[HISTORY: Adopted by the Board of Trustees
of the Village of Williamsville 11-4-1997 by Ord. No. 98-7. Amendments
noted where applicable.]
GENERAL REFERENCES
Other fees — See Ch. 155.
A.
This chapter is adopted pursuant to the provisions
of the Illinois Telecommunications Municipal Infrastructure Maintenance
Fee Act (35 ILCS 635/1 et seq.), Public Act 90-154 ("the Act").
B.
The fees imposed under this chapter will replace the
Village's existing municipal franchise fees with respect to telecommunications
retailers, which are currently paid by the telecommunications consumer,
with a different fee under the Act.
C.
This chapter is intended to create a uniform system
for the collection of fees associated with the privilege of using
Village rights-of-way and other public rights-of-way for telecommunications
activity within the municipal boundaries of the Village, including
the recovery of reasonable costs for regulating the use of all public
rights-of-way within its municipal boundaries for telecommunications
activity.
As used in this chapter, the following terms
shall have the following meanings:
The amount paid to a telecommunications retailer for the
act or privilege of originating or receiving telecommunications within
the Village, and for all services rendered in connection therewith,
valued in money whether paid in money or otherwise, including cash,
credits, services, and property of every kind or nature, and shall
be determined without any deduction on account of the cost of such
telecommunications, the cost of the materials used, labor or service
costs, or any other expense whatsoever. In case credit is extended,
the amount thereof shall be included only as and when paid. Gross
charges for private line service shall include charges imposed at
each channel point within the Village, charges for the channel mileage
between each channel point within the Village, and charges for that
portion of the interstate interoffice channel provided within the
Village. However, gross charges shall not include:
Any amounts added to a purchaser's bill because
of a charge made under:
The fee imposed by this section;
Additional charges added to a purchaser's bill under Section
9-221 or 9-222 of the Public Utilities Act (220 ILCS 5/9-221 and 5/9-222);
Amounts collected under 35 ILCS 636/5-1 et seq.;[1]
The tax imposed by the Telecommunications Excise Tax Act (35
ILCS 630/1 et seq.);
911 surcharges; or
The tax imposed by Section 4251 of the Internal Revenue Code.
Charges for a sent-collect telecommunication
received outside the Village;
Charges for leased time on equipment or charges
for the storage of data or information or subsequent retrieval or
the processing of data or information intended to change its form
or content. Such equipment includes, but is not limited to, the use
of calculators, computers, data processing equipment, tabulating equipment,
or accounting equipment and also includes the usage of computers under
a time-sharing agreement;
Charges for customer equipment, including such
equipment that is leased or rented by the customer from any source,
wherein such charges are desegregated and separately identified from
other charges;
Charges to business enterprises certified under
Section 9-222.1 of the Public Utilities Act (220 ILCS 5/9-222.1) to
the extent of such exemption and during the period of time specified
by the Village;
Charges for telecommunications and all services
and equipment provided in connection therewith between a parent corporation
and its wholly owned subsidiaries or between wholly owned subsidiaries,
and only to the extent that the charges between the parent corporation
and wholly owned subsidiaries or between wholly owned subsidiaries
represent expense allocation between the corporations and not the
generation of profit other than a regulatory required profit for the
corporation rendering such services;
Bad debts ("Bad debt" means any portion of a
debt that is related to a sale at retail for which gross charges are
not otherwise deductible or excludable that has become worthless or
uncollectible, as determined under applicable federal income tax standards;
if the portion of the debt deemed to be bad is subsequently paid,
the retailer shall report and pay the tax on that portion during the
reporting period in which the payment is made);
Charges paid by inserting coins in coin-operated
telecommunications devices; or
Charges for telecommunications and all services
and equipment provided to the Village.
Any municipal street, alley, water or public right-of-way
dedicated or commonly used for utility purposes, including utility
easements wherein the Village has acquired the right and authority
to locate or permit the location of utilities consistent with telecommunications
facilities. "Public right-of-way" shall not include any real or personal
Village property that is not specifically described in the previous
sentence and shall not include Village buildings and other structures
or improvements, regardless of whether they are situated in the public
right-of-way.
Includes any retailer having or maintaining within the State
of Illinois, directly or by a subsidiary, an office, distribution
facilities, transmission facilities, sales office, warehouse, or other
place of business, or any agent or other representative operating
within this state under the authority of the retailer or its subsidiary,
irrespective of whether such place of business or agent or other representative
is located here permanently or temporarily, or whether such retailer
or subsidiary is licensed to do business in this state.
The transmitting, supplying, or furnishing of telecommunications
and all services rendered in connection therewith for a consideration,
other than between a parent corporation and its wholly owned subsidiaries
or between wholly owned subsidiaries, when the gross charge made by
one such corporation to another such corporation is not greater than
the gross charge paid to the retailer for their use or consumption
and not for sale.
