[HISTORY: Adopted by the Board of Trustees
of the Village of Woodbury 8-12-2008 by L.L. No. 6-2008. Amendments noted where
applicable.]
For purposes of this chapter, and where not
otherwise inconsistent with the context of a particular section, the
defined terms, phrases, words, abbreviations and their derivations
shall have the meanings 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.
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 Village
for a period of time greater than 60 consecutive days.
The ability to deliver any type of service using the system
or otherwise using the system to transmit and provide service.
The individual or organization designated by
the Village Board to act as the technical and administrative liaison
or representative of the Village, the subscriber or users, and the
public in the Village in matters related to the provision of this
chapter and any franchise as defined in this section.
The Administrator may be designated as the point
of contact for all matters under this chapter and that relate to a
franchise or a system owner or operator or service provider. If designated,
unless specifically directed otherwise by the Village Board, it shall
at all times be presumed that the Administrator is acting as the Village
Board's designee and under the Board's direction.
When used in relation to any person, means another person
or entity who owns or controls, is owned or controlled by or is under
common ownership or control of such person.
A person or legal entity submitting an initial application
or proposal to the Village for a franchise to operate a system or
to provide service under the terms and conditions set forth in this
chapter and in any franchise and in compliance with any state rules
or regulations.
Are synonymous and mean the documents submitted, and on which
the Village is intended, in good faith, to rely, for the purpose of
being granted a franchise by the Village. An application or proposal
shall be deemed to include all written representations and supporting
documentation submitted by an applicant to the Village for the purpose
of being granted the privilege to occupy or use the Village's property
or rights-of-way for commercial purposes as intended under this chapter.
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.
The Village Board for the Village of Woodbury, New York,
which is the legislative body for the Village of Woodbury, New York.
For purposes of clarification, the Village Board is the franchising
authority for the Village of Woodbury, New York.
A technology having a capacity of more than 28.8 kilobits
per second of bandwidth.
The Cable Communications Policy Act of 1984, as amended by
the Cable Television Consumer Protection Act of 1992 and the Telecommunications
Act of 1996.
Any person or group of persons who:
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
Otherwise controls or is responsible for, through
any arrangement, the management and operation of such a system.
Are synonymous terms for the purpose of this chapter and
mean any change in the control of the system, system owner or operator
or service provider, as control is defined in this section.
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 subcarriers, 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.
A charge or fee assessed on a user or subscriber for efforts
or attempts to collect a past due and/or delinquent account.
Shall have the same meaning in this chapter and any franchise
or other use, occupancy or operating authority as is defined and applied
under the United States Uniform Commercial Code (UCC).
Means with respect to any construction, reconstruction, rebuilding,
upgrading or repair of the system, that, in each instance:
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
All cable or fiber has been placed correctly
in trenches in areas serviced underground as required by applicable
code and this chapter, the trenches have been refilled, all disturbed
road surfaces have been restored as required and all landscaping restoration
has been completed as required;
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;
Primary and backup/standby power supplies, as
required, have been installed and operate properly;
All bonding and grounding, as required, has
been completed;
Construction, reconstruction or upgrading of
all headends, hubs and nodes, as applicable, has been completed, and
all necessary processing equipment has been installed therein and
is functioning as required; and
Any and all other construction, reconstruction
or upgrading necessary for the system to deliver service to subscribers
or users has 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 Village.
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 Village's satisfaction, including, but not limited to,
proof-of-performance tests, as may be appropriate or required, unless
the Village is expressly prohibited by law or rule from requiring
such demonstration, services provided to any segments of the system
in the Village will be activated only when the required testing has
been done and the system operates as required and never before.
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.
The term "completion," in relation to the construction,
reconstruction, upgrade or rebuild, does not include the marketing
and installation of subscriber or user service.
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 Village.
See the definitions for "subscriber" or "user."
Any 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.
A subscriber or user of any service and/or facility of the
system or service provider.
An imminent, impending or actual natural or humanly induced
situation wherein the health, safety or welfare of the residents of
the Village 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.
Shall include any compatible use easement, whether created
by dedication to the Village 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 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.
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.
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.
Thin pliable cylinders or strands of glass or plastic, or
any future functional equivalent, that is used to carry wide bands
of multiple frequencies.
The document of authorization granted by the Village, 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 Village's property and rights-of-way for commercial purposes
as intended under this chapter, including to construct, operate, rebuild,
replace, upgrade, maintain and repair the system and to provide service
in the Village. A franchise shall also include as an inseparable part
any application or proposal for a franchise and any information contained
therein on which the Village was 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 Village
has over a given type of system owner or operator or provider of service.
The agreement or contract which the Village 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
Village by using or occupying the Village's property or rights-of-way
in accordance with the Village'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 Village.
Any system owner or operator or service provider that has
been granted a valid franchise by the Village and that is subject
to the Village's regulatory authority as set forth in this chapter
and applicable state law, rules or regulation.
The date of the end of the term of the document that granted
authority to use and/or occupy the Village's property or rights-of-way
for commercial purposes, including the operation of a system or the
provision of service.
A fee charged a service provider or system owner or operator
by the Village for the cost of administering the franchise.
The Village Board of the Village of Woodbury, New York.
To retain or preserve a right, privilege or authority held,
so long as the retention or preservation is expressly stated.
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 Village 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 the
system or the service provider. The following, but only the following,
shall not be deemed a part of gross revenue:
Bad debts attributable to the provision of service
within the Village 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
Refunds actually paid to subscribers or users.
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 Village 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:
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 that
such taxes are identified as a separate line item on subscriber or
user bills or statements;
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 Village and which does not use
or rely upon the use of the system or service; and
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.
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 Village
and that is attributable to the grant of a franchise or the operation
of a system or the provision of service both inside the Village and
outside the Village, the total or aggregate revenue received from
such sources shall be computed as follows: Said revenues shall be
multiplied by a fraction, the numerator of which shall be the number
of subscribers or users in the Village 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.
The sale or rental of subscriber or user lists;
The sale of advertising;
Payments from programmers and shopping services;
Commissions or bonuses of any kind from vendors
or programmers that are attributable to the grant of authority under
this chapter;
Rebates from programmers and vendors of any
kind for services that are attributable to the grant of authority
under this chapter;
Viewing guide sales, including electronic guides;
The lease or sale of channel capacity;
Payments or commissions from 900 phone numbers
advertised on the service or system; and
Interconnection charges or income.
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.
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 Village.
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.
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.
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.
The Wireline Telecommunications Law for the Village of Woodbury,
New York.
The 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, pursuant to, but not limited by, Section
612 (at 47 U.S.C. § 532) of the Communications Act of 1934,
as amended.
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.
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.
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 Village that occurs within a twenty-four-consecutive-hour
period shall be deemed a single, continuous loss of service.
The Mayor of the Village of Woodbury.
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 Village or elsewhere outside the Village.
Not granting a new franchise to an incumbent system owner
or operator or service provider to operate a system or provide service
within the Village.
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 Village. 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 wide-spread
commercial power failures that exceed the capabilities of the backup
or standby power supplies and capability of the system.
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.
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.
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.
That portion of the Village required or committed to be built
and operated under a franchise.
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 chapter that is utilized
in the operation of the system or the provision of service in the
Village.
