[HISTORY: Adopted by the Village Board of
the Village of Wales 4-17-1989 as Ch. 22 of the 1989 Code. Amendments noted where applicable.]
It is the purpose of this chapter to provide
for the granting of a franchise to construct a cable communications
system and maintain obligations and rights of the Village and grantee
accompanying such grant.
This chapter shall be known and may be cited
as the "Village of Wales Cable Franchise Ordinance."
For the purpose of this chapter, the following
terms, phrases, words and their derivations shall have the meaning
given herein. When not inconsistent with the context, words used in
the present tense include the future, words in the plural number include
the singular, and words in the singular number include the plural.
The word "shall" is always mandatory and not merely directory.
Total receipts of the grantee of money or its equivalent
which the grantee has received for providing basic cable service to
its subscribers in the Village, provided that installation charges
actually paid by subscribers and received by the grantee shall be
excluded from gross receipts in determining payments due to the Village.
A system located within the Village of antennas, electronic
equipment or facilities designed, constructed or used for the production
of television signals, interception and receipt of television or radio
signals, directly or indirectly, off the air, and the distribution
or transmission of such signals and other communications services
by means of cable or other similar services to subscribers.
A group of frequencies in the electromagnetic spectrum capable
of carrying an audio data or audiovisual television signal. Each channel
is a block of frequencies containing six megahertz width.
An electronic device which converts signals to a frequency
not susceptible to interference with the television receiver of a
subscriber and by an appropriate channel selector also permits a subscriber
to view all signals delivered at designated dial locations.
The Federal Communications Commission.
The recipient of the franchise granted under this chapter.
Encompasses the following document: "Revised Application
for the Construction and Operation of a Cable Television System for
the Village of Wales" submitted to the office of the Village Clerk
of the Village of Wales by Ingersoll Cable Corporation of Muskego,
Wisconsin, dated May 6, 1985.
Any person, firm, partnership, association, corporation,
company or organization of any kind.
That channel which the grantee is required to provide by § 174-7B(1).
Any person or entity receiving for any purpose the cable
service of the grantee.
To observe a one-way or two-way communications signal without
the express prior consent of the subscriber receiving or sending the
communication signal, whether the signal is observed by visual or
electronic means, for any purpose whatsoever.
The Village of Wales, Wisconsin, or any appointed designee
thereof.
The present governing body of the Village, any successors
to the legislative powers of the body or any appointed designee thereof.
A.
Grant of authority.
(1)
There is hereby granted by the Village the right,
privilege and franchise to construct, operate and maintain a CATV
system in the streets of the Village for a period of 25 years, this
time period to begin one month after the passage, acceptance and effective
date of this chapter, subject to the rights, obligations, conditions
and restrictions as hereinafter provided. Any franchise granted by
the Village shall be nonexclusive.
(2)
The right to use and occupy the streets for the purpose
herein set forth shall not be exclusive, and the Village reserves
the right to grant a similar use of the streets to any person at any
time during the period of this franchise.
(3)
This chapter and the franchise awarded pursuant to
the terms of this chapter shall relate to and cover the entire present
territorial limits of the Village and any area hereafter annexed thereto
during the term of the franchise. The grantee agrees to and shall
install and furnish CATV service to all residents of the Village.
B.
Expiration of the grant. After the expiration of the
term for which the franchise is granted, the Village shall have the
right to determine whether the grantee shall continue to operate and
maintain the CATV system pending the decision of the Village as to
the future maintenance and operation of the system.
[Amended 4-30-1990]
C.
Conditions regarding street use.
(1)
All transmission and distribution structures, lines
and equipment erected by the grantee within the Village shall be located
so as not to interfere with the proper use of streets, alleys and
other public ways and places and to cause minimum interference with
the rights or reasonable convenience of property owners who adjoin
any of the streets, alleys or other public utility installations.
All installation shall be underground in those areas of the Village
where the telephone and electric service is underground at the time
of installation. In areas where the telephone or electric distribution
facilities are aboveground at the time of installation, the grantee
may install its facilities aboveground, but in such case the grantee,
to the maximum extent possible and subject to the approval of the
telephone or electric company, shall place its facilities on the poles
of such telephone or electric company, and when the telephone or electric
facilities shall go underground the facilities of the grantee shall
likewise go underground simultaneously. The use by the grantee of
any facilities or installations of a telephone or electric utility
and the conditions of such use shall be determined by negotiations
between the grantee and such utility, if not covered by easement agreements.
The grantee shall, at the request of the homeowner, place its service
wire underground at no charge at the time of installation even in
those areas where the existing utilities are overhead.[1]
(2)
In case of any disturbance of pavement, sidewalk,
driveway or other surfacing, the grantee shall, at its own expense
and in the manner provided by the Village, replace and restore all
pavement, sidewalk, driveway or other surface of any street or alley
disturbed. Any damage to paving, sidewalk, or driveway or any other
damage to private property shall be repaired and such property shall
be restored to the same condition as it was prior to the work done
on such property by the grantee. All cost and expense thereof shall
be paid by the grantee, and such property shall be restored and repaired
by the grantee immediately, within 14 calendar days, after the work
on the private property is completed by the grantee.
(3)
If at any time during the period of the franchise
the Village shall lawfully elect to alter or change the grade or location
of any street, alley or other public way, the grantee shall, upon
reasonable notice by the Village, remove, relay and relocate its poles,
wires, cables and underground fixtures at its own expense and in each
instance comply with the requirements of the Village.
