City of Montello, WI Cable Television

On or about the second, fifth and 10th anniversaries of the effective date of the franchise, the City and the grantee will jointly review the performance of the grantee's operation, and specifically the City will inquire whether the grantee is supplying a level and variety of services equivalent to those being generally offered at that time in the industry in comparable market situations. In the event the grantee desires to change or modify its obligations under this chapter, it may negotiate with the Common Council to do so at that time.

Within 60 days of the conclusion of the review, the City and grantee shall report in a public proceeding the results of their review and their conclusions. The Common Council may then order unilateral changes in the franchise rights and obligations of the CATV system, where said changes cause no economic impact. Any changes that cause substantial adverse economic impact shall be the subject of negotiations with the grantee. Disputes hereunder shall be resolved by arbitrators, one selected by each party and the third selected by the other two, whose decision shall be final. The arbitrators are to base their decision on what is fair and equitable to all concerned.

At least six months prior to the expiration of the franchise, the City shall schedule a public meeting or meetings affording due process to the grantee to review the performance of grantee, including the results of previous franchise reviews. The City may require the grantee to make available specified records, documents and information for this purpose. Upon concluding said meetings, the City shall, within 30 days of the conclusion of such meetings, decide whether to reissue the CATV franchise or franchises to the grantee. The grantee shall not be denied renewal unless it is determined by the Council that renewal would not be in the public interest and said reasons are documented. The City shall not arbitrarily and capriciously deny renewal nor shall renewal be denied without just cause. In the event the City fails to renew without just cause, purchases the system or grants the franchise to another corporation, the City shall pay to the former grantee the fair market value of the system as measured by an operating system with a franchise.

§ 146-3 Conditions of franchise.

The grantee shall be subject to the following restrictions and conditions with regard to the operation of the system, which conditions and restrictions shall be in addition to any other sections of this chapter or other chapters of this Code:

Cables, wires and other equipment in connection with such system shall only be installed and operated on or under the public rights-of-way upon the poles or in underground conduit and equipment of the existing utilities within the City and their successors or assigns, where conduits exist and where space in installed conduits is available. Installation of any additional poles, conduit or other equipment for the installation of cables, wires, and other overhead equipment and underground equipment in public rights-of-way in connection with said system shall be subject to the authorization of the Common Council or its designated representative. In reaching a decision as to such additional poles or equipment, the suggestions, if any, of the utility companies servicing or planning to serve such area may be considered. Underground installations shall always be preferred; however, the grantee may construct its plant aerial so long as there is one utility aerial.

Such wires, cables and other underground or overhead equipment shall be located as may be required of telephone companies or power lines by the Public Service Commission of Wisconsin. All equipment shall be grounded in the same manner as required by the State of Wisconsin Electrical Code for electrical services existing on the date of installation of any equipment.

The grantee shall pay all costs incurred by the City in the event of the necessity of restoration of the public rights-of-way as a result of the grantee's construction of its system or its operation. The grantee and the City shall coordinate the restoration of the public rights-of-way if it becomes necessary for the grantee to open or otherwise to disturb said public rights-of-way.

The grantee shall, at its own expense, protect, support, temporarily or permanently disconnect, relocate in the same public right-of-way or remove from any public right-of-way any property owned or used by the grantee if required by the City for reason of traffic conditions, public safety, street vacation, freeway and street construction, change or establishment of street grade, installation of sewers, drains, water pipes, power lines and tracks or any other type of structures or improvements by governmental agencies when acting in a governmental capacity. The City shall provide the grantee notice of its intentions to make changes which might otherwise cause the grantee expense pursuant to this subsection and the grantee shall have an opportunity to comment.

The grantee shall, upon the request of any person holding a building moving permit issued by the City, temporarily raise or lower its lines or disconnect or take them down to permit the moving of buildings. The expense of such removal, raising or lowering of wires shall be paid by the person requesting the same, and the grantee shall be given not less than three working days' advance notice to arrange for such temporary wire changes.

All installations by the grantee of cables and incidental equipment shall comply in all respects with all laws, ordinances, rules and regulations of the FCC, the State of Wisconsin or any agency or department thereof, and of the City or any agency or department thereof, now or hereafter in effect.

The grantee shall provide and maintain its equipment in such condition and of such quality so that none of its service will adversely affect radio and television reception.

Installation and maintenance of equipment shall be such that standard color signals shall be transmitted with reasonable fidelity to all subscribers.

The grantee shall not directly or indirectly require of any subscriber the patronage of any designated person or company engaged in the servicing or repair of television receivers. The foregoing shall not apply to the repair or adjustment of equipment which is in part of the system of the grantee.

The grantee shall submit to inspections by duly authorized personnel of the City and shall make available to such inspectors or duly authorized personnel its facilities and equipment wherever situated. The City reserves the right to enact reasonable regulations regarding the installation and maintenance of the facilities of the grantee.

The City or any assignee thereof shall have the right, during the life of this franchise, free of charge, to install and maintain upon the fixtures and conduits of the grantee within the City limits wires and appropriate attachments necessary for a security and fire alarm system. Such wires and fixtures shall be constructed and maintained to the satisfaction of the grantee and in accordance with its specifications.

The City, in its use and maintenance of such wires and attachments, shall at all times comply with the rules and regulations of the grantee so that there may be a minimum danger of contact or conflict between the wires and fixtures of the grantee and the wires and attachments used by the City.

The grantee shall have the authority to trim trees upon and overhanging public rights-of-way of the City so as to prevent the branches of such trees from coming in contact with the wires and cables of the grantee, except that, at the option of the City, such trimming may be done by it or under its supervision and direction.

