[Added 4-8-2002 by L.L. No. 1-2002]
General provisions are as follows.
The purpose and intent of this article is to:
A. Establish a local policy concerning telecommunications
providers and services;
B. Establish clear local guidelines, standards and time
frames for the exercise of local authority with respect to the regulation
of telecommunications providers and services;
C. Promote competition in telecommunications;
D. Minimize unnecessary local regulation of telecommunications
providers and services;
E. Encourage the provision of advanced and competitive
telecommunications services on the widest possible basis to the businesses,
institutions and residents of the Village;
F. Permit and manage reasonable access to the public
ways of the Village for telecommunications purposes on a competitively
neutral basis;
G. Conserve the limited physical capacity of the public
ways held in public trust by the Village;
H. Assure that the Village's current and ongoing costs
of granting and regulating private access to and use of the public
ways are fully paid by the persons seeking such access and causing
such costs;
I. Secure fair and reasonable compensation to the Village
and the residents of the Village for permitting private use of the
public ways;
J. Assure that all telecommunications carriers providing
facilities or services within the Village comply with the laws, rules
and regulations of the Village;
K. Assure that the Village can continue to fairly and
responsibly protect the public health, safety and welfare;
L. Enable the Village to discharge its public trust consistent
with rapidly evolving federal and state regulatory policies, industry
competition and technological development.
For the purpose of this article, and the interpretation
and enforcement thereof, the following words and phrases shall have
the following meanings, unless the context of the sentence in which
they are used shall indicate otherwise:
AFFILIATE
A person that (directly or indirectly) owns or controls,
is owned or controlled by, or is under common ownership or control
with another person.
CABLE ACT
The Cable Communications Policy Act of 1984, 47 U.S.C. § 532
et seq., as now and hereafter amended, and the Telecommunications
Act of 1996.
CABLE OPERATOR
A telecommunications carrier providing or offering to provide
cable service within the Village as that term is defined in the Cable
Act.
CABLE SERVICE
Shall have the same meaning provided by the Cable Act.
CORPORATE AUTHORITIES
The Mayor and Board of Trustees of the Village. Notwithstanding
the foregoing, the Village may, where permitted by law, delegate to
another person or entity, including an entity established by the Village
in cooperation with one or more other municipalities, some or all
of the authority vested in the Village as to one or more subjects
which are encompassed by this article.
EXCESS CAPACITY
The volume or capacity in any existing or future duct, conduit,
manhole, handhole or other utility facility within the public way
that is or will be available for use for additional telecommunications
facilities.
FCC OR FEDERAL COMMUNICATIONS COMMISSION
The federal administrative agency, or lawful successor, authorized
to regulate and oversee telecommunications carriers, services and
providers on a national level.
OTHER WAYS
The highways, streets, alleys, utility easements or other
rights-of-way within the Village, but under the jurisdiction and control
of a governmental entity other than the Village.
OVERHEAD FACILITIES
Utility poles, utility facilities and telecommunications
facilities located above the surface of the ground, including the
underground supports and foundations for such facilities.
PERSON
Includes corporations, companies, associations, joint-stock
companies or associations, firms, partnerships, limited-liability
companies and individuals and includes their lessors, trustees and
receivers.
PSC OR PUBLIC SERVICE COMMISSION
The New York State Public Service Commission, or any lawful
successor state administrative agency authorized to regulate and oversee
telecommunications carriers, services and providers in the State of
New York.
PUBLIC STREET
Any highway, street, alley or other public right-of-way for
motor vehicle travel under the jurisdiction and control of the Village
which has been acquired, established, dedicated or devoted to highway
purposes not inconsistent with telecommunications facilities.
PUBLIC WAY
Includes all public streets and utility easements, as those
terms are defined herein, now or hereafter owned by the Village, but
only to the extent of the Village's right, title, interest or authority
to grant a license or franchise to occupy and use such streets and
easements for telecommunications facilities.
STATE
The State of New York.
SURPLUS SPACE
That portion of the usable space on a utility pole which
has the necessary clearance from other pole users, as required by
the orders and regulations of the New York Public Service Commission,
to allow its use by a telecommunications carrier for a pole attachment.
TELECOMMUNICATIONS CARRIER
Includes every person that directly or indirectly owns, controls,
operates or manages plant, equipment or property within the Village,
used or to be used for the purpose of offering telecommunications
service.
TELECOMMUNICATIONS FACILITIES
The plant, equipment and property, including, but not limited
to, cables, wires, conduits, ducts, pedestals, antennas, electronics
and other appurtenances used or to be used to transmit, receive, distribute,
provide or offer telecommunications services.
TELECOMMUNICATIONS PROVIDER
Includes every person who provides telecommunications service
over telecommunications facilities without any ownership or management
control of the facilities.
TELECOMMUNICATIONS SERVICE
The providing or offering for rent, sale or lease, or in
exchange for other value received, of the transmittal of voice, data,
image, graphic and video programming information between or among
points by wire, cable, fiber optics, laser, microwave, radio, satellite
or similar facilities, with or without benefit of any closed transmission
medium.
