Bill Text: NY A04728 | 2009-2010 | General Assembly | Introduced
Bill Title: An act to amend the general municipal law, in relation to enacting the "state public rights-of-way act"
Spectrum: Partisan Bill (Democrat 1-0)
Status: (Introduced - Dead) 2010-01-06 - referred to local governments [A04728 Detail]
Download: New_York-2009-A04728-Introduced.html
S T A T E O F N E W Y O R K
________________________________________________________________________
4728
2009-2010 Regular Sessions
I N A S S E M B L Y
February 5, 2009
___________
Introduced by M. of A. MORELLE -- read once and referred to the Commit-
tee on Local Governments
AN ACT to amend the general municipal law, in relation to enacting the
"state public rights-of-way act"
THE PEOPLE OF THE STATE OF NEW YORK, REPRESENTED IN SENATE AND ASSEM-
BLY, DO ENACT AS FOLLOWS:
1 Section 1. The general municipal law is amended by adding a new arti-
2 cle 19-C to read as follows:
3 ARTICLE 19-C
4 STATE PUBLIC RIGHTS-OF-WAY ACT
5 SECTION 991. SHORT TITLE.
6 991-A. LEGISLATIVE INTENT.
7 991-B. DEFINITIONS.
8 991-C. APPLICABILITY.
9 991-D. RIGHTS-OF-WAY PERMIT.
10 991-E. RESTRICTIONS ON THE ABILITY OF POLITICAL SUBDIVISIONS TO
11 FURTHER REGULATE THE ACTIVITIES OF TELECOMMUNICATIONS
12 SERVICE PROVIDERS.
13 991-F. APPLICATION FOR CONSTRUCTION PERMITS.
14 991-G. RESTORATION.
15 991-H. JUDICIAL REVIEW.
16 991-I. RELOCATION OF FACILITIES.
17 991-J. INDEMNIFICATION.
18 991-K. INSURANCE.
19 991-L. BONDS.
20 991-M. SEVERABILITY.
21 S 991. SHORT TITLE. THIS ARTICLE SHALL BE KNOWN AND MAY BE CITED AS
22 THE "STATE PUBLIC RIGHTS-OF-WAY ACT".
23 S 991-A. LEGISLATIVE INTENT. THE LEGISLATURE HEREBY FINDS AND DECLARES
24 THAT IT IS IN THE BEST INTEREST OF THE STATE TO ENACT THE PROVISIONS OF
25 THIS ARTICLE IN ORDER TO:
EXPLANATION--Matter in ITALICS (underscored) is new; matter in brackets
[ ] is old law to be omitted.
