Chapter 119

TELECOMMUNICATIONS LICENSES AND FRANCHISES

[HISTORY: Adopted by the Board of Trustees 9-7-2002 by L.L. No. 1-2002. Amendments noted where applicable.]

ARTICLE I

General Provisions

§ 119-1. Purpose.

The purpose and intent of this chapter is to:

A. Establish a local policy concerning telecommunications providers and services.

B. Establish clear local guidelines, standards and time frames for the exercise of local authority with respect to the regulation of telecommunications providers and services.

C. Promote competition in telecommunications.

D. Minimize unnecessary local regulation of telecommunications providers and services.

E. Encourage the provision of advanced and competitive telecommunications services on the widest possible basis to the businesses, institutions and residents of the Village.

F. Permit and manage reasonable access to the public ways of the Village for telecommunications purposes on a competitively neutral basis.

G. Conserve the limited physical capacity of the public ways held in public trust by the Village.

H. Assure that the Village's current and ongoing costs of granting and regulating private access to and use of the public ways are fully paid by the persons seeking such access and causing such costs.

I. Secure fair and reasonable compensation to the Village and the residents of the Village for permitting private use of the public ways.

J. Assure that all telecommunications carriers providing facilities or services within the Village comply with the laws, rules and regulations of the Village.

K. Assure that the Village can continue to fairly and responsibly protect the public health, safety and welfare.

L. Enable the Village to discharge its public trust consistent with rapidly evolving federal and state regulatory policies, industry competition and technological development.

§ 119-2. Definitions.

For the purpose of this chapter, and the interpretation and enforcement thereof, the following words and phrases shall have the following meanings, unless the context of the sentence in which they are used shall indicate otherwise:

AFFILIATE — A person that (directly or indirectly) owns or controls, is owned or controlled by, or is under common ownership or control with another person.

CABLE ACT — The Cable Communications Policy Act of 1984, 47 U.S.C. §§ 532 et seq., as now and hereafter amended, and the Telecommunications Act of 1996.

CABLE OPERATOR — A telecommunications carrier providing or offering to provide cable service within the Village as that term is defined in the Cable Act.

CABLE SERVICE — For the purpose of this chapter shall have the same meaning provided by the Cable Act.

CORPORATE AUTHORITIES — The Mayor and Board of Trustees. Notwithstanding the foregoing, the Village may, where permitted by law, delegate to another person or entity, including an entity established by the Village in cooperation with 1 or more neighboring villages, the authority vested in the Village as to 1 or more subjects which are encompassed by this chapter.

EXCESS CAPACITY — The volume or capacity in any existing or future duct, conduit, manhole, handhole or other utility facility within the public way that is or will be available for use for additional telecommunications facilities.

FCC or FEDERAL COMMUNICATIONS COMMISSION — The federal administrative agency, or lawful successor, authorized to regulate and oversee telecommunications carriers, services and providers on a national level.

OTHER WAYS — The highways, streets, alleys, utility easements or other rights-of-way within the Village, but under the jurisdiction and control of a governmental entity other than the Village.

OVERHEAD FACILITIES — Utility poles, utility facilities and telecommunications facilities located above the surface of the ground, including the underground supports and foundations for such facilities.

PERSON — Includes corporations, companies, associations, joint-stock companies or associations, firms, partnerships, limited liability companies and individuals and includes their lessors, trustees and receivers.

PSC or PUBLIC SERVICE COMMISSION — The New York State Public Service Commission, or any lawful successor state administrative agency authorized to regulate and oversee telecommunications carriers, services and providers in the State of New York.

PUBLIC STREET — Any highway, street, alley or other public right-of-way for motor vehicle travel under the jurisdiction and control of the Village which has been acquired, established, dedicated or devoted to highway purposes not inconsistent with telecommunications facilities.

PUBLIC WAY — Includes all public streets and utility easements, as those terms are defined herein, now or hereafter owned by the Village, but only to the extent of the Village's right, title, interest or authority to grant a license or franchise to occupy and use such streets and easements for telecommunications facilities.

STATE — The State of New York.

SURPLUS SPACE — That portion of the usable space on a utility pole which has the necessary clearance from other pole users, as required by the orders and regulations of the New York Public Service Commission, to allow its use by a telecommunications carrier for a pole attachment.

TELECOMMUNICATIONS CARRIER — Includes every person that directly or indirectly owns, controls, operates or manages plant, equipment or property within the Village, used or to be used for the purpose of offering telecommunications service.

TELECOMMUNICATIONS FACILITIES — The plant, equipment and property, including but not limited to cables, wires, conduits, ducts, pedestals, antennae, electronics and other appurtenances used or to be used to transmit, receive, distribute, provide or offer telecommunications services.

TELECOMMUNICATIONS PROVIDER — Includes every person who provides telecommunications service over telecommunications facilities without any ownership or management control of the facilities.

TELECOMMUNICATIONS SERVICE — The providing or offering for rent, sale or lease, or in exchange for other value received, of the transmittal of voice, data, image, graphic and video programming information between or among points by wire, cable, fiber optics, laser, microwave, radio, satellite or similar facilities, with or without benefit of any closed transmission medium.

