[HISTORY: Adopted by the Board of Trustees
of the Village of Port Chester 11-20-2000 by L.L. No. 15-2000. Amendments noted where applicable.]
The Village of Port Chester has the authority
to grant franchises and other authorizations for the use and occupancy
of its streets to ensure and protect the public health, safety and
welfare. The streets are a valuable public resource which has required,
and will continue to require, substantial investment for their repair
and upkeep and continued use. The Village desires to adopt a fair
and orderly process for the grant and renewal of franchises and other
authorizations to providers of telecommunications services. The purpose
of this chapter is to minimize disruption and inconvenience to the
public and the Village; protect the Village from liability for use
of its streets; ensure that the Village is properly and reasonably
compensated for the use of its streets; preserve adequate capacity
in the streets for future uses; and to set out a procedure that is
fair and nondiscriminatory in compliance with applicable law.
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.
Any person controlling, controlled by or under common control
with the applicant for a franchise or license.
The Board of Trustees of the Village.
"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").
Actual working control in whatever manner exercised, including,
without limitation, ownership, management or debt instruments.
The poles, wires, electrical conductors, conduits, subways,
manholes, fixtures, appliances and appurtenances that are used to
provide telecommunications services.
An initial authorization, or renewal thereof, issued by the
Village in accordance with the provisions of this chapter, for the
occupation and use of the Village's 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 Village.
An initial authorization or renewal thereof, issued by the
Village in accordance with the provisions of this chapter, which authorizes
the limited occupation and use of the Village's right-of-way.
The surface of, as well as the spaces above, below and along,
any and all public highways, streets, alleyways, and other public
rights-of-way within or belonging to the Village.
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:
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 Village; or
B.
TELECOMMUNICATIONS SERVICES
TELECOMMUNICATIONS SYSTEM
VILLAGE
Provides telecommunications services that originate
or terminate in the Village 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 Village
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.
The Village of Port Chester, New York.
A.
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 Village. 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 Village, and any person seeking to provide cable services in the
Village shall first obtain a separate franchise in accordance with
applicable law.
B.
The Board may grant one or more franchises and revocable
licenses in accordance with this chapter.
C.
Any franchise or revocable grant granted shall be
nonexclusive.
D.
The grant of any franchise or revocable license shall
be made by adoption of a separate resolution by the Board and shall
be on such terms and conditions as shall be specified in said separate
resolution and/or a franchise or license agreement between the Village
and the franchisee or licensee.
E.
A franchise may be granted for all or any defined
portion of the Village.
F.
Revocable licenses.
(1)
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:
(a)
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
(b)
The use or occupation of such streets does not
involve the offering or provision of telecommunications services to
any person within the Village.
(2)
In the event an application for a revocable license would cause a telecommunications provider to exceed or fail to comply with the limits specified in Subsection F(1)(a) or (b) of this section, 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.
A.
Subject to the provisions of this chapter, the Village
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, polices and requirements.
B.
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 Village. No permits or other authorizations for such construction
or installation shall be issued prior to granting a franchise or a
revocable license pursuant to this chapter or such other authorization
as may be required by applicable law.
[Amended 10-7-2019 by L.L. No. 9-2019]
A.
Applications for franchises and revocable licenses shall be submitted
to the Board of Trustees. Two additional copies shall be filed with
the Village Manager and Village Attorney.
B.
An application shall contain the following information with respect
to the proposed franchise or revocable license and such other information
as the Village may deem necessary or appropriate, consistent with
applicable law:
(1)
The name, address and telephone number of the applicant and the person
the Village may contact concerning the application.
(2)
A brief description of the telecommunications and nontelecommunications
services proposed to be provided, and a description of facilities
and equipment that will be placed in the rights-of-way. Without limitation,
if the applicant proposes to place wireless facilities in the rights-of-way,
that should be noted.
(3)
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)
A proposed construction schedule and sequence.
(5)
A map showing the proposed location of the applicant's telecommunications
system.
(6)
A showing that the applicant holds all licenses required from the
State of New York; if the State of New York has not determined that
the applicant is qualified to operate in the state, a showing that
the applicant will have the technical and financial resources to operate
safely in the rights-of-way and the authority necessary to operate
in the rights-of-way.
(7)
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, resolutions, rules, regulations and other directives of the
Village and any federal, state or local governmental authority having
jurisdiction.
