[HISTORY: Adopted by the Town Board of the
Town of Olive as indicated in article histories. Amendments noted
where applicable.]
[Adopted 9-7-1999 by L.L. No. 1-1999]
This article may be known and cited as the "Wireline
Telecommunications System Law (WTS Law) for the Town of Olive, New
York."
This article shall be construed in accordance
with applicable federal and state laws and rules governing wireline
telecommunications systems and broadband services, including, but
not limited to, those known as cable systems and cable operators who
provide cable service and open video systems. With respect to the
operation of cable systems, the provision of cable service and open
video systems, this article shall be construed in accordance with
any applicable rules and regulations of the Federal Communications
Commission and the Public Service Commission, or any successor agency
or authority.
This article shall apply within the geographical
limits of the town, including any areas subsequently annexed by the
town, unless state law prescribes otherwise, or unless state law in
some fashion restricts or alters the effect of this article to a subsequently
annexed area of the town.
For purposes of this article, and where not
otherwise inconsistent with the context of a particular section, the
defined terms, phrases, words, abbreviations and their derivations
shall have the meaning given in this section. When not inconsistent
with the context, words in the present tense include the future tense,
words used in the plural number include words in the singular number,
and words in the singular number include the plural number. The words
"shall" and "will" are always mandatory and not merely directive.
The cessation of use of a system and the provision of any
service by or using the system, or any portion of the system, or any
component, facility or equipment of the system or service in the town
for a period of time greater than 60 consecutive days.
The ability to deliver any type of service using the system,
or otherwise using the system to transmit and provide service.
A channel engineered for the provision of services generally
available to residential subscribers or users of service using the
system, regardless of whether such services are actually provided,
including any channel designated for video programming service or
multichannel video programming, including any channels used for public,
educational or governmental access.
The individual or organization designated by the Town Board
to act as the technical and administrative liaison or representative
of the town, the subscriber or users, and the public in the town,
in matters related to the provision of this article, and any franchise
as defined in this section. The Administrator may be designated as
the point of contact for all matters under this article and that relate
to a franchise or a system owner or operator or service provider.
If designated, unless specifically directed otherwise by the Town
Board, it shall at all times be presumed that the Administrator is
acting as the Town Board's designee and under the Board's direction.
When used in relation to any person, another person or entity
who owns or controls, is owned or controlled by, or is under common
ownership or control of such person.
A person or legal entity submitting an initial application
or proposal to the town for a franchise to operate a system or to
provide service under the terms and conditions set forth in this article
and in any franchise and in compliance with any state rules or regulations.
For the purposes of this article are synonymous and mean
the documents submitted, and on which the town is intended in good
faith to rely on, for the purpose of being granted a franchise by
the town. An application or proposal shall be deemed to include all
written representations and supporting documentation submitted by
an applicant to the town for the purpose of being granted the privilege
to occupy or use the town's property or rights-of-way for commercial
purposes as intended under this article.
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.
To be regarded as produced by or originating with the operation
of the system or the provision of service in the town.
Town Board for the Town of Olive, New York, which is the
legislative body for the Town of Olive, New York. For purposes of
clarification, the Town Board is the franchising authority for the
Town of Olive, New York.
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
Who otherwise controls or is responsible for,
through any arrangement, the management and operation of such a system.
Synonymous terms for the purpose of this article and mean
any change in the control of the system, system owner or operator,
or service provider, as "control" is defined in this section.
A band or group of frequencies in the electromagnetic or
light spectrum, including the radio frequency spectrum, using any
other means of wireline transmission, including, without limitation,
wires, cable, optical fibers, or any functional equivalent, which
has the ability to carry a video signal in the National Television
Systems Committee (NTSC) or functionally equivalent format, or in
any format devised or approved in the future by the Federal Communications
Commission (FCC), or an audio, voice or data signal. All video channels
shall include their vertical and horizontal blanking intervals and
all information contained therein, all other components of the video
signal, all aural components of the signal, including sub-carriers,
and all closed-captioning intended for reception by the hearing impaired
and others. Such shall be transmitted and provided to subscribers
or users on the system, unless the operator deletes them in accordance
with FCC, copyright and other applicable rules.
A charge or fee assessed on a user or subscriber for efforts
or attempts to collect a past due and/or delinquent account.
The same meaning in this article and any franchise or other
use, occupancy or operating authority as is defined and applied under
the United States Uniform Commercial Code (UCC).
Any verbal or written claim of dissatisfaction or problem
with a system or service, and which requests or requires corrective
action or remedy, and shall also include any necessary investigation
subsequent to a complaint, and any research and/or additional service
call or work activity.
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 article, 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 have been
completed;
Construction, reconstruction or upgrading of
all headends, hubs and nodes, as applicable, have been completed,
and all necessary processing equipment has been installed therein
and is functioning as required; and
Any and all other construction, reconstruction
or upgrading necessary for the system to deliver service to subscribers
or users have been completed, including in the case of a rebuild or
upgrade of the system, the replacement of drops to each and every
subscriber or user unit passed if such is either needed or proposed,
pursuant to the plans, specifications, representations and commitments
submitted to and approved or accepted by the town.
All required testing has been completed successfully
on each new or technologically upgraded portion of the system, and
shall demonstrate compliance with all applicable FCC and PSC technical
rules to the town's satisfaction, including, but not limited to, "proof-of-performance"
tests as may be appropriate or required, unless the town is expressly
prohibited by law or rule from requiring such demonstration. Services
provided to any segments of the system in the town will be activated
only when the required testing has been done and the system operates
as required, and never before.
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 town.
See definition for "subscriber or user."
Regulations intended to protect the subscriber or user in
relation to receiving that for which the subscriber or user is paying
for, including representations made by the service provider or system
owner or operator with respect to service, and that create expectations
on the part of the subscriber or the user and on which the subscriber
or user relies in good faith. "Consumer protection" also includes
the regulation of practices involving payments by the subscriber or
user, including, but not limited to, the intended use of such payments
as in the case of security deposits, and practices or policies regarding
disconnection and collection of moneys owed.
The person or entity holding legal or financial control of
or over the holder of the franchise or the service provider, regardless
of whether such control is direct or indirect, or is exercised or
is permitted to be exercised directly or indirectly through other
persons, holdings or entities. Control shall always be deemed to rest
in the hands of any person or entity that has the right or authority
to establish or change any policy or practice of the holder of the
franchise or the service provider, whether such control may be exercised
directly, or indirectly through other persons, holdings or entities.
A subscriber or user of any service and/or facility of the
system or service provider.
With respect to the provision of any service,
any visibly or audibly noticeable and objectionable degradation of
the signal or service, including the partial loss or degradation or
disruption of picture, sound, voice or data, regardless of the duration
of such degradation or disruption.
With respect to video programming services,
"diminution of signal" may be deemed as the presence of snow, lines,
bars, ghosting, static, electronic noise, audio external to the service
or any other objectionable and visually or audibly discernible disruption
or interference, or other manifestation not contained within the signal
received by the service provider or system owner or operator, or prior
to its introduction or entry into the system, which leads to or causes
the quality of signal received to be unusable, inconsistent, erratic,
objectionable or unreliable. As diminution of signals can occur even
when the system is in compliance with FCC's technical standards, the
subscriber or user shall be the primary determiner of whether a diminution
of signals is being experienced, so long as the manifestation is visually
or audibly discernible without magnification or amplification other
than eye glasses.
For the purposes intended under this article,
situations involving matters of a force majeure nature or cause shall
not be deemed a diminution of signal.
An imminent, impending or actual natural or humanly-induced
situation wherein the health, safety or welfare of the residents of
the town is threatened. By way of illustration, a disaster emergency
may include a severe climatic or meteorological storm, dam failure,
flood, tornado, hazardous waste infiltration, fire, petroleum or chemical
spill, explosion, vehicle accident of significant effect or aircraft
crash.
A change in the level of a subscriber's or user's service
from a more comprehensive and/or expensive level of service to a less
comprehensive and/or less expensive level of service.
Any compatible use easement, whether created by dedication
to the town or by other means, for public utility purposes or any
other purpose primarily benefiting the general public. "Easement"
shall also include a private easement granted by a private property
owner for the same or similar purposes.
Equipment 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 town, regardless
of the type of authorization, whether such authorization is a use,
occupancy or operating authority, that permits a person to occupy
and use the town's property and rights-of-way for commercial purposes
as intended under this article, including to construct, operate, rebuild,
replace, upgrade, maintain and repair the system, and to provide service
in the town. A franchise shall also include as an inseparable part
any application or proposal for a franchise, and any information contained
therein on which the town is intended to rely. The particular type
and scope of franchise, and any distinction between any type of franchises,
may be dependent upon the scope of authority the town has over a given
type of system owner or operator or provider of service.
The agreement or contract which the town and a system owner
or operator or a service provider enter into, and that specifies the
contractual agreements or commitments between the parties, and which
may also serve as a franchise granting the authority to own and operate
a system or provide service within all or a part of the town by using
or occupying the town's property or rights-of-way in accordance with
the town's franchising authority and any other authority, including
its police powers. Subject to applicable law, rule and regulation,
a franchise agreement may be different in scope and content from other
permissible types of grants of authority by the town.
Any system owner or operator or service provider that has
been granted a valid franchise by the town, and that is subject to
the town's regulatory authority as set forth in this article and applicable
state law, rules or regulation.
The date of the end of the term of the document that granted
authority to use and/or occupy the town's property or rights-of-way
for commercial purposes, including the operation of a system or the
provision of service.
A fee charged a service provider or system owner or operator
by the town for the cost of administering the franchise.
The Town Board of the Town of Olive, 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 town, and that
are attributable to or occasioned by the grant of the franchise, regardless
of the corporate or organizational relationship of the recipient of
the revenue with the owner or operator of system or the service provider.
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 town in the normal course of its business that, if booked,
are actually written off; provided that subsequent recovery of bad
debts previously deducted shall be included in gross revenue in the
next reporting/payment period; and
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 town that any such
excluded revenue is expressly exempted by the federal law, state law,
a final or unappealed federal or state judicial ruling by a court
of competent jurisdiction, or by specific FCC ruling. Including, but
not limited to, the preceding, gross revenues shall not include the
following:
Any tax of general applicability imposed upon
a franchisee or other service provider or an owner or operator of
a system, or upon subscribers or users of any service or system by
state or federal governmental agency and that is required to be collected
by the system owner or operator or the service provider and is remitted
to the taxing entity (including, but not limited to, property taxes,
user taxes, service taxes and communications taxes), provided such
taxes are identified as a separate line item on subscriber or user
bills or statements;
Any revenue received by a service provider or
an owner or operator of a system from any third party for revenue
not attributable, in whole or in part, to the operation of its system
or the provision of service in the town, and which does not use or
rely upon the use of the system or service; and
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 town, and
that is attributable to the grant of a franchise, or the operation
of a system or the provision of service both inside the town and outside
the town, the total or aggregate revenue received from such sources
shall be computed as follows:
Said revenues shall be multiplied by a fraction,
the numerator of which shall be the number of subscribers or users
in the town as of the last day of the required payment period and
the denominator of which shall be the number of subscribers or users
within all areas served by the franchisee or other service provider
or the owner or operator of a system as of the last day of the required
payment period. The result shall then be multiplied by the percentage
used to compute the required fee that is assessed as a percentage
of revenue. For purposes of example only, the following are types
and sources of revenue intended to be included in gross revenues in
such situations, regardless of the familial or organizational relationship
of the recipient of the revenue with the system owner or operator
or service provider:
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 article;
Rebates from programmers and vendors of any
kind for services that are attributable to the grant of authority
under this article;
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.
The electronic control center where incoming signals are
received, regardless of the form of reception or the type of signal,
and are amplified, modulated, filtered, converted or in any way processed
for distribution to subscriber or users.
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 town.
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.
A charge which is added to a subscriber's or user's account
or bill for late payment or nonpayment of a previously due and currently
delinquent amount. An administrative charge imposed because of a late
payment is deemed the same as a late charge.
The Wireline Telecommunications Law for the Town of Olive,
New York.
The channel capacity that a system owner or operator or service
provider, including a cable operator or open video system operator,
has designated for use by commercial users and that is not affiliated
with the system owner or operator or service provider, pursuant to
Section 612 (at 47 U.S.C. 532) of the Communications Act of 1934,
as amended.
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.
Programming produced locally by or for a service provider
or system owner or operator for carriage on the service provider's
or system owner's or operator's system.
The inability to receive the service subscribed to that is
caused by, attributable to, or occasioned by problems with the operation
of the system or the provision of service, and which is not caused
by the failure or malfunction of a subscriber's or user's equipment,
or by the misfeasance or malfeasance of the subscriber or user.
A service outage involving video programming
service shall mean the loss of voice, audio and/or video service,
regardless of the level, tier or increment of service so as to make
that service effectively unusable in the normal and usual sense of
being able to enjoy or otherwise use or view such.
More than one instance of a loss of service
from the same portion of the system or that affects the same address
or addresses within the town that occurs within a twenty-four-consecutive-hour
period shall be deemed a single, continuous loss of service.
That facility at which signals are received in light-wave
form and transmitted, retransmitted, relayed or otherwise provided
to other portions of the system in light-wave form or are converted
to RF signals or a functional equivalent type of signal and are transmitted,
retransmitted, relayed or otherwise provided to other portions of
the system in the town, or elsewhere outside the town.
Not granting a new franchise to an incumbent system owner
or operator or service provider to operate a system or provide service
within the town.
Those conditions which are reasonably within the control
of the system owner or operator or service provider with respect to
the operation, maintenance and repair of the system and the provision
of service within the town.
Those conditions which are not within the control
of the system owner or operator or service provider include labor
strikes, sabotage riots or civil disturbances of a disastrous nature
and effect, explosions, acts of public enemies, unusually severe or
catastrophic weather conditions, natural disasters as declared by
appropriate government officials, fires and widespread commercial
power failures that exceed the capabilities of the backup or standby
power supplies and capability of the system.
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.
The delivery of audio and/or video signals for a specific
one-time charge on a per-event, per-program or per-channel basis over
and above the rate for regular subscription service.
Public, educational and governmental.
Programming produced or aired by a governmental entity, a
member of the educational community or the public at large using the
channel(s) dedicated to or used for the provision of PEG programming.
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 town 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 article that is utilized
in the operation of the system or the provision of service in the
town.
A written request to use or occupy the town's property and
rights-of-way for the purpose of constructing, operating, maintaining
or repairing a system or to provide service in the town using the
public property and rights-of-way of the town.
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 town by a system owner or operator
or service provider for the occupation and use of the public property
and rights-of-way of the town for commercial purposes.
An official act by the Town Board that removes, repeals or
rescinds any franchise and authority to operate a system or provide
service in the town that is granted under or is subject to this article.
Any planned service interruption or diminution of signals
for which the town and subscribers or users are required to be, and
have been, notified in advance, and that does not exceed four hours
duration for any given address.
Any service that is provided by means of a system that is
not precluded or preempted from compliance with this article by federal
or state law, rule or regulation, and shall include any service, use
or other activity provided for commercial purposes that uses or is
provided by means of the use of the system, regardless of the technology
employed, and specifically including service employing broadband technology.
The loss of any service or incremental level of service,
or separately priced service such as any service offered on a per-channel,
per-event or per-showing basis, or any other services that are delivered
or provided by means of or that use a system or any components or
the system.
Any person who provides service using a system that occupies
or uses the town's property or rights-of-way using broadband technology
or otherwise providing service using a system as defined in this section
and who owns a significant or attributable interest in the provider
of such service or in the system; or who, through any arrangement,
otherwise controls or is responsible for the management and operation
of a service or system in the town, or who has the authority to establish
or change policy, or order the establishment or change of policy with
respect to the provision of service or the system within the town.
A category of service provided by a service provider for
which a separate rate is charged.
Any person or entity who directly or indirectly holds or
owns a five-percent interest or ownership position in a system, or
the holder of a franchise permitting the construction and operation
of a system or the provision of service in the town.
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 town-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,
or other easement now or hereafter held by the town, and includes
any sidewalks or other paved pedestrian ways and any public or town-owned
rights-of-way.
A person lawfully receiving service delivered by a system
owner or operator or a service provider.
The Supervisor of the Town of Olive, New York.
A violation of this article or any franchise that is of de
minimus negative effect on the town or the public and that is not
repeated after notice by the town. Notwithstanding the preceding,
a history or repeated pattern of the same or similar technical violations
shall not be deemed a technical violation.
A facility consisting of a set of closed transmission paths
and associated facilities and equipment that is designed to provide
service of a commercial nature, which includes the transmission of
video, voice and data, or any combination of such transmissions, and
voice-activated or electronic ordering capability or other uses or
services which are provided to subscribers or users within the town,
including the provision or use of data used to maintain and operate
the system. However, "telecommunications system" or "system" does
not include the following:
A facility that serves only to retransmit the
television signals of one or more broadcast stations;
A facility that serves only subscribers or users
in one or more multiple unit dwellings under common ownership, control
or management, unless such facility occupies or uses any town-owned
property or town rights-of-way for the provision of service or to
generate revenue for commercial purposes, in which case it shall be
deemed a system;
A facility of a common carrier which is subject
to the provisions of Title II of the Communications Act of 1934, as
amended, but only to the extent that such exemption relates to the
services provided at the time the operating authority was originally
granted, or that state or federal law, rule or regulation expressly
exempts from compliance with this article; or
Any facilities of any electric utility used
solely for operating its electric utility.
The Town of Olive, New York.
Any change in the ownership or legal or financial control
of the entity granted a franchise to any person or legal entity that
directly, or indirectly through another person or legal entity, has
financial or legal control over the holder of the franchise granted
by the town, and who may order the establishment or change of policy
as regards the operation of the system or the provision of service
within the town. For purposes of this article, a merger or consolidation
of any kind shall be deemed a transfer, unless the possessor of the
ultimate authority over the holder of the franchise will not change.
Any instance where the approval of the FCC or the PSC is required
to affect a change in ownership or control shall also be deemed a
transfer.
The new holder of a franchise or other use or operating authority
as approved by formal action of the Town Board.
United States Code.
A person utilizing a system and/or its equipment, facilities
or capabilities for purposes of advertising, program production and/or
the transmission of material, as contrasted with the receipt thereof
in the capacity of a subscriber.
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 video subscription service.
Any service that is transmitted through the air, whether
employing microwave, radio frequency or a functionally equivalent
technology. Programming from AM or FM radio broadcast stations shall
not be deemed wireless service.
A system or service that is provided through a wire, line,
cable, fiber or any functionally equivalent closed system. A franchise
for wireline service shall not automatically or inherently include
the authority to carry, transport or transmit wireless service. In
order for a wireline telecommunications franchise to carry, transport
or transmit wireless service, the franchise must expressly grant permission
to do so.
Those days when the majority of retail businesses in the
town 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 town.
A.
The Supervisor is hereby designated the individual
responsible for the continuing administration of this article and
matters related to the operation of wireline systems or providers
of service employing broadband technology in the town that use or
occupy the property of the town or the town's rights-of-way for such
purpose.
B.
Unless expressly prohibited by federal, state or local
law, the Town Board or the Supervisor may further delegate to a duly
authorized representative the right and authority to assist in the
administration of this article or a franchise that authorizes the
construction, operation and maintenance of a system or a service provider's
facilities.
C.
Unless expressly prohibited by federal, state or local
law, the Town Board is hereby authorized, at its sole discretion,
to create an appointed advisory Board, commission or committee whose
purpose shall be to handle issues concerning service and service providers
subject to this article. If such a Board, commission or committee
is created, then a separate resolution shall be adopted wherein the
precise powers and authorities of the Board, commission or committee
shall be outlined.
D.
Notwithstanding anything in this section, the Town
Board may never delegate its initial or renewal franchising, licensing
or permitting power, or power of revocation or termination of such,
or any right or authority it may have to impose or assess fines and/or
penalties under this article, to another person or representative,
advisory Board, commission or committee.
A.
Systems owners or operators and service providers
who use or occupy the town's property or rights-of-way and who are
not expressly exempted from compliance with this article by prior
state law are subject to and shall be governed by the requirements
and provisions of this article and any amendments thereto. Also subject
to certain requirements and provisions of this article and any amendments
thereto are service providers and owners or operators of systems not
otherwise subject to local franchising authority, but who are not
expressly exempted by applicable law, rule or regulation from compliance
with applicable local regulatory laws or ordinances, including, but
not limited to, those that govern the use and occupancy of the town's
property and rights-of-way.
B.
The authority of the town to regulate any precluded
or preempted service provider or system under certain portions of
this article shall not exempt such persons from the requirements of
this article involving the regulation of the construction, operation
and maintenance of the system or its facilities as such relate to
the protection of the health, safety and welfare of the public under
the construction, safety and safety-related requirements of this article.
C.
Any service provider or any system owner whose original grant of authority to use and occupy the town's property or rights-of-way for commercial purposes that did not expressly grant the right to provide service as defined in § 146-4 of this article shall be deemed subject to the provisions of this article, except to the extent that the provision of any service provided under the original grant of authority to use and occupy the town's property rights-of-way for commercial purposes, as expressly set forth therein, is exempted or grandfathered with respect to being used to determine payments or fees to the town as required and permitted under this article.
D.
In the event of any conflict or ambiguity between the requirements of this article and any amendments thereto, and any franchise subject to this article, or any amendments thereto, this article shall control, unless the requirement or provision is expressly preempted by federal or state law, rule or regulation, or unless the issue expressly addressed in the franchise in the context of relief from this article. Any relief or variance from the provisions of this article shall be granted in accordance with § 146-7 of this article, and such relief or variance shall be expressly set forth in any franchise agreement.
E.
This article shall not be deemed to, nor shall it
change, impair or repeal any franchise, agreement or contract granted
prior to the effective date of this article to the extent that such
expressly contains a lesser or less stringent obligation, requirement
or commitment, nor shall this article change the provisions of those
terms, conditions and commitments that are expressly enumerated in
the existing franchise agreement or contract as the expressly stated
intended purpose and use of the town's property or rights-of-way with
respect to the service provided.
F.
When a franchise agreement, contract or use and occupancy
authority granted prior to the effective date of this article is silent
on a matter addressed in this article, and absent express language
in the franchise agreement, contract to the contrary, or limiting
the town's right to adopt additional regulatory requirements of effect
on that system owner or operator or service provider, the applicable
provisions of this article shall apply.
G.
With respect to a service provider or system owner
or operator holding a franchise agreement, contract or use and occupancy
authority granted prior to the effective date of this article, this
article shall be in effect upon the expiration of the existing franchise
agreement, contract or use and occupancy authority, or when one of
the following occurs:
(1)
Prior to the expiration date of a franchise, and at
the request of the holder of such, the document is amended;
(2)
Both parties agree to a specific date for the expiration
date which is prior to the expiration date in existence on the date
of adoption of this article; or
(3)
A court of competent jurisdiction orders that an existing
service provider or system owner or operator become subject to all,
or any part or provision, of this article, or finds that a service
provider or system owner or operator is not exempt from all, or any
part or provision, of this article.
H.
Any service provider or system owner or operator shall
be required to comply with the safety requirements and provisions
of this article, unless the agreement, contract or use and occupancy
authority granted prior to the effective date of this article states
otherwise.
I.
Unless a franchise agreement, contract or use and
occupancy authority granted prior to the effective date of this article
states otherwise, all system owners or operators or service providers
shall abide by the construction and construction-related requirements
and provisions of this article when performing any construction, rebuild,
upgrade, repair, change or replacement of equipment or facilities.
J.
With respect to provisions classified as consumer
protection, such requirements and provisions shall be complied with
by any service provider and owner or operator of a system operating
in the town, unless:
K.
Unless the existing franchise contains either more
stringent requirements, or contains specific language precluding,
preempting or excluding the town's right to enforce the consumer protection
provisions of this article under the existing franchise, any service
provider or system owner or operator that is operating a system or
providing service as of the effective date of this article shall abide
by the consumer protection provisions of this article no later than
60 days after the effective date of this article.
L.
All other provisions contained within this article
shall be of full force and effect 30 days after the date of adoption
of this article, unless the applicability of a particular provision
is preempted by the force of a superseding federal or state law, rule
or regulation, in which case the exemption extends only to the express
extent of the federal or state preemption, unless the federal or state
law, rule or regulation grandfathers the authority of the town to
enforce such provisions, in which case the particular provision shall
be enforceable.
M.
Notwithstanding anything to the contrary in this section,
unless otherwise expressly grandfathered in an existing franchise
granted prior to the effective date of this article, in order to assure
the protection of the health and safety of the public, any and all
service providers or system owners or operators shall be subject to,
and shall be required to comply with, all safety regulations, requirements
and provisions of this article at all times, including:
(1)
The latest edition of the National Electrical Code,
including any amendments;
(2)
The latest edition of National Electrical Safety Code,
including any amendments; and
(3)
Any other applicable safety and safety-related codes
of the town, county or state as exist as of the effective date of
this article or may be adopted.
A.
Any service provider or system owner or operator subject
to the provisions of this article may file a written petition at any
time with the Town Board seeking relief from one or more provisions
of this article. A service provider or system owner or operator may
specifically request exemption or relief from, or delay in implementation,
of one or more provisions of this article, but only as to the petitioning
provider, owner or operator.
B.
In concert with the stated intent of the Telecommunications
Act of 1996 to promote and facilitate competition, and so as not to
hinder the development of competition, any service provider or system
owner or operator may request that a specific provision of this article
apply to such service provider or system owner or operator for a specified
or limited length of time or duration, pending a determination of
the effect of compliance on the system owner's or operator's, or service
provider's, ability to compete effectively at the expiration of the
period of time for which relief is granted. In the event that it is
determined by the Town Board that the system owner's or operator's,
or service provider's, ability to compete effectively is substantially
hindered by compliance, relief shall be granted for the remaining
term of the franchise.
C.
Any petition submitted pursuant to this section shall
set forth the relief requested and the reason and basis thereof, with
such supporting information and material as may be applicable and
as may be deemed necessary by the Town Board to enable an informed
decision.
D.
All requests for relief shall contain a clearly articulated
explanation or rationale for each item or matter being requested.
Any request submitted pursuant to this section that does not contain
such information shall be deemed incomplete and returned to the petitioner
without action.