TELECOMMUNICATIONS SYSTEM — See "telecommunications facilities."

UNDERGROUND FACILITIES — Utility and telecommunications facilities located under the surface of the ground, excluding the underground foundations or supports for overhead facilities.

USABLE SPACE — The total distance between the top of a utility pole and the lowest possible attachment point that provides the minimum allowable vertical clearance as specified in the orders, rules and regulations of the New York Public Service Commission.

UTILITY EASEMENT — Any easement owned by the Village and acquired, established, dedicated or devoted for public utility purposes not inconsistent with telecommunications facilities.

UTILITY FACILITIES — The plant, equipment and property, including but not limited to the poles, pipes, mains, conduits, ducts, cables, wires, plant and equipment located under, on or above the surface of the ground within the public ways of the Village and used or to be used for the purpose of providing utility or telecommunications services.

VILLAGE — The Incorporated Village of Plandome Heights.

VILLAGE PROPERTY — Includes all real property owned by the Village, other than public streets and utility easements as those terms are defined herein, and all property held in a proprietary capacity by the Village, which are not subject to right-of-way licensing and franchising as provided in this chapter.

§ 119-3. Registration.

Except as otherwise provided herein, all telecommunications carriers and providers engaged in the business of transmitting, supplying or furnishing of telecommunications originating or terminating in the Village shall register with the Village pursuant to Article II of this chapter.

§ 119-4. Telecommunications license.

Except as otherwise provided therein, any telecommunications carrier who desires to construct, install, operate, maintain, or otherwise locate telecommunications facilities in, under, over or across any public way of the Village for the purpose of providing telecommunications service to persons and areas outside the Village shall first obtain a license granting the use of such public ways from the Village pursuant to Article III of this chapter. This section shall not be applicable to the activities of any telecommunications carrier for which, by reason of applicable federal or state law, no franchise is required from the Village.

§ 119-5. Telecommunications franchise.

Except as otherwise provided herein, any telecommunications carrier who desires to construct, install, operate, maintain or otherwise locate telecommunications facilities in, under, over or across any public way of the Village, and to also provide telecommunications service to persons or areas in the Village, shall first obtain a franchise granting the use of such public ways from the Village pursuant to Article IV of this chapter. This section shall not be applicable to the activities of any telecommunications carrier for which, by reason of applicable federal or state law, no franchise is required from the Village.

§ 119-6. Cable television franchise.

Except as otherwise provided herein, any telecommunications carrier who desires to construct, install, operate, maintain or locate telecommunications facilities in any public way of the Village for the purpose of providing cable service to persons in the Village shall first obtain a cable franchise from the Village as provided in Article V of this chapter.

§ 119-7. Application to existing franchises.

This chapter shall have no effect on any existing franchise agreement until:

A. The expiration of said franchise agreement; or

B. An amendment to an unexpired franchise agreement, unless both parties agree to defer full compliance to a specific date not later than the present expiration date.

§ 119-8. Penalties for offenses. [Amended 5-3-2004 by L.L. No. 1-2004]

Any person found guilty of violating, disobeying, omitting, neglecting or refusing to comply with any of the provisions of this chapter shall be punishable as set forth in Chapter 1, General Provisions, Article III, General Penalty.

§ 119-9. Other remedies.

Nothing in this chapter shall be construed as limiting any judicial remedies that the Village may have, at law or in equity, for enforcement of this chapter.

ARTICLE II

Registration of Telecommunications Carriers and Providers

§ 119-10. Registration required.

All telecommunications carriers and providers that offer or provide any telecommunications service for a fee directly to the public, either within the Village, or outside the corporate limits from telecommunications facilities within the Village, shall register with the Village pursuant to this article on forms to be provided by the Village Clerk, which shall include the following:

A. The identity and legal status of the registrant, including any affiliates.

B. The name, address and telephone number of the officer, agent or employee responsible for the accuracy of the registration statement.

C. A description of registrant's existing or proposed telecommunications facilities within the Village.

D. A description of the telecommunications service that the registrant intends to offer or provide, or is currently offering or providing, to persons, firms, businesses or institutions within the Village.

E. Information sufficient to determine whether the registrant is subject to public way licensing or franchising under this chapter.

F. Information sufficient to determine whether the transmission, origination or receipt of the telecommunications services provided or to be provided by the registrant constitutes an occupation or privilege subject to any municipal telecommunications tax, utility receipts tax or other occupation tax imposed by the Village.

G. Information sufficient to determine that the applicant has applied for and received any certificate of authority required by the New York State Public Service Commission to provide telecommunications services or facilities within the Village.

H. Information sufficient to determine that the applicant has applied for and received any construction permit, operating license or other approvals required by the Federal Communications Commission to provide telecommunications services or facilities within the Village.

I. Such other information as the Village Clerk may reasonably require.

§ 119-11. Registration fee.

Each application for registration as a telecommunications carrier or provider shall be accompanied by a fee in an amount established from time to time by resolution of the Board of Trustees.

§ 119-12. Purpose of registration.

