[HISTORY: Adopted by the Council of the City of New Rochelle 1-18-2000 by Ord. No. 16-2000. Amendments noted where applicable.]
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
- Each person who falls into one or more of the following categories: each person having, directly or indirectly, a controlling interest in the applicant; each person in which the applicant has, directly or indirectly, a controlling interest; each officer, director, joint venturer or joint venture partner of the applicant; and each person, directly or indirectly, controlling, controlled by or under City control with the applicant; provided that affiliated person shall in no event mean the City or any creditor of the applicant solely by virtue of its status as a creditor and which is not otherwise an affiliated person by reason of owning a controlling interest in, being owned by or being under City ownership, City management or City control with the applicant.
- 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). In the event that cable services is no longer defined in the Cable Act or the definition in the Cable Act otherwise becomes inapplicable, cable services shall mean cable services as defined in the Cable Act immediately prior to such term no longer being defined in the Cable Act or such definition otherwise becoming inapplicable.
- This chapter and all modifications and amendments thereto.
- The City of New Rochelle, New York.
- CITY COUNCIL
- The City Council of the City and its designee or any successor thereto.
- CONTROL or CONTROLLING INTEREST
- Actual working control in whatever manner exercised, including, without limitation, working control through ownership, management, debt instruments or negative control, as the case may be, of the applicant or the equipment in the streets. A rebuttable presumption of the existence of control or a controlling interest shall arise from the beneficial ownership, directly or indirectly, by any person or group of persons acting in concert, of more than 10%, of any person (which person or group of persons is hereinafter referred to as "controlling person"). Control or controlling interest as used herein may be held simultaneously by more than one person or group of persons.
- Poles, wires, electrical conductors, transmitters, conduits, subways, manholes, fixtures, appliances and appurtenances that are used to provide telecommunications services.
- Initial authorization, or renewal thereof, issued by the City in accordance with the provisions of this chapter, which authorizes the occupation and use of the 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 City or the City school district of the City of New Rochelle.
- REVOCABLE LICENSE
- Initial authorization or renewal thereof, issued by the City in accordance with the provisions of this chapter, which authorizes the limited occupation and use of specifically identified streets, provided that a revocable license shall be issued only in the limited circumstances set forth in § 292-2B and § 292-2G of this chapter.
- 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 other public areas or rights-of-way within or belonging to the City.
- 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 City; or provides telecommunications services that originate or terminate in the City 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 City 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.
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 City. 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 City, and any person seeking to provide cable services in the City shall first obtain a separate franchise in accordance with Chapter A365 of the City Code entitled "Multichannel Service Providers."
Any person seeking to use the streets to construct, operate or maintain equipment to provide telecommunications for or in connection with the internal operations of such person's business, residence or employment and not for or in connection with the provision or offering of telecommunications services for sale or resale to any person in the City shall first obtain a revocable license in accordance with the provisions of this chapter.
The City Council may grant one or more franchises and revocable licenses in accordance with this chapter, provided that the Council reserves the right to modify any provision of this chapter by amendment hereof.
The grant of any franchise or revocable license shall be made by adoption of a separate ordinance by the City Council and shall be on such terms and conditions as shall be specified in said separate ordinance and/or a franchise or license agreement between the City and the franchisee or licensee.
Any franchise or revocable license granted shall be nonexclusive. The City specifically reserves the right to grant, at any time, such additional franchises, revocable licenses or other authorizations for use of the streets by any means, as the City deems appropriate.
A franchise may be granted for all or any defined portion of the City.
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 City. In the event that an application for a revocable license would cause a telecommunications provider to exceed or fail to comply with the limits specified in this § 292-2G, 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.
Any franchise or revocable license granted shall require payment of a fee payable to the City in such amount as shall be determined by the City Council.
Subject to the provisions of this chapter, the City 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, policies 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 City. No permits or other authorizations for such construction or installation shall be issued prior to the granting of a franchise or a revocable license pursuant to this chapter or such other authorization as may be required by applicable law.
Applications for franchises and revocable licenses shall be submitted to the Commissioner of Public Works with a copy also to be submitted to the Corporation Counsel.
An application shall contain the following information with respect to the proposed franchise or revocable license and such other information with respect to the proposed franchise or revocable license as the City may deem necessary or appropriate, consistent with applicable law:
The name, address, telephone number and e-mail address of the applicant and the person the City may contact concerning the application.
