For purposes of this chapter, and where not
otherwise inconsistent with the context of a particular section, the
defined terms, phrases, words, abbreviations and their derivations
shall have the meanings given in this section. When not inconsistent
with the context, words in the present tense include the future tense,
words used in the plural number include words in the singular number,
and words in the singular number include the plural number. The words
"shall" and "will" are always mandatory and not merely directive.
ABANDONMENT
The cessation of use of a system and the provision of any
service by or using the system, or any portion of the system, or any
component, facility or equipment of the system or service in the Village
for a period of time greater than 60 consecutive days.
ACTIVATED
The ability to deliver any type of service using the system
or otherwise using the system to transmit and provide service.
ADMINISTRATOR
A.
The individual or organization designated by
the Village Board to act as the technical and administrative liaison
or representative of the Village, the subscriber or users, and the
public in the Village in matters related to the provision of this
chapter and any franchise as defined in this section.
B.
The Administrator may be designated as the point
of contact for all matters under this chapter and that relate to a
franchise or a system owner or operator or service provider. If designated,
unless specifically directed otherwise by the Village Board, it shall
at all times be presumed that the Administrator is acting as the Village
Board's designee and under the Board's direction.
AFFILIATE
When used in relation to any person, means another person
or entity who owns or controls, is owned or controlled by or is under
common ownership or control of such person.
APPLICANT
A person or legal entity submitting an initial application
or proposal to the Village for a franchise to operate a system or
to provide service under the terms and conditions set forth in this
chapter and in any franchise and in compliance with any state rules
or regulations.
APPLICATION or PROPOSAL
Are synonymous and mean the documents submitted, and on which
the Village is intended, in good faith, to rely, for the purpose of
being granted a franchise by the Village. An application or proposal
shall be deemed to include all written representations and supporting
documentation submitted by an applicant to the Village for the purpose
of being granted the privilege to occupy or use the Village's property
or rights-of-way for commercial purposes as intended under this chapter.
ASSIGNMENT or TRANSFER
The act of changing the person or entity who has ultimate
control of the franchisee, the system or the franchise, whether such
control is direct or indirect, transfer or assignment is deemed to
be any change in control, in whole or in part, whether by sale, assignment,
merger, consolidation, lease or other form of alienation, or any change
in the ultimate legal or financial control of the person or entity
granted a franchise.
BOARD or VILLAGE BOARD
The Village Board for the Village of Woodbury, New York,
which is the legislative body for the Village of Woodbury, New York.
For purposes of clarification, the Village Board is the franchising
authority for the Village of Woodbury, New York.
BROADBAND
A technology having a capacity of more than 28.8 kilobits
per second of bandwidth.
CABLE ACT or CCPA
The Cable Communications Policy Act of 1984, as amended by
the Cable Television Consumer Protection Act of 1992 and the Telecommunications
Act of 1996.
CABLE OPERATOR
Any person or group of persons who:
A.
Provides cable service or video programming
service over a system and, whether directly or through one or more
affiliates, owns a significant or attributable interest in such system;
or
B.
Otherwise controls or is responsible for, through
any arrangement, the management and operation of such a system.
CHANGE IN CONTROL or CHANGE OF CONTROL
Are synonymous terms for the purpose of this chapter and
mean any change in the control of the system, system owner or operator
or service provider, as control is defined in this section.
CHANNEL
A band or group of frequencies in the electromagnetic or
light spectrum, including the radio frequency spectrum, using any
other means of wireline transmission, including, without limitation,
wires, cable, optical fibers or any functional equivalent which has
the ability to carry a video signal in the National Television Systems
Committee (NTSC) or functionally equivalent format or in any format
devised or approved in the future by the Federal Communications Commission
(FCC), or an audio, voice or data signal. All video channels shall
include their vertical and horizontal blanking intervals and all information
contained therein, all other components of the video signal, all aural
components of the signal, including subcarriers, and all closed-captioning
intended for reception by the hearing impaired and others. Such shall
be transmitted and provided to subscribers or users on the system,
unless the operator deletes them in accordance with FCC, copyright
and other applicable rules.
