For the purposes of this Article 2, the following phrases, terms, words, and their derivations shall have the meanings set forth in this Section
13-2-2. Unless a section provides otherwise, references to statutory enactments shall include any and all amendments thereto and any successor provisions. For the purpose of an approved franchise agreement that is subject to this Article 2, the terms in the franchise agreement shall prevail where there is a conflict between this Article 2 and the franchise agreement. Where the franchise agreement is silent, the terms of this Article 2 and the Cable Act shall control.
ACT or CABLE ACT
The Communications Act of 1934, the Cable Communications
Policy Act of 1984, as amended by the Cable Television Consumer Protection
and Competition Act of 1992 (47 U.S.C. § 521 et seq.) and
the Telecommunications Act of 1996 as may be amended.
BASIC CABLE SERVICE (BASIC SERVICE)
Any service tier which includes the retransmission of local
television broadcast signals and the public, educational, and government
access channels.
CABLE OPERATOR
Any person or persons, including, but not limited to, corporations,
partnerships, and joint ventures, who provide cable services through
means of a cable system, or multichannel video providers which may
include, but are not limited to, open video system providers or video
providers which provide a video signal to their subscribers by means
of leased telephone or other telecommunications lines which are located
in a public right-of-way, or any person or persons who manage, control,
coordinate, or direct the operations of a cable system. Cable operator
also includes multichannel video provider.
CABLE SERVICE
The one-way transmission to subscribers of: a) video programming,
or b) other programming service, and subscriber interaction, if any,
which is required for the selection or use of such video programming
or other programming service.
CABLE SYSTEM
A facility, consisting of a set of closed transmission paths
and associated signal generation, reception, and control equipment
that is designed to provide cable service which includes video programming
and which is provided to multiple subscribers within a community,
but such term does not include: a) a facility that serves only to
retransmit the television signals of one or more television broadcast
stations; b) a facility that serves subscribers without using any
public right-of-way; c) a facility of a common carrier which is subject,
in whole or in part, to the provisions of Title II of the Act, except
that such facility shall be considered a cable system [other than
for purposes of Section 621(c) of the Act] to the extent such facility
is used in the transmission of video programming directly to subscribers,
unless the extent of such use is solely to provide interactive on-demand
services; d) an open video system that complies with Section 653 of
the Act; or e) any facilities of any electric utility used solely
for operating its electric utility systems.
CHANNEL or CABLE CHANNEL
A portion of the electromagnetic frequency spectrum which
is used in a cable system and which is capable of delivering a television
channel as a television channel is defined by the Federal Communications
Commission by regulation.
CONVERTER
An electronic device which converts signal carriers from
one form to another.
DOWNSTREAM CHANNEL
A channel which is transmitted in a direction from the headend
to the subscriber's television set.
DWELLING UNIT
Any single-family or multiple-family residential place of
occupancy.
EDUCATIONAL ACCESS CHANNEL
A noncommercial educational access channel or channels set
aside and so designated for the use of schools and related educational
institutions.
FCC
The Federal Communications Commission or successor agency
created by the United States Congress with the authority to regulate
and license in connection with the subject matter of this Article
2.
FRANCHISE
The nonexclusive right granted through the authority of a
franchise agreement between the Village and any grantee hereunder
which allows the grantee to own, operate, construct, reconstruct,
upgrade, dismantle, test, use, and maintain a cable system within
the corporate boundaries of the Village, or within specified areas
of the Village and is not intended to include any license or permit
required for the privilege of transacting and carrying on a business
within the Village as may be required by other laws or ordinances
of the Village.
FRANCHISE AGREEMENT
That certain written agreement entered into between a grantee
and the Village/franchising authority wherein the franchise and the
terms thereof are conferred upon the grantee.
FRANCHISE AREA
That portion within the corporate limits of the Village for
which a franchise is granted under the authority of a franchise agreement.
If not otherwise stated within a franchise agreement, the franchise
area shall be the corporate limits of the Village of Lincolnwood including
all territory thereafter annexed to the Village.
