[HISTORY: Adopted by the Common Council of the City of Marion 7-22-1993 as Title 9,
Ch. 3, of the 1993 Code. Amendments noted where applicable.]
For the purposes of this chapter, the following terms, phrases,
words and their derivations shall have the meaning given herein. When
not inconsistent with the context, words used in the present tense
include the future, words in the plural number include the singular
number, and words in the singular number include the plural number.
The word "shall" is always mandatory and not merely directory.
A system of coaxial cables or other electrical conductors
and transmission equipment used, or to be used, primarily to receive
television or radio signals directly or indirectly off the air and
other related services and transmit them to a subscriber for a fee.
The City of Marion.
Any facility that, in whole or in part, receives directly
or indirectly over the air and amplifies or otherwise modifies the
signals transmitting programs broadcast by one or more television
or radio stations and distributes such signals by wire or cable to
subscribing members of the public who pay for such service, but such
term shall not include:
The Common Council of the City of Marion.
The Federal Communications Commission and any legally appointed
or elected successor.
Any person who is granted a franchise by separate ordinance
in accordance with provisions of this chapter.[1]
That code as sponsored by the National Fire Protection Association
under the auspices of the American National Standards Institute, with
the purpose of the code being detailed in Section 90-1 and the scope
of the code as outlined in Section 90-2 of the National Electrical
Code, and any subsequent amendments thereto.
Any person, firm, partnership, association, corporation,
company, or organization of any kind.
The surface of, and the space above and below, any public
street, road, highway, freeway, right-of-way, easement, alley, court,
sidewalk, parkway, drive or other public property hereafter existing
as such within the City of Marion; also meant to include those areas
dedicated for any of the above-described purposes.
It shall be unlawful for any person to construct, install or
maintain within any public street in the City, or within any other
public property of the City, or within any privately owned property
within the City which has not yet become a public street but is designated
or delineated as a proposed public street on the City's Official
Map or on any tentative subdivision map approved by the City, any
equipment or facilities for distributing any television signals or
radio signals through a cable television system unless a franchise
authorizing the use of such street or property or area has first been
obtained pursuant to the provisions of this chapter and unless such
franchise is in full force and effect.
A.
Review of qualifications. The Common Council may grant a franchise
for the operation of a community antenna television and audio communication
system under the provisions of this chapter to any grantee after a
review of the legal, character, financial, technical, and other qualifications
as determined by said Common Council and the adequacy and feasibility
of the grantee's construction arrangements. Determinations by
the Common Council regarding such qualifications shall be made and
determined as part of a full public proceeding including a public
hearing before the Council prior to the grant on any franchise if
the Council so directs.
B.
Submission of proposal required. Any person seeking a franchise hereunder shall first submit a proposal to the City Clerk-Treasurer which provides full, complete and detailed responses to any information required by the City which will aid the Common Council in reviewing the qualifications set forth in Subsection A above.
C.
Public hearing. Any public hearing required hereunder shall be held
before the Common Council at a regular or special meeting thereof
and adequate notice thereof shall be published.
D.
Grant of authority. Any franchise granted hereunder by the Common
Council pursuant to this chapter shall give a grantee the right and
privilege to construct, erect, operate and maintain, in, upon, along,
across, above, over and under the streets, alleys, public ways, and
public places now laid out or dedicated, and all extensions thereof
and additions thereto, in the City, poles, wires, cables, underground
conduits, manholes, and other television conductors and fixtures necessary
for the maintenance and operation in the City of a CATV system and
radio signals. Such rights and privileges, however, shall be limited
by all rules, regulations and prohibitions contained in this chapter.
E.
Acceptance of franchise. The grantee of any franchise hereunder shall,
within 30 days of the granting of said franchise, acknowledge in writing
that the grantee:
(1)
Accepts the award of the franchise.
(2)
Acknowledges that it has not been induced to enter into this franchise
by any understanding or promise or other statement, whether verbal
or written, by or on behalf of the City concerning any term or condition
of this franchise that is not included in this chapter.