COLLECTION CHARGE
A charge or fee assessed on a user or subscriber for efforts
or attempts to collect a past due and/or delinquent account.
COMPLETE or COMPLETION
Means with respect to any construction, reconstruction, rebuilding,
upgrading or repair of the system, that, in each instance:
A.
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
B.
All cable or fiber has been placed correctly
in trenches in areas serviced underground as required by applicable
code and this chapter, the trenches have been refilled, all disturbed
road surfaces have been restored as required and all landscaping restoration
has been completed as required;
C.
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;
D.
Primary and backup/standby power supplies, as
required, have been installed and operate properly;
E.
All bonding and grounding, as required, has
been completed;
F.
Construction, reconstruction or upgrading of
all headends, hubs and nodes, as applicable, has been completed, and
all necessary processing equipment has been installed therein and
is functioning as required; and
G.
Any and all other construction, reconstruction
or upgrading necessary for the system to deliver service to subscribers
or users has been completed, including, in the case of a rebuild or
upgrade of the system, the replacement of drops to each and every
subscriber or user unit passed if such is either needed or proposed,
pursuant to the plans, specifications, representations and commitments
submitted to and approved or accepted by the Village.
H.
All required testing has been completed successfully
on each new or technologically upgraded portion of the system and
shall demonstrate compliance with all applicable FCC and PSC technical
rules to the Village's satisfaction, including, but not limited to,
proof-of-performance tests, as may be appropriate or required, unless
the Village is expressly prohibited by law or rule from requiring
such demonstration, services provided to any segments of the system
in the Village will be activated only when the required testing has
been done and the system operates as required and never before.
I.
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.
J.
The term "completion," in relation to the construction,
reconstruction, upgrade or rebuild, does not include the marketing
and installation of subscriber or user service.
K.
Any construction, reconstruction, upgrade or
rebuild shall not be deemed complete unless and until the system is
capable of delivering all services to all addresses in any area being
constructed, reconstructed, upgraded or rebuilt. If applicable, any
construction, reconstruction, upgrade or rebuild shall not be deemed
complete until the wreck out or removal of the old segments of the
system has been completed to the reasonable satisfaction of the Village.
CONSUMER
See the definitions for "subscriber" or "user."
CONTROL
Any person or entity holding legal or financial control of
or over the holder of the franchise or the service provider, regardless
of whether such control is direct or indirect or is exercised or is
permitted to be exercised directly or indirectly through other persons,
holdings or entities. Control shall always be deemed to rest in the
hands of any person or entity that has the right or authority to establish
or change any policy or practice of the holder of the franchise or
the service provider, whether such control may be exercised directly
or indirectly through other persons, holdings or entities.
CUSTOMER
A subscriber or user of any service and/or facility of the
system or service provider.
DISASTER EMERGENCY
An imminent, impending or actual natural or humanly induced
situation wherein the health, safety or welfare of the residents of
the Village is threatened. By way of illustration, a disaster emergency
may include a severe climatic or meteorological storm, dam failure,
flood, tornado, hazardous waste infiltration, fire, petroleum or chemical
spill, explosion, vehicle accident of significant effect or aircraft
crash.
EASEMENT
Shall include any compatible use easement, whether created
by dedication to the Village or by other means, for public utility
purposes or any other purpose primarily benefiting the general public.
Easement shall also include a private easement granted by a private
property owner for the same or similar purposes.
EQUIPMENT
Equipment supplied by the system owner or operator or service
provider which is used to provide, enhance or assist in the reception
or provision of service.
FCC
The Federal Communications Commission and/or such other federal
regulatory agency as in the future may have jurisdiction to oversee
the operation of service providers and their systems.
