Town of Olive, NY
Ulster County
By using eCode360 you agree to be legally bound by the Terms of Use. If you do not agree to the Terms of Use, please do not use eCode360.
Table of Contents
Table of Contents
[HISTORY: Adopted by the Town Board of the Town of Olive as indicated in article histories. Amendments noted where applicable.]
Article I Wireline Telecommunications Systems

§ 146-1 Title.

§ 146-2 Construal of provisions.

§ 146-3 Scope.

§ 146-4 Definitions.

§ 146-5 Administration; delegation of powers and authority.

§ 146-6 Applicability of this article to a service provider or system owner or operator.

§ 146-7 Seeking relief.

§ 146-8 Failure of Town Board to enforce this article.

§ 146-9 Subject to present and future laws, ordinances and regulations.

§ 146-10 Repeal of prior inconsistent regulations; effect on agreements.

§ 146-11 Resolution of inconsistencies with federal or state rules, regulations or laws.

§ 146-12 Resolution of conflicts between this article and a subsequently granted franchise.

§ 146-13 Penalties and sanctions for violations.

§ 146-14 Effect of technical violation of law or franchise agreement.

§ 146-15 Force majeure.

§ 146-16 Notices.

§ 146-17 Indemnity.

§ 146-18 Liability insurance.

§ 146-19 Performance and completion security.

§ 146-20 Maintaining other types of insurance and bonds.

§ 146-21 Maintaining a public inspection file.

§ 146-22 Retention and submission of reports and records.

§ 146-23 Inspection and review of books, records and other data.

§ 146-24 Applicability of state consumer sales practices laws.

§ 146-25 Subscriber or user security deposits.

§ 146-26 Preferential or discriminatory practices prohibited.

§ 146-27 Restoration of a subscriber or user's property.

§ 146-28 Payment delinquency; late charges; termination of service.

§ 146-29 Voluntary disconnections, including requests for downgrades of service.

§ 146-30 Nonprohibitive access policy and voluntary subscription.

§ 146-31 Protection of subscriber or user privacy.

§ 146-32 Resolution of complaints; response to inquiries.

§ 146-33 Policy with respect to the continuity of service.

§ 146-34 Construction and construction-related requirements.

§ 146-35 Construction of good quality.

§ 146-36 Conditions on use of streets and public ways.

§ 146-37 Street cutting.

§ 146-38 Duty to remove properties from the public streets and rights-of-way.

§ 146-39 Permits and licenses.

§ 146-40 Technical performance standards; consumer protection.

§ 146-41 Reservation of right to inspect a system or facilities and to review documents.

§ 146-42 Provisions to alert subscribers or users of a disaster emergency; standby power.

§ 146-43 Implementation of a preventive maintenance program.

§ 146-44 Safety requirements.

§ 146-45 Franchise required.

§ 146-46 Initial franchises; authority to grant nonexclusive franchises; required permitting.

§ 146-47 Franchise agreement; minimum requirements.

§ 146-48 Extent of grant of a franchise; wireline system and service.

§ 146-49 Term of a franchise.

§ 146-50 Service area.

§ 146-51 System or service expansion.

§ 146-52 Application for franchise.

§ 146-53 Franchise fees.

§ 146-54 Rent or right-of-way use and occupancy fee.

§ 146-55 Assignment, transfer or sale of franchise.

§ 146-56 Default of franchise; revocation, termination or cancellation of franchise.

§ 146-57 Compliance and performance evaluations.

§ 146-58 Rates and charges.

§ 146-59 Interconnection.

§ 146-60 Fines and penalties.

§ 146-61 Notice of violation or failure to comply; hearing.

§ 146-62 Complaint procedures.

Article II Wireless Telecommunication Facilities

§ 146-63 Purpose and legislative intent.

§ 146-64 Title.

§ 146-65 Severability.

§ 146-66 Definitions.

§ 146-67 Overall policy and desired goals for special use permits.

§ 146-68 Special use permit application and other requirements.

§ 146-69 Location of wireless telecommunications facilities.

§ 146-70 Shared use of wireless telecommunications facilities and other structures.

§ 146-71 Height of telecommunications tower(s).

§ 146-72 Visibility of wireless telecommunications facilities.

§ 146-73 Security of wireless telecommunications facilities.

§ 146-74 Signage.

§ 146-75 Lot size and setbacks.

§ 146-76 Retention of expert assistance and reimbursement by applicant.

§ 146-77 Exceptions from a special use permit.

§ 146-78 Public hearing and notification requirements.

§ 146-79 Action on an application for a special use permit.

§ 146-80 Recertification of a special use permit.

§ 146-81 Extent and parameters of special use permit.

§ 146-82 Application fee.

§ 146-83 Performance security.

§ 146-84 Reservation of authority to inspect wireless telecommunications facilities.

§ 146-85 Annual NIER certification.

§ 146-86 Liability insurance.

§ 146-87 Indemnification.

§ 146-88 Fines and penalties.

§ 146-89 Default and/or revocation.

§ 146-90 Removal of wireless telecommunications facilities.

§ 146-91 Relief.

§ 146-92 Periodic regulatory review by the Board.

§ 146-93 Adherence to state and/or federal rules and regulations.

§ 146-94 Conflict with other laws.

§ 146-95 Authority.

[Adopted 9-7-1999 by L.L. No. 1-1999]

§ 146-1 Title.

This article may be known and cited as the "Wireline Telecommunications System Law (WTS Law) for the Town of Olive, New York."

§ 146-2 Construal of provisions.

This article shall be construed in accordance with applicable federal and state laws and rules governing wireline telecommunications systems and broadband services, including, but not limited to, those known as cable systems and cable operators who provide cable service and open video systems. With respect to the operation of cable systems, the provision of cable service and open video systems, this article shall be construed in accordance with any applicable rules and regulations of the Federal Communications Commission and the Public Service Commission, or any successor agency or authority.

§ 146-3 Scope.

This article shall apply within the geographical limits of the town, including any areas subsequently annexed by the town, unless state law prescribes otherwise, or unless state law in some fashion restricts or alters the effect of this article to a subsequently annexed area of the town.

§ 146-4 Definitions.

For purposes of this article, and where not otherwise inconsistent with the context of a particular section, the defined terms, phrases, words, abbreviations and their derivations shall have the meaning given in this section. When not inconsistent with the context, words in the present tense include the future tense, words used in the plural number include words in the singular number, and words in the singular number include the plural number. The words "shall" and "will" are always mandatory and not merely directive.
ABANDONMENT
The cessation of use of a system and the provision of any service by or using the system, or any portion of the system, or any component, facility or equipment of the system or service in the town for a period of time greater than 60 consecutive days.
ACTIVATED
The ability to deliver any type of service using the system, or otherwise using the system to transmit and provide service.
ACTIVATED CHANNEL
A channel engineered for the provision of services generally available to residential subscribers or users of service using the system, regardless of whether such services are actually provided, including any channel designated for video programming service or multichannel video programming, including any channels used for public, educational or governmental access.
ADMINISTRATOR
The individual or organization designated by the Town Board to act as the technical and administrative liaison or representative of the town, the subscriber or users, and the public in the town, in matters related to the provision of this article, and any franchise as defined in this section. The Administrator may be designated as the point of contact for all matters under this article and that relate to a franchise or a system owner or operator or service provider. If designated, unless specifically directed otherwise by the Town Board, it shall at all times be presumed that the Administrator is acting as the Town Board's designee and under the Board's direction.
AFFILIATE
When used in relation to any person, another person or entity who owns or controls, is owned or controlled by, or is under common ownership or control of such person.
APPLICANT
A person or legal entity submitting an initial application or proposal to the town for a franchise to operate a system or to provide service under the terms and conditions set forth in this article and in any franchise and in compliance with any state rules or regulations.
APPLICATION OR PROPOSAL
For the purposes of this article are synonymous and mean the documents submitted, and on which the town is intended in good faith to rely on, for the purpose of being granted a franchise by the town. An application or proposal shall be deemed to include all written representations and supporting documentation submitted by an applicant to the town for the purpose of being granted the privilege to occupy or use the town's property or rights-of-way for commercial purposes as intended under this article.
ASSIGNMENT or TRANSFER
The act of changing the person or entity who has ultimate control of the franchisee, the system or the franchise, whether such control is direct or indirect. Transfer or assignment is deemed to be any change in control, in whole or in part, whether by sale, assignment, merger, consolidation, lease or other form of alienation, or any change in the ultimate legal or financial control of the person or entity granted a franchise.
ATTRIBUTABLE
To be regarded as produced by or originating with the operation of the system or the provision of service in the town.
BOARD or TOWN BOARD
Town Board for the Town of Olive, New York, which is the legislative body for the Town of Olive, New York. For purposes of clarification, the Town Board is the franchising authority for the Town of Olive, New York.
BROADBAND
A technology having a capacity of more than 28.8 Kilobits per second of bandwidth.
CABLE ACT or CCPA
The Cable Communications Policy Act of 1984, as amended by the Cable Television Consumer Protection Act of 1992 and the Telecommunications Act of 1996.
CABLE OPERATOR 
Any person or group of persons who:
A. 
Provides cable service or video programming service over a system and, whether directly or through one or more affiliates, owns a significant or attributable interest in such system; or
B. 
Who otherwise controls or is responsible for, through any arrangement, the management and operation of such a system.
A. 
The one-way transmission to subscriber or users of subscription video programming or other programming service; and
B. 
Subscriber or user interaction, if any, or any other function which is required for the selection or use of such video programming or other programming service.
CHANGE IN CONTROL or CHANGE OF CONTROL
Synonymous terms for the purpose of this article and mean any change in the control of the system, system owner or operator, or service provider, as "control" is defined in this section.
CHANNEL
A band or group of frequencies in the electromagnetic or light spectrum, including the radio frequency spectrum, using any other means of wireline transmission, including, without limitation, wires, cable, optical fibers, or any functional equivalent, which has the ability to carry a video signal in the National Television Systems Committee (NTSC) or functionally equivalent format, or in any format devised or approved in the future by the Federal Communications Commission (FCC), or an audio, voice or data signal. All video channels shall include their vertical and horizontal blanking intervals and all information contained therein, all other components of the video signal, all aural components of the signal, including sub-carriers, and all closed-captioning intended for reception by the hearing impaired and others. Such shall be transmitted and provided to subscribers or users on the system, unless the operator deletes them in accordance with FCC, copyright and other applicable rules.
COLLECTION CHARGE
A charge or fee assessed on a user or subscriber for efforts or attempts to collect a past due and/or delinquent account.
COMMERCIAL IMPRACTICABILITY or COMMERCIALLY IMPRACTICABLE
The same meaning in this article and any franchise or other use, occupancy or operating authority as is defined and applied under the United States Uniform Commercial Code (UCC).
COMPLAINT
Any verbal or written claim of dissatisfaction or problem with a system or service, and which requests or requires corrective action or remedy, and shall also include any necessary investigation subsequent to a complaint, and any research and/or additional service call or work activity.
A. 
With respect to any construction, reconstruction, rebuilding, upgrading or repair of the system that in each instance:
(1) 
Attachment strand, if necessary, has been put in place for aerially serviced areas, and all needed cable or fiber has been securely and properly lashed to such strand; or
(2) 
All cable or fiber has been placed correctly in trenches in areas serviced underground as required by applicable code and this article, the trenches have been refilled, all disturbed road surfaces have been restored as required, and all landscaping restoration has been completed as required;
(3) 
All amplifier housings and modules, all fiber nodes and all other active and passive devices necessary for the operation of the system and the provision of service have been installed, including modules for return path signals if bidirectional activation has been proposed or committed to;
(4) 
Primary and backup/standby power supplies, as required, have been installed and operate properly;
(5) 
All bonding and grounding as required have been completed;
(6) 
Construction, reconstruction or upgrading of all headends, hubs and nodes, as applicable, have been completed, and all necessary processing equipment has been installed therein and is functioning as required; and
(7) 
Any and all other construction, reconstruction or upgrading necessary for the system to deliver service to subscribers or users have been completed, including in the case of a rebuild or upgrade of the system, the replacement of drops to each and every subscriber or user unit passed if such is either needed or proposed, pursuant to the plans, specifications, representations and commitments submitted to and approved or accepted by the town.
B. 
All required testing has been completed successfully on each new or technologically upgraded portion of the system, and shall demonstrate compliance with all applicable FCC and PSC technical rules to the town's satisfaction, including, but not limited to, "proof-of-performance" tests as may be appropriate or required, unless the town is expressly prohibited by law or rule from requiring such demonstration. Services provided to any segments of the system in the town will be activated only when the required testing has been done and the system operates as required, and never before.
C. 
No significant construction, reconstruction, upgrade or rebuild of any portion of a system providing video programming service will be considered complete until "proof-of-performance" tests have been conducted on such portion or segment (or in the case of the entire system, on all segments of the system), and all channels are in compliance with the signal quality requirements of the FCC's technical rules. Any performance characteristics of any segment which are found not to comply with said technical standards must have been corrected before construction is deemed complete.
D. 
The term "completion," in relation to the construction, reconstruction, upgrade or rebuild does not include the marketing and installation of subscriber or user service.
E. 
Any construction, reconstruction, upgrade or rebuild shall not be deemed complete unless and until the system is capable of delivering all services to all addresses in any area being constructed, reconstructed, upgraded or rebuilt. If applicable, any construction, reconstruction, upgrade or rebuild shall not be deemed complete until the wreck-out or removal of the old segments of the system has been completed to the reasonable satisfaction of the town.
CONSUMER
See definition for "subscriber or user."
CONSUMER PROTECTION
Regulations intended to protect the subscriber or user in relation to receiving that for which the subscriber or user is paying for, including representations made by the service provider or system owner or operator with respect to service, and that create expectations on the part of the subscriber or the user and on which the subscriber or user relies in good faith. "Consumer protection" also includes the regulation of practices involving payments by the subscriber or user, including, but not limited to, the intended use of such payments as in the case of security deposits, and practices or policies regarding disconnection and collection of moneys owed.
CONTROL
The person or entity holding legal or financial control of or over the holder of the franchise or the service provider, regardless of whether such control is direct or indirect, or is exercised or is permitted to be exercised directly or indirectly through other persons, holdings or entities. Control shall always be deemed to rest in the hands of any person or entity that has the right or authority to establish or change any policy or practice of the holder of the franchise or the service provider, whether such control may be exercised directly, or indirectly through other persons, holdings or entities.
CUSTOMER
A subscriber or user of any service and/or facility of the system or service provider.
A. 
With respect to the provision of any service, any visibly or audibly noticeable and objectionable degradation of the signal or service, including the partial loss or degradation or disruption of picture, sound, voice or data, regardless of the duration of such degradation or disruption.
B. 
With respect to video programming services, "diminution of signal" may be deemed as the presence of snow, lines, bars, ghosting, static, electronic noise, audio external to the service or any other objectionable and visually or audibly discernible disruption or interference, or other manifestation not contained within the signal received by the service provider or system owner or operator, or prior to its introduction or entry into the system, which leads to or causes the quality of signal received to be unusable, inconsistent, erratic, objectionable or unreliable. As diminution of signals can occur even when the system is in compliance with FCC's technical standards, the subscriber or user shall be the primary determiner of whether a diminution of signals is being experienced, so long as the manifestation is visually or audibly discernible without magnification or amplification other than eye glasses.
C. 
For the purposes intended under this article, situations involving matters of a force majeure nature or cause shall not be deemed a diminution of signal.
DISASTER EMERGENCY
An imminent, impending or actual natural or humanly-induced situation wherein the health, safety or welfare of the residents of the town is threatened. By way of illustration, a disaster emergency may include a severe climatic or meteorological storm, dam failure, flood, tornado, hazardous waste infiltration, fire, petroleum or chemical spill, explosion, vehicle accident of significant effect or aircraft crash.
DOWNGRADE
A change in the level of a subscriber's or user's service from a more comprehensive and/or expensive level of service to a less comprehensive and/or less expensive level of service.
EASEMENT
Any compatible use easement, whether created by dedication to the town or by other means, for public utility purposes or any other purpose primarily benefiting the general public. "Easement" shall also include a private easement granted by a private property owner for the same or similar purposes.
EQUIPMENT
Equipment supplied by the system owner or operator or service provider which is used to provide, enhance or assist in the reception or provision of service.
FCC
The Federal Communications Commission and/or such other federal regulatory agency as in the future may have jurisdiction to oversee the operation of service providers and their systems.
FCC TECHNICAL RULES
The technical rules and standards of the Federal Communications Commission as set forth in Part 76, Subpart K (Technical Standards) of the FCC's Rules, 76 CFR §§ 76.601 et seq., as amended from time to time.
FIBER or FIBER CABLE or FIBER OPTIC CABLE
Thin pliable cylinders or strands of glass or plastic, or any future functional equivalent, that is used to carry wide bands of multiple frequencies.
FRANCHISE
The document of authorization granted by the town, regardless of the type of authorization, whether such authorization is a use, occupancy or operating authority, that permits a person to occupy and use the town's property and rights-of-way for commercial purposes as intended under this article, including to construct, operate, rebuild, replace, upgrade, maintain and repair the system, and to provide service in the town. A franchise shall also include as an inseparable part any application or proposal for a franchise, and any information contained therein on which the town is intended to rely. The particular type and scope of franchise, and any distinction between any type of franchises, may be dependent upon the scope of authority the town has over a given type of system owner or operator or provider of service.
FRANCHISE AGREEMENT
The agreement or contract which the town and a system owner or operator or a service provider enter into, and that specifies the contractual agreements or commitments between the parties, and which may also serve as a franchise granting the authority to own and operate a system or provide service within all or a part of the town by using or occupying the town's property or rights-of-way in accordance with the town's franchising authority and any other authority, including its police powers. Subject to applicable law, rule and regulation, a franchise agreement may be different in scope and content from other permissible types of grants of authority by the town.
FRANCHISEE
Any system owner or operator or service provider that has been granted a valid franchise by the town, and that is subject to the town's regulatory authority as set forth in this article and applicable state law, rules or regulation.
FRANCHISE EXPIRATION or FRANCHISE AGREEMENT EXPIRATION or EXPIRATION
The date of the end of the term of the document that granted authority to use and/or occupy the town's property or rights-of-way for commercial purposes, including the operation of a system or the provision of service.
FRANCHISE FEE
A fee charged a service provider or system owner or operator by the town for the cost of administering the franchise.
FRANCHISING AUTHORITY
The Town Board of the Town of Olive, New York.
A. 
Something that:
(1) 
Is used or is intended to accomplish the same purpose;
(2) 
Has the same or substantially similar characteristics, qualities and capabilities;
(3) 
Operates or functions in substantially the same form and fashion; or
(4) 
Operates or functions in a superior manner.
B. 
With respect to matters not involving equipment, the term also means something that equates to or is intended to effect the same or a substantially similar outcome or function in effectively the same manner or for the same purpose.
GRANDFATHER or GRANDFATHERED
To retain or preserve a right, privilege or authority held, so long as the retention or preservation is expressly stated.
GROSS REVENUE
For any period of time, any and all revenues or other valuable consideration of any kind which are derived from the operation of the system and/or the provision of service within the town, and that are attributable to or occasioned by the grant of the franchise, regardless of the corporate or organizational relationship of the recipient of the revenue with the owner or operator of system or the service provider.
A. 
The following, but only the following, shall not be deemed a part of gross revenue:
(1) 
Bad debts attributable to the provision of service within the town in the normal course of its business that, if booked, are actually written off; provided that subsequent recovery of bad debts previously deducted shall be included in gross revenue in the next reporting/payment period; and
(2) 
Refunds actually paid to subscribers or users.
(3) 
With respect to service providers classified as cable operators, gross revenues shall also not include any revenue expressly exempted by the Cable Act of 1984 or by state law. For any revenue that an owner or operator of a system or a service provider seeks to have exempted from this definition of "gross revenue," such person shall have the burden of proving to the town that any such excluded revenue is expressly exempted by the federal law, state law, a final or unappealed federal or state judicial ruling by a court of competent jurisdiction, or by specific FCC ruling. Including, but not limited to, the preceding, gross revenues shall not include the following:
(a) 
Any tax of general applicability imposed upon a franchisee or other service provider or an owner or operator of a system, or upon subscribers or users of any service or system by state or federal governmental agency and that is required to be collected by the system owner or operator or the service provider and is remitted to the taxing entity (including, but not limited to, property taxes, user taxes, service taxes and communications taxes), provided such taxes are identified as a separate line item on subscriber or user bills or statements;
(b) 
Any revenue received by a service provider or an owner or operator of a system from any third party for revenue not attributable, in whole or in part, to the operation of its system or the provision of service in the town, and which does not use or rely upon the use of the system or service; and
(c) 
Any revenue which a service provider or an owner or operator of a system chooses not to receive in exchange for the provision of free or reduced cost services. notwithstanding the preceding, the value of any exchange for trade or barter or other items of value shall be included in gross revenues.
B. 
In computing gross revenues from sources other than subscriber or user or service revenue where it is not practicable to isolate the amount specifically derived from within the town, and that is attributable to the grant of a franchise, or the operation of a system or the provision of service both inside the town and outside the town, the total or aggregate revenue received from such sources shall be computed as follows:
(1) 
Said revenues shall be multiplied by a fraction, the numerator of which shall be the number of subscribers or users in the town as of the last day of the required payment period and the denominator of which shall be the number of subscribers or users within all areas served by the franchisee or other service provider or the owner or operator of a system as of the last day of the required payment period. The result shall then be multiplied by the percentage used to compute the required fee that is assessed as a percentage of revenue. For purposes of example only, the following are types and sources of revenue intended to be included in gross revenues in such situations, regardless of the familial or organizational relationship of the recipient of the revenue with the system owner or operator or service provider:
(a) 
The sale or rental of subscriber or user lists;
(b) 
The sale of advertising;
(c) 
Payments from programmers and shopping services;
(d) 
Commissions or bonuses of any kind from vendors or programmers that are attributable to the grant of authority under this article;
(e) 
Rebates from programmers and vendors of any kind for services that are attributable to the grant of authority under this article;
(f) 
Viewing guide sales, including electronic guides;
(g) 
The lease or sale of channel capacity;
(h) 
Payments or commissions from `900' phone numbers advertised on the service or system; and
(i) 
Interconnection charges or income.
HEADEND
The electronic control center where incoming signals are received, regardless of the form of reception or the type of signal, and are amplified, modulated, filtered, converted or in any way processed for distribution to subscriber or users.
IMPRACTICABLE
When used in a noneconomic or nonfinancial or noncommercial context, shall have the meaning ascribed in the most current edition of Webster's Encyclopedic Unabridged Dictionary of the English Language.
INITIAL ACTIVATION or INITIALLY PROVIDING SERVICE or THE INITIAL PROVISION OF SERVICE
With respect to a particular portion, part or segment of the system, or group of segments, or the entire system, that all services and system capabilities, as stated in a franchise, or in any application or proposal for franchise, are available and usable, and that the construction, reconstruction, rebuild or upgrade has been completed and the completed segment(s) of the system involved, or the entire system, is capable of actually delivering the services intended to each and every subscriber or user and residence or business in each segment, pursuant to the plans and specifications as may have been approved, accepted or relied upon in good faith by the town.
INSTALLATION CHARGE OR CONNECTION FEE
That charge or fee imposed on a subscriber or user for the initial installation or reconnection of service, or the relocation of equipment necessary to obtain or use services or the system.
INTERNET
That interconnected combination of networks that evolved from the original ARPANET experiment and the National Science Foundation subsidized Internet and the interconnection of networks that provides user-to-user or address-to-address communications services, broadband service, other programming services or data services.
INTERNET ACCESS
The availability of access of the Internet to a subscriber or user and the service that enables a subscriber or user to use the Internet.
LATE CHARGE
A charge which is added to a subscriber's or user's account or bill for late payment or nonpayment of a previously due and currently delinquent amount. An administrative charge imposed because of a late payment is deemed the same as a late charge.
LAW
The Wireline Telecommunications Law for the Town of Olive, New York.
LEASED ACCESS CHANNEL
The channel capacity that a system owner or operator or service provider, including a cable operator or open video system operator, has designated for use by commercial users and that is not affiliated with the system owner or operator or service provider, pursuant to Section 612 (at 47 U.S.C. 532) of the Communications Act of 1934, as amended.
LINE EXTENSION
An extension of the system requiring additional trunk or feeder cable, or both, fiber optic cable, active electronic equipment to amplify the signal, or an additional fiber node, but does not include individual service drops beyond 200 feet that may require additional feeder cable or the functional equivalent of such.
LOCAL ORIGINATION PROGRAMMING
Programming produced locally by or for a service provider or system owner or operator for carriage on the service provider's or system owner's or operator's system.
LOSS OF SERVICE or SERVICE OUTAGE
The inability to receive the service subscribed to that is caused by, attributable to, or occasioned by problems with the operation of the system or the provision of service, and which is not caused by the failure or malfunction of a subscriber's or user's equipment, or by the misfeasance or malfeasance of the subscriber or user.
A. 
A service outage involving video programming service shall mean the loss of voice, audio and/or video service, regardless of the level, tier or increment of service so as to make that service effectively unusable in the normal and usual sense of being able to enjoy or otherwise use or view such.
B. 
More than one instance of a loss of service from the same portion of the system or that affects the same address or addresses within the town that occurs within a twenty-four-consecutive-hour period shall be deemed a single, continuous loss of service.
NODE or FIBER NODE
That facility at which signals are received in light-wave form and transmitted, retransmitted, relayed or otherwise provided to other portions of the system in light-wave form or are converted to RF signals or a functional equivalent type of signal and are transmitted, retransmitted, relayed or otherwise provided to other portions of the system in the town, or elsewhere outside the town.
NONRENEWAL
Not granting a new franchise to an incumbent system owner or operator or service provider to operate a system or provide service within the town.
NORMAL OPERATING CONDITIONS
Those conditions which are reasonably within the control of the system owner or operator or service provider with respect to the operation, maintenance and repair of the system and the provision of service within the town.
A. 
Those conditions which are not within the control of the system owner or operator or service provider include labor strikes, sabotage riots or civil disturbances of a disastrous nature and effect, explosions, acts of public enemies, unusually severe or catastrophic weather conditions, natural disasters as declared by appropriate government officials, fires and widespread commercial power failures that exceed the capabilities of the backup or standby power supplies and capability of the system.
B. 
Those conditions which are expressly deemed to be within the control of the system owner or operator or service provider include, but are not limited to, financial situations other than the declaration of bankruptcy or insolvency, marketing promotions, loss of standby power up to the period of time for which the manufacturer has rated the standby power unit to operate, rate increases, regular or periodic periods of high demand with respect to labor-intensive functions, the regular inspection and maintenance of the system, required testing of the system, the timely remedy of safety and other code violations and the timeliness and technological design with respect to any upgrade of the system.
OTHER PROGRAMMING OR COMMUNICATIONS SERVICES
Information or service that a system owner or operator or service provider makes available to all subscribers or users generally, including, but not be limited to, video, telephony and other voice services and the transmission of data.
PAY-PER-VIEW or PREMIUM CHANNEL or PREMIUM SERVICE
The delivery of audio and/or video signals for a specific one-time charge on a per-event, per-program or per-channel basis over and above the rate for regular subscription service.
PEG
Public, educational and governmental.
A. 
Channel capacity designated for public, educational or governmental use; and
B. 
Facilities and equipment for the use of such channel capacity.
PEG PROGRAMMING
Programming produced or aired by a governmental entity, a member of the educational community or the public at large using the channel(s) dedicated to or used for the provision of PEG programming.
PERSON
Any individual, corporation, entity, estate, trust, partnership or any association of two or more persons or entities having a joint common interest or a joint-stock company.
PRIMARY SERVICE AREA
That portion of the town required or committed to be built and operated under a franchise.
PROPERTY
All the property owned, installed, rented, leased or used by a system owner or operator or service provider holding a franchise granted under or otherwise subject to this article that is utilized in the operation of the system or the provision of service in the town.
PROPOSAL or APPLICATION
A written request to use or occupy the town's property and rights-of-way for the purpose of constructing, operating, maintaining or repairing a system or to provide service in the town using the public property and rights-of-way of the town.
PSC
The Public Service Commission of the State of New York, or any successor agency or Commission.
RATE
The periodic price paid by a subscriber or user for the receipt of any service provided by a system owner or operator or service provider or the use of the system by a user.
RENT
The compensation paid to the town by a system owner or operator or service provider for the occupation and use of the public property and rights-of-way of the town for commercial purposes.
REVOCATION or TERMINATION or INVOLUNTARY TERMINATION
An official act by the Town Board that removes, repeals or rescinds any franchise and authority to operate a system or provide service in the town that is granted under or is subject to this article.
SCHEDULED OUTAGE
Any planned service interruption or diminution of signals for which the town and subscribers or users are required to be, and have been, notified in advance, and that does not exceed four hours duration for any given address.
SERVICE
Any service that is provided by means of a system that is not precluded or preempted from compliance with this article by federal or state law, rule or regulation, and shall include any service, use or other activity provided for commercial purposes that uses or is provided by means of the use of the system, regardless of the technology employed, and specifically including service employing broadband technology.
SERVICE INTERRUPTION
The loss of any service or incremental level of service, or separately priced service such as any service offered on a per-channel, per-event or per-showing basis, or any other services that are delivered or provided by means of or that use a system or any components or the system.
SERVICE PROVIDER
Any person who provides service using a system that occupies or uses the town's property or rights-of-way using broadband technology or otherwise providing service using a system as defined in this section and who owns a significant or attributable interest in the provider of such service or in the system; or who, through any arrangement, otherwise controls or is responsible for the management and operation of a service or system in the town, or who has the authority to establish or change policy, or order the establishment or change of policy with respect to the provision of service or the system within the town.
SERVICE TIER or BILLING INCREMENT
A category of service provided by a service provider for which a separate rate is charged.
SIGNIFICANT INTEREST or ATTRIBUTABLE INTEREST
Any person or entity who directly or indirectly holds or owns a five-percent interest or ownership position in a system, or the holder of a franchise permitting the construction and operation of a system or the provision of service in the town.
SMATV
Satellite master antenna television.
SMATV OPERATOR or SATELLITE MASTER ANTENNA TELEVISION OPERATOR 
Any person or group of persons who:
A. 
Provides service over a SMATV system; or
B. 
Otherwise controls or is responsible for, through any arrangement, the management of a SMATV system.
SMATV SYSTEM
A private system that does not cross or in any manner use any public or town-owned property or rights-of-way, and which is located entirely on private property and serves only private dwellings.
STATE
The State of New York.
STREET
The surface of, and the space above and below, a public street, path or thoroughfare designated for vehicular and/or pedestrian traffic, or other easement now or hereafter held by the town, and includes any sidewalks or other paved pedestrian ways and any public or town-owned rights-of-way.
SUBSCRIBER
A person lawfully receiving service delivered by a system owner or operator or a service provider.
SUPERVISOR
The Supervisor of the Town of Olive, New York.
TECHNICAL VIOLATION
A violation of this article or any franchise that is of de minimus negative effect on the town or the public and that is not repeated after notice by the town. Notwithstanding the preceding, a history or repeated pattern of the same or similar technical violations shall not be deemed a technical violation.
TELECOMMUNICATIONS SYSTEM or SYSTEM 
A facility consisting of a set of closed transmission paths and associated facilities and equipment that is designed to provide service of a commercial nature, which includes the transmission of video, voice and data, or any combination of such transmissions, and voice-activated or electronic ordering capability or other uses or services which are provided to subscribers or users within the town, including the provision or use of data used to maintain and operate the system. However, "telecommunications system" or "system" does not include the following:
A. 
A facility that serves only to retransmit the television signals of one or more broadcast stations;
B. 
A facility that serves only subscribers or users in one or more multiple unit dwellings under common ownership, control or management, unless such facility occupies or uses any town-owned property or town rights-of-way for the provision of service or to generate revenue for commercial purposes, in which case it shall be deemed a system;
C. 
A facility of a common carrier which is subject to the provisions of Title II of the Communications Act of 1934, as amended, but only to the extent that such exemption relates to the services provided at the time the operating authority was originally granted, or that state or federal law, rule or regulation expressly exempts from compliance with this article; or
D. 
Any facilities of any electric utility used solely for operating its electric utility.
TOWN
The Town of Olive, New York.
TRANSFER
Any change in the ownership or legal or financial control of the entity granted a franchise to any person or legal entity that directly, or indirectly through another person or legal entity, has financial or legal control over the holder of the franchise granted by the town, and who may order the establishment or change of policy as regards the operation of the system or the provision of service within the town. For purposes of this article, a merger or consolidation of any kind shall be deemed a transfer, unless the possessor of the ultimate authority over the holder of the franchise will not change. Any instance where the approval of the FCC or the PSC is required to affect a change in ownership or control shall also be deemed a transfer.
TRANSFEREE
The new holder of a franchise or other use or operating authority as approved by formal action of the Town Board.
U.S.C.
United States Code.
USER
A person utilizing a system and/or its equipment, facilities or capabilities for purposes of advertising, program production and/or the transmission of material, as contrasted with the receipt thereof in the capacity of a subscriber.
VIDEO PROGRAMMING
Programming generally considered comparable to programming historically provided by a television broadcast station or satellite distributed video programmer that is intended for mass reception. Further, "video programming" means a service whose use and value is largely determined by being able to be viewed.
VIDEO SERVICE
The provision of cable television service or video programming service or other video subscription service.
WIRELESS or WIRELESS SERVICE
Any service that is transmitted through the air, whether employing microwave, radio frequency or a functionally equivalent technology. Programming from AM or FM radio broadcast stations shall not be deemed wireless service.
WIRELINE or WIRELINE SERVICE
A system or service that is provided through a wire, line, cable, fiber or any functionally equivalent closed system. A franchise for wireline service shall not automatically or inherently include the authority to carry, transport or transmit wireless service. In order for a wireline telecommunications franchise to carry, transport or transmit wireless service, the franchise must expressly grant permission to do so.
WORKDAY or WORKING DAY
Those days when the majority of retail businesses in the town are customarily open for business.
WRECK OUT
In the context of and with respect to any construction, rebuild, upgrade, modification or maintenance activity of a system, the removal of the old cable, wires, parts and components of any portion of the system not currently and actively used in the provision of service in the town.

