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Public Act 100-0945

 

Public Act 0945 100TH GENERAL ASSEMBLY

  
  
  
 

 
Public Act 100-0945
 
SB3464 EnrolledLRB100 20847 AWJ 36341 b


  
    AN ACT concerning local government.
  
 
    Be it enacted by the People of the State of Illinois,
 
represented in the General Assembly:
  


 
 
    Section 5. The Counties Code is amended  by changing Section 
5-1095.1 as follows:
 
    (55 ILCS 5/5-1095.1)

    Sec. 5-1095.1. County franchise fee or service provider fee 
review; requests for information.
    (a) If pursuant to its franchise agreement with a community 
antenna television system (CATV) operator, a county imposes a 
franchise fee authorized by 47 U.S.C. 542 or
if
a
community

antenna
television
system
(CATV)
operator
providing
cable
or

video
service
in
that
county is
required
to
pay
the
service

provider
fees
imposed
by
the
Cable
and
Video
Competition
Law
of

2007, then the county may conduct an audit of that CATV 
operator's franchise fees or service provider fees derived from 
the provision of cable and video services to subscribers within 
the franchise area to determine whether the amount of franchise 
fees or service provider fees paid by that CATV operator to the 
county was accurate. Any audit conducted under this subsection 
(a) shall determine, for a period of not more than 4 years 
after the date the franchise fees or service provider fees were 
due, any overpayment or underpayment to the county by the CATV 
operator, and the amount due to the county or CATV operator is 
limited to the net difference.
    (b) Not more than once every 2 years, a county or its agent 
that is authorized to perform an audit as set forth in 
subsection (a) may, subject to the limitations and protections 
stated in the Local Government Taxpayers' Bill of Rights Act, 
request information from the CATV operator in the format 
maintained by the CATV operator in the ordinary course of its 
business that the county reasonably requires in order to 
perform an audit under subsection (a). The information that may 
be requested by the county includes without limitation the 
following:
        (1) in an electronic format used by the CATV operator 
    in the ordinary course of its business, the database used 
    by the CATV operator to determine the amount of the 
    franchise fee or service provider fee due to the county; 
    and
        (2) in a format used by the CATV operator in the 
    ordinary course of its business, summary data, as needed by 
    the county, to determine the CATV operator's franchise fees 
    or service provider fees derived from the provision of 
    cable and video services to subscribers within the CATV 
    operator's franchise area.
    (c) The CATV operator must provide the information 
requested under subsection (b) within:
        (1) 60 days after the receipt of the request if the 
    population of the requesting county is 500,000 or less; or
        (2) 90 days after the receipt of the request if the 
    population of the requesting county exceeds 500,000.
    The time in which a CATV operator must provide the 
information requested under subsection (b) may be extended by 
written agreement between the county or its agent and the CATV 
operator. 
    (c-5) The
county
or
its
agent
must
provide
an
initial

report
of
its
audit
findings
to
the
CATV
operator
no
later
than

90
days
after
the
information
set
forth
in
subsection
(b) of 
this Section
has
been
provided
by
the
CATV
operator.
This

90-day
timeline
may
be
extended
one
time
by
written
agreement

between
the
county
or
its
agent
and
the
CATV
operator.
However,

in
no
event
shall
an
extension
of
time
exceed
90
days.
This

initial
report
of
audit
findings
shall
detail
the
basis
of
its

findings
and
provide,
but
not
be
limited
to,
the
following

information:
(i)
any
overpayments
of
franchise
fees
or
service

provider
fees,
(ii)
any
underpayments
of
franchise
fees
or

service
provider
fees,
 (iii)
the complete list of all addresses 
within the corporate limits of the county for which the audit 
is being conducted, (iv) all
county
addresses
that
should
be

included
in
the
CATV
operator's
database
and
attributable
to

that
county
for
determination
of
franchise
fees
or
service

provider
fees,
and
(v) (iv)
addresses
that
should
not
be

included
in
the
CATV
operator's
database
and
addresses
that
are

not
attributable
to
that
county
for
determination
of
franchise

fees
or
service
provider
fees.
Generally
accepted
auditing

standards
shall
be
utilized
by
the
county
and
its
agents
in
its

review
of
information
provided
by
the
CATV
operator. 
    (c-10)
In
the
event
that
the
county
or
its
agent
does
not

