[HISTORY: Adopted by the Board of Trustees of the Village of Port Chester 11-20-2000 by L.L. No. 15-2000. Amendments noted where applicable.]
The Village of Port Chester has the authority to grant franchises and other authorizations for the use and occupancy of its streets to ensure and protect the public health, safety and welfare. The streets are a valuable public resource which has required, and will continue to require, substantial investment for their repair and upkeep and continued use. The Village desires to adopt a fair and orderly process for the grant and renewal of franchises and other authorizations to providers of telecommunications services. The purpose of this chapter is to minimize disruption and inconvenience to the public and the Village; protect the Village from liability for use of its streets; ensure that the Village is properly and reasonably compensated for the use of its streets; preserve adequate capacity in the streets for future uses; and to set out a procedure that is fair and nondiscriminatory in compliance with applicable law.
For purposes of this chapter, the following terms, phrases, words and their derivations shall have the meanings set forth in this section, unless the context clearly indicates that another meaning is intended. When not inconsistent with the context, words used in the present tense include the future, words used in the plural number include the singular number and words used in the singular number include the plural number.
- AFFILIATED PERSON
- Any person controlling, controlled by or under common control with the applicant for a franchise or license.
- BOARD OF TRUSTEES
- The Board of Trustees of the Village.
- CABLE SERVICES
- "Cable services" as defined in the Communications Act of 1934, as amended by the Cable Communications Policy Act of 1984, the Cable Television Consumer Protection and Competition Act of 1992, and the Telecommunications Act of 1996 and as may be further amended from time to time (the "Cable Act").
- Actual working control in whatever manner exercised, including, without limitation, ownership, management or debt instruments.
- The poles, wires, electrical conductors, conduits, subways, manholes, fixtures, appliances and appurtenances that are used to provide telecommunications services.
- An initial authorization, or renewal thereof, issued by the Village in accordance with the provisions of this chapter, for the occupation and use of the Village's streets to provide telecommunications services.
- Any individual or any association, firm, partnership, joint venture, corporation or other legally recognized entity, whether for profit or not for profit, but shall not mean the Village.
- REVOCABLE LICENSE
- An initial authorization or renewal thereof, issued by the Village in accordance with the provisions of this chapter, which authorizes the limited occupation and use of the Village's right-of-way.
- The surface of, as well as the spaces above, below and along, any and all public highways, streets, alleyways, and other public rights-of-way within or belonging to the Village.
- All transmissions, 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.
- TELECOMMUNICATIONS PROVIDER
- Any person who:
Owns, constructs, operates or maintains equipment in the streets used to provide telecommunications services regardless of whether such telecommunications services originate or terminate in the Village; or
Provides telecommunications services that originate or terminate in the Village by means of specifically identifiable equipment in the streets, which equipment is owned by such person or made available to such person under a lease or any other arrangement for a period longer than 120 days; or equipment in the streets if the use of such equipment is continuing and substantial, and the Village has determined that it is necessary and appropriate to impose the requirements of this chapter in order to preserve the application of this chapter on a competitively neutral and nondiscriminatory basis consistent with applicable law.
- TELECOMMUNICATIONS SERVICES
- 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 facilities used. The term "telecommunications services" shall not include cable services.
- TELECOMMUNICATIONS SYSTEM
- The plant, equipment, real property (including interests in real property), tangible and intangible personal property, buildings, offices, furniture, customer lists, cable, wires, optical fibers, amplifier, antenna, and all other electronic devices, equipment and facilities used to provide telecommunications services.
- The Village of Port Chester, New York.
No person shall use or occupy the streets as a telecommunications provider, or construct, operate or maintain equipment in the streets used to provide telecommunications, without a franchise or revocable license granted by the Village. A franchise or revocable license granted in accordance with the provisions of this chapter shall not be construed to grant any rights or authorization to provide cable services in the Village, and any person seeking to provide cable services in the Village shall first obtain a separate franchise in accordance with applicable law.
The Board may grant one or more franchises and revocable licenses in accordance with this chapter.
Any franchise or revocable grant granted shall be nonexclusive.
The grant of any franchise or revocable license shall be made by adoption of a separate resolution by the Board and shall be on such terms and conditions as shall be specified in said separate resolution and/or a franchise or license agreement between the Village and the franchisee or licensee.
A franchise may be granted for all or any defined portion of the Village.
