A.
A master license agreement shall be required of any telecommunications
provider who, prior to the effective date of this chapter, installed
and owns or intends to install any facilities or accessory equipment
in the right-of-way for the purpose of providing telecommunications
services by that provider or another provider. A master license agreement
shall be executed between the telecommunications provider and the
City, and such agreement shall be a condition of the permit and authorization
to commence work. Applicants are encouraged to commence the permit
application process concurrently with any negotiations and prior to
execution of the agreement. The master license agreement shall set
forth the terms and conditions of this chapter as well as such additional
terms as agreed to between the parties, so long as such terms are
competitively neutral in relation to similar agreements with other
providers. A master license agreement may be executed prior to the
issuance of permits; however, no work shall be authorized in the right-of-way
until the site-specific permit is issued.
B.
Telecommunications providers shall obtain individual permits from the City Engineer, pursuant to Chapter 104 of the Municipal Code, for all sites of construction or installation of facilities within the right-of-way. Permit applicants shall comply with all applicable requirements and procedures as set forth in the rules and regulations and any terms and conditions contained in the permit.
C.
The City Engineer may determine that installers of telecommunication
facilities on private property which require a de minimus use of the
right-of-way are not subject to the master license agreement requirements
of this chapter; however, the City Engineer, in his/her sole discretion,
may require such registration information or other requirements of
this chapter as is necessary to enable the City to manage and protect
the right-of-way.
A.
Authorization to use the right-of-way granted hereunder shall be
limited to the approval to use specific locations, install specific
facilities and equipment, and to use specific municipal facilities
as described in the master license agreement and the permits. Any
substantial change, modification, extension, addition or relocation
of a telecommunication provider's facilities or accessory equipment
in or to locations in the right-of-way not included in the permits
or to new or different municipal facilities shall require an amendment
of the permit or an additional permit to include those new locations
or facilities. The master license agreement shall also be amended
whenever fees or other requirements for new facilities or accessory
equipment were not addressed in the existing agreement.
B.
Any modifications made to an existing telecommunications facility
or any accessory equipment in the right-of-way shall require that
all aspects of that facility be brought into compliance with this
chapter and the rules and regulations and shall require a new permit.
No license or permit granted hereunder shall confer any exclusive
right, privilege or license to occupy or use the right-of-way for
delivery of telecommunications services or any other purposes. All
permits and licenses to construct or place facilities and equipment
in the right-of-way shall be nonexclusive and shall not prohibit co-location
or City use.
A.
No license granted hereunder shall convey any right, title or interest
in the right-of-way, but shall be deemed a license only to use and
occupy the right-of-way for the limited purposes and term stated under
this chapter or as defined by the master license agreement and permit.
B.
No license granted hereunder shall authorize or excuse a licensee
from securing such further leases or other approvals as may be required
to lawfully occupy and use the right-of-way, including any locations
in the right-of-way not specifically authorized by the master license
agreement or permit.
C.
No license granted hereunder shall be construed as any warranty of
title.
A.
The City shall issue a written determination granting or denying
a permit application, in whole or in part, and may impose additional
conditions related to the management and protection of the right-of-way
on the permit at its discretion. After receipt of a complete application,
the City will issue such determination consistent with the requirements
of applicable laws.
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The City has determined that to protect the public safety and
ensure proper management of the right-of-way, the review and approval
of permit applications for facilities and equipment in the right-of-way
requires a comprehensive review of all submitted documents and site
inspections as needed.
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B.
With respect to small cell installation, such permit review includes
but is not limited to inspection visits to each proposed site to verify
field conditions such as existence of overhead lines, areaways and
other aboveground facilities, inspection of electrical circuits for
the pole, coordination with electrical utilities, evaluation of adjacent
road and sidewalk conditions, identification of other competing right-of-way
projects in the area, and addressing complaints or issues with adjacent
residential and business neighbors. When applications for multiple
sites are submitted at the same time, sufficient additional time shall
be required for the review and inspection of each individual site.
Accordingly, such permit determination shall be issued within 30 days
of receipt of a completed single-site application, extended by two
business days for each additional site requested on the permit application.
