FOR THE RECORD: TRANSCRIPT OF NEW TELECOMMUNICATIONS ORDINANCE TO BE CONSIDERED MONDAY EVENING BY COMMON COUNCIL

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WPCNR FOR THE RECORD. Transcript of proposed Enhanced telecommunications code for City of White Plains regulation of celltower installations and conditions for new applications presently to be considered Monday May 3rd by Common Council. May 1, 2021:

AN ORDINANCE TO AMEND CHAPTER 4-23 OF THE WHITE PLAINS MUNICIPAL CODE ENTITLED “TELECOMMUNICATIONS FRANCHISES AND LICENSING” TO AMEND SECTION 4-23-4(C)  REGARDING REVIEW OF APPLICATIONS  AND TO ADD NEW SECTIONS 4-23-12 REGARDING  PREFERRED LOCATIONS FOR SMALL WIRELESS FACILITIES AND NOTICE REQUIREMENTS, 4-23-13 REGARDING LIABILITY INSURANCE, 4-23-14 REGARDING TESTING OF SMALL WIRELESS FACILITIES, 4-23-15 REGARDING SMALL WIRELESS FACILITIES ON PRIVATE PROPERTY AND 4-23-16 INSTALLATION OF EQUIPMENT.

Section 1. Chapter 4-23-4 (C) of the White Plains Municipal Code is hereby amended to read as follows:

            (c)The application fee for installation of small wireless facilities as defined by the Federal Communications Commission’s Declaratory Ruling and Third Report and Order adopted September 26, 2018 (No. 18-133) shall be $500 for up to five (5) units and $100 for each additional unit proposed and a fee of $1,000 if a new pole is proposed for the facility. Said non recurring fee shall apply to the initial application for a small wireless facilities as part of the franchise agreement as well as subsequent requests for additional units in the future.  Applicants shall also pay a deposit, in the amount of six hundred ($600) dollars per each unit to cover the City’s initial costs in reviewing and processing the request. Payment shall be made by depositing six  hundred ($600.00) dollars per each unit with the Department of Public Works with the initial application fee prescribed in this subsection. The city may draw from the deposit account after providing the Applicant written notice of the reasonable costs to be paid from the account. Applicants shall be responsible for payment of such additional reasonable costs as the City may incur in reviewing the application. Such reasonable costs may include, but are not limited to, internal staff time, and reasonable costs associated with the retention of consultants to provide additional expertise where needed. In the event such additional expenses are required, the City shall so advise the applicant. Any outstanding amount shall be due upon final action on the application and must be paid prior to the City’s issuance of any permit under this section. Any amounts not expended in the review shall, upon written request to the City be returned to the Applicant.

            Section 2. Chapter 4-23 of the White Plains Municipal Code is hereby amended by adding a new Section 4-23-12 to read as follows:

            4-23-12.          Preferred locations for small wireless facilities and notice requirements.

(a) To the extent technically feasible, small wireless facilities should be located first in industrial districts, secondly in business districts and last in residential districts;

(b)  To the extent technically feasible, no  small wireless facilities as defined in 47 C.F.R. §1.6002(1) shall be located in the Front Facade Area of a residential structure,  any public, private and/or state-chartered preschool, elementary school, or secondary school, daycare center or nursing home or use (“Front Facade Area” being the area of the public right-of-way directly in front of any of the aforementioned structures, identified by drawing a perpendicular line from each corner of the structure to the public right-of-way) but rather, if required, such facilities shall be located at the intersecting point of the front and side property lines;

(c)       Notwithstanding the preferences in subsections a and b hereof, the Commissioner of Public Works may approve the location of a small cell wireless facility wherever necessary to meet the Applicant’s network service needs, reduce the facilities aesthetic impact or prevent a violation of law.

(d)   The Applicant shall provide notice of an application for a small wireless facility to the owners of  property, if any, located within 500 feet of the proposed small wireless facility. Such notice shall be sent by certified mail within five (5) days of filing for approval from the City which notice shall indicate (i)that the application is being considered by the Commissioner of Public Works and, if traffic poles are being utilized, by the Deputy Commissioner of Parking for Transportation,  (ii) that the Commissioner(s) may consider whether a nearby location might have less of an aesthetic impact and be a safer location as well as the necessity of a general location to provide adequate service coverage for the Applicant’s network and (iii) all comments should be promptly emailed to DPWadmin@whiteplainsny.gov.

