[HISTORY: Adopted by the Village Board of the Village of
Stratford 5-9-1995 (Title 5, Ch. 3 of the 1988 Code). Amendments noted where applicable.]
The purpose of the chapter is to:
A.
Regulate the erection, construction, reconstruction, installation,
operation, maintenance, dismantling, testing, repair and use of the
cable communications system in, upon, along, across, above, over,
under or in any manner connected with the streets, public ways, or
public places within the Village of Stratford, as now or in the future
may exist;
B.
Provide for payment of a fee and other valuable consideration to
the Village for construction and operation of the cable communications
system;
C.
Provide for the regulation by the Village Board of rates to be charged
to subscribers for basic service in the event that the Village should
certify to regulate basic rates;
D.
Provide for the development of the cable communications system and
for other public purposes; and
E.
Provide remedies and prescribed penalties for the violation of this
chapter.
A.
ADDITIONAL SERVICE
AFFILIATED CORPORATION
(1)
(2)
(3)
(4)
(5)
(6)
AGENCY
BASIC SERVICE
(1)
(2)
(3)
(4)
BOARD
BOOK VALUE
CABLECASTING
CABLE COMMUNICATIONS SYSTEM
CHANNEL
CHANNEL LESSEE
COMMITTEE
COMMUNITY ACCESS
DISCRETE SERVICES
DOWNSTREAM CHANNEL
FAIR MARKET VALUE
FCC
FRANCHISE
FRANCHISEE
FRANCHISEE ORIGINATION
HEAD END
INCEPTION OF SERVICE
LAW
LEASED CHANNEL
PARENT CORPORATION
PERSON
SINGLE DROP
STREET
SUBSCRIBER
SUBSCRIPTION PROGRAMMING
SUBSIDIARY CORPORATION
TOTAL LOCAL REVENUES
UPSTREAM CHANNEL
USER
VILLAGE
VILLAGE CLERK
For the purposes of this chapter and any agreement awarding a franchise
in accordance with this chapter, the following terms, phrases, words
and their derivations shall have the meaning given in this chapter
unless otherwise specifically provided in this chapter, unless the
context clearly indicates otherwise or unless such meaning would be
inconsistent with the manifest intent of the Village Board:
Any communications service other than basic service provided
directly over its cable communications system by the franchisee directly
or as a carrier to its parent, subsidiary or affiliated corporations
or any other person engaged in communications service, including but
not limited to burglar alarm, data or other electronic intelligence
transmission, facsimile reproduction, meter reading, subscription
programming, market surveying and home shopping.
Any person directly or indirectly owning, controlling or holding
with power to vote 10% or more of the outstanding voting securities
of the franchisee;
Any person 10% or more of whose outstanding voting securities
are directly or indirectly owned, controlled or held with power to
vote by the franchisee;
Any person directly or indirectly controlling, controlled by,
or under common control with the franchisee;
Any officer, director, partner, copartner or employee of the
franchisee;
If the franchise is an investment company, any investment adviser
thereof or any member of an advisory board thereof; and
If the franchisee is an unincorporated investment company not
having a board of directors, the depositor thereof.
Any department of Village government.
The complement of programming and services distributed by
the cable communications system to all subscriber terminals to all
locations within the Village for a basic monthly charge and includes:
Television broadcast signals required to be carried under federal
or local law;
Community communications;
Programming or services on channels designated for special purposes
by the Village Board and incorporated in any franchise agreement;
and
Any other services or programming at the option of the franchisee
as set forth in the franchise agreement; provided, however, that subscription
programming shall not be considered part of basic service.
The Village Board of the Village of Stratford.
The original cost of the cable communications system less
book depreciation and exclusive of the value of the franchise as certified
by a certified public accountant selected by the Village Board.
Transmission of programming, exclusive of live broadcast
signals and community communications, via the cable communications
system to subscribers.
A nonbroadcast facility consisting of a set of transmission
paths with associated signal generation, reception and control equipment,
under common ownership and control, which distributes or is designed
to distribute to subscribers the signal of one or more television
broadcast stations.
A frequency band which is capable of carrying a standard
broadcast audio-video television signal.
A person leasing a cable channel for the presentation and
distribution of video-audio programs or other video-audio communications
over a cable channel for a specified fee.
The Village judiciary and regulatory committee established
by the Village Board to act as an advisory body to it on matters pertaining
to cable communications.
Programming, exclusive of broadcasting signals, produced
by persons, organizations or institutions other than the franchisee
at designated centers or otherwise for cablecast over any designated
community access channels.
Services available on the cable communications system which
may be provided to subscribers on an individual and/or group basis
and which may be particular to that subscriber and/or group and not
available system-wide. Discrete services are cable communications
services which are delivered by means of a technically segregated
signal.
A channel through which an electronic or other signal, originated
or converted at the head end or subhead ends, may be transmitted to
and received at the location of the subscriber's receiver.
That price which a seller, dealing at arm's length, ready
and willing to sell and not compelled to sell, would accept for the
cable communications system when offered by a buyer, ready and willing
but not compelled to buy, exclusive of the value of the franchise.
The Federal Communications Commission or its legally appointed
successor.
The right granted through a contractual agreement between
the Village and a person by which the Village authorizes such person
to erect, construct, reconstruct, operate, dismantle, test, use and
maintain a cable communications system in the Village. Any franchise
awarded by an agreement in accordance with the provisions of this
chapter shall be a nonexclusive franchise.
The person or its legal successor in interest who executes
an agreement in accordance with the provisions of this chapter for
the erection, construction, reconstruction, operation, maintenance,
dismantling, testing, repair and use of a cable communications system
in the Village and who obtains appropriate waivers from the FCC to
do the same and who otherwise complies with the requirements of federal
law.
Programming, exclusive of broadcast signals and community
communications, carried on a cable communications system over one
or more channels and subject to the exclusive contract of the franchisee,
including but not limited to leased channels.
Electronic equipment, including, inter alia, antennas, preamplifiers,
frequency converters, demodulators, modulators and related equipment,
used to amplify, filter and/or convert television signals for distribution
over the cable communications system's channels, including antenna
tower, satellite earth stations, and any building housing any of the
above equipment.
Providing service to a subscriber in any separately programmable
area.
Any federal or state constitution or statute or local resolution
or ordinance, including but not limited to those of the Village, and
all rules and regulations promulgated pursuant to any of the same,
now existing or hereafter adopted or amended and interpretations of
the same by a court of competent jurisdiction.
A channel leased by the franchisee to permit the presentation
and distribution of video-audio programs or other video-audio communications
over a cable channel for a specified fee.
Any corporation, other than the franchisee, in an unbroken
chain of corporations ending with the franchisee if, at the time of
the execution of the franchise agreement, each of the corporations
other than the franchisee owns stock comprising 50% or more total
combined voting power of all classes of stock in one of the other
corporations in such chain.
Includes individual natural persons, firms, partnerships,
joint ventures, societies, organizations, clubs, associations, trustees,
trusts, corporations, companies or organizations of any kind, or any
officers, agents, employees, factors of any kind of person representative
of the above, in any capacity, acting either for himself/herself or
for any other person, under either personal appointment or pursuant
to law. Whenever used in any clause prescribing a penalty, the term
"person" as applied to partnerships or associations includes the partners
or members thereof and, if applied to corporations, the officers thereof.
"Person" shall not include a municipal corporation.
The connection between the cable communications system and
the subscriber's location and receiver therein.
Any area established for vehicular use or the entire width
between the boundary lines of every way publicly maintained when any
part thereof is open for public purposes. "Street" includes, but is
not limited to, highway, avenue, road, alley, right-of-way, lane,
boulevard, concourse, bridge, tunnel, parks, parkways, waterways,
docks, overheads, wharves and piers.
A person who connected to any signal or service provided
or distributed by the cable communications system.
Programming for which a per program, per channel, per day,
per time period or other per unit charge is made.
Any corporations, other than the franchisee, in an unbroken
chain of corporations beginning with the franchisee if, at the time
of the execution of the franchise agreement, each of the corporations
other than the last corporation in the unbroken chain owns stock comprising
50% or more of the total combined voting power of all classes of stock
in one of the other corporations in such chain.