(3)
Acknowledges by the acceptance of this chapter and the franchise
awarded hereunder that it has carefully read its terms and conditions
and that it is willing and does accept all the obligations of such
terms and conditions and further agrees that it will not set up as
against the City the claim that any provision of this chapter as originally
adopted and any franchise granted hereunder is unreasonable, arbitrary,
invalid or void.
(4)
Has secured the necessary policies of insurance required by this
chapter and files therewith a copy of said policy.
A.
Initial term. Upon the grant and acceptance of a franchise in accordance
with the provisions of this chapter, such franchise shall take effect
and shall continue in full force and effect, subject to termination
for cause, for a term of 15 years.
B.
Renewal. Any franchise granted hereunder may be renewed by the Common
Council for an additional term of 15 years. At least one year prior
to the expiration of the initial franchise term, the grantee shall
notify the Common Council, in writing, of its intent to seek renewal
of said franchise. Upon receipt of such notice, the Common Council
or a committee thereof shall schedule a public meeting or meetings
with the grantee to review franchise performance, plans, prospects,
and any need for amendments to any rules or regulations imposed upon
the franchise. The Common Council shall, after such meeting or meetings,
order a public hearing as required in the granting of an initial franchise
and, thereafter, may renew any franchise upon the same or different
terms, conditions, regulations and prohibitions as are determined
by the Common Council to be in the public interest.
C.
Periodic franchise review. In addition to any other regulations contained
herein, the Common Council may, on or about every third anniversary
of the effective date of the franchise, schedule a public meeting
or meetings with any grantee to review the franchise performance,
plans and prospects. The City may require the grantee to make available
specified records, documents and information for this purpose. The
Common Council, or designated committee thereof, shall first confer
with the grantee regarding modifications in the franchise which might
impose additional obligations on the grantee, and the grantee may
in turn seek to negotiate relaxations in any requirements previously
imposed on it that are subsequently shown to be impractical. In addition
to the reviews hereby permitted, this review procedure may be initiated
at any time during the term of the franchise by mutual agreement of
the Common Council and the grantee. Any changes in the franchise ordinance
which are mutually agreed upon shall be passed into law by the Common
Council and accepted in the manner prescribed in this chapter.
A.
Power to terminate. The Common Council may terminate any franchise
granted pursuant to the provisions of this chapter in the event of
the willful failure, refusal or neglect by the grantee to do or comply
with any material requirement or limitation contained in this chapter,
applicable state regulations, or FCC rules and regulations.
B.
Procedure for termination.
(1)
Whenever any of the above-mentioned circumstances occur or exist,
the Common Council may direct an appropriate officer, agent or employee
of the City to make written demand upon the grantee that said grantee
do or comply with an aforementioned requirement, limitation, term,
condition, rule or regulation. The written notice shall direct that
such action or compliance occur within 30 days of the date of the
written demand and, if the same does not occur, that the Common Council
will act to terminate the franchise.
(2)
After such thirty-day period, and upon the refusal, failure or neglect
of the grantee to comply with the requirements set forth in the written
demand, the Common Council may summon the grantee to appear before
it at a regular or special meeting of such Common Council for the
purpose of holding a public hearing to determine whether such franchise
shall be terminated. Such summons shall be served upon the grantee
at least 10 days prior to the date for such regular or special meeting.
Upon the completion of testimony at such hearing, the Common Council
shall determine whether any act, failure, refusal or neglect by the
grantee occurred with or without just cause. If just cause exists
for such act, failure, refusal or neglect, the Council may order a
reasonable time within which compliance may occur. If such act, failure,
refusal or neglect occurs without just cause, the Council may find
and determine that the franchise shall be terminated and adopt an
ordinance providing for termination.