LBD08412-01-9
A. 4728 2
1 (A) PROVIDE AND ADVANCE LOCAL GOVERNMENTAL INTEREST IN THE DEPLOYMENT
2 OF ADVANCED TELECOMMUNICATION SERVICES, FACILITIES BASED COMPETITION,
3 AND IMPLEMENTATION OF NETWORK REDUNDANCY BY TELECOMMUNICATION'S PROVID-
4 ERS WHICH ACTIONS ARE NECESSARY NOT ONLY TO PROTECT AGAINST NETWORK
5 OUTAGES, BUT ALSO TO ENSURE THE SAFETY AND SECURITY OF THE PUBLIC AND
6 INCREASE ECONOMIC DEVELOPMENT IN THE PERTINENT POLITICAL SUBDIVISION
7 WHEREIN SUCH TELECOMMUNICATIONS PROVIDER OPERATES OR CONDUCTS BUSINESS;
8 (B) RECOGNIZE THAT POLITICAL SUBDIVISIONS HAVE AN IMPORTANT ROLE IN
9 MANAGING THE PUBLIC RIGHTS-OF-WAY;
10 (C) PRECLUDE MUNICIPAL EFFORTS TO REGULATE TELECOMMUNICATIONS SERVICE
11 PROVIDERS, RATES, SERVICES, SERVICE QUALITY, OPERATIONS, FINANCIAL QUAL-
12 IFICATIONS, AND OTHER MATTERS NOT SPECIFICALLY AND DIRECTLY RELATED TO
13 THE TIME, PLACE AND MANNER OF ENTRY INTO THE PUBLIC RIGHTS-OF-WAY IN A
14 MANNER INCONSISTENT WITH FEDERAL TELECOMMUNICATIONS ACT OF 1996;
15 (D) STREAMLINE THE PROCESS FOR AUTHORIZING ACCESS TO, AND USE OF, THE
16 PUBLIC RIGHTS-OF-WAY BY TELECOMMUNICATION SERVICE PROVIDERS;
17 (E) PROVIDE FOR THE NON-DISCRIMINATORY AND COMPETITIVELY NEUTRAL
18 REIMBURSEMENT OF THE POLITICAL SUBDIVISION'S EXPENSES APPLICABLE TO A
19 TELECOMMUNICATIONS SERVICE PROVIDER'S USE OF THE PUBLIC RIGHTS-OF-WAY,
20 BASED ON THE REASONABLE, ACTUAL AND DIRECT COST INCURRED BY A POLITICAL
21 SUBDIVISION IN REVIEWING CONSTRUCTION PERMIT APPLICATIONS AND INSPECTING
22 CONSTRUCTION SITES;
23 (F) REQUIRE THAT PERMITS FOR ACCESS TO AND USE OF THE PUBLIC
24 RIGHTS-OF-WAY ARE ISSUED WITHIN A FIXED AND REASONABLE TIME, NOT TO
25 EXCEED THIRTY DAYS FROM THE DATE OF APPLICATION FOR SUCH PERMIT; AND
26 (G) ENSURE RAPID AND EFFECTIVE REVIEW AND DISPOSITION OF DISPUTES
27 RELATED TO THE USE OF PUBLIC RIGHTS-OF-WAY.
28 S 991-B. DEFINITIONS. AS USED IN THIS ARTICLE THE FOLLOWING TERMS
29 SHALL HAVE THE FOLLOWING MEANINGS:
30 (A) "BARRIER TO ENTRY" MEANS ANY LOCAL LAW, RULE OR REGULATION OR
31 ACTION TAKEN BY A POLITICAL SUBDIVISION THAT DOES NOT RELATE TO THE
32 TIME, PLACE AND MANNER OF ENTRY TO A PUBLIC RIGHT-OF-WAY, INCLUDING, BUT
33 NOT LIMITED TO: (I) REQUIRING FEES GREATER THAN THE COSTS OF MANAGING
34 THE PUBLIC RIGHTS-OF-WAY. FEES SUCH AS FRANCHISE FEES, GROSS REVENUE
35 FEES, RENT CHARGES OR OTHER CHARGES BASED ON A PERCENTAGE OF REVENUE,
36 PER LINEAR FOOT FEES, FREE CONDUIT, FIBER OR SERVICES OR ACCESS LINE
37 FEES, FREE OR DISCOUNTED FACILITIES AND SERVICES OR ANY OTHER FEE OF A
38 SIMILAR OR COMPARABLE NATURE SHALL BE CONSIDERED A BARRIER TO ENTRY;
39 (II) REQUIRING TELECOMMUNICATIONS SERVICE PROVIDERS TO ENTER INTO
40 AGREEMENTS, FRANCHISES, LICENSES, OR ANY OTHER CONTRACTUAL UNDERSTANDING
41 THAT PURPORT TO GRANT THE POLITICAL SUBDIVISION ANY AUTHORITY OTHER THAN
42 THAT IS CONTAINED IN THIS ARTICLE;
43 (III) REGULATING ANY SERVICES, RATES OR TERMS AND CONDITIONS OF ANY
44 TELECOMMUNICATIONS SERVICE PROVIDER'S PROVISION OF SERVICES;
45 (IV) REQUIRING ANY FINANCIAL, TECHNICAL OR MANAGERIAL INFORMATION BE
46 FILED OR REPORTED;
47 (V) REQUIRING CONSENT FOR ASSIGNMENT OR CHANGE IN CONTROL OF THE
48 ASSETS OR OWNERSHIP OF A TELECOMMUNICATIONS SERVICE PROVIDER;
49 (VI) REQUIRING THE WAIVER OF ANY LEGAL RIGHTS, OR ACKNOWLEDGMENTS OF
50 AUTHORITY BY THE POLITICAL SUBDIVISION IN EXCHANGE FOR ISSUANCE OF A
51 LICENSING AGREEMENT, FRANCHISE, PERMIT OR APPROVAL TO CONSTRUCT;
52 (VII) ENTERING INTO ANY EXCLUSIVE ARRANGEMENTS WITH ANY TELECOMMUNI-
53 CATIONS SERVICE PROVIDER;
54 (VIII) THE FAILURE TO ACT WITHIN THE TIME FRAMES SET FORTH IN THIS
55 ARTICLE;
56 (IX) UNREASONABLE BOND, INSURANCE AND INDEMNIFICATION REQUIREMENTS;