All cash, credits to the extent not passed on to customers,
property of any kind or nature or other consideration whatsoever in
any form arising from or attributable to the sale or exchange of cable
communications services by the franchisee within the Village or in
any way derived from the operation of its cable communications system,
including but not limited to any interconnection between its system
in the Village and any system within the Village, or the sale, exchange
or cablecast of any programming developed on or for community communications
channels of the franchisee's system. Such sum shall not include
any sales, service, occupation or other excise tax to the extent that
such taxes are charged separately from normal service charges and
are remitted by the franchisee directly to the taxing authority.
A channel through which television signals emanating from
a subscriber's location and/or the location of any other entity
except the main transmitting facility of the franchisee are transmitted
via the cable communications system to the system head end or other
appropriate point.
A person utilizing a cable communications channel and/or
production facilities for purposes of production and/or transmission
of electronic or other signals as opposed to receipt thereof as a
subscriber.
The Village of Stratford.
The Clerk of the Village.
B.
The singular includes the plural, and the plural includes the singular.
Words used in the past or present tense include the future.
C.
Unless otherwise provided in this chapter and unless the context
or the manifest intent of the Board clearly indicates otherwise, terms,
phrases, words and their derivations not defined in this chapter shall
have the meanings ascribed to them in the rules and regulations of
the FCC.
D.
Any word not specifically defined shall be construed according to
its common usage, unless the context or the manifest intent of the
Village Board clearly indicates otherwise.
A.
All notices required to be given to the Village under any provision
of this chapter shall be deemed served when delivered by hand in writing
to the Village Clerk's office during normal business hours.
B.
All notices required to be given to the franchisee under any provision
of this chapter shall be deemed served:
This chapter shall not be construed to create or hold the Village
responsible or liable for any damage to persons or property by reason
of any inspection or reinspection authorized in this chapter or failure
to inspect or reinspect, nor shall the issuance of any permit or license
or the approval or disapproval of any equipment authorized in this
chapter or any agreement executed pursuant to this chapter constitute
any representation, guarantee or warranty of any kind by, or create
any liability upon, the Village or any official, agent or employee
thereof.
Any franchise awarded by the Village by an agreement in accordance
with this chapter shall be a nonexclusive franchise for the use of
the streets, public ways or public places within the Village for a
negotiated term of not more than 15 years for the erection, construction,
reconstruction, operation, maintenance, dismantling, testing and use
of a cable communications system.
The judiciary and regulatory committee shall have the following
specific functions. It shall:
A.
Advise the Board regarding general policy relating to the services
provided to subscribers and to users by the franchisee.
B.
Advise the Board regarding the operation and use of any community
communications channels with a view towards maximizing the diversity
of programs and services to subscribers and users.
C.
Report to the Board on matters which may constitute a violation of
this chapter.
D.
Request comments and encourage suggestions regarding cable communications.
E.
Advise the Board on proposed transfer of the cable communications
activities.
F.
Perform such other functions as the Board may direct.
A.
Any agreement awarding a franchise to operate a cable communications
system in accordance with this chapter shall apply to its operation
throughout the limits of the Village.
B.
The franchisee shall endeavor to offer cable communications service
to all serviceable residents of the Village. The term "serviceable
residents" shall be construed to mean all residents who are currently
passed by an activated cable plant or those that are in an area where
residential density reaches 25 homes per plant mile. To the extent
that the franchisee intends not to provide service to any specific
area, street, building or other location, the franchisee shall designate
them and clearly indicate in its proposal to enter into an agreement
awarding a franchise in accordance with this chapter the technical,
legal or economic reason for its inability to provide service in the
enumerated locations. The franchisee shall file a copy of its extension
policy for approval by the Board.
C.
The right is specifically reserved to the Board to grant variances
to the franchise territory portion of this chapter for reasonable
cause.
D.
The franchisee shall commence operation of its cable communications
system within six months of the date of the execution of any agreement
awarding a franchise in accordance with this chapter. For purposes
of this subsection, operation shall be deemed to have commenced with
the retransmission and simplification of television signals on a regular
basis to residences or other structures.
A.
In the event that the franchisee asserts that any of the occurrences listed in § 222-29A of this chapter has taken place, the franchisee shall notify the committee within five days of any expected reasonable delay in complying with the construction schedule in this chapter. If the committee determines that such events in fact have occurred, the franchisee's delay shall not be deemed to be a violation of this chapter. Otherwise, it shall be deemed a material breach of any agreement awarding a franchise in accordance with this chapter and shall subject the franchisee to the provisions of § 222-29 of this chapter and to all of the penalties and remedies prescribed in such agreement as well as all other remedies, both legal and equitable, which are available to the Village.
B.
Within six months of the date of execution of any agreement awarding
a franchise in accordance with this chapter, the franchisee shall
offer to install, make operational and render cable communications
services to all serviceable residents within the Village in accordance
with this chapter and any agreement awarding a franchise in accordance
with this chapter.
C.
The franchisee shall apply to the FCC for all waivers and otherwise comply fully with FCC regulations and federal law within 30 days of the execution of any agreement awarding a franchise in accordance with this chapter. The franchisee shall apply for all other permits required to commence construction or operate its cable communications system within 30 days of the receipt of notification by the Commission to do so. Failure to apply for such waivers or permits and to comply with federal law within the time specified in this chapter shall be deemed to be a violation of this chapter and a material breach of any agreement awarding a franchise in accordance with this chapter and shall subject the franchisee to the procedure in § 222-29 of this chapter and to all penalties and remedies prescribed in such agreement as well as all other remedies, both legal and equitable, which are available to the Village.
A.
The franchisee shall extend cable to new developments and subdivision
and to other areas, including but not limited to blocks or streets,
simultaneously with the installation of electric power and telephone
utility facilities, subject to the extension policy.
B.
In all cases where new developments and subdivision are to be constructed
and to be served in whole or in part by both underground power and
telephone utilities, the owner or developer of such areas shall provide
the franchisee the trench, backfill and all necessary substructures
for television cables in order that the franchisee may install all
necessary electronic cable communications facilities. In no event
shall such undergrounding be at any cost or expense to the Village.
C.
Failure to install cable in accordance with the construction timetable as provided in §§ 222-7 and 222-8 of this chapter, or to extend cable within 90 days of a subscriber's request for service to new developments, subdivision or other areas in instances controlled by Subsections A and B of this section, shall constitute a violation of this chapter and a material breach of any agreement awarding a franchise in accordance with this chapter and shall subject the franchisee to the provisions of § 222-29 and to all the penalties and remedies prescribed in such agreement as well as all other remedies, both legal and equitable, which are available to the Village. Continued failure to install or extend cable communications service during any subsequent ninety-day period shall constitute a separate violation and breach and shall subject the franchisee to the remedies provided hereinbefore.
D.
Basic service and such cable communications service as may be provided for by any agreement awarding a franchise in accordance with this chapter shall be made available to individual dwellings, residences, including apartment, condominium, cooperative or association buildings, institutions, organizations, businesses and all other entities within the limits of the Village, as the same now or in the future may exist, in accordance with the provisions of §§ 222-7E and 222-8B and all laws governing rights of property and privacy.
E.
Multiple dwellings.
(1)
An owner or operator of an apartment, condominium, nursing home,
hospital, mobile home park or another multiple-dwelling housing facility
in which other persons reside may require:
(a)
Installation to conform to reasonable conditions necessary to protect
the safety, appearance and functioning of the premises.
(b)
The cable operator, occupant or tenant to agree to indemnify the
owner or operator for any damages caused by the installation, operation
or removal of such facilities.
(2)
The cable operator shall notify the owner or operator of intent to
install cable television service, and the cable operator shall thereafter
coordinate such installation during reasonable business hours.
F.
A person may not request or accept payment in any form for permitting
cable services on his or her property or premises and may not discriminate
in rental charges or otherwise between tenants or occupants who receive
cable services and those who do not. This subsection shall not prohibit
single-point billing.
G.
Neither a cable operator nor an owner of property may take actions
which would diminish or interfere with the privilege of the owner,
tenant or other occupant of the owner's building to use or avail himself
or herself of master or individual antenna equipment or cable services.
H.
The franchisee shall provide, upon request, at no charge, within
the franchise area, one connection for basic service to Village buildings,
as the Village may hereafter designate. Such buildings must be owned,
operated and used only for Village purposes. The Village reserves
the right at its expense to extend service to as many areas within
such buildings as it deems desirable without payment of any additional
fee to the franchisee. All such extensions, however, shall be accomplished
in such a way so as not to affect the technical integrity of the telecommunications
network.