§ 146-5 Administration; delegation of powers and authority.

A. 
The Supervisor is hereby designated the individual responsible for the continuing administration of this article and matters related to the operation of wireline systems or providers of service employing broadband technology in the town that use or occupy the property of the town or the town's rights-of-way for such purpose.
B. 
Unless expressly prohibited by federal, state or local law, the Town Board or the Supervisor may further delegate to a duly authorized representative the right and authority to assist in the administration of this article or a franchise that authorizes the construction, operation and maintenance of a system or a service provider's facilities.
C. 
Unless expressly prohibited by federal, state or local law, the Town Board is hereby authorized, at its sole discretion, to create an appointed advisory Board, commission or committee whose purpose shall be to handle issues concerning service and service providers subject to this article. If such a Board, commission or committee is created, then a separate resolution shall be adopted wherein the precise powers and authorities of the Board, commission or committee shall be outlined.
D. 
Notwithstanding anything in this section, the Town Board may never delegate its initial or renewal franchising, licensing or permitting power, or power of revocation or termination of such, or any right or authority it may have to impose or assess fines and/or penalties under this article, to another person or representative, advisory Board, commission or committee.

§ 146-6 Applicability of this article to a service provider or system owner or operator.

A. 
Systems owners or operators and service providers who use or occupy the town's property or rights-of-way and who are not expressly exempted from compliance with this article by prior state law are subject to and shall be governed by the requirements and provisions of this article and any amendments thereto. Also subject to certain requirements and provisions of this article and any amendments thereto are service providers and owners or operators of systems not otherwise subject to local franchising authority, but who are not expressly exempted by applicable law, rule or regulation from compliance with applicable local regulatory laws or ordinances, including, but not limited to, those that govern the use and occupancy of the town's property and rights-of-way.
B. 
The authority of the town to regulate any precluded or preempted service provider or system under certain portions of this article shall not exempt such persons from the requirements of this article involving the regulation of the construction, operation and maintenance of the system or its facilities as such relate to the protection of the health, safety and welfare of the public under the construction, safety and safety-related requirements of this article.
C. 
Any service provider or any system owner whose original grant of authority to use and occupy the town's property or rights-of-way for commercial purposes that did not expressly grant the right to provide service as defined in § 146-4 of this article shall be deemed subject to the provisions of this article, except to the extent that the provision of any service provided under the original grant of authority to use and occupy the town's property rights-of-way for commercial purposes, as expressly set forth therein, is exempted or grandfathered with respect to being used to determine payments or fees to the town as required and permitted under this article.
D. 
In the event of any conflict or ambiguity between the requirements of this article and any amendments thereto, and any franchise subject to this article, or any amendments thereto, this article shall control, unless the requirement or provision is expressly preempted by federal or state law, rule or regulation, or unless the issue expressly addressed in the franchise in the context of relief from this article. Any relief or variance from the provisions of this article shall be granted in accordance with § 146-7 of this article, and such relief or variance shall be expressly set forth in any franchise agreement.
E. 
This article shall not be deemed to, nor shall it change, impair or repeal any franchise, agreement or contract granted prior to the effective date of this article to the extent that such expressly contains a lesser or less stringent obligation, requirement or commitment, nor shall this article change the provisions of those terms, conditions and commitments that are expressly enumerated in the existing franchise agreement or contract as the expressly stated intended purpose and use of the town's property or rights-of-way with respect to the service provided.
F. 
When a franchise agreement, contract or use and occupancy authority granted prior to the effective date of this article is silent on a matter addressed in this article, and absent express language in the franchise agreement, contract to the contrary, or limiting the town's right to adopt additional regulatory requirements of effect on that system owner or operator or service provider, the applicable provisions of this article shall apply.
G. 
With respect to a service provider or system owner or operator holding a franchise agreement, contract or use and occupancy authority granted prior to the effective date of this article, this article shall be in effect upon the expiration of the existing franchise agreement, contract or use and occupancy authority, or when one of the following occurs:
(1) 
Prior to the expiration date of a franchise, and at the request of the holder of such, the document is amended;
(2) 
Both parties agree to a specific date for the expiration date which is prior to the expiration date in existence on the date of adoption of this article; or
(3) 
A court of competent jurisdiction orders that an existing service provider or system owner or operator become subject to all, or any part or provision, of this article, or finds that a service provider or system owner or operator is not exempt from all, or any part or provision, of this article.
H. 
Any service provider or system owner or operator shall be required to comply with the safety requirements and provisions of this article, unless the agreement, contract or use and occupancy authority granted prior to the effective date of this article states otherwise.
I. 
Unless a franchise agreement, contract or use and occupancy authority granted prior to the effective date of this article states otherwise, all system owners or operators or service providers shall abide by the construction and construction-related requirements and provisions of this article when performing any construction, rebuild, upgrade, repair, change or replacement of equipment or facilities.
J. 
With respect to provisions classified as consumer protection, such requirements and provisions shall be complied with by any service provider and owner or operator of a system operating in the town, unless:
(1) 
The provision or requirement is expressly preempted by the force of a superseding state or federal law, rule or regulation; or
(2) 
A court of competent jurisdiction has deemed the provision or requirement impermissible or unenforceable by the town.
K. 
Unless the existing franchise contains either more stringent requirements, or contains specific language precluding, preempting or excluding the town's right to enforce the consumer protection provisions of this article under the existing franchise, any service provider or system owner or operator that is operating a system or providing service as of the effective date of this article shall abide by the consumer protection provisions of this article no later than 60 days after the effective date of this article.
L. 
All other provisions contained within this article shall be of full force and effect 30 days after the date of adoption of this article, unless the applicability of a particular provision is preempted by the force of a superseding federal or state law, rule or regulation, in which case the exemption extends only to the express extent of the federal or state preemption, unless the federal or state law, rule or regulation grandfathers the authority of the town to enforce such provisions, in which case the particular provision shall be enforceable.
M. 
Notwithstanding anything to the contrary in this section, unless otherwise expressly grandfathered in an existing franchise granted prior to the effective date of this article, in order to assure the protection of the health and safety of the public, any and all service providers or system owners or operators shall be subject to, and shall be required to comply with, all safety regulations, requirements and provisions of this article at all times, including:
(1) 
The latest edition of the National Electrical Code, including any amendments;
(2) 
The latest edition of National Electrical Safety Code, including any amendments; and
(3) 
Any other applicable safety and safety-related codes of the town, county or state as exist as of the effective date of this article or may be adopted.

§ 146-7 Seeking relief.

A. 
Any service provider or system owner or operator subject to the provisions of this article may file a written petition at any time with the Town Board seeking relief from one or more provisions of this article. A service provider or system owner or operator may specifically request exemption or relief from, or delay in implementation, of one or more provisions of this article, but only as to the petitioning provider, owner or operator.
B. 
In concert with the stated intent of the Telecommunications Act of 1996 to promote and facilitate competition, and so as not to hinder the development of competition, any service provider or system owner or operator may request that a specific provision of this article apply to such service provider or system owner or operator for a specified or limited length of time or duration, pending a determination of the effect of compliance on the system owner's or operator's, or service provider's, ability to compete effectively at the expiration of the period of time for which relief is granted. In the event that it is determined by the Town Board that the system owner's or operator's, or service provider's, ability to compete effectively is substantially hindered by compliance, relief shall be granted for the remaining term of the franchise.
C. 
Any petition submitted pursuant to this section shall set forth the relief requested and the reason and basis thereof, with such supporting information and material as may be applicable and as may be deemed necessary by the Town Board to enable an informed decision.
D. 
All requests for relief shall contain a clearly articulated explanation or rationale for each item or matter being requested. Any request submitted pursuant to this section that does not contain such information shall be deemed incomplete and returned to the petitioner without action.
E. 
In order to be granted relief from one or more of the provisions of this article, a service provider or system owner or operator must demonstrate to the Town Board with reasonable certainty that at least one of the following facts exist:
(1) 
The provision and/or requirement is expressly prohibited by federal law, the FCC, or state law, rule or regulation, including any specific rule or regulation of the PSC;
(2) 
Where applicable, that the provision in question negatively and materially affects the petitioner to the extent that the provision or requirement creates an insurmountable competitive disadvantage not permitted or contemplated under federal or state law, or is in substantial conflict with a right that is expressly stated in an existing franchise, but such relief shall only be for the term of the existing franchise. This provision specifically includes, but is not limited to, situations where a service provider or system owner or operator classified as a cable operator or open video system operator seeks, and is granted, modification of an existing franchise under Section 625 of the Cable Act (codified at 47 USC 545);
(3) 
That compliance with a particular provision and/or requirement will be commercially impracticable for the system owner or operator or service provider;
(4) 
That one or more time requirements listed in this article are either impracticable or impossible to meet;
(5) 
That the service provider or system owner or operator has its own policy which the Town Board deems comparable to, or better than, the provision or requirement from which the service provider or system owner or operator seeks relief; or
(6) 
That the health, safety and welfare and the legitimate and reasonable interests of the town and the public otherwise warrant the granting of such relief and will not be adversely affected to a significant extent.
F. 
The Town Board shall be the determiner of whether a request for relief has met one or more of the requirements of this subsection.
G. 
A service provider or system owner or operator may petition the Town Board at any time for clarification concerning the precise intent and effect that any provision or requirement of this article has on the petitioning service provider or system owner or operator.
H. 
In those instances where the Town Board grants an exemption or relief or deems a service provider's or system owner's or operator's operational policy to be comparable to, or better than, a provision of this article, then within 60 days of the grant of relief the franchise shall be formally amended to reflect the exact extent of such exemption and/or relief.
I. 
It shall be the responsibility of the service provider or system owner or operator to include with its request a proposed resolution of amendment setting forth the intended effect in a clear and unambiguous manner.
J. 
The benefit of any exemption or relief extends only to the service provider or system owner or operator granted such exemption or relief. Consequently, in the case of a transfer, assignment, change of control or sale of the system to a person without a record of performance in the town, the proposed transferee, assignee, controlling entity or buyer, if required by the Town Board, shall be required to petition separately for the any relief or exemption. This shall mean that unlike certain other amendments to a franchise, there shall be no automatic transfer of any exemption or relief to a transferee. However, any grant of comparable policy shall continue without the need for any additional approval or grant by the Town Board.
K. 
Any service provider or system owner or operator who petitions for or requests relief or exemption from any portion of this article whereby the primary beneficiary of the requested relief or exemption will be the petitioner and not the public or the subscribers, may, at the discretion of the Town Board, be required to reimburse the town for the actual, verifiable cost of processing and analyzing such request, since such cost is deemed an extraordinary cost to the town that would not normally be incurred in the course of administering a franchise. Such cost is thus not deemed a normal part of administering a franchise.
L. 
A requirement to reimburse the town pursuant to Subsection H of this section shall not apply to any request for relief or amendment of a franchise where the public or the subscribers will be the primary beneficiary, or where the granting of the request will eliminate an impermissible competitive disadvantage pursuant to Subsection B of this section.

§ 146-8 Failure of Town Board to enforce this article.

It being a reasonable assumption that responsible persons of good intent will comply with laws, and to prevent the town from having to constantly monitor compliance with each and every aspect of a service provider's or system owner's or operator's every action, a service provider or system owner or operator shall not be excused from complying with any of the requirements of this article, or any subsequently adopted amendments to this article, by any failure of the town on any one or more occasions to seek or insist upon prompt compliance with such requirements or provisions.

§ 146-9 Subject to present and future laws, ordinances and regulations.

A. 
Any service provider or system owner or operator, and its assignee or transferee, shall be deemed subject to and required to abide by all applicable laws, ordinances and/or regulations now or hereafter adopted and in effect within the town, including this article, to the extent that the service provider or system owner or operator has not been granted an exemption or relief from said law(s) and/or resolution(s).
B. 
Notwithstanding the preceding Subsection A of this section, in the event the Town Board amends this article and the amendment of the law would have the effect of either requiring the investment of substantial additional capital by the service provider or system owner or operator, or of unilaterally changing the process for default and/or revocation of a service provider's or system owner's or operator's franchise, or impairing the service provider's or system owner's or operator's franchise, then such amendment shall have no effect on the affected service provider or system owner or operator until the expiration of the franchise, subject to the provisions of § 146-6 of this article.
C. 
Notwithstanding Subsection B of this section, unless otherwise stated in a franchise, all service providers or system owners or operators shall be required to comply with any amendments of this article that regulate matters of consumer protection, safety or construction or construction-related matters, within 180 days of the effective date of the amendment, unless otherwise stated in the amendment or the franchise.

§ 146-10 Repeal of prior inconsistent regulations; effect on agreements.

Any prior resolution, ordinance or local law which, in part or in whole, is directly inconsistent with this article, is hereby deemed unenforceable to the extent of the inconsistency, but only as regards service providers or system owners or operators subject to this article.

§ 146-11 Resolution of inconsistencies with federal or state rules, regulations or laws.

In any case of an actual inconsistency between any provision or section of this article and any provision or section of a federal or state law, rule or regulation which expressly supersedes or preempts local authority on the matter, but only to the extent that it expressly does so, then the federal or state law, rule or regulation shall supersede the effect of the applicable provision of this article, and shall control in any local application, unless such federal or state law, rule or regulation does not preempt, supersede or make invalid the inconsistency.

§ 146-12 Resolution of conflicts between this article and a subsequently granted franchise.

A. 
Where there is a conflict, whether actual or perceived, between this article and a franchise granted subsequent to the effective date of this article, this article shall control, unless judicially determined to be invalid or unenforceable by a court of competent jurisdiction, or unless the provisions of Subsection B of this section apply.
B. 
Where a service provider or system owner or operator receives an exemption or relief from one or more provisions or sections of this article pursuant to § 146-7 of this article, or has one or more of its policies deemed comparable to or of more benefit to the town, the public or subscribers, than a provision contained in this article, the franchise shall expressly state such exemption, relief or comparable policy. To the extent that such an exemption, relief or comparable policy is both expressly contained in a franchise and is inconsistent with a provision contained in this article, then the exemption, relief or comparable policy language contained in the franchise shall control, but only to the extent expressly stated in the franchise.
C. 
Notwithstanding Subsection B of this section, any grant of exemption or relief shall be limited to the owner and operator of the system or the service provider as of the date of the grant of exemption or relief. Such grant of exemption or relief shall not be deemed to be, nor shall it be, automatically transferred along with any transfer or change in ownership or change of control of a franchise or franchisee. Any exemption or relief bestowed on a transferee shall always require a separate and formal act of approval by Town Board.

§ 146-13 Penalties and sanctions for violations.

A. 
Violations of this article shall be handled in the manner prescribed by applicable law.
B. 
To the extent permitted by state and local law, the Town Board reserves the authority to change the schedule of fines and/or penalties for violations of this article as may from time to time be deemed necessary, appropriate and permissible.
C. 
In instances where fines and/or penalties as set forth herein are applicable for a violation of this article, or for a breach of a franchise, then such fines and/or penalties shall operate as a separate and independent remedy for the town.
D. 
A service provider or system owner or operator shall not be subject to such fines and/or penalties in instances of force majeure, or for a technical violation, or for a breach of a franchise where such breach is of no or of de minimus effect on the town or the public, as determined by the Town Board.
E. 
A service provider or system owner or operator holding a franchise agreement shall be subject to default and/or revocation of such agreement for cause as set forth in this article.

§ 146-14 Effect of technical violation of law or franchise agreement.

Notwithstanding the provisions contained in § 146-60 of this article, a service provider or system owner or operator shall not be subject to penalties, fines, forfeitures, revocation or involuntary termination of a franchise for a technical violation of this article or a technical breach of a franchise. For purposes of this article, technical violations or breaches include the following:
A. 
Instances or matters where a violation of this article or, where applicable a franchise, was a good faith error that resulted in no negative impact on the residents, subscriber or users within the town, or on the town itself, or where such violation resulted in de minimus effect on any of the preceding persons or the town; or
B. 
Instances or circumstances that are reasonably beyond the control of a service provider or system owner or operator, including force majeure situations, and that prevent a service provider or system owner or operator from complying with this article or the franchise.

§ 146-15 Force majeure.

A. 
Notwithstanding any other provisions of this article, a service provider or system owner or operator shall not be held in violation, material breach, default or noncompliance of this article or a franchise, nor suffer any penalty related thereto, including, where applicable, involuntary termination, cancellation or revocation of a franchise, where such violation, breach, default or noncompliance occurred, and/or was caused by a natural disaster such as an earthquake, flood, tidal wave, hurricane or similar devastating act of nature, or any other event that is reasonably beyond a service provider's or system owner's or operator's ability to anticipate and control, or that is of a devastating nature or effect on the system. Force majeure situations shall also include strikes, riots, wars and armed insurrections, as well as work delays caused by waiting for utility providers to service or monitor their own utility poles on which a service provider or system owner or operator's cable, wires, facilities and/or equipment is attached, as such may be necessary for the service provider or system owner or operator to comply with this article.
B. 
Notwithstanding Subsection A of this section, as a matter of consumer protection, in the case of a force majeure situation a subscriber or user may be entitled to a refund or credit if the subscriber or user sustains a loss of service for a period of time that is in excess of that permitted under the provisions of this article.

§ 146-16 Notices.

A. 
The town, and each service provider or system owner or operator, shall provide the other party with the name and address of the individual or entity designated to receive notices, filings, reports, records, documents, orders and other correspondence. All of the preceding shall be delivered to each party by U.S. certified mail, return receipt requested, or by personal service with a signed receipt of delivery, or by overnight delivery with receipt verification. By mutual agreement, filings, reports, records, documents and other correspondence may be delivered by any permissible means, including, but not limited to, facsimile transmission, personal service or overnight mail or package delivery, so long as proof of receipt or delivery is obtained. The delivery of all notices, reports, records and other correspondence shall be deemed to have occurred at the time of receipt, unless otherwise mutually agreed to or as may be designated by state law.
B. 
If the service provider or system owner or operator is required to obtain a franchise, then the designation of such contact person for notice and notification purposes shall also be contained within the franchise.

§ 146-17 Indemnity.

A. 
To the extent permitted by federal and/or state law, a service provider or system owner or operator shall at all times be required to defend, indemnify, protect, save harmless and exempt the town, the Town Board, the Supervisor, their officers, agents, servants and employees from any and all penalties, damages or charges arising out of claims, suits, demands, causes of action or award of damages, whether compensatory or punitive, or expenses arising therefrom, either at law or in equity, which might be claimed now or in the future, which may arise out of, or be caused by, the construction, erection, location, upgrade, system or service performance, operation, maintenance, repair, installation, replacement, removal or restoration of the system or service within the town by an act or omission of a service provider or system owner or operator, its agents or employees, contractors, subcontractors, independent contractors or implied or authorized representatives. With respect to the penalties, damages or charges referenced herein, reasonable attorneys' fees, consultants' fees and expert witness fees are included as those costs which may be recovered by the town from the service provider or system owner or operator.
B. 
The town, the Town Board and the Supervisor reserve the right to retain counsel of their own choice, at their own expense.
C. 
If a service provider or system owner or operator obtains counsel for the town, the Town Board or the Supervisor, then any one of them shall have the right to approve such counsel. However, neither the town, the Town Board, nor the Supervisor shall unreasonably withhold its approval of counsel, provided such counsel is qualified and reasonably experienced in defending against such claims or actions.
D. 
With respect to a service provider's or system owner's or operator's own defense of such actions set forth in this section, it is understood that such service provider or system owner or operator reserves the right to select and retain counsel of its own choice, at its own expense, without the town's, the Town Board's or the Supervisor's approval.