A revocable license is intended to be a limited grant of authority to use and occupy specifically identified streets to provide telecommunications services and shall be granted only if:
The use or occupation of such streets, together with all revocable licenses previously granted to such person and affiliated persons, shall not exceed 2,500 linear feet; or
The use or occupation of such streets does not involve the offering or provision of telecommunications services to any person within the Village.
In the event an application for a revocable license would cause a telecommunications provider to exceed or fail to comply with the limits specified in Subsection F(1)(a) or (b) of this section, then such telecommunications provider must apply for a franchise in accordance with the provisions of this chapter, and the use of specifically identified streets pursuant to all previously granted revocable licenses shall thereafter be pursuant to and in accordance with any such franchise that may be granted.
Subject to the provisions of this chapter, the Village may adopt rules, policies and requirements to carry out the purposes and provisions of this chapter. Each applicant, franchisee and licensee shall comply with such rules, polices and requirements.
No person shall construct or install any equipment in the streets used to provide telecommunications services without first obtaining such permits or other authorizations as may be required by the Village. No permits or other authorizations for such construction or installation shall be issued prior to granting a franchise or a revocable license pursuant to this chapter or such other authorization as may be required by applicable law.
[Amended 10-7-2019 by L.L. No. 9-2019]
Applications for franchises and revocable licenses shall be submitted to the Board of Trustees. Two additional copies shall be filed with the Village Manager and Village Attorney.
An application shall contain the following information with respect to the proposed franchise or revocable license and such other information as the Village may deem necessary or appropriate, consistent with applicable law:
The name, address and telephone number of the applicant and the person the Village may contact concerning the application.
A brief description of the telecommunications and nontelecommunications services proposed to be provided, and a description of facilities and equipment that will be placed in the rights-of-way. Without limitation, if the applicant proposes to place wireless facilities in the rights-of-way, that should be noted.
A description of the proposed franchise area or, in the case of a revocable license, the specifically identified streets and/or portions thereof proposed to be used.
A proposed construction schedule and sequence.
A map showing the proposed location of the applicant's telecommunications system.
A showing that the applicant holds all licenses required from the State of New York; if the State of New York has not determined that the applicant is qualified to operate in the state, a showing that the applicant will have the technical and financial resources to operate safely in the rights-of-way and the authority necessary to operate in the rights-of-way.
Ownership of the applicant and identification of all affiliated persons.
It shall be the responsibility of each applicant for a franchise or revocable license to comply with all applicable laws, resolutions, rules, regulations and other directives of the Village and any federal, state or local governmental authority having jurisdiction.
If an application is complete and otherwise complies with applicable law, resolutions, rules, regulations and other directives of the Village, the Village shall enter into negotiations with the applicant to determine whether the parties are able to reach agreement on the terms of the proposed franchise or revocable license in accordance with this chapter. The Village may reject any application which is incomplete or otherwise fails to comply with applicable law, resolutions, rules, regulations and other directives of the Village and any federal, state or local authority having jurisdiction.
[Amended 10-7-2019 by L.L. No. 9-2019]
In making any determination hereunder as to any application for a franchise or revocable license, the Board may consider such factors as it deems appropriate and in the public interest, provided such factors are consistent with applicable law, including without limitation:
The adequacy of the proposed compensation to be paid to the Village, subject to limits on the compensation that may be charged under state and federal law;
The legal, financial, technical and other appropriate qualifications of the applicant, provided that in applying to this standard, the Village will defer to determinations made by the State of New York; and further provided that the Village will not review the price or quality of services offered, instead reviewing the ability of the applicant to maintain the property of the Village in good condition throughout the term of the franchise or the revocable license;
Any services or uses of the streets that may be precluded by the grant of the franchise or revocable license; and the adverse impact of the proposed franchise or revocable license on the efficient use of the streets or utilities at present and in the future;
The willingness and ability of the applicant to meet construction and physical requirements and to abide by all lawful conditions, limitations, requirements and policies with respect to the franchise or the revocable license.
Consistent with applicable law, the Village may develop and implement policies and requirements to ensure that the streets have sufficient capacity reasonably to accommodate existing and future uses in a rational and efficient manner. In evaluating an applicant for a franchise or revocable license, the Village may consider an applicant's proposals for addressing capacity needs and compliance with Village policies and requirements.
