G-600 - 10/12/1997 - TAX - Ordinances ORDINANCE 97-TX-TELCO
M-IMFA-G- 600
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AN ORDINANCE AMENDING CHAPTER 13 OF
THE CODE OF ORDINANCES OF
THE VILLAGE OF OAK BROOK
BY THE ADDITION OF ARTICLE IV
IMPOSING A MUNICIPAL TELECOMMUNICATIONS INFRASTRUCTURE MAINTENANCE FEE
WHEREAS,the Village of Oak Brook is a municipality in accordance with the Constitution of the
State of Illinois of 1970; and
WHEREAS,the Village has the authority to adopt ordinances and to promulgate rules and
regulations that pertain to its government and affairs and that protect the public health, safety and welfare of
its citizens; and
WHEREAS,this Ordinance is adopted pursuant to the provisions of the Illinois Telecommunications
Municipal Infrastructure Maintenance Fee Act, Public Act 90-154 (the "Act"); and
WHEREAS,the fees imposed under this Ordinance will replace the Village existing municipal
franchise fees with respect to telecommunications retailers,which are currently paid by the telecom-
munications consumer,with a different fee under the Act; and
WHEREAS, this Ordinance is intended to create a uniform system for the collection of fees
associated with the privilege of using Village rights-of-way and other public rights-of-way for telecom-
munications activity within the municipal boundaries of the Village, including the recovery of reasonable
costs for regulating the use of all public rights-of-way within its municipal boundaries for telecom-
munications activity.
NOW, THEREFORE BE IT ORDAINED by the President and Board of Trustees of the Village of
Oak Brook as follows:
Section 1. Recitals. The facts and statements contained in the preamble to this Ordinance are
found to be true and correct and are hereby adopted as part of this Ordinance.
Section 2. Adoption of Fee.Chapter 13 of the Code of Ordinances of the the Village of Oak
Brook be amended by the addition of Article IV that will read as follows:
"ARTICLE IV. TELECOMMUNICATIONS INFRASTRUCTURE MAINTENANCE FEE
Sec. 13-35. Definitions
As used in this Article,the following terms shall have the following meanings:
(a) Gross Charges means the amount paid to a telecommunications retailer for the act or privilege
of originating or receiving telecommunications within the Village, and for all services rendered in connection
therewith, valued in money whether paid in money or otherwise, including cash, credits, services, and
property of every kind or nature, and shall be determined without any deduction on account of the cost of
such telecommunications, the cost of the materials used, labor or service costs, or any other expense
whatsoever. In case credit is extended,the amount thereof shall be included only as and when paid. Gross
charges for private line service shall include charges imposed at each channel point within the Village,
charges for the channel mileage between each channel point within the Village and charges for that portion
of the interstate inter-office channel provided within the Village. However, "gross charges" shall not include:
Ordinance 97-TX-TELCOM-IMFA-G-600
Amending Chapter 13, Imposing a
Telecommunications Infrastructure
Maintenance Fee, Page 2
(1) any amounts added to a purchaser's bill because of a charge made under. (i)the fee
imposed by this Section, (ii) additional charges added to a purchaser's bill under Section 9-221 or 9-
222 of the Public Utilities Act, (iii) amounts collected under Section 8-11-17 of the Illinois Municipal
Code, (iv)the tax imposed by the Telecommunications Excise Tax Act, (v) 911 surcharges, or(vi)
the tax imposed by Section 4251 of the Internal Revenue Code;
(2) charges for a sent collect telecommunication received outside the Village;
(3) charges for leased time on equipment or charges for the storage of data or information
or subsequent retrieval or the processing of data or information intended to change its form or
content. Such equipment includes, but is not limited to,the use of calculators, computers,data
processing equipment,tabulating equipment, or accounting equipment and also includes the usage
of computers under a time-sharing agreement;
(4) charges for customer equipment, including such equipment that is leased or rented by
the customer from any source, wherein such charges are disaggregated and separately identified
from other charges;
(5) charges to business enterprises certified under Section 9-222.1 of the Public Utilities
Act to the extent of such exemption and during the period of time specified by the Village;
(6) charges for telecommunications and all services and equipment provided in connection
therewith between a parent corporation and its wholly owned subsidiaries or between wholly owned
subsidiaries, and only to the extent that the charges between the parent corporation and wholly
owned subsidiaries or between wholly owned subsidiaries represent expense allocation between the
corporations and not the generation of profit other than a regulatory required profit for the
corporation rendering such services;
(7) bad debts(bad debt means any portion of a debt that is related to a sale at retail for
which gross charges are not otherwise deductible or excludable that has become worthless or
uncollectible, as determined under applicable federal income tax standards; if the portion of the debt
deemed to be bad is subsequently paid,the retailer shall report and pay the tax on that portion
during the reporting period in which the payment is made);
(8) charges paid by inserting coins in coin-operated telecommunications devices; or
(9) charges for telecommunications and all services and equipment provided to the Village.