All state and national health and safety codes, including the
National Electrical Code, all applicable rules and regulations of
the Federal Communications Commission regarding cable television service
and cable television relay service, and the proposal of any person
granted a franchise hereunder are hereby incorporated herein by reference
and made part hereof as if fully set forth herein. Any violation of
such regulations or any failure, refusal or neglect by the grantee
to comply with any representation made in said proposal shall be a
violation of this section. If any valid law, rule or regulation promulgated
by any governing authority or agency having jurisdiction (including
but not limited to the FCC) contravenes the provisions of this section,
the provisions hereof shall supersede the proposal.
A.
Indemnification. A grantee shall indemnify, hold and save harmless,
and defend the City and all of its officers, boards, commissions,
agents, employees and representatives from any and all claims, demands,
causes of action, copyright action liability, judgments, costs, expenses,
damages, including but not limited to damages to City property and
damages arising out of any failure by the grantee to secure consent
from the owners, authorized distributors or licensees of programs
to be delivered by the grantee's cable television system, and
liabilities, including costs of liabilities of the City with respect
to its employees, of every kind and nature whatsoever, including but
not limited to damages for injury or death or damage to person or
property, regardless of the merit of any of the same, except when
caused by the City's negligence, and against any loss, cost,
and expense resulting or arising out of any of the same, including
reasonable attorney fees, reasonable accountant fees, reasonable expert
witness or consultant fees, court costs, reasonable per diem expense,
traveling and transportation expense, or other approvable and reasonable
cost or expense arising out of or pertaining to the exercise or enjoyment
of any franchise hereunder by the grantee or the granting thereof
by the City.
B.
Defense of litigation. The grantee shall, at its own risk and expense,
upon demand of the City made by and through the City Attorney, appear
in and defend any and all suits, actions, or other legal proceedings,
whether judicial, quasi-judicial, administrative, legislative or otherwise,
brought or instituted or had by third persons or duly constituted
authorities against or affecting the City, its officers, boards, commissions,
agents, employees or representatives and arising out of or pertaining
to the exercise of such franchise. The grantee shall pay and satisfy
and shall cause to be paid and satisfied any judgment, decree, order,
directive or demand rendered, made or issued against the grantee,
the City or its officers, boards, commissions, agents, employees or
representatives in any of these premises, and such indemnity shall
exist and continue without reference to or limitation by the amount
of any bond, policy of insurance, deposit, undertaking or other assurance
required hereunder, or otherwise, provided that neither the grantee
nor City shall make or enter into any compromise or settlement of
any claim, demand, cause of action, action, suit, or other proceedings
with regard to City liability without first obtaining the written
consent of the other.
D.
Public liability insurance.
(1)
The grantee shall carry good and sufficient public liability and property damage insurance to fulfill the terms of Subsections A, B and C above, which insurance shall be in the amounts of not less than $500,000 for property damage in any one accident and not less than $500,000 bodily injury or death of any person, with a minimum of $1,000,000 as to any one accident.
(2)
The policy shall provide for endorsement that it may only be cancelled
or amended by the insurance company after 60 days' notice, in
writing, to the City Attorney.
(3)
Said policy (or policies) must be enforced before the grantee commences
any construction or installation.
(4)
Either the original policy (or policies) or certified copies must
be on file with the City Attorney and the City Clerk.
(5)
The policy shall provide that the City of Marion is named as an additional
insured and shall further provide that so naming the City as an additional
insured shall not exempt the insurer from liability to the City for
damages to property owned by it or in which it has an interest.
(6)
The foregoing insurance requirements are minimum requirements only,
and the fact that any grantee carries in force and effect such policies
shall not in any way waive, limit or reduce the grantee's obligation
to indemnify, hold harmless or defend the City as set forth above.
E.
City's right of intervention. Any grantee hereunder shall not oppose
intervention by the City in any suit or proceeding relating to the
franchise where the grantee is a party.
The authority granted above is expressly conditioned upon compliance
with the provisions of this chapter, including but not limited to
the following regulations:
A.
Inspection. The City shall have the right to inspect and supervise
all construction or installation work performed in, under, upon, over
or through any street, easement or other public property.
