[HISTORY: Adopted by the Board of Trustees of the Village of Northport 12-17-2013 by L.L. No. 3-2013. Amendments noted where applicable.]
Except as otherwise specified herein, no person shall construct or operate a telecommunications system which occupies the public rights-of-way within the Village, or be granted a permit, approval or authorization to construct any portion of any such facility within the Village, without having been issued a right-of-way use license by the Board.
The Board or its designee shall receive and review all applications for right-of-way use licenses in accordance with the provisions of this chapter.
Notwithstanding Subsection A, the requirements of this chapter shall not apply to any entity (or its affiliate) holding a cable television franchise issued by the Village, or otherwise authorized by state law and permitted by the Village to deploy and operate facilities in the public rights-of-way for the provision of wireline telecommunications service to end users prior to the date of enactment of this chapter, and deploying equipment on facilities authorized to be in the public rights-of-way pursuant to such franchise or authorization or used in the provision of services lawfully provided over such facilities.
For the purposes of this chapter and any license in accordance herewith, the following terms, phrases, words and their derivations shall have the meaning given herein.
- Any person that applies for a license pursuant to this chapter.
- A written document containing the required elements specified in this chapter requesting a license to use the Village rights-of-way.
- The Board of Trustees of the Village of Northport.
- This chapter and all modifications and amendments hereto.
- A person who, for a charge or payment of a fee, receives, sends or uses any signal or service provided, transmitted, or distributed by a telecommunications system licensed by the Village. In the case of a licensee that provides, transmits, or distributes signals or services of other telecommunications carriers or providers of telecommunications offering service within the Village, such carriers and providers shall be considered customers of that licensee for purposes of this chapter.
- The person or its legal successor in interest who is issued a license in accordance with the provisions of this chapter for the erection, construction, reconstruction, operation, maintenance, dismantling, testing, repair and use of a telecommunications system in the Village.
- LICENSE OR USE LICENSE
- The privilege granted by the Village by which the Village authorizes a person to erect, construct, reconstruct, operate, dismantle, test, use and maintain a telecommunications system that occupies the streets, public ways or public places within the Village. Any license issued in accordance herewith shall be a nonexclusive license.
- MUNICIPAL FACILITY
- Any Village-owned poles, streetlights, lighting fixtures, electroliers or other Village-owned structures located within the public rights-of-way to which a licensee attaches or installs telecommunications system equipment or facilities.
- PUBLIC RIGHTS-OF-WAY
- The surface, the air above the surface, and the area below the surface within any street, highway, lane, path, alley, sidewalk, boulevard, drive, bridge, tunnel, park, parkway, lane, square, viaduct, waterway or other public right-of-way including public utility easements or rights-of-way in which the Village has jurisdiction; and any other public ground or water within belonging to the Village.
- Any area established for vehicular or public access use or the entire width between the boundary lines of every way publicly maintained when any part thereof is open for public purposes. "Street" includes, but is not limited to, highway, avenue, road, alley, right-of-way, lane, boulevard, concourse, bridge, tunnel, parks, parkways, waterways, docks, overheads, wharves and piers.
- TELECOMMUNICATIONS and TELECOMMUNICATIONS SERVICE
- Shall have meanings set forth in Sections 3(50) and 3(53) of the Federal Communications Act, 47 U.S.C. § 153(50) and (53), respectively.
- TELECOMMUNICATIONS SYSTEM
- Any equipment or facilities, and any supporting structures therefor, used to provide wireline or wireless telecommunications or telecommunications service on a wholesale or retail basis, or used in the provision of such telecommunications or telecommunications service, that in any manner is connected with the streets, public rights-of-way, public places, or property within the Village, as now or in the future may exist including, but not limited to, facilities or equipment deployed or operated in the Village by an entity holding a certificate of public convenience and necessity.
- TOTAL LOCAL GROSS REVENUES
- All revenue and consideration, as determined in accordance with generally accepted accounting principles, which is paid to or received by the licensee from its provision of services within the Village or in any way derived from the operation of its telecommunications system, including, but not limited to, any interconnection between its telecommunications system in the Village and any other communications system. This sum shall be the basis for computing the fee imposed pursuant to this chapter. The sum shall not include any bad debts, deposits, promotional or vendor discounts or credits nor sales, service, occupation or other excise tax to the extent that such taxes are charged separately from normal service charges and are remitted by the licensee directly to the taxing authority.
- The Village of Northport, acting through the Board, or its duly authorized designee.
