[HISTORY: Adopted by the Town Board of the Town of Brookfield.
Amendments noted where applicable.]
It is the purpose of this chapter to provide for the granting
of a franchise to construct, maintain and operate a CATV system in
the Town and to set forth The obligations and rights of the Town and
grantee accompanying such grant.
This chapter shall be known, and may be cited as, the "Town
of Brookfield Cable Franchise Ordinance."
For the purpose of this chapter, the following terms, phrases,
words, and their derivations shall have the meaning given herein.
When consistent with the context, words used in the present tense
include the future, words in the plural number include the singular,
and words in the singular number include the plural. The word "shall"
is always mandatory and not merely directory.
A system, located within the Town only, of antennas, coaxial
cables, wires, wave guides or other conductors, electronic equipment
or facilities designed, constructed or used for the production of
television signals, interception and receipt of television or radio
signals directly or indirectly off the air, and the distribution or
transmission of such signals and other communications services by
means of cable or other similar services to subscribers.
A group of frequencies in the electromagnetic spectrum capable
of carrying an audio data or audiovisual television signal. Each channel
is a block of frequencies containing 6MHz bandwidth.
An electronic device, which converts signals to a frequency
not susceptible to interference with the television receiver of a
subscriber, and by an appropriate channel selector also, permits a
subscriber to view all signals delivered at designated dial locations.
That channel which the grantee is required to provide by § 22.07(3)(d).
The Federal Communications Commission.
The recipient of the franchise granted under this chapter.
Encompasses the following two documents: An Application for
the Construction and Operation of a Cable Television System to Serve
the Town of Brookfield, Wisconsin, submitted to the office of the
Town Clerk by RVS Cablevision Corporation, of Elm Grove, Wisconsin;
a cover letter from Richard V. Steffen, President of RVS Cablevision
Corporation.
Total receipts of the grantee of money or its equivalent
which the grantee has received for providing basic service to its
subscribers in the Town, including income from pay cable, advertising
and lease access, provided that installation charges actually paid
by subscribers and received by the grantee shall be excluded from
gross receipts in determining payments due to the Town.
That channel which the grantee is required to provide by § 22.07(3)(f).
That channel which the grantee is required to provide by § 22.07(3)(e).
Any person, firm, partnership, association, corporation,
company, or organization of any kind.
That channel which the grantee is required to provide by § 22.07(3)(c).
Any person or entity receiving for any purposes the cable
service of the grantee.
To observe a one-way or two-way communications signal without
the express prior consent of the subscriber receiving or sending the
communication signal, whether the signal is observed by visual or
electronic means for any purpose whatsoever.
The Town of Brookfield, Wisconsin or any appointed designate
thereof.
The present governing body of the Town or any successors
to the legislative powers of the body, or any appointed designate
thereof.
(1)
Grant of authority.
(a)
There is hereby granted by the Town the right, privilege and
franchise to construct, operate and maintain a CATV system in the
streets of the Town for a period of 15 years, this time period to
begin one month after the passage, acceptance and effective date of
this chapter, subject to the rights, obligations, conditions and restrictions
as hereinafter provided.
(b)
The right to use and occupy the streets for the purpose herein
set forth shall not be exclusive and the Town reserves the right to
grant a similar use of the streets to any person at any time during
the period of this franchise.
(c)
This chapter and the franchise awarded pursuant to the terms
of this chapter shall relate to and cover the entire present territorial
limits of the Town and any area hereafter annexed thereto during the
term of the franchise. The grantee agrees to and shall install and
furnish CATV service to all residents of the Town.
(2)
Expiration of grant.
(a)
After the expiration of the term for which the franchise is
granted, the Town shall have the right to determine whether the grantee
shall continue to operate and maintain the CATV system pending the
decision of the Town as to the future maintenance and operation of
the system.
(b)
Upon the expiration of this franchise, the Town shall have the
right to purchase the grantee's cable system. Should the Town decide
to purchase the cable system, it shall do so at a price not to exceed
its then fair value. In determining the fair value of the system,
the original cost of all tangible and intangible property, as well
as the salvage value, book value, replacement cost, cash flow, and
other factors may be considered. Under no circumstances shall any
valuation be made for "good will" or for any right or privilege granted
by this chapter. Payment for the cable system shall be rendered to
the grantee within 120 days after the Town has exercised its right
in this area.
(c)
If the Town elects to purchase the cable system, or the franchise
to operate the cable system is awarded to a new grantee, upon expiration
of the franchise, the grantee shall sell the system to the Town or
to the new grantee, whichever is applicable. The price for such sale
shall be the fair value of the system as defined in Subsection (2)(b),
above.
(d)
To assure necessary or required investment in the system during
the later years of the permit, and provided that all terms and provisions
of this chapter are followed by the grantee throughout the term of
this chapter, and as feasible, the Town shall make all reasonable
efforts to assist the grantee in finding a buyer for its cable system
upon expiration of this franchise in the case that this franchise
is not extended or renewed for the current grantee.
(3)
Condition regarding street use.
(a)
All transmission and distribution structures, lines and equipment
erected by the grantee within the Town shall be located so as not
to interfere with the proper use of streets, alleys and other public
ways and places, and to cause minimum interference with the rights
or reasonable convenience of property owners who adjoin any of the
streets, alleys or other public ways and places, and not to interfere
with existing public utility installations. All installations shall
be underground in those areas of the Town where the telephone service
is underground at the time of installation. In areas where the telephone
distribution facilities are aboveground at the time of installation,
the grantee may install its facilities aboveground, but in such case,
the grantee, to the maximum extent possible and subject to the approval
of the telephone company, shall place its facilities on the poles
of such telephone company. If, subsequently, such telephone facilities
shall go underground, the facilities of the grantee shall likewise
go underground simultaneously. The use by the grantee of any facilities
or installations of a telephone or electric utility and the conditions
of such use shall be determined by negotiations between the grantee
and such utility.
(b)
In case of any disturbance of pavement, sidewalk, driveway or
other surfacing, the grantee shall, at its own expense and in the
manner provided by the Town, replace and restore all pavement, sidewalk,
driveway or other surface of any street or alley disturbed. Any damage
to paving, sidewalk, driveway or any other damage to private property
shall be repaired and such property shall be restored to the same
condition as it was prior to the work done on such property by the
grantee. All cost and expense thereof shall be paid by grantee and
such property shall be restored and repaired by grantee immediately
after the work on the private property is completed by grantee.
