[HISTORY: Adopted by the Common Council of the City of Bayfield 4-1-1992
(§§ 9-3-1 through 9-3-48 of the 1992 Code of Ordinances). Amendments
noted where applicable.]
GENERAL REFERENCES
Streets and sidewalks — See Ch. 349.
This chapter shall be known and may be cited as the "Bayfield Cable
Television Ordinance," hereinafter "ordinance," "franchise" or "chapter."
For purposes of this chapter, the following terms, phrases, words and
their derivations shall have the meaning given herein:
All subscriber services provided by the grantee in one or more service
tiers, which includes the delivery of local broadcast stations, and public,
educational and government access channels. Basic service does not include
optional program and satellite service tiers, a la carte services, per channel,
per program, or auxiliary services for which a separate charge is made. However,
the grantee may include other satellite signals on the basic tier.
A facility, consisting of a set of closed transmission paths and
associated signal generation, reception, and control equipment that is designed
to provide cable service which includes video programming and which is provided
to multiple subscribers within a community, but such term does not include:
A facility that serves only to retransmit the television signals of
one or more television broadcast stations;
A facility that serves subscribers without using any public right-of-way;
A facility of a common carrier which is subject, in whole or in part,
to the provisions of Title II of the Federal Cable Communications Policy Act,
except that such facility shall be considered a cable system, other than for
purposes of § 621(c) of said Act to the extent such facility is
used in transmission of video programming directly to subscribers; or[1]
Any facilities of any electric utility used solely for operating its
electric utility system.
The City of Bayfield, Wisconsin.
A signaling path provided by a cable communications system to transmit
signals of any type from a subscriber terminal to another point in the cable
communications system.
Actual working control or ownership of a system in whatever manner
exercised. A rebuttable presumption of the existence of control or a controlling
interest shall arise from the beneficial ownership, directly or indirectly,
by any person or entity (except underwriters during the period in which they
are offering securities to the public) of 40% or more of a cable system or
the franchise under which the system is operated. A change in the control
or controlling interest of an entity which has control or a controlling interest
in a grantee shall constitute a change in the control or controlling interest
of the system under the same criteria. "Control" or "controlling interest"
as used herein may be held simultaneously by more than one person or entity.
An electronic device which converts signals to a frequency not susceptible
to interference within the television receiver of a subscriber, and by an
appropriate channel selector also permits a subscriber to view more than 12
channels delivered by the system at designated converter dial locations.
Any building or part of a building that is used as a home or residence.
The Federal Communications Commission and any legally appointed,
designated or elected agent or successor.
An initial authorization, or renewal thereof, issued by the City,
as the franchising authority, to a grantee to construct or operate a cable
system.
A contractual agreement entered into between the City and any grantee
hereunder that is enforceable by the City and by the grantee, and which sets
forth the rights and obligations between the City and the grantee in connection
with the franchise.
A person or entity to whom or which a franchise under this chapter
is granted by the City, along with the lawful successors or assigns of such
person or entity.
All revenue collected by the grantee arising from or attributable
to the provision of cable service by the grantee within the City including,
but not limited to periodic fees charged subscribers for any basic, optional,
premium, per-channel or per-program service; franchise fees; installation
and reconnection fees; leased channel fees; converter rentals and/or sales;
program guide revenues; late or administrative fees; upgrade, downgrade or
other change-in-service fees; local advertising revenues; revenues from home
shopping; revenues from the sale, exchange, use or cable cast of any programming
developed on the system for community or institutional use; provided, however,
that this shall not include any taxes on services furnished by the grantee
herein imposed directly upon any subscriber or user by state, local or other
governmental unit and collected by the grantee on behalf of the governmental
unit.
All areas in the City having a density of at least 40 dwelling units
per street mile.
The connection of the system from feeder cable to subscribers' terminals.
Local and regional advertising revenues derived from the sale of
locally and regionally inserted advertising, except such advertising sold
by or through grantee's national representative firm.
Is permissive.
Observing a communications signal, or the absence of a signal, where
the observer is neither the subscriber nor the programmer, whether the signal
is observed by visual or electronic means, for any purpose whatsoever; provided
monitoring shall not include system-wide, non-individually addressed sweeps
of the system for purposes of verifying system integrity, controlling return
paths transmissions, or verification of billing for premium or other services.
As applied to the grantee, shall mean those hours during which similar
businesses in the City are open to serve customers. In all cases, "normal
business hours" shall include some evening hours at least one night per week,
and/or some weekend hours.
Those service conditions which are within the control of the grantee.
Those conditions which are not within the control of the grantee include,
but are not limited to, natural disasters, civil disturbances, power outages,
telephone network outages, and severe or unusual weather conditions. Those
conditions which are ordinarily within the control of the grantee include,
but are not limited to, special promotions, pay-per-view events, rate increases,
regular peak or seasonal demand periods, and maintenance or upgrade of the
cable system.
Any natural person or any association, firm, partnership, joint-stock
company, limited liability company, joint venture, corporation, or other legally
recognized entity, private or public, whether for profit or not for profit.
Is mandatory.
The loss of either picture or sound or both for a single or multiple
subscriber(s).
The surface of and all rights-of-way and the space above and below
any public street, road, highway, freeway, lane, path, public way or place,
sidewalk, alley, court, boulevard, parkway, terrace, drive or easement now
or hereinafter held by the City for the purpose of public travel and shall
include other easements or rights-of-way as shall be now held or hereafter
held by the City which shall, within their proper use and meaning entitle
the grantee to the use thereof for the purposes of installing poles, wires,
cable, conductors, ducts, conduits, vaults, manholes, amplifiers, appliances,
attachments, and other property as may be ordinarily necessary and pertinent
to a cable television system.
Any person(s), firm, grantee, corporation or other legal entity,
or association lawfully receiving any service provided by a grantee pursuant
to this chapter.
A party utilizing a cable television system channel for purposes
of production or transmission of material to subscribers, as contrasted with
receipt thereof in a subscriber capacity.
Any franchise granted by the City pursuant to § 66.0419, Wis.
Stats., shall grant to the grantee the right and privilege to erect, construct,
operate and maintain in, upon, and along, across, above, over and under the
streets, now in existence and as may be created or established during its
terms, any poles, wires, cable, underground conduits, manholes, and other
television conductors and fixtures necessary for the maintenance and operation
of a cable system.
A.
Upon adoption of any franchise agreement and execution
thereof by the grantee, the grantee agrees to be bound by all the terms and
conditions contained herein.
B.
Any grantee also agrees to provide all services specifically
set forth in its application if any and to provide cable television service
within the confines of the City; and by its acceptance of the franchise, the
grantee specifically grants and agrees that its application is thereby incorporated
by reference and made a part of the franchise.
Any franchise is for the legally incorporated territorial limits of
the City and for any area henceforth added thereto during the term of the
franchise.
The franchise and the rights, privileges and authority granted under
this chapter shall take effect and be in force from and after final City approval
thereof, as provided by law, and shall continue in force and effect for a
term of no longer than 15 years, provided that within 45 days after the date
of final City approval of the franchise the grantee shall file with the City
its unconditional acceptance of the franchise and promise to comply with and
abide by all its provisions, terms, and conditions. Such acceptance and promise
shall be in writing duly executed. Such franchise shall be nonexclusive and
revocable.
A.
Current federal statutory process. Current federal procedures
and standards pursuant to 47 U.S.C. § 546 shall govern the renewal
of any franchise awarded under this chapter.
B.
Franchise renewal in the event of change in federal law.
