[HISTORY: Adopted by the Board of Trustees of the Village of Mamaroneck 10-10-2000 by L.L. No. 10-2000, effective 10-20-2000. Amendments noted where applicable.]
GENERAL REFERENCES
Cable television — See Ch. 140.
Wireless communications facilities — See Ch. 338.
The Village of Mamaroneck has the authority to grant franchises and
other authorizations for the use and occupancy of its streets and has determined
that its streets are a valuable public resource that have required, and will
continue to require, substantial investment by the village. The village 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 its streets to provide Telecommunications services (as hereinafter
defined) in the village, including the negotiation of terms and conditions
to protect the public interest consistent with applicable law. In addition,
consistent with applicable law, the village desires to manage its streets
and obtain fair and reasonable compensation from Telecommunications providers
on a competitively neutral and nondiscriminatory basis for the use of its
streets on a nondiscriminatory basis. The village also desires to minimize
inconvenience and disruption to the public, provide for the orderly and efficient
use of its streets now and in the future, and preserve adequate capacity for
existing and future uses of its streets; and the village intends to exercise,
to the fullest extent permitted by applicable law, its authority with respect
to the regulation of the occupation and use of its 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 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.
Each person who falls into one or more of the following categories:
each person having, directly or indirectly, a controlling interest in the
applicant; each person in which the applicant has, directly or indirectly,
a controlling interest; each officer, director, joint venturer or joint venture
partner of the applicant; and each person, directly or indirectly, controlling,
controlled by, or under common control with, the applicant; provided that
"affiliated person" shall in no event mean the village 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 under common ownership, common management or common control with
the applicant.
The Board of Trustees of the Village of Mamaroneck and its designee
or any successor thereto.
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.
This chapter and all modifications and amendments thereto.
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 20%, 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.
The poles, wires, electrical conductors, cables, 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, which authorizes the occupation
and use of the streets to provide Telecommunications services.
Being permissive.
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 of Mamaroneck.
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 specifically identified streets, provided that a revocable license shall be issued only in the limited circumstances set forth in § 310-3, Subsections B and G, of this chapter.
Being mandatory, not merely directive.
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 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:
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
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 Telecommunica-tions 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 "Telecommunica-tions 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 Mamaroneck, New York.
A.
No person shall use or occupy the streets as a Telecommunica-tions
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.[2]
B.
Any person seeking to use the streets to construct, operate
or maintain equipment to provide Telecommunications for or in connection with
the internal operations of such person's business, residence or employment
and not for or in connection with the provision or offering of Telecommunications
services for sale or resale to any person in the village shall first obtain
a revocable license in accordance with the provisions of this chapter.
C.
The Board of Trustees may grant one or more franchises
and revocable licenses in accordance with this chapter, provided that the
Board of Trustees reserves the right to modify any provision of this chapter
by amendment hereof.
D.
The grant of any franchise or revocable license shall
be made by adoption of a separate resolution by the Board of Trustees 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.
Any franchise or revocable license granted shall be nonexclusive.
The village specifically reserves the right to grant, at any time, such additional
franchises, revocable licenses or other authorizations for use of the streets
by any means, as the village deems appropriate.
F.
A franchise may be granted for all or any defined portion
of the village.
G.
Revocable license.
(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 that an application for a revocable license
would cause a Telecommunications provider to exceed or fail to comply with
the limits specified in (1)(a) and/or (b) of this subsection, 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.
[1]
Editor's Note: The local law adopting this chapter provided that
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.
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, policies 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 the granting of a franchise or a revocable license pursuant
to this chapter or such other authorization as may be required by applicable
law.
A.
Applications for franchises and revocable licenses shall
be submitted to the Village Manager, with a copy also to be submitted to the
Village Attorney.
B.
An application shall contain the following information
with respect to the proposed franchise or revocable license and such other
information with respect to the proposed franchise or revocable license 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 description of the Telecommunications services proposed
to be provided, including, without limitation, a description of facilities
and equipment within the village.
(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)
Proposed financing plans for the construction and operation
of the Telecommunications system by which the proposed Telecommunications
services would be provided.
(7)
A description of the legal, financial, technical and
other appropriate qualifications of the applicant to hold the franchise or
revocable license.