§ 146-18 Liability insurance.

A. 
A service provider or system owner or operator shall secure and maintain, for as long as it operates the system or provides service within the town, public liability insurance, property damage insurance and umbrella insurance coverage in at least the following amounts:
(1) 
Public liability: $3,000,000 per person/per occurrence.
(2) 
Property damage: $3,000,000 for any one claim.
(3) 
Umbrella liability: $5,000,000.
B. 
A service provider's or systems owner's or operator's public and personal liability and property damage insurance policy shall expressly include the town, the Town Board and the Supervisor as additional named insureds.
C. 
The public and personal liability and property damage insurance policy shall be issued by an agent or representative of an insurance company licensed to do business in the state, and which has one of the three highest or best ratings from the Alfred M. Best Company, or an equally reputable rating service.
D. 
The liability and property damage insurance policy shall contain an endorsement obligating the insurance company to furnish the Town Board with at least 30 days' written notice in advance of the cancellation of the insurance.
E. 
Renewal or replacement policies or certificates shall be delivered to the Town Board at least 30 days prior to the expiration of the insurance which such policies are to renew or replace.
F. 
Before a service provider provides service to subscribers or users, and before a system owner or operator permits the system to be used to provide service, the service provider or system owner or operator shall deliver to the town the policies or certificates representing the required insurance, and each policy or certificate delivered shall be accompanied by evidence of payment of the full premium thereof.
G. 
If the state permits a service provider or system owner or operator to be self-insured, then the Town Board may, at the Board's sole discretion, permit the service provider or system owner or operator to self-insure, so long as the minimum amounts of insurance coverage outlined in this section are met and maintained for the entire period that the service provider or system owner or operator is self-insured, and the service provider or system owner or operator can demonstrate to the satisfaction of the Town Board that it has the financial ability to pay in a timely manner up to the maximum amount per category as set forth in Subsection A of this section.

§ 146-19 Performance and completion security.

A. 
A service provider or system owner or operator shall provide to the town a performance bond or other security executed by a surety licensed to do business in the state, or if deemed necessary by the Town Board a cash deposit or irrevocable letter of credit in the name of the town, in an amount totaling at least $25,000 and not exceeding $100,000. The purpose of the security is to ensure performance and compliance with the requirements and provisions of this article and may be called, or drawn upon, as appropriate, to recompense the town for costs, losses or damages incurred by the town as a result of the failure to comply with this article, up to the monetary limits of the security. If the town draws on a performance bond, cash deposit or irrevocable letter of credit as a result of a service provider's or system owner's or operator's failure to fully and timely discharge its obligations under this article, then the service provider or system owner or operator shall be required to replenish the security to the minimum level required by this article within 30 days of the draw down.
B. 
If the applicant is an incumbent in the town, the specific amount of the security required under Subsection A of this section shall be based in part upon the franchisee's or applicant's record of performance in the town. If the applicant has no record of performance under any authority granted by the town, the amount of the security may in part be based upon its record of performance in other communities and the fact that it has no record of performance in the town.
C. 
In addition to the performance security required in Subsection A of this section, a service provider or system owner or operator shall furnish to the town a construction/completion bond or other approved security prior to the time it commences any construction, upgrade, rebuild or repair/maintenance project that has a capital construction cost or outlay exceeding $100,000. In determining the cost, the cost of the entire project shall be used, and a service provider or system owner or operator may not avoid the requirements of this section by separating or segregating the project into smaller component parts or portions, such as listing geographical sections of the town as separate projects, whether or not they are to be done simultaneously or consecutively. The amount of the bond or other security shall equal at least 75% of the projected capital cost. Any component parts or portions of a project subject to the requirements of this subsection that are undertaken within a twelve-month period shall be deemed the same project.
D. 
To minimize and control the disruption of the normal and usual use of the streets and rights-of-way in the town, any construction/completion bond or other permitted form of security shall expressly guarantee that a service provider or system owner or operator will in a timely manner abide by the schedule for the project as approved by the Town Board or Administrator and that the service provider or system owner or operator will complete the project in a timely manner.
E. 
If the Town Board draws on a completion bond or other permitted form of security as a result of a service provider's or system owner's or operator's failure to timely and fully discharge its obligations and complete any project subject to this subsection, then the affected service provider or system owner or operator shall be required to replenish the completion and performance bond or security to the minimum level required by the Town Board or the Administrator within 30 days of the date of the draw down.
F. 
The performance bond or other permitted form of security shall be in force at all times as may be required by the Town Board, unless relief is granted or a schedule of reduction is detailed in a separate agreement executed between the service provider or system owner or operator and the Town Board.
G. 
In lieu of a performance bond and/or a construction/completion bond, at its sole discretion the Town Board may accept alternative forms of security, including a written guaranty of a service provider or system owner or operator pledging the full faith and credit of the affected service provider's or system owner's or operator's ultimate parent.

§ 146-20 Maintaining other types of insurance and bonds.

A. 
Notwithstanding the insurance and bond requirements contained elsewhere in this article, a service provider or system owner or operator shall obtain and maintain any other types of insurance and bonds, including, but not limited to, workers compensation insurance and automobile liability insurance, that are mandated by either federal or state law, rule or regulation.
B. 
Where applicable and required, a service provider or system owner or operators shall maintain such insurance and/or bonds in at least the required minimum amounts, and according to the minimum terms and provisions mandated by either the federal or state law, rule or regulation.

§ 146-21 Maintaining a public inspection file.

A. 
To the extent required by federal and/or state law, rule or regulation, a service provider or system owner or operator shall maintain records and reports and assure that they are available upon request for inspection by the following:
(1) 
The general public;
(2) 
Subscribers and users of the service or system; and
(3) 
The Town Board, the Administrator, or other town officials, or the designee of such.
B. 
A service provider or system owner or operator shall maintain a public inspection file which shall include at least the following:
(1) 
Ownership records;
(2) 
Equal Employment Opportunity (EEO) data;
(3) 
Testing data and records pursuant to the FCC's rules, if applicable; and
(4) 
Any other records or information required to be contained in a public inspection file by federal or state law, rule or regulation.
C. 
Notwithstanding Subsection B, and unless preempted or prohibited by the state or the FCC, a system owner or operator shall include in the public inspection file:
(1) 
A current rate card detailing rates for all services and for any equipment placed at a subscriber's or user's location, charges for installation, late charges or fees and the policy regarding the imposition of late charges;
(2) 
A copy of the current complaint resolution policy;
(3) 
A copy of the current disconnection policy, including both voluntary and involuntary disconnections; and
(4) 
A copy of the current policy regarding the issuance of credits or rebates for loss or diminution of service, missed appointments and refunds due upon disconnection or downgrade from prepayments.

§ 146-22 Retention and submission of reports and records.

A. 
Notwithstanding any requirements contained elsewhere in this article, a service provider or system owner or operator shall maintain, and upon request by the Town Board or its designee, provide records as are reasonably necessary for the town to determine compliance with the provisions of this article, and to determine the service provider's or system owner's or operator's legal, technical, financial and character qualifications as may be needed from time-to-time to administer this article and the franchise.
B. 
On or before January 1 of each year after the effective date of this article, a service provider or system owner or operator shall submit to a designated town official a list of files, reports, records, data or other information that the service provider or system owner or operator periodically and/or regularly and customarily files with the FCC or the PSC or any other federal or state agency because of its status as a service provider or system owner or operator that are applicable to or have effect on the system or the provision of service in the town. For any other report that a service provider or system owner or operator files with any other federal or state agency, and that has or will have a direct impact on the operation of the system or the provision of in the town within 180 days of the filing, then the service provider or system owner or operator shall notify the Town Board or Administrator of the filing within 15 days of the date of the filing. The notice shall inform the Town Board or Administrator of the nature and scope of the filing and the effect or intended effect, and the agency with whom the filing was made, including the name, address, department, division and phone number of the recipient.
C. 
As part of any compliance review or evaluation, or for any legitimate matter related to the administration and enforcement of this article or a service provider's or system owner's or operator's franchise, or any permitted operation under this article, pursuant to Subsection B of this section, the Town Board or the Administrator may require the provision of any reports, records, data or other information filed with the FCC, the Securities and Exchange Commission (SEC), or any other federal or state agency that affects the ownership or operation of the system or the provision of service in the town. However, unless the town is expressly authorized to require such by state or federal law, a service provider or system owner or operator shall not be required to provide any state or federal tax returns, or any documents that are expressly exempted under state or federal privacy laws, including any applicable provision of the PSC and Section 631 of the Cable Act (codified at 47 USC 551).
D. 
For the purposes intended under this section, an address shall be required to be provided, but without giving the name of the subscriber or user located at that address, unless the consent of the subscriber or user is obtained.
E. 
Notwithstanding anything to the contrary in the preceding Subsection B of this section, the town shall have the right and authority to require the delivery to the town of any information related to determining the adequacy of any payments due the town, including, but not limited to, franchise fee payments, rent, user fees, licenses or taxes of any kind. However, the town may not require the delivery of original documents, but may require the delivery of photostatic copies of such.
F. 
Notwithstanding anything to the contrary in the preceding Subsection D, the town reserves the right to require, as deemed necessary for the administration and enforcement of this article or a franchise, that a franchisee or other service provider or system owner or operator deliver to the town copies of all applications, reports, documents, correspondence, pleadings and petitions of any kind that relate to or have an effect on the system, the system owner's or operator's or the service provider's ownership or operation of the service or system, or on the franchising or regulatory authority of the town, that are submitted by or on behalf of the franchisee or other service provider or system owner or operator, without regard to the federal or state regulatory agencies or courts where such addresses issues which affect, or have the intent of affecting, the operation of the service provider's or system owner's or operator's service or system within the town, or the town's regulatory authority. The information shall be provided in a timely and expeditious manner, and as may further be required by this article or a franchise agreement.
G. 
No service provider or system owner or operator shall use the delay of the provision of the information required under this section to prevent the Town Board from exercising its rights or performing its duties and obligations under this article or any applicable federal or state law, rule or regulation.
H. 
Copies of such responses, decisions or any other communications from the regulatory agencies or courts set forth in this section to a service provider or system owner or operator or its agent, including the service provider's or system owner's or operator's ultimate parent, its attorney or its consultants, that are relative to the service provider or system owner or operator, or the operation of the system or the provision of service in the town, that would have an effect on the operation of system or the provision of service within the town, or the ownership, shall likewise be filed with the town immediately upon the filing or receipt of such, but in no case later than 15 days after the filing or receipt thereof.
I. 
In addition to the requirements noted in the preceding subsections of this section, a service provider or system owner or operator shall in a timely manner submit those reports, statements and logs required by this article that are necessary for the proper and diligent administration and enforcement of this article or any franchise granted by the town, including, but not limited to, the following:
(1) 
A periodic gross revenue statement and report in the manner set forth in this article.
(2) 
A copy of the loss of service or outage log applicable to the system or service in the town, showing all service outages of any kind and duration, in accordance with the requirements in this article and any franchise.
(3) 
Preventive maintenance reports as set forth in this article.
(4) 
If applicable, the FCC Form 394 or any subsequent equivalent form concerning assignment or transfer of a system owner or operator or service provider that is subject to Section 617 of the Cable Act of 1984, as amended (at 47 U.S.C. § 537), or if not applicable to the aforementioned FCC Form 394, a formal request for transfer.
(5) 
If applicable, a copy of the FCC Form 395-A or any subsequent equivalent form concerning equal employment opportunity (EEO) and fair contracting policies.
(6) 
If applicable, a copy of any required state authorization to operate a system or provide service using a system.

§ 146-23 Inspection and review of books, records and other data.

A. 
A service provider or system owner or operator shall keep complete and accurate books of accounts and records of the business and operations in connection with the operation of system and/or the provision of service in the town, including records of inspection and maintenance activity in sufficient detail to ascertain the diligence and adequacy of the inspection and maintenance program.
B. 
The Town Board, the Administrator, or a duly authorized designee of either, shall always have the right to require the provision of and delivery to the town offices, or the offices of the town's designee, information or records, including true and complete photostatic copies of any records, as may be necessary and required to administer this article or any franchise. At the discretion of the Town Board or the Administrator, and in lieu of the preceding, the company may be permitted to provide attested and certified summaries of information in the form and format determined by the Town Board.
C. 
Requests for information and records shall be provided within five days of the receipt of a written request, unless the retention of such records is expressly exempted by one or more provisions of a franchise, or unless the time for the provision of such records is extended by the Town Board or the Administrator. In an emergency situation, the information may be required to be provided sooner.
D. 
It shall be the responsibility of the service provider or system owner or operator to retain and maintain records and information so as to enable their provision in a timely manner as required by this article. The period of time for the required retention of such records shall be for the period of time represented by the state's statute of limitations given the facts and circumstances involved.
E. 
The town shall have the right, at its own expense, to hire an independent certified public accountant or other business professional to review the books and records of a service provider or system owner or operator, or at the discretion of the Town Board or the Administrator, attested and certified summaries of information in the form and format determined by the Town Board or the Administrator. If, after a financial audit or analysis, it is determined that the service provider or system owner or operator has underpaid amounts owed to the town by 1% or more of the amount owed or $2,000, whichever is less, then the service provider or system owner or operator may be required to reimburse the town for the actual cost of the audit or review. Absent fraud, any audit by an independent certified public accountant or other qualified professional retained by the town shall be binding.
F. 
A false entry into the books and/or records of a service provider or system owner or operator of a material fact or amount made by a service provider or system owner or operator or any employee or contractor of the service provider or system owner or operator, shall constitute a material violation of this article and, at the discretion of Town Board, subject the service provider or system owner or operator to termination and revocation of its franchise, and any and all fines and penalties, both civil and criminal, as permitted under law. An unintentional erroneous entry made in good faith and of de minimus negative affect shall be deemed a technical violation or breach and shall not constitute a material violation of this article, nor subject a service provider or system owner or operator to any damages or penalties of any kind.
G. 
Unless granted relief pursuant to § 146-7 of this article, a service provider or system owner or operator shall keep complete and accurate books and records of the key aspects of the service provider's or system owner's or operator's operation at the local office for at least the preceding three years, and in such a manner that all matters pertaining to the town can be easily produced and/or verified at the request of the town. A service provider or system owner or operator shall be permitted to keep such records at a different location for the period of time represented by the state's statute of limitations so long as copies of the records will be delivered to the town or its designee upon request as may be needed for the administration and enforcement of this article or the franchise.
H. 
The service provider or system owner or operator shall also keep at its local office, and shall make available and provide upon request by the town, any other applicable records and information that may be required by any other federal or state agency, including the PSC, that has jurisdiction over one or more classes of service provider or system owner or operators as relate to the operation of the system or the provision of service, including financial matters.
I. 
Notwithstanding anything else in this section, no service provider or system owner or operator shall be required to provide information that is by law expressly deemed confidential or proprietary.
J. 
Failure to comply with the provisions of this section shall subject the service provider or system owner or operator to fines or penalties as set forth in § 146-60 of this article.
K. 
To the extent permitted by applicable state and federal law, the town shall not disclose or use any information provided by a service provider or system owner or operator in a manner that would reasonably be deemed to provide a competitive advantage to another service provider or system owner or operator, or that would reasonably be deemed to place the service provider or system owner or operator at a competitive disadvantage.
L. 
No service provider or system owner or operator shall use the delay of the provision of the information required under this section to prevent the Town Board from exercising its rights or performing its duties and obligations under this article or any applicable federal or state law, rule or regulation.

§ 146-24 Applicability of state consumer sales practices laws.

In addition to any and all requirements of this article relating to matters of consumer protection, each and every service provider or system owner or operator shall comply with, and abide by, all applicable provisions of any state law concerning sales practices and consumer protection requirements.

§ 146-25 Subscriber or user security deposits.

As a matter of consumer protection, the town establishes the following regulations related to subscriber or user security deposits.
A. 
Franchisee or other service provider or system owner or operator shall be permitted to require refundable security deposits in circumstances consistent with reasonable business practices and applicable state law, but only where such deposits are necessary to protect the system owner's or operator's or service provider's investment in equipment loaned, leased or rented to a subscriber or user, or to ensure payment where there is reasonable evidence of a risk of nonpayment such as history of repeated no-payment.
B. 
Security deposits shall be kept in a separate interest-bearing account, and the subscribers or users shall annually be paid all interest earned on the deposits and shall record and account for the collective amounts of the deposits separately from any other account. At no time shall there be a commingling or mixing of security deposit money in accounts with any other monetary receipts.
C. 
Upon termination of service for any reason, the subscriber or user shall receive a refund of any deposit, including all accrued and unpaid interest, within 30 days of the termination or cancellation of service, subject to:
(1) 
An offset or credit for all outstanding obligations of the subscriber or user to the franchisee or other service provider or system owner or operator, including outstanding service charges; and
(2) 
Return of all equipment provided by the franchisee or other service provider or system owner or operator in connection with the services received by the subscriber or user in suitable condition, normal wear and tear expected.
D. 
In no circumstances shall a service provider or system owner or operator be permitted to use any deposits for working capital, or allow any deposits to be used for working capital, or to be used for any purpose other than to serve as security against the loss of any amounts owed or for loss of or damage to equipment pursuant to Subsection F of this section, unless the service provider or system owner or operator annually pays the depositor interest on the money used at the prevailing rate of interest for commercial loans in effect at the time the deposit was used. Failure to pay interest as set forth in this subsection shall subject the offending service provider or system owner or operator to interest at the rate of 10% per annum, which interest shall be compensatory in nature to the depositor, and shall not preclude the imposition or assessment of a fine or penalty as set forth in this article or as may be permitted under state law.
E. 
All deposits for equipment shall be returned, with interest if applicable under this article, within 30 days of the cancellation or termination of the service or the return of the equipment for which the deposit was made, provided that the equipment is returned in good working order, normal wear and tear excepted, and further provided that there is no outstanding amounts owed to the service provider or system owner or operator.
F. 
Failure to meet the requirements of this section may, at the discretion of the Town Board, result in fines or penalties as set forth in this article and other sanctions as permitted under law.

§ 146-26 Preferential or discriminatory practices prohibited.

A. 
As a matter of consumer protection and equal protection rights under the united States Constitution, a service provider or system owner or operator shall not, as to rules, regulations, rates, charges, provision of service, or the use of a service provider's or system owner's or operator's facilities and equipment, make, allow or grant any undue and impermissible preference or advantage to any person, nor subject any person to prejudice or disadvantage, on the basis of race, creed, color, sex, national origin, handicap or physical condition, religious affiliation, location of residence or income.
B. 
Subsection A of this section does not prohibit a service provider or system owner or operator from denying service based on the location of a residence or business if that residence or business is outside the parameters for any line extension, allowing for any cost-sharing formula, as may be detailed in a franchise.

§ 146-27 Restoration of a subscriber or user's property.

A. 
If at any time a service provider or system owner or operator shall disturb the yard, residence or other real or personal property of a subscriber or user, such service provider or system owner or operator shall ensure that the subscriber's or user's yard, residence, place of business or other real or personal property is returned or restored to a condition comparable to that which existed prior to the commencement of the work or to the creation of the damage.
B. 
The costs associated with both the disturbance and the return, replacement and/or restoration shall be borne solely by the service provider or system owner or operator. The service provider or system owner or operator shall reimburse a subscriber or user or private property owner for any actual physical damage caused by the service provider or system owner or operator, its subcontractor, or its independent contractor, in connection with the disturbance of or damage to a subscriber or user or property owner's property that cannot be returned to its condition prior to the damage.

§ 146-28 Payment delinquency; late charges; termination of service.

As a matter of consumer protection, the town establishes the following regulations related to the treatment of payment delinquencies, late charges and termination or disconnection of service.
A. 
A subscriber or user shall not be considered delinquent in payment until at least the following have occurred:
(1) 
Thirty-five days have elapsed from the postmarked date of the bill to the subscriber or user;
(2) 
Service for the first 30 days of the period billed for has been delivered; and
(3) 
Payment for the first thirty-day period has not been received by a service provider or system owner or operator.
B. 
Before disconnection of a subscriber's or user's service takes place, whether physically or electronically, the subscriber or user must in be delinquent in payment for service as defined by Subsection A of this section.
C. 
Any refund due a subscriber or user after a disconnection pursuant to this section shall be made within 60 days of the disconnection for nonpayment.

§ 146-29 Voluntary disconnections, including requests for downgrades of service.

A. 
As a matter of consumer protection, a subscriber or user may at any time request that a particular service, level of service or the entire service be disconnected. There shall be no penalty imposed or other punitive action of any kind whatsoever taken by a system owner or service provider under such circumstances or for such a choice by a subscriber or user.
B. 
Failure to meet the requirements of this section may, at the discretion of the Town Board, result in fines or penalties as set forth in § 146-60 of this article entitled "Fines and penalties."

§ 146-30 Nonprohibitive access policy and voluntary subscription.

As a matter of consumer protection the town establishes the following regulations related to access to or the refusal of any service.
A. 
Except for normal sales and sales retention efforts, no service provider or system owner or operator shall engage in any activity or practice which is designed to prohibit or inhibit, or has the effect of inhibiting or prohibiting, a subscriber or user from switching from one service provider or system owner or operator to another service provider or system owner or operator or disconnecting from one service provider or system owner or operator in order to connect and receive service from another service provider or system owner or operator or simultaneously receiving service from more than one service provider or system owner or operator.
B. 
No service provider or system owner or operator shall engage in any activity or practice which has the effect of acting as a penalty or negative disincentive for a subscriber or user switching from one service provider or system owner or operator to another service provider or system owner or operator, or disconnecting from one service provider or system owner or operator in order to connect and receive service from another service provider or system owner or operator; or simultaneously receiving service from more than one service provider or system owner or operator.
C. 
No person or member of the public shall be penalized or fined by a service provider or system owner or operator, whether through a home sales contract, a deed containing restrictive covenants, or any other type or instrument of agreement or restriction, for failing or refusing to subscribe to or receive service of any kind, or for failing or refusing to physically connect to a service provider's or system owner's or operator's system; nor shall any person incur penalties, fines or costs of any kind for failing or refusing to connect to a service provider's facilities or a system owner's or operator's system, or for failing or refusing to subscribe to or receive service.
D. 
Failure to meet the requirements of this section may, at the discretion of the Town Board, result in fines or penalties as set forth in this article.

§ 146-31 Protection of subscriber or user privacy.

As a matter of consumer protection the town adopts the following regulations regarding subscriber or user privacy:
A. 
A service provider or system owner or operator shall abide by any and all subscriber or user privacy rules or regulations of the federal or state government or any federal or state agency.
B. 
Any service provider or system owner or operator who functions as an Internet service provider shall be prohibited from using or providing to a third party any information sent or received by a subscriber or user, such as, but not limited to, e-mail or any attachments thereto, to any person or entity for any purpose whatsoever, unless ordered to do so by a court of competent jurisdiction.
C. 
Failure to meet the requirements of this section may, at the discretion of the Town Board, result in fines or penalties as set forth in this article.

§ 146-32 Resolution of complaints; response to inquiries.

A. 
The town is hereby granted the authority to do all things necessary and permissible to supervise, inspect and regulate the construction, operation and maintenance of systems or services that are subject to this article in whole or in part, and to implement procedures for the filing and resolution of complaints, unless otherwise expressly prohibited by federal or state law.
B. 
A service provider or system owner's or operator's complaint and inquiry resolution policy shall be reduced to writing, and such policy shall be available upon request to any person 18 years of age or older. Every subscriber or user shall receive notice of the policy, and any change in the policy, in the manner prescribed by this article and in compliance with any FCC or PSC rules.

§ 146-33 Policy with respect to the continuity of service.

A. 
No service provider or system owner or operator may abandon, withdraw or cease to operate the system or provide service to any portion of the service area within the town without the prior express written consent of the Town Board.
B. 
A service provider or system owner or operator shall be prohibited from using the threat to abandon, withdraw or cease to provide service to any subscriber or users or service or operate the system area within the required service area in town to avoid compliance with this article or the terms and conditions of a franchise.
C. 
Failure to meet the requirements of this section may, at the discretion of the Town Board, result in fines or penalties as set forth in this article.
D. 
In addition to Subsection C of this section, violation of this section shall be deemed grounds to subject the service provider or system owner or operator to termination and revocation of its franchise in accordance with the provisions of this article and applicable state law.
E. 
Failure to meet the requirements of this section may, at the discretion of the Town Board, result in fines or penalties as set forth in § 146-60 of this article entitled "Fines and penalties."

§ 146-34 Construction and construction-related requirements.