I.
Residential installation, including multiple drops, shall be offered
as the feeder line passes the dwelling unit as the feeder line is
activated.
J.
All installation other than residential shall be initially confined
to a single drop at the port as requested by subscribers and shall
occur as the feeder line passes the dwelling unit as the feeder line
is activated.
K.
All the franchisee's cable equipment shall be removed within
a reasonable time, such time not to exceed one month, from a subscriber's
property at the subscriber's request.
L.
Where such removal interferes with the provision of cable communications
services to another subscriber, it shall be the obligation of the
subscriber so affected to secure a legal agreement which will enable
the franchisee to provide the subscriber the cable communications
service the subscriber desires.
M.
Where attachment to or use of a nonsubscriber's property is
necessary for the provision of cable communications services to a
subscriber, it shall be the obligation of such subscriber to secure
a legal agreement which will enable the franchisee to provide the
subscriber the cable communications service the subscriber desires.
N.
Nothing in this chapter shall be construed as a representation, promise
or guarantee by the Village that any permit or other authorization
required under any Village law for the construction or installation
of a cable communications system shall be issued.
A.
Cable system office hours and telephone availability.
(1)
The cable operator will maintain a local, toll-free or collect call
telephone access line which will be available to its subscribers 24
hours a day, seven days a week.
(a)
Trained company representatives will be available to respond
to customer telephone inquiries during normal business hours.
(b)
After normal business hours, the access line may be answered
by a service or an automated response system, including an answering
machine. Inquiries received after normal business hours must be responded
to by a trained company representative on the next business day.
(2)
Under normal operating conditions, telephone answer time by a customer
representative, including wait time, shall not exceed 30 seconds when
the connection is made. If the call needs to be transferred, transfer
time shall not exceed 30 seconds. These standards shall be met no
less than 90% of the time under normal operating conditions, measured
on a quarterly basis.
(3)
The operator will not be required to acquire equipment or perform
surveys to measure compliance with the telephone answering standards
above unless an historical record of complaints indicates a clear
failure to comply.
(4)
Under normal operating conditions, the customer will receive a busy
signal less than 3% of the time.
B.
Communications between cable operators and cable subscribers.
(1)
Notifications to subscribers.
(a)
The cable operator shall provide written information on each
of the following areas at the time of installation of service, at
least annually to all subscribers, and at any time upon request:
[1]
Products and services offered;
[2]
Prices and options for programming services and conditions of
subscription to programming and other services;
[3]
Installation and service maintenance policies;
[4]
Instructions on how to use the cable service;
[5]
Channel positions to programming carried on the system; and
[6]
Billing and complaint procedures, including the address and
telephone number of the local franchise authority's cable office.
(b)
Customers will be notified of any changes in rates, programming
services or channel positions as soon as possible through announcements
on the cable system and in writing. Notice must be given to subscribers
a minimum of 30 days in advance of such change if the change is within
the control of the cable operator. In addition, the cable operator
shall notify subscribers 30 days in advance of any significant changes
in the other information required by the preceding subsection.
(2)
Billing.
(a)
Bills will be clear, concise and understandable. Bills must
be fully itemized, with itemizations including, but not limited to,
basic and premium service charges and equipment charges. Bills will
also clearly delineate all activity during the billing period, including
optional charges, rebates and credits.
(b)
In case of a billing dispute, the cable operator must respond
to a written complaint from a subscriber within 30 days.
(4)
Credits. Credits for service will be issued no later than the customer's
next billing cycle following the determination that a credit is warranted.
A.
Installations, outages and service calls. Under normal operating
conditions, each of the following four standards will be met no less
than 95% of the time measured on a quarterly basis:
(1)
Standard installations will be performed within seven business days
after an order has been placed. Standard installations are those that
are located up to 125 feet from the existing distribution system.
(2)
Excluding conditions beyond the control of the operator, the cable
operator will begin working on service interruptions promptly and
in no event later than 24 hours after the interruption becomes known.
The cable operator must begin actions to correct other service problems
the next business day after notification of the service problem.
(3)
The appointment window alternatives for installations, service calls,
and other installation activities will be either a specific time or,
at maximum, a four-hour time block during normal business hours. (The
operator may schedule service calls and other installation activities
outside of normal business hours for the express convenience of the
customer.)
(4)
An operator may not cancel an appointment with a customer after the
close of business on the business day prior to the scheduled appointment.
(5)
If a cable operator representative is running late for an appointment
with a customer and will not be able to keep the appointment as scheduled,
the customer will be contacted. The appointment will be rescheduled,
as necessary, at a time which is convenient for the customer.
B.
Normal operating conditions. The term "normal operating conditions"
means those service conditions which are within the control of the
cable operator. Those conditions which are not within the control
of the cable operator 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 cable operator 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.
C.
Service interruption. The term "service interruption" means the loss
of picture or sound on one or more cable channels.
A.
The cable system, as a part of any conglomerate of commonly owned
and technically integrated cable television systems having subscribers,
or any system having subscribers which is not part of such a system
conglomerate, shall comply with the following requirements respecting
the number and designation of access channels:
(1)
Each such system shall, to the extent of its available activated
channel capability, comply with the following requirements:
(a)
Public access channel. Each such system shall maintain at least
one specially designated, noncommercial public access channel available
on a first-come nondiscriminatory basis.
(b)
Educational access channel. Each such system shall maintain
at least one specially designated channel for use by local educational
authorities. Educational authorities shall include but shall not be
limited to Stratford Junior and Senior High Schools.
(c)
Local government access channel. Each such system shall maintain
at least one specially designed channel for local government uses.
(2)
Until such time as there is demand for each channel full time for
its designated use, public, educational, government and leased access
channel programming may be combined on one or more cable channels.
To the extent time is available therefor, access channels may also
be used for other broadcast services.
(3)
Each such system shall, in any case, maintain at least one full channel
for shared access programming; provided, however, that, in the case
of systems in operation on the effective date of this chapter, if
insufficient activated channel capability is available to provide
one full channel for shared access programming, it shall provide whatever
portions of channels are available for such purposes. Each such system
in meeting its access obligations shall make reasonable efforts in
programming its bandwidth to avoid the displacement of access service.
(4)
Each such system shall make available all other unused channels on an as-needed basis up to the maximum allowed by FCC rules, in addition to those which are part of the system's activated channel capability, for the purposes specified in Subsection A(1) of this section; provided, however, that in making available such additional channels, the system operator shall be under no obligation to install converters.
B.
The cable system, as a part of any conglomerate of commonly owned
and technically integrated cable television systems having subscribers,
or any system having subscribers which is not part of such a system
conglomerate, shall comply with the following requirements respecting
the provision of access services:
(1)
Equipment requirement. Each such system shall have available equipment
for local production and presentation of cablecast programs other
than automated services and permit its use for the production and
presentation of public access programs. No such system shall enter
into any contract, arrangement or lease for use of its cablecasting
equipment for a substantial portion of time for public access programming.
(2)
Program content control. Each such system shall have no control over the content of access cablecast programs; however, this limitation shall not prevent it from taking appropriate steps to ensure compliance with the operating rules described in Subsection B(4) of this section.
(3)
Assessment of cost.
(a)
The channels described in Subsection A of this section shall be made available free of charge until five years after the system first offers channel time for such cablecasting purposes, except educational and government channels.
(b)
One of the public access channels described in Subsection A of this section shall always be made available without charge.
(c)
Charges for equipment, personnel and production of public access
programming shall be reasonable and consistent with the goal of affording
users a low-cost means of television access. No charges shall be made
for live public access programs not exceeding five minutes in length.
(4)
Operating rules.
(a)
The cable system shall promulgate and publish for review by
the appropriate regulatory authorities its rules and regulations for
the use of the public access channel. The rules shall specifically
provide for first-come nondiscriminatory access. The cable system
shall maintain a log of public access use for a period of two years.
The cable system shall keep confidential the names and addresses of
all persons requesting use of or using the channel.
(b)
The cable system shall in conjunction with the educational authorities
draft and promulgate rules of operation for the use of the educational
access channel. These rules shall be reviewed with the appropriate
regulatory authorities. The cable system shall maintain a log of the
use of the channel for a period of two years.
(c)
The cable system shall promulgate and publish rules regarding
the use of the leased channel. The cable system shall maintain a log
of the use of the channel for a period of two years. The names and
addresses of all persons or groups requesting use or using the channel
shall be kept confidential.
