[12-28-1998]
This article shall be known and may be cited as the "Thornton
Cable Television Franchise Ordinance," hereinafter "Franchise" or
"Ordinance."
[12-28-1998]
For the purpose of this article the following terms, phrases,
words and their derivations shall have the meaning given herein:
Any subscriber service provided by the Grantee for which
a special charge is made based on program or service content, time
or spectrum space usage.
All subscriber services provided by the Grantee in one or
more service tiers, which includes the delivery of local broadcast
stations, and public, educational and government access channels.
Basic Service does not include optional program and satellite service
tiers, a la carte services, per channel, per program or auxiliary
services for which a separate charge is made. However, Grantee may
include other satellite signals on the Basic Service tier.
The Thornton Village Board.
A system of antennas, cables, wires, lines, towers, wave
guides, or other conductors, converters, equipment or facilities,
designed and constructed for the purpose of producing, receiving,
transmitting, amplifying and distributing, audio, video, and other
forms of electronic, electrical or optical signals, which includes
cable television service and which is located in the Village. The
definition shall not include any such facility that serves or will
serve only subscribers without using Village rights-of-way.
A signaling path provided by a cable communications system
to transmit signals of any type from a subscriber terminal to another
point in the cable communications system.
Any complaint regarding service, picture quality, charges
or other matter relating to the cable system made by a customer to
the Grantee, whether in written or oral form.
Actual working control or ownership of a system in whatever
manner exercised. A rebuttable presumption of the existence of control
or a controlling interest shall arise from the beneficial ownership,
directly or indirectly, by any person or entity (except underwriters
during the period in which they are offering securities to the public)
of 5% or more of a cable system or the franchise under which the system
is operated. A change in the control or controlling interest of an
entity which has control or a controlling interest in a Grantee shall
constitute a change in the control or controlling interest of the
system under the same criteria. Control or controlling interest as
used herein may be held simultaneously by more than one person or
entity.
An electronic device which converts signals to a frequency
not susceptible to interference within the television receiver of
a subscriber, and by an appropriate channel selector also permits
a subscriber to view more than 12 channels delivered by the system
at designated converter dial locations.
The Federal Communications Commission and any legally appointed,
designated or elected agent or successor.
A person or entity to whom or which a Franchise under this
chapter is granted by the Village, along with the lawful successors
or assigns of such person or entity.
All revenue collected directly or indirectly by the Grantee,
arising from or attributable to the provision of cable service by
the Grantee within the Village including, but not limited to: periodic
fees charged Subscribers for any basic, optional, premium, per-channel
or per-program service; installation and reconnection fees; leased
channel fees; converter rentals and/or sales; program guide revenues;
studio or production equipment rentals; late or administrative fees;
upgrade, downgrade or other change-in-service fees; advertising revenues;
revenues from home shopping and bank-at-home channels; revenues from
the sale, exchange, use or cable cast of any programming developed
on the system for community or institutional use; and any value (at
retail price levels) of any non-monetary remuneration received by
Grantee in consideration of the performance of advertising or any
other cable service of the system; and franchise fees, provided, however,
that this shall not include any taxes on services furnished by the
Grantee herein imposed directly upon any subscriber or user by the
state, local or other governmental unit and collected by the Grantee
on behalf of the governmental unit.
All areas in the Village having a density of at least 20
dwelling units per street mile.
The connection of the system from feeder cable to subscribers'
terminals.
IS permissive.
Observing a communications signal, or the absence of a signal,
where the observer is neither the subscriber nor the programmer, whether
the signal is observed by visual or electronic means, for any purpose
whatsoever; provided monitoring shall not include system-wide, non-individually
addressed sweeps of the system for purposes of verifying system integrity,
controlling return paths transmissions, or billing for pay services.
Those hours during which similar businesses in the Village
are open to serve customers. In all cases, Normal Business Hours must
include some evening hours at least one night per week, and some weekend
hours.
Those service conditions that are within the control of the
Grantee. Those conditions that are not within the control of the Grantee
include, but are not limited to: natural disasters, civil disturbances,
power outages, telephone network outages, and severe or unusual weather
conditions. Those conditions which are ordinarily within the control
of the Grantee include, but are not limited to, special promotions,
pay-per-view events, rate increases, regular peak or seasonal demand
periods, and maintenance or upgrade of the Cable System.
Is the loss of either picture or sound or both for a single
or multiple subscriber(s).
Is mandatory.
The surface of and all rights-of-way and the space above
and below any public street, road, highway, freeway, lane, path, public
way or place, sidewalk, alley, court, boulevard, parkway, drive or
easement now or hereafter held by the Village for the purpose of public
travel and shall include other easements or rights-of-way as shall
be now held or hereafter held by the Village which shall, within their
proper use and meaning entitle the Grantee to the use thereof for
the purposes of installing poles, wires, cable, conductors, ducts,
conduits, vaults, manholes, amplifiers, appliances, attachments, and
other property as may be ordinarily necessary and pertinent to a cable
television system.
Any person, firm, Grantee, corporation, or association lawfully
receiving any service provided by a Grantee pursuant to this article.
A party utilizing a cable television system channel for purposes
of production or transmission of material to subscribers, as contrasted
with receipt thereof in a subscriber capacity.
The Village of Thornton, Illinois.
[12-28-1998]
Any franchise granted by the Village pursuant to Illinois Statutes
(Chapter 24, Article 11, Division 42, para. 11-42-11) shall grant
to the Grantee the right and privilege to erect, construct, operate
and maintain in, upon, along, across, above, over and under the streets
now in existence and as may be created or established during its terms
any poles, wires, cable, underground conduits, manholes, and other
television conductors and fixtures necessary for the maintenance and
operation of a Cable System. Any such franchise granted by the Village
shall be on the same or similar terms and conditions.
[12-28-1998]
A.
Upon adoption of any franchise agreement and execution thereof by
the Grantee, the Grantee agrees to be bound by all the terms and conditions
contained in this article.
B.
Any Grantee also agrees to provide all services specifically set
forth in its application and to provide cable television service within
the confines of the Village; and by its acceptance of the franchise,
the Grantee specifically grants and agrees that its application is
thereby incorporated by reference and made a part of the franchise.
In the event of a conflict between such proposals and the provisions
of this article, the provisions of the franchise agreement shall control.
[12-28-1998]
Any franchise is for the current territorial limits of the Village
and for any area henceforth added thereto during the term of the franchise.
[12-28-1998]
Any franchise and the rights, privileges and authority hereby
authorized shall take effect and be in force from and after the signing
of a franchise agreement by the Village, as provided by law, and shall
continue in force and effect for an initial term of no longer than
12 years, provided that within 15 days after the date of Village approval
of the franchise the Grantee shall file with the Village its unconditional
acceptance of the franchise and promise to comply with and abide by
all its provisions, terms and conditions. Such acceptance and promise
shall be in writing duly executed and sworn to, by, or on behalf of
the Grantee before a notary public or other officer authorized by
law to administer oaths. Such franchise shall be nonexclusive and
revokable.
[12-28-1998]
Pursuant to 47 U.S.C. 546, the following procedure shall apply:
A.
The Village may, on its own initiative, during the six-month period
which begins with the thirty-six-month before the franchise expiration,
commence a proceeding which affords the public in the Village appropriate
notice and participation for the purpose of (1) identifying the future
cable-related community needs and interests and (2) reviewing the
performance of the Grantee under the franchise. If the Grantee submits,
during such six-month period, a written renewal notice requesting
the commencement of such proceeding, the Village shall commence such
proceeding not later than six months after the date such notice is
submitted.
B.
Upon completion of the proceeding under Subsection A above, the Grantee may, on its own initiative or at the request of the Village, submit a proposal for renewal. The Village may establish a date by which such proposal shall be submitted.
C.
Upon submittal by the Grantee of a proposal to the Village for the
renewal of the franchise, the Village shall provide prompt, public
notice of such proposal and renew the franchise or issue a preliminary
assessment that the franchise should not be renewed, and at the request
of the Grantee or on its own initiative, commence an administrative
proceeding, after providing prompt, public notice of such proceeding.
D.
The Village shall consider in any administrative proceeding whether:
(1) the Grantee has substantially complied with material terms of
the existing franchise and with applicable law; (2) the quality of
the Grantee's service, including signal quality, response to
consumer complaints and billing practices, but without regard to the
mix or quality of cable services or other services provided over the
System, has been reasonable in the light of community needs; (3) the
Grantee has the financial, legal and technical ability to provide
the services, facilities and equipment as set forth in the Grantee's
proposal; and (4) the Grantee's proposal is reasonable to meet
the future cable-related community needs and interests, taking into
account the costs of meeting such needs and interests.