FRANCHISE FEE
Any assessment imposed herein by the Village on a grantee
solely because of its status as a grantee. The term "franchise fee"
does not include any tax, fee or assessment of general applicability
(including any such tax, fee, or assessment imposed upon both utilities
and cable operators or their services), but not including, a tax,
fee or assessment which is unduly discriminatory against the grantee
or cable subscribers; capital costs which are required by the franchise
to be incurred by the grantee for the establishment and operation
of public, educational, or governmental access facilities; requirements
or charges incidental to the awarding or enforcing of the franchise,
including payments for bonds, security funds, letters of credit, insurance,
indemnification, penalties, liquidated damages; or any fee imposed
under Title 17, United States Code.
GRANTEE
Any person or persons, including corporations, limited liability
companies, partnerships, associations, joint ventures, or organizations
of any type granted a franchise hereunder, and its agents, employees,
subsidiaries, assignees, transferees or lawful successors.
GROSS REVENUES
Includes all revenue received by a grantee derived from and in connection with the operation of the grantee's cable system to provide cable service within the Village, including, but not limited to, revenues, fees, receipts or charges from or for: basic tier cable service; any tier of video programming service other than basic service; any optional, premium, per channel or per program service; any installation, disconnection, reconnection, change-in-service or other customer service; rentals of converters, remotes or other customer premises equipment; provision of data services, such as internet services carried over the cable system which are cable services as defined by Title VI of the Act; commercial leased channels or channel access; advertising revenues (including infomercials); including a per subscriber share of revenues for the grantee's subscribers within the Village which is received for advertising carried on one or more cable systems in addition to the grantee's cable system within the Village; revenues from home shopping channels; the sales of programming guides, and such other revenue sources from the provision of cable service as may now exist or hereafter develop, provided that such revenues, fees, receipts or charges may lawfully be included in the gross revenue base on which the Village may calculate and collect franchise fees. Gross revenues shall not include any amounts refunded to subscribers, any unpaid subscriber or advertiser accounts and any sales tax, telecommunications tax, utility message tax or other taxes imposed directly upon any subscriber or user by the Village, the state or other governmental unit and collected by the grantee on behalf of and for remittance to the Village, the state or other governmental unit. As used herein, annual gross revenues shall mean gross revenues attributable to a twelve-month accounting period, or portion thereof. This definition of gross revenues shall be the basis for computing the fee imposed pursuant to Section
13-2-11 of this Code.
HEADEND
The control center of a cable television system, where incoming
signals are amplified, converted, processed, and combined into a common
cable along with any origination cablecasting, for transmission to
subscribers. Headend usually includes antennas, preamplifiers, frequency
converters, demodulators, processors, and other related equipment.
INSTALLATION
The connection from system feeder cable to the subscriber's
converter or terminal and the provision of service.
INTERACTIVE SYSTEM
A two-way cable system that has the capability to provide
upstream and downstream communications and subscriber interaction.
LEASED ACCESS CHANNEL
A cable television channel or channels or parts thereof,
designated for cable casting which is provided by means of a lease
arrangement for cablecast airtime between the cable operator and the
lessee. Shall include without limitations all use pursuant to Section
612 of the Act (47 U.S.C. § 532).
LOCAL ORIGINATION CHANNEL
A channel providing programs that are produced or acquired
by the cable operator which is under the control of the cable operator.
MULTICHANNEL VIDEO PROVIDER
Any system distributing video programming to subscribers
which use all or part of the Village right-of-way in order to distribute
such video programming or which distributes such programming to subscribers
over the lines of a common carrier which are located in all or part
of the Village right-of-way.
ORDINANCE
The Village of Lincolnwood Cable Communications Ordinance,
as may be amended from time to time (See also "cable communications
ordinance.")
PUBLIC ACCESS CHANNEL
A cable television channel specifically designated as a channel
available to the public for the production of noncommercial television
programming as subject to applicable law.
PUBLIC STREET
The surface, the air space above the surface, and the area
below the surface of any public street, road, highway, lane, path,
alley, sidewalk, boulevard, drive, or bridge, now or hereafter held
by the Village. No reference herein, or in any franchise, to the public
street shall be deemed to be a representation or guarantee by the
Village that its title to any property is sufficient to permit its
use for such purpose, and a grantee shall, by the use of such terms,
be deemed to gain only such rights to use property in the Village
as the Village may have the undisputed right and power to give.