§ 146-4 Termination of franchise.

Sanctions against the grantee. Nothing shall prohibit the City from imposing lesser sanctions than revocations or censures, including either monetary penalties for violations of this chapter or the shortening of the franchise period for substantial and repeated violations, or a combination of either:

If the grantee should default in the performance of any of its obligations under the franchise and fails to cure the default within 30 days after receipt of written notice of the default from the City.

If the grantee should fail to provide or maintain in full force and effect the escrow account and liability and indemnifications coverages as required in § 146-28, Escrow account, and § 146-27, Hold harmless agreement and defense of litigation, respectively.

If a petition is filed by or against the grantee under the Bankruptcy Act, or any other insolvency or creditors' right law, state or federal, and the grantee shall fail to have it dismissed.

If a receiver, trustee or liquidator of the grantee is applied for or appointed for all or part of its assets.

If the grantee makes an assignment for the benefit of creditors.

If any court of competent jurisdiction, the FCC, or any state regulatory body, by rules, decision, or other action, determines that any material provision of the franchise documents, including this chapter, is invalid or unenforceable.

If the grantee should violate any orders or ruling of any regulatory body having jurisdiction over the grantee, unless the grantee is lawfully contesting the legality or applicability of such order or ruling.

(8)

If the grantee fails to receive the necessary FCC or state certifications, unless such cause is directly attributable to an action or condition imposed by the City.

Sanctions. Upon the occurrence of any of the events enumerated in Subsection A of this section or other provisions of this chapter, the Common Council may, after hearing, upon 30 days' written notice to the grantee citing the reasons alleged to constitute cause for revocation or lesser sanctions, set a reasonable time in which the grantee must remedy the event bringing rise to evoking the sanction or revocation procedure. If, during the thirty-day period, the event shall be cured to the satisfaction of the City, the City may declare the notice to be null and void. If the grantee fails to remedy the event within the time specified, the Council may revoke the franchise or impose lesser sanctions. In any event, before a franchise may be terminated, the grantee must be provided with an opportunity to be heard by the Common Council. No franchise granted under this chapter shall ever be given any value by any court or other authority, public or private, in any proceeding of any nature or character wherein or whereby the City shall be a party or affected therein or thereby.

Procedure upon expiration or revocation of franchise. In the event that the City decides to terminate for cause a franchise granted hereunder, it shall give the grantee 90 days' written notice of its intent to terminate and shall stipulate the cause. If, during the ninety-day period, the cause shall be cured to the satisfaction of the City, the City may, at its discretion, declare the notice to be null and void. In any event, before a franchise may be terminated, the grantee shall be provided with an opportunity to be heard before the Common Council. Should the grantee's franchise be terminated or expire, the grantee shall promptly remove all property within a public right-of-way owned by it unless permitted by the City to abandon such property in place or to transfer said property to a purchaser previously approved by the City. In the event of such removal, the grantee shall restore the public right-of-way to a condition satisfactory to the City. Upon abandonment, which shall only be done if the City directs, the grantee shall transfer ownership of all such abandoned property to the City and submit an instrument in writing approved by the City Attorney effectuating said transfer. During the interval of a transfer of a grantee's property, the City may require the grantee to continue service to the public.

Restoration of property. In removing its plant, structures and equipment, the grantee shall refill, at its own expense, any excavation that shall be made by it and shall leave all public ways and places in as good condition as that prevailing prior to the company's removal of its equipment and appliances, without affecting the electric or telephone cables, wires, or attachments. The City shall inspect and approve the condition of the public ways and public places and cables, wires, attachments and poles after removal. Liability insurance and indemnity provided in § 146-27, Hold harmless agreement and defense of litigation, and the escrow account in § 146-28, Escrow account, shall continue in full force and effect during the period of removal.

Restoration by City; reimbursement of costs. In the event of a failure by the grantee to complete any work required by Subsection D above or any work required by City law or ordinance within the time established and to the satisfaction of the City, the City may cause such work to be done, and the grantee shall reimburse the City the costs thereof with 30 days after receipt of an itemized list of such costs or the City may recover such costs as provided in § 146-28, Escrow account.

Expiration; extended operation. Upon the expiration of a franchise, the City may, by resolution, on its own motion or request of the grantee, require the grantee to operate the franchise for an extended period of time not to exceed six months from the date of any such resolution. All provisions of the franchise shall continue to apply to operations during an extension period. The City shall serve written notice at the grantee's business office of intent to extend under this section at least 30 days prior to expiration of the original franchise or any extensions thereof.

§ 146-5 Transfer, assignment and sale of franchise; transfer of ownership of grantee.

This franchise may be transferred, assigned or sold only with the written consent of the Common Council and approved only if the transferee, assignee or purchaser agrees in writing to be subject to all the terms and conditions of this chapter. The grantee shall notify the Common Council at least 30 days before a proposed transfer, assignment or sale is to take effect. Such notice must be in the form of a written request to the City Clerk-Treasurer stating the reasons why such an assignment is necessary and/or advisable and detailing the expected changes in the operation of the system. Information of the legal, character, financial, technical and other qualifications of the party or parties to which the franchise is to be transferred, assigned or sold and/or operated shall also be provided. This section shall not apply to the transfer, assignment or sale of less than 10% of the ownership, operation or management of the franchise. The Common Council shall not withhold approval or consent to the transfer, unless the operation or management of the system will be affected to the detriment of the public by approving said transfer, assignment or sale. This provision shall not apply to either the mortgage or hypothecation of the system as a result of the mortgage or the remedies therein.