The purpose of registration under this article is to:

A. Provide the Village with accurate and current information concerning the telecommunications carriers and providers who offer or provide telecommunications services within the Village, or that own or operate telecommunication facilities within the Village;

B. Assist the Village in enforcement of this chapter;

C. Assist the Village in the collection and enforcement of any municipal taxes, franchise fees, license fees or charges that may be due the Village;

D. Assist the Village in monitoring compliance with local, state and federal laws.

ARTICLE III

Telecommunications License

§ 119-13. Telecommunications license required.

A telecommunications license shall be required of any telecommunications carrier who desires to occupy specific public ways of the Village for the sole purpose of providing telecommunications services to persons or areas within or without the Village.

§ 119-14. License application.

Any person who desires a telecommunications license pursuant to this article shall file an application with the Village which shall include the following information:

A. The identity of the license applicant, including all affiliates of the applicant.

B. A description of the telecommunications services that are or will be offered or provided by licensee over its telecommunications facilities.

C. A description of the transmission medium that will be used by the licensee to offer or provide such telecommunications services.

D. Preliminary engineering plans, specifications and a network map of the facilities to be located within the Village, all in sufficient detail to identify:

(1) The location and route requested for applicant's proposed telecommunications facilities.

(2) The location of all overhead and underground public utility, telecommunication, cable, water, sewer drainage and other facilities in the public way along the proposed route.

(3) The location(s), if any, for interconnection with the telecommunications facilities of other telecommunications carriers.

(4) The specific trees, structures, improvements, facilities and obstructions, if any, that applicant proposes to temporarily or permanently remove or relocate.

E. If applicant is proposing to install overhead facilities, evidence that surplus space is available for locating its telecommunications facilities on existing utility poles along the proposed route.

F. If applicant is proposing an underground installation in existing ducts or conduits within the public ways, information in sufficient detail to identify:

(1) The excess capacity currently available in such ducts or conduits before installation of applicant's telecommunications facilities.

(2) The excess capacity, if any, that will exist in such ducts or conduits after installation of applicant's telecommunications facilities.

G. If applicant is proposing an underground installation within new ducts or conduits to be constructed within the public ways:

(1) The location proposed for the new ducts or conduits.

(2) The excess capacity that will exist in such ducts or conduits after installation of applicant's telecommunications facilities.

H. A preliminary construction schedule and completion date.

I. A preliminary traffic control plan.

J. Financial statements prepared in accordance with generally accepted accounting principles demonstrating the applicant's financial ability to construct, operate, maintain, relocate and remove the facilities.

K. Information in sufficient detail to establish the applicant's technical qualifications, experience and expertise regarding the telecommunications facilities and services described in the application.

L. Information to establish that the applicant has obtained all other governmental approvals and permits to construct and operate the facilities and to offer or provide the telecommunications services.

M. All fees, deposits or charges required pursuant to Article VI of this chapter.

N. Such other and further information as may be required by the Village Manager.

§ 119-15. Determination by the Village.

Within a reasonable time after receiving a complete application under § 119-14 hereof, the corporate authorities shall issue a written determination granting or denying the application in whole or in part, applying the following standards, and, if the application is denied, the written determination shall include the reasons for denial.

A. The financial and technical ability of the applicant.

B. The legal capacity of the applicant.

C. The capacity of the public ways to accommodate the applicant's proposed facilities.

D. The capacity of the public ways to accommodate additional utility and telecommunications facilities if the license is granted.

E. The damage or disruption, if any, of public or private facilities, improvements, service, travel or landscaping if the license is granted.

F. The public interest in minimizing the cost and disruption of construction within the public ways.

G. The service that applicant will provide to the community and region.

H. The effect, if any, on public health, safety and welfare if the license is granted.

I. The availability of alternate routes and/or locations for the proposed facilities.

J. Applicable federal and state telecommunications laws, regulations and policies.

K. Such other factors as may demonstrate that the grant to use the public ways will serve the community interest.

§ 119-16. Agreement.

No license granted hereunder shall be effective until the applicant and the Village have executed a written agreement setting forth the particular terms and provisions under which the license to occupy and use public ways of the Village will be granted.

§ 119-17. Nonexclusive grant.

No license granted under this article shall confer any exclusive right, privilege, license or franchise to occupy or use the public ways of the Village for delivery of telecommunications services or any other purposes.

§ 119-18. Rights granted.

No license granted under this chapter shall convey any right, title or interest in the public ways, but shall be deemed a license only to use and occupy the public ways for the limited purposes and term stated in the grant. Further, no license shall be construed as any warranty of title.

§ 119-19. Construction permits.

All licensees are required to obtain construction permits for telecommunications facilities as required in Article VII of this chapter; provided, however, that nothing in this article shall prohibit the Village and a licensee from agreeing to alternative plan review, permit and construction procedures in a license agreement, provided such alternative procedures provide substantially equivalent safeguards for responsible construction practices.

§ 119-20. Compensation to Village.

Each license granted under this article is subject to the Village's right, which is expressly reserved, to annually fix a fair and reasonable compensation to be paid for the property rights granted to the licensee, provided that nothing in this article shall prohibit the Village and a licensee from agreeing to the compensation to be paid.

§ 119-21. Amendment of grant.