B.
Use of existing poles or conduits.
(1)
Nothing in this chapter or any franchise granted hereunder shall
authorize the grantee to erect and maintain in the City any new poles
where existing poles of other companies or utilities are servicing
a geographic area. The grantee shall apply to the Street Superintendent
for permission to erect any new poles, underground conduit or appurtenances
where none exist at the time the grantee seeks to install its network.[1]
(2)
Any franchise granted hereunder shall not relieve the grantee of
any obligation involved in obtaining pole or conduit use agreements
from the utility companies or other persons maintaining poles or conduits
within any street or other public property, whenever the grantee finds
it necessary to make use of said poles or conduits.
(3)
In the event that the grantee has its facilities located upon poles
or in conduits owned by other persons and the pole or conduit is removed,
relocated or abandoned, the grantee may be required to remove its
facilities and provide services in another approved method.
C.
Underground facilities. The grantee shall be required to install
its facilities underground in any location where all other utilities
are underground.
D.
Aboveground facilities. The grantee shall be required to install,
construct and build its earth station (receiving dish), head end and
tower within the City limits.
E.
Facilities not to be hazardous or interfere. All installations of
equipment shall be of a permanent nature, durable, and installed in
accordance with good engineering practice, sufficient to comply with
all existing City of Marion regulations and state laws, so as not
to interfere in any manner with the right of the public or individual
property owner, and shall not interfere with the travel and use of
public places by the public, and during the construction, repair or
removal thereof shall not obstruct or impede traffic unnecessarily
or unreasonably interfere with the use or enjoyment of private property
adjacent thereto.
F.
Restoration. In the event of disturbance of any street by the grantee,
it shall, at its own expense, replace and restore such street in as
good a condition as before the work causing such disturbance was done.
G.
Notice of City improvements. The City reserves the right upon reasonable
notice to require the grantee, at its expense, to protect, support,
temporarily disconnect, relocate or remove from the City's streets
any property of the grantee by reason of traffic conditions, public
safety, street construction or vacation, change or establishment of
street grade, installation of sewers, drains, water pipes, power or
communication lines, tracks, or other types of structure or improvements
by governmental agencies or any other structures or public improvements.
"Reasonable notice" for this provision of this chapter shall be construed
to mean that at least 30 days prior to such improvements the City
will notify any grantee that some time after said thirty-day period
the grantee will be required to act hereunder within at least three
days of further notice. At any time after the expiration of the thirty-day
period, the City may require action hereunder upon three additional
days' notice.
H.
Temporary removal of wire or cable for building moving. The grantee
shall, on the request of any person holding a building moving permit,
temporarily raise or lower its wires to permit the moving of said
building. The expense of such temporary removal, raising or lowering
of wires shall be paid by the person requesting the same, and the
grantee shall have the authority to require such payment in advance.
The grantee shall be given not less than 48 hours' written notice
of any move contemplated to arrange for temporary wire changes.
I.
Reimbursement. In the event that the grantee fails to perform any such work detailed in Subsections F, G and H within the time period provided for notice as contained therein, the City shall have the right to perform said work or enter into appropriate contracts to have said work done, at the sole expense of the grantee.
J.
Authority to trim trees. The grantee shall have the authority to
trim trees upon and overhanging streets so as to prevent the branches
of such trees from coming in contact with the wires and cables of
the company.
K.
Alternate routing of plant. In the event that continued use of a
street is denied to the grantee by the City for any reason, the grantee
will make every reasonable effort to provide service over alternate
routes.
L.
Plant records. The grantee shall furnish the City, upon completion
of construction, maps, specifications, and staking sheets showing
all locations of the grantee's facilities. Upon any change as
to construction and removal, the grantee shall provide the City with
new and revised construction sheets for the City's records, except
for individual subscriber connecting wires or cables.
A.