(b) Public Right-of-Way means any municipal street,alley,water or public right-of-way dedicated or
commonly used for utility purposes, including utility easements wherein the Village has acquired the right
and authority to locate or permit the location of utilities consistent with telecommunications facilities. "Public
Right-of-Way"shall not include any real or personal Village property that is not specifically described in the
previous sentence and shall not include Village buildings and other structures or improvements, regardless
of whether they are situated in the public right-of-way.
(c) Retailer maintaining a place of business in this State or any like term, means and includes any
retailer having or maintaining within the State of Illinois, directly or by a subsidiary, an office, distribution
facilities,transmission facilities, sales office,warehouse, or other place of business, or any agent or other
representative operating within this State under the authority of the retailer or its subsidiary, irrespective of
whether such place of business or agent or other representative is located here permanently or temporarily,
or whether such retailer or subsidiary is licensed to do business in this State.
(d) Sale of telecommunications at retail means the transmitting, supplying, or furnishing of
telecommunications and all services rendered in connection therewith for a consideration, other than
Ordinance 97-TX-TELCOM-IMFA-G-600
Amending Chapter 13, Imposing a
Telecommunications Infrastructure
Maintenance Fee, Page 3
between a parent corporation and its wholly owned subsidiaries or between wholly owned subsidiaries,when
the gross charge made by one such corporation to another such corporation is not greater than the gross
charge paid to the retailer for their use or consumption and not for sale.
(e) Service address means the location of telecommunications equipment from which
telecommunications services are originated or at which telecommunications services are received. If this is
not a defined location, as in the case of wireless telecommunications, paging systems, maritime systems,
air-to-ground systems, and the like, 'service address"shall mean the location of the customer's primary use
of the telecommunications equipment as defined by the location in Illinois where bills are sent.
(f) Telecommunications includes, but is not limited to, messages or information transmitted through
use of local,toll, and wide area telephone service, channel services,telegraph services, teletypewriter
service, computer exchange services, private line services, specialized mobile radio services, or any other
transmission of messages or information by electronic or similar means, between or among points by wire,
cable, fiber optics, laser, microwave, radio,satellite, or similar facilities. Unless the context clearly requires
otherwise, "telecommunications"shall also include wireless telecommunications as hereinafter defined.
"Telecommunications"shall not include value added services in which computer processing applications are
used to act on the form, content, code, and protocol of the information for purposes other than transmission.
"Telecommunications"shall not include purchase of telecommunications by a telecommunications service
provider for use as a component part of the service provided by him or her to the ultimate retail consumer
who originates or terminates the end-to-end communications. Retailer access charges, right of access
charges, charges for use of intercompany facilities, and all telecommunications resold in the subsequent
provision and used as a component of, or integrated into, end-to-end telecommunications service shall not
be included in gross charges as sales for resale. "Telecommunications"shall not include the provision of
cable services through a cable system as defined in the Cable Communications Act of 1984 (47 U.S.C.
Sections 521 and following) as now or hereafter amended or cable or other programming services subject to
an open video system fee payable to the Village through an open video system as defined in the Rules of
the Federal Communications Commission (47 C.D.F. 76.1550 and following) as now or hereafter amended.
(g) Telecommunications providermeans (1) any telecommunications retailer; and (2) any person
that is not a telecommunications retailer that installs, owns, operates or controls equipment in the public
right-of-way that is used or designed to be used to transmit telecommunications in any form.
(h) Telecommunications retaileror retailer or carrier means and includes every person engaged in
the business of making sales of telecommunications at retail as defined in this Section. The Village may, in
its discretion, upon application, authorize the collection of the fee hereby imposed by any retailer not
maintaining a place of business within this State, who, to the satisfaction of the Village, furnishes adequate
security to ensure collection and payment of the fee. When so authorized, it shall be the duty of such
retailer to pay the fee upon all of the gross charges for telecommunications in the same manner and subject
to the same requirements as a retailer maintaining a place of business within the Village.'
(i) tireless telecommunications includes cellular mobile telephone services, personal wireless
services as defined in Section 704(C) of the Telecommunications Act of 1996 (Public Law No. 104-104), 42
U.S.C. §332(c)(7), as now or hereafter amended, including all commercial mobile radio services, and paging
services.
Sec. 13-36. Registration of telecommunications providers.