A written request to use or occupy the Village's property
and rights-of-way for the purpose of constructing, operating, maintaining
or repairing a system or to provide service in the Village using the
public property and rights-of-way of the Village.
The Public Service Commission of the State of New York or
any successor agency or Commission.
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.
The compensation paid to the Village by a system owner or
operator or service provider for the occupation and use of the public
property and rights-of-way of the Village for commercial purposes.
An official act by the Village Board that removes, repeals
or rescinds any franchise and authority to operate a system or provide
service in the Village that is granted under or is subject to this
chapter.
Any planned service interruption or diminution of signals
for which the Village and subscribers or users are required to be
and have been notified in advance and that does not exceed four hours
in duration for any given address.
Any service that is provided by means of a system in the
Village 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.
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 of
the system.
Any person who provides service using a system that occupies
or uses the Village'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 Village 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 Village.
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 Village.
Satellite master antenna television.
Any person or group of persons who:
A private system that does not cross or in any manner use
any public or Village-owned property or rights-of-way and which is
located entirely on private property and serves only private dwellings.
The State of New York.
The surface of and the space above and below a public street,
path or thoroughfare designated for vehicular and/or pedestrian traffic
and any easements associated therewith or other easement now or hereafter
held by the Village and includes any sidewalks or other paved pedestrianways
and any public or Village-owned rights-of-way.
A person lawfully receiving service delivered by a system
owner or operator or a service provider.
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 services or transmissions,
and voice-activated or electronic ordering capability or other uses
or services which are provided to subscribers or users within the
Village, 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 facility that serves only to retransmit the
television signals of one or more broadcast stations; or
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 Village-owned
property or Village rights-of-way for the provision of or to distribute
service or to generate revenue for commercial purposes, in which case
it shall be deemed a system; or
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 chapter.
Any facilities of any electric utility used
solely for operating its electric utility.
A violation of this chapter or any franchise that is of de
minimus negative effect on the Village or the public and that is not
repeated after notice by the Village. Notwithstanding the preceding,
a history or repeated pattern of the same or similar technical violations
shall not be deemed a technical violation.
Any change in the ownership or legal or financial control
of the entity granted a franchise or the person or other 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 Village and who may order the establishment or change of policy
as regards the operation of the system or the provision of service
within the Village. For purposes of this chapter, a merger or consolidation
of any kind shall be deemed a transfer. Any instance where the approval
of the FCC or other federal agency or a state agency is required shall
also be deemed a transfer and require the consent and approval of
the Village Board.
The new holder of a franchise or other use or operating authority
or the new possessor of legal or financial control of the entity granted
a franchise, as approved by formal action of the Village Board.
United States Code.
A person utilizing a system and/or its equipment, facilities
or capabilities for commercial purposes, as opposed to the receipt
of service as a subscriber to service.
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.
The provision of cable television service or video programming
service or other functionally equivalent video subscription service.
The Village of Woodbury, New York.
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 received
directly by the public off-air shall not be deemed wireless 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 receive, transmit, carry or transport 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.
Those days when the majority of retail businesses in the
Village are customarily open for business.
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 Village.
A.
The Mayor is hereby designated the individual responsible
for the continuing administration of this chapter and matters related
to the operation of wireline systems or providers of service utilizing
a system in the Village that use or occupy the property of the Village
or the Village's rights-of-way for such purpose.
B.
Unless expressly prohibited by federal, state or local
law, the Village Board or the Mayor may delegate authority to assist
in the administration of this chapter or a franchise granted pursuant
to this chapter.
C.
Unless expressly prohibited by federal, state or local
law, the Village Board is hereby authorized, at its sole discretion,
to create an appointed advisory board, commission or committee.
D.
Notwithstanding anything in this section, the Village
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 chapter to another person or representative,
advisory board, commission or committee.
A.
Systems owners or operators and service providers
who use or occupy the Village's streets, property or rights-of-way
and who are not expressly exempted from compliance with this chapter
by prior state law are subject to and shall be governed by the requirements
and provisions of this chapter and any amendments thereto. Also subject
to certain requirements and provisions of this chapter 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 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 Village's
property and rights-of-way.
B.
The authority of the Village to regulate any precluded
or preempted service provider or system under certain portions of
this chapter shall not exempt such persons from the requirements of
other provisions of this chapter involving the construction, operation
and maintenance of the system or its facilities as relates to the
protection of the health, safety and welfare of the public.
C.
Any service provider or any system owner whose original grant of authority to use and occupy the Village's property or rights-of-way for commercial purposes that did not expressly grant the right to provide service, as defined in § 305-1 of this chapter, shall be deemed subject to the provisions of this chapter, except to the extent that the provision of a type of service provided under the original grant of authority to use and occupy the Village's property rights-of-way for commercial purposes, as expressly set forth therein, may be exempted or grandfathered with respect to being used to determine payments or fees to the Village as required and permitted under this chapter.
D.
In the event of any conflict or ambiguity between the requirements of this chapter and any franchise subject to this chapter, this chapter shall control, unless the requirement or provision is expressly preempted by federal or state law, rule or regulation or unless the issue is expressly addressed in the franchise in the context of relief from this chapter. Any relief or variance from the provisions of this chapter shall be granted in accordance with § 305-4 of this chapter, and such relief or variance shall be expressly set forth in any franchise agreement.
E.
This chapter shall not be deemed to nor shall it change,
impair or repeal the terms or conditions of any franchise, agreement
or contract granted prior to the effective date of this chapter to
the extent that such expressly contains a lesser or less stringent
obligation, requirement or commitment that is expressly enumerated
in the existing franchise, agreement or contract as regards the expressly
stated and intended purpose and use of the Village'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 chapter is silent
on a matter addressed in this chapter, and absent express language
to the contrary or limiting the Village's right to adopt additional
regulatory requirements regarding the regulation of the commercial
use and occupancy of the Village's property, streets and rights-of-way
in the franchise, agreement or contract, the applicable provisions
of this chapter 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 chapter, this
chapter shall be of 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; or
(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 chapter; 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 chapter or finds that a service provider
or system owner or operator is not exempt from all or any part or
provision of this chapter.
H.
Any service provider or system owner or operator shall
be required to comply with the safety requirements and provisions
of this chapter, unless the agreement, contract or other operating
authority granted prior to the effective date of this chapter states
otherwise.
I.
Unless a franchise, agreement or contract granted
prior to the effective date of this chapter states otherwise, all
system owners or operators or service providers shall abide by the
construction and construction-related requirements and provisions
of this chapter when performing any construction, rebuild, upgrade,
repair, change or replacement of equipment or facilities.
J.
All provisions contained within this chapter shall
be of full force and effect 30 days after the date of adoption of
this chapter, unless the ability to enforce a particular provision
is preempted by the force of 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. In the event the federal
or state law, rule or regulation grandfathers the authority of the
Village to enforce such provisions, the particular provision shall
be enforceable under this chapter.
K.
Notwithstanding anything to the contrary in this section,
unless otherwise expressly grandfathered in an existing franchise
granted prior to the effective date of this chapter, 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 chapter at all times, including:
(1)
The latest edition of the National Electrical Code,
including any amendments;
(2)
The latest edition of the National Electrical Safety
Code, including any amendments; and
(3)
Any other applicable safety and safety-related codes
or regulations of the Village, county or state as such exist as of
the effective date of this chapter or as may be adopted from time
to time.