UNDERGROUND FACILITIES
Utility and telecommunications facilities located under the
surface of the ground, excluding the underground foundations or supports
for overhead facilities.
USABLE SPACE
The total distance between the top of a utility pole and
the lowest possible attachment point that provides the minimum allowable
vertical clearance as specified in the orders, rules and regulations
of the New York Public Service Commission.
UTILITY EASEMENT
Any easement owned by the Village and acquired, established,
dedicated or devoted for public utility purposes not inconsistent
with telecommunications facilities.
UTILITY FACILITIES
The plant, equipment and property, including but not limited
to the poles, pipes, mains, conduits, ducts, cables, wires, plant
and equipment located under, on or above the surface of the ground
within the public ways of the Village and used or to be used for the
purpose of providing utility or telecommunications services.
VILLAGE
The Village of Lake Success.
VILLAGE PROPERTY
Includes all real property owned by the Village, other than
public streets and utility easements as those terms are defined herein,
and all property held in a proprietary capacity by the Village, which
is not subject to right-of-way licensing and franchising as provided
in this article.
Except as otherwise provided herein, all telecommunications carriers and providers engaged in the business of transmitting, supplying or furnishing telecommunications services originating or terminating in the Village shall register with the Village pursuant to §§
105-262 through
105-265 of this article. This requirement for registration shall not apply with respect to any activities which, by reason of applicable federal or state law, are not subject to regulation by the Village or are not subject to the jurisdiction of the Village.
Except as otherwise provided herein, no telecommunications carrier shall construct, install, operate, maintain, or otherwise locate telecommunications facilities in, under, over or across any public way of the Village for the purpose of providing telecommunications service solely to persons and areas outside the Village, without first obtaining a license from the Village pursuant to §§
105-266 through
105-278 of this article. This section shall not be applicable to such activities of any telecommunications carrier for which, by reason of applicable federal or state law, no license is required from the Village.
Except as otherwise provided herein, any telecommunications carriers who desire to construct, install, operate, maintain or otherwise locate telecommunications facilities in, under, over or across any public way of the Village, and to also provide telecommunications service to persons or areas in the Village, shall first obtain a franchise granting the use of such public ways from the Village pursuant to §§
105-279 through
105-293 of this article. This section shall not be applicable to the activities of any telecommunications carrier for which, by reason of applicable federal or state law, no franchise is required from the Village.
Except as otherwise provided herein, any telecommunications carrier who desires to construct, install, operate, maintain or locate telecommunications facilities in any public way of the Village for the purpose of providing cable television service to persons in the Village shall first obtain a cable franchise from the Village as provided in §§
105-294 through
105-300 of this article.
This article shall not be applicable to any
telecommunications service for which a franchise or license from the
Village is in effect at the effective date of this article, until:
A. The expiration of said franchise agreement; or
B. An amendment to an unexpired franchise agreement,
unless both parties agree to defer full compliance to a specific date
not later than the present expiration date.
Any person found guilty of violating, disobeying,
omitting, neglecting or refusing to comply with any of the provisions
of this article shall be fined not less than $100 nor more than $250
for each offense. A separate and distinct offense shall be deemed
committed each day on which a violation occurs or continues.
Nothing in this article shall be construed as
limiting any other remedies that the Village may have, at law or in
equity, for enforcement of this article.
Registration of telecommunications carriers
and providers shall be as follows:
Each telecommunications carriers and provider
which offers or provides any telecommunications service for a fee
directly to the public, either within the Village, or outside the
corporate limits from telecommunications facilities within the Village,
shall register with the Village on forms to be provided by the Village
Clerk, which shall include the following:
A. The identity and legal status of the registrant, including
any affiliates.
B. The name, address and telephone number of the officer,
agent or employee responsible for the accuracy of the registration
statement.
C. A description of registrant's existing or proposed
telecommunications facilities within the Village.
D. A description of the telecommunications service that
the registrant intends to offer or provide, or is currently offering
or providing, to persons, firms, businesses or institutions within
the Village.
E. Information sufficient to determine whether the registrant
is subject to public way licensing or franchising under this article.
F. Information sufficient to determine whether the transmission,
origination or receipt of the telecommunications services provided
or to be provided by the registrant constitutes an occupation or privilege
subject to any municipal telecommunications tax, utility receipts
tax or other occupation tax imposed by the Village.
G. Information sufficient to determine that the applicant
has applied for and received any certificate of authority required
by the New York State Public Service Commission to provide telecommunications
services or facilities within the Village.
H. Information sufficient to determine that the applicant
has applied for and received any construction permit, operating license
or other approvals required by the Federal Communications Commission
to provide telecommunications services or facilities within the Village.
I. Such other information as the Village Clerk may reasonably
require.
Each application for registration as a telecommunications
carrier or provider shall be accompanied by a fee in an amount established
from time to time by resolution of the Board of Trustees.