(4)
The grantee shall not place poles, conduits, wires
or other facilities above or below ground where the same will interfere
with or endanger any gas, electric or telephone facilities, water
hydrant or other utility, nor shall the grantee place poles, conduits,
wires or other facilities above or below ground in a manner which
results in a public utility facility violating any applicable safety
statute, ordinance or administrative regulation, nor shall the grantee
interfere with normal television, radio or other forms of signal transmission
to property adjacent to the installation or run of cables.
(5)
The grantee shall, on request of any person holding
a moving permit issued by the Village, temporarily move its wires
or fixtures to permit the moving of buildings, the expense of such
temporary removal to be paid by the person requesting the same, and
the grantee shall be given not less than 72 hours' advance notice
to arrange for such temporary changes.
(6)
The grantee shall have the authority to trim any trees
upon and overhanging the streets, alleys, sidewalks and public places
of the Village 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 Village, such trimming may be done by it or under
its supervision and direction at the expense and liability of the
grantee. Where wires and cables of the grantee cross private property
or are located within an easement granted to the telephone or electric
company on private property and such easement grants to the telephone
or electric company the right to trim trees and shrubbery within the
easement area, the grantee shall give prior notification to the owner
of such property of its intention to trim trees or shrubbery located
within the easement area.
D.
Removal of equipment. Following the grantee's commencement of service through and over its CATV system, the grantee shall, upon request of the Village Board following a public hearing held pursuant to § 174-13B(2), promptly remove from the public streets where its properties are located all or any part of the facilities so located when one or more of the following conditions occur, provided that the grantee shall be entitled to receive notices in writing from the Village delivered to the local office of the grantee setting forth one or more of the occurrences enumerated below:
(1)
The grantee ceases to provide a substantial amount
of the services required in this chapter for a continuous period equal
to or greater than six months.
(2)
The grantee fails to construct the system as provided
herein.
(3)
The franchise expires or is revoked pursuant to notice
as provided herein.
E.
Joint use by Village and utilities.
(1)
The grantee may be required by the Village to permit
joint use of its property and appurtenances located in the streets,
alleys or other public ways of the Village by other utilities insofar
as such joint use may be reasonably practicable and upon payment of
reasonable rental therefor, provided that in the absence of agreement
regarding such joint use, the Village Board shall provide for arbitration
of the terms and conditions of such joint use and the compensation
to be paid therefrom, which award shall be final.
(2)
The Village shall have the right during the term of
this franchise to install and maintain free of charge upon the property
of the grantee its own equipment, including but not limited to a police
alarm system, on the condition that such equipment does not unreasonably
interfere with the CATV operations of the grantee.[2]
A.
The grantee shall, within 20 days after a franchise
is granted by the Village, make application to the Federal Communications
Commission for a certificate of compliance for the establishment of
a cable television system in the Village and, if necessary, for the
utilization of a microwave facility to import permissible signals,
and the grantee shall prosecute such application diligently and faithfully
in order that necessary approvals can be obtained in the shortest
possible time. The Village reserves the right to intervene in the
application for a certificate of compliance, and the grantee shall
pay all expenses incurred by the Village in connection with the submission
and defense of an application for a certificate of compliance filed
with the FCC by the grantee.
B.
The grantee shall, within 20 days after a franchise
is granted by the Village, begin negotiations with utility companies
for facility lease agreements.
C.
Prior to the commencement of construction and receipt
of final approvals from the Federal Communications Commission for
establishment of the system, the grantee shall conduct the necessary
engineering studies.
D.
The grantee shall, within 20 days after a franchise
is granted by the Village, begin preliminary engineering of the pole
line route, electronic layouts and negotiations for common carrier
microwave contracts and negotiate engineering surveys for the receiving
site and building locations of the grantee's CATV system.
E.
The grantee shall commence construction of the cable
television system within 60 days after the execution of pole attachment
agreements and receipt of final approval from the Federal Communications
Commission to establish a cable television system and utilize a microwave
facility to import permissible signals. The grantee shall notify the
Village in writing as soon as all pole attachment agreements have
been consummated and when final approval from the Federal Communications
Commission to establish a cable television system provided in this
chapter has been obtained.
F.
The grantee shall provide service to all residents
of the Village requesting service within 12 months from the granting
of the franchise.
G.
The grantee shall submit to the Village Board an installation
plan for the entire Village, indicating the date on which the grantee
expects the installation of the CATV system to be completed and available
for service to subscribers in the various areas of the Village.
H.
The requirements established in Subsections A through G above are maximums, and the grantee may at any time proceed at a rate speedier than required by Subsections A through G above. The Village Board shall have the right to inspect all construction or installation work performed pursuant to the provisions of this chapter.
I.
The Village 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 Village Board that the grantee is being
subjected to delay or interruption due to any of the following circumstances
if reasonably beyond its control:
A.
Franchise payments.
(1)
The grantee shall pay to the Village for the use of
the streets and other facilities of the Village in the operation of
the CATV system and for the municipal supervision thereof a fee in
the amount of 3% of the annual basic cable gross receipts of the grantee
derived from basic service in the Village. The grantee shall file
with the Village Board within 30 days after the expiration of each
half year ending on January 1 and July 1 during the period this franchise
shall be in force a financial statement certified by an officer of
the grantee showing in detail the annual basic cable gross receipts
of the grantee from the Village during the preceding semiannual period.
The grantee shall pay to the Village at the time of filing such statement
the franchise fee prescribed.
[Amended 4-30-1990]
(2)
If this franchise should be terminated or forfeited
prior to the end of the basic twenty-five-year term, the grantee shall,
within 90 days, submit to the Village Board a certified financial
statement prepared as before required showing the gross receipts of
the grantee for the time elapsed since the last period for which the
grantee has paid to the Village the required percentage of gross annual
receipts, and the grantee shall pay to the Village not later than
30 days following the termination of the franchise a like percentage
of such gross receipts.