A.
Any service provider or system owner or operator subject
to the provisions of this chapter may file a written petition at any
time with the Village Board seeking relief from one or more provisions
of this chapter. A service provider or system owner or operator may
specifically request exemption or relief from or delay in the implementation
of one or more provisions of this chapter, but only as to the petitioning
provider, owner or operator and not to any successors in interest
or assignees.
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, the Village Board may determine
that the relief granted be applicable for a specified or limited length
of time or duration, pending a determination of the effect of the
relief on the petitioner'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 Village Board that the system owner's or operator's,
or service provider's, ability to compete effectively is substantially
hindered by compliance, relief shall then be granted for the remaining
term of the franchise or until the ability to compete effectively
is no longer hindered.
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 Village Board to make 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 be returned to the
petitioner without action.
E.
In order to be granted relief from one or more of
the provisions of this chapter, a service provider or system owner
or operator must demonstrate to the Village Board with reasonable
certainty that at least one of the following facts exist:
(1)
The provision or requirement is expressly prohibited
by federal law, rule or regulation or by state law, rule or regulation;
or
(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. However, such relief shall only be for the remaining 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 U.S.C. § 545); or
(3)
That compliance with a particular provision and/or
requirement will be commercially impracticable for the system owner
or operator or service provider; or
(4)
That one or more time requirements listed in this
chapter are either impracticable or impossible to meet; or
(5)
That the service provider or system owner or operator
has its own policy which the Village 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 Village and the public otherwise warrant
the granting of such relief and will not be adversely affected to
a significant extent.
F.
The Village Board shall be the determiner of whether
a request for relief has met one or more of the requirements of this
section.
G.
A service provider or system owner or operator may
petition the Village Board at any time for clarification concerning
the precise intent and effect that any provision or requirement of
this chapter has on the petitioning service provider or system owner
or operator.
H.
In those instances where the Village 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 chapter, 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, and any changes to the language shall be submitted
to the Village Board 30 days prior to the meeting at which the amendment
is intended to be made.
J.
The benefit of any exemption or relief shall extend
only to the service provider or system owner or operator granted such
exemption or relief. In the case of a subsequent transfer, assignment,
change of control or sale of the system to a person without a record
of performance in the Village, the proposed transferee, assignee,
controlling entity or buyer, if required by the Village Board, shall
be required to petition separately for any relief or exemption. 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 Village Board.
K.
Any service provider or system owner or operator who
petitions for or requests relief or exemption from any portion of
this chapter 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 Village Board, be required to reimburse
the Village for the verifiable fully allocated cost of processing
and analyzing such request, since such cost is deemed an extraordinary
cost to the Village 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 Village pursuant to Subsection K 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.
It being a reasonable assumption that responsible
persons of good intent will comply with laws, and to prevent the Village
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 chapter or any
subsequently adopted amendments to this chapter by any failure of
the Village on any one or more occasions to seek or insist upon prompt
compliance with such requirements or provisions.
A.
Any service provider or system owner or operator,
and any assignee or transferee, shall be subject to and required to
abide by all applicable laws, ordinances and/or regulations now or
hereafter adopted by and in effect within the Village, including this
chapter, 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, and subject to the provisions of § 305-3 of this chapter, in the event the Village Board amends this chapter and the amendment of the chapter 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 service provider or system owner or operator until the expiration of the franchise.
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 chapter that regulate matters of 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.
Any prior resolution, ordinance, code or Village
law which, in part or in whole, is directly inconsistent with this
chapter is hereby deemed unenforceable to the extent of the inconsistency
as regards service providers or system owners or operators subject
to this chapter.
In any case of an actual inconsistency between
any provision or section of this chapter 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 chapter and shall control in any local application.
Where there is a conflict, whether actual or
perceived, between this chapter and a franchise granted subsequent
to the effective date of this chapter, this chapter shall control,
unless judicially determined to be invalid or unenforceable by a court
of competent jurisdiction.
A.
Violations of this chapter shall be handled in the
manner prescribed by applicable state law.
B.
To the extent permitted by state and local law, the
Village Board shall have the authority to change the schedule of fines
and/or penalties for violations of this chapter 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 chapter, or for a breach
of a franchise, then such fines and/or penalties shall operate as
a separate and independent remedy for the Village.
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 as determined by the Village
Board for a breach of a franchise where such breach is of no or of
de minimus effect on the Village or the public.
E.
A franchisee shall be subject to default and/or revocation
of its franchise for cause as set forth in this chapter.
Notwithstanding the provisions contained in § 305-93 of this chapter, 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 chapter or a technical breach of a franchise. For purposes of this chapter, technical violations or breaches include the following:
A.
Instances or matters where a violation of this chapter
or, where applicable, of a franchise, was a good faith error that
resulted in no negative impact on the residents, subscriber or users
within the Village or on the Village itself or where such violation
resulted in de minimus effect on any of the preceding persons or the
Village; 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 chapter or the franchise.
A service provider or system owner or operator
shall not be held in violation, material breach, default or noncompliance
of this chapter 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 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 having to wait for
utility providers to service or monitor their own utility poles on
which a service provider or system owner's 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 chapter.
A.
The Village 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 United States
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.
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 Village, the Village Board, the Mayor, 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 Village 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 Village from the service provider or system owner or operator.
B.
The Village, the Village Board and the Mayor shall
have 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 Village, the Village Board or the Mayor, then
any one of them shall have the right to approve such counsel. However,
neither the Village, the Village Board, nor the Mayor shall unreasonably
withhold its approval of counsel, provided that such counsel is qualified
and reasonably experienced in defending against such claims or actions.
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 Village, public liability insurance, property damage
insurance and umbrella insurance coverage in at least the following
amounts:
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 Village, the Village Board, the Mayor
and employees of the Village 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 Village 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 Village 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 Village copies of the policies or
certificates of insurance representing the required insurance, and
each policy or certificate delivered shall be accompanied by evidence
of payment of the full premium thereof for the period covered by the
policy.
G.
If the state permits a service provider or system owner or operator to be self-insured, then the Village Board may, at its sole discretion, permit the service provider or system owner or operator to be self-insured, so as 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 Village 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.
A.
A service provider or system owner or operator shall
provide to the Village a performance bond or other security executed
by a surety licensed to do business in the state or, if deemed necessary
by the Village Board, a cash deposit or irrevocable letter of credit
in the name of the Village 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 chapter and may be called or drawn upon, as appropriate, to recompense
the Village for fully allocated costs, losses or damages incurred
by the Village as a result of the failure to comply with this chapter,
up to the monetary limits of the security. If the Village 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 chapter,
then the service provider or system owner or operator shall be required
to replenish the security to the previous level within 30 days of
the call or draw down.
B.
If the applicant is an incumbent in the Village, 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 Village. If the applicant has no record of performance under any authority granted by the Village, 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 Village.
C.
The performance bond or other security shall be in
force at all times, 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 Village Board.
D.
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 Village 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 shall 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 Village 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.
E.
