[HISTORY: Adopted by the Village Board of the Village of
Benton as Title 9, Ch. 3, of the Benton Code of Ordinances. Amendments
noted where applicable.]
A.
The Village intends, by the adoption of this franchise, to bring
about the development of a Cable Communications System, and the continued
operation of it. Such a development can contribute significantly to
the communication needs and desires of many.
B.
The purpose of this ordinance is to carry out the authority of the
Village of Benton to award cable television franchises to operators
of cable television systems in the Village, to exercise the Village's
police powers concerning cable television in the Village, to impose
a franchise fee for the purpose of raising general revenue, and to
maintain the spirit of compromise between the cable industry and the
Village effected under the Cable Communications Act of 1984, 47 U.S.C.
§ 521 et seq., to ensure the citizens adequate and efficient
cable television service.
In the review of the renewal proposal and application of Mediacom
Communications Corporation ("grantee"), and as a result of a public
hearing, the Village Board makes the following findings:
A.
The grantee's technical ability, financial condition, legal
obligations, and character were considered and approved in a full
public proceeding after due notice and reasonable opportunity to be
heard;
B.
Grantee's plans for constructing, upgrading, and operating the
system were considered and found adequate and feasible in a full public
proceeding after due notice and a reasonable opportunity to be heard;
C.
The franchise granted to grantee by the Village complies with the
existing applicable state and federal laws and regulation.
A.
Short title. This Franchise Ordinance shall be known and cited as
the "Cable Communications Franchise."
B.
AFFILIATE
BASIC CABLE SERVICE
CABLE COMMUNICATION SYSTEM OR SYSTEM
CABLE PROGRAMMING SERVICE
(1)
(2)
CABLE COMMUNICATIONS SERVICE
CABLE SERVICE
CONVERTER
DROP
FCC
GRANTEE
GROSS REVENUES
INSTALLATION
LOCKOUT DEVICE
PAY TELEVISION
PERSON
STANDARD INSTALLATION
STREET
SUBSCRIBER
VILLAGE
VILLAGE BOARD
For the purpose of the franchise, the following terms, phrases, words,
and their derivations shall have the meaning given herein. When not
inconsistent with the context, words in the singular number include
the plural number. The word "shall" is always, mandatory and not merely
directory. The word "may" is directory and discretionary and not mandatory.
When used in relation to any person, another person who owns
or controls, is owned or controlled by, or is under common ownership
control with such person.
Any service tier which includes the lawful retransmission
of local television broadcast signals and any public, education, and
governmental access programming required by the franchise to be carried
on the basic tier. "Basic cable service" as defined herein shall not
be inconsistent with 47 U.S.C. § 543(b)(7)(1993).
Any system of antennas, cables, wires, lines, towers, waveguides,
or other conductors, converters, equipment, or facilities located
in the Village of Benton and designed and constructed for the purpose
of producing, receiving, transmitting, amplifying, or distributing
audio, video, and other forms of electronic signals in the Village.
"System" defined herein shall not be inconsistent with the definition
as set forth in 47 U.S.C. § 522(6)(1993).
Any video programming provided over a cable system, regardless
of service tier, including installation or rental of equipment used
for the receipt of such video programming, other than:
"Cable programming service" as defined herein shall not be inconsistent
with the definition as set forth in 47 U.S.C. § 543(1)(2)(1993)
and 47 CFR 76.901(b)(1993).
The provision of television reception communications and/or
entertainment services distributed over cable communications system.
This definition shall not include telecommunications services regulated
pursuant to federal and state law as may be amended from time to time.
An electronic device which converts signals to a frequency
acceptable to a television receiver of a subscriber and by an appropriate
selector permits a subscriber to view all cable communications services
which the subscriber is lawfully authorized to receive.
The cable that connects the ground block on the subscriber's
residence to the nearest feeder cable of the system.
The Federal Communications Commission and any legally appointed
designated or elected agent or successor.