(4)
Pursuant to § 174-13A(3), the Village Board shall have the right to inspect the grantee's records showing the gross receipts from which its franchise payments are computed. The right of audit and recomputation of any and all amounts paid under this franchise shall be always accorded to the Village Board at the Board's expense. No acceptance of any payment by the Village shall be construed as a release of or an accord or a satisfaction of any claim the Village might have for further or additional sums payable under the terms of this chapter or for any other performance or obligation of the grantee hereunder.
(5)
Payments of compensation made by the grantee to the
Village pursuant to the provisions of this chapter shall not be considered
in the nature of a tax but shall be in addition to any and all taxes
which are now or hereafter required to be paid by law of the United
States or the Village.
B.
Insurance and indemnity.
(1)
At all times during the term of the franchise the
grantee shall obtain, pay all premiums for and file with the Village
Board at least 10 days before construction of the system commences
a certificate of insurance or other proof evidencing the payment of
premiums for the following:
(a)
A general comprehensive public liability insurance
policy indemnifying, defending and saving harmless the Village, its
officers, boards, committees, commissions, agents or employees from
any and all claims by any person whatsoever on account of injury to
or death of a person or persons occasioned by the operations of the
grantee under the franchise herein granted or alleged to have been
so caused or occurred with a minimum liability of $1,000,000 for bodily
injury or death of any one or more persons in any one occurrence.
Such policies are to include personal injury coverage.
(b)
Property damage insurance indemnifying, defending
and saving harmless the Village, its officers, boards, committees,
commissions, agents and employees from and against all claims by any
person whatsoever for property damage occasioned by the operation
of the grantee under the franchise herein granted or alleged to have
been so caused or occurred with a minimum liability of $1,000,000
for property damage in any one occurrence.
(2)
All of the foregoing insurance contracts shall be
maintained by companies authorized to do business in Wisconsin. Such
insurance contracts shall require 30 days' written notice of any cancellation
to both the Village and the grantee.
[Amended 4-30-1990]
(3)
The grantee shall also, at its sole cost and expense,
fully indemnify, defend and hold harmless the Village, its officers,
boards, committees, commissions and employees against any and all
claims, suits, actions, liability and judgments for damages, including
but not limited to expenses for reasonable legal fees and disbursements
and liabilities assumed by the Village in connection therewith:
(a)
Arising out of any claim for invasions of the
right of privacy, for defamation of any person or for the violation
or infringement of any copyright, trademark, trade name, service mark
or patent or of any other right of any person, excluding claims arising
out of or relating to Village programming.
(b)
Arising out of the grantee's failure to comply
with the provisions of any federal or state statute or local ordinance
or regulation applicable to the grantee in its business hereunder.
(4)
The foregoing indemnity is conditioned upon the following:
The Village 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 Village from cooperating with the grantee and
participating in the defense of any litigation by its own counsel
at its sole cost and expense.
C.
Surety bond.
(1)
The grantee shall maintain and by its acceptance of
this franchise specifically agrees that it will maintain throughout
the term of this franchise a faithful performance bond running to
the Village, with a good and sufficient surety approved by the Village
Attorney in the sum of $20,000, conditioned that the grantee shall
well and truly observe, fulfill and perform each term and condition
of this franchise and of the grantee's proposal and that, in case
of any breach, the Village shall be entitled to recover from the principal
and sureties thereof the amount of all damages, including all costs
and attorney fees incurred by the Village proximately resulting from
the failure of the grantee to observe and perform any and all of the
provisions of this franchise. After the grantee completes the installation
of the CATV system, the grantee has provided service to all residents
of the Village requesting such service and the Village Board approves
the installation of the system and is satisfied that all residents
of the Village requesting service have been provided such service
by the grantee, the Village Board shall reduce the bond to $2,000.
(2)
No recovery by the Village of any sum by reason of
the bond required herein shall be any limitation upon the liability
of the grantee to the Village, except that any sum received by the
Village by reason of the bond required herein shall be deducted from
any recovery which the Village might have against the grantee.
D.
Acceptance of this chapter.
(1)
This chapter and its terms and provisions shall be
accepted by the grantee by written instrument executed and acknowledged
by it as a deed is required to be and filed with the Village Clerk
within 20 days after the passage of this chapter. Such written instrument
shall state and express the acceptance of this chapter and its terms,
conditions and provisions; the grantee shall agree in the instrument
to abide by, observe and perform the same and declare that statements
and recitals herein are correct and that it has made and does make
this agreement, statement and admissions in this chapter recited to
have been or to be made.
(2)
This chapter shall take effect 20 days after its final
passage and posting, provided that such formal acceptance of the terms
and conditions by the grantee as herein provided in a form approved
by the Village Attorney and the acceptance fee of $1,000 in the form
of a certified or cashier's check shall both have been filed and deposited
with the Village Clerk within such 20 days. If one or both of the
above are not filed or deposited as required, this chapter shall not
take effect but shall be void.
(3)
Such acceptance fee shall be utilized by the Village
to cover the expenses which it has incurred to date in choosing a
cable franchise and formulating this chapter.
A.
General requirements.
(1)
The grantee shall install, maintain and operate its
system in accordance with the highest standards of the state of the
art of cable communications and in accordance with any code of conduct
which has been adopted by the National Cable Television Association.
(2)
The grantee shall render efficient service in accordance
with such rules and regulations as have been promulgated and will
be promulgated by the FCC and other federal and state regulatory agencies.
(3)
The grantee shall provide a uniform, strong signal,
free from distortion and interference, and shall not interrupt services
unless absolutely necessary.