PUBLIC WAY
The surface and the space above and below the surface of
any public parkway, driveway, sidewalk, conduit, tunnel, bridge, park,
square, waterway, utility easement, or other public right-of-way now
or hereafter held by the Village. No reference herein, or in any franchise
agreement to the public street shall be deemed to be a representation
or guarantee by the Village that its title to any property is sufficient
to permit its use for such purpose, and a grantee shall, by the use
of such terms, be deemed to gain only such rights to use property
in the Village as the Village may have the undisputed right and power
to give.
RIGHT-OF-WAY
Any public street, public way, alley, other land or waterway,
dedicated or commonly used for utility purposes, including utility
easements in which the Village has the right and authority to authorize,
regulate or permit the location of facilities other than those of
the Village. Right-of-way shall not include any real or personal Village
property that is not specifically described in the previous two sentences
and shall not include Village buildings, fixtures, and other structures
or improvements, regardless of whether they are situated in the right-of-way.
SCHOOLS
All public and private elementary and secondary schools,
junior colleges, colleges, and universities which have been granted
a certificate of recognition by the Illinois State Board of Education.
SERVICE CALLS
The grantee's on-site visits to a subscriber's residence
regarding cable service.
SUBSCRIBER
Any person who receives one or more of the services provided
by a grantee's cable system, and does not further distribute such
services.
SUBSCRIBER DROP
A cable (currently coaxial) which connects the tap of a feeder
cable to ground block at the subscriber's premises.
TRANSFER
Unless otherwise specifically provided in a franchise agreement,
any transactions or series of transactions which, singularly or collectively,
result in the sale, assignment or transfer of all or a majority of
the assets of a grantee or the cable system or a change of 5% or more
of the ownership or working control of a grantee, of the ownership
or working control of the franchise or of the ownership or working
control of affiliated entities having ownership or working control
of the grantee, the franchise or cable system. Franchise transfers
require Village approval as provided in this Article 2. Transactions
between affiliates of a grantee are not exempt from Village approval,
except as specifically provided in a franchise agreement between the
Village and a grantee.
UPSTREAM CHANNEL
A channel which is transmitted in a direction from the subscriber's
terminal to the headend or hub.
The grantee and the franchising authority shall follow the procedure
for Section 625 franchise modifications as established by Section
625 of the Cable Act.
At the Village's sole option, within six to 12 months after
the completion of construction or rebuild of the system and every
three years thereafter throughout the term of the franchise, the Village
and a grantee shall meet publicly to review the performance and quality
of service of the cable system.
(A) Topics for discussion. Topics for discussion and review may include,
but shall not be limited to, services provided, application of new
technologies, system performance, programming, developments in the
law, and technical and economic feasibility of system expansion or
upgrading. Either the Village or the grantee may select additional
topics for discussion.
(B) Issuance of report. Within 30 days after the conclusion of the review,
the Village may issue a report with respect to the adequacy of system
performance and quality of service. If inadequacies are found, the
Village may direct the grantee to correct the inadequacies within
a reasonable period of time.
(C) Failure to correct inadequacies. Failure of a grantee, after due
notice, to correct any inadequacies found during the review may be
a violation of a specific provision of the franchise or this Article
2. The Village may, at its sole discretion, exercise any remedy within
the scope of this Article 2 considered appropriate.
Unless otherwise provided for in a franchise agreement a grantee
shall provide the following:
(A) Grantee to provide connections to specified public institutions.
A grantee shall provide subscriber cable connections to all schools,
government buildings, and public institutions as identified in the
franchise agreement.
(B) Grantee to provide adequate outlets for school buildings. A grantee
shall provide an adequate number of cable system outlets to each school
building in a manner that will allow for cable television reception
in classrooms designated by each school, and for provision of reception
in nonpublic areas of each school as so designated by each school.
A grantee may charge each school for up to 50% of the actual cost
for labor and materials necessary for providing adequate cable system
wiring.
(C) Grantee to provide adequate outlets for government buildings. A grantee
shall provide a number of cable system outlets as agreed to in the
franchise agreement at the Village Hall and other government buildings
designated by the Village in the franchise agreement. A grantee shall
provide all cable system connections free of charge; however, a grantee
may charge the Village for the labor and cost of materials of any
nonstandard installation as defined herein to any Village building.
A grantee shall comply with the requirements of this Article
2 and the franchise agreement at all times during the term of its
franchise. If the Village has reason to believe that a grantee has
committed a certain violation of this Article 2 or the franchise agreement,
the Village may act to remedy the violation.
