[HISTORY: Adopted by the Board of Trustees of the Village
of Minoa by .
Amendments noted where applicable.]
A.
The Village of Minoa finds that the development of cable television
and communications systems has the potential of having great benefit
and impact upon the people of Minoa. Because of the complex and rapidly
changing technology associated with cable television, the Village
further finds that the public convenience, safety and general welfare
can best be served by establishing regulatory powers which should
be vested in the Village or such persons as the Village shall designate.
It is the intent of this chapter and subsequent amendments to provide
for and specify the means to attain the best possible public interest
and public purpose in these matters, and any franchise issued pursuant
to this chapter shall be deemed to include this finding as an integral
part thereof.
B.
Further, it is recognized that cable communications systems have
the capacity to provide not only entertainment and information services
to the Village's residents but can also provide a variety of
broadband, interactive communications services to institutions and
individuals. Many of these services involve Village agencies and other
public institutions by providing governmental, educational or health
care communications.
C.
For these purposes, the following goals underlie the regulations
contained herein:
(1)
Communications services should be provided to the maximum number
of Village residents.
(2)
The system should be capable of accommodating both the present and
reasonably foreseeable future communications needs of the Village.
(3)
The system should be improved and upgraded during the franchise term
so that the new facilities necessary for the operation of this system
shall be integrated to the maximum extent possible with existing facilities
as specified in the franchise.
This chapter shall be known and may be cited as the "Minoa Cable
Communication Regulatory Local Law," and it shall become a part of
the local laws of the Village.
A.
When not inconsistent with the context, words used in the present
tense include the future, and words in the plural number include the
singular number. The word "shall" is mandatory, and "may" is permissive.
B.
BASIC SUBSCRIBER TELEVISION SERVICES
CABLE COMMUNICATIONS SYSTEM (also referred to as "system")
(1)
(2)
(3)
(4)
CABLE SERVICE
CHANNEL
CLOSED CIRCUIT OR INSTITUTIONAL SERVICE
COMMERCIAL SUBSCRIBER
COMMUNICATIONS POLICY ACT or CABLE ACT
CONVERTER
DEDICATED INSTITUTIONAL ACCESS CHANNELS
DISCRETE CHANNEL
DROP
EDUCATIONAL ACCESS CHANNEL
FAIR MARKET VALUE
FCC
FRANCHISE
FRANCHISE AREA
FRANCHISE FEE
(1)
(2)
(3)
(4)
FRANCHISEE or GRANTEE
GOVERNMENT ACCESS
GRANTOR
GROSS ANNUAL REVENUES
INSTALLATION
LEASED ACCESS CHANNEL or COMMERCIAL ACCESS CHANNEL
MONITORING
NARROWCASTING
NEW YORK STATE COMMISSION
PERSON
PLANT MILE
PUBLIC ACCESS CHANNEL
PUBLIC WAY or PUBLIC RIGHTS-OF-WAY
REASONABLE NOTICE
RESIDENT
RESIDENTIAL SUBSCRIBER
SALE
SCHOOL
SERVICE AREA
STANDARD SERVICE PACKAGE
STATE
SYSTEM FACILITIES or FACILITIES
TRANSFER
TRUNK LINE
UPSTREAM SIGNAL
USER
VILLAGE BOARD OF TRUSTEES
For the purpose of this chapter, the following terms, phrases, words
and their derivations shall have the meanings given herein. Words
not defined shall be given their common and ordinary meanings.
A separately available basic service tier to which subscription
is required for access to any other tier of service. Such basic service
tier shall, at a minimum, consist of the following: all signals carried
in fulfillment of Cable Act §§ 614 and 615;[1] any public, educational and governmental access programming
required in this chapter or the franchise; any signal of any television
broadcast station that is provided by the cable operator to any subscriber,
except a signal which is secondarily transmitted by a satellite carrier
beyond the local service area of such station. Additional signals
may be added to the basic tier by the grantee.
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 but is not
limited to video programming and which is provided to multiple subscribers
within a community, but such term does not include:
A facility that serves only to retransmit the television signals
of one or more television broadcast stations;
A facility that serves only subscribers in one or more multiple-unit
dwellings under common ownership, control or management, unless such
facility or facilities use any public rights-of-way;
A facility of a common carrier which is subject, in whole or
in part, to the provision of Title II of the Cable Act, except that
such facility shall be considered a cable system to the extent that
such facility is used in the transmission of video programming directly
to subscribers; or
Any facilities of any electric utility used solely for operating
its electric utility systems.
The one-way transmission to subscribers of video programming
or other programming service and subscriber interaction, if any, which
is required for the selection of such video programming or other programming
service and the installation and rental of equipment necessary for
the receipt thereof.
A six-megahertz (MHz) frequency band which is capable of
carrying either one standard video signal; a number of audio, digital
or other nonvideo signals; or some combination of such signals. One
channel of high-definition television will utilize more than six MHz.
Such video, audio, data and other services provided to institutional
users on an individual application basis. These may include but are
not limited to one-way video, two-way video, audio or digital signals
among institutions to residential subscribers.
A subscriber who receives a service in a place of business
where the service may be utilized in connection with a business, trade
or profession.
The Cable Communications Policy Act of 1984[2] and the Cable Television Consumer Protection and Competition
Act of 1992, as it may be amended or succeeded.
An electronic device that will shift any television channel(s)
from one to another within the UHF or VHF spectrum.
Broadband communications channels dedicated to serving city,
county, state or federal governmental agencies, educational institutions,
health care institutions or other nonprofit organizations that may
be qualified by the Cable TV Advisory Committee.
A channel which can only be received by the person and/or
institution intended to receive signals on such channel.
A coaxial connection from a feeder cable to the subscriber/user
television set, radio or other terminal.
Any channel designated for educational access use.
The price that a willing buyer would pay to a willing seller
for a going concern based on the system valuation prevailing in the
industry at the time.
The Federal Communications Commission and any legally appointed
successor.
The nonexclusive rights granted pursuant to this chapter
to construct, operate and maintain a cable communications system along
the public ways within all or a specified area in the Village. Any
such authorization, in whatever form granted, shall not mean or include
any license or permit required for the privilege of transacting and
carrying on a business within the Village as required by other local
laws and laws of the Village.
The entire Village or portions thereof for which a franchise
is granted under the authority of this chapter. If not otherwise stated
in the franchise, the franchise area shall be the corporate limits
of the Village, including all territory thereafter annexed to the
Village.
The portion, as specified by the Village, of the franchisee's
gross revenues from all sources payable in exchange for the rights
granted pursuant to this chapter and the franchise agreement; the
term "franchise fee" includes any tax, fee or assessment of any kind
imposed by a franchising authority or other governmental entity on
a cable operator or cable subscriber, or both, solely because of their
status as such. Franchise fee does not include:
Any tax, fee or assessment of general applicability (including
any such tax, fee or assessment imposed on both utilities and cable
operators or their services, but not including a tax, fee or assessment
which is unduly discriminatory against cable operators or cable subscribers);
Capital costs which are required by the franchise to be incurred
by the cable operator for 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 or liquidated damages;
or
Any fee imposed under Title 17 of the United States Code.
The natural person(s), partnership(s), domestic and foreign
corporation(s), association(s), joint venture(s) or organization(s)
of any kind which has been legally granted a franchise by the Village,
and its lawful successor, transferee or assignee.
Any channel specifically designated or dedicated for government
access use.
The Village of Minoa as represented by the Village Board
of Trustees acting within the scope of its jurisdiction.
The total of all cash, credits, property of any kind or nature
or other consideration received, directly or indirectly, by the grantee,
its affiliates, subsidiaries or any person, firm or corporation in
which the grantee has a financial interest derived from the operation
of the cable system within the Village. If another entity is responsible
for selling advertising on the cable system, advertising revenues
shall be deemed to be limited to the prorate portion of advertising
revenue, less expenses, paid to the grantee by such entity. Furthermore,
gross receipts shall not include sums paid for services other than
cable service if the grantee is subjected to competition for such
services within the Village by an entity not affiliated with the grantee
or its parent, and such entity is not required to pay a franchise
fee or similar levy to the Village on such services.
The connection of the system from the feeder cable to subscribers'
terminals.
Any channel designated or dedicated for use by persons unaffiliated
with the grantee.
Observing a communications signal or the absence of a signal
where the observer is not a party to the communication, whether the
signal is observed by visual or electronic means, for any purpose
whatsoever.
The ability to distribute cable programming to a particular
segment or segments of the cable subscribers.
The New York State Commission on Cable Television, the Commission
created pursuant to Article 28 of New York State Executive Law entitled
"Commission on Cable Television" or its successor.[3]
An individual, partnership, association, organization, corporation
or any lawful successor transferee of said individual, partnership,
association, organization or corporation.
A linear mile of cable as measured on the street or easement
from pole to pole or pedestal to pedestal.
Any channel designated or dedicated for use by the general
public or noncommercial organizations which is made available for
use without charge on a nondiscriminatory basis in accordance with
the rules and regulations specified in the franchise.
The surface, the air space above the surface and the area
below the surface of any public street, highway, lane, path, alley,
sidewalk, boulevard, drive, bridge, tunnel, park, parkways, waterways,
utility easements or other public right-of-way or hereafter held by
the Village which shall entitle the Village and the company to the
use thereof for the purpose of installing and maintaining the company
cable television system. No reference herein or in any franchise to
the public way shall be deemed to be a representation or guaranty
by the Village that its title to any property is sufficient to permit
its use for such purpose, and the grantee shall, by its 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.
Written notice addressed to the grantee at its principal
office within the Village or such other office as the grantee has
designated to the Village as the address to which notice shall be
transmitted to it, which notice shall be certified and postmarked
not less than seven days prior to that day in which the party giving
such notice shall commence any action which requires the giving of
notice. In computing said seven days, holidays recognized by the Village
shall be excluded.