FCC TECHNICAL RULES
The technical rules and standards of the Federal Communications
Commission as set forth in Part 76, Subpart K (Technical Standards)
of the FCC's rules, 76 CFR 76.601 et seq., as amended from time to
time.
FRANCHISE
The document of authorization granted by the Village, regardless
of the type of authorization, whether such authorization is a use,
occupancy or operating authority, that permits a person to occupy
and use the Village's property and rights-of-way for commercial purposes
as intended under this chapter, including to construct, operate, rebuild,
replace, upgrade, maintain and repair the system and to provide service
in the Village. A franchise shall also include as an inseparable part
any application or proposal for a franchise and any information contained
therein on which the Village was intended to rely. The particular
type and scope of franchise, and any distinction between any type
of franchises, may be dependent upon the scope of authority the Village
has over a given type of system owner or operator or provider of service.
FRANCHISE AGREEMENT
The agreement or contract which the Village and a system
owner or operator or a service provider enter into and that specifies
the contractual agreements or commitments between the parties and
which may also serve as a franchise granting the authority to own
and operate a system or provide service within all or a part of the
Village by using or occupying the Village's property or rights-of-way
in accordance with the Village's franchising authority and any other
authority, including its police powers. Subject to applicable law,
rule and regulation, a franchise agreement may be different in scope
and content from other permissible types of grants of authority by
the Village.
FRANCHISEE
Any system owner or operator or service provider that has
been granted a valid franchise by the Village and that is subject
to the Village's regulatory authority as set forth in this chapter
and applicable state law, rules or regulation.
FRANCHISE FEE
A fee charged a service provider or system owner or operator
by the Village for the cost of administering the franchise.
FUNCTIONAL EQUIVALENT or FUNCTIONALLY EQUIVALENT
A.
Something that:
(1)
Is used or is intended to accomplish the same
purpose; or
(2)
Has the same or substantially similar characteristics,
qualities and capabilities; or
(3)
Operates or functions in substantially the same
form and fashion; or
(4)
Operates or functions in a superior manner.
B.
With respect to matters not involving equipment,
the term also means something that equates to or is intended to effect
the same or a substantially similar outcome or function in effectively
the same manner or for the same purpose.
GRANDFATHER or GRANDFATHERED
To retain or preserve a right, privilege or authority held,
so long as the retention or preservation is expressly stated.
GROSS REVENUE
A.
For any period of time, any and all revenues
or other valuable consideration of any kind which are derived from
the operation of the system and/or the provision of service within
the Village and that are attributable to or occasioned by the grant
of the franchise, regardless of the corporate or organizational relationship
of the recipient of the revenue with the owner or operator of the
system or the service provider. The following, but only the following,
shall not be deemed a part of gross revenue:
(1)
Bad debts attributable to the provision of service
within the Village in the normal course of its business that, if booked,
are actually written off, provided that subsequent recovery of bad
debts previously deducted shall be included in gross revenue in the
next reporting/payment period; and
(2)
Refunds actually paid to subscribers or users.
B.
With respect to service providers classified
as cable operators, gross revenues shall also not include any revenue
expressly exempted by the Cable Act of 1984 or by state law. For any
revenue that an owner or operator of a system or a service provider
seeks to have exempted from this definition of gross revenue, such
person shall have the burden of proving to the Village that any such
excluded revenue is expressly exempted by the federal law, state law,
a final or unappealed federal or state judicial ruling by a court
of competent jurisdiction or by specific FCC ruling. Including, but
not limited to the preceding, gross revenues shall not include the
following:
(1)
Any tax of general applicability imposed upon
a franchisee or other service provider or an owner or operator of
a system or upon subscribers or users of any service or system by
state or federal governmental agency and that is required to be collected
by the system owner or operator or the service provider and is remitted
to the taxing entity (including, but not limited to, property taxes,
user taxes, service taxes and communications taxes), provided that
such taxes are identified as a separate line item on subscriber or
user bills or statements;
(2)
Any revenue received by a service provider or
an owner or operator of a system from any third party for revenue
not attributable, in whole or in part, to the operation of its system
or the provision of service in the Village and which does not use
or rely upon the use of the system or service; and
(3)
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.