provide
the
initial
report
of
the
audit
findings
to
the
CATV

operator
with
the
timeframes
set
forth
in
subsection
(c-5) of 
this Section,
then
the
audit
shall
be
deemed
completed
and
to

have
conclusively
found
that
there
was
no
overpayment
or

underpayment
by
the
CATV
operator
for the audit period. 
Further, the county may not thereafter commence or conduct any 
such audit for the same audit period or for any part of that 
same audit period during
the
24
months
prior
to
the
county
or

its
agents
requesting
the
information
set
forth
in
subsection

(b) of this Section. 
    (d) If an audit by the county or its agents finds an error 
by the CATV operator in the amount of the franchise fees or 
service provider fees paid by the CATV operator to the county, 
then the county shall notify the CATV operator of the error. 
Any such notice must be given to the CATV operator by the 
county or its agent within 90 days after the county or its 
agent discovers the error, and no later than 4 years after the 
date the franchise fee or service provider fee was due. Upon 
such a notice, the CATV operator must submit a written response 
within 60 days after receipt of the notice stating that the 
CATV operator has corrected the error on a prospective basis or 
stating the reason that the error is inapplicable or 
inaccurate. The county or its agent then has 60 days after the 
receipt of the CATV operator's response to review and contest 
the conclusion of the CATV operator. No legal proceeding to 
collect a deficiency or overpayment based upon an alleged error 
shall be commenced unless within 180 days after the county's 
notification of the error to the CATV operator the parties are 
unable to agree on the disposition of the audit findings.
    Any
legal
proceeding
to
collect
a
deficiency
as
set
forth

in
this subsection
(d)
shall
be
filed
in
the
appropriate

circuit
court. 
    (e) No CATV operator is liable for any error in past 
franchise fee or service provider fee payments that was unknown 
by the CATV operator prior to the audit process unless (i) the 
error was due to negligence on the part of the CATV operator in 
the collection or processing of required data and (ii) the 
county had not failed to respond in writing in a timely manner 
to any written request of the CATV operator to review and 
correct information used by the CATV operator to calculate the 
appropriate franchise fees or service provider fees if a 
diligent review of such information by the county reasonably 
could have been expected to discover such error.
    (f) All account specific information provided by a CATV 
operator under this Section may be used only for the purpose of 
an audit conducted under this Section and the enforcement of 
any franchise fee or service provider fee delinquent claim. All 
such information must be held in strict confidence by the 
county and its agents and may not be disclosed to the public 
under the Freedom of Information Act or under any other similar 
statutes allowing for or requiring public disclosure.
    (f-5)
All
contracts
by
and
between
a
county
and
a
third