Mediacom Communications Corporation, its agents and employees,
lawful successors, transferees, or assignees.[1]
All revenue received from cable service, as defined, received
directly by the grantee from the operation of its system within Village,
including, but not limited to, basic cable service fees, cable programming
service fees, pay television fees, installation and reconnection fees,
upgrade and downgrade fees, converter rental, lockout device fees,
or other services. The term "gross revenues" shall not include franchise
fees, access operating fees, any fees itemized and passed through
as a result of franchise imposed requirements or any taxes or fees
on services furnished by grantee imposed directly on any subscriber
or user by any municipality, state or other governmental unit and
collected by grantee for such governmental unit.
The connection of the system from feeder cable to the point
of connection, including standard installations and custom installations.
An optional mechanical or electrical accessory to a subscriber's
terminal which inhabits the viewing of a certain program, certain
channel, or certain channels provided by way of the cable communication
system.
The delivery over the system of pay-per-channel or pay-per-program
audio-visual signals to subscribers for a fee or charge, in addition
to the charge for basic cable service or cable programming services.
A person, firm, partnership, association, corporation, company,
or other legal entity.
Any residential installation which can be completed using
a drop of 150 feet or less.
The surface of, and the space above and below any public
street, road, highway, freeway, lane, alley, path court, sidewalk,
parkway, or drive, or any easement or right-of-way now or hereafter
held by the Village.
Any person who lawfully receives cable service. In the case
of multiple office buildings or multiple dwelling units, the "subscriber"
means the lessee, tenant or occupant.
The Village of Benton, Wisconsin, a municipal corporation,
in the State of Wisconsin, acting by and through its Village Board.
The Benton, Wisconsin, Village Board.
A.
Franchise required. It shall be unlawful for any Person to construct,
operate or maintain a cable communications system in the Village unless
such person or the person for whom such action is being taken shall
have first obtained and shall currently hold a valid franchise ordinance.
It shall also be unlawful for any person to provide cable service
in the Village unless such person shall have first obtained and shall
currently hold a valid franchise ordinance. All cable communications
franchises granted by the Village shall contain the same substantive
terms and conditions.
B.
Grant of franchise. This franchise is granted pursuant to the terms
and conditions contained herein.
C.
Grant of nonexclusive authority.
(1)
The grantee shall have 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
Village, poles, wires, cables, underground conduits, manholes, and
other television conductors and fixtures necessary for the maintenance
and operation in the Village of a cable communications system as herein
defined.
(2)
This franchise shall be nonexclusive, and the Village reserves the
right to grant a similar use of said streets, alleys, public ways
and places, to any person at any time during the period of this franchise;
provided, however, that any additional franchises granted shall contain
the same substantive terms and conditions as this franchise.
D.
Franchise term. The franchise shall be in effect for a period of five years from the effective date, unless renewed, revoked or terminated sooner as herein provided. If within the franchise term the grantee completes the system upgrade and provides the grants as per § A400-6 herein, the term will automatically be extended an additional 10 years from the effective date, unless renewed, revoked or terminated sooner as herein provided.
E.
Previous franchises. Upon acceptance by grantee as required by § A400-13 herein, this franchise shall supersede and replace any previous ordinance or agreement granted a franchise to grantee to own, operate, and maintain a cable communications system within the Village. Ordinance number 81-1 is hereby expressly repealed.
F.
Rules of grantee. The grantee shall have the authority to promulgate
such rules, regulations, terms and conditions governing the conduct
of its business as shall be reasonably necessary to enable said grantee
to exercise its rights and perform its obligation under this franchise.
G.
Territorial area involved. This franchise is granted for the corporate
boundaries of the Village, as it exists from time to time. In the
event of annexation by the Village, or as development occurs, any
new territory shall become part of the area covered; provided, however,
that grantee shall not be required to extend service beyond its present
system boundaries unless there is a minimum of 30 homes per cable
mile. Access to cable service shall not be denied to any group of
potential residential cable subscribers because of the income of the
residents of the area in which such group resides. Grantee shall be
given a reasonable period of time to construct and activate cable
plant to service annexed or newly developed areas.
H.
Written notice.