The purpose of registration under this §§
105-262 through
105-265 is to:
A. Provide the Village with accurate and current information
concerning the telecommunications carriers and providers who offer
or provide telecommunications services within the Village, or that
own or operate telecommunication facilities within the Village;
B. Assist the Village in enforcement of this article;
C. Assist the Village in the collection and enforcement
of any municipal taxes, franchise fees, license fees or charges that
may be due the Village;
D. Assist the Village in monitoring compliance with local,
state and federal laws.
Telecommunications licensing provisions are
as follows.
A telecommunications license shall be required
of any telecommunications carrier who desires to occupy specific public
ways of the Village for the sole purpose of providing telecommunications
services to persons or areas outside the Village.
An application for a telecommunications license
shall include the following information:
A. The identity of the license applicant, including all
affiliates of the applicant.
B. A description of the telecommunications services that
are or will be offered or provided by licensee over its telecommunications
facilities.
C. A description of the transmission medium that will
be used by the licensee to offer or provide such telecommunications
services.
D. Preliminary engineering plans, specifications and
a network map of the facilities to be located within the Village,
all in sufficient detail to identify:
(1)
The location and route requested for applicant's
proposed telecommunications facilities.
(2)
The location of all overhead and underground
public utility, telecommunications, cable, water, sewer drainage and
other facilities in the public way along the proposed route.
(3)
The location(s), if any, for interconnection
with the telecommunications facilities of other telecommunications
carriers.
(4)
The specific trees, structures, improvements,
facilities and obstructions, if any, that applicant proposes to temporarily
or permanently remove or relocate.
E. If applicant is proposing to install overhead facilities,
evidence that surplus space is available for locating its telecommunications
facilities on existing utility poles along the proposed route.
F. If applicant is proposing an underground installation
in existing ducts or conduits within the public ways, information
in sufficient detail to identify:
(1)
The excess capacity currently available in such
ducts or conduits before installation of applicant's telecommunications
facilities;
(2)
The excess capacity, if any, that will exist
in such ducts or conduits after installation of applicant's telecommunications
facilities.
G. If applicant is proposing an underground installation
within new ducts or conduits to be constructed within the public ways:
(1)
The location proposed for the new ducts or conduits;
(2)
The excess capacity that will exist in such
ducts or conduits after installation of applicant's telecommunications
facilities.
H. A preliminary construction schedule and completion
date.
I. A preliminary traffic control plan.
J. Financial statements prepared in accordance with generally
accepted accounting principles demonstrating the applicant's financial
ability to construct, operate, maintain, relocate and remove the facilities.
K. Information in sufficient detail to establish the
applicant's technical qualifications, experience and expertise regarding
the telecommunications facilities and services described in the application.
L. Information to establish that the applicant has obtained
all other governmental approvals and permits to construct and operate
the facilities and to offer or provide the telecommunications services.
M. Payment of all fees, deposits or charges required pursuant to §§
105-301 through
105-308 of this article.
N. Such other and further information as may be required
by the Village.
Within a reasonable time after receiving a complete
application for a telecommunications license, the corporate authorities
shall issue a written determination granting or denying the application
in whole or in part, applying the following standards, and, if the
application is denied, the written determination shall include the
reasons for denial.
A. The financial and technical ability of the applicant.
B. The legal capacity of the applicant.
C. The capacity of the public ways to accommodate the
applicant's proposed facilities.
D. The capacity of the public ways to accommodate additional
utility and telecommunications facilities if the license is granted.
E. The damage or disruption, if any, of public or private
facilities, improvements, service, travel or landscaping if the license
is granted.
F. The public interest in minimizing the cost and disruption
of construction within the public ways.
G. The service that applicant will provide to the community
and region.
H. The effect, if any, on public health, safety and welfare
if the license is granted.
I. The availability of alternate routes and/or locations
for the proposed facilities.
J. Applicable federal and state telecommunications laws,
regulations and policies.
K. Such other factors as may demonstrate that the grant
to use the public ways will serve the community interest.
No license granted hereunder shall be effective
until the applicant and the Village have executed a written agreement
setting forth the particular terms and provisions under which the
license to occupy and use public ways of the Village will be exercised.
No license granted hereunder shall confer any
exclusive right, privilege, license or franchise to occupy or use
the public ways of the Village for delivery of telecommunications
services or any other purposes.
No license granted under this article shall
convey any right, title or interest in the public ways, but it shall
be deemed a license only to use and occupy the public ways for the
limited purposes and term stated in the grant. Further, no license
shall be construed as any warranty of title.
All licensees are required to obtain construction permits for telecommunications facilities as required in §
105-309 of this article; provided, however, that nothing in this section shall prohibit the Village and a licensee from agreeing to alternative plan review, permit and construction procedures in a license agreement, provided such alternative procedures provide substantially equivalent safeguards for responsible construction practices.
Each telecommunications license shall be subject
to the Village's right, which is expressly reserved, to annually fix
a fair and reasonable compensation to be paid for the property rights
granted to the licensee; provided nothing in this section shall prohibit
the Village and a licensee from agreeing to the compensation to be
paid.
An amendment to an existing telecommunications
license shall be required before any telecommunications carrier may
extend or locate its telecommunications facilities in public ways
of the Village which are not included in a license previously granted
under this article.