(4)
The grantee shall provide cable television services
which are identical to those services which are described in the grantee's
proposal to the Village dated May 6, 1985, which proposal is on file
in the office of the Village Clerk, provided that the grantee shall
not have to provide any proposed service which has been disapproved
by the FCC for a certificate of compliance.[1]
(5)
It shall be the right of all subscribers to receive
all available services 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 Village revokes or fails to renew
this permit or elects to purchase the system, the grantee shall do
everything in its power to ensure that all subscribers receive continuous,
uninterrupted service regardless of the circumstances. In the event
of purchase by the Village or a change of grantee, the current grantee
shall cooperate with the Village or a representative appointed by
the Village to operate the system, for a temporary period, in maintaining
continuity of service to all subscribers.
(6)
The grantee shall provide full basic cable television
service to the Fire and Police Departments and shall provide full
basic cable television services to the Village Hall without charge
as requested by the Village.
B.
Channel allocations.
(1)
Off-the-air programming. The grantee shall carry the
signals of the following television stations:
|
Basic Service Channel Selection
| ||||
|
4
|
WTMJ
|
(NBC)
|
Milwaukee
| |
|
6
|
WITI
|
(CBS)
|
Milwaukee
| |
|
10
|
WMVS
|
(PBS)
|
Milwaukee
| |
|
12
|
WISN
|
(ABC)
|
Milwaukee
| |
|
18
|
WVTV
|
(IND)
|
Milwaukee
| |
|
24
|
WCGV
|
(IND)
|
Milwaukee
| |
|
30
|
WVCY
|
(IND)
|
Milwaukee
| |
|
36
|
WMVT
|
(PBS)
|
Milwaukee
| |
|
55
|
WCIU
|
(IND)
|
Milwaukee
| |
|
9
|
WGN
|
(IND)
|
Chicago
| |
|
17
|
WTBS
|
(IND)
|
Atlanta
| |
|
9
|
WOR
|
(IND)
|
New York
| |
|
C-SPAN
|
Satellite public affairs
| |||
|
ESPN
|
24 hours a day sports
| |||
|
Christian Broadcasting Network
| ||||
|
The Weather Channel
| ||||
|
MTV
| ||||
|
Nickelodeon
| ||||
|
Lifetime
| ||||
|
Cable News Network
| ||||
|
USA Network
| ||||
|
The Nashville Network
| ||||
|
VH-1
| ||||
|
SPN
| ||||
|
Add-on Channels
| |
|
Home Box Office (HBO)
| |
|
Showtime
| |
|
The Disney Channel
| |
|
The Movie Channel
|
(2)
Public access channel.
[Amended 4-30-1990]
(a)
Upon request of the Board, the grantee shall
make available one fully operational channel on a nondiscriminatory
basis and at no charge to the user for such channel. Upon request
of the Board, the grantee shall also donate the following equipment
to the Village:
|
Modulator, Scientific Atlanta, 6330
Camera, JVC, GFS550SUHS
Playback, Sony VP 7020 with TBC
|
(b)
The grantee shall have no responsibility for
maintenance of such equipment or training in the use of such equipment.
The rules for use of the channel and equipment shall be the responsibility
of the Board.
C.
Emergency or disaster. In the event of an emergency
or disaster, the grantee shall, upon request of the Village President
or his authorized representative, make available its facilities to
the Village at no charge for emergency use during the period of such
emergency or disaster and shall provide such personnel as necessary
to properly operate under the circumstances.
D.
Customer service.
(1)
The grantee shall maintain an office in the metropolitan
area which shall be open during all usual business hours, have a listed
telephone and be so operated that complaints and requests for repairs
or adjustments may be received at any time.
(2)
The grantee shall respond to all service calls and
complaints and shall correct malfunctions in the equipment as promptly
as possible. The grantee shall respond to requests for service within
24 hours after the receipt of the request. If the grantee does not
respond to a request involving an outage of service within such 24
hours, the grantee shall refund 1/30 of its monthly charge to a subscriber
for each 24 hours or fraction thereof following a request for service
involving an outage, except to the extent that the grantee is prevented
from responding to such request for service by strike, injunction
or other cause beyond the control of the grantee.
[Amended 4-30-1990]
(3)
The grantee shall not prevent others from entering
the business of selling television equipment to cable subscribers.
A.
The cable system shall be engineered, installed, maintained,
operated and equipped so as to, at all times, meet the technical standards
which are the current state of the art of the cable communications
industry. The grantee shall also, at all times, meet the technical
standards established by the FCC, including specifications for frequency
levels, channel frequency response, terminal isolation and system
radiation and all other standards which the FCC may set.
B.
The cable system shall be engineered and equipped
so as to possess an initial capacity of 54 channels.
C.
The grantee shall upgrade its facilities, equipment
and service as subscribers' demands dictate so that its system is
as advanced as the current state of technology, with field-proven
equipment, will allow where economically feasible.
D.
The cable system shall be engineered and installed
with the capacity for two-way communications in accordance with the
regulations of the FCC now in effect or which may be promulgated.
E.
The cable system shall utilize a single trunk, providing
a frequency range of 54 to 400 megahertz.
F.
The converters utilized in the cable system shall
be capable of delivering 54 television channels.
G.
At the option of any individual subscriber, the grantee
shall install a switching device upon the subscriber's television
receiver whereby the subscriber may disconnect his television receiver
from the grantee's cable system in order to receive over-the-air television
signals. The price of this device to the subscriber shall be at the
cost of the device to the grantee or less, at the option of the grantee,
and the grantee shall not charge the subscriber any fee for the installation
of the device at the time of initial installation. The grantee shall
make all reasonable efforts to obtain the devices at the lowest possible
cost.
H.