To minimize and control the disruption of the normal
and usual use of the streets and rights-of-way in the Village, 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 Village Board or Administrator and that the service provider
or system owner or operator will complete the project in a timely
manner.
F.
If the Village 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 previous level within 30 days of the date of the draw down.
G.
In lieu of a performance bond and/or a construction/completion
bond, at its sole discretion, the Village 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.
Notwithstanding other insurance and bond requirements,
a service provider or system owner or operator shall obtain and maintain
any other required 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 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.
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:
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;
(4)
Records of system maintenance and repair activities;
and
(5)
Any other record or information required to be contained
in a public inspection file by federal or state law, rule or regulation.
A.
A service provider or system owner or operator shall
maintain and, upon request by the Village Board or its designee, provide
records as are reasonably necessary for the Village to determine compliance
with the provisions of this chapter 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
chapter and the franchise.
B.
On or before January 1 of each year after the effective
date of this chapter, a service provider or system owner or operator
shall submit to a designated Village 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 affect on the system or the provision of
service in the Village. 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 Village within 180 days of
the filing, then the service provider or system owner or operator
shall notify the Village Board or Administrator of the filing within
15 days of the date of the filing. The notice shall inform the Village
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 chapter or a service provider's or system owner's or operator's franchise, or any permitted operation under this chapter, pursuant to Subsection B of this section, the Village Board or the Administrator may require the provision of any reports, records, data or other information that is 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 Village. However, unless the Village 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 U.S.C. § 551).
D.
For the purposes intended under Subsection C of this section, if requested, 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.
The Village shall have the right and authority to
require the delivery to the Village of any information related to
determining the adequacy of any payments due the Village, including,
but not limited to, franchise fee payments, rent, user fees, licenses
or taxes. The Village may not require the delivery of original documents,
but may require the delivery of photostatic copies of such.
F.
The Village shall have the right to require, as deemed
necessary for the administration and enforcement of this chapter or
a franchise, that a franchisee or other service provider or system
owner or operator deliver to the Village 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 Village, 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 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 Village
or the Village's regulatory authority. The information shall be provided
in a timely and expeditious manner and as may further be required
by this chapter 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
chapter to prevent the Village Board from exercising its rights or
performing its duties and obligations under this chapter or any applicable
federal or state law, rule or regulation.
H.
Copies of responses, decisions, orders, rulemakings
or any other communications from the regulatory agencies or courts
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 to the operation of the system
or the provision of service in the Village, that would have an effect
on the operation of the system or the provision of service within
the Village, or ownership, shall likewise be filed with the Village
no 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 chapter that are necessary for the proper
and diligent administration and enforcement of this chapter or any
franchise granted by the Village, including, but not limited to, the
following:
(1)
A periodic gross revenue statement and report in the
manner set forth in this chapter;
(2)
A copy of the loss of service or outage log applicable
to the system or service in the Village, showing all service outages
of any kind and duration, in accordance with the requirements in this
chapter and any franchise;
(3)
System maintenance reports as set forth in this chapter;
(4)
Any form, including all attachments and exhibits thereto,
relating to an assignment or transfer of the franchise or any change
of control of a system, operator or service provider;
(5)
A copy of any equal employment opportunity (EEO) and
fair contracting policies; and
(6)
A copy of any required state authorization to operate
a system or provide service using a system.
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 the system and/or
the provision of service in the Village, including records of inspection
and maintenance activity in sufficient detail to ascertain the diligence
and adequacy of the inspection and maintenance program.
B.
The Village Board, the Administrator or a duly authorized
designee of either shall always have the right to require the provision
of and delivery of information or records, including true and complete
photostatic copies of any records, to the Village offices or the offices
of the Village's designee, as may be necessary and required to administer
this chapter or any franchise. At the discretion of the Village 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 Village Board or the Administrator.
C.
Requests for information and records shall by 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 Village Board or the Administrator. In an emergency
situation, the information may 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 to the Village or its designee in
a timely manner as required by this chapter. 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 Village 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 Village Board
or the Administrator, attested and certified summaries of information
in the form and format determined by the 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 Village 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 Village for the actual fully allocated
cost of the audit or review. Absent fraud, any audit by an independent
certified public accountant or other qualified professional retained
by the Village 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 chapter and, at the
discretion of Village 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 chapter,
nor subject a service provider or system owner or operator to any
damages or penalties.
G.
The service provider or system owner or operator shall
also keep, make available and provide, upon request by the Village,
any other 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.
H.
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.
I.
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 this chapter.
J.
To the extent required by applicable state and federal
law, the Village 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.
K.
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 Village Board from exercising its rights or
performing its duties and obligations under this chapter or any applicable
federal or state law, rule or regulation.
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.
As a matter of consumer protection the Village
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 Village Board, result in fines or penalties
as set forth in this chapter.
As a matter of consumer protection the Village
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 Village Board, result in fines or penalties
as set forth in this chapter.
The Village is hereby granted the authority
to do all things necessary and permissible to supervise, inspect and
regulate the construction, operation and maintenance of systems that
are subject to this chapter, 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.
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 Village without the
prior express written consent of the Village 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 the Village to
avoid compliance with this chapter or the terms and conditions of
a franchise.
C.
Failure to meet the requirements of this section may,
at the discretion of the Village Board, result in fines or penalties
as set forth in this chapter.
A.
In order to establish minimum and uniform standards
related to the safe use and occupancy of public property, the Village's
property and rights-of-way and 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 Village 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 chapter,
and any other requirements of the state, county and/or Village;
(2)
Use and occupy streets and private rights-of-way as
set forth in this chapter and any other applicable requirements of
the state, county and/or Village;
(3)
Where applicable and when ordered in accordance with
this chapter or a franchise, remove the service provider's or system
owner's or operator's equipment, facilities and property from the
Village's property, streets or rights-of-way in accordance with this
chapter 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
chapter;
(6)
Abide by and act in strict accordance with all codes
that are standard and customary to the applicable industry, including
construction, fire, safety, health and zoning codes that are adopted
by the Village, the county, the state or the United States;
(7)
Cooperate with the Village 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 Village Board; and
(8)
Maintain all permits, licenses and other authorities
as required by this chapter and any other Village 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 P 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 chapter, unless engaged in any construction, rebuild or upgrade of the system or facilities after the effective date of this chapter and prior to the expiration date of the franchise.
C.
For newly served areas of the Village, the provisions of Subsection D 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.
[Amended 7-28-2009 by L.L. No. 4-2009]
D.
The Village 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 § 305-4 of this chapter.
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 and 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 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. Unless
impracticable, all drop material attached to a dwelling or business
must follow the perimeter lines or rooflines 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 acknowledgement by the subscriber or user of the need to route the installation differently than as required in this subsection. For systems or service providers in existence prior to the effective date of this chapter, 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 chapter,
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 any 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 Village Board may order to be placed underground any portion of a system.
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. The system owner or operator or service provider shall be required to be able to provide evidence of the notice 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 Subsection H.
M.
In order to provide the maximum assurance of the protection of the public and of the employees of any occupants of the Village's property and rights-of-way, the Village specifically adopts the following 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 Village, 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 aerial system components shall at all times be
securely attached and supported.
(2)
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.