An application for renewal of a telecommunications
license shall be filed not more than 180 days nor less than 90 days
before expiration of the current license, and shall include the following
information:
A. The information required pursuant to §
105-268.
B. Any additional information required pursuant to the
existing license agreement between the Village and the grantee.
Within a reasonable time after receiving a complete
application for renewal of a telecommunications license, the corporate
authorities shall issue a written determination granting or denying
the renewal application in whole or in part, applying the following
standards and, if the renewal application is denied, the written determination
shall include the reasons for nonrenewal.
A. The financial and technical ability of the applicant.
B. The legal capacity of the applicant.
C. The continuing capacity of the public ways to accommodate
the applicant's existing facilities.
D. The applicant's compliance with the requirements of
this article and the license agreement.
E. Applicable federal, state and local telecommunications
laws, rules and policies.
F. Such other factors as may demonstrate that the continued
grant to use the public ways will serve the community interest.
No telecommunications license shall be renewed
until any existing violations or defaults in the licensee's performance
of the license agreement, or of the requirements of this article,
have been cured, or a plan detailing the corrective action to be taken
by the grantee has been approved by the Village.
Telecommunications franchising provisions are
as follows.
A telecommunications franchise shall be required
of any telecommunications carrier who desires to occupy public ways
of the Village and to provide telecommunications services to any person
or area in the Village.
Any person who desires a telecommunications franchise pursuant to §§
105-279 through
105-293 shall file an application with the Village, which shall include the following information:
A. The identity of the franchise applicant, including
all affiliates of the applicant.
B. A description of the telecommunications services that
are or will be offered or provided by the franchise applicant over
its existing or proposed facilities.
C. A description of the transmission medium that will
be used by the franchisee to offer or provide such telecommunications
services.
D. Preliminary engineering plans, specifications and
a network map of the facilities to be located within the Village,
all in sufficient detail to identify:
(1)
The location and route requested for applicant's
proposed telecommunications facilities.
(2)
The location of all overhead and underground
public utility, telecommunications, cable, water, sewer drainage and
other facilities in the public way along the proposed route.
(3)
The location(s), if any, for interconnection
with the telecommunications facilities of other telecommunications
carriers.
(4)
The specific trees, structures, improvements,
facilities and obstructions, if any, that applicant proposes to temporarily
or permanently remove or relocate.
E. If applicant is proposing to install overhead facilities,
evidence that surplus space is available for locating its telecommunications
facilities on existing utility poles along the proposed route.
F. If applicant is proposing an underground installation
in existing ducts or conduits within the public ways, information
in sufficient detail to identify:
(1)
The excess capacity currently available in such
ducts or conduits before installation of applicant's telecommunications
facilities;
(2)
The excess capacity, if any, that will exist
in such ducts or conduits after installation of applicant's telecommunications
facilities.
G. If applicant is proposing an underground installation
within new ducts or conduits to be constructed within the public ways:
(1)
The location proposed for the new ducts or conduits;
(2)
The excess capacity that will exist in such
ducts or conduits after installation of applicant's telecommunications
facilities.
H. A preliminary construction schedule and completion
dates.
I. A preliminary traffic control plan.
J. Financial statements prepared in accordance with generally
accepted accounting principles demonstrating the applicant's financial
ability to construct, operate, maintain, relocate and remove the facilities.
K. Information in sufficient detail to establish the
applicant's technical qualifications, experience and expertise regarding
the telecommunications facilities and services described in the application.
L. Information to establish that the applicant has obtained
all other governmental approvals and permits to construct and operate
the facilities and to offer or provide the telecommunications services.
M. Whether the applicant intends to provide cable service,
video dialtone service or other video programming service, and sufficient
information to determine whether such service is subject to cable
franchising.
N. An accurate map showing the location of any existing
telecommunications facilities in the Village that applicant intends
to use or lease.
O. A description of the services or facilities that the
applicant will offer or make available to the Village and other public,
educational and governmental institutions.
P. A description of applicant's access and line extension
policies.
Q. The area or areas of the Village the applicant desires
to serve and a schedule for build-out to the entire franchise area.
R. Payment of all fees, deposits or charges required pursuant to §§
105-301 through
105-308 of this article.
S. Such other and further information as may be requested
by the Village.
Within a reasonable period of time after receiving
a complete application for a telecommunications franchise, the corporate
authorities shall issue a written determination granting or denying
the application in whole or in part, applying the following standards,
and, if the application is denied, the written determination shall
include the reasons for denial:
A. The financial and technical ability of the applicant.
B. The legal capacity of the applicant.
C. The capacity of the public ways to accommodate the
applicant's proposed facilities.
D. The capacity of the public ways to accommodate additional
utility and telecommunications facilities if the franchise is granted.
E. The damage or disruption, if any, of public or private
facilities, improvements, service, travel or landscaping if the franchise
is granted.
F. The public interest in minimizing the cost and disruption
of construction within the public ways.
G. The service that applicant will provide to the community
and region.
H. The effect, if any, on public health, safety and welfare
if the franchise requested is granted.
I. The availability of alternate routes and/or locations
for the proposed facilities.
