[HISTORY: Adopted by the Town Board of the Town of Holland 6-12-2000.
Amendments noted where applicable.]
This chapter shall be known and may be cited as the "Holland Cable Television
Franchise Ordinance," hereinafter "this chapter."
For the purpose of this chapter, the following terms, phrases, words
and their derivations shall have the meanings given herein. "May" is permissive;
"shall" is mandatory.
Any subscriber tier provided by the grantee which includes the delivery
of local broadcast stations and public, educational and governmental access
channels. The basic service does not include optional program and satellite
service tiers, a la carte services, or 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 system of antennas, cables, wires, lines, towers, wave guides,
or other conductors, converters, equipment or facilities designed and constructed
for the purpose of producing, receiving, transmitting, amplifying and distributing
audio, video, and other forms of electronic, electrical or optical signals,
which includes cable television service and which is located in the Town.
The definition shall not include any such facility that serves or will serve
only subscribers in one or more multiple-unit dwellings under common ownership,
control or management and which does not use Town rights-of-way.
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 10% 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.
The Federal Communications Commission and any legally appointed,
designated or elected agent or successor.
A person or entity to whom or to which a franchise under this chapter
is granted by the Town, along with the lawful successors or assigns of such
person or entity.
All service fees, installation charges, and all other fees or charges
collected from the provision of cable services to subscribers of the system.
"Gross revenues" shall not include excise taxes or sales taxes or any other
taxes or fees, including the franchise fee, which are imposed on the grantee
or any subscriber by any governmental unit and collected by the grantee for
such governmental unit.
All areas in the Town having at least 20 dwelling units per street
mile.
The connection of the system from feeder cable to subscribers' terminals.
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
that "monitoring" shall not include system-wide, nonindividually addressed
sweeps of the system for purposes of verifying system integrity, controlling
return path transmissions, or billing for pay services.
As applied to the grantee, shall mean those hours during which similar
businesses in the Town 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.
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, drive or easement now or hereafter
held by the Town 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 Town
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 telecommunications
system.
Any person, firm, grantee, corporation, or association lawfully receiving
basic and/or any additional service from a grantee.
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.
The Town of Holland, Wisconsin.
Any franchise granted by the Town 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
term, 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 Town, 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. In the event of a conflict
between such proposals and the provisions of this chapter, that provision
which provides the greatest benefit to the Town, in the opinion of the Town,
shall prevail.
Any franchise is for the present territorial limits of the Town and
for any area henceforth added thereto during the term of the franchise.
The franchise and the rights, privileges and authority granted shall
take effect and be in force as set forth in the franchise agreement and shall
continue in force and effect for a term of no longer than 15 years, provided
that within 15 days after the date of final passage of the franchise the grantee
shall file with the Town 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 and sworn to,
by, or on behalf of the grantee before a notary public or other officer authorized
by law to administer oaths. Such franchise shall be nonexclusive and revocable.
A.
Current federal statutory process.
(1)
The Town may, on its own initiative, during the six-month
period which begins with the 36th month before the franchise expiration, commence
a proceeding which affords the public in the Town appropriate notice and participation
for the purpose of identifying the future cable-related community needs and
interests and reviewing the performance of the grantee under the franchise.
If the grantee submits, during such six-month period, a written renewal notice
requesting the commencement of such proceeding, the Town shall commence such
proceeding not later than six months after the date such notice is submitted.
(2)
Upon completion of the proceeding under Subsection A(1) above, the grantee may, on its own initiative or at the request of the Town, submit a proposal for renewal. The Town may establish a date by which such proposal shall be submitted.
(3)
Upon submittal by the grantee of a proposal to the Town
for the renewal of the franchise, the Town shall provide prompt, public notice
of such proposal and renew the franchise or issue a preliminary assessment
that the franchise should not be renewed and, at the request of the grantee
or on its own initiative, commence an administrative proceeding, after providing
prompt, public notice of such proceeding.
(4)
The Town shall consider in any administrative proceeding
whether:
(a)
The grantee has substantially complied with material
terms of the existing franchise and with applicable law;
(b)
The quality of the grantee's service, including signal
quality, response to consumer complaints and billing practices, but without
regard to the mix or quality of cable services or other services provided
over the system, has been reasonable in the light of community needs;
(c)
The grantee has the financial, legal and technical ability
to provide the services, facilities and equipment as set forth in the grantee's
proposal; and
(d)
The grantee's proposal is reasonable to meet the future
cable-related community needs and interests, taking into account the costs
of meeting such needs and interests.
(5)
In any administrative proceeding described in Subsection A(4), the grantee shall be afforded adequate notice and the grantee and the Town, or its designee, shall be afforded fair opportunity for full participation, including the right to introduce evidence [including evidence related to issues raised in the proceedings under Subsection A(4) above], to require the production of evidence and to question witnesses. A transcript shall be made of any such proceeding.
(6)
At the completion of a proceeding under Subsection A(4), the Town shall issue a written decision granting or denying the proposal for renewal based upon the record of such proceeding and transmit a copy of such decision to the grantee. Such decision shall state the reasons therefor.