(3)
Any guy wire associated with a system that is reasonably
accessible to or may reasonably be expected to be encountered by pedestrians
or users of recreational vehicles, including but not limited to bicycles,
skateboards, 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.
(4)
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.
(5)
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.
(6)
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.
(7)
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, contact
with sharp edges that are associated with or contained in the pedestal
or vault and stings by insects that often make nests in pedestals
or vaults. 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 the 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.
(8)
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.
(9)
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.
(10)
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.
(11)
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 secondary power lines, wires or facilities.
(12)
At all times in all aerially constructed areas
of the Village, all communications systems or service facilities or
components shall maintain a minimum of 12 inches vertical clearance
from any other communications lines, wires and facilities.
(13)
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 from any component of electrical service
to any residence or building, except for purposes of bonding to the
electrical service ground.
(14)
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 a ground.
(15)
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.
(16)
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 Village Board or its designee.
(17)
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.
(18)
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.
(19)
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 Village, and then only for the reason stated in Subsection M(13) of this section. No service drop may at any time be grounded to or in contact with any facility providing gas service, nor be closer than 12 inches to any facility providing gas service.
(20)
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 Village Board or the Administrator
on a individual location-by-location basis. At no time may materials
or system components be left in the rights-of-way in reach of an individual,
unless appropriate personnel are present to prevent injury.
(21)
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 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.
(22)
All communications systems and facilities of
a communications 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, unless sufficient climbing
space is provided by use of a stand-off arm. At no time shall any
facilities of a system owner or operator or service provider create
what is known in the industry as a "frame out" of a pole, thereby
blocking the necessary climbing space of the pole.
(23)
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.
(24)
All cable, lines, wires and fiber shall at all
times be securely lashed to the supporting strand so that the structural
integrity of the 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 Village Board, be subject to the imposition of fines and penalties
as set forth in this chapter.
Any construction, rebuild, upgrade, installation
or maintenance of any system or facilities 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.
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 Village 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 create 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 chapter 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 Village, remove or modify that part of the system or
facilities so as to eliminate the condition in a prompt and expeditious
manner.
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 Village 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 Village's rights-of-way 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 Village'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.
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 Village.
B.
An application process and procedure shall be established
by the Village, 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 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.
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 of the franchise, subject to the continuity of service
provisions outlined in this chapter, and unless the Village or another
person 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 from the streets, public ways and
private property located within the Village, including all facilities,
equipment and other property. 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 within 90 days of a lawful order or directive from the Village,
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 without the express written permission of
the Village Board or the Administrator, other than for reasons of
force majeure;
(2)
The service provider or system owner or operator fails,
without the express written permission of the Village Board, 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;
(3)
The Village Board elects not to and affirmatively
acts not to renew the franchise, pursuant to the provisions set forth
in this chapter and, if such action is 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
chapter and, if appealed, pending a final ruling or determination
by a court of competent jurisdiction.
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 Village 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 Village 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 Village 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 Village 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 Village.
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 Village, the service provider or system owner or operator
shall, at its own expense, and in a manner approved by the Village,
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.
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 Village or the agency granting the
permit or license.
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, and the Village
reserves the right and authority to enforce such rules and standards,
including the authority to require demonstration of compliance.
A.
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 chapter,
the Village 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 Village.
B.
The Village shall have the right to require the delivery
to the Village 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 be deemed necessary to
administer and enforce this chapter and any franchise.
C.
The Village shall pay for its costs associated with any physical inspections of the system or its components or for document reviews. Notwithstanding the preceding, the Village may require reimbursement of its fully allocated 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 Village in an inspection, or that is occasioned by the identified failure in a significant portion of the Village 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 chapter.
D.
If a failure to construct, install, maintain, repair,
rebuild or upgrade the system or facilities as required by this chapter
is identified, except for that which would reasonably be deemed of
a de minimus number of situations and of de minimus effect, and, after
ordering the remedy or elimination of the failures and providing a
period of time to comply with the order, the Village 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 Village Board or the Administrator, the service provider or system owner or operator may be required to reimburse the Village for all of the actual fully allocated costs that are incurred by the Village 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 Village 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 chapter
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.
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).
Any changes in or amendments to these codes and law shall be deemed
to have been automatically adopted by the Village with respect to
this chapter, unless expressly rejected by the Village 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 makeready for the situation
at that location showing the date of the request; or
(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 protection of the health and safety
of persons and property in the Village to the maximum extent reasonably
possible, the Village 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 Village, excepting those caused
by subscribers, users or the public and which the service provider
was not aware of or could not reasonably have 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 reported, or if caused by a third
party to diligently pursue the remedy and elimination of the violation.
E.
To enable the Village to take any needed action or
precaution to alert or otherwise protect persons and property in the
Village, it shall be the responsibility and obligation of any service
provider or system owner or operator to report to the Village any
violation of safety codes, regulations or requirements or the construction
or construction-related requirements of this chapter 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, unless impracticable,
the notice to the Village shall be required to 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 situations that could reasonably be expected to cause
personal injury or property damage.
G.
Notwithstanding anything to the contrary in § 305-93 of this chapter entitled, "Fines and penalties," there shall be no fine or penalty assessed or imposed for construction or construction-related or safety or safety-related violations that are of the system owner's or operator's or service provider's own accord and volition reported to the Village in accordance with 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 Village 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 Village Board or the Administrator.
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 Village
property or streets or rights-of-way of the Village 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 Village
or for any authority affiliated with the Village to own a system or
provide service in the Village or to operate as a service provider
or system owner or operator in the Village unless required to do so
by state law.
A.
The Village Board may award one or more nonexclusive
franchises within its corporate limits, or any area outside the corporate
limits that is under the Village's governmental or regulatory control,
including the Village's police powers.
B.
No franchise granting authority to construct and operate
a system or provide service in the Village 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 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 Village 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 Village.
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.
A.
A service provider or system owner or operator subject
to this chapter may not lay or use any cable, lines or wires, whether
coaxial, fiber or a functional equivalent, or any other equipment
or facilities, on Village-owned property or in the Village'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
Village;
(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 Village'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 Village's property and rights-of-way and the provision of service;
(14)
Any exemptions or relief from this chapter,
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 Village 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 Village and its residents.
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 chapter and the
terms and conditions of the franchise.
B.
Any franchise granted under this chapter 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 Village, and no wireless
reception or transmission equipment or facilities shall be attached
to or use the wireline system located on or using Village-owned property
or rights-of-way without the express written permission of the Village,
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 Village as more specifically set forth in the franchise, but
only to the extent set forth in this chapter 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 Village,
may locate the system on or within the easement or property of such
utility in the Village, 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.
A.
The term of an initial franchise shall be no more than 10 years from the date that a franchise is approved by the Village Board and is executed by an authorized official of the Village 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 Village 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 Village 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 Village 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 Village Board.
F.
Unless ordered or otherwise required by a court of
competent jurisdiction or unless required by state law, the Village
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 Village Board and, if required, is approved by
the PSC. The maximum term of renewal 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 Village Board, continued authority may be
granted in ninety-day increments.
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 Village 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 Village.
A.
Any franchise agreement that does not contain a plan
for service to all occupied homes and buildings in the Village shall
contain a system expansion or line extension plan and schedule for
areas not served as of the effective date of the franchise.