E.
In any proceeding under Subsection D, the Grantee shall be afforded adequate notice and the Grantee and the Village, or its designee, shall be afforded fair opportunity for full participation, including the right to introduce evidence (including evidence related to issues raised in the proceedings under Subsection A above), to require the production of evidence and to question witnesses. A transcript shall be made of any such proceeding.
F.
At the completion of a proceeding under Subsection D, the Village shall issue a written decision granting or denying the proposal for renewal based upon the record of such proceeding and transmit a copy of such decision to the Grantee. Such decision shall state the reasons therefor.
G.
Any denial of a proposal for renewal that has been submitted in compliance
with the procedures set forth above, shall be based on one or more
adverse findings made with respect to the factors described at Subsection
D(1) through (4) pursuant to the record of the proceeding under said
subsection. The Village may not base a denial of renewal on a failure
to substantially comply with the material terms of the franchise or
on events considered under Subsection D(2) unless the Village has
provided the Grantee with notice and the opportunity to cure or in
any case in which it is documented that the Village has waived its
right to object.
H.
The Grantee may appeal any final decision or failure of the Village
to act in accordance with the procedural requirements of this section.
The court shall grant appropriate relief if the court finds that (1)
any action of the Village is not in compliance with the procedural
requirements of this section; or (2) in the event of a final decision
of the Village denying the renewal proposal, the Grantee has demonstrated
that the adverse finding of the Village with respect to each of the
factors described in Subsection D(1) through (4) on which the denial
is based is not supported by a preponderance of the evidence, based
on the record of the administrative proceeding.
[12-28-1998]
In the event that any or all of the above-referenced provisions
of federal law are repealed, the following relevant section(s) shall
apply:
A.
At least 24 months prior to the expiration of the franchise, the
Grantee shall inform the Village in writing of its intent to seek
renewal of the franchise.
B.
The Grantee shall submit a proposal for renewal which demonstrates:
1.
That it has been and continues to be in substantial compliance with
the material terms, conditions, and limitations of this article and
its franchise;
2.
That its system has been installed, constructed, maintained and operated
in accordance with the accepted standards of the industry, and this
article and its franchise;
3.
That it has the legal, technical, financial, and other qualifications
to provide the facilities, services and equipment set forth in its
proposal; and
4.
That it has made a good faith effort to provide services and facilities
which accommodate the demonstrated needs of the community as may be
reasonably ascertained by the Village through a public process.
C.
After giving public notice, the Village shall proceed to determine
whether the Grantee has satisfactorily performed its obligations under
the franchise. To determine satisfactory performance, the Village
shall consider technical developments and performance of the system,
programming, other services offered, cost of services, and any other
particular requirements set forth in this article. The Village shall
also consider the Grantee's reports made to the Village and to
the FCC, and the Village may require the Grantee to make available
specified records, documents, and information for this purpose, and
may inquire specifically whether the Grantee will supply services
sufficient to meet community needs and interests. Industry performance
on a national basis shall also be considered. Provision shall be made
for public comment with adequate prior notice of at least 10 days.
D.
The Village shall then prepare any amendments to this article that
it believes necessary.
E.
If the Village finds the Grantee's performance satisfactory,
and finds the Grantee's technical, legal, and financial abilities
acceptable, and finds the Grantee's renewal proposal meets the
future cable-related needs of the Village, a new franchise may be
granted pursuant to this article as amended for a period to be determined.
F.
If the Grantee is determined by the Village to have performed unsatisfactorily,
new applicants may be sought and evaluated and a franchise award shall
be made by the Village according to franchising procedures adopted
by the Village.
[12-28-1998]
A.
In accepting a franchise, the Grantee acknowledges that its rights
thereunder are subject to the police power of the Village to adopt
and enforce general ordinances necessary to the safety and welfare
of the public; and it agrees to comply with all applicable general
laws and ordinances enacted by the Village pursuant to such power.
B.
Any conflict between the provisions of a 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 television systems which contains
provisions inconsistent with this article, shall prevail only if upon
such exercise the Village finds a danger to health, safety, property
or the general welfare or if such exercise is mandated by law.
[12-28-1998]
No cable television system shall be allowed to operate or to
occupy or use the streets (i.e., rights-of-way) for system installation
and maintenance purposes without a franchise.
[12-28-1998]
The Village and the Grantee shall work together to agree to
terms and conditions which allow the Village to install and maintain
upon the poles of the Grantee, any wire or pole fixtures that do not
unreasonably interfere with the cable television system operations
of the Grantee, so long as the Village maintains a similar right with
the utilities operating in the Village. The Village shall indemnify
and hold harmless the Grantee from any claim that might arise due
to or as a result of the Village's use.
[12-28-1998]
Costs to be borne by a Grantee shall include any requirements
or charges incidental to the awarding or enforcing of its initial
franchise, but shall not be limited to: reasonable administrative,
engineering, legal and consulting expenses, all costs of publications
of notices prior to any public meeting provided for pursuant to this
article, and any costs not covered by application fees incurred by
the Village in its study, preparation of proposal documents, evaluation
of all applications, and examinations of the applicant's qualifications.
[12-28-1998]
All notices from the Grantee to the Village pursuant to any
franchise shall be sent to the Village Mayor's Office, with a
copy to the chief administrative officer. The Grantee shall maintain
with the Village, throughout the term of the franchise, an address
for service of notices by mail. The Grantee shall maintain a central
office to address any issues relating to operating under this cable
television ordinance.
[12-28-1998]
A.
Within 15 days after the award of an initial franchise, the Grantee
shall deposit with the Village either an irrevocable letter of credit
from a financial institution or a security deposit in the amount of
$100,000 with the form to be established by the Village.
B.
Within 15 days after the award of a renewal franchise, the Grantee
shall deposit with the Village either an irrevocable letter of credit
from a financial institution or a security deposit in the amount of
$10,000 with the form to be established by the Village.
C.
The form and content of such letter of credit or security deposit
shall be approved by the Village Attorney. These instruments shall
be used to ensure the faithful performance of the Grantee of all provisions
of this article, and to ensure compliance with all orders, permits
and directions of any agency, commission, board, department, division,
or office of the Village having jurisdiction over its acts or defaults
under this article, and to ensure the payment by the Grantee of any
claims, liens, and taxes due the Village which arise by reason of
the construction, operation or maintenance of the system.
D.
The letter of credit or security deposit shall be maintained at the amount established in Subsection A, of this section for the entire term of the franchise, even if amounts have to be withdrawn pursuant to this article.
E.
If the Grantee fails to pay to the Village any compensation within
the time fixed herein; or fails to pay to the Village any taxes due
and unpaid; or fails to repay the Village any damages, costs or expenses
which the Village is compelled to pay by reason of any act or default
of the Grantee in connection with the franchise, the Village shall
provide Grantee with written notice informing Grantee that such amounts
are due to the Village. The written notice shall describe in reasonable
detail the specific reasons for the assessment. The Grantee shall
have 30 days subsequent to receipt of the notice in which to pay the
amounts the Village has stated it is owed, or within 10 days of receipt
of the Village notice, notify the Village that there is a dispute
as to whether Grantee believes such amounts are due the Village. Such
notice by the Grantee to the Village shall specify with particularity
the basis of Grantee's belief that such monies are not due the
Village, and shall stay the running of the thirty-day cure period
pending a Board decision. The Board shall hear the Grantee's
dispute. Grantee must be given at least 10 days' notice of the
hearing. At the hearing, the Grantee shall be entitled to the right
to present evidence and the right to be represented by counsel. After
the hearing, the Village shall provide Grantee a copy of its action,
along with supporting documents. In the event the Village upholds
the finding of outstanding monies due the Village by Grantee, the
Village may immediately withdraw the amount thereof, with interest
from the letter of credit or security deposit.
F.
The rights reserved to the Village with respect to the letter of
credit are in addition to all other rights of the Village, whether
reserved by the franchise or authorized by law, and no action, proceeding
or exercise of a right with respect to such letter of credit shall
affect any other right the Village may have.
G.
The letter of credit shall contain the following endorsement: "It
is hereby understood and agreed that this letter of credit or security
deposit may not be canceled by the surety nor the intention not to
renew be stated by the surety until 30 days after receipt by the Village,
by registered mail, of a written notice of such intention to cancel
or not to renew."
H.
Upon receipt of the thirty-day notice, this shall be construed as
a default granting the Village the right to demand payment from the
bank for either the security deposit or letter of credit.
