S T A T E O F N E W Y O R K
________________________________________________________________________
4759
2009-2010 Regular Sessions
I N A S S E M B L Y
February 6, 2009
___________
Introduced by M. of A. MORELLE, ORTIZ, SCHIMMINGER -- Multi-Sponsored by
-- M. of A. COOK, DelMONTE -- read once and referred to the Committee
on Corporations, Authorities and Commissions
AN ACT to amend the general municipal law and the highway law, in
relation to enacting the "broadband deployment act" and to provide for
the rapid deployment of broadband telecommunications facilities and
infrastructure in this state
THE PEOPLE OF THE STATE OF NEW YORK, REPRESENTED IN SENATE AND ASSEM-
BLY, DO ENACT AS FOLLOWS:
Section 1. Legislative intent. In 1996, the United States Congress
adopted the Telecommunications Act of 1996, which addresses, in part,
the availability of state and local rights-of-way to telecommunications
providers. Cities, towns and villages in New York state have long been
responsible for the acquisition, care, management and use of their high-
way, roads, streets, avenues and property under article 9 of the state
constitution and implemented by section 10 of the municipal home rule
law and the statutes of local government. While municipal control over
rights-of-way is an essential component of municipal home rule in the
state of New York, the legislature must also recognize the important
federal, state and local interests in facilitating the rapid deployment
of competitive telecommunications facilities and infrastructure in this
state by prohibiting the undue restraint and regulation of access to and
use of rights-of-way, easements, or public places. Encouraging a
rational build-out of a state-of-the-art telecommunications infrastruc-
ture will ensure that every person has access to broadband information
networks, improve opportunities for economic development and the deliv-
ery of essential services including education and health care, encourage
the introduction of new services, the entry of new providers, and the
development of new technologies.
S 2. Short title. This act shall be known as and may be cited as the
"broadband deployment act".
EXPLANATION--Matter in ITALICS (underscored) is new; matter in brackets
[ ] is old law to be omitted.
LBD08457-01-9
A. 4759 2
S 3. The general municipal law is amended by adding a new article 13-E
to read as follows:
ARTICLE 13-E
BROADBAND DEPLOYMENT ACT
SECTION 300. DEFINITIONS.
301. GRANT OF FRANCHISE.
302. REGULATIONS GOVERNING OCCUPATION OF RIGHTS-OF-WAY, EASE-
MENTS OR PUBLIC PLACES.
303. FEES.
304. CONFIDENTIAL BUSINESS INFORMATION.
S 300. DEFINITIONS. WHERE USED IN THIS ARTICLE, THE FOLLOWING WORDS
AND PHRASES SHALL HAVE THE MEANINGS SET FORTH IN THIS SECTION UNLESS THE
CONTEXT CLEARLY INDICATES OTHERWISE.
1. "MUNICIPALITY" MEANS A CITY, TOWN OR VILLAGE, OR SUBDIVISIONS THER-
EOF.
2. "TELECOMMUNICATIONS PROVIDER" OR "PROVIDER" MEANS A PERSON OR AN
AFFILIATE OF THE PERSON EACH OF WHICH FOR COMPENSATION PROVIDES INTRA-
STATE, INTERSTATE, OR INTERNATIONAL TELECOMMUNICATIONS SERVICES OR
DEPLOYS FACILITIES USED DIRECTLY OR INDIRECTLY IN THE PROVISION OF SUCH
TELECOMMUNICATIONS SERVICES.
3. "FRANCHISE" MEANS A FRANCHISE, LICENSE, PERMIT OR OTHER AUTHORI-
ZATION ISSUED BY A MUNICIPALITY TO A TELECOMMUNICATIONS PROVIDER FOR
ACCESS TO AND USE OF ANY RIGHTS-OF-WAY, EASEMENTS, OR PUBLIC PLACES
UNDER ITS CONTROL AND JURISDICTION.
4. "PERSON" MEANS AN INDIVIDUAL, CORPORATION, PARTNERSHIP, ASSOCI-
ATION, GOVERNMENTAL ENTITY, OR ANY OTHER LEGAL ENTITY.
S 301. GRANT OF FRANCHISE. 1. EXCEPT AS OTHERWISE PROVIDED IN THIS
ARTICLE, A MUNICIPALITY SHALL GRANT A FRANCHISE FOR ACCESS TO AND THE
ONGOING USE OF ALL RIGHTS-OF-WAY, EASEMENTS, AND PUBLIC PLACES UNDER ITS
CONTROL AND JURISDICTION TO TELECOMMUNICATIONS PROVIDERS. A PROVIDER'S
RIGHT TO ACCESS AND USE A RIGHT-OF-WAY, EASEMENT, OR PUBLIC PLACE SHALL
NOT BE UNREASONABLY DENIED, RESTRICTED, OR CONDITIONED BY A MUNICI-
PALITY.