C.
In computing gross revenues from sources other
than subscriber or user or service revenue where it is not practicable
to isolate the amount specifically derived from within the Village
and that is attributable to the grant of a franchise or the operation
of a system or the provision of service both inside the Village and
outside the Village, the total or aggregate revenue received from
such sources shall be computed as follows: Said revenues shall be
multiplied by a fraction, the numerator of which shall be the number
of subscribers or users in the Village as of the last day of the required
payment period and the denominator of which shall be the number of
subscribers or users within all areas served by the franchisee or
other service provider or the owner or operator of a system as of
the last day of the required payment period. The result shall then
be multiplied by the percentage used to compute the required fee that
is assessed as a percentage of revenue. For purposes of example only,
the following are types and sources of revenue intended to be included
in gross revenues in such situations, regardless of the familial or
organizational relationship of the recipient of the revenue with the
system owner or operator or service provider.
(1)
The sale or rental of subscriber or user lists;
(3)
Payments from programmers and shopping services;
(4)
Commissions or bonuses of any kind from vendors
or programmers that are attributable to the grant of authority under
this chapter;
(5)
Rebates from programmers and vendors of any
kind for services that are attributable to the grant of authority
under this chapter;
(6)
Viewing guide sales, including electronic guides;
(7)
The lease or sale of channel capacity;
(8)
Payments or commissions from 900 phone numbers
advertised on the service or system; and
(9)
Interconnection charges or income.
IMPRACTICABLE
When used in a noneconomic or nonfinancial or noncommercial
context, shall have the meaning ascribed in the most current edition
of Webster's Encyclopedic Unabridged Dictionary of the English Language.
INITIAL ACTIVATION or INITIALLY PROVIDING SERVICE or INITIAL
PROVISION OF SERVICE
With respect to a particular portion, part or segment of
the system, or group of segments, or the entire system, that all services
and system capabilities, as stated in a franchise or in any application
or proposal for franchise, are available and usable and that the construction,
reconstruction, rebuild or upgrade has been completed and the completed
segment(s) of the system involved or the entire system is capable
of actually delivering the services intended to each and every subscriber
or user and residence or business in each segment, pursuant to the
plans and specifications as may have been approved, accepted or relied
upon in good faith by the Village.
INSTALLATION CHARGE or CONNECTION FEE
That charge or fee imposed on a subscriber or user for the
initial installation or reconnection of service, or the relocation
of equipment necessary to obtain or use services or the system.
INTERNET
That interconnected combination of networks that evolved
from the original ARPANET experiment and the National Science Foundation
subsidized Internet and the interconnection of networks that provides
user-to-user or address-to-address communications services, broadband
service, other programming services or data services.
INTERNET ACCESS
The availability of access of the Internet to a subscriber
or user and the service that enables a subscriber or user to use the
Internet.
LAW
The Wireline Telecommunications Law for the Village of Woodbury,
New York.
LEASED ACCESS
The capacity that a system owner or operator or service provider,
including a cable operator or open video system operator, has designated
for use by commercial users, pursuant to, but not limited by, Section
612 (at 47 U.S.C. § 532) of the Communications Act of 1934,
as amended.
LINE EXTENSION
An extension of the system requiring additional trunk or
feeder cable, or both, fiber optic cable, active electronic equipment
to amplify the signal or an additional fiber node, but does not include
individual service drops beyond 200 feet that may require additional
feeder cable or the functional equivalent of such.
LOSS OF SERVICE or SERVICE OUTAGE
A.
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.
B.
More than one instance of a loss of service
from the same portion of the system or that affects the same address
or addresses within the Village that occurs within a twenty-four-consecutive-hour
period shall be deemed a single, continuous loss of service.
MAYOR
The Mayor of the Village of Woodbury.