At the option of any individual subscriber, the grantee
shall provide a device which allows the individual subscriber to utilize
a key to disconnect those channels providing additional services to
the subscriber, such as pay television channels. The price of such
device shall be the cost of the device to the grantee or less, at
the option of the grantee, and the grantee shall not charge the subscriber
any fee for the installation of such device at the time of initial
installation. The grantee shall make all reasonable efforts to obtain
such devices at the lowest possible cost.
I.
The grantee shall provide for the standardization
of cable television system facilities for the exchange of transmission
of both live and recorded programs with other cable television facilities
operating in adjacent territory to the Village. The grantee shall
run appropriate trunk lines to the borders of the franchise area or
provide other suitable methods to accomplish such purpose, where economically
feasible.
A.
Rate schedule.
(2)
Initial rate schedule.
(a)
The grantee shall be permitted to charge rates
not exceeding the following:
[1]
For a first outlet to provide basic service
to residential subscribers, a monthly fee of $11.25.
[2]
For installation of a first outlet to provide
basic service to residential subscribers, a fee of $25.
[3]
For additional outlets to provide basic service
to residential subscribers, a monthly fee of $3.
[4]
For additional outlets to provide basic service
and one pay service or more to residential subscribers, a monthly
fee of $6.
[5]
For installation of additional outlet or outlets,
if done at the same time, a one-time fee of $15 shall be charged.
If the installation of the additional outlet is done at the time of
the primary outlet, the resident will be charged only for the primary
outlet installation.
[6]
All installation fees as provided above for
installations that occur within 90 days from the date of application
for service shall be waived.
[7]
For reconnection of an outlet to provide basic
service to a subscriber, after the subscriber has been disconnected
from the grantee's cable system, an installation fee of $15.
[8]
For relocation of an outlet to provide basic
service to a subscriber within a subscriber's residence, a fee of
$15.
[9]
For installation of an outlet to provide basic service to a residential subscriber who has moved to a new residence within the Village and has subscribed to the grantee's cable system, a fee of $15; if the grantee must install a new drop at the subscriber's new residence, the grantee may charge the fee specified in Subsection A(2)(a)[2] above.
[10]
For a first outlet to provide the radio services
required to be provided by the grantee's revised proposal dated May
6, 1985, no monthly fee or installation fee to the subscribers for
basic service provided by the grantee.
[11]
For a first outlet to provide the radio services
required to be provided by the grantee's revised proposal dated May
6, 1985, a monthly fee of $3 and an installation fee of $15 to parties
who do not subscribe to the basic service provided by the grantee.
[12]
For additional outlets to provide the radio
services required to be provided by the grantee's revised proposal
dated May 6, 1985, a monthly fee of $3 per outlet and an installation
fee of $15 per outlet, provided that installation of such additional
outlet shall be undertaken by the grantee at no charge to the subscriber
if the installation is ordered by the subscriber to occur at the same
time as the installation of an outlet for which a fee is charged.
[13]
For reconnection of a subscriber's radio outlet
after such outlet has been disconnected, a fee of $15.
[14]
For relocation of a subscriber's radio outlet
within a subscriber's residence, a fee of $15.
[15]
For motels, apartment houses and other multiunit
dwellings, rates, fees and charges as stated in the grantee's proposal.
(b)
All fees in Subsection A(2)(a) above include charges for converters, and no additional charge for converters shall be made.
(c)
The grantee shall at no time whatsoever charge
any fee for disconnecting any outlet in the residence of any subscriber.
(3)
The grantee shall provide, without charge, one outlet
to each municipally owned building, fire station, police station,
library, public and parochial school and institution of higher learning
that is passed by its cable. If more than one outlet is required at
any location, the grantee shall install the same at the cost of time
and materials only, and in no event will there be a monthly service
charge at such locations.
(4)
Rates for all other services to be provided over the
CATV system by the grantee shall be as set forth in the grantee's
proposal with reference to such rates dated May 6, 1985, and on file
in the office of the Village Clerk.
(5)
If the grantee desires to provide new services not set forth in the grantee's proposal, the rates for such services shall be approved pursuant to Subsection B of this section.
(6)
Nothing above shall be construed to prohibit the reduction or waiving of charges in conjunction with promotional campaigns for the purpose of attracting subscribers, nor shall this provision be interpreted to prohibit the establishment of a graduated scale of charges and classified rate schedule to which any subscriber or programmer included within a particular classification shall be entitled, provided that such classified rate schedules are approved by the Village Board under Subsection B of this section.
(7)
Nothing above shall prohibit special rates for large institutions, motels, multiple-family dwelling units or any other type of dwelling or building, provided that such special rates are approved by the Village Board under Subsection B of this section.
(9)
The grantee will construct the cable system and provide
service throughout the franchise areas at the normal installation
charges.
(10)
The grantee shall provide a fourteen-percent
senior citizen discount on its basic service. For purposes of this
discount, a senior citizen is defined as the head of a household who
is 60 years of age or older.
B.
Rate supervision.
(1)
The grantee may decrease the rates to subscribers at any time. All rate increases above maximums previously approved, advance charges for additional services and converters, classified rate schedules and special rates for certain dwellings or buildings shall not go into effect until approved by the Village Board under Subsection B(2) and (3) below.
(2)
The Village Board shall approve rates only after a
public hearing has been held on the rate change in question. The public
hearing shall be announced by written notice published in a newspaper
of general circulation at least 10 days before the date of the hearing.
At the public hearing, the grantee shall make such showing as the
Village Board requires to substantiate the necessity for the rate
change in question.
(3)
The Village Board shall either approve the rate change
or fail to do the same through the use of a resolution.
(4)
The Village Board reserves the right to review and
approve rates for new services.
C.
Advance charges.
