[HISTORY: Adopted by the City Council of the City of Weyauwega 5-21-2001 by Ord. No. 2001-01 as Title 9, Ch. 4 of the 2001 Code. Amendments noted where applicable.]
It shall be unlawful for any person to construct, install or maintain within any public street of the City, or within any other public property of the City, or within any privately owned property within the City which has not yet become a public street but is designated or delineated as a proposed public street on the City's Official Map or on any tentative subdivision map approved by the City, any equipment or facilities for distributing any television signals or radio signals through a cable television system unless a franchise authorizing the use of such street or property or area has first been obtained pursuant to the provisions of this chapter and unless such franchise is in full force and effect.
This chapter creates in a franchise grantee, its successors and assigns a nonexclusive franchise to install, maintain and operate a cable television system for the distribution of television signals, frequency-modulated radio signals and closed circuit television programs for a term of 15 years, provided that the franchise grantee conforms to the conditions, limitations and requirements of this chapter. This chapter may be amended from time to time by the City through the enactment of amendments thereto.
In accepting this franchise, the grantee acknowledges that its rights hereunder are subject to the police power of the City of Weyauwega to adopt and enforce general and specific ordinances necessary to the health, safety and welfare of the public and it agrees to comply with all applicable general and specific laws enacted by the City of Weyauwega pursuant to such power.
The following words and phrases, whenever used in this chapter, shall be construed as defined in this section unless from the context a different meaning is intended or unless a different meaning is specifically defined and more particularly directed to the use of such word or phrase:
- BASIC SUBSCRIBER CABLE REVENUES and BASIC SUBSCRIBER SERVICE
- Revenues from all service provided by the subscriber, including pay cable, but excluding installation costs.
- CABLE SYSTEM
- A system of antennas and other receiving equipment, cables, wires, lines, towers, waveguides, laser beams or any other conductors, converters, equipment or facilities designated or constructed for the purpose of producing, receiving, amplifying and distributing audio, video and other forms of electronic or electrical signals to and/or from locations in and outside the City of Weyauwega, Wisconsin.
- CITY COUNCIL
- The duly elected City Council of the City of Weyauwega.
- A recipient of a grant of franchise which shall be considered a public utility for purposes of City ordinances.
- A purchaser of any service delivered by the grantee pursuant to this franchise, and "subscriber" shall also include all persons who are not required to pay any fee but receive any service delivered by the grantee pursuant to this franchise.
- Any person using such service, whether such person pays the grantee or is allowed to utilize such service by subscriber.
In order to provide for a maximum degree of flexibility in this franchise, which covers a field that is relatively new and rapidly changing and which probably will see many regulatory, technical, financial, marketing and legal changes during the term of this franchise, and to help achieve a continued advanced and modern system for the City of Weyauwega, the following terms and conditions are part of any franchise hereby granted pursuant to this chapter:
At the option of the City of Weyauwega, three years prior to the expiration of this franchise, at a regular or special City Council meeting, the City and the grantee shall, at the City's option, meet to discuss application of new technologies, system performances, services provided, programming offered, customer complaints, privacy in human rights, amendments to this chapter, undergrounding progress and judicial and FCC rulings. The parties may renegotiate any of the above provisions at that time.
The City Council, administrative personnel, the public or the grantee may add further topics to the list recited in Subsection A above.
It is the presumed intent of the City that the City will extend a franchise granted under this chapter if, upon the review set forth in Subsection A above, the performance of the grantee as required by this chapter has been satisfactory.
Power to terminate. The Council may terminate any franchise granted pursuant to the provisions of this chapter in the event of the willful failure, refusal or neglect by the grantee to do or comply with any material requirement or limitation contained in this chapter, applicable state regulations, or FCC rules and regulations.
Procedure for termination.
Whenever any of the above-mentioned circumstances occur or exist, the Council may direct any appropriate officer, agent or employee of the City to make written demand upon the grantee that said grantee do or comply with any aforementioned requirement, limitation, term, condition, rule or regulation. The written notice shall direct that such action or compliance occur within 30 days of the date of the written demand and, if the same does not occur, that the Council will act to terminate the franchise.