In the event that any or all of the applicable provisions of federal law are
repealed or otherwise modified, the following relevant subsections shall apply:
(1)
At least 24 months prior to the expiration of the franchise,
the grantee shall inform the City in writing of is intent to seek renewal
of the franchise.
(2)
The grantee shall submit a proposal for renewal which
demonstrates:
(a)
That it has been and continues to be in substantial compliance
with the terms, conditions, and limitations of this chapter and its franchise;
(b)
That its system has been installed, constructed, maintained
and operated in accordance with the FCC, and this chapter and its franchise;
(c)
That it has the legal, technical, and financial qualifications
to continue to maintain and operate its system; and
(d)
That it has made a good faith effort to provide services
and facilities which accommodate the demonstrated needs of the community,
taking into account the cost of meeting such needs.
(3)
After giving public notice, the City shall proceed to
determine whether the grantee has satisfactorily performed its obligations
under the franchise. To determine satisfactory performance, the City shall
consider technical developments and performance of the system, cost of services,
and any other particular requirements set in this chapter. The City shall
consider the grantee's reports made to the City and the Federal Communications
Commission and the City may require the grantee to make available specified
records, documents, and information for this purpose, and may inquire specifically
whether the grantee will supply services sufficient to meet community needs
and interests, taking into account the cost of meeting such needs. Industry
performance on a national basis shall also be considered. Provisions shall
be made for public comment with adequate prior notice of at least 10 days.
(4)
Grantee shall be entitled to the same due process rights
included in Section 626 (47 U.S.C. § 546).
(5)
The City shall then prepare any amendments to this chapter
that it believes necessary.
(6)
If the City finds the grantee's performance satisfactory,
and finds the grantee's technical, legal, and financial abilities acceptable,
and finds that the grantee's renewal proposal meets the future cable-related
needs of the City, a new franchise shall be granted pursuant to this chapter
as amended for a period to be determined.
(7)
If the grantee is determined by the City to have performed
unsatisfactorily, new applicants may be sought and evaluated and a franchise
award shall be made by the City according to franchising procedures adopted
by the City.
A.
In accepting this franchise, the grantee shall acknowledge
that its rights hereunder are subject to the police power of the City to adopt
and enforce general ordinances necessary to the safety and welfare of the
public; and it agrees to comply with all applicable general laws and ordinances
enacted by the City pursuant to such power.
B.
Any conflict between the provisions of this chapter and
any other current or future lawful exercise of the City's police powers shall
be resolved in favor of the latter, except that any such exercise that is
not of general application in the jurisdiction, or applies exclusively to
the grantee or cable television systems which contains provisions inconsistent
with this franchise, shall prevail only if upon such exercise the City finds
an emergency exists constituting a danger to health, safety, property or general
welfare or such exercise is mandated by law.
No cable television system shall be allowed to operate or occupy or
use the streets, i.e., rights-of-way, for system installation and maintenance
purposes without a franchise.
The City shall have the right, during the life of this franchise, to
install and maintain upon the poles of the grantee at a charge equal to grantee's
cost any wire or pole fixtures that do not unreasonably interfere with the
cable television system operations, including future plans, of the grantee.
The City shall indemnify and hold harmless the grantee from any claim that
might arise due to or as a result of the City's use.
Costs to be borne by the grantee shall include any requirements or charges
incidental to the awarding or enforcing of the initial franchise, but shall
not be limited to, all costs of publication of notices prior to any public
meeting provided for pursuant to the franchise, and any costs not covered
by application fees, incurred by the City in its study, preparation of proposal
documents, evaluation of all applications and examinations of the applicants'
qualifications.
All notices from the grantee to the City pursuant to this chapter shall
be to the City Clerk's office. The grantee shall maintain with the City, throughout
the term of this franchise, an address for service of notices by mail. The
grantee shall maintain a central office to address any issues relating to
operating under this Cable Television Ordinance.
A.
Within 60 days after the award of the initial or renewal franchise, the grantee shall deposit with the City a performance bond, in the amount of $5,000. The form and content of the bond shall be approved by the City Attorney. The bond shall be used to insure the faithful performance of the grantee of all provisions of this franchise; and compliance with all orders, permits and directions of any agency, commission, board, department, division, or office of the City having jurisdiction over its acts or defaults under this chapter, and the payment by the grantee of any damages assessed against the grantee under § 166-46 or any claims, liens, and taxes due the City which arise by reason of the construction, operation or maintenance of the system.
B.
The bond shall be maintained at the amount established by the City for the entire term of this franchise, even if amounts have to be withdrawn pursuant to Subsection A of this section.
C.
If the grantee fails to pay to the City any amounts owed
under the franchise agreement, that is not on appeal to the court of proper
jurisdiction, within the time fixed herein or fails after 15 days' notice
to pay to the City any taxes due and unpaid; or fails to repay the City, within
15 days, any damages, costs or expenses which the City is compelled to pay
by reason of any act or default of the grantee in connection with this franchise,
or fails, after three days' notice of such failure by the City to comply with
any provision of this franchise which the City reasonably determines can be
remedied by demand on the bond, the City may immediately request payment of
the amount thereof, with interest and any penalties, from the bond. Upon such
request for payment, the City shall notify the grantee of the amount and date
thereof.
D.
The rights reserved to the City with respect to the bond
are in addition to all other rights of the City, whether reserved by the franchise
or authorized by law, and no action, proceeding or exercise of a right under
this subsection with respect to the bond shall affect any other right the
City may have.
E.
The bond shall contain the an endorsement agreeing that
the bond may not be canceled by the surety until 30 days after receipt by
the City, by registered mail, of a written notice of such intention to cancel
or not renew.
F.
In the event the City receives a thirty-day notice from
a surety, it shall have the right to demand payment from the bond unless grantee
provides appropriate assurance that a replacement bond will be presented before
the expiration of the thirty-day period. Assurance shall be determined by
the City at its sole discretion. This subsection shall not apply if the City
and the grantee agree that a bond in no longer required or if the bond is,
by agreement between the City and grantee, in the process of being reduced.
G.
The City, at any time during the term of this chapter,
may waive the grantee's requirement to maintain the bond. The invitation to
waive the requirement can be initiated by the City or grantee.
A.
Within 30 days after the award of an initial or renewal
franchise, the grantee shall file with the City a performance bond in the
amount of not less than $50,000 in favor of the City. This bond shall be maintained
throughout the construction period and until such time as determined by the
City, unless otherwise specified in a franchise agreement.
B.
If the grantee fails to comply with any law, ordinance or resolution governing the franchise, or fails to observe, fulfill and perform each term and condition of the franchise, as it relates to the conditions relative to the construction of the system, including the franchise agreement which is incorporated herein by reference, there shall be recoverable jointly and severally, from the principal and surety of the bond, any damages or loss suffered by the City as a result, including the full amount of any compensation, indemnification, or cost of removal or abandonment of any property of the grantee, plus a reasonable allowance for attorney's fees, including the City's legal staff, and costs, up to the full amount of the bond. This subsection shall be an additional remedy for any and all violations outlined in § 166-13.
C.
The City may, upon completion of construction of the
service area, waive the requirement of the grantee to maintain the bond. However,
the City may require a performance bond to be posted by the grantee for any
construction subsequent to the completion of the initial service area, in
a reasonable amount and upon such terms as determined by the City.
D.
The bond shall contain an endorsement stating that this
bond may not be canceled by the surety nor the intention not to renew be stated
by the surety until 30 days after receipt by the City, by registered mail,
a written notice of such intent to cancel and not to renew. Upon receipt of
a thirty-day notice, and following a thirty-day period to cure, this shall
be construed as default granting the City the right to demand payment on the
bond.