(c)
If, at any time during the period of the franchise, the Town
shall lawfully elect to alter or change the grade or location of any
street, alley or other public way, the grantee shall, upon reasonable
notice by the Town, remove, relay and relocate its poles, wires, cables
and underground fixtures at its own expense, and in each instance
comply with the requirements of the Town.
(d)
The grantee shall not place poles, conduits, wires or other
facilities above or below ground where the same will interfere with
or endanger any gas, electric or telephone facilities, water hydrant
or other utility, nor shall the grantee place poles, conduits, wires
or other facilities aboveground or belowground in a manner which results
in public utility facility violating any applicable safety statute,
ordinance or administrative regulation.
(e)
The grantee shall, on request of any person holding a moving
permit issued by the Town, temporarily move its wires or fixtures
to permit the moving of buildings, the expense of such temporary removal
to be paid by the person requesting the same, and the grantee shall
be given not less than 72 hours' advance notice to arrange for such
temporary changes.
(f)
The grantee shall have the authority to trim any trees upon
and overhanging the streets, alleys, sidewalks and public places of
the Town so as to prevent the branches of such trees from coming in
contact with the wires and cables of the grantee, except that at the
option of the Town, such trimming may be done by it or under its supervision
and direction, at the expense and-liability of the grantee. Where
wires and cables of grantee cross private property, or are located
within an easement granted to the telephone or electric company on
private property, grantee shall not enter upon such easement area
or private property to install or repair lines, or trim trees or shrubbery
therein, without the prior written consent of the owner of such property.
(4)
Removal of equipment.
(a)
Following the grantee's commencement of service through and over its CATV system, the grantee, upon request of the Town Board shall, following a public hearing held pursuant to § 22.13(2)(b), promptly remove from the public streets where its properties are located all or any part of the facilities so located when one or more of the following enumerated conditions occur:
(b)
Provided that the grantee shall be entitled to receive notices
in writing from the Town delivered to the local office of the grantee
setting forth one or more of the occurrences hereinabove enumerated.
(5)
Joint use by Town and utilities.
(a)
The grantee may be required by the Town to permit joint use
of its property and appurtenances located in the streets, alleys or
other public ways of the Town, by other utilities insofar as such
joint use may be reasonably practicable and upon payment of reasonable
rental therefor, provided that, in the absence of agreement regarding
such joint use, the Town Board shall provide for arbitration of the
terms and conditions of such joint use and the compensation to be
paid therefrom, which award shall be final.
(b)
The Town shall have the right, during the term of this franchise,
to install and maintain free of charge upon the property of the grantee
its own equipment, including, but not limited to, a police alarm system,
on the condition that such equipment does not unreasonably interfere
with the CA TV operations of the grantee.
(1)
The grantee shall, within 20 days after franchise is granted by the
Town, make application to the Federal Communications Commission for
a certificate of compliance for the establishment of a cable television
system in the Town and, if necessary, for the utilization of a microwave
facility to import permissible signals, and the grantee shall prosecute
such application diligently and faithfully in order that necessary
approvals can be obtained in the shortest possible time. The Town
reserves the right to intervene in the application for a certificate
of compliance, and the grantee shall pay all expenses incurred by
the Town in connection with the submission and defense of an application
for a certificate of compliance filed with the FCC by the grantee.
(2)
The grantee shall, within 20 days after the Town grants franchise,
begin negotiations with utility companies for facility lease agreements.
(3)
Prior to the commencement of construction and receipt of final approvals
from the Federal Communications Commission for establishment of the
system, the grantee shall conduct the necessary engineering studies
so that the construction can commence immediately upon final approval
of the Federal Communications Commission.
(4)
The grantee shall, within 20 days after franchise is granted by the
Town, begin preliminary engineering of the pole line route, electronic
layouts, and negotiations for common carrier microwave contracts,
and initiate engineering surveys for the receiving site and building
locations of the grantee's CATV system.
(5)
The grantee shall commence construction of the cable television system
within 30 days after the execution of pole attachment agreements and
receipt of final approval from the Federal Communications Commission
to establish a cable television system and utilize a microwave facility
to import permissible signals. The grantee shall notify the Town in
writing as soon as all pole attachment agreements have been consummated
and when final approval from the Federal Communications Commission
to establish a cable television system provided in this chapter has
been obtained.
(6)
The grantee shall provide service to all residents of the Town requesting
service within one year after the Town' grants a franchise to the
grantee.
(7)
The grantee shall submit to the Town Board an installation plan for
the entire Town, indicating the date on which the grantee expects
the installation of the CATV system to be completed and available
for service to subscribers in the various areas of the Town.
(8)
The grantee shall furnish the Town Board with construction progress
reports every 30 days indicating in detail the area of construction
of the CATV system.
(9)
The requirements established in Subsections (1) through (8) above are maximums and the grantee may, at any time, proceed at a rate speedier than required by Subsections (1) through (8) above. The Town Board shall have the right to inspect all construction or installation work performed pursuant to the provisions of this chapter.
(10)
The Town may, in its discretion, extend the time for grantee, acting
in good faith, to perform any act required hereunder. The time for
performance shall be extended or excused, as the case may be, for
any period during which grantee demonstrates to the satisfaction of
the Town Board that grantee is being subjected to delay or interruption
due to any of the following circumstances if reasonably beyond its
control:
(1)
Franchise payments.
(a)
The grantee shall pay to the Town for the use of the streets
and other facilities of the Town in the operation of the CATV system,
and for the municipal supervision thereof, a fee for 3% of the annual
gross receipts of grantee derived from services in the Town. The grantee
shall file with the Town Board within 30 days after the expiration
of each half-year ending on January 1 and July 1, during the period
this franchise shall be in force, a financial statement showing in
detail the annual gross receipts of the grantee from the Town during
the preceding semiannual period. It shall be the duty of the grantee
to pay to the Town at the time of filing such statement the franchise
fee prescribed. The grantee shall also file within 90 days following
the conclusion of each fiscal year of the grantee an annual report
prepared and audited by an independent certified public accountant
showing the yearly total gross receipts and payments to the Town and
any further relevant financial information in regard to the company
as may be required by the Town.
