[HISTORY: Adopted by the Town Board of the Town of North Greenbush 9-28-2000 by L.L. No. 5-2000. Amendments noted where applicable.]
Cable Television Advisory Committee — See Ch. 7.
Editor's Note: This local law also stated that it superseded 47 U.S.C. § 253(c), New York State Transportation Corporations Law § 27, and New York State Town Law § 64(7), to the extent that the terms hereof are inconsistent with said laws.
The Town Board of the Town of North Greenbush has determined that the Town highway rights-of-way are a valuable public resource that has required and will continue to require prudent management by the Town.
Because of advancements in communications technology, changes in federal and state regulations allowing many new entrants into the telecommunications industry, and increased demand for telecommunications services, the Town expects a significant increase in demand for the use of its rights-of-way by telecommunications services providers for the placement of their fiber-optic cables, electrical conductors, conduits and related infrastructure. Thus, the Town finds that the public convenience, safety and general welfare can best be served by establishing regulatory powers and procedures to protect and manage the public rights-of-way.
The Town desires to implement a fair and orderly process for granting nonexclusive franchises to use and occupy the Town highway rights-of-way. In doing so, consistent with applicable law, the Town desires to manage its public rights-of-way and obtain fair and reasonable compensation from telecommunications providers on a competitively neutral and nondiscriminatory basis, without creating substantial barriers to entry into the Town's telecommunications market.
The Town desires to minimize inconvenience and disruption to the public, provide for the orderly and efficient use of the public rights-of-way now and in the future, and preserve adequate capacity for existing and future uses of its rights-of-way. The Town intends to exercise, to the fullest extent permitted by applicable law, its authority with respect to regulating the occupation and use of its public rights-of-way in connection with the provision of telecommunications services.
As used in this chapter, the following terms shall have the meanings indicated:
- Any person who applies for a franchise pursuant to this chapter.
- CABLE SERVICES
- Cable services as currently defined in 47 U.S.C. § 522, and as may be further amended from time to time. In the event that "cable services" is no longer defined in federal law or the definition becomes inapplicable, "cable services" shall mean cable services as defined in federal law immediately prior to the change that repeals the definition or renders it inapplicable.
- Wires, electrical or optical cables, conductors, amplifiers, antennas, waveguides, electronic devices, poles. conduits, subways, manholes, junction boxes, terminal blocks, fixtures and any other parts of a system which is used to provide telecommunications.
- PUBLIC RIGHTS-OF-WAY or RIGHTS-OF-WAY
- The surface of, as well as the spaces above and below, any and all streets, alleyways, avenues, highways, boulevards, driveways, bridges, tunnels, parks, parkways, public grounds or waters, and any other public property or place belonging to the Town or any special districts of the Town.
- All electrical or optical transmissions, between or among points specified by the user, of information of the user's choosing, without a change in content as sent and received.
- TELECOMMUNICATIONS PROVIDER
- Any person who owns, leases, installs, constructs, operates or maintains within the public rights-of-way infrastructure or other items that are used to provide telecommunications services, contain or house other infrastructure that is used to provide telecommunications services, or otherwise support the provision of telecommunications services by other persons.
- TELECOMMUNICATIONS SERVICES
- Any provision of telecommunications using infrastructure, as defined in this chapter. Telecommunications services shall not include cable services as defined in 47 U.S.C § 522 and open video systems pursuant to 47 U.S.C. § 573.
- TRENCHLESS TECHNOLOGY
- The use of directional boring, horizontal drilling and/or microtunneling, and other techniques intended to minimize the amount of disruption and damage to the public rights-of-way and utilities and equipment buried therein.
The Town Board is empowered to issue, in accordance with this chapter, nonexclusive franchises to install, construct and maintain telecommunications infrastructure in the Town's public rights-of-way, as well as to regulate these activities to the extent permitted by law.
Any franchise granted under this chapter shall be nonexclusive. The Town Board reserves the right to grant, at any time, any additional franchises, licenses or other authorizations to use or occupy the public rights-of-way in any manner that the Board deems appropriate.
No telecommunications services provider shall have a vested right to any particular location within the Town's public rights-of-way.
No person shall use, occupy or disturb the subsurface rights-of-way as a telecommunications provider without a franchise granted by the Town Board and a permit granted by the Town Highway Department.
No telecommunications provider shall construct or install poles or other aboveground infrastructure support structures (except for the replacement of existing poles or support structures) without a permit granted by the Town Highway Department. If the provider is not proposing to conduct any subsurface activity within the Town's public rights-of-way, then it need not comply with any of the other provisions of this chapter, but shall be subject to any other applicable laws.
A franchise granted in accordance with this chapter does not grant any rights or authorization to provide cable services within the Town. Any person seeking to provide cable services shall first obtain a cable television franchise in accordance with the Town Code.
