten days prior written notice to Licensee from Town (iii) to keep its Certificate of Insurance in full force and effect, or (iv) to provide the service that is outlined in its Application (except for interruptions in service due to Emergency Repair Work) for a period of six consecutive months. DTE: The Massachusetts Department of Telecommunications and Energy created by Chapter 25 M.G.L. Effective Date: The date upon which this By-Law becomes effective. Emergency Repair Work: Right-of-Way Work which must be commenced immediately to correct a hazardous condition in which the safety of the public is in imminent danger, such as a threat to life or health of the public or where immediate correction is required to maintain or restore essential Public Utility service. Excess Capacity: The volume or capacity in any Existing Facility that is not being used or is not proposed to be used as part of a concrete plan for the future at the time that an Application is made for a Right-of-Way Permit by an Applicant or Co- Locator. Existing Facility: An Overhead or Underground Facility which is in existence on the date of the Application for a Right-of-Way Permit. Facility: Any Overhead or Underground Facility or Attachment thereto including without limitation any utility or other pipe, duct, line, pole, wire, cable, transmission line, conduit, pedestal, wave guide, dish, antenna electronic or other thing located or proposed to be located in, on, above, along, under or across a Right-of-Way. FCC: Federal Communications Commission. Grandfathered Facility: An Overhead or Underground Facility in existence on the Effective Date. Grant of Location: Permission granted by the Awarding Authority of the Town to a Public Utility, in order to conduct its Regulated Activities, to locate poles, piers, abutments or conduits or attachments thereto or railway routes on, in, above, along, under or across a Public Way in accordance with the procedures set out in 151 M.G.L. Chapter 166 section 22, Chapter 161 section 70, Chapter 162 section 8 and with this By-Law. Grant of Location Applicant: An Applicant or Co-Locator which is a Public Utility conducting a business described in section 21 of Chapter 166 of the Massachusetts General Laws. Highway Superintendent: That individual, appointed or elected in accordance with Chapter 41, sections 1, 66 or 69E of the M.G.L. Inspector of Wires: That individual appointed by the Town to fulfill the responsibilities set out in M.G.L. Chapter 166 section 32. License Agreement: An Agreement between the Town and an Applicant owner of a Facility setting forth detailed contractual terms and obligations of the owner of a Facility and entered into incident to the grant of a Right-of-Way Permit. License Rental Payment: The one-time or annual dollar amount to be paid by an Applicant to the Town, as the Town and an Applicant and/or Co-Locator may agree upon, if any, for the use of the Right-of-Way for an Overhead Facility or Underground Facility. Licensed Contractor: A Contractor who holds a current and valid Public Works Construction License issued by the Awarding Authority. Local Exchange Carrier: Every person or entity that directly or indirectly owns, controls, operates and manages plant, equipment or property within the Town used or to be used for the purpose of offering telephone service and which is licensed by the FCC and certified by the DTE under C. 159 M.G.L. as a local exchange carrier. Measurable Interference: Interference as defined by FCC Regulations (47 C.FR) which affects the Telecommunications Services provided by a Permit Holder. Modification: A material physical change to an Existing Facility such that its use or capacity is materially altered. New Facility: An Overhead or Underground Facility or an Attachment that has not yet been constructed but that is proposed and described in an Application for a Right-of-Way Permit. Normal Working Hours: 8:00 A.M. to 3:30 P.M., Monday through Friday, excluding holidays. Overhead Facility: Any tower, Telecommunication Facility and Pole including Poles and Overhead Wires and Associated Overhead Structures including Attachments located or proposed to be located above the surface of the Right-of- Way including the underground supports and foundations for such facilities. 152 Permit Holder: An Applicant or Co-Locator to whom a Right-of-Way Permit has been granted. Permit Term: The period commencing on the date of filing of an Application and ending upon the revocation of a Right-of-Way Permit. Planning Board: The Planning Board of the Town of Canton. Pole or Poles and Overhead Wires and Associated Overhead Structures: poles, towers, supports, wires, conductors, guys, stubs, platforms, crossarms, braces, transformers, insulators, cut-outs, switches, communication 'circuits, appliances attachments, and appurtenances located above ground, upon, along or across any Public Way or private ways of the Town and used or useful in the transmission of intelligence by electricity or otherwise, or for the transmission of television signals, whether by electricity or otherwise, or for the transmission of electricity for lighting, heating