Failure of the City to act within the prescribed time frame shall
not be deemed an approval of the application.
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A small cell permit application shall be deemed incomplete,
and the above time frames shall not commence, if the applicant is
so notified in writing within 10 days from receipt of the application,
stating the manner in which the application is incomplete, including
but not limited to the failure of the applicant to complete the registration
requirements or the determination, as set forth below, that the services
of an expert consultant are required. If the applicant submits a revised
application which does not include the documents or information identified
in the prior notification, the City shall within 10 days provide written
notice that the application is incomplete and that no further action
will be taken by the City to review the application until all deficiencies
in the application have been corrected.
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C.
If the City determines that it does not have the expertise needed to evaluate the equipment, location, or technology associated with an application with respect to the factors in Subsection D, below, or other material issues in the application, it may secure the services of an expert consultant to review the application at the applicant's cost. The applicant shall cooperate with the expert and ensure that all necessary information is supplied to both the City and the expert in a timely manner.
D.
If the permit application is denied, the determination shall state
in writing the reason for such denial. Among the factors to be used
in making a determination to approve or deny a permit application,
including a renewal application, the City may consider:
(2)
The legal authority of the applicant to occupy the right-of-way as
evidenced by proof of required state and federal approvals;
(3)
The capacity of the right-of-way and municipal facilities to accommodate
the applicant's proposed facilities;
(4)
Damage or disruption to public or private facilities, improvements,
service or travel in the right-of-way, including violation of the
Dig Once, or other policies as set forth in the rules and regulations,
if the approval is granted;
(5)
The effect on public health, safety and welfare;
(6)
The availability of practicable alternative routes, excess capacity
and/or co-location options which would avoid damage or disruption
to the right-of-way;
(7)
Applicable laws;
(8)
Material errors or omissions in required data or materials submitted;
(9)
Failure to use reasonable camouflage methods to mitigate the impacts
of the proposed telecommunications facilities and accessory equipment,
as set forth in more detail in the rules and regulations;
(10)
Compliance with Federal EMF emissions standards;
E.
Appeals. Any person may appeal the City Engineer's decision
in writing to the Commissioner of Environmental Services within 10
days after the determination is served on the applicant. The applicant
shall have the right to submit any relevant evidence as an attachment
to such appeal. The Commissioner may conduct a hearing on the appeal
to collect and review pertinent information and will notify the applicant
of his or her determination within 20 days. Judicial review of the
determination may be sought pursuant to Article 78 of the New York
State Civil Practice Law and Rules.
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Section 332(c)(7)(B)(iv) of the Telecommunications Act preempts
local decisions premised directly or indirectly on the environmental
effects of radio frequency (RF) emissions. Accordingly, appeals based
on the environmental effects of radio frequency emissions will not
be considered.
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A master license agreement granted hereunder shall be approved
by City Council and may remain in effect for a term of 10 years with
the option for two renewals of five years each upon agreement of the
parties. Such renewals, so long as provided for in the ordinance approved
by City Council, may be processed by the administrator.
A.
Any licensee that desires to exercise the renewal term in its master license agreement shall, not more than 180 days nor less than 90 days before expiration of the current master license agreement, file an application with the administrator for renewal. The application shall provide any information required by § 106-5 which differs from the original application. The City and licensee shall execute a master license agreement extension or the City shall issue a written determination denying the renewal application in whole or in part within 30 business days from receipt of the completed renewal request. Failure of the City to respond within 30 business days does not constitute an automatic approval of the renewal. If the renewal is denied, the determination shall state the reason for such denial. Denial of a license renewal may be appealed in the same manner as an appeal of the denial of a permit application detailed in § 106-11D.
B.
After the final renewal term of the master license agreement expires, the applicant must reregister as required by § 106-5 and negotiate a new master license agreement. Such efforts should be started at least 180 days prior to expiration of the master license agreement to allow sufficient time for negotiations and City Council approval.
No master license agreement shall be renewed until any ongoing
violations or defaults in the licensee's performance of the requirements
of this chapter, and violations of all applicable laws and permit
conditions have been cured, or a plan detailing the corrective action
to be taken by the licensee within a defined schedule, has been approved
by the City Engineer or designee.