(b)
If this franchise should be terminated or forfeited prior to
the end of the basic fifteen-year term, the grantee shall, within
30 days, submit to the Town Board a financial statement prepared as
before required showing the gross receipts of the grantee for the
time elapsed since the last period for which the grantee has paid
to the Town the required percentage of gross annual receipts, and
the grantee shall pay to the Town not later than 30 days following
the termination of the franchise, a like percentage of such gross
receipts.
(c)
If any payment is not made on or before the applicable date
fixed in Subsection (1)(a) and (b) hereof, interest on such payments
shall apply from such date at the yearly rate of 12% plus cost of
collection.
(d)
Pursuant to § 22.13(1)(c), the Town Board shall have the right to inspect the grantee's records showing the gross receipts from which its franchise payments are computed. The right of audit and recomputation of all amounts paid under this franchise shall be always accorded to the Town Board. No acceptance of any payment by the Town shall be construed as a release of or an accord or satisfaction of any claim the Town might have for further or additional sums payable under the terms of this chapter or for any other performance or obligation of the grantee hereunder.
(e)
Payments of compensation made by the grantee to the Town pursuant
to the provisions of this chapter shall not be considered in the nature
of a tax, but shall be in addition to any and all taxes which are
now or hereafter required to be paid by law of the United States,
the state or the Town.
(2)
Insurance and indemnity.
(a)
At all times during the term of the franchise the grantee shall
obtain, pay all premiums for and file with the Town Board at least
10 days before construction of the system commences, a certificate
of insurance or other proof evidencing the payment of premiums for
the following:
1.
A general comprehensive public liability insurance policy indemnifying,
defending and saving harmless the Town, its officers, boards, committees,
commission, agents or employees, from any and all claims by any person
whatsoever, on account of injury to or death of a person or persons
occasioned by the operations of the grantee under the franchise herein
granted or alleged to have been so caused or occurred with a minimum
liability of $2,000,000 for bodily injury or death of anyone or more
persons in anyone occurrence. Such policies are to include personal
injury coverage.
2.
Property damage insurance indemnifying, defending and saving
harmless the Town, its officers, boards, committees, commissions,
agents and employees from and against all claims by any person whatsoever
for property damage occasioned by the operation of the grantee under
the franchise herein granted or alleged to have been so caused or
occurred with a minimum liability of $5,000,000 for property damage
in anyone occurrence.
(b)
All of the foregoing insurance contracts shall be in a form
satisfactory to the Town Attorney shall be accepted by the Town Board
and shall be maintained by companies authorized to do business in
Wisconsin acceptable to the Town Attorney. Such insurance contracts
shall require 30 days' written notice of any cancellation to both
the Town and the grantee.
(c)
The grantee shall also, at its sole cost and expense, fully
indemnify, defend and hold harmless the Town, its officers, boards,
committees, commissions and employees against any and all claims,
suits, actions, liability and judgments for damages including, but
not limited to, expenses for reasonable legal fees and disbursements
and liabilities assumed by the Town in connection therewith:
1.
Arising out of any claim for invasions of the right of privacy,
for defamation of any person, or for the violation of infringement
of any copyright, trademark, trade name, service mark or patent, or
of any other right of any person, excluding claims arising out of
or relating to Town programming.
2.
Arising out of the grantee's failure to comply with the provisions
of any federal or state statute, or local ordinance or regulation,
applicable to the grantee in its business hereunder.
(d)
The foregoing indemnity is conditioned upon the following: The
Town shall give the grantee prompt notice of the making of any claim
or the commencement of any action, suit or other proceeding covered
by the provisions of this section. Nothing herein shall be deemed
to prevent the Town from cooperating with the grantee and participating
in the defense of any litigation by its own counsel at its sole cost
and expense.
(3)
Surety bond.
(a)
The grantee shall maintain, and by its acceptance of this franchise
specifically agrees, that it will maintain throughout the terms of
this franchise a faithful performance bond running to the Town, with
a good and sufficient surety approval by the Town Attorney in the
sum of $50,000 conditioned that the grantee shall well and truly observe,
fulfill and perform each term and condition of this franchise and
of the grantee's proposal, and that in case of any breach, the Town
shall be entitled to recover from the principal and sureties thereof
the amount of all damages including all costs and attorney's fees
incurred by the Town proximately resulting from the failure of the
grantee to observe and perform any and all of the provisions of this
franchise. After the grantee completes the installation of the CATV
system and grantee has provided service to all residents of the Town
requesting such service, and the system is approved by the Town Board,
grantee may make application to the Town Board for reduction of its
bond to the sum of $25,000 and, if the Town Board approves the installation
of the system and is satisfied that all residents of the Town requesting
service have been provided such service by grantee, the Town Board
shall reduce the bond to $25,000.
(b)
No recovery by the Town of any sum by reason of the bond required
herein shall be any limitation upon the liability of the grantee to
the Town, except that any sum received by the Town by reason of the
bond required herein shall be deducted from any recovery which the
Town might have against the grantee.
(4)
Acceptance of this chapter.
(a)
This chapter and its terms and provisions shall be accepted
by the grantee by written instrument executed and acknowledged by
it as a deed is required to be and filed with the Town Clerk within
20 days after the passage of this chapter. Such written instrument
shall state and express the acceptance of this chapter and its terms,
conditions and provisions; the grantee shall agree in the instrument
to abide by, observe and perform same, and declare that statements
and recitals herein are correct and that it has made and does make
this agreement, statements and admissions in this chapter recited
to have been or to be made.
(b)
This chapter shall take effect 20 days after its final passage
and publication, provided such formal acceptance hereof of the terms
and conditions by the grantee as herein provided in a form approved
by the Town Attorney, and the acceptance fee of $2,000 in the form
of certified or cashier's check, shall both have been filed and deposited
with the Town Clerk within such 20 days. The grantee shall also bear
the publication costs for this chapter. If one or both of the above
is not filed or deposited as required, this chapter shall not take
effect but shall be void. The instrument of acceptance or an executed
counterpart thereof shall be filed for record in the office of the
Town Clerk at the grantee's expense within 30 days after the same
is filed with the Town Clerk. The recorded copies of such acceptance
shall be obtained and preserved by the Town Clerk.