Consent prior to change of control. Prior approval of the Common Council shall be required where ownership or control of more than 10% of the voting stock of the grantee is acquired by a person or group of persons acting in concert, none of whom already owns or controls 10% or more of such right of control, singularly or collectively. Transfer from a subsidiary to a parent corporation or vice-versa shall not be considered as a change of control. Prior approval of the Common Council shall also be required for all changes in ownership or control by a person or group of persons acting in concert who already own or control 10% or more of such right of control, singularly or collectively.

§ 146-6 Option to purchase and right of first refusal.

Should this franchise be terminated by expiration and nonrenewal or by termination for any reason cited in § 146--4 of this chapter, then the City shall have the option to purchase all of the property of the grantee, or any part of it, lying within the City limits, including physical plant, towers, antennas, receiver stations, and all cable, wires and attachments, at fair market value. The option shall be executed by written notice within 30 days after expiration or termination of the franchise. An offer to purchase shall be made by the City within 15 days thereafter. The grantee shall have 15 days to accept said offer. If the parties cannot agree as to fair market value, then each of the parties shall mutually select an appraiser to determine the fair market value of the subject property. Said appraisal shall be made within 45 days after the grantee rejects the first offer of purchase, and both parties shall be bound by the valuation stated therein.

Should the grantee, during the term of the franchise, elect to sell, transfer, or assign this franchise, or any portion thereof equal to 10% or over of the ownership, operation or management of the franchise, the City shall have the right of first refusal to meet any bona fide offer of sale on the same terms and conditions of such offer. Upon the City's failure to meet such bona fide offer written 30 days after notice thereof from the grantee, the grantee shall be free to sell, transfer or assign this franchise to such third person, subject to the provisions of § 146-5 of this chapter.

§ 146-7 Completion of construction and extension of system.

The grantee shall immediately apply for all necessary approvals, permits, and contracts, including the necessary authority from the FCC and microwave licenses and a certificate of compliance, and within 12 months the grantee shall commence operation.

Failure to comply with the provisions of Subsection A may be grounds for the termination of the franchise.

The City may, in its discretion, extend the time for the grantee, acting in good faith, to perform any act required hereunder. The time for performance shall be extended or excused, as the case may be, for any period during which the grantee demonstrates to the satisfaction of the Common Council that the grantee is being subjected to delay or interruption due to any of the following circumstances if reasonably beyond its control:

Necessary utility rearrangements or pole changeouts.

Governmental or regulatory restrictions.

Labor strikes.

Lockouts.

War.

National emergencies.

Fire.

(8)

Other acts of God.

The grantee shall extend the cable system so as to provide full service to all residents of newly annexed areas and all residents within the City limits where a density of 60 potential subscribers per mile can be obtained.

The grantee shall be allowed to furnish service to other areas than the City; provided, however, that the construction or provision of services to areas other than the City does not prohibit, impede, or delay the substantial completion date of the system in the City.

§ 146-8 Network description.

The grantee shall maintain and operate its broadband telecommunications network in accordance with the rules and regulations of the FCC, the State of Wisconsin and/or the City as are incorporated herein or may be promulgated.

The grantee shall install a cable network having a minimum initial forward bandwidth capability of 5 to 45 MHz. Whenever a reverse or feedback circuit is routed from a subscriber's premises, it shall be connected so as to permit subscriber notification and subscriber-controlled deactivation.

As total bidirectional capacity is of a great deal of interest to the City, applicants for a franchise hereunder may propose greater channel capacities and more sophisticated two-day capabilities than the minimums set forth herein. However, such proposal shall describe the particular community needs to be served thereby and shall detail the associated costs and revenues.[1]

[1]

Editor's Note: Amended at time of adoption of Code (see Ch. 1, General Provisions, Art. II).

§ 146-9 Network technical requirements.

General requirements. Each community antenna television and audio communications system must be so designed, installed and operated as to meet the following general requirements:

Capable of continuous twenty-four-hour daily operation.

Capable of operating over an outdoor temperature range of -40º F. to +140º F. without catastrophic failure or irreversible performance changes over variations in supply voltages from 105 to 130 volts AC.

Capable of meeting all specifications set forth herein over an outdoor temperature range of -10º F. to +100º F. over variations in supply voltages from 105 to 130 volts AC.

Operated in such a manner as to avoid causing interference with reception of off-the-air signals by nonsubscribers to the cable system.

Designed, installed and operated so as to comply with all applicable rules and regulations promulgated by the FCC.

Designed, installed and operated so as to assure the delivery on the FCC-designated Class I cable television channels without noticeable picture degradation or visible evidence of color distortion or other forms of interference directly attributable to the performance of the community antenna television and audio communications system.

Class I channel performance requirements. The following requirements apply to system performance on the FCC-designated Class I cable television channels as measured at any subscriber terminal with a matched termination:

The signal level as measured at the visual carrier frequency for each cable television channel shall not be less than 1,000 UV (microvolts) across a 75 ohm terminating impedance. The aural carrier level shall be maintained between 13 and 17 decibels below its associated visual carrier level.

The visual carrier signal level on each television channel shall be maintained within:

(a)

Twelve decibels above its minimum value;

(b)

Three decibels of the signal level of any visual carrier within 6 MHz nominal frequency separation; and

(c)

Twelve decibels of the visual carrier signal level on any other cable television channel.

The community antenna television and audio communications system frequency response as measured at any subscriber terminal shall not vary by more than plus or minus 2 db over the 6 MHz bandwidth of any VHF television channel or corresponding portion of the FM or midband frequency spectrums.

