[HISTORY: Adopted by the Common Council of the City of Buffalo 12-16-2001, effective 1-11-2002. Amendments
noted where applicable.]
The purpose and intent of this chapter is to:
A.
Establish a local policy concerning telecommunications providers
with telecommunications facilities in the City's right-of-way,
recognizing that the right-of-way represents real estate property
rights of substantial economic value to the City;
B.
Establish clear local guidelines and standards for the exercise of
local authority with respect to telecommunications providers pursuant
to state and local law, including Section 501 of the Buffalo City
Charter and Chapter 105 of the Laws of 1891 and Chapter 217 of the
Laws of 1914 while recognizing state and federal regulations in this
area;
C.
Permit and manage access to the right-of-way of the City and, to
the extent required by law, to ensure fair and reasonable compensation
from telecommunications providers on a competitively neutral and nondiscriminatory
basis for the use of the right-of-way;
D.
Assure that the City can continue to fairly and responsibly protect
the public health, safety and welfare with respect to the City's
management of the right-of-way, and minimize inconvenience and disruption
to the public in connection with the use of its right-of-way by and
for telecommunications providers;
E.
Enable the City to discharge its public trust consistent with rapidly
evolving federal and state regulatory policies, industry competition
and technological development.
As used in this chapter, the following terms shall have the
meanings indicated:
A person that directly or indirectly owns or controls, is
owned or controlled by, or is under common ownership or control with
another person.
The Commissioner of Public Works, Parks and Streets or his
or her designee.
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.
Corporations, companies, associations, joint-stock companies
or associations, firms, partnerships, individuals, limited-liability
companies and their lessors, trustees and receivers.
The surface of, as well as the spaces above and below, highways,
roads, streets, alleys, sidewalks, skyways, public ways, utility easements
and public easements in the City of Buffalo, and any other property
within the City to the extent to which there exist, now or hereafter,
public easements or public rights-of-way.
The plant, equipment and property within the City's
right-of-way, including, but not limited to, cables, wires, conduits,
ducts, pedestals, antennas, electronics and other appurtenances used
or to be used to transmit, receive, distribute, provide or offer telecommunications
service.
Every person that owns, controls, constructs, operates, manages
or maintains telecommunications facilities within the City's
right-of-way used or to be used for the purpose of offering telecommunications
service, regardless of whether such telecommunications services originate
or terminate in the City.
The providing or offering for rent, sale or lease, or in
exchange for other value received, of the transmittal of voice, data,
image, graphic and video programming information between or among
points by wire, cable, fiber optics, laser, microwave, radio, satellite
or similar facilities, with or without the benefit of any closed transmission
medium. This shall not include cable TV services as defined by federal
law.
All telecommunications providers with telecommunications facilities
in the City's right-of-way over which telecommunications services
are provided, regardless of whether such telecommunications services
originate or terminate in the City, shall register with the City pursuant
to this chapter by providing the following information:
A.
The identity and legal status of the registrant, including any affiliates
that control the registrant.
B.
The name, address and telephone number of the officer, agent or employee
responsible for the accuracy of the registration statement.
C.
A description of registrant's existing or proposed telecommunications
facilities within the City that use or will use the City's right-of-way.
D.
Information sufficient to determine whether the registrant is subject
to right-of-way licensing or franchising under this chapter.
E.
Information sufficient to determine whether the transmission, origination
or receipt of the telecommunications services provided or to be provided
by the registrant constitutes an occupation or privilege subject to
Buffalo Charter § 28-24 (Taxes Upon Gross Incomes or Gross
Operating Incomes of Corporations and Persons Furnishing Utility Services),
provided that nothing herein shall be interpreted to mean that a provider
of telecommunications services that is not subject to a franchise
or license pursuant to this chapter is not subject to such taxes.
F.
For purposes of determining whether registrant is entitled to treatment
as a provider of telecommunications services under 47 U.S.C. § 253,
information sufficient to determine whether the registrant has applied
for and received any authorizations required by the New York State
Public Service Commission to operate telecommunications facilities
within the City.