(d)
All operating rules governing the access channel shall be filed
with the Village and shall be available for public inspection.
C.
The franchisee shall make available its facilities for an emergency
override audio alert whereby a designee of the Village, in times of
crisis, may introduce an audio message on all telecommunications networks
on appropriate channels simultaneously.
All performances and technical standards governing construction,
reconstruction, installation, operation, testing, use, maintenance
and dismantling of the cable communications system provided for in
this chapter shall be in accordance with all applicable FCC and other
federal, state and local laws and regulations; provided, however,
that the Village may require such standards as it deems necessary
unless specifically prevented from doing so by law.
A.
The Village Board expressly reserves the right and shall be allowed
by franchisee to amend this chapter or any other ordinances of the
Village at any time.
B.
The committee shall have the following powers and duties:
(1)
Mediating disputes or disagreements between a subscriber and the
franchisee at either's request, following investigation.
(2)
Reviewing and auditing all reports and filings submitted by the franchisee
to the FCC and to the Village pursuant to this chapter.
(3)
Submitting regulations regarding the construction, reconstruction,
operation, maintenance, dismantling, testing or use of the cable communications
system established pursuant to an agreement awarding a franchise in
accordance with this chapter to the committee for promulgation.
(4)
Reviewing all rules and regulations promulgated by the franchisee
or the Village regarding community communications and basic services
in order to ensure compliance by the franchisee.
(5)
Assuring that all rates and rules pertinent to the operation of the
cable communications system in accordance with this chapter are available
for inspection by the general public during normal business hours.
Copies of such rates, rules and regulations, which are declared to
be documents of public record, shall be made available by the committee
to those who request the same on a cost per copy basis.
(6)
Conferring and coordinating with the franchisee on the interconnection
of the cable communications system created in accordance with this
chapter with any communications system, not limited to a cable communications
system, whatsoever both within and without the Village.
(7)
Developing funding proposals and administering any grant funds obtained
by the Village for the ongoing development of the cable communications
system to be constructed and operated in accordance with this chapter.
(8)
Retaining consultants' services as authorized by the Board in
order to ascertain the best use of public facilities and channels
of the system and for other consulting services.
(9)
Reporting to the Board at the Board's request.
(10)
Performing any other duties assigned under the provisions of
this chapter and other legislation hereafter enacted by the Board
or such other duties as the Village President assigns.
(11)
Reviewing all changes in technology to be implemented no less
than 90 days prior to installation.
(12)
Requesting proposals no less than 24 months prior to the expiration
date of any cable franchise contract.
C.
The franchise fee will be utilized as directed by the committee.
A.
It shall be unlawful for any person to commence or engage in the
business of constructing or operating a cable communications system
within the Village without having been awarded and having duly executed
an agreement awarding a franchise in accordance with this chapter.
B.
Any person submitting a proposal to enter into an agreement for the
award of a franchise in accordance with this chapter shall provide
all information required by this chapter and such other information
as may be solicited in the request for proposals or otherwise required.
Each proposal shall be responsive to the questions soliciting the
information and shall substantially and materially supply all of the
information so solicited. The failure, neglect, or refusal to provide
any of such information shall render a proposal invalid and it shall
be given no consideration unless such failure or neglect is unintentional
and such information is not provided upon 30 days' written notice.
A.
Proposed bond. Each applicant for a franchise under this chapter
shall submit a proposal bond in a form acceptable to the Village Clerk
or a certified check on a bank that is a member of the Federal Deposit
Insurance Corporation, payable to the order of the Village in the
amount of $15,000.
B.
Performance bond. A franchisee shall maintain, and by its acceptance
of any franchise granted under this chapter agrees that it will maintain
through the term of the franchise, or any renewal or extension thereof,
a faithful performance bond running to the Village, with at least
two good and sufficient sureties and other financial guaranties approved
by the Village Clerk, in the penal sum total of $15,000 conditioned
upon the faithful performance of the franchisee and upon the further
condition that in the event the franchisee shall fail to comply with
any law, ordinance or regulation governing the franchise, there shall
be recoverable jointly and severally from the principal and surety
of the bond any damages or loss suffered by the Village as a result,
including the full amount of any compensation, indemnification or
cost of removal or abandonment of any property of the franchisee,
plus a reasonable allowance for attorney fees and costs, up to the
full amount of the bond. The bond shall contain the following endorsement:
"It is hereby understood and agreed that this bond may not be canceled
nor the intention not to renew be stated until 30 days after receipt
by the Village Clerk by registered mail of two copies of a written
notice of such intent to cancel or not renew."
C.
Forfeit of proposal bond. Should the applicant fail or refuse to
accept a franchise under this chapter or fail or refuse to furnish
the performance bond as set forth in this chapter within 30 days after
written notification of the award of a franchise by the Village, said
applicant will be considered to have abandoned its proposal and the
Village shall enforce the proposal bond in accordance with its terms
or retain the proceeds of the certified check.
D.
Return of proposal bond. Proposal bonds or certified checks received
in lieu thereof from applicants whose proposals are not accepted by
the Village or successful applicants unless forfeited shall be returned
to the applicant as soon as the successful applicant is determined.
E.
Bond evidence to be filed with the Village. Two copies of all bonds
or certified copies thereof and written evidence of payment of required
premium shall be filed and maintained with the Village Clerk during
the term of any franchise granted under this chapter, or any renewal
thereof.
A.
There shall be a franchise fee paid to the Village in an amount equal
to 3% of the franchisee's annual gross income derived from the
operation of the cable system. The fee shall be collected as directed
by the committee.
B.
To verify gross revenues and for other reasons deemed necessary by
the Village, reports, audits, books, records and/or anything else
which the Village deems helpful and which is not inconsistent with
federal law shall be provided to the Village by the franchisee, in
forms approved by the committee.
C.
Each of such reports shall contain a notarized verification by the
chief financial officer or his agent of the franchisee, and such reports
may at the option of the Village be verified annually by an independent
certified public accountant selected by the Village.
D.
The acceptance of any payment required under this chapter by the
Village shall not be construed as an acknowledgment that the amount
paid is the correct amount due, nor shall such acceptance of payment
be construed as a release of any claim which the Village may have
for additional sums due and payable.
E.
All fee payments shall be subject to audit by the Village Treasurer
and to assessment or refund if the payment is found to be in error.
F.
In the event that an audit results in an assessment by and an additional
payment to the Village, such additional payment shall be subject to
interest at the rate of 18% per year and to a penalty of 18% per year,
which shall be due and payable immediately.
G.
The Board shall have the authority to waive all or any portion of
the fee for any period of time it wishes.
H.
The franchisee shall, upon request, install without charge, and provide
and maintain for the entire term of the franchise agreement, a single
drop and basic service to the Village Hall.
I.
Any person submitting a proposal to enter into an agreement for the
award of a franchise may offer to the Village any consideration that
it wishes.
J.
Failure to comply strictly with this section shall be deemed to be a violation of this chapter and a material breach of the agreement awarding a franchise in accordance with this chapter and shall subject the franchisee to the provisions of § 222-29 of this chapter and to all penalties and remedies prescribed in the agreement as well as all other remedies, both legal and equitable, which are available to the Village.
K.
Nothing in this chapter shall be construed to limit the liability
of the franchisee for all applicable federal, state and local taxes,
including, inter alia, applicable local charges and/or local assessments
and/or local taxes.
A.
In the event that the franchise is not renewed for reasons other
than the material breach of the franchise or reasons unrelated to
the performance of the franchise holder or upon receipt of an application
for assignment of the franchise, the franchisee shall first offer
the telecommunications network for sale to the Village at a fair and
just market value, which value shall include the fair market value
of the system as a going concern, including the franchise itself and
the rights and privileges granted by the Village.
B.
When a franchise is not renewed pursuant to the provisions of § 222-28 of this chapter because of a material breach of the franchise, the franchisee shall first offer the telecommunications network for sale to the Village at a fair and just market value, which value shall not include any value for the franchise itself or for any of the rights or privileges granted by the Village.
C.
In the event fair market value becomes an issue and the determination
of fair market value cannot be negotiated or determined, the value
shall be determined by an impartial appraisal procedure wherein the
franchisee and the Village shall each choose an appraiser and the
valuation determined by the appraisers shall be considered the fair
market value at which the system shall be offered to the Village.
