This chapter shall be known and may be cited as the "South Milwaukee
Cable Television Franchise Ordinance, hereinafter "Franchise," or
"Ordinance."
For the purpose of this chapter the following terms, phrases,
words and their derivations shall have the meaning given herein:
BASIC SERVICE
Any subscriber tier provided by the Grantee which includes
the delivery of local broadcast stations, and public, educational
and governmental access channels. The Basic service does not include
optional program and satellite service tiers, a la carte services,
per channel, per program, or auxiliary services for which a separate
charge is made. However, Grantee may include other satellite signals
on the Basic tier.
CABLE SYSTEM OR SYSTEM or CABLE TELEVISION SYSTEM
A system of antennas, cables, wires, lines, towers, wave
guides, or other conductors, converters, equipment or facilities,
designed and constructed for the purpose of producing, receiving,
transmitting, amplifying and distributing, audio, video, and other
forms of electronic, electrical or optical signals, which includes
cable television service and which is located in the City. The definition
shall not include any such facility that serves or will serve only
subscribers in one or more multiple unit dwellings under common ownership,
control or management, and which does not use City rights-of-way.
CITY
The City of South Milwaukee, Wisconsin.
CLASS IV CHANNEL
A signaling path provided by a cable communications system
to transmit signals of any type from a subscriber terminal to another
point in the cable communications system.
CONTROL and/or CONTROLLING INTEREST
Actual working control or ownership of a System in whatever
manner exercised. A rebuttable presumption of the existence of control
or a controlling interest shall arise from the beneficial ownership,
directly or indirectly, by any the period in which they are offering
securities to the public) of 10% or more of a Cable System or the
Franchise under which the System is operated. A change in the control
or controlling interest of an Entity which has control or a controlling
interest in a Grantee shall constitute a change in the control or
controlling interest of the System under the same criteria. Control
or controlling interest as used herein may be held simultaneously
by more than one Person or Entity.
CONVERTER
An electronic device which converts signals to a frequency
not susceptible to interference within the television receiver of
a subscriber, and by an appropriate channel selector also permits
a subscriber to view more that 12 channels delivered by the system
at designated converter dial locations.
FCC
The Federal Communications Commission and any legally appointed,
designated or elected agent or successor.
GRANTEE
A person or entity to whom or which a Franchise under this
chapter is granted by the City, along with the lawful successors or
assigns of such person or entity.
GROSS REVENUES
All revenue collected directly or indirectly by the Grantee,
from the provision of cable service within the City including but
not limited to, basic subscriber service monthly fees, pay cable fees,
installation and reconnection fees, franchise fees, leased channel
fees, converter rentals, program guides, studio rental, production
equipment, personnel fees, late fees, downgrade fees, revenue from
the sale, exchange, use or cable cast of any programming developed
on the system for community or institutional use, advertising, and
any value (at retail price levels) of any non-monetary remuneration
received by Grantee in consideration of the performance of advertising
or any other service of the system; provided, however, that this shall
not include any taxes on services furnished by the Grantee herein
imposed directly upon any subscriber or user by the state, local or
other governmental unit and collected by the Grantee on behalf of
the governmental unit. Subject to applicable federal law, the term
Gross Revenues includes revenues attributed to franchise fees and
revenues collected directly or indirectly from other ancillary telecommunications
services (such as but not limited to, point-to-point telecommunications,
point-to-point multipoint telecommunications, data transmissions,
etc.) but only to the extent that all other providers of such telecommunications
services in the City are subject to the same compensation requirements
of the City.
INSTALLATION
The connection of the system from feeder cable to subscribers'
terminals.
MONITORING
Observing a communications signal, or the absence of a signal,
where the observer is neither the subscriber nor the programmer, whether
the signal is observed by visual or electronic means, for any purpose
whatsoever; provided monitoring shall not include system wide, non-individually
addressed sweeps of the system for purposes of verifying system integrity,
controlling return paths transmissions, or billing for pay services.