(8)
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, ordinances, 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, ordinances, resolutions, rules, regulations and other directives of the Village, including the provisions of this chapter, the village shall enter into negotiations with the applicant to determine whether such applicant and the Village are able to reach agreement on the terms of the proposed franchise or revocable license in accordance with §§ 310-10 and 310-11 of this chapter. The village may reject any application which is incomplete or otherwise fails to comply with applicable law, ordinances, resolutions, rules, regulations and other directives of the village and any federal, state or local authority having jurisdiction.
A.
In making any determination hereunder as to any application
for a franchise or revocable license, the Board of Trustees may consider such
factors as it deems appropriate and in the public interest, provided that
such factors are consistent with applicable law, including, without limitation:
(1)
The adequacy of the proposed compensation to be paid
to the village, including the value of any facilities and Telecommunications
services offered by the applicant to the village.
(2)
The legal, financial, technical and other appropriate
qualifications of the applicant.
(3)
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.
(4)
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.
(5)
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.
(6)
The adequacy of the terms and conditions of the proposed
franchise or revocable license agreement to protect the public interest, consistent
with applicable law.
(7)
Any other public interest factors or considerations that
the village has a lawful right to consider and that are deemed pertinent by
the village for safeguarding the interests of the village and the public.
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 of Trustees may make such investigations and
take or authorize the taking of such other steps as the Board of Trustees
deems necessary or appropriate to consider and act on applications for franchises
and revocable licenses and to determine whether a franchise or revocable license
should be granted to an applicant, and may require the applicant to furnish
additional information and data for this purpose. In considering applications,
the Board of Trustees may seek advice from Village officials, departments,
agencies, boards, commissions or bodies, from such other advisory bodies as
it may establish or determine appropriate, or from the public, and may request
the preparation of one or more reports to be submitted to the Board of Trustees,
which may include recommendations with respect to such applications.
B.
Consistent with applicable law, upon completion of the
steps deemed appropriate by the Board of Trustees, the Board of Trustees may
grant or deny the franchise or revocable license, and may specify the conditions
under which the franchise or revocable license is granted.
A.
The terms and conditions applicable to any franchise
granted pursuant to this chapter shall be set forth in the separate resolution
granting the franchise and/or in a separate written agreement. A franchise
granted pursuant to this chapter shall not become effective until said separate
resolution becomes effective and any separate agreement is executed by both
parties. Such separate resolution or written agreement, among other things,
shall address the following subjects:
(1)
The term of the franchise.
(2)
The franchise area and the Telecommunications services
to be offered.
(3)
The compensation to be paid to the village, which shall
include the payment of fees and/or the provision of facilities or services.
(4)
The circumstances upon which the franchise may be terminated
or cancelled.
(5)
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.
(6)
The village's right to inspect the facilities and
records of the franchisee.
(7)
Insurance and indemnification requirements applicable
to the franchisee.
(8)
The obligation of the franchisee to maintain complete
and accurate books of account and records, and the village's inspection
rights with respect thereto.
(9)
Provisions to ensure quality workmanship and construction
methods.
(10)
Provisions to ensure that the franchisee will comply
with all applicable village, state and federal laws, regulations, rules and
policies.
(11)
The obligation of the franchisee to supply an engineering
site plan showing the proposed location of the applicant's Telecommunications
system within the village, including the connection to any portion of applicant's
Telecommunications system outside the village, 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.
(12)
Provisions to place reasonable limitations upon the assignment
or other transfer of the franchise.
(13)
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.
(14)
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 franchisee,
including the Federal Communications Commission.
(15)
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.
(16)
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.
(17)
Such other provisions as the village determines are necessary
or appropriate in furtherance of the public interest, consistent with applicable
law.
A.
The terms and conditions applicable to any revocable license granted pursuant to this chapter shall be set forth in the separate resolution granting the revocable license and/or in a separate written agreement. A revocable license granted pursuant to this chapter shall not become effective until the separate resolution granting the license becomes effective and any separate written agreement is executed by both parties. Such separate resolution and/or written agreement shall address the same subjects listed in § 310-10 of this chapter subject to the following limitations:
(1)
The revocable license shall be for a term not to exceed
10 years from the date that the resolution 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's purposes.
(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 that 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.
The Board of Trustees 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 village. 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.