G.
Information sufficient to determine whether the registrant has applied
for and received any construction permit, operating license or other
authorizations required by the Federal Communications Commission to
operate telecommunications facilities within the City.
H.
For the sole purpose of determining whether the registrant will construct,
maintain, relocate and remove telecommunications facilities in compliance
with the City's policies, rules and regulations with respect
to the right-of-way and in a manner protective of the public health,
safety and welfare, local government references, including contact
information, in other jurisdictions in New York State in which the
applicant is operating telecommunications facilities.
I.
Information as may be reasonably required by the City with respect
to applicant's use or proposed use of the right-of-way or compliance
with the requirements under this chapter.
Each application for registration as a telecommunications carrier or provider shall be accompanied by a fee as set forth in Chapter 175, Fees, to partially offset the direct and indirect costs incurred by the City in processing the registration.
The purpose of registration under this chapter is to:
A.
Provide the City with accurate and current information concerning
the telecommunications providers that own, construct, operate, manage
or maintain telecommunications facilities within the City;
B.
Assist the City in enforcement of this chapter;
C.
Assist the City in the collection and enforcement of any municipal
taxes, franchise fees, license fees or charges that may be due the
City;
D.
Assist the City in monitoring compliance with applicable local, state
or federal laws.
A telecommunications franchise right-of-way agreement with the
City shall be required of any telecommunications provider who desires
to occupy the City right-of-way to provide telecommunications services
that originate or terminate with or to any person or area in the City.
Any person who desires a telecommunications franchise pursuant
to this chapter shall file an application with the City which shall
include the following information:
A.
The identity of the franchise applicant, including all affiliates
that control the applicant or are controlled by the applicant.
B.
A description of the telecommunications facilities that will be used
by the applicant in the right-of-way.
C.
For purposes of managing the right-of-way and identifying telecommunications
providers subject to this chapter, preliminary plans, specifications
and a network map of the facilities to be located within the City's
right-of-way, all in sufficient detail to identify:
(1)
The location and route requested for applicant's proposed telecommunications
facilities;
(2)
The location of all overhead and underground public utility, telecommunication,
cable, water, sewer drainage and other facilities in the right-of-way
along the proposed route;
(3)
The location(s) within the right-of-way, if any, for interconnection
with the telecommunications facilities of other telecommunications
providers;
(4)
The specific trees, structures, improvements, facilities and obstructions,
if any, within the right-of-way that applicant proposes to temporarily
or permanently remove or relocate.
D.
If applicant is proposing to install overhead facilities within the
right-of-way, evidence that surplus space is available for locating
its telecommunications facilities on existing utility poles along
the proposed route.
E.
If applicant is proposing an underground installation in existing
ducts or conduits within the right-of-way, information in sufficient
detail to identify:
F.
If applicant is proposing an underground installation within new
ducts or conduits to be constructed within the right-of-way;
G.
A preliminary construction schedule and completion dates.
H.
A preliminary traffic control plan.
I.
To the maximum extent not prohibited by law, financial statements
prepared in accordance with generally accepted accounting principles
demonstrating the applicant's financial ability to construct,
operate, maintain, relocate and remove the telecommunications facilities
within the right-of-way in a safe manner and in accordance with the
City's right-of-way management policies, rules and regulations.
J.
To the maximum extent not prohibited by law, information in sufficient
detail to establish the applicant's technical qualifications,
experience and expertise regarding the telecommunications facilities
to be installed within the right-of-way for purposes of determining
whether the applicant will construct, maintain, relocate and remove
the facilities in compliance with the City's policies, rules,
and regulations with respect to the right-of-way and in a manner protective
of the public health, safety and welfare.
K.
For purposes of determining whether applicant is entitled to treatment
as a provider of telecommunications services under 47 U.S.C. § 253,
information to establish that the applicant has obtained all applicable
governmental licenses, approvals and permits, including those required
by the New York State Public Service Commission and the Federal Communications
Commission, to construct and operate the telecommunications facilities
and to offer or provide the telecommunications services.