E.
The City, at any time during the term of this chapter,
may waive grantee's requirement to maintain a construction bond. The invitation
to waive the requirement can be initiated by the City or grantee.
A.
The grantee shall maintain and by it acceptance of the
franchise specifically agrees that it will maintain throughout the term of
the franchise, liability insurance insuring the City and the grantee in the
minimum amount of:
B.
The certificate of insurance obtained by the grantee
in compliance with this section shall be filed and maintained with the City
during the term of the franchise. The grantee shall immediately advise the
City Attorney of any litigation that may develop that would affect this insurance.
C.
Neither the provisions of this section nor any damages
recovered by the City thereunder shall be construed to or limit the liability
of the grantee under any franchise issued hereunder or for damages.
A.
Disclaimer of liability. The City shall not at any time
be liable for injury or damage occurring to any Person or property from any
cause whatsoever arising out of the construction, maintenance, repair, use,
operation, condition or dismantling of the grantee's cable television system
or due to the act or omission of any person or entity other than the City
or those persons or legal entities for which the City is legally liable as
a matter of law.
B.
Indemnification. The grantee shall, at its sole cost
and expense, indemnify and hold harmless the City, their respective officers,
boards, commissions, and employees (hereinafter referred to as "indemnities")
from and against:
(1)
Any and all liabilities, obligations, damages, penalties,
claims, liens, costs, charges, losses and expenses (including, without limitation,
reasonable fees and expenses of attorneys, expert witnesses and consultants),
which may be imposed upon, incurred by or be asserted against the indemnities
by reason of any act or omission of the grantee, its personnel, employees,
agents, contractors or subcontractors, resulting in personal injury, bodily
injury, sickness, disease or death to any person or damage to, loss of or
destruction of tangible or intangible property, libel, slander, invasion of
privacy and unauthorized use of any trademark, trade name, copyright, patent,
service mark or any other right of any person, corporation and legal entity,
which may arise out of or be in any way connected with the construction, installation,
operation, maintenance or condition of the system caused by grantee, its subcontractors
or agents or the grantee's failure to comply with any federal, state or local
law.
(2)
Any and all liabilities, obligations, damages, penalties,
claims, liens, costs, charges, losses and expenses (including, without limitation,
reasonable fees and expenses of attorneys, expert witnesses and other consultants),
imposed upon indemnities by reason of any claim or lien arising out of work,
labor, materials or supplies provided or supplied to the grantee, its contractors
or subcontractors, for the installation, construction, operation or maintenance
of the system. Upon written request of the City such claim or lien shall be
discharged or bonded within 15 days following such request.
(3)
Any and all liabilities, obligations, damages, penalties,
claims, liens, costs, charges, losses and expenses (including, without limitation,
reasonable fees and expenses of attorneys, expert witnesses and consultants),
which may be imposed upon, incurred by or be asserted against the Indemnities
by reason of any financing or securities offering by grantee or its affiliates
for violations of the common law or any laws, statutes, or regulations of
the State of Wisconsin or United States, including those of the Federal Securities
and Exchange Commission, whether by the grantee or otherwise; excluding therefrom,
however, claims which are solely based upon and shall arise solely out of
information supplied by the City to the grantee in writing and included in
the offering materials with the express written approval of the City prior
to the offering.
C.
Assumption of risk. The grantee undertakes and assumes
for its officers, agents, contractors and subcontractors and employees, all
risk of dangerous conditions, if any, on or about any City-owned or -controlled
property, including the Public rights-of-way, and the grantee hereby agrees
to indemnify and hold harmless the indemnities against and from any claim
asserted or liability imposed upon the indemnities for personal injury or
property damage to any person arising out of the installation, operation,
maintenance or condition of the system or the grantee's failure to comply
with any federal, state or local statute, ordinance or regulation. The City
shall hold harmless for any damages resulting from the negligence or misconduct
of the Grantor or its officials, boards, departments, commissions or employees.
D.
Defense of indemnities. In the event any action or proceeding
shall be brought against any or all of the Indemnities by reason of any matter
for which the indemnities are indemnified hereunder, the grantee shall, upon
notice from any of the indemnities, at the grantee's sole cost and expense,
defend the same; provided further, however, that the grantee shall not admit
liability in any such matter on behalf of the indemnities without the written
consent of the City Attorney or his/her designee.
E.
Notice cooperation and expenses. The City shall give
the grantee prompt notice of the making of any claim or the commencement of
any action, suit or other proceeding covered by the provisions of this section.
Nothing herein shall be deemed to prevent the City from cooperating with grantee
and participating in the defense of any litigation by the City's own counsel
at the City's own expense. No recovery by the City of any sum under the security
shall be any limitation upon the liability of the grantee to the City under
the terms of this section, except that any sum so received by the City shall
be deducted from any recovery which the City might have against the grantee
under the terms of this section.
F.
Nonwaiver of statutory limits. Nothing in this agreement
is intended to express or imply a waiver of the statutory provisions, of any
kind or nature, as set forth in § 893.80 et seq., Wis. Stats., including
the limits of liability of the City.
A.
The grantee shall not deny service, deny access, or otherwise
discriminate against subscribers, channel users, or general citizens on the
basis of race, color, religion, national origin, income or sex. The grantee
shall comply at all times with all other applicable federal, state and local
laws and regulations and all executive and administrative orders relating
to nondiscrimination which are hereby incorporated and made part of this chapter
by reference.
B.
The grantee shall strictly adhere to the equal employment
opportunity requirements of the Federal Communications Commission, state and
local regulations, as amended from time to time.
C.
The grantee shall, at all times, comply with the privacy
requirements of state and federal law.
D.
Grantee is required to make all services available to
all residential dwellings throughout the service area located in areas having
a density of at least 40 dwelling units per street mile.
Minimum public notice of any public meeting relating to this chapter
shall be governed by the provisions of the State Open Meeting Law,[1] and shall be on at least one channel of the grantee's system between
the hours of 7:00 p.m. and 9:00 p.m., for five consecutive days prior to the
meeting.
[1]
Editor's Note: See §§ 19.81 to 19.98, Wis. Stats.
The grantee shall provide cable television service throughout the entire
franchise area pursuant to the provisions of this franchise and shall keep
a record for at least three years of all written requests for service received
by the grantee. This record shall be available for public inspection at the
local office of the grantee during regular office hours.
A.
New construction timetable.
(1)
Within two years from the date of the award of the initial
franchise, the grantee must make cable television service available to every
dwelling unit within the initial service area:
(a)
The grantee must make cable television service available
to at least 20% of the dwelling units within the initial service area within
six months from the date of the award of the franchise.
(b)
The grantee must make cable television service available
to at least 50% of the dwelling units within the initial service area within
one year from the date of the award of the franchise.
(2)
The grantee, in its application if any, may propose a
timetable of construction which will make cable television service available
in the initial service area sooner than the above minimum requirements, in
which case the said schedule will be made part of the franchise agreement,
and will be binding upon the grantee.
(4)
In special circumstances, the City can waive 100% completion
within the two-year time frame provided substantial completion is accomplished
within the allotted time frame, substantial completion construed to be not
less than 95% and justification for less than 100% must be submitted subject
to the satisfaction of the City.
B.
Line extensions.