A new license application and grant shall be required of any telecommunications carrier that desires to extend or locate its telecommunications facilities in public ways of the Village which are not included in a license previously granted under this chapter.

§ 119-22. Renewal applications.

A grantee that desires to renew its license under this article shall, not more than 180 days nor less than 90 days before expiration of the current license, file an application with the Village for renewal of its license which shall include the following information:

A. The information required pursuant to § 119-14 of this article.

B. Any information required pursuant to the license agreement between the Village and the grantee.

§ 119-23. Renewal determinations.

Within a reasonable time after receiving a complete application under § 119-22 hereof, the corporate authorities shall issue a written determination granting or denying the renewal application in whole or in part, applying the following standards, and, if the renewal application is denied, the written determination shall include the reasons for nonrenewal.

A. The financial and technical ability of the applicant.

B. The legal capacity of the applicant.

C. The continuing capacity of the public ways to accommodate the applicant's existing facilities.

D. The applicant's compliance with the requirements of this chapter and the license agreement.

E. Applicable federal, state and local telecommunications laws, rules and policies.

F. Such other factors as may demonstrate that the continued grant to use the public ways will serve the community interest.

§ 119-24. Obligation to cure as a condition of renewal.

No license shall be renewed until any ongoing violations or defaults in the licensee's performance of the license agreement, or of the requirements of this chapter, have been cured, or a plan detailing the corrective action to be taken by the grantee has been approved by the Village.

ARTICLE IV

Telecommunications Franchise

§ 119-25. Telecommunications franchise required.

A telecommunications franchise shall be required of any telecommunications carrier who desires to occupy public ways of the Village and to provide telecommunications services to any person or area in the Village.

§ 119-26. Franchise application.

Any person who desires a telecommunications franchise pursuant to this article shall file an application with the Village which shall include the following information:

A. The identity of the franchise applicant, including all affiliates of the applicant.

B. A description of the telecommunications services that are or will be offered or provided by the franchise applicant over its existing or proposed facilities.

C. A description of the transmission medium that will be used by the franchisee to offer or provide such telecommunications services.

D. Preliminary engineering plans, specifications and a network map of the facilities to be located within the Village, all in sufficient detail to identify:

(1) The location and route requested for applicant's proposed telecommunications facilities.

(2) The location of all overhead and underground public utility, telecommunication, cable, water, sewer drainage and other facilities in the public way along the proposed route.

(3) The location(s), if any, for interconnection with the telecommunications facilities of other telecommunications carriers.

(4) The specific trees, structures, improvements, facilities and obstructions, if any, that applicant proposes to temporarily or permanently remove or relocate.

E. If applicant is proposing to install overhead facilities, evidence that surplus space is available for locating its telecommunications facilities on existing utility poles along the proposed route.

F. If applicant is proposing an underground installation in existing ducts or conduits within the public ways, information in sufficient detail to identify:

(1) The excess capacity currently available in such ducts or conduits before installation of applicant's telecommunications facilities.

(2) The excess capacity, if any, that will exist in such ducts or conduits after installation of applicant's telecommunications facilities.

G. If applicant is proposing an underground installation within new ducts or conduits to be constructed within the public ways:

(1) The location proposed for the new ducts or conduits.

(2) The excess capacity that will exist in such ducts or conduits after installation of applicant's telecommunications facilities.

H. A preliminary construction schedule and completion dates.

I. A preliminary traffic control plan.

J. Financial statements prepared in accordance with generally accepted accounting principles demonstrating the applicant's financial ability to construct, operate, maintain, relocate and remove the facilities.

K. Information in sufficient detail to establish the applicant's technical qualifications, experience and expertise regarding the telecommunications facilities and services described in the application.

L. Information to establish that the applicant has obtained all other governmental approvals and permits to construct and operate the facilities and to offer or provide the telecommunications services.

M. Whether the applicant intends to provide cable service, video dial-tone service or other video programming service, and sufficient information to determine whether such service is subject to cable franchising.

N. An accurate map showing the location of any existing telecommunications facilities in the Village that applicant intends to use or lease.

O. A description of the services or facilities that the applicant will offer or make available to the Village and other public, educational and governmental institutions.

P. A description of applicant's access and line extension policies.

Q. The area or areas of the Village the applicant desires to serve and a schedule for build-out to the entire franchise area.

R. All fees, deposits or charges required pursuant to Article VI of this chapter.

S. Such other and further information as may be requested by the Village.

§ 119-27. Determination by the Village.

Within a reasonable period of time after receiving a complete application under § 119-26 hereof, the corporate authorities shall issue a written determination granting or denying the application in whole or in part, applying the following standards, and if the application is denied, the written determination shall include the reasons for denial.

A. The financial and technical ability of the applicant.

B. The legal capacity of the applicant.

C. The capacity of the public ways to accommodate the applicant's proposed facilities.

D. The capacity of the public ways to accommodate additional utility and telecommunications facilities if the franchise is granted.

E. The damage or disruption, if any, of public or private facilities, improvements, service, travel or landscaping if the franchise is granted.

