Definitions. As used herein, the following words shall
have the meanings below set forth:
AFFILIATED PERSON
Each person who falls into one or more of the following categories:
each person having, directly or indirectly, a controlling interest
in the applicant; each person in which the applicant has, directly
or indirectly, a controlling interest; each officer, director, joint
venture or joint venture partner of the applicant; and each person,
directly or indirectly, controlling, controlled by, or under common
control with, the applicant; provided that such affiliated person
shall in no event mean the Town, or any creditor of the applicant
solely by virtue of its status as a creditor and which is not otherwise
an affiliated person by reason of owning a controlling interest in,
being owned by, or being under common ownership, common management
or common control with, the applicant.
APPLICANT
Any person who applies for a franchise and/or license pursuant
to this chapter.
APPLICATION
The process by which an applicant submits a request and indicates
a desire to be granted a franchise and/or license to utilize the public
rights-of-way of all, or a part, of the Town. An application includes
all written documentation, verbal statements and representations,
in whatever form or forum, made by an applicant to the Town concerning:
the installation, construction, operation and maintenance of a telecommunications
system over, under, on or through the Town's rights-of-way; the telecommunications
services proposed to be provided in the Town by an applicant; the
area proposed to be served within the Town by an applicant; the portion
of the Town's rights-of-way proposed to be used by an applicant; the
manner in which telecommunications services are to be rendered to
Town customers; and any other matter pertaining to the proposed use
of public rights-of-way for the purpose of operating a telecommunications
system.
CABLE SERVICES
Cable services as defined in the Communications Act of 1934,
as amended by the Cable Communications Policy Act of 1984, the Cable
Television Consumer Protection and Competition Act of 1992 and the
Telecommunications Act of 1996 and as may be further amended from
time to time (the Cable Act). In the event that cable services is
no longer defined in the Cable Act or the definition in the Cable
Act otherwise becomes inapplicable, "cable services" shall mean cable
services as defined in the Cable Act immediately prior to such term
no longer being defined in the Cable Act or such definition otherwise
becoming inapplicable.
CHAPTER
This chapter and all modifications and amendments thereto.
CONTROL or CONTROLLING INTEREST
The actual working control in whatever manner exercised,
including, without limitation, working control through ownership,
management, debt instruments or negative control, as the case may
be, of the applicant or the equipment in the rights-of-way. A rebuttable
presumption of the existence of control or a controlling interest
shall arise from the beneficial ownership, directly or indirectly,
by any person, or group of persons acting in concert, of more than
10%, of any person (which person or group of persons is hereinafter
referred to as a "controlling person"). Control or controlling interest
as used herein may be held simultaneously by more than one person
or group of persons.
CUSTOMER
Any person receiving service provided by a franchisee pursuant
to the authority of a franchise.
DEPARTMENT OF PUBLIC WORKS
The Department of Public Works of the Town of Colonie. This
Department is responsible for review of all applications submitted
to the Town and for the issuance of all permits.
EQUIPMENT
The poles, wires, cables, electrical conductors, conduits,
subways, manholes, handholes, junction boxes and terminal blocks,
fixtures, appliances and appurtenances that are used to provide telecommunications
services.
FRANCHISE or FRANCHISE AGREEMENT
The initial authorization, or renewal thereof, issued by
the Town in accordance with the provisions of this chapter, for the
nonexclusive right and authority to install, construct, maintain and
operate any part of a telecommunications system described in the application
and to provide telecommunication services to customers within the
Town through use of the public rights-of-way. The franchise shall
describe in detail all requirements applicable to the franchise, including
all applicable requirements of federal, state and local laws.
GROSS REVENUE
Any and all payments made to, or compensation in any form
whatsoever received, directly or indirectly, by the franchisee or
any affiliated person from or in connection with the operation of
the telecommunications system, or the provision of any service over
the telecommunications system by the franchisee or any affiliated
person, within the territorial limits of the Town. The revenues described
in this definition shall include, but are not limited to:
(1)
All revenue received from any telecommunication
service provided within the Town, such as, but not limited to:
(a)
All telecommunication service revenues charged
on a flat rate basis.
(b)
All telecommunication service revenues charged
on a usage sensitive or mileage basis.
(c)
All revenues from installation service charges,
connection or disconnection fees.
(d)
All revenues from equipment sold or rented to
customers upon customer premises.