Obtaining necessary permits. Within 30 days after acceptance of any
franchise, the grantee shall proceed with due diligence and obtain
all necessary permits and authorizations which are required in the
conduct of its business, including but not limited to authorization
to commence operation upon the filing of a registration statement
with the FCC, or other federal authorization, microwave carrier licenses,
and any other permits, licenses and authorizations to be granted by
duly constituted regulatory agencies having jurisdiction over the
operation of CATV systems or associated microwave transmission facilities.
Any utility joint use attachment agreements shall be obtained within
90 days after acceptance of any franchise.
B.
Construction and installation. Within 90 days after obtaining all
necessary permits, licenses and authorizations, including right of
access to poles and conduits, the grantee shall commence construction
and installation of the cable television system. Within 180 days after
the commencement of construction and installation of the system, the
grantee shall proceed to render service to subscribers, and the completion
of the installation and construction shall be pursued with reasonable
diligence.
C.
Easements implied. The right of construction, including easements,
is implied, but only in conformity with the provisions of this section.
All other rights of construction shall be the responsibility of the
operator.
D.
Area to be serviced. The grantee shall extend its cable system to
provide full service to all residents within the City, and to all
residents of newly annexed areas within a reasonable period of time
after such annexation, where a density of 50 subscribers per cable
mile can be obtained. In areas where the grantee must install its
system underground, the grantee may charge an installation charge
up to the actual cost of providing such cable service which is in
excess of that cost to the grantee of providing cable service in areas
served by aerial utilities.
A.
Operations to be in accordance with rules. The grantee shall maintain
and operate its broadband telecommunications network in accordance
with the rules and regulations of the FCC, the State of Wisconsin,
and/or the City as are incorporated herein or may be promulgated.
B.
Location of facilities.
(1)
The grantee shall maintain an office and program production facilities
within the City limits which shall be open during all usual business
hours, have a listed telephone number and be so operated that complaints
and requests for repairs and adjustments may be received at any time.
(2)
The grantee shall be capable of providing service seven days a week
for all complaints and requests for repairs or adjustments. The grantee
shall at all times keep and maintain at its office a log of all complaints
and interruptions or degradation of service received or experienced
for a period of three years.
C.
Notification of interruption of service. The grantee, whenever it
is necessary to interrupt service over the community antenna television
and audio communication system for the purpose of network maintenance,
alteration or repair, shall do so at such time as will cause the least
amount of inconvenience to the subscribers, and unless such interruption
is unforeseen and immediately necessary, the grantee shall give reasonable
notice thereof to the affected subscribers.
D.
Grantee rules and regulations. The grantee shall have the authority
to promulgate such rules, regulations, terms and conditions governing
the conduct of its business as shall be reasonable and necessary to
enable the grantee to exercise its rights and performance obligations
under this chapter and franchise. None of such rules, regulations,
terms or conditions so established shall be in conflict with the provisions
hereof or the laws of the state, or the rules and regulations of the
FCC, or any rules and regulations promulgated by the City in the exercise
of its regular authority granted hereunder. Copies of all such rules,
regulations, terms and conditions shall be filed with the City Clerk-Treasurer
and maintained at the grantee's office for public inspection
during normal business hours. Any amendments, additions or deletions
thereto shall be immediately filed with the City Clerk-Treasurer.
E.
System not to interfere. The community antenna television and audio
communication system shall be so designed, engineered and maintained
by the grantee so as to not interfere with the television and radio
reception of nonsubscribers to the grantee's services, including
adequate shielding, filtering and grounding.
F.
Emergency use of facilities. In case of any emergency or disaster,
the grantee shall, upon request of the Mayor, Common Council, the
Fire Chief or Police Chief, make available its facilities to the City
for emergency use during the emergency or disaster.
A.
Not inclusive. The records required to be provided in Subsection B below are not an inclusive list of all such required records, and such list does not relieve any grantee from the obligation of filing or submitting any other records set forth in this section.
B.