(7)
Any denial of a proposal for renewal that has been submitted in compliance with the procedures set forth above shall be based on one or more adverse findings made with respect to the factors described at Subsection A(4)(a) through (d) pursuant to the record of the proceeding under said subsection. The Town may not base a denial of renewal on a failure to substantially comply with the material terms of the franchise or on events considered under Subsection A(4)(b) unless the Town has provided the grantee with notice and the opportunity to cure or in any case in which it is documented that the Town has waived its right to object.
(8)
The grantee may appeal any final decision or failure
of the Town to act in accordance with the procedural requirements of this
section. The court shall grant appropriate relief if the court finds that:
(a)
Any action of the Town is not in compliance with the
procedural requirements of this section; or
(b)
In the event of a final decision of the Town denying the renewal proposal, the grantee has demonstrated that the adverse finding of the Town with respect to each of the factors described in Subsection A(4)(a) through (d) on which the denial is based is not supported by a preponderance of the evidence, based on the record of the administrative proceeding.
B.
Franchise renewal in the event of change in federal law.
A franchise may be renewed by the Town upon application of the grantee pursuant
to the procedure established in this section and in accordance with the then
applicable law.
(1)
At least 24 months prior to the expiration of the franchise,
the grantee shall inform the Town in writing of its intent to seek renewal
of the franchise.
(2)
The grantee shall submit a proposal for renewal which
demonstrates that:
(a)
It has been and continues to be in substantial compliance
with the terms, conditions, and limitations of this chapter and its franchise;
(b)
Its system has been installed, constructed, maintained
and operated in accordance with the accepted standards of the industry and
this chapter and its franchise;
(c)
It has the legal, technical, financial, and other qualifications
to continue to maintain and operate its system and to extend the same as the
state of the art progresses so as to assure its subscribers high-quality service;
and
(d)
It has made a good faith effort to provide services and
facilities which accommodate the demonstrated needs of the community as may
be reasonably ascertained by the Town.
(3)
After giving public notice, the Town shall proceed to
determine whether the grantee has satisfactorily performed its obligations
under the franchise. To determine satisfactory performance, the Town shall
consider technical developments and performance of the system, programming,
other services offered, cost of services, and any other particular requirements
set in this chapter; also, the Town shall consider the grantee's reports made
to the Town and the Federal Communication Commission, 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; industry performance on a national
basis shall also be considered. Provision shall be made for public comment.
(4)
The Town shall then prepare any amendments to this chapter
that it believes necessary.
(5)
If the Town finds the grantee's performance satisfactory,
and finds the grantee's technical, legal, and financial abilities acceptable,
and finds the grantee's renewal proposal meets the future cable-related needs
of the Town, a new franchise shall be granted pursuant to this chapter as
amended for a period to be determined.
(6)
If the grantee is determined by the Town to have performed
unsatisfactorily, new applicants may be sought and evaluated and a franchise
award shall be made by the Town according to franchising procedures adopted
by the Town.
A.
In accepting the franchise, the grantee shall acknowledge
that its rights hereunder are subject to the police power of the Town to adopt
and enforce general ordinances necessary to the safety and welfare of the
public and shall agree to comply with all applicable general laws and ordinances
enacted by the Town pursuant to such power.
B.
Any conflict between the provisions of this chapter and
any other present or future lawful exercise of the Town'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 system, which contains provisions inconsistent
with the franchise, shall prevail only if upon such exercise the Town finds
that 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 occupy or use the streets,
i.e. rights-of-way, for system installation and maintenance purposes, of the
Town or be allowed to operate without a franchise.
The Town shall have the right, during the life of the franchise, to
install and maintain free of charge upon the poles of the grantee any wire
or pole fixtures that do not unreasonably interfere with the cable television
system operations of the grantee. The Town shall indemnify and hold harmless
the grantee from any claim that might arise due to or as a result of the Town'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 publications of notices prior to any public
meeting provided for pursuant to this chapter and any costs not covered by
application fees incurred by the Town in its study, preparation of proposal
documents, evaluation of all applications, and examinations of the applicants'
qualifications.
All notices from the grantee to the Town pursuant to this chapter shall
be to the Town Clerk's office. The grantee shall maintain with the Town, throughout
the term of the 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 chapter.
A.
Within 15 days after the award of the initial franchise,
the grantee shall deposit with the Town either an irrevocable letter of credit
from a financial institution or a security deposit in the amount of $50,000
with the form to be established by the Town. The form and content of such
letter of credit or security deposit shall be approved by the Town Attorney.
These instruments shall be used to insure the faithful performance of the
grantee of all provisions of the franchise, and compliance with all orders,
permits and directions of any agency, commission, board, department, division,
or office of the Town having jurisdiction over its acts or defaults under
the franchise, and the payment by the grantee of any claims, liens, and taxes
due the Town which arise by reason of the construction, operation or maintenance
of the system.
C.
If the grantee fails to pay to the Town any compensation
within the time fixed herein, or fails after 15 days' notice to pay to the
Town any taxes due and unpaid, or fails to repay the Town within 15 days any
damages, costs or expenses which the Town is compelled to pay by reason of
any act or default of the grantee in connection with the franchise, or fails,
after three days' notice of such failure by the Town, to comply with any provision
of this chapter which the Town reasonably determines can be remedied by demand
on the letter of credit or security deposit, the Town may immediately request
payment of the amount thereof, with interest and any penalties, from the letter
of credit or security deposit. Upon such request for payment, the Town shall
notify the grantee of the amount and date thereof.