E.
In order to be granted relief from one or more of
the provisions of this article, a service provider or system owner
or operator must demonstrate to the Town Board with reasonable certainty
that at least one of the following facts exist:
(1)
The provision and/or requirement is expressly prohibited
by federal law, the FCC, or state law, rule or regulation, including
any specific rule or regulation of the PSC;
(2)
Where applicable, that the provision in question negatively
and materially affects the petitioner to the extent that the provision
or requirement creates an insurmountable competitive disadvantage
not permitted or contemplated under federal or state law, or is in
substantial conflict with a right that is expressly stated in an existing
franchise, but such relief shall only be for the term of the existing
franchise. This provision specifically includes, but is not limited
to, situations where a service provider or system owner or operator
classified as a cable operator or open video system operator seeks,
and is granted, modification of an existing franchise under Section
625 of the Cable Act (codified at 47 USC 545);
(3)
That compliance with a particular provision and/or
requirement will be commercially impracticable for the system owner
or operator or service provider;
(4)
That one or more time requirements listed in this
article are either impracticable or impossible to meet;
(5)
That the service provider or system owner or operator
has its own policy which the Town Board deems comparable to, or better
than, the provision or requirement from which the service provider
or system owner or operator seeks relief; or
(6)
That the health, safety and welfare and the legitimate
and reasonable interests of the town and the public otherwise warrant
the granting of such relief and will not be adversely affected to
a significant extent.
F.
The Town Board shall be the determiner of whether
a request for relief has met one or more of the requirements of this
subsection.
G.
A service provider or system owner or operator may
petition the Town Board at any time for clarification concerning the
precise intent and effect that any provision or requirement of this
article has on the petitioning service provider or system owner or
operator.
H.
In those instances where the Town Board grants an
exemption or relief or deems a service provider's or system owner's
or operator's operational policy to be comparable to, or better than,
a provision of this article, then within 60 days of the grant of relief
the franchise shall be formally amended to reflect the exact extent
of such exemption and/or relief.
I.
It shall be the responsibility of the service provider
or system owner or operator to include with its request a proposed
resolution of amendment setting forth the intended effect in a clear
and unambiguous manner.
J.
The benefit of any exemption or relief extends only
to the service provider or system owner or operator granted such exemption
or relief. Consequently, in the case of a transfer, assignment, change
of control or sale of the system to a person without a record of performance
in the town, the proposed transferee, assignee, controlling entity
or buyer, if required by the Town Board, shall be required to petition
separately for the any relief or exemption. This shall mean that unlike
certain other amendments to a franchise, there shall be no automatic
transfer of any exemption or relief to a transferee. However, any
grant of comparable policy shall continue without the need for any
additional approval or grant by the Town Board.
K.
Any service provider or system owner or operator who
petitions for or requests relief or exemption from any portion of
this article whereby the primary beneficiary of the requested relief
or exemption will be the petitioner and not the public or the subscribers,
may, at the discretion of the Town Board, be required to reimburse
the town for the actual, verifiable cost of processing and analyzing
such request, since such cost is deemed an extraordinary cost to the
town that would not normally be incurred in the course of administering
a franchise. Such cost is thus not deemed a normal part of administering
a franchise.
L.
A requirement to reimburse the town pursuant to Subsection H of this section shall not apply to any request for relief or amendment of a franchise where the public or the subscribers will be the primary beneficiary, or where the granting of the request will eliminate an impermissible competitive disadvantage pursuant to Subsection B of this section.
It being a reasonable assumption that responsible
persons of good intent will comply with laws, and to prevent the town
from having to constantly monitor compliance with each and every aspect
of a service provider's or system owner's or operator's every action,
a service provider or system owner or operator shall not be excused
from complying with any of the requirements of this article, or any
subsequently adopted amendments to this article, by any failure of
the town on any one or more occasions to seek or insist upon prompt
compliance with such requirements or provisions.
A.
Any service provider or system owner or operator,
and its assignee or transferee, shall be deemed subject to and required
to abide by all applicable laws, ordinances and/or regulations now
or hereafter adopted and in effect within the town, including this
article, to the extent that the service provider or system owner or
operator has not been granted an exemption or relief from said law(s)
and/or resolution(s).
B.
Notwithstanding the preceding Subsection A of this section, in the event the Town Board amends this article and the amendment of the law would have the effect of either requiring the investment of substantial additional capital by the service provider or system owner or operator, or of unilaterally changing the process for default and/or revocation of a service provider's or system owner's or operator's franchise, or impairing the service provider's or system owner's or operator's franchise, then such amendment shall have no effect on the affected service provider or system owner or operator until the expiration of the franchise, subject to the provisions of § 146-6 of this article.
C.
Notwithstanding Subsection B of this section, unless otherwise stated in a franchise, all service providers or system owners or operators shall be required to comply with any amendments of this article that regulate matters of consumer protection, safety or construction or construction-related matters, within 180 days of the effective date of the amendment, unless otherwise stated in the amendment or the franchise.
Any prior resolution, ordinance or local law
which, in part or in whole, is directly inconsistent with this article,
is hereby deemed unenforceable to the extent of the inconsistency,
but only as regards service providers or system owners or operators
subject to this article.
In any case of an actual inconsistency between
any provision or section of this article and any provision or section
of a federal or state law, rule or regulation which expressly supersedes
or preempts local authority on the matter, but only to the extent
that it expressly does so, then the federal or state law, rule or
regulation shall supersede the effect of the applicable provision
of this article, and shall control in any local application, unless
such federal or state law, rule or regulation does not preempt, supersede
or make invalid the inconsistency.
A.
Where there is a conflict, whether actual or perceived, between this article and a franchise granted subsequent to the effective date of this article, this article shall control, unless judicially determined to be invalid or unenforceable by a court of competent jurisdiction, or unless the provisions of Subsection B of this section apply.
B.
Where a service provider or system owner or operator receives an exemption or relief from one or more provisions or sections of this article pursuant to § 146-7 of this article, or has one or more of its policies deemed comparable to or of more benefit to the town, the public or subscribers, than a provision contained in this article, the franchise shall expressly state such exemption, relief or comparable policy. To the extent that such an exemption, relief or comparable policy is both expressly contained in a franchise and is inconsistent with a provision contained in this article, then the exemption, relief or comparable policy language contained in the franchise shall control, but only to the extent expressly stated in the franchise.
C.
Notwithstanding Subsection B of this section, any grant of exemption or relief shall be limited to the owner and operator of the system or the service provider as of the date of the grant of exemption or relief. Such grant of exemption or relief shall not be deemed to be, nor shall it be, automatically transferred along with any transfer or change in ownership or change of control of a franchise or franchisee. Any exemption or relief bestowed on a transferee shall always require a separate and formal act of approval by Town Board.
A.
Violations of this article shall be handled in the
manner prescribed by applicable law.
B.
To the extent permitted by state and local law, the
Town Board reserves the authority to change the schedule of fines
and/or penalties for violations of this article as may from time to
time be deemed necessary, appropriate and permissible.
C.
In instances where fines and/or penalties as set forth
herein are applicable for a violation of this article, or for a breach
of a franchise, then such fines and/or penalties shall operate as
a separate and independent remedy for the town.
D.
A service provider or system owner or operator shall
not be subject to such fines and/or penalties in instances of force
majeure, or for a technical violation, or for a breach of a franchise
where such breach is of no or of de minimus effect on the town or
the public, as determined by the Town Board.
E.
A service provider or system owner or operator holding
a franchise agreement shall be subject to default and/or revocation
of such agreement for cause as set forth in this article.
Notwithstanding the provisions contained in § 146-60 of this article, a service provider or system owner or operator shall not be subject to penalties, fines, forfeitures, revocation or involuntary termination of a franchise for a technical violation of this article or a technical breach of a franchise. For purposes of this article, technical violations or breaches include the following:
A.
Instances or matters where a violation of this article
or, where applicable a franchise, was a good faith error that resulted
in no negative impact on the residents, subscriber or users within
the town, or on the town itself, or where such violation resulted
in de minimus effect on any of the preceding persons or the town;
or
B.
Instances or circumstances that are reasonably beyond
the control of a service provider or system owner or operator, including
force majeure situations, and that prevent a service provider or system
owner or operator from complying with this article or the franchise.
A.
Notwithstanding any other provisions of this article,
a service provider or system owner or operator shall not be held in
violation, material breach, default or noncompliance of this article
or a franchise, nor suffer any penalty related thereto, including,
where applicable, involuntary termination, cancellation or revocation
of a franchise, where such violation, breach, default or noncompliance
occurred, and/or was caused by a natural disaster such as an earthquake,
flood, tidal wave, hurricane or similar devastating act of nature,
or any other event that is reasonably beyond a service provider's
or system owner's or operator's ability to anticipate and control,
or that is of a devastating nature or effect on the system. Force
majeure situations shall also include strikes, riots, wars and armed
insurrections, as well as work delays caused by waiting for utility
providers to service or monitor their own utility poles on which a
service provider or system owner or operator's cable, wires, facilities
and/or equipment is attached, as such may be necessary for the service
provider or system owner or operator to comply with this article.
B.
Notwithstanding Subsection A of this section, as a matter of consumer protection, in the case of a force majeure situation a subscriber or user may be entitled to a refund or credit if the subscriber or user sustains a loss of service for a period of time that is in excess of that permitted under the provisions of this article.
A.
The town, and each service provider or system owner
or operator, shall provide the other party with the name and address
of the individual or entity designated to receive notices, filings,
reports, records, documents, orders and other correspondence. All
of the preceding shall be delivered to each party by U.S. certified
mail, return receipt requested, or by personal service with a signed
receipt of delivery, or by overnight delivery with receipt verification.
By mutual agreement, filings, reports, records, documents and other
correspondence may be delivered by any permissible means, including,
but not limited to, facsimile transmission, personal service or overnight
mail or package delivery, so long as proof of receipt or delivery
is obtained. The delivery of all notices, reports, records and other
correspondence shall be deemed to have occurred at the time of receipt,
unless otherwise mutually agreed to or as may be designated by state
law.
B.
If the service provider or system owner or operator
is required to obtain a franchise, then the designation of such contact
person for notice and notification purposes shall also be contained
within the franchise.
A.
To the extent permitted by federal and/or state law,
a service provider or system owner or operator shall at all times
be required to defend, indemnify, protect, save harmless and exempt
the town, the Town Board, the Supervisor, their officers, agents,
servants and employees from any and all penalties, damages or charges
arising out of claims, suits, demands, causes of action or award of
damages, whether compensatory or punitive, or expenses arising therefrom,
either at law or in equity, which might be claimed now or in the future,
which may arise out of, or be caused by, the construction, erection,
location, upgrade, system or service performance, operation, maintenance,
repair, installation, replacement, removal or restoration of the system
or service within the town by an act or omission of a service provider
or system owner or operator, its agents or employees, contractors,
subcontractors, independent contractors or implied or authorized representatives.
With respect to the penalties, damages or charges referenced herein,
reasonable attorneys' fees, consultants' fees and expert witness fees
are included as those costs which may be recovered by the town from
the service provider or system owner or operator.
B.
The town, the Town Board and the Supervisor reserve
the right to retain counsel of their own choice, at their own expense.
C.
If a service provider or system owner or operator
obtains counsel for the town, the Town Board or the Supervisor, then
any one of them shall have the right to approve such counsel. However,
neither the town, the Town Board, nor the Supervisor shall unreasonably
withhold its approval of counsel, provided such counsel is qualified
and reasonably experienced in defending against such claims or actions.
D.
With respect to a service provider's or system owner's
or operator's own defense of such actions set forth in this section,
it is understood that such service provider or system owner or operator
reserves the right to select and retain counsel of its own choice,
at its own expense, without the town's, the Town Board's or the Supervisor's
approval.
A.
A service provider or system owner or operator shall
secure and maintain, for as long as it operates the system or provides
service within the town, public liability insurance, property damage
insurance and umbrella insurance coverage in at least the following
amounts:
B.
A service provider's or systems owner's or operator's
public and personal liability and property damage insurance policy
shall expressly include the town, the Town Board and the Supervisor
as additional named insureds.
C.
The public and personal liability and property damage
insurance policy shall be issued by an agent or representative of
an insurance company licensed to do business in the state, and which
has one of the three highest or best ratings from the Alfred M. Best
Company, or an equally reputable rating service.
D.
The liability and property damage insurance policy
shall contain an endorsement obligating the insurance company to furnish
the Town Board with at least 30 days' written notice in advance of
the cancellation of the insurance.
E.
Renewal or replacement policies or certificates shall
be delivered to the Town Board at least 30 days prior to the expiration
of the insurance which such policies are to renew or replace.
F.
Before a service provider provides service to subscribers
or users, and before a system owner or operator permits the system
to be used to provide service, the service provider or system owner
or operator shall deliver to the town the policies or certificates
representing the required insurance, and each policy or certificate
delivered shall be accompanied by evidence of payment of the full
premium thereof.
G.
If the state permits a service provider or system owner or operator to be self-insured, then the Town Board may, at the Board's sole discretion, permit the service provider or system owner or operator to self-insure, so long as the minimum amounts of insurance coverage outlined in this section are met and maintained for the entire period that the service provider or system owner or operator is self-insured, and the service provider or system owner or operator can demonstrate to the satisfaction of the Town Board that it has the financial ability to pay in a timely manner up to the maximum amount per category as set forth in Subsection A of this section.
A.
A service provider or system owner or operator shall
provide to the town a performance bond or other security executed
by a surety licensed to do business in the state, or if deemed necessary
by the Town Board a cash deposit or irrevocable letter of credit in
the name of the town, in an amount totaling at least $25,000 and not
exceeding $100,000. The purpose of the security is to ensure performance
and compliance with the requirements and provisions of this article
and may be called, or drawn upon, as appropriate, to recompense the
town for costs, losses or damages incurred by the town as a result
of the failure to comply with this article, up to the monetary limits
of the security. If the town draws on a performance bond, cash deposit
or irrevocable letter of credit as a result of a service provider's
or system owner's or operator's failure to fully and timely discharge
its obligations under this article, then the service provider or system
owner or operator shall be required to replenish the security to the
minimum level required by this article within 30 days of the draw
down.
B.
If the applicant is an incumbent in the town, the specific amount of the security required under Subsection A of this section shall be based in part upon the franchisee's or applicant's record of performance in the town. If the applicant has no record of performance under any authority granted by the town, the amount of the security may in part be based upon its record of performance in other communities and the fact that it has no record of performance in the town.
C.
In addition to the performance security required in Subsection A of this section, a service provider or system owner or operator shall furnish to the town a construction/completion bond or other approved security prior to the time it commences any construction, upgrade, rebuild or repair/maintenance project that has a capital construction cost or outlay exceeding $100,000. In determining the cost, the cost of the entire project shall be used, and a service provider or system owner or operator may not avoid the requirements of this section by separating or segregating the project into smaller component parts or portions, such as listing geographical sections of the town as separate projects, whether or not they are to be done simultaneously or consecutively. The amount of the bond or other security shall equal at least 75% of the projected capital cost. Any component parts or portions of a project subject to the requirements of this subsection that are undertaken within a twelve-month period shall be deemed the same project.
D.
To minimize and control the disruption of the normal
and usual use of the streets and rights-of-way in the town, any construction/completion
bond or other permitted form of security shall expressly guarantee
that a service provider or system owner or operator will in a timely
manner abide by the schedule for the project as approved by the Town
Board or Administrator and that the service provider or system owner
or operator will complete the project in a timely manner.
E.
If the Town Board draws on a completion bond or other
permitted form of security as a result of a service provider's or
system owner's or operator's failure to timely and fully discharge
its obligations and complete any project subject to this subsection,
then the affected service provider or system owner or operator shall
be required to replenish the completion and performance bond or security
to the minimum level required by the Town Board or the Administrator
within 30 days of the date of the draw down.
F.
The performance bond or other permitted form of security
shall be in force at all times as may be required by the Town Board,
unless relief is granted or a schedule of reduction is detailed in
a separate agreement executed between the service provider or system
owner or operator and the Town Board.
G.
In lieu of a performance bond and/or a construction/completion
bond, at its sole discretion the Town Board may accept alternative
forms of security, including a written guaranty of a service provider
or system owner or operator pledging the full faith and credit of
the affected service provider's or system owner's or operator's ultimate
parent.
A.
Notwithstanding the insurance and bond requirements
contained elsewhere in this article, a service provider or system
owner or operator shall obtain and maintain any other types of insurance
and bonds, including, but not limited to, workers compensation insurance
and automobile liability insurance, that are mandated by either federal
or state law, rule or regulation.
B.
Where applicable and required, a service provider
or system owner or operators shall maintain such insurance and/or
bonds in at least the required minimum amounts, and according to the
minimum terms and provisions mandated by either the federal or state
law, rule or regulation.
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:
C.
Notwithstanding Subsection B, and unless preempted or prohibited by the state or the FCC, a system owner or operator shall include in the public inspection file:
(1)
A current rate card detailing rates for all services
and for any equipment placed at a subscriber's or user's location,
charges for installation, late charges or fees and the policy regarding
the imposition of late charges;
(2)
A copy of the current complaint resolution policy;
(3)
A copy of the current disconnection policy, including
both voluntary and involuntary disconnections; and
(4)
A copy of the current policy regarding the issuance
of credits or rebates for loss or diminution of service, missed appointments
and refunds due upon disconnection or downgrade from prepayments.
A.
Notwithstanding any requirements contained elsewhere
in this article, a service provider or system owner or operator shall
maintain, and upon request by the Town Board or its designee, provide
records as are reasonably necessary for the town to determine compliance
with the provisions of this article, and to determine the service
provider's or system owner's or operator's legal, technical, financial
and character qualifications as may be needed from time-to-time to
administer this article and the franchise.
B.
On or before January 1 of each year after the effective
date of this article, a service provider or system owner or operator
shall submit to a designated town official a list of files, reports,
records, data or other information that the service provider or system
owner or operator periodically and/or regularly and customarily files
with the FCC or the PSC or any other federal or state agency because
of its status as a service provider or system owner or operator that
are applicable to or have effect on the system or the provision of
service in the town. For any other report that a service provider
or system owner or operator files with any other federal or state
agency, and that has or will have a direct impact on the operation
of the system or the provision of in the town within 180 days of the
filing, then the service provider or system owner or operator shall
notify the Town Board or Administrator of the filing within 15 days
of the date of the filing. The notice shall inform the Town Board
or Administrator of the nature and scope of the filing and the effect
or intended effect, and the agency with whom the filing was made,
including the name, address, department, division and phone number
of the recipient.
C.
As part of any compliance review or evaluation, or for any legitimate matter related to the administration and enforcement of this article or a service provider's or system owner's or operator's franchise, or any permitted operation under this article, pursuant to Subsection B of this section, the Town Board or the Administrator may require the provision of any reports, records, data or other information filed with the FCC, the Securities and Exchange Commission (SEC), or any other federal or state agency that affects the ownership or operation of the system or the provision of service in the town. However, unless the town is expressly authorized to require such by state or federal law, a service provider or system owner or operator shall not be required to provide any state or federal tax returns, or any documents that are expressly exempted under state or federal privacy laws, including any applicable provision of the PSC and Section 631 of the Cable Act (codified at 47 USC 551).
D.
For the purposes intended under this section, an address
shall be required to be provided, but without giving the name of the
subscriber or user located at that address, unless the consent of
the subscriber or user is obtained.
E.
Notwithstanding anything to the contrary in the preceding Subsection B of this section, the town shall have the right and authority to require the delivery to the town of any information related to determining the adequacy of any payments due the town, including, but not limited to, franchise fee payments, rent, user fees, licenses or taxes of any kind. However, the town may not require the delivery of original documents, but may require the delivery of photostatic copies of such.
F.
Notwithstanding anything to the contrary in the preceding Subsection D, the town reserves the right to require, as deemed necessary for the administration and enforcement of this article or a franchise, that a franchisee or other service provider or system owner or operator deliver to the town copies of all applications, reports, documents, correspondence, pleadings and petitions of any kind that relate to or have an effect on the system, the system owner's or operator's or the service provider's ownership or operation of the service or system, or on the franchising or regulatory authority of the town, that are submitted by or on behalf of the franchisee or other service provider or system owner or operator, without regard to the federal or state regulatory agencies or courts where such addresses issues which affect, or have the intent of affecting, the operation of the service provider's or system owner's or operator's service or system within the town, or the town's regulatory authority. The information shall be provided in a timely and expeditious manner, and as may further be required by this article or a franchise agreement.
G.
No service provider or system owner or operator shall
use the delay of the provision of the information required under this
section to prevent the Town Board from exercising its rights or performing
its duties and obligations under this article or any applicable federal
or state law, rule or regulation.
H.
Copies of such responses, decisions or any other communications
from the regulatory agencies or courts set forth in this section to
a service provider or system owner or operator or its agent, including
the service provider's or system owner's or operator's ultimate parent,
its attorney or its consultants, that are relative to the service
provider or system owner or operator, or the operation of the system
or the provision of service in the town, that would have an effect
on the operation of system or the provision of service within the
town, or the ownership, shall likewise be filed with the town immediately
upon the filing or receipt of such, but in no case later than 15 days
after the filing or receipt thereof.
I.
In addition to the requirements noted in the preceding
subsections of this section, a service provider or system owner or
operator shall in a timely manner submit those reports, statements
and logs required by this article that are necessary for the proper
and diligent administration and enforcement of this article or any
franchise granted by the town, including, but not limited to, the
following:
(1)
A periodic gross revenue statement and report in the
manner set forth in this article.
(2)
A copy of the loss of service or outage log applicable
to the system or service in the town, showing all service outages
of any kind and duration, in accordance with the requirements in this
article and any franchise.
(3)
Preventive maintenance reports as set forth in this
article.
(4)
If applicable, the FCC Form 394 or any subsequent
equivalent form concerning assignment or transfer of a system owner
or operator or service provider that is subject to Section 617 of
the Cable Act of 1984, as amended (at 47 U.S.C. § 537),
or if not applicable to the aforementioned FCC Form 394, a formal
request for transfer.
(5)
If applicable, a copy of the FCC Form 395-A or any
subsequent equivalent form concerning equal employment opportunity
(EEO) and fair contracting policies.
(6)
If applicable, a copy of any required state authorization
to operate a system or provide service using a system.
A.
A service provider or system owner or operator shall
keep complete and accurate books of accounts and records of the business
and operations in connection with the operation of system and/or the
provision of service in the town, including records of inspection
and maintenance activity in sufficient detail to ascertain the diligence
and adequacy of the inspection and maintenance program.
B.
The Town Board, the Administrator, or a duly authorized
designee of either, shall always have the right to require the provision
of and delivery to the town offices, or the offices of the town's
designee, information or records, including true and complete photostatic
copies of any records, as may be necessary and required to administer
this article or any franchise. At the discretion of the Town Board
or the Administrator, and in lieu of the preceding, the company may
be permitted to provide attested and certified summaries of information
in the form and format determined by the Town Board.
C.
Requests for information and records shall be provided
within five days of the receipt of a written request, unless the retention
of such records is expressly exempted by one or more provisions of
a franchise, or unless the time for the provision of such records
is extended by the Town Board or the Administrator. In an emergency
situation, the information may be required to be provided sooner.
D.
It shall be the responsibility of the service provider
or system owner or operator to retain and maintain records and information
so as to enable their provision in a timely manner as required by
this article. The period of time for the required retention of such
records shall be for the period of time represented by the state's
statute of limitations given the facts and circumstances involved.
E.
The town shall have the right, at its own expense,
to hire an independent certified public accountant or other business
professional to review the books and records of a service provider
or system owner or operator, or at the discretion of the Town Board
or the Administrator, attested and certified summaries of information
in the form and format determined by the Town Board or the Administrator.
If, after a financial audit or analysis, it is determined that the
service provider or system owner or operator has underpaid amounts
owed to the town by 1% or more of the amount owed or $2,000, whichever
is less, then the service provider or system owner or operator may
be required to reimburse the town for the actual cost of the audit
or review. Absent fraud, any audit by an independent certified public
accountant or other qualified professional retained by the town shall
be binding.
F.
A false entry into the books and/or records of a service
provider or system owner or operator of a material fact or amount
made by a service provider or system owner or operator or any employee
or contractor of the service provider or system owner or operator,
shall constitute a material violation of this article and, at the
discretion of Town Board, subject the service provider or system owner
or operator to termination and revocation of its franchise, and any
and all fines and penalties, both civil and criminal, as permitted
under law. An unintentional erroneous entry made in good faith and
of de minimus negative affect shall be deemed a technical violation
or breach and shall not constitute a material violation of this article,
nor subject a service provider or system owner or operator to any
damages or penalties of any kind.
G.
Unless granted relief pursuant to § 146-7 of this article, a service provider or system owner or operator shall keep complete and accurate books and records of the key aspects of the service provider's or system owner's or operator's operation at the local office for at least the preceding three years, and in such a manner that all matters pertaining to the town can be easily produced and/or verified at the request of the town. A service provider or system owner or operator shall be permitted to keep such records at a different location for the period of time represented by the state's statute of limitations so long as copies of the records will be delivered to the town or its designee upon request as may be needed for the administration and enforcement of this article or the franchise.
H.
The service provider or system owner or operator shall
also keep at its local office, and shall make available and provide
upon request by the town, any other applicable records and information
that may be required by any other federal or state agency, including
the PSC, that has jurisdiction over one or more classes of service
provider or system owner or operators as relate to the operation of
the system or the provision of service, including financial matters.
I.
Notwithstanding anything else in this section, no
service provider or system owner or operator shall be required to
provide information that is by law expressly deemed confidential or
proprietary.
J.
Failure to comply with the provisions of this section shall subject the service provider or system owner or operator to fines or penalties as set forth in § 146-60 of this article.
K.
To the extent permitted by applicable state and federal
law, the town shall not disclose or use any information provided by
a service provider or system owner or operator in a manner that would
reasonably be deemed to provide a competitive advantage to another
service provider or system owner or operator, or that would reasonably
be deemed to place the service provider or system owner or operator
at a competitive disadvantage.
L.