After such thirty-day period and upon the refusal, failure or neglect of the grantee to comply with the requirements set forth in the written demand, the Council may summon the grantee to appear before it at a regular or special meeting of such Council for the purpose of holding a public hearing to determine whether such franchise shall be terminated. Such summons shall be served upon the grantee at least 10 days prior to the date for such regular or special meeting. Upon the completion of testimony at such hearing the Council shall determine whether any act, failure, refusal or neglect by the grantee occurred with or without cause. If just cause exists for such act, failure, refusal or neglect, the Council may order a reasonable time within which compliance may occur. If such act, failure, refusal or neglect occurs without just cause, the Council may find and determine that the franchise shall be terminated and adopt an ordinance providing for termination.
No transfer of effective ownership or control of the cable system may take place, whether by forced or voluntary sale, lease, mortgage, assignment, encumbrance or any other form of disposition, without prior notice to the City Council. The City Council's refusal to approve must not be unreasonably withheld. The grantee's notice to the City Council shall include the full identifying particulars of the proposed transaction. The acquisition within a consecutive period of 36 months of more than 30% interest in the grantee's voting stock, franchise, plant, equipment, or other property used in the conduct of the business, or more than a thirty-percent representation of the grantee's board of directors, by any person or group of persons acting in concert who before that time did not enjoy such interest or representation shall conclusively be presumed a transfer of effective ownership or control. The term "transfer of effective ownership or control" shall not include the disposition of facilities or equipment no longer required in the conduct of the grantee's business nor ownership of all or part of the system's assets to a lender or creditor in the ordinary course of business so long as the lender or creditor does not thereby acquire the right to control and direct the system's operations.
The franchise is for the present territorial limits of the City of Weyauwega and for any henceforth added thereto during the term of this franchise.
No monitoring of any terminal connected to the system shall take place without specific written authorization by the user of the terminal in question on each occasion and without written notice to the City.
Grantee shall not, except as required by governmental action, provide any data concerning specific subscribers or users or their use of its services without first securing written authorization for the provision of such data.
The subscriber or user shall retain the right to deactivate his or her terminal but shall continue to be responsible for charges until the grantee is notified to terminate service.
The grantee's operations shall conform to the technical standards set by the federal government. The grantee shall maintain on file consistent with the rules of the federal government all testing results which shall be open to inspection by the City Council. The grantee shall, upon request, inform the City of any audit by an employee of the federal government together with the name(s) of the employee(s) who conducted such audit. The grantee shall perform all tests required by the federal government which are now in effect or which may be required in the future.
The grantee shall keep a record of complaints received and shall make available to the City upon request a compilation of such complaints showing when received and the general nature of the complaint. Individual names will not be used, but it shall be possible to ascertain the action taken to satisfy the complainant.
The grantee shall maintain an office, which shall be open during all business hours, have a locally listed telephone number and be so operated that complaints and requests for repairs or adjustments may be received on a twenty-four-hour basis. The grantee shall maintain a repair and maintenance crew capable of responding to subscriber complaints or requests for service within 24 hours after receipt of the complaint or request. No charge shall be made to the subscriber for this service.
The grantee shall, after the installation of the cable system, provide the City with a map showing the exact location of the system, together with a description indicating whether cables are above or below ground level. This map shall be revised when any changes are made in the system.
The grantee may charge and collect monthly service and installation charges as established from time to time. The charges made to subscribers shall be fair, reasonable, nondiscriminatory, and no higher than necessary to meet all costs of service (assuming sufficient and economical management) and provide a fair return on the grantee's investment devoted to such service.
If the grantee desires to increase the existing rates it shall provide the City with notice, in writing, at least 90 days prior to the proposed effective date of such increase.