(a) Every telecommunications provider as defined by this Article shall register with the Village
within 30 days after the effective date of this Article or becoming a telecommunications provider,whichever
is later, on a form to be provided by the Village, provided, however,that any telecommunications retailer
that has filed a return pursuant to Sec. 13-38 of this Article shall be deemed to have registered in
accordance with this Section.
Ordinance 97-TX-TELCOM-IMFA-G- 600
Amending Chapter 13, Imposing a
Telecommunications Infrastructure
Maintenance Fee, Page 4
(b) Every telecommunications provider who has registered with the Village pursuant to Sec. 13-
36(a) has an affirmative duty to submit an amended registration form or current return as required by Sec.
13-38(c), as the case may be, to the Village within 30 days from the date of the occurrence of any changes
in the information provided by the telecommunications provider in the registration form or most recent return
on file with the Village.
Sec. 13-37. Municipal telecommunications infrastructure maintenance fee.
(a) A Village telecommunications infrastructure maintenance fee is hereby imposed upon all
telecommunications retailers in the amount of(1.0%1] of all gross charges charged by the
telecommunications retailer to service addresses within the Village for telecommunications originating or
received in the Village.
(b) Upon the effective date of the infrastructure maintenance fee authorized in this Article,the
Village infrastructure maintenance fee authorized hereunder shall be the only fee or compensation for the
use of all public rights-of-way within the Village by telecommunications retailers. Imposition of the
infrastructure maintenance fee provided under this Article does not, however, serve as a limitation on the
levying of any taxes or imposition of any fees otherwise authorized by law.
(c) The Village telecommunications infrastructure maintenance fee authorized by this Section shall
be collected, enforced, and administered as set forth in Section 13-38 of this Article.
Sec. 13-38. Collection, enforcement,and administration of telecommunications infrastructure
maintenance fees.
(a) A telecommunications retailer shall charge to and collect from each customer an additional
charge in an amount equal to the Village infrastructure maintenance fee attributable to that customer's
service address.
(b) Unless otherwise approved by the Village Manager the infrastructure maintenance fee shall be
remitted by the telecommunications retailer to the Village not later than the last day of the month
subsequent to the month in which a bill is issued to the customer; provided, however,that the
telecommunications retailer may retain an amount not to exceed 2% of the Village infrastructure
maintenance fee collected by it to reimburse itself for expenses incurred in accounting for and remitting the
fee.
(c) Remittance of the municipal infrastructure fee to the Village shall be accompanied by a return,
in a form to be prescribed by the Village Manager,which shall contain such information as the Village
Manager may reasonably require.
(d) Any infrastructure maintenance fee required to be collected pursuant to this Article and any
such infrastructure maintenance fee collected by such telecommunications retailer shall constitute a debt
owed by the telecommunications retailer to the Village. The charge imposed under Sec. 13-38(a) by the
telecommunications retailer pursuant to this Article shall constitute a debt of the purchaser to the
telecommunications retailer who provides such services until paid and, if unpaid, is recoverable at law in the
same manner as the original charge for such services.
(e) If it shall appear that an amount of infrastructure maintenance fee has been paid that was not
due under the provisions of this Article, whether as a result of a mistake of fact or an error of law,then such
'Fee may be imposed in quarter percent increments of not more than 1.0%
Ordinance 97-TX-TELCOM-IMFA-G- 600
Amending Chapter 13, Imposing a
Telecommunications Infrastructure
Maintenance Fee, Page 5
amount shall be credited against any infrastructure maintenance fee due, or to become due, under this
Article,from the telecommunications retailer who made the erroneous payment; provided, however,the
Village Manager may request, and telecommunications retailer shall provide,written substantiation for such
credit. However, no claim for such credit may be made more than three years after the date of the
erroneous payment unless, (1)the credit is used only to offset a claim of underpayment made by the
Village within the applicable statutory period of limitations, and (2)the credit derives from an overpayment
made by the same telecommunications retailer during the applicable statutory period of limitations.
(f) Amounts paid under this Article by telecommunications retailers shall not be included in the tax
base under any of the following acts as described immediately below:
(1) "gross charges"for purposes of the Telecommunications Excise Tax Act;
(2) "gross receipts"for purposes of the municipal utility tax as prescribed in Section 8-11-2
of the Illinois Municipal Code;
(3) "gross charges"for purposes of the municipal telecommunications tax as prescribed in
Section 8-11-17 of the Illinois Municipal Code;
(4) "gross revenue"for purposes of the tax on annual gross revenue of public utilities
prescribed in Section 2-202 of the Public Utilities Act.