NODE or FIBER NODE
That facility at which signals are received in light-wave
form and transmitted, retransmitted, relayed or otherwise provided
to other portions of the system in light-wave form or are converted
to RF signals or a functional equivalent type of signal and are transmitted,
retransmitted, relayed or otherwise provided to other portions of
the system in the Village or elsewhere outside the Village.
NONRENEWAL
Not granting a new franchise to an incumbent system owner
or operator or service provider to operate a system or provide service
within the Village.
NORMAL OPERATING CONDITIONS
A.
Those conditions which are reasonably within
the control of the system owner or operator or service provider with
respect to the operation, maintenance and repair of the system and
the provision of service within the Village. Those conditions which
are not within the control of the system owner or operator or service
provider include labor strikes, sabotage, riots or civil disturbances
of a disastrous nature and effect, explosions, acts of public enemies,
unusually severe or catastrophic weather conditions, natural disasters
as declared by appropriate government officials, fires and wide-spread
commercial power failures that exceed the capabilities of the backup
or standby power supplies and capability of the system.
B.
Those conditions which are expressly deemed
to be within the control of the system owner or operator or service
provider include, but are not limited to, financial situations other
than the declaration of bankruptcy or insolvency, marketing promotions,
loss of standby power up to the period of time for which the manufacturer
has rated the standby power unit to operate, rate increases, regular
or periodic periods of high demand with respect to labor intensive
functions, the regular inspection and maintenance of the system, required
testing of the system, the timely remedy of safety and other code
violations and the timeliness and technological design with respect
to any upgrade of the system.
OTHER PROGRAMMING OR COMMUNICATIONS SERVICES
Information or service that a system owner or operator or
service provider makes available to all subscribers or users generally,
including, but not be limited to, video, telephony and other voice
services and the transmission of data.
PERSON
Any individual, corporation, entity, estate, trust, partnership
or any association of two or more persons or entities having a joint
common interest or a joint-stock company.
PRIMARY SERVICE AREA
That portion of the Village required or committed to be built
and operated under a franchise.
PROPERTY
All the property owned, installed, rented, leased or used
by a system owner or operator or service provider holding a franchise
granted under or otherwise subject to this chapter that is utilized
in the operation of the system or the provision of service in the
Village.
PROPOSAL or APPLICATION
A written request to use or occupy the Village's property
and rights-of-way for the purpose of constructing, operating, maintaining
or repairing a system or to provide service in the Village using the
public property and rights-of-way of the Village.
PSC
The Public Service Commission of the State of New York or
any successor agency or Commission.
RATE
The periodic price paid by a subscriber or user for the receipt
of any service provided by a system owner or operator or service provider
or the use of the system by a user.
RENT
The compensation paid to the Village by a system owner or
operator or service provider for the occupation and use of the public
property and rights-of-way of the Village for commercial purposes.
SCHEDULED OUTAGE
Any planned service interruption or diminution of signals
for which the Village and subscribers or users are required to be
and have been notified in advance and that does not exceed four hours
in duration for any given address.
SERVICE
Any service that is provided by means of a system in the
Village and shall include any service, use or other activity provided
for commercial purposes that uses or is provided by means of the use
of the system, regardless of the technology employed.
SERVICE INTERRUPTION
The loss of any service or incremental level of service or
separately priced service, such as any service offered on a per-channel,
per-event or per-showing basis or any other services that are delivered
or provided by means of or that use a system or any components of
the system.
SERVICE PROVIDER
Any person who provides service using a system that occupies
or uses the Village's property or rights-of-way using broadband technology
or otherwise providing service using a system as defined in this section
and who owns a significant or attributable interest in the provider
of such service or in the system; or who, through any arrangement,
otherwise controls or is responsible for the management and operation
of a service or system in the Village or who has the authority to
establish or change policy or order the establishment or change of
policy with respect to the provision of service or the system within
the Village.