(A) Remedies retained. No provision of this Article 2 shall be deemed
to bar or otherwise limit the right of the Village to seek or obtain
judicial relief from a violation of any provision of the franchise
or any rule, regulation, requirement, or directive promulgated thereunder.
Neither the existence of other remedies identified in this Article
2 nor the exercise thereof shall be deemed to bar or otherwise limit
the right of the Village to recover monetary damages, except where
liquidated damages are otherwise prescribed, for such violation by
the grantee, or judicial enforcement of the grantee's obligations
by means of specific performance, injunction relief or mandate, or
any other remedy available contractually, at law or in equity.
(B) Fine imposed. Unless otherwise provided, any person convicted of
violating any provision of this Article 2 or any rule or regulation
promulgated hereunder shall, upon conviction, be subject to a fine
in the amount set forth in the Annual Fee Resolution, plus costs for
each offense. Each day of a continuing violation shall constitute a
separate and distinct offense.
(C) Liquidated damages. By acceptance of the franchise, each grantee
shall agree that failure to comply with any time and performance requirements
as stipulated in this Article 2 and the franchise agreement will result
in damage to the Village that is not readily ascertainable. The applicable
franchise agreement shall include provisions for liquidated damages
to be paid by the grantee, in amounts set forth in the applicable
franchise agreement and chargeable to a security fund therein created.
(D) Violation procedures.
(1)
Notice of violations. Written notice shall be given to a grantee
setting forth the nature of the violation and a reasonable period
of time for a grantee to correct the violation. Unless the Village
determines that the violation is of such a nature that a lesser period
of time is warranted for remedying the violation, a grantee shall
be given 30 days after receipt of such notice to remedy the violation.
(2)
Answer to notice of violations. Within 30 days, or such other
period of time specified by the Village in its notice to a grantee,
a grantee shall respond in writing to the Village:
(a)
That it contests the Village's notice of violation and requests
an opportunity to be heard as provided herein. A grantee shall submit
supporting documentation with its response to the notice.
(b)
That it contests the Village's notice of violation for the reasons
that the violation was beyond the reasonable control of a grantee
and requests an opportunity to be heard as provided herein. A grantee
shall submit supporting documentation with its response to the notice.
(c)
That a grantee will remedy the violation within the time specified
by the Village in its notice to a grantee.
(d)
If a grantee contends that an extended period of time is reasonably
needed to remedy the violation, it shall submit a written request
for an extension, together with supporting documentation that a grantee
cannot reasonably remedy the violation within the time period specified
by the Village in its notice to a grantee. The Village shall not unreasonably
deny an extension of time to remedy the violation. If the Village
grants the extension, a grantee shall proceed to remedy the violation
within the extended time prescribed, provided that a grantee also
informs the Village on a regular basis of the steps being taken to
remedy the violation.
(3)
Hearing. The Village shall give a grantee not less than 14 days'
written notice of the date, time and place of the public hearing to
be held before the corporate authorities. At the public hearing, the
corporate authorities shall hear and determine the issues and render
its findings and its decision. If a hearing officer has been appointed
by the Village, the hearing officer shall hear the relevant evidence
and shall render a record of the administrative hearing and recommended
findings and decision to the corporate authorities.
(4)
Determination. If the grantee fails to submit a written response to the Village's notice of violation as provided in Section
13-2-24(D)(2) of this Code, or if a grantee fails to remedy the violation within the time period specified by the Village in its notice to a grantee, or any extensions thereto granted by the Village, or if the corporate authorities are persuaded after a hearing that a grantee has committed a violation as provided herein, the corporate authorities may, after giving a grantee an opportunity to be heard:
(a)
Order a grantee to remedy the violation within a reasonable
period of time specified by the corporate authorities.
(b)
Assess liquidated damages against a grantee in accordance with
the franchise agreement.
(c)
Impose any lesser sanction permitted by a franchise agreement.
(5)
Judicial relief not barred. No provision of this Section
13-2-24 shall be deemed to bar or otherwise limit the right of the franchising authority to seek or obtain judicial relief to enforce the provisions of this Cable Communications Ordinance.
Nothing in this Article 2 or in any franchise agreement shall
be construed as an abrogation by the Village of any of its police
powers.