The corrected ratio of visual signal level to system noise shall not be less than 36 decibels. This requirement is applicable only to the following signals:

(a)

Each off-air signal carried by a community antenna television and audio communications system serving subscribers within the Grade B contour for that signal;

(b)

Each off-air signal which is first picked up within its Grade B contour; or

(c)

Each off-air signal which is received by the cable system via microwave or other similar form of transmission.

Cross-modulation as measured at any visual carrier frequency from the cable system input to any subscriber terminal shall not exceed -48 db (as defined by NCTA Standard 002.0267) measured at approximately + 70º F.

The ratio of visual carrier signal level to the rms amplitude of any coherent disturbances, such as intermodulation products, system-generated or induced co-channel signals or discrete frequently interfering signals, shall not be less than 46 decibels, except for officially assigned offset carriers for which it shall not be less than 36 decibels.

The terminal isolation between subscribers shall not be less than 16 decibels, except that the isolation between multiterminals of one subscriber shall not be less than 18 decibels.

(8)

The hum modulation as measured over the usable frequency bandwidth from the community antenna television and audio communications system input to any subscriber terminal shall not exceed 3%. The percent of hum modulation is defined as the ratio expressed in percent of the average level of the detected signal to 1/2 the indicated peak AC hum.

(9)

Radiation from a cable television system shall be in accordance with the limits set forth in Part 76, § 76.605(a)(12) of the FCC rules and regulations.

Standards modified where necessary. Notwithstanding the fact that the network may be in compliance with all the standards set forth herein, the City may require a higher level of performance in any area to resolve signal quality or interference problems.

Specifications for additional channels to be submitted. Proposed specifications for FCC-designated Class II, III and IV channels shall be submitted by the grantee to and approved by the City as the use of these channels is implemented.

Interconnection with redistribution systems. A grantee shall not interconnect with any distribution or redistribution system that does not meet or exceed the technical standards of any system operated under this chapter.

§ 146-10 Performance measurements.

General requirements. Test procedures used in verification of the performance criteria set forth herein shall be in accordance with good engineering practice. The test procedures specified in Subsection B of this section are designed as a guide and should be made under conditions which reflect system performance during normal system operations. As there is more than one technically acceptable method for performing many of the measurements, the technique and equipment utilized in each case, if different from those set forth below, shall be fully described in the annual certificate filed with the City.

Measurement procedures. All measurements shall be made from the head end of the community antenna television and audio communications system to at least three subscriber locations in each local distribution system, at least two of which shall be worst case locations (system extremities). Measurements shall be made at 75 ohms with the loss of the set transformer indicated where applicable for each test location. The measurements are to be made as follows:

Network frequency response measurements may be made with a calibrated signal generator, variable attenuator and a frequency selective voltmeter (if an accurately calibrated field-strength meter is used for the measurements, its date of calibration shall be indicated on the technical measurement certificate filed with the City). All television signals except for ALC, AGC or ASC pilot carriers may be disconnected during this test. With all automatic gain control amplifiers in the section under test set to their normal operating mode, the signal generator shall be connected to the input of the community antenna television and audio communications system and set for CW signal at the desire frequency and at the level normally present at that frequency and location. With the meter and variable attenuator connected in series to the subscriber terminal under test, the signal level shall be measured and recorded. Measurement shall then be made in a similar manner for all video carrier frequencies on the network at the levels normally carried on the network.

Network signal-to-noise measurements may be made in accordance with NCTA Standard 005.0669 or with a calibrated signal generator and frequency selective voltmeter connected as described in Subsection B(1) above. The signal generator shall be tuned, in turn, to the visual carrier frequency of each FCC-designated Class I cable television channel and the signal level at the subscriber terminal recorded. The meter should then be tuned to a frequency 2.5 MHz above the visual carrier frequency of each channel described above and, with the signal generator disabled, the indicated noise level recorded and corrected by an appropriate factor representing the ratio of 4 MHz to the noise bandwidth of the frequency selective voltmeter.

The network cross-modulation measurements shall be performed in accordance with NCTA Standard 002.0267.

The amplitude of the discrete frequency interferences within a cable television channel may be determined with a frequency selective voltmeter, calibrated for adequate accuracy.

The terminal isolation between any two subscriber terminals may be measured by applying a signal of predetermined amplitude from a signal generator to one terminal in the reverse direction and measuring the amplitude of that signal at the other terminal with a frequency selective voltmeter.

The system hum modulation may be measured at each visual carrier frequency on the system using a calibrated signal generator, a detector and an oscilloscope. The signal generator shall be connected and the level and frequency set at a predetermined mode with all other channels set at their normal levels. With the detector and oscilloscope connected to the subscriber terminal, the average level of the detected signal and the peak-to-peak AC hum will be indicated on the oscilloscope. The percent of hum modulation for this purpose is defined as the ratio, expressed in percent, of the average level of the detected signal to 1/2 the indicated peak-to-peak AC hum.

Radiation measurements shall be made in accordance with the procedures established in Part 76, § 76.609(b)(1)(5) of the FCC rules and regulations.

Additional tests and inspection. The City reserves the right to:

Require additional tests at specific terminal locations; and

Conduct its own inspections of the community antenna television and audio communications system of its own motion at any time during normal business hours with reasonable advance notice.

Report of measurements combined. To the extent that the report of measurements as required above may be combined with any reports of measurements required by the FCC or other regulatory agencies, the City shall accept such combined reports, provided that all standards and measurements herein or hereafter established by the City are satisfied.