J. Applicable federal and state telecommunications laws,
regulations and policies.
K. Such other factors as may demonstrate that the grant
to use the public ways will serve the community interest.
No telecommunications franchise shall be granted
unless the applicant and the Village have executed a written agreement
setting forth the particular terms and provisions under which the
franchise to occupy and use public ways of the Village will be exercised.
No telecommunications franchise shall confer
any exclusive right, privilege, license or franchise to occupy or
use the public ways of the Village for delivery of telecommunications
services or any other purposes.
No telecommunications franchise shall convey
any right, title or interest in the public ways. Any such franchise
shall be deemed a franchise only to use and occupy the public ways
for the limited purposes and term stated in the grant. Further, no
franchise shall be construed as any warranty of title.
All franchisees are required to obtain construction permits for telecommunications facilities as required in §
105-311 of this article; provided, however, that nothing shall prohibit the Village and a franchisee from agreeing to alternative plan review, permit and construction procedures in a franchise agreement, provided such alternative procedures provide substantially equivalent safeguards for responsible construction practices.
Each telecommunications franchise shall be subject
to the Village's right, which is expressly reserved, to annually fix
a fair and reasonable compensation to be paid for the property rights
granted to the franchisee; provided that nothing shall prohibit the
Village and a franchisee from agreeing to the compensation to be paid,
and further provided that the Village shall not fix an amount of compensation
which is contrary to the provision of any such franchise agreement.
A telecommunications franchisee shall make all
of its telecommunications services available to any customer within
its franchise area who shall request such service, without discrimination
as to the terms, conditions, rates or charges for grantee's services;
provided, however, that nothing in this section shall prohibit a franchisee
from making any reasonable classification among differently situated
customers.
A franchisee shall make its telecommunications
services available to the Village at its most favorable rate for similarly
situated users, unless otherwise provided in a license or franchise
agreement.
An amendment to a franchise shall be required
of any telecommunications carrier that desires to extend its franchise
territory or to locate its telecommunications facilities in public
ways of the Village which are not included in a franchise previously
granted under this article.
Unless otherwise provided by law, an application
for renewal of a telecommunications franchise shall be filed not more
than 240 days, nor less than 150 days, before expiration of the current
franchise, and shall include the following information:
A. The information required pursuant to §
105-281 of this article.
B. Any information required pursuant to the franchise
agreement between the Village and the grantee.
Within a reasonable time after receiving a complete
application for renewal of a telecommunications franchise, the corporate
authorities shall issue a written determination granting or denying
the renewal application in whole or in part, applying the following
standards, and, if the renewal application is denied, the written
determination shall include the reasons for nonrenewal.
A. The financial and technical ability of the applicant.
B. The legal capacity of the applicant.
C. The continuing capacity of the public ways to accommodate
the applicant's existing facilities.
D. The applicant's compliance with the requirements of
this article and the franchise agreement.
E. Applicable federal, state and local telecommunications
laws, rules and policies.
F. Such other factors as may demonstrate that the continued
grant to use the public ways will serve the community interest.
No telecommunications franchise shall be renewed
until any ongoing violations or defaults in the grantee's performance
of the franchise agreement, or of the requirements of this article,
have been cured, or a plan detailing the corrective action to be taken
by the grantee has been approved by the Village.
Cable franchising provisions are as follows:
In addition to the provisions outlined in §§
105-279 through
105-293 regarding franchise application, grant and authority, the approval of a cable franchise is also subject to the provisions and requirements outlined in §§
105-294 through
105-300.
A. Cable franchisees are subject to this article, the
Cable Act, and such other federal and state statutes, rules and regulations
as may be applicable.
B. If a conflict arises between the language in §§
105-294 through
105-300 and any other part of this article, the provisions of this §§
105-294 through
105-300 shall prevail.
The minimum capacity for a cable system shall
be 450 MHz with at least 77 downstream channels. Each cable franchise
agreement shall require the franchisee to provide the Village with
a written description of the cable system within the Village, including
technical characteristics, channel capacity, channel carriage, and
a strand map. The franchisee shall provide the Village with an updated
description upon request by the Village, or whenever substantial changes
in the system are made.
The franchisee shall, to the maximum extent
possible, assign as dial or station locations for local broadcast
television stations carried on the system numbers, accessible by either
a cable-ready television or a converter, which correspond to their
respective FCC-assigned television station call numbers.
The franchisee shall provide access channels
on the subscriber network for the exclusive use of designated institutions.
A. The number and use of said channels will be prescribed
in the franchise agreements, and such channels shall be available
on the lowest tier of basic service, without additional charge.
B. The franchisee shall make every reasonable effort
to assign PEG (public, educational, government) channels to the same
channels assigned to equivalent such channels by other providers within
the Village, and in contiguous municipalities in which the franchisee
also provides such channels.
To the extent applicable, renewal shall be governed
by the Cable Act.
Applications for franchises shall include proposals
for the provision of public, educational and governmental access to
the telecommunications system.
Fees and compensation provisions are as follows.