I.
The Village at any time during the term of this article, may waive
Grantee's requirement to maintain a letter of credit or security
deposit. The waiver of the requirement can be initiated by the Village
or Grantee.
[12-28-1998]
A.
Within 30 days after the award of an initial or renewal franchise,
the Grantee shall file with the Village a performance bond in the
amount of $100,000. This bond shall be maintained throughout the construction
period, and until such time as determined by the Village, unless specified
in the franchise agreement.
B.
If the Grantee fails to comply with any law, ordinance or resolution governing the franchise, or fails to well and truly observe, fulfill and perform each term and condition of the franchise, as it relates to the conditions relative to the construction, operation or maintenance of the system, including the franchise agreement that is incorporated herein by reference, there shall be recoverable jointly and severally, from the principal and surety of the bond, any damages or loss suffered by the Village as a result, including the full amount of any compensation, indemnification, or cost of removal or abandonment of any property of the Grantee, plus a reasonable allowance for attorney's fees, including the Village's legal staff, and costs, up to the full amount of the bond. This section shall be an additional remedy for any and all violations outlined in § 5-6C-13.
C.
The Village may, upon completion of construction of the service area,
waive or reduce the requirements of the Grantee to maintain the bond.
However, the Village may require a performance bond to be posted by
the Grantee for any construction subsequent to the completion of the
initial service areas, in a reasonable amount and upon such terms
as determined by the Village.
D.
The bond shall contain the following endorsement: "It is hereby understood
and agreed that this bond may not be canceled by the surety nor the
intention not to renew be stated by the surety until 30 days after
receipt by the Village, by registered mail, a written notice of such
intent to cancel and not to renew."
E.
Upon receipt of a thirty-day notice, this shall be construed as default
granting the Village the right to demand payment on the bond.
F.
The Village, at any time during the term of this article, may waive
Grantee's requirement to maintain a performance bond. The waiver
of the requirement can be initiated by the Village or the Grantee.
[12-28-1998]
A.
The Grantee shall maintain, and by its acceptance of the franchise
specifically agrees that it will maintain throughout the term of the
franchise, liability insurance insuring the Village and the Grantee
in the minimum amount of:
B.
The certificate of insurance obtained by the Grantee in compliance
with this section must be approved by the Village Attorney and such
insurance policy certificate of insurance, along with written evidence
of payment of required premiums, shall be filed and maintained with
the Village during the term of the franchise. The Grantee shall immediately
advise the Village Attorney of any litigation that may develop that
would affect this insurance.
C.
Neither the provisions of this section nor any damages recovered
by the Village thereunder, shall be construed to or limit the liability
of the Grantee under any franchise issued hereunder or for damages.
D.
Such insurance policies provided for herein shall name the Grantor,
its officers, boards, commissions, agents and employees as additional
insured, and shall be primary to any insurance carried by the Grantor,
and shall contain the following endorsement: "It is hereby understood
and agreed that this insurance policy may not be canceled by the surety
nor the intention not to renew be stated by the surety until 30 days
after receipt by the Village, by registered mail, of written notice
of such intention to cancel or not to renew."
[12-28-1998]
A.
Disclaimer of liability. The Village shall not at any time be liable
for injury or damage occurring to any person or property from any
cause whatsoever arising out of the construction, maintenance, repair,
use, operation, condition or dismantling of the Grantee's Cable
Television System or due to the act or omission of any person or entity
other than the Village or those persons or entities for which the
Village is legally liable as a matter of law.
B.
Indemnification. The Grantee shall, at its sole cost and expense,
indemnify and hold harmless the Village, all associated, affiliated,
allied and subsidiary entities of the Village now existing or hereinafter
created, and their respective officers, boards, commissions, employees,
agents, attorneys and contractors (hereinafter referred to as "Indemnitees")
from and against:
1.
Any and all liabilities, obligations, damages, penalties, claims,
liens, costs, charges, losses and expenses (including, without limitation,
reasonable fees and expenses of attorneys, expert witnesses and consultants),
which may be imposed upon, incurred by or asserted against the Indemnitees
by reason of any act or omission of the Grantee, its personnel, employees,
agents, contractors or subcontractors, resulting in personal injury,
bodily injury, sickness, disease or death to any person, or damage
to, loss of or destruction of tangible or intangible property, libel,
slander, invasion of privacy and unauthorized use of any trademark,
trade name, copyright, patent, service mark or any other right of
any person, firm or corporation, which may arise out of or be in any
way connected with the construction, installation, operation, maintenance,
use or condition of the Cable Television System caused by Grantee,
its subcontractors or agents or the Grantee's failure to comply
with any federal, state or local statute, ordinance or regulation.
2.
Any and all liabilities, obligations, damages, penalties, claims,
liens, costs, charges, losses and expenses (including, without limitation,
reasonable fees and expenses of attorneys, expert witnesses and consultants),
which are imposed upon, incurred by or asserted against the Indemnitees
by reason of any claim or lien arising out of work, labor, materials
or supplies provided or supplied to the Grantee, its contractors or
subcontractors, for the installation, construction, operation or maintenance
of the Cable Television System. Upon the written request of the Village
such claim or lien shall be discharged or bonded within 15 days following
such request.
3.
Any and all liabilities, obligations, damages, penalties, claims,
liens, costs, charges, losses and expenses (including, without limitation,
reasonable fees and expenses of attorneys, expert witnesses and consultants),
which may be imposed upon, incurred by or asserted against the Indemnitees
by reason of any financing or securities offering by Grantee or its
Affiliates for violations of the common law or any laws, statutes
or regulations of the State of Illinois or of the United States, including
those of the Federal Securities and Exchange Commission, whether by
the Grantee or otherwise; excluding therefrom, however, claims which
are solely based upon and arise solely out of information supplied
by the Village to the Grantee in writing and included in the offering
materials with the express written approval of the Village prior to
the offering.
C.
Assumption of risk. The Grantee undertakes and assumes for its officers,
agents, contractors and subcontractors and employees all risk of dangerous
conditions, if any, on or about any Village-owned or controlled property,
including public rights-of-way and easements, and the Grantee hereby
agrees to indemnify and hold harmless the Indemnitees against and
from any claim asserted or liability imposed upon the Indemnitees
for personal injury or property damage to any person arising out of
the installation, operation, maintenance or condition of the Cable
Television System or the Grantee's failure to comply with any
federal, state or local statute, ordinance or regulation.
D.
Defense of Indemnitees. In the event any action or proceeding shall
be brought against the Indemnitees by reason of any matter for which
the Indemnitees are indemnified hereunder, the Grantee shall, upon
notice from any of the Indemnitees, at the Grantee's sole cost
and expense, resist and defend the same with legal counsel acceptable
to the Village Attorney, provided further, however, that the Grantee
shall not admit liability in any such matter on behalf of the Indemnitees
without the written consent of the Village Attorney or the Village
Attorney's designee.
E.
Notice. The Village shall give the Grantee prompt notice of the making
of any written claim or the commencement of any action, suit or other
proceeding covered by the provisions of this section.
F.
Nonwaiver of statutory limits. Nothing in this agreement is intended
to express or imply a waiver by the Village of statutory provisions,
privileges or immunities of any kind or nature as set forth in Illinois
Statutes, including the limits of liability of the Village as exists
presently or as may be increased from time to time by the Legislature.
[12-28-1998]
A.
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, income, gender, marital
status, sexual preference or age. 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
article by reference.
B.
The Grantee shall strictly adhere to the equal employment opportunity
requirements of the Federal Communications Commission and of state
and local governments, and as amended from time to time.
C.
The Grantee shall, at all times, comply with the privacy requirements
of state and federal law.
D.
Grantee is required to make all services available to all residential
dwellings throughout the service area.
[12-28-1998]
Minimum public notice of any public meeting relating to the
franchise shall be by publication at least once in a local newspaper
of general circulation at least 10 days prior to the meeting, by posting
at the Village Municipal Center by announcement and shall be on at
least one channel of the Grantee's System between the hours of
7:00 p.m. and 9:00 p.m., for five consecutive days prior to the meeting.
[12-28-1998]
The Grantee shall provide cable television service throughout
the entire franchise area pursuant to the provisions of the franchise
and shall keep a record for at least three years of all requests for
service received by the Grantee. This record shall be available for
public inspection at the local office of the Grantee during regular
office hours.
[12-28-1998]
A.
New construction timetable.
1.
Within two years from the date of the award of an initial franchise,
the Grantee must make cable television service available to every
dwelling unit within the service area.
a.