NORMAL BUSINESS HOURS
As applied to the grantee, shall mean those hours during
which similar businesses in the City are open to serve customers.
In all cases, Normal Business Hours shall include some evening hours
at least one night per week, and/or some weekend hours.
NORMAL OPERATING CONDITIONS
Those service conditions which are within the control of
the Grantee. Those conditions which are not within the control of
the Grantee include, but are not limited to, natural disasters, civil
disturbances, power outages, telephone network outages, and severe
or unusual weather conditions. Those conditions which are ordinarily
within the control of the Grantee include, but are not limited to,
special promotions, pay-per-view events, rate increases, regular peak
or seasonal demand periods, and maintenance or upgrade of the Cable
System.
STREET
The surface of and all right-of-way and the space above and
below any public street, road, highway, freeway, lane, path, public
way or place, sidewalk, alley, court, boulevard, parkway, drive or
easement now or hereafter held by the City for the purpose of public
travel and shall include other easements or rights-of-way as shall
be now held or hereafter held by the City which shall, within their
proper use and meaning entitle the Grantee to the use thereof for
the purposes of installing poles, wire, cable, conductors, ducts,
conduits, vaults, manholes, amplifiers, appliances, attachments, and
other property as may be ordinarily necessary and pertinent to a telecommunications
system.
SUBSCRIBER
Any person, firm, Grantee, corporation, or association lawfully
receiving Basic and/or any additional service from Grantee.
USER
A party utilizing a cable television system channel for purposes
of production or transmission of material to subscribers, as contrasted
with receipt thereof in a subscriber capacity.
Any franchise granted by the City pursuant to Wis. Stats., § 66.082,
shall grant to the Grantee the right and privilege to erect, construct,
operate and maintain in, upon, and along, across, above, over and
under the streets, now in existence and as may be created or established
during its terms; any poles, wires, cable, underground conduits, manholes,
and other television conductors and fixtures necessary for the maintenance
and operation of a Cable System.
Any franchise is for the present territorial limits of the City
and for any area henceforth added thereto during the term of the franchise.
The franchise and the rights, privileges and authority granted
shall take effect and be in force as set forth in the Franchise Agreement
and shall continue in force and effect for a term of no longer than
15 years, provided that within 15 days after the date of final passage
of the franchise the Grantee shall file with the City its unconditional
acceptance of the franchise and promise to comply with and abide by
all its provisions, terms and conditions. Such acceptance and promise
shall be in writing duly executed and sworn to, by, or on behalf of
the Grantee before a notary public or other officer authorized by
law to administer oaths. Such franchise shall be non-exclusive and
revocable.
No cable television system shall be allowed to occupy or use
the streets, i.e. rights-of-way, for system installation and maintenance
purposes, of the City or be allowed to operate without a franchise.
The City shall have the right, during the life of this franchise,
to install and maintain free of charge upon the poles of the Grantee
any wire or pole fixtures that do not unreasonably interfere with
the cable television system operations of the Grantee. The City shall
indemnify and hold harmless the Grantee from any claim that might
arise due to or as a result of the City's use.
Costs to be borne by the Grantee shall include any requirements
or charges incidental to the awarding or enforcing of the initial
franchise, but shall not be limited to, all costs of publications
or notices prior to any public meeting provided for pursuant to this
franchise, and any costs not covered by application fees, incurred
by the City in its study, preparation of proposal documents, evaluation
of all applications, and examinations of the applicants' qualifications.
All notices from the Grantee to the City pursuant to this Ordinance
shall be to the City Administrator's Office. The Grantee shall
maintain with the City, throughout the term of this franchise, an
address for service of notices by mail. The Grantee shall maintain
a central office to address any issues relating to operating under
this cable television ordinance.
The Grantee shall provide cable communications service throughout
the entire franchise area pursuant to the provisions of this franchise
and shall keep a record for at least three years of all requests for
service received by the Grantee. This record shall be available for
public inspection at the local office of the Grantee during regular
office hours.