A grantee shall make its services available to any customer
within the franchise area who shall request such service, without
discrimination as to the terms, conditions, rates or charges for grantee's
services; provided, however, that nothing in this Article 2 shall
prohibit a grantee from making any reasonable classifications among
differently situated customers.
Throughout the term of a franchise, the grantee shall fully
comply with the equal employment opportunity requirements of the applicable
federal, state and local law, and, in particular, FCC rules and regulations
relating thereto. Upon request by the Village, the grantee shall furnish
the Village with a copy of the grantee's annual statistical report
filed with the FCC, along with proof of the grantee's annual certification
of compliance.
Any grantee holding a franchise on the effective date hereof,
or which is awarded a franchise under the conditions of this Article
2, shall be required to have in force a written policy regarding sexual
harassment which complies in all respects with the Illinois Human
Rights Act, 775 ILCS 5/2-105(A)(4).
A grantee shall comply with the standards of the Occupational
Safety and Health Administration, and safety standards established
by the Department of Labor of the State of Illinois in maintaining
its operational facilities, working conditions, and work procedures
utilized as a part of the construction, upgrade, installation, repair
and maintenance of the cable system. A grantee's equipment shall bear
all FCC and appropriate safety agency markings.
The grantee shall at all times comply with all applicable laws
and regulations of federal, state and local governments, or any administrative
agencies thereof.
The grantee shall have the authority to promulgate such rules,
regulations, terms, and conditions of its business as shall be reasonably
necessary to enable it to exercise its rights and perform its services
under this Article 2 and the rules of the FCC, and to assure uninterrupted
service to each and all of its subscribers. Such rules and regulations
shall not be deemed to have the force of law.
To the extent that the Local Governmental and Governmental Employees
Tort Immunity Act, 745 ILCS 10/1-101 et seq., as may be amended, and
any other laws immunize the Village and its officials, boards, commissions,
agents, or employees, a grantee shall have no recourse whatsoever
against the Village or its officials, boards, commissions, agents,
or employees for any loss, costs, expense, or damages arising out
of any provision or requirement of the ordinance or franchise agreement.
A grantee shall expressly acknowledge that upon accepting the right,
privilege and franchise granted pursuant to the ordinance, it does
so relying upon its own investigation and understanding of the power
and authority of the Village. By the acceptance of a franchise, a
grantee shall agree it will not at any time set up against the Village
in any claim or proceeding any provision, condition or term of the
ordinance or the franchise agreement as unreasonable, arbitrary or
void or that the Village had no power or authority to make such provision,
term or condition as part of or pursuant to the ordinance, except
as to those matters preempted by federal or state law.
Whenever any provision of this Article 2 or the franchise agreement
shall set forth any time for any act to be performed by a grantee,
such time shall be deemed to be of the essence.
Whenever a period of time is provided for in this Article 2
or the franchise agreement, for either the Village or the grantee
to do or perform any act or obligation, neither party shall be liable
for any delays due to war, riot, insurrection, rebellion, unavoidable
casualty or damage to personnel, materials, or equipment, fire, flood,
storm, earthquake, tornado, orders of a court of competent jurisdiction,
any act of nature, failure of a utility provider to provide pole attachments
on reasonable terms or conditions therefor, or any cause beyond the
control of said party. In such event, said time period shall be extended
for the amount of time said party is so delayed. An act or omission
shall not be deemed to be beyond a grantee's control if committed,
omitted, or caused by a corporation or other business entity which
holds a controlling interest in the grantee, whether directly or indirectly.
Further, the failure of a grantee to obtain financing, or to pay any
money due from it to any person, including the Village, for whatever
reason, shall not be an act or omission which is beyond the control
of the grantee.
Except as otherwise provided in a franchise agreement or herein,
pursuant to the Village's home rule authority under Article VII, Section
6, of the Illinois Constitution, the Village may transfer or delegate
any right, power or duty of the Village, the franchising authority,
or any official of the Village, under the franchise agreement by ordinance,
resolution, or other appropriate action of the Village, to an appropriate
officer, employee, or department of the Village, or any other legal
authority, including any intergovernmental agency created for the
purpose of regulating the operation and development of the cable system.
Nothing in this Article 2 shall be deemed or construed as a
waiver or release of any rights that the Village may have under applicable
laws or regulations.