The Grantee must make cable television service available to
at least 20% of the dwelling units within the service area within
six months from the date of the award of the franchise.
b.
The Grantee must make cable television service available to
at least 50% of the dwelling units within the service area within
one year from the date of the award of the franchise.
2.
The Grantee, in its application, may propose a timetable of construction
which will make cable television service available in the service
area sooner than the above minimum requirements, in which case the
said schedule will be made part of the franchise agreement, and will
be binding upon the Grantee.
4.
In special circumstances the Village may waive 100% completion within
the two-year time frame, provided substantial completion is accomplished
within the allotted time frame, substantial completion to be not less
than 95%. Justification for less than 100% must be submitted subject
to the approval of the Village.
B.
Line extensions.
1.
In areas of the franchise territory not included in the initial service
areas, the Grantee shall be required to extend its system pursuant
to the following requirements:
a.
No customer shall be refused service arbitrarily. Grantee is
hereby authorized to extend the Cable System as necessary within the
Village. To expedite the process of extending the Cable System into
a new subdivision, the Village will forward to the Grantee an approved
engineering plan of each project. Subject to the density requirements,
the Grantee shall commence the design and construction process upon
receipt of the final engineering plan. Upon notification from the
Village that the first home in the project has been approved for a
building permit, the Grantee shall have a maximum of three months
to complete the construction/activation process within the applicable
project phase.
b.
The Grantee shall extend and make cable television service available
to every dwelling unit in all unserved, developing areas having at
least 20 dwelling units planned per street mile, as measured from
the existing system, and shall make every effort to extend its system
simultaneously with the installation of utility lines, provided that
it can enter into such joint trench agreements on reasonable terms
and conditions.
2.
Early extension. In areas not meeting the requirements for mandatory
extension of service, the Grantee shall provide, upon the request
of a potential subscriber desiring service, an estimate of the Grantee's
costs required to extend service to the subscriber. The Grantee shall
then extend service upon request of the potential subscriber. The
Grantee may require advance payment or assurance of payment satisfactory
to the Grantee. In the event the area subsequently reaches the density
required for mandatory extension, such payments shall be refunded
to the subscriber.
3.
New development undergrounding. In case of new construction or property
development where utilities are to be placed underground, the developer
or property owner shall give the Grantee reasonable notice of such
construction or development, and of the particular date on which open
trenching will be available for the Grantee's installation of
conduit, pedestals and/or vaults, and laterals to be provided at the
Grantee's expense. The Grantee shall also provide specifications
as needed for trenching. Costs of trenching and easements required
to bring service to the development shall be borne by the developer
or property owner; except that if the Grantee fails to install its
conduit, pedestals and/or vaults, and laterals within 10 working days
of the date the trenches are available, as designated in the notice
given by the developer or property owner, then should the trenches
be closed after the ten-day period, the cost of new trenching is to
be borne by the Grantee. Except for the notice from the developer
or property owner of the particular date on which trenching will be
available to the Grantee, notice provided to the Grantee by the Village
of the opening of a trench shall also satisfy the requirement of reasonable
notice if sent to the local general manager or system engineer of
the Grantee.
C.
Special agreements. Nothing herein shall be construed to prevent
the Grantee from serving areas not covered under this section upon
agreement with developers, property owners, residents, or businesses.
D.
A Grantee, in its application, may propose a line extension policy
that will result in serving more residents of the Village than as
required above, in which case the Grantee's policy will be incorporated
into the franchise agreement and will be binding on the Grantee.
[12-28-1998]
A.
Compliance with construction and technical standards. The Grantee
shall construct, install, operate and maintain its system in a manner
consistent with all laws, ordinances, construction standards, governmental
requirements, and FCC technical standards. In addition, the Grantee
shall provide the Village, upon request, a written report of the results
of the Grantee's annual proof of performance tests conducted
pursuant to Federal Communications Commission standards and requirements.
B.
Additional specifications.
1.
Construction, installation and maintenance of the cable television
system shall be performed in an orderly and workmanlike manner. All
cables and wires shall be installed, where possible, parallel with
electric and telephone lines. Multiple cable configurations shall
be arranged in parallel and bundled with due respect for engineering
considerations.
3.
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.
4.
Any antenna structure used in the system shall comply with construction,
marking, and lighting of antenna structure, required by the United
States Department of Transportation.
5.
All working facilities and conditions used during construction, installation
and maintenance of the cable television system shall comply with the
standards of the Occupational Safety and Health Administration.
6.
Radio frequency (RF) leakage shall be checked at reception locations
for emergency radio services to prove no interference signal combinations
are possible. Stray radiation shall be measured adjacent to any proposed
aeronautical navigation radio sites to prove no interference to airborne
navigational reception in the normal flight patterns. FCC rules and
regulations shall govern.
7.
The Grantee shall maintain equipment capable of providing standby
power for headend, transportation and trunk amplifiers for a minimum
of two hours.
8.
In all areas of the Village where the cables, wires and other like
facilities of public utilities are placed underground, the Grantee
shall place its cables, wires and other like facilities underground.
When public utilities relocate their facilities from pole to underground,
the cable operator must concurrently do so.
[12-28-1998]
A.
Interference with persons and improvements. The Grantee's system,
poles, wires and appurtenances shall be located, erected and maintained
so that none of its facilities shall endanger or interfere with the
lives of persons or interfere with the rights or reasonable convenience
of property owners who adjoin any of the streets and public ways,
or interfere with any improvements the Village may deem proper to
make, or unnecessarily hinder or obstruct the free use of the streets,
alleys, bridges, easements or public property.
B.
Restoration to prior condition. In case of any disturbance of pavement,
sidewalk, landscaping, 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 good condition as
before the work was commenced and in accordance with standards for
such work set by the Village.
C.
Erection, removal and common uses of poles.
1.
No poles or other wire-holding structures 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 be 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.
2.
Where poles or other wire-holding structures already existing for
use in serving the Village 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.
D.
Relocation of facilities. If at any time during the period of the
franchise the Village shall elect to alter, or change the grade of
any street, alley or other public ways, the Grantee, upon reasonable
notice by the Village, shall remove or relocate as necessary its poles,
wires, cables, underground conduits, manholes and other fixtures at
its own expense.
E.
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 wires 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 48 hours' advance notice to arrange
for such temporary wire changes.
F.
Tree trimming. The Grantee shall not remove any tree or trim any
portion, either above, at or below ground level, of any tree within
any public place without the prior consent of the Village. The Grantee
shall provide notice to any affected residents at the same time that
the Grantee applies to the Village for consent to perform tree trimming.
The Village shall have the right to do the trimming requested by the
Grantee at the cost of the Grantee. Regardless of who performs the
work requested by the Grantee, the Grantee shall be responsible, shall
defend and hold Village harmless from any and all damages to any tree
as a result of trimming, or to the property surrounding any tree,
whether such tree is trimmed or removed.
[12-28-1998]
A.
The Grantee shall maintain all parts of the system in good condition
throughout the entire franchise period.
B.
Upon the reasonable request for service by any person located within
the franchise territory, the Grantee shall, within 30 days, furnish
the requested service to such person within terms of the line extension
policy.
C.
The Grantee shall render efficient service, make repairs promptly,
and interrupt service only for good cause and for the shortest time
possible. Such interruptions, insofar as possible, shall be preceded
by notice and shall occur during periods of minimum system use.
D.
The Grantee shall not allow its cable or other operations to interfere
with television reception of subscribers or persons not served by
the Grantee, nor shall the system interfere with, obstruct or hinder
in any manner the operation of the various utilities serving the residents
within the confines of the Village nor shall other utilities interfere
with the Grantee's system.
[12-28-1998]
A.
Nothing in this article shall be construed to prohibit the enforcement
of any federal, state or local law or regulation concerning customer
service or consumer protection that imposes customer service standards
or consumer protection requirements that exceed the customer service
standards set out in this article or that address matters not addressed
in this article.
B.
The Grantee shall maintain a local or toll-free telephone access
line which is available to its subscribers and shall have knowledgeable,
qualified representatives available to respond to customer telephone
inquiries 24 hours per day, seven days per week.
C.
Under normal operating conditions, telephone answer time, including
wait time and the time required to transfer the call, shall not exceed
30 seconds. This standard shall be met no less than 90% of the time
as measured on a quarterly basis.
D.
Under normal operating conditions, the customer will receive a busy
signal less than 3% of the total time that the office is open for
business.
E.