Any person residing in the Village as otherwise defined by
applicable law.
A subscriber who receives a service in an individual dwelling
unit where the service is not to be utilized in connection with a
business, trade or profession.
Includes any sale, exchange, barter or offer for sale.
Any public or nonprofit educational institution, including
primary and secondary schools, colleges and universities, both public
and private.
The entire geographic area within the franchise territory.
A combination of service tiers consisting of the basic broadcast
service and any other regulated cable satellite tier, but excluding
any service sold on a per-channel basis and any package of services
normally sold on a per-channel basis.
The State of New York.
The cable communications system constructed for use within
the Village, including, without limitation, the headend, antenna,
cables, wires, lines, towers, amplifiers, converters, health and property
security systems, equipment or facilities located within the corporate
limits of the Village designed, constructed or wired for the purpose
of producing, receiving, amplifying and distributing, by coaxial cable,
fiber optics, microwave or other means, audio and visual radio, television
and electronic signals to and from subscribers in the Village and
any other equipment or facilities located within the corporate limits
of the Village intended for the use of the system; provided, however,
that such system facility excludes buildings, contracts, facilities
and equipment where the primary use is for providing service to other
system facilities located outside the Village limits.
The disposal by the grantee, directly or indirectly, by gift,
assignment, voluntary sale, merger, consolidation or otherwise, of
fifty-one-percent ownership and/or voting control or actual working
control, as defined by the Federal Communications Commission, of the
franchise to a person who is not controlling, controlled by or under
common control with the grantee.
The major distribution cable used in cable communications,
which divides into feeder lines which are tapped for service to subscribers.
A signal originating from a terminal to another point in
the cable television system, including video, audio or digital signals
for either programs or other uses such as security alert services,
etc.
A person or organization utilizing channel or equipment and
facilities for the purpose of producing and/or transmission of material,
as contrasted with receipt thereof in a subscriber capacity.
The Village Board of Trustees of the Village of Minoa.
A.
In the event that the Village shall grant to the grantee a nonexclusive,
revocable franchise to construct, operate and maintain a cable communications
system within the Village, said franchise shall constitute both a
right and an obligation to provide the services of a cable communications
system as regulated by the provisions of this chapter and the franchise.
The franchise shall include by reference those provisions of the grantee's
application for franchise that are finally negotiated and accepted
by the Village and the grantee.
B.
The franchise shall be granted under the terms and conditions contained
herein, consistent with the Village's Code and/or other applicable
statutory requirements. In the event of a conflict between the terms
and conditions of this chapter, the franchise or the terms and conditions
on which the Village can grant a franchise, the Code and/or statutory
requirements shall control.
C.
Any franchise granted by the Village is hereby made subject to the
generally applicable local law provisions now in effect and hereafter
made effective; provided, however, that any amendment to this chapter
that is binding on any franchisee shall be confined to changes which
do not materially alter the rights of the franchisee under a franchise.
Nothing in the franchise shall be deemed to waive the requirements
of the various codes and local laws of the Village regarding permits,
fees to be paid or manner of construction.
The franchise area shall be the entire Village or portions thereof
for which a franchise is granted.
For the purpose of operating and maintaining a cable communications
system in the Village, the grantee may erect, install, construct,
repair, replace, reconstruct and retain in, on, over, under, upon,
across and along the public streets and ways within the Village such
wires, cables, conductors, ducts, conduits, vaults, manholes, amplifiers,
appliances, pedestals, attachments and other property and equipment
as are necessary to the operation of the cable communications systems;
provided, however, that the grantee complies with all design, construction,
safety and performance provisions contained in this chapter, the franchise
agreement and other applicable local laws.
At the Village's option, the Village may require a grantee
to utilize a Village-owned conduit or other facilities for any portion
of its cable communications system during the initial construction
of the system, provided that the cost of construction is not materially
increased due to the use of Village-owned facilities. The consideration
for the use of a Village conduit or other facilities shall be as stated
in the franchise. A reasonable fee for the use of Village facilities
shall be established in the franchise and may be adjusted at the periodic
performance evaluations.
No poles shall be erected by the grantee without prior approval
of the Village with regard to location, height, type and any other
pertinent aspect. However, no location of any pole of the grantee
shall be a vested right, and such poles shall be removed or modified
by the grantee at its own expense whenever the Village determines
that the public convenience would be enhanced thereby. The grantee
shall utilize existing poles and conduits where possible. The Village
shall have the right, during the life of the franchise, to install
and maintain, free of charge upon the poles owned by the grantee,
any wire and pole fixtures that do not unreasonably interfere with
the cable system operations of the grantee.
No cable communications system shall be allowed to occupy or
use the streets of the Village or be allowed to operate without a
franchise.
The term of any franchise granted pursuant to this chapter shall
be at least a minimum of five years and a maximum of 10 years.
Any franchise granted pursuant to this chapter shall be nonexclusive.
The Village specifically reserves the right to grant, at any time,
additional franchises for a cable communications system and cable
service in accordance with state and federal law. Any grant of additional
franchises by Village to any other entity to provide cable or video
service generally similar in substance to that of another shall be
on terms and conditions that, consistent with the Village's general
franchise requirements and not otherwise, when considered on a whole
or individual basis, more or less favorable or burdensome to the franchisee
of any such additional franchise, than those which are set forth herein
or otherwise reasonably necessary or serving a public policy concern
of the Village.
Time is of the essence to this chapter. Whenever the agreement
shall establish a separate schedule, specific acts by or on behalf
of the grantee, these shall be deemed of the essence, and any failure
of the grantee to perform within the time allotted shall always be
sufficient ground for the Village to invoke an appropriate penalty,
including possible revocation of the franchise.
In any controversy or dispute under this chapter, the law of
the State of New York shall apply.
A.
Transfer of franchise. Any franchise granted hereunder shall not
be transferred without the prior consent of the Village, which consent
shall not be unreasonably withheld.
B.
The grantee shall promptly notify the Village of any actual or proposed
transfer.
C.
Every transfer shall make the franchise subject to cancellation,
unless the Village shall have consented thereto. For the purpose of
determining whether it shall consent to such transfer, the Village
may inquire into the legal, technical and financial qualifications
of the proposed controlling party, consistent with FCC rules, and
the grantee shall assist the Village in any such inquiry.
D.
Assumption of control. The Village agrees that any financial institution
having a pledge of the franchise or its assets for the advancement
of money for the construction and/or operation of the franchise shall
have the right to notify the Village that it or its designees satisfactory
to the Village will take control and operate the cable television
system. Further, said financial institution shall also submit a plan
for such operation that will ensure continued service and compliance
with all franchise obligations during the term the financial institution
exercises control over the system. The financial institution shall
not exercise control over the system for a period exceeding one year,
unless extended by the Village at its discretion, and during said
period of time it shall have the right to petition for transfer of
the franchise to another grantee. If the Village finds that such transfer,
after considering the legal, financial, character, technical and other
public interest qualifications of the applicant, is satisfactory,
the Village will transfer and assign the rights and obligations of
such franchise as in the public interest. The consent of the Village
to such transfer shall not be unreasonably withheld.
E.
The consent or approval of the Village to any transfer of the grantee
shall not constitute a waiver or release of the rights of the Village
in and to the streets, and any transfer shall, by its terms, be expressly
subject to the terms and conditions of this chapter and the franchise.
F.
In the absence of extraordinary circumstances, the Village will not
approve any transfer or assignment of the franchise prior to completion
of construction of the proposed system.
G.
Time frame for Village review. The Village shall have 120 days, from
the time specified under federal law, to act upon any request for
approval of such sale or transfer that contains or is accompanied
by such information as is required in accordance with FCC regulations
and by the Village. If the Village fails to render a final decision
on the request within 120 days, such request shall be deemed granted
unless the requesting party and the Village agree to an extension
of time. In the event that the Village refuses to grant the aforementioned
request, it shall set forth specific reasons for its decision, in
writing, by municipal resolution.
H.
In determining whether to approve said request, the Village may consider
the following:
(1)
The experience of the proposed assignee or transferee (including
conducting an investigation of the proposed assignee or transferee's
service record in other communities).
(2)
The qualifications of the proposed assignee or transferee.
(3)
The legal integrity of the proposed assignee or transferee.
(4)
The financial ability and stability of the proposed assignee or transferee.
(5)
The ability and express commitment of the proposed assignee or transferee
to fully comply with the provisions of this agreement.
I.
A copy of the completed sales agreement or a functionally equivalent
instrument between the grantee and proposed transferee or assignee
shall be available to the Village for inspection at the grantee's
local office, upon request of the letter.
J.
The Village may approve said petition contingent on compliance with
additional standards, terms or conditions within its legal authority
and consistent with findings resulting from its review of the aforementioned
petition.
Renewal discretionary. Upon completion of the term of any franchise
granted under this chapter, the Village may in its sole discretion
grant or deny renewal of the franchise of the grantee in accordance
with the provisions of the Cable Act. The grantee shall own the cable
communications system but shall have no property right in the public
rights-of-way upon the completion of the franchise term.
A.
In accepting the franchise, the grantee acknowledges that its rights
hereunder are subject to the police power of the Village to adopt
and enforce general local laws necessary to the safety and welfare
of the public, and it agrees to comply with all applicable general
laws and local laws enacted by the Village pursuant to such power.
B.
Any conflict between the provisions of this chapter or the franchise
and any other present or future lawful exercise of the Village's
police powers shall be resolved in favor of the latter, except that
any such exercise that is not of general application in the jurisdiction
or applies exclusively to the grantee or cable communications systems
which contains provisions inconsistent with this chapter shall prevail
only if, upon such exercise, the Village finds an emergency exists
constituting a danger to health, safety, property or general welfare
and such exercise is mandated by law.
A.