(c)
Such acceptance fee shall be utilized by the Town to cover the
expenses, which it has incurred to date in choosing a cable franchise
and formulating this chapter.
(1)
General requirements.
(a)
The grantee shall install, maintain, and operate its system
in accordance with the highest standards of the art of cable communications
and in accordance with any code of conduct, which has been adopted
by the National Cable Television Association.
(b)
The grantee shall render efficient service in accordance with
such rules and regulations as have been promulgated and will be promulgated
by the FCC and other federal and state regulatory agencies.
(c)
The grantee shall provide a uniform, strong signal, free from
distortion and interference and shall not interrupt services unless
necessary.
(d)
The grantee shall provide cable television services which are
identical to those services which were described in the grantee's
proposal to the Town dated February 25, 1981, provided that the grantee
shall not have to provide any proposed service which has been disapproved
by the FCC for a certificate of compliance, and request that grantee
be allowed to provide all of those services which were formally proposed
to the Town.
(e)
Except where specifically stated otherwise in this chapter, the grantee shall arrange to provide all feasible services requested by potential users of the services, including the Town Board. If no rate has been established for a particular service, a rate may be established pursuant to § 22.09. If the Town Board finds that fairness and equity require that service be provided free of charge, the Town Board may require such service be free of charge.
(f)
It shall be the right of all subscribers to receive all available
services insofar as their financial and other obligations to the grantee
are honored. If the grantee elects to overbuild, rebuild, modify or
sell the system, or the Town revokes or fails to renew this permit,
or elects to purchase the system, the grantee shall do everything
in its power to insure that all subscribers receive continuous, uninterrupted
service regardless of the circumstances. In the event of purchase
by the Town or a change of grantee, the current grantee shall cooperate
with the Town or a representative appointed by the Town to operate
the system, for a temporary period, in maintaining continuity of service
to all subscribers.[1]
[1]
Editor's Note: Former Subsection (1)(g), which regarded the provision of cable television service to the Fire Department, Police Department and Town Clerk without charge, of the 2005 Code, which immediately followed this subsection, was repealed at time of adoption of Code (see Ch. 25, General Provisions, Art. II).
(3)
Radio channels.
(a)
Total number. The grantee shall carry at least 34 radio channels
that may be received on conventional FM receivers, connected to the
grantee's cable system.
(b)
Local origination. The grantee shall devote at least one channel
to local originated programming. The grantee shall also submit a plan,
subject to the approval of the Town Board, stating the proposed number
of channels which will be provided for additional services, including
channels to be devoted to locally originated programs. Such plan shall
contain an estimate of the total number of broadcast hours per week
per channel which the grantee proposes to devote to local programming,
the types of local programs it proposes to originate and a provision
that the grantee shall submit to the Town Board each year a proposed
programming schedule for locally originated channels. The Town reserves
the right to require reservation of one channel for Town government
and the dissemination of public information through the Town Government.
(c)
Public access channel.
1.
Upon inauguration of the cable system's subscriber service,
the grantee shall provide one operational channel on a nondiscriminatory
basis. Production facilities on this channel shall be made available
without cost for live studio presentations of five minutes or less.
If such presentation exceeds five minutes, fees for the use of the
public access channel shall be limited to production costs attributed
solely to personnel and equipment utilized in live studio presentations.
This channel shall also be made available on a first-come, nondiscriminatory
basis, without fee, to the public for cable casting of programs prepared
on videotape or film for presentation. The grantee shall provide,
at no cost to the public access users, equipment and personnel for
cable casting one-half-inch and one-inch color video tape and 16 mm
sound movie film.
2.
Within 12 months after the date of final adoption of this chapter,
the grantee shall complete a set of rules for the use of the public
access channel, which shall be promptly forwarded to the Town Board.
The rules shall be prepared, to the greatest extent possible, in cooperation
with the Town Board. The rules shall, at a minimum, provide for:
a.
Access on a first-come, first-served, nondiscriminatory basis
for all residents of the Town.
b.
Prohibition of advertising for commercial or political purposes,
as defined by the FCC.
c.
Prohibition of any presentation or lottery information, or obscene
or indecent materials, provided that in such rules the definition
of obscene or indecent material shall conform to any such definition
contained in any ordinance of the Town which is currently in effect
or which is subsequently passed by the Town Board.
d.
Public inspection of the log of requests for access time, which
shall be retained for the duration of this franchise.
e.
Procedures by which individuals or groups who violate any rule
may be prevented from further access to the channel.
f.
Free use of such reasonable amounts of channel time, negotiated
equipment, negotiated technical support as is provided for in this
franchise.
(d)
Educational services. The grantee shall provide the following
services for the educational institutions in the Town:
1.
Full cable television service shall be provided without charge
for 15 years to all elementary and secondary schools, both public
and private, within the limits of the Town. Grantee shall provide
two channel converters per school and make additional converters available
at cost.
2.
Grantee shall make available without charge one cable television
color channel and one PM radio channel for the origination of programs
by the local public education system.
3.
Grantee shall provide assistance as requested by the school
system in the training of personnel, operation of equipment and production
of programs.
(e)
Municipal access channel. Upon inauguration of the cable system
subscriber service, the grantee shall provide one operational channel
for government use. This channel shall be provided without charge
for a period of 15 years, at such time commencing at completion of
the cable system basic trunk line.
(f)
Leased access channel. Such cable system shall provide at least
one channel, which is reserved, for leasing purposes. When not in
use, such channel is to be used as an additional public access, education,
or government channel, if the demand for such an additional channel
exists.
(g)
Additional channel. Whenever all public access channels or all
government access channels are in use during weekdays (Monday through
Friday) for 80% of the time during any consecutive three-hour period
for six consecutive weeks, the grantee shall make an additional channel
of like type available within six months. The grantee may make a one-time
charge for time and materials for this service. Such additional channel
shall be operated on the same basis and in accordance with the same
rules as all other access channels.
(4)
Programming facilities.
(a)
The grantee shall provide a full color origination television
studio within the Town. This studio shall be constructed to enable
preparation of simultaneous live and taped or filmed programming in
separate facilities within the studio, and at least one facility shall
provide for audience participation.
(b)
The grantee shall provide one full color mobile unit for local
origination purposes.
(c)
The grantee shall provide a studio with two color cameras for
users of the public access channel.
