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 town 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 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 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 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.
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 town 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
town is intended, in good faith, to rely, 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 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 TOWN BOARD
The Town Board for the Town of Woodbury, New York, which is the legislative
body for the Town of Woodbury, New York. For purposes of clarification, the
Town Board is the Franchising Authority for the Town 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 town.
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 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.
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 town.
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 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.
EASEMENT
Shall include 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
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 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
chapter, 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 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 town
has over a given type of system owner or operator or provider of service.
FRANCHISE AGREEMENT
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.
FRANCHISEE
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 chapter and applicable state law, rules or
regulation.
FRANCHISE FEE
A fee charged a service provider or system owner or operator by the
town 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 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
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 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
(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 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:
(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 town
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 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.
(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 town.
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 Town 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 town that
occurs within a twenty-four-consecutive-hour period shall be deemed a single,
continuous loss of service.
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 town or elsewhere outside
the town.
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 town.
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 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 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 town 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 town.
PROPOSAL OR APPLICATION
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.
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 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.
SCHEDULED OUTAGE
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 in duration for any given address.
SERVICE
Any service that is provided by means of a system in the town 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 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.
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 town.
SMATV
Satellite Master Antenna Television.
SMATV SYSTEM
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.
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 town and includes any sidewalks or other paved pedestrianways and any
public or town-owned rights-of-way.
SUBSCRIBER
A person lawfully receiving service delivered by a system owner or
operator or a service provider.
SUPERVISOR
The Supervisor of the Town of Woodbury, New York.
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 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.
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 town-owned property or town 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 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.
TOWN
The Town of Woodbury, New York.
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 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 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 Town 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 Town 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.
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 town 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 town.
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 chapter or any subsequently adopted amendments to this chapter by
any failure of the town on any one or more occasions to seek or insist upon
prompt compliance with such requirements or provisions.
Any prior resolution, ordinance, code or town 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 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 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 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 chapter.
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 chapter.
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 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 town 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 town 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 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.
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 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 chapter to a subsequently annexed area of the town.