L.
Whether the applicant intends to provide cable service or other video
programming service, and sufficient information to determine whether
such service is subject to cable franchising or other appropriate
regulation.
M.
For purposes of managing the right-of-way and identifying telecommunications
providers subject to this chapter, an accurate map showing the location
of any existing telecommunications facilities in the City's right-of-way
that applicant intends to purchase, own, control, operate, manage
or maintain.
N.
Such other and further information reasonably related to the City's
management of the right-of-way or to compliance with this chapter
as may be reasonably required by the City.
Within 90 days after receiving a complete application under § 440-7 of this chapter, unless extended by a City request for additional information, the City shall issue a written determination granting an application that complies with the following standards:
B.
The capacity of the rights-of-way to accommodate the applicant's
proposed facilities.
C.
No unreasonable damage or disruption to facilities, improvements,
service, travel or landscaping along the right-of-way if the franchise
is granted.
D.
Use of right-of-way in a manner that does not adversely affect the
public health, safety and welfare.
E.
Use of routes and/or locations for the proposed telecommunications
facilities reasonably acceptable to the City, based on the City's
right to manage the right-of-way.
F.
Compliance with applicable federal and state telecommunications laws,
regulations and policies necessary for the applicant to construct
and operate telecommunications facilities and to provide telecommunications
services.
Any franchise granted pursuant to this chapter shall be by a
written franchise right-of-way agreement (hereinafter "franchise agreement")
which shall include, but not be limited to, the following terms and
conditions:
A.
The term of the franchise agreement shall be for not less than five
years and shall not exceed an initial term of 15 years, with a maximum
of two five-year extensions.
B.
No franchise granted under this chapter shall confer any exclusive
right, privilege, license or franchise to occupy or use the right-of-way
of the City for delivery of telecommunications services or any other
purposes.
C.
The compensation to be paid to the City shall be fair and reasonable
and publicly disclosed.
D.
The franchise agreement may be terminated or canceled by the City
in the event of the franchisee's failure to comply with the material
terms and conditions of the franchise agreement.
E.
A security fund, bond, parent guaranty or other security shall be
established to ensure the performance of the franchise's obligations
under the franchise agreement and to protect the right-of-way.
F.
For purposes related to the management of the right-of-way, the City
shall have the right to inspect the facilities of the franchisee in
the right-of-way and to order the relocation of such facilities.
G.
There shall be adequate insurance and indemnification requirements.
H.
All franchisees shall be required to maintain complete and accurate
books of account and records with respect to the obligations of the
franchisees under the franchise agreement, which books and records
shall be made available on demand to the City for inspection.
I.
There shall be provisions to ensure quality workmanship and construction
methods in the right-of-way.
J.
There shall be provisions requiring the franchisee to comply with
City laws, regulations and policies related to, but not limited to,
employment, purchasing and investigations, to the maximum extent not
prohibited by applicable law.
K.
There shall be provisions to ensure adequate oversight and regulation
by the City of a franchisee's use of the right-of-way and compliance
with a franchise agreement.
L.
There shall be provisions to restrict the assignment or other transfer
of the franchise without the prior written consent of the City.
M.
There shall be remedies to protect the City's interest in the
event of the franchisee's failure to comply with the terms and
conditions of the franchise agreement.
N.
All franchisees shall obtain all licenses and permits from and comply
with the applicable orders, rules, regulations and directives of the
New York State Public Service Commission and the Federal Communications
Commission and any other governmental body having jurisdiction over
the franchisee, which are required to operate the telecommunications
facilities or to provide telecommunications services.
O.
There shall be provisions preserving the right of the City to perform
public works or public improvements in and around those areas subject
to the franchise.
P.
There shall be provisions requiring the franchisee to protect the
property of the City and the delivery of public services from damage
or interruption of operation resulting from the construction, operation,
maintenance, repair or removal of improvements related to the franchise.