F. The public interest in minimizing the cost and disruption of construction within the public ways.

G. The service that applicant will provide to the community and region.

H. The effect, if any, on public health, safety and welfare if the franchise requested is granted.

I. The availability of alternate routes and/or locations for the proposed facilities.

J. Applicable federal and state telecommunications laws, regulations and policies.

K. Such other factors as may demonstrate that the grant to use the public ways will serve the community interest.

§ 119-28. Agreement.

No franchise shall be granted hereunder unless the applicant and the Village have executed a written agreement setting forth the particular terms and provisions under which the franchise to occupy and use public ways of the Village will be granted.

§ 119-29. Nonexclusive grant.

No franchise granted under this article shall confer any exclusive right, privilege, license or franchise to occupy or use the public ways of the Village for delivery of telecommunications services or any other purposes.

§ 119-30. Rights granted.

No franchise granted under this chapter shall convey any right, title or interest in the public ways, but shall be deemed a franchise only to use and occupy the public ways for the limited purposes and term stated in the grant. Further, no franchise shall be construed as any warranty of title.

§ 119-31. Construction permits.

All franchisees are required to obtain construction permits for telecommunications facilities as required in Article VII of this chapter; provided, however, that nothing in this article shall prohibit the Village and a franchisee from agreeing to alternative plan review, permit and construction procedures in a franchise agreement, provided such alternative procedures provide substantially equivalent safeguards for responsible construction practices.

§ 119-32. Compensation to Village.

Each franchise granted under this article is subject to the Village's right, which is expressly reserved, to annually fix a fair and reasonable compensation to be paid for the property rights granted to the franchisee; provided that nothing in this article shall prohibit the Village and a franchisee from agreeing to the compensation to be paid, and further provided that the Village shall not fix an amount of compensation which is contrary to the provision of any such franchise agreement.

§ 119-33. Nondiscrimination.

A franchisee shall make its telecommunications services available to any customer within its franchise area who shall request such service, without discrimination as to the terms, conditions, rates or charges for grantee's services; provided, however, that nothing in this article shall prohibit a franchisee from making any reasonable classifications among differently situated customers.

§ 119-34. Service to the Village.

A franchisee shall make its telecommunications services available to the Village at its most favorable rate for similarly situated users, unless otherwise provided in a license or franchise agreement.

§ 119-35. Amendment of grant.

A new franchise application and grant shall be required of any telecommunications carrier that desires to extend its franchise territory or to locate its telecommunications facilities in public ways of the Village which are not included in a franchise previously granted under this chapter.

§ 119-36. Renewal applications.

Unless otherwise provided by law, a grantee which desires to renew its franchise under this article shall, not more than 240 days nor less than 150 days before expiration of the current franchise, file an application with the Village for renewal of its franchise which shall include the following information:

A. The information required pursuant to § 119-26 of this article.

B. Any information required pursuant to the franchise agreement between the Village and the grantee.

§ 119-37. Renewal determinations.

Within a reasonable time after receiving a complete application under § 119-36 hereof, the corporate authorities shall issue a written determination granting or denying the renewal application in whole or in part, applying the following standards, and if the renewal application is denied, the written determination shall include the reasons for nonrenewal.

A. The financial and technical ability of the applicant.

B. The legal capacity of the applicant.

C. The continuing capacity of the public ways to accommodate the applicant's existing facilities.

D. The applicant's compliance with the requirements of this chapter and the franchise agreement.

E. Applicable federal, state and local telecommunications laws, rules and policies.

F. Such other factors as may demonstrate that the continued grant to use the public ways will serve the community interest.

§ 119-38. Obligation to cure as a condition of renewal.

No franchise shall be renewed until any ongoing violations or defaults in the grantee's performance of the franchise agreement, or of the requirements of this chapter, have been cured, or a plan detailing the corrective action to be taken by the grantee has been approved by the Village.

ARTICLE V

Cable Franchise

§ 119-39. Requirements.

In addition to the provisions outlined in Article IV regarding franchise application, grant and authority, cable franchisees are subject to the provisions and requirements outlined in this article.

A. Cable franchisees are subject to this chapter, the Cable Act, and such other federal and state statutes, rules and regulations as may be applicable.

B. If a conflict arises between the language in this article and any other part of this chapter, this article shall prevail.

§ 119-40. Description of system.

The minimum capacity for a cable system shall be 450 MHz with at least 77 downstream channels. The franchisee shall, as part of the acceptance of a franchise, provide the Village with a written description of the cable system within the Village, including technical characteristics, channel capacity, channel carriage, and a strand map. The franchisee shall provide the Village with an updated description, upon request or whenever substantial changes in the system are made.

§ 119-41. Channel allocation.

The franchisee shall, to the maximum extent possible, assign as dial locations for local broadcast stations carried on the system numbers available by either a cable-ready television or a converter, which correspond to their respective FCC-assigned TV station call numbers unless the station has negotiated a more favorable position in the channel line up.

§ 119-42. Access channels.

The franchisee shall provide access channels on the subscriber network for the exclusive use of designated institutions.

A. The number and use of said channels will be prescribed in the franchise agreements, and such channels shall be available on the lowest tier of basic service.