A. 
In order to establish minimum and uniform standards related to the safe use and occupancy of public property, the town's property and rights-of-way, private property, and as the system may be relied upon to communicate with the subscribing public in the event of an emergency or disaster, to assure the reliable provision of service in the town, and to the extent reasonably possible assure the ability of subscribers, users and property owners to enjoy their property with the least inconvenience and diminishment of the value of the property, any service provider or system owner or operator shall abide by and adhere to the following minimum construction and construction-related requirements.
(1) 
Construct, install, maintain and repair the system or facilities used to provide service in accordance with this article, and any other requirements of the state, county and/or town;
(2) 
Use and occupy streets and private rights-of-ways as set forth in this article, and any other applicable requirements of the state, county and/or town;
(3) 
Where applicable, and when ordered in accordance with this article or a franchise, remove the service provider's or system owner's or operator's equipment, facilities and property from the town's property, streets or rights-of-way in accordance with this article and applicable state law;
(4) 
When ordered by a private property owner, subscriber or user, remove the service provider's or system owner's or operator's equipment, facilities and property from the premises;
(5) 
Abide by the safety requirement as set forth in this article;
(6) 
Abide by and act in strict accordance with all codes that are standard and customary to the telecommunications industry, including construction, fire, safety, health and zoning codes that are adopted by the town, the county, the state or the United States;
(7) 
Cooperate with the town in the conduct of any inspection of the system or facilities used to provide service, and make repairs or eliminate construction or safety violations as directed or ordered by the Administrator or the Town Board; and
(8) 
Maintain all permits, licenses and other authorities as required by this article and any other town rules or regulations, and as may be required by any other governmental regulatory authority.
B. 
The construction, rebuild, upgrade, installation, maintenance and repair of any system or facilities of any system owner or operator or service provider shall at all times and without exception abide by and comply with the requirements of Subsections C through M of this section, unless expressly relieved from compliance in a franchise, which relief shall include any grandfathered status in a franchise in existence as of the effective date of this article, unless engaged in any construction, rebuild or upgrade of the system or facilities prior to the expiration date of the franchise, but only until the expiration date of the franchise in existence as of the effective date of this article.
C. 
The town expressly adopts a policy of zero tolerance of situations or practices not in compliance with the requirements of this section, unless relief is granted pursuant to § 146-7 of this article.
D. 
For newly served areas, the provisions of Subsection C of this section shall apply at the time of initial construction and/or installation of the new system or facilities, or at the time of a rebuild or upgrade of a system or any of its facilities.
E. 
Any service provider or system owner or operator, when engaged in any construction, installation, rebuild, upgrade, maintenance or repair activities, shall treat the aesthetics of property as a priority, shall not substantially change or affect the appearance or the integrity of the structure and the property on which it is situated in a negative manner. This shall expressly include prohibiting the installation of a service drop and associated components on the bias or diagonally across the front, rear or side of a residence or other structure without the property owner's express permission. This also means that, unless impracticable, all drop material attached to a dwelling or business must follow the perimeter lines or roof lines of the dwelling or business and shall result in the minimum visual effect reasonably possible, taking into account the reasonable desires of the subscriber or user.
F. 
To minimize the accidental cutting of lines resulting in a loss of service, to the extent not physically or commercially impracticable, all underground service drops shall follow property lines and shall cross property only at right angles, unless otherwise expressly permitted by the property owner, whose permission shall be in writing, and the work order signed by the subscriber or user shall contain a diagram of the permitted routing of the service drop, or unless required due to the physical characteristics of the surface or subsurface obstructions, in which case there shall be a signed and dated acknowledgment by the subscriber or user of the need to route the installation differently than as required in this subsection. All such signed permissions and acknowledgments shall be retained permanently by the system owner or operator or service provider, and shall be produced and provided upon request, including upon request by any subsequent owner of the property, or by the Administrator or the Town Board or its designee. For systems or service providers in existence prior to the effective date of this article, the service provider or system owner or operator shall not be required to bring its facilities into compliance with the provisions of this Subsection F until the sooner of an upgrade or rebuild of the system or system facilities or the grant of a new or renewed franchise. Notwithstanding the previous sentence, a service provider or system owner or operator shall always be required to comply with the provisions of this Subsection F when requested by a subscriber or user, and shall do so in a timely manner.
G. 
Underground service drops shall be buried at a minimum required depth of 12 inches, so as to prevent being cut in the course of performing normal yard maintenance, planting and landscaping.
H. 
In instances where previously existing utilities have constructed or installed wire or cable aerially, the service provider or system owner or operator may construct its system or facilities aerially, unless otherwise required by state or local law. However, it shall be the responsibility of the system owner or operator or service provider to assure that at all times and without exception all required minimum separations are maintained between its facilities and those of other occupants of the poles as required by applicable code, rule or regulation, including as set forth in this article, and that there shall at no time be less than the minimum required clearance between such facilities and those of the system or service provider, nor shall there ever be any contact between the service provider's or system owner's or operator's wires, cable or other equipment and facilities and those of any other utility or other system or service provider's facilities or other occupant of the poles.
I. 
In situations involving underground construction, the system owner or operator or service provider shall at all times and without exception be required to comply with all applicable requirements of the National Electrical Safety Code and the National Electrical Code.
J. 
Notwithstanding the provisions of Subsection H of this section, as a matter of economic development and preserving property values, the Town Board may order to be placed underground any new construction of a system, which shall include any rebuild, upgrade or replacement of a system and its facilities.
K. 
In the event a violation of Subsection H is caused by another occupant of the poles, upon discovery of the violation the system owner or operator or service provider shall, the same day if possible, but in no case later than the next workday, formally and in writing, notify the party that created the violation and diligently pursue the elimination of the violation. Until the violation is eliminated, the system owner or operator or service provider shall be required to be able to provide evidence of the demand to eliminate the violation and of its efforts to have the violation eliminated.
L. 
All occupants of utility poles and shared trenches shall at all times cooperate with all other occupants to assure compliance with the requirements of this section.
M. 
In order to provide the maximum assurance of the protection of the public and of the employees of any occupant of the town's property and rights-of-way, or utility poles or shared trenches in the town's rights-of-way, the town specifically adopts the construction, maintenance and repair requirements set forth in this subsection. The requirements in this subsection shall serve as minimum standards and requirements and shall be in addition to any other requirements of the town, the county or the state. In the event of a conflict between the requirements set forth in this subsection and those contained in any other applicable county or state code, rule or regulation, that which provides the greatest assurance of achieving the intent set forth in Subsection A of this section shall apply.
(1) 
All guy wires associated with a system shall at all times be maintained with the integrity originally intended, including, but not limited to, proper attachment to an anchor and adequate tension to perform the purpose intended.
(2) 
Any guy wire associated with a system that is reasonably accessible to, or may be reasonably be expected to be encountered by, pedestrians or users of recreational vehicles, including but not limited to bicycles, skate boards, snowmobiles, off-road vehicles and all-terrain vehicles, shall at all times be marked and protected by the use of a suitable brightly colored, plainly visible guard no less than eight feet in length and made of a nonconductive material that is resistant to deterioration caused by the effects of the weather, unless expressly exempted individually by the Town Board or the Administrator.
(3) 
The ends of all guy wires at the point of attachment to the anchor shall be trimmed and capped or otherwise protected so as not to allow exposed sharp ends to protrude.
(4) 
All wires or cables of any kind associated with the system that are placed vertically on any pole and that are within eight feet of the surface of the ground shall at all times be protected from direct contact by unauthorized individuals and vandalism by means of a suitable guard made of a nonconductive material that is durable and resistant to degradation or deterioration caused by the effects of the weather.
(5) 
At no time shall any cable, or functional equivalent, intended for underground installation be left or remain unburied at the end of a workday. The only exceptions to this requirement shall be for extreme weather conditions or in a force majeure situation, or if the ground is frozen to a depth of more than six inches. In any case involving the exceptions under this subsection, the unburied cable shall be buried pursuant to the requirements in the National Electrical Safety Code, or for situations involving service drops the requirement in Subsection G of this section, on the first workday following the cessation or elimination of the condition permitting the exception.
(6) 
All pedestals and vaults housing system or service facilities or components shall at all times be reasonably secured to prevent tampering by unauthorized individuals, vandalism or contact with sharp edges that are associated with or contained in the pedestal or vault. It is required that every service call at a location at which a pedestal or vault exists shall include a check of the structural integrity and security of the vault or pedestal, and any repairs necessary to bring the pedestal or vault into compliance with this subsection shall be done at the time of the service call, or the next workday at the latest.
(7) 
At no time shall any pedestal or vault be located closer than six feet from an electric power pedestal unless bonded to the ground of the electrical power pedestal. In no instance shall any pedestal or vault be situated so as to block, prevent, hinder or interfere with the free access to any other utility or service pedestal.
(8) 
In no instance shall any system or service component or facility be fewer than 20 inches, measured vertically, from any streetlight, including any attachment brackets or fixtures of any streetlight, unless individually bonded to the streetlight or its ground, in which case the minimum permitted clearance shall be 12 inches.
(9) 
All system or service facilities or components which are aerially constructed shall maintain a minimum of 60 inches of vertical clearance at a pole and 50 inches of clearance at mid-span from any electrical primary lines, wires or facilities, and 40 inches of vertical clearance at a pole and 30 inches of vertical clearance at mid-span from any electrical secondaries power lines, wires and facilities.
(10) 
At all times in all aerially constructed areas of the town, all system or service facilities or components shall maintain a minimum of 12 inches vertical clearance from any communications or telephone lines, wires and facilities.
(11) 
At no time shall any system or service facilities or components be attached to, or in contact with, any electrical power mast or any other electrical power-related facility on any residence or business, except for the sole purpose of establishing a common ground, otherwise known as a "bond," which bond shall not be at the electrical power mast and shall not block or otherwise interfere with the free and unhindered access to any component of the electrical service; nor shall such facilities or components ever be in contact with or closer than 12 inches to any component of electrical service to any residence or building.
(12) 
All service drops shall be bonded to the electrical system ground serving that home or building. At no time shall a separate ground rod be the only means of providing a ground, unless the home or building has no electrical service ground, in which case the electric company must be notified in writing of the lack of an electrical ground.
(13) 
All system or service lines, wires and cable, including service drops, shall have a minimum vertical clearance of eight feet when passing above or over any point of any roof of any home or building of any kind.
(14) 
No wire, line or cable of a system owner or operator or service provider, whether aerial or underground, shall cross the property of a person, subscriber or user to provide service other than to serve the address of the property being crossed without the express written permission of the owner of the property being crossed, which written permission shall be permanently retained by the service provider or system owner or operator and produced upon request or demand by the owner of the property or the Administrator, the Town Board, or its designee.
(15) 
All system or service lines, wires and cable serving residences or other buildings shall be securely attached to the structure in a neat manner and in the least visually offensive manner reasonably possible given the facts and circumstances.
(16) 
No service drop shall at any time cross in front of or block any door, window or any means of emergency egress or ingress of any home, business or building. If any wire, line, cable or service drop of the system or service provider is found to be blocking a means of emergency ingress or egress, a service provider or system owner or operator shall immediately reroute and attach the wire, line, cable or service drop so as to eliminate the situation.
(17) 
At all times, on an individual basis, all service drops shall be bonded to the common ground of the electrical service in the residence or other building, except with the express permission of the town, and then only for the reason stated in Subsection M(12) of this section. No service drop may at any time be grounded to or in contact with any facility providing natural or propane gas.
(18) 
All work on the system or service plant, facilities or equipment performed by a system owner or operator or service provider shall, without exception, be left in a permanent, finished condition at the end of each working day, unless individually approved by the subscriber or property owner and either the Town Board or the Administrator on a individual location-by-location basis.
(19) 
All subscriber or user service drops are to be inspected by the system owner or operator or service provider, whichever is applicable, as an integral part of every service or trouble call, installation or reconnection, and any work necessary to bring the service drop into compliance with this section shall be completed prior to leaving the address, or at the latest, by the end of that workday.
(20) 
All systems and facilities of a system owner or operator or service provider attached to utility poles shall at all times be attached on the same side of the pole as the lowest occupant of the pole.
(21) 
At no time shall any facilities of a system owner or operator or service provider create what is known in the industry a "frame out" of a pole, thereby blocking the necessary climbing space of the pole.
(22) 
All system or service lines, wires, cable and facilities shall be constructed so as to leave sufficient room between its system and facilities and those of the electric system to place or move a service bucket between the systems and facilities without coming into contact with the other system or facilities, or in simultaneous contact with both systems or facilities.
(23) 
All cable, lines, wires and fiber shall at all times be securely lashed to the supporting strand so that the structural integrity of cable or system is not compromised.
N. 
Every service provider or system owner or operator shall be required to conduct a diligent program of regular inspection of its system and facilities to assure compliance with the requirements of this section, which shall include adequate training of all field personnel to enable them to be capable of identifying and reporting situations not in compliance with the requirements of this section.
O. 
At all times and without exception all applicable portions of the Occupational Safety and Health Act (OSHA) shall be complied with.
P. 
Any violations of this section that are found shall be eliminated immediately, or the next workday at the latest.
Q. 
Any system owner or operator or service provider who violates the requirements of this section may, at the discretion of the Town Board, be subject to the imposition of fines and penalties as set forth in this article.

§ 146-35 Construction of good quality.

Any construction, rebuild or upgrade of any system or facilities, including any installation, maintenance or repair of the system or facilities used to provide service, shall be done using only materials of good and durable quality, and all work shall be performed in a safe, thorough, reliable and workmanlike manner, and all employees or contractors shall at all times act and work in compliance with the provisions of this article and other applicable ordinances, codes, rules and regulations of the town, the county and the state.

§ 146-36 Conditions on use of streets and public ways.

A. 
At all times and without exception, all wires, conduits, cable (whether coaxial, fiber or a functional equivalent) and other property and facilities of a service provider or system owner or operator shall be located, constructed, installed and maintained so as not to endanger or unnecessarily interfere with the usual and customary use, traffic and travel upon the streets, rights-of-way, easements and public ways of the town, or any private property adjacent to, crossed or used by a system owner or operator or service provider.
B. 
In the event a service provider or system owner or operator's system or facilities creates a hazardous or unsafe condition, or is part of or a party to a hazardous or unsafe condition, including but not limited to those standards and requirements set forth in this article that are intended to protect the safety of persons and property, or that creates an avoidable or unreasonable interference with the use of public or private property, the service provider or system owner or operator shall upon discovery voluntarily, or upon notice by the town, in a prompt and expeditious manner remove or modify that part of the system or facilities so as to eliminate the condition.
C. 
At no time and under no circumstances shall a service provider or system owner or operator place equipment where it will unduly, unreasonably or impermissibly interfere with the rights of property owners or with any utility or service intended to benefit the general public or any other service or facility that benefits or protects the health, safety or welfare of the town or its residents.
D. 
A service provider or system owner or operator, either at its own expense or that of a private contractor, shall at all times and without exception protect all property, including public property and the town's rights-of-ways and easements, and shall support or temporarily disconnect or relocate any property of the service provider or system owner or operator when necessitated by reason of:
(1) 
Traffic conditions;
(2) 
Public safety;
(3) 
Temporary or permanent street closing;
(4) 
Street construction or resurfacing;
(5) 
A change in, or establishment of, a street grade;
(6) 
Installation, repair or modification of sewers, drains, water pipes, storm drains, lift stations, force mains, power or signal lines, and any traffic control system; or
(7) 
Any improvement, construction, repair or public works project related to the town's or its residents' health, safety or welfare.
E. 
Upon request by any person or individual desiring to work or have work performed near or around a system's or a service provider's facilities that are placed underground, it shall at all times be the responsibility of a service provider or system owner or operator to locate or have located all components of the system or facilities, and mark or otherwise visibly indicate and alert others to the location of the underground wires, cable, fiber or a functional equivalent and any associated equipment or facilities, prior to the start date of such work. It shall be the responsibility of the entity intending to or actually performing underground work to notify the service provider or system owner or operator at least 10 days prior to the intended start date of the need to locate the service provider or system owner or operator's underground lines and equipment and to inform the service provider or system owner or operator of the intended start date.
F. 
No service provider or system owner or operator may engage in any underground work or disturb the subsurface of any ground without first having had located and marked all utilities and facilities placed underground at the same location.
G. 
On the request of any person holding a building moving permit, a service provider or system owner or operator shall temporarily remove, raise or lower its wires and facilities to allow the moving or relocation of the building. The expense of temporary removal, raising or lowering of the wires and facilities shall be paid by the person requesting such, and the service provider or system owner or operator may require payment in advance. The affected service provider or system owner or operator shall be given not less than 14 days notice of a contemplated move to arrange for temporary wire changes.

§ 146-37 Street cutting.

A. 
Prior to cutting, penetrating, opening or in any way compromising or affecting the integrity of any public street, a system owner or operator or service provider shall first obtain a street cutting permit from the town.
B. 
An application process and procedure shall be established by the town, including a fee for the filing of an application.
C. 
In order to minimize the disruption of the usual and customary use of the streets and rights-of-way and not to prolong such disruption, a street cutting permit shall be date-specific and for a specific period of time. If work is not started on the start date contained in the street cutting permit, a penalty of 1/2 the amount of the permit fee may be required.

§ 146-38 Duty to remove properties from the public streets and rights-of-way.

A. 
In the event of the nonrenewal of a service provider's or system owner's or operator's franchise, or the involuntary termination or revocation the franchise, subject to the continuity of service provisions outlined in this article, and unless the town or another service provider or system owner or operator indicates its lawful intent to acquire and use the system or the facilities, the affected service provider or system owner or operator shall promptly remove its system and all facilities and equipment and other property, including any abandoned equipment, facilities or portions of the system, from the streets, public ways and private property located within the town. The removal shall be at the sole expense of the affected service provider or system owner or operator and shall be completely removed within 90 days of the date of expiration, or the date of revocation and involuntary termination, of its franchise, or a lawful order or directive from the town, whenever any of the following occurs:
(1) 
The service provider or system owner or operator ceases to operate all or any part of the system or provide service for more than 24 consecutive hours with the express written permission of the Town Board or the Administrator, other than for reasons of force majeure;
(2) 
The service provider or system owner or operator fails to construct, rebuild or upgrade the system or provide service as contained in an application or proposal for renewal, or in a franchise or an amended franchise without express written permission of the Town Board;
(3) 
The Town Board elects not to, and affirmatively acts not to, renew the franchise, pursuant to the provisions set forth in this article and, if appealed, pending a final ruling or determination by a court of competent jurisdiction; or
(4) 
The service provider's or system owner's or operator's franchise is revoked pursuant to the provisions set forth in this article and, if appealed, pending a final ruling or determination by a court of competent jurisdiction.
B. 
The service provider or system owner or operator shall remove all of its cable, lines, wires, property, facilities and equipment located in the town's streets and rights-of-way in the manner and time frame prescribed in Subsections C through F of this section.
C. 
If not removed voluntarily by the service provider or system owner or operator pursuant to Subsections A and B of this section, then the town may notify the service provider or system owner or operator that if removal of the property is not accomplished within 90 days, or substantial progress towards removal is not made within 75 days, then the town may direct its officials or representatives to remove the service provider's or system owner's or operator's property, facilities, equipment, cable and wires at the expense of the service provider or system owner or operator.
D. 
If officials or representatives of the town remove, or cause to have removed, a service provider's or system owner's or operator's cable, lines, wires, property, facilities and equipment, and the service provider or system owner or operator does not claim the property within 90 days of its removal, then the town may take whatever steps are permissible under state law to declare the property surplus and sell it, and, if permitted by state law, the proceeds of the sale shall go to the town.
E. 
When the service provider or system owner or operator removes its system and any other property, facilities, equipment, cable or wires from the streets and public property and rights-of-way within the town, the service provider or system owner or operator shall, at its own expense and in a manner approved by the town, replace and restore the public or private property to a condition comparable to that which existed before the work causing the disturbance or any damage was done.

§ 146-39 Permits and licenses.

A service provider or system owner or operator shall obtain, at its own expense, all permits and licenses required by local law or county or state law, or state, county or local rule or regulation, and shall maintain the same in full force and effect for as long as required by the town or the agency granting the permit or license.

§ 146-40 Technical performance standards; consumer protection.

As a matter of consumer protection and in the context of subscribers and users receiving that which they pay and have a reasonable right to expect, the town establishes the following regulations and requirements regarding technical performance.
A. 
It shall at all times be the responsibility of any service provider or system owner or operator to comply with the most current FCC technical rules and standards, if such are applicable to the service provider or system owner or operator.
B. 
Where a chronic problem with the signal or service quality exists, a system owner or service provider may be required to employ technology or equipment that will alleviate or eliminate the problem. The choice of the technology and equipment employed to alleviate, eliminate or mitigate the problem shall be the prerogative of the operator.

§ 146-41 Reservation of right to inspect a system or facilities and to review documents.

A. 
The town shall have the right to inspect all portions and facets of a service provider's or system owner's or operator's facilities, including the construction, placement, operation, repair and maintenance of the system or facilities in the town, in order to verify that a service provider or system owner or operator constructs, rebuilds, upgrades, maintains and repairs the system and facilities in the manner required by this article.
B. 
The town shall have the right to require the delivery to the town or its designee, true, accurate and unexpurgated copies of any and all records and documents related to any tests and inspections conducted by the system owner or operator or the service provider for purposes of review and analysis as may deemed necessary to administer and enforce this article and any franchise.
C. 
The town shall pay for its costs associated with any physical inspections of the system or its components or for document reviews. Notwithstanding the preceding, the town may require reimbursement of its costs for those circumstances occasioned by a service provider or system owner or operator refusing to provide the information requested under Subsection B of this section, or the refusal to cooperate with the town in an inspection, or that is occasioned by the identified failure in a significant portion of the town to construct, install, maintain, repair, rebuild or upgrade any part or portion of the service provider's or system owner's or operator's system or facilities in the manner specified and required by this article.
D. 
If a failure to construct, install, maintain, repair, rebuild or upgrade the system or facilities as required by this article is identified, except for that which would reasonably be deemed of a de minimus number and effect, and after ordering the remedy or elimination of the failures and providing a period of time to comply with the order, the town may order a reinspection in order to verify the resolution or elimination of any failure or problem by a service provider or system owner or operator.
E. 
In instances involving reimbursement under Subsection C of this section, at the discretion of the Town Board or the Administrator, the service provider or system owner or operator may be required to reimburse the town for all of the actual costs that are incurred by the town to obtain the necessary information, or that are incurred to conduct or have conducted any needed reinspection. If, upon reinspection, all failures to construct, install, maintain, repair, rebuild or upgrade any portion of the service provider's or system owner's or operator's system or facilities have been eliminated, the Town Board or the Administrator may, at their discretion, waive the reimbursement requirement.
F. 
The reimbursable costs as described in this section are deemed reimbursable because either the costs were precipitated by the unreasonable or noncompliant behavior of the system owner or operator or the service provider, or because the costs are related to actions of enforcement for violations or breaches committed, neither of which is a part of the normal administrative function of this article or of franchise, and are extraordinary costs that would not have been incurred were it not for the impermissible action or violation by the system owner or operator or the service provider.

§ 146-42 Provisions to alert subscribers or users of a disaster emergency; standby power.

A. 
In order that subscribers or users may be alerted in the event of an impending, imminent or actual natural or other disaster or emergency, unless prohibited by federal law or rule, all service providers or system owners or operators shall ensure that the system or facilities providing service to all or any part of the town are designed, constructed and installed with equipment that will permit an authorized official or designee of the town to override the audio portion of all video channels or signals by touch-tone phone or functional equivalent, from any location.
B. 
In addition to any other requirements listed in this section, a provider of video programming service or multichannel programming service shall:
(1) 
Designate a channel which will be used for disaster/emergency broadcasts of both audio and video, though this channel need not be solely used for emergency broadcasts, and may be used for any lawful purpose until needed in an emergency or disaster; and then only for the duration of the emergency or disaster.
(2) 
Inform subscriber or users of the designated emergency channel on a periodic basis, but not less than once a week;
(3) 
Maintain all-channel video blanking capability to facilitate the needs of the hearing- and sight-impaired subscribers or users;
(4) 
Test the emergency override function not less than once a month, and remedy any problems or operational deficiencies immediately;
(5) 
Train designated town officials and cooperate with the town on the use and operation of the emergency alert override function; and
(6) 
Develop a plan, with the town's concurrence, to provide continuity of service and response to service calls in the event of an emergency or disaster.
C. 
As one method of assuring continuity of services in the event of a failure of commercial electrical power for reasons, including but not limited to a natural or other disaster or emergency, a service provider or system owner or operator shall install and diligently maintain automatically activated standby or backup power so that all active system components remain functional for at least two hours, and additionally install and diligently maintain an automatically activated standby generator at all headends, hubs, nodes and receive sites associated with the distribution of service to and throughout the town that are owned or under the control of the service provider or system owner or operator or any affiliate or parent entity.
D. 
For purposes intended under this section, the Town Board shall designate one or more officials of the town who are authorized to declare an emergency or disaster and access and use the override function of the system.

§ 146-43 Implementation of a preventive maintenance program.

A. 
It shall be the duty of a service provider or system owner or operator to devise, implement and diligently conduct a preventative maintenance program in order to assure that there is no material degradation of the operation, performance or condition of the service or system that would threaten, endanger, or in a substantive manner negatively affect the public health, safety or welfare of the public or the reliability of service anywhere in the town, or negatively affect the quality of service as may be required by applicable rules.
B. 
Thirty days after each calendar quarter a service provider or system owner or operator shall notify the Town Board or the Administrator of the preventive maintenance information available for that calendar quarter, and that such information is available to be delivered for inspection, examination, review and analysis.

§ 146-44 Safety requirements.

A. 
All system owners or operators or service providers shall at all times and without exception comply with the most current editions of the National Electrical Safety Code (NESC), the National Electrical Code (NEC) and the Occupational Safety and Health Act (OSHA). This shall mean that any changes in or amendments to these codes and law shall be deemed to have been automatically adopted by the town with respect to this article, unless expressly rejected by the Town Board.
B. 
In cases involving safety issues related to utility poles, including the requirement to regularly inspect the system and facilities for violations of the NESC, including, but not limited to, issues of minimum clearances or impermissible contact of the facilities of two occupants of the poles, and where there is a question as to which party caused the violation, the system owner or operator or the service provider may be required to provide the following, as applicable under the circumstance:
(1) 
A copy of the request for make-ready for the situation at that location showing the date of the request;
(2) 
A copy of the signed and dated work order showing the date of installation for the particular subscriber or address; or
(3) 
A copy of the signed and dated work order for the latest service call for the particular subscriber or address.
C. 
In cases involving Subsection B(2) or (3) of this section, where individually identifiable subscriber information may be revealed, it shall nevertheless be the responsibility of the system owner or operator or service provider to provide proof of the date in question, but without identifying the name of the subscriber, unless the subscriber's permission has been obtained.
D. 
To provide for the maximum possible protection of the health and safety of persons and property in the town, the town deems it necessary to adopt a policy of zero tolerance of safety-related violations associated with any system or the provision of any service in the town, excepting those caused by subscribers, users or the public and which the service provider was not aware of or should not have reasonably been aware existed. Notwithstanding the preceding exception, it shall always be the responsibility of the service provider or system owner or operator to remedy and eliminate any safety-related violations associated with its system or service as such may be found, or if caused by a third party to diligently pursue the remedy and elimination of the violation.
E. 
To enable the town to take any needed action or precaution to alert or otherwise protect persons and property in the town, it shall be the responsibility and obligation of any service provider or system owner or operator to report to the town any violation of safety codes, regulations or requirements or the construction or construction-related requirements of this article that is identified and is not able to be remedied within 24 hours of the time of its identification, or if caused by a subscriber or user and due to the location on private property is not able to be remedied within the required 24 hours. For purposes of this subsection, the notice to the town shall be done the same day by phone, and the next day in writing.
F. 
It shall be the immediate and primary responsibility of the service provider or system owner or operator to place appropriate and effective warning signs and protective devices or barriers at the site of any such safety violations that create an imminent danger or threat.
G. 
Notwithstanding anything to the contrary in the section of this article entitled "Fines and penalties" (§ 146-60), there shall be no fine or penalty assessed or imposed for construction or construction-related or safety or safety-related violations that are voluntarily, and of the system owner's or operator's or service provider's own accord and volition, reported to the town in accordance with the Subsection D of this section prior to any injury or harm having been caused, and provided that the report of a situation occurs prior to or on the same day as a third-party report that the town receives that is relevant to this section, and if the violation is eliminated within 24 hours or in such time-frame as may otherwise be approved by the Town Board or the Administrator.

§ 146-45 Franchise required.