B.
The cost of any line extension may either be apportioned
among the subscribers and users of that line extension in the Village
or, at the discretion of the Village Board, among all subscribers
and users of the system or service.
C.
If the Village 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 Village Board, be required to extend service to the new locations within the reasonable time frame established by the Village 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 Village 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.
The Village Board may grant relief from this requirement
for one or more unserved areas within the Village if the applicant
provides an explanation acceptable to the Village as to why a particular
area cannot be served.
A.
As may be applicable, but only to the extent expressly
required by state or federal law, rule or regulation, the Village
Board shall follow all applicable federal and state laws and rules
of the FCC and the PSC with respect to the submission and processing
of initial and renewal applications or proposals for a franchise.
B.
As regards cable operators, and notwithstanding the preceding Subsection A, 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 Village, and which proposal is for the provision of service or the ownership or operation of a system, as defined in § 305-1 of this chapter, shall be deemed an initial application, 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).
C.
For service providers or system owners or operators
not subject to federal law and the rules of the FCC and the PSC with
respect to the grant or renewal of franchises or as set forth, the
Village 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 Village 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 Village
and elsewhere.
D.
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 Village Board, which fee
shall be for the purpose of covering the Village'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.
E.
An initial application for a franchise to use and
occupy the Village's property and Village-owned and managed rights-of-way
to provide service or own or operate a system for commercial purposes
shall place a deposit with the Village in the amount of $20,000 to
cover actual costs associated with, attributable to and necessitated
by the process.
F.
As the Village 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 Village and would prevent the Village 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 E of this section is less than $5,000, then, upon notice by the Village, 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 promptly be returned to the applicant.
G.
As consideration of a request for renewal of a franchise
is deemed an extraordinary cost to the Village 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 franchise or the grant of new franchise subsequent
to the grant of a previous one may be required by the Village to place
on deposit with the Village 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.
I.
Any application or proposal shall be accompanied by
a check in 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.
A.
Any service provider or system owner or operator that
is granted a franchise or renewal of a franchise, after the date this
chapter becomes effective, shall pay to the Village an amount that
is equal to the fully allocated cost of administering the franchise
for the year, which cost shall be based on the budgeted amount in
the budget adopted by the Village for that year.
B.
Notwithstanding the requirement of Subsection A of this section, the Village 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 of effect as of the effective date of this chapter.
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 due date of any payment.
E.
Notwithstanding anything to the contrary in Subsection A or B of this section, upon the expiration of a franchise agreement in existence as of the effective date of this chapter that contained a smaller franchise fee than is permitted by law, the Village may increase the previously required franchise fee to the maximum permitted under law, including for or during any period of continued or temporary operating authority pending the grant of a new or renewed franchise.
F.
If the Village 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 Village, 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 Village. 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 merely collects the fee from
subscribers separately and apart from the rate for service and other
charges and remits 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 Village.
G.
If the Village 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,
to protect against the derogation of its rights, the Village shall
have the right and authority to increase the franchise fee to the
maximum percentage or amount permissible upon 90 days' notice by the
Village to the franchisee.
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
Village 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 Village and so long as the fee does not
exceed the maximum allowable under law.
I.
If the Village assesses the franchise fee as a percentage
of revenue, then in the event the Village 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 Village 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 Village 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
Village, within 45 days after the expiration of each calendar quarter,
a complete and unexpurgated income statement, together with the basis
of the calculations used to determine the franchise fee, showing all
computations used in the determination.
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 is derived from or caused
to be derived from or that is attributable to the operation of the
system and/or the provision of any service or use in the Village,
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 § 305-1 of this chapter, 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.
N.
If the payment of the franchise fee is made after the deadline set forth in Subsection D of this section, the system owner or operator or service provider may be required to pay the Village interest for the entire amount owed for any period of time beyond the deadline set forth in Subsection D 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 interest 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 Village, 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 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 chapter and in accordance with rights of due process.
Q.
The Village 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 § 305-1 of this chapter, or to require delivery to the Village true and complete copies of such records. In the alternative, the Village Board may require the delivery to the Village of photostatic copies of the revenue chart of accounts of any subsidiary, affiliate or parent that derives revenue, as "gross revenue" is defined in § 305-1 of this chapter, 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 Village 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 Village.
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 Village Board 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 Village assesses the franchise fee as a percentage of revenue, all reports due and pertaining to the remittance of the franchise fee shall 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 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 Village Board.
T.
No acceptance of any payment shall be construed as
a release, accord or satisfaction of any claim that the Village may
have for further or additional sums payable under the provisions this
chapter 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 chapter, payments
of franchise fees made to the Village 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 fees 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 Village 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 Village 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 third-party person who provides service as described in 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 Village 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 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 not paid 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 Village if
otherwise permitted.
A.
Pursuant to Section 253(c) of the Telecommunications
Act of 1996, the Village 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 Village's property and the Village's rights-of-way for commercial
purposes.
B.
If assessed, to the extent possible, the Village shall
impose rent or a right-of-way use and occupancy fee 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 exceed the fair market value of the Village's property
and rights-of-way that are used and occupied for commercial purposes,
as determined by the Village Board; nor shall the amount of rent or
the right-of-way use and occupancy fee exceed the fair market value
of the Village'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 Assessor or another qualified individual as may
be designated by the Village Board.
D.
An assessment pursuant to this section shall be based upon either the fair market value of like or similar property adjacent to the Village'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 Village, or the average fair market value of commercially zoned property within the Village 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 § 305-1 of this chapter, whichever is greater. The Village Board shall make the determination which of the alternatives set forth in this subsection it chooses to use, but the Village may use only one of the alternatives and never a combination.
E.
Notwithstanding anything to the contrary in this section,
the Village 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 Village 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 Village.
F.
In the event the Village 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 Y of § 305-84 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.
A.
There shall be no sale or change in the ownership of the system, the franchisee or any parent of the franchisee, nor any 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 legal or financial control of the service provider or system owner or operator or of any parent or controlling entity or where any change results in a change in control of the system or the franchisee or the facilities used to provide service, whether such change in control is direct or indirect, de jure or de facto, without the prior express written approval and consent of the Village Board. Nor shall there be any change in control or ownership of the system's facilities without the prior express written approval and consent of the Village Board. A merger at any level shall be deemed a change of control and the Village Board's written approval must be obtained. "Control" and "change in control" shall have the meanings set forth in § 305-1 of this chapter.
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 applicable FCC rules and state law, rules and regulations.
C.
Any transfer, assignment or change in control shall
be approved only if the proposed transferee or controlling entity
can and will meet all obligations contained in the existing franchise,
unless separate and deliberate relief is granted as part of the request
and approval process.
D.
No franchise approval of request for transfer or change
in control shall occur with outstanding, uncured violations of this
chapter or breaches of the franchise and until all money that may
be owed the Village has been paid in full. In the event the Village
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 chapter 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.
E.
Mergers or consolidations at any level that affect control of the franchisee or the system, whether such control is direct or indirect, shall require the consent of the Village Board pursuant to Subsection A of this section.
F.