B. The franchisee shall make every reasonable effort to assign PEG (public, educational, government) channels to the same channels assigned by other providers within the Village, and in contiguous municipalities.

§ 119-43. Renewal.

To the extent applicable, renewal shall be governed by the Cable Act.

§ 119-44. Service to the Village.

Applications for franchises shall include proposals for the provision of public, educational and governmental access to the telecommunications system.

ARTICLE VI

Fees and Compensation

§ 119-45. Purpose.

It is the purpose of this article to provide for the payment and recovery of certain direct and indirect costs and expenses of the Village related to the enforcement and administration of this chapter.

§ 119-46. Application and review fee. [Amended 5-3-2004 by L.L. No. 1-2004]

A. Any applicant for a license or franchise pursuant to Article III or Article IV of this chapter shall be responsible for the payment of all fees set forth in the Schedule of Fees and Payments maintained by the Village Clerk. No application fee shall be required of any applicant for a license or franchise pursuant to Article V of this chapter.

B. The application and review fee shall be deposited with the Village as part of the application filed pursuant to Article III or Article IV of this chapter.

C. An applicant whose license or franchise application is withdrawn, abandoned or denied shall, within 60 days of its application and review fee written request, be refunded the balance of its deposit under this section, less a reasonable sum to be determined by the Village as its expenses incurred for the application and review process prior to the date of withdrawal, abandonment or denial. Such expenses may include all ascertainable costs and expenses incurred by the Village in connection with the application.

§ 119-47. Other Village costs.

All license or franchise grantees pursuant to Articles III, IV or V of this chapter shall, within 30 days after written demand therefor, reimburse the Village for all direct and indirect costs and expenses, including professional fees, incurred by the Village in connection with any modification, amendment, renewal or transfer of the license or franchise or any license or franchise agreement. Where the Village's authority with respect to such application has been exercised in whole or in part by an entity to whom the Village has delegated such authority, the Village's direct and indirect costs and expenses as provided in this section shall include the Village's share of such expenses incurred by such entity.

§ 119-48. Reserved compensation for public ways.

The Village reserves its right to annually fix a fair and reasonable compensation to be paid for the property rights granted to a telecommunications license or franchise grantee. Nothing in this article shall prohibit the Village and a grantee from agreeing to the compensation to be paid for the granted property rights. Where a franchise or license agreement contains provision for such compensation, no further compensation for public way shall be required pursuant to this section.

§ 119-49. Compensation for Village property.

If the right is granted, by lease, license, franchise or other manner, to use and occupy Village property for the installation of telecommunications facilities, the compensation to be paid shall be fixed by the Village, unless otherwise agreed upon in the license or franchise agreement.

§ 119-50. Construction permit fee.

Prior to issuance of a construction permit, the permittee shall pay a permit fee as may be required by law for any construction permit required for permittee's facilities within the Village, unless otherwise agreed upon in the license or franchise agreement.

§ 119-51. Annual fees.

Unless otherwise agreed in a license or franchise grant agreement, each license or franchise grantee shall pay an annual license fee to the Village equal to 5% of the gross revenues received by the licensee or franchisee pursuant to the said license or franchise fee. Such annual fee may be used by the Village for payment or reimbursement of costs incurred in connection with reviewing, inspecting and supervising the use and occupancy of the public ways in behalf of the public and existing or future users, and the administration and supervision of the exercise of the license or franchise.

ARTICLE VII

Conditions of Grant

§ 119-52. Location of facilities.

All facilities shall be constructed, installed, located, used and operated in accordance with the terms and conditions contained in a license or franchise agreement.

§ 119-53. Construction permits.

All license or franchise grantees are required to obtain construction permits for telecommunications facilities as required in Article III of this chapter. However, nothing in this article shall prohibit the Village and a grantee from agreeing to alternative plan review, permit and construction procedures in a license or franchise agreement, provided such alternative procedures provide substantially equivalent safeguards for responsible construction practices.

§ 119-54. Interference with the public ways.

No license or franchise grantee may locate or maintain its telecommunications facilities so as to unreasonably interfere with the use of the public ways by the Village, by the general public or by other persons authorized to use or be present in or upon the public ways. All such facilities shall be moved by the grantee, temporarily or permanently, as determined by the Village Engineer.

§ 119-55. Damage to property.

No license or franchise grantee nor any person acting on a grantee's behalf shall take any action or permit any action to be done which may impair or damage any Village property, public ways of the Village, other ways or other property located in, on or adjacent thereto.

§ 119-56. Notice of work.

Unless otherwise provided in a license or franchise agreement, no license or franchise grantee, nor any person acting on the grantee's behalf, shall commence any nonemergency work in or about the public ways of the Village or other ways without 10 working days' advance notice to the Village.

§ 119-57. Repair and emergency work.

In the event of an unexpected repair or emergency, a grantee may commence such repair and emergency response work as required under the circumstances, provided the grantee shall notify the Village as promptly as possible, before such repair or emergency work or as soon thereafter as possible if advance notice is not practicable.

§ 119-58. Maintenance of facilities.

Each license or franchise grantee shall maintain its facilities in good and safe condition and in a manner that complies with all applicable federal, state and local requirements.