The cost of the appraisal shall be shared equally by the Village.
D.
The Village shall have 90 days to exercise the right of first refusal
to purchase the network, the 90 days commencing on the day the fair
market value of the system is determined either through negotiation
or the arbitration procedure. If the Village does not exercise its
option to purchase and the telecommunications network is not sold
to another operator which has obtained a franchise from the Village
in a reasonable time, the grantee, upon request by the Village, shall
promptly remove all its plant. If the Village determines not to exercise
its right of first refusal, it shall not unreasonably refuse to renew
or grant a cable television franchise during a reasonable interim
period. While transfer of the system and franchise is being negotiated,
arranged or ordered, the franchisee may be required to continue service
to the public unless for reason beyond the control of the franchisee
the operation will be economically infeasible to the franchisee.
E.
If for any reason the franchisee is required to terminate its franchise
and remove its plant, structures, etc., then in removing its plant,
structures and equipment the franchisee shall refill at its own expense
any excavation that shall be made by it and shall leave all public
ways and places in as good condition as that prevailing prior to the
company's removal of its equipment and appliances without affecting
the electric and telephone cables, wires or attachments. The Village
shall inspect and approve the restoration after removal. Liability
insurance and indemnity and the performance bond shall continue in
full force and effect during the period of removal.
A.
The franchisee and all other persons using or making use of the cable
communications system shall comply in all respects with all federal,
state and local laws regarding obscenity.
B.
Failure of the franchisee to comply strictly with this section insofar as required by law shall be deemed to be a violation of this chapter and a material breach of the agreement awarding a franchise in accordance with this chapter and shall subject the franchisee to the provisions of § 222-29 of this chapter and to all penalties and remedies prescribed in the agreement as well as all other remedies, both legal and equitable, which are available to the Village.
A.
The Village shall not at any time be liable for any injury or damage
occurring to a person or property from any cause whatsoever arising
from the use, operation or condition of the franchisee's cable
communications system.
B.
The franchisee shall indemnify, save and hold harmless and defend
the Village from all liens, charges, claims, including but not limited
to libel, slander, invasion of privacy and unauthorized use of any
trademark, trade name or service mark, demands, suits, actions, fines,
penalties, losses, costs, including but not limited to legal fees
and court costs, judgments, injuries, liabilities or damages, in law
or equity, of any and every kind and nature whatsoever, except when
caused by or arising out of any negligence of the Village, its officers,
servants, agents, employees or contractors, or otherwise, arising
out of or in any way connected with the installation, operation, maintenance
or condition of the franchisee's cable communications system.
C.
The franchisee shall obtain and keep in force and effect during the entire term of any agreement awarding a franchise in accordance with this chapter or any extension thereof insurance coverage in a minimum amount of $2,000,000 insuring the above indemnification requirements for the benefit of the Village. The franchisee shall deliver to the Village on the date of execution of any agreement awarding a franchise in accordance with this chapter a policy of insurance duly executed by the officers or authorized representatives of a responsible and nonassessable insurance company evidencing this coverage for the benefit of the Village, which policy of insurance shall be noncancellable and provide for at least 90 days' prior written notice to the Village of the insurer's intention not to renew such policy or to cancel, replace or materially alter or change the same, such notice to be given as provided in § 222-4 of this chapter.
D.
The franchisee shall obtain, effective from the date of execution of any agreement awarding a franchise in accordance with this chapter, and shall keep in force and effect during the entire term of such agreement or any extension thereof, a policy of comprehensive general liability insurance, duly executed by the officers or authorized representative of a responsible and nonassessable insurance company evidencing the following minimum coverages for the benefit of the Village as an additional insured, which insurance shall be noncancellable except upon 90 days' prior written notice to the Village, such notice to be given in accordance with § 222-3 of this chapter.
(2)
A copy of such policy shall be delivered to the Village upon the
execution of such agreement.
(3)
At least 90 days' prior written notice shall be given to the Village of the insurer's intention not to renew such policy or not to replace the same or materially to alter or change the same, such notice to be given in accordance with § 222-3 of this chapter. All premiums on such policy shall be at the expense of the franchisee. None of the provisions of this chapter or of any insurance policy required by the Village under this chapter, nor the receipt of any proceeds recovered by the Village under any such policy, nor any term or condition of any agreement awarding a franchise in accordance with this chapter, shall be construed to excuse the franchisee from the faithful performance of its obligation or limit its liability under any of the provisions of this chapter or of any agreement awarding a franchise in accordance with this chapter.
E.
The franchisee shall obtain, effective from the date of execution of any agreement awarding a franchise in accordance with this chapter, and shall keep in full force and effect during the entire term of such agreement or any extension thereof physical damage insurance covering losses arising in respect of the following realty and personalty incident to the franchisee's cable communications system: all buildings, offices, studios or other realty and the equipment contained therein, the head end and subhead ends, the transmission tower, and all earth stations and all vehicles. No physical damage insurance shall be required for trunk, distribution, feeder or associated drop lines, converters or amplifiers. For the initial five years of the term of any franchise agreement, the amount of such physical damage insurance shall not be less than the replacement value of the property required to be covered in this chapter, subject to a deductible established in the franchise agreement. For each succeeding calendar year during the term of the franchise agreement, or any extension thereof, such physical damage insurance shall be in such amounts as the committee shall reasonably determine to be adequate to provide the replacement value of the property required to be covered in this chapter, subject to such deductible amount as the committee may determine to be reasonable for any loss arising from and all damage to or destruction of the property insured. Each policy of physical damage insurance shall name the Village as an additional insured, as its interest may appear. For purposes of this chapter "physical damage insurance" means insurance covering loss arising from fire, lightning, windstorm, hail, snow, explosion, riot and civil commotion, smoke and such other perils as are customarily covered by extended coverage insurance, including vandalism and malicious mischief. The policy of insurance required under this subsection shall be noncancellable except upon 90 days' prior written notice to the Village, such notice to be given in accordance with § 222-3 of this chapter. At least 90 days' prior written notice shall be given to the Village of the insurer's intention not to renew such policy or not to replace or materially to alter or change the same, such notice to be given in accordance with § 222-3.
F.
With respect to each policy of insurance required to be obtained
and kept in force by the franchisee and described in this section,
the franchisee shall be solely responsible for the payment of premiums
due for the insurance thereunder. The franchisee shall furnish written
proof of the payment of such premiums to the Village on or before
the due date.
G.
No policy of insurance required under the provisions of this section
shall be replaced, renewed, canceled or materially changed or altered
in any way except upon the express written authorization of the Village.
No change shall be authorized which would violate the provisions of
this section or which would materially affect the protection such
policies afford the Village.
(1)
The unauthorized cancellation, replacement, renewal or material change of any policy of insurance required under this section shall subject the franchisee to the provisions of § 222-29 of this chapter and shall be deemed a material breach of any agreement awarding a franchise in accordance with this chapter and shall subject the franchisee to all penalties and remedies prescribed therein and to all other remedies, legal or equitable, which are available to the Village.
(2)
At any time any policy of insurance required under this chapter is
replaced, renewed or intended by the insurer not to be renewed or
replaced or materially altered or changed, with or without the express
written authorization of the Village, the franchisee shall obtain
and furnish to the Village, within five days of such action, such
policy, or copies of such policy, as the case may be, or the insurer's
notification of its intent not to renew or replace such policy.
A.
The Board reserves the right to regulate rates as allowed by law.
B.
The franchisee shall file with the Village on December 31 of each
year a full schedule of all subscriber and user rates and all other
charges, including but not limited to pay television and discrete
services, made in connection with the cable communications system.
All rates shall be published and on file in the office of the Village
Clerk.
C.
Nothing in this chapter shall be construed to prohibit the reduction
or waiving of charges.
D.
The franchisee may require all subscribers to pay for basic service
not more than two months in advance. The franchisee shall require
no other advancement of payment for basic service; provided, however,
that nothing in this chapter shall be construed to prohibit an advancement
of payment for installation of cable communications services.
E.
In the event that a subscriber fails to pay a properly due and owing
fee or charge, the franchisee may disconnect the subscriber's
service outlet, upon giving at least 10 days' written notice thereof.
F.