(g) The Village shall have the right, in its discretion, to audit the books and records of all
telecommunications retailers subject to this Article to determine whether the telecommunications retailer
has properly accounted to the Village for the Village infrastructure maintenance fee. Any underpayment of
the amount of the Village infrastructure maintenance fee due to the Village by the telecommunications
retailer shall be paid to the Village plus five (5%) percent of the total amount of the underpayment
determined in an audit, plus any costs incurred by the Village in conducting the audit, in an amount not to
exceed five (5%) percent of the total amount of the underpayment determined in an audit. Said sum shall
be paid to the Village within twenty-one (21)days after the date of issuance of an invoice for same.
(h) The Village Manager, or his or her designee, may promulgate such further or additional
regulations concerning the administration and enforcement of this Article, consistent with its provisions, as
may be required from time to time and shall notify all telecommunications retailers that are registered
pursuant to Sec. 13-36 of this Article of such regulations.
Sec. 13-39. Compliance With Other taws.
Nothing in this Article shall excuse any person or entity from obligations imposed under any law, including
but not limited to:
(a) generally applicable taxes; and
(b) standards for construction on, over, under, or within, use of or repair of the public rights-of-way,
including standards relating to free standing towers and other structures upon the public rights-of-way, as
provided; and
(c) any liability imposed for the failure to comply with such generally applicable taxes or standards
governing construction on, over, under, or within, use of or repair of the public rights-of-way; and
(d) compliance with any ordinance or provision of this Code concerning uses or structures not
located on, over, or within the right-of-way.
Ordinance 97-TX-TELCOM-IMFA-G- 600
Amending Chapter 13, Imposing a
Telecommunications Infrastructure
Maintenance Fee, Page 6
Sec. 13-40. Existing Franchises and Licenses.
Any franchise, license, or similar agreements between telecommunications retailers and the Village entered
into before the effective date of this Article regarding the use of public rights-of-way shall remain valid
according to and for their stated terms except for any fees, charges or other compensation to the extent
waived.
Sec. 13-41. Penalties.
Any telecommunications provider who violates, disobeys, omits, neglects or refuses to comply with any of
the provisions of this Article shall be subject to fine in accordance with the general penalty provisions of the
Village Code of Ordinances.
Sec. 13-42. Enforcement.
Nothing in this Article shall be construed as limiting any additional or further remedies that the Village may
have for enforcement of this Article.
Sec. 13-43. Severability.
If any section, subsection, sentence, clause, phrase or portion of this Article is for any reason held invalid or
unconstitutional by any court of competent jurisdiction, such portion shall be deemed a separate,distinct,
and independent provision and such holding shall not affect the validity of the remaining portions hereof.
Sec. 13-44. Conflict.
This Article supersedes all Articles or parts of Articles adopted prior hereto which are in conflict herewith, to
the extent of such conflict.
Sec. 13-45. Waiver and Fee Implementation.
(a) The Village hereby waives all fees, charges, and other compensation that may accrue, after the
effective date of the waiver,to the Village by a telecommunications retailer pursuant to any existing Village
franchise, license, or similar agreement with a telecommunications retailer during the time the Village
imposes the Telecommunications Infrastructure Maintenance Fee. This waiver shall only be effective
during the time the Infrastructure Maintenance Fee provided for in this Ordinance is subject to being lawfully
imposed on the telecommunications retailer and collected by the telecommunications retailer from the
customer.
(b) The Village Clerk shall send a notice of the waiver by certified mail/return receipt requested to
each telecommunications retailer with whom the Village has a franchise.
(c) The Village infrastructure maintenance fee provided for in this Ordinance shall become effective
and imposed on the first day of the month not less than ninety (90) days after the Village provides written
notice by certified mail to each telecommunications retailer with whom the Village has an existing franchise,
license, or similar agreement that the Village waives all compensation under such existing franchise,
license, or similar agreement during such time as the fee is subject to being lawfully imposed and collected
by the retailer and remitted to the Village. The infrastructure maintenance fee shall apply to gross charges
billed on or after the effective date as established in the preceding sentence"
Section 3: That this ordinance shall be in full force and effect from and after its passage, approval
and publication in pamphlet form as required by law or January 1, 1998,whichever is later.
Section 4: That the Village Clerk is hereby authorized and directed to publish this ordinance in
pamphlet form in the manner provided by law.
Ordinance 97-TX-TELCOM-IMFA-G-600
Amending Chapter 13, Imposing a
Telecommunications Infrastructure
Maintenance Fee, Page 7
PASSED THIS 28thday of October, 1997.
Ayes: Trustees Kenny, McInerney, Savino and Shumate
Nays: None
Absent: Trustees Bartecki and Caleel
Abstain: None
APPROVED THIS 28th day of October, 1997.
01041 Village President
v IP TES, ,
^ ..illag Jerk
Approved as to Form:
CC'��c�c� Ali
Village Attorney
Published 10-29-97 Pamphlet form
Date Paper
Not Published