Any license issued by the Village in accordance herewith shall be a nonexclusive license for a term of five years to use the streets, public rights-of-way or public places within the City, as specified in the license Agreement described in § 272-5D, for the erection, construction, reconstruction, operation, maintenance, dismantling, testing and use of a telecommunications system.
Any license issued by the Village may be renewable upon establishment by the licensee to the satisfaction of the Village that the licensee is in compliance with this chapter, all applicable federal, state and local laws, ordinances, and regulations and the space occupied by the telecommunications system facilities is not otherwise needed for a public purpose.
Before commencing construction of a telecommunications system in, above, over, under, across, through or in any way connected with the streets, public ways or public places of the Village, the licensee shall obtain at its own cost and expense any required permit, license, approval or other authorization prior to the commencement of the activity for which the permit, license, approval or other authorization is required.
Nothing in this chapter shall be construed as a representation, promise or guarantee by the Village that any permit, license, approval, or other authorization required under any Village law for the construction or installation of a telecommunications system shall be issued.
Upon obtaining written approval, the licensee shall give the appropriate agency written notice within a reasonable time of proposed construction, but in no event shall the notice be given less than 10 days before the commencement.
Any person who submits a request for a license in accordance herewith shall include therein proposed agreements for the use of existing utility poles and conduits, if applicable, with the owner(s) of the facilities to be used or affected by the construction of the proposed telecommunications system.
It shall be unlawful for the licensee or any other person to open or otherwise disturb the surface of any street, sidewalk, driveway, public way or other public place for any purpose whatsoever without obtaining approval to do so after proceeding in the manner prescribed in Subsections A and B hereof. Violation of this section shall subject the licensee to all penalties and remedies prescribed therein and to all other remedies, legal or equitable, which are available to the Village.
Any license issued pursuant to this chapter shall contain provisions addressing the terms and conditions of the licensee's use of the streets, public rights-of-way, and public places to construct, install, operate, maintain and repair facilities and equipment authorized to be deployed hereunder, including provisions addressing:
Conditions on the licensee's use of the rights-of-way and any Village-owned facilities, structures or fixtures;
Obligations to restore and repair streets, rights-of-way and property disturbed by construction or maintenance activity;
Facilities relocation for public purposes;
Construction and safety standards and facilities design and siting requirements;
Licensee's obligations to comply with all applicable laws and obtain all necessary permits, approvals and authorizations prior to construction, maintenance or repair of any facilities, equipment, poles or support structures;
Compensation to the Village for use of the rights-of-way and attachment of licensee's equipment to any municipal facilities;
Insurance and bonding requirements;
Conditions on transfer or assignment;
Such other conditions aimed at ensuring that licensee's use of the public rights-of-way minimizes disruption to the public and protects, consistent with applicable law, public health, safety and aesthetic concerns.
The Board or its designee shall develop and utilize a standard form application for right-of-way use licenses issued under this chapter. Such application shall, at a minimum, require the submission of the following information:
The applicant's name and address, principal line(s) and location(s) of business, and its designated contact(s) for telecommunications with the Village;
A description of the type of facilities and equipment proposed to be deployed in the public rights-of-way;
Specification of the proposed locations within the Village where such facilities and equipment will be deployed, including location maps and elevation drawings of proposed facilities and any other proposed structures, showing color, and identifying structural materials;
A proposed construction schedule and sequence;
Documentation that the proposed facilities meet all applicable construction, design and engineering standards, including but not limited to the most recent editions of the ANSI Code, National Electrical Safety Code and the National Electrical Code;
Evidence that the applicant has the financial, technical, and legal ability to construct, install, operate and maintain the facilities in the local rights-of-way;
Copies of all federal and state licenses and authorizations required for the intended operation of the telecommunications system, or a statement of the applicant's belief as to why no such licenses or authorizations are necessary;
A description of the proposed services to be provided over such facilities and evidence that the applicant has obtained all necessary approvals and authorizations to provide such services;
Documentation of the applicant's ability to satisfy any bonding, insurance and indemnification obligations imposed as a condition of the license;
Affirmation of the applicant's willingness to pay the applicable compensation required by this chapter;
Such other information deemed necessary by the Board or its designee to evaluate the impact of the applicant's proposed communication system on the rights-of-way and to ensure that such impact will be consistent with the general welfare of the Village.
Submission of the application required herein shall be accompanied by a nonrefundable fee of to defray the costs and expenses associated with review of the application and assessment of the impact of the proposed telecommunications system on the rights-of-way and the general welfare of the Village. Application fees shall be established by the Board by resolution from time to time.
Within 30 calendar days after the date that an application for a right-of-way use license is filed with the Village, the Village shall notify the applicant in writing of any information that may be required to complete such application.