Customer service centers and bill payment locations will be open
for walk-in customer transactions a minimum of eight hours per day
Monday through Friday, unless there is a need to modify those hours
because of the location or customers served. The Grantee and Village
by mutual consent shall establish supplemental hours on weekdays and
weekends as fits the needs of the community.
F.
Under normal operating conditions, each of the following standards
will be met no less than 95% of the time, as measured on an annual
basis:
1.
Standard installations will be performed within seven business days
after an order has been placed. A standard installation is one that
is within 125 feet of the existing system.
2.
Excluding those situations that are beyond its control, the Grantee
will respond to any service interruption promptly and in no event
later than 24 hours from the time of initial notification. All other
regular service requests will be responded to within 36 hours during
the normal work week for that system. The appointment window alternatives
for installations, service calls and other installation activities
will be: "morning" or "afternoon"; not to exceed a four-hour "window"
during normal business hours for the system, or at a time that is
mutually acceptable. The Grantee shall schedule supplemental hours
during which appointments can be scheduled based on the needs of the
community. If at any time an installer or technician is running late,
an attempt to contact the customer will be made and the appointment
rescheduled as necessary at a time that is convenient to the customer.
G.
Subscriber credit for outages. Upon service interruption of a subscriber's
cable service, the following shall apply:
1.
For Service Interruptions of more than four hours and up to four
days, the Grantee shall provide, at the subscriber's request,
a credit of 1/30 of one month's fees for affected Services for
each twenty-four-hour period service is interrupted for an accumulated
four or more hours for any subscriber, with the exception of subscribers
disconnected because of nonpayment or excessive signal leakage.
2.
For interruptions of four days or more in one month, the Grantee
shall provide, at the subscriber's request, a pro-rata credit
for affected services for all affected subscribers.
H.
The Grantee shall provide written information for each of the following
areas at the time of installation and at any future time upon the
request of the customer:
I.
Bills will be clear, concise and understandable, with all charges
for cable services itemized.
J.
A Grantee may not impose a late, administrative or other fee on a
customer for non-payment of a bill until 30 days have elapsed after
the end of the billing cycle which is the subject of the unpaid bill.
K.
A Grantee may not disconnect a Customer for nonpayment of disputed
bills until such a time as the dispute has been resolved, in accordance
with the Grantee's customer service policies.
L.
Credits will be issued promptly, but no later than the customer's
next billing cycle following the resolution of the request and the
return of the equipment by the Grantee if service has been terminated.
M.
The Grantee shall notify customers a minimum of 30 days in advance
of any rate or channel change.
N.
The Grantee shall maintain and operate its network in accordance
with the rules and regulations incorporated herein or as may be promulgated
by the Federal Communications Commission, the United States Congress,
or applicable laws of the State of Illinois.
O.
The Grantee shall continue, through the term of the franchise, to maintain the technical standards and quality of service set forth in this article. Should the Village find, by resolution, that the Grantee has failed to maintain these technical standards and quality of service, and should it, by resolution, specifically enumerate improvements to be made, the Grantee shall make such improvements. Failure to make such improvements within three months of such resolution will constitute a breach of a condition for which penalties contained in § 5-6C-47 are applicable.
P.
The Grantee shall keep a monthly service log which indicates the
nature of each service complaint (excluding programming complaints)
received in the last 24 months, the date and time each complaint was
received, the disposition of each complaint, and the time and date
thereof. This log shall be made available for periodic inspection
by the Village.
Q.
The Grantee shall provide a copy of the Customer Service Standards
included in this section to every subscriber via a bill insert at
least once every calendar year. The Grantee shall also provide a copy
of these Customer Service Standards to every new customer within 30
days of connection.
[12-28-1998]
A.
It shall be the right of all subscribers to continue receiving service
as long as their financial and other obligations to the Grantee are
honored. If the Grantee elects to over build, rebuild, modify or sell
the system, the Grantee shall act so as to ensure that all subscribers
receive continuous, uninterrupted service regardless of the circumstances
for a period not to exceed six months. If the Village gives notice
of intent to terminate or fails to renew the franchise, the Grantee
shall act so as to ensure that all subscribers receive continuous,
uninterrupted service regardless of the circumstances, for a period
not to exceed three months after the franchise agreement has terminated.
B.
If there is a change of franchise, or if a new operator acquires
the system, the Grantee shall cooperate with the Village, new franchisee
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 its services until it no longer operates the
system.
C.
If 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 Village shall be entitled to all revenues for any period during
which it operates the system and 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.
[12-28-1998]
A.
The Mayor or chief elected official is designated as having primary
responsibility for the continuing administration of the franchise
and for the implementation of complaint procedures.
B.
During the terms of the franchise and any renewal thereof, the Grantee
shall maintain a central office for the purpose of receiving and resolving
all complaints regarding the quality of service, equipment malfunctions,
and similar matters. The office must be reachable by a local and/or
toll-free telephone call to receive complaints regarding quality of
service, equipment functions and similar matters. The Grantee will
make good faith efforts to arrange for one or more payment locations
in a central location where customers can pay bills or conduct other
business activities.
C.
As subscribers are connected or reconnected to the system, 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.
D.
When there have been similar complaints made, or where there exists
other evidence, which, in the judgment of the Village, in consultation
with the Grantee, casts doubt on the reliability or quality of cable
service, the Village shall have the right and authority to require
the Grantee to test, analyze and report on the performance of the
system. The Grantee shall fully cooperate with the Village in performing
such testing and shall prepare results and a report, if requested,
within 30 days after notice. Such report shall include the following
information:
1.
The nature of the complaint or problem that precipitated the special
tests;
2.
The system component(s) tested;
3.
The equipment used and procedures employed in testing;
4.
The method, if any, in which such complaint or problem was resolved;
5.
Any other information pertinent to the tests and analysis which may
be required.
E.
The Village may request that tests be supervised, at the Village's
expense, by an independent professional engineer or equivalent of
the Village's choice. The engineer shall sign all records of
special tests and forward to the Village such records with a report
interpreting the results of the tests and recommending actions to
be taken.
F.
The Village's rights under this section shall be limited to
requiring tests, analysis and reports covering specific subjects and
characteristics based on complaints or other evidence when and under
such circumstances as the Village has reasonable grounds to believe
that the complaints or other evidence require that tests be performed
to protect the public against substandard cable service.
[12-28-1998]
The Grantee shall have the authority to promulgate such rules,
regulations, terms and conditions governing the conduct of its business
as shall be reasonably necessary to enable the Grantee to exercise
its rights and perform its obligations under the franchise, and to
assure uninterrupted service to each and all of its customers; provided,
however, that such rules, regulations, terms and conditions shall
not be in conflict with the provisions hereof or applicable state
and federal laws, rules and regulations.
[12-28-1998]
A.
A Grantee shall pay to the Village a franchise fee in the amount
designated in the franchise agreement. Unless otherwise specified
in the franchise agreement, such franchise fee shall be the maximum
amount as allowed by law or such lesser amount as may be designated
by the Village.
B.
The franchise fee payment shall be in addition to any other tax or
payment owed to the Village by the Grantee and shall not be construed
as payment in lieu of municipal property taxes or other state, County
or local taxes.
C.
The franchise fee and any other costs or penalties assessed shall
be payable quarterly on a calendar year basis to the Village within
30 days of the end of each quarter. The Grantee shall also file a
complete and accurate verified statement of all gross receipts as
previously defined within 30 days after the end of the quarter.
D.
The Village shall have the right to inspect the Grantee's income
records and the right to audit and to recompute any amounts determined
to be payable under this article; provided, however, that such audit
shall take place within 60 months following the close of each of the
Grantee's fiscal years. Any additional amount due the Village
as a result of an audit shall be paid within 30 days following written
notice to the Grantee by the Village, which notice shall include a
copy of the audit report.
E.
If any franchise payment or recomputed amount, cost or penalty, is
not made on or before the applicable dates heretofore specified, interest
shall be charged daily from such date at an annual rate of 12%. The
Grantee shall reimburse the Village for any additional expenses and
costs incurred by the Village by reason of the delinquent payment(s).
[12-28-1998]
A.
A franchise shall not be assigned or transferred, either in whole
or in part, or leased or sublet in any manner, nor shall title thereto,
either legal or equitable or any right, interest or property therein,
pass to or vest in any person without the prior written consent of
the Village, except that any financing arrangement, including but
not limited to a mortgage or pledge, shall not be deemed a "transfer"
controlled by this section. The Grantee may, however, transfer or
assign the franchise to a wholly owned subsidiary of the Grantee and
such subsidiary may transfer or assign the franchise back to the Grantee
without such consent, providing that such assignment is without any
release of liability of the Grantee. Any proposed assignee must show
legal, technical and financial responsibility as determined by the
Village and must agree to comply with all provisions of the franchise.
