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ordinanceproposal
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CHAPTER <INSERT HERE>
FIBER OPTIC SYSTEM
8-9-1: Purpose
8-9-2: Definitions
8-9-3: Ownership, Control and Management
8-9-4: No Obligation to Serve
8-9-5: Applicability
8-9-6: Transfer of Rights Prohibited
8-9-7: Billings
8-9-8: Limitations
8-9-9: Rights of Way
8-9-10: Liability for Interruptions
8-9-11: Shut-Down for Repairs
8-9-12: Interference with the Fiber Optic System
8-9-13: Protection of the Customer’s Equipment
8-9-14: Tampering with Fiber Optic System Prohibited
8-9-15: Theft of Access or Use
8-9-16: Violations and Penalties
8-9-1:
PURPOSE: The purpose of this Chapter is to establish a City owned Fiber Optic
System which provides broadband access to meet the needs of:
A. City Departments
B. Public Safety Organizations
C. Other Publicly Owned and Operated Facilities
D. Community Anchor Institutions
E. Businesses
F. Residents
To protect the public right-of-way by improving both the management and regulation of
competing demands through the elimination of duplicate fiber optic facilities within the public
right-of-way.
To protect the economic vitality of the City by providing the broadband transport service and
fiber facilities leasing required by broadband service providers.
To reduce the cost of maintaining the sidewalk, pavement and public facilities located within the
public right-of-way by minimizing the number of pavement cuts and dislocation of other public
facilities necessitated by the construction or installation of fiber optic facilities.
To foster competition among retail broadband service providers by providing open Access to the
City Fiber Optic System.
To protect the cost of broadband services by eliminating anti-competitive pricing schemes or
monopolistic practices which contribute to higher costs for broadband services.
To protect the ability of retail broadband service providers to reach subscribers and provide
service without undue competition or regulation by a tax-supported entity.
8-9-2:
DEFINITIONS: Certain terms used in this chapter shall have the meanings
ascribed below:
ACCESS:
Access to or use of the Fiber System in the form of either broadband transport
service or Dark Fiber leasing.
CITY:
The City of Weston, West Virginia.
CUSTOMER:
A retail or wholesale user of the Fiber Optic System.
DARK FIBER:
A single fiber strand without any light flowing through it.
DEMARCATION POINT:
The point of connection on an Optical Network Terminal or Network
Interface Device at which the City Fiber Optic System ends and a point of interconnection is
established for the customer’s use.
DIRECTOR:
The Director of the Weston Technology Department, or his or her appointed
designee.
FIBER OPTIC SYSTEM:
The City owned Fiber Optic System, including all fiber, facilities,
equipment and appurtenances.
PLANT:
A single fiber running from point to point provided to a Customer as a Dark Fiber
lease.
PROVIDER:
A retail broadband service provider.
SERVICE:
Any future or current, retail or customer broadband service which may be
transported utilizing the Fiber Optic System.
SUBSCRIBER:
A current or potential Provider Customer.
TRANSPORT:
Broadband transport service consisting of Ethernet services as supported by
the City Fiber System.
8-9-3:
OWNERSHIP, CONTROL AND MANAGEMENT: The City shall have exclusive and
complete ownership, control and management of the Fiber Optic System within all Demarcation
Points, which shall include the device or interface provided for interconnection. The City may
make such rules and regulations as are necessary for the operation of the Fiber Optic System
both inside and outside the City limits.
8-9-4:
NO OBLIGATION TO SERVE: The City shall have a obligation to provide Access to
any provider or subscriber. The City reserves the right to limit or refuse Access at its sole
discretion, provided access shall not be denied or limited on the basis of race, religion, age,
national origin or gender.
8-9-5:
APPLICABILITY: The provisions of this chapter shall apply only to the Fiber Optic
System. Nothing herein shall be construed or deemed to regulate the delivery of
communications or data services over or across lines, facilities, or equipment owned by a
private communications provider, or which may be located in the public right-of-way pursuant to
a franchise, lease, or other license or privilege granted by the City.
8-9-6:
TRANSFER OF RIGHTS PROHIBITED: All rights to Access and any rights or
privileges arising under the provisions of this Chapter shall not be transferred to any person or
entity without the express written approval of the Director.
8-9-7:
BILLINGS: Fiber Optic System Access provided by the City shall be billed to the
Customer in accordance with a schedule of rates as established by the recommendation of the
Director and approved by City Council through resolution.
8-9-8:
LIMITATIONS: Fiber Optic System Access may be supplied under a given rate
schedule provided that the fiber optic system has the ability to meet the requirements of the rate
schedule applicable thereto. The City shall not be obligated to construct extensions or install
the additional facilities necessary to meet a Customer's needs, except as explicitly authorized
by the Director.
Nothing herein shall be construed or deemed to prevent the City from negotiating separate
contracts with any customer solely for the purpose of obtaining assistance in constructing or
installing additional plant for the benefit of said customer. Such negotiations shall be handled
by the Director and approved by City Council.
8-9-9:
RIGHTS OF WAY: The City may condition providing transport or plant upon the
customer's dedication or conveyance to the City of a utility easement for the installation,
operation and maintenance of the City's fiber system, over, across and upon property owned or
controlled by the customer or the customer's landlord. Such utility easement may also be used
for the purpose of providing Access to other customers of the City. Such utility easement shall
permit access thereto by authorized representatives of the City at all reasonable hours or at any
time in any emergency situation. By acceptance of or submission of an application for fiber optic
access, the customer shall be deemed to waive any claim for damages to the customer's
property or equipment located within such utility easement, arising from the operation or
maintenance of the Fiber Optic System therein. Such acceptance or application shall also be
deemed to constitute a waiver of any claim for damages arising from a taking or any severance
damages with respect to a customer's underlying fee, simple interest.