Q.
There shall be 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.
R.
Any other provisions reasonably related to the City's management
of its right-of-way or right to collect fair and reasonable compensation
as may be reasonably requested by the City.
The City explicitly reserves its right to fix a fair and reasonable
compensation to be paid for the right to use the right-of-way granted
to a telecommunications provider pursuant to a license or franchise,
provided that such compensation shall be publicly disclosed. Nothing
in this chapter shall prohibit the City and a grantee from agreeing
to the compensation to be paid for the granted rights, provided such
compensation shall be publicly disclosed. Such compensation shall
be required by the City on a competitively neutral and nondiscriminatory
basis to the extent required by federal law. Such compensation shall
reflect the term of the license or franchise agreement and other aspects
of the license or franchise as the City may deem relevant.
A telecommunications license shall be required of any telecommunications provider (a) who desires to occupy the right-of-way for the sole purpose of installing telecommunications facilities to provide telecommunications services that do not originate or terminate in the City; or (b) whose use of the right-of-way, including any such use of the right-of-way by affiliates or pursuant to telecommunications licenses previously granted to the applicant and its affiliates, shall not exceed 250 linear feet. A Telecommunications license may only be granted for use of specifically identified locations in the right-of-way. In the event an application for a License would cause a telecommunications provider to exceed or fail to comply with the limits specified in this § 440-11, then such telecommunications provider must apply for a franchise in accordance with the provisions of this chapter, and the use of specifically identified locations in the right-of-way pursuant to all previously granted Licenses shall thereafter be pursuant to and in accordance with any such franchise that may be granted.
Any person that desires a telecommunications license shall file
an application with the City which shall include the following information:
A.
The identity of the license applicant, including all affiliates that
control the applicant or are controlled by the applicant.
B.
A description of the telecommunications facilities that will be used
by the licensee in the right-of-way.
C.
For purposes of managing the right-of-way and identifying telecommunications
providers subject to this chapter, preliminary plans, specifications
and a network map of the facilities to be located within the City's
right-of-way, all in sufficient detail to identify:
(1)
The location and route requested for applicant's proposed telecommunications
facilities.
(2)
The location of all overhead and underground public utility, telecommunication,
cable, water, sewer drainage and other facilities in the right-of-way
along the proposed route.
(3)
The location(s) within the right-of-way, if any, for interconnection
with the telecommunications facilities of other telecommunications
carriers.
(4)
The specific trees, structures, improvements, facilities and obstructions,
if any, within the right-of-way that applicant proposes to temporarily
or permanently remove or relocate.
D.
If applicant is proposing to install overhead facilities within the
right-of-way, evidence that surplus space is available for locating
its telecommunications facilities on existing utility poles along
the proposed route.
E.
If applicant is proposing an underground installation in existing
ducts or conduits within the right-of-way, information in sufficient
detail to identify:
F.
If applicant is proposing an underground installation within new
ducts or conduits to be constructed within the right-of-way:
G.
A preliminary construction schedule and completion date.
H.
A preliminary traffic control plan.
I.
To the maximum extent not prohibited by law, financial statements
prepared in accordance with generally accepted accounting principles
demonstrating the applicant's financial ability to construct,
operate, maintain, relocate and remove the telecommunications facilities
in a safe manner and in accordance with the City's right-of-way
management policies, rules and regulations with respect to the facilities.
J.
To the maximum extent not prohibited by law, information in sufficient
detail to establish the applicant's technical qualifications,
experience and expertise regarding the telecommunications facilities
to be installed in the right-of-way for purposes of determining whether
the applicant will construct, maintain, relocate and remove the facilities
in compliance with the City's policies, rules, and regulations
with respect to the right-of-way and in a manner protective of the
public health, safety and welfare.
K.
For purposes of determining whether applicant is entitled to treatment
as a provider of telecommunications services under 47 U.S.C. § 253,
information to establish that the applicant has obtained all other
governmental approvals and permits to construct and operate telecommunications
facilities and to offer or provide the telecommunications services.
