It shall be unlawful for any person to construct, operate or maintain telecommunications facilities or to operate as a telecommunications provider by use of facilities in the rights-of-way in the City without an existing, valid telecommunications use agreement with the City and a GOL pursuant to MGL c. 166, §§ 21 and 22, unless otherwise specifically authorized under applicable federal or state law, or otherwise provided by ordinance. A reseller service provider shall not be required to obtain a use agreement. Unless otherwise specified in the applicable telecommunications use agreement, a telecommunications provider is authorized to provide the full range of telecommunications and related services (but not including cable service or OVS) contemplated under this ordinance. The above provision notwithstanding, the Chicopee Municipal Lighting Plant shall not be required to obtain a telecommunications use agreement; nor shall public utilities owning and operating facilities within the rights-of-way that are utilized by third-party telecommunications providers but do not themselves provide telecommunications services be required to obtain a use agreement.
The authority granted by the City in any use
agreement shall be for nonexclusive use of the rights-of-way. The
City specifically reserves the right to grant, at any time, such additional
use agreements or franchises or other rights to use the rights-of-way
for any purpose and to any other person, including itself, as it deems
appropriate, subject to all applicable laws.
Use agreements shall not convey title, equitable
or legal, in the rights-of-way, and shall give only the right to occupy
rights-of-way, including a GOL as appropriate, for the purposes and
for the period stated in this ordinance and the individual use agreement.
No agreement shall grant the right to use facilities or poles owned
or controlled by the Chicopee Municipal Lighting Plant or a third-party,
without the consent of such owners, nor shall a use agreement excuse
a provider from obtaining appropriate conduit access or pole attachment
agreements before locating its facilities on the facilities or poles
owned or controlled by the Chicopee Municipal Lighting Plant or public
utilities pursuant to MGL c. 166, § 25A. All use agreements
shall be deemed to incorporate and be limited by the provisions of
this ordinance and shall create rights for the sole and exclusive
use of the provider.
A.
Consistent with applicable requirements of MGL c. 166, §§ 21 and 22, any person seeking to use the rights-of-way as a telecommunications provider, or seeking renewal of an existing use agreement to provide telecommunications or related services, shall submit a completed application on such form as approved by the City. All such applications shall include the following information, which shall be filed with the City Clerk's office and/or such other City departments as specified in the application:
(1)
Legal name of the applicant;
(2)
Address of the applicant;
(3)
Name and telephone number of contact person for the
applicant;
(4)
The name, address, telephone number of a contact person,
and a description of the relationship with the applicant (including
ownership interests), of all individuals, corporations, partners or
other entities that own, are owned by, or are otherwise affiliated
with the applicant.
(5)
The name, address, title, and telephone number of
all directors, officers, managing employees, and holders of at least
5% of the ownership interests in the applicant.
(6)
Description of type of service to be provided and,
if appropriate, evidence of certification by the Department of telecommunications
and Energy;
(7)
Evidence that the applicant has obtained or is seeking
all other relevant federal, state and local governmental approvals;
(8)
If an the applicant is seeking a GOL simultaneously
with the use agreement the applicant shall so indicate on the application
along with the following:
(9)
A detailed description of the types of aerial and
underground facilities that the applicant intends to install;
(10)
The applicant shall provide a detailed route maps
or plans showing the location of facilities to be installed within
the rights-of-way, prepared by a professional engineer registered
in the Commonwealth;
(11)
A preliminary construction schedule and completion
date;
(12)
The specific trees, structures, improvements, facilities
and obstructions, if any, that the applicant proposes to temporarily
or permanently remove or relocate;
(13)
Information as to what, if any, conduit capacity is
available for the placement of additional underground telecommunications
facilities by other telecommunications providers;
(14)
A statement of whether or not the applicant intends
to seek conduit or pole attachments from the Chicopee Municipal Lighting
Plant.
B.
Each application shall be accompanied by a nonrefundable
application fee in such amount as may be hereinafter established by
the City, to reimburse the City's reasonable costs in the review and
administration of any application filed under this ordinance.
C.
The telecommunications provider shall certify the
information it provides as complete true and correct. Within 30 days
of any occurrence that results in a material change to the information
provided in such completed application during the term of any use
agreement, the telecommunications provider shall furnish to the City
a certified amendment reflecting such change together with a cover
letter identifying and explaining the change. In such instance, the
City shall retain the right to reopen and reconsider its earlier approval
of the application.
Use agreements shall be granted pursuant to
all applicable procedures and requirements as set forth in the Massachusetts
General Laws, including those related to a GOL, as currently in existence
or as may be enacted in the future.