The Village shall have 120 days to act upon any request for approval
of a sale or transfer submitted in writing that contains or is accompanied
by such information as is required in accordance with FCC regulations
and by the Village of Thornton. The Village shall be deemed to have
consented to a proposed transfer or assignment if its refusal to consent
is not communicated in writing to the Grantee within 120 days following
receipt of written notice and receipt of all necessary information
as to the effect of the proposed transfer or assignment upon the public,
unless the requesting party and the Village agree to an extension
of time. The Village shall not unreasonably withhold consent to a
proposed transfer.
B.
The Grantee shall promptly notify the Village of any actual or proposed
change in, or transfer of, or acquisition by any other party of, control
of the Grantee. The word "control" as used herein is not limited to
major stockholders but includes actual working control in whatever
manner exercised. A rebuttable presumption that a transfer of control
has occurred shall arise upon the acquisition or accumulation by any
person or group of persons of 5% of the voting shares of the Grantee.
Every change, transfer or acquisition of control of the Grantee that
is not conducted pursuant to the terms and conditions of this article
shall make the franchise subject to cancellation unless and until
the Village shall have consented thereto, which consent shall not
be unreasonably withheld. For the purpose of determining whether it
shall consent to such change, transfer or acquisition of control,
the Village may inquire into the qualifications of the prospective
controlling party, and the Grantee shall assist the Village in such
inquiry.
C.
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
subordinate to the terms and conditions of the franchise.
D.
In the absence of extraordinary circumstances, the Village shall
not be required to approve any transfer or assignment of a new franchise
prior to substantial completion of construction of the proposed system.
E.
In no event shall a transfer of ownership or control be approved
without the successor(s) in interest becoming a signatory to the franchise
agreement.
[12-28-1998]
A.
The Grantee shall fully cooperate in making available at reasonable
times, and the Village shall have the right to inspect, where reasonably
necessary for the enforcement of the franchise, books, records, maps,
plans and other like materials of the Grantee applicable to the cable
television system, at any time during normal business hours; provided
where volume and convenience necessitate, the Grantee may require
inspection to take place on the Grantee premises.
B.
The following records and/or reports shall be sent to the Village,
but no more frequently than on an annual basis if so mutually agreed
upon by the Grantee and the Village:
1.
A quarterly review and resolution or progress report submitted by
the Grantee to the Village;
2.
Periodic preventive maintenance reports;
3.
Any copies of FCC Form 395-A (or successor form) or any supplemental
forms related to equal opportunity or fair contracting policies;
4.
Subscriber inquiry/complaint resolution data and the right to review
documentation concerning these inquiries and/or complaints periodically;
5.
Periodic construction update reports including, where appropriate,
the submission of as-built maps.
[12-28-1998]
Copies of all petitions, applications, communications and reports
submitted by the Grantee to the Federal Communications Commission,
to the Securities and Exchange Commission, or to any other federal
or state regulatory commission or agency having jurisdiction in respect
to any matters affecting cable television operations authorized pursuant
to the franchise or received from such agencies shall be provided
upon request to the Village.
[12-28-1998]
The Grantee shall file annually with the Village no later than
120 days after the end of the Grantee's fiscal year, a copy of
a gross revenues statement certified by an officer of the Grantee.
[12-28-1998]
At the expiration of the term for which the franchise is granted
or when any renewal is denied, or upon its termination as provided
herein, the Grantee shall forthwith, upon notice by the Village, remove
at its own expense all designated portions of the cable television
system from all streets and public property within the Village. If
the Grantee fails to do so, the Village may perform the work at the
Grantee's expense. Upon such notice of removal, a bond shall
be furnished by the Grantee in an amount sufficient to cover this
expense.
[12-28-1998]
A.
The Grantee shall make available to Subscribers the option to receive
a minimum of 85 channels.
B.
The Grantee shall maintain the following:
1.
At least one specially-designated, noncommercial public access channel
available on a first-come, nondiscriminatory basis;
2.
At least one specially-designated channel per school district for
use by local educational authorities;
3.
At least one specially-designated channel for local governmental
uses;
4.
At least one specially-designated channel for leased access uses;
and,
5.
An Institutional Network (I-Net) of cable, optical, electrical or
electronic equipment, including cable television systems, used for
the purpose of transmitting two-way telecommunications signals interconnecting
designated entities to be determined by the Village. Such Network
may be provided as needed by utilizing capacity on the System.
6.
Provided, however, that the public access, education and local government
channels shall be combined on one channel until such time as additional
channels become necessary as mutually agreed to by the Village and
the Grantee. The Grantee shall make a channel available for leased
access uses in accordance with the requirements of federal law. Studios
and associated production equipment will be located in a mutually
agreed upon site to meet the public's need for public access,
education and local government channels as noted in (1), (2) and (3).
Financial and technical support and replacement and maintenance of
equipment of this facility shall be separately incorporated into the
franchise by agreement.
C.
The Grantee shall provide emergency broadcast capacity pursuant to
FCC rules. The Grantee shall cooperate with the Village in the use
and operation of the emergency alert override system.
D.
Interconnection.
1.
The Grantee may be requested to interconnect its system with other
communication facilities. Such interconnection shall be made within
the time limit established by the Village.
2.
Interconnection procedure. Upon receiving a request from the Village
to interconnect, the franchisee shall immediately initiate negotiations
with the other affected system or systems in order that all costs
may be shared equally among cable companies for both construction
and operation of the interconnection link.
3.
Relief. The franchisee may be granted reasonable extensions of time
to interconnect or the Village may rescind its request to interconnect
upon petition by the franchisee to the Village if it finds that the
franchisee has negotiated in good faith and has arrived at impasse
with the operator or franchising authority of the system to be interconnected,
or if the franchisee determines that the cost of the interconnection
would cause an unreasonable or unacceptable increase in subscriber
rates or that interconnection is technically unfeasible.
4.
Cooperation required. The Grantee shall cooperate with any interconnection
corporation, regional interconnection authority or Village, county,
state and federal regulatory agency which may be hereafter established
for the purpose of regulating, financing, or otherwise providing for
the interconnection of cable systems beyond the boundaries of the
Village.
E.
The Grantee shall provide such additional services and facilities
as are contained in its application, which is incorporated by reference
herein.
[12-28-1998]
A.
In addition to the inherent powers of the Village to regulate and
control any cable television franchise, and those powers expressly
reserved by the Village, or agreed to and provided for herein, the
right and power is hereby reserved by the Village to promulgate such
additional regulations as it shall find necessary in the exercise
of its lawful powers and furtherance of the terms and conditions of
the franchise; provided, however, that such rules, regulations, terms
and conditions shall not be in conflict with the provisions hereof
or applicable state and federal laws, rules and regulations.
B.
The Village may also adopt such regulations at the request of Grantee
upon application.
[12-28-1998]
A.
The Village and the Grantee may hold scheduled yearly performance
evaluation sessions within 30 days of the third, sixth and ninth anniversary
dates of the Grantee's award or renewal of the franchise and
as may be required by federal and state law.
B.
Special evaluation sessions may be held at any time during the term
of the franchise at the request of the Village or the Grantee.
C.
All evaluation sessions shall be open to the public and announced
in a newspaper of general circulation in accordance with legal notice.
The Grantee shall notify its subscribers of all evaluation sessions
by announcements on at least one channel of its system between the
hours of 7:00 p.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 are not limited to: service rate structures;
franchise fee, penalties, free or discounted services; application
of new technologies; system performance; services provided; programming
offered; customer complaints; privacy; amendments to this article;
judicial and FCC rulings; line extension policies; and Grantee or
Village rules.
E.
Members of the general public may add topics either by working through
the negotiating parties or by presenting a petition. If such a petition
bears the valid signatures of 50 or more residents of the Village,
the proposed topic or topics shall be added to the list of topics
to be discussed at the evaluation session.
[12-28-1998]
Pursuant to the Cable Television Consumer Protection and Competition
Act of 1992, the Village of Thornton is currently certified to regulate
the Basic Service rates charged by Grantee. Under these rules, Grantee
is required to obtain approval from the Village for a rate increase
for any change to the rates for Basic Service. Should federal or state
law permit further rate regulation beyond Basic Service, the Village
of Thornton may assume such rate regulation and adopt appropriate
procedures for such regulation.
[12-28-1998]
A.
In addition to all other rights and powers retained by the Village
under this article or otherwise, the Village reserves the right to
terminate the franchise and all rights and privileges of the Grantee
hereunder in the event of a substantial breach of its terms and conditions.