            Section 3. Chapter 4-23 of the White Plains Municipal Code is hereby amended by adding a new Section 4-23-13  to read as follows:

            4-23-13 Liability Insurance

All franchise agreements for small wireless facilities as defined in 47 C.F.R. §1.6002(1) shall   provide general liability insurance without a pollution exclusion or in the event that franchisee cannot obtain general liability insurance without a pollution exclusion, the franchisee may supply self-insurance, so long as the net worth of the party electing to self-insure shall exceed Fifty Million Dollars ($50,000,000.00) in Constant Dollars, upon the following terms:

a.         If the franchisee elects to self-insure for this risk, which would otherwise be covered by third party insurance required to be maintained hereby if such party had not elected to so self-insure, occurs:

            (1) with respect to a  commercial general liability insurance claim that would be covered except for the pollution exclusion clause of the commercial general liability policy, the self-insuring party shall undertake the defense of any such claim, including a defense of the other party, at the sole cost and expense of the self-insuring party;

            (2) the self-insuring party shall use its own funds to pay any claim or otherwise provide the funding which would have been available from insurance proceeds but for the election to self-insure (and this item (2) shall not be construed in any manner to prevent or restrict the self-insuring party from pursuing any claim against any party, except the other party and the other party’s Indemnified Parties, with respect to such claim after the self-insuring party has paid the claim);

            (3) since the franchise agreements require the City to be named as an additional insured, the self-insuring party shall have the same fiduciary duties to the other party that the self-insuring party’s third party insurer would have had to the other party if

            (i) such third party insurer was providing such insurance and

            (ii) such third party insurer had named the other party as an additional insured with respect to such insurance;

            (4) the claim shall be treated as an insured claim hereunder, and

            (5) the expiration or termination of the franchise agreement or any default by the other party hereunder shall not terminate or otherwise affect the obligation of the self-insuring party to provide, through such self-insurance, the insurance coverage the self-insuring party would otherwise be required to obtain from a third party insurer hereunder.

            Section 4. Chapter 4-23 of the White Plains Municipal Code is hereby amended by adding a new Section 4-23-14  to read as follows:

            4-23-14  Testing of small wireless facilities

            All franchise agreements for small wireless facilities as defined in 47 C.F.R. §1.6002(1) shall contain a provision requiring the franchisee to provide to the Commissioner of Public Works a report in a format acceptable to the Commissioner of Public Works showing that all installations shall be in compliance with the applicable, mandatory guidelines of the Federal Communications Commission (“FCC”) including those related to radio frequency (“RF”) emissions. In addition, the franchisee shall be required to deposit money into an escrow account with the Commissioner of Public Works  to allow for the retention by the Commissioner of Public Works of a qualified independent testing firm to periodically verify that all RF exposure levels are within FCC  guidelines as said small wireless facilities are operated in the future. The franchisee shall be required to restore the escrow account to the required amount as funds are expended by the Department of Public Works to perform such testing. In the event that such testing performed by a RF engineer or other qualified independent testing company retained by the Commissioner of Public Works reveals that any of said small wireless facilities tested is not operating within the RF exposure levels set by the FCC for “general population/uncontrolled exposure” and/or indicates a substantial change to any areas to which “occupational/controlled exposure” guidelines would apply and/or finds that any of such small cell facilities tested is not complying with other applicable FCC standards, the franchisee shall be required to submit a report from a RF engineer or other qualified independent testing company approved by the Commissioner of Public Works certifying that all of the franchisee’s small wireless facilities  are operating within FCC guidelines and further indicating all areas around all of the franchisee’s small wireless facilities to which “occupational/controlled exposure” guidelines would apply.

            Section 5. Chapter 4-23 of the White Plains Municipal Code is hereby amended by adding a new Section 4-23-15 to read as follows:

            4-23-15.          Small wireless facility on private property

            A small wireless facility to be installed on private property shall be subject to the issuance of a permit from the Commissioner of Public Works, the application for which shall include the location and installation details of the facility and shall be subject to the same application fees, as a facility placed in the right of way, set forth in Section 4-23-4(c) of the Municipal Code. The Commissioner of Public Works shall issue an administrative permit for the installation of the facility provided that (1) the facility complies with  all applicable Federal, State and County laws, rules and regulations; (2) the facility complies with all applicable laws, codes, ordinances, rules and regulations of the City now or hereafter enacted and all fees, taxes and other payments required hereunder or by such laws, codes, rules or regulations are paid; (3) all construction, installation, maintenance and repair shall be in compliance with the National Electric Safety Code (NESC) and the National Electric Code (NEC) and, where applicable and required by the FCC, all electrical portions of the facility shall be U/L certified; (4) the facility shall not constitute a hazard to pedestrian safety and (5) the installation shall be designed  by a New York State licensed professional engineer in accordance with the latest TiA/EIA specifications to withstand  sustained winds of 100 mph. The facility shall also be subject to the provisions and requirements of Sections 4-23-12, 4-23-13 and 4-23-14 of the Municipal Code.

            Section 6. Chapter 4-23 of the White Plains Municipal Code is hereby amended by adding a new Section 4-23-16 to read as follows:

            4-23-16.          Installation of Equipment

            The Commissioner of Public Works shall only approve equipment to be installed within the public right of way which is authorized by the franchise agreement including that the equipment is of the same or substantially consistent in size, quantity, shape, color, weight, configuration, or other physical properties of one of the approved configurations in the franchise agreement as may be amended from time to reflect the existence of new technologies or equipment.

            Section 7. This ordinance shall take effect immediately.            (Editor’s note: If Common Council approves it Monday evening) 

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