(e)
All revenues from local service.
(f)
All revenues from charges for access to local
and/or long-distance networks.
(g)
All other revenues collected by the franchisee
from business pursued within the Town.
(2)
Any access or other payments received by the
franchisee or any affiliated person from interexchange carriers, connecting
carriers and others in connection with any service originating in
the Town, regardless of the destination of such service.
(3)
Revenues received from the lease, exchange,
rental or use of any facilities, capacity, plant, conduit space or
equipment of the telecommunications system.
(4)
The value of any free services provided by the
franchisee; provided, however, that the value of the free service
provided hereunder to the Town or to any other governmental entity
shall not constitute gross revenue.
(5)
The fair market value of any nonmonetary transactions
between the franchisee and any person other than an affiliated person,
and not less than the customary prices paid in connection with equivalent
transactions between the franchisee and any affiliated person and
not less than the customary prices paid in connection with equivalent
transactions conducted with persons who are not affiliated persons.
(6)
Recoveries of bad debts previously written off
and revenues from the sale or assignment of bad debts. Unrecovered
bad debts charged off after diligent, unsuccessful efforts to collect
are excludable from gross revenues. All revenues from penalties or
charges to customers from checks returned from banks, net of bank
cost paid, shall also be gross revenue.
LICENSE
An initial authorization, or renewal thereof, issued by the Town in accordance with the provisions of this chapter, which authorizes the limited occupation and use of specifically identified rights-of-way, provided that a license shall be issued only in the limited circumstances set forth in §
173-12D of this chapter.
PERMIT
A nonexclusive permit issued pursuant to this chapter for
access to and ongoing use of public rights-of-way by telecommunications
providers for wires, poles, pipes, conduits or other facilities designed
or used to provide telecommunications services.
PERSON
Any individual or any association, firm, partnership, joint
venture, corporation or other legally recognized entity, whether for
profit or not-for-profit, but shall not mean the Town.
PUBLIC RIGHTS-OF-WAY or RIGHTS-OF-WAY
The surface of, as well as the spaces above and below, any
and all streets, alleyways, avenues, highways, boulevards, driveways,
bridges, tunnels, parks, parkways, public grounds or waters, and any
other public property or place belonging to the Town or any special
districts of the Town as the same now exist or may hereafter be extended
or altered, and any location thereon, thereover or thereunder and
any portion thereof.
TELECOMMUNICATIONS
All transmissions, between or among points specified by the
user, of information of the user's choosing without a change in the
form or content of the information as sent and received.
TELECOMMUNICATIONS PROVIDER
Any applicant who owns, leases, installs, constructs, operates
or maintains equipment in the public rights-of-way used to provide
telecommunications services regardless of whether such telecommunications
system originates, terminates or merely passes through the Town.
TELECOMMUNICATIONS SERVICES
Any telecommunications service provided by means of the telecommunications
system of the franchisee or any affiliated person in accordance with
applicable federal, state, and local law. Services shall not include
Title VI cable service, as defined in 47 U.S.C. § 522(6),
and service as an open video system provider pursuant to 47 U.S.C.
§ 573.
TELECOMMUNICATIONS SYSTEM
A telecommunications provider's system of cables, wires,
lines, towers, amplifiers, antennas, wave guides, optical fibers,
microwaves, laser beams, any associated converters and all other electronic
devices, equipment, real property (including interests in real property),
tangible and intangible personal property, customer lists or buildings,
offices, plants and facilities designed and constructed for the purpose
of producing, receiving, amplifying or distributing telecommunications
to provide telecommunications services. This system shall be limited
to audio, video, data, voice and signaling communications services.
TOWN
The Town of Colonie, New York, as now incorporated and including
any special districts of the Town of Colonie therein and all future
annexations which shall include the Town Board and all associated
departments.
TOWN BOARD
The governing body of the Town and its designee or any successor
thereto.
TRENCHLESS TECHNOLOGY
The use of directional boring, horizontal drilling and microtunneling
and other techniques in the construction of underground facilities
which results in the least amount of disruption and damage to rights-of-way
as possible.
UNDERGROUND FACILITIES
All lines, cables, conduits, posts, tanks and other facilities
owned or operated by persons other than the Town which are located
wholly or partially underneath rights-of-way.
VEGETATION
Any tree, bush, shrub, vine or other foliage.