(1)
All notices, reports, or demands required to be given, in writing,
under this franchise shall be deemed to be given when delivered personally
to any officer of grantee or Village's Administrator of this
franchise or 48 hours after it is deposited in the United States mail
in a sealed envelope, with registered or certified mail postage prepaid
thereon, addressed to the party to whom notice is being given, as
follows:
(2)
Such addresses may be changed by either party upon notice to the
other party given as provided in the section.
I.
Drops to public buildings. Grantee shall provide installation of
one cable drop, one cable outlet, and month basic cable service without
charge to the following institutions: the Primitive Methodist Church,
the Methodist Church, St. Patrick Church, Village Municipal Building,
Benton Fire Station, Benton High School, and Benton Elementary School.
Additional drops and/or outlets in any of the above locations will
be provided by grantee at the cost of grantee's time and materials.
Alternatively, at the institution's request, said institution
may add outlets at its own expense, as long as such installation meets
grantee's standards, and provided that any fees for cable service
are paid. Nothing herein shall be construed as requiring grantee to
extend the system to serve additional institutions as may be designated
by the Village.
J.
Pole rent. Notwithstanding any other provision in this section, the
authority granted by this franchise shall not relieve the grantee
of the liability for pole rent, or other compensation, due to the
owner of any electric or telephone pole, including the Village's
municipal electric utility, upon which cable wires and other cable
system equipment are attached.
A.
Construction codes and permits.
(1)
Grantee shall obtain all necessary permits from the Village before
commencing any construction upgrade or extension of the system, including
the opening or disturbance of any street, or private or public property
within Village.
(2)
The Village shall have the right to inspect all construction or installation
work performed pursuant to the provisions of the franchise and to
make such tests at its own expense as it shall find necessary to ensure
compliance with the terms of the franchise and applicable provisions
of local, state, and federal.
B.
Repair of streets and property. Any and all streets or public property
or private property, which are disturbed or damaged during the construction,
repair, replacement, relocation, operation, maintenance or reconstruction
of the system, shall be promptly and fully restored by grantee, at
its expense, to a condition as good as that prevailing prior to grantee's
work.
C.
Building movers. The grantee shall, on request of any person holding
a moving permit issued by the Village, temporarily move its wires
or fixtures to permit the moving of buildings with the expense of
such temporary removal to be paid by the person requesting the same,
and the grantee shall be given not less than 10 days advance notice
to arrange for such temporary changes.
D.
Tree trimming. The grantee shall have the authority to trim any tree
upon and overhanging the streets, alleys, sidewalks, or public easements
of Village so as to prevent the branches of such trees coming in contact
with the wires and cables of the grantee.
E.
No waiver. Nothing contained in this franchise shall relieve any
person from liability arising out of the failure to exercise reasonable
care to avoid injuring grantee's facilities.
F.
Undergrounding of cable.
(1)
In all areas of the Village where one or more utility lines are placed
underground, grantee shall construct and install its cables, wires,
and other facilities underground.
(2)
In any area of the Village where two or more public utilities are
aerial, grantee may construct and install its cables, wires, and other
facilities from the same pole with the consent of the owner of the
pole.
G.
Safety requirements. The grantee shall at all times employ ordinary
and reasonable care and shall install and maintain in use nothing
less than commonly accepted methods and devices for preventing failures
and accidents, which are likely to cause damage, injuries, or nuisances
to the public.
A.
System upgrade. Grantee shall provide a system with a capacity of
at least 550 Mhz bandwidth and have at least a 60 channel capacity
and two-way capability within 36 months of the effective date of this
franchise. Where possible, the grantee may connect its system with
other cable systems in order to provide the widest possible combination
of programming in the most efficient manner.
B.
Local access.
(1)
The Village or its designee is hereby designated to operate, administer,
promote, and manage access public, education, and government programming
(hereinafter "PEG access") to the cable system established pursuant
to this section. Grantee shall have no responsibility whatsoever for
PEG access except as expressly stated in the section.
(2)
Upon request, grantee shall dedicate two channels for PEG access
use. The Village shall provide 90 days' prior written notice to grantee
in order to activate each channel.