A person providing cable services within the Town under a currently valid cable television franchise agreement need not obtain a separate franchise under this chapter to provide telecommunications services through systems or equipment that it is using to provide cable services. However, that person must comply with this chapter with regard to all use, occupation or disturbance of subsurface public rights-of-way for any systems or equipment used exclusively for the provision of telecommunications services.
The minimum general procedural steps that the telecommunications franchise applicant and the Town shall follow are:
The applicant shall submit a telecommunications right-of-way use application to the Town Engineer. The application shall contain, at minimum, the following information:
The name, business address and telephone number of the applicant and the person whom the Town may contact concerning the application.
A complete description of the specifically identified rights-of-way and/or portions thereof that the applicant proposes to use.
A proposed construction schedule and sequence.
Plans and profiles showing the proposed location of the infrastructure to be laid within the subsurface rights-of-way and all existing utilities, cables, conduits and telecommunications infrastructure within those rights-of-way. All existing underground utilities, cables, conduits and telecommunications infrastructure shall be located using Underground Facilities Protective Organization (UFPO) or its successors. If the construction is to be carried out in phases, this provision shall apply to each phase. All maps submitted must be in a format and scale that is acceptable to the Town Engineer.
The applicant may identify submitted information such as trade secrets or technical information as confidential under the New York State Freedom of Information Law. Any information for which the applicant claims confidentiality shall be clearly marked "Confidential" by the applicant prior to submission. To the extent authorized by the Freedom of Information Law and other applicable state and federal laws, the Town shall maintain the confidentiality of the information so marked.
The application shall be accompanied by a nonrefundable application fee of $500. Additionally, at the time of application the applicant shall remit to the Town Building Department a deposit of $2,500 cash or cashier's check which shall be returned to the applicant upon the submission of final maps and/or engineering drawings showing the locations of its as-built telecommunications infrastructure within the public rights-of-way. In the case of rejection of the application or denial of a franchise, this deposit will be returned to the applicant. The purpose of this deposit is to encourage the timely submission of as-built drawings upon project completion.
After the above items have been provided, the Building Department may circulate them to other affected Town boards, committees or departments for preliminary comments. These comments shall be forwarded to and addressed by the applicant prior to Building Department approval.
The Town Engineer shall have discretion to require the applicant to modify its right-of-way use proposal prior to its approval. Such modifications may include changes in placement, construction methods, denial of use of particular subsurface rights-of-way listed in the applicant's proposal, and/or any other modifications that the Town Engineer deems necessary in order to practice proper management and protection of the public rights-of-way.
The Town Engineer may reject any application which is incomplete or otherwise fails to comply with applicable laws, ordinances, resolutions, rules, regulations or other directives of the Town and any federal, state or local authority having jurisdiction.
After the Town Engineer has completed his or her review and is satisfied that the application complies with the Town's specifications, the Town Engineer shall forward the application to the Town Clerk. The Town Clerk shall make one copy (omitting any confidential information as described in Subsection B above) available for public inspection during regular Town Hall business hours and shall forward the remaining copies to the Town Board members.
Prior to the issuance of a franchise, the Town Board shall hold a public hearing, following public notice as prescribed by New York State Town Law, at which the applicant and its application shall be examined and the public and all interested parties afforded a reasonable opportunity to be heard.
Consistent with applicable law, upon completion of all of the procedures described in this chapter, the Town Board may grant the franchise and may specify the conditions under which the franchise is granted.
After Town Board approval and prior to commencing work in the rights-of-way, the franchisee shall obtain a highway permit from the Town Highway Department.
The franchisee shall obtain and maintain, at its cost, insurance in full force and effect throughout the term of the franchise from an insurance company licensed to do business in the State of New York. This insurance shall protect both the franchisee and the Town from any claims which may arise directly or indirectly from the granting of a franchise, including but not limited to activity associated with the placement or maintenance of the franchisee's infrastructure, whether these operations are performed by the franchisee or by anyone for whose acts the franchisee may be liable. The Town may review these insurance requirements during the term of the franchise and any extension or renewal thereof and may require the franchisee to adjust the insurance coverages and limits when deemed necessary and prudent by the Town Attorney, based upon changes in statutes, regulations, court decisions or the claims history of the industry or the franchisee.
The insurance obtained and maintained by the franchisee shall include, but shall not be limited to, the following:
Workers' compensation and employee liability insurance supplied in statutory amounts providing protection for employees of the franchisee in the event of job-related injuries.
General liability, including comprehensive form, contractual, premises/completed operations, explosion, collapse and underground property damage and broad-form property insurance, shall be furnished with limits of not less than $1,000,000 for each occurrence and $2,000,000 annual aggregate for bodily injury and property damage.
Any and all insurance coverages required by applicable law.