The Village finds that:
(1)
The streets of the county, state and Village to be used by the grantee
in the operation of its system within the boundaries of the franchise
area are valuable public properties acquired and maintained by the
county, state and Village at great expense to its taxpayers.
(2)
The grant to the grantee to said streets is a valuable property right
without which the grantee would be required to invest substantial
capital in right-of-way costs and acquisitions.
(3)
The administration of this chapter and the franchise imposes upon
the Village additional regulatory responsibility and expense.
(4)
A grantee of any franchise hereunder shall pay to the Village a franchise
fee in an amount as designated in the franchise, but in no event less
than 5% of the gross annual revenues, or the maximum amount permitted
under applicable federal, state or local law, if such maximum is greater
than 5% less the annual assessment paid by the grantee to the New
York State Commission on Cable Television. The annual franchise payment
shall be in addition to any other fee and shall commence as of the
effective date of the franchise. The Village shall be furnished a
statement of said payment, by a certified public accountant, reflecting
the total amounts of annual gross revenues and the above charges and
computations for the period covered by the payment.
B.
Franchise fee in addition to other tax or payment. This payment shall
be in addition to any other tax or payment owed to the governments
or other taxing jurisdiction by the grantee.
C.
Acceptance by the Village. No acceptance of any payment by the Village
shall be construed as a release or as an accord and satisfaction of
any claim the Village may have for further or additional sums payable
as a franchise fee under this chapter or for the performance of any
other obligation of the grantee.
D.
Failure to make required payment. In the event that any franchise
payment or recomputed amount is not made on or before the dates specified
herein, the grantee shall pay as additional compensation an interest
charge, computed from such due date, at the annual rate equal to the
commercial prime interest rate of the Village primary depository bank
during the period that such unpaid amount is owed.
E.
Payments to be made quarterly. The franchise fee and any other cost
or damage assessed against the grantee shall be payable quarterly
to the Village of Minoa. The grantee shall file a complete and accurate
verified statement of all gross revenues within the franchise area
during the period for which said quarterly payment is made, and said
payment shall be made to the Village no later than 45 days following
the end of each calendar quarter. Quarterly computation dates are
the last day in the months of March, June, September and December.
F.
The Village's right of inspection. The Village shall have the
right to inspect the grantee's income records and the right to
audit at its own expense determined to be payable under this chapter.
However, in the event that the audit concludes that the grantee's
payments hereunder were underpaid by an amount greater than 5% of
the proper payment, then the grantee shall reimburse the Village for
the costs of said audit, in addition to making any additional payments
required to bring the grantee into compliance with this section. At
the sole discretion of the Village, the latter may collect interest
from the grantee on the underpayment or any other late payment at
a rate equal to the prime rate plus 3%.
A.
Grounds for revocation. The Village reserves the right to revoke
any franchise granted hereunder and rescind all rights and privileges
associated with the franchise in the following circumstances, each
of which shall represent a default and breach under the local law
and the franchise grant:
(1)
If the grantee shall default in the performance of any of the material
obligations under this chapter or under such documents, contracts
and other terms and provisions entered into by and between the Village
and the grantee.
(2)
If the grantee shall fail to provide or maintain in full force and
effect the liability and indemnification coverage or the performance
bond as required herein.
(3)
If the grantee shall violate any lawful orders or rulings of any
regulatory body having jurisdiction over the grantee relative to this
chapter or the franchise.
(4)
If the grantee evades, as defined in state law, any of the provisions
of this chapter or the franchise or practices any fraud or deceit
upon the Village or cable subscribers.
(5)
If the grantee fails to meet the construction schedule contained
in the franchise or beyond any extended date set by the Village.
(6)
Upon failure to restore service after 96 consecutive hours of interrupted
service, except when approval of such interruption is obtained from
the Village.
(7)
Upon material misrepresentation of fact in the application for or
negotiation of the franchise or any extension or renewal thereof.
(8)
If the grantee ceases to provide all services for any reason within
the control of the grantee over the cable communications system.
B.
Effect of circumstances beyond control of the grantee. The grantee
shall not be declared at fault or be subject to any sanction under
any provision of this chapter in any case in which performance of
any such provision is prevented for reasons beyond the grantee's
control. A fault shall not be deemed to be beyond the grantee's
control if committed by a corporation or other business entity in
which the grantee holds a controlling interest, whether held directly
or indirectly.
C.
Pending litigation or any appeal to any regulatory body or court
having jurisdiction over the grantee shall not excuse the grantee
from the performance of its obligations under this chapter or the
franchise. Failure of the grantee to perform such obligations because
of pending litigation or petition may result in forfeiture or revocation
pursuant to the provisions of this section.
D.
Procedure prior to revocation.
(1)
The Village shall make written demand that the grantee do so comply
with any such requirement, limitation, term, condition, rule or regulation
or correct any action deemed cause for revocation. If the failure,
refusal or neglect of the grantee continues for a period of 30 days
following such written demand, the Village shall place its request
for termination of the franchise upon a regular Village Board of Trustees
meeting agenda. The Village shall cause to be served upon such grantee,
at least seven days prior to the date of such Village Board of Trustees
meeting, a written notice of this intent to request such termination
and the time and place of the meeting, notice of which shall be published
by the Village Clerk at least once seven days before such meeting
in a newspaper of general circulation within the Village.
(2)
The Village Board of Trustees shall hear any persons interested therein
and determine in its discretion whether or not any failure, refusal
or neglect by the grantee was with just cause.
(3)
If such failure, refusal or neglect by the grantee was with just
cause, as defined by the Village, the Village Board of Trustees shall
direct the grantee to comply within such time and manner and upon
such terms and conditions as are reasonable.
(4)
If the Village Board of Trustees shall determine such failure, refusal
or neglect by the grantee was without just cause, then the Village
Board of Trustees shall, by resolution, declare that the franchise
of the grantee shall be terminated and the performance bond forfeited
unless there is compliance by the grantee within a specified period
of time not to exceed 90 days or such longer period as reasonably
necessary to comply as approved by the Village Board of Trustees,
whose approval shall not be unreasonably withheld.
E.
Disposition of facilities. In the event that a franchise is not renewed
and/or revoked, the Village may, in its sole discretion, do any of
the following:
(2)
Effect a transfer of ownership of the system to another party.
(3)
Order the removal of the system facilities required by public necessity
from the Village within a reasonable period of time as determined
by the Village or require the original grantee to maintain and operate
its system for a period of six months or until such further time as
is mutually agreed upon. The grantee may convey its ownership or interest
in the facilities constituting the cable system to a successor grantee
approved by the Village. Any such facilities that are not so conveyed
shall be considered to be abandoned to the ownership and use of the
Village, subject to the right of the grantee to remove any such facilities
or any portion of such facilities that may be salvageable.
F.
Restoration of property. In removing its plant, structures and equipment,
the grantee shall refill, at its own expense, any excavation that
shall be made by it and shall leave all public ways and places in
as good a condition or better as that prevailing prior to the grantee's
removal of its equipment and appliances without affecting the electrical
or telephone cable wires or attachments. The Village shall inspect
and approve the condition of the public ways and public places and
cables, wires, attachments and poles after removal. The liability,
indemnity, insurance and performance bond as provided herein shall
continue in full force and effect during the period of removal and
until full compliance by the grantee with the terms and conditions
of this subsection, this chapter and the franchise.
G.
Restoration by Village, reimbursement of costs. In the event of a failure by the grantee to complete any work required by §§ 56-6 and 56-8 and/or Subsection F above or any other work required by Village law or local law within the time as may be established and to the satisfaction of the Village, the Village may cause such work to be done, and the grantee shall reimburse the Village the cost thereof within 30 days after receipt of an itemized list of such costs or the Village may recover such costs through the performance bond provided by the grantee. The Village shall be permitted to seek legal and equitable relief to enforce the provisions of this section.
H.
Extended operation. Upon either the expiration or revocation of a
franchise, the Village may require the grantee to continue to operate
the system for a period of six months from the date of such expiration
or revocation or until such time as is mutually agreed upon. The grantee
shall, as trustee for its successor in interest, continue to operate
the cable communications system under the terms and conditions of
this chapter and the franchise and to provide the regular subscriber
service and any and all of the services that may be provided at the
time. The Village shall be permitted to seek legal and equitable relief
to enforce the provisions of this section.
I.
Recourse. The grantee may seek recourse as available by law or regulation.
A.
Termination by insolvency. To the extent permitted under federal
bankruptcy law, the franchise granted hereunder shall, at the option
of the Village, cease and terminate 120 days after the appointment
of a receiver or receivers or trustee or trustees to take over and
conduct the business of the grantee, whether in a receivership, reorganization,
bankruptcy or other action or proceeding, unless such receivership
or trusteeship shall have been vacated prior to the expiration of
said 120 days or unless:
(1)
Such receivers or trustees shall have, within 120 days after their
election or appointment, fully complied with all the terms and provisions
of this chapter and the franchise granted pursuant hereto, and the
receivers or trustees within said 120 days shall have remedied all
defaults under the franchise; and
(2)
Such receivers or trustees shall, within said 120 days, execute an
agreement duly approved by the court having jurisdiction in the premises,
whereby such receivers or trustees assume and agree to be bound by
each and every term, provision and limitation of the franchise herein
granted.
B.
Termination by judicial action. In the case of a foreclosure or other
judicial sale of the plant, property and equipment of the grantee
or any part thereof, including or excluding the franchise, the Village
may serve notice of termination upon the grantee and the successful
bidder at such sale, in which event the franchise and all rights and
privileges of the grantee granted hereunder shall cease and terminate
30 days after service of such notice, unless:
A.
Equal opportunity employment shall be afforded by all operators of
cable television systems to all qualified persons, and no person shall
be discriminated against in employment because of race, color, religion,
age, national origin, sex or physical handicap. The grantee shall
comply with all equal opportunity provisions enacted by federal, state
and local authorities, as well as all such provisions contained in
this chapter and the franchise. It is agreed that Continental's
compliance with FCC rules constitutes compliance with this section.