(3)
The Village shall implement rules for use of the specially designated
PEG access channels. The initial access rules and any amendments thereto
shall be maintained on file with the Village and available for public
inspection during normal business hours.
(4)
Prior to the cablecast of any program on PEG access channel established
herein, the Village shall require any person who requests PEG access
to the system to provide written certification in a form and substance
acceptable to grantee and the Village, which releases, indemnifies,
and holds harmless the Village, grantee, and their respective employees,
offices, agents, and assigns from any liability, cost, damages, and
expense, including reasonable expenses for legal fees, arising or
connected in any way with said program.
(5)
Any capital costs for support of PEG access facilities will be provided
only with the mutual agreement of the cable operator and the franchising
authority and, pursuant to the cable operator's rights under
federal law, may be itemized and passed through to subscribers.
(6)
Grantee shall have no obligation to purchase or provide access equipment
beyond that stated herein, or to maintain, repair or replace any access
equipment.
C.
Technical standards. The technical standards used in the operation
of the system shall comply, at minimum, with the technical standards
promulgated by the FCC relating to cable communications systems pursuant
to the Federal Communications Commission's rules and regulations
and found in Title 47, §§ 76.601 to 76.617.
D.
Lockout device. Upon the request of a subscriber, grantee shall provide
by sale or lease a lockout device.
A.
Subscriber inquiries. Grantee shall have a public listed toll-free
telephone number and operated so as to receive subscribers' complaints
and requests on a twenty-four-hour-a-day, seven-days-a-week basis.
B.
Refund policy. In the event a subscriber establishes or terminates
service and receives less than a full month's service, grantee
shall prorate the monthly rate on the basis of the number of days
in the period for which service was rendered to the number of days
in the billing.
A.
Franchise fees.
(1)
Grantee shall pay to the Village a franchise fee in an annual amount
equal to 3% of its annual gross revenues. The fees shall apply to
all gross revenues received.
(2)
Payments due the Village under this provision shall be payable annually.
The payment shall be made on the 20th day of August of each year based
on the gross revenues for the preceding 12 months, July 1 through
June 30. A detailed report certified by an officer of the grantee
showing the basis for the computation will be sent with the payment.
The fee shall be in addition to any and all other taxes exacted pursuant
to federal, state or local law, including, without limitation, local
property taxes. Upon notice in writing, the Village reserves the right
to raise or lower the franchise fees from time to time, provided the
franchise fee as amended does not exceed any limit imposed thereon
by applicable law and grantee consents to said increase.
B.
Late payment fee. In the event the franchise fee is not paid within
the time provided in this section, the grantee shall be assessed and
shall pay a late payment penalty equal to 1% of the fee due, assessed
for each month or part of a month in which the fee, remains unpaid,
or the maximum amount permitted by law, whichever is less.
C.
Inspection and audit of books.
(1)
The grantee shall fully cooperate in making available at reasonable
times, and the Village shall have the right to inspect at the grantee's
office or at the request of the Village at the Village office, upon
reasonable notice and where reasonably necessary for the enforcement
of the franchise, books, records, maps, plans and other like materials
of the grantee applicable to the cable television system, at any time
during normal business hours.
(2)
Unless prohibited by law, rule or regulation, the following records
and/or reports are to be made available for inspection to the Village,
in the Village upon request, but no more frequently than an annual
basis if so mutually agreed upon by the grantee and the Village:
(a)
Periodic preventive maintenance reports per 47 CFR 76.600 et
seq.;
(b)
Copies of FCC Form 359-A (or successor form) or any supplemental
forms related to equal opportunity or fair contracting policies;
(c)
Subscriber inquiry/complaint resolution data (but not including
names or addresses); and
(d)
As-built maps for the Village.
(3)
The Village shall have the right to audit grantee's books and records
to verify gross revenues and franchise fee payments. In the event
grantee has underpaid the Village by 5% or more, grantee shall reimburse
the Village for such audit.
D.
Insurance.