It is the purpose of §§
105-302 through
105-308 to provide for the payment and recovery of certain direct and indirect costs and expenses of the Village related to the enforcement and administration of this article.
A. Each applicant for a telecommunications license or franchise pursuant to §§
105-266 through
105-278 or §§
105-279 through
105-293 of this article, or an amendment or renewal thereof, shall pay an application review fee of Two Hundred Fifty Dollars or 1% of the estimated cost of construction of applicant's proposed or existing telecommunications facilities, whichever is greater. No application review fee shall be required of any applicant for a license or franchise pursuant to §§
105-294 through
105-300 of this article.
B. An applicant whose license or franchise application
is withdrawn or abandoned prior to approval or denial shall, within
60 days of such withdrawal or abandonment, be refunded its application
review fee, less a reasonable sum to be determined by the Village
as its expenses incurred for the application and review process prior
to the date of withdrawal or abandonment. Such expenses may include
all ascertainable costs and expenses incurred by the Village in connection
with the application.
In addition to any application fee required by this article, each person to whom a telecommunications license or franchise or cable franchise is granted pursuant to §§
105-266 through
105-278, §§
105-279 through
105-293 or §§
105-294 through
105-300 of this article shall, within 30 days after written demand therefor by the Village, reimburse the Village for all direct or indirect costs or expenses, including professional fees, but not including salaries or overhead for Village employees, incurred by the Village in connection with any application for a telecommunications license, franchise, or cable franchise, or a modification, amendment, renewal or transfer thereof. Where the Village's authority with respect to such application has been exercised in whole or in part by an entity to whom the Village has delegated such authority, the Village=s direct and indirect costs and expenses as provided in this section shall include the Village's share of such expenses incurred by such entity.
In addition to any fees or reimbursements provided for in this §§
105-302 through
105-308, the Village may annually fix a fair and reasonable compensation to be paid for the property rights granted to a telecommunications license or franchise or cable franchise grantee. Nothing in this section shall prohibit the Village and a grantee from agreeing to the compensation to be paid for the granted property rights. Where a franchise or license agreement contains provision for such compensation, no further compensation for public ways shall be required pursuant to this section.
If a right is granted, by lease, license, franchise or other manner, to use and occupy Village property for the installation of telecommunications facilities, the compensation to be paid shall be fixed by the Village, unless otherwise agreed upon in the license or franchise agreement, in addition to any other fee or reimbursement provided for in §§
105-302 through
105-308.
Whenever a permit is required for any construction
proposed by a telecommunications licensee or franchisee, or cable
television franchisee, pursuant to any other law, rule or regulation,
payment of any fee required for such permit shall be required, unless
otherwise agreed upon in the license or franchise agreement.
Unless otherwise agreed in a license or franchise
grant agreement, each license or franchise grantee shall pay an annual
license fee to the Village equal to 5% of the gross revenues received
by the licensee or franchisee pursuant to said license or franchise
fee. Such annual fee may be used by the Village for payment or reimbursement
of costs incurred in connection with reviewing, inspecting and supervising
the use and occupancy of the public ways in behalf of the public and
existing or future users, and the administration and supervision of
the exercise of the license or franchise or for any other purpose
permitted by law.
Conditions of the grant of a license or franchise
are as follows.
All facilities shall be constructed, installed,
located, used and operated in accordance with the terms and conditions
contained in a license or franchise agreement.
All license or franchise grantees are required
to obtain construction permits for telecommunications facilities.
However, nothing in this article shall prohibit the Village and a
grantee from agreeing to alternative plan review, permit and construction
procedures in a license or franchise agreement, provided such alternative
procedures provide substantially equivalent safeguards for responsible
construction practices.
No licensee or franchisee may locate or maintain
telecommunications facilities so as to unreasonably interfere with
the use of the public ways by the Village, by the general public or
by other persons authorized to use or be present in or upon the public
ways. All such facilities shall be moved by the franchisee or licensee,
temporarily or permanently, as determined by the Village Engineer,
at the sole cost and expense of the franchisee or licensee.
No franchisee or licensee, nor any person acting
on its behalf, shall take any action or permit any action to be done
which may impair or damage any Village property, public way of the
Village, other ways or other property located in, on or adjacent thereto.
Unless otherwise provided in a license or franchise
agreement, no franchisee or licensee, nor any person acting on his
grantee's behalf, shall commence any nonemergency work in or about
the public ways of the Village or other ways without 10 working days'
advance written notice to the Village.
In the event of an unexpected repair or emergency,
a franchisee or licensee may commence such repair and emergency response
work as required under the circumstances, provided notification is
given the Village as promptly as possible, before such repair or emergency
work or as soon thereafter as possible if advance notice is not practicable.
Each franchisee and licensee shall maintain
its facilities in good and safe condition and in a manner that complies
with all applicable federal, state and local requirements.
Within 30 days following written notice from
the Village, a license or franchise grantee shall, at its own expense,
temporarily or permanently, remove, relocate, change or alter the
position of any telecommunications facilities within the public ways,
at the franchisee or licensee=s sole cost and expense, whenever the
corporate authorities shall have determined that such removal, relocation,
change or alteration is reasonably necessary for:
A. The construction, repair, maintenance or installation
of any Village or other public improvement in or upon the public ways.