2. THIS SECTION SHALL NOT LIMIT A MUNICIPALITY'S RIGHT TO REVIEW AND
APPROVE A PROVIDER'S ACCESS TO AND ONGOING USE OF A RIGHT-OF-WAY, EASE-
MENT, OR PUBLIC PLACE OR LIMIT THE MUNICIPALITY'S AUTHORITY TO PROTECT,
TO THE EXTENT NECESSARY, THE HEALTH, SAFETY, AND WELFARE OF THE PUBLIC,
PROVIDED THAT SUCH ACTIVITIES ARE COMPETITIVELY NEUTRAL AND NONDISCRIMI-
NATORY AS TO ALL PROVIDERS, AND OTHERWISE COMPLY WITH THE PROVISIONS OF
THIS ARTICLE.
3. A MUNICIPALITY SHALL APPROVE OR DENY ACCESS UNDER THIS SECTION
WITHIN SIXTY DAYS FROM THE DATE A PROVIDER FILES AN APPLICATION FOR A
FRANCHISE FOR ACCESS TO A RIGHT-OF-WAY, EASEMENT, OR PUBLIC PLACE. IF A
MUNICIPALITY HAS NOT ACTED UPON SUCH APPLICATION WITHIN SIXTY DAYS OF
THE DATE OF SUCH APPLICATION, HAS DENIED SUCH APPLICATION, OR HAS GRANT-
ED SUCH APPLICATION ON CONDITIONS THAT THE PROVIDER BELIEVES TO BE
UNLAWFUL UNDER THIS ARTICLE, THE PROVIDER SHALL HAVE THE RIGHT TO BRING
AN ACTION IN ANY STATE COURT OR AT THE NEW YORK PUBLIC SERVICE COMMIS-
SION TO DETERMINE WHETHER THE MUNICIPALITY'S FAILURE TO ACT, DENIAL OF
THE APPLICATION, OR IMPOSITION OF CONDITIONS IS CONSISTENT WITH THIS
ARTICLE. A MUNICIPALITY MAY REQUIRE AS A CONDITION OF THE FRANCHISE
THAT A BOND BE POSTED BY THE PROVIDER, WHICH SHALL NOT EXCEED THE
REASONABLE COST, TO ENSURE THAT THE RIGHT-OF-WAY, EASEMENT, OR PUBLIC
PLACE IS RESTORED TO ITS ORIGINAL CONDITION IMMEDIATELY PRIOR TO THE
PROVIDER'S ACCESS AND USE.
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4. A MUNICIPALITY SHALL NOT REQUIRE A FRANCHISE OR CHARGE ANY FEE FOR
A TELECOMMUNICATIONS PROVIDER TO:
(A) ACCESS OR USE THE RIGHTS-OF-WAY OR EASEMENTS OF OTHERS;
(B) ACCESS, USE, OR ACQUIRE THE FACILITIES OF OTHER PROVIDERS LAWFULLY
FRANCHISED; OR
(C) ACQUIRE TELECOMMUNICATIONS SERVICES FROM ANOTHER PROVIDER.
S 302. REGULATIONS GOVERNING OCCUPATION OF RIGHTS-OF-WAY, EASEMENTS OR
PUBLIC PLACES. 1. ANY RULES OR REGULATIONS ADOPTED BY A MUNICIPALITY
WHICH GOVERN THE OCCUPATION OR USE OF ITS RIGHTS-OF-WAY, EASEMENTS, OR
PUBLIC PLACES BY TELECOMMUNICATIONS PROVIDERS, AND ANY CONDITIONS OF A
FRANCHISE GRANTED UNDER SECTION THREE HUNDRED ONE OF THIS ARTICLE OR
APPLICATION REQUIREMENTS FOR SUCH FRANCHISE, SHALL BE COMPETITIVELY
NEUTRAL AND NONDISCRIMINATORY AS TO ALL PROVIDERS AND SHALL BE SPECIF-
ICALLY RELATED TO THE DIRECT AND DEMONSTRABLE EFFECTS OF IMPACTS RESULT-
ING FROM A PROVIDER'S ACCESS TO, USAGE OF, OR PLACEMENT OF OR MAINTE-
NANCE OF FACILITIES IN, ANY SUCH RIGHT-OF-WAY, EASEMENT, OR PUBLIC
PLACE.