(1)
Extensions. In areas of the franchise territory not included
in the initial service areas, the grantee shall be required to extend its
system pursuant to the following requirements:
(a)
No customer shall be refused service arbitrarily. The
grantee is hereby authorized to extend the cable system as necessary within
the City. To expedite the process of extending the cable system into a new
subdivision, the City will forward to the grantee an approved engineering
plan of each project. Subject to the density requirements, the grantee shall
commence the design and construction process upon receipt of the final engineering
plan. Upon notification from the City that the first home in the project has
been approved for building permit, the grantee shall have a maximum of three
months to complete the construction/activation process within the project
phase.
(b)
The grantee must extend and make cable television service
available to every dwelling unit in all unserved, developing areas having
at least 40 dwelling units planned per street mile, as measured from the existing
system, and shall extend its system simultaneously with the installation of
utility lines.
(c)
The grantee must extend and make cable television service
available to any isolated resident outside the initial service area requesting
connection at the standard connection charge, if the connection to the isolated
resident would require no more than a standard one-hundred-fifty-foot drop
line.
(2)
Early extension. In areas not meeting the requirements
for mandatory extension of service, the grantee shall provide, upon the request
of a potential subscriber desiring service, an estimate of the costs required
to extend service to the subscriber. The grantee shall then extend service
to the potential subscriber. The grantee may require advance payment or assurance
of payment satisfactory to the grantee. In the event the area subsequently
reaches the density required for mandatory extension within two years, such
payments shall be refunded to the subscriber upon request.
(3)
New developments. In cases of new construction or property
development where utilities are to be placed underground, the developer or
property owner shall give the grantee reasonable notice of such construction
or development, and of the particular date on which open trenching will be
available for the grantee's installation of conduit, pedestals and/or vaults,
and laterals to be provided at the grantee's expense. The grantee shall also
provide specifications as needed for trenching. Costs of trenching and easements
required to bring service to the development shall be borne by the developer
or property owner; except that if the grantee fails to install its conduit,
pedestals and/or vaults, and laterals within five working days of the date
the trenches are available, as designated in the notice given by the developer
or property owner, then should the trenches be closed after the five-day period,
the cost of new trenching is to be borne by the grantee. Except for the notice
of the particular date on which trenching will be available to the grantee,
any notice provided to the grantee by the City of a preliminary plat request
shall satisfy the requirement of reasonable notice if sent to the local general
manager or system engineer of the grantee prior to approval of the preliminary
plat request.
C.
Special agreements.
(1)
Nothing herein shall be construed to prevent the grantee from serving areas not covered under this section upon agreement with developers, property owners, or residents provided that 5% of those gross revenues are paid to the City as franchise fees under § 166-28.
(2)
The grantee may propose a line extension policy which
will result in serving more residents of the City than as required above,
in which case the grantee's policy will be incorporated into the franchise
agreement, and will be binding on the grantee.
A.
Compliance with construction and technical standards.
The grantee shall construct, install, operate and maintain its system in a
manner consistent with all laws, ordinances, construction standards, governmental
requirements, and FCC technical standards. In addition, the grantee shall
provide the City, upon request, with a written report of the results of the
grantee's annual proof of performance tests conducted pursuant to Federal
Communications Commission standards and requirements.
B.
Additional specifications.
(1)
Construction, installation and maintenance of the cable
television system shall be performed in an orderly and workmanlike manner.
All cables and wires shall be installed, where possible, parallel with electric
and telephone lines. Multiple cable configurations shall be arranged in parallel
and bundled with due respect for engineering considerations.
(3)
In any event, the system shall not endanger or interfere
with the safety of persons or property in the franchise area or other areas
where the grantee may have equipment located.
(4)
Any antenna structure used in the system shall comply
with construction, marking, and lighting of antenna structure, required by
the United States Department of Transportation.
(5)
All working facilities and conditions used during construction,
installation and maintenance of the cable television system shall comply with
the standards of the Occupational Safety and Health Administration (OSHA).
(6)
Radio frequency (RF) leakage shall be checked at reception
locations for emergency radio services to prove no interference signal combinations
are possible. Stray radiation shall be measured adjacent to any proposed aeronautical
navigation radio sites to prove no interference to airborne navigational reception
in the normal flight patterns. FCC rules and regulations shall govern.
(7)
The grantee shall maintain equipment capable of providing
standby power for headend and transport system for a minimum of two hours.
(8)
In all areas of the City where the cables, wires, and
other like facilities of public utilities are placed underground, the grantee
shall place its cables, wires, or other like facilities underground. When
public utilities relocate their facilities from pole to underground, the grantee
must concurrently do so.
A.
Interference with persons and improvements. The grantee's
system, poles, wires and appurtenances shall be located, erected and maintained
so that none of its facilities shall endanger or interfere with the lives
of persons or interfere with the rights or reasonable health, safety and welfare
of property owners who adjoin any of the streets and public ways, or interfere
with any improvements the City may deem proper to make, or unnecessarily hinder
or obstruct the free use of the streets, alleys, bridges, easements, or public
property.
B.
Restoration to prior condition. In case of any disturbance
of pavement, sidewalk, landscaping, driveway or other surfacing by the grantee,
the grantee shall, at its own cost and expense and in a manner approved by
the City, replace and restore all paving, sidewalk, driveway, landscaping,
or surface of any street or alley disturbed, in as good condition as before
the work was commenced and in accordance with standards for such work set
by the City. After 30 days, if restoration measures are not performed to the
reasonable satisfaction of the City, the City may undertake remedial restoration
activities, such activities to be performed at the grantee's cost.
C.
Erection, removal and common uses of poles.
(1)
No poles or other wire-holding structures shall be erected
by the grantee without prior approval of the City with regard to location,
height, types, and any other pertinent aspect. However, no location of any
pole or wire-holding structure of the grantee shall be a vested interest and
such poles and structures shall be removed or modified by the grantee at its
own expense whenever the City determines that the public convenience would
be enhanced thereby.
(2)
Where poles or other wire-holding structures already
existing for use in serving the City are available for use by the grantee,
but it does not make arrangements for such use, the City may require the grantee
to use such poles and structures if it determines that the public convenience
would be enhanced thereby and the terms of the use available to the grantee
are just and reasonable.
(3)
Where poles or other wire-holding structures already
existing for use in serving the City are available for use by the grantee,
but it does not make arrangements for such use, the City may require the grantee
to permit such use for reasonable consideration and terms.
D.
Relocation of the facilities. If at any time during the
period of this franchise the City shall lawfully elect to alter or change
the grade of any street, alley or other public ways, the grantee, upon reasonable
notice by the City, shall remove or relocate as necessary its poles, wires,
cables, underground conduits, manholes and other fixtures at its own expense.
E.
Cooperation with building movers. The grantee shall,
on the request of any person holding a building-moving permit issued by the
City, temporarily raise or lower its wires to permit the moving of buildings.
The expense of such temporary removal, raising or lowering of wires shall
be paid by the person requesting the same, and the grantee shall have the
authority to require such payment in advance. The grantee shall be given at
least 10 days advance notice to arrange for such temporary wire changes.
F.
Tree trimming. The grantee shall not remove any tree
or trim any portion of any tree within any public street as defined herein
without the prior consent of the City, except in an emergency situation. The
grantee shall provide notice to any affected residents at the same time that
the grantee applies to the City for consent to perform tree trimming. The
City shall have the right to do the trimming requested by the grantee at the
cost of the grantee. Regardless of who performs the work requested by the
grantee, the grantee shall be responsible, shall defend and hold the City
harmless for any and all damages to any tree as a result of trimming, or to
the land surrounding any tree, whether such tree is trimmed or removed.
