This chapter shall be referred to as the "Telecommunications Code of the City of Rochester, New York."
This chapter shall apply to any telecommunications facilities and accessory equipment installed or otherwise placed in the right-of-way on or after the effective date of this chapter. Telecommunications facilities constructed with a permit prior to the effective date of this chapter shall be brought into compliance with this chapter when that facility is reconstructed, modified, repaired, or replaced. When any existing agreement authorizing such facility requires compliance with this chapter or when any existing agreement governing telecommunications facilities expires, facilities shall be brought into compliance with this chapter, and this chapter shall apply to all related activities and work in the right-of-way. This chapter shall also apply to any facility previously located, installed, or otherwise placed in the right-of-way without undergoing review and approval by the City Engineer, unless otherwise authorized by a valid agreement. Any such unauthorized telecommunications facility shall be brought into compliance with this chapter and all applicable laws.
The purpose of this chapter shall be to meet the following objectives:
To promote the development of a state-of-the-art telecommunications infrastructure that will serve as an incentive to attract and retain businesses and will serve current and future needs of individual citizens as well as educational, governmental, cultural and community organizations;
To ensure maximum access to the telecommunications infrastructure;
To fully utilize the telecommunications infrastructure, including wherever possible through the use of smart poles, as a tool in the effective and efficient delivery of City services;
To minimize unnecessary disruption in the right-of-way from the installation and operation of telecommunications facilities by coordinating installations, promoting co-location and encouraging innovative methods and technologies that minimize disturbances to pedestrians, residents, businesses, traffic, and parking;
To comply with the federal Telecommunications Act of 1996 ("Telecommunications Act"), and any amendment thereto, by enacting policies and procedures that remove barriers to competition among existing and prospective telecommunications providers, and which treat providers in a competitively neutral and nondiscriminatory manner;
To ensure a fair assessment and assignment of the full cost of installation, maintenance, and repair of telecommunications facilities, and the value and use by telecommunications providers of the right-of-way, a valuable and limited municipal asset;
To require that telecommunications facilities and accessory equipment are installed in such a way as to mitigate visual, environmental, and neighborhood impacts, to minimize unsightly encumbrances in the right-of-way and to promote the least intrusive facilities possible, with particular attention to facilities located in historic districts and areas or adjacent to or near historic structures where facilities shall be installed in a manner that is aesthetically appropriate for the location;
To ensure that all installations of telecommunications facilities, accessory equipment, and related work pursuant to this chapter are done safely and completed in a manner consistent with all applicable laws;
To preserve the City's right to manage the right-of-way and, in light of the ever-increasing number of uses of the right-of-way by telecommunications providers as well as utilities and other users, to ensure that the City retains the ability to effectively manage and coordinate these uses in the limited space available; and
To protect the public health, safety, and welfare with respect to the use of the right-of-way by telecommunications providers and owners or lessees of telecommunications facilities.
For the purpose of this chapter, the following terms shall have the meanings stated below:
- When an owner of a telecommunications facility permanently or substantially ceases all business activity associated with its facilities or accessory equipment, or fails to comply with ongoing permit or lease terms, or lets facilities and accessory equipment fall into disrepair without timely cure.
- ACCESSORY EQUIPMENT ("EQUIPMENT")
- Any equipment serving or being used in conjunction with a telecommunications facility. This equipment includes, but is not limited to, utility or transmission equipment, power supplies, generators, batteries, cables, equipment buildings, cabinets, storage sheds, shelters, vaults, or other structures. This definition excludes equipment owned by a utility installed for the sole purpose of providing electricity.
- The Commissioner of the Department of Environmental Services, or the Commissioner's designee, or an administrator as designated by the Mayor responsible for administering this chapter and other related duties.
- A person that directly or indirectly owns or controls, is owned or controlled by, or is under common ownership or control with another person.
- A device used to transmit and/or receive radio or electromagnetic waves for the provision of services, including, but not limited to cellular, paging, personal communications services (PCS) and microwave communications. Such devices include, but are not limited to, directional antennas such as panel antennas, microwave dishes, and satellite dishes; omnidirectional antennas; wireless access points (Wi-Fi); and strand-mounted wireless access points. This definition does not apply to broadcast antennas, antennas designed for amateur radio use, or satellite dishes designed for residential or household purposes.
- Any telecommunications provider, utility, owner of telecommunications facilities or other entity requesting permission to install or excavate for placement of telecommunications facilities in the right-of-way.
- BASE STATION
- A structure built for a purpose other than the installation of telecommunications facilities, upon which telecommunications facilities are subsequently installed.