A.
Upon receipt of a completed and signed application,
the City Clerk will forward said application to the Highway Superintendent,
Planning Board and Inspector of Wires for review. The Highway Superintendent,
Planning Board and Inspector of Wires shall promptly review the application
and make written recommendations concerning approval to the City Council
and, if appropriate, shall include recommendations concerning permit
conditions and supplemental instructions.
[Amended 9-1-2009]
C.
In the event that a telecommunications provider has successfully negotiated a pole attachment agreement with a pole owner, then to the extent applicable the procedures under MGL c. 166, § 22, regarding a joint petition for an increase in the number of wires and cables, alteration of location, or change in height shall be followed.
D.
The City Council shall review the application, any
evidence presented at a GOL public hearing if a GOL is requested at
the time of the application, as well as the recommendations received
from the Highway Superintendent, Planning Board and Inspector of Wires
and make a determination on the Application, taking into account the
recommendations received, testimony and evidence presented, if any.
The Council shall consider at least all of the following:
[Amended 9-1-2009]
(1)
The likelihood that the new facilities will incommode the public use of the public rights-of-way or endanger or interrupt navigation, as provided in MGL c. 166, § 21.
(2)
The capacity of the rights-of-way to accommodate the
proposed new facilities.
(3)
The effect on the public health, safety and welfare
if the application is granted.
(4)
Prior conduct of the applicant in performance of its
obligations or compliance with the City's ordinances in the past,
or the existence of any outstanding violations or deficiencies.
E.
If the application is considered favorably, a use
agreement and any associated GOL shall be issued, granting such telecommunications
provider the right and privilege to construct, operate, and maintain
facilities in, over, through and along the City's rights-of-way for
the purposes of supplying telecommunications and related services
on a nonexclusive basis within the City, subject, however, to the
standards, terms and conditions set forth within this ordinance, and
any special conditions as may be provided for in the individual use
agreement. All providers shall be required to obtain and maintain
any necessary and lawful permit, license certification, grant, registration
or any other authorization required by any appropriate governmental
entity, including, but not limited to, the City, the FCC or the DTE.
The City shall not unreasonably discriminate between similarly situated
telecommunications providers in the administration of this ordinance.
F.
Upon review of the application, evidence presented
at any requested GOL hearing, and the recommendations of the Highway
Superintendent, Planning Board and Inspector of Wires, the City may
deny an application based upon a finding that:
(1)
The new facilities will incommode the public use of
the public rights-of-way or endanger or interrupt navigation; and/or
(2)
There is insufficient capacity in the City's rights-of-way
to accommodate the proposed new facilities; and/or
(3)
The facilities will adversely affect the public health,
safety and welfare if the application is granted; and/or
(4)
The applicant has engaged in substantial prior acts
of noncompliance with, or has unresolved substantial violations of,
the City's right-of-way ordinances.
A telecommunications use agreement shall not
provide a telecommunications provider the right to provide cable service
as a cable television system operator [as defined by 47 U.S.C. § 522
(5)] within the City. All persons wishing to operate a Cable Television
System in the City must follow the procedures in MGL c. 166A, 207
CMR 3.00, and applicable provisions of federal law(s). A telecommunications
use agreement shall also not permit a telecommunications provider
to operate an open video system. Persons wishing to provide open video
services in the City must reach a written agreement with the City
prior to offering any such services. Absent such an agreement from
the City, a provider shall be prohibited from offering OVS services,
and the offering of any such services shall be considered a material
breach of the applicable use agreement.
The provider shall construct and maintain provider's
facilities in accordance with all applicable federal, state and local
laws, including all permit requirements, and fee payments, and all
other City ordinances and ordinances in effect as of the date of this
ordinance or hereinafter adopted to the extent not in contravention
of state or federal law, or vested rights in any existing agreement,
franchise or license. The grant of an agreement does not in any way
impact the continuing authority of the City through the proper exercise
of its Charter or statutory powers to adopt and enforce ordinances
necessary to provide for the health, safety and welfare of the public.
The City makes no express or implied representation or warranty regarding
its rights to authorize the installation or construction of facilities
on any particular segment of rights-of-way. The burden and responsibility
for making all such determinations in advance of construction or installation
shall be entirely upon the provider. In such instances, the City shall
make available upon request, to the extent permitted by law, such
information as it may have regarding the rights-of-way to assist the
provider in this determination. The use of the rights-of-way authorized
by any agreement shall in all matters be subordinate to the City's
use and rights therein. Nothing herein shall be construed to allow
the City to take ownership of provider's facilities in violation of
any right to due process or compensation as may exist in federal or
state law.