A. 
No person, service provider or system owner or operator shall be permitted to construct, build, rebuild, upgrade or operate a system or provide service in, along, over, under or across town property or streets or rights-of-way of the town without having first obtained a franchise, unless such person, service provider or system owner or operator is exempted from this requirement under state or federal law.
B. 
No franchise shall be required for either the town, or for any authority affiliated with the town, to own a system or provide service in the town or to operate as a service provider or system owner or operator in the town, unless required to do so by state law.

§ 146-46 Initial franchises; authority to grant nonexclusive franchises; required permitting.

A. 
The Town Board may award one or more nonexclusive franchises within its corporate limits, or any area outside the corporate limits that is under the town's governmental or regulatory control, including the town's police powers.
B. 
No franchise granting authority to construct and operate a system or provide service in the town shall be exclusive.
C. 
A service provider's or system owner's or operator's application or proposal shall be evaluated and approved or disapproved as part of a public proceeding and hearing which affords the applicant and the public an opportunity to be heard, and which is in accordance with applicable federal and state laws, rules and regulations.
D. 
Any service provider or system owner or operator shall proceed with due diligence and its best efforts to obtain, at its own costs, all necessary permits, licenses and authorizations which are required for the conduct of its business in the town within 30 days after the effective date of an initial franchise, including, but not limited to, any private easement agreements, business licenses, utility joint use or attachment agreements, microwave carrier licenses and any other permits, licenses and authorizations needed to lawfully provide service or operate a system within the town.
E. 
A service provider or system owner or operator shall have in its possession all necessary and required permits, easements, agreements and licenses prior to the commencement of any construction, rebuild or upgrade of the system, and, if applicable, the provision of service.

§ 146-47 Franchise agreement; minimum requirements.

A. 
A service provider or system owner or operator subject to this article may not lay or use any cable, lines or wires, whether coaxial, fiber or a functional equivalent, or any other equipment or facilities on town-owned property or in the town's rights-of-way until the franchise is fully executed and is in effect, including approval by the PSC if such is required.
B. 
A franchise shall be sufficiently detailed so as to clearly delineate the rights, privileges, duties, obligations and limitations of the parties concerned.
C. 
As permitted, and as may be applicable to a particular class or type of service provider or system owner or operator, a franchise shall, at a minimum, contain and address the following matters, as well as any requirements in accordance with any applicable rules of the PSC:
(1) 
The term or duration of the franchise;
(2) 
An indemnity and hold harmless provision;
(3) 
An insurance commitment, as required;
(4) 
Performance bonds or other security, as required;
(5) 
Completion bonds or other security, as required;
(6) 
The clearly designated service area;
(7) 
A schedule of service to any unserved areas of the town;
(8) 
The construction, upgrade or rebuild schedule, if applicable;
(9) 
Compensation, including, but not necessarily limited to, a franchise fee for administering the franchise;
(10) 
A fee or rent for the commercial use and occupancy of the town's property and rights-of-way;
(11) 
A statement of repeal of any previously granted or inconsistent franchise;
(12) 
A severability clause;
(13) 
A commitment to abide by any and all laws, rules and regulations that govern the franchise or its use and occupancy of the town's property and rights-of-way and the provision of service;
(14) 
Any exemptions or relief from this article, or any comparable policy, as may be granted; and
(15) 
An effective date.
D. 
Without limitation other than as may be established by supersedent law, the town shall always have the right to require additional matters, issues and subjects to be contained in a franchise as may be reasonably deemed necessary in the interest of and to protect the town and its residents.

§ 146-48 Extent of grant of a franchise; wireline system and service.

A. 
Upon an award of a franchise, and in accordance with the terms of the franchise, a service provider or system owner or operator required to obtain a franchise may construct, erect, install, maintain, rebuild, upgrade, operate, repair, replace, remove and restore service or a system within the geographical limits set forth in the franchise, but only to the extent permitted by this article and the terms and conditions of the franchise.
B. 
Any franchise granted under this article shall be solely and exclusively for wireline service, unless express written authority and permission to use the system for the receipt or provision of wireless service(s) is obtained from the town, and no wireless reception or transmission equipment or facilities shall be attached to or use the wireline system located on or using town-owned property or rights-of-way without the express written permission of the town, which authority must be expressly contained in any franchise.
C. 
The system may be located in, upon, along, across, over and under the streets, rights-of-way, easements and public ways of the town as more specifically set forth in the franchise, but only to the extent set forth in this article and the franchise.
D. 
A service provider or system owner or operator shall be solely and separately responsible for obtaining any required easements for the use of private property, including privately-owned utility or streetlight poles, solely at its own cost.
E. 
A service provider or system owner or operator, through a separate pole or conduit agreement with a utility or the town, may locate the system on, or within, the easement or property of such utility in the town, so long as the system and service is deemed a compatible use of the easement and such use is expressly permitted by the holder or owner of the easement.

§ 146-49 Term of a franchise.

A. 
The term of an initial franchise shall be no more than 10 years from the date that a franchise is approved by the Town Board and is executed by an authorized official of the town and the affected service provider or system owner or operator. Ten years shall be the maximum term permitted absent the demonstration of the need for a longer term for financial reasons, such as, for purposes of example, the time needed to recoup the initial investment plus a reasonable return on the investment as set forth in Subsection C of this section.
B. 
No franchise may contain an option to extend the term of the franchise where such option is automatic or able to be unilaterally exercised.
C. 
The town shall not be obligated to grant a franchise for a period of time that is greater than is necessary to recoup the amount of any capital expended that was required by the town or as may be agreed to during negotiations for the franchise, plus a return-on-investment attributable to that capital investment.
D. 
The permitted return-on-investment shall be as may be agreed to in the franchise, or as may be established by the FCC or the PSC for telecommunications utilities, or 11.5%, whichever is less.
E. 
A system owner or operator or service provider shall be required to demonstrate to the Town Board the financial need of the requested term of the franchise in the form of an analysis as deemed appropriate and necessary and in reasonable detail as may be required by the Town Board.
F. 
Unless ordered or otherwise required by a court of competent jurisdiction, or unless required by state law, the town shall not disclose the details of financial information provided under this section, other than to make public the length or term of the franchise and the rate of return on capital investment used to determine or verify the need and justification for the term granted.
G. 
The term of a renewal of a franchise or the grant of a franchise subsequent to an initial franchise to an incumbent service provider or system owner or operator shall be for a period of not less than 3 1/2 years, measured from the date that a franchise is approved by the Town Board, and if required is approved by the PSC. The maximum term shall be no more than 10 years, absent demonstration of the financial need for a longer term as set forth in this section.
H. 
In the event of the expiration of a franchise prior to the renewal or issuance of a subsequent or different franchise than that originally granted, unless prohibited by state law or rule, at the discretion of the Town Board continued authority may be granted in ninety-day increments.

§ 146-50 Service area.

A. 
An application or proposal for a franchise, or for the grant of a franchise subsequent to the expiration of a previously granted franchise, may, at the discretion of the Town Board, be required to include a plan to make service available to any or all residences, dwellings, businesses and establishments located on any or all public streets and roads throughout the town.
B. 
As determined by the Town Board at its discretion, the cost of any line extension may either be apportioned among the subscribers and users of that line extension or, at the discretion of the Town Board, among all subscribers and users of that system or service provider in the town.
C. 
If the town adds or incorporates additional land through annexation or any other lawful means, pursuant to Subsection A of this section, the service provider or system owner or operator serving that area may, at the discretion of the Town Board, be required to extend service to the new locations within the reasonable time frame established by the Town Board.
D. 
A plan submitted or required to be submitted pursuant to Subsection A of this section that requires more than one year for completion as measured from the date of the directive of the Town Board shall be accompanied by a detailed explanation justifying the need for the additional time, which justification shall include detailed supporting evidence of the reasons for the needed additional time, as well as a date specific by which service shall be available to all residences, dwellings, businesses and establishments on any or all public streets and roads in the subject area.
E. 
Town Board may grant relief from this requirement for one or more unserved areas within the town if the applicant provides an explanation acceptable to the town as to why a particular area cannot be served.

§ 146-51 System or service expansion.

Any franchise agreement that does not contain a plan for service to all occupied homes and buildings in the town, pursuant to § 146-50 of this article, shall contain a system expansion or line extension plan and schedule for areas not served as of the effective date of the franchise.

§ 146-52 Application for franchise.

A. 
For service providers or system owners or operators classified as cable operators, the Town Board shall follow all applicable rules of the FCC and the PSC, with respect to the submission and processing of initial and renewal applications or proposals for a franchise. Notwithstanding the preceding, in the event the applicant is an incumbent and proposes or requests to be permitted to allow the system to be used for the provision of service other than for cable service as defined under Section 631 (a)(2) of the Communications Act of 1934 [at 47 U.S.C. § 551(a)(2)], such application or proposal shall not be deemed a renewal application or a renewal proposal. Any proposal or application by a current holder of a cable franchise agreement with the town, and which proposal is for the provision of service or the ownership or operation of a system as defined in § 146-4 of this article shall be deemed an initial application or a renewal proposal, except as regards the provision of cable service or the use of the system to provide cable service, in which case that portion of the application related to the provision of cable service, but only that portion, shall be deemed a renewal application subject to Section 626 of the Cable Act of 1984, as amended (at 47 U.S.C 546).
B. 
For service providers or system owners or operators not deemed solely cable operators, and thus subject to the rules of the FCC and the PSC as set forth under Subsection A of this section, the Town Board may develop rules with respect to the submission and processing of initial and renewal applications or proposals for a franchise. Such rules and regulations shall primarily be aimed at determining the legal, financial, technical and character qualifications of the applicant, though the town may also consider other matters deemed of importance that are not prohibited from consideration by applicable law, including, but not limited to, the applicant's or proposer's history of performance and compliance, both in the town and elsewhere.
C. 
With respect to an initial application or proposal for a franchise, an applicant shall pay an initial nonrefundable application fee as established by resolution of the Town Board, which fee shall be for the purpose of covering the town's fully allocated costs of processing and analyzing the application. An application for a franchise that permits uses of a system not expressly set forth in a previous franchise shall be deemed an initial application for an initial franchise.
D. 
An initial application for a franchise to use and occupy the town's property and town-owned and managed rights-of-way to provide service or own or operate a system for commercial purposes shall place a deposit with the town in the amount of $20,000 to cover actual costs associated with, attributable to, and necessitated by the process.
E. 
As the town would otherwise be required to deal with experts in the industry without the aid of equal expertise and knowledge, which situation creates an insurmountable disadvantage for the town and would prevent the Town Board from making truly informed decisions, the cost of outside expert assistance, including legal assistance as may be necessary, is deemed a cost associated with, attributable to, and necessitated by the process for the purposes intended by this section. At any time during the processing of an application or proposal and the negotiation of a franchise that the balance of the deposit required under Subsection D of this section is less than $5,000, then, upon notice by the town, the applicant shall be required to restore the deposit to $7,500 before further processing of the application or proposal. At the conclusion of the process, any remaining balance shall be promptly returned to the applicant.
F. 
As consideration of a request for renewal of a franchise is deemed an extraordinary cost to the town that is not part of the normal administration of the existing franchise, then unless expressly prohibited by federal law or rule, an applicant requesting a renewal of its a franchise or the grant of a new franchise subsequent to the grant of a previous one, may be required by the town to place on deposit with the town an amount not to exceed $20,000 to cover the fully allocated costs of processing and analyzing the application or proposal. At the conclusion of the process, any remaining balance shall be promptly returned to the applicant.
G. 
An applicant with an existing franchise shall not be required to pay both an application fee under Subsection D of this section and place a deposit under Subsection E of this section, regardless of the nature of the application.
H. 
Any application or proposal shall be accompanied by the amount required at the time of the filing of the application or proposal. In the event the application or proposal is not accompanied by the required payment or deposit, the application or proposal shall be deemed incomplete and no action shall be taken on the application or proposal until the required deposit is received.

§ 146-53 Franchise fees.

A. 
Any service provider or system owner or operator that is granted a franchise or the renewal of a franchise after the date this article becomes effective shall pay to the town an amount that is equal to the fully allocated cost of administering the franchise for the year, which cost shall be based on the budget adopted by the town for that year.
B. 
Notwithstanding the requirement of Subsection A of this section, the town may at its discretion elect to assess a franchise fee in any amount up to the maximum amount permitted under law.
C. 
The requirements of this section shall not change the terms of payment or increase the computational formula for the payment of a franchise fee contained in a franchise agreement in existence and effective as of the effective date of this article.
D. 
The franchise fee shall be paid on a calendar quarter basis, unless otherwise stated in the franchise, and shall be deemed late if received later than 45 days after the end of any calendar quarter.
E. 
Notwithstanding anything to the contrary in Subsections A or B of this section, upon the expiration of a franchise agreement in existence as of the effective date of this article that contained a smaller franchise fee than is permitted by law, the town may increase the previously required franchise fee to the maximum permitted under law, including for or during any period of continued authority pending the grant of a new or renewed franchise.
F. 
If the town assesses the franchise fee as a percentage of revenue, notwithstanding the fact that certain types of service providers or system owners or operators may be required to remit an annual fee to the PSC, to the extent that the payment of such annual fee, when added to the franchise fee payable to the town, is greater than the maximum permitted by law, and to the extent required by law, but only if expressly required, the amount of the PSC's annual fee shall be permitted to be deducted from the amount that would otherwise have been permitted to be paid to the town. In the event that the service provider or system owner or operator does not pay the annual fee to the PSC out of gross revenue, but elects merely to collect the fee from subscribers separately and apart from the rate for service and other charges, and remit the amount so collected to the PSC, then the amount remitted to the PSC shall not be permitted to be deducted from the amount that would otherwise have been permitted to have been paid to the town.
G. 
If the town assesses the franchise fee as a percentage of revenue, then if the FCC, Congress or any other governmental agency with authority to establish the maximum allowable franchise fee increases the maximum permissible franchise fee beyond 5% of gross revenue, then upon 90 days' notice by the town to the franchisee, to protect against the derogation of its rights, the town shall have the right and authority to increase the franchise fee to the maximum percentage or amount permissible.
H. 
Subject to federal law, and notwithstanding anything preceding in this section, and without limitation other than as established by state or federal law, nothing shall limit the authority of the town to assess and impose a franchise fee, or its functional equivalent, on any source, portion, category or type of revenue, or to exempt any source, portion, category or type of revenue from inclusion in the computational base used to calculate the franchise fee or its functional equivalent, so long as such is done in a nondiscriminatory and competitively neutral manner with respect to competitive service providers or system owners or operators in the town, and so long as the fee does not exceed the maximum allowable under law.
I. 
If the town assesses the franchise fee as a percentage of revenue, then in the event the town eliminates subscriber revenue from the revenue base used to calculate the franchise fee, or decreases the percentage attributable to subscriber revenue, upon notice from the town of such elimination or reduction, a service provider or system owner or operator paying a franchise fee that is calculated on subscriber revenue shall reduce the amount of subscribers' or users' monthly bills to reflect the decrease starting in the subscriber's or user's next bill.
J. 
If the town assesses the franchise fee as a percentage of revenue, then, unless expressly set forth to the contrary in a franchise, a service provider or system owner or operator that is required to pay a franchise fee or its functional equivalent shall file with the town, within 45 days after the expiration of each calendar quarter, a complete and unexpurgated income statement, together with the basis of the calculations for the franchise fee, showing all computations used to determine the franchise fee.
K. 
The income statement required in Subsection J of this section shall be in the form and format used in Generally Accepted Accounting Principals (GAAP) and showing all incremental and individual types, categories and sources of revenue needed to ascertain the accuracy and completeness of the total payment and shall reflect the following requirements.
(1) 
The income statement shall never be a synopsis of revenue whereby different revenue sources are grouped together showing only a single number for multiple types or sources of revenue.
(2) 
The income statement shall show all revenue and other valuable consideration from whatever source that is derived from, or caused to be derived from, or that is attributable to the operation of system and/or the provision of any service or use in the town, including revenue earned from subscribers and from those who are not subscribers but are users of the service or system.
(3) 
The income statement shall be certified by an officer of the service provider or system owner or operator attesting to the accuracy, completeness and veracity of the revenue figures and other information contained therein.
L. 
As an alternative to the income statement requirements of Subsections J and K of this section, the system owner or operator or service provider may provide a photostatic copy of the unexpurgated Revenue Chart of Accounts applicable to the calculation of the franchise fee taken from the ledger of any person or entity who derived revenue as the term "gross revenue" is defined in § 146-4 of this article, along with a statement of certification by an officer of the system owner or operator or the service provider attesting to the accuracy and completeness of the reported revenue as relates to the payment of the franchise fee.
M. 
The provision of the information required under Subsections J and K or Subsection L of this section shall be made simultaneously with the payment of the franchise fee.
N. 
If the payment of the franchise fee is made after the deadline set forth in Subsection C of this section, the system owner or operator or service provider may be required to pay the town interest for the entire amount owed for any period of time beyond the deadline set forth in Subsection C of this section. The interest shall be the prime rate as listed in the Wall Street Journal as of the end of the calendar quarter for which the payment is due, plus 2%, unless state law establishes a maximum permissible interest rate, in which case the rate shall be the maximum interest allowable under state law, given the facts and circumstances.
O. 
In the event that the franchise fee payment is not made in full by the due date set forth in Subsection D of this section, and payment in full is not made within 30 days after notice thereof by the town, including all interest due, then in addition to the provisions of Subsection N of this section the service provider or system owner or operator may also be declared in default of the franchise and subject to all fines, penalties and sanctions permitted under law.
P. 
Should the total amount owed under Subsection M of this section remain unpaid for 60 days after the date of the notification of nonpayment or late payment, then the franchise may be revoked, terminated or canceled as noted elsewhere in this article and in accordance with rights of due process.
Q. 
The Town Board shall have the right from time to time to examine, audit and analyze the financial records of a service provider or system owner or operator, including any subsidiary, affiliate or parent that derives revenue as gross revenue is defined in § 146-4 of this article or to require delivery to the town true and complete copies of such records. In the alternative, the Town Board may require the delivery to the town of photostatic copies of the Revenue Chart of Accounts of any subsidiary, affiliate or parent that derives revenue as gross revenue is defined in § 146-4 of this article for the period being reviewed. If such audit, examination or analysis discovers an underpayment of the franchise fee or its functional equivalent of greater than 1% of the actual amount owed, then the service provider or system owner or operator shall reimburse the town for the cost of the audit, examination or analysis. It is specifically understood that the right of audit, examination and analysis, and the recomputation of any and all amounts paid, shall always be accorded the town.
R. 
If an audit or other investigation discovers that the full amount of the franchise fee has not been paid for a period exceeding six months from the original due date, notwithstanding Subsection N of this section, then the Town Board may seek full recovery of the unpaid fees, plus interest as set forth in Subsection N of this section, and the town may demand recovery of all of the fully allocated costs incurred that are associated with and necessitated by the act of underpayment or nonpayment, including all reasonable attorney's fees and expert's fees.
S. 
If the town assesses the franchise fee as a percentage of revenue, all reports due and pertaining to the remittance of the franchise fee will be certified by an officer of the service provider or system owner or operator, or its parent, and will be provided in the form, format and detail applicable to quarterly reports pursuant to Subsections J and K or Subsection L of this section. A service provider or system owner or operator shall maintain records used in the preparation of said reports for the duration of the franchise, to be produced and delivered in their totality upon request by the Town Board.
T. 
No acceptance of any payment shall be construed as a release, accord or satisfaction of any claim that the town may have for further or additional sums payable under the provisions this article or any franchise, or for any other performance or obligations of a service provider or system owner or operator hereunder.
U. 
Pursuant to the provisions of this article, payments of franchise fees made to the town by a service provider or system owner or operator, or remittances of amounts collected, shall be considered in addition to, and exclusive of, any and all taxes, business licenses or fees, or other fee levies or assessments.
V. 
A franchise fee required of a cable operator shall not include any items excluded by Section 622(g)(2)(D) of the Cable Act [codified at 47 U.S.C. § 542(g)(2)(D)]
W. 
Nothing in this section shall limit the authority of the town to require the payment of a fee or other assessment of any kind, by any third-party person or entity who provides service over or using a system in the town for which charges are assessed to subscribers or users, but which charges are not received by a service provider or system owner or operator who has been granted a franchise. For purposes of illustration, this shall include situations where a provider of a particular service using an OVS system directly bills a subscriber or user, or when the service provider or system owner or operator acts as collection agent for a third-party provider of a particular service when the third-party service provider directly bills subscribers or users, or where a third-party person leases a channel for commercial purposes and receives revenue directly or through a third party.
X. 
For any twelve-month period, the franchise fees paid by any person who provides service pursuant to Subsection W of this section shall not exceed 5% of such person's gross revenue derived in such period from the provision of service in the town, or the maximum permitted by law or rule at any time.
Y. 
Notwithstanding anything in this section, in the event a service provider or system owner or operator does not pay the franchise fee itself out of gross revenue, but instead chooses to pass the franchise fee through to subscriber or users, incrementally and in addition to the amount owed for service, so that the effect is that the franchise fee is paid by the subscriber or users and not the service provider or system owner or operator out of gross revenue, and is merely collected and remitted by the service provider or system owner or operator, then, in such an instance, the service provider or system owner or operator shall not be permitted to deduct the franchise fee from what is owed for property taxes, or any other taxes or money, due the town if otherwise permitted.

§ 146-54 Rent or right-of-way use and occupancy fee.

A. 
Pursuant to Section 253 (c) of the Telecommunications Act of 1996, the town reserves and preserves the right to assess, impose and collect rent or a right-of-way use and occupancy fee from any service provider or system owner or operator occupying and using the town's property and the town's rights-of-way for commercial purposes.
B. 
If assessed, the town shall at all times diligently attempt to assure that the imposition of rent or a right-of-way use and occupancy fee is done on a nondiscriminatory and on a competitively neutral basis.
C. 
The amount of rent or the right-of-way use and occupancy fee shall not be less than the fair market value of the town's property and rights-of-way that are used and occupied for commercial purposes, as determined by the Town Board; nor shall the amount of rent or the right-of-way use and occupancy fee exceed the fair market value of the town's property and rights-of-way that are used and occupied by a service provider or system owner or operator for commercial purposes, as determined by the town's assessor or another qualified individual as may be designated by the town.
D. 
An assessment pursuant to this section shall be based upon either the fair market value of like or similar property adjacent to the town's property or rights-of-way that are used and occupied by the service provider or system owner or operator serving that portion of the town, or the average fair market value of commercially zoned property within the town that is used and occupied for commercial purposes as determined by ascertaining the average or mean value for the preceding three years, or up to 5% of the gross revenue of the service provider or system owner or operator as gross revenue is defined in § 146-4 of this article, whichever is greater. The Town Board shall make the determination which of the alternatives set forth in this subsection it chooses to use, but the town may use only one of the three alternatives and never a combination of such.
E. 
Notwithstanding anything to the contrary in this section, the town may negotiate with a service provider or system owner or operator for the in-kind provision of services or other valuable consideration in lieu of all or a portion of the amount that would otherwise be required to be paid. However, the town shall not be obligated to grant this option to any service provider or system owner or operator, so long as it applies this authority in a manner among like or similar service providers that is nondiscriminatory and competitively neutral in effect with respect to the value received by the town.
F. 
In the event the town elects to determine rent or a right-of-way use and occupancy fee using a percentage of gross revenue, the requirements of Subsections J through X of the previous section shall apply.
G. 
All payments of rent or a right-of-way use and occupancy fee shall be quarterly on a calendar year basis, unless otherwise expressly set forth in the franchise.

§ 146-55 Assignment, transfer or sale of franchise.

A. 
There shall be no assignment of a service provider's or system owner's or operator's franchise, in whole or in part, nor shall there be any change in the ownership, or the legal or financial control, of the service provider or system owner or operator, or of any parent or controlling entity, whether control is direct or indirect, or where such change results in any change in control of the system or the facilities used to provide service, or of the holder of the franchise, whether such change in control is direct or indirect, de juri or de facto, nor shall there by any change in control or ownership of the system's facilities and components, without the prior express written approval and consent of the Town Board. "Control" and "change in control" shall have the meanings set forth in § 146-4 of this article.
B. 
A service provider or system owner or operator classified as a cable operator shall have its franchise assigned, transferred or sold only in accordance with the Cable Act of 1984, as amended, and with applicable FCC rules and state law, rules and regulations.
C. 
For all service providers or system owners or operators subject to this section, including those classified as cable operators, the franchise shall be assigned, transferred or sold, or control changed, only as described in Subsection A of this section, and only after the Town Board determines that the proposed transferee or controlling entity can and will meet all obligations contained in the existing franchise, unless granted separate and deliberate relief is granted as part of the transfer request process.
D. 
No franchise approval of request for transfer or change in control shall occur with outstanding, uncured violations of this article or breaches of the franchise, and until all money that may be owed the town has been paid in full.
E. 
In the event the Town Board, at its sole discretion, elects to approve a request for change in ownership or control contingent upon the transferee or assignee accepting responsibility for outstanding or uncured violations of this article or breaches of the franchise, the Board may require the assignee or transferee to post sufficient security to assure that the violations and/or breaches are remedied and cured as required.
F. 
Mergers or consolidations shall require the consent of the Town Board pursuant to Subsection A of this section.
G. 
The sale of the system or the sale of any business associated with the operation of the system or the provision of service shall require the prior consent of the Town Board.
H. 
Any Assignment, change in control or sale as set forth in this section that occurs without the prior written consent of the Town Board shall constitute a violation of this article and a default of the franchise, and may, at the discretion and in the judgment of the Town Board, subject the franchise to revocation and other sanctions or penalties as permitted under law.

§ 146-56 Default of franchise; revocation, termination or cancellation of franchise.