A. 4728 3
1 (X) CHARGES, AMOUNTS OR FEES IN EXCESS OF THOSE WHICH COVER THE ACTUAL
2 COST OF RESTORING THE PUBLIC RIGHTS-OF-WAY TO ITS PRE-EXISTING CONDI-
3 TION, NORMAL WEAR AND TEAR EXCEPTED;
4 (XI) TREATING A TELECOMMUNICATIONS SERVICE PROVIDER IN A DISCRIMINATO-
5 RY OR NON-COMPETITIVELY NEUTRAL MANNER; AND
6 (XII) REQUIRING THAT TELECOMMUNICATIONS SERVICE PROVIDERS PLACE,
7 LOCATE OR CONSTRUCT THEIR FACILITIES UNDERGROUND.
8 (B) "COST" MEANS THE REASONABLE DIRECT INCREMENTAL COST INCURRED BY A
9 POLITICAL SUBDIVISION AS A RESULT OF A TELECOMMUNICATIONS SERVICE
10 PROVIDER'S USE OF THE PUBLIC RIGHTS-OF-WAY, INCLUDING BUT NOT LIMITED
11 TO, THE POLITICAL SUBDIVISION'S EXPENSES INCURRED IN REVIEWING ENGINEER-
12 ING PLANTS OR CONSTRUCTION APPLICATIONS, AND INSPECTING JOB SITES,
13 PROVIDED, HOWEVER, THAT COST SHALL NOT INCLUDE FRANCHISE FEES, GROSS
14 REVENUE FEES, RENT CHARGES, PER LINEAR FOOT CHARGES, ACCESS LINE CHARG-
15 ES, FREE CONDUIT, FIBER OR SERVICES, OR ANY OTHER FEE OF A SIMILAR OR
16 COMPARABLE NATURE PAYABLE BY A TELECOMMUNICATIONS SERVICE PROVIDER FOR
17 USE OF THE PUBLIC RIGHTS-OF-WAY.
18 (C) "MANNER" MEANS CONSTRUCTION RELATED REQUIREMENTS IMPOSED AS A
19 FUNCTION OF A POLITICAL SUBDIVISION'S OBLIGATION TO PROTECT THE HEALTH,
20 WELFARE AND SAFETY OF THE PUBLIC, SUCH AS TRAFFIC MANAGEMENT, EXCAVATION
21 AND REPAIR STANDARDS, AND OTHER SIMILAR REQUIREMENTS IMPOSED CONSISTENT
22 WITH THE PROVISIONS OF THIS ARTICLE.
23 (D) "POLITICAL SUBDIVISION" MEANS A COUNTY, CITY (INCLUDING, NOTWITH-
24 STANDING ANY INCONSISTENT PROVISION OF A LOCAL CHARTER OR ADMINISTRATIVE
25 CODE, ANY CITY HAVING A POPULATION OF ONE MILLION OR MORE), TOWN,
26 VILLAGE OR ANY DEPARTMENT, BOARD, BUREAU, OR AGENCY THEREOF, OR ANY
27 PUBLIC AUTHORITY PROVIDED FOR IN THE PUBLIC AUTHORITIES LAW, OR ANY
28 OTHER LAW.
29 (E) "PUBLIC RIGHTS-OF-WAY" MEANS THE SURFACE AND THE AREA ACROSS, IN,
30 OVER, ALONG, UPON AND BELOW THE SURFACE OF THE PUBLIC STREETS, ROADS,
31 BRIDGES, SIDEWALKS, LANES, COURTS, WAYS, ALLEYS, AND BOULEVARDS OF A
32 POLITICAL SUBDIVISION, INCLUDING, PUBLIC UTILITY EASEMENTS AND PUBLIC
33 LANDS AND WATERWAYS USED AS PUBLIC THOROUGHFARES, AS THE SAME NOW OR MAY
34 HEREAFTER EXIST, AND WHICH ARE SUBJECT TO THE SUPERVISION, JURISDICTION
35 OR CONTROL OF THAT POLITICAL SUBDIVISION.
36 (F) "TELECOMMUNICATIONS FACILITIES" OR "FACILITIES" MEANS THE EQUIP-
37 MENT OR PERSONAL PROPERTY OF A TELECOMMUNICATIONS SERVICE PROVIDER,
38 INCLUDING, BUT NOT LIMITED TO, COPPER AND FIBER CABLES, LINES, WIRES,
39 SWITCHES, CONDUITS, PIPES, POLES, SHEATHS, CABINETS, VAULTS AND
40 MANHOLES, WHICH ARE CAPABLE OF, OR ARE USED TO, GENERATE, RECEIVE, TRAN-
41 SMIT, CARRY, AMPLIFY, OR PROVIDE TELECOMMUNICATIONS SERVICES OR SIGNALS.
42 (G) "SERVICES" MEANS ANY SERVICES THAT A TELECOMMUNICATIONS SERVICE
43 PROVIDER IS AUTHORIZED TO PROVIDE BY THE STATE PUBLIC SERVICE COMMISSION
44 OR THE FEDERAL COMMUNICATIONS COMMISSION, PURSUANT TO ANY STATE OR
45 FEDERAL LAW OR BY ANY OTHER APPROPRIATE STATE OR FEDERAL REGULATORY
46 AUTHORITY HAVING JURISDICTION OVER A TELECOMMUNICATION SERVICE PROVID-
47 ER'S ACTIVITIES.
48 (H) "TELECOMMUNICATIONS SERVICE PROVIDER" MEANS A PERSON, FIRM, CORPO-
49 RATION, COMPANY, PARTNERSHIP OR ANY OTHER BUSINESS ENTITY WHICH PROVIDES
50 INTERSTATE, INTRASTATE, OR INTERNATIONAL COMMUNICATIONS SERVICES OR
51 DEPLOYS FACILITIES USED FOR THE PROVISION OF SERVICES AND FOR PURPOSES
52 OF THIS ARTICLE, AND INCLUDES A PERSON WHO USES ANY TELECOMMUNICATIONS
53 FACILITIES LOCATED WITHIN THE PUBLIC RIGHT-OF-WAY.
54 (I) "USE" OR "USE OF THE PUBLIC RIGHTS-OF-WAY" MEANS THE ACT OF IMPOS-
55 ING A PHYSICAL BURDEN UPON THE PUBLIC RIGHTS-OF-WAY THROUGH THE INSTAL-
56 LATION AND MAINTENANCE OF A FACILITY WITHIN SUCH RIGHTS-OF-WAY. USE OF
A. 4728 4
1 THE PUBLIC RIGHTS-OF-WAY SHALL NOT INCLUDE THE LEASING OF FIBER, FIBER
2 CAPACITY, CONDUIT, INNERDUCT, ATTACHING TO UTILITY POLES OWNED BY ANOTH-
3 ER PERSON, OR THE PURCHASE OF SERVICES FROM A TELECOMMUNICATIONS SERVICE
4 PROVIDER FOR RESALE TO ANOTHER PARTY.
5 S 991-C. APPLICABILITY. (A) THIS ARTICLE SHALL APPLY TO ALL TELECOMMU-
6 NICATIONS SERVICE PROVIDERS AND OTHER PERSONS THAT OWN TELECOMMUNI-
7 CATIONS FACILITIES USED IN THE PUBLIC RIGHTS-OF-WAY AND SHALL BE APPLIED
8 TO ALL PERSONS AND TELECOMMUNICATIONS SERVICE PROVIDERS IN A NON-DISCRI-
9 MINATORY AND COMPETITIVELY NEUTRAL MANNER.
10 (B) THIS ARTICLE SHALL NOT APPLY TO ANY PERSON WHO:
11 (I) LEASES TELECOMMUNICATIONS FACILITIES IN THE PUBLIC RIGHTS-OF-WAY;
12 (II) LEASES POLE SPACE, CONDUIT OR INNERDUCT FOR THE PLACEMENT OF ITS
13 OWN CABLE OR FIBER;
14 (III) PROVIDES SERVICES BY RESELLING SERVICES OR PURCHASES UNBUNDLED
15 NETWORK ELEMENTS;
16 (IV) PROCURES CAPACITY OR FACILITIES FOR A SPECIFIED PERIOD OF TIME;