§ 146-11 Channels to be provided.

Minimum number of channels required. The cable television system to be installed and operated hereunder shall have a minimum capacity of 18 channels.

The grantee shall carry, to the extent permitted by the FCC and as it can economically afford, the maximum number of broadcast signals, and the grantee shall exercise its best efforts to obtain permission from the FCC or any other regulatory agency having jurisdiction over the number of signals permitted for carriage of such signals.

The cable system shall carry and deliver to the subscribers all of the signals as provided for in the grantee's application and supplemental application.

Public access channel. The grantee shall provide at least one dedicated, noncommercial public access channel, as set forth and described in § 146-16B and C herein. The grantee shall regularly make information available to the public as to the availability of such channels, the hours of availability and the associated costs and revenues.

§ 146-12 Antenna switch.

The grantee, upon request from any subscriber, shall install a switching device so as to permit a subscriber to continue to utilize his or her own television antenna as he or she chooses. The switch to be provided shall have a minimum of 50 db isolation. The subscriber shall pay the cost of the switch not to exceed the actual cost to the grantee.

§ 146-13 Service requirements.

The grantee, whenever it is necessary to interrupt services over the broadband telecommunications network for the purpose of network maintenance, alteration or repairs, shall do so at such time as will cause the least amount of inconvenience to the subscribers.

The grantee shall respond to all service calls seven days a week and shall respond to any one service call within 48 hours of all requests for repairs or adjustments received prior to 2:00 p.m. each day. The grantee shall be responsible for restoration of loss of service, except to the extent that restoration of service is prevented by strike, injunction or other cause beyond the control of the grantee. The grantee should maintain a record of service reports and of the time of restoration of service and said records shall be maintained for a period no less than five years.

The grantee shall either provide a local office or designate a local representative in the City able to accept monthly payments. The grantee shall further provide local phone service with a twenty-four-hour answering service and shall publish said number in all local directories.

Rules and regulations.

The grantee shall have the authority to promulgate such rules, regulations, terms and conditions governing the conduct of its business as shall be reasonable and necessary to enable the grantee to exercise its rights and perform its obligations under this chapter and any franchise granted hereunder. All such rules, regulations, terms and conditions shall not be in conflict with the provisions hereof or the laws of the state, or the rules and regulations of the FCC, or any rules and regulations promulgated by the City in the exercise of its regulatory authority granted hereunder.

One copy of all such rules, regulations, terms and conditions, together with any amendments, additional, or deletions thereto, shall be made available to members of the public for inspection during normal business hours. No such rule, regulation, term, condition, amendment, addition or deletion thereto shall take effect unless and until so made available.

The City hereby designates the Chairman of the Cable Television Committee as the administrator and the Cable Television Committee as the committee which shall have primary responsibility for the continuing administration of the franchise and implementation of complaint procedures. The City shall give notification to the grantee's subscribers as to the person and office so designated and its responsibilities, and further the grantee and the City shall provide each subscriber at the time of initial subscription with information regarding the procedures for reporting and resolving complaints.

§ 146-14 Construction standards.

Compliance with safety codes. All construction practices shall be in accordance with all applicable sections of the Occupational Safety and Health Act of 1970 and any amendments thereto as well as all state and local codes where applicable.

Compliance with electrical codes. All installations of electronic equipment shall be of a permanent nature, durable and installed in accordance with the applicable sections of the current edition of the National Electric Safety Code and all state and local codes where applicable.

Antennas and towers. Antenna supporting structures (towers) shall be designed for the proper loading zone as specified in the Electronics Industry Association's R.S. 22A Specifications.

Compliance with aviation requirements. Antenna supporting structures (towers) shall be painted, lighted, erected and maintained in accordance with all applicable rules and regulations of the Federal Aviation Administration and the State Department of Transportation governing the erection and operation of supporting structures or television towers and all other applicable local or state codes and regulations.[1]

[1]

Editor's Note: Amended at time of adoption of Code (see Ch. 1, General Provisions, Art. II).

§ 146-15 Rates.

The maximum rates which may be charged by the grantee to subscribers shall be those rates as set forth in the grantee's application.

Said rates shall remain the maximum rates for the first 24 months of operation of the system. For the purpose of determining the twenty-four-month period under this subsection, the operation shall be deemed to have commenced at such time as distribution facilities have been installed so as to permit the offering of cable service to at least 25% of the dwelling units located within the franchise area.

All charges set by the grantee for services shall be fair and reasonable and calculated to offset all necessary costs for provision of the service, including a fair rate of return on its investment devoted thereto under efficient and economical management.

§ 146-16 Education and governmental connection.

Grantee to provide one connection without charge. The grantee shall provide, without charge and upon request, within the City, one connection, together with monthly basic service, to such public, parochial, nonprofit or private schools, City buildings and agency locations as the City may hereafter designate. The City reserves the right, at its expense, to extend service to as many areas within such schools, buildings and agencies as it deems desirable without payment of any additional fee to the grantee.

Grantee to provide one dedicated, noncommercial public access channel. The grantee shall provide at least one dedicated, noncommercial public access channel to be made available to the public at all times on a nondiscriminatory basis.

Grantee to provide additional access channel for education agencies. The grantee shall provide one additional access channel to be used by local education agencies, with a second channel available when the first channel is used 60% of a twelve-hour broadcasting day. There will be no charge to local education agencies for use of these channels.

Grantee to provide closed-loop system or equivalent service. The grantee will provide either a closed-loop system or equivalent service capable of doing the following:

Transmission to all educational buildings on a channel not normally received by cable subscribers.