G.
Road cuts. The grantee shall not use road cuts for the
laying of cable or wires without the prior approval of the City. In the absence
of such approval, the grantee shall utilize auguring.
A.
The grantee shall maintain all parts of the system in
good condition throughout the entire franchise period.
B.
Upon the reasonable request for service by any person
located within the initial service area, the grantee shall, within 30 days
furnish the requested service to such person within the terms of the extension
policy. A request for service shall be unreasonable for the purpose of this
subsection if no distribution line installation capable of servicing that
person's block has as yet been installed.
C.
Temporary service drops shall comply with the following:
(1)
The grantee shall put forth every effort to bury temporary
drops within 25 days after placement. Any delays for any other reason than
listed will be communicated to the City. The following delays will be found
understandable and within the course of doing business: weather, ground conditions,
street bores, system redesign requirements and any other unusual obstacle,
such as obstructive landscaping that is created by the customer.
(2)
The grantee shall provide reports to the City, upon request,
on the number of drops pending.
D.
The grantee shall render efficient service, make repairs
promptly, and interrupt service only for good cause and for the shortest time
possible. Such interruptions, insofar as possible, shall be preceded by notice
and shall occur during periods of minimum system use.
A.
Nothing in this chapter shall be construed to prohibit
the enforcement of any federal, state or local law or regulation concerning
customer service or consumer protection that imposes customer service standards
or consumer protection requirements that exceed the customer service standards
set out in this chapter or that address matters not addressed in this chapter.
B.
The grantee shall maintain a local or toll-free telephone
access line which is available to its subscribers and shall have knowledgeable,
qualified representatives available to respond to customer telephone inquiries
regarding repairs 24 hours per day, seven days per week.
C.
Under normal operating conditions, telephone answer time,
including wait time and the time required to transfer the call, shall not
exceed 30 seconds. This standard shall be met no less than 90% of the time
as measured on an annual basis.
D.
Under normal operating conditions, the customer will
receive a busy signal less than 3% of the total time that the office is open
for business.
E.
A centrally located customer service center will be open
for walk-in customer transactions a minimum of eight hours per day Monday
through Friday, unless there is a need to modify those hours because of the
location or customers served. The grantee and City by mutual consent shall
establish supplemental hours on weekdays and weekends as fits the needs of
the community.
F.
Under normal operating conditions, each of the following
standards will be met no less than 95% of the time as measured on an annual
basis:
(1)
Standard installations will be performed within seven
business days after an order has been placed. A standard installation is one
that is within 150 feet of the existing system.
(2)
Excluding those situations that are beyond its control,
the grantee will respond to any service interruption promptly and in no event
later than 24 hours from the time of initial notification. All other regular
service requests will be responded to within 36 hours during the normal work
week for that system. The appointment window alternatives for installations,
service calls and other installation activities will be: "morning" or "afternoon";
not to exceed a four-hour "window" during normal business hours for the system,
or at a time that is mutually acceptable. The grantee shall schedule supplemental
hours during which appointments can be scheduled based on the needs of the
community. If at any time an installer or technician is running late, an attempt
to contact the customer will be made and the appointment rescheduled as necessary
at a time that is convenient to the customer.
G.
Upon service interruption and/or outages of subscriber's
cable service, the following shall apply:
(1)
For service interruptions of over four hours and up to
seven days, the grantee shall provide, at the subscriber's written request,
a credit of 1/30 of one month's fees for affected services for each twenty-four-hour
period service is interrupted for four or more hours for any single subscriber,
with the exception of subscribers disconnected because of nonpayment or excessive
signal leakage.
(2)
For service interruptions of seven days or more in one
month, the grantee shall provide, at the subscriber's written request, a full
month's credit for affected services for all affected subscribers.
H.
The grantee will provide written information in each
of the following areas at the time of installation and at any future time
upon the request of a subscriber:
I.
Bills will be clear, concise and understandable, with
all cable services itemized.
J.
Credits will be issued promptly, but no later than the
customer's next billing cycle following the resolution of the request and
the return of the equipment by the grantee if service has been terminated.
K.
The grantee shall notify customers a minimum of 30 days
in advance of any rate or channel change.
L.
The grantee shall maintain and operate its network in
accordance with the rules and regulations as are incorporated herein or may
be promulgated by the Federal Communications Commission, the United States
Congress, or the State of Wisconsin.
M.
The grantee shall continue, through the term of the franchise, to maintain the technical standards and quality of service set forth in this chapter. Should the City find, by resolution, that the grantee has failed to maintain these technical standards and quality of service, grantee shall be required to implement a plan for resolution. Failure to make such improvements within three months of such resolution will constitute a breach of a condition for which penalties contained in § 166-46 are applicable.
N.
The grantee shall keep a monthly service log which will
indicate the nature of each service complaint received in the last 24 months,
the date and time it was received, the disposition of said complaint, and
the time and date thereof. This log shall be made available for periodic inspection
by the City.
A.
It shall be the right of all subscribers to continue
receiving service insofar as their financial and other obligations to the
grantee are honored. If the grantee elects to overbuild, rebuild, modify or
sell the system, or the City gives notice of intent to terminate or fails
to renew this franchise, the grantee shall act so as to ensure that all subscribers
receive continuous, uninterrupted service regardless of the circumstances.
B.
If there is a change of franchise, or if a new operator
acquires the system, the grantee shall cooperate with the City, new franchisee
or operator in maintaining continuity of service to all subscribers.
C.
If the grantee fails to operate the system for seven
consecutive days without prior approval of the City or without just cause,
the City may, at its option, operate the system or designate an operator until
such time as the grantee restores service under conditions acceptable to the
City or a permanent operator is selected. If the City is required to fulfill
this obligation for the grantee, the grantee shall reimburse the City for
all reasonable costs and damages in excess of revenues from the system received
by the City that are the result of the grantee's failure to perform.
A.
The Common Council or its designee has primary responsibility
for the continuing administration of the franchise and implementation of complaint
procedures.
B.
During the terms of the franchise, and any renewal thereof,
the grantee shall maintain a central office for the purpose of receiving and
resolving all complaints regarding the quality of service, equipment malfunctions,
and similar matters. The office must be reachable by a local and/or toll-free
telephone call to receive complaints regarding quality of service, equipmental
functions and similar matters. The grantee will use its good faith efforts
to arrange for one or more payment locations in a central location where subscribers
can pay bills or conduct other business activities.
C.
As subscribers are connected or reconnected to the system,
the grantee shall, by appropriate means, such as a card or brochure, furnish
information concerning the procedures for making inquiries or complaints,
including the name, address and local telephone number of the employee or
employees or agent to whom such inquiries or complaints are to be addressed.
D.
When there have been similar complaints made, or where
there exists other evidence, which, in the judgment of the City, casts doubt
on the reliability or quality of cable service, the City shall have the right
and authority to require the grantee to test, analyze and report on the performance
of the system. The grantee shall fully cooperate with the City in performing
such testing and shall prepare results and a report, if requested, within
30 days after notice. Such report shall include the following information:
(1)
The nature of the complaint or problem which precipitated
the special tests;
(2)
What system component(s) was tested;
(3)
The equipment used and procedures employed in testing;
(4)
The method, if any, in which such complaint or problem
was resolved;
(5)
Any other information pertinent to the tests and analysis
which may be required.
E.
The City may require that tests be supervised, at the
grantee's expense unless results are found to be in compliance, by an independent
professional engineer or equivalent of the City's choice. The engineer should
sign all records of special tests and forward to the City such records with
a report interpreting the results of the tests and recommending actions to
be taken.