L.
All fees, deposits or charges required pursuant to this chapter.
M.
Such other and further information reasonably related to the City's
management of the right-of-way or to compliance with this chapter
as may be reasonably required by the City.
Within 90 days after receiving a complete application under § 440-12 of this chapter and the written agreement required by § 440-14, unless extended by a City request for additional information, the City shall issue a written determination granting an application that complies with the following standards:
B.
The capacity of the rights-of-way to accommodate the applicant's
proposed facilities.
C.
No unreasonable damage or disruption to facilities, improvements,
service, travel or landscaping along the right-of-way if the license
is granted.
D.
Use of right-of-way in a manner that does not adversely affect the
public health, safety and welfare.
E.
Use of routes and/or locations for the proposed telecommunications
facilities reasonably acceptable to the City, based on the City's
right to manage the right-of-way.
F.
Compliance with applicable federal and state telecommunications laws,
regulations and policies necessary for the applicant to construct
and operate telecommunications facilities and to provide telecommunications
services.
Any license granted pursuant to this chapter shall be by a written
license right-of-way agreement (hereinafter "license agreement") which
shall include, but not be limited to, the following terms and conditions:
A.
No license granted under this chapter shall confer any exclusive
right, privilege, license or franchise to occupy or use the right-of-way
of the City for delivery of telecommunications services or any other
purposes.
B.
The compensation to be paid to the City shall be fair and reasonable
and publicly disclosed.
C.
The license agreement may be terminated or canceled by the City in
the event of the licensee's failure to comply with the material
terms and conditions of the license agreement.
D.
A security fund, bond, parent guaranty or other security shall be
established to ensure the performance of the licensee's obligations
under the license agreement and to protect the right-of-way.
E.
For purposes related to the management of the right-of-way, the City
shall have the right to inspect the facilities of the licensee in
the right-of-way and to order the relocation of such facilities.
F.
There shall be adequate insurance and indemnification requirements.
G.
All licensees shall be required to maintain complete and accurate
books of account and records with respect to the obligations of the
licensees under the license agreement, which books and records shall
be made available on demand to the City for inspection.
H.
There shall be provisions to ensure quality workmanship and construction
methods in the right-of-way.
I.
There shall be provisions to ensure adequate oversight and regulation
by the City of a licensee's use of the right-of-way and compliance
with a license agreement.
J.
There shall be provisions to restrict the assignment or other transfer
of the license without the prior written consent of the City.
K.
There shall be remedies to protect the City's interest in the
event of the licensee's failure to comply with the terms and
conditions of the license agreement.
L.
All licensees shall obtain all licenses and permits from and comply
with the applicable orders, rules, regulations and directives of the
New York State Public Service Commission and the Federal Communications
Commission and any other governmental body having jurisdiction over
the licensee, which are required to operate the telecommunications
facilities or to provide telecommunications services..
M.
There shall be provisions preserving the right of the City to perform
public works or public improvements in and around those areas subject
to the license.
N.
There shall be provisions requiring the licensee to protect the property
of the City and the delivery of public services from damage or interruption
of operation resulting from the construction, operation, maintenance,
repair or removal of improvements related to the license.
O.
There shall be 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 license.
P.
Any other provisions reasonably related to the City's management
of its right-of-way or right to collect fair and reasonable compensation
as may be reasonably requested by the City.
All telecommunications providers that seek to place telecommunications
facilities within the right-of-way shall pay all applicable permit
fees as required by the City, which fees shall be in addition to any
construction fees, compensation or other fees that the City may impose
pursuant to this chapter. The permit fees shall serve to partially
offset the direct and indirect costs incurred by the City in overseeing,
regulating, managing, constructing, maintaining and repairing the
right-of-way.
Nothing in this chapter shall preclude the City from requiring
a cable franchise fee from a cable operator or open video system operator
or from requiring a franchisee fee up to 5% of a franchisee's
gross revenues from cable services as allowed under federal law.