Providing inputs to this system from the Montello High School.

Production costs on access channels. The grantee shall not be responsible for the production costs of programs prepared for transmission, other than as the grantee may elect to do so. A schedule of rates for production and origination charges shall be filed with the City Clerk-Treasurer.

Television broadcast signal carriage. The grantee shall carry those television broadcast signals which are in accordance with Part 76, § 76.63 of the FCC Rules and Regulations.

FM signal carriage. In addition to the television signals set forth above, the grantee shall carry as a minimum the FM radio stations whose normal broadcast ranges fall within the City limits. If the grantee elects to carry any AM stations, all AM stations licensed to cities within Marquette County must be carried.

Local origination channel. The grantee may provide at least one channel fully devoted to local origination programming.

Time information. The grantee shall provide time information on the public access channel or open channel of the grantee's choice. This shall be a visual display of electronically generated characteristics.

Emergency alert override. The grantee shall incorporate into its facilities the capability for a temporary emergency override, aural alert whereby a designee of the City, in times of crisis, may introduce a message on all channels simultaneously. A video override may be introduced on the public access channel. The grantee shall provide, in a location to be designated by the City, all equipment necessary for use of the emergency alert system.

Emergency weather programming. When emergency weather conditions exist, a momentary aural alert shall be sent out on all channels. A video alert may be introduced on the public access channel.

§ 146-17 Amendments.

The City may from time to time add to, modify or delete provisions of this chapter as it shall deem necessary in the exercise of its regulatory powers, provided that such additions, modifications or revisions are reasonable and do not adversely affect the grantee economically. Such additions, modifications or revisions shall be made only after a public hearing for which the grantee shall have received written notice at least 30 days prior to such hearing.

§ 146-18 Relocation, temporary disconnection and redesign.

The City reserves the right, upon reasonable notice, to require the grantee to protect, support, temporarily disconnect, relocate or remove from the City's streets any property of the grantee by reason of traffic conditions, public safety, street construction or vacation, change or establishment of street grade, installation of sewers, drains, water pipes, power or communication lines, tracks or other types of structure or improvements by governmental agencies or any other structures of public improvement. Reasonable notice for this provision of this chapter shall be construed to mean at least 30 days, except in the case of emergencies where no specific notice period shall be required. The grantee shall have an opportunity to present alternative routes, contest the expense and necessity of the change in his facilities required by this section and negotiate the shared cost. In no event shall the City require removal, disconnecting or the relocating of the grantee's facilities without cause, and the City shall consider the grantee's facilities in making its initial determination which might trigger this section.

§ 146-19 Right of intervention.

The City shall have the right to intervene and the grantee specifically agrees by his acceptance of this franchise not to oppose such intervention by the City in any suit or proceeding to which the grantee is a party.

§ 146-20 Right of inspection.

The City reserves the right, during the life of any franchise granted hereunder, to inspect and supervise all construction or installation work performed subject to the provisions of this chapter and to perform network measurements to ensure compliance with the terms of this chapter.

§ 146-21 Easements and permits.

Any franchise granted hereunder shall not relieve the grantee of any obligation involved in obtaining pole or conduit use agreements from the utility companies or others maintaining poles or conduits in the streets of the City whenever the grantee finds it necessary to make use of said poles or conduits. The City shall grant to the grantee authority, including easements, to use its public rights-of-way, streets, and other conduits for the distribution of the grantee's system and shall exercise its right of eminent domain when the obtaining of an easement is necessary for the distribution of grantee's system in the public interest. The City shall require all developers of future subdivisions, as that term is defined in § 236.02(12), Wis. Stats., when making provisions for, or restriction of, utilities in the subdivision plat to include cable television services. It is intended by this subsection to include cable television services in the same class as public utilities.

Any poles, cable, electronic equipment or other appurtenances of the grantee to be installed in, under, over, along, across, or upon a street shall be so located as to cause minimum interference with the public use of the streets and to cause minimum interference with the rights of other users of the streets or of property owners who adjoin any of the streets.

In the event of disturbance of any street by the grantee, he shall, at his own expense and in a manner approved by the City, replace and restore such street in as good a condition as before the work causing such disturbance was done.

Grantee shall construct, maintain and operate his network so as to cause minimum inconvenience to the general public. All excavations shall be properly guarded and protected and shall be replaced and the surface restored promptly after completion of the work. The grantee shall at all times comply with all excavation ordinance requirements of the City.

The grantee shall, upon reasonable notice from any person holding a building moving permit issued by the City, temporarily alter his facilities to permit the moving of such building. The actual cost of said altering shall be borne by the person requesting the altering, and the grantee shall have the right to request payment in advance. For this provision of this chapter, "reasonable notice" shall be construed to mean at least 15 workdays prior to the move.

§ 146-22 Reports and records.

Annual financial reports required. The grantee shall file annually with the City Attorney, not later than three months after the end of its fiscal year during which it accepted a franchise hereunder and within three months after the end of each subsequent fiscal year, two copies of the following, which shall be held confidential except regarding the regulatory function of the City over this franchise:

The report of its stockholders;

An income statement identifying revenues, expenses and income applicable to its operations under said franchise during the fiscal year and fraction thereof; and

A listing of its properties devoted to network operations together with an itemization of its investment in each of such properties on the basis of original cost, less depreciation. These reports shall include a balance sheet, listing of substantial liabilities and financing arrangements and such other reasonable information as the City may request and shall be certified by a certified public accountant.