Once the Village determines that the application is complete, with all required submissions having been received in proper form, it shall refer the application to the Board for a public hearing. Such hearing shall take place no later than 45 days after the date the application is deemed complete. If an approval is required by the Village Board of Zoning Appeals ("BZA"), then the Board may rely upon the public hearing held before the BZA in lieu of holding its own public hearing.
Within 30 days of the completion of such hearing, the Village shall provide the applicant with a proposed agreement reflecting the requirements of this chapter and setting forth the terms and conditions under which the applicant may construct and operate its telecommunications system within the Village's rights-of-way. The Village and the applicant may discuss and, if mutually agreeable, revise the proposed agreement as appropriate. If the Village is unable to provide such a proposed agreement due to the absence of relevant information or for any other reason, it shall so advise the applicant in writing.
Unless otherwise agreed upon by the Village and the applicant, all applications shall be acted upon within 150 days of the receipt of a fully completed application and execution of a license agreement. If additional information was requested by the Village to complete an application, the time required by the applicant to provide the information shall not be counted toward the one-hundred-fifty-day review period.
The Village shall conduct its review and determination of applications, and adopt right-of-way use license agreements authorized hereunder, in a competitively neutral and nondiscriminatory manner. The Village shall not disapprove any application unless:
The applicant fails to submit a complete application, or fails to provide information necessary to review the application, within the timeframe specified by the Village;
The applicant declines to enter into a license agreement containing any of the provisions required herein;
The Village determines that the applicant lacks the financial, technical, and legal ability to construct, install, operate and maintain the facilities in the local rights-of-way;
The Village determines, based upon information adduced from the application, hearing or proceeding, that grant of the application would adversely affect the local rights-of-way, property within the Village, or public safety and welfare.
The Village shall issue a written decision memorializing its disposition of the application and incorporating the license agreement entered into by the parties.
Right-of-way use fee. As compensation for its use and occupation of the streets, rights-of-way and public places of the Village, a licensee shall pay annual fees to the Village as follows:
Any telecommunications system which serves no customers other than itself shall pay charges and license fees as determined based upon a reasonable estimate of the anticipated gross revenue or as is comparable with the amounts paid to other similarly situated municipalities.
Any telecommunications system that serves customers within the Village shall pay annually 5% of the annual total local gross revenues derived from the customers.
Nothing in this subsection shall preclude the Village and licensee from negotiating an alternative fee arrangement so long as such alternative yields total compensation to the Village that is substantially equivalent to, and a reasonable proxy for, the otherwise applicable compensation formula under this subsection and so long as the opportunity to negotiate such alternative fee arrangements is available to all other prospective licensees on a non-discriminatory basis. Nothing in this paragraph shall be construed to require the Village or a licensee to enter into such an alternative fee arrangement.
Municipal facilities fee. As compensation for its use of any Village-owned street poles, street lamps and lighting fixtures, and other Village-owned structures upon which telecommunications system facilities are proposed to be constructed or installed, an amount based upon a reasonable estimate of the anticipated gross revenue or as is comparable with the amounts paid to other similarly situated municipalities.
The Village shall not at any time be liable for any injury or damage occurring to any person or property from any cause whatsoever arising from the use, operation or condition of the licensee's telecommunications system.
The licensee shall indemnify, save and hold harmless and defend the Village from all liens; charges; claims, including but not limited to, libel, slander, invasion of privacy and unauthorized use of any trademark, trade name or service mark; demands; suits; actions; fines; penalties; losses; costs, including but not limited to, reasonable legal fees and court costs; judgments; injuries; liabilities or damages, in law or equity, of any and every kind and nature whatsoever, including damages caused by or arising out of any act of negligent omission of the Village, its officers, servants, agents, employees or contractors, or otherwise, arising out of or in any way connected with the installation, operation, maintenance or condition of the licensee's telecommunications system.
Any right-of-way use license issued hereunder shall set forth the type and coverage of insurance required, taking into consideration the size and location of the telecommunications system, the financial resources of the licensee, risk involved to the City and to the general public as well as other salient factors.
Nothing in this chapter or in any license issued in accordance herewith shall be construed as an abrogation of, or restriction on, the exercise of the Village's police power.
The licensee shall not transfer or assign its interest in any license issued in accordance herewith without the prior written authorization of the Village. Nothing in any approval by the Village authorizing any transfer or assignment of any license issued in accordance herewith shall be construed to waive or release any rights of the Village in and to the streets, rights-of-way and public places of the Village or as a release of any of the Village's police powers.