17 OR
18 (V) OTHERWISE PROVIDES SERVICE BUT DOES NOT OTHERWISE USE THE PUBLIC
19 RIGHTS-OF-WAY.
20 S 991-D. RIGHTS-OF-WAY PERMIT. (A) ANY PERSON SEEKING USE OF THE
21 PUBLIC RIGHTS-OF-WAY FOR THE PROVISION OF TELECOMMUNICATIONS SERVICES OR
22 FACILITIES SHALL APPLY FOR A PERMIT AUTHORIZING SUCH ACCESS AND USE
23 WITHIN THE POLITICAL SUBDIVISION. ONCE GRANTED, SUCH PERMIT SHALL
24 AUTHORIZE THE PERSON TO HAVE ACCESS TO, AND USE OF THE PUBLIC
25 RIGHTS-OF-WAY FOR THE PURPOSE OF CONSTRUCTING, OPERATING AND MAINTAINING
26 FACILITIES WITHIN THE BOUNDARIES OF THE POLITICAL SUBDIVISION. HOWEVER,
27 NOTHING IN THIS SECTION SHALL BE DEEMED TO PRECLUDE A POLITICAL SUBDIVI-
28 SION FROM REQUIRING AND ISSUING CONSTRUCTION PERMITS AS PROVIDED FOR IN
29 SECTION NINE HUNDRED NINETY-ONE-F OF THIS ARTICLE.
30 (B) ANY AUTHORIZATIONS, PERMITS, CONSENTS, OR OTHER ARRANGEMENT GRANT-
31 ED, PERMITTED OR AUTHORIZED PRIOR TO THE EFFECTIVE DATE OF THIS ARTICLE
32 BY WHICH THE POLITICAL SUBDIVISION HAS AUTHORIZED A TELECOMMUNICATIONS
33 SERVICE PROVIDER TO USE THE PUBLIC RIGHTS-OF-WAY SHALL SATISFY THE
34 REQUIREMENTS TO USE THE PUBLIC RIGHTS-OF-WAY UNDER THIS ARTICLE AS LONG
35 AS, AND TO THE EXTENT THAT SUCH USE IS CONSISTENT WITH THIS ARTICLE.
36 ANY TELECOMMUNICATIONS SERVICE PROVIDER ASSERTING RIGHTS TO USE THE
37 PUBLIC RIGHTS-OF-WAY UNDER FRANCHISES, ORDINANCES OR OTHER AUTHORI-
38 ZATIONS UNDER STATE LAW, AS IT EXISTED PRIOR TO THE EFFECTIVE DATE OF
39 THIS ARTICLE, SHALL BE SUBJECT TO THE PROVISIONS OF THIS ARTICLE
40 NOTWITHSTANDING SUCH PRIOR AUTHORIZATIONS OR APPROVALS.
41 (C) A POLITICAL SUBDIVISION MAY REQUIRE A TELECOMMUNICATIONS SERVICE
42 PROVIDER THAT PLACES OR SEEKS TO PLACE FACILITIES IN THE PUBLIC RIGHTS-
43 OF-WAY WITHIN ITS JURISDICTION OR CONTROL TO REGISTER WITH THE POLITICAL
44 SUBDIVISION PROVIDED THAT, IN DOING SO, THE INFORMATION REQUIRED TO BE
45 PROVIDED IN SUCH REGISTRATION SHALL BE LIMITED TO THE NAME, ADDRESS, AND
46 TELEPHONE NUMBER OF A CONTACT PERSON OF THE TELECOMMUNICATIONS SERVICE
47 PROVIDER, TOGETHER WITH A PERFORMANCE BOND OR OTHER PROOF OF INSURANCE
48 OR SELF-INSURING STATUS IN AN AMOUNT WHICH, IN THE REASONABLE ESTIMATE
49 OF THE POLITICAL SUBDIVISION, IS ADEQUATE TO DEFEND AND COVER CLAIMS IN
50 ACTIONS OR PROCEEDINGS WHICH MAY ARISE OUT OF SUCH TELECOMMUNICATIONS
51 SERVICE PROVIDER'S ACTIVITIES OR BUSINESS WITHIN THE POLITICAL SUBDIVI-
52 SION.
53 (D) THE POLITICAL SUBDIVISION SHALL, UPON RECEIPT OF THE APPLICATION
54 REFERRED TO IN THIS SECTION, EITHER GRANT OR DENY THE TELECOMMUNICATIONS
55 SERVICE PROVIDER'S PERMIT FOR ACCESS TO, AND THE OUTGOING USE OF, THE
56 PUBLIC RIGHTS-OF-WAY, EASEMENTS OR PUBLIC PLACES LOCATED WITHIN ITS
A. 4728 5
1 JURISDICTION WITHIN THIRTY DAYS FROM THE DATE SUCH APPLICATION IS FILED.
2 A TELECOMMUNICATIONS SERVICE PROVIDER'S APPLICATION, AND SUBSEQUENT
3 RIGHT TO ACCESS AND USE THE PUBLIC RIGHTS-OF-WAY PURSUANT TO SUCH PERMIT
4 SHALL NOT BE UNREASONABLY WITHHELD OR DENIED. ANY DENIAL SHALL CONTAIN
5 WRITTEN DETAILED FINDINGS EXPLAINING THE REASONS FOR THE DENIAL. IF THE
6 POLITICAL SUBDIVISION FAILS TO GRANT OR DENY AN APPLICATION FOR A PERMIT
7 UNDER THIS PROVISION WITHIN SUCH THIRTY-DAY PERIOD THE APPLICATION AND
8 PERMIT SHALL BE DEEMED GRANTED.
9 (E) ANY CONDITIONS IMPOSED BY THE POLITICAL SUBDIVISION PURSUANT TO A
10 PERMIT GRANTED UNDER THIS SECTION SHALL BE STRICTLY PROHIBITED IF THE
11 SAME SHALL CONSTITUTE A BARRIER TO ENTRY AND SHALL ONLY BE LIMITED TO
12 MATTERS THAT RELATE TO THE TIME, PLACE, AND MANNER OF ENTRY INTO THE
13 PUBLIC RIGHTS-OF-WAY. NO FURTHER CONDITIONS SHALL BE IMPOSED AT ANY TIME
14 AFTER THE PERMIT IS GRANTED.
15 S 991-E. RESTRICTIONS ON THE ABILITY OF POLITICAL SUBDIVISIONS TO
16 FURTHER REGULATE THE ACTIVITIES OF TELECOMMUNICATIONS SERVICE PROVIDERS.
17 (A) NO POLITICAL SUBDIVISION SHALL ENACT, MAINTAIN, OR ENFORCE ANY LOCAL
18 LAW OR OTHER LEGAL REQUIREMENTS APPLICABLE TO TELECOMMUNICATIONS SERVICE
19 PROVIDERS THAT IS INCONSISTENT WITH THIS ARTICLE, AND ANY SUCH LOCAL LAW
20 OR OTHER LEGAL REQUIREMENT SHALL BE DEEMED VOID AS AGAINST PUBLIC POLI-
21 CY.
22 (B) THE POLITICAL SUBDIVISION MAY REVIEW AND APPROVE ONLY APPLICATIONS
23 FOR CONSTRUCTION OF FACILITIES IN PUBLIC RIGHTS-OF-WAY, AS PROVIDED IN
24 SECTION NINE HUNDRED NINETY-ONE-F OF THIS ARTICLE, BUT ONLY TO THE
25 EXTENT PERMITTED BY THIS ARTICLE.
26 (C) THE POLITICAL SUBDIVISION MAY RECOVER FROM A TELECOMMUNICATIONS
27 SERVICE PROVIDER, ON A NON-DISCRIMINATORY AND COMPETITIVELY NEUTRAL
28 BASIS, THE ACTUAL COSTS INCURRED BY THE POLITICAL SUBDIVISION RESULTING
29 FROM THE TELECOMMUNICATIONS SERVICE PROVIDER'S USE OF THE PUBLIC
30 RIGHTS-OF-WAY.
31 (D) NO POLITICAL SUBDIVISION SHALL:
32 (I) REQUIRE ANY TELECOMMUNICATIONS SERVICE PROVIDER TO ENTER INTO
33 AGREEMENTS, FRANCHISES, LICENSES, OR ANY OTHER CONTRACTUAL OBLIGATIONS
34 THAT PURPORT TO GRANT THE POLITICAL SUBDIVISION ANY GREATER OR MORE
35 ENCOMPASSING AUTHORITY OTHER THAN THAT WHICH IS CONTAINED IN THIS ARTI-
36 CLE;
37 (II) REQUIRE OR ACCEPT ANY FEES OR ANY OTHER FORM OF COMPENSATION FROM
38 A TELECOMMUNICATIONS SERVICE PROVIDER, INCLUDING, BUT NOT LIMITED TO
39 FRANCHISES FEES, GROSS REVENUE FEES, RENT CHARGES, PER LINEAR FOOT
40 CHARGES, ACCESS LINE CHARGES, FREE CONDUIT, FIBER OR SERVICES FOR ANY
41 OTHER FEE OF A SIMILAR OR COMPARABLE NATURE;
42 (III) REGULATE SERVICES, RATES OR TERMS AND CONDITIONS OF ANY TELECOM-
43 MUNICATIONS SERVICE PROVIDER'S PROVISION OF SERVICES;
44 (IV) REQUIRE ANY TELECOMMUNICATIONS SERVICE PROVIDER TO FILE OR
45 PROVIDE ANY FINANCIAL, TECHNICAL OR MANAGERIAL INFORMATION OTHER THAN AS
46 IS REQUIRED BY THIS ARTICLE;
47 (V) REQUIRE CONSENT FOR ASSIGNMENT OR CHANGE IN CONTROL OF THE ASSETS,
48 STOCK OR PERMITS OF A TELECOMMUNICATIONS SERVICE PROVIDER;
49 (VI) REQUIRE A TELECOMMUNICATIONS SERVICE PROVIDER TO WAIVE ANY LEGAL
50 RIGHTS, OR REQUIRE SUCH ENTITY TO ACKNOWLEDGE THE PURPORTED AUTHORITY OF
51 A POLITICAL SUBDIVISION BEYOND THE SCOPE OF THIS ARTICLE IN EXCHANGE FOR
52 A PERMIT OR APPROVAL TO CONSTRUCT FACILITIES. ANY WAIVER OF SUCH RIGHTS
53 SHALL BE VOID AGAINST PUBLIC POLICY AND ANY TELECOMMUNICATIONS SERVICE
54 PROVIDER'S AGREEMENT TO, OR NEGOTIATION OF ANY DOCUMENT CONTAINING SUCH
55 A WAIVER, SHALL BE NULL AND VOID;
A. 4728 6
1 (VII) ENTER INTO ANY EXCLUSIVE AGREEMENT WITH ANY TELECOMMUNICATIONS
2 SERVICE PROVIDER AS TO THE USE OF A PUBLIC RIGHT-OF-WAY;
3 (VIII) PROHIBIT A TELECOMMUNICATIONS SERVICE PROVIDER FROM PASSING
4 THROUGH TO ITS CUSTOMERS IN ITS RATE SETTING PROCEDURES, ANY FEES
5 REQUIRED TO BE PAID TO A POLITICAL SUBDIVISION UNDER THIS ARTICLE UNLESS
6 OTHERWISE RESTRICTED FROM DOING SO PURSUANT TO STATE LAW;
7 (IX) TAKE ANY ACTION THAT CREATES A BARRIER TO ENTRY TO THE PROVISION
8 OF SERVICES BY THE TELECOMMUNICATIONS SERVICE PROVIDER; OR
9 (X) IMPOSE ANY OBLIGATIONS ON A TELECOMMUNICATIONS SERVICE PROVIDER,
10 WHICH ARE NOT APPLICABLE TO ALL OTHER TELECOMMUNICATIONS SERVICE PROVID-
11 ERS.
12 S 991-F. APPLICATION FOR CONSTRUCTION PERMITS. (A) ANY TELECOMMUNI-
13 CATIONS SERVICE PROVIDER, WHICH SEEKS TO CONSTRUCT FACILITIES WITHIN A
14 POLITICAL SUBDIVISION, SHALL FILE AN APPLICATION FOR A CONSTRUCTION
15 PERMIT AND PAY AN APPLICATION FEE NOT TO EXCEED FIFTY DOLLARS TO THE
16 POLITICAL SUBDIVISION WHERE SUCH FACILITY IS TO BE LOCATED. SUCH FEE
17 SHALL COVER ALL THE COSTS RELATING TO THE REVIEW AND ISSUANCE OF THE
18 CONSTRUCTION PERMIT, AND NO OTHER FEE OF ANY KIND SHALL BE IMPOSED. SUCH
19 APPLICATION FOR A CONSTRUCTION PERMIT UNDER THIS SECTION SHALL INCLUDE
20 SCHEMATIC DRAWINGS SHOWING THE LOCATION OF THE TELECOMMUNICATIONS
21 SERVICE PROVIDER'S PROPOSED FACILITIES, AND FOR APPLICATIONS AND
22 CONSTRUCTION PERMITS ISSUED AFTER THE EFFECTIVE DATE OF THIS ARTICLE,
23 THE POLITICAL SUBDIVISION SHALL PRESCRIBE THE STANDARDIZED FORM AND
24 SIMPLIFIED APPLICATION PROCESS TO BE USED BY AN APPLICANT. THE INFORMA-
25 TION REQUIRED TO BE SUBMITTED BY A TELECOMMUNICATIONS SERVICE PROVIDER
26 FOR A PERMIT UNDER THIS SECTION SHALL BE SIMILAR IN NATURE TO THE INFOR-
27 MATION GENERALLY REQUIRED TO BE SUBMITTED BY ANY OTHER PERSON SEEKING A
28 PERMIT TO CONSTRUCT WITHIN THE POLITICAL SUBDIVISION. THE POLITICAL