SIGNIFICANT INTEREST or ATTRIBUTABLE INTEREST
Any person or entity who directly or indirectly holds or
owns a five-percent interest or ownership position in a system or
the holder of a franchise permitting the construction and operation
of a system or the provision of service in the Village.
SMATV
Satellite master antenna television.
SMATV SYSTEM
A private system that does not cross or in any manner use
any public or Village-owned property or rights-of-way and which is
located entirely on private property and serves only private dwellings.
STATE
The State of New York.
STREET
The surface of and the space above and below a public street,
path or thoroughfare designated for vehicular and/or pedestrian traffic
and any easements associated therewith or other easement now or hereafter
held by the Village and includes any sidewalks or other paved pedestrianways
and any public or Village-owned rights-of-way.
SUBSCRIBER
A person lawfully receiving service delivered by a system
owner or operator or a service provider.
SYSTEM or TELECOMMUNICATIONS SYSTEM
A facility consisting of a set of closed transmission paths
and associated facilities and equipment that is designed to provide
service of a commercial nature, which includes the transmission of
video, voice and data, or any combination of such services or transmissions,
and voice-activated or electronic ordering capability or other uses
or services which are provided to subscribers or users within the
Village, including the provision or use of data used to maintain and
operate the system. However, telecommunications system or system does
not include the following:
A.
A facility that serves only to retransmit the
television signals of one or more broadcast stations; or
B.
A facility that serves only subscribers or users
in one or more multiple unit dwellings under common ownership, control
or management, unless such facility occupies or uses any Village-owned
property or Village rights-of-way for the provision of or to distribute
service or to generate revenue for commercial purposes, in which case
it shall be deemed a system; or
C.
A facility of a common carrier which is subject
to the provisions of Title II of the Communications Act of 1934, as
amended, but only to the extent that such exemption relates to the
services provided at the time the operating authority was originally
granted, or that state or federal law, rule or regulation expressly
exempts from compliance with this chapter.
D.
Any facilities of any electric utility used
solely for operating its electric utility.
TECHNICAL VIOLATION
A violation of this chapter or any franchise that is of de
minimus negative effect on the Village or the public and that is not
repeated after notice by the Village. Notwithstanding the preceding,
a history or repeated pattern of the same or similar technical violations
shall not be deemed a technical violation.
TRANSFER
Any change in the ownership or legal or financial control
of the entity granted a franchise or the person or other legal entity
that, directly or indirectly through another person or legal entity,
has financial or legal control over the holder of the franchise granted
by the Village and who may order the establishment or change of policy
as regards the operation of the system or the provision of service
within the Village. For purposes of this chapter, a merger or consolidation
of any kind shall be deemed a transfer. Any instance where the approval
of the FCC or other federal agency or a state agency is required shall
also be deemed a transfer and require the consent and approval of
the Village Board.
TRANSFEREE
The new holder of a franchise or other use or operating authority
or the new possessor of legal or financial control of the entity granted
a franchise, as approved by formal action of the Village Board.
USER
A person utilizing a system and/or its equipment, facilities
or capabilities for commercial purposes, as opposed to the receipt
of service as a subscriber to service.
VIDEO PROGRAMMING
Programming generally considered comparable to programming
historically provided by a television broadcast station or satellite
distributed video programmer that is intended for mass reception.
Further, video programming means a service whose use and value is
largely determined by being able to be viewed.
VIDEO SERVICE
The provision of cable television service or video programming
service or other functionally equivalent video subscription service.
VILLAGE
The Village of Woodbury, New York.
WIRELESS or WIRELESS SERVICE
Any service that is transmitted through the air, whether
employing microwave, radio frequency or a functionally equivalent
technology. Programming from AM or FM radio broadcast stations received
directly by the public off-air shall not be deemed wireless service.
WIRELINE or WIRELINE SERVICE
A system or service that is provided through a wire, line,
cable, fiber or any functionally equivalent closed system. A franchise
for wireline service shall not automatically or inherently include
the authority to receive, transmit, carry or transport wireless service.
