Bill Text: NY S08693 | 2019-2020 | General Assembly | Amended

New York Senate Bill 8693 (Prior Session Legislation)

Bill Title: Authorizes the commissioner of transportation to enter into an agreement with all entities for use and occupancy of the state right of way for the purposes of installing, modifying, relocating, repairing, operating, or maintaining fiber optic facilities.

Spectrum: Partisan Bill (Democrat 1-0)

Status: (Introduced - Dead) 2020-10-26 - PRINT NUMBER 8693A [S08693 Detail]

Download: New_York-2019-S08693-Amended.html


                STATE OF NEW YORK
        ________________________________________________________________________

                                         8693--A

                    IN SENATE

                                      July 8, 2020
                                       ___________

        Introduced  by  Sen. KENNEDY -- read twice and ordered printed, and when
          printed to be  committed  to  the  Committee  on  Rules  --  committee
          discharged, bill amended, ordered reprinted as amended and recommitted
          to said committee

        AN ACT to amend the highway law and the transportation corporations law,
          in  relation  to agreements for fiber optic use and occupancy of state
          right of way; and providing for the repeal of certain provisions  upon
          expiration thereof

          The  People of the State of New York, represented in Senate and Assem-
        bly, do enact as follows:

     1    Section 1. Subdivision 24-e of section 10 of the highway law, as added
     2  by section 1 of part RRR of chapter 59 of the laws of 2019,  is  amended
     3  to read as follows:
     4    24-e. The commissioner of transportation is hereby authorized to enter
     5  into  an  agreement  with [any fiber optic utility] all entities for use
     6  and occupancy of the state right of way for the purposes of  installing,
     7  modifying,  relocating, repairing, operating, or maintaining fiber optic
     8  facilities.  [Such agreement may include a fee for use and occupancy  of
     9  the  right of way, provided, however, such fee shall not be greater than
    10  fair market value. Any provider using or occupying a  right  of  way  in
    11  fulfillment  of a state grant award through the New NY Broadband Program
    12  shall not be subject to a fee for such use or occupancy. Any fee for use
    13  or occupancy charged to a  fiber  optic  utility  shall  not  be  passed
    14  through in whole or in part as a fee, charge, increased service cost, or
    15  by any other means by a fiber optic utility to any person or entity that
    16  contracts  with  such  fiber optic utility for service. Any compensation
    17  received by the state pursuant to such agreement shall be  deposited  by
    18  the  comptroller into the special obligation reserve and payment account
    19  of the dedicated highway and bridge trust fund established  pursuant  to
    20  section  eighty-nine-b  of  the  state finance law. Nothing herein shall
    21  impair, inhibit, or otherwise affect the ability of any municipality  to
    22  regulate zoning, land use, or any other power or authority granted under
    23  the law.  For purposes of this subdivision, "municipality" shall include
    24  a county, city, village, or town.]

         EXPLANATION--Matter in italics (underscored) is new; matter in brackets
                              [ ] is old law to be omitted.
                                                                   LBD16709-04-0