(1)
The grantee may require subscribers to pay for each
month of basic service and FM service in advance at the beginning
of each month. No other advance payment or deposit of any kind shall
be required by the grantee for basic subscriber service. No deposit
or advance payment of any kind shall be charged for the provision
of any converter without prior approval of the Village Board. Additional
advance payments may be made available, as an option, by the grantee
to subscribers. Nothing in this provision shall be construed to prohibit
charges for initial installation and reconnecting.
D.
Termination of service.
(1)
If any subscriber fails to pay a properly due monthly
subscriber fee or any other properly due fee or charge, the grantee
may disconnect the subscriber's service outlet. Such disconnection
shall not be effected until 30 days after the due date of such delinquent
fee or charge or until 10 days after adequate written notice of the
intent to disconnect has been mailed to the subscriber in question.
After disconnection, upon payment of the delinquent fee or charge
and the payment of a reconnection charge, the grantee shall promptly
reinstate the subscriber's cable service.
(2)
Upon termination of service to any subscriber, the
grantee shall promptly remove all of its facilities and equipment
from the premises of such subscriber upon his written request. The
service will be disconnected at the poles if aboveground or at the
connection box if underground, so that such disconnection shall be
outside rather than inside the home. For multiple-family dwellings,
such disconnection shall be made in the basement or other appropriate
service area outside the living area itself. Any such removal shall
be at no cost to the subscriber.
E.
Refunds to subscribers and programmers. If the grantee
fails to provide any material service requested by a subscriber or
programmer, the grantee shall, after adequate notification and being
afforded the opportunity to provide the service, promptly refund all
deposit or advance charges paid for the services in question by the
subscriber or programmer.
A.
Discriminatory practices prohibited. The grantee shall
not deny service or access or otherwise discriminate against subscribers,
programmers or general citizens on the basis of race, color, religion,
national origin, creed or sex. Nothing in this provision shall be
construed to prohibit the reduction or waiving of charges in conjunction
with promotional campaigns for the purpose of attracting subscribers,
nor shall this provision be interpreted to prohibit the establishment
of a graduated scale of charges and classified rate schedule to which
any subscriber or programmer included within a particular classification
shall be entitled.
B.
Employment practices of the grantee. In the carrying out of the construction, maintenance and operation of its CATV system, the grantee will not discriminate against any employee or applicant because of race, creed, color, religion, sex or national origin. The grantee shall strictly adhere to the equal employment opportunity requirements of the FCC as expressed in §§ 76.13(a)(8) and 76.311 of Chapter 1 of Title 47 of the Code of Federal Regulations. The grantee shall comply at all times with all other applicable federal, state, Village and county laws and all other executive administrative orders relating to nondiscrimination in employment. The grantee will take affirmative action with reference to all applicants without regard to their race, creed, color, sex, religion or national origin. Such action shall include, but not be limited to, employment, upgrading, demotion or transfer, recruitment or recruitment advertising, layoff or termination, and training, including apprenticeship. The grantee shall post in conspicuous places, available to employees and applicants for employment, notices setting forth the provision of this nondiscrimination clause. The grantee shall, in all solicitations or advertisements for employees placed by or on behalf of the grantee, state that all qualified applicants will receive consideration for employment without regard to race, creed, color, sex, religion or national origin. The grantee will incorporate the foregoing requirements of this subsection in all of its contracts for work relative to construction, maintenance and operation of the CATV system, other than contracts for standard commercial supplies or raw materials, and will require all of its contractors for such work to incorporate such requirements in all subcontracts for such work.
C.
Cable monitoring. Neither the grantee nor any governmental
bureau, department, unit, agency or entity at the federal, state,
county or local level nor any other person or entity shall monitor
or arrange for the monitoring of any cable, tone, signal, input device
or subscriber outlet or receiver for any purpose whatsoever.
D.
Right of privacy.
(1)
The grantee shall not transmit any signal to or from
any dwelling or any other building without the express authorization
of the owner of such dwelling or other building, provided that where
the owner has leased the dwelling or other building, or a portion
thereof, express authorization shall be obtained from the lessee and
not from the owner.
(2)
Nothing in this section shall diminish any rights
of residents of dwellings or other buildings protected by this chapter.
E.
Rights of residents.
(1)
An owner or operator of any apartment building, condominium,
nursing home or any other rental facility may not interfere with or
charge a fee for the installation of cable facilities for the use
of a lessee of the property or premises, except that such owner or
operator may require:
(a)
Installation to conform to reasonable conditions
necessary to protect the safety, appearance and functioning of the
premises.
(b)
The grantee, occupant or tenant to pay for the
installation, operation or removal of such facilities.
(c)
The grantee, occupant or tenant to agree to
indemnify the owner or operator for any damages caused by the installation,
operation or removal of such facilities.
(2)
The grantee shall not reimburse or offer to reimburse
any person or demand or receive reimbursement from any person for
the placement, upon the premises of such person, of the grantee's
facilities necessary to connect such person's premises to the distribution
lines of the grantee to provide CATV service to the premises.[1]
(3)
A landlord may not discriminate in the amount of rent
charged to tenants or occupants who receive cable services and to
those who do not.
(4)
The grantee may not take actions which would diminish
or interfere with the privilege of any tenant or other occupant of
any such building to use or avail himself of master or individual
antenna equipment.
F.
Sale of subscriber lists prohibited. The grantee shall
not sell, or otherwise make available, lists of the names and addresses
of its subscribers or any list which identifies by name subscriber
viewing habits to any person, agency or entity for any purpose whatsoever.
A.
The right is hereby reserved to the Village to adopt,
in addition to the provisions contained herein and in existing applicable
ordinances, such additional regulations as it shall find necessary
in the exercise of the police powers, provided that such regulations,
by ordinance or otherwise, shall be reasonable and not in conflict
with the rights herein granted.