In order for a wireline telecommunications franchise to carry, transport
or transmit wireless service, the franchise must expressly grant permission
to do so.
WORKDAY or WORKING DAY
Those days when the majority of retail businesses in the
Village are customarily open for business.
WRECK OUT
In the context of and with respect to any construction, rebuild,
upgrade, modification or maintenance activity of a system, the removal
of the old cable, wires, parts and components of any portion of the
system not currently and actively used in the provision of service
in the Village.
It being a reasonable assumption that responsible
persons of good intent will comply with laws, and to prevent the Village
from having to constantly monitor compliance with each and every aspect
of a service provider's or system owner's or operator's every action,
a service provider or system owner or operator shall not be excused
from complying with any of the requirements of this chapter or any
subsequently adopted amendments to this chapter by any failure of
the Village on any one or more occasions to seek or insist upon prompt
compliance with such requirements or provisions.
Any prior resolution, ordinance, code or Village
law which, in part or in whole, is directly inconsistent with this
chapter is hereby deemed unenforceable to the extent of the inconsistency
as regards service providers or system owners or operators subject
to this chapter.
In any case of an actual inconsistency between
any provision or section of this chapter and any provision or section
of a federal or state law, rule or regulation which expressly supersedes
or preempts local authority on the matter, but only to the extent
that it expressly does so, then the federal or state law, rule or
regulation shall supersede the effect of the applicable provision
of this chapter and shall control in any local application.
Where there is a conflict, whether actual or
perceived, between this chapter and a franchise granted subsequent
to the effective date of this chapter, this chapter shall control,
unless judicially determined to be invalid or unenforceable by a court
of competent jurisdiction.
Notwithstanding the provisions contained in §
305-93 of this chapter, a service provider or system owner or operator shall not be subject to penalties, fines, forfeitures, revocation or involuntary termination of a franchise for a technical violation of this chapter or a technical breach of a franchise. For purposes of this chapter, technical violations or breaches include the following:
A. Instances or matters where a violation of this chapter
or, where applicable, of a franchise, was a good faith error that
resulted in no negative impact on the residents, subscriber or users
within the Village or on the Village itself or where such violation
resulted in de minimus effect on any of the preceding persons or the
Village; or
B. Instances or circumstances that are reasonably beyond
the control of a service provider or system owner or operator, including
force majeure situations, and that prevent a service provider or system
owner or operator from complying with this chapter or the franchise.
A service provider or system owner or operator
shall not be held in violation, material breach, default or noncompliance
of this chapter or a franchise nor suffer any penalty related thereto,
including, where applicable, involuntary termination, cancellation
or revocation of a franchise, where such violation, breach, default
or noncompliance was caused by a natural disaster, such as an earthquake,
flood, tidal wave, hurricane or similar devastating act of nature,
or any other event that is reasonably beyond a service provider's
or system owner's or operator's ability to anticipate and control
or that is of a devastating nature or effect on the system. Force
majeure situations shall also include strikes, riots, wars and armed
insurrections, as well as work delays caused by having to wait for
utility providers to service or monitor their own utility poles on
which a service provider or system owner's or operator's cable, wires'
facilities and/or equipment is attached, as such may be necessary
for the service provider or system owner or operator to comply with
this chapter.
Notwithstanding other insurance and bond requirements,
a service provider or system owner or operator shall obtain and maintain
any other required types of insurance and bonds, including, but not
limited to, workers' compensation insurance and automobile liability
insurance, that are mandated by either federal or state law, rule
or regulation in at least the required minimum amounts and according
to the minimum terms and provisions mandated by either the federal
or state law, rule or regulation.
As a matter of consumer protection the Village
establishes the following regulations related to access to or the
refusal of any service.