A substantial breach by the Grantee shall include, but shall not be
limited to the following:
1.
Violation of any material provision of the franchise or any material
rule, order, regulation or determination of the Village made pursuant
to the franchise;
2.
Attempt to evade any material provision of the franchise or to practice
any fraud or deceit upon the Village or its subscribers or customers;
3.
Failure to begin or complete system construction or system extension as provided under § 5-6C-20.
4.
Failure to provide the services promised in the Grantee's initial application as incorporated herein by § 5-6C-4.
5.
Failure to restore service after 96 consecutive hours of interrupted
service, except when approval of such interruption is obtained from
the Village; or
6.
Material misrepresentation of fact in the application for or negotiation
of the franchise.
B.
The foregoing shall not constitute a major breach if the violation
occurs but is without fault of the Grantee or occurs as a result of
circumstances beyond its control. The Grantee shall not be excused
by mere economic hardship nor by misfeasance or malfeasance of its
directors, officers or employees.
C.
The Village may make a written demand that the Grantee comply with
any such provision, rule, order or determination under or pursuant
to the franchise. If the violation by the Grantee continues for a
period of 30 days following such written demand without written proof
that the corrective action has been taken or is being actively and
expeditiously pursued, the Village may place the issue of termination
of the franchise before the Village Board. The Village shall cause
to be served upon the Grantee, at least 20 days prior to the date
of such meeting, a written notice of intent to request such termination
and the time and place of the meeting. Public notice shall be given
of the meeting and the issue(s) which the Board is to consider.
D.
The Village Board shall hear and consider the issue(s) and shall
hear any person interested therein and any relevant evidence, and
shall determine whether or not any violation by a Grantee has occurred,
after affording Grantee rights of due process to be heard and an opportunity
to present all relevant evidence and witnesses. The Grantee may, at
its own expense, make a transcript of any such hearing.
E.
If the Village Board determines that the violation by the Grantee
was the fault of the Grantee and within its control, the Board may,
by resolution declare that the franchise of the Grantee shall be forfeited
and terminated unless there is compliance within such period as the
Board may fix, such period to not be less than 30 days; provided,
however, that no opportunity for compliance need be granted for fraud
or misrepresentation. Any such resolution shall state with particularity
the reasons for forfeiture and termination.
F.
The issue of forfeiture and termination shall automatically be placed
upon the Board agenda at the expiration of the time set by it for
compliance. The Board may then terminate the franchise forthwith upon
finding that the Grantee has failed to achieve compliance or it may
further extend the period, at its discretion.
[12-28-1998]
Upon the foreclosure or other judicial sale of all or a substantial
part of the system, or upon the termination of any lease covering
all or a substantial part of the system, the Grantee shall notify
the Village of such fact, and such notification shall be treated as
a notification that a change in control of the Grantee has taken place,
and the provisions of the franchise governing the consent of the Village
to such change in control of the Grantee shall apply.
[12-28-1998]
A.
The Village shall have the right to cancel a franchise 120 days after
the appointment of a receiver, or trustee, to take over and conduct
the business of the Grantee, whether in receivership, reorganization,
bankruptcy or other action or proceeding, unless such receivership
or trusteeship shall have been vacated prior to the expiration of
120 days, or unless:
1.
Within 120 days after his/her election or appointment, such receiver
or trustee shall have fully complied with all the provisions of this
article and remedied all defaults thereunder; and
2.
Such receiver or trustee, within the 120 days, shall have executed
an agreement, duly approved by the court having jurisdiction in the
premises, whereby such receiver or trustee assumes and agrees to be
bound by each and every provision of this article and the franchise
granted to the Grantee.
[12-28-1998]
A.
Notwithstanding any other provisions of the franchise to the contrary,
the Grantee shall at all times comply with all laws and regulations
of the state and federal government or any administrative agencies
thereof; provided, however, if any such state or federal law or regulation
shall require the Grantee to perform any service, or shall permit
the Grantee to perform any service, or shall prohibit the Grantee
from performing any service, in conflict with the terms of the franchise
or of any law or regulation of the Village, then as soon as possible
following knowledge thereof, the Grantee shall notify the Village
of the point of conflict believed to exist between such regulation
or law and the laws or regulations of the Village or the franchise.
B.
If the Village determines that a material provision of this article
is affected by any subsequent action of the state or federal government,
the Village and the Grantee shall negotiate to modify any of the provisions
herein to such reasonable extent as may be necessary to carry out
the full intent and purpose of this agreement.
[12-28-1998]
A.
Interference with cable service prohibited. Neither the owner of
any multiple unit residential dwelling nor his agent or representative
shall interfere with the right of any tenant or lawful resident thereof
to receive cable television service, cable installation or maintenance
from a cable television Grantee regulated by and lawfully operating
under a valid and existing franchise issued by the Village.
B.
Penalties and charges to tenants for service prohibited. Neither
the owner or any multiple unit residential dwelling nor his agent
or representative shall penalize, charge or surcharge a tenant or
resident or forfeit or threaten to forfeit any right of such tenant
or resident, or discriminate in any way against such tenant or resident
who requests or receives cable television service from a Grantee operating
under a valid and existing cable television franchise issued by the
Village.
C.
Reselling service prohibited. No person shall resell, without the
expressed, written consent of both the Grantee and the Village, any
cable service, program or signal transmitted by a cable television
Grantee under a franchise issued by the Village.
D.
Protection of property permitted. Nothing in this article shall prohibit
a person from requiring that cable television system facilities conform
to laws and regulations and reasonable conditions necessary to protect
safety, functioning, appearance and value of premises or the convenience
and safety of persons or property.
E.
Risks assumed by Grantee. Nothing in this article shall prohibit
a person from requiring a Grantee to agree to indemnify the owner,
or his agents or representatives for damages or from liability for
damages caused by the installation, operation, maintenance or removal
of cable television facilities.
[12-28-1998]
A.
All bids received by the Village from the applicants for an initial
franchise will become the sole property of the Village.
B.
The Village reserves the right to reject any and all bids and waive
informalities and/or technicalities where the best interest of the
Village may be served.
C.
All questions regarding the meaning or intent of this article or
application documents shall be submitted to the Village in writing.
Replies will be issued by addenda, mailed, or delivered to all parties
recorded by the Village as having received the application documents.
The Village reserves the right to make extensions of time for receiving
bids as it deems necessary. Questions received less than 14 days prior
to the date for the opening of bids will not be answered. Only replies
to questions by written addenda will be binding. All bids must contain
an acknowledgment of receipt of all addenda.
D.
Bids must be sealed, and submitted at the time and place indicated
in the application documents for the public opening. Bids may be modified
at any time prior to the opening of the bids, provided that any modifications
must be duly executed in the manner that the applicant's bid
must be executed. No bid shall be opened or inspected before the public
opening.
E.
Before submitting a bid, each applicant is encouraged to:
1.
Examine this article and the application documents thoroughly;
2.
Familiarize himself/herself with local conditions that may in any
manner affect performance under the franchise;
3.
Familiarize himself/herself with federal, state and local laws, ordinances,
rules and regulations affecting performance under the franchise; and
4.
Carefully correlate the bid with the requirements of this article
and the application documents.
F.
The Village may make such investigations as it deems necessary to
determine the ability of an applicant to perform under the franchise,
and the applicant shall furnish to the Village all such information
and data for this purpose as the Village may request. The Village
reserves the right to reject any bid if the evidence submitted by,
or investigation of, such applicant fails to satisfy the Village that
such applicant is properly qualified to carry out the obligations
of the franchise and to complete the work contemplated therein. Conditional
bids will not be accepted.
G.
All bids received shall be placed in a secure depository approved
by the Village and shall not be opened nor inspected prior to the
public opening.
[12-28-1998]
A.
No franchise will be granted to any applicant unless all requirements
and demands of the Village regarding financial, contractual, shareholder
and system disclosure have been met.
B.
Applicants, including all shareholders and parties with any interest
in the applicant, shall fully disclose all agreements and undertakings,
whether written or oral, or implied with any person, firm, group,
association or corporation with respect to the franchise and the proposed
cable television system. The Grantee of a franchise shall disclose
all other contracts to the Village as the contracts are made. This
section shall include, but not be limited to, any agreements between
local applicants and national companies.
C.
Applicants, including all shareholders and parties with any interest
in the applicant, shall submit all requested information as provided
by the terms of this article or the application documents, which are
incorporated herein by reference. The requested information must be
complete and verified as true by the applicant.