B.
Local employment and procurement practices. Whenever reasonably possible,
all services, personnel, hardware and supplies for the construction,
maintenance and operation of the system shall be procured locally.
The grantee shall describe in detail plans and policies for each year
of the term of the agreement for utilizing and contracting with local
construction contractors, subcontractors, suppliers, vendors and other
business enterprises and persons for services, supplies, equipment,
consultation, banking, financial accounting and legal services, insurance
and other necessary facilities and services that will be used in establishing,
operating, marketing, programming and maintaining the cable communications
system.
All notices from the grantee to the Village pursuant to this
chapter shall be to the Village Mayor or his or her designee. The
grantee shall maintain with the Village, throughout the term of the
franchise, an address for service of notices by mail. The grantee
shall also maintain within the Village a local office and telephone
number for the conduct of matters related to the franchise during
normal business hours. The grantee shall be required to advise the
Village of such address(es) and telephone numbers and any changes
thereof.
The grantee shall not be excused from complying with any of
the terms and conditions of this chapter or the franchise by any failure
of the Village upon any one or more occasions to insist upon or to
seek compliance with any such terms or conditions.
A.
Renewal. If a renewal of a franchise held by a cable operator is
denied and the franchising authority acquires ownership of the cable
system or effects a transfer of ownership of the system to another
person, any such acquisition or transfer shall be:
(1)
At fair market value, determined on the basis of the cable system
valued as a going concern but with no value allocated to the franchise
itself; or
(2)
In the case of any franchise existing on the effective date of this
chapter, at a price determined in accordance with the franchise if
such franchise contains provisions applicable to such an acquisition
or transfer.
B.
Revocation. If a franchise held by a cable operator is revoked for
cause and the franchising authority acquires ownership of the cable
system or effects a transfer of ownership of the system to another
person, any such acquisition or transfer shall be:
C.
Right of inspection of records.
(1)
The Village shall have the right to inspect all books, records, reports,
maps, plans, financial statements and other like materials of the
grantee, at any time upon reasonable notice, during normal business
hours necessary to the enforcement of this chapter and the franchise.
The grantee shall provide such information in such form as may be
required by the Village for said records. To the extent allowed by
law, the Village agrees to treat as proprietary any information identified
as such by the grantee and shall not intentionally divulge any such
information publicly or to actual or potential competitors of the
grantee, except as may be required in a legal proceeding or ordered
by a court of competent jurisdiction.
(2)
If any such maps or records are not kept in the Village or upon notice
that the grantee is unable to provide the records in the Village and
if the Village shall determine that an examination of such maps or
records is necessary or appropriate to the performance of the Village's
responsibilities under this franchise, then all travel and maintenance
expenses necessarily incurred in making such examination shall be
paid by the grantee.
D.
Right of inspection of construction. The Village shall have the right
to inspect all construction or installation work performed subject
to the provisions of the franchise and to make such tests as it shall
find necessary to ensure compliance with the terms of this chapter
and other pertinent provisions of the law.
E.
Right of inspection of property. At all reasonable times, the grantee
shall permit examination, by any duly authorized representative of
the Village, of system facilities, together with any appurtenant property
of the grantee situated within or without the Village.
F.
Right of intervention. The Village shall have the right of intervention
in any suit or proceeding to which the grantee is a party.
G.
Right to require tests. The Village shall have the right and authority
to test the performance of the cable communications system. The Village
may require that any tests performed at the Village's request
be supervised or conducted by a Village designee, not an employee
or agent of the grantee. The grantee shall reimburse the Village for
the costs of such designee if the tests performed show that the quality
of service is below the standards set forth in the franchise. The
grantee shall cooperate fully with the Village in performing such
testing.
A.
The Village shall exercise appropriate regulatory authority under
the provisions of this chapter and applicable law. This authority
shall be vested in the Village Board of Trustees and administered
through the Village Mayor or his or her designee in order to provide
day-to-day administration and enforcement of the provisions of this
chapter and any franchise granted hereunder and to carry out the Village's
responsibilities with regard to cable communications.
B.
If a material provision is held to be invalid by a court of competent
jurisdiction or rendered a nullity by federal or state legislature
or regulatory action, the grantee and the Village shall promptly and
in good faith renegotiate provisions of this agreement affected by
the loss of the aforementioned material provision to ensure that the
Village is restored, insofar as is reasonably possible, to its approximate
status relative to the other as existed prior to said judicial, legislative
or regulatory action.
C.
The Village reserves the right to exercise the maximum plenary authority,
as may at any time be lawfully permissible, to regulate the cable
communications system, the franchise and the grantee. Should applicable
legislative, judicial or regulatory authorities at any time permit
regulation not presently permitted to the Village, the Village may,
without the approval of the grantee, engage in any such additional
regulation as may then be permissible, whether or not contemplated
by this chapter or the franchise, including, without limitation, regulation
regarding franchise fees, taxes, programming, rates charged to subscribers
and users, consumer protection or any other similar or dissimilar
matter.
A.
The Village shall have the following regulatory responsibility:
(1)
Administration and enforcement of the provisions of this chapter
and any franchise granted hereunder.
(2)
Award, renewal, extension or termination of a franchise pursuant
to the provisions of this chapter, the franchise and other applicable
law.
(3)
Consent prior to the sale or transfer of any franchise granted hereunder.
(4)
Performance evaluation.
(5)
Rate regulation, if applicable.
B.
The Village also reserves the right to perform the following functions:
(1)
Develop objectives and coordinate activities related to the operation
of government channels.
(2)
Approve procedures and standards for public, government and educational
access and operations and services, including the use of dedicated
channels and sharing of public facilities.
(3)
Coordinate plans for the expansion, interconnection and growth of
cable services.
(4)
Analyze the possibility of integrating cable communications with
other Village, state or regional telecommunications networks.
(5)
Formulate and recommend long-range telecommunications policy for
the Village, and determine the future cable-related needs and interests
of the community.
(6)
Provide the administrative effort necessary for the conduct of performance
evaluations and any other activities required for the administration
of the franchise.
(7)
Monitor the grantee's process for handling citizen complaints,
and periodically inspect and analyze the records related to such complaints.
(8)
Receive applications for rate increases if applicable, and provide
staff assistance in the analysis and recommendations thereto.
(9)
Monitor the grantee's adherence to operational standards, service
requirements and line extension policies.
(10)
Assure compliance with applicable laws and local laws.
(11)
Arrange tests and analysis of equipment and performance, as
needed to ensure compliance with this chapter and the franchise.
(12)
Assure continuity in service.
(13)
Receive for examination all data and reports required by this
chapter.
C.
Cable TV Advisory Committee. There shall be a citizen's advisory
committee entitled the "Cable TV Advisory Committee." The responsibilities
of the Cable TV Advisory Committee shall include but not be limited
to the following:
(1)
Monitor and advise the Village Board of Trustees and Village administration
on the provisions of this chapter and related local laws.
(2)
Serve as advisory body for the public, educational and municipal
access channels of cable television and any institutional programming
that may be developed.
(3)
Advise the Village government of objectives to be obtained in the
Village's cable communications system based upon its continued
evaluation of the Village's cable television franchise, cable
technology and the future cable-related needs and interests of the
community.
(4)
Prepare an annual report to the Village Board of Trustees.
(5)
Cooperate with the Village and the grantee in fulfilling its responsibilities
herein.
A.
The grantee shall file with the Village schedules which shall describe
all services offered, all rates and charges of any kind and all terms
and conditions relating thereto. No rates or charges shall be effective
except as they appear on a schedule so filed. The grantee shall notify
subscribers, in writing, at least 30 days prior to the implementation
of any change in services offered, rates charged or terms and conditions
related thereto.
B.
The grantee shall establish rates that are nondiscriminatory within
the same general class of subscribers which must be applied fairly
and uniformly to all subscribers in the franchise area for all services.
Nothing contained herein shall prohibit the grantee from offering
discounts to commercial and multiple-family dwelling subscribers billed
on a bulk basis; promotional discounts; or reduced installation rates
for subscribers who have multiple services. The grantee's charges
and rates for all services shall be itemized on a subscriber's
monthly bills.
C.
To the extent that federal or state law or regulation may now or
as the same may hereafter be amended to authorize the Village to regulate
the rates for any particular service tiers, service packages, equipment
or any other services provided by the grantee, the Village shall have
the right to exercise rate regulation to the full extent authorized
by law or to refrain from exercising such regulation for any period
of time, at the sole discretion of the Village.
A.
The Village and the grantee shall, at the written request of the
Village, hold scheduled performance evaluation sessions annually.
All such evaluation sessions shall be open to the public.
B.
Special evaluation sessions may be held at any time during the term
of the franchise at the request of the Village.
C.
All evaluation sessions shall be open to the public and announced in a newspaper of general circulation in accordance with public notice, as provided in § 56-47. The grantee shall notify subscribers of all such evaluation sessions by announcement on the designated local government channel on the system between the hours of 11:00 a.m. and 9:00 p.m. for five consecutive days preceding each session.
D.
Topics which may be discussed at any scheduled or special evaluation
session may include but not be limited to system performance and construction,
grantee compliance with this chapter and the franchise, customer service
and complaint response, subscriber privacy, services provided, programming
offered, service rate structures, franchise fees, penalties, free
or discounted services, applications of new technologies, judicial
and FCC filings and line extensions.
E.
During the review and evaluation by the Village, the grantee shall
fully cooperate with the Village and shall provide such information
and documents as the Village may need to reasonably perform its review.
A.
Upon the effective date of the franchise, the grantee shall obtain
and maintain during the entire term of the franchise and any extensions
and renewals thereof, at its cost and expense, and file with the Village
a corporate surety bond in an amount specified in the franchise to
guarantee the faithful performance of the grantee of all its obligations
provided under this chapter and the franchise. Failure to timely obtain,
file and maintain said bond shall constitute a substantial violation
within the meaning of this section.