The regulatory fees and costs provided for in this chapter,
and any compensation charged and paid for the rights-of-way provided
for in this chapter, are separate from, and additional to, any and
all federal, state, local and City taxes as may be levied, imposed
or due from a telecommunications provider, its customers or subscribers,
or on account of the lease, sale, delivery or transmission of telecommunications
services.
Location of facilities. All telecommunications facilities in
the right-of-way shall be constructed, installed and located in accordance
with the following terms and conditions, unless otherwise specified
in a license or franchise agreement:
A.
All telecommunications facilities shall meet any applicable zoning
ordinances or other applicable ordinances of the City.
B.
Except to the extent prohibited by law, the City may require a grantee
to install its telecommunications facilities within an existing underground
duct or conduit whenever excess capacity exists within such utility
facility.
C.
Except to the extent prohibited by law, the City may require a grantee
with permission to install overhead facilities to install its telecommunications
facilities on pole attachments to existing utility poles only, and
then only if surplus space is available.
D.
Whenever any existing electric utilities, cable facilities or telecommunications
facilities are located underground within right-of-way, a grantee
with permission to occupy the same public way must also locate its
telecommunications facilities underground.
E.
Whenever any new or existing electric utilities, cable facilities
or telecommunications facilities are located or relocated underground
within a right-of-way of the City, a grantee that currently occupies
the same portion of the right-of-way shall relocate its facilities
underground within a reasonable period of time, which shall not be
later than the end of the grant term. Absent extraordinary circumstances
or undue hardship as determined by the City Engineer, such relocation
shall be made concurrently, to minimize the disruption of the right-of-way.
F.
Except to the extent prohibited by law, whenever new telecommunications
facilities will exhaust the capacity of a public street or utility
easement to reasonably accommodate future telecommunications carriers
or facilities, the City may require a grantee to provide additional
ducts, conduits, manholes and other facilities for nondiscriminatory
access to future carriers.
All license or franchise grantees are required to obtain construction
permits for telecommunications facilities to be placed within the
right-of-way. However, nothing in the chapter shall prohibit the City
and a grantee from agreeing to alternative plan review, permit and
construction procedures in a license or franchise agreement, provided
such alternative procedures provide substantially equivalent safeguards
for responsible construction practices.
No license or franchise grantee may locate or maintain its telecommunications
facilities so as to interfere with the use of the right-of-way by
the City, by the general public or by other persons authorized to
use or be present in or upon the right-of-way. All such facilities
that interfere with use of the right-of-way shall be moved by the
grantee, temporarily or permanently, as determined by the City Engineer.
No license or franchise grantee nor any person acting on a grantee's
behalf shall take any action or permit any action to be done which
may impair or damage any City property or right-of-way of the City,
or personal property or chattels located in, on or adjacent thereto.
Unless otherwise provided in a license or franchise agreement,
no license or franchise grantee, nor any person acting on the grantee's
behalf, shall commence any nonemergency work in or about the right-of-way
of the City without 10 business days' advance written notice
to the City.
In the event of an unexpected repair or emergency of telecommunications
facilities in the right-of-way, a grantee may commence such repair
and emergency response work as required under the circumstances, provided
the grantee shall notify the City as promptly as possible, before
such repair or emergency work or as soon thereafter as possible if
advance notice is not practicable.
In order to prevent damage to or otherwise prevent interference
with other uses of the right-of-way, each license or franchise grantee
shall maintain its facilities in the right-of-way in good and safe
condition and in a manner that complies with all applicable federal,
state and local requirements.
Within 30 days following written notice from the City, a license
or franchise grantee shall, at its own expense, temporarily or permanently
remove, relocate, change or alter the position of any telecommunications
facilities within the right-of-way whenever the City shall have determined
that such removal, relocation, change or alteration is reasonably
necessary for:
Within 30 days following written notice from the City, a telecommunications
provider shall, at its own expense, remove unauthorized telecommunications
facilities from the right-of-way. A telecommunications facility is
unauthorized and subject to removal in the following circumstances:
A.