D.
The rights reserved to the Town with respect to the letter
of credit are in addition to all other rights of the Town, whether reserved
by this chapter or authorized by law, and no action, proceeding or exercise
of a right with respect to such letter of credit shall affect any other right
the Town may have.
E.
The letter of credit shall contain the following endorsement:
"It is hereby understood and agreed that this letter of credit or security
deposit 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 Town, by registered
mail, of a written notice of such intention to cancel or not to renew."
F.
Upon receipt of the above-referenced notice, this shall
be construed as a default granting the Town the right to call on the bank
for either the security deposit or letter of credit.
G.
The Town, at any time during the term of this chapter,
may waive the grantee's requirement to maintain a letter of credit or security
deposit. The invitation to waive the requirement can be initiated by the Town
or grantee.
A.
Within 30 days after the award of the franchise, the
initial grantee shall file with the Town a performance bond in the amount
of not less than 50% of costs to install the system contained in the new application
in favor of the Town. This bond shall be maintained throughout the construction
period and until such time as determined by the Town, 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 well and truly 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 Town 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 fees, including the Town's legal staff, and costs, up to the full amount of the bond. This section shall be an additional remedy for any and all violations outlined in § 157-13.
C.
The Town may, upon completion of construction of the
service area, waive or reduce the requirement of the grantee to maintain the
bond. However, the Town may require a performance bond to be posted by the
grantee for any construction subsequent to the completion of the initial service
areas, in a reasonable amount and upon such terms as determined by the Town.
D.
The bond shall contain the following endorsement: "It
is hereby understood and agreed 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 Town, by registered mail, of a written notice of such
intent to cancel and not to renew." Upon receipt of a thirty-day notice, this
shall be construed as default granting the Town the right to call in the bond.
E.
The Town, at any time during the term of this chapter,
may waive the grantee's requirement to maintain a performance bond. The invitation
to waive the requirement can be initiated by the Town or grantee.
A.
The grantee shall maintain and by its acceptance of the
franchise specifically agrees that it will maintain throughout the term of
the franchise liability insurance insuring the Town and the grantee in the
minimum amount of:
B.
The certificate of insurance obtained by the grantee
in compliance with this section is subject to the approval of the Town Attorney,
and such certificate of insurance, along with written evidence of payment
of required premiums, shall be filed and maintained with the Town during the
term of the franchise and may be changed from time to time to reflect changing
liability limits. The grantee shall immediately advise the Town 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 Town thereunder shall be construed to or limit the liability
of the grantee under any franchise issued hereunder or for damages.
D.
All insurance policies maintained pursuant to this chapter
shall contain the following endorsement: "It is hereby understood and agreed
that this insurance policy 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 Town,
by registered mail, of a written notice of such intention to cancel or not
to renew."
A.
Disclaimer of liability. The Town 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 telecommunications system
and due to the act or omission of any person or entity other than the Town
or those persons or entities for which the Town is legally liable as a matter
of law.
B.
Indemnification. The grantee shall, at its sole cost
and expense, indemnify and hold harmless the Town, the Commission, all associated,
affiliated, allied and subsidiary entities of the Town, now existing or hereinafter
created, and their respective officers, boards, commissions, employees, agents,
attorneys, and contractors (hereinafter referred to as "indemnities") from
and against:
(1)
Any and all liability, obligation, 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, firm or corporation which may
arise out of or be in any way connected with the construction, installation,
operation, maintenance or condition of the telecommunications system caused
by the grantee, its subcontractors or agents or the grantee's failure to comply
with any federal, state or local statute, ordinance or regulation.
(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)
which are imposed upon, incurred by or asserted against the 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 telecommunications
system caused by the grantee, its subcontractors or agents and, upon the written
request of the Commission, shall cause such claim or lien to be discharged
or bonded within 15 days following such request.
(3)
Any and all liability, obligation, 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 Town to the grantee in writing and included in
the offering materials with the express written approval of the Town 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 Town-owned or -controlled
property, including 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 telecommunications system or the grantee's failure to
comply with any federal, state or local statute, ordinance or regulation.
D.
Defense of indemnities. In the event that any action
or proceeding shall be brought against 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,
resist and defend the same with legal counsel mutually acceptable to the Town
Attorney of the Town of Holland and the grantee; 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 Town Attorney of the Town
of Holland or the Town Attorney's designee.
E.
Notice cooperation and expenses. The Town 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 Town from cooperating with the
grantee and participating in the defense of any litigation by the Town's own
counsel. The grantee shall pay all reasonable expenses incurred by the Town
in defending itself with regard to any such actions, suits or proceedings.
These expenses shall include all out-of-pocket expenses, such as attorney
fees, and shall also include the reasonable value of any service rendered
by or on behalf of the Town Attorney, if such service is determined necessary
and appropriate by the Town Attorney, and the actual expenses of the Town's
agents, employees or expert witnesses, and disbursements and liabilities assumed
by the Town in connection with such suits, actions or proceedings. No recovery
by the Town of any sum under the letter of credit shall be any limitation
upon the liability of the grantee to the Town under the terms of this section,
except that any sum so received by the Town shall be deducted from any recovery
which the Town 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 Town as exist presently or may be increased
from time to time by the Legislature.
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, and as amended from time to time.
C.
The grantee shall, at all times, comply with the privacy
requirements of state and federal law.