B.
Nothing contained in this chapter shall be construed
to limit or in any way impair the powers and authorities of the Village,
except as expressly stated in this chapter.
A.
Tampering with cable equipment. A person who willfully
or maliciously damages or causes to be damaged any wire, cable, conduit,
apparatus or equipment of the grantee or who commits any act with
intent to cause damage to any wire, cable, conduit or equipment of
the grantee with intent to obtain a signal or impulse therefrom without
authorization of the grantee shall be subject to a forfeiture of not
more than $500 as determined by the court and shall be liable in a
civil action for three times the actual amount of damages sustained
thereby, but this subsection shall not prevent a public utility from
removing, disconnecting or otherwise rendering inoperative any of
the grantee's apparatus or equipment attached or in any way connected
to such public utility's facilities, if done for reasonable cause.
B.
Liability of the grantee in libel action. The grantee
or its agents shall not, in an action for slander or publishing a
libel, be held liable in damages for or on account of any defamatory
matter uttered, telecast, cablecast or published over the facilities
of the grantee by any person whose utterance, telecast, cablecast
or publication is not, under the provisions of any law of the United
States or any regulation, ruling or order of the FCC, subject to censorship
control by the grantee.
A.
Books and records of the grantee.
(1)
The grantee shall file with the Village Clerk accurate
copies of maps and/or plats of the locations and character of all
existing and proposed installations over, upon or under the streets.
These maps and plats shall conform to the requirements of the Village
Engineer and be kept continuously up-to-date.
(2)
The grantee shall continually keep on file with the Village Board a current list of its shareholders holding 5% or more of the outstanding stock and officers with their current addresses. These lists shall also be included in the annual report of the grantee required in § 174-6.
(3)
All books and records of the grantee concerning its
operations within the Village, including but not limited to all income
tax returns and financial records of the grantee, shall be made available
for inspection and audit by the Village Board or its designee within
30 days after written request for such inspection or audit shall be
made.
(4)
The grantee shall keep and maintain all records required
by the FCC. Copies of such records and all other rules and regulations,
terms and conditions established by the grantee for the conduct of
its business shall be filed at the local office of the grantee.
(5)
Copies of all petitions, applications and communications
submitted by the grantee to the FCC, Securities and Exchange Commission
or any other federal or state regulatory commission or agency having
jurisdiction in respect to any matter affecting cable operation shall
also be at the local office of the grantee.
(6)
The grantee shall keep and maintain a complete record
of those subscriber complaints and requests for service which it has
received, the time of such receipt and the time at which it responded
to the subscriber complaints and requests for service. Upon request
of the Board, copies of such complaints which were received in the
ninety-day period preceding the Board's request shall be submitted
to the Village Board. The grantee shall also keep a copy of such records
at its local office.
[Amended 4-30-1990]
(7)
The grantee shall keep and maintain a complete record
of all persons or groups requesting time on its access channels. Such
record shall be made available for public inspection, and a copy of
such record shall be submitted to the Village Board.[1]
(8)
All records required by this section shall be kept
on file by the grantee for the duration of the franchise.
B.
Revocation of this franchise.
(1)
In addition to all other rights and powers pertaining
to the Village by virtue of this chapter or otherwise, the Village
reserves the right to revoke, terminate and cancel the franchise,
and all rights and privileges of the grantee hereunder, if:
(a)
The grantee violates any material provision of this chapter, the grantee's proposal or any rule, order or determination of the Village made pursuant to this chapter, except where such violation other than Subsection B(1)(b) below is without fault or through excusable neglect.
(b)
The grantee becomes insolvent or unable or unwilling
to pay its debts or is adjudged a bankrupt.
(c)
A receiver or trustee has at least 120 days
beforehand been appointed to take over and conduct the business of
the grantee, whether in receivership, reorganization, bankruptcy or
other action or proceeding, unless such receivership or trusteeship
shall have been vacated prior to the expiration of 120 days or unless:
[1]
Within 120 days after his election or appointment,
such receiver or trustee shall have fully complied with all the provisions
of this chapter and remedied all defaults thereunder.
[2]
Such receiver or trustee, within 120 days, shall
have executed an agreement 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.
(d)
There has been a change in the ownership of
more than 5% of the voting stock of the grantee, requiring the consent
of the Village Board, and such consent has been denied or not given.
(e)
The grantee attempts to evade any of the material
provisions of this chapter or practices any fraud or deceit upon the
Village.
(f)
The grantee fails to have service available
to all of the residential structures in all areas of the Village.
(2)
Such revocation, termination and cancellation shall
occur only after a public hearing has been conducted by the Village
Board. If, as a result of the public hearing, the Village Board approves
and recommends revocation, termination and cancellation, the Village
Board may put such revocation, termination and cancellation into effect
by ordinance adopted after 30 days' notice to the grantee. Such revocation,
termination and cancellation shall in no way affect any of the Village's
rights under this chapter or any provision of law. If such revocation,
termination and cancellation depends upon a finding of fact, such
finding of fact as made by the Village Board shall be conclusive;
provided, however, that before the franchise may be revoked, terminated
and cancelled under this section, the grantee shall be provided with
an opportunity to be heard before the Village Board.
(3)
If the Village revokes, terminates and cancels this
permit, pursuant to appropriate provisions of this chapter, the Village
shall have the right to purchase the grantee's cable plant located
within the Village boundaries. Such cable plant shall be only the
cable plant located within the Village boundaries that is used to
distribute the cable signal to the residents of the Village only.[2]
(4)
Whenever this franchise shall set forth time for any
act to be performed by or on behalf of the grantee, such time shall
be deemed of the essence and any failure of the grantee to perform
within time allotted shall be sufficient grounds for the Village to
revoke this franchise.