F.
The City's right under this section shall be limited
to requiring tests, analysis and reports covering specific subjects and characteristics
based on complaints or other evidence when and under such circumstances as
the City has reasonable grounds to believe that the complaints or other evidence
require that tests be performed to protect the public against substandard
cable service.
The grantee shall have the authority to promulgate such rules, regulations,
terms and conditions governing the conduct of its business as shall be reasonably
necessary to enable the grantee to exercise its rights and perform its obligations
under this franchise, and to assure an uninterrupted service to each and all
of its customers; provided, however, that such rules, regulations, terms and
conditions shall not be in conflict with the provisions hereof or applicable
state and federal laws, rules and regulations.
A.
A grantee shall pay to the City a franchise fee in the
amount designated in the franchise agreement. Unless otherwise specified in
the franchise agreement, such franchise fee shall be 5% of the grantee's gross
revenues.
B.
The franchise fee payment shall be in addition to any
other tax or payment 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.
C.
The franchise fee and any other costs or penalties assessed
shall be payable quarterly on a calendar year basis to the City within 45
days after the end of each calendar quarter. The grantee shall file a complete
and accurate verified statement of gross revenues as previously defined within
45 days of the end of each quarter.
D.
The City shall have the right to inspect the grantee's
income records and to audit and to recompute any amounts determined to be
payable under this chapter; provided, however, that any such audit shall take
place within 60 months following the close of a particular calendar year.
Any additional amount due to the City as a result of the audit shall be paid
within 30 days following written notice to the grantee by the City which notice
shall include a copy of the audit report.
E.
If any franchise fee payment or recompute amount, cost
or penalty is not made on or before the applicable dates heretofore specified,
interest shall be charged from such date at an annual rate of 12%. The grantee
shall reimburse the City for any additional expenses and costs incurred by
the City by reason of the delinquent payment(s), including, but not limited
to, attorney's fees, consultant fees and audit fees.
A.
A franchise shall not be assigned or transferred, either
in whole or in part, or leased or sublet in any manner, nor shall title thereto,
either legal or equitable or any right, interest or property therein, pass
to or vest in any person without the prior written consent of the City. The
grantee may, however, transfer or assign the franchise to a wholly-owned subsidiary
of the grantee and such subsidiary may transfer or assign the franchise back
to the grantee without such consent, providing that such assignment is without
any release of liability of the grantee. Any proposed assignee must show legal,
technical and financial responsibility as determined by the City and must
agree to comply with all provisions of the franchise. The City shall have
120 days to act upon any request for approval of such sale or transfer submitted
in writing that contains or is accompanied by such information as is required
in accordance with FCC regulations and by the City. The City shall be deemed
to have consented to a proposed transfer or assignment if its refusal to consent
is not communicated in writing to the grantee within 120 days following receipt
of written notice and the necessary information as to the effect of the proposed
transfer or assignment upon the public unless the requesting party and the
City agree to an extension of time. The City shall not unreasonably withhold
such consent to the proposed transfer.
B.
The grantee shall promptly notify the City of any actual
or proposed change in, or transfer of, or acquisition by any other party of,
Control of the grantee. The word "control" as used herein is not limited to
major stockholders but includes actual working control in whatever manner
exercised. A rebuttable presumption that a transfer of control has occurred
shall arise upon the acquisition or accumulation by any person or group of
persons of 40% of the voting shares of the grantee. Every change, transfer
or acquisition of control of the grantee shall make the franchise subject
to cancellation unless and until the City shall have consented thereto, which
consent will not be unreasonably withheld. For the purpose of determining
whether it shall consent to such change, transfer or acquisition of control,
the City may inquire into the qualification of the prospective controlling
party, and the grantee shall assist the City in such inquiry.
C.
The consent or approval of the City to any transfer of
the grantee shall not constitute a waiver or release of the rights of the
City in and to the streets, and any transfer shall, by its terms, be expressly
subordinate to the terms and conditions of this franchise.
D.
In the absence of extraordinary circumstances, the City
will not approve any transfer or assignment of an initial franchise prior
to substantial completion of construction of the proposed system.
E.
In no event shall a transfer of ownership or control
or an assignment of the franchise be approved without the successor in interest
or the assignee becoming a signatory to the franchise agreement.
A.
The grantee shall fully cooperate in making available
at reasonable times, and the City shall have the right to inspect at the grantee's
office, upon reasonable notice and where reasonably necessary to the enforcement
of the franchise, books, records, maps, plans, and other like materials of
the grantee applicable to the cable television system, at any time during
normal business hours.
B.
Unless prohibited by law, rule or regulation, the following
records and/or reports are to be made available to the City upon request,
but no more frequently than once on an annual basis unless mutually agreed
upon by the grantee and the City:
(1)
A yearly review and resolution or progress report submitted
by the grantee to the City;
(2)
Periodic preventive maintenance reports;
(3)
Any copies of FCC Form 395-A (or successor form) or any
supplemental forms related to equal opportunity or fair contracting policies;
(4)
Subscriber inquiry/complaint resolution data and the
right to review documentation concerning these inquiries and/or complaints
periodically;
(5)
Periodic construction update reports, including where
appropriate the submission of as-built maps.
Copies of all petitions, applications, communications and reports either
submitted by the grantee to the Federal Communications Commission, Securities
and Exchange Commission, or any other federal or state regulatory commission
or agency having jurisdiction in respect to any matters affecting the system
authorized pursuant to the franchise or received from such agencies shall
be provided to the City upon request.
The grantee shall file annually with the City no later than 120 days
after the end of the grantee's fiscal year, a copy of a gross revenues statement
certified by an officer of the grantee.
At the expiration of the terms for which a franchise is granted and
any renewal denied, or upon its termination as provided herein, the grantee
shall forthwith, upon notice by the City, remove at its own expense all designated
portions of the cable television system from all streets and public property
within the City within six months. If the grantee fails to do so within six
months, the City may perform the work at the grantee's expense. Upon such
notice of removal, a bond shall be furnished by the grantee in an amount sufficient
to cover this expense.
A.
Channel capacity. The cable television system shall have
a minimum channel capacity of 77.
B.
Two-way capability. Such system shall maintain a plant
having the technical capacity for "two-way" communications.
C.
Public access channels. The grantee shall maintain the
following:
(1)
At least one specially designated channel for use by
local educational authorities;
(2)
At least one specially designated channel for local governmental
uses;
(3)
Provided, however, these uses may be combined on one
or more channels until such time as additional channels become necessary in
the opinion of the City. Financial and technical support, replacement and
maintenance of equipment of this facility shall be separately incorporated
into a franchise agreement; and
(4)
If required by the franchise agreement, an institutional
network (I-Net) of cable, optical, electrical or electronic equipment, used
for the purpose of transmitting two-way telecommunications signals interconnecting
designated entities as set forth in the franchise agreement and mutually agreed
to by the grantee and the grantor. Such institutional network may be provided
as needed by utilizing capacity on the system.
D.
Emergency use. The grantee shall incorporate into the
system the capacity which will permit the City, in times of local emergency,
to override by remote control, the audio of all channels simultaneously which
the grantee may lawfully override or to place a crawl on all such channels.
The grantee shall provide emergency broadcast capacity pursuant to FCC rules.
The grantee shall cooperate with the City in the use and operation of the
emergency alert override system.
A.