D.
The grantee is required to make all services available
to all residential dwellings throughout the service area.
Minimum public notice of any public meeting relating to this chapter
shall be by publication at least once in a local newspaper of general circulation
at least 10 days prior to the meeting and by posting at the Town Hall.
The grantee shall provide cable communications service throughout the
entire franchise area pursuant to the provisions of this chapter and shall
keep a record for at least three years of all 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 said schedule will be made part of the franchise agreement and
will be binding upon the grantee.
(4)
In special circumstances the Town can waive 100% completion
within the two-year time frame provided that 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 Town.
B.
Line extensions.
(1)
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 Town. To expedite the process of extending the cable system into a new
subdivision, the Town 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 Town 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 20 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-seventy-five-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
upon request of the potential subscriber. The grantee may require advance
payment or assurance of payment satisfactory to the grantee. The amount paid
by subscribers for early extensions shall be nonrefundable, and in the event
the area subsequently reaches the density required for mandatory extension,
such payments shall be treated as consideration for early extension.
(3)
New development underground. 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 Town 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. 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 3% of those gross revenues are paid to the Town as franchise fees under § 157-27.
(1)
The grantee, in its application, may propose a line extension
policy which will result in serving more residents of the Town 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 Town, 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 structures 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.
(6)
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 head end and transport system for a minimum of two hours.
(8)
In all areas of the Town 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 cable
operator 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 convenience of property
owners who adjoin any of the streets and public ways, or interfere with any
improvements the Town 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, the grantee
shall, at its own cost and expense and in a manner approved by the Town, 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 Town.
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 Town 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 or structures shall be removed or modified by the grantee at
its own expense whenever the Town determines that the public convenience would
be enhanced thereby.
(2)
Where poles or other wire-holding structures already
existing for use in serving the Town are available for use by the grantee
but it does not make arrangements for such use, the Town 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)
In the absence of any governing federal or state statute,
where the Town or a public utility serving the Town desires to make use of
the poles or other wire-holding structures of the grantee but agreement therefor
with the grantee cannot be reached, the Town may require the grantee to permit
such use for such consideration and upon such terms as the Town shall determine
to be just and reasonable, if the Town determines that the use would enhance
the public convenience and would not unduly interfere with the grantee's operations.
D.
Relocation of the facilities. If at any time during the
period of the franchise the Town shall lawfully elect to alter or change the
grade of any street, alley or other public ways, the grantee, upon reasonable
notice by the Town, shall remove or relocate as necessary its poles, wires,
cables, underground conduits, manholes and other fixtures at its own expense,
unless the utilities are compensated, in which case the grantee shall be similarly
compensated.
E.
Cooperation with building movers. The grantee shall,
on the request of any person holding a building moving permit issued by the
Town, 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 not
less than 48 hours' advance notice to arrange for such temporary wire changes.
F.
Tree trimming. The grantee shall not remove any tree
or trim any portion, either above, at or below ground level, of any tree within
any public place without the prior consent of the Town. The Town 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 and shall defend and hold the Town 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.
A.
The grantee shall put, keep and 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 franchise territory, the grantee shall, within 30 days,
furnish the requested service to such person within terms of the line extension
policy. A request for service shall be unreasonable for the purpose of this
subsection if no trunk line installation capable of servicing that person's
block has as yet been installed.
C.
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.
D.
The grantee shall not allow its cable or other operations
to interfere with television reception of subscribers or persons not served
by the grantee, nor shall the system interfere with, obstruct or hinder in
any manner the operation of the various utilities serving the residents within
the confines of the Town, nor shall other utilities interfere with the grantee's
system.
E.
The grantee shall have knowledgeable, qualified grantee
representatives available to respond to customer telephone inquiries 24 hours
per day and seven days per week no later than June 2001.
F.
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.
G.
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.
H.
Standard installations will be performed within seven
business days after an order has been placed. A standard installation is one
that is within 175 feet of the existing system.
I.
Excluding those situations which 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 workweek
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 will 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.
J.
Customer service centers and bill payment locations will
be open for walk-in customer transactions a minimum of eight hours a day Monday
through Friday, unless there is a need to modify those hours because of the
location or customers served. The grantee and Town by mutual consent will
establish supplemental hours on weekdays and weekends if it would fit the
needs of the community.
K.
Subscriber credit for outages. Upon service interruption
and/or outages of subscriber's cable service, the following shall apply:
(1)
For service interruptions and/or outages of over four
hours and up to seven days, the grantee shall provide, at the subscriber's
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 and/or outages of seven days
or more in one month, the grantee shall provide, at the subscriber's request,
a full month's credit for affected services for all affected subscribers.
L.
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 the customer:
M.
Bills will be clear, concise and understandable, with
all cable services itemized.
N.
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.
O.
Customers will be notified a minimum of 30 days in advance
of any rate or channel change, provided that the change is within the control
of the grantee.
P.
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 Communication Commissions, the United States
Congress, or the State of Wisconsin.
Q.
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 Town find, by resolution, that the grantee has failed to maintain these technical standards and quality of service, the 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 § 157-45 are applicable.
R.
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 Town.
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 Town gives notice of intent to terminate or fails
to renew the 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 Town, new franchisee
or operator in maintaining continuity of service to all subscribers. During
such period, the grantee shall be entitled to the revenues for any period
during which it operates the system and shall be entitled to reasonable costs
for its services until it no longer operates the system.
