§ 1-07 Enforcement.
RCNY § 1-07
(a)Telecommunications franchisees may submit complaints about owners' compliance with the rules of this chapter to the Department.
(b)The Department may audit or otherwise investigate or review an owner's use of microtrenching and compliance with the rules of this chapter. The owner and any telecommunications franchisee that uses or has applied to use the owner's excess capacity must cooperate with the Department in the conduct of such an audit, investigation or review, and must cooperate with any other governmental entity lawfully authorized to conduct such an audit, investigation or review. The owner must provide access to individuals, documents, records and information as may be reasonable and appropriate to such audit, investigation or review.
(c)In the event of a violation of the rules of this chapter, the Department may initiate proceedings before the Office of Administrative Trials and Hearings (OATH) to seek the imposition of penalties on an owner, including fines or revocation or other limitation of the owner's right to engage in microtrenching. The rules of OATH will apply to such proceedings. Those rules are set forth in 48 RCNY Chapter 1. a. Following a hearing, an administrative law judge will issue a report and recommendation to the Commissioner of the Department or his or her designee. The report and recommendation will state proposed findings of fact and conclusions of law, and a recommended disposition. The responding party will have ten business days from the date of the report and recommendation to submit comments on the report and recommendation to the Commissioner. The Commissioner will issue a final decision, subject only to judicial review. b. Penalties include fines no less than $100 and no more than $25,000 per violation, termination of the owner's right to engage in additional microtrenching, and revocation of the owner's right to own microtrenching. Factors relevant to the determination of the penalty include the severity of the offense; whether the offense was willful or inadvertent; whether the offense furthered the owner's evasion of oversight and monitoring; the degree of the cost, disadvantage or inconvenience imposed on others by the offense; and the owner's history of offenses, if any. c. Violations include the following. (Descriptions are for informational purposes only; the text of the rule itself determines the scope and meaning of the rule.) i. 67 RCNY § 1-02(a): Performing microtrenching without or beyond the scope of a Department of Transportation-issued microtrenching permit. ii. 67 RCNY § 1-02(c): Providing fiber-optic service by microtrenching where prohibited. iii. 67 RCNY § 1-02(e): Failure to notify the Department, or to timely notify the Department, of the intended dates of microtrenching construction. iv. 67 RCNY § 1-02(f): Failure to file, or to timely file, drawings as required after conclusion of microtrenching construction. v. 67 RCNY § 1-03: Failure to install required excess capacity. vi. 67 RCNY § 1-04: Failure to maintain conduit in good repair, in compliance with these rules, or in compliance with requirements of the Department of Transportation. vii. 67 RCNY § 1-05: Failure to make excess capacity available; failure to make excess capacity available timely; attempt to overcharge for excess capacity; failure to respond or respond timely to a request for excess capacity; failure to offer excess capacity on a first-come, first-served basis. viii. 67 RCNY § 1-05(j): Failure to report to the Department as required. ix. 67 RCNY § 1-06: Failure to remove or dispose of conduit as directed. x. 67 RCNY § 1-07(b): Failure to cooperate with an audit, investigation or review. xi. Any other violation of the rules of this chapter. (Amended City Record 7/9/2015, eff. 8/8/2015)