party
for
the
purposes
of
conducting
an
audit
as
contemplated

in
this
Code
shall
be
disclosed
to
the
public
under
the
Freedom

of
Information
Act
or
under
similar
statutes
allowing
for
or

requiring
public
disclosure. 
    (g) For the purposes of this Section, "CATV operator" means 
a person or entity that provides cable and video services under 
a franchise agreement with a county pursuant to Section 5-1095 
of the Counties Code and a holder authorized under Section 
21-401 of the Cable and Video Competition Law of 2007 as 
consistent with Section 21-901 of that Law.
    (h) This Section does not apply to any action that was 
commenced, to any complaint that was filed, or to any audit 
that was commenced before the effective date of this amendatory 
Act of the 96th General Assembly. This Section also does not 
apply to any franchise agreement that was entered into before 
the effective date of this amendatory Act of the 96th General 
Assembly unless the franchise agreement contains audit 
provisions but no specifics regarding audit procedures.
    (h-5) The audit procedures set forth in this Section shall 
be the exclusive audit procedures for: (i) any franchise 
agreement entered into, amended, or renewed on or after the 
effective date of this amendatory Act of the 100th General 
Assembly; and (ii) any franchise fee or service provider fee 
audit of a CATV operator commenced on or after the effective 
date of this amendatory Act of the 100th General Assembly. 
    (i) The provisions of this Section shall not be construed 
as diminishing or replacing any civil remedy available to a 
county, taxpayer, or tax collector. 
    (j) If a contingent fee is paid to an auditor, then the 
payment must be based upon the net difference of the complete 
audit.
    (k) A Within 90 days after the effective date of this 
amendatory Act of the 96th General Assembly, a county shall 
provide to each any CATV operator an updated a complete list of 
addresses within the corporate limits of the county and shall 
annually update the list. In addition, the county shall provide 
a CATV operator the updated address list within 90 days after 
the date of a written request by the CATV operator.
    As a prerequisite to performing an audit of a CATV 
operator's franchise fees or service provider fees derived from 
the provision of cable and video services to subscribers within 
the franchise area, a county shall provide to a CATV operator 
the complete list of addresses within the corporate limits of 
the county for each calendar year subject to the audit. If an 
address is not included in the list or if no list is provided, 
the CATV operator shall be held harmless for any franchise fee 
underpayments, including penalty and interest, from situsing 
errors if it used a reasonable methodology to assign the 
address or addresses to a county.
    An address list provided by a county to a CATV operator 
shall be maintained as confidential by the CATV operator and 
shall only be used by the CATV operator for the purposes of 
determining the situs of any franchise fee or service provider 
fee.  Any situs issues identified by a CATV operator as a result 
of the provision of an address list by a county to the CATV 
operator shall first be confirmed in writing to the county by 
the CATV operator prior to the CATV operator making any situs 
change that may result in a change of allocation of a franchise 
fee or service provider fee to the county. 
    (l) This Section is a denial and limitation of home rule 
powers and functions under subsection (h) of Section 6 of 
Article VII of the Illinois Constitution.

(Source: P.A. 99-6, eff. 6-29-15.)
 
    Section 10. The Illinois Municipal Code is amended  by 
changing Section 11-42-11.05 as follows:
 
    (65 ILCS 5/11-42-11.05)

    Sec. 11-42-11.05. Municipal franchise fee or service 
provider fee review; requests for information.
    (a) If pursuant to its franchise agreement with a community 
antenna television system (CATV) operator, a municipality 
imposes a franchise fee authorized by 47 U.S.C. 542 or
if
a

community
antenna
television
system
(CATV)
operator
providing

cable
or
video
service
in
that
municipality
is
required
to
pay

the
service
provider
fees
imposed
by
the
Cable
and
Video

Competition
Law
of
2007, then the municipality may conduct an 
audit of that CATV operator's franchise fees or service 
provider fees derived from the provision of cable and video 
services to subscribers within the franchise area to determine 
whether the amount of franchise fees or service provider fees 
paid by that CATV operator to the municipality was accurate. 
Any audit conducted under this subsection (a) shall determine, 
for a period of not more than 4 years after the date the 
franchise fees or service provider fees were due, any 
overpayment or underpayment to the municipality by the CATV 
operator, and the amount due to the municipality or CATV 
operator is limited to the net difference.
    (b) Not more than once every 2 years, a municipality or its 
agent that is authorized to perform an audit as set forth in 
subsection (a) of this Section may, subject to the limitations 
and protections stated in the Local Government Taxpayers' Bill 
of Rights Act, request information from the CATV operator in 
the format maintained by the CATV operator in the ordinary 
course of its business that the municipality reasonably 
requires in order to perform an audit under subsection (a). The 
information that may be requested by the municipality includes 
without limitation the following:
        (1) in an electronic format used by the CATV operator 
    in the ordinary course of its business, the database used 
    by the CATV operator to determine the amount of the 
    franchise fee or service provider fee due to the 
    municipality; and
        (2) in a format used by the CATV operator in the 
    ordinary course of its business, summary data, as needed by 
    the municipality, to determine the CATV operator's 
    franchise fees or service provider fees derived from the 
    provision of cable and video services to subscribers within 
    the CATV operator's franchise area.
    (c) The CATV operator must provide the information 
requested under subsection (b) within:
        (1) 60 days after the receipt of the request if the 
    population of the requesting municipality is 500,000 or 
    less; or
        (2) 90 days after the receipt of the request if the 
    population of the requesting municipality exceeds 500,000.
    The time in which a CATV operator must provide the 
information requested under subsection (b) may be extended by 
written agreement between the municipality or its agent and the 
CATV operator.
    (c-5) The
municipality
or
its
agent
must
provide
an
initial