B. The operations of the Village or other governmental
entity in or upon the public ways.
No later than 30 days following written notice
from the Village, any franchisee, licensee, telecommunications carrier,
or other person that owns, controls or maintains any unauthorized
telecommunications system, facility or related appurtenances within
the public ways of the Village shall, at its own expense, remove such
facilities or appurtenances from the public ways of the Village. A
telecommunications system or facility is unauthorized and its facilities
subject to removal in the following circumstances:
A. Upon expiration or termination of the grantee's telecommunications
license or franchise.
B. Upon abandonment of a facility within the public ways
of the Village.
C. If the system or facility was constructed or installed
without the prior grant of a telecommunications license or franchise.
D. If the system or facility was constructed or installed
without the prior issuance of a required construction permit.
E. If the system or facility was constructed or installed
at a location not permitted by the grantee's telecommunications license
or franchise.
The Village retains the right and privilege
to cut or move any telecommunications facilities located within the
public ways of the Village, as the Village may determine to be necessary,
appropriate or useful in response to any public health or safety emergency.
Each registrant, franchisee, and licensee shall
provide the Village with an accurate map or maps certifying the location
of all telecommunications facilities within the public ways, and shall
provide updated maps annually.
Within 10 days of a written request from the
Village, each franchisee and licensee shall:
A. Furnish the Village with information sufficient to
demonstrate that the franchisee or licensee has complied with all
requirements of this article, and that all municipal sales, message
and/or telecommunications or other taxes due the Village in connection
with the telecommunications services and facilities provided by the
franchisee or licensee have been properly collected and paid.
B. Make all books, records, maps and other documents,
maintained by the franchisee or licensee with respect to its facilities
within the public ways, available for inspection by the Village at
reasonable times and intervals.
Unless otherwise provided in a license or franchise
agreement, each franchisee and licensee shall, as a condition of the
franchise or license, secure and maintain the following insurance
policies, and shall provide the Village with appropriate endorsements
demonstrating with respect to all liability insurance policies that
the Village and its elected and appointed officers, officials, agents
and employees are named as principal or additional insureds:
A. Comprehensive general liability insurance with limits
not less than:
(1)
Five million dollars for bodily injury or death
to each person;
(2)
Five million dollars for property damage resulting
from any one accident; and,
(3)
Five million dollars for all other types of
liability.
B. Automobile liability for owned, nonowned and hired
vehicles with a limit of $3,000,000 for each person and $3,000,000
for each accident.
C. Worker's compensation within statutory limits and
employer's liability insurance with limits of not less than $1,000,000.
D. Comprehensive form premises-operations, explosions
and collapse hazard, underground hazard and products completed hazard
with limits of not less than $3,000,000.
E. The liability insurance policies required by this
section shall be maintained by the grantee throughout the term of
the telecommunications license or franchise, and such other period
of time during which the grantee is operating without a franchise
or license hereunder, or is engaged in the removal of its telecommunications
facilities. Unless otherwise agreed by the Village, each such insurance
policy shall contain the following endorsement: "It is hereby understood
and agreed that this policy may not be canceled nor the intention
not to renew be stated until 30 days after receipt by the Village,
by registered or certified mail, of a written notice addressed to
the Village of such intent to cancel or not to renew."
F. In the event the Village receives notice of such cancellation
or intention not to renew, within 20 days after receipt of said notice,
and in no event later than 10 days prior to said cancellation, the
franchisee or licensee shall obtain and furnish to the Village documentation
of replacement insurance policies meeting the requirements of this
section.
Each licensee or franchisee shall, to the extent
permitted by law, defend, indemnify and hold the Village and its officers,
employees, agents and representatives harmless from and against any
and all damages, losses and expenses, including reasonable attorney's
fees and costs of suit or defense, arising out of, resulting from
or alleged to arise out of or result from the negligent, careless
or wrongful acts, omissions, failures to act or misconduct of the
grantee or its affiliates, officers, employees, agents, contractors
or subcontractors in the construction, operation, maintenance, repair
or removal of its telecommunications facilities, and in providing
or offering telecommunications services over the facilities or network,
whether such acts or omissions are authorized, allowed or prohibited
by this article or by a grant agreement made or entered into pursuant
to this article.
Where the license or franchise agreement provides
for a security fund to be used for payments of penalties, if any,
imposed for violation or breach of the conditions of any such agreement
or license, such fund shall serve as security for the full and complete
performance of the terms and conditions of the license or franchise
agreement, and the requirements of this article, including any costs,
expenses, damages or loss the Village pays or incurs because of any
failure attributable to the grantee to comply with the codes, ordinances,
rule, regulations or permits of the Village.