2. EXCEPT AS PROVIDED IN SUBDIVISION ONE OF THIS SECTION, A MUNICI-
PALITY MAY NOT USE ITS AUTHORITY OVER ITS RIGHTS-OF-WAY, EASEMENTS, OR
PUBLIC PLACES AS A BASIS FOR ASSERTING OR EXERCISING REGULATORY CONTROL
OR JURISDICTION OVER A PROVIDER WITH RESPECT TO ITS BUSINESS ACTIVITIES
INCLUDING, BUT NOT LIMITED TO, ITS OPERATIONS, SYSTEMS, QUALIFICATIONS,
SERVICES, SERVICE QUALITY, SERVICE TERRITORY, AND RATES.
3. A TELECOMMUNICATIONS PROVIDER'S AGREEMENT TO, OR NEGOTIATION OF, A
FRANCHISE OR ANY CONDITIONS CONTAINED THEREIN, SHALL NOT LIMIT OR OTHER-
WISE BE DEEMED A WAIVER OF THE PROVIDER'S ABILITY TO OBTAIN ADMINISTRA-
TIVE OR JUDICIAL REVIEW OF THE FRANCHISE OR ANY CONDITIONS CONTAINED
THEREIN.
4. A MUNICIPALITY MAY ONLY REQUIRE THE RELOCATION OF A TELECOMMUNI-
CATION PROVIDER'S FACILITIES TO THE EXTENT NECESSARY TO PROTECT THE
PUBLIC SAFETY AND HEALTH, AND SUCH NEED SHALL BE SUPPORTED BY DEMONSTRA-
BLE EVIDENCE. A MUNICIPALITY SHALL NOT REQUIRE THE RELOCATION OF A
PROVIDER'S FACILITIES IN ORDER TO ACCOMMODATE THE PROPOSED CONSTRUCTION
OR DEPLOYMENT OF ANOTHER TELECOMMUNICATIONS PROVIDER. ANY RELOCATION OF
FACILITIES SHALL BE IMPOSED ON A COMPETITIVELY NEUTRAL AND NONDISCRIMI-
NATORY BASIS.
S 303. FEES. 1. ANY FEES OR ASSESSMENTS IMPOSED BY A MUNICIPALITY FOR
A FRANCHISE SHALL BE IMPOSED ON A NONDISCRIMINATORY AND COMPETITIVELY
NEUTRAL BASIS AND SHALL NOT EXCEED THE ACTUAL AND DIRECT COSTS TO THE
MUNICIPALITY IN GRANTING THE FRANCHISE, OR THAT ARE NECESSARY TO PROTECT
THE PUBLIC HEALTH, SAFETY OR WELFARE BY RESTORING THE RIGHTS-OF-WAY,
EASEMENTS, OR PUBLIC PLACES USED BY A PROVIDER TO THE CONDITION THAT
EXISTED IMMEDIATELY PRIOR TO THE PROVIDER'S USE. SUCH FEES MUST BE
DEMONSTRABLE AND MUST BE EQUITABLE AMONG USERS OF THE RIGHTS-OF-WAY,
EASEMENTS, OR PUBLIC PLACES.
2. A MUNICIPALITY MAY NOT OTHERWISE LEVY ON A PROVIDER A FEE REQUIRE-
MENT FOR THE PROVISION OF IN-KIND SERVICES OR ANY OTHER CHARGE FOR OPER-
ATING AS A PROVIDER WITHIN THE JURISDICTION OF THE MUNICIPALITY OR
OTHERWISE RELATED TO USING ITS RIGHTS-OF-WAY, EASEMENTS, ROADS, HIGHWAYS
OR PUBLIC PLACES, INCLUDING ANY FEE BASED ON A PROVIDER'S REVENUES OR
PROFITS.
3. FEES AND COSTS ASSESSED BY A MUNICIPALITY SHALL BE REASONABLY
RELATED IN TIME TO THE OCCURRENCE OF THE COSTS.
4. ANY TELECOMMUNICATIONS PROVIDER MAY APPLY TO A MUNICIPALITY TO
BRING AN EXISTING FRANCHISE INTO COMPLIANCE WITH THIS ARTICLE, OR AFTER
NINETY DAYS SHALL HAVE THE RIGHT TO CHALLENGE SUCH FRANCHISE, OR ANY
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TERMS OR CONDITIONS CONTAINED THEREIN, IN ANY STATE COURT OR AT THE NEW
YORK PUBLIC SERVICE COMMISSION.
5. IN A SUCCESSFUL ADMINISTRATIVE OR JUDICIAL ACTION BY A TELECOMMUNI-
CATIONS PROVIDER AGAINST A MUNICIPALITY FOR A VIOLATION OF THIS ARTICLE,
SUCH PROVIDER MAY RECOVER FROM THE MUNICIPALITY COURT COSTS AND REASON-
ABLE ATTORNEY'S FEES AT TRIAL AND ON APPEAL.