In addition to the inherent powers of the City to regulate
and control a cable television franchise, and those powers expressly reserved
by the City, or agreed to and provided for herein, the right and power is
hereby reserved by the City to promulgate such additional regulations as it
shall find necessary in the exercise of its lawful powers and furtherance
of the terms and conditions of this chapter; provided, however, that such
rules, regulations, terms and conditions shall not be in conflict with the
provisions hereof or applicable state and federal laws, rules and regulations,
and do not appreciably increase the burdens or appreciably impair the rights
of the grantee under the franchise agreement.
B.
The City may also adopt such regulations at the request
of the grantee upon application.
A.
The City and the grantee may hold scheduled performance
evaluation sessions within 30 days of the third and sixth anniversary dates
of the grantee's award or renewal of the franchise and as may be required
by federal and state law. All such evaluation sessions shall be open to the
public.
B.
Special evaluation sessions may be held at any time during
the term of the franchise at the request of the City or the grantee.
C.
All evaluation sessions shall be open to the public and
announced in a newspaper of general circulation in accordance with their legal
notice. The grantee shall notify its subscribers of all evaluation sessions
by announcements on at least one channel of its system between the hours of
7:00 p.m. and 9:00 p.m., for five consecutive days preceding each session.
D.
Topics which may be discussed at any scheduled or special
evaluation session may include, but not be limited to, service rate structures;
franchise fees, penalties, free or discounted services; application of new
technologies; system performance; services provided; programming offered;
customer complaints, privacy; amendments to this chapter; judicial and FCC
rulings; line extension policies; and grantee or City rules. The City acknowledges
that, pursuant to federal law, it does not have jurisdiction nor enforcement
rights over all the standards and services mentioned above, including programming
and the application of all new technologies under a cable television franchise.
Nothing in this subsection shall be construed as requiring the renegotiation
of the cable franchise agreement.
E.
Members of the general public may add topics either by
working through the City or grantee or by presenting a petition. If such a
petition bears the valid signatures of 50 or more residents of the City, the
proposed topic or topics shall be added to the list of topics to be discussed
at the evaluation session.
Pursuant to the Cable Television Consumer Protection and Competition
Act of 1992, the City is currently certified to regulate the basic service
rates charged by grantee. Under these rules, grantee is required to obtain
approval from the City for a rate increase for any change to the rates for
basic service. Should federal and state law permit further rate regulation
beyond the basic service, the City shall assume such rate regulation and adopt
appropriate procedures for such regulation.
A.
Pursuant to § 166-47, in addition to all other rights and powers retained by the City under this chapter or otherwise, the City reserves the right to forfeit and terminate the franchise and all rights and privileges of the grantee thereunder in the event of a substantial breach of its terms and conditions. A substantial breach by the grantee shall include, but not be limited to, the following:
(1)
Violation of any material provision of this chapter or
the franchise or any material rule, order, regulation or determination of
the City made pursuant to the franchise;
(2)
Attempt to evade any material provision of this chapter
or the franchise or practice any fraud or deceit upon the City or its subscribers;
(3)
Failure to begin or complete system construction or system extension as provided under § 166-20;
(4)
Failure to provide the services promised in the grantee's application, if any, as incorporated herein by § 166-4;
(5)
Failure to restore service after 168 consecutive hours
of interrupted service, except when approval of such interruption is obtained
from the City; or
(6)
Material misrepresentation of fact in the application
for or negotiation of the franchise.
B.
The foregoing shall not constitute a substantial breach
if the violation occurs but is without fault of the grantee or occurs as a
result of circumstances beyond its control. The grantee shall not be excused
by mere economic hardship nor by misfeasance or malfeasance of its directors,
officers or employees.
C.
The City may make a written demand that the grantee comply
with any such provision, rule, order or determination under or pursuant to
the franchise. If the violation by the grantee continues for a period of 30
days following such written demand without written proof that the corrective
action has been taken or is being actively and expeditiously pursued, the
City may place the issue of termination of the franchise before the Common
Council. The City shall cause to be served upon the grantee, at least 20 days
prior to the date of such meeting, a written notice of intent to request such
termination and the time and place of the meeting. Public notice shall be
given of the meeting and the issue(s) which the Council is to consider.
D.
The Common Council shall hear and consider the issue(s)
and shall hear any person interested therein and shall determine in its discretion
whether or not any violation by the grantee has occurred.
E.
If the Common Council shall determine the violation by
the grantee was the fault of the grantee and within its control, the Council
may, by resolution, declare that the franchise of the grantee shall be forfeited
and terminated unless there is compliance within such period as the Council
may fix, such period shall not be less than 30 days, provided no opportunity
for compliance need be granted for fraud or misrepresentation.
F.
The issue of forfeiture and termination shall automatically
be placed upon the Council agenda at the expiration of the time set by it
for compliance. The Council then may terminate the franchise forthwith upon
finding that the grantee has failed to achieve compliance or may further extend
the period, in its discretion.
Upon the foreclosure or other judicial sale of all or a substantial
part of the system, or upon the termination of any lease covering all or a
substantial part of the system, the grantee shall notify the City of such
fact, and such notification shall be treated as a notification that a change
in control of the grantee has taken place, and the provisions of this chapter
governing the consent of the City to such change in control of the grantee
shall apply.
Federal regulations as per 47 U.S.C. § 537 shall apply to
approval of transfer issues and the right of acquisition by the City.
The City shall have the right to cancel the franchise 120 days after
the appointment of a receiver or trustee, to take over and conduct the business
of the grantee, unless such receivership or trusteeship shall have been vacated
prior to the expiration of 120 days, or unless:
A.
Within 120 days after his/her election or appointment,
such receiver or trustee shall have fully complied with all the provisions
of this chapter and remedied all defaults thereunder; and
B.
Such receiver or trustee, within 120 days, shall have
executed an agreement, duly approved by the court having jurisdiction in the
premises, whereby such receiver or trustee assumes and agrees to be bound
by each and every provision of this chapter and the franchise granted to the
grantee.
A.
Notwithstanding any other provisions of this chapter
to the contrary, the grantee shall at all times comply with all laws and regulations
of the state and federal government or any administrative agencies thereof;
provided, however, if any such state or federal law or regulation shall require
the grantee to perform any service, or shall permit the grantee to perform
any service, or shall prohibit the grantee from performing any service, in
conflict with the terms of this franchise or of any law or regulation of the
City, then as soon as possible following knowledge thereof, the grantee shall
notify the City of the point of conflict believed to exist between such regulation
or law and the laws or regulations of the City or this franchise.
B.
If the City determines that a material provision of this
chapter is affected by any subsequent action of the state or federal government,
the City and the grantee shall negotiate to modify any of the provisions herein
to such reasonable extent as may be necessary to carry out the full intent
and purpose of this agreement.
C.
If any section, sentence, paragraph, term, or provision
hereof is determined to be illegal, invalid or unconstitutional by any court
of competent jurisdiction thereof, such determination shall have no effect
on the validity of any other section, sentence, paragraph, term or provision
hereof, all of which will remain in full force and effect for the term of
the franchise, or any renewal or renewals thereof.
A.
Interference with cable service prohibited. Neither the
owner of any multiple-unit residential dwelling nor his/her agent or representative
shall interfere with the right of any tenant or lawful resident thereof to
receive cable communication service, cable installation or maintenance from
a grantee regulated by and lawfully operating under a valid and existing franchise
issued by the City.
B.
Penalties and charges to tenants for service prohibited.