A. 
In the case of any procedure concerning or involving the default, involuntary termination, revocation, unilateral alteration or suspension of a franchise granted or enforceable under this article, the Town Board shall follow the rules and procedures set forth in this section, unless expressly prohibited or preempted by state law or rule. Such action may be in addition to the payment of fines and/or the imposition of penalties, unless otherwise deemed impermissible under applicable law.
B. 
When an act of evasion, avoidance or omission, or the failure to comply with a time-related or performance-related requirement of this article or the franchise is committed by a service provider or system owner or operator which represents a material violation of a provision of this article or the franchise, or compromises the corporate character, or legal, financial or technical ability, integrity and/or stability of the service provider or system owner or operator to such a degree that the interests of the subscribers and users or the town are substantively affected in a negative manner, then such violation, breach, act of evasion, act of avoidance or omission shall be considered a material violation of this article and breach of any franchise granted or enforceable hereunder. Under such circumstances, the town shall notify the affected service provider or system owner or operator, in writing, of the specific violation or breach, and direct the service provider or system owner or operator to remedy the breach or violation in accordance with the provisions of this article.
(1) 
For illustrative purposes only, violations, breaches, acts of evasion or avoidance and omissions include, but are not limited to: bankruptcy, insolvency, failure to pay taxes or pay franchise fees or the functional equivalent, including a rent or right-of-way use and occupancy fee, or repeated failure to comply with the provisions of this article or a franchise, after proper notice, showing a pattern of failure or refusal to abide by the terms and conditions of the franchise or the provisions of this article.
C. 
Where a service provider or system owner or operator corrects any violation or breach to the satisfaction of the Town Board or as required in this article or a franchise within 30 days after notification by the town, and where the situation does not involve the repeat of a type of violation for which the service provider or system owner or operator has previously received notice within the past 24 months, then the procedure provided for under this section shall cease, and the enumerated condition shall not be considered in any subsequent compliance or performance review, so long as it has not been repeated.
D. 
Notwithstanding anything to the contrary in Subsection C of this section with respect to the thirty-day cure period, to protect the health and safety of the public, at the discretion of Town Board, violations of construction-related or safety-related requirements may be required to be corrected, eliminated or otherwise cured in less than 30 days.
E. 
A copy of the notice of violation or breach shall also be mailed to the surety of the system owner or operator or service provider.
F. 
Within 60 days, but in no case sooner than 30 days, after the written notice is mailed, the Town Board or the Administrator may conduct a hearing on the matter, unless state law requires a different procedure, in which event the state-mandated procedure shall control.
G. 
The Town Board shall provide written notice of the date, time and place of the hearing at least 30 days prior to the hearing to the affected service provider or system owner or operator.
H. 
At the time of the hearing, the service provider or system owner or operator, or its representative or legal counsel, may present information on the current status of the alleged violation of this article or breach of the franchise; and present arguments as to why the situation is not a violation or breach, including evidence in support of such an argument; and why the service provider or system owner or operator should not be subjected to sanctions as permitted under this article and applicable state law. If the situation has been resolved, or meaningful and substantive steps are being taken to resolve the situation, then the service provider or system owner or operator shall present such information at the hearing.
I. 
If the service provider or system owner or operator fails to attend the hearing and has not requested and been granted a continuance of the hearing, then the service provider or system owner or operator shall be deemed to have waived its right to a further continuation of the matter, and may be declared in violation of this article or in breach and default of the franchise based on the evidence available at that time.
J. 
After the public hearing, the Town Board or Administrator may:
(1) 
Determine the service provider or system owner or operator to be in compliance and dismiss the matter, with or without prejudice;
(2) 
Determine that the service provider or system owner or operator has adequately remedied and cured any violation or breach and thereby dismiss the matter; or
(3) 
Determine that a violation has been committed and remains unremedied and uncured.
K. 
Upon a finding that the service provider or system owner or operator violated this article or committed a breach of a material provision of the franchise that resulted in a violation of this article, and failed to remedy and adequately cure the violation of this article or material breach of the franchise, the Town Board or the Administrator may direct the service provider or system owner or operator to take corrective action to eliminate, remedy or cure the violation or breach within a specified period of time; or may for sufficient cause declare the service provider or system owner or operator in default of the franchise. The Town Board, and only the Town Board, thereafter may revoke, terminate or cancel the franchise pursuant to this section, unless the service provider or system owner or operator complies with the directive or order of the Town Board or the Administrator, or presents sufficient mitigating circumstances that, at the discretion of the Town Board or the Administrator, warrant less severe or extreme measures.
L. 
If the Town Board or the Administrator directs corrective action to take place within a specified period of time, or declares the service provider or system owner or operator in default of the franchise, then the directive or declaration shall be committed to writing and the notice of corrective action or default shall be mailed within 21 days of the action of the Town Board or the Administrator to the service provider or system owner or operator and to its surety.
M. 
If, within the time set forth in the order or directive, the service provider or system owner or operator, or its surety, has not complied with the order or directive, or submitted a plan detailing how the service provider or system owner or operator will comply with the order or directive as given, or has not paid any amount due, including proposing an alternative time frame for compliance as may be acceptable to the Town Board at the Board's sole discretion, then the Town Board may impose fines or penalties as set forth in this article, or in the extreme may terminate and revoke the service provider's or system owner's or operator's franchise and, unless there are further mitigating circumstances, shall notify the affected service provider or system owner or operator and its surety of such action.
N. 
In the event fines are imposed, the compliance or performance security placed with the town may be used to collect the fines and the town may take such action as is required to call on or draw against the security.
O. 
In the event of the termination and revocation of the franchise, simultaneously or within seven days after notification of such action, the Town Board or the Administrator shall notify the service provider or system owner or operator and its surety that any security is forfeited. The town may then take such action as is required to collect on the security.
P. 
If deemed appropriate by the Town Board or the Administrator given the facts and circumstances, the town may call for the security in further settlement of the matter.

§ 146-57 Compliance and performance evaluations.

A. 
The town shall periodically monitor the compliance of service providers or system owners or operators who are subject to the requirements of this article in whole or in part. Prior to the conduct of an evaluation, the Town Board or the Administrator shall establish a procedure for such purpose and shall provide the procedure to the service provider or system owner or operator. Included in a compliance review may be an examination to determine whether a service provider or system owner or operator still has the financial, technical, legal and character qualifications necessary to operate a system and/or offer service in the town. Such review shall also include an examination to determine if the operational, maintenance and performance levels meet the minimum requirements of this article. Compliance reviews may be conducted every three years, or more frequently if deemed necessary and appropriate due to subscriber or user complaints, or complaints from the public, or due to reasonable evidence of violations of this article or material breaches of the franchise. However, no compliance review shall occur more than once in any three-hundred-sixty-five-day period.
B. 
If, as a result of any investigation, evaluation or determination permitted under this section, the Town Board or the Administrator determines that the service provider or system owner or operator has not complied with one or more provisions of this article for which relief has not been granted for the period covered by the review, irrespective of whether or not the violation can be corrected, eliminated, remedied or cured, then the Town Board or the Administrator may require the service provider or system owner or operator to reimburse the town for all actual fully-allocated costs incurred by the town that are necessitated by such violation(s) or act(s) of noncompliance, evasion or avoidance. Any matter of noncompliance or act of evasion or avoidance for which relief has not been properly requested and granted pursuant to § 146-7 of this article, shall be deemed a violation of this article.
C. 
Notwithstanding Subsection B of this section, the Town Board or the Administrator shall give the service provider or system owner or operator an opportunity either to:
(1) 
Correct, eliminate, remedy or cure any violation or act of noncompliance, evasion or avoidance;
(2) 
Submit documentation or supporting evidence that resolves any area of noncompliance or act of evasion or avoidance to the satisfaction of the Town Board or the Administrator; or
(3) 
Explain the lack of effect of such to the satisfaction of the Town Board or the Administrator.
D. 
The period of time allowed for the elimination of any violation or act of noncompliance, evasion or avoidance that can be corrected or eliminated shall be set by the Town Board or the Administrator, which period of time may not be unreasonable taking into account whether such act of noncompliance, evasion or avoidance was one of a first-occurrence or is a repeat of the same or similar act of noncompliance, evasion or avoidance, as well as the seriousness of the situation, including, but not limited to, the impact or potential impact on the health, safety and welfare of the town, its residents or both.
E. 
To serve as an incentive for compliance with this article and the intent thereof, if any violation of this article that is identified pursuant to this section cannot be eliminated due to the nature of the violation, including, but not limited to, the passage of time or the inability to undo an act of omission, evasion or avoidance, unless expressly prohibited by state law, the inability to eliminate or undo the violation shall not relieve or eliminate the obligation of the service provider or system owner or operator to cure any violation as such cure may be reasonably determined by the Town Board or the Administrator, including, but not limited to, a financial cure.
F. 
If the service provider or system owner or operator fails to correct or resolve an area of noncompliance in a timely manner, as such is determined by the Town Board or the Administrator, which period of time may not be unreasonable taking into account whether such act of noncompliance, evasion or avoidance was one of a first-occurrence or is a repeat of the same or similar act of noncompliance, evasion or avoidance, and the seriousness of the situation, including, but not limited to, the impact or potential impact on the health, safety and welfare of the town, its residents, or both, or fails in a timely manner to provide an explanation that demonstrates the lack of culpability of the service provider or system owner or operator, then such failure may be treated as a material violation of this article and subject the service provider or system owner or operator to the appropriate sanction of the Town Board as permitted under this article and applicable state and federal law. Such action or sanctions may, at the discretion of the Town Board or the Administrator, include the imposition of fines and penalties as set forth in this article, and as permitted by state law.
G. 
Notwithstanding anything contained in the preceding subsections of this section, the elimination, remedy or correction of a violation shall not de facto serve to eliminate the imposition of fines and penalties under this article. Rather, such shall serve to protect a service provider or system owner or operator from the further and continued accrual of fines and penalties under this article for the same violation.

§ 146-58 Rates and charges.

A. 
To the extent permitted by law, the Town Board expressly reserves the right to regulate the rates for service and the nonregularly occurring charges of a system owner or operator or service provider operating within the town.
B. 
Before the Town Board exercises any authority to regulate rates or charges and impose, approve, disapprove or order the change of any rates or charges, or order a refund or rebate, the Town Board must conduct a public hearing in which to allow an affected service provider or system owner or operator, and any other interested party, an opportunity to be heard and express his or her views concerning the matter, and to introduce evidence in support of or opposition to the contemplated or proposed action.
C. 
After due process has been afforded a service provider or system owner or operator, if the Town Board requires a refund or credit to be given to subscribers or users, then, if any payment made to the town during the period involved was based on gross revenue or some portion of gross revenue, and the service provider or system owner or operator actually paid the fee or other payment out of its revenues and did not merely collect the fee or other payment from the subscribers or users excluding it from the gross revenue calculation and remit it to the town, the service provider or system owner or operator shall be eligible for a credit against its next fee payment to the town in an amount equal to the amount of the ordered refund or credit. Nothing shall limit the authority of the Town Board to issue such credit against the fee owed to the town over several payment periods.
D. 
Rates or charges paid by subscribers may not reflect any cost incurred in the course of eliminating or curing any violation of this article, or any breach or violation of the franchise, including any fines or penalties imposed because of such violation or breach, or any settlement arising out of any violation or breach, by a service provider or system owner or operator, as it was not the subscribers who violated the law or breached the franchise. The burden of such costs is to be solely that of the owners or stockholders.

§ 146-59 Interconnection.

A service provider or system owner or operator required to provide PEG access channels in the town may be required to interconnect its service or system, through any permissible means, to any other service or system operating within the town so that all public, educational and governmental access programming may be provided to all subscribers or users in the service area.

§ 146-60 Fines and penalties.

A. 
This article may be enforced by the Town Attorney or Attorney for the town, the Town Board, and if applicable the Administrator. In addition to all other rights and powers vested in and possessed by the town, the Town Board reserves the right to seek fines and/or penalties, if required by state law, in the lowest court of competent jurisdiction in the town.
B. 
Notwithstanding the preceding Subsection A of this section, and if permitted by state law, the town reserves for itself the right to assess fines and/or penalties for any violation of this article, or any attempt to evade or avoid compliance with the requirements of this article, or for the failure of a service provider or system owner or operator to comply with any applicable time-related or performance-related requirements, or for the violation of any federal, state or local law, rule or regulation that is not specifically preempted from local enforcement, and, in the event such violation, evasion, avoidance or failure has not been remedied pursuant to procedures set forth in this article, to impose and assess fines or penalties as set forth in this section.
C. 
Any imposition of fines or penalties shall be preceded by written notice of the violation, and shall set forth the amount of time allowed for the elimination of the violation if elimination is reasonably practicable. Violations of the same or similar type and of a substantive number, but occurring at different locations or involving different persons, subscribers or users, shall not require individual notification but may be referenced by type of violation.
D. 
Absent good and just cause, including the provision of evidence of good faith efforts to comply with the requirements of this article, the failure by a service provider or system owner or operator to comply with any time-related or performance-related requirement of this article, or an act of evasion or avoidance of the requirements of this article, will subject the service provider or system owner or operator to the assessment and imposition of fines or penalties as set forth in this section. Once imposed, any fines or penalties shall continue to accrue, including during any appeals process, until such time as the payment of the fine and/or penalty is received by the town, or is otherwise specifically waived by the Town Board.
E. 
Failure to pay fines and/or penalties within the time provided shall be a material violation of this article and shall be cause to proceed against either a letter of credit or bond or other surety as may have been required. Failure to pay any fines under this section shall also constitute cause to revoke any franchise or other use, occupancy or operating authority granting permission to provide service in the town.
F. 
A service provider or system owner or operator found to be in violation of this article may be fined and penalized according to the following list of violations and schedule of fines and penalties for the violations listed. If permitted by state law, the Town Board reserves the right for the Town Board to fine and penalize any service provider or system owner or operator found to be in violation of this article according to the following list of violations and schedule of fines and penalties for the violations listed.
G. 
Each instance or occurrence shall be deemed a separate violation, and each day or part thereof following written notification by the town and the expiration of any period of time allowed for the elimination, remedy or cure of the violation that the violation continues or is not eliminated, remedied or cured as prescribed by the Town Board, shall be deemed a separate violation, punishable separately. The imposition and payment of fines and penalties as set forth in this section shall not serve to extinguish or eliminate any other rights of prosecution the town may have under law.
(1) 
For failure to complete any system construction, reconstruction or upgrade in any section of the town, or in the town as a whole, as committed to pursuant to in a proposal or franchise, an amount not to exceed $200.
(2) 
For failure to obtain a street cutting permit prior to the cutting or disturbance of any street, an amount not to exceed $500.
(3) 
For failure to comply with the privacy requirements as set forth in this article, an amount not to exceed $500 for the first violation or offense, and $1,000 for each subsequent offense after notification of the first offense.
(4) 
For failure to provide any data, documents, reports or information required by this article, or that is needed to monitor or determine compliance with and to administer this article, an amount not to exceed $100.
(5) 
For failure to test, analyze and report on the performance of the system following a written request to do so, an amount not to exceed $200.
(6) 
For refusal to cooperate with the town on any matter involving an inspection of the system and its components and facilities, an amount not exceed $100.
(7) 
For failure to comply with any consumer protection requirements of this article or a franchise, an amount not to exceed $100.
(8) 
For failure to comply with any requirements regarding deposits and the return of deposits as set forth in this article, an amount not to exceed $100 per day, per incident or per affected subscriber or user.
(9) 
For failure to comply with any requirements regarding the improper or impermissible discontinuance or disconnection of a subscriber's or user's service as set forth in this article or a franchise, an amount not to exceed $100.
(10) 
For failure to comply with any requirements regarding connections and disconnections as set forth in this article or a franchise, an amount not to exceed $100.
(11) 
For failure to comply with any requirements regarding disconnection and downgrade fees as set forth in this article or a franchise, an amount not to exceed $100.
(12) 
For failure to comply with any requirements regarding penalties for downgrade or disconnection as set forth in this article or a franchise, an amount not to exceed $100.
(13) 
For failure to comply with any requirements regarding any right of rescission as may be set forth in state law, or in a franchise, an amount not to exceed $500.
(14) 
For failure to comply with any requirements regarding the use and display of identification passes and badges as set forth in this article, an amount not to exceed $50.
(15) 
For failure to comply with any requirements regarding completion, cleanup and proper installation as set forth in this article, an amount not to exceed $100.
(16) 
For failure to comply with requirements regarding subscribers or users being advised in writing of specific procedures and policies as set forth in this article, an amount not to exceed $50.
(17) 
For failure to maintain a public inspection file as required by this article and FCC rules, an amount not to exceed $100.
(18) 
For failure to meet any construction or safety-related requirements of this article, including fire and electrical codes, an amount not to exceed $200 per violation.
(a) 
For reasons of impracticability and excessive, unreasonable and unnecessary cost to the town, in the event that a substantial number of safety-related violations are found during an inspection of a system within the town, such being defined as more than 10 in one continuous or contiguous mile of the system within the town, the town shall not be required to notify a service provider or system owner or operator of each and every individual safety or safety-related violation. Rather, in such an instance, the town may reasonably assume the findings to be prima facie evidence that the situation is town-wide and order the entire system to be inspected by the service provider or system owner or operator for either construction or safety-related violations, and order that all such violations found shall be eliminated within 30 days of the date of notification by the town.
(b) 
In the event of a situation described in Subsection G(18)(a) of this section, any fines imposed shall be calculated using the following formula:
Number of Violations Found
Miles of System Inspected
X
Total Miles in the Town = Total Violations
(c) 
As these issues are of paramount concern to the town, and as noncompliance with these requirements is normally deliberate, if the town is forced to notify a service provider or system owner or operator of construction or safety-related violations, the mere elimination of such violations within the required period of time contained in the notice shall not relieve an offending service provider or system owner or operator from the payment of fines imposed under this section. Fines for construction and safety-related violations shall accrue starting 48 hours after notification by the town of the existence of the violations, and shall continue until the service provider or system owner or operator certifies to the town in writing that all construction and safety-related violations associated with its system in the town have been eliminated.
(d) 
In the event a subsequent reinspection reveals that specific previously identified violations still exist, the fines may be doubled and shall accrue from the date of the first notice required pursuant to Subsection G(18)(c) until the elimination of the violation is verified.
(e) 
Notwithstanding Subsection G(18)(c) of this section, no fine or penalty shall be imposed on a service provider or system owner or operator for any construction or safety-related violation where it is proven that the violation was caused by the actions of a third party, provided that proof is provided of a demand by the service provider or system owner or operator to the party having caused the violation to eliminate the situation, including a diligent pursuit of the demand if necessary.
(f) 
In order to verify and assure continued compliance with all applicable construction and safety-related requirements, within a reasonable amount of time after the period of time set forth in the town's notice for the elimination of all construction or safety-related violations as set forth in Subsection G(18)(c) of this section, but in no case sooner than 35 days after the date of the notice of violation, the town shall have the system within the town reinspected by a party experienced in such inspections and that has no affiliation of any kind with any member of the industry.
(g) 
As the cost of a reinspection under Subsection G(18)(f) of this section is an extraordinary expense to the town caused by the impermissible actions of a service provider or system owner or operator, and is not deemed a normal cost of administering this article or a franchise, to prevent the taxpayers from having to bear the financial burden, the town may require the service provider or system owner or operator to place on deposit with the town an amount deemed to be reasonably sufficient to cover the cost of reinspecting 20% of the system within the town on a random sample basis and generating a written report on the findings of the inspection. The amount of the deposit shall not be less than $10,000, and any amount not expended shall be promptly returned to the service provider or system owner or operator.
(19) 
For failure to pay the full and complete amount of any money owed the town, including any interest that may be owed, an amount not to exceed $100.
(20) 
For failure or refusal to place or restore performance and completion securities as required, an amount not to exceed $100.
(21) 
For failure to comply with the requirements of this article with respect to continuity of service, or for threatening to discontinue service, for each day or part thereof that such noncompliance continues or such threat is not removed in writing to the town following written notification by the town of the violation, an amount not to exceed $1,000.
(22) 
For failure to comply with any other section, subsection or provision of this article, or a franchise, an amount not to exceed $50.
H. 
Notwithstanding anything in the preceding subsections of this section or any other section of this article, unless otherwise formally granted relief or a waiver by the Town Board or the Administrator, or unless a longer period of time is permitted after the initial 48 hours following notification by the town to the service provider or system owner or operator that a violation exists, each day that a violation continues shall constitute and be deemed a separate violation and may be treated as a separate offense.
I. 
Notwithstanding the provisions contained in this section of this article, a service provider or system owner or operator shall not be subject to penalties, fines, forfeitures, revocation or involuntary termination of a franchise for a technical violation of this article or a technical breach of a franchise. For purposes of this article, technical violations or breaches include the following:
(1) 
Instances or matters where a violation of this article or, where applicable, a franchise was a good faith error that resulted in no negative impact on the residents, subscriber or users within the town, or on the town itself, or where such violation resulted in de minimus effect on any of the preceding persons or the town; or
(2) 
Instances or circumstances that are reasonably beyond the control of a service provider or system owner or operator, including force majeure situations, and that prevent a service provider or system owner or operator from complying with this article or the franchise.
J. 
In the event of an appeal arising out of the enforcement of this section, or in the event of litigation arising out of a dispute regarding the enforceability of any action taken by the town under this section, the service provider or system owner or operator shall not be excused from the prompt and timely payment of fines and/or penalties as set forth in this section during the course of such proceeding. Payment of fines and/or penalties in such an instance shall be placed in an escrow account by the town, pending the resolution and decision of the adjudicating entity.
K. 
Notwithstanding anything in this section, or any other section of this article, and given the right of a service provider or system owner or operator to request relief from any provision of this article under § 146-7 of this article, a service provider or system owner or operator may not use the payment of fines and/or penalties to evade or avoid compliance with this article or any section of this article. An attempt to do so shall subject the service provider or system owner or operator to a fine not to exceed $10,000 for the first occurrence, and for a second such occurrence termination and loss of the franchise and a fine of $100,000.

§ 146-61 Notice of violation or failure to comply; hearing.

A. 
For the failure to comply with a time-related or performance-related requirement of this article which the town deems sufficient to warrant sanctions, the town shall provide notice and an opportunity to eliminate, remedy or cure.
B. 
Notwithstanding anything to the contrary in Subsection A of this section, or any other subsection of this section, to incent the protection of the public health and safety and the safety of public and private property, for situations involving violations of construction and safety-related codes and requirements where such are deemed to create an imminent threat or danger to lives or property within the town, and for which the service provider or system owner or operator has previously been notified of the same or similar situations in the previous 36 months, the service provider or system owner or operator shall be notified, but may not be granted an opportunity to remedy or cure prior to the imposition of fines and/or penalties. Rather fines and/or penalties may be assessed and imposed after proper written notice on a per occurrence per day basis, until the violation(s) is eliminated.
C. 
Notice and the opportunity to cure, as required, shall be provided to the service provider or system owner or operator in writing, and shall be sent by certified U.S. mail, return receipt requested, or may be personally delivered to the service provider's or system owner's or operator's local place of business.
D. 
A service provider or system owner or operator may request a hearing on the matter addressed in the notice required in Subsection A of this section, or the town may call a hearing on the matter. At the discretion of the Town Board, the hearing may be held before the Town Board or the Administrator.
E. 
Public notice shall be given of the hearing and of the issues that are to be considered by the town.
F. 
The Town Board or the Administrator or a designated hearing officer shall, at the date, time and place designated for the hearing, hear and consider issues from the town and the service provider or system owner or operator and make a determination regarding the alleged violation of this article or any franchise.
(1) 
The Town Board or the Administrator or a designated hearing officer shall hear and consider the matter, including hearing any person interested in the matter wishing to be heard, and review and consider any relevant evidence. After affording the service provider or system owner or operator required rights of due process to be heard, to present relevant evidence and witnesses and to question any witnesses, the Town Board shall determine, based on a preponderance of the evidence, whether or not there was committed a breach or violation of a time- or performance-related requirement of this article, or a breach of a term or condition of franchise, or a violation of any federal or state, law, rule or regulation or local law, regulation or code not expressly prohibited from local enforcement. The town shall have made a transcript of the hearing.
(2) 
The service provider or system owner or operator may, at its own expense, make a transcript of any such hearing, or it may share the costs of obtaining a transcript of such hearing equally with the town.
(3) 
At the hearing, the town and the service provider or system owner or operator may present evidence relevant to the issues being heard, including the right to call and examine and cross-examine witnesses.
(4) 
Within 30 days following the completion and close of the hearing, the Town Board or the Administrator or the hearing officer shall issue a written decision as regards whether any failure to comply with any time-related or performance-related requirement or act of evasion or avoidance of this article, or breach of a term or condition of the franchise, or violation of any federal or state, law, rule or regulation, or local law, regulation or code occurred. Such determination shall be based upon a preponderance of the evidence presented as contained in the record of the proceeding, stating with particularity the reasons for the decision.
(5) 
Within 30 days after the issuance of a decision, the Town Board shall then take formal action, either dismissing the claim of violation or breach or finding that the service provider or system owner or operator did commit the alleged violation or breach and did not cure or eliminate such as required. The Town Board's formal action shall be in writing and a copy of such shall be provided to the service provider or system owner or operator.
(6) 
Should the Town Board, the Administrator or the hearing officer find that no breach, violation or failure to comply or perform occurred, or, except for situations addressed in Subsection B of this section, that the service provider or system owner or operator remedied the violation or failure prior to or by the end of the period allowed for cure, or that the service provider or system owner or operator instituted substantial and meaningful good faith actions to remedy the failure to comply or perform after having been provided written notice, and actively and expeditiously started and undertook substantial and meaningful efforts to complete the remedy as directed by the Town Board, all of which shall be determined at the sole discretion of the Town Board, the proceedings shall be terminated and no penalty shall be imposed.
(7) 
The Town Board shall be required to base its decision on a preponderance of the evidence from the record established during the hearing. If the Town Board determines that a failure to comply with any time- or performance-related requirement of this article, or any act of evasion or avoidance of this article, or breach of a term or condition of the franchise, or of any federal or state law, rule or regulation or local law, regulation or code was the fault of the service provider or system owner or operator, and was within its control, subsequent to the required notice and opportunity to cure and due process requirements of this article, the Town Board may determine whatever action it deems appropriate as may be permitted under this article and the franchise. The Town Board's decision shall be final and no other remedies, administrative or otherwise, nor any procedures for such, are provided under this article.
(8) 
Prior to the imposition of any penalty or sanction against a service provider or system owner or operator, but not including fines as previously set forth in this subsection, the town shall provide the service provider or system owner or operator notice and opportunity to cure in accordance with the following Subsection F(8)(a) and (b).
(a) 
The town shall provide the service provider or system owner or operator with written notice specifying the nature of the failure, breach, violation or act of evasion or avoidance. The service provider or system owner or operator shall have a period of 48 hours following the receipt of such notice to cure or satisfy the alleged failure, breach or violation, with the exception of safety situations.
(b) 
In the event the Town Board or the Administrator concludes that the service provider or system owner or operator has failed to comply with its obligations under this article or the franchise, and that the service provider or system owner or operator has not remedied such failure, violation, act of avoidance or evasion or breach within the period set forth in the notice set forth in the preceding Subsection F(8)(a) after having received written notice, the Town Board may pursue whatever additional penalties or sanctions are provided for under state law, including civil or criminal prosecution.
G. 
The amount of time given the service provider or system owner or operator to cure any violation of this article, or any violation of any federal or state law, rule or regulation or other local law, regulation or code shall be at the discretion of the Town Board to the extent not otherwise governed by this article or state or federal law, but in no event shall a service provider or system owner or operator be given less than 48 hours, unless otherwise dictated by an emergency situation posing an imminent threat to the health and safety of individuals or the safety of public or private property. Notwithstanding the preceding, or anything else in this section or anywhere in this article, in the event a violation of the construction- or safety-related requirements of this article endangers, or has the reasonable possibility of endangering, the health or safety of individuals or the safety of property, the forty-eight-hour elimination period may be lessened and the elimination of the violation may be required the same day, depending upon the seriousness of the matter as a factor of the degree of danger involved or the imminence of injury or damage to property. Notwithstanding the preceding portion of this subsection, any lessening of the forty-eight-hour period shall be solely for purposes of eliminating the danger or threat, and shall not enable the town to impose fines during such shorter period.
H. 
The town may, in its reasonable discretion, grant extensions of time to a service provider or system owner or operator to eliminate, cure or remedy, where extraordinary circumstances not precipitated by the service provider or system owner or operator warrant an extension.
I. 
Notwithstanding any notice and opportunity to cure requirements of the applicable federal or state law, the issuance of two or more notices to cure or eliminate or remedy a violation for the same or similar provisions or requirement of this article, or two or more breaches of a term or condition of a franchise that constitute a violation of this article or an act of evasion or avoidance of the requirements of this article, or two or more violations of any federal or state law, rule or regulation or other local law, regulation or code within any twelve-consecutive-month period may be deemed a pattern of behavior that demonstrates an intent to continue violating this article and thereby relieve the town of any obligation to provide further notice and opportunity to cure for subsequent failures to meet the requirements of this article, or for breaches of terms or conditions of a franchise or violations of federal or state law, rule or regulation or other local law, regulation or code. Evidence of subsequent failures as set forth in this subsection shall be admissible as evidence in a hearing before the Town Board or the Administrator, or a designated hearing officer, regarding the assessment of fines and/or penalties, provided that the town has provided such evidence to the service provider or system owner or operator at least 10 days prior to the hearing and the service provider or system owner or operator has an opportunity to be heard at the hearing and to present evidence in contravention of the charge(s) or in defense of its actions.
J. 
A notice of intent to assess fines and/or penalties may be issued concurrently with a notice to cure. If a notice of intent to assess fines and/or penalties is issued concurrently with a notice to cure, then fines and penalties, if assessed, will accrue commencing with the expiration of the time allowed for an opportunity to cure as set forth in the notice. The notice of intent to assess fines and/or penalties shall state the reason for the assessment and imposition, and shall inform the service provider or system owner or operator that fines and/or penalties will be assessed from the date of the notice, or the end of the time allowed for an opportunity to cure, whichever is later.
K. 
If the service provider or system owner or operator desires to appeal the town's imposition of fines and/or penalties, it must file a written notice of appeal with the Supervisor or the Administrator, delivered by certified U.S. Mail/return receipt requested, within 10 days of the receipt of the notice of intent to assess fines and penalties. The Supervisor or Administrator shall then place the issue before the Town Board.
L. 
The town shall then have served upon the affected service provider or system owner or operator, by certified U.S. Mail/return receipt requested, a written notice of the date, time and place of the meeting at least 15 days prior to the date of the meeting of the Town Board at which the matter will be heard.
M. 
Public notice shall be given of the meeting and of the issue that is to be considered by the Town Board. If the franchisee or other service provider or system owner or operator fails to appeal the town's assessment or imposition of fines and/or penalties within the time required by this section, the town's decision to assess fines and/or penalties shall be final.
N. 
The Town Board shall, at the date, time and place designated for the hearing, hear and consider issues from the town and the service provider or system owner or operator and make a determination regarding the alleged violation of this article or any franchise.
(1) 
The Town Board shall hear both parties and consider the matter, including any relevant evidence presented.
(2) 
After affording the service provider or system owner or operator and the town the right to be heard and present evidence, the Town Board shall determine whether or not there was committed a violation of this article or a breach of a material term or condition of the franchise or a violation of any federal, state or other local law, rule, regulation or code.
(3) 
The town shall have made a transcript of the hearing. A service provider or system owner or operator may, at its own expense, make a transcript of the hearing, or may obtain a copy of the town's transcript if it shares the costs equally with the town.
(4) 
Within 30 days following the completion and close of the hearing, the Town Board shall issue a written decision as regards the commission of a violation of this article or breach of a material term or condition of the franchise or a violation of any federal, state or local law, rule, regulation or code, and such determination shall be based upon the record of the proceeding, stating with particularity the reasons for such decision. A copy of the Town Board's written decision shall be provided to the service provider or system owner or operator.
(5) 
Should the Town Board find that no breach, violation or failure to comply or perform occurred, or, except for situations addressed in Subsection B of this section, that the service provider or system owner or operator remedied the failure prior to the end of the period allowed for cure, or that the service provider or system owner or operator instituted substantial good faith actions to remedy the failure to comply or perform after having been provided written notice, and actively and expeditiously started and undertook substantial efforts to complete such remedy, or that fines and/or penalties are not warranted or applicable in the instant situation, all of which shall be determined at the sole discretion of the Town Board, the proceedings shall be terminated and no penalty shall be imposed.
(6) 
The Town Board shall be required to base its decision on a preponderance of the evidence from the record established during the Town Board's hearing. If the Town Board determines that any violation of this article or breach of a term or condition of the franchise or of any federal, state or local law, rule, regulation or code was the fault of the service provider or system owner or operator, and was within its control, subsequent to the required notice and opportunity to cure and due process requirements of this article, the Town Board may affirm the assessment and imposition of fines, penalties or sanctions as permitted under this article or state law. The Town Board's decision to affirm the town's assessment of fines, penalties or other sanctions shall be final and no other remedies, administrative or otherwise, nor any procedures for such, are provided under this article.