No service provider or system owner or operator shall
use the delay of the provision of the information required under this
section to prevent the Town Board from exercising its rights or performing
its duties and obligations under this article or any applicable federal
or state law, rule or regulation.
In addition to any and all requirements of this
article relating to matters of consumer protection, each and every
service provider or system owner or operator shall comply with, and
abide by, all applicable provisions of any state law concerning sales
practices and consumer protection requirements.
As a matter of consumer protection, the town
establishes the following regulations related to subscriber or user
security deposits.
A.
Franchisee or other service provider or system owner
or operator shall be permitted to require refundable security deposits
in circumstances consistent with reasonable business practices and
applicable state law, but only where such deposits are necessary to
protect the system owner's or operator's or service provider's investment
in equipment loaned, leased or rented to a subscriber or user, or
to ensure payment where there is reasonable evidence of a risk of
nonpayment such as history of repeated no-payment.
B.
Security deposits shall be kept in a separate interest-bearing
account, and the subscribers or users shall annually be paid all interest
earned on the deposits and shall record and account for the collective
amounts of the deposits separately from any other account. At no time
shall there be a commingling or mixing of security deposit money in
accounts with any other monetary receipts.
C.
Upon termination of service for any reason, the subscriber
or user shall receive a refund of any deposit, including all accrued
and unpaid interest, within 30 days of the termination or cancellation
of service, subject to:
(1)
An offset or credit for all outstanding obligations
of the subscriber or user to the franchisee or other service provider
or system owner or operator, including outstanding service charges;
and
(2)
Return of all equipment provided by the franchisee
or other service provider or system owner or operator in connection
with the services received by the subscriber or user in suitable condition,
normal wear and tear expected.
D.
In no circumstances shall a service provider or system owner or operator be permitted to use any deposits for working capital, or allow any deposits to be used for working capital, or to be used for any purpose other than to serve as security against the loss of any amounts owed or for loss of or damage to equipment pursuant to Subsection F of this section, unless the service provider or system owner or operator annually pays the depositor interest on the money used at the prevailing rate of interest for commercial loans in effect at the time the deposit was used. Failure to pay interest as set forth in this subsection shall subject the offending service provider or system owner or operator to interest at the rate of 10% per annum, which interest shall be compensatory in nature to the depositor, and shall not preclude the imposition or assessment of a fine or penalty as set forth in this article or as may be permitted under state law.
E.
All deposits for equipment shall be returned, with
interest if applicable under this article, within 30 days of the cancellation
or termination of the service or the return of the equipment for which
the deposit was made, provided that the equipment is returned in good
working order, normal wear and tear excepted, and further provided
that there is no outstanding amounts owed to the service provider
or system owner or operator.
F.
Failure to meet the requirements of this section may,
at the discretion of the Town Board, result in fines or penalties
as set forth in this article and other sanctions as permitted under
law.
A.
As a matter of consumer protection and equal protection
rights under the united States Constitution, a service provider or
system owner or operator shall not, as to rules, regulations, rates,
charges, provision of service, or the use of a service provider's
or system owner's or operator's facilities and equipment, make, allow
or grant any undue and impermissible preference or advantage to any
person, nor subject any person to prejudice or disadvantage, on the
basis of race, creed, color, sex, national origin, handicap or physical
condition, religious affiliation, location of residence or income.
B.
Subsection A of this section does not prohibit a service provider or system owner or operator from denying service based on the location of a residence or business if that residence or business is outside the parameters for any line extension, allowing for any cost-sharing formula, as may be detailed in a franchise.
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 town
establishes the following regulations related to the treatment of
payment delinquencies, late charges and termination or disconnection
of service.
A.
A subscriber or user shall not be considered delinquent
in payment until at least the following have occurred:
B.
Before disconnection of a subscriber's or user's service takes place, whether physically or electronically, the subscriber or user must in be delinquent in payment for service as defined by Subsection A of this section.
C.
Any refund due a subscriber or user after a disconnection
pursuant to this section shall be made within 60 days of the disconnection
for nonpayment.
A.
As a matter of consumer protection, a subscriber or
user may at any time request that a particular service, level of service
or the entire service be disconnected. There shall be no penalty imposed
or other punitive action of any kind whatsoever taken by a system
owner or service provider under such circumstances or for such a choice
by a subscriber or user.
As a matter of consumer protection the town
establishes the following regulations related to access to or the
refusal of any service.
A.
Except for normal sales and sales retention efforts,
no service provider or system owner or operator shall engage in any
activity or practice which is designed to prohibit or inhibit, or
has the effect of inhibiting or prohibiting, a subscriber or user
from switching from one service provider or system owner or operator
to another service provider or system owner or operator or disconnecting
from one service provider or system owner or operator in order to
connect and receive service from another service provider or system
owner or operator or simultaneously receiving service from more than
one service provider or system owner or operator.
B.
No service provider or system owner or operator shall
engage in any activity or practice which has the effect of acting
as a penalty or negative disincentive for a subscriber or user switching
from one service provider or system owner or operator to another service
provider or system owner or operator, or disconnecting from one service
provider or system owner or operator in order to connect and receive
service from another service provider or system owner or operator;
or simultaneously receiving service from more than one service provider
or system owner or operator.
C.
No person or member of the public shall be penalized
or fined by a service provider or system owner or operator, whether
through a home sales contract, a deed containing restrictive covenants,
or any other type or instrument of agreement or restriction, for failing
or refusing to subscribe to or receive service of any kind, or for
failing or refusing to physically connect to a service provider's
or system owner's or operator's system; nor shall any person incur
penalties, fines or costs of any kind for failing or refusing to connect
to a service provider's facilities or a system owner's or operator's
system, or for failing or refusing to subscribe to or receive service.
D.
Failure to meet the requirements of this section may,
at the discretion of the Town Board, result in fines or penalties
as set forth in this article.
As a matter of consumer protection the town
adopts the following regulations regarding subscriber or user privacy:
A.
A service provider or system owner or operator shall
abide by any and all subscriber or user privacy rules or regulations
of the federal or state government or any federal or state agency.
B.
Any service provider or system owner or operator who
functions as an Internet service provider shall be prohibited from
using or providing to a third party any information sent or received
by a subscriber or user, such as, but not limited to, e-mail or any
attachments thereto, to any person or entity for any purpose whatsoever,
unless ordered to do so by a court of competent jurisdiction.
C.
Failure to meet the requirements of this section may,
at the discretion of the Town Board, result in fines or penalties
as set forth in this article.
A.
The town is hereby granted the authority to do all
things necessary and permissible to supervise, inspect and regulate
the construction, operation and maintenance of systems or services
that are subject to this article in whole or in part, and to implement
procedures for the filing and resolution of complaints, unless otherwise
expressly prohibited by federal or state law.
B.
A service provider or system owner's or operator's
complaint and inquiry resolution policy shall be reduced to writing,
and such policy shall be available upon request to any person 18 years
of age or older. Every subscriber or user shall receive notice of
the policy, and any change in the policy, in the manner prescribed
by this article and in compliance with any FCC or PSC rules.
A.
No service provider or system owner or operator may
abandon, withdraw or cease to operate the system or provide service
to any portion of the service area within the town without the prior
express written consent of the Town Board.
B.
A service provider or system owner or operator shall
be prohibited from using the threat to abandon, withdraw or cease
to provide service to any subscriber or users or service or operate
the system area within the required service area in town to avoid
compliance with this article or the terms and conditions of a franchise.
C.
Failure to meet the requirements of this section may,
at the discretion of the Town Board, result in fines or penalties
as set forth in this article.
A.
In order to establish minimum and uniform standards
related to the safe use and occupancy of public property, the town's
property and rights-of-way, private property, and as the system may
be relied upon to communicate with the subscribing public in the event
of an emergency or disaster, to assure the reliable provision of service
in the town, and to the extent reasonably possible assure the ability
of subscribers, users and property owners to enjoy their property
with the least inconvenience and diminishment of the value of the
property, any service provider or system owner or operator shall abide
by and adhere to the following minimum construction and construction-related
requirements.
(1)
Construct, install, maintain and repair the system
or facilities used to provide service in accordance with this article,
and any other requirements of the state, county and/or town;
(2)
Use and occupy streets and private rights-of-ways
as set forth in this article, and any other applicable requirements
of the state, county and/or town;
(3)
Where applicable, and when ordered in accordance with
this article or a franchise, remove the service provider's or system
owner's or operator's equipment, facilities and property from the
town's property, streets or rights-of-way in accordance with this
article and applicable state law;
(4)
When ordered by a private property owner, subscriber
or user, remove the service provider's or system owner's or operator's
equipment, facilities and property from the premises;
(5)
Abide by the safety requirement as set forth in this
article;
(6)
Abide by and act in strict accordance with all codes
that are standard and customary to the telecommunications industry,
including construction, fire, safety, health and zoning codes that
are adopted by the town, the county, the state or the United States;
(7)
Cooperate with the town in the conduct of any inspection
of the system or facilities used to provide service, and make repairs
or eliminate construction or safety violations as directed or ordered
by the Administrator or the Town Board; and
(8)
Maintain all permits, licenses and other authorities
as required by this article and any other town rules or regulations,
and as may be required by any other governmental regulatory authority.
B.
The construction, rebuild, upgrade, installation, maintenance and repair of any system or facilities of any system owner or operator or service provider shall at all times and without exception abide by and comply with the requirements of Subsections C through M of this section, unless expressly relieved from compliance in a franchise, which relief shall include any grandfathered status in a franchise in existence as of the effective date of this article, unless engaged in any construction, rebuild or upgrade of the system or facilities prior to the expiration date of the franchise, but only until the expiration date of the franchise in existence as of the effective date of this article.
C.
The town expressly adopts a policy of zero tolerance of situations or practices not in compliance with the requirements of this section, unless relief is granted pursuant to § 146-7 of this article.
D.
For newly served areas, the provisions of Subsection C of this section shall apply at the time of initial construction and/or installation of the new system or facilities, or at the time of a rebuild or upgrade of a system or any of its facilities.
E.
Any service provider or system owner or operator,
when engaged in any construction, installation, rebuild, upgrade,
maintenance or repair activities, shall treat the aesthetics of property
as a priority, shall not substantially change or affect the appearance
or the integrity of the structure and the property on which it is
situated in a negative manner. This shall expressly include prohibiting
the installation of a service drop and associated components on the
bias or diagonally across the front, rear or side of a residence or
other structure without the property owner's express permission. This
also means that, unless impracticable, all drop material attached
to a dwelling or business must follow the perimeter lines or roof
lines of the dwelling or business and shall result in the minimum
visual effect reasonably possible, taking into account the reasonable
desires of the subscriber or user.
F.
To minimize the accidental cutting of lines resulting in a loss of service, to the extent not physically or commercially impracticable, all underground service drops shall follow property lines and shall cross property only at right angles, unless otherwise expressly permitted by the property owner, whose permission shall be in writing, and the work order signed by the subscriber or user shall contain a diagram of the permitted routing of the service drop, or unless required due to the physical characteristics of the surface or subsurface obstructions, in which case there shall be a signed and dated acknowledgment by the subscriber or user of the need to route the installation differently than as required in this subsection. All such signed permissions and acknowledgments shall be retained permanently by the system owner or operator or service provider, and shall be produced and provided upon request, including upon request by any subsequent owner of the property, or by the Administrator or the Town Board or its designee. For systems or service providers in existence prior to the effective date of this article, the service provider or system owner or operator shall not be required to bring its facilities into compliance with the provisions of this Subsection F until the sooner of an upgrade or rebuild of the system or system facilities or the grant of a new or renewed franchise. Notwithstanding the previous sentence, a service provider or system owner or operator shall always be required to comply with the provisions of this Subsection F when requested by a subscriber or user, and shall do so in a timely manner.
G.
Underground service drops shall be buried at a minimum
required depth of 12 inches, so as to prevent being cut in the course
of performing normal yard maintenance, planting and landscaping.
H.
In instances where previously existing utilities have
constructed or installed wire or cable aerially, the service provider
or system owner or operator may construct its system or facilities
aerially, unless otherwise required by state or local law. However,
it shall be the responsibility of the system owner or operator or
service provider to assure that at all times and without exception
all required minimum separations are maintained between its facilities
and those of other occupants of the poles as required by applicable
code, rule or regulation, including as set forth in this article,
and that there shall at no time be less than the minimum required
clearance between such facilities and those of the system or service
provider, nor shall there ever be any contact between the service
provider's or system owner's or operator's wires, cable or other equipment
and facilities and those of any other utility or other system or service
provider's facilities or other occupant of the poles.
I.
In situations involving underground construction,
the system owner or operator or service provider shall at all times
and without exception be required to comply with all applicable requirements
of the National Electrical Safety Code and the National Electrical
Code.
J.
Notwithstanding the provisions of Subsection H of this section, as a matter of economic development and preserving property values, the Town Board may order to be placed underground any new construction of a system, which shall include any rebuild, upgrade or replacement of a system and its facilities.
K.
In the event a violation of Subsection H is caused by another occupant of the poles, upon discovery of the violation the system owner or operator or service provider shall, the same day if possible, but in no case later than the next workday, formally and in writing, notify the party that created the violation and diligently pursue the elimination of the violation. Until the violation is eliminated, the system owner or operator or service provider shall be required to be able to provide evidence of the demand to eliminate the violation and of its efforts to have the violation eliminated.
L.
All occupants of utility poles and shared trenches
shall at all times cooperate with all other occupants to assure compliance
with the requirements of this section.
M.
In order to provide the maximum assurance of the protection of the public and of the employees of any occupant of the town's property and rights-of-way, or utility poles or shared trenches in the town's rights-of-way, the town specifically adopts the construction, maintenance and repair requirements set forth in this subsection. The requirements in this subsection shall serve as minimum standards and requirements and shall be in addition to any other requirements of the town, the county or the state. In the event of a conflict between the requirements set forth in this subsection and those contained in any other applicable county or state code, rule or regulation, that which provides the greatest assurance of achieving the intent set forth in Subsection A of this section shall apply.
(1)
All guy wires associated with a system shall at all
times be maintained with the integrity originally intended, including,
but not limited to, proper attachment to an anchor and adequate tension
to perform the purpose intended.
(2)
Any guy wire associated with a system that is reasonably
accessible to, or may be reasonably be expected to be encountered
by, pedestrians or users of recreational vehicles, including but not
limited to bicycles, skate boards, snowmobiles, off-road vehicles
and all-terrain vehicles, shall at all times be marked and protected
by the use of a suitable brightly colored, plainly visible guard no
less than eight feet in length and made of a nonconductive material
that is resistant to deterioration caused by the effects of the weather,
unless expressly exempted individually by the Town Board or the Administrator.
(3)
The ends of all guy wires at the point of attachment
to the anchor shall be trimmed and capped or otherwise protected so
as not to allow exposed sharp ends to protrude.
(4)
All wires or cables of any kind associated with the
system that are placed vertically on any pole and that are within
eight feet of the surface of the ground shall at all times be protected
from direct contact by unauthorized individuals and vandalism by means
of a suitable guard made of a nonconductive material that is durable
and resistant to degradation or deterioration caused by the effects
of the weather.
(5)
At no time shall any cable, or functional equivalent, intended for underground installation be left or remain unburied at the end of a workday. The only exceptions to this requirement shall be for extreme weather conditions or in a force majeure situation, or if the ground is frozen to a depth of more than six inches. In any case involving the exceptions under this subsection, the unburied cable shall be buried pursuant to the requirements in the National Electrical Safety Code, or for situations involving service drops the requirement in Subsection G of this section, on the first workday following the cessation or elimination of the condition permitting the exception.
(6)
All pedestals and vaults housing system or service
facilities or components shall at all times be reasonably secured
to prevent tampering by unauthorized individuals, vandalism or contact
with sharp edges that are associated with or contained in the pedestal
or vault. It is required that every service call at a location at
which a pedestal or vault exists shall include a check of the structural
integrity and security of the vault or pedestal, and any repairs necessary
to bring the pedestal or vault into compliance with this subsection
shall be done at the time of the service call, or the next workday
at the latest.
(7)
At no time shall any pedestal or vault be located
closer than six feet from an electric power pedestal unless bonded
to the ground of the electrical power pedestal. In no instance shall
any pedestal or vault be situated so as to block, prevent, hinder
or interfere with the free access to any other utility or service
pedestal.
(8)
In no instance shall any system or service component
or facility be fewer than 20 inches, measured vertically, from any
streetlight, including any attachment brackets or fixtures of any
streetlight, unless individually bonded to the streetlight or its
ground, in which case the minimum permitted clearance shall be 12
inches.
(9)
All system or service facilities or components which
are aerially constructed shall maintain a minimum of 60 inches of
vertical clearance at a pole and 50 inches of clearance at mid-span
from any electrical primary lines, wires or facilities, and 40 inches
of vertical clearance at a pole and 30 inches of vertical clearance
at mid-span from any electrical secondaries power lines, wires and
facilities.
(10)
At all times in all aerially constructed areas
of the town, all system or service facilities or components shall
maintain a minimum of 12 inches vertical clearance from any communications
or telephone lines, wires and facilities.
(11)
At no time shall any system or service facilities
or components be attached to, or in contact with, any electrical power
mast or any other electrical power-related facility on any residence
or business, except for the sole purpose of establishing a common
ground, otherwise known as a "bond," which bond shall not be at the
electrical power mast and shall not block or otherwise interfere with
the free and unhindered access to any component of the electrical
service; nor shall such facilities or components ever be in contact
with or closer than 12 inches to any component of electrical service
to any residence or building.
(12)
All service drops shall be bonded to the electrical
system ground serving that home or building. At no time shall a separate
ground rod be the only means of providing a ground, unless the home
or building has no electrical service ground, in which case the electric
company must be notified in writing of the lack of an electrical ground.
(13)
All system or service lines, wires and cable,
including service drops, shall have a minimum vertical clearance of
eight feet when passing above or over any point of any roof of any
home or building of any kind.
(14)
No wire, line or cable of a system owner or
operator or service provider, whether aerial or underground, shall
cross the property of a person, subscriber or user to provide service
other than to serve the address of the property being crossed without
the express written permission of the owner of the property being
crossed, which written permission shall be permanently retained by
the service provider or system owner or operator and produced upon
request or demand by the owner of the property or the Administrator,
the Town Board, or its designee.
(15)
All system or service lines, wires and cable
serving residences or other buildings shall be securely attached to
the structure in a neat manner and in the least visually offensive
manner reasonably possible given the facts and circumstances.
(16)
No service drop shall at any time cross in front
of or block any door, window or any means of emergency egress or ingress
of any home, business or building. If any wire, line, cable or service
drop of the system or service provider is found to be blocking a means
of emergency ingress or egress, a service provider or system owner
or operator shall immediately reroute and attach the wire, line, cable
or service drop so as to eliminate the situation.
(17)
At all times, on an individual basis, all service drops shall be bonded to the common ground of the electrical service in the residence or other building, except with the express permission of the town, and then only for the reason stated in Subsection M(12) of this section. No service drop may at any time be grounded to or in contact with any facility providing natural or propane gas.
(18)
All work on the system or service plant, facilities
or equipment performed by a system owner or operator or service provider
shall, without exception, be left in a permanent, finished condition
at the end of each working day, unless individually approved by the
subscriber or property owner and either the Town Board or the Administrator
on a individual location-by-location basis.
(19)
All subscriber or user service drops are to
be inspected by the system owner or operator or service provider,
whichever is applicable, as an integral part of every service or trouble
call, installation or reconnection, and any work necessary to bring
the service drop into compliance with this section shall be completed
prior to leaving the address, or at the latest, by the end of that
workday.
(20)
All systems and facilities of a system owner
or operator or service provider attached to utility poles shall at
all times be attached on the same side of the pole as the lowest occupant
of the pole.
(21)
At no time shall any facilities of a system
owner or operator or service provider create what is known in the
industry a "frame out" of a pole, thereby blocking the necessary climbing
space of the pole.
(22)
All system or service lines, wires, cable and
facilities shall be constructed so as to leave sufficient room between
its system and facilities and those of the electric system to place
or move a service bucket between the systems and facilities without
coming into contact with the other system or facilities, or in simultaneous
contact with both systems or facilities.
(23)
All cable, lines, wires and fiber shall at all
times be securely lashed to the supporting strand so that the structural
integrity of cable or system is not compromised.
N.
Every service provider or system owner or operator
shall be required to conduct a diligent program of regular inspection
of its system and facilities to assure compliance with the requirements
of this section, which shall include adequate training of all field
personnel to enable them to be capable of identifying and reporting
situations not in compliance with the requirements of this section.
O.
At all times and without exception all applicable
portions of the Occupational Safety and Health Act (OSHA) shall be
complied with.
P.
Any violations of this section that are found shall
be eliminated immediately, or the next workday at the latest.
Q.
Any system owner or operator or service provider who
violates the requirements of this section may, at the discretion of
the Town Board, be subject to the imposition of fines and penalties
as set forth in this article.
Any construction, rebuild or upgrade of any
system or facilities, including any installation, maintenance or repair
of the system or facilities used to provide service, shall be done
using only materials of good and durable quality, and all work shall
be performed in a safe, thorough, reliable and workmanlike manner,
and all employees or contractors shall at all times act and work in
compliance with the provisions of this article and other applicable
ordinances, codes, rules and regulations of the town, the county and
the state.
A.
At all times and without exception, all wires, conduits,
cable (whether coaxial, fiber or a functional equivalent) and other
property and facilities of a service provider or system owner or operator
shall be located, constructed, installed and maintained so as not
to endanger or unnecessarily interfere with the usual and customary
use, traffic and travel upon the streets, rights-of-way, easements
and public ways of the town, or any private property adjacent to,
crossed or used by a system owner or operator or service provider.
B.
In the event a service provider or system owner or
operator's system or facilities creates a hazardous or unsafe condition,
or is part of or a party to a hazardous or unsafe condition, including
but not limited to those standards and requirements set forth in this
article that are intended to protect the safety of persons and property,
or that creates an avoidable or unreasonable interference with the
use of public or private property, the service provider or system
owner or operator shall upon discovery voluntarily, or upon notice
by the town, in a prompt and expeditious manner remove or modify that
part of the system or facilities so as to eliminate the condition.
C.
At no time and under no circumstances shall a service
provider or system owner or operator place equipment where it will
unduly, unreasonably or impermissibly interfere with the rights of
property owners or with any utility or service intended to benefit
the general public or any other service or facility that benefits
or protects the health, safety or welfare of the town or its residents.
D.
A service provider or system owner or operator, either
at its own expense or that of a private contractor, shall at all times
and without exception protect all property, including public property
and the town's rights-of-ways and easements, and shall support or
temporarily disconnect or relocate any property of the service provider
or system owner or operator when necessitated by reason of:
(1)
Traffic conditions;
(2)
Public safety;
(3)
Temporary or permanent street closing;
(4)
Street construction or resurfacing;
(5)
A change in, or establishment of, a street grade;
(6)
Installation, repair or modification of sewers, drains,
water pipes, storm drains, lift stations, force mains, power or signal
lines, and any traffic control system; or
(7)
Any improvement, construction, repair or public works
project related to the town's or its residents' health, safety or
welfare.
E.
Upon request by any person or individual desiring
to work or have work performed near or around a system's or a service
provider's facilities that are placed underground, it shall at all
times be the responsibility of a service provider or system owner
or operator to locate or have located all components of the system
or facilities, and mark or otherwise visibly indicate and alert others
to the location of the underground wires, cable, fiber or a functional
equivalent and any associated equipment or facilities, prior to the
start date of such work. It shall be the responsibility of the entity
intending to or actually performing underground work to notify the
service provider or system owner or operator at least 10 days prior
to the intended start date of the need to locate the service provider
or system owner or operator's underground lines and equipment and
to inform the service provider or system owner or operator of the
intended start date.
F.
No service provider or system owner or operator may
engage in any underground work or disturb the subsurface of any ground
without first having had located and marked all utilities and facilities
placed underground at the same location.
G.
On the request of any person holding a building moving
permit, a service provider or system owner or operator shall temporarily
remove, raise or lower its wires and facilities to allow the moving
or relocation of the building. The expense of temporary removal, raising
or lowering of the wires and facilities shall be paid by the person
requesting such, and the service provider or system owner or operator
may require payment in advance. The affected service provider or system
owner or operator shall be given not less than 14 days notice of a
contemplated move to arrange for temporary wire changes.
A.
Prior to cutting, penetrating, opening or in any way
compromising or affecting the integrity of any public street, a system
owner or operator or service provider shall first obtain a street
cutting permit from the town.
B.
An application process and procedure shall be established
by the town, including a fee for the filing of an application.
C.
In order to minimize the disruption of the usual and
customary use of the streets and rights-of-way and not to prolong
such disruption, a street cutting permit shall be date-specific and
for a specific period of time. If work is not started on the start
date contained in the street cutting permit, a penalty of 1/2 the
amount of the permit fee may be required.
A.
In the event of the nonrenewal of a service provider's
or system owner's or operator's franchise, or the involuntary termination
or revocation the franchise, subject to the continuity of service
provisions outlined in this article, and unless the town or another
service provider or system owner or operator indicates its lawful
intent to acquire and use the system or the facilities, the affected
service provider or system owner or operator shall promptly remove
its system and all facilities and equipment and other property, including
any abandoned equipment, facilities or portions of the system, from
the streets, public ways and private property located within the town.
The removal shall be at the sole expense of the affected service provider
or system owner or operator and shall be completely removed within
90 days of the date of expiration, or the date of revocation and involuntary
termination, of its franchise, or a lawful order or directive from
the town, whenever any of the following occurs:
(1)
The service provider or system owner or operator ceases
to operate all or any part of the system or provide service for more
than 24 consecutive hours with the express written permission of the
Town Board or the Administrator, other than for reasons of force majeure;
(2)
The service provider or system owner or operator fails
to construct, rebuild or upgrade the system or provide service as
contained in an application or proposal for renewal, or in a franchise
or an amended franchise without express written permission of the
Town Board;
(3)
The Town Board elects not to, and affirmatively acts
not to, renew the franchise, pursuant to the provisions set forth
in this article and, if appealed, pending a final ruling or determination
by a court of competent jurisdiction; or
(4)
The service provider's or system owner's or operator's
franchise is revoked pursuant to the provisions set forth in this
article and, if appealed, pending a final ruling or determination
by a court of competent jurisdiction.