A description of the telecommunications services proposed to be provided, including, without limitation, a description of facilities and equipment.
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.
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, ordinances, resolutions, rules, regulations and other directives of the City and any federal, state or local governmental authority having jurisdiction.
If an application is complete and otherwise complies with applicable law, ordinances, resolutions, rules, regulations and other directives of the City, including the provisions of this chapter, the City shall enter into negotiations with the applicant to determine whether such applicant and the City are able to reach agreement on the terms of the proposed franchise or revocable license in accordance with §§ 292-10 and 292-11 of this chapter. The City may reject any application which is incomplete or otherwise fails to comply with applicable law, ordinances, resolutions, rules, regulations and other directives of the City and any federal, state or local authority having jurisdiction.
In making any determination hereunder as to any application for a franchise or revocable license, the City Council may consider such factors as it deems appropriate and in the public interest, provided that such factors are consistent with applicable law, including without limitation:
The adequacy of the proposed compensation to be paid to the City, including the value of any facilities and telecommunications services offered by the applicant to the City.
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.
The adequacy of the terms and conditions of the proposed franchise or revocable license agreement to protect the public interest, consistent with applicable law.
Any other public interest factors or considerations that the City has a lawful right to consider and that are deemed pertinent by the City for safeguarding the interests of the City and the public.
Consistent with applicable law, the City 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 City may consider an applicant's proposals for addressing capacity needs and compliance with City policies and requirements.
The City Council may make such investigations and take or authorize the taking of such other steps as the City Council deems necessary or appropriate to consider and act on applications for franchises and revocable licenses and to determine whether a franchise or revocable license should be granted to an applicant and may require the applicant to furnish additional information and data for this purpose. In considering applications, the City Council may seek advice from City officials, departments, agencies, boards, commissions or bodies, from such other advisory bodies as it may establish or determine appropriate or from the public and may request the preparation of one or more reports to be submitted to the City Council, which may include recommendations with respect to such applications.
Consistent with applicable law, upon completion of the steps deemed appropriate by the City Council, the City Council may grant or deny the franchise or revocable license and may specify the conditions under which the franchise or revocable license is granted.
The terms and conditions applicable to any franchise granted pursuant to this chapter shall be set forth in the separate ordinance granting the franchise and/or in a separate written agreement. A franchise granted pursuant to this chapter shall not become effective until said separate ordinance becomes effective and any separate agreement is executed by both parties. Such separate ordinance or written agreement, among other things, shall address the following subjects:
The term of the franchise.
The franchise area and the telecommunications services to be offered.
The compensation to be paid to the City, which shall include the payment of fees and/or the provision of facilities or services.
The circumstances upon which the franchise may be terminated or cancelled.
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 City'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 City'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 City, 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 telecommunications 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 City departments.
Provisions to restrict the assignment or other transfer of the franchise without the prior written consent of the City.
Remedies available to the City to protect the City'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 franchisee, including the Federal Communications Commission.
Provisions to ensure that the franchisee will protect the property of the City 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 City are disrupted in connection with the construction of improvements relating to the franchise.
Such other provisions as the City determines are necessary or appropriate in furtherance of the public interest, consistent with applicable law.
The terms and conditions applicable to any revocable license granted pursuant to this chapter shall be set forth in the separate ordinance granting the revocable license and/or in a separate written agreement. A revocable license granted pursuant to this chapter shall not become effective until the separate ordinance granting the license becomes effective and any separate written agreement is executed by both parties. Such separate ordinance and/or written agreement shall address the same subjects listed in § 292-10 of this chapter, subject to the following 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 City for cause or for the City's purposes.
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 City.
In the event that an application for a revocable license would cause a telecommunications provider to exceed or fail to comply with the limits specified in § 292-11A(3), 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.
The City Council shall have the right to delegate and redelegate, and to revoke any such delegation or redelegation, from time to time, any of its rights or obligations under this chapter to any body, organization or official of the City. Any such delegation, redelegation or revocation, no matter how often made, shall not be deemed an amendment to this chapter or to require the consent of any applicant for a franchise or revocable license or franchisee or licensee.
To the extent permitted by law, the City 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.