report
of
its
audit
findings
to
the
CATV
operator
no
later
than

90
days
after
the
information
set
forth
in
subsection
(b)
of 
this Section has
been
provided
by
the
CATV
operator.
This

90-day
timeline
may
be
extended
one
time
by
written
agreement

between
the
municipality
or
its
agents
and
the
CATV
operator.

However,
in
no
event
shall
an
extension
of
time
exceed
90
days.

This
initial
report
of
audit
findings
shall
detail
the
basis
of

its
findings
and
provide,
but
not
be
limited
to,
the
following

information:
(i)
any
overpayments
of
franchise
fees
or
service

provider
fees,
(ii)
any
underpayments
of
franchise
fees
or

service
provider
fees,
(iii)
the complete list of all addresses 
within the corporate limits of the municipality for which the 
audit is being conducted, (iv) all
municipal
addresses
that

should
be
included
in
the
CATV
operator's
database
and

attributable
to
that
municipality
for
determination
of

franchise
fees
or
service
provider
fees,
and
(v) (iv)
addresses

that
should
not
be
included
in
the
CATV
operator's
database
and

addresses
that
are
not
attributable
to
that
municipality
for

determination
of
franchise
fees
or
service
provider
fees.

Generally
accepted
auditing
standards
shall
be
utilized
by
the

municipality
and
its
agents
in
its
review
of
information

provided
by
the
CATV
operator. 
    (c-10)
In
the
event
that
the
municipality
or
its
agent
does

not
provide
the
initial
report
of
the
audit
findings
to
the

CATV
operator
with
the
timeframes
set
forth
in
subsection
(c-5) 
of this Section,
then
the
audit
shall
be
deemed
completed
and

to
have
conclusively
found
that
there
was
no
overpayment
or

underpayment
by
the
CATV
operator
for the audit period. 
Further, the municipality may not thereafter commence or 
conduct any such audit for the same audit period or for any 
part of that same audit period during
the
24
months
prior
to

the
municipality
or
its
agents
requesting
the
information
set

forth
in
subsection
(b) of this Section. 
    (d) If an audit by the municipality or its agents finds an 
error by the CATV operator in the amount of the franchise fees 
or service provider fees paid by the CATV operator to the 
municipality, then the municipality shall notify the CATV 
operator of the error. Any such notice must be given to the 
CATV operator by the municipality or its agent within 90 days 
after the municipality or its agent discovers the error, and no 
later than 4 years after the date the franchise fee or service 
provider fee was due. Upon such a notice, the CATV operator 
must submit a written response within 60 days after receipt of 
the notice stating that the CATV operator has corrected the 
error on a prospective basis or stating the reason that the 
error is inapplicable or inaccurate. The municipality or its 
agent then has 60 days after the receipt of the CATV operator's 
response to review and contest the conclusion of the CATV 
operator. No legal proceeding to collect a deficiency or 
overpayment based upon an alleged error shall be commenced 
unless within 180 days after the municipality's notification of 
the error to the CATV operator the parties are unable to agree 
on the disposition of the audit findings.
    Any
legal
proceeding
to
collect
a
deficiency
as
set
forth