B.
Conditions. The performance bond shall provide the following conditions.
(1)
There shall be recoverable by the Village jointly and severally from
the principal and surety any and all fines and liquidated damages
due to the Village and any and all damages, losses, costs and expenses
suffered or incurred by the Village resulting from the failure of
the grantee to faithfully comply with the provisions of this chapter
and the franchise; comply with all orders, permits and directives
of any Village agency or body having jurisdiction over its acts or
defaults; pay fees due to the Village; pay any claims, liens or taxes
due the Village which arise by reason of the construction, operation,
maintenance or repair of the cable system. Such losses, costs and
expenses shall include but not be limited to attorney's fees
and other associated expenses.
C.
Reduction of bond. Upon written application by the grantee, the Village
may, at its sole option, permit the amount of the bond to be reduced
or waive the requirements for a performance bond subject to the conditions
set forth below. Reductions granted or denied upon application by
the grantee shall be without prejudice to the grantee's subsequent
applications or to the Village's right to require the full bond
at any time thereafter. However, no application shall be made by the
grantee within one year of any prior application.
D.
Conditions. The Village may draw upon the performance bond if the
grantee fails to faithfully comply with the provisions of this chapter
and the franchise; comply with all orders, permits and directives
of any Village agency or body having jurisdiction over its acts or
defaults; pay fees due to the Village; or pay any claims, liens or
taxes due the Village which arise by reason of the construction, operation,
maintenance or repair of the cable system.
E.
Use of performance bond. Prior to drawing upon the performance bond
for the purposes described in this section, the Village shall notify
the grantee, in writing, that payment is due, and the grantee shall
have 30 days from the receipt of such written notice to make a full
and complete payment. If the grantee does not make the payment within
30 days, the Village may withdraw the amount thereof, with interest
and penalties, from the performance bond.
F.
Notification. Within three days of a withdrawal from the performance
bond, the Village shall send to the grantee, by certified mail, return
receipt requested, written notification of the amount, date and purpose
of such withdrawal.
G.
Replenishment of performance bond. No later than 30 days upon the
resolution of the dispute which resulted in a withdrawal from the
performance bond, the grantee shall replenish the performance bond
in an amount equal to the amount so withdrawn. Failure to make timely
replenishment of such amount to the performance bond shall constitute
a substantial violation of this chapter.
H.
Nonrenewal, alteration or cancellation of performance bond. The performance
bond required herein shall be in a form satisfactory to the Village
and shall require 30 days' written notice of any nonrenewal,
alteration or cancellation to both the Village and the grantee. The
grantee shall, in the event of any such cancellation notice, obtain,
pay all premiums for and file with the Village written evidence of
the issuance of a replacement bond or policies within 30 days following
receipt by the Village or the grantee of any notice of cancellation.
A.
Prior to commencement of construction, but in no event later than
60 days after the effective date of the franchise and thereafter continuously
throughout the duration of the franchise and any extensions or renewals
thereof, the grantee shall furnish to the Village certificates of
insurance, approved by the Village, for all types of insurance required
under this section. Failure to furnish said certificates of insurance
in a timely manner shall constitute a violation of this chapter.
B.
Certificates of insurance for policies obtained by the grantee in
compliance with this section shall be filed and maintained with the
Village Clerk during the term of the franchise and may be changed
from time to time to reflect changing liability limits and/or to compensate
for inflation.
C.
Neither the provisions of this section or any damages recovered by
the Village hereunder shall be construed to or limit the liability
of the grantee under any franchise issued hereunder or for damages.
D.
All certificates of insurance furnished pursuant to this chapter
or the franchise shall contain the following or a comparable endorsement:
"It is hereby understood and agreed that this insurance policy may
not be canceled by the insurance company nor the intention not to
renew be stated by the insurance company until 30 days after receipt
by the Village Mayor, by certified mail, of a written notice of such
intention to cancel or not to renew."
E.
All insurance policies provided under the provisions of this chapter
or the franchise shall be written by companies authorized to do business
in the state and approved by the State Board of Insurance.
F.
The Village shall be an additional insured for all insurance policies
written under the provisions of this chapter or the franchise.
G.
To offset the effects of inflation and to reflect changing liability
limits, all of the coverages, limits and amounts of the insurance
provided for herein are subject to reasonable increases at the end
of every three-year period of the franchise, applicable to the next
three-year period, upon the determination of the Village.
H.
General liability insurance. The grantee shall maintain and by its
acceptance of any franchise granted hereunder specifically agrees
that it will maintain throughout the term of the franchise general
liability insurance insuring the grantee in the minimum of:
I.
Such general liability insurance must include coverage for all of
the following: comprehensive form, premises operations, explosion
and collapse hazard, underground hazard, products/completed operations
hazard, contractual insurance, broad form property damage and personal
injury.
J.
Automobile liability insurance. The grantee shall maintain and by
its acceptance of any franchise granted hereunder specifically agrees
that it will maintain throughout the term of the franchise automobile
liability insurance for owned, nonowned or rented vehicles in the
minimum amount of:
K.
Workers' compensation and employers' liability insurance.
The grantee shall maintain and by its acceptance of any franchise
granted hereunder specifically agrees that it will maintain throughout
the term of the franchise workers' compensation and employers'
liability, valid in the state, in the minimum amount of:
A.
To the fullest extent permitted by law, the grantee shall, at its
sole cost and expense, fully indemnify, defend and hold harmless the
Village, its officers, public officials, boards and commissions, agents
and employees from and against any and all lawsuits, claims (including,
without limitation, workers' compensation claims against the
Village or others), causes of action, actions, liability and judgments
for injury or damages (including but not limited to expenses for reasonable
legal fees and disbursements assumed by the Village in connection
therewith):
(1)
To persons or property, in any way arising out of or through the
acts or omissions of the grantee, its subcontractors, agents or employees
to which the grantee's negligence shall in any way contribute
and regardless of whether the Village's negligence or the negligence
of any other party shall have contributed to such claim, cause of
action, judgment, injury or damage.
(2)
Arising out of any claim for invasion of the right of privacy, for
defamation of any person, firm or corporation or the violation or
infringement of any copyright, trademark, trade name, service mark
or patent or any other right of any person, firm or corporation, but
excluding claims arising out of or related to Village programming.
(3)
Arising out of the grantee's failure to comply with the provisions
of any federal, state or local statute, local laws or regulations
applicable to the grantee in its business hereunder.
B.
The foregoing indemnity is conditioned upon the following: The Village
shall give the grantee prompt notice of any claim or the commencement
of any action, suit or other proceeding covered by the provisions
of this section. At all times, the Village shall cooperate with the
grantee and participate in the defense of any litigation. No recovery
by the Village of any sum by reason of the liquidated damages required
by the franchise shall be subject to litigation by the grantee, except
that any sum so received by the Village shall be deducted from any
recovery which the Village might have against the grantee under the
terms of this section.
A.
Authorization to commence construction and application procedures.
Within 30 days after acceptance by the grantee of a franchise, the
grantee shall apply for any needed contracts for pole use. Pole space
and other facilities obtained from the Village, utilities and other
lawful users of the public way shall be at the cost and expense of
the grantee. Within 30 days after completion of the make-ready survey
identifying the routes of the system facility, the grantee shall apply
for all additional licenses from the state, Village or other necessary
parties, such as the railroads for crossing under or over their property.
In any event, all necessary applications for permits, licenses, certificates
and authorizations shall be applied for in a timely fashion so that
such filing and processing shall not interfere with or cause delay
with the construction scheduled as outlined in the franchise. Failure
to make such timely application and timely filing shall constitute
a substantial violation of this chapter.
B.
Power to contract. Upon grant of the franchise and in order to construct,
operate and maintain a cable system in the Village, the grantee may
enter into contracts with any public utility companies or any other
owner or lessee of any poles or underground areas located within or
without the Village; obtain right-of-way permits from appropriate
Village, state, county and federal officials necessary to cross or
otherwise use highways or roads under their respective jurisdiction;
obtain permission from the Federal Aviation Administration to erect
and maintain antennas; and obtain whatever other permits a Village,
county, state or federal agency may require.
A.
Compliance with construction and technical standards. The grantee
shall construct, install, operate and maintain its system in a manner
consistent with all laws, local laws, construction standards, governmental
requirements, FCC technical standards and detailed technical standards
submitted by the grantee as part of its application, which standards
are incorporated by reference herein. The system shall be designed,
constructed, operated and maintained for twenty-four-hours-a-day continuous
operation. The system shall produce, for reception on subscribers,
receivers which are in good working order, either monochrome or color
pictures (provided that the receiver is color capable) which are free
from any significant interference or distortion which would cause
any material degradation of video or audio quality.
B.
State of the art. The grantee shall construct, install, operate and
maintain its system in accordance with the highest standards of the
art of cable communications, such standards to include but not be
limited to the following:
(1)
The system will be spaced to permit a minimum of 750 MHz operation
and will be capable of utilizing state-of-the-art converters and be
compatible with cable-ready television sets.
(2)
The system will utilize converters which will make the system adaptable
for the development of future services.
(3)
The grantee shall maintain its system facilities in a manner which
will continue to enable it to add new services and associated equipment
as they are developed, available and proved marketable to subscribers.
The new services and associated equipment will be added to the system
facilities when they are determined to be technically reliable and
adaptable to the system at a cost to the subscriber that is acceptable
in the marketplace.
C.
Prior to the erection of any towers, poles or conduits or the upgrade
or rebuild of the cable communications system under this chapter,
the grantee shall first submit to the Village and other designated
parties for approval a concise description of the facilities proposed
to be erected or installed, including engineering drawings, if required,
together with a map and plans indicating the proposed location of
all such facilities. No erection or installation of any tower, pole,
underground conduit or fixture or any rebuilds or upgrading of the
cable communications system shall be commenced by any person until
approval therefore has been received from the Village; provided, further,
that such approval shall not be unreasonably withheld.