B.
The service provider or system owner or operator shall remove all of its cable, lines, wires, property, facilities and equipment located in the town's streets and rights-of-way in the manner and time frame prescribed in Subsections C through F of this section.
C.
If not removed voluntarily by the service provider or system owner or operator pursuant to Subsections A and B of this section, then the town may notify the service provider or system owner or operator that if removal of the property is not accomplished within 90 days, or substantial progress towards removal is not made within 75 days, then the town may direct its officials or representatives to remove the service provider's or system owner's or operator's property, facilities, equipment, cable and wires at the expense of the service provider or system owner or operator.
D.
If officials or representatives of the town remove,
or cause to have removed, a service provider's or system owner's or
operator's cable, lines, wires, property, facilities and equipment,
and the service provider or system owner or operator does not claim
the property within 90 days of its removal, then the town may take
whatever steps are permissible under state law to declare the property
surplus and sell it, and, if permitted by state law, the proceeds
of the sale shall go to the town.
E.
When the service provider or system owner or operator
removes its system and any other property, facilities, equipment,
cable or wires from the streets and public property and rights-of-way
within the town, the service provider or system owner or operator
shall, at its own expense and in a manner approved by the town, replace
and restore the public or private property to a condition comparable
to that which existed before the work causing the disturbance or any
damage was done.
A service provider or system owner or operator
shall obtain, at its own expense, all permits and licenses required
by local law or county or state law, or state, county or local rule
or regulation, and shall maintain the same in full force and effect
for as long as required by the town or the agency granting the permit
or license.
As a matter of consumer protection and in the
context of subscribers and users receiving that which they pay and
have a reasonable right to expect, the town establishes the following
regulations and requirements regarding technical performance.
A.
It shall at all times be the responsibility of any
service provider or system owner or operator to comply with the most
current FCC technical rules and standards, if such are applicable
to the service provider or system owner or operator.
B.
Where a chronic problem with the signal or service
quality exists, a system owner or service provider may be required
to employ technology or equipment that will alleviate or eliminate
the problem. The choice of the technology and equipment employed to
alleviate, eliminate or mitigate the problem shall be the prerogative
of the operator.
A.
The town shall have the right to inspect all portions
and facets of a service provider's or system owner's or operator's
facilities, including the construction, placement, operation, repair
and maintenance of the system or facilities in the town, in order
to verify that a service provider or system owner or operator constructs,
rebuilds, upgrades, maintains and repairs the system and facilities
in the manner required by this article.
B.
The town shall have the right to require the delivery
to the town or its designee, true, accurate and unexpurgated copies
of any and all records and documents related to any tests and inspections
conducted by the system owner or operator or the service provider
for purposes of review and analysis as may deemed necessary to administer
and enforce this article and any franchise.
C.
The town shall pay for its costs associated with any physical inspections of the system or its components or for document reviews. Notwithstanding the preceding, the town may require reimbursement of its costs for those circumstances occasioned by a service provider or system owner or operator refusing to provide the information requested under Subsection B of this section, or the refusal to cooperate with the town in an inspection, or that is occasioned by the identified failure in a significant portion of the town to construct, install, maintain, repair, rebuild or upgrade any part or portion of the service provider's or system owner's or operator's system or facilities in the manner specified and required by this article.
D.
If a failure to construct, install, maintain, repair,
rebuild or upgrade the system or facilities as required by this article
is identified, except for that which would reasonably be deemed of
a de minimus number and effect, and after ordering the remedy or elimination
of the failures and providing a period of time to comply with the
order, the town may order a reinspection in order to verify the resolution
or elimination of any failure or problem by a service provider or
system owner or operator.
E.
In instances involving reimbursement under Subsection C of this section, at the discretion of the Town Board or the Administrator, the service provider or system owner or operator may be required to reimburse the town for all of the actual costs that are incurred by the town to obtain the necessary information, or that are incurred to conduct or have conducted any needed reinspection. If, upon reinspection, all failures to construct, install, maintain, repair, rebuild or upgrade any portion of the service provider's or system owner's or operator's system or facilities have been eliminated, the Town Board or the Administrator may, at their discretion, waive the reimbursement requirement.
F.
The reimbursable costs as described in this section
are deemed reimbursable because either the costs were precipitated
by the unreasonable or noncompliant behavior of the system owner or
operator or the service provider, or because the costs are related
to actions of enforcement for violations or breaches committed, neither
of which is a part of the normal administrative function of this article
or of franchise, and are extraordinary costs that would not have been
incurred were it not for the impermissible action or violation by
the system owner or operator or the service provider.
A.
In order that subscribers or users may be alerted
in the event of an impending, imminent or actual natural or other
disaster or emergency, unless prohibited by federal law or rule, all
service providers or system owners or operators shall ensure that
the system or facilities providing service to all or any part of the
town are designed, constructed and installed with equipment that will
permit an authorized official or designee of the town to override
the audio portion of all video channels or signals by touch-tone phone
or functional equivalent, from any location.
B.
In addition to any other requirements listed in this
section, a provider of video programming service or multichannel programming
service shall:
(1)
Designate a channel which will be used for disaster/emergency
broadcasts of both audio and video, though this channel need not be
solely used for emergency broadcasts, and may be used for any lawful
purpose until needed in an emergency or disaster; and then only for
the duration of the emergency or disaster.
(2)
Inform subscriber or users of the designated emergency
channel on a periodic basis, but not less than once a week;
(3)
Maintain all-channel video blanking capability to
facilitate the needs of the hearing- and sight-impaired subscribers
or users;
(4)
Test the emergency override function not less than
once a month, and remedy any problems or operational deficiencies
immediately;
(5)
Train designated town officials and cooperate with
the town on the use and operation of the emergency alert override
function; and
(6)
Develop a plan, with the town's concurrence, to provide
continuity of service and response to service calls in the event of
an emergency or disaster.
C.
As one method of assuring continuity of services in
the event of a failure of commercial electrical power for reasons,
including but not limited to a natural or other disaster or emergency,
a service provider or system owner or operator shall install and diligently
maintain automatically activated standby or backup power so that all
active system components remain functional for at least two hours,
and additionally install and diligently maintain an automatically
activated standby generator at all headends, hubs, nodes and receive
sites associated with the distribution of service to and throughout
the town that are owned or under the control of the service provider
or system owner or operator or any affiliate or parent entity.
D.
For purposes intended under this section, the Town
Board shall designate one or more officials of the town who are authorized
to declare an emergency or disaster and access and use the override
function of the system.
A.
It shall be the duty of a service provider or system
owner or operator to devise, implement and diligently conduct a preventative
maintenance program in order to assure that there is no material degradation
of the operation, performance or condition of the service or system
that would threaten, endanger, or in a substantive manner negatively
affect the public health, safety or welfare of the public or the reliability
of service anywhere in the town, or negatively affect the quality
of service as may be required by applicable rules.
B.
Thirty days after each calendar quarter a service
provider or system owner or operator shall notify the Town Board or
the Administrator of the preventive maintenance information available
for that calendar quarter, and that such information is available
to be delivered for inspection, examination, review and analysis.
A.
All system owners or operators or service providers
shall at all times and without exception comply with the most current
editions of the National Electrical Safety Code (NESC), the National
Electrical Code (NEC) and the Occupational Safety and Health Act (OSHA).
This shall mean that any changes in or amendments to these codes and
law shall be deemed to have been automatically adopted by the town
with respect to this article, unless expressly rejected by the Town
Board.
B.
In cases involving safety issues related to utility
poles, including the requirement to regularly inspect the system and
facilities for violations of the NESC, including, but not limited
to, issues of minimum clearances or impermissible contact of the facilities
of two occupants of the poles, and where there is a question as to
which party caused the violation, the system owner or operator or
the service provider may be required to provide the following, as
applicable under the circumstance:
(1)
A copy of the request for make-ready for the situation
at that location showing the date of the request;
(2)
A copy of the signed and dated work order showing
the date of installation for the particular subscriber or address;
or
(3)
A copy of the signed and dated work order for the
latest service call for the particular subscriber or address.
C.
In cases involving Subsection B(2) or (3) of this section, where individually identifiable subscriber information may be revealed, it shall nevertheless be the responsibility of the system owner or operator or service provider to provide proof of the date in question, but without identifying the name of the subscriber, unless the subscriber's permission has been obtained.
D.
To provide for the maximum possible protection of
the health and safety of persons and property in the town, the town
deems it necessary to adopt a policy of zero tolerance of safety-related
violations associated with any system or the provision of any service
in the town, excepting those caused by subscribers, users or the public
and which the service provider was not aware of or should not have
reasonably been aware existed. Notwithstanding the preceding exception,
it shall always be the responsibility of the service provider or system
owner or operator to remedy and eliminate any safety-related violations
associated with its system or service as such may be found, or if
caused by a third party to diligently pursue the remedy and elimination
of the violation.
E.
To enable the town to take any needed action or precaution
to alert or otherwise protect persons and property in the town, it
shall be the responsibility and obligation of any service provider
or system owner or operator to report to the town any violation of
safety codes, regulations or requirements or the construction or construction-related
requirements of this article that is identified and is not able to
be remedied within 24 hours of the time of its identification, or
if caused by a subscriber or user and due to the location on private
property is not able to be remedied within the required 24 hours.
For purposes of this subsection, the notice to the town shall be done
the same day by phone, and the next day in writing.
F.
It shall be the immediate and primary responsibility
of the service provider or system owner or operator to place appropriate
and effective warning signs and protective devices or barriers at
the site of any such safety violations that create an imminent danger
or threat.
G.
Notwithstanding anything to the contrary in the section of this article entitled "Fines and penalties" (§ 146-60), there shall be no fine or penalty assessed or imposed for construction or construction-related or safety or safety-related violations that are voluntarily, and of the system owner's or operator's or service provider's own accord and volition, reported to the town in accordance with the Subsection D of this section prior to any injury or harm having been caused, and provided that the report of a situation occurs prior to or on the same day as a third-party report that the town receives that is relevant to this section, and if the violation is eliminated within 24 hours or in such time-frame as may otherwise be approved by the Town Board or the Administrator.
A.
No person, service provider or system owner or operator
shall be permitted to construct, build, rebuild, upgrade or operate
a system or provide service in, along, over, under or across town
property or streets or rights-of-way of the town without having first
obtained a franchise, unless such person, service provider or system
owner or operator is exempted from this requirement under state or
federal law.
B.
No franchise shall be required for either the town,
or for any authority affiliated with the town, to own a system or
provide service in the town or to operate as a service provider or
system owner or operator in the town, unless required to do so by
state law.
A.
The Town Board may award one or more nonexclusive
franchises within its corporate limits, or any area outside the corporate
limits that is under the town's governmental or regulatory control,
including the town's police powers.
B.
No franchise granting authority to construct and operate
a system or provide service in the town shall be exclusive.
C.
A service provider's or system owner's or operator's
application or proposal shall be evaluated and approved or disapproved
as part of a public proceeding and hearing which affords the applicant
and the public an opportunity to be heard, and which is in accordance
with applicable federal and state laws, rules and regulations.
D.
Any service provider or system owner or operator shall
proceed with due diligence and its best efforts to obtain, at its
own costs, all necessary permits, licenses and authorizations which
are required for the conduct of its business in the town within 30
days after the effective date of an initial franchise, including,
but not limited to, any private easement agreements, business licenses,
utility joint use or attachment agreements, microwave carrier licenses
and any other permits, licenses and authorizations needed to lawfully
provide service or operate a system within the town.
E.
A service provider or system owner or operator shall
have in its possession all necessary and required permits, easements,
agreements and licenses prior to the commencement of any construction,
rebuild or upgrade of the system, and, if applicable, the provision
of service.
A.
A service provider or system owner or operator subject
to this article may not lay or use any cable, lines or wires, whether
coaxial, fiber or a functional equivalent, or any other equipment
or facilities on town-owned property or in the town's rights-of-way
until the franchise is fully executed and is in effect, including
approval by the PSC if such is required.
B.
A franchise shall be sufficiently detailed so as to
clearly delineate the rights, privileges, duties, obligations and
limitations of the parties concerned.
C.
As permitted, and as may be applicable to a particular
class or type of service provider or system owner or operator, a franchise
shall, at a minimum, contain and address the following matters, as
well as any requirements in accordance with any applicable rules of
the PSC:
(1)
The term or duration of the franchise;
(2)
An indemnity and hold harmless provision;
(3)
An insurance commitment, as required;
(4)
Performance bonds or other security, as required;
(5)
Completion bonds or other security, as required;
(6)
The clearly designated service area;
(7)
A schedule of service to any unserved areas of the
town;
(8)
The construction, upgrade or rebuild schedule, if
applicable;
(9)
Compensation, including, but not necessarily limited
to, a franchise fee for administering the franchise;
(10)
A fee or rent for the commercial use and occupancy
of the town's property and rights-of-way;
(11)
A statement of repeal of any previously granted
or inconsistent franchise;
(12)
A severability clause;
(13)
A commitment to abide by any and all laws, rules
and regulations that govern the franchise or its use and occupancy
of the town's property and rights-of-way and the provision of service;
(14)
Any exemptions or relief from this article,
or any comparable policy, as may be granted; and
(15)
An effective date.
D.
Without limitation other than as may be established
by supersedent law, the town shall always have the right to require
additional matters, issues and subjects to be contained in a franchise
as may be reasonably deemed necessary in the interest of and to protect
the town and its residents.
A.
Upon an award of a franchise, and in accordance with
the terms of the franchise, a service provider or system owner or
operator required to obtain a franchise may construct, erect, install,
maintain, rebuild, upgrade, operate, repair, replace, remove and restore
service or a system within the geographical limits set forth in the
franchise, but only to the extent permitted by this article and the
terms and conditions of the franchise.
B.
Any franchise granted under this article shall be
solely and exclusively for wireline service, unless express written
authority and permission to use the system for the receipt or provision
of wireless service(s) is obtained from the town, and no wireless
reception or transmission equipment or facilities shall be attached
to or use the wireline system located on or using town-owned property
or rights-of-way without the express written permission of the town,
which authority must be expressly contained in any franchise.
C.
The system may be located in, upon, along, across,
over and under the streets, rights-of-way, easements and public ways
of the town as more specifically set forth in the franchise, but only
to the extent set forth in this article and the franchise.
D.
A service provider or system owner or operator shall
be solely and separately responsible for obtaining any required easements
for the use of private property, including privately-owned utility
or streetlight poles, solely at its own cost.
E.
A service provider or system owner or operator, through
a separate pole or conduit agreement with a utility or the town, may
locate the system on, or within, the easement or property of such
utility in the town, so long as the system and service is deemed a
compatible use of the easement and such use is expressly permitted
by the holder or owner of the easement.
A.
The term of an initial franchise shall be no more than 10 years from the date that a franchise is approved by the Town Board and is executed by an authorized official of the town and the affected service provider or system owner or operator. Ten years shall be the maximum term permitted absent the demonstration of the need for a longer term for financial reasons, such as, for purposes of example, the time needed to recoup the initial investment plus a reasonable return on the investment as set forth in Subsection C of this section.
B.
No franchise may contain an option to extend the term
of the franchise where such option is automatic or able to be unilaterally
exercised.
C.
The town shall not be obligated to grant a franchise
for a period of time that is greater than is necessary to recoup the
amount of any capital expended that was required by the town or as
may be agreed to during negotiations for the franchise, plus a return-on-investment
attributable to that capital investment.
D.
The permitted return-on-investment shall be as may
be agreed to in the franchise, or as may be established by the FCC
or the PSC for telecommunications utilities, or 11.5%, whichever is
less.
E.
A system owner or operator or service provider shall
be required to demonstrate to the Town Board the financial need of
the requested term of the franchise in the form of an analysis as
deemed appropriate and necessary and in reasonable detail as may be
required by the Town Board.
F.
Unless ordered or otherwise required by a court of
competent jurisdiction, or unless required by state law, the town
shall not disclose the details of financial information provided under
this section, other than to make public the length or term of the
franchise and the rate of return on capital investment used to determine
or verify the need and justification for the term granted.
G.
The term of a renewal of a franchise or the grant
of a franchise subsequent to an initial franchise to an incumbent
service provider or system owner or operator shall be for a period
of not less than 3 1/2 years, measured from the date that a franchise
is approved by the Town Board, and if required is approved by the
PSC. The maximum term shall be no more than 10 years, absent demonstration
of the financial need for a longer term as set forth in this section.
H.
In the event of the expiration of a franchise prior
to the renewal or issuance of a subsequent or different franchise
than that originally granted, unless prohibited by state law or rule,
at the discretion of the Town Board continued authority may be granted
in ninety-day increments.
A.
An application or proposal for a franchise, or for
the grant of a franchise subsequent to the expiration of a previously
granted franchise, may, at the discretion of the Town Board, be required
to include a plan to make service available to any or all residences,
dwellings, businesses and establishments located on any or all public
streets and roads throughout the town.
B.
As determined by the Town Board at its discretion,
the cost of any line extension may either be apportioned among the
subscribers and users of that line extension or, at the discretion
of the Town Board, among all subscribers and users of that system
or service provider in the town.
C.
If the town adds or incorporates additional land through annexation or any other lawful means, pursuant to Subsection A of this section, the service provider or system owner or operator serving that area may, at the discretion of the Town Board, be required to extend service to the new locations within the reasonable time frame established by the Town Board.
D.
A plan submitted or required to be submitted pursuant to Subsection A of this section that requires more than one year for completion as measured from the date of the directive of the Town Board shall be accompanied by a detailed explanation justifying the need for the additional time, which justification shall include detailed supporting evidence of the reasons for the needed additional time, as well as a date specific by which service shall be available to all residences, dwellings, businesses and establishments on any or all public streets and roads in the subject area.
E.
Town Board may grant relief from this requirement
for one or more unserved areas within the town if the applicant provides
an explanation acceptable to the town as to why a particular area
cannot be served.
Any franchise agreement that does not contain a plan for service to all occupied homes and buildings in the town, pursuant to § 146-50 of this article, shall contain a system expansion or line extension plan and schedule for areas not served as of the effective date of the franchise.
A.
For service providers or system owners or operators classified as cable operators, the Town Board shall follow all applicable rules of the FCC and the PSC, with respect to the submission and processing of initial and renewal applications or proposals for a franchise. Notwithstanding the preceding, in the event the applicant is an incumbent and proposes or requests to be permitted to allow the system to be used for the provision of service other than for cable service as defined under Section 631 (a)(2) of the Communications Act of 1934 [at 47 U.S.C. § 551(a)(2)], such application or proposal shall not be deemed a renewal application or a renewal proposal. Any proposal or application by a current holder of a cable franchise agreement with the town, and which proposal is for the provision of service or the ownership or operation of a system as defined in § 146-4 of this article shall be deemed an initial application or a renewal proposal, except as regards the provision of cable service or the use of the system to provide cable service, in which case that portion of the application related to the provision of cable service, but only that portion, shall be deemed a renewal application subject to Section 626 of the Cable Act of 1984, as amended (at 47 U.S.C 546).
B.
For service providers or system owners or operators not deemed solely cable operators, and thus subject to the rules of the FCC and the PSC as set forth under Subsection A of this section, the Town Board may develop rules with respect to the submission and processing of initial and renewal applications or proposals for a franchise. Such rules and regulations shall primarily be aimed at determining the legal, financial, technical and character qualifications of the applicant, though the town may also consider other matters deemed of importance that are not prohibited from consideration by applicable law, including, but not limited to, the applicant's or proposer's history of performance and compliance, both in the town and elsewhere.
C.
With respect to an initial application or proposal
for a franchise, an applicant shall pay an initial nonrefundable application
fee as established by resolution of the Town Board, which fee shall
be for the purpose of covering the town's fully allocated costs of
processing and analyzing the application. An application for a franchise
that permits uses of a system not expressly set forth in a previous
franchise shall be deemed an initial application for an initial franchise.
D.
An initial application for a franchise to use and
occupy the town's property and town-owned and managed rights-of-way
to provide service or own or operate a system for commercial purposes
shall place a deposit with the town in the amount of $20,000 to cover
actual costs associated with, attributable to, and necessitated by
the process.
E.
As the town would otherwise be required to deal with experts in the industry without the aid of equal expertise and knowledge, which situation creates an insurmountable disadvantage for the town and would prevent the Town Board from making truly informed decisions, the cost of outside expert assistance, including legal assistance as may be necessary, is deemed a cost associated with, attributable to, and necessitated by the process for the purposes intended by this section. At any time during the processing of an application or proposal and the negotiation of a franchise that the balance of the deposit required under Subsection D of this section is less than $5,000, then, upon notice by the town, the applicant shall be required to restore the deposit to $7,500 before further processing of the application or proposal. At the conclusion of the process, any remaining balance shall be promptly returned to the applicant.
F.
As consideration of a request for renewal of a franchise
is deemed an extraordinary cost to the town that is not part of the
normal administration of the existing franchise, then unless expressly
prohibited by federal law or rule, an applicant requesting a renewal
of its a franchise or the grant of a new franchise subsequent to the
grant of a previous one, may be required by the town to place on deposit
with the town an amount not to exceed $20,000 to cover the fully allocated
costs of processing and analyzing the application or proposal. At
the conclusion of the process, any remaining balance shall be promptly
returned to the applicant.
H.
Any application or proposal shall be accompanied by
the amount required at the time of the filing of the application or
proposal. In the event the application or proposal is not accompanied
by the required payment or deposit, the application or proposal shall
be deemed incomplete and no action shall be taken on the application
or proposal until the required deposit is received.
A.
Any service provider or system owner or operator that
is granted a franchise or the renewal of a franchise after the date
this article becomes effective shall pay to the town an amount that
is equal to the fully allocated cost of administering the franchise
for the year, which cost shall be based on the budget adopted by the
town for that year.
B.
Notwithstanding the requirement of Subsection A of this section, the town may at its discretion elect to assess a franchise fee in any amount up to the maximum amount permitted under law.
C.
The requirements of this section shall not change
the terms of payment or increase the computational formula for the
payment of a franchise fee contained in a franchise agreement in existence
and effective as of the effective date of this article.
D.
The franchise fee shall be paid on a calendar quarter
basis, unless otherwise stated in the franchise, and shall be deemed
late if received later than 45 days after the end of any calendar
quarter.
E.
Notwithstanding anything to the contrary in Subsections A or B of this section, upon the expiration of a franchise agreement in existence as of the effective date of this article that contained a smaller franchise fee than is permitted by law, the town may increase the previously required franchise fee to the maximum permitted under law, including for or during any period of continued authority pending the grant of a new or renewed franchise.
F.
If the town assesses the franchise fee as a percentage
of revenue, notwithstanding the fact that certain types of service
providers or system owners or operators may be required to remit an
annual fee to the PSC, to the extent that the payment of such annual
fee, when added to the franchise fee payable to the town, is greater
than the maximum permitted by law, and to the extent required by law,
but only if expressly required, the amount of the PSC's annual fee
shall be permitted to be deducted from the amount that would otherwise
have been permitted to be paid to the town. In the event that the
service provider or system owner or operator does not pay the annual
fee to the PSC out of gross revenue, but elects merely to collect
the fee from subscribers separately and apart from the rate for service
and other charges, and remit the amount so collected to the PSC, then
the amount remitted to the PSC shall not be permitted to be deducted
from the amount that would otherwise have been permitted to have been
paid to the town.
G.
If the town assesses the franchise fee as a percentage
of revenue, then if the FCC, Congress or any other governmental agency
with authority to establish the maximum allowable franchise fee increases
the maximum permissible franchise fee beyond 5% of gross revenue,
then upon 90 days' notice by the town to the franchisee, to protect
against the derogation of its rights, the town shall have the right
and authority to increase the franchise fee to the maximum percentage
or amount permissible.
H.
Subject to federal law, and notwithstanding anything
preceding in this section, and without limitation other than as established
by state or federal law, nothing shall limit the authority of the
town to assess and impose a franchise fee, or its functional equivalent,
on any source, portion, category or type of revenue, or to exempt
any source, portion, category or type of revenue from inclusion in
the computational base used to calculate the franchise fee or its
functional equivalent, so long as such is done in a nondiscriminatory
and competitively neutral manner with respect to competitive service
providers or system owners or operators in the town, and so long as
the fee does not exceed the maximum allowable under law.
I.
If the town assesses the franchise fee as a percentage
of revenue, then in the event the town eliminates subscriber revenue
from the revenue base used to calculate the franchise fee, or decreases
the percentage attributable to subscriber revenue, upon notice from
the town of such elimination or reduction, a service provider or system
owner or operator paying a franchise fee that is calculated on subscriber
revenue shall reduce the amount of subscribers' or users' monthly
bills to reflect the decrease starting in the subscriber's or user's
next bill.
J.
If the town assesses the franchise fee as a percentage
of revenue, then, unless expressly set forth to the contrary in a
franchise, a service provider or system owner or operator that is
required to pay a franchise fee or its functional equivalent shall
file with the town, within 45 days after the expiration of each calendar
quarter, a complete and unexpurgated income statement, together with
the basis of the calculations for the franchise fee, showing all computations
used to determine the franchise fee.
K.
The income statement required in Subsection J of this section shall be in the form and format used in Generally Accepted Accounting Principals (GAAP) and showing all incremental and individual types, categories and sources of revenue needed to ascertain the accuracy and completeness of the total payment and shall reflect the following requirements.
(1)
The income statement shall never be a synopsis of
revenue whereby different revenue sources are grouped together showing
only a single number for multiple types or sources of revenue.
(2)
The income statement shall show all revenue and other
valuable consideration from whatever source that is derived from,
or caused to be derived from, or that is attributable to the operation
of system and/or the provision of any service or use in the town,
including revenue earned from subscribers and from those who are not
subscribers but are users of the service or system.
(3)
The income statement shall be certified by an officer
of the service provider or system owner or operator attesting to the
accuracy, completeness and veracity of the revenue figures and other
information contained therein.
L.