The term of a telecommunications use agreement
shall be set out in the individual agreement but in no event shall
be for a term of more than seven years from its effective date.
Every telecommunications provider shall as compensation
for the use of the rights-of-way make an annual telecommunications
use agreement rental payment to the City as follows:
Unless otherwise agreed to in writing, all telecommunications
agreement fees shall be due and payable on an annual basis within
45 calendar days of the close of the calendar year for which the payment
applies (the "due date").
If any telecommunications use agreement fee,
or any portion thereof, is not postmarked or delivered on or before
the due date, interest thereon shall accrue from the due date until
received, at the rate of 3% per month, unless such other maximum rate
is established by law.
For a period of three years after receipt of
a payment, no acceptance by the City of any telecommunications use
agreement rental fee shall be construed as an accord that the amount
paid is in fact the correct amount; nor shall acceptance of any telecommunications
use agreement fee payment be construed as a release of any claim of
the City.
The telecommunications use agreement rental
fees required herein shall be in addition to, not in lieu of, all
taxes, charges, assessments, licenses, permits, fees and impositions
otherwise applicable that are or may be imposed by the City. The telecommunications
use agreement fee is a rental payment for use of the rights-of-way.
Each telecommunications provider shall be fully responsible for the
payment of all applicable taxes.
Except as otherwise may be provided by law or
applicable use agreement, a telecommunications provider shall not
lease, sell, or otherwise transfer ownership, possession or control
of its facilities, or any portion thereof, to any nonaffiliated person
without the prior written consent of the City, which shall not be
denied unreasonably. This subsection shall not be construed to apply
to a nonaffiliated person that merely resells the services of a telecommunications
provider without obtaining an ownership or possessory interest in
the facilities, nor shall it apply to the lease of dark fibers from
within a fiber sheath controlled and maintained by the provider regardless
of how such contracts are named or titled, provided no ownership or
property interests of the facilities are transferred.
A telecommunications provider shall not sell,
transfer, lease, assign, sublet or dispose of, in whole or in part,
either by forced or voluntary sale, or by ordinary sale, consolidation,
or otherwise, a use agreement or associated GOL, or any of the rights
or privileges granted by such use agreement or GOL, other than to
an affiliate, without obtaining the City's prior written authorization,
which shall not be unreasonably denied. Further, a provider shall
not change its name under which it does business with the public without
providing reasonable prior notice to the City.
[Amended 9-1-2009]
In case of failure on the part of the telecommunications provider, its successors and assigns, to comply with any of the material provisions of this ordinance, individual use agreement and associated GOL, or if the provider, its successors and assigns, should do or cause to be done any act or thing prohibited by or in violation of this ordinance or the terms of a use agreement and GOL, the provider, its successors and assigns, shall forfeit all rights and privileges permitted by this ordinance and any use agreement and associated GOL, and all rights hereunder shall cease, terminate and become null and void, provided that said forfeiture shall not take effect until the City shall carry out the following proceedings: Before the City declares the forfeiture or revocation of a use agreement and associated GOL, it shall first serve a written notice upon the company, by certified mail, setting forth in detail the neglect or failure complained of, and the company shall have 30 days thereafter, or such other longer reasonable period established by the City Council, in which to cure the default by complying with the conditions of the use agreement and GOL and fully remedying any default or violation. If, at the end of such thirty-day period, the City determines that the conditions have not been complied with, the City Council shall conduct a public hearing affording provider due process. If after a hearing the City Council determines that the provider is in violation of the use agreement or associated GOL, the City Council shall take action by an affirmative vote of the City Council present at the meeting and voting to terminate said use agreement and/or GOL and setting out the grounds upon which said use agreement and GOL is to be forfeited or revoked in a written notice to provider, by certified mail, together with written findings of fact. Nothing herein shall prevent the City from invoking any other remedy as may be set forth in this ordinance or as may otherwise exist at law; nor shall this § 276-20 preclude provider from seeking any right it may have to judicial review of a final decision under this section.
If provider fails to use all or any substantial
portion of its facilities n the rights-of-way for any continuous period
of twelve months, such facilities shall be deemed abandoned, and the
City shall have the right, upon 30 days' notice, by certified mail,
to terminate provider's use agreement or GOL for such facilities.
In the event of abandonment, provider shall, within 30 days of receiving
a request from the City, remove its facilities from the rights-of-way.
In lieu of requiring provider to remove its facilities upon abandonment,
the City shall have the right to obtain full ownership, use and control
of such facilities at no cost to the City.