(d)
The grantee shall, upon request of the Town Board, provide the
necessary equipment for transmitting a signal from the Town Hall.
(e)
The grantee shall make its local origination studio and mobile
unit facilities, including color cameras and other equipment, available
for use by those persons and organizations utilizing the public access,
educational and government channels on the grantee's cable system,
subject to reasonable rules and regulations established by the Town
Board pursuant to Subsection (3)(b) of this section.
(f)
The grantee shall provide all reasonable technical and programming
assistance to all parties programming on the grantee's cable system.
(g)
The grantee shall make all reasonable efforts to encourage the
use of its nonbroadcast channels.
(5)
Emergency or disaster. In the event of an emergency or disaster,
the grantee shall, upon request of the Town Chairman or a duly authorized
representative, make available its facilities to the Town at no charge
for emergency use during the period of such emergency or disaster
and shall provide such personnel as necessary to properly operate
under the circumstances.
[Amended 12-7-2021 by Ord. No. 2021-004]
(6)
Customer service.
(a)
The grantee shall maintain an office in a location convenient
to the public which shall be open during all usual business hours,
have a listed telephone, and be so operated that complaints and requests
for repairs or adjustments may be received at any time.
(b)
The grantee shall respond to all service calls and complaints
and shall correct malfunctions in its equipment as promptly as possible.
The grantee shall respond to requests for service within 48 hours
after the reception of the requests.
(c)
The grantee shall not engage in the business of selling, servicing,
installing, or leasing television or radio receivers, converters,
or antennas.
(1)
The cable system shall be engineered, install, maintained, operated
and equipped so as to, at all times, meet the technical standards
which are the current state of the art of the cable communications
industry. The grantee shall also, at all times, meet the technical
standards established by the FCC, including specifications for frequency
levels, channel frequency response, terminal isolation and system
radiation and all other standards which the FCC may set.
(2)
The cable system shall be engineered and equipped to possess an initial
capacity of 54 channels.
(3)
The facilities used by the grantee, including a studio, mobile and
local origination programming equipment, shall be capable of producing
and distributing color TV signals, and when the signals the grantee
distributes are received in color, they shall be distributed in color
unless technically unfeasible.
(4)
The grantee shall upgrade its facilities, equipment and service as
subscribers' demands dictate so that its system is as advanced as
the current state of technology, with filed proven equipment, will
allow.
(5)
The cable system shall be engineered and installed with the capacity
for two-way communications in accordance with the regulations of the
Federal Communications Commission now in effect or which may be promulgated.
(6)
The cable system shall utilize a single trunk, providing a frequency
range of 54 to 400 MHz.
(7)
The grantee shall use microwave distribution systems where necessary
to fulfill all of the representations made to the Town in the grantee's
proposal.
(8)
The converters used in the cable system shall be capable of delivering
at least 54 television channels.
(9)
At the option of any individual subscriber, the grantee shall install
a switching device upon the subscriber's television receiver whereby
the subscriber may disconnect their television receiver from the grantee's
cable system in order to receive over-the-air television signals.
The price of this device to the subscriber shall be the cost of the
device to the grantee or less, at the option of the grantee, and the
grantee shall not charge the subscriber any fee for the installation
of the device. The grantee shall make all reasonable efforts to obtain
the devices at the lowest possible cost to it.
[Amended 12-7-2021 by Ord. No. 2021-004]
(10)
At the option of any individual subscriber, the grantee shall provide
a device, which allows the individual subscriber to utilize a key
to disconnect those channels providing additional services to the
subscriber, such as pay-TV channels. The price of such device shall
be the cost of the device to the grantee or less, at the option of
the grantee, and the grantee shall not charge the subscriber any fee
for the installation of such device. The grantee shall make all reasonable
efforts to obtain such devices at the lowest possible cost to him.
(11)
The grantee shall provide for the standardization of cable television
system facilities for the exchange of transmission of both live and
recorded programs with other cable television facilities operating
in adjacent territory to the Town. The grantee shall run appropriate
trunk lines to the borders of the franchise area or provide other
suitable methods to accomplish such purpose.
(1)
Rate schedule.
(a)
Requirements. The rates charged to subscribers shall be fair
and reasonable. Such rates shall also be nondiscriminatory.
1.
All fees in Subsection (1) above include charges for converters
and no additional charge for converters shall be made.
2.
The grantee shall at no time whatsoever charge any fee for disconnecting
any outlet in the residence of any subscriber.
4.
Rates for all other services to be provided over the CATV system
by the grantee shall be as set forth in the grantee's proposal.
5.
If the grantee desires to provide new services not set forth
in the grantee's proposal, the rates for such services shall be approved
pursuant to Subsection (2) of this section.
6.
Nothing above shall be construed to prohibit the reduction or
waiving of charges in conjunction with promotional campaigns for the
purpose of attracting subscribers, nor shall this provision be interpreted
to prohibit the establishment of a graduated scale of charges and
classified rate scheduled to which any subscriber or programmer included
within a particular classification shall be entitled, provided that
such classified rate schedules are approved by the Town Board under
Subsection (2) of this section.
7.
Nothing above shall prohibit special rates for large institutions,
motels, multiple-family dwelling units, or any other type of dwelling
or building, if such special rates are approved by the Town Board
under Subsection (2) of this section.
8.
The rates established in Subsection (2)(a) and (b), below, shall
not be subject to increase through the first three years following
commencement of service.
[Amended 12-7-2021 by Ord. No. 2021-004]
9.
The grantee will construct the cable system and provide service
throughout the franchise areas at the normal installation charges.[2]
[2]
Editor's Note: Former Subsection (1)(b), which regarded a
discount on basic service for senior citizens, of the 2005 Code, which
immediately followed this subsection, was repealed 12-7-2021 by Ord. No. 2021-004.
(2)
Rate supervision.
(a)
The grantee may decrease the rates to subscribers at any time.
All rate increases shall not go into effect until approved by the
Town Board under Subsection (2)(b) and (c) below.
(b)
The Town Board shall approve rates only after a public hearing
has been held on the rate change in question. The public hearing shall
be announced by written notice published in a newspaper of general
circulation at least 10 days before the date of the hearing. At the
public hearing, the grantee shall make such showing as the Town Board
requires to substantiate the necessity for the rate change in question.
(c)
The Town Board shall either approve the rate change or fail
to do the same with a resolution.