D.
Contractor qualifications. Any contractor proposed for work of construction,
installation, operation, maintenance and repair of system equipment
must be properly licensed. In addition, the grantee shall submit to
the Village a plan to hire persons locally for the construction, installation,
operation, maintenance and repair of the system equipment consistent
with federal regulations.
E.
The grantee's system and associated equipment erected by the
grantee within the Village shall be so located as to cause minimum
interference with the proper use of streets, alleys and other public
ways and places and to cause minimum interference with the rights
and reasonable convenience of property owners who adjoin any of said
streets, alleys or other public ways and places. No pole or other
fixtures placed in any public ways by the grantee shall be placed
in such a manner as to interfere with normal travel on such public
way.
F.
The Village does not guarantee the accuracy of any maps showing the
horizontal or vertical location of existing substructures. In public
rights-of-way, where necessary, the location shall be verified by
excavation.
G.
Construction, installation, operation and maintenance of the cable
communications system shall be performed in an orderly and workmanlike
manner, in accordance with then-current technological standards. All
cables and wires shall be installed, where possible, parallel with
electric and telephone lines. Multiple cable configurations shall
be arranged parallel and bundled with due respect for engineering
considerations.
H.
The grantee shall at all times comply with:
I.
In any event, the system shall not endanger or interfere with the
safety of persons or property in the franchise area or other areas
where the grantee may have equipment located.
J.
Any antenna structure used in the cable communications system shall
comply with construction, marking and lighting of antenna structure
standards as required by federal and state law or regulation.
K.
All worker facilities, conditions and procedures that are used during
construction, installation, operation and maintenance of the cable
system shall comply with the standards of the Occupational Safety
and Health Administration.
L.
Any RE leakage shall be checked at the reception location for emergency
radio services to prove measurable interference signal combinations
are possible. Stray radiation shall be measured adjacent to any proposed
aeronautical navigation radio sites to prove no measurable interference
to airborne navigational reception in the normal flight pattern. FCC
rules and regulations shall govern. The system shall cause no measurable
interference in television signal reception to any operating receiver
not connected to and serviced by the system.
M.
The grantee shall maintain equipment capable of providing standby
power for a minimum of 24 hours for the headed and three hours for
all optical fiber node locations on the distribution system.
The franchise shall specify the construction schedule.
A.
All installations shall be underground in those areas of the Village
where public utilities providing telephone and electric service are
underground at the time of installation. In areas where telephone
or electric utility facilities are above the ground at the time of
installation, the grantee may install its service above the ground,
provided that at such time as those facilities are required to be
placed underground by the Village or are placed underground, the grantee
shall otherwise place its services underground without additional
cost to the Village or to the individual subscriber so served with
the Village. Where not otherwise required to be placed underground
by this chapter or the franchise; the grantee's system shall
be located underground at the request of the adjacent property owner,
provided that the excess cost over the aerial location shall be borne
by the property owner making the request. All cable passing under
the roadway shall be installed in conduit.
B.
Prior to construction or alteration, however, the grantee shall in
each case file plans with the appropriate Village agencies, complete
use agreements with the utility companies, obtain all construction
permits and receive written approval of the Village before proceeding,
which approval shall not be unreasonably withheld.
C.
Interference with persons, improvements, public and private property
and utilities. The grantee's system and facilities, including
poles, lines, equipment and all appurtenances, shall be located, erected
and maintained so that such facilities shall:
(1)
Not endanger or interfere with the health, safety or lives of persons;
(2)
Not interfere with any improvements the Village, county or state
may deem proper to make;
(3)
Not interfere with the free and proper use of public streets, alleys,
bridges, easements or other public ways, places or property, except
to the minimum extent possible during actual construction or repair;
(4)
Not interfere with the rights and reasonable convenience of private
property owners, except to the minimum extent possible during actual
construction or repair; and
(5)
Not obstruct, hinder or interfere with any gas, electric, water or
telephone facilities or other utilities located within the Village.
D.
Restoration to prior condition. In case of any disturbance of pavement,
sidewalk, driveway or other surfacing, the grantee shall, at its own
cost and expense and in a manner approved by the Village, replace
and restore all paving, sidewalk, driveway, landscaping or surface
of any street or alley disturbed, in as reasonably good a condition
as or better than before said work was commenced and in a good workmanlike,
timely manner in accordance with standards for such work set by the
Village. Such restoration shall be undertaken within no more than
10 business days after the damage is incurred and shall be completed
as soon as possible thereafter.
E.
Relocation of the facilities. In the event that at any time during
the period of the franchise the Village, county or state shall lawfully
elect to alter or change the grade of any street, alley or other public
ways, the grantee, upon reasonable notice by the proper authority,
shall remove or relocate as necessary its poles, wires, cables, underground
conduits, manholes and other fixtures at its own expense.
F.
Cooperation with building movers. The grantee shall, on the request
of any person holding a building moving permit issued by the Village,
temporarily raise or lower its wire to permit the moving of buildings.
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 15 working days' advance notice
to arrange for such temporary wire changes.
G.
Tree trimming. The grantee shall have the authority, except when
in conflict with existing Village local laws, to trim any trees upon
and overhanging a public right-of-way so as to prevent the branches
of such trees from coming in contact with system facilities, except
that at the option of the Village, such trimming may be done by it
or under its supervision and direction, at the expense of the grantee.
H.
Easements. All necessary easements over and under private property
shall be arranged for by the grantee.
I.
Private property. The grantee shall be subject to all laws, local
laws or regulations regarding private property in the course of constructing,
installing, operating or maintaining the cable communications system
in the Village of Minoa. The grantee shall promptly repair or replace
all private property, both real and personal, damaged or destroyed
as a result of the construction, installation, operating or maintenance
of the cable communications system at its sole cost and expense.
A.
No poles shall be erected by the grantee without prior approval of
the Village with regard to location, height, types and any other pertinent
aspect. However, no location of any pole or wire-holding structure
of the grantee shall give rise to a vested interest, and such poles
or structures shall be removed or modified by the grantee at its own
expense whenever the Village determines that the public convenience
would be enhanced thereby.
B.
Where poles already exist for use in serving the Village and are
available for use by the grantee, but it does not make arrangements
for such use, the Village may require the grantee to use such poles
and structures if it determines that the public convenience would
be enhanced thereby and the terms of the use available to the grantee
are just and reasonable.
A.
Within 30 days of the granting of a franchise pursuant to this chapter,
the grantee shall provide the Village with a written progress report
detailing work completed to date. Such report shall include a description
of the progress in applying for any necessary agreements, licenses
or certifications and any other information the Village Mayor may
deem necessary. The content and format of the report will be determined
by the Village Mayor and may be modified at his or her discretion.
B.
Such written progress reports shall be submitted to the Village on
a monthly basis throughout the entire construction process. The Village
Mayor may require more frequent reporting if he or she determines
it is necessary to better monitor the grantee's progress.
C.
Prior to the commencement of any system construction, the grantee
shall produce an informational document to be distributed to all residents
of the area to be under construction, which shall describe the activity
that will be taking place. The informational document shall be reviewed
and approved by the Village Mayor prior to its distribution.
A.
Not later than 30 days after any new or substantially rebuilt portion
of the system is made available for service to subscribers and thereafter
on the annual anniversary of the effective date of the franchise,
the grantee shall conduct technical performance tests to demonstrate
full compliance with all technical standards contained in this chapter
and the franchise and the technical standards and guidelines of the
FCC and the Commission.
B.
Such tests shall be performed by or under the supervision of a qualified
registered professional engineer or an engineer with proper training
and experience. A copy of the report shall be submitted to the Village,
describing the test results, instrumentation, calibration and test
procedures and qualification of the engineer responsible for the tests.
C.
System monitor test points shall be established at or near the output
of the last amplifier in the longest feeder line, at or near trunk
line extremities. Such periodic tests shall be made at the test points
as shall be required by the FCC and/or the franchise.
D.
In addition to the performance test reports required herein, a copy
of any performance test reports required by the FCC shall be submitted
to the Village within 60 days of completion.
E.
Whenever there have been similar complaints made or when there exists
other evidence which, in the judgment of the Village, casts doubt
on the reliability or quality of the grantee's system, the Village
shall have the right and authority to compel the grantee to test,
analyze and report on the performance of its system. The Village may
require additional tests, full or partial repeat tests, different
test procedures or tests involving a specific subscriber's terminal.
Reports on such tests shall be delivered to the Village no later than
14 days after the Village formally notifies the grantee and shall
include the following information: the nature of the complaints which
precipitated the special tests; what system component was tested;
the equipment used and procedures employed in said testing; the results
of such tests; and methods by which said complaints were resolved.
Said tests and analyses shall be supervised by a professional engineer
not on the permanent staff of the grantee, who shall sign all records
of the special tests and forward the same to the Village with a report
interpreting the results of the tests and recommending what actions
should be taken by the Village. All such tests shall be at the expense
of the grantee.
A.
Concurrently with the activation of the cable communications system
in the Village, the grantee shall provide all services to subscribers
as described herein and in the franchise at rates detailed in the
rate schedule.
(1)
The system shall carry the broad categories of programming and services
listed in the franchise. Should the grantee desire to change the selection
of programs or services offered on any of the tiers, it shall maintain
the mix, quality and level of services provided over the system. Any
such change in programs or services offered shall comply with the
conditions and procedures contained in the franchise and shall be
reported to the Village at least 30 days prior to the proposed implementation.
The grantee shall notify all subscribers, in writing, at least 30
days prior to implementing any change in the selection of programs
or services offered on any tiers or prior to adding or deleting any
channels or changing the channel number for any station. The grantee
shall use its best efforts to ensure diversity of programming.