The franchisee shall establish and conform to the following policy
regarding refunds to subscribers and users:
(1)
If the franchisee collects a deposit or advance charge on any service
or equipment requested by a subscriber or user, the franchisee shall
provide such service or equipment within 30 days of the collection
of the deposit or charge or it shall refund such deposit or charge
within five days thereafter unless other arrangements are agreed upon
in writing between the franchisee and its customer.
(a)
Nothing in this chapter shall be construed to relieve the franchisee
of any responsibility to subscribers or users under any contractual
agreements into which it enters with them.
(b)
Nothing in this section shall be construed as limiting the franchisee's
liability for fines or penalties which may be imposed under this chapter
or any agreement awarded in accordance with this chapter for the violation
or breach of any of its provisions.
(c)
Nothing in this section shall be construed to limit the franchisee's
liability for damages because of its failure to provide the service
for which the deposit or charge was made.
(2)
In the event that a subscriber terminates basic service during the
first 12 months of service because of the failure of the franchisee
to render the service in accordance with the requirement set forth
in this chapter or in any agreement awarded in accordance with this
chapter, as determined by the committee, the franchisee shall refund
to such subscriber an amount equal to the initial applicable installation
or reconnection charge paid by the subscriber. In the event that such
subscriber has made an advance payment, the amount so advanced shall
be refunded to such subscriber by the franchisee. Nothing in this
section shall be construed to relieve the franchisee of any liability
established under any agreement awarding a franchise in accordance
with this chapter.
(3)
In the event that a subscriber terminates basic service prior to
the end of a prepaid period, the pro rata portion of any prepaid subscriber
fee which represents payment for services which are no longer to be
rendered shall be refunded promptly, but in no case more than 30 days
after receipt of the request for termination.
G.
The franchisee shall not charge a converter security deposit greater
than such converter's actual cost to the franchisee. Any converter
security deposit collected by the franchisee shall be returned to
the subscriber upon termination of service by the subscriber and return
of such converter undamaged, with allowance for reasonable wear and
tear, and payment of any outstanding balance due and payable.[1]
Nothing in this chapter or in any agreement awarding a franchise
in accordance with this chapter shall be construed as an abrogation
by the Village of any of its police powers.
A.
Before commencing construction of its cable communications system
in, above, over, under, across, through or in any way connected with
the streets, public ways or public places of the Village, the franchisee
shall first obtain the written approval of all appropriate agencies,
including but not limited to all Village departments and public utilities.
Applications for such approval shall be made in the form prescribed
by the appropriate agency.
B.
Upon obtaining such written approval, the franchisee shall give the
appropriate agency written notice within a reasonable time of proposed
construction, but in no event shall such notice be given less than
10 days before such commencement.
C.
Any person who submits a proposal to enter into an agreement for
the award of a franchise in accordance with this chapter shall include
therein proposed agreements for the use of utility poles with all
utility companies whose poles shall be used in or affected by the
construction of the proposed cable communications system, which agreement
shall become effective on the date of execution of this agreement
awarding a franchise in accordance with this chapter in the event
that such person is selected to be the franchisee.
D.
It shall be unlawful for the franchisee or any other person to open or otherwise disturb the surface of any street, sidewalk, driveway, public way or other public place for any purpose whatsoever without obtaining proper approval to do so and after proceeding in the manner prescribed in Subsections A and B of this section. Violation of this section shall subject the franchisee to the provisions of § 222-29 of this chapter and shall be deemed a material breach of the agreement awarding a franchise in accordance with this chapter and shall subject the franchisee to all penalties and remedies prescribed therein and to all other remedies, legal or equitable, which are available to the Village. The franchisee shall restore any street it has disturbed in accordance with the provisions of this Code and shall, at its own cost and expense, restore and replace any other property disturbed, damaged or in any way injured by or on account of its activities to as good as the condition such property was in immediately prior to the disturbance, damage or injury or pay the fair market value of such property to its owner, at the option of the owner.
E.
The franchisee shall, at its own cost and expense, protect, support,
temporarily disconnect, relocate in the same street or other public
place or remove from such street or other public place any of its
property when required to do so by the Village because of street or
other public excavation, construction, repair, regrading or grading,
traffic conditions, installation of sewers, drains, water pipes, Village-owned
power or signal lines, or tracks, vacation or relocation of streets
or any other type of structure or improvements of a public agency
or any other type of improvement necessary for the public health,
safety and welfare.
F.
Nothing in this chapter or any agreement awarding a franchise in
accordance with this chapter shall be construed as authorizing the
franchisee to erect and maintain new poles in areas serviced by existing
poles. The franchisee shall obtain written approval from appropriate
agencies, such approval not to be withheld unreasonably, before erecting
any new poles or constructing underground conduits where none exist
at the time the franchisee seeks to install its cable communications
system.[1]
G.
The franchisee shall maintain all wires, conduits, cables and other
real and personal property and facilities in good condition, order
and repair.
H.
The franchisee shall keep accurate, complete and current maps and
records of its system and facilities and shall furnish as soon as
they are available two complete copies of such maps and records to
the committee and two complete copies of the maps and records to the
Village Department of Public Works. Such maps and records shall be
available for inspection by the public during normal business hours.[2]
I.
The franchisee shall not place or cause to be placed poles or other
equipment in such a manner as to interfere with the rights or reasonable
convenience of adjoining property owners or with any gas, electric
or telephone utility's fixtures or property, nor shall the franchisee
place, or cause to be placed, such poles or equipment in the right-of-way
between the cartway and the right-of-way boundary except with the
written approval of the appropriate Village agency.
J.
The franchisee shall comply with all FCC rules and regulations governing
the construction and installation of cable communications systems.
In addition:
(1)
All cables and wires shall be installed parallel with existing telephone
and electric utility wires whenever possible.
(2)
Multiple configurations shall be in parallel arrangement and bundled,
in accordance with engineering and safety considerations.
(3)
All installations shall be underground in those areas of the Village
where both telephone and electric utilities' facilities are underground
at the time of the installation of the franchisee's cable communications
system.
(4)
In areas where either a telephone or electric utility's facilities
are above ground at the time of the installation of the franchisee's
cable communications system, the franchisee may install its service
above ground only upon the condition, which shall be included in any
agreement awarding a franchise in accordance with this chapter, that
at such time as those facilities are placed underground by the telephone
and electric utility companies or are required to be placed underground
by the Village, the franchisee shall likewise place its facilities
underground at its sole cost and expense, unless other utilities are
paid for such costs, in which case the franchisee would be entitled
to its pro rata share of such costs.
K.
The Village Department of Public Works may, when it feels it is necessary,
notify the franchisee of street improvements where paving, regrading,
grading or resurfacing of a permanent nature is involved.[3]
(1)
Such notice shall describe the nature and character of the improvements,
the streets upon which they shall be made, the extent of the improvements,
and the work schedule for the project.
(2)
The Village shall allow the franchisee to make additions, alterations
or repairs to its facilities in advance of the Village's commencement
of such improvements so as to permit the franchisee to maintain continuity
of service and so as not to hinder or in any way delay the Village's
work.
L.
The franchisee shall, at the request of any person holding a permit
to move a building, temporarily raise or lower its wires to permit
the moving of such building.
(1)
Such temporary removal, raising or lowering of wires shall be at
the cost and expense of the person requesting the same, and the franchisee
shall have the authority to request payment for the same in advance
before complying with such request.
(2)
Any person making such a request from the franchisee shall give not
less than 10 working days' notice of the contemplated move.
(3)
Any interruption in service occasioned by the temporary removal, raising or lowering of the franchisee's wires in accordance with this section shall not subject the franchisee to any penalty provided under § 222-31 of this chapter. Any interruption in service occasioned under the provisions of this Subsection L shall be done, as far as is practicable in the opinion of the committee, during nonpeak viewing hours.
(4)
The franchisee shall restore any wires moved in accordance with this
chapter to the former position as soon as possible after the building
is moved.
M.
The franchisee may trim trees or other vegetation owned by the Village
to prevent its branches or leaves from touching or otherwise interfering
with its wires, cables or other structures.
(1)
All trimming or pruning provided for in this chapter shall be done
only under the supervision and direction of the appropriate Village
agency and only with its prior written approval.
(2)
All trimming or pruning shall be at the expense of the franchisee.
(3)
The franchisee may contract for such trimming or pruning services
with any person approved by the Village prior to the rendering of
such services. Any person engaged by the franchisee to provide tree
trimming or pruning services shall be deemed for the purposes of this
chapter and any agreement made in accordance with this chapter to
be an employee of the franchisee when engaged in such activity.