The insurance obtained and maintained by the franchisee shall contain the following provisions:
The policy shall name the Town of North Greenbush, its officers, employees and elected officials as additional insureds, as the interests of each insured may appear, regarding all applicable coverage.
The policy shall provide for 30 days' notice to the Town Attorney for cancellation, nonrenewal or material change.
Insurers shall have no right of recovery against the Town. It is the intention that the insurance shall protect both the franchisee and the Town, and the Town shall be primary coverage for all losses covered by the insurance.
The policy clause "other insurance" shall not apply to the Town where the Town is named as an insured on the policy.
Companies issuing the insurance policies shall have no recourse against the Town for payment of any premiums or assessments which are set at the sole risk of the franchisee.
The Town may require the inspection, at reasonable times and upon reasonable notice, of the franchisee's work in the public rights-of-way during installation and construction and also upon completion of the work. The cost of this inspection shall be borne by the franchisee.
Once franchise and highway permits are granted, the franchisee may make excavations in Town rights-of-way for any facilities needed for the installation and construction of the franchisee's telecommunications infrastructure.
All right-of-way use and occupation shall conform to federal, state and local laws and the Town's requirements, which are available from the Town Engineer. Any repair or replacement of infrastructure must also be performed in conformance with Town requirements and must be inspected for compliance by the Town Engineer.
Trenchless technology is the preferred method of excavation and shall be utilized wherever possible.
All excavations or other construction shall interfere to the least possible degree with the use of public and private property and in accordance with the Town Engineer's directives.
Upon completion of the work, the franchisee shall promptly restore the rights-of-way to their preconstruction condition and to the satisfaction of the Town Engineer. Whenever an opening is made by the franchisee in a hard surface pavement in any street, the franchisee shall promptly refill the opening and restore the surface in a manner that complies with Town highway and drainage standards.
All construction by the franchisee shall be properly safeguarded by the franchisee for the prevention of accidents.
If the Town Engineer finds the franchisee's restoration work unsatisfactory, the Town may, upon notice to the franchisee, make any necessary street or right-of-way repairs. The expense of these repairs shall be paid by the franchisee.
All damage to private or public property caused by the installation, construction, operation, maintenance or repair of the franchisee's infrastructure shall be repaired as soon as practicable and shall be done in a manner satisfactory to the Town Engineer. If the franchisee fails to make these repairs, the Town may make the repairs, and the expense of these repairs shall be paid by the franchisee.
The franchisee shall ensure that all of its vehicles and employees are clearly identified to the general public as being associated with the franchisee or its agents while engaged in construction or maintenance of its subsurface infrastructure.
In the event of a public emergency, the Town may sever, disrupt, dig up or otherwise destroy the franchisee's infrastructure within the public rights-of-way without any prior notice if any such action is deemed necessary by the Town Supervisor, Police Chief or Town Engineer. The Town shall notify the franchisee as soon as reasonably possible. For the purposes of this chapter, a public emergency is any condition which, in the opinion of the above-named officials, possesses an immediate threat to the lives or property of any of the citizens of the Town caused by any natural or man-made disaster. The franchisee shall bear the cost of repairs to its facilities damaged by any action taken by the Town under this subsection.
The Town may order the franchisee to protect, support, relocate or temporarily remove or disconnect its infrastructure within the subsurface public rights-of-way when the public convenience requires such action. The Town shall make this order in writing to the franchisee. The franchisee shall bear the cost of the action requested under this subsection. If the franchisee fails to fulfill the order by the date established by the Town, the Town may conduct the action at the expense of the franchisee and may also charge the franchisee for any additional expenses incurred by the Town resulting from the franchisee's delay in fulfilling the order.
In the event that the franchisee must make emergency repairs to its subsurface infrastructure, the franchisee shall obtain a highway permit before commencing repairs. If the repairs must be commenced outside of the Town's regular business hours, the franchisee may commence work without a permit but shall obtain a highway permit by noon of the next Town business day.
For the reason that the public rights-of-way are valuable public properties, essential for the general welfare of the public and acquired and maintained by the Town at great expense to its taxpayers, the franchisee shall pay the Town, as general compensation, for the duration of the franchise, an annual fee of $450 per 1,000 lineal feet (rounded upward to the nearest 1,000 feet) of the Town's rights-of-way used and occupied by the franchisee's infrastructure. This fee shall be payable in January of each year. The Town Engineer shall produce a form to be submitted by the franchisee for the purpose of establishing the amount of compensation due.
If any section, subsection, sentence, clause, phrase or other portion of this chapter is, for any reason, declared invalid in whole or in part by any court, agency, commission, legislative body or other authority of competent jurisdiction, such portion shall be deemed a separate, distinct and independent portion. Such declaration shall not affect the validity of the remaining portions of this chapter, and these remaining portions shall continue in full force and effect.