(d)
The Town Board reserves the right to review and approve rates
for new services. If fairness and equity require that a new service
be provided free of charge, the Town Board may require that such service
be provided free of charge.
(3)
Advance charges.
(a)
The grantee may require subscribers to pay for each month of
basic service and PM service in advance at the beginning of each month.
No other advance payment or deposit of any kind shall be required
by the grantee for basic subscriber service. No deposit or advance
payment of any kind shall be charged for the provision of any converter
without prior approval of the Town Board. Additional advance payments
may be made available, as an option, by the grantee to subscribers.
Nothing in this provision shall be construed to prohibit charges for
initial installation and reconnection.
(b)
The grantee may make available, or require advance charges or
deposits, for various additional services, if the Town Board shall
have authorized such charges or deposits under Subsection (2) of this
section.
(4)
Termination of service.
(a)
If any subscriber fails to pay a properly due monthly subscriber
fee, or any other properly due fee or charge, the grantee may disconnect
the subscriber's service outlet. Such disconnection shall not be effected
until 60 days after the due date of such delinquent fee or charge,
or until 10 days after adequate written notice of the intent to disconnect
has been delivered to the subscriber in question. After disconnection,
upon payment of the delinquent fee or charge and the payment of a
reconnection charge, the grantee shall promptly reinstate the subscriber's
cable service.
(b)
Upon termination of service to any subscriber, the grantee shall
promptly remove all of its facilities and equipment from the premises
of such subscriber upon their written request. The service will be
disconnected at the poles if aboveground, or at the connection box
if underground, so that such disconnection shall be outside rather
than inside the home. For multiple-family dwellings, such disconnection
shall be made in the basement or other appropriate service area outside
the living area itself. Any such removal shall be at no cost to the
subscriber.
[Amended 12-7-2021 by Ord. No. 2021-004]
(5)
Refunds to subscribers and programmers.
(a)
If the grantee fails to provide any material service requested
by a subscriber or programmer, the grantee shall, after adequate notification
and being afforded the opportunity to provide the service, promptly
refund all deposits or advance charges paid for the services in question
by the subscriber or programmer.
(b)
If any subscriber terminates any monthly service during the
first 12 months of service because of the failure of the grantee to
render the service in accordance with the standards set forth in the
franchise, the grantee shall refund to such subscriber multiplied
by the fraction of the 12 months period for which the subscriber will
not be receiving service.
(1)
Discriminatory practices prohibited. The grantee shall not deny service,
access, or otherwise discriminate against subscribers, programmers
or general citizens based on race, color, religion, national origin,
creed or sex. Nothing in this provision shall be construed to prohibit
the reduction or waiving of charges in conjunction with promotional
campaigns for the purpose of attracting subscribers, nor shall this
provision be interpreted to prohibit the establishment of a graduated
scale of charges and classified rate schedules to which any subscriber
or programmer included within a particular classification shall be
entitled.
(2)
Employment practices of the grantee. In the carrying out of the construction, maintenance, and operation of its CATV system, the grantee will not discriminate against any employee or applicant because of race, creed, color, religion, sex, or national origin. The grantee shall strictly adhere to the equal employment opportunity requirements of the FCC, as expressed in §§ 76.13(a)(8) and § 76.311 of Ch. 1 of Title 47 of the Code of Federal Regulations. The grantee shall comply at all times with all other applicable federal, state, town and county laws, and all executive administrative orders relating to nondiscrimination in employment. The grantee will take affirmative action to insure that applicants are employed, and that employees are treated during employment, without regard to their race, creed, color, sex, religion, or national origin. Such action shall include, but not be limited to, the following: employment, upgrading, demotion or transfer, recruitment or recruitment advertising, layoff or termination, rates of payor, other forms of compensation and selection for training, including apprenticeship. The grantee shall post in conspicuous places, available to employees and applicants for employment, notices setting forth the provisions of this nondiscrimination clause. The grantee shall, in all solicitations or advertisements for employees placed by or on behalf of the grantee, state that all qualified applicants will receive consideration for employment without regard to race, creed, color, sex, religion or national origin. The grantee will incorporate the foregoing requirements of this subsection in all of its contracts for work relative to construction, maintenance and operation of the CATV system, other than contracts for standard commercial supplies or raw materials, and will require all of its contractors for such work to incorporate such requirements in all subcontracts for such work.
(3)
Cable monitoring. Neither the grantee, nor any governmental bureau,
department, unit, agency or entity, at the federal, state, county
or local level, nor any other person or entity, shall monitor or arrange
for the monitoring of any cable, tone, signal, input device or subscriber
outlet or receiver for any purpose whatsoever.
(4)
Right of privacy.
(a)
The grantee shall not transmit any signal to or from any dwelling
or any other building without the express authorization of the owner
of such dwelling or other building, provided that where the owner
has leased the dwelling or other building, or a portion thereof, express
authorization shall be obtained from the lessee and not from the owner.
(b)
Nothing in this section shall diminish any rights of residents
of dwellings or other buildings protected by this chapter.
(5)
Rights of residents.
(a)
An owner or operator of an apartment building, condominium,
nursing home, or any other rental facility may not interfere with
or charge a fee for the installation of cable facilities for the use
of a lessee of the property or premises, except that such owner or
operator may require:
1.
Installation to conform to reasonable conditions necessary to
protect the safety, appearance, and functioning of the premises.
2.
The grantee, occupant, or tenant to pay for the installation,
operation, or removal of such facilities.
3.
The grantee, occupant or tenant agree to indemnify the owner
or operator for any damages caused by the installation, operating
or removal of such facilities.
(b)
The grantee shall not reimburse or offer to reimburse any person,
or demand or receive reimbursement from the grantee for the placement,
upon the premises of such person, of grantee's facilities necessary
to connect such person's premises to the distribution lines of grantee
to provide CATV service to the premises.
(c)
A landlord may not discriminate for rent charged to tenants
or occupants who receive cable services and to those who do not.
(d)
The grantee may not take actions which would diminish or interfere
with the privilege of any tenant or other occupant of any such building
to use or avail himself of master or individual antenna equipment.
(6)
Sale of subscriber lists prohibited. The grantee shall not sell,
or otherwise make available, lists of the names and addresses of its
subscribers or any list which identifies, by name, subscriber viewing
habits to any person, agency or entity for any purpose whatsoever.