Neither the owner of any multiple-unit residential dwelling nor his/her agent
or representative shall penalize, charge or surcharge a tenant or resident
or forfeit or threaten to forfeit any right of such tenant or resident, or
discriminate in any way against such tenant or resident who requests or receives
cable communication service from a grantee operating under a valid and existing
franchise issued by the City.
C.
Reselling service prohibited. No person shall resell,
without the expressed, written consent of both the grantee and the City, any
cable service, program or signal transmitted by a grantee under a franchise
issued by the City.
D.
Protection of property prohibited. Nothing in this chapter
shall prohibit a person from requiring that cable communication system facilities
conform to laws and regulations and reasonable conditions necessary to protect
safety, functioning, appearance and value of premises or the convenience and
safety of persons or property.
A.
All bids received by the City from the applicants for
an initial franchise will become the sole property of the City.
B.
The City reserves the right to reject any and all bids
and waive informalities and/or technicalities where the best interest of the
City may be served.
C.
All questions regarding the meaning or intent of this
chapter or application documents shall be submitted to the City in writing.
Replies will be issued by addenda mailed or delivered to all parties recorded
by the City as having received the application documents. The City reserves
the right to make extensions of time for receiving bids as it deems necessary.
Questions received less than 14 days prior to the date for the opening of
bids will not be answered. Only replies to questions by written addenda will
be binding. All bids must contain an acknowledgment of receipt of all addenda.
D.
Bids must be sealed, and submitted at the time and place
indicated in the application documents for the public opening. Bids may be
modified at any time prior to the opening of bids, provided that any modifications
must be duly executed in the manner that the applicant's bid must be executed.
No bid shall be opened or inspected before the public opening.
E.
Before submitting a bid, each applicant must:
(1)
Examine this chapter and the application documents thoroughly;
(2)
Familiarize himself/herself with local conditions that
may in any manner affect performance under the franchise;
(3)
Familiarize himself/herself with federal, state and local
laws, ordinances, rules and regulations affecting performance under the franchise;
and
(4)
Carefully correlate the bid with the requirements of
this chapter and the application documents.
F.
The City may make such investigations as it deems necessary
to determine the ability of the applicant to perform under the franchise,
and the applicant shall furnish to the City all such information and data
for this purpose as the City may request. The City reserves the right to reject
any bid if the evidence submitted by, or investigation of, such applicant
fails to satisfy the City that such applicant is properly qualified to carry
out the obligations of the franchise and to complete the work contemplated
therein. Conditional bids will not be accepted.
G.
All bids received shall be placed in a secure depository
approved by the City and not opened nor inspected prior to the public opening.
A.
No initial franchise will be granted to any applicant
unless all requirements and demands of the City regarding financial, contractual,
shareholder and system disclosure have been met.
B.
Applicants, including all shareholders and parties with
any interest in the applicant, shall fully disclose all agreements and undertakings,
whether written or oral, or implied with any person, firm, group, association
or corporation with respect to a franchise and the proposed cable television
system. The grantee shall disclose all other contracts to the City as the
contracts are made. This section shall include, but not be limited to, any
agreements between local applicants and national companies.
C.
Applicants, including all shareholders and parties with
any interest in the applicant, shall submit all requested information as provided
by the terms of this chapter or the application documents, which are incorporated
herein by reference. The requested information must be complete and verified
as true by the applicant.
D.
Applicants, including all shareholders and parties with
any interest in the applicant, shall disclose the numbers of shares of stock,
and shall include the amount of consideration for each share of stock and
the nature of the consideration.
E.
Applicants, including all shareholders and parties with
any interest in the applicant, shall disclose any information required by
the application documents regarding other cable systems in which they hold
an interest of any nature, including, but not limited to, the following:
(1)
Locations of all other franchises and the dates of award
for each location;
(2)
Estimated construction costs and estimated completion
dates for each system;
(3)
Estimated number of miles of construction and number
of miles completed in each system as of the date of this application; and
(4)
Date for completion of construction as promised in the
application for each system.
F.
Applicants, including all shareholders and parties with
any interest in the applicant, shall disclose any information required by
the application documents regarding pending applications for other cable systems,
including, but not limited to, the following:
For the violation of any of the following provisions of this franchise, damages shall be chargeable to the security as specified in § 166-13, and the City may determine the amount of the fine for other violations which are not specified in a sum not to exceed $250 for each violation, with each day constituting a separate violation:
A.
Failure to furnish, maintain, or offer all cable services to any potential subscriber within the City pursuant to § 166-20 upon order of the City: $250 per day, per violation, for each day that such failure occurs or continues up to a maximum of $1,000;
B.
Failure to obtain or file evidence of required insurance,
construction bond, or performance bond, or other required financial security:
$250 per day, per violation, for each day such failure occurs or continues
up to a maximum of $1,000;
D.
Failure to comply with applicable construction, operation,
or maintenance standards: $250 per day, per violation up to a maximum of $1,000;
E.
Failure to comply with a rate decision or refund order:
$500 per day, per violation, for each day such a violation occurs or continues
up to a maximum of $1,000.
G.
Any other violations of the franchise agreement to be
determined by the City in a public hearing but not specifically noted in this
section shall not exceed $250 per day, per violation, up to a maximum of $1,000.
A.
Whenever the City believes that the grantee has violated
one or more terms, conditions, or provisions of this chapter or the franchise,
and wishes to impose penalties, a written notice shall be given to the grantee
informing it of such alleged violation or liability. The written notice shall
describe in reasonable detail the specific violation so as to afford the grantee
an opportunity to remedy the violation. The grantee shall have 30 days subsequent
to receipt of the notice in which to correct the violation before the City
may impose penalties unless the violation is of such nature so as to require
more than 30 days and the grantee proceeds diligently within the 30 days to
correct the violation, or as promptly as possible thereafter to correct the
violation. In any case where the violation is not cured within 30 days of
notice from the City, or such other time as the grantee and the City may mutually
agree to, the City may proceed to impose liquidated damages.
B.
The grantee may, within 10 days of receipt of notice,
notify the City that there is a dispute as to whether a violation or failure
has, in fact, occurred. Such notice by the grantee to the City shall specify
with particularity the matters disputed by the grantee and shall stay the
running of the thirty-day-cure period pending the City's decision as required
below. The City shall hear the grantee's dispute. Grantee must be given at
least five days' written notice of the hearing. At the hearing, the grantee
shall be entitled to the right to present evidence and the right to be represented
by counsel. After the hearing, the City shall provide grantee a copy of its
action, along with supporting documents. In the event the City upholds the
finding of a violation, the grantee shall have 15 days subsequent, or such
other time period as the grantee and the City mutually agree upon, to such
determination to correct the alleged violation before penalties may be imposed.
C.
The rights reserved to the City under this section are
in addition to all other rights of the City whether reserved by this franchise
or authorized by law or equity, and no action, proceeding or exercise of a
right with respect to penalties shall affect any other right the City may
have.
D.
The City shall stay or waive the imposition of any penalty
set forth above upon a finding that any failure or delay is a result of acts
of nature or due to circumstances beyond the reasonable control of the grantee.
The grantee shall not be in default under, or in noncompliance with,
the provisions of the franchise, nor suffer any enforcement or penalty relating
to noncompliance or default including termination, cancellation or revocation
of the franchise, where such noncompliance or alleged defaults occurred or
were caused by strike, riot, war, earthquake, flood, tidal wave, severe weather
conditions or other catastrophic act of nature, labor disputes, inability
to obtain necessary contract labor or materials, governmental, administrative
or judicial order or regulation or other event that is reasonably beyond the
grantee's ability to anticipate and control and that makes performance impossible.
