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.
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.