C.
If the grantee fails to operate the system for seven
consecutive days without prior approval of the Town or without just cause,
the Town may, at its option, operate the system or designate an operator until
such time as the grantee restores service under conditions acceptable to the
Town or a permanent operator is selected. If the Town is required to fulfill
this obligation for the grantee, the grantee shall reimburse the Town for
all reasonable costs or damages in excess of revenues from the system received
by the Town that are the result of the grantee's failure to perform.
A.
The Town Clerk is designated as having 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, toll-free telephone
call to receive complaints regarding quality of service, equipment malfunctions
and similar matters. The grantee will use its good faith efforts to arrange
for one or more payment locations in a central location where customers 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 Town, casts doubt
on the reliability or quality of cable service, the Town 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 Town in performing
such testing and shall prepare results and a report, if requested, within
30 days after notice.
(1)
Such report shall include the following information:
(a)
The nature of the complaint or problem which precipitated
the special tests;
(b)
What system component was tested;
(c)
The equipment used and procedures employed in testing;
(d)
The method, if any, in which such complaint or problem
was resolved; and
(e)
Any other information pertinent to the tests and analysis
which may be required.
(2)
The Town may require that tests be supervised by an independent
professional engineer or equivalent of the Town's choice. The engineer should
sign all records of special tests and forward to the Town such records with
a report interpreting the results of the tests and recommending actions to
be taken. Should such a test prove that the grantee failed to meet the technical
standard, the grantee shall bear the cost of the test. If the test should
prove that the grantee met the technical standards, the Town shall bear the
cost of the test.
(3)
The Town'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 Town has reasonable grounds to believe that the complaints or other evidence
requires 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 the 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.
For the reason that the streets of the Town to be used
by the grantee in the operation of its system within the boundaries of the
Town are valuable public properties acquired and maintained by the Town at
great expense to its taxpayers, and that the grant to the grantee of the streets
is a valuable property right without which the grantee would be required to
invest substantial capital in right-of-way costs and acquisitions, the grantee
shall pay to the Town an amount equal to 3% of the grantee's gross annual
revenue from the operations of the grantee within the confines of the Town
or contract area. If the statutory five-percent limitation on franchise fees
is raised or the federal statute deletes the franchise fee limitation entirely,
then the franchise fee may be subject to renegotiation.
B.
This payment shall be in addition to any other tax or
payment owed to the Town by the grantee.
C.
The franchise fee and any other costs or penalties assessed
shall be payable annually on a calendar year basis to the Town within 45 days
after the end of the year, and the grantee shall file a complete and accurate
verified statement of all gross receipts as previously defined within 45 days
after the end of the year or as established between the Town and the grantee.
D.
The Town shall have the right to inspect the grantee's
income records and the right to audit and to recompute any amounts determined
to be payable under this chapter; provided, however, that such audit shall
take place within 24 months following the close of each of the grantee's fiscal
years. Any additional amount due to the Town as a result of the audit shall
be paid within 30 days following written notice to the grantee by the Town,
which notice shall include a copy of the audit report.
E.
If any franchise payment or recomputed amount, cost or
penalty is not made on or before the applicable dates heretofore specified,
interest shall be charged daily from such date at the legal maximum rate charged
by the United States Internal Revenue service for late tax payments, and the
grantee shall reimburse the Town for any additional expenses and costs incurred
by the Town by reason of the delinquent payment(s).
A.
Except as may be provided in a franchise agreement, the
franchise shall not be assigned or transferred, either in whole or in 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 without the prior written consent of the Town. 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, provided that such assignment is without
any release of liability of the grantee. The proposed assignee must show financial
responsibility as determined by the Town and must agree to comply with all
provisions of the franchise. The Town shall have 120 days to act upon any
request for approval of such a 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 Town of Holland. The Town 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
Town agree to an extension of time. The Town shall not unreasonably withhold
such consent to the proposed transfer.
B.
Except as may be provided in a franchise agreement, the
grantee shall promptly notify the Town 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 10% 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 Town
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 Town may inquire into the qualification of
the prospective controlling party, and the grantee shall assist the Town in
such inquiry.
C.
The consent or approval of the Town to any transfer of
the grantee shall not constitute a waiver or release of the rights of the
Town in and to the streets, and any transfer shall, by its terms, be expressly
subordinate to the terms and conditions of the franchise.
D.
In the absence of extraordinary circumstances, the Town
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
be approved without the successor in interest becoming a signatory to the
franchise agreement.
A.
The grantee shall fully cooperate in making available
at reasonable times, and the Town shall have the right to inspect, 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, provided that where volume
and convenience necessitate, the grantee may require inspection to take place
on the grantee's premises.
B.
The following records and/or reports are to be made available
to the Town upon request, but no more frequently than on an annual basis unless
mutually agreed upon by the grantee and the Town:
(1)
A quarterly review and resolution or progress report
submitted by the grantee to the Town;
(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; and
(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 cable television
operations authorized pursuant to the franchise or received from such agencies
shall be provided to the Town upon request.
The grantee shall file annually with the Town, 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 term for which the franchise is granted and
any renewal denied, or upon its termination as provided herein, the grantee
shall forthwith, upon notice by the Town, remove at its own expense all designated
portions of the cable television system from all streets and public property
within the Town. If the grantee fails to do so, the Town 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.