- The means and methods by which telecommunications facilities and accessory equipment are designed to conceal the equipment and blend the installation with the surrounding environment accomplished by requiring the use of one or more of the following concealment elements as set forth in more detail in the rules and regulations:
- A. Radio frequency equipment screening;
- B. Approved, specific colors;
- C. Minimizing the size of the facilities or site;
- D. Integrating the installation into existing infrastructure;
- E. Installing new infrastructure that matches existing infrastructure in the area surrounding the proposed site and dedicating the new infrastructure to the City;
- F. Modifying the installation location;
- G. Using alternative structures such as man-made trees, clock towers, bell steeples, or other alternative design mounting structures that conceal the presence of the telecommunications facilities in a manner that is appropriate to the location;
- H. Embedded or underground facilities, including but not limited to use of smart poles;
- I. Landscaping; or
- J. Mirroring existing structural elements or design.
- CARRIER ON WHEELS or CELL ON WHEELS ("COW")
- A portable self-contained telecommunications facility that can be moved to a location and set up to provide wireless services on a temporary or emergency basis. A COW is normally vehicle-mounted and contains a telescoping boom as the antenna support structure. "COW" does not include equipment for broadcasting live television coverage.
- The City of Rochester, New York.
- CITY COUNCIL
- The Common Council of the City of Rochester, New York.
- CITY PROPERTY
- Includes all real property owned by the City, other than the right-of-way and utility easements as those terms are defined herein, and all property held in a proprietary capacity by the City, that is not subject to right-of-way licensing as provided in this chapter.
- With respect to underground facilities, co-location shall mean the existence or placement of telecommunications facilities or accessory equipment by two or more telecommunications providers within the same conduit, duct, or similar facility, which avoids the excavation or substantial disturbance of the right-of-way. With respect to overhead facilities, "co-location" shall mean the mounting, installation or placement of telecommunications facilities and accessory equipment on a pole or structure shared with one or more telecommunications providers.
- The Commissioner of Environmental Services of the City of Rochester.
- One calendar day.
- DISTRIBUTED ANTENNA SYSTEM ("DAS")
- A network of one or more antenna and fiber optic nodes connecting to a common base station or hub.
- A condition that poses an imminent threat to life or property, including a disruption in service.
- Electromagnetic frequency.
- Any movement or removal of earth, rock, pavement, right-of-way fixtures, or other materials in or on the ground.
- EXISTING HEIGHT
- The height of a base station as originally approved for telecommunications facilities or as of the most recent modification that received regulatory approval prior to the passage of the Spectrum Act. Height shall be measured from natural grade to the top of all appurtenances.
- FACILITY or FACILITIES
- See "telecommunications facility."
- Any and all applicable federal laws, state laws, local ordinances, resolutions, regulations, administrative orders, or other legal requirements.
- Any right and privilege or the renewal thereof awarded or granted by the City Council pursuant to § 5-23 of the City Charter and this chapter to any person who occupies the rights-of-way of the City for the purpose of providing telecommunications services or for the purpose of installing telecommunications facilities. For purposes of this chapter, the term "license" shall include the term "franchise" as used in existing addendums to right-of-way permits, pole attachment agreements, and other right-of-way agreements between the City and telecommunications providers.
- Any person that holds a license to occupy the right-of-way.
- MACROCELL SITE
- A radio coverage cell that provides the largest area of coverage within a mobile network. The antennas for macrocells are generally mounted on ground-based masts, rooftops or other existing structures, at a height that is not obstructed by terrain or buildings. They provide radio coverage over varying distances depending on the frequency used, the number of calls made and the physical terrain. Macrocells have a typical power output in hundreds or thousands of watts.
- MASTER LICENSE AGREEMENT ("LICENSE AGREEMENT" or "MLA")
- An agreement entered into between any person requiring registration and the City that authorizes and governs the installation of telecommunications facilities and accessory equipment in the right-of-way and related requirements and responsibilities.
- Any change to an existing telecommunications facility or accessory equipment not authorized by the permit.
- MUNICIPAL FACILITIES
- City-owned light poles, poles installed by the City specifically for the placement of telecommunications facilities, lighting fixtures, electroliers, handholes, manholes, fiber optic strands, conduit and other City-owned structures or equipment located within the right-of-way.
- OTHER WAYS
- The highways, streets, alleys, utility easements or other rights-of-way within the City, but under the jurisdiction and control of a governmental entity other than the City.
- OVERHEAD FACILITIES
- Includes utility poles, utility facilities and telecommunications facilities located above the surface of the ground within the right-of-way, including the surface or underground supports or foundations for such facilities.
- Authorization granted by the City Engineer under Chapter 104 of the Code of the City of Rochester to perform specified alteration, excavation, installation, construction, repair or any other work whatsoever in the right-of-way. The term "permit" includes any additional terms and conditions added to the permit.