§ 119-59. Relocation or removal of facilities.

Within 30 days following written notice from the Village, a license or franchise grantee shall, at its own expense, temporarily or permanently remove, relocate, change or alter the position of any telecommunications facilities within the public ways whenever the corporate authorities shall have determined that such removal, relocation, change or alteration is reasonably necessary for:

A. The construction, repair, maintenance or installation of any Village or other public improvement in or upon the public ways.

B. The operations of the Village or other governmental entity in or upon the public ways.

§ 119-60. Removal of unauthorized facilities.

Within 30 days following written notice from the Village, any grantee, telecommunications carrier, or other person that owns, controls or maintains any unauthorized telecommunications system, facility or related appurtenances within the public ways of the Village shall, at its own expense, remove such facilities or appurtenances from the public ways of the Village. A telecommunications system or facility is unauthorized and subject to removal in the following circumstances:

A. Upon expiration or termination of the grantee's telecommunications license or franchise.

B. Upon abandonment of a facility within the public ways of the Village.

C. If the system or facility was constructed or installed without the prior grant of a telecommunications license or franchise.

D. If the system or facility was constructed or installed without the prior issuance of a required construction permit.

E. If the system or facility was constructed or installed at a location not permitted by the grantee's telecommunications license or franchise.

§ 119-61. Emergency removal or relocation of facilities.

The Village retains the right and privilege to cut or move any telecommunications facilities located within the public ways of the Village, as the Village may determine to be necessary, appropriate or useful in response to any public health or safety emergency.

§ 119-62. Facilities maps.

Each license or franchise grantee shall provide the Village with an accurate map or maps certifying the location of all telecommunications facilities within the public ways. Each grantee shall provide updated maps annually.

§ 119-63. Duty to provide information.

Within 10 days of a written request from the Village, each license or franchise grantee shall furnish the Village with information sufficient to demonstrate:

A. That grantee has complied with all requirements of this chapter.

B. That all municipal sales, message and/or telecommunications taxes due the Village in connection with the telecommunications services and facilities provided by the grantee have been properly collected and paid by the grantee.

C. All books, records, maps and other documents, maintained by the grantee with respect to its facilities within the public ways shall be made available for inspection by the Village at reasonable times and intervals.

§ 119-64. Grantee insurance.

Unless otherwise provided in a license or franchise agreement, each grantee shall, as a condition of the grant, secure and maintain the following liability insurance policies insuring both the grantee and the Village, and its elected and appointed officers, officials, agents and employees as additional insureds:

A. Comprehensive general liability insurance with limits not less than:

(1) $5,000,000 for bodily injury or death to each person;

(2) $5,000,000 for property damage resulting from any 1 accident; and

(3) $5,000,000 for all other types of liability.

B. Automobile liability for owned, nonowned and hired vehicles with a limit of $3,000,000 for each person and $3,000,000 for each accident.

C. Worker's compensation within statutory limits and employer's liability insurance with limits of not less than $1,000,000.

D. Comprehensive form premises-operations, explosions and collapse hazard, underground hazard and products completed hazard with limits of not less than $3,000,000.

E. The liability insurance policies required by this section shall be maintained by the grantee throughout the term of the telecommunications license or franchise, and such other period of time during which the grantee is operating without a franchise or license hereunder, or is engaged in the removal of its telecommunications facilities. Each such insurance policy shall contain the following endorsement: "It is hereby understood and agreed that this policy may not be cancelled nor the intention not to renew be stated until 30 days after receipt by the Village, by registered or certified mail, of a written notice addressed to the Village of such intent to cancel or not to renew."

F. Within 20 days after receipt by the Village of said notice, and in no event later than 10 days prior to said cancellation, the grantee shall obtain and furnish to the Village replacement insurance policies meeting the requirements of this section.

§ 119-65. General indemnification.

Each license or franchise agreement shall include, to the extent permitted by law, grantee's express undertaking to defend, indemnify and hold the Village and its officers, employees, agents and representatives harmless from and against any and all damages, losses and expenses, including reasonable attorney's fees and costs of suit or defense, arising out of, resulting from or alleged to arise out of or result from the negligent, careless or wrongful acts, omissions, failures to act or misconduct of the grantee or its affiliates, officers, employees, agents, contractors or subcontractors in the construction, operation, maintenance, repair or removal of its telecommunications facilities, and in providing or offering telecommunications services over the facilities or network, whether such acts or omissions are authorized, allowed or prohibited by this chapter or by a grant agreement made or entered into pursuant to this chapter.

§ 119-66. Security fund.

Where the license or franchise agreement provides for a security fund to be used for payments of penalties, if any, imposed for violation or breach of the conditions of any such agreement or license:

A. Such fund shall serve as security for the full and complete performance of the terms and conditions of the license or franchise agreement, and the requirements of this chapter, including any costs, expenses, damages or loss the Village pays or incurs because of any failure attributable to the grantee to comply with the codes, ordinances, rule, regulations or permits of the Village.