Annual facilities report required. The grantee shall file annually with the City Clerk-Treasurer, not later than three months after the end of its fiscal year during which it accepted a franchise hereunder and within three months after the end of each subsequent fiscal year, two copies of the total facilities report setting forth the total physical miles of plant installed or in operation during the fiscal year and a map showing the location of the same.

Annual service summary required. The grantee shall, if requested by the City, provide a summary not later than three months after the end of its fiscal year of all trouble complaints and network downtime received or experienced during the fiscal year. The submitted summary shall include complaint disposition and response time. For the purposes of this provision, copies of a complaint logbook reflecting all such incidents will suffice.

Annual measurements report required. The grantee shall file annually with the City Clerk-Treasurer, not later than three months after the end of its fiscal year during which it accepted a franchise hereunder and within three months after the end of such subsequent fiscal year, two copies of a report on the network's technical measurements, as set forth in § 146-10, Performance measurements, herein.

Annual operations reports required. The grantor shall have the right to inspect and the grantee shall make available, not later than three months after the end of its fiscal year, the following supplemental information:

If a nonpublic corporation, a list of all current shareholders and bondholders both of record or beneficial. If a public corporation, a list of all shareholders who individually or as a concerted group hold 5% or more of the voting stock of the corporation.

A current list of all the grantee's officers and directors, including addresses and telephone numbers.

Copies of all pertinent agreement or contracts, including pole use agreements, entered into by the grantee during the fiscal year in the conduct of its business under a franchise granted hereunder.

The names and both business and residential addresses and phone numbers of the community antenna television and audio communications system resident manager and engineer.

Copies of subscriber agreements.

Copies of all rules and regulations promulgated by the grantee during the fiscal year in the conduct of its business in accordance with the provisions of § 146-13, Service requirements, hereunder.

A copy of the annual report(s) of the parent firm(s) which own an interest of more than 5% or more of the voting stock of the grantee and such other annual report(s) of subsidiaries or divisions of the parent firm(s) as the City deems necessary.

Public availability of reports. Reports as required under this chapter or other regulation are to be made available to the public upon proper request.

Correspondence. The grantee shall make available for City review a copy of each petition, application and communications to federal, state or other regulatory commissions or agencies having competent jurisdiction to regulate and pertaining to the operations of any community antenna television and audio communications system authorized hereunder.

City's access to records. The City reserves the right, during the life of any franchise granted hereunder, to have access, upon the giving of reasonable notice, to the grantee's contracts, including but without limitation pole agreements, channel leases and easements, engineering plans, accounting and financial data, and service records relating to the operations of the grantee under its franchise.

§ 146-23 Franchise payment.

Franchising compensation. Grantees of a franchise hereunder shall provide an initial payment to the City in an amount equal to the costs of publishing this chapter as well as any other ordinance incidental to the grant of a franchise hereunder, said sum to be payable concurrently with the grantee's acceptance of the franchise, to offset the City's costs in the franchise awarding process.

Annual franchise payment. Grantees of a franchise hereunder shall pay to the City an annual fee in an amount equal to 3% of the annual gross subscriber revenues. The grantee shall also pay to the City an annual fee in an amount equal to 1 1/2% of the annual premium subscription revenues. These payments shall be in addition to any other payments owed to the City by the grantee and shall not be construed as payment in lieu of municipal property taxes or other state, county or local taxes.

Method of computation; interest.

Sales taxes or other taxes levied directly on a per-subscription basis and collected by the grantee shall be deducted from the local annual gross subscriber revenues before computation of sums due the City is made. Payments due the City under the provisions of Subsection B above shall be computed annually and shall be paid with 90 days of the end of the grantee's fiscal year. The payment period shall commence as of the effective date of the franchise. The City shall be furnished a statement with each payment, by a certified public accountant, reflecting the total amounts of annual gross subscriber revenues and premium revenues, deductions and computations, for the annual payment period covered by the payments.

In the event that any payment is not made as required, interest on the amount due, as determined from the annual gross subscriber revenues as computed by a certified public accountant, shall accrue from the date of the required submittal at an annual rate of 12%. The percentages designated in this section may be amended no more than once each year by the Common Council, consistent with increased costs for municipal facilities and supervision and applicable rules of other regulatory agencies.

Rights of recomputation. No acceptance of any payment by the City shall be construed as a release or as an accord and satisfaction of any claim the City may have for further or additional sums payable as a franchise fee under this chapter or for the performance of any other obligation of the grantee.

§ 146-24 Sales and servicing of broadcast receivers.

The grantee may neither directly nor indirectly engage in the wholesale or retail sale, servicing or repair of television receivers or antennas, nor directly or indirectly require of any subscriber the servicing by any designated television-radio service business.

The grantee may neither directly or indirectly engage in installation or repair of distribution systems, other than its own, within apartment, motel, hotel or other commercial complexes.

§ 146-25 Unauthorized connections or modifications.

Unauthorized connections prohibited. It shall be unlawful for any firm, person, group, company, corporation or governmental body or agency, without the expressed consent of the grantee, to possess or make any connection, extension, or division, whether physically, acoustically, inductively, electronically or otherwise, with or to any segment of a franchised broadband telecommunications network for any purpose whatsoever.

Removal or destruction prohibited. It shall be unlawful for any firm, person, group, company, corporation, or governmental body or agency to willfully interfere or tamper with, remove, obstruct or damage any part, segment or content of a franchised broadband telecommunications network for any purpose whatsoever.