§ 146-62 Complaint procedures.

A. 
The town is hereby granted the authority to implement procedures for the filing and resolution of complaints.
B. 
The Town Board has the responsibility to adjust, settle or compromise any controversy arising from the operations of any service provider or system owner or operator, either on behalf of the town or any subscriber or user, in accordance with the best interests of the public and the town; provided, however, that any person aggrieved by a decision of the Town Board may appeal the matter for a hearing and determination in accordance with this article.
C. 
The Town Board reserves the right, at all times, on behalf of the town or a subscriber or user to accept, reject or change any decision of the Town Board, and may adjust, settle or impose a compromise regarding any controversy arising from the operation of service provider or system owner or operator that is subject to this article in whole or in part or from any provision of this article.
[Adopted 7-6-2000 by L.L. No. 3-2000]

§ 146-63 Purpose and legislative intent.

The Telecommunications Act of 1996 affirmed the Town of Olive's authority concerning the placement, construction and modification of wireless telecommunications facilities. The Town Board of the Town of Olive finds that wireless telecommunications facilities may pose a unique hazard to the health, safety, public welfare and environment of the Town of Olive and its inhabitants. The town also recognizes that facilitating the development of wireless service technology can be an economic development asset to the town and of significant benefit to the town and its residents. In order to ensure that the placement, construction or modification of wireless telecommunications facilities is consistent with the town's land-use policies, the town is adopting a single, comprehensive wireless telecommunications facilities application and permit process. The intent of this article is to minimize the negative impact of wireless telecommunications facilities, establish a fair and efficient process for review and approval of applications, assure an integrated and comprehensive review of environmental impacts of such facilities and protect the health, safety and public welfare in the Town of Olive. The Town of Olive lies entirely within the Catskill Park. It is in a visually sensitive area, with views of mountaintops and ridge lines that are important assets to the residents.

§ 146-64 Title.

This article may be known and cited as the "Wireless Telecommunications Facilities Siting Law for the Town of Olive."

§ 146-65 Severability.

A. 
If any word, phrase, sentence, part, section, subsection or other portion of this article or any application thereof to any person or circumstance is declared void, unconstitutional or invalid for any reason, then such word, phrase, sentence, part, section, subsection or other portion, or the proscribed application thereof, shall be severable, and the remaining provisions of this article, and all applications thereof, not having been declared void, unconstitutional or invalid shall remain in full force and effect.
B. 
Any special use permit issued under this article shall be comprehensive and not severable. If part of a permit is deemed or ruled to be invalid or unenforceable in any material respect by a competent authority, or is overturned by a competent authority, the permit shall be void in total, upon determination by the Town Board.

§ 146-66 Definitions.

For purposes of this article, and where not inconsistent with the context of a particular section, the defined terms, phrases, words, abbreviations and their derivations shall have the meaning given in this section. When not inconsistent with the context, words in the present tense include the future tense, words used in the plural number include words in the singular number, and words in the singular number include the plural number. The word "shall" is always mandatory, and not merely directory.
ACCESSORY FACILITY or STRUCTURE
An accessory facility or structure serving as, or being used in conjunction with, wireless telecommunications facilities, and located on the same property or lot as the wireless telecommunications facilities, including but not limited to utility or transmission equipment storage sheds or cabinets.
ANTENNA
A system of devices that transmit or receive electromagnetic waves or radio frequency (RF) signals. Such uses shall include, but not be limited to radio, television, cellular, paging, personal (tele)communications services (PCS) and microwave telecommunications.
APPLICANT
Any person submitting an application to the Town of Olive for a special use permit for wireless telecommunications facilities.
APPLICATION
The form approved by the Board, together with all necessary and appropriate documentation that an applicant submits in order to receive a special use permit for wireless telecommunications facilities.
BOARD
The Town Board of the Town of Olive.
COLLOCATION
The use of the same telecommunications tower or supporting structure to carry two or more antennae for the provision of wireless services by two or more persons or entities.
COMPLETED APPLICATION
An application that contains all information and/or data necessary to enable the Board to evaluate the merits of the application and to make an informed decision with respect to the effect and impact of wireless telecommunications facilities on the town in the context of the permitted land use for the particular location requested.
DIRECT-TO-HOME SATELLITE SERVICES or DIRECT BROADCAST SERVICE or DBS
Only programming transmitted or broadcast by satellite directly to subscribers' premises without the use of ground receiving equipment, except at the subscribers' premises or in the uplink process to the satellite.
EAF
The full environmental assessment form (long form) (Appendix A to 6NYCRR Part 617.20) and includes a visual EAF addendum (Appendix B) approved by the New York State Department of Environmental Conservation to implement the provisions of the State Environmental Quality Review Act (SEQRA).
EPA
State and/or Federal Environmental Protection Agency, or its duly assigned successor agency.
FAA
The Federal Aviation Administration, or its duly designated and authorized successor agency.
FCC
The Federal Communications Commission, or its duly designated and authorized successor agency.
FREESTANDING TOWER
A tower that is not supported by guy wires and ground anchors or other means of attached or external support, except for its base foundations.
HEIGHT
When referring to a tower or structure, the distance measured from the preexisting grade level to the highest point on the tower or structure, even if said highest point is an antenna.
NIER
Nonionizing electromagnetic radiation.
PERSON
Any individual, corporation, estate, trust, partnership, joint-stock company, association of two or more persons having a joint common interest, or any other entity.
PERSONAL WIRELESS FACILITY
See definition for "wireless telecommunications facilities."
PERSONAL WIRELESS SERVICES or PWS or PERSONAL (TELE)COMMUNICATIONS SERVICE or PCS
The same meaning as defined and used in the 1996 Telecommunications Act.
RADIO FREQUENCY or RF
Nonionizing electromagnetic radiation of any nature on any frequency.
SPECIAL USE PERMIT
The official document or permit granted or issued by the town by which an applicant is allowed to construct and use wireless telecommunications facilities.
STATE
The State of New York.
TELECOMMUNICATIONS
The transmission and reception of audio, video, data and other information by wire, radio frequency, light and other electronic or electromagnetic systems.
TELECOMMUNICATION SITE
See definition for "wireless telecommunications facilities."
TELECOMMUNICATIONS STRUCTURE
A structure used in the provision of services described in the definition of "wireless telecommunications facilities."
TEMPORARY
In relation to all aspects and components of this article, something intended to, or that does, exist for fewer than 90 days.
TOWN
The Town of Olive, New York.
TRANSMISSION LINE
A method of conveying electromagnetic/radio frequency energy either to a transmit or from a receive antenna.
WIRELESS TELECOMMUNICATIONS FACILITIES or TELECOMMUNICATIONS TOWER or TELECOMMUNICATIONS SITE or PERSONAL WIRELESS FACILITY
A structure, facility or location designed or intended to be used as or used to physically support antennas. It includes without limit freestanding towers, guyed towers, monopoles and similar structures that employ camouflage technology, including, but not limited to, structures such as a multistory building, church steeple, silo, water tower, sign or other similar structures intended to mitigate the visual impact of an antenna or the functional equivalent of such. It is a structure intended for transmitting and/or receiving radio, television, cellular, paging, 911, personal (tele)communications services, commercial satellite services or microwave telecommunications, but excluding those used exclusively for the town's fire, police and other dispatch telecommunications or exclusively for private radio and television reception and private citizen's bands, amateur radio and other similar telecommunications.

§ 146-67 Overall policy and desired goals for special use permits.

In order to ensure that the placement, construction and modification of wireless telecommunications facilities protects the town's health, safety, public welfare, environmental features and other aspects of the quality of life specifically listed elsewhere in this article, the Town Board hereby adopts an overall policy with respect to a special use permit for wireless telecommunications facilities for the express purpose of achieving the following goals:
A. 
Implementing an application process for person(s) seeking a special use permit for wireless telecommunications facilities;
B. 
Establishing a policy for examining an application for and issuing a special use permit for wireless telecommunications facilities that is both fair and consistent;
C. 
Establishing reasonable time frames for granting or not granting a special use permit for wireless telecommunications facilities, or recertifying or not recertifying or revoking the special use permit granted under this article;
D. 
Promoting and encouraging, wherever possible, the sharing and/or collocation of wireless telecommunications facilities among service providers; and
E. 
Promoting and encouraging, wherever possible, the placement, height and quantity of wireless telecommunications facilities in such a manner as to minimize adverse aesthetic impacts to the land, property, buildings and other facilities adjacent to, surrounding and in generally the same area as the requested location of such wireless telecommunications facilities.

§ 146-68 Special use permit application and other requirements.

A. 
All applicants for a special use permit for wireless telecommunications facilities or any modification of such facility shall comply with the requirements set forth in this section. The Board is the officially designated agency or body of the community to whom applications for a special use permit for wireless telecommunications facilities must be made, and that is authorized to review, analyze, evaluate and make decisions with respect to granting or not granting, recertifying or not recertifying or revoking special use permits for wireless telecommunications facilities. The Board may at its discretion delegate or designate other official agencies of the town to accept, review, analyze, evaluate and make recommendations to the Board with respect to the granting or not granting, recertifying or not recertifying or revoking special use permits for wireless telecommunications facilities.
B. 
An application for a special use permit for wireless telecommunications facilities shall be signed on behalf of the applicant by the person preparing the same and with knowledge of the contents and representations made therein and attesting to the truth and completeness of the information. The landowner, if different than the applicant, shall also sign the application. At the discretion of the Board, any false or misleading statement in the application may subject the applicant to denial of the application without further consideration or opportunity for correction.
C. 
Applications not meeting the requirements stated herein or which are otherwise incomplete may be rejected by the Board.
D. 
The applicant shall include a statement in writing:
(1) 
That the applicant's proposed wireless telecommunications facilities shall be maintained in a safe manner and in compliance with all conditions of the special use permit, without exception, unless specifically granted relief by the Board, in writing, as well as all applicable and permissible local codes, ordinances and regulations, including any and all applicable county, state and federal laws, rules and regulations.
(2) 
That the construction of the wireless telecommunications facilities is legally permissible, including, but not limited to, the fact that the applicant is authorized to do business in New York State.
E. 
No wireless telecommunications facilities shall be installed or constructed until the site plan is reviewed and approved by the Board and the special use permit has been issued.
F. 
All applications for the construction or installation of new wireless telecommunications facilities shall be accompanied by a report containing the information hereinafter set forth. The report shall be signed and sealed by a licensed professional engineer registered in the state. Where this section calls for certification, such certification shall be by a qualified New York State licensed professional engineer acceptable to the town, unless otherwise noted. The application shall include, in addition to the other requirements for the special use permit, the following information:
(1) 
Documentation that demonstrates the need for the wireless telecommunications facility to provide service primarily within the town.
(2) 
Name, address and phone number of the person preparing the report.
(3) 
Name, address and phone number of the property owner, operator and applicant, to include the legal form of name of the applicant.
(4) 
Postal address and tax map parcel number of the property.
(5) 
Zoning district or designation in which the property is situated.
(6) 
Size of the property stated both in square feet and lot line dimensions, and a diagram showing the location of all lot lines and the location and delineation of the expected footprint of the facilities.
(7) 
Location of nearest residential structure.
(8) 
Location of nearest habitable structure.
(9) 
Location, size and height of all structures on the property which are the subject of the application.
(10) 
Location, size and height of all proposed and existing antennae and all appurtenant structures.
(11) 
Type, locations and dimensions of all proposed and existing landscaping and fencing.
(12) 
The number, type and design of the telecommunications tower and antenna(s) proposed and the basis for the calculations of the telecommunications tower's capacity to accommodate multiple users.
(13) 
The make, model and manufacturer of the tower and antenna(s).
(14) 
A description of the proposed tower and antenna(s) and all related fixtures, structures, appurtenances and apparata, including height above preexisting grade, materials, color and lighting.
(15) 
Certification that a topographic and geomorphologic study and analysis has been conducted, and, taking into account the subsurface and substrata and the proposed drainage plan, that the site is adequate to assure the stability of the proposed wireless telecommunications facilities on the proposed site; in this case, the certifying engineer need not be approved by the town.
(16) 
Applicant shall disclose in writing any agreement in existence prior to submission of the application that would limit or preclude the ability of the applicant to share any new telecommunication tower that it constructs.
(17) 
Applicant's proposed tower maintenance and inspection procedures and related system of records and recordkeeping.
(18) 
The frequency, modulation and class of service of radio or other transmitting equipment.
(19) 
Transmission and maximum effective radiated power of the antenna(s).
(20) 
Direction of maximum lobes and associated radiation of the antenna(s).
(21) 
Certification that NIER levels at the proposed site are within the threshold levels adopted by the FCC.
(22) 
Certification that the proposed antenna(s) will not cause interference with existing telecommunications devices; in this case, the certifying engineer need not be approved by the town.
(23) 
A copy of the FCC license applicable for the use of wireless telecommunications facilities.
(24) 
Propagation studies of the proposed site and all adjoining proposed, in-service or existing sites.
G. 
In the case of a request to site a new telecommunications tower, the applicant shall be required to submit a written report demonstrating its efforts to secure shared use of existing telecommunications tower(s) or use of existing buildings or other structures within the town. Copies of written requests and responses for shared use shall be provided to the Board.
H. 
The applicant seeking to build the supporting structure shall furnish written certification that the telecommunication facility, foundation and attachments are designed and will be constructed ("as built") to meet all local, county, state and federal structural requirements for loads, including wind and ice loads. If the wireless facility is subsequently approved and constructed, similar as-built certification indicating that the facility has been constructed in accordance with all standards current at time of application shall be furnished prior to the town issuance of any certificate of occupancy or compliance.
I. 
After construction and prior to receiving a certificate of compliance, the applicant shall furnish written certification that the wireless telecommunications facilities are grounded and bonded so as to protect persons and property and installed with appropriate surge protectors.
J. 
The applicant shall submit a completed long form EAF and a completed visual EAF addendum. Based on the results of the visual EAF addendum, the Board may require submission of a more detailed visual analysis. The scope of the required environmental and visual assessment will be reviewed at the preapplication meeting.
K. 
The applicant shall furnish a visual impact assessment which shall include:
(1) 
A Zone-of-Visibility Map which shall be provided in order to determine locations where the tower may be seen.
(2) 
Pictorial representations of before-and-after views from key viewpoints both inside and outside of the town, including but not limited to state highways and other major roads; state and local parks; other public lands; historic districts; preserves and historic sites normally open to the public; and from any other location where the site is visible to a large number of visitors, travelers or residents. The Board, acting in consultation with its consultants or experts, will provide guidance concerning the appropriate key sites at a preapplication meeting.
(3) 
An assessment of the visual impact of the tower base, guy wires and accessory buildings from abutting and adjacent properties and streets.
L. 
Any and all representations made by the applicant to the Board, on the record, during the application process, whether written or verbal, shall be deemed a part of the application and may be relied upon in good faith by the Board.
M. 
The applicant shall, in a manner approved by the Board, demonstrate and provide in writing and/or by drawing how it shall effectively screen from view its proposed wireless telecommunications facilities base and all related facilities and structures.
N. 
All utilities at a wireless telecommunications facilities site shall be installed underground and in compliance with all laws, rules and regulations of the town, including specifically, but not limited to, the National Electrical Safety Code and the National Electrical Code where appropriate. The Board may waive or vary the requirements of underground installation of utilities whenever, in the opinion of the Board, such variance or waiver shall not be detrimental to the health, safety, general welfare and environment, including the visual and scenic characteristics of the area.
O. 
All wireless telecommunications facilities applications shall contain a demonstration that the facility is sited so as to have the least adverse visual effect on the environment and its character, on existing vegetation, and on the residences in the area of the wireless telecommunications facilities sites.
P. 
Both the wireless telecommunications facility and any and all accessory or associated facilities shall maximize use of building materials, colors and textures designed to blend with the structure to which it may be affixed and/or to harmonize with the natural surroundings.
Q. 
At a telecommunications site, an access road and parking shall be provided to assure adequate emergency and service access. Maximum use of existing roads, whether public or private, shall be made to the extent practicable. Road construction shall at all times minimize ground disturbance and vegetation-cutting. Road grades shall closely follow natural contours to assure minimal visual disturbance and reduce soil erosion.
R. 
A person who holds a special use permit for wireless telecommunications facilities shall construct, operate, maintain, repair, provide for removal of, modify or restore the permitted wireless telecommunications facilities in strict compliance with all current applicable technical, safety and safety-related codes adopted by the town, county, state or United States, including, but not limited to, the most recent editions of the National Electrical Safety Code and the National Electrical Code, as well as accepted and responsible workmanlike industry practices and recommended practices of the National Association of Tower Erectors. The codes referred to are codes that include, but are not limited to, construction, building, electrical, fire, safety, health and land use codes. In the event of a conflict between or among any of the preceding, the more stringent shall apply.
S. 
A holder of a special use permit granted under this article shall obtain, at its own expense, all permits and licenses required by applicable law, rule, regulation or code, and must maintain the same in full force and effect for as long as required by the town or other governmental entity or agency having jurisdiction over the applicant.
T. 
With respect to this application process, the Board intends to be the lead agency, pursuant to SEQRA. The Board shall conduct an environmental review of the proposed project in combination with its review of the application under this article.
U. 
An applicant shall submit to the Town Clerk the number of completed applications determined to be needed at the preapplication meeting. A copy of the application shall be provided to the legislative body of all adjacent municipalities and to the County Planning Department.
V. 
The applicant shall examine the feasibility of designing a proposed telecommunications tower to accommodate future demand for at least five additional commercial applications, for example, future collocations. The scope of this examination shall be determined by the Board. The telecommunications tower shall be structurally designed to accommodate at least five additional antenna arrays equal to those provided by the initial antenna applicant, and located as close to that applicant's antenna as possible without causing interference. This requirement may be waived, provided that the applicant, in writing, demonstrates that the provisions of future shared usage of the telecommunications tower is not technologically feasible, or creates an unnecessary and unreasonable burden, based upon:
(1) 
The foreseeable number of FCC licenses available for the area;
(2) 
The kind of wireless telecommunications facilities site and structure proposed;
(3) 
The number of existing and potential licenses without wireless telecommunications facilities spaces/sites; and
(4) 
Available space on existing and approved telecommunications towers.
W. 
The applicant shall submit to the Board a letter of intent committing the owner of the proposed new tower, and his/her successors in interest, to negotiate in good faith for shared use of the proposed tower by other telecommunications providers in the future. This letter shall be filed with the Board. Failure to abide by the conditions outlined in the letter may be grounds for revocation of the special use permit. The letter shall commit the new tower owner and their successors in interest to:
(1) 
Respond within 60 days to a request for information from a potential shared-use applicant.
(2) 
Negotiate in good faith concerning future requests for shared use of the new tower by other telecommunications providers.
(3) 
Allow shared use of the new tower if another telecommunications provider agrees in writing to pay reasonable charges. The charges may include, but are not limited to, a pro rata share of the cost of site selection, planning, project administration, land costs, site design, construction and maintenance financing, return on equity, less depreciation, and all of the costs of adapting the tower or equipment to accommodate a shared user without causing electromagnetic interference.
X. 
There shall be a preapplication meeting. The purpose of the preapplication meeting will be to address issues which will help to expedite the review and permitting process. A preapplication meeting may also include a site visit. Where the application is for the shared use of an existing telecommunications tower(s) or other high structure, the applicant should seek to waive any section or subsection of this article that may not be required. At the preapplication meeting, the waiver requests, if appropriate, will be decided by the Board. Costs of the town's consultants to prepare for and attend the preapplication meeting will be borne by the applicant.
Y. 
The holder of a special use permit shall notify the Town of Olive concerning any intended modification of a wireless telecommunication facility and shall apply to the town to modify, relocate or rebuild a wireless telecommunications facility.
Z. 
In order to better inform the public, in the case of a new telecommunications tower, the applicant shall, prior to the public hearing on the application, hold a "balloon test" as follows: applicant shall arrange to fly, or raise upon a temporary mast, a minimum of a three-foot diameter, brightly colored balloon at the maximum height of the proposed new tower. The dates (including a second date, in case of poor visibility on the initial date), time and location of this balloon test shall be advertised, by the applicant, at seven and 14 days in advance of the first test date in a newspaper with a general circulation in town and agreed to by the Board. The applicant shall inform the Board, in writing, of the date and time of the tests, at least 14 days in advance. The balloon shall be flown for at least eight consecutive hours sometime between 7:00 a.m. and 4:00 p.m. on the date chosen. The primary date shall be on a weekend, but the second date, in case of poor visibility on the initial date, may be on a weekday.
AA. 
The applicant will provide a written copy of an analysis, completed by a qualified individual or organization, to determine if the telecommunications tower or existing structure intended to support wireless facilities requires lighting under Federal Aviation Regulation Part 77. This requirement shall be for any new tower, or for an existing structure or building where the application increases the height of the structure or building. If this analysis determines that the FAA must be contacted, then all filings with the FAA, all responses from the FAA, and any related correspondence shall be provided in a timely manner.

§ 146-69 Location of wireless telecommunications facilities.