As an alternative to the income statement requirements of Subsections J and K of this section, the system owner or operator or service provider may provide a photostatic copy of the unexpurgated Revenue Chart of Accounts applicable to the calculation of the franchise fee taken from the ledger of any person or entity who derived revenue as the term "gross revenue" is defined in § 146-4 of this article, along with a statement of certification by an officer of the system owner or operator or the service provider attesting to the accuracy and completeness of the reported revenue as relates to the payment of the franchise fee.
N.
If the payment of the franchise fee is made after the deadline set forth in Subsection C of this section, the system owner or operator or service provider may be required to pay the town interest for the entire amount owed for any period of time beyond the deadline set forth in Subsection C of this section. The interest shall be the prime rate as listed in the Wall Street Journal as of the end of the calendar quarter for which the payment is due, plus 2%, unless state law establishes a maximum permissible interest rate, in which case the rate shall be the maximum interest allowable under state law, given the facts and circumstances.
O.
In the event that the franchise fee payment is not made in full by the due date set forth in Subsection D of this section, and payment in full is not made within 30 days after notice thereof by the town, including all interest due, then in addition to the provisions of Subsection N of this section the service provider or system owner or operator may also be declared in default of the franchise and subject to all fines, penalties and sanctions permitted under law.
P.
Should the total amount owed under Subsection M of this section remain unpaid for 60 days after the date of the notification of nonpayment or late payment, then the franchise may be revoked, terminated or canceled as noted elsewhere in this article and in accordance with rights of due process.
Q.
The Town Board shall have the right from time to time to examine, audit and analyze the financial records of a service provider or system owner or operator, including any subsidiary, affiliate or parent that derives revenue as gross revenue is defined in § 146-4 of this article or to require delivery to the town true and complete copies of such records. In the alternative, the Town Board may require the delivery to the town of photostatic copies of the Revenue Chart of Accounts of any subsidiary, affiliate or parent that derives revenue as gross revenue is defined in § 146-4 of this article for the period being reviewed. If such audit, examination or analysis discovers an underpayment of the franchise fee or its functional equivalent of greater than 1% of the actual amount owed, then the service provider or system owner or operator shall reimburse the town for the cost of the audit, examination or analysis. It is specifically understood that the right of audit, examination and analysis, and the recomputation of any and all amounts paid, shall always be accorded the town.
R.
If an audit or other investigation discovers that the full amount of the franchise fee has not been paid for a period exceeding six months from the original due date, notwithstanding Subsection N of this section, then the Town Board may seek full recovery of the unpaid fees, plus interest as set forth in Subsection N of this section, and the town may demand recovery of all of the fully allocated costs incurred that are associated with and necessitated by the act of underpayment or nonpayment, including all reasonable attorney's fees and expert's fees.
S.
If the town assesses the franchise fee as a percentage of revenue, all reports due and pertaining to the remittance of the franchise fee will be certified by an officer of the service provider or system owner or operator, or its parent, and will be provided in the form, format and detail applicable to quarterly reports pursuant to Subsections J and K or Subsection L of this section. A service provider or system owner or operator shall maintain records used in the preparation of said reports for the duration of the franchise, to be produced and delivered in their totality upon request by the Town Board.
T.
No acceptance of any payment shall be construed as
a release, accord or satisfaction of any claim that the town may have
for further or additional sums payable under the provisions this article
or any franchise, or for any other performance or obligations of a
service provider or system owner or operator hereunder.
U.
Pursuant to the provisions of this article, payments
of franchise fees made to the town by a service provider or system
owner or operator, or remittances of amounts collected, shall be considered
in addition to, and exclusive of, any and all taxes, business licenses
or fees, or other fee levies or assessments.
V.
A franchise fee required of a cable operator shall
not include any items excluded by Section 622(g)(2)(D) of the Cable
Act [codified at 47 U.S.C. § 542(g)(2)(D)]
W.
Nothing in this section shall limit the authority
of the town to require the payment of a fee or other assessment of
any kind, by any third-party person or entity who provides service
over or using a system in the town for which charges are assessed
to subscribers or users, but which charges are not received by a service
provider or system owner or operator who has been granted a franchise.
For purposes of illustration, this shall include situations where
a provider of a particular service using an OVS system directly bills
a subscriber or user, or when the service provider or system owner
or operator acts as collection agent for a third-party provider of
a particular service when the third-party service provider directly
bills subscribers or users, or where a third-party person leases a
channel for commercial purposes and receives revenue directly or through
a third party.
X.
For any twelve-month period, the franchise fees paid by any person who provides service pursuant to Subsection W of this section shall not exceed 5% of such person's gross revenue derived in such period from the provision of service in the town, or the maximum permitted by law or rule at any time.
Y.
Notwithstanding anything in this section, in the event
a service provider or system owner or operator does not pay the franchise
fee itself out of gross revenue, but instead chooses to pass the franchise
fee through to subscriber or users, incrementally and in addition
to the amount owed for service, so that the effect is that the franchise
fee is paid by the subscriber or users and not the service provider
or system owner or operator out of gross revenue, and is merely collected
and remitted by the service provider or system owner or operator,
then, in such an instance, the service provider or system owner or
operator shall not be permitted to deduct the franchise fee from what
is owed for property taxes, or any other taxes or money, due the town
if otherwise permitted.
A.
Pursuant to Section 253 (c) of the Telecommunications
Act of 1996, the town reserves and preserves the right to assess,
impose and collect rent or a right-of-way use and occupancy fee from
any service provider or system owner or operator occupying and using
the town's property and the town's rights-of-way for commercial purposes.
B.
If assessed, the town shall at all times diligently
attempt to assure that the imposition of rent or a right-of-way use
and occupancy fee is done on a nondiscriminatory and on a competitively
neutral basis.
C.
The amount of rent or the right-of-way use and occupancy
fee shall not be less than the fair market value of the town's property
and rights-of-way that are used and occupied for commercial purposes,
as determined by the Town Board; nor shall the amount of rent or the
right-of-way use and occupancy fee exceed the fair market value of
the town's property and rights-of-way that are used and occupied by
a service provider or system owner or operator for commercial purposes,
as determined by the town's assessor or another qualified individual
as may be designated by the town.
D.
An assessment pursuant to this section shall be based upon either the fair market value of like or similar property adjacent to the town's property or rights-of-way that are used and occupied by the service provider or system owner or operator serving that portion of the town, or the average fair market value of commercially zoned property within the town that is used and occupied for commercial purposes as determined by ascertaining the average or mean value for the preceding three years, or up to 5% of the gross revenue of the service provider or system owner or operator as gross revenue is defined in § 146-4 of this article, whichever is greater. The Town Board shall make the determination which of the alternatives set forth in this subsection it chooses to use, but the town may use only one of the three alternatives and never a combination of such.
E.
Notwithstanding anything to the contrary in this section,
the town may negotiate with a service provider or system owner or
operator for the in-kind provision of services or other valuable consideration
in lieu of all or a portion of the amount that would otherwise be
required to be paid. However, the town shall not be obligated to grant
this option to any service provider or system owner or operator, so
long as it applies this authority in a manner among like or similar
service providers that is nondiscriminatory and competitively neutral
in effect with respect to the value received by the town.
F.
In the event the town elects to determine rent or
a right-of-way use and occupancy fee using a percentage of gross revenue,
the requirements of Subsections J through X of the previous section
shall apply.
G.
All payments of rent or a right-of-way use and occupancy
fee shall be quarterly on a calendar year basis, unless otherwise
expressly set forth in the franchise.
A.
There shall be no assignment of a service provider's or system owner's or operator's franchise, in whole or in part, nor shall there be any change in the ownership, or the legal or financial control, of the service provider or system owner or operator, or of any parent or controlling entity, whether control is direct or indirect, or where such change results in any change in control of the system or the facilities used to provide service, or of the holder of the franchise, whether such change in control is direct or indirect, de juri or de facto, nor shall there by any change in control or ownership of the system's facilities and components, without the prior express written approval and consent of the Town Board. "Control" and "change in control" shall have the meanings set forth in § 146-4 of this article.
B.
A service provider or system owner or operator classified
as a cable operator shall have its franchise assigned, transferred
or sold only in accordance with the Cable Act of 1984, as amended,
and with applicable FCC rules and state law, rules and regulations.
C.
For all service providers or system owners or operators subject to this section, including those classified as cable operators, the franchise shall be assigned, transferred or sold, or control changed, only as described in Subsection A of this section, and only after the Town Board determines that the proposed transferee or controlling entity can and will meet all obligations contained in the existing franchise, unless granted separate and deliberate relief is granted as part of the transfer request process.
D.
No franchise approval of request for transfer or change
in control shall occur with outstanding, uncured violations of this
article or breaches of the franchise, and until all money that may
be owed the town has been paid in full.
E.
In the event the Town Board, at its sole discretion,
elects to approve a request for change in ownership or control contingent
upon the transferee or assignee accepting responsibility for outstanding
or uncured violations of this article or breaches of the franchise,
the Board may require the assignee or transferee to post sufficient
security to assure that the violations and/or breaches are remedied
and cured as required.
F.
Mergers or consolidations shall require the consent of the Town Board pursuant to Subsection A of this section.
G.
The sale of the system or the sale of any business
associated with the operation of the system or the provision of service
shall require the prior consent of the Town Board.
H.
Any Assignment, change in control or sale as set forth
in this section that occurs without the prior written consent of the
Town Board shall constitute a violation of this article and a default
of the franchise, and may, at the discretion and in the judgment of
the Town Board, subject the franchise to revocation and other sanctions
or penalties as permitted under law.
A.
In the case of any procedure concerning or involving
the default, involuntary termination, revocation, unilateral alteration
or suspension of a franchise granted or enforceable under this article,
the Town Board shall follow the rules and procedures set forth in
this section, unless expressly prohibited or preempted by state law
or rule. Such action may be in addition to the payment of fines and/or
the imposition of penalties, unless otherwise deemed impermissible
under applicable law.
B.
When an act of evasion, avoidance or omission, or
the failure to comply with a time-related or performance-related requirement
of this article or the franchise is committed by a service provider
or system owner or operator which represents a material violation
of a provision of this article or the franchise, or compromises the
corporate character, or legal, financial or technical ability, integrity
and/or stability of the service provider or system owner or operator
to such a degree that the interests of the subscribers and users or
the town are substantively affected in a negative manner, then such
violation, breach, act of evasion, act of avoidance or omission shall
be considered a material violation of this article and breach of any
franchise granted or enforceable hereunder. Under such circumstances,
the town shall notify the affected service provider or system owner
or operator, in writing, of the specific violation or breach, and
direct the service provider or system owner or operator to remedy
the breach or violation in accordance with the provisions of this
article.
(1)
For illustrative purposes only, violations, breaches,
acts of evasion or avoidance and omissions include, but are not limited
to: bankruptcy, insolvency, failure to pay taxes or pay franchise
fees or the functional equivalent, including a rent or right-of-way
use and occupancy fee, or repeated failure to comply with the provisions
of this article or a franchise, after proper notice, showing a pattern
of failure or refusal to abide by the terms and conditions of the
franchise or the provisions of this article.
C.
Where a service provider or system owner or operator
corrects any violation or breach to the satisfaction of the Town Board
or as required in this article or a franchise within 30 days after
notification by the town, and where the situation does not involve
the repeat of a type of violation for which the service provider or
system owner or operator has previously received notice within the
past 24 months, then the procedure provided for under this section
shall cease, and the enumerated condition shall not be considered
in any subsequent compliance or performance review, so long as it
has not been repeated.
D.
Notwithstanding anything to the contrary in Subsection C of this section with respect to the thirty-day cure period, to protect the health and safety of the public, at the discretion of Town Board, violations of construction-related or safety-related requirements may be required to be corrected, eliminated or otherwise cured in less than 30 days.
E.
A copy of the notice of violation or breach shall
also be mailed to the surety of the system owner or operator or service
provider.
F.
Within 60 days, but in no case sooner than 30 days,
after the written notice is mailed, the Town Board or the Administrator
may conduct a hearing on the matter, unless state law requires a different
procedure, in which event the state-mandated procedure shall control.
G.
The Town Board shall provide written notice of the
date, time and place of the hearing at least 30 days prior to the
hearing to the affected service provider or system owner or operator.
H.
At the time of the hearing, the service provider or
system owner or operator, or its representative or legal counsel,
may present information on the current status of the alleged violation
of this article or breach of the franchise; and present arguments
as to why the situation is not a violation or breach, including evidence
in support of such an argument; and why the service provider or system
owner or operator should not be subjected to sanctions as permitted
under this article and applicable state law. If the situation has
been resolved, or meaningful and substantive steps are being taken
to resolve the situation, then the service provider or system owner
or operator shall present such information at the hearing.
I.
If the service provider or system owner or operator
fails to attend the hearing and has not requested and been granted
a continuance of the hearing, then the service provider or system
owner or operator shall be deemed to have waived its right to a further
continuation of the matter, and may be declared in violation of this
article or in breach and default of the franchise based on the evidence
available at that time.
J.
After the public hearing, the Town Board or Administrator
may:
(1)
Determine the service provider or system owner or
operator to be in compliance and dismiss the matter, with or without
prejudice;
(2)
Determine that the service provider or system owner
or operator has adequately remedied and cured any violation or breach
and thereby dismiss the matter; or
(3)
Determine that a violation has been committed and
remains unremedied and uncured.
K.
Upon a finding that the service provider or system
owner or operator violated this article or committed a breach of a
material provision of the franchise that resulted in a violation of
this article, and failed to remedy and adequately cure the violation
of this article or material breach of the franchise, the Town Board
or the Administrator may direct the service provider or system owner
or operator to take corrective action to eliminate, remedy or cure
the violation or breach within a specified period of time; or may
for sufficient cause declare the service provider or system owner
or operator in default of the franchise. The Town Board, and only
the Town Board, thereafter may revoke, terminate or cancel the franchise
pursuant to this section, unless the service provider or system owner
or operator complies with the directive or order of the Town Board
or the Administrator, or presents sufficient mitigating circumstances
that, at the discretion of the Town Board or the Administrator, warrant
less severe or extreme measures.
L.
If the Town Board or the Administrator directs corrective
action to take place within a specified period of time, or declares
the service provider or system owner or operator in default of the
franchise, then the directive or declaration shall be committed to
writing and the notice of corrective action or default shall be mailed
within 21 days of the action of the Town Board or the Administrator
to the service provider or system owner or operator and to its surety.
M.
If, within the time set forth in the order or directive,
the service provider or system owner or operator, or its surety, has
not complied with the order or directive, or submitted a plan detailing
how the service provider or system owner or operator will comply with
the order or directive as given, or has not paid any amount due, including
proposing an alternative time frame for compliance as may be acceptable
to the Town Board at the Board's sole discretion, then the Town Board
may impose fines or penalties as set forth in this article, or in
the extreme may terminate and revoke the service provider's or system
owner's or operator's franchise and, unless there are further mitigating
circumstances, shall notify the affected service provider or system
owner or operator and its surety of such action.
N.
In the event fines are imposed, the compliance or
performance security placed with the town may be used to collect the
fines and the town may take such action as is required to call on
or draw against the security.
O.
In the event of the termination and revocation of
the franchise, simultaneously or within seven days after notification
of such action, the Town Board or the Administrator shall notify the
service provider or system owner or operator and its surety that any
security is forfeited. The town may then take such action as is required
to collect on the security.
P.
If deemed appropriate by the Town Board or the Administrator
given the facts and circumstances, the town may call for the security
in further settlement of the matter.
A.
The town shall periodically monitor the compliance
of service providers or system owners or operators who are subject
to the requirements of this article in whole or in part. Prior to
the conduct of an evaluation, the Town Board or the Administrator
shall establish a procedure for such purpose and shall provide the
procedure to the service provider or system owner or operator. Included
in a compliance review may be an examination to determine whether
a service provider or system owner or operator still has the financial,
technical, legal and character qualifications necessary to operate
a system and/or offer service in the town. Such review shall also
include an examination to determine if the operational, maintenance
and performance levels meet the minimum requirements of this article.
Compliance reviews may be conducted every three years, or more frequently
if deemed necessary and appropriate due to subscriber or user complaints,
or complaints from the public, or due to reasonable evidence of violations
of this article or material breaches of the franchise. However, no
compliance review shall occur more than once in any three-hundred-sixty-five-day
period.
B.
If, as a result of any investigation, evaluation or determination permitted under this section, the Town Board or the Administrator determines that the service provider or system owner or operator has not complied with one or more provisions of this article for which relief has not been granted for the period covered by the review, irrespective of whether or not the violation can be corrected, eliminated, remedied or cured, then the Town Board or the Administrator may require the service provider or system owner or operator to reimburse the town for all actual fully-allocated costs incurred by the town that are necessitated by such violation(s) or act(s) of noncompliance, evasion or avoidance. Any matter of noncompliance or act of evasion or avoidance for which relief has not been properly requested and granted pursuant to § 146-7 of this article, shall be deemed a violation of this article.
C.
Notwithstanding Subsection B of this section, the Town Board or the Administrator shall give the service provider or system owner or operator an opportunity either to:
(1)
Correct, eliminate, remedy or cure any violation or
act of noncompliance, evasion or avoidance;
(2)
Submit documentation or supporting evidence that resolves
any area of noncompliance or act of evasion or avoidance to the satisfaction
of the Town Board or the Administrator; or
(3)
Explain the lack of effect of such to the satisfaction
of the Town Board or the Administrator.
D.
The period of time allowed for the elimination of
any violation or act of noncompliance, evasion or avoidance that can
be corrected or eliminated shall be set by the Town Board or the Administrator,
which period of time may not be unreasonable taking into account whether
such act of noncompliance, evasion or avoidance was one of a first-occurrence
or is a repeat of the same or similar act of noncompliance, evasion
or avoidance, as well as the seriousness of the situation, including,
but not limited to, the impact or potential impact on the health,
safety and welfare of the town, its residents or both.
E.
To serve as an incentive for compliance with this
article and the intent thereof, if any violation of this article that
is identified pursuant to this section cannot be eliminated due to
the nature of the violation, including, but not limited to, the passage
of time or the inability to undo an act of omission, evasion or avoidance,
unless expressly prohibited by state law, the inability to eliminate
or undo the violation shall not relieve or eliminate the obligation
of the service provider or system owner or operator to cure any violation
as such cure may be reasonably determined by the Town Board or the
Administrator, including, but not limited to, a financial cure.
F.
If the service provider or system owner or operator
fails to correct or resolve an area of noncompliance in a timely manner,
as such is determined by the Town Board or the Administrator, which
period of time may not be unreasonable taking into account whether
such act of noncompliance, evasion or avoidance was one of a first-occurrence
or is a repeat of the same or similar act of noncompliance, evasion
or avoidance, and the seriousness of the situation, including, but
not limited to, the impact or potential impact on the health, safety
and welfare of the town, its residents, or both, or fails in a timely
manner to provide an explanation that demonstrates the lack of culpability
of the service provider or system owner or operator, then such failure
may be treated as a material violation of this article and subject
the service provider or system owner or operator to the appropriate
sanction of the Town Board as permitted under this article and applicable
state and federal law. Such action or sanctions may, at the discretion
of the Town Board or the Administrator, include the imposition of
fines and penalties as set forth in this article, and as permitted
by state law.
G.
Notwithstanding anything contained in the preceding
subsections of this section, the elimination, remedy or correction
of a violation shall not de facto serve to eliminate the imposition
of fines and penalties under this article. Rather, such shall serve
to protect a service provider or system owner or operator from the
further and continued accrual of fines and penalties under this article
for the same violation.
A.
To the extent permitted by law, the Town Board expressly
reserves the right to regulate the rates for service and the nonregularly
occurring charges of a system owner or operator or service provider
operating within the town.
B.
Before the Town Board exercises any authority to regulate
rates or charges and impose, approve, disapprove or order the change
of any rates or charges, or order a refund or rebate, the Town Board
must conduct a public hearing in which to allow an affected service
provider or system owner or operator, and any other interested party,
an opportunity to be heard and express his or her views concerning
the matter, and to introduce evidence in support of or opposition
to the contemplated or proposed action.
C.
After due process has been afforded a service provider
or system owner or operator, if the Town Board requires a refund or
credit to be given to subscribers or users, then, if any payment made
to the town during the period involved was based on gross revenue
or some portion of gross revenue, and the service provider or system
owner or operator actually paid the fee or other payment out of its
revenues and did not merely collect the fee or other payment from
the subscribers or users excluding it from the gross revenue calculation
and remit it to the town, the service provider or system owner or
operator shall be eligible for a credit against its next fee payment
to the town in an amount equal to the amount of the ordered refund
or credit. Nothing shall limit the authority of the Town Board to
issue such credit against the fee owed to the town over several payment
periods.
D.
Rates or charges paid by subscribers may not reflect
any cost incurred in the course of eliminating or curing any violation
of this article, or any breach or violation of the franchise, including
any fines or penalties imposed because of such violation or breach,
or any settlement arising out of any violation or breach, by a service
provider or system owner or operator, as it was not the subscribers
who violated the law or breached the franchise. The burden of such
costs is to be solely that of the owners or stockholders.
A service provider or system owner or operator
required to provide PEG access channels in the town may be required
to interconnect its service or system, through any permissible means,
to any other service or system operating within the town so that all
public, educational and governmental access programming may be provided
to all subscribers or users in the service area.
A.
This article may be enforced by the Town Attorney
or Attorney for the town, the Town Board, and if applicable the Administrator.
In addition to all other rights and powers vested in and possessed
by the town, the Town Board reserves the right to seek fines and/or
penalties, if required by state law, in the lowest court of competent
jurisdiction in the town.
B.
Notwithstanding the preceding Subsection A of this section, and if permitted by state law, the town reserves for itself the right to assess fines and/or penalties for any violation of this article, or any attempt to evade or avoid compliance with the requirements of this article, or for the failure of a service provider or system owner or operator to comply with any applicable time-related or performance-related requirements, or for the violation of any federal, state or local law, rule or regulation that is not specifically preempted from local enforcement, and, in the event such violation, evasion, avoidance or failure has not been remedied pursuant to procedures set forth in this article, to impose and assess fines or penalties as set forth in this section.
C.
Any imposition of fines or penalties shall be preceded
by written notice of the violation, and shall set forth the amount
of time allowed for the elimination of the violation if elimination
is reasonably practicable. Violations of the same or similar type
and of a substantive number, but occurring at different locations
or involving different persons, subscribers or users, shall not require
individual notification but may be referenced by type of violation.
D.
Absent good and just cause, including the provision
of evidence of good faith efforts to comply with the requirements
of this article, the failure by a service provider or system owner
or operator to comply with any time-related or performance-related
requirement of this article, or an act of evasion or avoidance of
the requirements of this article, will subject the service provider
or system owner or operator to the assessment and imposition of fines
or penalties as set forth in this section. Once imposed, any fines
or penalties shall continue to accrue, including during any appeals
process, until such time as the payment of the fine and/or penalty
is received by the town, or is otherwise specifically waived by the
Town Board.
E.
Failure to pay fines and/or penalties within the time
provided shall be a material violation of this article and shall be
cause to proceed against either a letter of credit or bond or other
surety as may have been required. Failure to pay any fines under this
section shall also constitute cause to revoke any franchise or other
use, occupancy or operating authority granting permission to provide
service in the town.
F.
A service provider or system owner or operator found
to be in violation of this article may be fined and penalized according
to the following list of violations and schedule of fines and penalties
for the violations listed. If permitted by state law, the Town Board
reserves the right for the Town Board to fine and penalize any service
provider or system owner or operator found to be in violation of this
article according to the following list of violations and schedule
of fines and penalties for the violations listed.
G.
Each instance or occurrence shall be deemed a separate
violation, and each day or part thereof following written notification
by the town and the expiration of any period of time allowed for the
elimination, remedy or cure of the violation that the violation continues
or is not eliminated, remedied or cured as prescribed by the Town
Board, shall be deemed a separate violation, punishable separately.
The imposition and payment of fines and penalties as set forth in
this section shall not serve to extinguish or eliminate any other
rights of prosecution the town may have under law.
(1)
For failure to complete any system construction, reconstruction
or upgrade in any section of the town, or in the town as a whole,
as committed to pursuant to in a proposal or franchise, an amount
not to exceed $200.
(2)
For failure to obtain a street cutting permit prior
to the cutting or disturbance of any street, an amount not to exceed
$500.
(3)
For failure to comply with the privacy requirements
as set forth in this article, an amount not to exceed $500 for the
first violation or offense, and $1,000 for each subsequent offense
after notification of the first offense.
(4)
For failure to provide any data, documents, reports
or information required by this article, or that is needed to monitor
or determine compliance with and to administer this article, an amount
not to exceed $100.
(5)
For failure to test, analyze and report on the performance
of the system following a written request to do so, an amount not
to exceed $200.
(6)
For refusal to cooperate with the town on any matter
involving an inspection of the system and its components and facilities,
an amount not exceed $100.
(7)
For failure to comply with any consumer protection
requirements of this article or a franchise, an amount not to exceed
$100.
(8)
For failure to comply with any requirements regarding
deposits and the return of deposits as set forth in this article,
an amount not to exceed $100 per day, per incident or per affected
subscriber or user.
(9)
For failure to comply with any requirements regarding
the improper or impermissible discontinuance or disconnection of a
subscriber's or user's service as set forth in this article or a franchise,
an amount not to exceed $100.
(10)
For failure to comply with any requirements
regarding connections and disconnections as set forth in this article
or a franchise, an amount not to exceed $100.
(11)
For failure to comply with any requirements
regarding disconnection and downgrade fees as set forth in this article
or a franchise, an amount not to exceed $100.
(12)
For failure to comply with any requirements
regarding penalties for downgrade or disconnection as set forth in
this article or a franchise, an amount not to exceed $100.
(13)
For failure to comply with any requirements
regarding any right of rescission as may be set forth in state law,
or in a franchise, an amount not to exceed $500.
(14)
For failure to comply with any requirements
regarding the use and display of identification passes and badges
as set forth in this article, an amount not to exceed $50.
(15)
For failure to comply with any requirements
regarding completion, cleanup and proper installation as set forth
in this article, an amount not to exceed $100.
(16)
For failure to comply with requirements regarding
subscribers or users being advised in writing of specific procedures
and policies as set forth in this article, an amount not to exceed
$50.
(17)
For failure to maintain a public inspection
file as required by this article and FCC rules, an amount not to exceed
$100.