The cable television system shall have a minimum channel
capacity of 77 channels and at least 750 MHz of bandwidth available for future
use.
B.
Such system shall maintain a plant having the technical
capacity for two-way communications.
C.
The grantee shall maintain the following; provided, however,
that these uses may be combined on one or more channels until such time as
additional channels become necessary in the opinion of the Town. Financial
and technical support, replacement and maintenance of equipment of this facility
shall be separately incorporated into a franchise agreement.
(1)
At least one specially designated, noncommercial public
access channel available on a first-come, nondiscriminatory basis.
(2)
At least one specially designated channel for use by
local educational authorities.
(3)
At least one specially designated channel for local governmental
uses.
(4)
At least one specially designated channel for leased
access uses.
(5)
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 subscriber
system.
D.
The grantee shall incorporate into its cable television
system the capacity which will permit the Town, in times of emergency, to
override, by remote control, the audio of all channels simultaneously which
the grantee may lawfully override. The grantee shall provide emergency broadcast
capacity pursuant to FCC rules. The grantee shall cooperate with the Town
in the use and operation of the emergency alert override system.
E.
Interconnection.
(1)
The grantee may be required to interconnect its system
with other adjacent cable television systems for the purpose of sharing public,
educational, and governmental access programming. Such interconnection shall
be made within a reasonable time limit to be established by the Town.
(2)
Interconnection procedure. Upon receiving the directive
of the Town to interconnect, the franchisee shall immediately initiate negotiations
with the other affected system or systems in order that all costs may be shared
equally among cable companies for both construction and operation of the interconnection
link.
(3)
Relief. The franchisee may be granted reasonable extensions
of time to interconnect or the Town may rescind its order to interconnect
upon petition by the franchisee to the Town. The Town shall grant the request
if it finds that the franchisee has negotiated in good faith and has failed
to obtain an approval from the operator or franchising authority of the system
to be interconnected or that the cost of the interconnection would cause an
unreasonable or unacceptable increase in subscriber rates.
(4)
Cooperation required. The grantee shall cooperate with
any interconnection corporation, regional interconnection authority or Town,
county, state and federal regulatory agency which may be hereafter established
for the purpose of regulating, financing, or otherwise providing for the interconnection
of cable systems beyond the boundaries of the Town.
(5)
Initial technical requirements to assure future interconnection
capability.
(a)
All cable systems receiving franchises to operate within
the Town shall use the standard frequency allocations for television signals.
(b)
All cable systems are required to use signal processors
at the head end for each television signal.
(c)
The Town also urges franchisees to provide local origination
equipment that is compatible throughout the area so that videocassettes or
videotapes can be shared by various systems.
(d)
The grantee shall provide such additional services and
facilities as are contained in its application, if any.
A.
In addition to the inherent powers of the Town to regulate
and control the cable television franchise, and those powers expressly reserved
by the Town, or agreed to and provided for herein, the right and power are
hereby reserved by the Town 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.
B.
The Town may also adopt such regulations at the request
of the grantee upon application.
A.
The Town and the grantee may hold scheduled performance
evaluation sessions within 30 days of the third, sixth, and 12th 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 Town or the grantee.
C.
All evaluation sessions shall be open to the public and
announced in a newspaper of general circulation in accordance with 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 fee; 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 Town rules.
E.
Members of the general public may add topics either by
working through the negotiating parties or by presenting a petition. If such
a petition bears the valid signatures of 50 or more residents of the Town,
the proposed topic or topics shall be added to the list of topics to be discussed
at the evaluation session.
A.
In addition to all other rights and powers retained by
the Town under this chapter or otherwise, the Town reserves the right to forfeit
and terminate the franchise and all rights and privileges of the grantee hereunder
in the event of a substantial breach of its terms and conditions. A substantial
breach by the grantee shall include, but shall not be limited to, the following:
(1)
Violation of any material provision of the franchise
or any material rule, order, regulation or determination of the Town made
pursuant to the franchise;
(2)
Attempt to evade any material provision of the franchise
or practice any fraud or deceit upon the Town or its subscribers or customers;
(3)
Failure to begin or complete system construction or system extension as provided under § 157-20;
(4)
Failure to provide the services promised in the grantee's application, if any, as incorporated herein by § 157-4;
(5)
Failure to restore service after 96 consecutive hours
of interrupted service, except when approval of such interruption is obtained
from the Town; or
(6)
Material misrepresentation of fact in the application
for or negotiation of the franchise.
B.
The foregoing shall not constitute a major 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 Town may make a written demand that the grantee comply
with any such provision, rule, order or determination under or pursuant to
this chapter. 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
Town may place the issue of termination of the franchise before the Town Board.
The Town 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 Board is to consider.
D.
The Town Board 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 Town Board shall determine the violation by the
grantee was the fault of the grantee and within its control, the Board may,
by resolution, declare that the franchise of the grantee shall be forfeited
and terminated unless there is compliance within such period as the Board
may fix, which period shall not be less than 60 days, provided that no opportunity
for compliance need be granted for fraud or misrepresentation.
F.
The issue of forfeiture and termination shall automatically
be placed upon the Board agenda at the expiration of the time set by it for
compliance. The Board 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 Town 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 Town to such change in control of the grantee
shall apply.