S 304. CONFIDENTIAL BUSINESS INFORMATION. 1. ANY PROPRIETARY CONFIDEN-
TIAL BUSINESS INFORMATION OBTAINED FROM A TELECOMMUNICATIONS PROVIDER BY
A MUNICIPALITY RELATING TO AN APPLICATION FOR OR GRANT OF A FRANCHISE IS
CONFIDENTIAL AND MAY NOT BE USED FOR ANY OTHER PURPOSES, INCLUDING, BUT
NOT LIMITED TO, COMMERCIAL OR COMPETITIVE PURPOSES, NOR MAY THE CONFI-
DENTIAL BUSINESS INFORMATION BE DISCLOSED TO ANY THIRD PARTY.
2. FOR THE PURPOSES OF THIS EXEMPTION, "CONFIDENTIAL BUSINESS INFORMA-
TION" INCLUDES ANY PROPRIETARY OR OTHERWISE CONFIDENTIAL INFORMATION OR
DOCUMENTATION, INCLUDING MAPS, PLANS, BILLING AND PAYMENT RECORDS, TRADE
SECRETS, OR OTHER INFORMATION RELATING TO THE PROVISION OF OR FACILITIES
FOR COMMUNICATIONS SERVICE THAT IS INTENDED TO BE AND IS TREATED BY THE
COMPANY AS CONFIDENTIAL AND IS NOT OTHERWISE PUBLICLY AVAILABLE AS
REQUESTED BY THE MUNICIPALITY.
3. NOTHING IN THIS SECTION EXPANDS THE INFORMATION OR DOCUMENTATION
THAT A MUNICIPALITY MAY PROPERLY REQUEST UNDER APPLICABLE LAW PURSUANT
TO REGULATION OF ITS RIGHTS-OF-WAY.
S 4. The second undesignated paragraph of section 52 of the highway
law, as amended by chapter 297 of the laws of 1972, is amended to read
as follows:
The commissioner of transportation shall establish regulations govern-
ing the issuance of highway work permits, including the fees to be
charged therefor, a system of deposits of money or bonds guaranteeing
the performance of the work and requirements of insurance to protect the
interests of the state during performance of the work pursuant to a
highway work permit. With respect to driveway entrance permits, the
regulations shall take into consideration the prospective character of
the development, the traffic which will be generated by the facility
within the reasonably foreseeable future, the design and frequency of
access to the facility, the effect of the facility upon drainage as
related to existing drainage systems, the extent to which such facility
may impair the safety and traffic carrying capacity of the existing
state highway and any proposed improvement thereto within the reasonably
foreseeable future, and any standards governing access, non-access or
limited access which have been established by the department of trans-
portation. NOTWITHSTANDING ANY OTHER PROVISION OF LAW, THE ISSUANCE OF A
WORK PERMIT UNDER THIS SECTION BY THE COMMISSIONER OR HIS OR HER DULY
DESIGNATED AGENT TO A TELECOMMUNICATIONS PROVIDER AS DEFINED BY SECTION
THREE HUNDRED OF THE GENERAL MUNICIPAL LAW, THE TERMS OF SUCH PERMIT,
THE APPLICATION REQUIREMENTS FOR SUCH PERMIT, FEES ASSOCIATED WITH THE
ISSUANCE OF SUCH PERMIT, OR ACTIVITIES UNDERTAKEN PURSUANT TO SUCH
PERMIT, SHALL BE SUBJECT TO THE TERMS AND PROVISIONS APPLICABLE TO MUNI-
CIPALITIES UNDER ARTICLE THIRTEEN-E OF THE GENERAL MUNICIPAL LAW.
S 5. Section 136 of the highway law is amended by adding a new subdi-
vision 7 to read as follows:
7. NOTWITHSTANDING ANY OTHER PROVISION OF LAW, THE ISSUANCE OF A WORK
PERMIT UNDER THIS SECTION BY THE COUNTY SUPERINTENDENT OR HIS OR HER
DULY DESIGNATED AGENT TO A TELECOMMUNICATIONS PROVIDER AS DEFINED BY
SECTION THREE HUNDRED OF THE GENERAL MUNICIPAL LAW, THE TERMS OF SUCH
PERMIT, THE APPLICATION REQUIREMENTS FOR SUCH PERMIT, FEES ASSOCIATED
WITH THE ISSUANCE OF SUCH PERMIT, OR ACTIVITIES UNDERTAKEN PURSUANT TO
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SUCH PERMIT, SHALL BE SUBJECT TO THE TERMS AND PROVISIONS APPLICABLE TO
MUNICIPALITIES UNDER ARTICLE THIRTEEN-E OF THE GENERAL MUNICIPAL LAW.
S 6. This act shall take effect immediately.