(2)
A basic service tier shall be offered to subscribers throughout the
term of this chapter and the franchise.
(3)
The grantee shall provide and maintain, at a minimum, the following
access channels whose purposes are outlined below:
(a)
Government access channel, which shall be a specifically designated
channel for local governmental use and shall be managed, scheduled
and programmed exclusively by the Village.
(b)
Educational channel, which shall be a specifically designated
channel for use by local public and private school authorities and
shall be managed, scheduled and programmed exclusively by them.
(c)
A public access channel, which will be a specifically designated
channel available on a nondiscriminatory basis.
(4)
Pursuant to § 612 of the Cable Act,[1] the grantee shall make channel capacity available as required
by federal law for commercial use by any person, group, organization
or entity unaffiliated with the franchise upon reaching an appropriate
agreement. Rates for commercial use shall comply with applicable federal
law and regulations.
[1]
Editor's Note: See 47 U.S.C. § 532.
(5)
The grantee shall produce and carry on a designated channel, on a
daily basis, an alphanumeric program guide describing, at a minimum,
the programs offered on the access channels described above.
(6)
The grantee shall fully provide, at a minimum, services, facilities
and equipment for public, educational and government access as indicated
in the franchise.
B.
Emergency override. The grantee shall, without charge, provide, service
and maintain public emergency transmission facilities to the Village,
as described in the franchise.
A.
Standard installations. Standard installation shall consist of a
service not exceeding 150 feet from a single point or pedestal attachment
to the customer's residence. The one-hundred-fifty-foot drop
length specified herein shall exclude the width of the street. Service
in excess of 150 feet and concealed wiring shall be charged not to
exceed additional installation costs before installation begins. The
desire of the subscriber as to the point of entry into the residence
shall be observed whenever possible. Runs in building interiors shall
be as unobtrusive as possible. The grantee shall use due care in the
process of installation and shall repair any damage to the subscriber's
property caused by said installation. Such restoration shall be undertaken
within no more than 10 days after the damage is incurred and shall
be completed as soon as possible thereafter.
B.
Deposits. Any deposit required by the grantee shall bear interest
at a rate of not less than 8% or such lower amount as established
by state law or regulation.
C.
Antennas and antenna switches. The grantee shall not, as a condition
to providing cable communications service, require any subscriber
or potential subscriber to remove any existing antenna structures
for the receipt of over-the-air television signals. The grantee shall
install, upon the request of the subscriber, an RF or antenna switch
where required for the provision of services provided by the grantee.
D.
Lockout devices. The grantee shall provide to the potential subscriber,
as part of its promotional literature, information concerning the
availability of a lockout device for use by a subscriber. The grantee
reserves the right to require a reasonable deposit for the use of
this device, as set forth in the rate schedule. The lockout device
described herein shall be made available to all subscribers requesting
it beginning on the first day that any cable service is provided.
E.
Reconnection. The grantee shall restore service to customers wishing
restoration of service, provided that the customer shall first satisfy
any previous obligations owed. The grantee may require a deposit or
refuse service to any applicant for bona fide credit reasons which
relate to the applicant's overdue or delinquent account with
the grantee and may levy reasonable collection charges on overdue
or delinquent accounts.
F.
Free disconnection. Subscribers shall have the right to have cable
services disconnected without charge. Such disconnection shall be
made as soon as practicable and in no case later than 15 days following
notice to the grantee of the same. A refund of unused service charges
shall be paid to the customer within 30 days from the date of termination
of service.
G.
Delinquent accounts. The grantee shall use its best efforts to collect
on delinquent subscriber accounts. Service will not be disconnected
if a delinquent customer agrees at any time to be placed on a regular
payment plan to clear the account. In all cases, the grantee shall
provide the customer with at least 10 working days' written notice
prior to disconnection.
A.
The company shall establish, operate and maintain a business office
and maintenance and repair facility for the purpose of receiving inquiries,
requests and complaints concerning all aspects of the construction,
installation, operation and maintenance of the system and for the
payment of subscribers' service charges and providing facilities
for the production of programming.
B.
The grantee shall have a listed, locally staffed telephone number
for subscriber service calls, and such telephone service shall be
available 24 hours a day, seven days a week. The grantee shall provide
a sufficient number of telephone lines and telephone staff members
to enable subscribers to reach the grantee without unreasonable delay.
The grantee's number shall be published and made available to
subscribers and the general public. The grantee shall, in addition,
provide an unlisted, locally staffed telephone number to the Village
and utility companies to enable the Village or the utility companies
to reach the grantee in case of emergency on a twenty-four-hour, seven-days-a-week
basis.
C.
The grantee shall respond to and resolve subscribers' complaints
or requests for service in connection with repairs and maintenance
and malfunctions of system facilities. The grantee shall respond as
quickly as possible to such complaints and requests but shall in any
case respond within 24 hours. Complaints or requests which may pose
a potential health and safety hazard will be responded to immediately.
In connection with billing complaints, the grantee shall respond within
seven business days.
D.
The grantee shall prepare and file with the Village copies of all
of its rules and regulations in connection with the handling of inquiries,
requests and complaints. The grantee shall, by appropriate means,
such as a card or brochure, furnish information concerning the procedures
for making inquiries or complaints, including the name, address and
local telephone number of the employee or employees or agent to whom
such inquiries or complaints are to be addressed, and furnish information
concerning the Village office responsible for the administration of
the franchise, including, but not limited to, the address and telephone
number of said office.
E.
The grantee shall keep full records in connection with all inquiries,
complaints and requests in connection with the system which require
corrective action or referral to a supervisor and any written complaint.
Such records shall identify the person contacting the grantee and
the person responding on behalf of the grantee, the subject matter
of the contact, the date and time it was received, the resolution
of the matter in question or the action taken by the grantee in connection
with the contact and the date and time thereof and such other information
as may be deemed pertinent by the grantee. These records shall be
made available for periodic inspection by the Village.
F.
The grantee shall service or replace without charge all equipment
provided by it to the subscriber; provided, however, that the grantee
may charge a subscriber for service to or replacement of any equipment
damaged due to negligence of such subscriber.
G.
For recurrent complaints regarding service deficiencies (other than
total or partial loss of service, such as ghosting, weak audio signal,
distortion and the like), the Village Mayor may require the grantee
to investigate and report to him or her the causes and cures thereof,
and the Village Mayor may also conduct his or her own investigation.
Thereafter, the Village Mayor may order specified remedial action
to be taken within reasonably feasible time limits. If such action
is not taken or is ineffective or if within 30 days the grantee files
with the Cable TV Advisory Committee a notice of objection to the
order, the Cable TV Advisory Committee may conduct a hearing and may,
if the evidence warrants a finding of fault on the part of the grantee,
take appropriate action pursuant to the terms of this chapter.
A.
It shall be the right of all subscribers to receive continuous, uninterrupted
service insofar as their financial and other obligations to the grantee
are honored.
B.
In the event that the grantee elects to rebuild, modify or sell the
system or the Village gives notice of intent to terminate or fails
to renew its franchise, the grantee shall cooperate with the Village
or new grantee or operator in maintaining continuity of service to
all subscribers. During such period, the grantee shall be entitled
to the revenues for any period during which it operates the system
and shall be entitled to reasonable costs for the services when it
no longer operates the system.
C.
Failure to provide continuity. In the event that the grantee fails
to operate the system for seven consecutive days without prior approval
of the Village or without just cause, the Village may, at its option,
operate the system or designate an operator until such time as the
grantee restores service under conditions acceptable to the Village
or a permanent operator is selected. If the Village is required to
fulfill this obligation for the grantee, the grantee shall reimburse
the Village for all reasonable costs or damages in excess of revenues
from the system received by the Village that are the result of the
grantee's failure to perform.
A.
Protection of subscriber privacy mandatory. The grantee shall at
all times protect the privacy of subscribers, as provided in this
chapter and other applicable federal, state and local laws.
B.
Notice of privacy provisions. At the time of entering into an agreement
to provide any cable service or other service to a subscriber and
at least once a year thereafter, the grantee shall provide notice
in the form of a separate written statement to the subscriber which
clearly and conspicuously informs the subscriber of:
(2)
The nature of personally identifiable information collected or to
be collected with respect to the subscriber, and the nature of the
use of such information.
(3)
The nature, frequency and purpose of any disclosure which may be
made of such information, including an identification of the types
of persons to whom the disclosure may be made.
(4)
The period during which such information might be maintained by the
cable operator.
(5)
The times and place at which the subscriber may have access to such
information in accordance with this chapter and other applicable federal,
state and local law.
C.
Collection of personally identifiable information prohibited. The
grantee shall not use or permit the use of the cable system to collect
personally identifiable information concerning any subscriber, except
as necessary to render a cable service or other service provided by
the cable operator to the subscriber. The grantee shall not install
or permit the installation of any special terminal equipment in any
subscriber's premises for the two-way transmission of any aural,
visual or digital signals without the prior written consent of the
subscriber. The grantee shall not tabulate nor permit others to tabulate
any subscriber use of the cable system which would reveal the opinions
or commercial product preferences of individual subscribers, whether
residential or business, or of any occupant or user of the subscriber's
premises without written authorization from the subscriber for his
or her participation in a shop-at-home or similar service. When providing
such service, the grantee may tabulate only those responses essential
to the functioning of that shopping or other service and may not use
any such tabulation of individual preferences for any other purposes.
Tabulations of aggregate opinion or preference are permitted, provided
that the aggregations are sufficiently large to assure individual
privacy.
E.
The grantee shall not predicate regular subscriber service on the
subscriber's grant or denial of permission to collect, maintain
or disclose personally identifiable information. A subscriber may
at any time revoke any permission previously given by delivering to
the grantee a written statement of that intent.
F.