(18)
For failure to meet any construction or safety-related
requirements of this article, including fire and electrical codes,
an amount not to exceed $200 per violation.
(a)
For reasons of impracticability and excessive,
unreasonable and unnecessary cost to the town, in the event that a
substantial number of safety-related violations are found during an
inspection of a system within the town, such being defined as more
than 10 in one continuous or contiguous mile of the system within
the town, the town shall not be required to notify a service provider
or system owner or operator of each and every individual safety or
safety-related violation. Rather, in such an instance, the town may
reasonably assume the findings to be prima facie evidence that the
situation is town-wide and order the entire system to be inspected
by the service provider or system owner or operator for either construction
or safety-related violations, and order that all such violations found
shall be eliminated within 30 days of the date of notification by
the town.
(b)
In the event of a situation described in Subsection G(18)(a) of this section, any fines imposed shall be calculated using the following formula:
|
Number of Violations Found
Miles of System Inspected
|
X
|
Total Miles in the Town = Total Violations
|
(c)
As these issues are of paramount concern to
the town, and as noncompliance with these requirements is normally
deliberate, if the town is forced to notify a service provider or
system owner or operator of construction or safety-related violations,
the mere elimination of such violations within the required period
of time contained in the notice shall not relieve an offending service
provider or system owner or operator from the payment of fines imposed
under this section. Fines for construction and safety-related violations
shall accrue starting 48 hours after notification by the town of the
existence of the violations, and shall continue until the service
provider or system owner or operator certifies to the town in writing
that all construction and safety-related violations associated with
its system in the town have been eliminated.
(d)
In the event a subsequent reinspection reveals that specific previously identified violations still exist, the fines may be doubled and shall accrue from the date of the first notice required pursuant to Subsection G(18)(c) until the elimination of the violation is verified.
(e)
Notwithstanding Subsection G(18)(c) of this section, no fine or penalty shall be imposed on a service provider or system owner or operator for any construction or safety-related violation where it is proven that the violation was caused by the actions of a third party, provided that proof is provided of a demand by the service provider or system owner or operator to the party having caused the violation to eliminate the situation, including a diligent pursuit of the demand if necessary.
(f)
In order to verify and assure continued compliance with all applicable construction and safety-related requirements, within a reasonable amount of time after the period of time set forth in the town's notice for the elimination of all construction or safety-related violations as set forth in Subsection G(18)(c) of this section, but in no case sooner than 35 days after the date of the notice of violation, the town shall have the system within the town reinspected by a party experienced in such inspections and that has no affiliation of any kind with any member of the industry.
(g)
As the cost of a reinspection under Subsection G(18)(f) of this section is an extraordinary expense to the town caused by the impermissible actions of a service provider or system owner or operator, and is not deemed a normal cost of administering this article or a franchise, to prevent the taxpayers from having to bear the financial burden, the town may require the service provider or system owner or operator to place on deposit with the town an amount deemed to be reasonably sufficient to cover the cost of reinspecting 20% of the system within the town on a random sample basis and generating a written report on the findings of the inspection. The amount of the deposit shall not be less than $10,000, and any amount not expended shall be promptly returned to the service provider or system owner or operator.
(19)
For failure to pay the full and complete amount
of any money owed the town, including any interest that may be owed,
an amount not to exceed $100.
(20)
For failure or refusal to place or restore performance
and completion securities as required, an amount not to exceed $100.
(21)
For failure to comply with the requirements
of this article with respect to continuity of service, or for threatening
to discontinue service, for each day or part thereof that such noncompliance
continues or such threat is not removed in writing to the town following
written notification by the town of the violation, an amount not to
exceed $1,000.
(22)
For failure to comply with any other section,
subsection or provision of this article, or a franchise, an amount
not to exceed $50.
H.
Notwithstanding anything in the preceding subsections
of this section or any other section of this article, unless otherwise
formally granted relief or a waiver by the Town Board or the Administrator,
or unless a longer period of time is permitted after the initial 48
hours following notification by the town to the service provider or
system owner or operator that a violation exists, each day that a
violation continues shall constitute and be deemed a separate violation
and may be treated as a separate offense.
I.
Notwithstanding the provisions contained in this section
of this article, a service provider or system owner or operator shall
not be subject to penalties, fines, forfeitures, revocation or involuntary
termination of a franchise for a technical violation of this article
or a technical breach of a franchise. For purposes of this article,
technical violations or breaches include the following:
(1)
Instances or matters where a violation of this article
or, where applicable, a franchise was a good faith error that resulted
in no negative impact on the residents, subscriber or users within
the town, or on the town itself, or where such violation resulted
in de minimus effect on any of the preceding persons or the town;
or
(2)
Instances or circumstances that are reasonably beyond
the control of a service provider or system owner or operator, including
force majeure situations, and that prevent a service provider or system
owner or operator from complying with this article or the franchise.
J.
In the event of an appeal arising out of the enforcement
of this section, or in the event of litigation arising out of a dispute
regarding the enforceability of any action taken by the town under
this section, the service provider or system owner or operator shall
not be excused from the prompt and timely payment of fines and/or
penalties as set forth in this section during the course of such proceeding.
Payment of fines and/or penalties in such an instance shall be placed
in an escrow account by the town, pending the resolution and decision
of the adjudicating entity.
K.
Notwithstanding anything in this section, or any other section of this article, and given the right of a service provider or system owner or operator to request relief from any provision of this article under § 146-7 of this article, a service provider or system owner or operator may not use the payment of fines and/or penalties to evade or avoid compliance with this article or any section of this article. An attempt to do so shall subject the service provider or system owner or operator to a fine not to exceed $10,000 for the first occurrence, and for a second such occurrence termination and loss of the franchise and a fine of $100,000.
A.
For the failure to comply with a time-related or performance-related
requirement of this article which the town deems sufficient to warrant
sanctions, the town shall provide notice and an opportunity to eliminate,
remedy or cure.
B.
Notwithstanding anything to the contrary in Subsection A of this section, or any other subsection of this section, to incent the protection of the public health and safety and the safety of public and private property, for situations involving violations of construction and safety-related codes and requirements where such are deemed to create an imminent threat or danger to lives or property within the town, and for which the service provider or system owner or operator has previously been notified of the same or similar situations in the previous 36 months, the service provider or system owner or operator shall be notified, but may not be granted an opportunity to remedy or cure prior to the imposition of fines and/or penalties. Rather fines and/or penalties may be assessed and imposed after proper written notice on a per occurrence per day basis, until the violation(s) is eliminated.
C.
Notice and the opportunity to cure, as required, shall
be provided to the service provider or system owner or operator in
writing, and shall be sent by certified U.S. mail, return receipt
requested, or may be personally delivered to the service provider's
or system owner's or operator's local place of business.
D.
A service provider or system owner or operator may request a hearing on the matter addressed in the notice required in Subsection A of this section, or the town may call a hearing on the matter. At the discretion of the Town Board, the hearing may be held before the Town Board or the Administrator.
E.
Public notice shall be given of the hearing and of
the issues that are to be considered by the town.
F.
The Town Board or the Administrator or a designated
hearing officer shall, at the date, time and place designated for
the hearing, hear and consider issues from the town and the service
provider or system owner or operator and make a determination regarding
the alleged violation of this article or any franchise.
(1)
The Town Board or the Administrator or a designated
hearing officer shall hear and consider the matter, including hearing
any person interested in the matter wishing to be heard, and review
and consider any relevant evidence. After affording the service provider
or system owner or operator required rights of due process to be heard,
to present relevant evidence and witnesses and to question any witnesses,
the Town Board shall determine, based on a preponderance of the evidence,
whether or not there was committed a breach or violation of a time-
or performance-related requirement of this article, or a breach of
a term or condition of franchise, or a violation of any federal or
state, law, rule or regulation or local law, regulation or code not
expressly prohibited from local enforcement. The town shall have made
a transcript of the hearing.
(2)
The service provider or system owner or operator may,
at its own expense, make a transcript of any such hearing, or it may
share the costs of obtaining a transcript of such hearing equally
with the town.
(3)
At the hearing, the town and the service provider
or system owner or operator may present evidence relevant to the issues
being heard, including the right to call and examine and cross-examine
witnesses.
(4)
Within 30 days following the completion and close
of the hearing, the Town Board or the Administrator or the hearing
officer shall issue a written decision as regards whether any failure
to comply with any time-related or performance-related requirement
or act of evasion or avoidance of this article, or breach of a term
or condition of the franchise, or violation of any federal or state,
law, rule or regulation, or local law, regulation or code occurred.
Such determination shall be based upon a preponderance of the evidence
presented as contained in the record of the proceeding, stating with
particularity the reasons for the decision.
(5)
Within 30 days after the issuance of a decision, the
Town Board shall then take formal action, either dismissing the claim
of violation or breach or finding that the service provider or system
owner or operator did commit the alleged violation or breach and did
not cure or eliminate such as required. The Town Board's formal action
shall be in writing and a copy of such shall be provided to the service
provider or system owner or operator.
(6)
Should the Town Board, the Administrator or the hearing officer find that no breach, violation or failure to comply or perform occurred, or, except for situations addressed in Subsection B of this section, that the service provider or system owner or operator remedied the violation or failure prior to or by the end of the period allowed for cure, or that the service provider or system owner or operator instituted substantial and meaningful good faith actions to remedy the failure to comply or perform after having been provided written notice, and actively and expeditiously started and undertook substantial and meaningful efforts to complete the remedy as directed by the Town Board, all of which shall be determined at the sole discretion of the Town Board, the proceedings shall be terminated and no penalty shall be imposed.
(7)
The Town Board shall be required to base its decision
on a preponderance of the evidence from the record established during
the hearing. If the Town Board determines that a failure to comply
with any time- or performance-related requirement of this article,
or any act of evasion or avoidance of this article, or breach of a
term or condition of the franchise, or of any federal or state law,
rule or regulation or local law, regulation or code was the fault
of the service provider or system owner or operator, and was within
its control, subsequent to the required notice and opportunity to
cure and due process requirements of this article, the Town Board
may determine whatever action it deems appropriate as may be permitted
under this article and the franchise. The Town Board's decision shall
be final and no other remedies, administrative or otherwise, nor any
procedures for such, are provided under this article.
(8)
Prior to the imposition of any penalty or sanction against a service provider or system owner or operator, but not including fines as previously set forth in this subsection, the town shall provide the service provider or system owner or operator notice and opportunity to cure in accordance with the following Subsection F(8)(a) and (b).
(a)
The town shall provide the service provider
or system owner or operator with written notice specifying the nature
of the failure, breach, violation or act of evasion or avoidance.
The service provider or system owner or operator shall have a period
of 48 hours following the receipt of such notice to cure or satisfy
the alleged failure, breach or violation, with the exception of safety
situations.
(b)
In the event the Town Board or the Administrator concludes that the service provider or system owner or operator has failed to comply with its obligations under this article or the franchise, and that the service provider or system owner or operator has not remedied such failure, violation, act of avoidance or evasion or breach within the period set forth in the notice set forth in the preceding Subsection F(8)(a) after having received written notice, the Town Board may pursue whatever additional penalties or sanctions are provided for under state law, including civil or criminal prosecution.
G.
The amount of time given the service provider or system
owner or operator to cure any violation of this article, or any violation
of any federal or state law, rule or regulation or other local law,
regulation or code shall be at the discretion of the Town Board to
the extent not otherwise governed by this article or state or federal
law, but in no event shall a service provider or system owner or operator
be given less than 48 hours, unless otherwise dictated by an emergency
situation posing an imminent threat to the health and safety of individuals
or the safety of public or private property. Notwithstanding the preceding,
or anything else in this section or anywhere in this article, in the
event a violation of the construction- or safety-related requirements
of this article endangers, or has the reasonable possibility of endangering,
the health or safety of individuals or the safety of property, the
forty-eight-hour elimination period may be lessened and the elimination
of the violation may be required the same day, depending upon the
seriousness of the matter as a factor of the degree of danger involved
or the imminence of injury or damage to property. Notwithstanding
the preceding portion of this subsection, any lessening of the forty-eight-hour
period shall be solely for purposes of eliminating the danger or threat,
and shall not enable the town to impose fines during such shorter
period.
H.
The town may, in its reasonable discretion, grant
extensions of time to a service provider or system owner or operator
to eliminate, cure or remedy, where extraordinary circumstances not
precipitated by the service provider or system owner or operator warrant
an extension.
I.
Notwithstanding any notice and opportunity to cure
requirements of the applicable federal or state law, the issuance
of two or more notices to cure or eliminate or remedy a violation
for the same or similar provisions or requirement of this article,
or two or more breaches of a term or condition of a franchise that
constitute a violation of this article or an act of evasion or avoidance
of the requirements of this article, or two or more violations of
any federal or state law, rule or regulation or other local law, regulation
or code within any twelve-consecutive-month period may be deemed a
pattern of behavior that demonstrates an intent to continue violating
this article and thereby relieve the town of any obligation to provide
further notice and opportunity to cure for subsequent failures to
meet the requirements of this article, or for breaches of terms or
conditions of a franchise or violations of federal or state law, rule
or regulation or other local law, regulation or code. Evidence of
subsequent failures as set forth in this subsection shall be admissible
as evidence in a hearing before the Town Board or the Administrator,
or a designated hearing officer, regarding the assessment of fines
and/or penalties, provided that the town has provided such evidence
to the service provider or system owner or operator at least 10 days
prior to the hearing and the service provider or system owner or operator
has an opportunity to be heard at the hearing and to present evidence
in contravention of the charge(s) or in defense of its actions.
J.
A notice of intent to assess fines and/or penalties
may be issued concurrently with a notice to cure. If a notice of intent
to assess fines and/or penalties is issued concurrently with a notice
to cure, then fines and penalties, if assessed, will accrue commencing
with the expiration of the time allowed for an opportunity to cure
as set forth in the notice. The notice of intent to assess fines and/or
penalties shall state the reason for the assessment and imposition,
and shall inform the service provider or system owner or operator
that fines and/or penalties will be assessed from the date of the
notice, or the end of the time allowed for an opportunity to cure,
whichever is later.
K.
If the service provider or system owner or operator
desires to appeal the town's imposition of fines and/or penalties,
it must file a written notice of appeal with the Supervisor or the
Administrator, delivered by certified U.S. Mail/return receipt requested,
within 10 days of the receipt of the notice of intent to assess fines
and penalties. The Supervisor or Administrator shall then place the
issue before the Town Board.
L.
The town shall then have served upon the affected
service provider or system owner or operator, by certified U.S. Mail/return
receipt requested, a written notice of the date, time and place of
the meeting at least 15 days prior to the date of the meeting of the
Town Board at which the matter will be heard.
M.
Public notice shall be given of the meeting and of
the issue that is to be considered by the Town Board. If the franchisee
or other service provider or system owner or operator fails to appeal
the town's assessment or imposition of fines and/or penalties within
the time required by this section, the town's decision to assess fines
and/or penalties shall be final.
N.
The Town Board shall, at the date, time and place
designated for the hearing, hear and consider issues from the town
and the service provider or system owner or operator and make a determination
regarding the alleged violation of this article or any franchise.
(1)
The Town Board shall hear both parties and consider
the matter, including any relevant evidence presented.
(2)
After affording the service provider or system owner
or operator and the town the right to be heard and present evidence,
the Town Board shall determine whether or not there was committed
a violation of this article or a breach of a material term or condition
of the franchise or a violation of any federal, state or other local
law, rule, regulation or code.
(3)
The town shall have made a transcript of the hearing.
A service provider or system owner or operator may, at its own expense,
make a transcript of the hearing, or may obtain a copy of the town's
transcript if it shares the costs equally with the town.
(4)
Within 30 days following the completion and close
of the hearing, the Town Board shall issue a written decision as regards
the commission of a violation of this article or breach of a material
term or condition of the franchise or a violation of any federal,
state or local law, rule, regulation or code, and such determination
shall be based upon the record of the proceeding, stating with particularity
the reasons for such decision. A copy of the Town Board's written
decision shall be provided to the service provider or system owner
or operator.
(5)
Should the Town Board find that no breach, violation or failure to comply or perform occurred, or, except for situations addressed in Subsection B of this section, that the service provider or system owner or operator remedied the failure prior to the end of the period allowed for cure, or that the service provider or system owner or operator instituted substantial good faith actions to remedy the failure to comply or perform after having been provided written notice, and actively and expeditiously started and undertook substantial efforts to complete such remedy, or that fines and/or penalties are not warranted or applicable in the instant situation, all of which shall be determined at the sole discretion of the Town Board, the proceedings shall be terminated and no penalty shall be imposed.
(6)
The Town Board shall be required to base its decision
on a preponderance of the evidence from the record established during
the Town Board's hearing. If the Town Board determines that any violation
of this article or breach of a term or condition of the franchise
or of any federal, state or local law, rule, regulation or code was
the fault of the service provider or system owner or operator, and
was within its control, subsequent to the required notice and opportunity
to cure and due process requirements of this article, the Town Board
may affirm the assessment and imposition of fines, penalties or sanctions
as permitted under this article or state law. The Town Board's decision
to affirm the town's assessment of fines, penalties or other sanctions
shall be final and no other remedies, administrative or otherwise,
nor any procedures for such, are provided under this article.
A.
The town is hereby granted the authority to implement
procedures for the filing and resolution of complaints.
B.
The Town Board has the responsibility to adjust, settle
or compromise any controversy arising from the operations of any service
provider or system owner or operator, either on behalf of the town
or any subscriber or user, in accordance with the best interests of
the public and the town; provided, however, that any person aggrieved
by a decision of the Town Board may appeal the matter for a hearing
and determination in accordance with this article.
C.
The Town Board reserves the right, at all times, on
behalf of the town or a subscriber or user to accept, reject or change
any decision of the Town Board, and may adjust, settle or impose a
compromise regarding any controversy arising from the operation of
service provider or system owner or operator that is subject to this
article in whole or in part or from any provision of this article.
[Adopted 9-15-2020 by L.L. No. 2-2020[1]]
[1]
Editor's Note: This local law also repealed former Art. II,
Wireless Telecommunication Facilities, adopted 7-6-2000 by L.L. No. 3-2000.
The Telecommunications Act of 1996 affirmed the Town of Olive's
authority concerning the placement, construction and modification
of wireless telecommunications facilities. The Town Board of the Town
of Olive finds that wireless telecommunications facilities may pose
a unique hazard to the health, safety, public welfare and environment
of the Town of Olive and its inhabitants. The Town also recognizes
that facilitating the development of wireless service technology can
be an economic development asset to the Town and of significant benefit
to the Town and its residents. In order to ensure that the placement,
construction or modification of wireless telecommunications facilities
is consistent with the Town's land-use policies and federal law,
the Town is adopting this comprehensive wireless telecommunications
facility application and permit process. The intent of this article
is to minimize the negative impact of wireless telecommunications
facilities, establish a fair and efficient process for review and
approval of applications, ensure compliance with federal law, assure
an integrated and comprehensive review of environmental impacts of
such facilities and protect the health, safety and public welfare
in the Town of Olive. The Town of Olive lies entirely within the Catskill
Park. It is in a visually sensitive area, with views of mountaintops
and ridgelines that are important assets to the residents.
This article may be known and cited as the "Wireless Telecommunications
Facilities Siting Law for the Town of Olive."
A.
If any word, phrase, sentence, part, section, subsection or other
portion of this article or any application thereof to any person or
circumstance is declared void, unconstitutional or invalid for any
reason, then such word, phrase, sentence, part, section, subsection
or other portion, or the proscribed application thereof, shall be
severable, and the remaining provisions of this article and all applications
thereof not having been declared void, unconstitutional or invalid
shall remain in full force and effect.
B.
Any special use permit issued under this article shall be comprehensive
and not severable. If part of a permit is deemed or ruled to be invalid
or unenforceable in any material respect by a competent authority,
or is overturned by a competent authority, the permit shall be void
in total, upon determination by the Town Board.
For purposes of this article, and where not inconsistent with
the context of a particular section, the defined terms, phrases, words,
abbreviations and their derivations shall have the 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 word "shall" is always mandatory,
and not merely directory.
Any equipment serving or being used in conjunction with a
wireless telecommunications facility or wireless support structure,
excluding the antenna. The term "accessory equipment" includes but
is not limited to utility or transmission equipment, power supplies,
generators, batteries, cables, equipment buildings, cabinets and storage
sheds, shelters or similar structures.
An apparatus designed for the purpose of emitting radio frequency
(RF) radiation, to be operated or operating from a fixed location
pursuant to Federal Communications Commission authorization, for the
provision of wireless service and any commingled information services.
The structure or equipment at a fixed location that enables
wireless communications licensed or authorized by the FCC, between
user equipment and a communications network. The term does not encompass
a tower as defined in this article or any equipment associated with
a tower.
The term includes, but is not limited to, equipment associated
with wireless communications services, such as private, broadcast,
and public safety services, as well as unlicensed wireless services
and fixed wireless services, such as microwave backhaul.
The term includes, but is not limited to, radio transceivers,
antennas, coaxial or fiber-optic cable, regular and backup power supplies,
and comparable equipment, regardless of technological configuration
(including distributed antenna systems and small-cell networks).
The Town Board of the Town of Olive.
The mounting of one or more wireless telecommunications facilities,
including antennas, on a preexisting structure, or modifying a structure
for the purpose of mounting or installing a wireless telecommunications
facility on that structure.
Network of spatially separated antenna sites connected to
a common source that provides wireless service within a geographic
area or structure.
Any request for modification of an existing wireless telecommunications
facility or base station that does not substantially change the physical
dimensions of such tower or base station, involving:
A condition that 1) constitutes a clear and immediate danger
to the health, welfare, or safety of the public, or 2) has caused
or is likely to cause facilities in the rights-of-way to be unusable
and result in loss of the services provided.
An area surrounding or adjacent to a wireless support structure
within which base stations, power supplies, or accessory equipment
are located.
Federal Communications Commission.
The improvement, upgrade or expansion of existing wireless
telecommunications facilities or base stations on an existing wireless
support structure or the improvement, upgrade, or expansion of the
wireless telecommunications facilities located within an existing
equipment compound, if the improvement, upgrade, expansion or replacement
does not substantially change the physical dimensions of the wireless
support structure.
Nonionizing electromagnetic radiation.
Wireless telecommunications facilities co-located on existing
structures, such as, but not limited to buildings, water towers, electrical
transmission towers, utility poles, light poles, traffic signal poles,
flag poles and other similar structures that do not require the installation
of a new tower. This term includes the replacement of an existing
structure with a similar structure that is required to support the
weight of the proposed wireless telecommunications facility.
Individuals, corporations, companies, associations, joint-stock
companies, firms, partnerships, limited liability companies, corporations
and other entities established pursuant to statutes of the State of
New York, provided that "person" does not include or apply to the
Town, or to any department or agency of the Town.
The replacement of existing wireless telecommunications facilities
on an existing wireless support structure or within an existing equipment
compound due to maintenance, repair or technological advancement with
equipment composed of the same wind loading and structural loading
that is substantially similar in size, weight and height as the wireless
telecommunications facilities initially installed and that does not
substantially change the physical dimensions of the existing wireless
support structure.
A wireless telecommunications facility that meets the following
criteria:
The structure on which antenna facilities are mounted:
Each antenna associated with the deployment (excluding the associated
equipment) is no more than three cubic feet in volume; and
All antenna equipment associated with the facility (excluding
antennas) are cumulatively no more than 28 cubic feet in volume;
The facilities do not require antenna structure registration
under 47 CFR Part 17;
The facilities are not located on Tribal lands, as defined under
36 CFR 800.16(x); and
The facilities do not result in human exposure to radio frequency
radiation in excess of the applicable safety standards specified in
47 CFR 1.1307(b).
Camouflaging methods applied to wireless telecommunications
facilities and accessory equipment which render them more visually
appealing or blend the proposed facility into the existing structure
or visual backdrop in such a manner as to render it minimally visible
to the casual observer. Such methods include, but are not limited
to, architecturally screened roof-mounted antennas, building-mounted
antennas painted to match the existing structure and facilities constructed
to resemble trees, shrubs, and light poles.
A modification substantially changes the physical dimensions
of a tower or base station if it meets any of the following criteria:
For towers other than towers in the public rights-of-way, it
increases the height of the tower by more than 10% or by the height
of one additional antenna array with separation from the nearest existing
antenna not to exceed 20 feet, whichever is greater; for other towers
or base stations, it increases the height of the structure by more
than 10% or more than 10 feet, whichever is greater;
Changes in height should be measured from the original support
structure in cases where deployments are or will be separated horizontally,
such as on buildings' rooftops; in other circumstances, changes
in height should be measured from the dimensions of the tower or base
station, inclusive of originally approved appurtenances and any modifications
that were approved prior to the passage of the Spectrum Act.
For towers other than towers in the public rights-of-way, it
involves adding an appurtenance to the body of the tower that would
protrude from the edge of the tower more than 20 feet, or more than
the width of the tower structure at the level of the appurtenance,
whichever is greater; for other towers or base stations, it involves
adding an appurtenance to the body of the structure that would protrude
from the edge of the structure by more than six feet;
For any tower or base station, it involves installation of more
than the standard number of new equipment cabinets for the technology
involved, but not to exceed four cabinets; or, for towers in the public
rights-of-way and base stations, it involves installation of any new
equipment cabinets on the ground if there are no preexisting ground
cabinets associated with the structure, or else involves installation
of ground cabinets that are more than 10% larger in height or overall
volume than any other ground cabinets associated with the structure;
It entails any excavation or deployment outside the current
site;
It would defeat the concealment elements of the tower or base
station; or
It does not comply with conditions associated with the siting
approval of the construction or modification of the tower or base
station equipment; provided, however, that this limitation does not
apply to any modification that is noncompliant only in a manner that
would not exceed the thresholds identified in § 1.40001(b)(7)(i)
through (iv).[1]
Any structure that is used for the primary purpose of supporting
one or more antennas, including, but not limited to, self-supporting
lattice towers, guy towers and monopoles, and the accompanying antenna
and accessory equipment.
Transmissions through the airwaves including, but not limited
to, infrared line of sight, cellular, PCS, microwave, satellite, or
radio signals.