The Board may make such investigations and take or authorize the taking of such other steps as the Board deems necessary or appropriate to act on applications for franchises and revocable licenses and may in good faith require the applicant to furnish additional information for this purpose.
The Board shall make a determination within a reasonable time after the application is deemed complete and compliant.
The Board shall by resolution either grant or deny the application for a franchise or revocable license, and with respect to the former, it may specify the conditions under which same is to be granted.
In the event of a denial, the Board shall make findings on substantial evidence supporting its determination.
[Amended 10-7-2019 by L.L. No. 9-2019]
The terms and conditions applicable to any franchise granted pursuant to this chapter shall be set forth in a separate written agreement. A franchise granted pursuant to this chapter shall not become effective until the agreement is executed by both parties. Such separate agreement, among other things, shall address the following subjects:
The term of the franchise;
The franchise area and the services that may be offered pursuant to the franchise, and the services (such as cable services) which may require additional authorizations;
The compensation to be paid to the Village, which shall include the payment of a franchise fee and, if applicable, the provisions of facilities or services;
The circumstances upon which the franchise may be terminated or canceled;
The mechanisms, such as performance bonds, security funds or letters of credit, to be put in place to ensure the performance of the franchisee's obligations under the franchise;
The Village's right to inspect the facilities and records of the franchisee;
Insurance and indemnification requirements applicable to the franchisee;
The obligation of the franchisee to maintain complete and accurate books of account and records, and the Village's inspection rights with respect thereto;
Provisions to ensure quality workmanship and construction methods;
Provisions to ensure that the franchisee will comply with all applicable local, state and federal laws, regulations, rules and policies;
The obligation of the franchisee to supply an engineering site plan showing the proposed location of the applicant's system, including any manholes or overhead poles, the size, type and proposed depth of any conduit or other enclosures, and the relationship of the system to all existing poles, utilities, sidewalks, pavement, telecommunications systems, and other improvements in the streets, all of which shall be subject to approval by the appropriate Village departments;
Provisions to restrict the assignment or other transfer of the franchise without prior written consent of the Village as necessary to ensure that the responsibility for past acts and omissions is clearly addressed, and to ensure that the transferee is fully bound and the lawful interests of the Village are protected;
Remedies available to the Village to protect the Village's interest in the event of the franchisee's failure to comply with terms and conditions of the franchise;
Provisions to ensure that the franchisee will obtain all necessary licenses and permits from, and comply with all laws, regulations, rules and policies of, any governmental body having jurisdiction over the franchise, including the Federal Communications Commission;
Provisions to ensure that the franchisee will protect the property of the Village and the delivery of public services from damage or interruption of operations resulting from the construction, operation, maintenance, repair or removal of improvements related to the franchise;
Provisions designed to minimize the extent to which the public use of the streets of the Village are disrupted in connection with the construction of improvements relating to the franchise; and
Such other provisions as the Village determines are necessary or appropriate in furtherance of the public interest in ensuring that the rights-of-way are properly managed and controlled.
The terms and conditions applicable to any revocable license granted pursuant to this chapter shall be set forth in a separate written agreement. A revocable license granted pursuant to this chapter shall not become effective until the agreement is executed by both parties. Such separate agreement shall address the same subjects listed in § 297-10 of this chapter, subject to the following additional limitations:
The revocable license shall be for a term not to exceed 10 years from the date that the ordinance granting the revocable license becomes effective;
The revocable license shall be revocable at any time by the Village for cause or for the Village purposes; and
The revocable license, together with all revocable licenses previously granted to the applicant or affiliated persons, shall not authorize the occupation and use of more than 2,500 linear feet of specifically identified streets, unless the use or occupation of the streets does not involve the offering or provision of telecommunications services to any person in the Village.
In the event an application for a revocable license would cause a telecommunications provider to exceed or fail to comply with the limits specified in Subsection A(3) of this section, then such telecommunications provider must apply for a franchise in accordance with the provisions of this chapter, and the use of specifically identified streets pursuant to all previously granted revocable licenses shall thereafter be pursuant to and in accordance with any such franchise that may be granted.
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 hereof, which other portions shall continue in full force and effect.
To the extent permitted by law, the Village may determine to apply all or certain provisions of this chapter to telecommunications providers and franchises and other right-of-way authorizations existing on the effective date of this chapter.