29 SUBDIVISION SHALL MAKE A DETERMINATION AND, ISSUE OR REFUSE TO ISSUE,
30 CONSTRUCTION PERMITS WITHIN TEN DAYS OF RECEIPT OF THE COMPLETED APPLI-
31 CATION. IF SUCH APPLICATION IS NOT APPROVED OR DISAPPROVED WITHIN SUCH
32 TEN-DAY PERIOD, SUCH APPLICATION SHALL BE DEEMED APPROVED.
33 (B) WHERE THE CONSTRUCTION PERMIT IS FOR FACILITIES TO BE LOCATED
34 WITHIN THE PUBLIC RIGHT-OF-WAY, THE POLITICAL SUBDIVISION MAY REQUIRE A
35 TELECOMMUNICATIONS SERVICE PROVIDER TO SUBMIT SCHEMATIC DRAWINGS SHOWING
36 THE PURPORTED LOCATION OF SUCH FACILITIES. THE POLITICAL SUBDIVISION MAY
37 REQUIRE THE SCHEMATIC TO BE IN PAPER OR ELECTRONIC FORMAT, PROVIDED THE
38 FORMAT IS MAINTAINED IN THE ORDINARY COURSE OF BUSINESS BY THE TELECOM-
39 MUNICATIONS SERVICE PROVIDER. IN THE EVENT THE SCHEMATIC PROVIDED DOES
40 NOT REASONABLY REFLECT THE ACTUAL INSTALLATION OF FACILITIES, THE POLI-
41 TICAL SUBDIVISION MAY REQUIRE THE TELECOMMUNICATIONS SERVICE PROVIDER TO
42 SUBMIT A REVISED SCHEMATIC REFLECTING ANY CHANGES. ANY SCHEMATIC DRAWING
43 OR OTHER INFORMATION SUBMITTED TO THE POLITICAL SUBDIVISION SHALL BE
44 TREATED AS CONFIDENTIAL AND PROPRIETARY BY THE POLITICAL SUBDIVISION AND
45 SHALL BE SUBJECT TO PUBLIC DISCLOSURE ONLY TO THE EXTENT ALLOWED BY
46 STATE LAW. IF REQUIRED TO DISCLOSE ANY INFORMATION BY STATE LAW, PRIOR
47 TO DISCLOSING SUCH INFORMATION, THE POLITICAL SUBDIVISION SHALL GIVE
48 ENOUGH PRIOR NOTICE TO THE TELECOMMUNICATIONS SERVICE PROVIDER TO ENABLE
49 IT TO PROTECT THE CONFIDENTIALITY OF ANY INFORMATION NOT REQUIRED TO BE
50 DISCLOSED.
51 (C) ANY CONDITIONS CONTAINED IN A PERMIT GRANTED UNDER THIS SECTION
52 SHALL BE LIMITED TO MATTERS DIRECTLY AFFECTING THE TELECOMMUNICATIONS
53 SERVICE PROVIDER'S ACCESS, USAGE AND PHYSICAL OCCUPATION OF THE PUBLIC
54 RIGHTS-OF-WAY.
55 (D) THE POLITICAL SUBDIVISION MAY REGULATE THE TIME, PLACE AND MANNER
56 FOR ENTRY INTO A PUBLIC RIGHT-OF-WAY BY A TELECOMMUNICATIONS SERVICE
A. 4728 7
1 PROVIDER FOR CONSTRUCTION OF FACILITIES AND MAY REASONABLY MANAGE THE
2 CONSTRUCTION OF FACILITIES IN THE PUBLIC RIGHTS-OF-WAY TO MINIMIZE THE
3 DISTURBANCE TO THE PUBLIC HEALTH, SAFETY AND WELFARE.
4 S 991-G. RESTORATION. IN ANY CASE WHERE A TELECOMMUNICATIONS SERVICE
5 PROVIDER HAS CONSTRUCTED FACILITIES UPON A PUBLIC RIGHT-OF-WAY, IT SHALL
6 BE RESPONSIBLE AT ITS OWN COST FOR RESTORING THE PORTION OF THE PUBLIC
7 RIGHT-OF-WAY SURFACE IMPACTED BY ITS CONSTRUCTION ACTIVITIES TO ITS
8 PRE-CONSTRUCTION CONDITION. WHERE TWO OR MORE TELECOMMUNICATIONS SERVICE
9 PROVIDERS AND/OR OTHER PERSONS, INCLUDING, BUT NOT LIMITED TO, OTHER
10 PUBLIC UTILITIES AND POLITICAL SUBDIVISIONS, PERFORM CONSTRUCTION ACTIV-
11 ITIES IN THE SAME PORTION OF THE PUBLIC RIGHTS-OF-WAY, EACH TELECOMMUNI-
12 CATIONS SERVICE PROVIDER AND PERSON SHALL BE RESPONSIBLE FOR THEIR
13 PROPORTIONATE COST OF RESTORING SUCH PUBLIC RIGHTS-OF-WAY.
14 S 991-H. JUDICIAL REVIEW. IN ANY CASE WHERE A POLITICAL SUBDIVISION
15 HAS DENIED A TELECOMMUNICATIONS SERVICE PROVIDER'S APPLICATION FOR A
16 PERMIT AS PROVIDED FOR IN SECTION NINE HUNDRED NINETY-ONE-D OF THIS
17 ARTICLE, OR WHERE THE POLITICAL SUBDIVISION HAS GRANTED SUCH APPLICA-
18 TION, BUT HAS IMPOSED BARRIERS TO ENTRY OR OTHER CONDITIONS UPON THE
19 TELECOMMUNICATIONS SERVICE PROVIDER WHICH SUCH APPLICANT BELIEVES TO BE
20 UNLAWFUL OR ILLEGAL, THE TELECOMMUNICATIONS SERVICE PROVIDER MAY APPLY
21 TO THE POLITICAL SUBDIVISION TO MODIFY THE TERMS AND CONDITIONS, OR
22 WHERE SUCH RELIEF IS NOT GRANTED, MAY BRING AN ACTION IN STATE COURT FOR