A pole, tower, base station, or other structure, whether
or not it has an existing antenna facility, that is used or to be
used for the provision of wireless service (whether on its own or
commingled with other types of services).
An antenna facility or a wireless support structure that
is used for the provision of wireless service, whether such service
is provided on a stand-alone basis or commingled with other wireless
telecommunications services.
[1]
Editor's Note: So in original.
A.
The following regulations shall apply to all nontower wireless telecommunications
facilities that do not meet the definition of a "small wireless telecommunications
facility":
(1)
Permitted in all zones subject to regulations. Nontower wireless
telecommunications facilities are permitted in all zones subject to
the restrictions and conditions prescribed below.
(2)
Special use permit required. Nontower wireless telecommunications facilities are permitted as a special use subject to the requirements of this § 146-67.
(a)
All applicants for a special use permit for a nontower wireless
telecommunications facility or any modification of such facility shall
comply with the requirements set forth in this section. The Board
is the officially designated agency or body of the community to whom
applications for a special use permit for wireless telecommunications
facilities must be made, and that is authorized to review, analyze,
evaluate and make decisions with respect to granting or not granting,
recertifying or not recertifying or revoking special use permits for
wireless telecommunications facilities. The Board may at its discretion
delegate or designate other official agencies of the Town to accept,
review, analyze, evaluate and make recommendations to the Board with
respect to the granting or not granting, recertifying or not recertifying
or revoking special use permits for wireless telecommunications facilities.
(b)
An application for a special use permit for a nontower wireless
telecommunications facility shall be signed on behalf of the applicant
by the person preparing the same and with knowledge of the contents
and representations made therein and attesting to the truth and completeness
of the information. The owner of the proposed site, if different than
the applicant, shall also sign the application. At the discretion
of the Board, any false or misleading statement in the application
may subject the applicant to denial of the application without further
consideration or opportunity for correction. If the nontower wireless
telecommunications facility is being proposed for co-location on an
existing tower-based wireless telecommunications facility, then the
application shall be submitted by the provider proposing the co-located
antenna and shall be accompanied by proof of permission to attach
to the existing tower-based wireless telecommunications facility and
proof of a valid lease or easement for the existing tower-based wireless
telecommunications facility.
(c)
Applications not meeting the requirements stated herein or which
are otherwise incomplete may be rejected by the Board.
(d)
The applicant shall include a statement in writing:
[1]
That the proposed nontower wireless telecommunications facility
shall be maintained in a safe manner and in compliance with all conditions
of the special use permit, without exception, unless specifically
granted relief by the Board, in writing, as well as all applicable
and permissible local codes, laws and regulations, including any and
all applicable county, state and federal laws, rules and regulations.
[2]
That the construction of the nontower wireless telecommunications
facility is legally permissible, including, but not limited to, the
fact that the applicant is authorized to do business in New York State.
(e)
No nontower wireless telecommunications facility shall be installed
or constructed until the site plan is reviewed and approved by the
Board and the special use permit has been issued.
(f)
All applications for the construction or installation of new
wireless telecommunications facilities shall be accompanied by a report
containing the information hereinafter set forth. The report shall
be signed and sealed by a licensed professional engineer registered
in the state. Where this section calls for certification, such certification
shall be by a qualified New York State licensed professional engineer
acceptable to the Town, unless otherwise noted. The application shall
include, in addition to the other requirements for the special use
permit, the following information:
[1]
Name, address and phone number of the person preparing the report.
[2]
Name, address and phone number of the property owner, operator
and applicant, to include the legal form of name of the applicant.
[3]
Postal address and tax map parcel number of the property.
[4]
Zoning district or designation in which the property is situated.
[5]
Location of nearest residential structure.
[6]
Location of nearest habitable structure.
[7]
Location, size and height of all structures on the property
which are the subject of the application.
[8]
Location, size and height of all proposed and existing antennas
and accessory equipment.
[9]
Types, locations and dimensions of all proposed and existing
landscaping and fencing.
[10]
The number, type and design of the antenna(s)
proposed.
[11]
The make, model and manufacturer of the wireless
support structure and antenna(s).
[12]
Applicant's proposed maintenance and inspection
procedures and related system of records and recordkeeping.
[13]
The frequency, modulation and class of service
of radio or other transmitting equipment.
[14]
Transmission and maximum effective radiated power
of the antenna(s).
[15]
Direction of maximum lobes and associated radiation
of the antenna(s).
[16]
Certification that NIER levels at the proposed
site are within the threshold levels adopted by the FCC.
[17]
Certification that the proposed antenna(s) will
not cause interference with existing telecommunications devices; in
this case, the certifying engineer need not be approved by the Town.
[18]
A copy of the FCC license applicable for the use
of wireless telecommunications facilities.
(3)
Timing of approval.
(a)
Within 90 days of receipt of a complete application for a nontower
wireless telecommunications facility on a preexisting wireless support
structure that substantially changes the wireless support structure
to which it is attached, the Town Board shall make a final decision
on whether to approve the application and shall notify the applicant,
in writing, of such decision.
(b)
Within 60 days of receipt of a complete application for a nontower
wireless telecommunications facility on a preexisting wireless support
structure that does not substantially change the wireless support
structure to which it is attached, the Town Code Enforcement Officer
shall issue the required building and zoning permits authorizing construction
of the wireless telecommunications facility. All applications for
such wireless telecommunications facilities shall designate that the
proposed wireless telecommunications facility meets the requirements
of an eligible facilities request.
(c)
Within 30 calendar days of the date that an application for
a nontower wireless telecommunications facility is filed with the
Town Board, the Town Board shall notify the applicant, in writing,
of any information that may be required to complete such application.
(4)
Prohibited on certain structures. No nontower wireless telecommunications
facilities shall be located on single-family detached residences,
single-family attached residences, semidetached residences, duplexes,
or any residential accessory structure.
(5)
Development regulations. Nontower wireless telecommunications facilities
shall be co-located on existing structures subject to the following
conditions:
(a)
The total height of any wireless support structure and mounted
wireless telecommunications facility shall not exceed 10 feet above
the maximum height permitted in the underlying zoning district.
(b)
In accordance with industry standards, all nontower wireless
telecommunications facility applicants must submit documentation to
the Town justifying the total height of the wireless telecommunications
facility.
(c)
If the applicant proposes to locate accessory equipment in a
separate building, such building shall comply with the applicable
requirements for the underlying zoning district.
(d)
A security fence not to exceed eight feet in height shall surround
any separate communications equipment building. Vehicular access to
the communications equipment building shall not interfere with the
parking or vehicular circulations on the site for the principal use.
(6)
Design. Nontower wireless telecommunications facilities shall employ
stealth technology and be treated to match the wireless support structure
in order to minimize aesthetic impact. The application of the stealth
technology utilized by the applicant shall be subject to the approval
of the Town.
(7)
Removal, replacement and substantial change.
(a)
The removal and replacement of nontower wireless telecommunications
facilities and/or accessory equipment for the purpose of upgrading
or repairing the wireless telecommunications facility is permitted,
so long as such repair or upgrade does not substantially change the
overall height of the wireless telecommunications facility or increase
the number of antennas.
(b)
Any substantial change to a wireless telecommunications facility
shall require notice to be provided to the Town Code Enforcement Officer,
and possible supplemental permit approval as determined by the Town
Code Enforcement Officer.
A.
Permitted in all zones subject to regulations. Tower-based wireless telecommunications facilities are permitted in all zones as a special use and at a height necessary to satisfy their function in the applicant's wireless telecommunications system subject to the requirements of this§ 146-68.
(1)
All applicants for a special use permit for a tower-based wireless
telecommunications facility or any modification of such facility shall
comply with the requirements set forth in this section. The Board
is the officially designated agency or body of the community to whom
applications for a special use permit for wireless telecommunications
facilities must be made, and that is authorized to review, analyze,
evaluate and make decisions with respect to granting or not granting,
recertifying or not recertifying or revoking special use permits for
wireless telecommunications facilities. The Board may at its discretion
delegate or designate other official agencies of the Town to accept,
review, analyze, evaluate and make recommendations to the Board with
respect to the granting or not granting, recertifying or not recertifying
or revoking special use permits for wireless telecommunications facilities.
(2)
An application for a special use permit for a tower-based wireless
telecommunications facility shall be signed on behalf of the applicant
by the person preparing the same and with knowledge of the contents
and representations made therein and attesting to the truth and completeness
of the information. The landowner, if different than the applicant,
shall also sign the application. At the discretion of the Board, any
false or misleading statement in the application may subject the applicant
to denial of the application without further consideration or opportunity
for correction.
(3)
Applications not meeting the requirements stated herein or which
are otherwise incomplete may be rejected by the Board.
(4)
The applicant shall include a statement in writing:
(a)
That the applicant's proposed wireless telecommunications
facilities shall be maintained in a safe manner and in compliance
with all conditions of the special use permit, without exception,
unless specifically granted relief by the Board, in writing, as well
as all applicable and permissible local codes, laws and regulations,
including any and all applicable county, state and federal laws, rules
and regulations.
(b)
That the construction of the wireless telecommunications facilities
is legally permissible, including, but not limited to, the fact that
the applicant is authorized to do business in New York State.
(5)
No wireless telecommunications facilities shall be installed or constructed
until the site plan is reviewed and approved by the Board and the
special use permit has been issued.
(6)
All applications for the construction or installation of new wireless
telecommunications facilities shall be accompanied by a report containing
the information hereinafter set forth. The report shall be signed
and sealed by a licensed professional engineer registered in the state.
Where this section calls for certification, such certification shall
be by a qualified New York State licensed professional engineer acceptable
to the Town, unless otherwise noted. The application shall include,
in addition to the other requirements for the special use permit,
the following information:
(a)
Name, address and phone number of the person preparing the report.
(b)
Name, address and phone number of the property owner, operator
and applicant, to include the legal form of name of the applicant.
(c)
Postal address and tax map parcel number of the property.
(d)
Zoning district or designation in which the property is situated.
(e)
Size of the property stated both in square feet and lot line
dimensions, and a diagram showing the location of all lot lines and
the location and delineation of the expected footprint of the facilities.
(f)
Location of nearest residential structure.
(g)
Location of nearest habitable structure.
(h)
Location, size and height of all structures on the property
which are the subject of the application.
(i)
Location, size and height of all proposed and existing antennas
and all appurtenant structures.
(j)
Types, locations and dimensions of all proposed and existing
landscaping and fencing.
(k)
The number, type and design of the tower-based wireless telecommunications
facility and antenna(s) proposed and the basis for the calculations
of the tower-based wireless telecommunications facility's capacity
to accommodate multiple users.
(l)
The make, model and manufacturer of the wireless support structure
and antenna(s).
(m)
A description of the proposed wireless support structure, antenna(s)
and all accessory equipment, including height above preexisting grade,
materials, color and lighting.
(n)
Certification that a topographic and geomorphologic study and
analysis has been conducted, and, taking into account the subsurface
and substrata and the proposed drainage plan, that the site is adequate
to assure the stability of the proposed wireless telecommunications
facilities on the proposed site; in this case, the certifying engineer
need not be approved by the Town.
(o)
Applicant shall disclose, in writing, any agreement in existence
prior to submission of the application that would limit or preclude
the ability of the applicant to share any new tower-based wireless
telecommunications facility tower that it constructs.
(p)
Applicant's proposed maintenance and inspection procedures
and related system of records and recordkeeping.
(q)
The frequency, modulation and class of service of radio or other
transmitting equipment.
(r)
Transmission and maximum effective radiated power of the antenna(s).
(s)
Direction of maximum lobes and associated radiation of the antenna(s).
(t)
Certification that NIER levels at the proposed site are within
the threshold levels adopted by the FCC.
(u)
Certification that the proposed antenna(s) will not cause interference
with existing telecommunications devices; in this case, the certifying
engineer need not be approved by the Town.
(v)
A copy of the FCC license applicable for the use of wireless
telecommunications facilities.
(7)
After construction and prior to receiving a certificate of compliance,
the applicant shall furnish written certification that the tower-based
wireless telecommunications facility is grounded and bonded so as
to protect persons and property and installed with appropriate surge
protectors.
(8)
The applicant shall submit a completed long-form EAF and a completed
visual EAF addendum. Based on the results of the visual EAF addendum,
the Board may require submission of a more detailed visual analysis.
The scope of the required environmental and visual assessment will
be reviewed at the preapplication meeting.
(9)
The applicant shall furnish a visual impact assessment which shall
include:
(a)
A zone-of-visibility map which shall be provided in order to
determine locations where the tower-based wireless telecommunications
facility may be seen.
(b)
Pictorial representations of before and after views from key
viewpoints both inside and outside of the Town, including but not
limited to state highways and other major roads; state and local parks;
other public lands; historic districts; preserves and historic sites
normally open to the public; and from any other location where the
site is visible to a large number of visitors, travelers or residents.
The Board, acting in consultation with its consultants or experts,
will provide guidance concerning the appropriate key sites at a preapplication
meeting.
(c)
An assessment of the visual impact of the tower base, guy wires
and accessory buildings from abutting and adjacent properties and
streets.
(10)
For any tower-based wireless telecommunications facility, an
access road and parking shall be provided to assure adequate emergency
and service access. Maximum use of existing roads, whether public
or private, shall be made to the extent practicable. Road construction
shall at all times minimize ground disturbance and vegetation-cutting.
Road grades shall closely follow natural contours to assure minimal
visual disturbance and reduce soil erosion.
(11)
Additional antennas. As a condition of approval for all tower-based
wireless telecommunications facilities, the applicant shall provide
the Town Board with a written commitment that it will allow at least
two other service providers to co-locate antennas on the proposed
tower-based wireless telecommunications facility where technically
and economically feasible. To the extent permissible under state and
federal law, the owner of a tower-based wireless telecommunications
facility shall not install any additional antennas without obtaining
the prior written approval of the Town Code Enforcement Officer. This
requirement may be waived, provided that the applicant, in writing,
demonstrates that the provisions of future shared usage of the tower-based
wireless telecommunications facility is not technologically feasible,
or creates an unnecessary and unreasonable burden, based upon:
(a)
The foreseeable number of FCC licenses available for the area;
(b)
The kind of wireless telecommunications facilities site and
structure proposed;
(c)
The number of existing and potential licenses without wireless
telecommunications facilities spaces/sites; and
(d)
Available space on existing and approved tower-based wireless
telecommunications facilities.
(12)
The applicant shall submit to the Board a letter of intent committing
the owner of the proposed new tower, and his/her successors in interest,
to negotiate in good faith for shared use of the proposed tower by
other telecommunications providers in the future. This letter shall
be filed with the Board. Failure to abide by the conditions outlined
in the letter may be grounds for revocation of the special use permit.
The letter shall commit the new tower owner and their successors in
interest to:
(a)
Respond within 60 days to a request for information from a potential
shared-use applicant.
(b)
Negotiate in good faith concerning future requests for shared
use of the new tower by other telecommunications providers.
(c)
Allow shared use of the new tower if another telecommunications
provider agrees, in writing, to pay reasonable charges. The charges
may include, but are not limited to, a pro rata share of the cost
of site selection, planning, project administration, land costs, site
design, construction and maintenance financing, return on equity,
less depreciation, and all of the costs of adapting the tower or equipment
to accommodate a shared user without causing electromagnetic interference.
(13)
In order to better inform the public, in the case of a new tower-based
wireless telecommunications facility, the applicant shall, prior to
the public hearing on the application, hold a "balloon test" as follows:
applicant shall arrange to fly, or raise upon a temporary mast, a
minimum of a three-foot diameter, brightly colored balloon at the
maximum height of the proposed new tower. The dates (including a second
date, in case of poor visibility on the initial date), time and location
of this balloon test shall be advertised, by the applicant, at seven
and 14 days in advance of the first test date in a newspaper with
a general circulation in town and agreed to by the Board. The applicant
shall inform the Board, in writing, of the date and time of the tests
at least 14 days in advance. The balloon shall be flown for at least
eight consecutive hours sometime between 7:00 a.m. and 4:00 p.m. on
the date chosen. The primary date shall be on a weekend, but the second
date, in case of poor visibility on the initial date, may be on a
weekday.
(14)
The applicant will provide a written copy of an analysis, completed
by a qualified individual or organization, to determine if the tower-based
wireless telecommunications facility or existing structure intended
to support wireless facilities requires lighting under Federal Aviation
Regulation Part 77. This requirement shall be for any new tower, or
for an existing structure or building where the application increases
the height of the structure or building. If this analysis determines
that the FAA must be contacted, then all filings with the FAA, all
responses from the FAA, and any related correspondence shall be provided
in a timely manner.
(15)
The special use permit application shall also be accompanied
by documentation demonstrating that the proposed tower-based wireless
telecommunications facility complies with all applicable provisions
of this article.
B.
Sole use on a lot. A tower-based wireless telecommunications facility
shall be permitted as a sole use on a lot, provided that the underlying
lot meets the minimum requirements of the underlying zoning district.
The minimum distance between the base of a tower-based wireless telecommunications
facility and any adjoining property line or street right-of-way line
shall equal 100% of the proposed wireless telecommunications facility
structure's height or the existing setback requirements of the
underlying zoning district, whichever is greater, unless the applicant
shows to the satisfaction of the Town Board that the proposed tower-based
wireless telecommunications facility has been designed in such a manner
that a lesser setback will have no negative effects on public safety.
C.
Combined with another use. A tower-based wireless telecommunications
facility may be permitted on a property with an existing use, or on
a vacant parcel in combination with another use, except residential,
subject to the following conditions:
(1)
The existing use on the property may be any permitted use in the
applicable district and need not be affiliated with the wireless telecommunications
facility.
(2)
Minimum lot area. The minimum lot shall comply with the requirements
for the applicable zoning district and shall be the area needed to
accommodate the tower-based wireless telecommunications facility and
guy wires, the equipment building, security fence, and buffer planting.
(3)
Minimum setbacks. The minimum distance between the base of a tower-based
wireless telecommunications facility and any adjoining property line
or street right-of-way line shall equal 100% of the proposed height
of the tower-based wireless telecommunications facility, unless the
applicant shows to the satisfaction of the Town Board that the proposed
tower-based wireless telecommunications facility has been designed
in such a manner that a lesser setback will have no negative effects
on public safety.
D.
Design regulations.
(1)
Height. Tower-based wireless telecommunications facilities shall
be designed and kept at the minimum functional height. The maximum
total height of a tower-based wireless telecommunications facility,
which is not located in the public ROW, shall not exceed 140 feet,
as measured vertically from the ground level to the highest point
on the structure, including antennas and subsequent alterations. No
applicant shall have the right under this article to erect a tower
to the maximum height specified in this section unless it proves the
necessity for such height. The applicant shall demonstrate that the
tower-based wireless telecommunications facility is the minimum height
necessary for the service area. Failure to demonstrate that the tower-based
wireless telecommunications facility is the minimum height necessary
for the service area shall be grounds for denial of the application
for such tower-based wireless telecommunications facility.
(2)
Visual appearance and land use compatibility. Tower-based wireless
telecommunications facilities shall employ stealth technology which
may include the tower portion to be painted brown or another color
approved by Board or shall have a galvanized finish. All tower-based
wireless telecommunications facilities and accessory equipment shall
be aesthetically and architecturally compatible with the surrounding
environment and shall maximize the use of a like facade to blend with
the existing surroundings and neighboring buildings to the greatest
extent possible. Board shall consider whether its decision upon the
subject application will promote the harmonious and orderly development
of the zoning district involved; encourage compatibility with the
character and type of development existing in the area; prevent a
negative impact on the aesthetic character of the community; preserve
woodlands and trees existing at the site to the greatest possible
extent; and encourage sound engineering and land development design
and construction principles, practices and techniques.
(3)
Any proposed tower-based wireless telecommunications facility shall
be designed structurally, electrically, and in all respects to accommodate
both the applicant's antennas and comparable antennas for future
users.
(4)
Any tower-based wireless telecommunications facility over 40 feet
in height shall be equipped with an anticlimbing device, as approved
by the manufacturer.
E.
Surrounding environs.
(1)
The applicant shall ensure that the existing vegetation, trees and
shrubs located within proximity to the wireless telecommunications
facility structure shall be preserved to the maximum extent possible.
(2)
The applicant shall submit a soil report to the Town Board complying
with the standards of Appendix I: Geotechnical Investigations, ANSI/TIA-222,
as amended, to document and verify the design specifications of the
foundation of the tower-based wireless telecommunications facility,
and anchors for guy wires, if used.
F.
Fence/screen.
(1)
A security fence having a height not to exceed eight feet shall completely
surround any tower-based wireless telecommunications facility located
outside the public rights-of-way, as well as guy wires, or any building
housing wireless telecommunications facility equipment.
(2)
A screen, consisting of a hedge planted three feet on center maximum
or consisting of evergreen trees each at least four feet in height
and planted 10 feet on center maximum, shall surround the tower-based
wireless telecommunications facility and security fence. Existing
vegetation shall be preserved to the maximum extent possible.
G.
Accessory equipment.
(1)
Ground-mounted accessory equipment associated or connected with a
tower-based wireless telecommunications facility shall not be located
within 50 feet of a lot in residential use.
(2)
Accessory equipment associated or connected with a tower-based wireless
telecommunications facility shall be placed underground or screened
from public view using stealth technology. All ground-mounted accessory
equipment, utility buildings and accessory structures shall be architecturally
designed to blend into the environment in which they are situated
and shall meet the minimum setback requirements of the underlying
zoning district.
(3)
Either one single-story wireless telecommunications equipment building
not exceeding 500 square feet in area or its equivalent shall be permitted
for each unrelated company sharing commercial communications antenna(s)
space on the tower-based wireless telecommunications facility.
H.
FCC license. Each person that owns or operates a tower-based wireless
telecommunications facility shall submit a copy of its current FCC
license, including the name, address, and emergency telephone number
for the operator of the facility.
I.
Signs. All tower-based wireless telecommunications facilities shall
post a sign in a readily visible location identifying the name and
phone number of a party to contact in the event of an emergency. The
only other signage permitted on the wireless telecommunications facility
shall be those required by the FCC, or any other federal or state
agency.
J.
Lighting. No tower-based wireless telecommunications facility shall
be artificially lighted, except as required by law. If lighting is
required, the applicant shall provide a detailed plan for sufficient
lighting, demonstrating as unobtrusive and inoffensive an effect as
is permissible under state and federal regulations. The applicant
shall promptly report any outage or malfunction of FAA-mandated lighting
to the appropriate governmental authorities and to the Town Secretary.
K.
Noise. Tower-based wireless telecommunications facilities shall be
operated and maintained so as not to produce noise in excess of applicable
noise standards under state law and the Town Code, except in emergency
situations requiring the use of a backup generator, where such noise
standards may be exceeded on a temporary basis only.
L.
Timing of approval. Within 30 calendar days of the date that an application
for a tower-based wireless telecommunications facility is filed with
the Town Code Enforcement Officer, the Code Enforcement Officer shall
notify the applicant, in writing, of any information that may be required
to complete such application. All applications for tower-based wireless
telecommunications facilities shall be acted upon within 150 days
of the receipt of a fully completed application for the approval of
such tower-based wireless telecommunications facility and the Town
Board shall advise the applicant in writing of its decision. If additional
information was requested by the Town to complete an application,
the time required by the applicant to provide the information shall
not be counted toward the 150 day review period.
M.
Nonconforming uses. Nonconforming tower-based wireless telecommunications
facilities which are hereafter damaged or destroyed due to any reason
or cause may be repaired and restored at their former location but
must otherwise comply with the terms and conditions of this section.
The co-location of antennas is permitted on nonconforming structures.
N.
Engineer signature. All plans and drawings for a tower-based wireless
telecommunications facility shall contain a seal and signature of
a professional structural engineer, licensed in the State of New York.
O.
Performance security. The applicant and the owner of record of any
proposed tower-based wireless telecommunications facility site shall,
at its cost and expense, be jointly required to execute and file with
the Town a bond, or other form of security acceptable to the Town
as to type of security and the form and manner of execution, in an
amount sufficient to guarantee removal of the tower-based wireless
telecommunications facility but in no case less than $75,000 and with
such sureties as are deemed sufficient by the Board to assure the
faithful performance of the terms and conditions of this article and
conditions of any special use permit issued pursuant to this article.
The full amount of the bond or security shall remain in full force
and effect throughout the term of the special use permit and/or until
the removal of the tower-based wireless telecommunications facility
and any necessary site restoration is completed. The failure to pay
any annual premium for the renewal of any such security shall be a
violation of the provisions of the special use permit and shall entitle
the Board to revoke the special use permit after prior written notice
to the applicant and holder of the permit and after a hearing upon
due prior notice to the applicant and holder of the special use permit.
P.
Retention of experts.
(1)
The Board may hire any consultant and/or expert necessary to assist
the Board in reviewing and evaluating the application and any requests
for recertification.
(2)
An applicant shall deposit with the Town funds sufficient to reimburse
the Town for all reasonable costs of consultant and expert evaluation
and consultation to the Board in connection with the review of any
application. The initial deposit shall be $7,500. These funds shall
accompany the filing of an application and the Town will maintain
a separate escrow account for all such funds. The Town's consultants/experts
shall bill or invoice the Town no more frequently than monthly for
their services in reviewing the application and performing their duties.
If at any time during the review process this escrow account has a
balance less than $2,500, the applicant shall immediately, upon notification
by the Town, replenish said escrow account so that it has a balance
of at least $5,000. Such additional escrow funds must be deposited
with the Town before any further action or consideration is taken
on the application. In the event that the amount held in escrow by
the Town is more than the amount of the actual billing or invoicing
at the conclusion of the review process, the difference shall be promptly
refunded to the applicant.
(3)
The total amount of the funds set forth in Subsection P(2) of this section may vary with the scope and complexity of the project, the completeness of the application, and other information as may be needed by the Board or its consultant/expert to complete the necessary review and analysis. Additional escrow funds, as reasonably required and requested by the Town, shall be paid by the applicant.
A.
B.
Small wireless telecommunications facility application requirements.