A. Except for normal sales and sales retention efforts,
no service provider or system owner or operator shall engage in any
activity or practice which is designed to prohibit or inhibit or has
the effect of inhibiting or prohibiting a subscriber or user from
switching from one service provider or system owner or operator to
another service provider or system owner or operator or disconnecting
from one service provider or system owner or operator in order to
connect and receive service from another service provider or system
owner or operator or simultaneously receiving service from more than
one service provider or system owner or operator.
B. No service provider or system owner or operator shall
engage in any activity or practice which has the effect of acting
as a penalty or negative disincentive for a subscriber or user switching
from one service provider or system owner or operator to another service
provider or system owner or operator; or disconnecting from one service
provider or system owner or operator in order to connect and receive
service from another service provider or system owner or operator;
or simultaneously receiving service from more than one service provider
or system owner or operator.
C. No person or member of the public shall be penalized
or fined by a service provider or system owner or operator, whether
through a home sales contract, a deed containing restrictive covenants
or any other type or instrument of agreement or restriction, for failing
or refusing to subscribe to or receive service of any kind or for
failing or refusing to physically connect to a service provider's
or system owner's or operator's system; nor shall any person incur
penalties, fines or costs of any kind for failing or refusing to connect
to a service provider's facilities or a system owner's or operator's
system or for failing or refusing to subscribe to or receive service.
D. Failure to meet the requirements of this section may,
at the discretion of the Village Board, result in fines or penalties
as set forth in this chapter.
As a matter of consumer protection the Village
adopts the following regulations regarding subscriber or user privacy:
A. A service provider or system owner or operator shall
abide by any and all subscriber or user privacy rules or regulations
of the federal or state government or any federal or state agency.
B. Any service provider or system owner or operator who
functions as an internet service provider shall be prohibited from
using or providing to a third party any information sent or received
by a subscriber or user, such as, but not limited to, e-mail or any
attachments thereto, to any person or entity for any purpose whatsoever,
unless ordered to do so by a court of competent jurisdiction.
C. Failure to meet the requirements of this section may,
at the discretion of the Village Board, result in fines or penalties
as set forth in this chapter.
The Village is hereby granted the authority
to do all things necessary and permissible to supervise, inspect and
regulate the construction, operation and maintenance of systems that
are subject to this chapter, in whole or in part, and to implement
procedures for the filing and resolution of complaints, unless otherwise
expressly prohibited by federal or state law.
Any construction, rebuild, upgrade, installation
or maintenance of any system or facilities shall be done using only
materials of good and durable quality, and all work shall be performed
in a safe, thorough, reliable and workmanlike manner.
A service provider or system owner or operator
shall obtain, at its own expense, all permits and licenses required
by local law or county or state law or state, county or local rule
or regulation and shall maintain the same, in full force and effect,
for as long as required by the Village or the agency granting the
permit or license.
It shall at all times be the responsibility
of any service provider or system owner or operator to comply with
the most current FCC technical rules and standards, if such are applicable
to the service provider or system owner or operator, and the Village
reserves the right and authority to enforce such rules and standards,
including the authority to require demonstration of compliance.
An application or proposal for a franchise or
for the grant of a franchise subsequent to the expiration of a previously
granted franchise may, at the discretion of the Village Board, be
required to include a plan to make service available to any or all
residences, dwellings, businesses and establishments located on any
or all public streets and roads throughout the Village.
This chapter shall be construed in accordance
with applicable federal and state laws and rules governing wireline
telecommunications systems and broadband services, including, but
not limited to, those known as cable systems and cable operators who
provide cable service and open video systems. With respect to the
operation of cable systems, the provision of cable service and open
video systems, this chapter shall be construed in accordance with
any applicable rules and regulations of the Federal Communications
Commission and the Public Service Commission or any successor agency
or authority.
This chapter shall apply within the geographical
limits of the Village, including any areas subsequently annexed by
the Village, unless state law prescribes otherwise, or unless state
law in some fashion restricts or alters the effect of this chapter
to a subsequently annexed area of the Village.