(5)
If grounds for the revocation of this franchise exist,
the Village Board may pass a resolution imposing any penalty or sanction,
not amounting to revocation, upon the grantee, provided that such
penalty or sanction not amounting to revocation is agreed upon by
both the grantee and the Village Board. If no agreement is reached
between the grantee and the Village Board, the Village Board shall
decide whether or not to revoke the grantee's franchise.
C.
Restrictions against assignment.
(1)
This franchise shall not be assigned or transferred,
either in whole or part, or leased, sublet or mortgaged 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, either
by the act of the grantee or by operation of law, without the express
consent of the Village Board. The granting, giving or waiving of any
one or more of such consents shall not render unnecessary any subsequent
consent or consents.
(2)
The grantee shall promptly notify the Village Board
of any actual or proposed change in, transfer of or acquisition by
any other party of control of the grantee. Within 60 days after receiving
notice, the Village Board shall hold a public hearing on this matter
and within 90 days shall make its decision. For the purpose of determining
whether it will consent to such change, transfer or acquisition of
control, the Village Board may inquire into the qualifications of
the prospective controlling party, and the grantee shall assist the
Village Board in any such inquiry.
(3)
Every change, transfer or acquisition of control of the grantee with respect to which the consent of the Village Board is required pursuant to Subsection C(1) above shall make the franchise subject to revocation until the Village Board gives its consent, and until such change, transfer or acquisition of control has been effected, the Village may revoke the permit unless control of the grantee is restored to its status prior to the change or to a status acceptable to the Village Board.[3]
(4)
Upon the foreclosure or other judicial sale of all or a substantial part of the grantee's cable system or upon the termination of any lease covering all or a substantial part of the system, the grantee shall notify the Village Board 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 Subsection C(1), (2) and (3) above shall apply.
(5)
The consent or approval of the Village Board to any
assignment, lease, transfer, sublease or mortgage of this franchise
shall not constitute a waiver or release of the rights of the Village
in and to the streets.
(6)
Nothing in this section shall be deemed to prohibit
a mortgage or pledge of the cable system equipment or any part thereof
or a leasing by the grantee from another person of the cable system
equipment or part thereof for financing purposes or otherwise; any
such mortgage, pledge or lease shall be subject and subordinate to
the rights of the Village under this contract or applicable law.
A.
Compliance with local, state and federal law.
(1)
The grantee shall construct, operate and maintain
the CATV system subject to the supervision of all of the authorities
of the Village who have jurisdiction in such matters and in strict
compliance with all laws, ordinances and rules and regulations.[1]
(2)
If at any time the powers of the Village Board or
any agency or official of the Village are transferred by law to any
other board, authority, agency or official, this board, authority,
agency or official shall have the power, rights and duties previously
vested under this chapter or by law in the Village Board or any agency
or official of the Village.
(3)
Notwithstanding any other provisions of this franchise,
the grantee shall at all times comply with all laws and regulations
of the state and federal government or any administrative agency thereof.
However, if any state or federal law or regulation shall require the
grantee to perform any service in conflict with the terms of this
chapter or of any law or regulation of the Village, then as soon as
possible following knowledge thereof, the grantee shall notify the
Village Board of the conflict believed to exist between such regulation
or law and the laws or regulations of the Village or this chapter.
If the Village Board determines that a material provision of this
chapter is affected by such subsequent action, the Village Board shall
have the right 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 chapter.
B.
Failure of Village to enforce this franchise no waiver
of the terms thereof. The grantee shall not be excused from complying
with any of the terms and conditions of this franchise by any failure
of the Village upon any one or more occasions to insist upon or seek
compliance with any such terms or conditions.
C.
Captions. The captions to sections throughout this
chapter are intended solely to facilitate reading and reference to
the sections and provisions of this chapter. Such captions shall not
affect the meaning or interpretation of this chapter.
A.
Except as expressly provided in this franchise, the
grantee shall have no recourse whatsoever against the Village for
any loss, cost or expense or damage arising out of the provisions
or requirements of this chapter or because of the enforcement thereof
by the Village.
B.
The grantee expressly acknowledges that, upon accepting
this franchise, it did so relying upon its own investigation and understanding
of the power and authority of the Village to grant this franchise.
By the acceptance of this franchise, the grantee agrees that it will
not at any time set up against the Village in any claim or proceeding
any condition or term of this franchise as unreasonable, arbitrary
or void or that the Village has no power or authority to make such
terms or conditions of this franchise in their entirety.
C.
The grantee, by acceptance of this franchise, acknowledges
that it has not been induced to enter into this franchise by any understanding
or promise or other statement, whether verbal or written, by or on
behalf of the Village or by any other third person concerning any
term or condition of this franchise not expressed herein.
D.
The grantee further acknowledges by acceptance of
this franchise that it has carefully read the terms and conditions
hereof, is willing to and accepts all reasonable risks of the meaning
of such terms and conditions and agrees that in the event of any ambiguity
therein or other dispute over the meaning thereof, the same shall
be construed strictly against the grantee and in favor of the Village.
The grantee's proposal, as defined in this chapter,
is hereby incorporated by reference into this chapter and shall be
considered to be part of this chapter. All representations made by
the grantee in the grantee's proposal shall be required to be performed
or provided by the grantee, and any failure by the grantee to perform
any act or provide any service or equipment proposed in the grantee's
proposal shall be a violation of this chapter.
Except as otherwise herein provided, any person who shall violate any rule, regulation, order or provision of this chapter, upon conviction thereof, shall be subject to a penalty as provided in § 1-4 of this Code.