23 INJUNCTIVE, DECLARATORY, OR OTHER APPROPRIATE JUDICIAL RELIEF. IN AN
24 ACTION BY A TELECOMMUNICATIONS SERVICE PROVIDER AGAINST A POLITICAL
25 SUBDIVISION COMMENCED PURSUANT TO THE AUTHORITY OF THIS SECTION WHERE
26 THE COURT DETERMINES THAT THE ACTIONS OF THE POLITICAL SUBDIVISION WERE
27 IN FACT UNLAWFUL, ILLEGAL OR IN CONTRAVENTION OF LAW, THE COURT SHALL
28 MAKE AN AWARD TO THE PREVAILING PARTY REIMBURSING IT FOR THE AMOUNT OF
29 ITS COSTS AND REASONABLE ATTORNEY'S FEES IN PROSECUTING THE SAME.
30 S 991-I. RELOCATION OF FACILITIES. A POLITICAL SUBDIVISION MAY REQUIRE
31 A TELECOMMUNICATIONS SERVICE PROVIDER TO MOVE, ALTER, CHANGE, ADAPT, OR
32 CONFORM ITS FACILITIES IN THE EVENT SUCH ACTION IS NECESSARY, REASONABLE
33 AND WARRANTED FOR REASONS PERTAINING TO THE HEALTH, WELFARE AND SAFETY
34 OF ITS CITIZENS. THE POLITICAL SUBDIVISION SHALL BE RESPONSIBLE FOR ALL
35 COSTS INCURRED IN MOVING, ALTERING, CHANGING, ADAPTING, OR CONFORMING
36 THE FACILITIES OF THE TELECOMMUNICATIONS SERVICE PROVIDER IF SUCH MOVE
37 IS FOR AESTHETIC PURPOSES, FOR THE BENEFIT OF A THIRD PARTY, FOR THE
38 BENEFIT OF THE POLITICAL SUBDIVISION, OR WHICH IS NECESSITATED FOR THE
39 DEVELOPMENT OF A NON-ROADWAY STRUCTURE. IN THE EVENT THAT THE POLITICAL
40 SUBDIVISION REQUIRES A TELECOMMUNICATIONS SERVICE PROVIDER TO RELOCATE
41 ITS ABOVE GROUND FACILITIES TO UNDERGROUND, THE POLITICAL SUBDIVISION
42 SHALL REIMBURSE SUCH PROVIDER FOR THE COSTS INCURRED IN SO RELOCATING
43 SUCH FACILITIES. A TELECOMMUNICATIONS SERVICE PROVIDER SHALL ONLY BE
44 REQUIRED TO RELOCATE FACILITIES UNDERGROUND TO THE EXTENT THAT: (I) IT
45 IS TECHNICALLY FEASIBLE AND PRACTICAL; (II) THE POLITICAL SUBDIVISION
46 REIMBURSES THE TELECOMMUNICATIONS SERVICE PROVIDER FOR RELOCATING THE
47 FACILITY UNDERGROUND; AND (III) AT THE REQUEST OF THE TELECOMMUNICATIONS
48 SERVICE PROVIDER, SUCH COSTS ARE PAID PRIOR TO SUCH RELOCATION.
49 S 991-J. INDEMNIFICATION. THE POLITICAL SUBDIVISION AND TELECOMMUNI-
50 CATIONS SERVICE PROVIDER SHALL INDEMNIFY AND SAVE EACH OTHER HARMLESS
51 FROM ANY LIABILITIES, CLAIMS OR DEMANDS (INCLUDING THE COSTS, EXPENSES
52 AND REASONABLE ATTORNEY'S FEES ON ACCOUNT THEREOF) THAT MAY BE MADE BY
53 ANYONE FOR PERSONAL INJURIES, INCLUDING DEATH, OR DAMAGE TO TANGIBLE
54 PROPERTY, RESULTING FROM THE NEGLIGENCE AND/OR WILLFUL MISCONDUCT OF THE
55 OTHER PARTY, ITS EMPLOYEES OR AGENTS IN ITS PERFORMANCE OF DUTIES AND
56 OBLIGATIONS UNDER THIS ARTICLE. THE POLITICAL SUBDIVISION AND THE TELE-
A. 4728 8
1 COMMUNICATIONS SERVICE PROVIDER SHALL DEFEND THE OTHER AT THE OTHER'S
2 REQUEST AGAINST ANY SUCH LIABILITY, CLAIM OR DEMAND AND SHALL NOTIFY THE
3 OTHER PROMPTLY OF WRITTEN CLAIMS OR DEMANDS AGAINST ANY SUCH PARTY WHERE
4 THE OTHER PARTY MAY BE RESPONSIBLE HEREUNDER.
5 S 991-K. INSURANCE. EACH TELECOMMUNICATIONS SERVICE PROVIDER, AT ITS
6 SOLE COST AND EXPENSE, SHALL SECURE AND KEEP IN FORCE DURING
7 CONSTRUCTION OF FACILITIES UPON A PUBLIC RIGHT-OF-WAY, THE FOLLOWING
8 INSURANCE COVERAGE PURSUANT TO A CONTRACT OR POLICY OF INSURANCE ISSUED
9 BY AN INSURER LICENSED TO DO BUSINESS IN THIS STATE WITH AT LEAST THE
10 FOLLOWING RESPECTIVE MINIMUM LIMITS:
11 (A) WORKERS' COMPENSATION - THE STATUTORILY PRESCRIBED LIMITS, UNLESS
12 THE TELECOMMUNICATIONS SERVICE PROVIDER MAINTAINS A QUALIFIED SELF-IN-
13 SURED STATUS AND SO CERTIFIES SUCH STATUS TO THE POLITICAL SUBDIVISION.
14 (B) EMPLOYER'S LIABILITY - FIVE HUNDRED THOUSAND DOLLARS PER OCCUR-
15 RENCE.
16 (C) COMPREHENSIVE GENERAL LIABILITY INSURANCE -- COMBINED BODILY INJU-