N.
The franchisee shall obtain the written permission of the owner of
any privately owned tree or other vegetation before it trims or prunes
the same.
O.
The franchisee shall comply with all laws concerning Village property.
A.
The franchise granted under this chapter 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, either by the act of the franchisee or by operation of law,
without the consent of the Village. The granting, giving or waiving
of any one or more such consents shall not render unnecessary any
subsequent consent or consents.
B.
The consent or approval of the Village to any assignment, lease,
transfer, sublease or mortgage of the franchise granted to the franchisee
shall not constitute a waiver or release of the rights of the Village
in and to its streets.
C.
The franchisee shall promptly notify the Village of any actual or
proposed change in, or transfer of, or acquisition by any other party,
of control of the franchisee. The word "control" as used in this subsection
is not limited to majority stock ownership 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 franchisee in any one transaction. Every change, transfer
or acquisition of control of the franchisee shall make the franchise
subject to cancellation unless and until the Village shall have consented
thereto. For the purpose of determining whether it shall consent to
such change, transfer or acquisition of control, the Village may inquire
into the qualifications of the prospective controlling party, and
the franchisee shall assist the Village in any such inquiry. If the
Village does not schedule a hearing on the matter within 60 days after
notice of the change or proposed change and the filing of a petition
requesting its consent, it shall be deemed to have consented. In the
event that the Village adopts a resolution denying its consent and
such change, transfer or acquisition of control has been effected,
the Village may cancel the franchise unless control of the franchisee
is restored or the franchisee gains a status which is acceptable to
the Village.
D.
Nothing in this section shall be deemed to prohibit a mortgage or
pledge of the cable television system, or any part thereof, for financing
purposes or otherwise, or prohibit the disposition of facilities or
equipment no longer required in the conduct of the business. Any such
mortgage, pledge or lease shall be subject and subordinate to the
rights of the Village under this chapter or other applicable law.
E.
Any proposed transferee shall execute an agreement in the form and
containing the conditions approved by the Village Attorney that it
will assume and be bound by all of the provisions, terms and conditions
of this chapter and any agreement awarding a franchise in accordance
with this chapter and all applicable federal, state and local laws,
and further that it shall be primarily liable and obligated under
such documents without, however, relieving the franchisee from its
obligations to the Village.
F.
No transfer of a franchise shall be made within 13 months of the
termination date of the term of the agreement unless the cable operator
is actively involved in any franchise renewal or extension.
G.
Nothing in any approval by the Board or execution by the Village
President or an authorization of any transfer or assignment of any
ownership interest shall be construed to waive or release any rights
of the Village in and to the streets, public ways, and public places
of the Village or as a release of any of the Village's police
powers.
A.
The occurrence of any of the following listed events shall be deemed
a material breach and default of any agreement awarding a franchise
and shall subject the franchisee to all penalties and remedies prescribed
in the agreement and to all other remedies, legal and equitable, which
are available to the Village. The following shall be deemed an unauthorized
transfer and assignment under the provisions of this section. The
franchisee:
(1)
Concealed, removed or permitted to be concealed or removed any part
of its property, with intent to hinder, delay or defraud its creditors
or any of them, or made or suffered a transfer of any of its property
fraudulent under any provisions of law;
(2)
Made or suffered a preferential transfer;
(3)
Suffered or permitted, while insolvent, any creditor to obtain a
lien upon any of its property through legal proceedings or distraint
and not having vacated or discharged such lien within 30 days from
the date thereof or at least five days before the date set for any
sale or other disposition of such property;
(4)
Made a general assignment for the benefit of its creditors;
(5)
To the extent allowed under U.S.C. Title 11, while insolvent or unable
to pay its debts as they mature, procured, permitted or suffered voluntarily
or involuntarily the appointment of a receiver or trustee to take
charge of its property;
(6)
Admitted in writing its inability to pay its debts and its unwillingness
to be adjudged a bankrupt, or upon the entry of an order for relief
under U.S.C. Title 11, or placement of the franchisee into receivership
or the issuance of any order to the franchisee or any of its stockholders
by a government agency or court of competent jurisdiction to divest
any interest related to the cable communications system under this
chapter, or the entry of any judgment against the franchisee's
credit unless otherwise prohibited under U.S.C. Title 11; or
(7)
Showed a wilful failure, refusal or neglect to do or comply with
any material requirements or limitation contained in this chapter
or any material rule or regulation of the Board validly adopted pursuant
to this chapter, or any amendment to this chapter.
B.
To the extent authorized under U.S.C. Title 11, the occurrence of
an unauthorized transfer or assignment may, at the option of the Village,
terminate the agreement and accelerate all of the obligations and
rights thereunder, including, inter alia, the right of the Village
to purchase the cable communications system at book value or to award
a franchise to another person.
C.
Unless otherwise prohibited under U.S.C. Title 11 from and after any of the occurrences enumerated in Subsection A of this section, the franchisee shall not make, execute or enter into any deed, deed of trust, mortgage, contract, conditional sales contract or any loan, lease, pledge, sale, pole agreement or any other agreement or hypothecation concerning any of the facilities or property, real or personal, of the cable communications system without the written approval of the Village Board.[1]
D.
The franchisee shall execute a security agreement subordinate to
primary financing to secure payment of the fee made in accordance
with this chapter in the form and containing the conditions approved
by the Village Attorney under which the Village shall have a security
interest in the equipment, whenever acquired, of the franchisee's
cable communications system equipment, whenever acquired, or the franchisee's
cable communications system business in the Village, the accounts
receivable of the franchisee and the stock, if any, of the franchisee.
E.
The Village shall file or otherwise record as required by law a financing
statement to perfect such security interest, and the franchisee shall
cooperate fully in furnishing all information, records or other documents
requested by the Village to enable it to prepare and file such statement.
The security agreement provided for in this chapter shall be executed
simultaneously with the agreement awarding a franchise in accordance
herewith, and no such agreement shall be of any force or effect unless
and until the security agreement is executed as provided in this chapter
and the financing statement is filed or otherwise recorded. The Village
Attorney shall cause the financing statement to be filed or otherwise
recorded as required by law to perfect the Village's interest
after the execution of the franchise agreement and security agreement.
A.
On or before March 31 of each year, during the term of any agreement
awarding a franchise in accordance with this chapter, the franchisee
shall submit a written report to the Village, in a form approved by
the Village, including but not limited to the following information:
(1)
A summary of the previous year's or, in the case of the initial
reporting year, the initial year's activities in development
of the cable communications system, including but not limited to services
begun or discontinued, total number of subscribers, subscribers added
or discontinued during the reporting year, and user participation.
(2)
An audited financial statement which will include a statement of
income, revenues and operating expenses together with a certified
or verified franchise fee calculation setting forth the company's
gross revenues generated within the Village for each of the months
of the preceding year with any adjustments and, to the extent not
shown in the property tax schedule, the original cost of the system
retired from service during the previous year, the original cost of
the system added to service during the previous year, the total original
cost of the system in service and used and useful at the end of the
previous year, all other annual capital expenditures, and book depreciation
with an attached depreciation schedule.
(3)
A current statement of costs of construction by component categories.
(4)
A summary of complaints, identifying the number and nature of complaints
and their disposition.
(5)
A list of officers and members of the board of directors of the franchisee
and its parent, subsidiary or affiliated corporations, if any.
(6)
A list of its stockholders holding more than 50% of the voting stock
of the franchisee or its parent, subsidiary and affiliated corporations,
if any.
(7)
A copy of its annual report and those of its parent, subsidiary and
affiliated corporations.
(8)
Such other information or reports as the Board or the committee may
request, including but not limited to the following special reports:
(a)
Any opinion survey reports which identify dissatisfaction among
subscribers with cable communications services offered by the franchisee.
Surveys required to make such reports shall be conducted in conformance
with such requirements, including supervision, as the Village may
prescribe.
(b)
An annual plant survey report or proof of performance reports
filed with the FCC which shall be a complete survey of the franchisee's
plant and a full report thereon and which shall be submitted to the
Village. The purpose of such report is declared to be to assure the
Village that the technical standards of the FCC or the Village, whichever
are applicable, are achieved and maintained. Such report shall include,
but not be limited to, an appropriate engineering evaluation, including
suitable electronic measurements, and shall be conducted in conformance
with such requirements, including supervision, as the Village may
prescribe.
