The Town of Mamaroneck has the authority to grant franchises and other
authorizations for the use and occupancy of the streets and has determined
that the streets are a valuable public resource that has required and will
continue to require substantial investment by the Town. The Town desires to
structure and implement a fair and orderly process for the grant of franchises
and other authorizations (and renewals of such franchises and authorizations)
to occupy and use the streets to provide telecommunications services (as hereinafter
defined) in the Town, including the negotiation of terms and conditions to
protect the public interest consistent with applicable law. In addition, consistent
with applicable law, the Town desires to manage the streets and obtain fair
and reasonable compensation from telecommunications providers (as hereinafter
defined) on a competitively neutral and nondiscriminatory basis for the use
of the streets on a nondiscriminatory basis. The Town also desires to minimize
inconvenience and disruption to the public, provide for the orderly and efficient
use of the streets now and in the future and preserve adequate capacity for
existing and future uses of the streets; and the Town intends to exercise,
to the fullest extent permitted by applicable law, its authority with respect
to the regulation of the occupation and the use of the streets in connection
with the provision of telecommunications services.
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 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
A.
Each person who falls into one or more of the following categories:
(1)
Each person having, directly or indirectly, a controlling interest in
the applicant;
(2)
Each person in which the applicant has, directly or indirectly, a controlling
interest;
(3)
Each officer, director, joint venture or joint venture partner of the
applicant; and
(4)
Each person, directly or indirectly, controlling, controlled by, or
under common control with, the applicant; provided that
B.
"Affiliated person" shall in no event mean the Town 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 common ownership, common management or
common 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.
CHAPTER
This chapter and all modifications and amendments 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.
EQUIPMENT
The poles, wires, electrical conductors, conduits, subways, manholes,
fixtures, appliances and appurtenances that are used to provide telecommunications
services.
FRANCHISE
An initial authorization, or reenrollment thereof, issued by the
Town in accordance with the provisions of this chapter, which authorizes the
occupation and use of the streets to provide telecommunications services.
PERSON
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 Town or the Town school district of the
Town of Mamaroneck.
REVOCABLE LICENSE
An initial authorization or renewal thereof, issued by the Town 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 §
75-3B and §
75-3F of this chapter.
SHALL
Being mandatory, not merely directive.
STREETS
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 rights-of-way
within or belonging to the Town.
TELECOMMUNICATIONS
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:
A.
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 Town; or
B.
Provides telecommunications services that originate or terminate in
the Town 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 of longer than 120 days; or equipment
in the streets if the use of such equipment is continuing and substantial,
and the Town 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 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.
TOWN
The Town of Mamaroneck, New York.
TOWN BOARD
The Town Board of the Town and its designee or any successor thereto.
It shall be the responsibility of each applicant for a franchise or
revocable license to comply with all applicable laws, chapters, resolutions,
rules, regulations and other directives of the Town and any federal, state
or local governmental authority having jurisdiction.
If an application is complete and otherwise complies with applicable law, chapters, resolutions, rules, regulations and other directives of the Town, including the provisions of this chapter, the Town shall enter into negotiations with the applicant to determine whether such applicant and the Town are able to reach agreement on the terms of the proposed franchise or revocable license in accordance with §§
75-10 and
75-11 of this chapter. The Town may reject any application which is incomplete or otherwise fails to comply with applicable law, chapters, resolutions, rules, regulations and other directives of the Town and any federal, state or local authority having jurisdiction.
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 Town Board 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 Town. 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 Town may determine to apply all
or certain provisions of this chapter to telecommunications providers and
franchises, revocable licenses and other right-of-way authorizations existing
on the effective date of this chapter.