Any assignment, change in control or sale as set forth
in this section that occurs without the prior written consent of the
Village Board shall constitute a violation of this chapter and a default
of the franchise and may, at the discretion and in the judgment of
the Village Board, subject the franchise to revocation and other sanctions
or penalties as permitted under law.
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 chapter,
the Village 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 chapter or the franchise is committed by a service provider
or system owner or operator which represents a material violation
of a provision of this chapter 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 Village 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 chapter and breach
of any franchise granted or enforceable hereunder. Under such circumstances,
the Village 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
chapter. For illustrative purposes only, violations, breaches, acts
of evasions or avoidance and omission include, but are not limited
to, bankruptcy, insolvency, failure to pay taxes or to 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 chapter or a franchise after proper notice and showing a pattern
of failure or refusal to abide by the terms and conditions of the
franchise or the provisions of this chapter.
C.
Where a service provider or system owner or operator
commits any violation or breach to the satisfaction of the Village
Board or as required in this chapter or a franchise within 30 days
after notification by the Village, 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 the Village 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 may 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 Village 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 Village Board shall provide written notice of
the date, time and place of the hearing to the affected service provider
or system owner or operator at least 30 days prior to the hearing.
H.
At the time of the hearing, the service provider or
system owner or operator may present information on the current status
of the alleged violation of this chapter 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 chapter 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
chapter or in breach and default of the franchise based on the evidence
available at that time.
J.
After the public hearing, the Village Board or Administrator
may determine the service provider or system owner or operator to
be in compliance and dismiss the matter, with or without prejudice;
or may 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 may 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 chapter or committed a breach of a
material provision of the franchise that resulted in a violation of
this chapter and failed to remedy and adequately cure the violation
of this chapter or material breach of the franchise, the Village 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. Unless the service provider
or system owner or operator complies with the directive or order of
the Village Board or the Administrator or presents sufficient mitigating
circumstances that, at the discretion of the Village Board or the
Administrator, warrant less severe or extreme measures, the Village
Board, and only the Village Board, thereafter may revoke, terminate
or cancel the franchise pursuant to this section.
L.
If the Village 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 Village Board or the Administrator
to the service provider or system owner or operator.
M.
If, within the time set forth in the order or directive,
the service provider or system owner or operator 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 Village Board, at the Board's sole discretion, then the Village
Board may impose fines or penalties as set forth in this chapter or,
in the extreme, may terminate and revoke the franchise and, unless
there are further mitigating circumstances, shall notify the affected
service provider or system owner or operator of such action.
N.
In the event fines are imposed, the compliance or
performance security placed with the Village may be used to collect
the fines, and the Village may take such action as is required to
call on or draw against the security for such purpose.
O.
In the event of the termination and revocation of
the franchise, within seven days after notification of such action,
the Village Board or the Administrator shall notify the service provider
or system owner or operator and its surety that any security is forfeited.
The Village may then take such action as is required to collect on
the security.
P.
If deemed appropriate by the Village Board or the
Administrator, given the facts and circumstances, the Village may
call the security in further settlement of the matter.
A.
The Village shall periodically monitor the compliance
of service providers or system owners or operators who are subject
to the requirements of this chapter, in whole or in part. Prior to
the conduct of an evaluation, the Village 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 retains the financial,
technical, legal and character qualifications necessary to operate
a system and/or offer service in the Village. Such review shall also
include an examination to determine if the operational, maintenance
and performance levels meet the minimum requirements of this chapter.
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 chapter 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 Village Board or the
Administrator determines that the service provider or system owner
or operator has not complied with one or more provisions of this chapter
for which relief has not been granted, irrespective of whether or
not the violation can be corrected, eliminated, remedied or cured,
then the Village Board or the Administrator may require the service
provider or system owner or operator to reimburse the Village for
all actual fully allocated costs incurred by the Village 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
shall be deemed a violation of this chapter.
C.
Notwithstanding Subsection B of this section, the Village Board or the Administrator shall give the service provider or system owner or operator an opportunity either to correct, eliminate, remedy or cure any violation or act of noncompliance, evasion or avoidance or submit documentation or supporting evidence that resolves any area of noncompliance or act of evasion or avoidance to the satisfaction of the Village Board or the Administrator or explain the lack of effect of such to the satisfaction of the Village 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 Village 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, 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 Village, its residents or both.
E.
To serve as an incentive for compliance with this
chapter and the intent thereof, if any violation of this chapter 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 Village 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 Village 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 Village, 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 chapter
and subject the service provider or system owner or operator to the
appropriate sanction of the Village Board as permitted under this
chapter and applicable state and federal law. Such action or sanctions
may, at the discretion of the Village Board or the Administrator,
include the imposition of fines and penalties as set forth in this
chapter 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 chapter. 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 chapter
for the same violation.
A.
This chapter may be enforced by the Village Attorney,
the Village Board and, if applicable, the Administrator. In addition
to all other rights and powers vested in and possessed by the Village,
if required by state law, the Village Board reserves the right to
seek fines and/or penalties in the lowest court of competent jurisdiction
in the Village.
B.
Notwithstanding the preceding Subsection A of this section and if permitted by state law, the Village reserves for itself the right to assess fines and/or penalties for any violation of this chapter or any attempt to evade or avoid compliance with the requirements of this chapter 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 chapter, 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 any, before
the imposition of fines or penalties. Violations of the same or of
a similar type and of a substantive number, but occurring at different
locations or affecting 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 chapter, the failure by a service provider or system owner
or operator to comply with any time-related or performance-related
requirement of this chapter, or an act of evasion or avoidance of
the requirements of this chapter, 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 Village or is otherwise specifically waived by
the Village Board.
E.
Failure to pay fines and/or penalties within the time
provided shall be a material violation of this chapter 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 Village.
F.
The Village Board adopts the following schedule of
fines and penalties for the violations listed. Unless prohibited by
state law, the Village Board reserves the right to fine and penalize
any service provider or system owner or operator found to be in violation
of this chapter.
G.
Each instance or occurrence may be deemed a separate
violation, and each day or part thereof following written notification
by the Village 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 Village Board may 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 Village may have under law, nor are they
deemed to be recompense for any damages that may be suffered:
(1)
For failure to complete any system construction, reconstruction
or upgrade in any section of the Village or in the Village 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 provide any data, documents, reports
or information required by this chapter or that is needed to monitor
or determine compliance with and to administer this chapter: an amount
not to exceed $100.
(4)
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.
(5)
For refusal to cooperate with the Village on any matter
involving an inspection of the system and its components and facilities:
an amount not to exceed $500.
(6)
For failure to comply with any requirements regarding
completion, cleanup and proper installation as set forth in this chapter:
an amount not to exceed $200.
(7)
For failure to meet any construction or safety-related
requirements of this chapter, including fire and electrical codes:
an amount not to exceed $250 per violation.
(a)
For reasons of impracticability and excessive,
unreasonable and unnecessary cost to the Village, in the event that
a substantial number of safety-related violations are found during
an inspection of a system within the Village, such being defined as
more than 10 in one continuous or contiguous mile of the system within
the Village, the Village 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
Village may reasonably assume the findings to be prima facie evidence
that the situation is Village-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 Village.
