Basis of the Commission's Authority
The statute at 66 Pa. C.S. 2702(a) is the basis for the Commissions authority over highway railroad crossings. The statute states:
No public utility, engaged in the transportation of passengers or property, shall, without prior order of the commission, construct its facilities across the facilities of any other such public utility or across any highway at grade or above or below grade, or at the same or different levels; and no highway, without like order, shall be so constructed across the facilities of any such public utility, and, without like order, no such crossing heretofore or hereafter constructed shall be altered, relocated, suspended or abolished.
Under this provision, only the Commission can order a highway railroad crossing constructed, altered, relocated, suspended or abolished. This authority not only encompasses at-grade crossings but also above and below grade crossings.
Applicability to Installation of Fixed Utility Facilities
The Pennsylvania Supreme Court ruled in AT&T v. Pa. PUC., 737 A. 2d 201 (Pa. 1999) that the installation of telecommunications facilities within a highway railroad crossing constituted the alteration of that crossing subject to the Commissions jurisdiction. The Court reasoned that the installation of the facilities at the crossing by its very nature entailed the physical alteration of the crossing site and that this physical alteration was an alteration of the crossing pursuant to 66 Pa. C.S. 2702(a). The Court also stated that its ruling was consistent with the policies underlying the enactment of the statute, in particular, the comprehensive protection of public safety.
Pursuant to the AT&T decision, any fixed utility that wishes to alter a highway railroad crossing must apply to the Commission for authority to do so. An alteration includes installing new facilities or replacing existing facilities at the crossing, since those activities would constitute the physical alteration of the crossing. An alteration would not include the repair or maintenance of existing facilities, since those activities do not constitute the physical alteration of the crossing.
Obtaining Commission Approval
In order to obtain Commission authorization to alter a crossing, an entity must file an application with the Commission. The applicant files the original application and three copies with the Commissions Secretary or may eFile.
The Secretary of the Commission
Pennsylvania Public Utility Commission
400 North Street
Harrisburg, PA 17120
The Commission does not charge a filing fee for applications involving highway railroad crossings. The applicant is required to serve a copy of the application (including exhibits if applicable) on all interested parties. Interested parties include the Pennsylvania Department of Transportation (ROW & Utility Division, Bureau of Design - PennDot, P.O. Box 3362, Harrisburg, PA 17105-3362 and Office of Chief Counsel - PennDOT, P.O. 8212, Harrisburg, PA 17105-8212), the railroad company, the county and municipality where the crossing is located, and any fixed utility companies with facilities at the crossing if the proposed work may affect those facilities. The application should have a certificate of service attached to it indicating what parties have been served with the application.
From the time the application is filed until the Commission issues an uncontested Secretarial Letter or Order is usually 30 to 90 days. If the application is contested and can not be resolved amicably, the matter is scheduled for a hearing, which may increase the time to about one-year.
Contracts between public utilities and municipalities
The division also reviews contracts between railroad companies and municipal corporations. A contract shall be filed with the Commission at least 30 days prior to its effective date. (66 Pa. C.S. 507)
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