A.
Federal regulations as per 47 U.S.C. § 537 shall apply to the right of acquisition by the Town. In the event that the relevant federal regulations are repealed, the guidelines specified in Subsection B below shall apply.
B.
Upon the expiration of the term of the franchise and denial of any renewal or upon any other termination thereof as provided herein, the Town, at its election and upon the payment to the grantee of a price equal to the fair market value, shall have the right to purchase and take over the system upon resolution by the Town Board. If the Town has denied the grantee's petition for renewal of its franchise as provided by § 157-7, the Town must exercise its option to purchase the system within 60 days of the denial of renewal and at least six months prior to the end of the franchise. Nothing shall prohibit the grantee, in the event of the election of the Town to purchase the system, from requesting the court to set a reasonable bond of the Town to secure the purchase price. The grantee shall execute such warranty deeds and other instruments as may be necessary.
The Town 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, 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:
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 the 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, that 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 the franchise or of any law or regulation of
the Town, then as soon as possible following knowledge thereof, the grantee
shall notify the Town of the point of conflict believed to exist between such
regulation or law and the laws or regulations of the Town or the franchise.
B.
If the Town determines that a material provision of this
chapter is affected by any subsequent action of the state or federal government,
the Town 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 the agreement.
A.
Interference with cable service prohibited. Neither the
owner of any multiple-unit residential dwelling nor his 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 cable communication grantee regulated by and lawfully operating under a
valid and existing franchise issued by the Town.
B.
Gratuities and payments to permit service prohibited.
Neither the owner of any multiple-unit residential dwelling nor his agent
or representative shall ask, demand or receive any payment, service or gratuity
in any form as a condition for permitting or cooperating with the installation
of a cable communication service to the dwelling unit occupied by a tenant
or resident requesting service.
C.
Penalties and charges to tenants for service prohibited.
Neither the owner of any multiple-unit residential dwelling nor his 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
cable communication franchise issued by the Town.
D.
Reselling service prohibited. No person shall resell,
without the expressed, written consent of both the grantee and the Town, any
cable service, program or signal transmitted by a cable communication grantee
under a franchise issued by the Town.
E.
Protection of property permitted. 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.
F.
Risks assumed by grantee. Nothing in this chapter shall
prohibit a person from requiring a grantee to agree to indemnify the owner
or his agents or representatives for damages or from liability for damages
caused by the installation, operation, maintenance or removal of cable communication
facilities.
A.
All bids received by the Town from the applicants for
an initial franchise will become the sole property of the Town.
B.
The Town reserves the right to reject any and all bids
and waive informalities and/or technicalities where the best interest of the
Town may be served.
C.
All questions regarding the meaning or intent of this
chapter or application documents shall be submitted to the Town in writing.
Replies will be issued by addenda mailed or delivered to all parties recorded
by the Town as having received the application documents. The Town 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 the 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 Town 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 Town all such information and data
for this purpose as the Town may request. The Town reserves the right to reject
any bid if the evidence submitted by, or investigation of, such applicant
fails to satisfy the Town 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 Town and not opened or inspected prior to the public opening.
A.
No initial franchise will be granted to any applicant
unless all requirements and demands of the Town 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 the franchise and the proposed cable television
system. The grantee of the franchise shall disclose all other contracts to
the Town 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 the holders thereof, 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:
A.
No person may intentionally do any of the following:
(1)
Obtain or attempt to obtain cable television service
from a company by trick, artifice, deception, use of an illegal device or
illegal decoder or other fraudulent means with the intent to deprive that
company of any or all lawful compensation for rendering each type of service
obtained. The intent required for a violation of this subsection may be inferred
from the presence on the property and in the actual possession of the defendant
of a device not authorized by the cable television company, the major purpose
of which is to permit reception of cable television services without payment.
This inference is rebutted if the defendant demonstrates that he or she purchased
that device for a legitimate use.
(2)
Give technical assistance or instruction to any person
in obtaining or attempting to obtain any cable television service without
payment of all lawful compensation to the company providing that service.
This subsection does not apply if the defendant demonstrates that the technical
assistance or instruction was given or the installation of the connection,
descrambler or receiving device was for a legitimate use.
(3)
Make or maintain a connection, whether physical, electrical,
mechanical, acoustical or by other means, with any cables, wires, components
or other devices used for the distribution of cable television services for
the purpose of distributing cable television service to any other dwelling
unit without authority from a cable television company.
(4)
Make or maintain a connection, whether physical, electrical,
mechanical, acoustical or by other means, with any cables, wires, components
or other devices used for the distribution of cable television services for
the purpose of obtaining cable television service without payment of all lawful
compensation to the company providing the service. The intent required for
a violation of this subsection may be inferred from proof that the cable service
to the defendant's residence or business was connected under a service agreement
with the defendant and has been disconnected by the cable television company
and that thereafter there exists in fact a connection to the cable system
at the defendant's residence or business.
(5)
Make or maintain any modification or alteration to any
device installed with the authorization of a cable television company for
the purpose of intercepting or receiving any program or other service carried
by that company which that person is not authorized by that company to receive.