Upon expiration or termination of the grantee's telecommunications
license or franchise.
B.
Upon abandonment of a telecommunications facility within the rights-of-way
of the City.
C.
If the system or facility was constructed or installed without the
prior grant of a telecommunications license or franchise.
D.
If the system or facility was constructed or installed without the
prior issuance of a required construction permit.
E.
If the system or facility was constructed or installed at a location
not permitted by the grantee's telecommunications license or
franchise.
The City retains the right and privilege to cut or move any
telecommunications facilities located within the right-of-way of the
City, as the City may determine to be necessary, appropriate or useful
in response to any public health or safety emergency.
Unless directly and proximately caused by the willful, intentional
or malicious acts by the City, the City shall not be liable for any
damage to or loss of any telecommunications facility within the right-of-way
or other City property as a result of or in connection with any public
works, public improvements, construction, excavation, grading, filling,
or work of any kind in the right-of-way by or on behalf of the City.
A.
When a license or franchise grantee, or any person acting on its
behalf, does any work in or affecting any right-of-way or City property,
it shall, at its own expense, promptly remove any obstructions therefrom
and restore such ways or property to as good a condition as existed
before the work was undertaken, unless otherwise directed by the City.
B.
If weather or other conditions do not permit the complete restoration
required by this section, the grantee shall temporarily restore the
affected ways or property. Such temporary restoration shall be at
the licensee's sole expense, and the licensee shall promptly
undertake and complete the required permanent restoration when the
weather or other conditions no longer prevent such permanent restoration.
C.
A grantee or other person acting in its behalf shall use suitable
barricades, flags, flagmen, lights, flares and other measures as required
for the safety of all members of the general public and to prevent
injury or damage to any person, vehicle or property by reason of such
work in or affecting such ways or property.
Each license or franchise grantee shall provide the City with
an accurate map or maps certifying the location of all telecommunications
facilities within the rights-of-way. Each grantee shall provide updated
maps annually.
Within 10 days of a written request from the City, each license
or franchise grantee shall furnish the City with information sufficient
to demonstrate:
A.
That grantee has complied with all requirements of this chapter and
the license or franchise agreement.
B.
That all municipal taxes and compensation due the City in connection
with the telecommunications services and facilities provided by the
grantee have been properly collected and paid by the grantee.
C.
All books, records, maps and other documents, maintained by the grantee
with respect to its facilities within the right-of-way, shall be made
available for inspection by the City at reasonable times and intervals.
A license or franchise grantee shall have the right, without
prior City approval, to offer or provide capacity bandwidth to its
customers, provided that, with respect to a customer or lessee that
owns, controls, operates, maintains or manages telecommunications
facilities in the right-of-way:
A.
Grantee shall furnish the City with the name of such customer or
lessee.
B.
The customer or lessee has complied, to the extent applicable, with
the requirements of this chapter.
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The purpose of this section is to assist the City in identifying
telecommunications providers that are subject to the requirements
of this chapter.
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Unless otherwise provided in a license or franchise agreement,
each grantee shall, as a condition of the grant, secure and maintain
liability insurance policies insuring both the grantee and the City,
and its elected and appointed officers, officials, agents and employees
as in such forms and amounts as may be required by the Corporation
Counsel, or as otherwise set forth in the license or franchise agreement.
Each grantee shall establish a permanent security fund with
the City by depositing the amount of $50,000, or such other amount
as may be set forth in a license or franchise agreement, with the
City in cash, an unconditional letter of credit, or other instrument
acceptable to the City, which fund shall be maintained at the sole
expense of grantee so long as any of grantee's telecommunications
facilities are located within the right-of-way of the City.
A.
The fund shall serve as security for the full and complete performance
of this title and a licensee or franchise agreement, including, but
not limited to, any costs, expenses, damages or loss the City pays
or incurs because of any failure attributable to the grantee to comply
with any applicable codes, ordinances, rules, regulations or permits
of the City.