The City may, upon notification of a proposed increase, request, and the grantee shall provide, information in writing concerning the current and projected operating income and expense and a written statement in support of the proposed increase; this statement shall be provided within 30 days after the request.
The grantee's request for a rate increase shall be published in the minutes of the City Council meeting at which said request is given to the City Council.
If 2% or more of the subscribers of the grantee petition the City Council for a hearing to object to the proposed rate increase, the City shall set a date for said hearing and publish the notice thereof as a first-class notice under § 985.07(1), Wis. Stats.
If the City Council does not receive a petition objecting to the rate increase, it may raise its own objection and set a date for hearing.
Any requested rate increase not objected to, as provided, shall become effective 90 days after notice is received by the City.
The grantee, upon written acceptance of this franchise, is hereby granted the right to erect, maintain, and operate in the streets, alleys and utility easements of the City of Weyauwega and other public places a cable system. The poles used for such distribution shall be those erected or used by the local utilities. The grantee may erect its own poles if the City's permission is first obtained. The City shall be permitted the use of any pole erected by the grantee so long as the use does not interfere with the grantee's use.
All installations made by the grantee shall be made in good, substantial, safe condition and maintained in such condition at all times. The grantee shall make no excavations in the streets, alleys, and any other public places without first procuring a written permit from the City Engineer or other authorized representative of the City, and all work of such kind shall be done under the supervision of the City authorities and so as to meet the approval of the City's engineer.
The grantee's transmission and distribution system poles, wires and appurtenances shall be located, erected and maintained so as not to interfere with the lives or safety of persons or to interfere with new improvements the City may deem proper to make or to unnecessarily hinder or obstruct the free use of the streets, alleys, bridges, or other public property. Removal of poles to avoid such interference will be at the grantee's expense.
All land shall be substantially restored to the condition which existed prior to the beginning of construction and/or excavation.
The company shall utilize the easements of other public utilities when possible and shall obtain the written permission of the utility for said use and the landowner's consent if required by said utility easement.
All easements required from the subscribers or nonsubscribers shall be on standard forms supplied by the company and approved by the City Council or City Attorney.
Commencement and completion of construction.
Within 30 days of the date of the award of this franchise, the grantee must advise the City in writing of its acceptance of the franchise and must undertake the necessary steps to secure authorization to operate from the appropriate governmental agencies regulating cable service. If authorization to operate is not received within 12 months of the date of franchise, the franchise may be cancelled at the option of the City.
Service shall be afforded to the degree of at least 75% of the proposed system no later than 12 months following the appropriate governmental agency's grant of authorization. If this state of completion is not met, the City Council may cancel the franchise.
The grantee shall have the authority to trim trees upon and overhanging streets, alleys, sidewalks and other public places of the City so as to prevent the branches of such trees from coming in contact with the wires and cables of the company. The grantee may contract for such services.
Indemnification. The grantee shall defend and save the City and its agents and employees harmless from all claims, damages, losses and expenses, including attorney fees, sustained by the City on account of any suit, judgment, execution, claim or demand whatsoever arising out of:
The enactment of this chapter and granting of a franchise thereunder, except such claims as may arise from the City's selection of the franchise.
The installation, operation, or maintenance of the cable television network, except for acts of the City, its agents or employees, unless said acts are the request of and under the direction or supervision of grantee.
Liability insurance. All grantees shall maintain throughout the term of the permit/franchise a general comprehensive liability insurance policy naming as the additional insured the City, its officers, boards, commissions, agents and employees, in a company approved by the City Council and in a form satisfactory to the City Attorney, protecting the City and its agencies and employees against liability for loss or damage for personal injury, death or property damage occasioned by the operations of the grantee under any franchise granted hereunder, in the amounts of $500,000 for bodily injury or death to any one person, with the limit, however, of $1,000,000 for bodily injury or death resulting from any one accident, and $500,000 for property damage resulting from any one accident.
The grantee shall pay to the City of Weyauwega annually in January 3% of gross subscriber revenue. Annually an independent auditor shall certify the amount of the grantee's revenues from all cable services in order to verify the fee paid pursuant hereto.