(1)
Upon request, grantee shall file with its acceptance of this franchise,
and at all times thereafter maintain in full force and effect at its
sole expense, a comprehensive general liability insurance policy coverage,
in protection of the Village in its capacity as such. The policies
of insurance shall be in the sum of not less than $1,000,000 for personal
injury or death of one person, and $2,000,000 for personal injury
or death of two or more persons in any one occurrence, $1,000,000
for property damage to any one person and $2,000,000 for property
damage resulting from any one act or occurrence. Any deductible associated
with said insurance shall be borne by the grantee.
(2)
The policy or policies of insurance shall be maintained by grantee
in full force and effect during the entire term of the franchise.
Each policy of insurance shall contain a statement on its face that
the insurer will not cancel the policy or fail to renew the policy,
whether for nonpayment of premium, or otherwise, and whether at the
request of grantee or for other reasons, except after 30 days'
advance written notice have been provided to Village.
A.
Village's right to revoke. In addition to all other rights, which the Village has pursuant to law or equity, the Village reserves the right to revoke, terminate, or cancel this franchise, and all rights and privileges pertaining thereto, if after the hearing required by Subsection B herein, it is determined that:
B.
Procedures for revocation.
(1)
The Village shall provide grantee with notice of a cause for revocation
and the intent to revoke and shall allow grantee 60 days subsequent
to receipt of the notice in which to correct the violation or to provide
adequate assurance of performance in compliance with the franchise.
Together with the notice required herein, the Village shall provide
grantee with written findings of fact which are the basis of the revocation.
(2)
Grantee shall be provided the right to a public hearing affording due process before the Village Board prior to revocation, which public hearing shall follow the 60 days' notice provided in Subsection B(1) above. The Village shall provide grantee with written notice of its decision together with written findings of fact supplementing said decision.
(3)
After the public hearing and upon written determination by Village
to revoke the franchise, grantee may appeal said decision with an
appropriate state or federal court or agency.
(4)
During the appeal period, the franchise shall remain in full force
and effect unless the term thereof sooner expires.
(5)
Upon satisfactory correction by grantee of the violation upon which
said notice was given as determined, the initial notice shall become
void.
Subscriber privacy. Grantee shall comply with the terms of 47
U.S.C. § 551 relating to the protection of subscriber privacy.
A.
Unauthorized connections or modifications prohibited. It shall be
unlawful for any firm, person, group, company, corporation, or governmental
body or agency, without the express consent of the grantee, to make
or possess, or assist anybody in making or possessing, any connection,
extension, or division, whether physically, acoustically, inductively,
electronically, or otherwise, with or to any segment of the system.
B.
Removal or destruction prohibited. It shall be unlawful for any firm,
person, group, company, corporation, or governmental body or agency
(except for the Village) to willfully interfere, tamper, remove, obstruct,
or damage, or assist thereof, any part or segment of the system for
any purpose whatsoever.
C.
Penalty. Any firm, person, group, company, corporation, or government
body or agency (except for the Village) found guilty of violating
this section may be fined not less than $20 and the cost of the action
nor more than $500 and the costs for the action for each and every
subsequent offense. Each continuing day of the violation shall be
considered a separate occurrence.
A.
Franchise renewal. Any renewal of this franchise shall be done in
accordance with applicable federal, state, and local laws and regulations.
B.
Amendment of Franchise Ordinance. Grantee and Village may agree,
from time to time, to amend this franchise. Such written amendments
may be made at any time if the Village and grantee agree that such
amendment will be in the public interest or if such an amendment is
required due to changes in federal, state, or local laws. The Village
shall act pursuant to local law pertaining to the ordinance amendment
process.
A.
Publication and effective date. This franchise shall be published
in accordance with applicable Wisconsin law. The effective date of
the franchise shall be the date grantee has accepted this franchise.
B.
Acceptance.
(1)
Grantee shall accept this franchise within 60 days of its enactment
by the Village Board, unless the time for acceptance is extended by
the Village. Such acceptance by the grantee shall be deemed the grant
of this franchise for all purposes. Upon acceptance of this franchise,
grantee shall be bound by all the terms and conditions contained herein.