        S. 8693--A                          2

     1    §  2.  Section  7  of the transportation corporations law, as added by
     2  section 2 of part RRR of chapter 59 of the laws of 2019, is  amended  to
     3  read as follows:
     4    §  7.  Agreement  for fiber optic [utility] use and occupancy of state
     5  right of way. The commissioner of transportation [is  hereby  authorized
     6  to]  shall  enter  into  an agreement with [any fiber optic utility] all
     7  entities for use and occupancy  of  the  state  right  of  way  for  the
     8  purposes  of installing, modifying, relocating, repairing, operating, or
     9  maintaining fiber optic facilities. Such agreement [may] shall include a
    10  fee for use and occupancy of the state right of way, provided,  however,
    11  such  fee  shall [not be greater than fair market value] be based on the
    12  department of transportation's cost of managing the state right  of  way
    13  and  assessed annually to all entities occupying the state right of way.
    14  Any provider using or occupying a right of way in fulfillment of a state
    15  grant award through the New NY Broadband Program shall not be subject to
    16  a fee for such use or occupancy. Any fee for use or occupancy charged to
    17  a fiber optic utility shall not be passed through in whole or in part as
    18  a fee, charge, increased service cost, or by any other means by a  fiber
    19  optic  utility  to  any  person or entity that contracts with such fiber
    20  optic utility for service.  [Any  compensation  received  by  the  state
    21  pursuant  to  such  agreement shall be deposited by the comptroller into
    22  the special obligation reserve and  payment  account  of  the  dedicated
    23  highway  and  bridge  trust fund established pursuant to section eighty-
    24  nine-b of the state finance law. Nothing herein shall  impair,  inhibit,
    25  or  otherwise affect the ability of any municipality to regulate zoning,
    26  land use, or any other power or authority granted  under  the  law.  For
    27  purposes  of  this section, "municipality" shall include a county, city,
    28  village, or town] Such compensation received by the  state  pursuant  to
    29  such  agreement  shall  be deposited by the comptroller into the special
    30  obligation reserve and payment account  of  the  dedicated  highway  and
    31  bridge  trust  fund established pursuant to section eighty-nine-b of the
    32  state finance law.
    33    § 3. The transportation corporations law is amended by  adding  a  new
    34  section 8 to read as follows:
    35    § 8. Assessment of annual fee for use and occupancy of the state right
    36  of way. 1. The commissioner of transportation is authorized to assess an
    37  annual  fee  to  all entities occupying the state right of way on a pro-
    38  rata basis of the total linear length of fiber facilities owned  by  the
    39  entities as of March thirty-first of each year.
    40    2. The department of transportation shall develop a standardized form,
    41  which  at a minimum shall require from each entity the total linear feet
    42  of state right of way occupancy, without regard to the number  of  fiber
    43  strands  or cables an entity has deployed in the state right of way. The
    44  total linear feet shall include both aerial and  underground  facilities
    45  occupying  the state right of way as of March thirty-first of each year.
    46  Such standardized form shall include a certification and attestation  to
    47  the  true and accurate nature of the entity's reported total linear feet
    48  and each entity shall submit said form no later than May first  of  each
    49  year.
    50    3.  The  annual  fee  shall  be assessed to all entities occupying the
    51  state right of way on a pro-rata basis on or before June thirtieth annu-
    52  ally. Provided, however that any fees collected pursuant to  subdivision
    53  twenty-four-e  of  section  ten of the highway law shall be applied. All
    54  fees and security deposits remitted to the department of  transportation
    55  by  an  entity  between  October  first, two thousand nineteen and March
    56  thirty-first, two thousand twenty shall be applied toward that  entity's

        S. 8693--A                          3

     1  first  year pro-rata payment. All fees and security deposits remitted to
     2  the department of transportation from April first, two  thousand  twenty
     3  and  March thirty-first, two thousand twenty-one shall be applied toward
     4  that  entity's second year pro-rata payment. In the event that the enti-
     5  ty's payments made in any year exceed the calculated pro-rata share  for
     6  that  entity,  the excess fees and security deposits shall be applied to
     7  the subsequent years' pro-rata payments as appropriate.
     8    4. Notwithstanding any other law or provision to  the  contrary,  such
     9  total  annual fee collected by the department of transportation pursuant
    10  to this section for fiber optic use and occupancy of the state right  of
    11  way  shall not exceed: fifteen million dollars for state fiscal year two
    12  thousand twenty; thirty million dollars for state fiscal year two  thou-
    13  sand  twenty-one; fifty million dollars for state fiscal years two thou-
    14  sand twenty-two through two thousand twenty-four and shall be paid on  a
    15  pro-rata basis by all entities occupying the state right of way.
    16    5.  Notwithstanding  any  other  law  or provision to the contrary the
    17  department of transportation is authorized to contract with an independ-
    18  ent consultant to determine and assess the annual fee for use and  occu-
    19  pancy of the state right of way.
    20    §  4.  This act shall take effect immediately; provided, however, that
    21  section 8 of the transportation corporations law  as  added  by  section
    22  three  of  this  act  shall be deemed repealed on the same date and same
    23  manner as part RRR of chapter 59  of  the  laws  of  2019,  as  amended;
    24  provided, further, that the amendments to subdivision 24-e of section 10
    25  of the highway law made by section one of this act and the amendments to
    26  section  7 of the transportation corporations law made by section two of
    27  this act shall not affect  the  repeal  of  such  subdivision  and  such
    28  section and shall be deemed repealed therewith.