All applications for a small wireless telecommunications facility
shall be submitted to the Town Code Enforcement Officer and shall
include the following information to the extent applicable to the
proposed small wireless telecommunications facility:
(1)
Construction drawings signed and stamped by an engineer licensed
in the State of New York and shall include the following:
(a)
The number, type and design of the antenna(s) proposed;
(b)
The make, model and manufacturer of the wireless support structure
and antenna(s);
(c)
The frequency, modulation and class of service of radio or other
transmitting equipment;
(d)
Transmission and maximum effective radiated power of the antenna(s);
(e)
The location of the proposed small wireless telecommunications
facility, including both longitude and latitude, street address and
underlying zoning district;
(f)
Before and after drawings
or simulations of the support structure showing the proposed equipment
locations and dimensional change;
(g)
The location of the nearest ingress and egress points of any
nearby structures, if applicable;
(h)
ROW lines;
(i)
The location of any ground-mounted accessory equipment;
(j)
Location of nearest residential structure; and
(k)
Location of nearest habitable structure;
(2)
If the small wireless telecommunications facility is proposed for
attachment to a wireless support structure that is owned by a party
other than the applicant, proof that the applicant has obtained permission
from such party to attach the small wireless telecommunications facility
to the wireless support structure;
(3)
Applicant's proposed maintenance and inspection procedures and
related system of records and recordkeeping;
(6)
Name, address and phone number of the person preparing the report;
(7)
Name, address and phone number of the property owner, operator and
applicant, to include the legal form of name of the applicant;
(8)
Certification that NIER levels at the proposed site are within the
threshold levels adopted by the FCC;
(9)
Pedestrian and worker safety and traffic control plans;
(10)
Statement of compliance with the Town's Small Wireless
Telecommunications Facility Design Manual with citations thereto;
and
(11)
Statement prepared and signed by an engineer licensed in the
State of New York certifying that the proposed small wireless telecommunications
facility is structurally sound.
C.
Nonconforming wireless support structures. Small wireless telecommunications
facilities shall be permitted to co-locate upon nonconforming tower-based
wireless telecommunications facilities and other nonconforming structures.
Co-location of small wireless telecommunications facilities upon existing
tower-based wireless telecommunications facilities is encouraged even
if the tower-based wireless telecommunications facility is nonconforming
as to use within a zoning district.
D.
Time, place and manner. The Town Code Enforcement Officer shall determine
the time, place and manner of construction, maintenance, repair and/or
removal of all small wireless telecommunications facilities in the
ROW based on public safety, traffic management, physical burden on
the ROW, and related considerations.
E.
Accessory equipment. Small wireless telecommunications facilities
and accessory equipment shall be located so as not to cause any physical
or visual obstruction to pedestrian or vehicular traffic, create safety
hazards to pedestrians and/or motorists, or to otherwise inconvenience
public use of the ROW as determined by the Town.
F.
Design standards. All small wireless telecommunications facilities
in the Town shall comply with the design standards contained within
the Town Small Wireless Telecommunications Facility Design Manual.
A copy of the Town Small Wireless Telecommunications Facility Design
Manual shall be kept on file at the Town Building, Planning and Zoning
Department.
G.
Timing of approval.
(1)
Within 60 days of receipt of an application for co-location of a
small wireless telecommunications facility on a preexisting wireless
support structure, the Town Code Enforcement Officer shall make a
final decision on whether to approve the application and shall notify
the applicant, in writing, of such decision.
(2)
Within 90 days of receipt of an application for a small wireless
telecommunications facility requiring the installation of a new wireless
support structure, the Town Code Enforcement Officer shall make a
final decision on whether to approve the application and shall notify
the applicant, in writing, of such decision.
(3)
Within 10 calendar days of the date that an application for a small
wireless telecommunications facility is filed with the Town Code Enforcement
Officer, the Town shall notify the applicant, in writing, of any information
that may be required to complete such application.
H.
Reimbursement for ROW use. In addition to permit fees as described
in this section, every small wireless telecommunications facility
in the ROW is subject to the Town's right to fix annually a fair
and reasonable fee to be paid for use and occupancy of the ROW. Such
compensation for ROW use shall be directly related to the Town's
actual ROW management costs, including, but not limited to, the costs
of the administration and performance of all reviewing, inspecting,
permitting, supervising and other ROW management activities by the
Town. The owner of each small wireless telecommunications facility
shall pay an annual fee to the Town to compensate the Town for the
Town's costs incurred in connection with the activities described
above. Such fees shall comply with the applicable requirements of
the Federal Communications Commission.
A.
Applicants for wireless telecommunications facilities, excluding
small wireless telecommunications facilities, shall locate, site and
erect said wireless telecommunications facilities in accordance with
the following priorities, Subsection (A)(1) being the highest priority
and Subsection (A)(4) being the lowest priority:
B.
If the proposed property site is not the highest priority listed
above, then a detailed explanation must be provided as to why a site
of a higher priority was not selected. The applicant must satisfactorily
demonstrate the reason or reasons why such a permit should be granted
for the proposed site, and the hardship that would be incurred by
the applicant if the permit were not granted for the proposed site.
C.
An applicant may not bypass sites of higher priority by stating the
site presented is the only site leased or selected. An application
shall address co-location as an option, and, if such option is not
proposed, the applicant must explain why co-location is impracticable.
Agreements between providers limiting or prohibiting co-location shall
not be a valid basis for any claim of impracticability or hardship.
D.
Notwithstanding the above, the Board may approve any site located
within an area in the above list of priorities, provided that the
Board finds that the proposed site is in the best interest of the
health, safety and welfare of the Town and its inhabitants.
E.
The applicant shall submit a written report demonstrating the applicant's
review of the above locations in order of priority, demonstrating
the technological reason for the site selection. If the site selected
is not the highest priority, then a detailed written explanation as
to why sites of a higher priority were not selected shall be included
with the application.
F.
The applicant shall, in writing, identify and disclose the number
and locations of any additional sites that the applicant has been,
is, or will be considering, reviewing or planning for wireless telecommunications
facilities in the Town, and all municipalities adjoining the Town,
for a two-year period following the date of the application.
G.
Notwithstanding that a potential site may be situated in an area
of highest priority or highest available priority, the Board may disapprove
an application for any of the following reasons:
(1)
Conflict with safety and safety-related codes and requirements;
(2)
Conflict with traffic needs or traffic laws, or definitive plans
for changes in traffic flow or traffic laws;
(3)
Conflict with the historic nature of a neighborhood or historical
district;
(4)
The use or construction of wireless telecommunications facilities
which is contrary to an already stated purpose of a specific zoning
or land use designation;
(5)
The placement and location of wireless telecommunications facilities
which would create an unacceptable risk, or the probability of such,
to residents, the public, employees and agents of the Town, or employees
of the service provider or other service providers;
(6)
Unacceptable visual impacts upon any location in the Town;
(7)
Any reasonable basis consistent with the powers retained by the Town
Board as a legislative body, including such factors as are not expressly
set forth herein; and/or
(8)
Conflicts with the provisions of this article.
H.
Standard of care. All wireless telecommunications facilities shall
be designed, constructed, operated, maintained, repaired, modified
and removed in strict compliance with all current applicable technical,
safety and safety-related codes, including but not limited to the
most recent editions of the American National Standards Institute
(ANSI) Code, National Electrical Safety Code, National Electrical
Code, or to the industry standard applicable to the structure. All
wireless telecommunications facilities shall at all times be kept
and maintained in good condition, order and repair by qualified maintenance
and construction personnel, so that the same shall not endanger the
life of any person or any property in the Town.
I.
Wind and ice. All wireless telecommunications facilities shall be
designed to withstand the effects of wind gusts and ice to the standard
designed by the American National Standards Institute as prepared
by the engineering departments of the Electronics Industry Association,
and Telecommunications Industry Association (ANSI/TIA-222, as amended),
or to the industry standard applicable to the structure.
J.
Public safety communications. Wireless telecommunications facilities
shall not interfere with public safety communications or the reception
of broadband, television, radio or other communication services enjoyed
by occupants of nearby properties.
K.
Maintenance. To the extent permitted by law, the following maintenance
requirements shall apply:
(1)
The wireless telecommunications facility shall be fully automated
and unattended on a daily basis and shall be visited only for maintenance
or emergency repair.
(2)
Such maintenance shall be performed to ensure compliance with applicable
structural safety standards and radio frequency emissions regulations.
(3)
All maintenance activities shall conform to industry maintenance
standards.
M.
Permit fees. The Town may assess appropriate and reasonable permit
fees directly related to the Town's actual costs in reviewing
and processing the application for approval of a wireless telecommunications
facility, as well as related inspection, monitoring, and related costs.
Such permit fees shall be established by the Town fee schedule and
shall comply with the applicable requirements of the FCC.
N.
Eligible facilities request. Applicants for eligible facilities requests
shall be required only to obtain a building permit from the Town Code
Enforcement Officer. In order to be considered for such permit, the
applicant must submit a permit application to the Town Code Enforcement
Officer in accordance with applicable permit policies and procedures.
O.
Historic buildings. No wireless telecommunications facility may be
located within 100 feet of any property, or on a building or structure
that is listed on either the National or New York State Registers
of Historic Places, or eligible to be so listed, located within an
historic district, or is included in the official historic structures
list maintained by the Town.
P.
NIER levels. A wireless telecommunications facility shall not, by
itself or in conjunction with other wireless telecommunications facilities,
generate NIER levels in excess of the standards and regulations of
the FCC, including but not limited to the FCC Office of Engineering
Technology Bulletin 65, entitled "Evaluating Compliance with FCC Guidelines
for Human Exposure to Radio Frequency Electromagnetic Fields," as
amended. The owner of a wireless telecommunications facility shall
annually certify, in writing, to the Town that NIER levels at the
site of the wireless telecommunications facility are within the threshold
levels adopted by the FCC.
Q.
Representations. Any and all representations made by the applicant
to the Board, on the record, during the application process, whether
written or verbal, shall be deemed a part of the application and may
be relied upon in good faith by the Board.
R.
Utility undergrounding. All utilities at a wireless telecommunications
facilities site shall be installed underground and in compliance with
all laws, rules and regulations of the Town, including specifically,
but not limited to, the National Electrical Safety Code and the National
Electrical Code where appropriate. The Board may waive or vary the
requirements of underground installation of utilities whenever, in
the opinion of the Board, such variance or waiver shall not be detrimental
to the health, safety, general welfare and environment, including
the visual and scenic characteristics of the area.
S.
SEQRA. With respect to the wireless telecommunications facility application
process, the Board intends to be the lead agency, pursuant to SEQRA.
The Board shall conduct an environmental review of the proposed project
in combination with its review of the application under this article.
The applicant shall submit an environmental impact assessment in order
to allow the Town to complete such review.
T.
Number of applications. An applicant shall submit to the Town Clerk
the number of completed applications determined to be needed at the
preapplication meeting. A copy of the application shall be provided
to the legislative body of all adjacent municipalities and to the
County Planning Department.
U.
Preapplication meeting. There shall be a preapplication meeting.
The purpose of the preapplication meeting will be to address issues
which will help to expedite the review and permitting process. A preapplication
meeting may also include a site visit. Where the application is for
the shared use of an existing tower-based wireless telecommunications
facility(s) or other high structure, the applicant should seek to
waive any section or subsection of this article that may not be required.
At the preapplication meeting, the waiver requests, if appropriate,
will be decided by the Board. Costs of the Town's consultants
to prepare for and attend the preapplication meeting will be borne
by the applicant.
V.
Modifications. The holder of a special use permit or the owner of
the wireless telecommunications facility proposed for modification,
if different, shall notify the Town of Olive concerning any intended
modification of a wireless telecommunications facility that constitutes
a substantial change and shall apply to the appropriate Town body
to modify, relocate or rebuild a wireless telecommunications facility.
Such notice shall be provided to the Town Board if a tower-based wireless
telecommunications facility or nontower wireless telecommunications
facility and to the Code Enforcement Officer if a small wireless telecommunications
facility. The holder of the special use permit shall not be required
to obtain a new special use permit. The application for modification
shall include the following information:
(1)
Construction drawings detailing the proposed modification(s) to the
wireless telecommunications facility, including depictions of the
wireless telecommunications facility both before and after the proposed
modification;
(2)
A brief narrative detailing the need for modification of the wireless
telecommunications facility; and
(3)
A description of the total dimensional change, if any, from the wireless
telecommunications facility originally constructed under the special
use permit.
W.
Graffiti. Any graffiti on a wireless support structure or on any
accessory equipment shall be removed at the sole expense of the owner
within 30 days of notification by the Town.
X.
Discontinued use. In the event that use of a wireless telecommunications
facility is to be discontinued, the owner shall provide written notice
to the Town of its intent to discontinue use and the date when the
use shall be discontinued. Unused or abandoned wireless telecommunications
facilities, or portions of wireless telecommunications facilities,
shall be removed as follows:
(1)
All abandoned or unused wireless telecommunications facilities and
accessory equipment shall be removed within 90 days of the cessation
of operations at the site unless a time extension is approved by the
Town.
(2)
If the wireless telecommunications facility or accessory equipment
is not removed within 90 days of the cessation of operations at a
site, or within any longer period approved by the Town, the wireless
telecommunications facility and/or associated facilities and equipment
may be removed by the Town and the cost of removal assessed against
the owner of the wireless telecommunications facility.
Y.
Relocation or removal of facilities. Within 90 days following written
notice from the Town, or such longer period as the Town determines
is reasonably necessary or such shorter period in the case of an emergency,
an owner of a small wireless telecommunications facility in the ROW
shall, at its own expense, temporarily or permanently remove, relocate,
change or alter the position of any wireless telecommunications facility
when the Town, consistent with its police powers, shall determine
that such removal, relocation, change or alteration is reasonably
necessary under the following circumstances:
(1)
The construction, repair, maintenance or installation of any town
or other public improvement in the right-of-way;
(2)
The operations of the Town or other governmental entity in the right-of-way;
(3)
Vacation of a street or road or the release of a utility easement;
or
(4)
An emergency as determined by the Town
Z.
Insurance.
(1)
The owner of a wireless telecommunications facility and any subcontractors
shall secure and at all times maintain public liability insurance
for personal injuries, death and property damage, and umbrella insurance
coverage, for the duration of the special use permit in amounts as
set forth below:
(2)
The commercial general liability insurance policy shall specifically
include the Town and its officers, boards, employees, committee members,
attorneys, agents and consultants and additional named insureds.
(3)
The insurance policies shall be issued by an agent or representative
of an insurance company licensed to do business in the state and with
a Best's rating of at least A.
(4)
The insurance policies shall contain an endorsement obligating the
insurance company to furnish the Town with at least 30 days'
prior written notice in advance of the cancellation of the insurance.
(5)
Renewal or replacement policies or certificates shall be delivered
to the Town at least 15 days before the expiration of the insurance
which such policies are to renew or replace.
(6)
Before construction of a permitted wireless telecommunications facilities
is initiated, but in no case later than 15 days after the grant of
the special use permit, the holder of the special use permit shall
deliver to the Town a copy of each of the policies or certificates
representing the insurance in the required amounts.
(7)
Proof of insurance in compliance with the requirements of this subsection
shall be submitted to the Town Code Enforcement Officer on an annual
basis.
AA.
Indemnification. Any application for a wireless telecommunications
facility that is proposed for Town property, pursuant to this article,
shall contain a provision with respect to indemnification. Such provision
shall require the applicant, to the extent permitted by the law, to,
at all times and at its sole cost and expense, indemnify, defend and
hold harmless the Town, its elected and appointed officials, employees
and agents, at all times against any and all claims for personal injury,
including death, and property damage arising in whole or in part from,
caused by or connected with any act or omission of the person, its
officers, agents, employees or contractors arising out of, but not
limited to, the construction, installation, operation, maintenance
or removal of the wireless telecommunications facility, including
violations of FCC regulations for compliance with limits on human
exposure to NIER. Each person that owns or operates a small wireless
telecommunications facility shall defend any actions or proceedings
against the Town in which it is claimed that personal injury, including
death, or property damage was caused by the construction, installation,
operation, maintenance or removal of the wireless telecommunications
facility. The obligation to indemnify, hold harmless and defend shall
include, but not be limited to, the obligation to pay judgments, injuries,
liabilities, damages, reasonable attorneys' fees, reasonable
expert fees, court costs and all other costs of indemnification.
BB.
Inspection.
(1)
In order to verify that the holder of a special use permit for
wireless telecommunications facilities and any and all lessees, renters
and/or licensees of wireless telecommunications facilities place and
construct such facilities, including towers and antennas, in accordance
with all applicable technical, safety, Fire, Building and Zoning Codes,
laws, and regulations, and other applicable requirements, the Town
may inspect all facets of said permit holder's, renter's,
lessee's or licensee's placement, construction, modification
and maintenance of such facilities, including, but not limited to,
wireless support structures, antennas and buildings, or other structures
constructed or located on the permitted site.
(2)
The Town shall pay for costs associated with such an inspection,
except for those circumstances occasioned by said holder's, lessee's
or licensee's refusal to provide necessary information or necessary
access to such wireless telecommunications facilities, including towers,
antennas and appurtenant or associated facilities, or refusal to otherwise
cooperate with the Town with respect to an inspection, or if violations
of this article are found to exist, in which case the holder, lessee
or licensee shall reimburse the Town for the cost of the inspection.
(3)
Payment of such costs shall be made to the Town within 30 days
from the date of the invoice or other demand for reimbursement. In
the event that the finding(s) of violation is/are appealed in accordance
with the procedures set forth in this article, said reimbursement
payment must still be paid to the Town and the reimbursement shall
be placed in an escrow account established by the Town specifically
for this purpose, pending the final decision on appeal.
CC.
Default and/or revocation.
(1)
If wireless telecommunications facilities are repaired, rebuilt,
placed, moved, relocated, modified or maintained in a way that is
inconsistent or not in compliance with the provisions of this article
or of the special use permit, then the Board shall notify the holder
of the special use permit, in writing, of such violation. Such notice
shall specify the nature of the violation or noncompliance and that
the violations must be corrected within seven days of the date of
the postmark of the notice, or of the date of personal service of
the notice, whichever is earlier. Notwithstanding anything to the
contrary in this subsection or any other section of this article,
if the violation causes, creates or presents an imminent danger or
threat to the health or safety of lives or property, the Board may,
at its sole discretion, order the violation remedied within 24 hours.
(2)
If, within the period set forth in Subsection CC(1) above, the wireless telecommunications facilities are not brought into compliance with the provisions of this article, or of the special use permit, or substantial steps are not taken in order to bring the affected wireless telecommunications facilities into compliance, then the Board may revoke such special use permit for wireless telecommunications facilities and shall notify the holder of the special use permit within 48 hours of such action.
DD.
Transfer of ownership. In the event that ownership of a wireless
telecommunications facility is transferred to a person other than
the person of ownership at the time of application, the owner of the
wireless telecommunications facility shall provide notice of such
transfer to the Town Clerk no less than 60 days in advance of such
transfer of ownership. Any applicable certificates of insurance or
agreements to indemnify shall be updated to reflect the new owner
of the wireless telecommunications facility no less than 15 days prior
to the transfer of ownership.
A.
At any time between 12 months and six months prior to the five-year
anniversary date after the effective date of the special use permit
and all subsequent fifth anniversaries of the effective date of the
original special use permit for wireless telecommunications facilities,
the holder of a special use permit for such wireless telecommunication
facilities shall submit a signed written request to the Board for
recertification. In the written request for recertification, the holder
of such special use permit shall note the following:
(1)
The name of the holder of the special use permit for the wireless
telecommunications facilities.
(2)
If applicable, the number or title of the special use permit.
(3)
The date of the original granting of the special use permit.
(4)
Whether the wireless telecommunications facilities have been moved,
relocated, rebuilt or otherwise modified since the issuance of the
special use permit, and, if so, in what manner.
(5)
If the wireless telecommunications facilities have been moved, relocated,
rebuilt or otherwise modified, then whether the Board approved such
action, and under what terms and conditions, and whether those terms
and conditions were complied with.
(6)
Any requests for waivers or relief of any kind whatsoever from the
requirements of this article and from any requirements for a special
use permit.
(7)
That the wireless telecommunications facilities are in compliance
with the special use permit and in compliance with all applicable
codes, laws, rules and regulations.
(8)
Recertification that the telecommunications tower and attachments
both are designed and constructed ("as built") and continue to meet
all local, county, state and federal structural requirements for loads,
including wind and ice loads. Such recertification shall be by a qualified
New York State licensed professional engineer acceptable to the Town,
the cost of which shall be borne by the applicant.
B.
If, after such review, the Board determines that the permitted wireless
telecommunications facilities are in compliance with the special use
permit and all applicable statutes, laws, local laws, codes, rules
and regulations, then the Board shall issue a recertification special
use permit for the wireless telecommunications facilities, which may
include any new provisions or conditions that are mutually agreed
upon, or required by applicable statutes, laws, local laws, codes,
rules and regulations. If, after such review, the Board determines
that the permitted wireless telecommunications facilities are not
in compliance with the special use permit and all applicable statutes,
local laws, codes, rules and regulations, then the Board may refuse
to issue a recertification of the special use permit for the wireless
telecommunications facilities, and, in such event, such wireless telecommunications
facilities shall not be used after the date that the applicant receives
written notice of such decision by the Board. Any such decision shall
be in writing and supported by substantial evidence contained in a
written record.
C.
If the applicant has submitted all of the information requested by the Board and required by this article, and if the Board does not complete its review, as noted in Subsection B of this section, prior to the five-year anniversary date of the special use permit, or subsequent fifth anniversaries, then the applicant for the permitted wireless telecommunications facilities shall receive an extension of the special use permit for up to six months in order for the Board to complete its review.
D.
If the holder of a special use permit for wireless telecommunications facilities does not submit a request for recertification of such special use permit within the timeframe noted in Subsection A of this section, then such special use permit and any authorizations granted thereunder shall cease to exist on the date of the fifth anniversary of the original granting of the special use permit, or subsequent fifth anniversaries, unless the holder of the special use permit adequately demonstrates to the Board that extenuating circumstances prevented a timely recertification request. If the Board agrees that there were legitimately extenuating circumstances, then the holder of the special use permit may submit a late recertification request or application for a new special use permit.
A.
In the event of a violation of this article or any special use permit
issued pursuant to this article, the Board may impose and collect,
and the holder of the special use permit for wireless telecommunications
facilities shall pay to the Town, fines or penalties as set forth
below.
B.
A violation of this article is hereby declared to be an offense,
punishable by a fine not exceeding $350 or imprisonment for a period
not to exceed six months, or both, for conviction of a first offense;
for conviction of second offense, both of which were committed within
a period of five years, punishable by a fine not less than $350 nor
more than $700 or imprisonment for a period not to exceed six months,
or both; and, upon conviction for a third or subsequent offense, all
of which were committed within a period of five years, punishable
by a fine not less than $700 nor more than $1,000 or imprisonment
for a period not to exceed six months, or both. However, for the purpose
of conferring jurisdiction upon courts and judicial officers generally,
violations of this article or of such law or regulation shall be deemed
misdemeanors and for such purpose only all provisions of law relating
to misdemeanors shall apply to such violations. Each week's continued
violation shall constitute a separate additional violation.
C.
Notwithstanding anything in this article, the holder of the special
use permit for wireless telecommunications facilities may not use
the payment of fines, liquidated damages or other penalties to evade
or avoid compliance with this article or any section of this article.
An attempt to do so shall subject the holder of the special use permit
to termination and revocation of the special use permit. The Town
may also seek injunctive relief to prevent the continued violation
of this article, without limiting other remedies available to the
Town.
Any applicant desiring relief or exemption from any aspect or
requirement of this article may request such from the Board at a preapplication
meeting, provided that the relief or exemption is contained in the
original application for either a special use permit or, in the case
of an existing or previously granted special use permit, a request
for modification of its tower and/or facilities. Such relief may be
temporary or permanent, partial or complete, at the sole discretion
of the reviewing body. However, the burden of proving the need for
the requested relief or exemption is solely on the applicant to prove
to the satisfaction of the reviewing body. The applicant shall bear
all costs of the Board or the Town in considering the request, and
the relief shall not be transferable to a new or different holder
of the permit or owner of the tower or facilities without the specific
written permission of the Town. Such permission shall not be unreasonably
withheld or delayed. No such relief or exemption shall be approved
unless the applicant demonstrates by clear and convincing evidence
that, if granted, the relief or exemption will have no significant
effect on the health, safety and welfare of the Town, its residents
and other service providers.
A.
The Board may at any time conduct a review and examination of this
entire article.
B.
If after such a periodic review and examination of this article the
Board determines that one or more provisions of this article should
be amended, repealed, revised, clarified or deleted, then the Board
may take whatever measures are necessary in accordance with applicable
law in order to accomplish the same. It is noted that where warranted,
and in the best interests of the Town, the Board may repeal this entire
article at any time.
A.
To the extent that the holder of a special use permit for wireless
telecommunications facilities has not received relief, or is otherwise
exempt, from appropriate state and/or federal agency rules or regulations,
then the holder of such a special use permit shall adhere to, and
comply with, all applicable rules, regulations, standards and provisions
of any state or federal agency, including, but not limited to, the
FAA and the FCC. Specifically included in this requirement are any
rules and regulations regarding height, lighting, security, electrical
and RF emission standards.
B.
To the extent that applicable rules, regulations, standards and provisions
of any state or federal agency, including, but not limited to, the
FAA and the FCC, and specifically including any rules and regulations
regarding height, lighting and security, are changed and/or are modified
during the duration of a special use permit for wireless telecommunications
facilities, then the holder of such a special use permit shall conform
the permitted wireless telecommunications facilities to the applicable
changed and/or modified rule, regulation, standard or provision within
a maximum of 24 months of the effective date of the applicable changed
and/or modified rule, regulation, standard or provision, or sooner
as may be required by the issuing entity.
Where this article differs or conflicts with other laws, rules
and regulations, including the existing Town of Olive Zoning Law,[1] unless the right to do so is preempted or prohibited by
the county, state or federal government, that which is more restrictive
or protective of the Town and the public shall apply.
This article is enacted pursuant to the Municipal Home Rule
Law. This article shall supersede the provisions of Town Law to the
extent it is inconsistent with the same, and to the extent permitted
by the New York State Constitution, the Municipal Home Rule Law, or
any other applicable statute.