in
this subsection
(d)
shall
be
filed
in
the
appropriate

circuit
court. 
    (e) No CATV operator is liable for any error in past 
franchise fee or service provider fee payments that was unknown 
by the CATV operator prior to the audit process unless (i) the 
error was due to negligence on the part of the CATV operator in 
the collection or processing of required data and (ii) the 
municipality had not failed to respond in writing in a timely 
manner to any written request of the CATV operator to review 
and correct information used by the CATV operator to calculate 
the appropriate franchise fees or service provider fees if a 
diligent review of such information by the municipality 
reasonably could have been expected to discover such error.
    (f) All account specific information provided by a CATV 
operator under this Section may be used only for the purpose of 
an audit conducted under this Section and the enforcement of 
any franchise fee or service provider fee delinquent claim. All 
such information must be held in strict confidence by the 
municipality and its agents and may not be disclosed to the 
public under the Freedom of Information Act or under any other 
similar statutes allowing for or requiring public disclosure.
    (f-5)
All
contracts
by
and
between
a
municipality
and
a

third
party
for
the
purposes
of
conducting
an
audit
as

contemplated
in
this
Article
shall
be
disclosed
to
the
public

under
the
Freedom
of
Information
Act
or
under
similar
statutes

allowing
for
or
requiring
public
disclosure. 
    (g) For the purposes of this Section, "CATV operator" means 
a person or entity that provides cable and video services under 
a franchise agreement with a municipality pursuant to Section 
11-42-11 of the Municipal Code and a holder authorized under 
Section 21-401 of the Cable and Video Competition Law of 2007 
as consistent with Section 21-901 of that Law.
    (h) This Section does not apply to any action that was 
commenced, to any complaint that was filed, or to any audit 
that was commenced before the effective date of this amendatory 
Act of the 96th General Assembly. This Section also does not 
apply to any franchise agreement that was entered into before 
the effective date of this amendatory Act of the 96th General 
Assembly unless the franchise agreement contains audit 
provisions but no specifics regarding audit procedures.
    (h-5) The audit procedures set forth in this Section shall 
be the exclusive audit procedures for: (i) any franchise 
agreement entered into, amended, or renewed on or after the 
effective date of this amendatory Act of the 100th General 
Assembly; and (ii) any franchise fee or service provider fee 
audit of a CATV operator commenced on or after the effective 
date of this amendatory Act of the 100th General Assembly. 
    (i) The provisions of this Section shall not be construed 
as diminishing or replacing any civil remedy available to a 
municipality, taxpayer, or tax collector. 
    (j) If a contingent fee is paid to an auditor, then the 
payment must be based upon the net difference of the complete 
audit.
    (k) A Within 90 days after the effective date of this 
amendatory Act of the 96th General Assembly, a municipality 
shall provide to each any CATV operator an updated a complete 
list of addresses within the corporate limits of the 
municipality and shall annually update the list. In addition, 
the municipality shall provide a CATV operator the updated 
address list within 90 days after the date of a written request 
by the CATV operator.
    As a prerequisite to performing an audit of a CATV 
operator's franchise fees or service provider fees derived from 
the provision of cable and video services to subscribers within 
the franchise area, a municipality shall provide to a CATV 
operator the complete list of addresses within the corporate 
limits of the municipality for each calendar year subject to 
the audit. If an address is not included in the list or if no 
list is provided, the CATV operator shall be held harmless for 
any franchise fee underpayments, including penalty and 
interest, from situsing errors if it used a reasonable 
methodology to assign the address or addresses to a 
municipality.
    An address list provided by a municipality to a CATV 
operator shall be maintained as confidential by the CATV 
operator and shall only be used by the CATV operator for the 
purposes of determining the situs of any franchise fee or 
service provider fee.  Any situs issues identified by a CATV 
provider as a result of the provision of an address list by a 
municipality to the CATV operator shall first be confirmed in 
writing to the municipality by the CATV operator prior to the 
CATV operator making any situs change that may result in a 
change of allocation of a franchise fee or service provider fee 
to the municipality. 
    (l) This Section is a denial and limitation of home rule 
powers and functions under subsection (h) of Section 6 of 
Article VII of the Illinois Constitution.
    (m) This Section does not apply to any municipality having 
a population of more than 1,000,000. 

(Source: P.A. 99-6, eff. 6-29-15.)
  
 

    Section 99. Effective date. This Act takes effect upon 
becoming law.


Effective Date:  8/17/2018











  

    

      

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