Violation of either Subsection A or B shall result in the violator reimbursing the grantee for losses incurred and forfeiture as provided in Chapter 1, § 1-4 of this Code.[1]

[1]

Editor's Note: Amended at time of adoption of Code (see Ch. 1, General Provisions, Art. II).

§ 146-26 Subscriber privacy.

Use of data from subscriber. A grantee, the City or any person shall not initiate or use any form, procedure or device for procuring information or data from cable subscribers' terminals by use of the cable system without prior authorization from each subscriber so affected. Valid authorization shall mean approval from the subscriber for a period of time not to exceed one year and shall not have been obtained from the subscriber as a condition of service.

Subscriber data. The City or a grantee or any person shall not, without prior written valid authorization from the Common Council, provide any data identifying designated subscribers.

Subscriber agreements. Any agreement or contract such as necessary under Subsection A or B shall not be part of any other contract or agreement and shall not be a condition of subscribing to the system.

§ 146-27 Hold harmless agreement and defense of litigation.

Hold harmless agreement. The grantee shall indemnify and hold harmless the City, its officers, boards, commissions, agents and employees against and from any and all claims, demands, causes of actions, actions, suits, proceedings, damages (including but not limited to damages to City property and damages arising out of copyright infringements, and damages arising out of any failure by grantee to secure consents from the owners, authorized distributors or licensees of programs to be delivered by grantee's cable television system), costs or liabilities (including costs or liabilities of the City with respect to its employees) of every kind and nature whatsoever, including but not limited to damages for injury or death or damage to person or property, regardless of the merit of any of the same, except when caused by the City's sole negligence, and against all liability to others, and against any loss, cost, and expense resulting or arising out of any of the same, including reasonable attorney fees, reasonable accounting fees, reasonable expert witness or consultant fees, court costs, reasonable per diem expenses, travel and transportation expenses or other provable and reasonable costs of or by the City.

Defense of litigation. The grantee shall, at the sole risk and expense of the grantee, upon demand of the City made by and through the City Attorney, appear in and defend any and all suits, actions or other legal proceedings, whether judicial, quasi-judicial, administrative, legislative or otherwise, brought or instituted or had by third persons or duly constituted authorities, against or affecting the City, its officers, boards, commissions, agents or employees, and arising out of or pertaining to the exercise of the enjoyment of such franchise, or the granting thereof by the City. The grantee shall pay and satisfy and shall cause to be paid and satisfied any judgment, decree, order, directive or demand rendered, made or issued against the grantee, the City, its officers, boards, commissions, agents, or employees in any of these premises, and such indemnity shall exist and continue without reference to or limitation by the amount of any bond, policy of insurance, deposit, undertaking or other assurance required hereunder, or otherwise, provided that neither the grantee nor the City shall make or enter into any compromise or settlement of any claim, demand, cause of action, action, suit or other proceeding without first obtaining the written consent of the other.

Reimbursement of costs. The grantee shall pay and by its acceptance of any franchise granted hereunder agrees that it will pay all expenses incurred by the City in defending itself with regard to all damages and penalties mentioned in Subsections A and B above.

Public liability insurance. The grantee shall maintain and by its acceptance of any franchise granted hereunder agrees that it will maintain throughout the term of the franchise, any extensions thereto, or as required in § 146-4, Termination of franchise, herein a general comprehensive liability insurance policy naming as the additional insured the City of Montello, its officers, boards, commissions, agents and employees, in a company approved by the Mayor and in a form satisfactory to the City Mayor, protecting the City and all persons against liability for loss or damage for personal injury, death or property damage occasioned by the operations of the grantee under any franchise granted hereunder, in the amounts of:

One million dollars for personal injury or death resulting from any one occurrence.

Five hundred thousand dollars for property damage resulting from any occurrence.

Notice of cancellation or reduction of coverage. The insurance policies mentioned above shall contain an endorsement stating that the policies are extended to cover the liability assumed by the grantee under the terms of this chapter and shall contain the following endorsement: "It is hereby understood and agreed that this policy may not be canceled nor the amount of coverage thereof reduced until 30 days after receipt by the Mayor by registered mail of two copies of a written notice of such intent to cancel or reduce the coverage."

Evidence of insurance filed with Mayor. All policies of insurance or certified copies thereof and written evidence of payment of required premiums shall be filed and maintained with the Mayor during the term of any franchise granted hereunder or any renewal thereof.

§ 146-28 Escrow account.

The grantee, within 30 days of the award of this franchise, shall maintain a savings account at a local bank with a balance of at least the total amount prepaid by all subscribers for basic services or $5,000, whichever is more, in the name of the grantee and the City of Montello, and the grantee shall ensure that said account is restricted such that no withdrawals may be made without the prior express written approval of the Finance Committee of the City of Montello and that said account shall be maintained to insure the performance of the grantee herein and shall be maintained until its termination shall be duly authorized by the Common Council of the City of Montello or upon the lapsing of 12 months after the date full network service has been substantially completed in accordance with the terms of this franchise, whichever occurs first.

§ 146-29 Acceptance and effective date of franchise.

Franchise acceptance procedures. Any franchise awarded hereunder and the rights, privileges and authority granted thereby shall take effect and be in force from and after the 30th day following the award thereof, provided that within 30 days from the day of such award the grantee shall file with the City the following:

A notarized statement by the grantee of unconditional acceptance of the franchise;

A certificate of insurance as set forth in section § 146-27, Hold harmless agreement and defense of litigation, herein;

Passbook to escrow savings account, reflecting account number, balance not less than $5,000, and date of deposit as set forth in § 146-28;

Reimbursement to the City for the costs of publication of this chapter; and