The Grantee shall have the authority to promulgate such rules,
regulations, terms and conditions governing the conduct of its business
as shall be reasonable necessary to enable the Grantee to exercise
its rights and perform its obligations under this franchise, and to
assure an uninterrupted service to each and all of its customers;
provided, however, that such rules, regulations, terms and conditions
shall not be in conflict with the provisions hereof or applicable
state and federal laws, rules and regulations.
Copies of all petitions, applications, communications, and reports
either submitted by the Grantee to the Federal Communications Commission,
Securities and Exchange Commission, or any other federal or state
regulatory commission or agency having jurisdiction in respect to
any matters affecting cable television operations authorized pursuant
to the franchise or received from such agencies shall be provided
to the City upon request.
At the expiration of the terms for which this franchise is granted
and any renewal denied, or upon its termination as provided herein,
the Grantee shall forthwith, upon notice by the City, remove at its
own expense all designated portions of the cable television system
from all streets and public property within the City. If the Grantee
fails to do so, the City may perform the work at the Grantee's
expense. Upon such notice of removal, a bond shall be furnished by
the Grantee in an amount sufficient to cover this expense.
Pursuant to federal statute, the City of South Milwaukee is
eligible to become certified to regulate the Basic Service rates charged
by Grantee. Under these rules, Grantee would be required to obtain
approval from the City for a rate increase for any change to the rates
for Basic Service. Should Federal or State law permit further rate
regulation beyond the Basic Service, the City of South Milwaukee may
assume such rate regulation and adopt appropriate procedures for such
regulation.
Upon the foreclosure or other judicial sale of all or a substantial
part of the system, or upon the termination of any lease covering
all or a substantial part of the system, the Grantee shall notify
the City of such fact, and such notification shall be treated as a
notification that a change in control of the Grantee has taken place,
and the provisions of this franchise governing the consent of the
City to such change in control of the Grantee shall apply.
The City shall have the right to cancel this franchise 120 days
after the appointment of a receiver, or trustee, to take over and
conduct the business of the Grantee, whether in receivership, reorganization,
bankruptcy or other action or proceeding, unless such receivership
or trusteeship shall have been vacated prior to the expiration of
120 days, or unless:
A. Within 120 days after his/her election or appointment, such receiver
or trustee shall have fully complied with all the provisions of this
chapter and remedied all defaults thereunder; and
B. Such receiver or trustee, within the 120 days, shall have executed
an agreement, duly approved by the court having jurisdiction in the
premises, whereby such receiver or trustee assumes and agrees to be
bound by each and every provision of this chapter and the franchise
granted to the Grantee.
For the violation of any of the following provisions of this
franchise, penalties shall be chargeable to the letter of credit or
performance bond as applicable as follows and the City may determine
the amount of the fine for other violations which are not specified
in a sum not to exceed $500 for each violation, with each day constituting
as separate violation.
A. Failure to furnish, maintain, or offer all cable services to any
potential Subscriber within the City upon order of the City: $200
per day, per violation, for each day that such failure occurs or continues;
B. Failure to obtain or file evidence of required insurance, construction
bond, performance bond, or other required financial security: $200
per day, per violation, for each day such failure occurs or continues;
C. Failure to provide access to data, documents, records, or reports to the City as required by §§
30.19,
30.29,
30.30,
30.31 and
30.37: $200 per day, per violation, for each day such failure occurs or continues;
D. Failure to comply with applicable construction, operation, or maintenance
standards: $300 per day, pre violation.
E. Failure to comply with a rate decision or refund order: $500 per
day, per violation, for each day such a violation occurs or continues.
Grantor may impose any or all of the above enumerated measures against
Grantee, which shall be in addition to any and all other legal or
equitable remedies it has under the Franchise or under any applicable
law.
F. Any violations for non-compliance with the customer service standards of §§
30.23 through
30.25, the Grantee shall pay $200 per day for each day, or part thereof, that such noncompliance continues.
G. Any other violations of this franchise agreement to be determined
by the Grantor in a public hearing but not specifically noted in this
section shall not exceed $500 per day, per violation.