A. Before any sums are withdrawn from the security fund,
the Village shall give written notice to the grantee:
(1)
Describing the act, default or failure to be
remedied, or the damages, cost or expenses which the Village has incurred
by reason of grantee's act or default;
(2)
Providing a reasonable opportunity for grantee
to first remedy the existing or ongoing default or failure, if applicable;
(3)
Providing a reasonable opportunity for grantee
to pay any monies due the Village before the Village withdraws the
amount thereof from the security fund, if applicable;
(4)
Providing that the grantee will be given an
opportunity to review the act, default or failure described in the
notice.
B. The licensee or franchisee shall replenish the required
security fund within 14 days after written notice from the Village
that there is a deficiency in the amount of the fund.
Ownership or control of a telecommunications
system, license or franchise may not, directly or indirectly, be transferred,
assigned or disposed of by sale, lease, merger, consolidation or other
act of the grantee, by operation of law or otherwise, without the
prior consent of the Village, which consent shall not be unreasonably
withheld or delayed, as expressed by resolution, and then only on
such reasonable conditions as may be prescribed therein.
A. No grant shall be assigned or transferred in any manner
within 12 months after the initial grant of the license or franchise,
unless otherwise provided in a license or franchise agreement.
B. Absent extraordinary and unforeseeable circumstances,
no grant, system or integral part of a system shall be assigned or
transferred before construction of the telecommunications system has
been completed.
C. The franchisee or licensee, and the proposed assignee
or transferee of the franchise, license, system or facility, shall
provide and certify the following information to the Village not less
than 150 days prior to the proposed date of transfer:
(1)
Complete information setting forth the nature,
terms and condition of the proposed transfer or assignment;
(2)
All information required of a license or franchise applicant pursuant to §§
105-266 through
105-278, §§
105-279 through
105-293 or §§
105-294 through
105-300 of this article with respect to the proposed transferee or assignee;
(3)
Any other information reasonably required by
the Village.
D. No transfer shall be approved unless the assignee
or transferee has the legal, technical, financial and other requisite
qualifications to own, hold and operate the telecommunications system
pursuant to this article.
E. Unless otherwise provided in a license or franchise
agreement, the grantee shall reimburse the Village for all direct
and indirect fees, costs, and expenses reasonably incurred by the
Village in considering a request to transfer or assign a telecommunications
license or franchise.
F. Any transfer or assignment of a telecommunications
grant, system or integral part of a system without prior approval
of the Village under this section or pursuant to a license or franchise
agreement shall be void and is cause for revocation of the grant.
Any transactions which singularly or collectively result in a change of 10% or more of the ownership or working control of the grantee, of the ownership or working control of a telecommunications license or franchise, of the ownership or working control of affiliated entities having ownership or working control of the grantee or of a telecommunications system, or of control of the capacity or bandwidth of grantee's telecommunication system, facilities or substantial parts thereof, shall be considered an assignment or transfer requiring Village approval pursuant to §
105-325 hereof. Transactions between affiliated entities are not exempt from Village approval.
A license or franchise granted by the Village
to use or occupy public ways of the Village may be revoked for the
following reasons:
A. Construction or operation in the Village or in the
public ways of the Village without a license or franchise grant of
authorization.
B. Construction or operation at an unauthorized location.
C. Unauthorized substantial transfer of control of the
grantee.
D. Unauthorized assignment of a license or franchise.
E. Unauthorized sale, assignment or transfer of grantee's
franchise or license assets, or a substantial interest therein.
F. Misrepresentation or lack of candor by or on behalf
of a grantee in any application to the Village.
G. Abandonment of telecommunications facilities in the
public ways.
H. Failure to relocate or remove facilities as required
in this article.
I. Failure to pay taxes, compensation, fees or costs
when and as due the Village.
J. Insolvency or bankruptcy of the grantee.
K. Violation of material provisions of this article.
L. Violation of the material terms of a license or franchise
agreement.
Unless otherwise provided in the license or
franchise agreement, in the event that the Village believes that grounds
exist for revocation of a license or franchise, it shall give the
licensee or franchisee written notice of the apparent violation or
noncompliance, providing a short and concise statement of the nature
and general facts of the violation or noncompliance, and providing
the grantee a reasonable period of time, not exceeding 30 days, to
furnish evidence:
A. That corrective action has been, or is being, actively
and expeditiously pursued to remedy the violation or noncompliance.
B. That rebuts the alleged violation or noncompliance.
C. That it would be in the public interest to impose
some penalty or sanction less than revocation.
The Village Board of Trustees, or a person designated
by the Board of Trustees for such purpose, shall consider the apparent
violation or noncompliance in a public meeting, with respect to which
the corporate authorities shall provide the grantee with notice and
a reasonable opportunity to be heard concerning the matter.
If persuaded that the grantee has violated or
failed to comply with material provisions of this article, or of a
franchise or license agreement, the corporate authorities shall determine
whether to revoke the license or franchise, or to establish some lesser
sanction and cure, considering the nature, circumstances, extent and
gravity of the violation as reflected by one or more of the following
factors:
A. Whether the misconduct was egregious.
B. Whether substantial harm resulted.
C. Whether the violation was intentional.
D. Whether there is a history of prior violations of
the same or other requirements.
E. Whether there is a history of overall compliance.
F. Whether the violation was voluntarily disclosed, admitted
or cured.