D.
Applicants, including all shareholders and parties with any interest
in the applicant, shall disclose the numbers of shares of stock, and
the holders thereof, and shall include the amount of consideration
for each share of stock and the nature of the consideration.
E.
Applicants, including all shareholders and parties with any interest
in the applicant, shall disclose any information required by the application
documents regarding other cable systems in which they hold an interest
of any nature, including, but not limited to, the following:
1.
Locations of all other franchises and the dates of award for each
location;
2.
Estimated construction costs and estimated completion dates for each
system;
3.
Estimated number of miles of construction and number of miles completed
in each system as of the date of this application; and
4.
Date for completion of construction as promised in the application
for each system.
F.
Applicants, including all shareholders and parties with any interest
in the applicant, shall disclose any information required by the application
documents regarding pending applications for other cable systems,
including, but not limited to, the following:
[12-28-1998]
A.
No person may intentionally do any of the following:
1.
Obtain or attempt to obtain cable television service from a company
by trick, artifice, deception, use of an illegal device or illegal
decoder or other fraudulent means with the intent to deprive that
company of any or all lawful compensation for rendering each type
of service obtained. The intent required for a violation of this paragraph
may be inferred from the presence on the property and in the actual
possession of the defendant of a device not authorized by the cable
television company, the major purpose of which is to permit reception
of cable television services without payment. This inference is rebutted
if the defendant demonstrates that he or she purchased that device
for a legitimate use.
2.
Give technical assistance or instruction to any person in obtaining
or attempting to obtain any cable television service without payment
of all lawful compensation to the company providing that service.
This paragraph does not apply if the defendant demonstrates that the
technical assistance or instruction was given or the installation
of the connection, descrambler or receiving device was for a legitimate
use.
3.
Make or maintain a connection, whether physical, electrical, mechanical,
acoustical or by other means, with any cables, wires, components or
other devices used for the distribution of cable television services
for the purpose of distributing cable television service to any other
dwelling unit without authority from a cable television company.
4.
Make or maintain a connection, whether physical, electrical, mechanical,
acoustical or by other means, with any cables, wires, components or
other devices used for the distribution of cable television services
for the purpose of obtaining cable television service without payment
of all lawful compensation to the company providing the service. The
intent required for a violation of this paragraph may be inferred
from proof that the cable service to the defendant's residence
or business was connected under a service agreement with the defendant
and has been disconnected by the cable television company and that
thereafter there exists in fact a connection to the cable system at
the defendant's residence or business.
5.
Make or maintain any modification or alteration to any device installed
with the authorization of a cable television company for the purpose
of intercepting or receiving any program or other service carried
by that company which that person is not authorized by that company
to receive. The intent required for a violation of this paragraph
may be inferred from proof that, as a matter of standard procedure,
the cable television company places written warning labels on its
converters or decoders explaining that the tampering with the device
is a violation of law and that the converter or decoder is found to
have been tampered with, altered or modified so as to allow the reception
or interception of programming carried by the cable television company
without authority to do so. The trier of fact may also infer that
a converter or decoder has been altered or modified from proof that
the cable television company, as a matter of standard procedure, seals
the converters or decoders with a label or mechanical device, that
the seal was shown to the customer upon delivery of the decoder and
that the seal has been removed or broken. The inferences under this
paragraph are rebutted if the cable television company cannot demonstrate
that the intact seal was shown to the customer.
6.
Possess without authority any device or printed circuit board designed
to receive from a cable television system any cable television programming
or services offered for sale over that cable television system, whether
or not the programming or services are encoded, filtered, scrambled
or otherwise made unintelligible, or perform or facilitate the performance
of any of the acts under Subsection A1 through 5 with the intent that
that device or printed circuit be used to receive that cable television
company's services without payment. Intent to violate this paragraph
for direct or indirect commercial advantage or private financial gain
may be inferred from proof of the existence on the property and in
the actual possession of the defendant of a device if the totality
of circumstances, including quantities or volumes, indicates possession
for resale.
7.
Manufacture, import into this state, distribute, publish, advertise,
sell, lease or offer for sale or lease any device, printed circuit
board or any plan or kit for a device or for a printed circuit designed
to receive the cable television programming or services offered for
sale over a cable television system from a cable television system,
whether or not the programming or services are encoded, filtered,
scrambled or otherwise made unintelligible, with the intent that the
device, printed circuit, plan or kit be used for the reception of
that company's services without payment. The intent required
for a violation of this paragraph may be inferred from proof that
the defendant has sold, leased or offered for sale or lease any device,
printed circuit board, plan or kit for a device or for a printed circuit
board in violation of this paragraph and during the course of the
transaction for sale or lease the defendant expressly states or implies
to the buyer that the product will enable the buyer to obtain cable
television service without charge.
B.
Civil liability for theft of cable television service.
1.
Any person who incurs injury as a result of a violation of § 5-6C-46 may bring a civil action against the person who committed the violation.
2.
If the person who incurs the loss prevails against a person who committed the violation willfully and for the purpose of commercial advantage or prevails against a person who has committed more than one violation of § 5-6C-46, the court may grant the prevailing party any or all the following:
a.
Except as provided in Subsection B2e, not more than $10,000
per violation.
b.
Actual damages.
c.
Any profits of the violators that are attributable to the violation
and that are not taken into account in determining the amount of actual
damages under Subsection B2b.
d.
Notwithstanding the limitations under ILCS 799.25 or 814.04,
costs, disbursement and reasonable attorney's fees.
e.
If the court finds that the violation was committed willfully
and for the purpose of commercial advantage, the court may increase
the amount granted under Subsection B2a not to exceed $50,000 per
violation.
3.
If damages under Subsection B2c are requested, the party who committed
the violation shall be required to provide information on the violator's
gross revenues, the violator's deductible expenses and the elements
of profit attributable to factors other than the violation.
4.
In addition to other remedies available under this section, the courts
may grant the injured party a temporary or permanent injunction.
[12-28-1998]
For the violation of any of the following provisions of this
article, penalties shall be chargeable to the letter of credit as
follows and the Village may determine the amount of the forfeiture
for other violations which are not specified in a sum not to exceed
$1,000 for each violation, with each day constituting a separate violation:
A.
Failure to furnish, maintain, or offer all cable services to any
potential Subscriber within the Village upon order of the Village:
$100 per day, per violation, for each day that such failure occurs
or continues;
B.
Failure to obtain or file evidence of required insurance, construction
bond, performance bond, or other required financial security: $200
per day, per violation, for each day such failure occurs or continues;
D.
Failure to comply with applicable construction, operation, or maintenance
standards: $200 per day, per violation;
E.
Failure to comply with a rate decision or refund order: $500 per
day, per violation, for each day such a violation occurs or continues.
G.
For any other violations of a franchise agreement to be determined
by the Grantor in a public hearing but not specifically noted in this
section shall not exceed $1,000 per day, per violation.
[12-28-1998]
A.
Whenever the Village believes that the Grantee has violated one or
more terms, conditions or provisions of the franchise, and wishes
to impose monetary penalties, a written notice shall be given to the
Grantee informing it of such alleged violation or liability. The written
notice shall describe in reasonable detail the specific violation
so as to afford the Grantee an opportunity to remedy the violation.
The Grantee shall have 30 days subsequent to receipt of the notice
in which to correct the violation before the Village may impose penalties
unless the violation is of such a nature so as to require more than
30 days and the Grantee proceeds diligently within the 30 days to
correct the violation. In any case where the violation is not cured
within 60 days of notice from the Village, or such other time as the
Grantee and the Village may mutually agree to, the Village may proceed
to impose liquidated damages.
B.
The Grantee may, within 10 days of receipt of notice, notify the
Village that there is a dispute as to whether a violation or failure
has, in fact, occurred. Such notice by the Grantee to the Village
shall specify with particularity the matters disputed by the Grantee
and shall stay the running of the thirty-day cure period pending Board
decision as required below. The Board shall hear the Grantee's
dispute. Grantee must be given at least five days' notice of
the hearing. At the hearing, the Grantee shall be entitled to the
right to present evidence and the right to be represented by counsel.
After the hearing, the Village shall provide Grantee a copy of its
action, along with supporting documents. In the event the Village
upholds the finding of a violation, the Grantee shall have 30 days
subsequent, or such other time period as the Grantee and the Village
mutually agree, to correct the violation.
C.
The rights reserved to the Village under this section are in addition
to all other rights of the Village whether reserved by this article
or authorized by law or equity, and no action, proceeding or exercise
of a right with respect to penalties shall affect any other right
the Village may have.