A. 
Applicants for wireless telecommunications facilities shall locate, site and erect said wireless telecommunications facilities in accordance with the following priorities, Subsection A(1) being the highest priority and Subsection A(4) being the lowest priority:
(1) 
On existing telecommunications towers or other tall structures;
(2) 
Collocation on a site with existing wireless telecommunications facilities or structures;
(3) 
On town-owned properties; or
(4) 
On other property in the town.
B. 
If the proposed property site is not the highest priority listed above, then a detailed explanation must be provided as to why a site of a higher priority was not selected. The person seeking such an exception must satisfactorily demonstrate the reason or reasons why such a permit should be granted for the proposed site, and the hardship that would be incurred by the applicant if the permit were not granted for the proposed site.
C. 
An applicant may not bypass sites of higher priority by stating the site presented is the only site leased or selected. An application shall address collocation as an option and if such option is not proposed, the applicant must explain why collocation is impracticable. Agreements between providers limiting or prohibiting collocation shall not be a valid basis for any claim of impracticability or hardship.
D. 
Notwithstanding the above, the Board may approve any site located within an area in the above list of priorities, provided that the Board finds that the proposed site is in the best interest of the health, safety and welfare of the town and its inhabitants.
E. 
The applicant shall submit a written report demonstrating the applicant's review of the above locations in order of priority, demonstrating the technological reason for the site selection. If the site selected is not the highest priority, then a detailed written explanation as to why sites of a higher priority were not selected shall be included with the application.
F. 
The applicant shall, in writing, identify and disclose the number and locations of any additional sites that the applicant has been, is, or will be considering, reviewing or planning for wireless telecommunications facilities in the town, and all municipalities adjoining the town, for a two-year period following the date of the application.
G. 
Notwithstanding that a potential site may be situated in an area of highest priority or highest available priority, the Board may disapprove an application for any of the following reasons:
(1) 
Conflict with safety and safety-related codes and requirements;
(2) 
Conflict with traffic needs or traffic laws, or definitive plans for changes in traffic flow or traffic laws;
(3) 
Conflict with the historic nature of a neighborhood or historical district;
(4) 
The use or construction of wireless telecommunications facilities which is contrary to an already stated purpose of a specific zoning or land use designation;
(5) 
The placement and location of wireless telecommunications facilities which would create an unacceptable risk, or the probability of such, to residents, the public, employees and agents of the town, or employees of the service provider or other service providers;
(6) 
Unacceptable visual impacts upon any location in the town;
(7) 
Any reasonable basis consistent with the powers retained by the Town Board as a legislative body, including such factors as are not expressly set forth herein; and/or
(8) 
Conflicts with the provisions of this article.

§ 146-70 Shared use of wireless telecommunications facilities and other structures.

A. 
Shared use of existing wireless telecommunications facilities shall be preferred by the town, as opposed to the proposed construction of a new telecommunications tower. Where such shared use is unavailable, location of antennas on other preexisting structures shall be considered and preferred. The applicant shall submit a comprehensive report inventorying existing towers and other appropriate structures within four miles of any proposed new tower site, unless the applicant can show that some other distance is more reasonable, and outlining opportunities for shared use of existing facilities and the use of other preexisting structures as a preferred alternative to new construction.
B. 
An applicant intending to share use of an existing telecommunications tower or other structure shall be required to document the intent of the existing owner to share use. In the event of an application to share the use of an existing telecommunications tower does not increase the height of the telecommunications tower, the Board shall waive such requirements of the application required by this article as may be for good cause shown.
C. 
Such shared use shall consist only of the minimum antenna array technologically required to provide service within the town, to the extent practicable, unless good cause is shown.

§ 146-71 Height of telecommunications tower(s).

A. 
The applicant must submit documentation justifying to the Board the total height of any telecommunications tower, facility and/or antenna and the basis therefor. Such justification shall be to provide service within the town, to the extent practicable, unless good cause is shown.
B. 
Telecommunications towers shall be no higher than the minimum height necessary. Unless waived by the Board upon good cause shown, the maximum height shall be 140 feet, based on six collocated antenna arrays and ambient tree height of 80 feet.
C. 
The maximum height of any telecommunications tower and attached antennas constructed after the effective date of this article shall not exceed that which shall permit operation without artificial lighting of any kind, in accordance with municipal, county, state and/or any federal statute, law, local law, town ordinance, code, rule or regulation.

§ 146-72 Visibility of wireless telecommunications facilities.

A. 
Visibility of all telecommunications facilities will be minimized to the extent practicable.
B. 
Wireless telecommunications facilities shall not be artificially lighted or marked, except as required by law.
C. 
Telecommunications towers shall be of a galvanized finish, or painted with a rust-preventive paint of an appropriate color to harmonize with the surroundings as approved by the Board, and shall be maintained in accordance with the requirements of this article.
D. 
If lighting is required, applicant shall provide a detailed plan for sufficient lighting of as unobtrusive and inoffensive an effect as is permissible under state and federal regulations, and an artist's rendering or other visual representation showing the effect of light emanating from the site on neighboring habitable structures within 1,500 feet of all property lines of the parcel on which the wireless telecommunications facilities are located.

§ 146-73 Security of wireless telecommunications facilities.

All wireless telecommunications facilities and antennas shall be located, fenced or otherwise secured in a manner which prevents unauthorized access, specifically as follows:
A. 
All antennas, towers and other supporting structures, including guy wires, shall be made inaccessible to individuals and constructed or shielded in such a manner that they cannot be climbed or run into; and
B. 
Transmitters and telecommunications control points must be installed such that they are readily accessible only to persons authorized to operate or service them.

§ 146-74 Signage.

Wireless telecommunications facilities shall contain a sign no larger than four square feet to provide adequate notification to persons in the immediate area of the presence of an antenna that has transmission capabilities. The sign shall contain the name(s) of the owner(s) and operator(s) of all the telecommunications facilities as well as emergency phone number(s). The sign shall be located so as to be visible from the access point of the site. The sign shall not be lighted unless the Board shall have allowed such lighting or unless such lighting is required by applicable provisions of law. The sign shall be approved by the Board before installation. No other signage, including advertising, shall be permitted on any facilities, antennas, antenna supporting structures or antenna towers, unless required by law.

§ 146-75 Lot size and setbacks.

All proposed wireless telecommunications facilities shall be set back from abutting parcels, recorded rights-of-way and road and street lines by the greater of the following distances: A distance equal to the height of the wireless telecommunications facility or the existing setback requirements of the underlying zoning district, whichever are greater. Any accessory structure shall be located so as to comply with the applicable minimum setback requirements for the property on which it is situated.

§ 146-76 Retention of expert assistance and reimbursement by applicant.

A. 
The Board may hire any consultant and/or expert necessary to assist the Board in reviewing and evaluating the application and any requests for recertification.
B. 
An applicant shall deposit with the town funds sufficient to reimburse the town for all reasonable costs of consultant and expert evaluation and consultation to the Board in connection with the review of any application. The initial deposit shall be $7,500. These funds shall accompany the filing of an application and the town will maintain a separate escrow account for all such funds. The town's consultants/experts shall bill or invoice the town no more frequently than monthly for its services in reviewing the application and performing its duties. If at any time during the review process this escrow account has a balance less than $2,500, the applicant shall immediately, upon notification by the town, replenish said escrow account so that it has a balance of at least $5,000. Such additional escrow funds must be deposited with the town before any further action or consideration is taken on the application. In the event that the amount held in escrow by the town is more than the amount of the actual billing or invoicing at the conclusion of the review process, the difference shall be promptly refunded to the applicant.
C. 
The total amount of the funds set forth in Subsection B of this section may vary with the scope and complexity of the project, the completeness of the application, and other information as may be needed by the Board or its consultant/expert to complete the necessary review and analysis. Additional escrow funds, as reasonably required and requested by the town, shall be paid by the applicant.

§ 146-77 Exceptions from a special use permit.

A. 
No person shall be permitted to site, place, build, construct or modify or prepare any site for the placement or use of wireless telecommunications facilities as of the effective date of this article without having first obtained a special use permit for wireless telecommunications facilities. Notwithstanding anything to the contrary in this section, no special use permit shall be required for those exceptions noted in the definition of "wireless telecommunications facilities."
B. 
New construction on existing wireless telecommunications facilities shall comply with the requirements of this article.
C. 
All wireless telecommunications facilities existing on or before the effective date of this article shall be allowed to continue as they presently exist; provided, however, that any modification to existing wireless telecommunications facilities must comply with this article.

§ 146-78 Public hearing and notification requirements.

A. 
Prior to the approval of any application for a special use permit for wireless telecommunications facilities, a public hearing shall be held by the Board, notice of which shall be published in the official newspaper of the town no less than 10 calendar days prior to the scheduled date of the public hearing. In order that the town may notify nearby landowners, the applicant, at least three weeks prior to the date of said public hearing, shall be required to provide names and addresses of all landowners whose property is located within 1,500 feet of any property line of the lot on which the new wireless telecommunications facilities are proposed to be located.
B. 
The Board shall schedule the public hearing referred to in Subsection A of this section once it finds the application is complete. The Board, at any stage prior to issuing a special use permit, may require such additional information as it deems necessary.

§ 146-79 Action on an application for a special use permit.

A. 
The Board will undertake a review of an application pursuant to this article in a timely fashion, consistent with its responsibilities with SEQRA, and shall act within a reasonable period of time given the relative complexity of the application and the circumstances, with due regard for the public's interest and need to be involved and the applicant's desire for a timely resolution.
B. 
The Board may refer any application or part thereof to any advisory or other committee for a nonbinding recommendation.
C. 
Except for necessary building permits, and subsequent certificates of compliance, once a special use permit has been granted hereunder, no additional permits or approvals from the town, such as site plan or zoning approvals, shall be required by the town for the wireless telecommunications facilities covered by the special use permit.
D. 
After the public hearing and after formally considering the application, the Board may approve and issue, or deny a special use permit. Its decision shall be in writing and shall be supported by substantial evidence contained in a written record. The burden of proof for the grant of the permit shall always be upon the applicant.
E. 
If the Board approves the special use permit for wireless telecommunications facilities, then the applicant shall be notified of such approval in writing within 10 calendar days of the Board's action, and the special use permit shall be issued within 30 days after such approval.
F. 
If the Board denies the special use permit for wireless telecommunications facilities, then the applicant shall be notified of such denial in writing within 10 calendar days of the Board's action.

§ 146-80 Recertification of a special use permit.

A. 
At any time between 12 months and six months prior to the five-year anniversary date after the effective date of the special use permit and all subsequent fifth anniversaries of the effective date of the original special use permit for wireless telecommunications facilities, the holder of a special use permit for such wireless telecommunication facilities shall submit a signed written request to the Board for recertification. In the written request for recertification, the holder of such special use permit shall note the following:
(1) 
The name of the holder of the special use permit for the wireless telecommunications facilities.
(2) 
If applicable, the number or title of the special use permit.
(3) 
The date of the original granting of the special use permit.
(4) 
Whether the wireless telecommunications facilities have been moved, relocated, rebuilt or otherwise modified since the issuance of the special use permit, and, if so, in what manner.
(5) 
If the wireless telecommunications facilities have been moved, relocated, rebuilt or otherwise modified, then whether the Board approved such action, and under what terms and conditions, and whether those terms and conditions were complied with.
(6) 
Any requests for waivers or relief of any kind whatsoever from the requirements of this article and from any requirements for a special use permit.
(7) 
That the wireless telecommunications facilities are in compliance with the special use permit and in compliance with all applicable codes, laws, rules and regulations.
(8) 
Recertification that the telecommunications tower and attachments both are designed and constructed ("as built") and continue to meet all local, county, state and federal structural requirements for loads, including wind and ice loads. Such recertification shall be by a qualified New York State licensed professional engineer acceptable to the town, the cost of which shall be borne by the applicant.
B. 
If, after such review, the Board determines that the permitted wireless telecommunications facilities are in compliance with the special use permit and all applicable statutes, laws, local laws, ordinances, codes, rules and regulations, then the Board shall issue a recertification special use permit for the wireless telecommunications facilities, which may include any new provisions or conditions that are mutually agreed upon, or required by applicable statutes, laws, local laws, ordinances, codes, rules and regulations. If, after such review, the Board determines that the permitted wireless telecommunications facilities are not in compliance with the special use permit and all applicable statutes, local laws, ordinances, codes, rules and regulations, then the Board may refuse to issue a recertification of the special use permit for the wireless telecommunications facilities, and in such event, such wireless telecommunications facilities shall not be used after the date that the applicant receives written notice of such decision by the Board. Any such decision shall be in writing and supported by substantial evidence contained in a written record.
C. 
If the applicant has submitted all of the information requested by the Board and required by this article, and if the Board does not complete its review, as noted in Subsection B of this section, prior to the five-year anniversary date of the special use permit, or subsequent fifth anniversaries, then the applicant for the permitted wireless telecommunications facilities shall receive an extension of the special use permit for up to six months, in order for the Board to complete its review.
D. 
If the holder of a special use permit for wireless telecommunications facilities does not submit a request for recertification of such special use permit within the timeframe noted in Subsection A of this section, then such special use permit and any authorizations granted thereunder shall cease to exist on the date of the fifth anniversary of the original granting of the special use permit, or subsequent fifth anniversaries, unless the holder of the special use permit adequately demonstrates to the Board that extenuating circumstances prevented a timely recertification request. If the Board agrees that there were legitimately extenuating circumstances, then the holder of the special use permit may submit a late recertification request or application for a new special use permit.

§ 146-81 Extent and parameters of special use permit.

The extent and parameters of a special use permit for wireless telecommunications facilities shall be as follows:
A. 
Such special use permit shall be nonexclusive.
B. 
Such special use permit shall not be assigned, transferred or conveyed without the express prior written consent of the Board, and such consent shall not be unreasonably withheld or delayed.
C. 
Such special use permit may, following a hearing upon due prior notice to the applicant, be revoked, canceled or terminated for a violation of the conditions and provisions of the special use permit for wireless telecommunications facilities, or for a material violation of this article after prior written notice to the applicant and the holder of the special use permit.

§ 146-82 Application fee.

A. 
At the time that a person submits an application for a special use permit for a new telecommunications tower, such person shall pay a nonrefundable application fee of $5,000 to the town. If the application is for a special use permit for collocating on an existing telecommunications tower or high structure, where no increase in height of the tower or structure is required, the fee shall be $2,000.
B. 
No application fee is required in order to recertify a special use permit for wireless telecommunications facilities, unless there has been a modification of the wireless telecommunications facilities since the date of the issuance of the existing special use permit for which the conditions of the special use permit have not previously been modified. In the case of any modification, the fees provided in Subsection A shall apply.

§ 146-83 Performance security.

The applicant and the owner of record of any proposed wireless telecommunications facilities property site shall, at its cost and expense, be jointly required to execute and file with the town a bond, or other form of security acceptable to the town as to type of security and the form and manner of execution, in an amount of at least $75,000 and with such sureties as are deemed sufficient by the Board to assure the faithful performance of the terms and conditions of this article and conditions of any special use permit issued pursuant to this article. The full amount of the bond or security shall remain in full force and effect throughout the term of the special use permit and/or until the removal of the wireless telecommunications facilities, and any necessary site restoration is completed. The failure to pay any annual premium for the renewal of any such security shall be a violation of the provisions of the special use permit and shall entitle the Board to revoke the special use permit after prior written notice to the applicant and holder of the permit and after a hearing upon due prior notice to the applicant and holder of the special use permit.

§ 146-84 Reservation of authority to inspect wireless telecommunications facilities.

A. 
In order to verify that the holder of a special use permit for wireless telecommunications facilities and any and all lessees, renters and/or licensees of wireless telecommunications facilities place and construct such facilities, including towers and antennas, in accordance with all applicable technical, safety, fire, building and zoning codes, laws, ordinances and regulations, and other applicable requirements, the town may inspect all facets of said permit holder's, renter's, lessee's or licensee's placement, construction, modification and maintenance of such facilities, including, but not limited to, towers, antennas and buildings, or other structures constructed or located on the permitted site.
B. 
The town shall pay for costs associated with such an inspection, except for those circumstances occasioned by said holder's, lessee's or licensee's refusal to provide necessary information or necessary access to such facilities, including towers, antennas and appurtenant or associated facilities, or refusal to otherwise cooperate with the town with respect to an inspection, or if violations of this article are found to exist, in which case the holder, lessee or licensee shall reimburse the town for the cost of the inspection.
C. 
Payment of such costs shall be made to the town within 30 days from the date of the invoice or other demand for reimbursement. In the event that the finding(s) of violation is/are appealed in accordance with the procedures set forth in this article, said reimbursement payment must still be paid to the town and the reimbursement shall be placed in an escrow account established by the town specifically for this purpose, pending the final decision on appeal.

§ 146-85 Annual NIER certification.

The holder of the special use permit shall, annually, certify in writing to the town that Nonionizing Electromagnetic Radiation (NIER) levels at the site are within the threshold levels adopted by the FCC. The certifying engineer must be licensed to practice engineering in the State of New York, however, need not be approved by the town.

§ 146-86 Liability insurance.

A. 
A holder of a special use permit for wireless telecommunications facilities shall secure and at all times maintain public liability insurance for personal injuries, death and property damage, and umbrella insurance coverage, for the duration of the special use permit in amounts as set forth below:
(1) 
Commercial general liability covering personal injuries, death and property damage: $1,000,000 per occurrence/$2,000,000 aggregate.
(2) 
Automobile coverage: $1,000,000 per occurrence/$2,000,000 aggregate.
(3) 
Workers compensation and disability: statutory amounts.
B. 
The commercial general liability insurance policy shall specifically include the town and its officers, boards, employees, committee members, attorneys, agents and consultants and additional named insureds.
C. 
The insurance policies shall be issued by an agent or representative of an insurance company licensed to do business in the state and with a Best's rating of at least A.
D. 
The insurance policies shall contain an endorsement obligating the insurance company to furnish the town with at least 30 days' prior written notice in advance of the cancellation of the insurance.
E. 
Renewal or replacement policies or certificates shall be delivered to the town at least 15 days before the expiration of the insurance which such policies are to renew or replace.
F. 
Before construction of a permitted wireless telecommunications facilities is initiated, but in no case later than 15 days after the grant of the special use permit, the holder of the special use permit shall deliver to the town a copy of each of the policies or certificates representing the insurance in the required amounts.

§ 146-87 Indemnification.

A. 
Any application for wireless telecommunication facilities that is proposed for town property, pursuant to this article, shall contain a provision with respect to indemnification. Such provision shall require the applicant, to the extent permitted by the law, to at all times defend, indemnify, protect, save, hold harmless and exempt the town and its officers, boards, employees, committee members, attorneys, agents and consultants from any and all penalties, damages, costs or charges arising out of any and all claims, suits, demands, causes of action or award of damages, whether compensatory or punitive, or expenses arising therefrom, either at law or in equity, which might arise out of, or are caused by, the placement, construction, erection, modification, location, products performance, use, operation, maintenance, repair, installation, replacement, removal or restoration of said wireless telecommunications facilities. With respect to the penalties, damages or charges referenced herein, reasonable attorneys' fees, consultants' fees and expert witness fees are included in those costs that are recoverable by the town.
B. 
Notwithstanding the requirements noted in Subsection A of this section, an indemnification provision will not be required in those instances where the town itself applies for and secures a special use permit for wireless telecommunications facilities.

§ 146-88 Fines and penalties.

A. 
In the event of a violation of this article or any special use permit issued pursuant to this article, the Board may impose and collect, and the holder of the special use permit for wireless telecommunications facilities shall pay to the town, fines or penalties as set forth below.
B. 
A violation of this article is hereby declared to be an offense, punishable by a fine not exceeding $350 or imprisonment for a period not to exceed six months, or both, for conviction of a first offense; for conviction of second offense, both of which were committed within a period of five years, punishable by a fine not less than $350 nor more than $700 or imprisonment for a period not to exceed six months, or both; and, upon conviction for a third or subsequent offense, all of which were committed within a period of five years, punishable by a fine not less than $700 nor more than $1,000 or imprisonment for a period not to exceed six months, or both. However, for the purpose of conferring jurisdiction upon courts and judicial officers generally, violations of this article or of such ordinance or regulation shall be deemed misdemeanors and for such purpose only all provisions of law relating to misdemeanors shall apply to such violations. Each week's continued violation shall constitute a separate additional violation.
C. 
Notwithstanding anything in this article, the holder of the special use permit for wireless telecommunications facilities may not use the payment of fines, liquidated damages or other penalties to evade or avoid compliance with this article or any section of this article. An attempt to do so shall subject the holder of the special use permit to termination and revocation of the special use permit. The town may also seek injunctive relief to prevent the continued violation of this article, without limiting other remedies available to the town.

§ 146-89 Default and/or revocation.

A. 
If wireless telecommunications facilities are repaired, rebuilt, placed, moved, relocated, modified or maintained in a way that is inconsistent or not in compliance with the provisions of this article or of the special use permit, then the Board shall notify the holder of the special use permit in writing of such violation. Such notice shall specify the nature of the violation or noncompliance and that the violations must be corrected within seven days of the date of the postmark of the notice, or of the date of personal service of the notice, whichever is earlier. Notwithstanding anything to the contrary in this subsection or any other section of this article, if the violation causes, creates or presents an imminent danger or threat to the health or safety of lives or property, the Board may, at its sole discretion, order the violation remedied within 24 hours.
B. 
If within the period set forth in Subsection A above, the wireless telecommunications facilities are not brought into compliance with the provisions of this article, or of the special use permit, or substantial steps are not taken in order to bring the affected wireless telecommunications facilities into compliance, then the Board may revoke such special use permit for wireless telecommunications facilities and shall notify the holder of the special use permit within 48 hours of such action.

§ 146-90 Removal of wireless telecommunications facilities.

A. 
Under the following circumstances, the Board may determine that the health, safety and welfare interests of the town warrant and require the removal of wireless telecommunications facilities.
(1) 
Wireless telecommunications facilities with a permit have been abandoned (i.e., not used as wireless telecommunications facilities) for a period exceeding 90 consecutive days or a total of 180 days in any three-hundred-sixty-five-day period, except for periods caused by force majeure or Acts of God, in which case, repair or removal shall commence within 90 days.
(2) 
Permitted wireless telecommunications facilities fall into such a state of disrepair that it creates a health or safety hazard.
(3) 
Wireless telecommunications facilities have been located, constructed or modified without first obtaining, or in a manner not authorized by, the required special use permit or any other necessary authorization.
B. 
If the Board makes such a determination as noted in Subsection A of this section, then the Board shall notify the holder of the special use permit for the wireless telecommunications facilities within 48 hours that said wireless telecommunications facilities are to be removed, the Board may approve an interim temporary use agreement/permit, such as to enable the sale of the wireless telecommunications facilities.
C. 
The holder of the special use permit, or its successors or assigns, shall dismantle and remove such wireless telecommunications facilities, and all associated structures and facilities, from the site and restore the site to as close to its original condition as is possible, such restoration being limited only by physical impracticability, within 90 days of receipt of written notice from the Board. However, if the owner of the property upon which the wireless telecommunications facilities are located wishes to retain any access roadway to the wireless telecommunications facilities, the owner may do so with the approval of the Board.
D. 
If wireless telecommunications facilities are not removed or substantial progress has not been made to remove the wireless telecommunications facilities within 90 days after the permit holder has received notice, then the Board may order officials or representatives of the town to remove the wireless telecommunications facilities at the sole expense of the owner or special use permit holder.
E. 
If the town removes, or causes to be removed, wireless telecommunications facilities, and the owner of the wireless telecommunications facilities does not claim and remove it from the site to a lawful location within 10 days, then the town may take steps to declare the wireless telecommunications facilities abandoned and sell them and their components.
F. 
Notwithstanding anything in this section to the contrary, the Board may approve a temporary use permit/agreement for the wireless telecommunications facilities, for no more than 90 days, during which time a suitable plan for removal, conversion or relocation of the affected wireless telecommunications facilities shall be developed by the holder of the special use permit, subject to the approval of the Board, and an agreement to such plan shall be executed by the holder of the special use permit and the town. If such a plan is not developed, approved and executed within the ninety-day time period, then the town may take possession of and dispose of the affected wireless telecommunications facilities in the manner provided in this section.

§ 146-91 Relief.

Any applicant desiring relief or exemption from any aspect or requirement of this article may request such from the Board at a preapplication meeting, provided that the relief or exemption is contained in the original application for either a special use permit, or in the case of an existing or previously granted special use permit, a request for modification of its tower and/or facilities. Such relief may be temporary or permanent, partial or complete, at the sole discretion of the Board. However, the burden of proving the need for the requested relief or exemption is solely on the applicant to prove to the satisfaction of the Board. The applicant shall bear all costs of the Board or the town in considering the request, and the relief shall not be transferable to a new or different holder of the permit or owner of the tower or facilities without the specific written permission of the Board. Such permission shall not be unreasonably withheld or delayed. No such relief or exemption shall be approved unless the applicant demonstrates by clear and convincing evidence that, if granted, the relief or exemption will have no significant effect on the health, safety and welfare of the town, its residents and other service providers.

§ 146-92 Periodic regulatory review by the Board.

A. 
The Board may at any time conduct a review and examination of this entire article.
B. 
If after such a periodic review and examination of this article the Board determines that one or more provisions of this article should be amended, repealed, revised, clarified or deleted, then the Board may take whatever measures are necessary in accordance with applicable law in order to accomplish the same. It is noted that where warranted, and in the best interests of the town, the Board may repeal this entire article at any time.
C. 
Notwithstanding the provisions of Subsections A and B of this section, the Board may at any time, and in any manner (to the extent permitted by federal, state or local law), amend, add, repeal and/or delete one or more provisions of this article.

§ 146-93 Adherence to state and/or federal rules and regulations.

A. 
To the extent that the holder of a special use permit for wireless telecommunications facilities has not received relief, or is otherwise exempt, from appropriate state and/or federal agency rules or regulations, then the holder of such a special use permit shall adhere to, and comply with, all applicable rules, regulations, standards and provisions of any state or federal agency, including, but not limited to, the FAA and the FCC. Specifically included in this requirement are any rules and regulations regarding height, lighting, security, electrical and RF emission standards.
B. 
To the extent that applicable rules, regulations, standards and provisions of any state or federal agency, including, but not limited to, the FAA and the FCC, and specifically including any rules and regulations regarding height, lighting and security are changed and/or are modified during the duration of a special use permit for wireless telecommunications facilities, then the holder of such a special use permit shall conform the permitted wireless telecommunications facilities to the applicable changed and/or modified rule, regulation, standard or provision within a maximum of 24 months of the effective date of the applicable changed and/or modified rule, regulation, standard or provision, or sooner as may be required by the issuing entity.

§ 146-94 Conflict with other laws.

Where this article differs or conflicts with other laws, rules and regulations, including the existing Town of Olive Zoning Law, unless the right to do so is preempted or prohibited by the county, state or federal government, that which is more restrictive or protective of the town and the public shall apply.

§ 146-95 Authority.

This article is enacted pursuant to the Municipal Home Rule Law. This article shall supersede the provisions of Town Law to the extent it is inconsistent with the same, and to the extent permitted by the New York State Constitution, the Municipal Home Rule Law, or any other applicable statute.