8-9-10:
LIABILITY FOR INTERRUPTIONS: The City shall not be liable for any loss, injury
or damage of any kind, including but not limited to consequential, special and punitive damages, resulting from the interruption, reduction, loss or restoration of Access from any cause, including
without limitation any loss by fire, flood, accident, casualty, sabotage, terrorist act, strike, labor
slow-down, act of God or the public enemy or failure or inadequacy of the Fiber Optic System.
The City disclaims any express or implied warranty of merchantability or fitness for a particular
purpose and the delivery of Access to any customer shall not be construed as or deemed to be
the delivery of goods under the West Virginia Code. By acceptance of transport or plant, the customer agrees to, and shall be deemed to, waive any and all claims for damage or loss to the customer's lines, facilities, or communications equipment caused by any act or omission of the City, however, nothing herein shall be deemed or construed as a waiver of any claim for damage or liability arising out of the gross negligence or malicious act of the City, or its agents.
8-9-11:
SHUT-DOWN FOR REPAIRS: For the purpose of making necessary repairs,
upgrades or changes to its Fiber Optic System, or to avoid damage to property or to persons,
the City may without prior notice to the customer suspend Access for such periods as may be
reasonably necessary to make such repairs, upgrades or changes and the City shall not be
liable for damage of any kind, direct or indirect, as a result of such discontinuance of Access.
8-9-12:
INTERFERENCE WITH THE FIBER OPTIC SYSTEM: The City may refuse to
supply Access where there is a possibility that the delivery of such may seriously impair or
disrupt any other customers, or which may disrupt the operation of the Fiber Optic System. The
City may also discontinue or disconnect Access for a Customer if the Customer, by their use of
the Fiber Optic System, is seriously impairing any other Customer’s use of the Fiber Optic
System. The City may also, without prior notice, suspend or disconnect any customer using the
Fiber Optic System for the purposes of delivering any virus, spam, spyware, denial of service
attacks, or any other illegal or malicious purpose which has the effect of or is intended to impair
or impede the operation of the Fiber Optic System, the internet, or any public or private
computer or computer network connected thereto or for the purpose of obtaining illegal or
unauthorized access to other computers or networks connected to the Fiber Optic System.
8-9-13:
PROTECTION OF THE CUSTOMER’S EQUIPMENT: The customer is solely
responsible for the selection, installation and maintenance of all equipment and wiring on the
customer side of the Demarcation Point. The customer shall install and maintain suitable
protective devices and equipment to protect life and property from harm or injury and the City
assumes no duty to warn or otherwise assist the customer in the selection or use of such
protective devices.
8-9-14:
TAMPERING WITH FIBER OPTIC SYSTEM PROHIBITED: Other than City
representatives working under the supervision of the Director, no person shall connect to,
adjust, tamper with or make any alteration or addition to the Fiber Optic System, without having
first obtained written permission from the Director. Any person who willfully or maliciously
causes damage to, interference with or obstruction to the efficient operation of the Fiber Optic
System shall be guilty of a misdemeanor. Any person who causes such damage shall in
addition to any criminal fines or penalties, be liable to the City for any reasonable damages
which may be proximately caused by such damage or interference. Such amounts may be
included upon the customer's regular monthly billing statement for utility service and upon the
customer's failure or refusal to pay such charges, Fiber Optic System Access or any other public utility service provided by the City, may be terminated in accordance with the procedures set
forth in this chapter.
8-9-15:
THEFT OF ACCESS OR USE: It shall be unlawful for any person to make any
connection to or install or construct any facility or equipment with the specific intent of obtaining
Access from or making use of the Fiber Optic System, without paying for such Access or without
paying the fees and charges established by the provisions set forth in this chapter.
8-9-16:
VIOLATIONS AND PENALTIES: Any violation of the provisions of this chapter
deemed to be a misdemeanor shall be subject to penalties prescribed for such violations under
section 1-4-1 of this code. Any person violating the provisions of this chapter deemed to be an
infraction shall be subject to the penalties as provided for in section 1-4-2. Violations of this
chapter shall be deemed an infraction, unless such violation is designated in this chapter as a
misdemeanor.
(REFERENCED CODE:
1-4-1: MISDEMEANOR PENALTY: Whenever any person commits a misdemeanor under the provisions of the City Code of the City of Ammon, the same shall be subject to a fine not exceeding the maximum penalty and/or the maximum incarceration as allowed by Idaho Code section 18-303 or its successor as may be amended from time to time. Each misdemeanor penalty shall be subject to the maximum penalty plus any applicable court fees. Each day of the violation shall be considered a separate offense and shall be punishable by separate fines and/or imprisonment. In addition to any criminal penalties as provided herein, the City may enforce all ordinances and requirements by all civil remedies as permitted by law, including but not limited to withholding issuance of a building permit, certificate of occupancy, injunctive relief, writs of mandamus, stop work orders, etc.
1-4-2:
INFRACTIONS: Whenever any person commits an infraction and no specific penalty is provided for such act, such person shall be punishable by a fine not exceeding One Hundred Dollars ($100) and no imprisonment may be imposed. Each infraction penalty shall be subject to the maximum penalty plus any applicable court fees. In addition to any criminal penalties as provided herein, the City may enforce all ordinances and requirements by all civil remedies as permitted by law, including but not limited to withholding issuance of a building permit, certificate of occupancy, injunctive relief, writs of mandamus, stop work orders, etc.
)