(1)
The right is hereby reserved to the Town to adopt, in addition to
the provisions contained herein, and in existing applicable ordinances,
such additional regulations as it shall find necessary in the exercise
of the police powers, provided that such regulations, by ordinance
or otherwise, shall be reasonable and not in conflict with the rights
herein granted.
(2)
Nothing in this chapter shall limit the right of the Town to acquire
the cable system of the grantee through the exercise of eminent domain,
condemnation proceedings or otherwise.
(3)
Nothing contained in this chapter shall be construed to limit or
in any way impair the powers and authorities of the Town, except as
expressly stated in this chapter.
(1)
Tampering with cable equipment. A person who willfully or maliciously
damages, or causes to be damaged, any wire, cable, conduit, apparatus
or equipment of the grantee, or who commits any act with intent to
cause damage to any wire, cable, conduit, apparatus or equipment of
the grantee, or who taps, tampers with or connects any wire or device
to a wire, cable, conduit or equipment of the grantee with intent
to obtain a signal or impulse therefrom without authorization of the
grantee, shall be subject to a forfeiture of not more than $200 as
determined by the court and shall be liable in a civil action for
three times the actual amount of damages sustained thereby, but this
section shall not prevent a public utility from removing, disconnecting
or otherwise rendering inoperable any of grantee's apparatus or equipment
attached or in any way connected to such public utility's facilities,
if done for reasonable cause.
(2)
Liability of the grantee in legal action. The grantee or its agents
shall not, in an action for slander or publishing a libel be held
liable in damages for or on account of any defamatory matter uttered,
telecast, cablecast or published over the facilities of the grantee
by any person whose utterance, telecast, cablecast or publication
is not, under the provisions of any law of the United States or any
regulation, ruling or order of the Federal Communications Commission,
subject to censorship or control by the grantee.
(1)
Books and records of the grantee.
(a)
The grantee shall file with the Town Clerk accurate copies of
maps and/or plats of the locations and character of all existing and
proposed installations over, upon, or under the streets. These maps
and plats shall conform to the requirements of the Town Engineers
and be kept continuously up-to-date.
(b)
The grantee shall continually keep on file with the Town Board a current list of its shareholders holding 5% or more of the outstanding stock and officers with their current addresses. These lists shall also be included in the annual report of the grantee required in § 22.06(1)(a).
(c)
All books and records of the grantee concerning its operations
within the Town including, but not limited to, all income tax returns
and financial records of the grantee, shall be made available for
inspection and audit by the Town Board or its designate within 30
days after any request for such inspection or audit shall be made.
(d)
The grantee shall keep and maintain all records required by
the FCC. Copies of such records and all other rules and regulations,
terms and conditions established by the grantee for the conduct of
their business shall be filed with the Town Board and at the local
office of the grantee.
[Amended 12-7-2021 by Ord. No. 2021-004]
(e)
Copies of all petitions, applications and communications submitted
by the grantee to the Federal Communications Commission, Securities
and Exchange Commission or any other federal or state regulatory commission
or agency having jurisdiction in respect to any matter affecting cable
operation, shall also be submitted simultaneously to the Town by filing
the same with the Town Clerk.
(f)
The grantee shall maintain records of those subscriber complaints
and requests for service, which it has received, the time of such
reception and the time at which it responded to the subscriber complaints
and requests for service. Every two-months, copies of such records
shall be submitted to the Town Board. The grantee shall also keep
a copy of such records at its local office.
(g)
The grantee shall keep and maintain a complete record of all
persons or groups requesting time on its access channels. Such record
shall be made available for public inspection and a copy of such record
shall be submitted to the cable review committee.
(h)
All records required by this section shall be kept on file by
the grantee for the duration of the franchise.
(2)
Revocation of this franchise.
(a)
In addition to all other rights and powers pertaining to the
Town by virtue of this chapter or otherwise, the Town reserves the
right to revoke, terminate and cancel the franchise, and all rights
and privileges of the grantee hereunder, if:
1.
The grantee violates any material provision of this chapter,
the grantee's proposal or any rule, order or determination of the
Town made pursuant to this chapter, except where such violation, other
than Subsection (2)(a)2 below, is without fault or through excusable
neglect.
2.
The grantee becomes insolvent, unable, or unwilling to pay its
debts or is adjudged a bankrupt.
3.
A receiver or trustee has, at least 120 days beforehand, been
appointed to take over and conduct the business of the grantee, whether
in receivership, reorganization, bankruptcy or other action or proceeding,
unless such receivership or trusteeship shall have been vacated prior
to the expiration of 120 days, or unless:
a.
Within 120 days after their election or appointment, such receiver
or trustee shall have fully complied with all the provisions of this
chapter and remedied all defaults thereunder.
[Amended 12-7-2021 by Ord. No. 2021-004]
b.
Such receiver or trustee, within 120 days, shall have executed
an agreement approved by the court having jurisdiction in the premises
whereby such receiver or trustee assumes and agrees to be bound by
each provision of this chapter.
4.
There has been a change in the control of the grantee requiring
the consent of the Town Board and such consent has been denied or
not given.
5.
The grantee attempts to evade any of the material provisions
of this chapter or practices any fraud or deceit upon the Town.
6.
The grantee fails to have service available to all of the residential
structures in all areas of the Town.
8.
The grantee intentionally violates or permits the violation
of Subsection (1)(c) of this section.
(b)
Such revocation, termination, and cancellation shall occur only
after the Town Board has conducted a public hearing. If, because of
the public hearing, the Town Board approves and recommends revocation,
termination, and cancellation, the Town Board may put such revocation,
termination, and cancellation into effect by ordinance adopted after
30 days' notice to the grantee. Such revocation, termination, and
cancellation shall in no way affect any of the Town's rights under
this chapter or any provision of law. If such revocation, termination
and cancellation depends upon a finding of fact, such finding of fact
as made by the Town Board shall be conclusive; provided, however,
that before the franchise may be revoked, terminated and canceled
under this section, the grantee shall be provided with an opportunity
to be heard before the Town Board.