If an application is complete and otherwise
complies with applicable law, resolutions, rules, regulations and
other directives of the Village, the Village shall enter into negotiations
with the applicant to determine whether the parties are able to reach
agreement on the terms of the proposed franchise or revocable license
in accordance with this chapter. The Village may reject any application
which is incomplete or otherwise fails to comply with applicable law,
resolutions, rules, regulations and other directives of the Village
and any federal, state or local authority having jurisdiction.
[Amended 10-7-2019 by L.L. No. 9-2019]
A.
In making any determination hereunder as to any application for a
franchise or revocable license, the Board may consider such factors
as it deems appropriate and in the public interest, provided such
factors are consistent with applicable law, including without limitation:
(1)
The adequacy of the proposed compensation to be paid to the Village,
subject to limits on the compensation that may be charged under state
and federal law;
(2)
The legal, financial, technical and other appropriate qualifications
of the applicant, provided that in applying to this standard, the
Village will defer to determinations made by the State of New York;
and further provided that the Village will not review the price or
quality of services offered, instead reviewing the ability of the
applicant to maintain the property of the Village in good condition
throughout the term of the franchise or the revocable license;
(3)
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;
(4)
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.
B.
Consistent with applicable law, the Village 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 Village may consider an applicant's proposals
for addressing capacity needs and compliance with Village policies
and requirements.
A.
The Board may make such investigations and take or
authorize the taking of such other steps as the Board deems necessary
or appropriate to act on applications for franchises and revocable
licenses and may in good faith require the applicant to furnish additional
information for this purpose.
B.
The Board shall make a determination within a reasonable
time after the application is deemed complete and compliant.
C.
The Board shall by resolution either grant or deny
the application for a franchise or revocable license, and with respect
to the former, it may specify the conditions under which same is to
be granted.
D.
In the event of a denial, the Board shall make findings
on substantial evidence supporting its determination.
[Amended 10-7-2019 by L.L. No. 9-2019]
The terms and conditions applicable to any franchise granted
pursuant to this chapter shall be set forth in a separate written
agreement. A franchise granted pursuant to this chapter shall not
become effective until the agreement is executed by both parties.
Such separate agreement, among other things, shall address the following
subjects:
A.
The term of the franchise;
B.
The franchise area and the services that may be offered pursuant
to the franchise, and the services (such as cable services) which
may require additional authorizations;
C.
The compensation to be paid to the Village, which shall include the
payment of a franchise fee and, if applicable, the provisions of facilities
or services;
D.
The circumstances upon which the franchise may be terminated or canceled;
E.
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;
F.
The Village's right to inspect the facilities and records of
the franchisee;
G.
Insurance and indemnification requirements applicable to the franchisee;
H.
The obligation of the franchisee to maintain complete and accurate
books of account and records, and the Village's inspection rights
with respect thereto;
I.
Provisions to ensure quality workmanship and construction methods;
J.
Provisions to ensure that the franchisee will comply with all applicable
local, state and federal laws, regulations, rules and policies;
K.
The obligation of the franchisee to supply an engineering site plan
showing the proposed location of the applicant's 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 Village departments;
L.
Provisions to restrict the assignment or other transfer of the franchise
without prior written consent of the Village as necessary to ensure
that the responsibility for past acts and omissions is clearly addressed,
and to ensure that the transferee is fully bound and the lawful interests
of the Village are protected;
M.
Remedies available to the Village to protect the Village's interest
in the event of the franchisee's failure to comply with terms
and conditions of the franchise;
N.
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 franchise, including the Federal Communications Commission;
O.
Provisions to ensure that the franchisee will protect the property
of the Village 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;
P.
Provisions designed to minimize the extent to which the public use
of the streets of the Village are disrupted in connection with the
construction of improvements relating to the franchise; and
Q.
Such other provisions as the Village determines are necessary or
appropriate in furtherance of the public interest in ensuring that
the rights-of-way are properly managed and controlled.
A.
The terms and conditions applicable to any revocable license granted pursuant to this chapter shall be set forth in a separate written agreement. A revocable license granted pursuant to this chapter shall not become effective until the agreement is executed by both parties. Such separate agreement shall address the same subjects listed in § 297-10 of this chapter, subject to the following additional limitations:
(1)
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)
The revocable license shall be revocable at any time
by the Village for cause or for the Village purposes; and
(3)
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 Village.
B.
In the event an application for a revocable license would cause a telecommunications provider to exceed or fail to comply with the limits specified in Subsection A(3) of this section, 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.
To the extent permitted by law, the Village
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.