The grantee shall grant to the City, free of expense, joint use of any and all poles owned by it for any proper municipal purposes, insofar as it may be done without interfering with the free use and enjoyment of the company's own wires and fixtures, and the City shall hold the company harmless from any and all actions, causes of action, or damage caused by the placing of the City's wires and appurtenances upon the poles of the company. Proper regard shall be given to all existing safety rules governing construction and maintenance in effect at the time of construction.
During the term of this franchise, the grantee shall provide free service to any and all schools, whether private, public or parochial, and to libraries within the area of this franchise. The grantee may charge for usual installation costs.
The grantee shall provide at least one dedicated, noncommercial public access channel and associated production equipment to be made available to the public at all times on a nondiscriminatory basis.
The grantee shall not be responsible for the production costs.
Unauthorized connections prohibited. It shall be unlawful for any firm, person, group, company, corporation, or governmental body or agency, without the expressed consent of the grantee, to make or possess any connection, extension, or division, whether physically, acoustically, inductively, electronically or otherwise, with or to any segment of a cable television system for any purpose whatsoever. However, this section shall not be construed to apply to any signal receptions by unmodified television sets.
Removal or destruction prohibited. It shall be unlawful for any firm, person, group, company, corporation, or governmental body or agency to willfully interfere or tamper with, remove, obstruct or damage any part, segment or content of a cable television system for any purpose whatsoever.
Forfeiture. Any person violating this section shall forfeit an amount not greater than $500 per occurrence. Each continuing day of the occurrence shall be considered a separate violation.
Should any word, phrase, clause, sentence, paragraph or portion of this chapter and franchise be declared to be invalid by a court of competent jurisdiction, such adjudication shall not affect the validity of this chapter and franchise as a whole but shall only affect the portion thereof declared to be invalid, and the City Council hereby expressly states and declares that it would nonetheless have passed this ordinance and granted this franchise had it known that any such word, phrase, clause, sentence, paragraph or portion of said franchise was invalid.
In the event that this franchise terminates and neither the City nor anyone else purchases the grantee's cable system, the grantee shall remove its cables, wires, and appliances from the streets, alleys, public ways and places within the City, except any underground cables, appliances or other appurtenances.
By its acceptance of the franchise, the grantee specifically agrees that its application is hereby incorporated by reference and made a part of this chapter. In the event of a conflict between a proposed service listed in said application and the provisions of this chapter, that provision which provides the greatest benefit to the City, in the opinion of the City Council, shall prevail. Failure to provide services as promised in the grantee's application, as herein incorporated, shall be deemed a violation of this chapter.
This franchise shall be amended to incorporate all amendments to the statutes, rules and regulations of the federal government as they are promulgated by the federal government. Any provision herein in conflict with or preempted by said rules and regulations or statutes shall be superseded.
In addition to the procedures specified in § 218-6, the following shall be in effect:
After notice and hearing, the City may reduce any or all of the subscriber rates if the grantee fails to provide the services specified in this chapter or fails to comply with any applicable government regulation. Additionally, the City may require the grantee to forfeit a sum not to exceed $500 per day for such failure. The grantee is not responsible for failure to provide adequate service which is caused by acts of God, strikes, governmental or military action, or other conditions beyond its control, including the lack of materials or parts.
Upon interruption of service, except for acts of God or with express prior permission of the City, the following shall apply:
The grantee shall, within 60 days of the acceptance of this franchise, file a plan with the City for the initial installation of cable. Following such initial installation, the grantee shall not be obligated to extend its cable network to additional subscribers unless the proposed subscribers shall be located within 300 feet of the existing network or unless at least 19 additional subscribers will be serviced per mile of cable extension required. In instances wherein the grantee is not required to provide service pursuant to this subsection, the grantee and subscriber may nevertheless contract to have service provided on terms and conditions agreeable to both the subscriber and grantee.