- Any person, utility or telecommunications provider that has obtained permission through the issuance of a permit from the Department of Environmental Services to make any excavation or otherwise locate, install or place facilities in the right-of-way.
- Any individual, association, firm, partnership, corporation, joint-stock company, limited liability company or other legal entity.
- The requirement that, except as otherwise provided herein, any person engaged in the business of transmitting, supplying or furnishing of telecommunications services originating or terminating in the City and/or occupying the right-of-way for the purpose of supplying or installing facilities to provide telecommunications services in or outside the City shall register with the City pursuant to Article II of this chapter.
- The area on, below, or above a City-owned or controlled street, roadway, alley, bridge, tunnel, waterway or sidewalk, including the curbs, gutters, catch basins and related facilities adjacent thereto and any utility easements owned or controlled by the City.
- RULES AND REGULATIONS
- The rules and regulations for work in the right-of-way, and any amendments thereto, as adopted by the City Engineer.
- A financial instrument, including a letter of credit, certified check, cash, bond or other formal assurance used to guarantee that permit work will be properly performed and completed, that any right-of-way restoration work will be completed and maintained as required by this chapter, and that all fees and compensation owed to the City are paid in full. Such security shall be in a form approved by the Director of Finance or the Corporation Counsel.
- The specific area occupied by telecommunications facilities, accessory equipment, and any structure supporting the telecommunications facilities.
- SMALL CELL
- An umbrella term for low-powered radio access nodes, including those that operate in licensed spectrum and unlicensed carrier-grade Wi-Fi. Small cell technology includes, but is not limited to, femtocells, picocells, microcells, metrocells and distributed antenna systems, which provide a network densification solution that offloads traffic from the macro network to add capacity.
- SMART POLE
- A modular, multifunctional pole, as approved by the City Engineer, which enables small cell deployment as well as other wireless applications and services, designed to accept embedded wireless equipment within the pole structure, with no external or attached equipment. Smart poles are deemed to comply with and satisfy any camouflage requirements of this chapter or the rules and regulations.
- SPECTRUM ACT
- The Middle Class Tax Relief and Job Creation Act of 2012, Pub. L. No. 112-96.
- SUBSTANTIAL CHANGE
- Changes to telecommunications facilities or accessory equipment that increase the number of antennas, increase the size of the antennas, increase the EMF output of the telecommunications facilities, or modify any existing telecommunications facilities or structures that include the following:
- A. Increase in the structure's existing height by more than 10% or 10 feet, whichever is greater;
- B. Installation of new facilities or accessory equipment that protrudes from the edge of any pole or the structure;
- C. Installation of any new equipment cabinets;
- D. Any excavation or deployment outside the current site as permitted;
- E. Changes that defeat the existing camouflage elements of the telecommunications facility; or
- F. Other changes that do not comply with conditions of the prior approval of the telecommunications facility unless the changes do not exceed the above thresholds.
- TELECOMMUNICATIONS FACILITY ("FACILITY" or "FACILITIES")
- The plant, equipment and property, including but not limited to cables, wires, fiber optic strands, conduits, pipes, ducts, dishes, pedestals, poles, antennas, radio equipment, electronics and other appurtenances, including both underground and overhead facilities, used or to be used to transmit, receive, distribute, support, provide or offer FCC licensed or FCC authorized telecommunications services.
- TELECOMMUNICATIONS PROVIDER ("PROVIDER")
- Any person who provides telecommunications service over telecommunications facilities. This definition shall not include the City or the County of Monroe or other government agencies, with respect to telecommunications facilities used for the provision of telecommunications services for governmental or public benefit purposes.
- TELECOMMUNICATIONS SERVICE
- The providing or offering for rent, sale or lease, or in exchange for other value received, of any service or telecommunications facilities that includes the transmission and/or distribution of voice, data, image, graphic or video programming information between or among points by wire, cable, fiber optics, laser, microwave, radio, satellite or similar facilities, with or without benefit of any closed transmission medium.
- Solely for the purpose of this chapter, a utility is an entity that is certified by the New York State Public Service Commission to provide or install any facilities for the delivery of electricity, oil, gas, Internet, programming, or other similar data transfer service, including any utility owned or operated by another city, county, or other governmental agency to the extent allowed by law. For the purpose of this chapter, utilities shall also include companies providing cable television services. City-owned utilities and facilities installed in the right-of-way are exempt from the provisions of this chapter.
- UTILITY EASEMENT
- Any easement acquired, established, dedicated or devoted for public utility purposes.
- Includes all labor, materials, equipment, services, and all other things necessary to install within, excavate, or restore the right-of-way, all of which is subject to the determination and requirements of the City Engineer.