The location of telecommunications equipment from which telecommunications
services are originated or at which telecommunications services are
received. If this is not a defined location, as in the case of wireless
telecommunications, paging systems, maritime systems, air-to-ground
systems, and the like, "service address" shall mean the location of
the customer's primary use of the telecommunications equipment as
defined by the location in Illinois where bills are sent.
Includes, but is not limited to, messages or information
transmitted through use of local, toll, and wide-area telephone service,
channel services, telegraph services, teletypewriter service, computer
exchange services, private line services, specialized mobile radio
services, or any other transmission of messages or information by
electronic or similar means, between or among points by wire, cable,
fiber optics, laser, microwave, radio, satellite, or similar facilities.
Unless the context clearly requires otherwise, "telecommunications"
shall also include wireless telecommunications as hereinafter defined.
"Telecommunications" shall not include value-added services in which
computer processing applications are used to act on the form, content,
code, and protocol of the information for purposes other than transmission.
"Telecommunications" shall not include purchase of telecommunications
by a telecommunications service provider for use as a component part
of the service provided by him or her to the ultimate retail consumer
who originates or terminates the end-to-end communications. Retailer
access charges, right-of-access charges, charges for use of intercompany
facilities, and all telecommunications resold in the subsequent provision
and used as a component of, or integrated into, end-to-end telecommunications
service shall not be included in gross charges as sales for resale.
"Telecommunications" shall not include the provision of cable services
through a cable system as defined in the Cable Communications Act
of 1984 (47 U.S.C. § 521 and following) as now or hereafter
amended or cable or other programming services subject to an open
video system fee payable to the Village through an open video system
as defined in the Rules of the Federal Communications Commission (47
C.D.F. 76.1550 and following) as now or hereafter amended. Beginning
January 1, 2001, prepaid telephone calling arrangements shall not
be considered telecommunications subject to the tax imposed under
this chapter. For purposes of this section, "prepaid telephone calling
arrangements" means that term as defined in Section 2-27 of the Retailers'
Occupation Tax Act (35 ILCS 120/2-27).[2]
Any telecommunications retailer and any person that is not
a telecommunications retailer that installs, owns, operates or controls
equipment in the public right-of-way that is used or designed to be
used to transmit telecommunications in any form.
Includes every person engaged in the business of making sales
of telecommunications at retail as defined in this section. The Village
may, in its discretion, upon application, authorize the collection
of the fee hereby imposed by any retailer not maintaining a place
of business within this state, who, to the satisfaction of the Village,
furnishes adequate security to ensure collection and payment of the
fee. When so authorized, it shall be the duty of such retailer to
pay the fee upon all of the gross charges for telecommunications in
the same manner and subject to the same requirements as a retailer
maintaining a place of business within the Village.
Includes cellular mobile telephone services, personal wireless
services as defined in Section 704(c) of the Telecommunications Act
of 1996 (Public Law No. 104-104), 42 U.S.C. § 332(c)(7),
as now or hereafter amended, including all commercial mobile radio
services, and paging services.
A.
Every telecommunications provider as defined by this
chapter shall register with the Village within 30 days after the effective
date of this chapter or becoming a telecommunications provider, whichever
is later, on a form to be provided by the Village; provided, however,
that any telecommunications retailer that has filed a return pursuant
to Subsection A of § 276-3 of this chapter shall be deemed
to have registered in accordance with this section.[1]
B.
Every telecommunications provider who has registered
with the Village pursuant to Subsection A of this section has an affirmative
duty to submit an amended registration form or current return as required
by § 276-5A, as the case may be, to the Village within 30
days from the date of the occurrence of any changes in the information
provided by the telecommunications provider in the registration form
or most recent return on file with the Village.
A.
A Village telecommunications infrastructure maintenance
fee is hereby imposed upon all telecommunications retailers in the
amount of 0.75% of all gross charges charged by the telecommunications
retailer to service addresses within the Village for telecommunications
originating or received in the Village.
B.
Upon the effective date of the infrastructure maintenance
fee authorized in this chapter, the Village infrastructure maintenance
fee authorized hereunder shall be the only fee or compensation for
the use of all public rights-of-way within the Village by telecommunications
retailers. Imposition of the infrastructure maintenance fee provided
under this chapter does not, however, serve as a limitation on the
levying of any taxes or imposition of any fees otherwise authorized
by law.
A.
A telecommunications retailer shall charge to and
collect from each customer an additional charge in an amount equal
to the Village infrastructure maintenance fee attributable to that
customer's service address.
B.
Unless otherwise approved by the Village, the infrastructure
maintenance fee shall be remitted by the telecommunications retailer
to the Village not later than the last day of the month subsequent
to the month in which a bill is issued to the customer; provided,
however, that the telecommunications retailer may retain an amount
not to exceed 2% of the Village infrastructure maintenance fee collected
by it to reimburse itself for expenses incurred in accounting for
and remitting the fee.
C.