(c)
If the Town revokes, terminates and cancels this permit, pursuant
to appropriate provisions of this chapter, the Town shall have the
right to purchase the grantee's cable system at a price not to exceed
its then book value (that is, original cost of property less accumulated
depreciation). The book value shall be determined by the Town in accordance
with general accepted appraisal and accounting principles. Under no
circumstances shall any valuation be made for "good will" or any right
or privilege granted by this chapter. After purchasing the grantee's
cable system, the Town shall have the right to sell such cable system
to another operator, if the Town so chooses.
(d)
Whenever this franchise shall set forth time for any act to
be performed by or on behalf of the grantee, such time shall be deemed
of the essence and any failure of the grantee to perform within time
allotted shall be sufficient grounds for the Town to revoke this franchise.
(e)
If grounds for the revocation of this franchise exist, the Town
Board may pass a resolution imposing any penalty or sanction, not
amounting to revocation, upon the grantee, provided that both the
grantee and the Town Board agree upon such penalty or sanction not
amounting to revocation. If no agreement is reached between the grantee
and the Town Board, the Town Board shall decide whether to revoke
the grantee's franchise.
(3)
Restrictions against assignment.
(a)
This franchise shall not be assigned or transferred either in
whole or in part, or leased, sublet or mortgaged 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 either by the act
of the grantee or by operation of law without the express consent
of the Town Board. The granting, giving, or waiving of anyone or more
of such consents shall not render unnecessary any subsequent consent
or consents.
(b)
The grantee shall promptly notify the Town Board of any actual
or proposed change in, transfer of or acquisition by any other party
of control of the grantee. Within 60 days after receiving notice,
the Town Board shall hold a public hearing on this matter and within
90 days shall make its decision. For the purpose of determining whether
it will consent to such change, transfer or acquisition of control,
the Town Board may inquire into the qualifications of the prospective
controlling party and the grantee shall assist the Town Board in any
such inquiry.
(c)
Every change, transfer, or acquisition of control of the grantee,
with respect to which the consent of the Town Board is required, pursuant
to Subsection (3)(a) above, shall make the franchise subject to revocation
until the Town Board shall have consented thereto. If the Town Board
denies consent and such change, and transfer or acquisition of control
has been effected, the Town may revoke the permit unless control of
the grantee is restored to its status before the change or to a status
acceptable to the Town Board.
(d)
Upon the foreclosure or other judicial sale of all or a substantial part of the grantee's cable system, or upon the termination of any lease covering all or a substantial part of the system, the grantee shall notify the Town Board 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 Subsections (a) through (c) above shall apply.
[Amended at time of adoption of Code (see Ch. 25, General
Provisions, Art. II)]
(e)
The consent or approval or the Town Board to any assignment,
lease, transfer, sublease or mortgage of this franchise shall not
constitute a waiver or release of the rights of the Town in and to
the streets.
(f)
Nothing in this section shall be deemed to prohibit a mortgage
or pledge of the cable system equipment, or any part thereof, or a
leasing by the grantee from another person of the cable system equipment
or part thereof for financing purposes or otherwise. Any such mortgage,
pledge, or lease shall be subject and subordinate to the rights of
the Town under this contract or applicable law.
(1)
Compliance with local, state and federal law.
(a)
The grantee shall construct, operate, and maintain the CATV
system subject to the supervision of all of the authorities of the
Town who have jurisdiction in such matters and in strict compliance
with all laws, ordinances and department rules and regulations.
(b)
If at any time the powers of the Town Board, or any agency or
official of the Town, are transferred by law to any other board, authority,
agency or official, this board, authority, agency or official shall
have the power, rights and duties previously vested under this chapter
or by law in the Town Board or any agency or official of the Town.
(c)
Notwithstanding any other provisions of this franchise, the
grantee shall, at all times, comply with all laws and regulations
of the state and federal government or any administrative agency thereof.
However, if any state or federal law or regulation shall require the
grantee to perform any service, or shall permit the grantee to perform
any service, in conflict with the terms of this chapter or of any
law or regulation of the Town, then as soon as possible following
knowledge thereof the grantee shall notify the Town Board of conflict
believed to exist between such regulation or law and the laws or regulations
of the Town or this chapter. If the Town Board determines that a material
provision of this chapter is affected by such subsequent action, the
Town Board shall have the right 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 chapter.
(2)
Failure of Town to enforce this franchise no waiver of the terms
thereof. The grantee shall not be excused from complying with any
of the terms and conditions of this franchise by any failure of the
Town upon anyone or more occasions to insist upon or seek compliance
with any such terms or conditions.
(3)
Captions. The captions to sections throughout this chapter are intended
solely to facilitate reading and reference to the sections and provisions
of this chapter. Such captions shall not affect the meaning or interpretation
of this chapter.
(1)
Except as expressly provided in this franchise, the grantee shall
have no recourse whatsoever against the Town for any loss, cost or
expense or damage arising out of the provisions or requirements of
this chapter or because of the enforcement thereof by the Town.
(2)
The grantee expressly acknowledges that, upon accepting this franchise,
it did so relying upon its own investigation and understanding of
the power and authority of the Town to grant this franchise. By the
acceptance of this franchise, the grantee agrees that it will not
at any time set up against the Town in any claim or proceeding any
condition or term of this franchise as unreasonable, arbitrary or
void or that the Town had no power or authority to make such terms
or conditions of this franchise in their entirety.
(3)
The grantee, by acceptance of this franchise, acknowledges that it
has not been induced to enter into this franchise by any understanding
or promise, or other statement, whether verbal or written, by or on
behalf of the Town or by any other third person concerning any term
or condition of this franchise not expressed herein.
(4)
The grantee further acknowledges by acceptance of this franchise
that it has carefully read the terms and conditions hereof, is willing
to and accepts all reasonable risks of the meaning of such terms and
conditions and agrees that in the event of any ambiguity therein or
other dispute over the meaning thereof, the same shall be construed
strictly against the grantee and in favor of the Town.
The grantee's proposal, as defined in this chapter, is hereby
incorporated by reference into this chapter and shall be considered
part of this chapter. All representations made by the grantee in the
grantee's proposal shall be required to be performed or provided by
the grantee and any failure by the grantee to perform any act or provide
any service or equipment proposed in the grantee's proposal shall
be a violation of this chapter.
Except as otherwise herein provided, any person who shall violate any rule, regulation, order or provision of this chapter, and upon conviction thereof, shall be subject to a penalty as provided in § 25.04 of this General Code.