B.
Before any sums are withdrawn from the security fund, the City shall
give written notice to the grantee:
(1)
Describing the act, default or failure to be remedied, or the damages,
costs or expenses which the City has incurred by reason of grantee's
act or default;
(2)
Providing a reasonable opportunity for grantee to first remedy the
existing or ongoing default or failure, if applicable;
(3)
Providing a reasonable opportunity for grantee to pay any monies
due and owing to the City before the City withdraws the amount thereof
from the security fund, if applicable;
(4)
That the grantee will be given an opportunity to review the act,
default or failure described in the notice with the City Engineer
or his designee.
C.
Grantee shall replenish the security fund within 14 days after written
notice from the City that there is a deficiency in the amount of the
fund.
Unless otherwise provided in a license or franchise agreement,
a performance bond written by a corporate surety acceptable to the
City equal to at least 100% of the estimated cost of constructing
grantee's telecommunications facilities within the rights-of-way
of the City shall be deposited before construction is commenced.
A.
By February 1 of each year, grantees shall provide the City with
a schedule of their proposed construction activities in, around or
that may affect the right-of-way.
B.
Each grantee shall meet with the City, other grantees and users of
the public ways annually or as determined by the City to schedule
and coordinate construction in the right-of-way.
C.
All construction locations, activities and schedules shall be coordinated,
as ordered by the City, to minimize public inconvenience, disruption
or damages.
No franchise or license agreement may be directly or indirectly
transferred, assigned or disposed of by sale, lease, merger, consolidation
or other act of the grantee, by operation of law or otherwise, without
the prior consent of the City, which consent shall not be unreasonably
withheld or delayed, as expressed by ordinances and then only on such
reasonable conditions.
Any transactions which singularly or collectively result in a change of 10% or more of the ownership or control of the grantee, of the ownership or control of a telecommunications license or franchise, of the ownership or control of affiliated entities having ownership or control of the grantee or of the telecommunications facilities, or of ownership or control of grantee's telecommunications facilities or of substantial parts thereof, shall be considered an assignment or transfer requiring the City approval pursuant to § 440-35 hereof. Transactions between affiliated entities that own or control grantee or the telecommunications facilities are not exempt from City approval.
If any section, subsection, sentence, clause, phrase, or other
portion of this chapter, or its application to any person, is, for
any reason, declared invalid, in whole or in part by any court or
agency of competent jurisdiction, said decision shall not affect the
validity of the remaining portions hereof.
A.
To the maximum extent not prohibited by law, the City may determine to apply all or certain provisions of this chapter to any telecommunications provider operating telecommunications facilities by use of the right-of-way who does not have a franchise or license on the effective date of this chapter, and may require such telecommunications provider to apply for a franchise or license in accordance with the terms of this chapter. Any such telecommunications provider who fails to apply for such franchise or license shall be deemed in violation of this chapter and the City shall have the right to exercise any and all rights it may have in such event, including, but not limited to, requiring such person to remove its telecommunications facilities from the right-of-way pursuant to § 440-26.
B.
Notwithstanding § 440-39A, all telecommunications providers with telecommunications facilities in the public way, regardless of whether a telecommunications provider has a franchise or license, shall comply with the following sections of this chapter by no later than 90 days after the effective date of this chapter:
To the maximum extent not prohibited by law, with respect to
any cellular telephone provider, personal communications service telephone
provider, or any other provider of wireless telecommunications services
(collectively, "wireless providers"), this chapter applies only to
the extent, if any, any such provider constructs, owns, controls,
maintains or manages telecommunications facilities within the right-of-way,
or seeks to place such telecommunications facilities in the right-of-way.
This chapter shall not be interpreted to apply to wireless providers
that do not construct, own, control, maintain or manage telecommunications
facilities in the right-of-way, and shall not be interpreted as an
entry condition before a wireless provider provides telecommunications
services in the City, including any wireless provider with telecommunications
facilities within the right-of-way.