The intent required for a violation of this subsection may be inferred from
proof that, as a matter of standard procedure, the cable television company
places written warning labels on its converters or decoders explaining the
tampering with the device is a violation of law and the converter or decoder
is found to have been tampered with, altered or modified so as to allow the
reception or interception of programming carried by the cable television company
without authority to do so. The trier of fact may also infer that a converter
or decoder has been altered or modified from proof that the cable television
company, as a matter of standard procedure, seals the converters or decoders
with a label or mechanical device, that the seal was shown to the customer
upon delivery of the decoder and that the seal has been removed or broken.
The inferences under this subsection are rebutted if the cable television
company cannot demonstrate that the intact seal was shown to the customer.
(6)
Possess without authority any device or printed circuit board designed to receive from a cable television system any cable television programming or services offered for sale over that cable television system, whether or not the programming or services are encoded, filtered, scrambled or otherwise made unintelligible, or perform or facilitate the performance of any of the acts under Subsection A(1) to (5) with the intent that the device or printed circuit be used to receive that cable television company's services without payment. Intent to violate this subsection for direct or indirect commercial advantage or private financial gain may be inferred from proof of the existence on the property and in the actual possession of the defendant of a device if the totality of circumstances, including quantities or volumes, indicates possession for resale.
(7)
Manufacture, import into this state, distribute, publish,
advertise, sell, lease or offer for sale or lease any device, printed circuit
board or any plan or kit for a device or for a printed circuit board designed
to receive the cable television programming or services offered for sale over
a cable television system from a cable television system, whether or not the
programming or services are encoded, filtered, scrambled or otherwise made
unintelligible, with the intent that the device, printed circuit board, plan
or kit be used for the reception of that company's services without payment.
The intent required for a violation of this subsection may be inferred from
proof that the defendant has sold, leased or offered for sale or lease any
device, printed circuit board, plan or kit for a device or for a printed circuit
board in violation of this subsection and during the course of the transaction
for sale or lease the defendant expressly states or implies to the buyer that
the product will enable the buyer to obtain cable television service without
charge.
B.
Civil liability for theft of telecommunications service
(including cable television service.)
(1)
Any person who incurs injury as a result of a violation of this section may bring a civil action against the person who committed the violation. Except as provided in Subsection B(2), if the person who incurs the loss prevails, the court shall grant the prevailing party actual damages, costs and disbursement.
(2)
If the person who incurs the loss prevails against a
person who committed the violation willfully and for the purpose of commercial
advantage or prevails against a person who has committed more than one violation
of this section, the court shall grant the prevailing party all the following:
(b)
Actual damages.
(c)
Any profits of the violators that are attributable to the violation and that are not taken into account in determining the amount of actual damages under Subsection B(2)(b).
(d)
Notwithstanding the limitations under § 799.25
or 814.04, Wis. Stats., costs, disbursement and reasonable attorney fees.
(3)
If damages under Subsection B(2)(c) are requested, the party who incurred the injury shall have the burden of proving the violator's gross revenue and the violator's deductible expenses and the elements of profit attributable to factors other than the violation.
(4)
In addition to other remedies available under this section,
the courts may grant the injured party a temporary or permanent injunction.
For the violation of any of the following provisions of this chapter,
penalties shall be chargeable to the letter of credit or performance bond
as applicable as follows, and the Town may determine the amount of the fine
for other violations which are not specified in a sum not to exceed $500 for
each violation, with each day constituting as separate violation.
A.
Failure to furnish, maintain, or offer all cable services
to any potential subscriber within the Town upon order of the Town: $200 per
day, per violation, for each day that such failure occurs or continues.
B.
Failure to obtain or file evidence of required insurance,
construction bond, performance bond, or other required financial security:
$200 per day, per violation, for each day such failure occurs or continues.
D.
Failure to comply with applicable construction, operation,
or maintenance standards: $300 per day, per violation.
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.
The grantor may impose any or all of the above-enumerated measures against
the grantee, which shall be in addition to any and all other legal or equitable
remedies it has under the franchise or under any applicable law.
G.
Any other violations of the franchise agreement to be
determined by the grantor in a public hearing but not specifically noted in
this section shall not exceed $500 per day, per violation.
A.
Whenever the Town believes that the grantee has violated
one or more terms, conditions or provisions of this chapter 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 Town
may impose penalties, unless the violation is of such a 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 60 days of
notice from the Town, or such other time as the grantee and the Town may mutually
agree to, the Town may proceed to impose liquidated damages.
B.
The grantee may, within 10 days of receipt of notice,
notify the Town that there is a dispute as to whether a violation or failure
has, in fact, occurred. Such notice by the grantee to the Town shall specify
with particularity the matters disputed by the grantee and shall stay the
running of the thirty-day cure period pending Board decision as required below.
The Board shall hear the grantee's dispute. The grantee must be given at least
five days' 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 Town shall provide the grantee with a copy of its action,
along with supporting documents. In the event that the Town upholds the finding
of a violation, the grantee shall have 30 days subsequent, or such other time
period as the grantee and the Town mutually agree, to such determination to
correct the alleged violation before penalties may be imposed.
C.
The rights reserved to the Town under this section are
in addition to all other rights of the Town, whether reserved by this chapter
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 Town may
have.
D.
The Town shall stay or waive the imposition of any penalty
set forth above upon a finding that any failure or delay is a result of an
acts of nature or due to circumstances beyond the reasonable control of the
grantee.