or power, or for the construction or operation of a street railway or an electric railroad; provided, that said phrase shall not mean or include any of the following: poles, towers, overhead wires and associated overhead structures used exclusively in the transmission but not the distribution of electricity; poles used exclusively for police and fire alarm boxes or any similar municipal equipment installed under the supervision and to the satisfaction of the engineer of the municipality; wires (exclusive of supporting structures) crossing any portion of any underground utility district from which overhead wires have been prohibited, or connecting to buildings on the perimeter of such portion, when such wires originate in an area from which poles and overhead wires and associated overhead structures are not prohibited; overhead. wires attached to the exterior surface of a building by means of a bracket or other fixture and extending from one location on the same building or to an adjacent building without crossing any public Right-of- Way; radio antennas, their associate equipment and supporting structures used by a utility for furnishing communication services; and service terminals including transformers in pedestals above ground used to distribute electric or communication service in underground systems. Pole Attachment: An Attachment which is a wire or cable for transmission of intelligence by telegraph, telephone or television, including cable television, or for the transmission of electricity for light, heat, or power or for the transmission of Telecommunications Services and any related device, apparatus, appliance or equipment installed upon any Pole or in any telegraph duct or conduit owned or controlled in whole or in part by one or more Public Utility. Public Utility: A gas and electric company subject to M.G.L. Chapter 164, telephone and telegraph company subject to M.G.L. Chapter 166, cable TV company subject to M.G.L. Chapter .166A, water and aqueduct company subject to M.G.L. Chapter 165, or street railway subject to M.G.L. Chapter 161 or electric railroad subject to M.G.L. Chapter 162. Public Utility Use: The use of a Facility by a Public Utility during the Permit Term in conducting its Regulated Activities but not including any non-Public Utility use 153 by such Public Utility or any use by a non-regulated affiliate of a I Public Utility or any other use by any other person or entity. Public Way: Any road (including such appurtenances as berms, curbs, drains, sewers, water mains, sidewalks and paved and unpaved shoulders within the paper layout) to which the public has access and that the Town is responsible for maintaining. Public Works Construction License: A license required of all Contractors who are not officers or employees of a Public Utility or of a municipal department who wish to perform Street Opening Work in the Public Ways of the Town. Regulated Activities (of Public Utilities): The transmission of natural gas and electricity by a gas or electric Company subject to M.G.L. Chapter 164, the transmission of voice or telegraph messages by a telephone and telegraph company subject to M.G.L. Chapter 166, the transmission of video broadcasts by television or cable television (including other, activities deemed incidental thereto by federal law) subject to M.G.L. Chapter 166A, the provision of street railway I services subject to M.G.L. Chapter 161 or transportation by electric railroad subject to M.G.L. Chapter 162. Right-of-Way: The surface and space on, along, above and below any real property which is a Public Way or other way in which the Town has an interest in law or equity, whether held in fee or other estate or interest, or as trustee for the public, including, but not limited to any public street, boulevard, road, highway, freeway, lane, alley, court, sidewalk, parkway, river, tunnel, viaduct, bridge, park, skyway, or skyway bridge. Right-of-Way Permit: A permit granted by the Awarding Authority to an Applicant for permission to construct, to repair and maintain, and to use Overhead and Underground Facilities that it owns and which are located or to be located in the Right-of-Way. Also a Permit granted by the Awarding Authority to a Co-Locator for an Attachment to a New or Existing Facility. Right-of-Way Work: Any construction, repair or maintenance of utility or other pipes, ducts, lines, poles, wires, cables, conduits, pedestals, antennas, dishes, electronics or other thing located in, on, above, under or across a Right-of-Way. Street Opening Work: Any cutting, excavating, compacting, construction, repair or other disturbance in or under a Public Way together with restoration of the Public Way in accordance with the Town's Street Opening By-Law following such disturbance but excluding the location or relocation of utility poles for which a Grant of Location has been obtained pursuant to M.G.L. Chapter 166 section 22. 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. 