Records to be filed. The grantee shall file annually with the City
Clerk-Treasurer not later than three months after the end of any fiscal
year during the term of franchise or renewal thereof copies of the
following documents:
(1)
An income statement applicable to the grantee's operation under
said franchise during the fiscal year or fraction thereof and a listing
of the grantee's properties devoted to network operations, together
with an itemization of his investment in each of such properties on
the basis of original cost, less depreciation.
(2)
A total facilities report setting forth the total physical miles
of plant installed or in operation during the fiscal year.
(3)
A copy of the report on network technical measurements as required
by the FCC.
(4)
A current list of all the following:
(a)
If a nonpublic corporation, a list of all current shareholders
and bondholders both of record or beneficiary. If a public corporation,
a list of all shareholders who individually or as a concerted group
hold 5% or more of the voting stock of the corporation.
(b)
The names and addresses and both business and residential phone
numbers of the resident manager and engineer.
(c)
One copy of all types of subscriber agreements.
(d)
A listing of current rates for all services offered by the grantee.
The rates and charges for television, radio and any other signals
distributed hereunder shall be fair and reasonable.
A.
Amount. The franchise fee shall be 1% of the grantee's gross
revenues per year from the basic cable services in the community.
B.
Method of payment. The grantee shall pay the aforementioned franchise
fee to the City annually. Each payment shall be accompanied by a report
of all revenues received for the preceding year.
A.
Grantee. The grantee of any franchise issued hereunder shall be prohibited,
during the term of the franchise or any renewal thereof, as follows:
(1)
The grantee shall not offer, nor make, any payment in any form to
any property owner for purposes of permitting cable service on his
or her property or premises, except the purchase of easement rights
where necessary, nor discriminate in rental charges or otherwise between
persons falling within the same classifications of cable customer.
No grantee shall take any action which would diminish or interfere
with the privilege of any tenant or other occupant of any apartment
building, condominium, nursing home, hospital, mobile home park, or
other multiple-dwelling housing facility in which other persons may
reside to use or avail the use of master or individual antenna equipment.
(2)
The grantee shall not, as to rates, charges, service, service facilities,
rules, regulations, or in any other respect, make or grant any preference
or advantage to any person or subject any person to prejudice or disadvantage.
(3)
No grantee hereunder shall, either directly or indirectly, engage
in the wholesale or retail sale, servicing or repair of television
receivers or antennas or directly or indirectly require of any subscriber
the servicing by any designated television/radio service business.
The grantee shall not, either directly or indirectly, engage in installation
or repair of distribution systems, other than its own, within apartments,
motels, hotels, or other commercial complexes.
(4)
The company shall not, at any time, sell or assign its rights and
privileges under this chapter and the cable television system located
in the City to any other person, firm or corporation without the approval
of the governing body. Such assignment shall not be approved until
the assignee shall have agreed in writing with the City to become
responsible for the full performance of all the conditions, liabilities,
covenants and obligations contained in this chapter and until such
assignment shall have been approved by the City, provided that such
approval shall not be unreasonably withheld.
(5)
Nothing in this section shall be deemed to prohibit a mortgage or
pledge of the permit, system, or any part thereof, for financing purposes,
nor does it prohibit the sale of the company's stock in compliance
with applicable laws.
B.
Other persons. No person shall:
(1)
Request or accept payment in any form for permitting cable services
on his or her property or premises or discriminate in rental charges
or otherwise between tenants or occupants who receive cable services
and those who do not.
(2)
Without the express consent of the grantee, possess or make any connection,
extension or division, whether physically, acoustically, inductively,
electronically or otherwise, with or to any segment of a grantee's
system.
(3)
Willfully interfere or tamper with, remove, obstruct or damage any
part, segment or content of a grantee's system. This prohibition
shall not apply to the City or any utility exercising any legitimate
rights under any contract or local, state or federal regulation.
Any franchise granted pursuant to the provisions of this chapter
shall be nonexclusive, and the Common Council shall not be restricted
or prohibited from awarding other franchises to other community antenna
television system applicants at any time.[1]