B.
General reports shall be prepared and furnished to the Village at
the time and in the form prescribed. Through these reports the Village
shall obtain information concerning the franchisee's operation,
business affairs and transactions or property as may be reasonably
necessary for the performance of any of the committee's duties.
Copies of all reports and documents required by the FCC or other state
or federal agencies shall be submitted to the Village and copies shall
be available for inspection by the general public at the franchisee's
office during regular business hours.
C.
It shall be unlawful for the franchisee to refuse, fail or neglect to file the reports required under this section. The refusal, failure or neglect of the franchisee to file any of the reports required under this section or as the committee may direct shall be deemed a violation of this chapter and shall subject the franchisee to the provisions of § 222-29 of this chapter and shall be deemed a material breach of any agreement awarding a franchise in accordance with this chapter and shall subject the franchisee to all penalties and remedies prescribed therein and to all other remedies, legal or equitable, which are available to the Village.
D.
Any material misrepresentation made knowingly by the franchisee in any report required under this section shall subject the franchisee to the provisions of § 222-29 of this chapter and shall be deemed a material breach of any agreement awarding a franchise in accordance with this chapter and shall subject the franchisee to all penalties and remedies prescribed therein and to all other remedies, legal or equitable, which are available to the Village.
E.
The Village may waive any portion of the documentation at its discretion.
To provide for technological changes in the state of the art
of cable communications, to facilitate renewal procedures, to promote
the maximum degree of flexibility in the cable communications system
and to achieve a continuing, advanced, modern system for the Village,
the Village and the franchisee shall comply with the following review
provisions:
A.
The committee may, at its option, hold review sessions from time
to time. All such review sessions shall be open to the public and
notice shall be given by advertisement in a newspaper of general circulation
at least one week before each session. In addition, the franchisee
shall announce the date and time of each such session on each of at
least five days immediately preceding each session at a minimum of
six regularly scheduled intervals daily.
B.
Topics for discussion and review at the review sessions shall include,
but not be limited to, the following: service, rate structure, free
services, application of new technologies, system performance, service
provided, programming, subscriber complaints, user complaints, right
of privacy, amendments to this chapter, undergrounding process and
developments in the law.
C.
Either the Village or the franchisee may select additional topics
for discussion at any review session.
D.
Any topic proposed for discussion at any review session by a resident
of the Village and supported by a petition bearing the signatures
of 100 Village residents shall be included in the list of topics for
discussion.
The procedure for considering the renewal of any agreement awarding
a franchise in accordance with this chapter shall be as set forth
in 47 U.S.C. § 546, unless a different procedure is mutually
agreed upon between the Village and franchisee.
A.
A franchise may be terminated by a majority vote of the members of
the Village Board in the manner provided in this section for any one
or more of the following:
(1)
The adjudication by a court of competent jurisdiction of a violation
by the franchisee of any provision of this chapter or of any rule
or regulation promulgated pursuant to this chapter; or
(2)
The breach or other failure, refusal or neglect by the franchisee
to perform its obligations under the terms and conditions of any agreement
awarding a franchise in accordance with this chapter.
B.
The Village President shall notify the franchisee in writing of any
complaint filed with the Village Board or of any adjudication by a
court of competent jurisdiction of a violation of the franchise ordinance
which could be grounds for termination of the franchise. The notification
shall contain a copy of any written complaint of any such violation
or a copy of a court judgment and shall specify that the Village President,
a representative of the franchisee and the complainant (if different
from the Village President) may attempt to informally meet and resolve
the complaint within 30 days of the receipt by the franchisee of the
notice, complaint or judgment.
C.
In the event that the complaint is not resolved informally within
30 days to the satisfaction of the Village President, the latter may
cause written charges to be filed with the Village Board specifying
the violation and the provisions of the ordinance or franchise agreement
to which the alleged violation corresponds.
D.
Following the filing of charges, a copy thereof shall be served by
certified mail, return receipt requested, upon the franchisee or its
agent. The Village Board shall set a date for hearing not less than
20 days following service of charges. The hearing on the charges shall
be before the Village Board and shall be open to the public, and each
party may be represented by an attorney and may compel the attendance
of witnesses by subpoenas which may be signed by the attorneys and
served as are subpoenas under Ch. 885, Wis. Stats. The Village President
shall preside at the hearing but shall not be entitled to vote except
in the case of a tie. The Village Clerk shall act as secretary of
the hearing and shall keep an accurate record of the proceedings.
Any party at its own expense may request the testimony be stenographically
recorded by a certified court reporter.
E.
If the Board determines that the charges are not sustained, the complaint
shall be dismissed. If the Board determines that the charges are sustained,
then the Board may declare the agreement awarding a franchise in accordance
with this chapter breached or terminated and may pursue any and all
remedies available to the Village. Termination of any agreement awarding
a franchise in accordance with the provisions of this chapter shall
in no way limit the rights of the Village under such an agreement
or any remedies, legal or equitable, available to the Village. In
addition, the Village Board may do any one of the following:
(1)
The Board may authorize the Village to exercise the Village's option provided in § 222-18 of this chapter to purchase a cable communications system from the franchisee;
(2)
The Board may authorize the franchisee to transfer the cable communications system in accordance with § 222-24 of this chapter;
(3)
The Board may direct the franchisee to dismantle its cable communications
system;
(4)
The Board may authorize the Village President to solicit proposals
for and execute a new agreement awarding a franchise in accordance
with this chapter and any amendments to this chapter; or
(5)
The Board may determine not to authorize the award of any further
franchise.
F.
Review of the Board's final determination shall be as set forth
in Ch. 68, Wis. Stats.
A.
This chapter shall be made to conform in style to any codification
of Village ordinances hereinafter adopted by the Board.
B.
Interconnection.
(1)
Neither the franchisee nor any other person shall connect or permit
the connection of the franchisee's cable communications system
electronically or in any other manner whatsoever with any other type
of system whatsoever, including but not limited to a cable communications
system, without the authorization and the written approval of the
committee, upon such conditions as the committee may direct. Such
written approval shall not be unreasonably withheld.
(2)
If the franchisee connects or permits the connection of its cable communications system in violation of the provisions of Subsection B(1) of this section, the franchisee shall be subject to the provisions of § 222-29 of this chapter and shall be deemed to have materially breached the agreement awarding a franchise in accordance with this chapter. The franchisee shall be subject to all penalties and remedies prescribed therein and to all other remedies, legal or equitable, which are available to the Village.
(3)
Any connection whatsoever of the franchisee's cable communications
system with any other kind of system, including but not limited to
a cable communications system, shall not relieve the franchisee of
any of its obligations under this chapter and any agreement awarding
a franchise in accordance with this chapter.
C.
This chapter and any agreement made in accordance with this chapter
shall in all respects be governed by the laws of the State of Wisconsin.
D.
The Village shall have the authority to reject any and all proposals
for any agreement awarding a franchise in accordance with this chapter.
E.
The franchisee shall comply with all federal, state and local laws.
F.
It shall be unlawful for any person to make or use any unauthorized
connection, whether physically, electrically or in any other manner,
with any part of a cable communications system operated by a franchisee
under any agreement in accordance with this chapter for the purpose
of enabling anyone to receive or use any signal or service without
payment to the franchisee.
G.
The provisions of this chapter are severable, and if any provision
or application is held illegal, unconstitutional or invalid, such
holding shall not affect the remaining provisions. It is the legislative
intent of the Board that this chapter would have been adopted if such
illegal provision had not been included or any illegal application
had not been made.
A.
Where this chapter provides alternative penalties or remedies, they
shall be cumulative, and the imposition of the penalty or remedy shall
not prevent the appropriate Village officer from invoking any other
penalty or remedy provided for.
B.
Unless otherwise provided, any person specifically (including the franchisee) convicted of violating any provision of this chapter or any rule or regulation promulgated under this chapter shall, upon conviction, be subject to a penalty as provided in § 1-5 of this Code. Each day of a continuing violation shall constitute a separate and distinct offense.[1]
C.
In addition to any penalty provided or imposed, any condition caused
or permitted to exist in violation of any provision of this chapter
shall be deemed to be a public nuisance and may be abated by the Village
as provided in law or equity. Each day such condition continues shall
constitute a separate and distinct offense.