Remittance of the municipal infrastructure fee to
the Village shall be accompanied by a return, in a form to be prescribed
by the Village, which shall contain such information as the Village
may reasonably require.
D.
Any infrastructure maintenance fee required to be
collected pursuant to this chapter and any such infrastructure maintenance
fee collected by such telecommunications retailer shall constitute
a debt owed by the telecommunications retailer to the Village. The
charge imposed under Subsection A of this section by the telecommunications
retailer pursuant to this chapter shall constitute a debt of the purchaser
to the telecommunications retailer who provides such services until
paid and, if unpaid, is recoverable at law in the same manner as the
original charge for such services.
E.
If it shall appear that an amount of infrastructure
maintenance fee has been paid that was not due under the provisions
of this chapter, whether as a result of a mistake of fact or an error
of law, then such amount shall be credited against any infrastructure
maintenance fee due, or to become due, under this chapter, from the
telecommunications retailer who made the erroneous payment; provided,
however, that the Village may request, and telecommunications retailer
shall provide, written substantiation for such credit. However, no
claim for such credit may be made more than three years after the
date of the erroneous payment unless:
F.
Amounts paid under this chapter by telecommunications
retailers shall not be included in the tax base under any of the following
acts as described immediately below:
(1)
"Gross charges" for purposes of the Telecommunications
Excise Tax Act (35 ILCS 630/1 et seq.);
(2)
"Gross receipts" for purposes of the municipal utility
tax as prescribed in Section 8-11-2 of the Illinois Municipal Code
(65 ILCS 5/8-11-2);
(4)
"Gross revenue" for purposes of the tax on annual
gross revenue of public utilities prescribed in Section 2-202 of the
Public Utilities Act (220 ILCS 5/9-202).
G.
The Village shall have the right, in its discretion,
to audit the books and records of all telecommunications retailers
subject to this chapter to determine whether the telecommunications
retailer has properly accounted to the Village for the Village infrastructure
maintenance fee. Any underpayment of the amount of the Village infrastructure
maintenance fee due to the Village by the telecommunications retailer
shall be paid to the Village plus 5% of the total amount of the underpayment
determined in an audit, plus any costs incurred by the Village in
conducting the audit, in an amount not to exceed 5% of the total amount
of the underpayment determined in an audit. Said sum shall be paid
to the Village within 21 days after the date of issuance of an invoice
for same.
H.
The Village, or its designee, may promulgate such
further or additional regulations concerning the administration and
enforcement of this chapter, consistent with its provisions, as may
be required from time to time and shall notify all telecommunications
retailers that are registered pursuant to § 276-5 of this
chapter of such regulations.
Nothing in this chapter shall excuse any person
or entity from obligations imposed under any law, including but not
limited to:
A.
Generally applicable taxes; and
B.
Standards for construction on, over, under, or within,
use of or repair of the public rights-of-way, including standards
relating to freestanding towers and other structures upon the public
rights-of-way, as provided; and
C.
Any liability imposed for the failure to comply with
such generally applicable taxes or standards governing construction
on, over, under, or within, use of or repair of the public rights-of-way;
and
D.
Compliance with any ordinance or provision of this
Code concerning uses or structures not located on, over, or within
the right-of-way.
Any franchise, license, or similar agreements
between telecommunications retailers and the Village entered into
before the effective date of this chapter regarding the use of public
rights-of-way shall remain valid according to and for their stated
terms except for any fees, charges or other compensation to the extent
waived.
Any telecommunications provider who violates,
disobeys, omits, neglects or refuses to comply with any of the provisions
of this chapter shall be subject to a penalty in an amount not less
than $100 nor more than $750 and six months' imprisonment, or both.
Nothing in this chapter shall be construed as
limiting any additional or further remedies that the Village may have
for enforcement of this chapter.
A.
The Village hereby waives all fees, charges, and other
compensation that may accrue, after the effective date of the waiver,
to the Village by a telecommunications retailer pursuant to any existing
Village franchise, license, or similar agreement with a telecommunications
retailer during the time the Village imposes the telecommunications
infrastructure maintenance fee. This waiver shall only be effective
during the time the infrastructure maintenance fee provided for in
this chapter is subject to being lawfully imposed on the telecommunications
retailer and collected by the telecommunications retailer from the
customer.
B.
The Village Clerk shall send a notice of the waiver
by certified mail/return receipt requested to each telecommunications
retailer with whom the Village has a franchise.
C.
The Village infrastructure maintenance fee provided
for in this chapter shall become effective and imposed on the first
day of the month not less than 90 days after the Village provides
written notice by certified mail to each telecommunications retailer
with whom the Village has an existing franchise, license, or similar
agreement that the Village waives all compensation under such existing
franchise, license, or similar agreement during such time as the fee
is subject to being lawfully imposed and collected by the retailer
and remitted to the Village. The infrastructure maintenance fee shall
apply to gross charges billed on or after the effective date as established
in the preceding sentence.