17 RY LIABILITY AND PROPERTY DAMAGE LIABILITY - ONE MILLION DOLLARS PER
18 OCCURRENCE.
19 (D) AUTOMOBILE LIABILITY INSURANCE -- BODILY INJURY LIABILITY AND
20 PROPERTY DAMAGE LIABILITY - ONE MILLION DOLLARS PER OCCURRENCE. SUCH
21 POLICY SHALL INSURE ALL OWNED, NON-OWNED AND HIRED VEHICLES THAT ARE, OR
22 MAY BE USED, BY THE TELECOMMUNICATIONS SERVICE PROVIDER AND ITS EMPLOY-
23 EES IN ITS PERFORMANCE OF DUTIES AND RESPONSIBILITIES UNDER THIS ARTI-
24 CLE. THE ABOVE LIMITS OF LIABILITY MAY BE PROVIDED BY A COMBINATION OF
25 PRIMARY AND EXCESS POLICIES, AT THE ELECTION OF THE TELECOMMUNICATIONS
26 SERVICE PROVIDER.
27 (E) EACH INSURANCE POLICY PROVIDED BY OR ON BEHALF OF A TELECOMMUNI-
28 CATIONS SERVICE PROVIDER PURSUANT TO THE PROVISIONS OF SUBDIVISION (A)
29 OF THIS SECTION, SHALL INCLUDE THE POLITICAL SUBDIVISION AS AN ADDI-
30 TIONAL NAMED INSURED AND SHALL PROVIDE THAT THIRTY DAYS ADVANCE WRITTEN
31 NOTICE BY REGISTERED MAIL OF ANY CANCELLATION, EXPIRATION, MODIFICATION
32 OR REDUCTION IN AMOUNT OR SCOPE OF COVERAGE SHALL BE PROVIDED BY THE
33 TELECOMMUNICATIONS SERVICE PROVIDER TO THE POLITICAL SUBDIVISION.
34 S 991-L. BONDS. (A) PRIOR TO COMMENCING ANY CONSTRUCTION UPON A PUBLIC
35 RIGHT-OF-WAY BY A TELECOMMUNICATIONS SERVICE PROVIDER, THE POLITICAL
36 SUBDIVISION MAY REQUIRE THE POSTING OF A PERFORMANCE BOND IN AN AMOUNT
37 NOT TO EXCEED THE REASONABLE COSTS TO RETURN THE PUBLIC RIGHTS-OF-WAY TO
38 ITS ORIGINAL CONDITION, NORMAL WEAR AND TEAR EXCEPTED, AND TO ENSURE THE
39 TELECOMMUNICATIONS SERVICE PROVIDER'S COMPLIANCE WITH THIS ARTICLE. SUCH
40 BONDING REQUIREMENT SHALL BE IMPOSED IN A NON-DISCRIMINATORY AND COMPET-
41 ITIVELY NEUTRAL MANNER AND SHALL TERMINATE THIRTY DAYS AFTER COMPLETION
42 OF RESTORATION OF THE PUBLIC RIGHTS-OF-WAY TO ITS ORIGINAL CONDITION.
43 (B) IN THE EVENT A TELECOMMUNICATIONS SERVICE PROVIDER FAILS TO
44 COMPLETE CONSTRUCTION OF FACILITIES IN A SAFE, TIMELY, AND COMPETENT
45 MANNER, THERE SHALL BE RECOVERABLE, JOINTLY AND SEVERALLY FROM THE PRIN-
46 CIPAL AND SURETY AT THE BOND, ANY ACTUAL LOSS SUFFERED BY THE POLITICAL
47 SUBDIVISION AS A RESULT OF SUCH FAILURE. THE FINDING THAT SUCH WORK WAS
48 DONE IN SUCH A SATISFACTORY MANNER SHALL BE AS JOINTLY DETERMINED BY THE
49 POLITICAL SUBDIVISION AND THE TELECOMMUNICATIONS SERVICE PROVIDER. IF
50 THERE IS A DISPUTE OVER A TELECOMMUNICATIONS SERVICE PROVIDER'S SATIS-
51 FACTORY RESTORATION OF THE PUBLIC RIGHTS-OF-WAY, A TELECOMMUNICATIONS
52 SERVICE PROVIDER SHALL HAVE THE RIGHT TO SEEK TERMINATION OF THE BOND
53 UNDER SECTION NINE HUNDRED NINETY-ONE-H OF THIS ARTICLE. IN THE EVENT A
54 TELECOMMUNICATIONS SERVICE PROVIDER FAILS TO COMPLETE REQUIRED RESTORA-
55 TION OF THE PUBLIC RIGHTS-OF-WAY ARISING FROM ITS CONSTRUCTION OF FACIL-
56 ITIES, THE POLITICAL SUBDIVISION MAY RECOVER, JOINTLY AND SEVERALLY FROM
A. 4728 9
1 THE PRINCIPAL AND SURETY AT THE BOND, ANY ACTUAL LOSS SUFFERED OF SUCH
2 FAILURE.
3 S 991-M. SEVERABILITY. IF ANY CLAUSE, SENTENCE, PARAGRAPH, SECTION OR
4 PART OF THIS ARTICLE SHALL BE ADJUDGED BY ANY COURT OF COMPETENT JURIS-
5 DICTION TO BE INVALID OR UNCONSTITUTIONAL AND AFTER EXHAUSTION OF ALL
6 FURTHER JUDICIAL REVIEW, THE JUDGMENT SHALL NOT AFFECT, IMPAIR OR INVAL-
7 IDATE THE REMAINDER THEREOF, BUT SHALL BE CONFINED IN ITS OPERATION TO
8 THE CLAUSE, SENTENCE, PARAGRAPH, SECTION OR PART OF THIS ARTICLE DIRECT-
9 LY INVOLVED IN THE CONTROVERSY IN WHICH THE JUDGMENT SHALL HAVE BEEN
10 RENDERED.
11 S 2. This act shall take effect immediately.