B. Before any sums are withdrawn from the security fund, the Village shall give written notice to the grantee:

(1) Describing the act, default or failure to be remedied, or the damages, cost or expenses which the Village has incurred by reason of grantee's act or default;

(2) Providing a reasonable opportunity for grantee to first remedy the existing or ongoing default or failure, if applicable;

(3) Providing a reasonable opportunity for grantee to pay any monies due the Village before the Village withdraws the amount thereof from the security fund, if applicable;

(4) Providing that the grantee will be given an opportunity to review the act, default or failure described in the notice.

C. Grantees shall replenish the security fund within 14 days after written notice from the Village that there is a deficiency in the amount of the fund.

§ 119-67. Assignments or transfers of grant.

Ownership or control of a telecommunications system, license or franchise may not, directly or indirectly, be transferred, assigned or disposed of by sale, lease, merger, consolidation or other act of the grantee, by operation of law or otherwise, without the prior consent of the Village, which consent shall not be unreasonably withheld or delayed, as expressed by resolution, and then only on such reasonable conditions as may be prescribed therein.

A. No grant shall be assigned or transferred in any manner within 12 months after the initial grant of the license or franchise, unless otherwise provided in a license or franchise agreement.

B. Absent extraordinary and unforeseeable circumstances, no grant, system or integral part of a system shall be assigned or transferred before construction of the telecommunications system has been completed.

C. Grantee and the proposed assignee or transferee of the grant or system shall provide and certify the following information to the Village not less than 150 days prior to the proposed date of transfer:

(1) Complete information setting forth the nature, terms and condition of the proposed transfer or assignment;

(2) All information required of a license or franchise applicant pursuant to Articles III, IV or V of this chapter with respect to the proposed transferee or assignee;

(3) Any other information reasonably required by the Village.

D. No transfer shall be approved unless the assignee or transferee has the legal, technical, financial and other requisite qualifications to own, hold and operate the telecommunications system pursuant to this chapter.

E. Unless otherwise provided in a license or franchise agreement, the grantee shall reimburse the Village for all direct and indirect fees, costs, and expenses reasonably incurred by the Village in considering a request to transfer or assign a telecommunications license or franchise.

F. Any transfer or assignment of a telecommunications grant, system or integral part of a system without prior approval of the Village under this section or pursuant to a license or franchise agreement shall be void and is cause for revocation of the grant.

§ 119-68. Transactions affecting control of grant.

Any transactions which singularly or collectively result in a change of 10% or more of the ownership or working control of the grantee, of the ownership or working control of a telecommunications license or franchise, of the ownership or working control of affiliated entities having ownership or working control of the grantee or of a telecommunications system, or of control of the capacity or bandwidth of grantee's telecommunication system, facilities or substantial parts thereof, shall be considered an assignment or transfer requiring Village approval pursuant to § 119-67 hereof. Transactions between affiliated entities are not exempt from Village approval.

§ 119-69. Revocation or termination of grant.

A license or franchise granted by the Village to use or occupy public ways of the Village may be revoked for the following reasons:

A. Construction or operation in the Village or in the public ways of the Village without a license or franchise grant of authorization.

B. Construction or operation at an unauthorized location.

C. Unauthorized substantial transfer of control of the grantee.

D. Unauthorized assignment of a license or franchise.

E. Unauthorized sale, assignment or transfer of grantee's franchise or license assets, or a substantial interest therein.

F. Misrepresentation or lack of candor by or on behalf of a grantee in any application to the Village.

G. Abandonment of telecommunications facilities in the public ways.

H. Failure to relocate or remove facilities as required in this chapter.

I. Failure to pay taxes, compensation, fees or costs when and as due the Village.

J. Insolvency or bankruptcy of the grantee.

K. Violation of material provisions of this chapter.

L. Violation of the material terms of a license or franchise agreement.

§ 119-70. Notice and duty to cure.

Unless otherwise provided in the license or franchise agreement, in the event that the Village believes that grounds exist for revocation of a license or franchise, it shall give the grantee written notice of the apparent violation or noncompliance, providing a short and concise statement of the nature and general facts of the violation or noncompliance, and providing the grantee a reasonable period of time not exceeding 30 days to furnish evidence:

A. That corrective action has been, or is being actively and expeditiously pursued, to remedy the violation or noncompliance.

B. That rebuts the alleged violation or noncompliance.

C. That it would be in the public interest to impose some penalty or sanction less than revocation.

§ 119-71. Hearing.

The Board of Trustees shall consider the apparent violation or noncompliance in a public meeting, with respect to which the corporate authorities shall provide the grantee with notice and a reasonable opportunity to be heard concerning the matter.

§ 119-72. Standards for revocation or lesser sanctions.

If persuaded that the grantee has violated or failed to comply with material provisions of this chapter, or of a franchise or license agreement, the corporate authorities shall determine whether to revoke the license or franchise, or to establish some lesser sanction and cure, considering the nature, circumstances, extent and gravity of the violation as reflected by 1 or more of the following factors:

A. Whether the misconduct was egregious.

B. Whether substantial harm resulted.

C. Whether the violation was intentional.

D. Whether there is a history of prior violations of the same or other requirements.

E. Whether there is a history of overall compliance.

F. Whether the violation was voluntarily disclosed, admitted or cured.