Each subscriber shall be provided access to all personally identifiable
information regarding such subscriber that the grantee collects or
maintains or allows to be collected or maintained, and such subscriber
shall be provided the opportunity to correct any error in such information.
G.
Any information concerning individual subscriber viewing habits or
responses, except for information for billing purposes, shall be destroyed
when no longer required for business purposes or otherwise required
to be kept by law.
H.
This section is not intended to prohibit the use or transmission
of signals useful only for the control or measurement of system performance.
A.
Nondiscrimination required. The grantee shall not deny service, deny
access or otherwise discriminate against subscribers, channel users
or general citizens on the basis of race, color, religion, national
origin, age, sex or physical or mental handicaps, provided that the
subscriber shall pay all applicable fees for the service desired.
The grantee shall comply at all times with all other applicable federal,
state and local laws and regulations and all executive and administrative
orders relating to nondiscrimination which are hereby incorporated
and made part of this chapter by reference.
B.
Fairness of accessibility. The entire system of the grantee shall
be operated in a manner consistent with the principles of fairness
and equal accessibility of its facilities, equipment, channels, studios
and other services to all citizens, businesses, public agencies and
other entities having a legitimate use for the network, and no one
shall be arbitrarily excluded from its use; allocation of use of said
facilities shall be made according to the rules or decisions of the
grantee and any regulatory agencies affecting the same.
C.
Information accessibility.
(1)
Each individual shall have the right to information concerning the
provisions of this chapter and the rules and regulations formulated
pursuant to it by the Village Board of Trustees, the grantee, agent
or entity created hereunder or pursuant to this chapter available
at the Village Hall. The location and hours of operation for the delivery
of such information shall be published in the newspaper of the greatest
circulation within the Village and in such other media as the Village
Board of Trustees may determine.
(2)
Such information as may herein be prescribed will be made available
to the public and individual subscribers in such form required for
understanding, including the deaf and blind, and in such languages
as may be specified by the Village Board of Trustees.
(3)
Each individual shall have the right to representation on such boards,
commissions, agencies or other entities created hereunder or hereafter
by the Village Board of Trustees pursuant to the provisions of this
chapter. Such representation by citizens of the Village shall be in
the manner and form as the Village Board of Trustees may determine,
ensuring equal participation of all protected groups. The grantee
shall strictly adhere to the equal employment opportunity requirements
of federal, state and local regulations, as may be applicable and
as amended from time to time.
A.
The Village shall have the right to inspect all books, records, reports,
maps, plans, financial statements and other like materials of the
grantee at any time upon reasonable notice during normal business
hours necessary to the enforcement of this chapter and the franchise.
The grantee shall provide such information in such form as may be
required by the Village for said records. The Village agrees to treat
as proprietary any information identified as such by the grantee and
shall not intentionally divulge any such information publicly or to
actual or potential competitors of the grantee, except as may be required
in a legal proceeding or ordered by a court of competent jurisdiction.
B.
The grantee shall permit any duly authorized representative of the
Village to examine and copy or transcribe any and all maps and other
records kept or maintained by the grantee or under its control concerning
the operations, affairs, transactions or property of the grantee.
If any of such maps or records are not kept in the Village or upon
reasonable request made available in the Village and if the Village
shall determine that an examination of such maps or records is necessary
or appropriate to the performance of any of its duties, then all travel
and maintenance expenses necessarily incurred in making such examination
shall be paid by the grantee.
Upon request of the Village, the grantee shall file with the
Village a copy of any technical, operational or financial report the
grantee submits to the Commission, the FCC or other governmental entities
that concern, directly or indirectly, the grantee's operation
of the cable communications system in the Village.
A.
The grantee shall prepare and submit to the Village an annual report
setting forth the physical miles of plant construction and plant in
operation within the Village during the grantee's previous fiscal
year.
B.
The grantee shall file with the Village, simultaneously with its
delivery to subscribers in the Village, copies of all printed materials
prepared for general distribution to subscribers or a particular classification
of subscribers.
C.
Unless the Village provides written notice to the contrary, the following
system and operational reports shall be submitted annually, by March
1, to the Village:
(1)
An annual summary of the previous year's activities, including
but not limited to subscriber totals for each category of service
offered, including the number of pay units sold, new services offered
and the character and extent of the service rendered to other users
of the system.
(2)
An annual summary of service requests and complaints received and
handled.
(3)
An annual summary of the number of area outages, the reasons therefor
and the action and time taken to restore service.
(4)
The required performance bond or a certified copy thereof and written
evidence of payment of the required premium and all policies of insurance
required by this chapter or certified copies thereof and written notice
of payment of required premium.
D.
The grantee shall make available to the Village such additional information
and records with respect to the operation, affairs, transactions or
property of the cable communications system and the service provided
to the Village under this franchise, as may be reasonably necessary
and appropriate to the performance of any of the rights, functions
or duties of the Village in connection with this franchise as determined
by the Village.
E.
Additional reports. The grantee shall prepare and furnish to the
Village at the times and in the form prescribed such additional reports
with respect to its operation, affairs, transactions or property as
may be reasonably necessary and appropriate to the performance of
any of the rights, functions or duties of the Village in connection
with this chapter or the franchise.
A.
Mandatory records. The grantee shall at all times maintain:
(1)
A record of all complaints received under the provisions of § 56-40E above and interruptions or degradation of service experience for the preceding period prior to a performance review.
(2)
A full and complete set of plans, records and as-built maps showing
the exact location of all cable communications system equipment installed
or in use in the Village, exclusive of subscriber service drops.
(3)
Employment records as required by FCC rules.
B.
Other records. The Village may impose reasonable requests for additional
information, records and documents from time to time.
Minimum public notice of any public meeting relating to this
chapter or the franchise shall be by publication at least in a newspaper
of general circulation in the area at least seven days prior to the
meeting, posting at the Village Hall, by announcement on at least
one local origination channel of the grantee's cable communications
system between the hours of 11:00 a.m. and 9:00 p.m. for five consecutive
days prior to the meeting.
A.
Invitation of any applications for a franchise; public notice of
request for proposals. The Village may invite applications for a cable
television franchise by means of a public notice advertising the availability
of its request for proposals. The public notice shall contain, but
need not be limited to:
(1)
A description of the franchise area which is sought.
(2)
A statement that a formal request for proposals is available to prospective
applicants from a Village official whose name, address and telephone
number are specified.
(3)
A statement that applications for the franchise must be submitted,
in writing, in the form and manner specified in the request for proposals
no later than a day certain.
(4)
A statement that all applications will be made available for public
inspection during normal business hours at a specified location.
B.
Request for proposals. Prior to inviting any applications for any
television franchise, the Village shall prepare a request for proposals
that shall contain, but need not be limited to, the following:
(1)
A description of the cable television system and services desired
by the Village, including any system specifications established by
the Village.
(2)
A statement specifying the form that all applications shall follow.
(3)
A statement indicating the amount of the application fee (if any)
to be submitted with the application and the manner in which such
fee is to be submitted.
(4)
A statement that all applications must contain the information required
by the request for proposal.
(5)
The closing date for the submission of applications.
(6)
The name, address and telephone number of the Village official(s)
who may be contacted for further information.
C.
Requirement for public hearing on reasonable notice. The Village
shall conduct a public hearing prior to awarding any cable television
franchise. The hearing shall be preceded by reasonable notice to each
of the franchise applicants and to the public and shall be conducted
by the Village Board of Trustees in accordance with the following
procedures:
(1)
There shall be an agenda for the hearing which shall specify the
proposal(s) to be considered at the hearing.
(2)
Every person who has applied for a cable television franchise shall
appear at the hearing either in person or by authorized representative.
The application of any applicant not so appearing shall not be further
considered, except for good cause shown.
(3)
All persons shall be given opportunity to participate in the hearing,
but nothing contained herein shall limit the power of the presiding
officer to establish reasonable time limits and otherwise limit repetitive
statements or questions.
(4)
The notice of hearing shall:
D.
Village discretion. The Village, at its discretion, may reject any
application for a franchise. In awarding a franchise, the Village
shall allow the applicant's cable system a reasonable period
of time to become capable of providing cable service to all households
in the franchise area; may require adequate assurance that the cable
operator will provide adequate public, educational and governmental
access channel capacity, facilities or financial support; and may
require adequate assurance that the cable operator has the financial,
technical or legal qualifications to provide cable service.
With respect to the terms of gross annual revenue (or gross revenue) and cable service as defined herein at § 56-3, in the event of any determination or ruling expanding the scope of, inclusion in or similarly interpreting gross annual revenue (or gross revenue) and cable service by any administrative, legislative, judicial or quasi-judicial person(s), agency(ies) or body(ies) having jurisdiction over the foregoing so as to increase or potentially increase or expand the gross receipts or persons to which the tax hereunder may apply, and thus a tax due the Village as a result thereof, then from the effective date of such determination or ruling, the definitions of "gross annual revenue" (or "gross revenue") and "cable service" shall be deemed amended to include same. If such determination or ruling is following an appeal, review or similar proceeding, the effective date shall be the date which such appellate or review decision establishes explicitly or otherwise by operation of law as the effective date upon and from which such provision or provisions shall apply.
If any clause, sentence, paragraph, subdivision, section or
part of this chapter or the application thereof to any person, individual,
corporation, firm, partnership, entity or circumstances is adjudged
invalid, illegal or unconstitutional by any court of competent jurisdiction,
such order or judgment shall be confined in its operation to the clause,
sentence, paragraph, subdivision, section or part of this chapter
or in its application directly involved in the controversy in which
such judgment shall have been rendered and shall not affect or impair
the validity of the remainder of this chapter or the application thereof
to other persons or circumstances. Further, in adjudging such invalid
provision, the court or other person(s) or body having jurisdiction
over the parties or subject matter shall attempt to modify same to
a provision which is not invalid, illegal or unconstitutional and
which best achieves the intent of the invalid provision.