(b)
In the event of a situation described in Subsection G(7)(a) of this section, any fines imposed shall be calculated using the following formula:
|
Number of Violations Found x Total Miles in
the Village = Total Violations Miles of System Inspected
|
(c)
As these issues are of paramount concern to
the Village and as noncompliance with these requirements is normally
deliberate, if the Village 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 Village of
the existence of the violations and shall continue until the service
provider or system owner or operator certifies to the Village, in
writing, that all construction- and safety-related violations associated
with its system in the Village 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(7)(c) until the elimination of the violation is verified.
(e)
Notwithstanding Subsection G(7)(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 Village's notice for the elimination of all construction- or safety-related violations, as set forth in Subsection G(7)(c) of this section, but in no case sooner than 35 days after the date of the notice of violation, the Village shall have the system within the Village 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(7)(f) of this section is an extraordinary expense to the Village caused by the impermissible actions of a service provider or system owner or operator, and is not deemed a normal cost of administering this chapter or a franchise, to prevent the taxpayers from having to bear the financial burden, the Village may require the service provider or system owner or operator to place on deposit with the Village an amount deemed to be reasonably sufficient to cover the cost of reinspecting 20% of the system within the Village 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.
(8)
For failure to pay the full and complete amount of
any money owed the Village, including any interest that may be owed:
an amount not to exceed $100.
(9)
For failure or refusal to place or restore performance
and completion securities as required: an amount not to exceed $100.
(10)
For failure to comply with the requirements
of this chapter 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 Village
following written notification by the Village of the violation: an
amount not to exceed $1,000.
(12)
For failure to comply with any other section,
subsection or provision of this chapter, 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 chapter, unless otherwise
formally granted relief or a waiver by the Village Board or the Administrator,
or unless a longer period of time is permitted after the initial 48
hours following notification by the Village 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.
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 chapter
or a technical breach of a franchise. For purposes of this chapter,
technical violations or breaches include the following:
(1)
Instances or matters where a violation of this chapter
or, where applicable a franchise, was a good faith error that resulted
in no negative impact on the residents, subscribers or users within
the Village or on the Village itself or where such violation resulted
in de minimus effect on any of the preceding persons or the Village;
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 chapter 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 Village 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 Village, pending the resolution and decision
of the adjudicating entity.
K.
Notwithstanding anything in this section or any other
section of this chapter, 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 chapter or any section of this chapter. 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.
A.
For the failure to comply with a time-related or performance-related
requirement of this chapter which the Village deems sufficient to
warrant sanctions, the Village 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 Village, 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 United States 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 Village may call a hearing on the matter. At the discretion of the Village Board, the hearing may be held before the Village Board or the Administrator.
E.
Public notice shall be given of the hearing and of
the issues that are to be considered by the Village.
F.
The Village 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 Village and the service
provider or system owner or operator and make a determination regarding
the alleged violation of this chapter or any franchise.
(1)
The Village 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 Village 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 chapter or a
breach of a term or condition of franchise, or a violation of any
federal, state, law, rule or regulation or local law, regulation or
code not expressly prohibited from local enforcement. The Village
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 Village.
(3)
At the hearing, the Village 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 Village 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 chapter 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
Village 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 Village 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 Village 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 Village Board, all of which shall be determined at the sole discretion of the Village Board, the proceedings shall be terminated and no penalty shall be imposed.
(7)
The Village Board shall be required to base its decision
on a preponderance of the evidence from the record established during
the hearing. If the Village Board determines that a failure to comply
with any time- or performance-related requirement of this chapter
or any act of evasion or avoidance of this chapter 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 chapter, the Village Board
may determine whatever action it deems appropriate as may be permitted
under this chapter and the franchise. The Village Board's decision
shall be final, and no other remedies, administrative or otherwise,
nor any procedures for such, are provided under this chapter.
(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 Village 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 Village 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 Village Board or the Administrator concludes that the service provider or system owner or operator has failed to comply with its obligations under this chapter 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 Village 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 chapter 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 Village Board,
to the extent not otherwise governed by this chapter 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 chapter, in the
event a violation of the construction- or safety-related requirements
of this chapter 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 Village to impose fines during such shorter
period.
H.
The Village 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 chapter,
or two or more breaches of a term or condition of a franchise that
constitute a violation of this chapter or an act of evasion or avoidance
of the requirements of this chapter, 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 chapter and thereby relieve the Village of any obligation to
provide further notice and opportunity to cure for subsequent failures
to meet the requirements of this chapter, 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 Village Board or the
Administrator, or a designated hearing officer, regarding the assessment
of fines and/or penalties, provided that the Village 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 lines 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 Village's imposition of fines and/or penalties,
it must file a written notice of appeal with the Mayor or the Administrator,
delivered by certified United States mail, return receipt requested,
within 10 days of the receipt of the notice of intent to assess fines
and penalties. The Mayor or Administrator shall then place the issue
before the Village Board.
L.
The Village shall then have served upon the affected
service provider or system owner or operator, by certified United
States 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 Village 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 Village Board. If the franchisee
or other service provider or system owner or operator fails to appeal
the Village's assessment or imposition of fines and/or penalties within
the time required by this section, the Village's decision to assess
fines and/or penalties shall be final.
N.
The Village Board shall, at the date, time and place
designated for the hearing, hear and consider issues from the Village
and the service provider or system owner or operator and make a determination
regarding the alleged violation of this chapter or any franchise.
(1)
The Village 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 Village the right to be heard and present evidence,
the Village Board shall determine whether or not there was committed
a violation of this chapter 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 Village 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 Village's
transcript if it shares the costs equally with the Village.
(4)
Within 30 days following the completion and close
of the hearing, the Village Board shall issue a written decision as
regards the commission of a violation of this chapter, 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 Village Board's written
decision shall be provided to the service provider or system owner
or operator.
(5)
Should the Village 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 Village Board, the proceedings shall be terminated and no penalty shall be imposed.
(6)
The Village Board shall be required to base its decision
on a preponderance of the evidence from the record established during
the Village Board's hearing. If the Village Board determines that
any violation of this chapter, 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 chapter,
the Village Board may affirm the assessment and imposition of fines,
penalties or sanctions as permitted under this chapter or state law.
The Village Board's decision to affirm the Village'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 chapter.
A.
The Village is hereby granted the authority to implement
procedures for the filing and resolution of complaints.
B.
The Village Board of Trustees shall have 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 Village or any subscriber or user, in accordance with the best
interests of the public and the Village; provided, however, that any
person aggrieved by a decision of the Board of Trustees may appeal
the matter for a hearing and determination in accordance with this
chapter.
[Amended 7-28-2009 by L.L. No. 4-2009]
C.
The Village Board of Trustees reserves the right,
at all times, on behalf of the Village or a subscriber or user, to
accept, reject or change any decision of the Board of Trustees and
may adjust, settle or impose a compromise regarding any controversy
arising from the operation by the service provider or system owner
or operator that is subject to this chapter, in whole or in part,
or from any provision of this chapter.
[Amended 7-28-2009 by L.L. No. 4-2009]
This chapter 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 chapter 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.
This chapter shall apply within the geographical
limits of the Village, including any areas subsequently annexed by
the Village, unless state law prescribes otherwise, or unless state
law in some fashion restricts or alters the effect of this chapter
to a subsequently annexed area of the Village.