154 Telecommunications Carrier: Every person or entity that directly or indirectly owns, controls, operates or manages plant, equipment or property within the Town used or to be used for the purpose of offering Telecommunications Service and which is licensed by the FCC and certified by the DTE under C. 159 M.G.L. as a Telecommunications common carrier. Telecommunications Facility: A Facility other than customer premises equipment used by a Telecommunications Carrier to provide Telecommunications Service and includes software integral to such equipment (including upgrades), cables, wires, lines, wave guides, electronics, dishes and antennas. 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 Telecommunications Facilities used. The Telecommunications Act of 1996: Public Law 104-104 - Feb. 8, 1996. 110 Stat. 57. Town: The Town of Canton. Transmission Line: Lines and associated structures used for the transmission of electric energy sold, or to be sold, at wholesale in interstate commerce. Underground Facility: Any pipe, duct, line and conduit and Telecommunications Facility or other thing including Attachments located or proposed to be located under the surface of the ground but excluding the underground foundations or supports for Overhead Facilities. Usable Space: The total usable capacity of any Overhead or Underground Facility located in the Right-of-Way as reasonably determined by the Awarding Authority. IV. Necessity Of A Permit No work in, on, under, along, above or across a Right-of-Way or use of a Right-of- Way shall commence until the Applicant and any Co-Locator each shall have submitted to the Town an Application for a Right-of-Way Permit and obtained from the Awarding Authority a Right-of-Way Permit. Applicants with Grandfathered Facilities and any Co-Locator with Grandfathered Facilities located in the Right-of- Way shall be deemed to have applied for and been granted a valid Right-of-Way Permit for the Permit Term for such Facilities and to be subject to all of the provisions of the License Agreement substantially in the form set forth below. An Applicant or Co-Locator which wishes to continue to use a Grandfathered Facility after the expiration of the Permit Term or such Grandfathered Facility’s useful life (as determined by the Awarding Authority) each must file an Application and treat such Facility as a New Facility. From and after the Effective Date, Applicant or Co-Locator must also obtain a Right-of-Way Permit for any modification of or new Attachment to a Grandfathered Facility. 155 Any Applicant or Co-Locator who is using a Grandfathered Facility for any purpose other than a Public Utility User must notify the Town of such use of each such facility within 120 days after the Effective Date. Any Applicant or Co-Locator which after the Effective Date wishes to make a use of its Grandfathered Facility which is not a Public Utility Use must, prior to commencing such use, apply for and obtain a Right-of-Way Permit for such non-Public Utility Use. Traffic lights, fire hydrants, mail boxes and intrusions in the Right-of-Way that are accessory uses to the primary use of the property such as awnings, balconies, over-hanging signs and sidewalk cafes are exempted from this By-Law. Prior to the Town accepting a private way as a Public Way, such Applicant with a Facility located in, on, under or across the private way and each Co-Locator using such Facility including a Co-Locator Public Utility shall apply for and obtain a Right- of-Way Permit from the Awarding Authority. A Public Utility that is petitioning for a Grant of Location in accordance with Ch. 166 section 22, Ch. 161 section 70 or Ch. 162 section 8 of the M.G.L. as part of its Application for a Right-of-Way Permit shall so indicate on the Application. A Right- of-Way Permit granted to a Public Utility for a Facility to the extent of Public Utility Use shall constitute a Grant of Location as well. Except for Transmission Lines, in the event that all of the Usable Space of Existing Overhead Facilities has been used up, the Town may in its reasonable discretion require that the Applicant construct New Underground Facilities. All construction work contemplated by this By-Law shall be done in a good and workmanlike manner using best engineering and construction practices and shall be done in accordance with (i) all applicable laws and regulations, (ii) all of the provisions of this By-Law, and (iii) any conditions contained in the Right-of-Way Permit. Without limiting this By-law in any manner, work that involves Street Opening Work must comply with the Town's Street Opening By-Law. No person or entity may perform any work in or under a Right-of-Way unless it is a Permit Holder and (i) is a municipal department, Public Utility, Telecommunications Carrier or Local Exchange Carrier or their respective officers or employees or (ii) has engaged a Licensed Contractor and such holder performs all such Right-of-Way Work as agent of Permit-Holder. V. Requirements Of Application A. Information Required of All Applicants and Co-Locators Applicants or Co-Locators seeking a Right-of-Way Permit shall file on forms designated by the Awarding Authority a completed and signed Application at the office of the Awarding Authority which shall include the following information: 156