[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.
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.
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.
The City Council of the City and its designee or any successor
thereto.
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.
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.
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.
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.
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.
A.Â
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."
B.Â
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.
C.Â
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.
D.Â
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.
E.Â
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.
F.Â
A franchise may be granted for all or any defined
portion of the City.
G.Â
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.
H.Â
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.
A.Â
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.
B.Â
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.
A.Â
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.
B.Â
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:
(1)Â
The name, address, telephone number and e-mail address
of the applicant and the person the City may contact concerning the
application.
(2)Â
A description of the telecommunications services proposed
to be provided, including, without limitation, a description of facilities
and equipment.
(3)Â
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.
(4)Â
A proposed construction schedule and sequence.
(5)Â
A map showing the proposed location of the applicant's
telecommunications system.
(6)Â
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.
A.Â
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:
(1)Â
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.
(2)Â
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.
(3)Â
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.
(4)Â
The adequacy of the terms and conditions of the proposed
franchise or revocable license agreement to protect the public interest,
consistent with applicable law.
(5)Â
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.
B.Â
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.
A.Â
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.
B.Â
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.
A.Â
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:
(1)Â
The term of the franchise.
(2)Â
The franchise area and the telecommunications services
to be offered.
(3)Â
The compensation to be paid to the City, which shall
include the payment of fees and/or the provision of facilities or
services.
(4)Â
The circumstances upon which the franchise may be
terminated or cancelled.
(5)Â
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.
(6)Â
The City's right to inspect the facilities and records
of the franchisee.
(7)Â
Insurance and indemnification requirements applicable
to the franchisee.
(8)Â
The obligation of the franchisee to maintain complete
and accurate books of account and records, and the City's inspection
rights with respect thereto.
(9)Â
Provisions to ensure quality workmanship and construction
methods.
(10)Â
Provisions to ensure that the Franchisee will
comply with all applicable City, state and federal laws, regulations,
rules and policies.
(11)Â
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.
(12)Â
Provisions to restrict the assignment or other
transfer of the franchise without the prior written consent of the
City.
(13)Â
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.
(14)Â
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.
(15)Â
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.
(16)Â
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.
(17)Â
Such other provisions as the City determines
are necessary or appropriate in furtherance of the public interest,
consistent with applicable law.
A.Â
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:
(1)Â
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.
(2)Â
The revocable license shall be revocable at any time
by the City for cause or for the City's purposes.
(3)Â
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.
B.Â
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.
A.Â
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.
B.Â
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.