[HISTORY: Adopted by the Common Council of the City of Colby 10-5-1995 as Title 9, Ch. 3, of the 1995
Code. Amendments noted where applicable.]
This chapter allows the City of Colby to grant to a franchise
grantee, its successors and assigns, a nonexclusive license to install,
maintain and operate a cable television system for the distribution
of television signals, frequency-modulated radio signals and any other
electronic signals capable of being transmitted on a coaxial or fiber
optic network, including data transmission and closed-circuit television
programs, for a term of 12 years, provided that the franchise grantee
conforms to the conditions, limitations and requirements of this chapter.
This chapter may be amended from time to time by the City through
the enactment of amendments thereto.
For the purpose of this chapter, the following terms, phrases,
words and their deviations shall have the meanings given herein. When
not inconsistent with the context, words used in the present tense
include the future, words in the plural number include the singular
number and words in the singular number include the plural number:
Coaxial or fiber-optic cables, wave guides or other conductors
and equipment for providing video, audio and data frequencies by cable
or through its facilities as herein contemplated, and including closed-circuit
special event programs and educational television.
The City of Colby, Wisconsin, in its present incorporated
form or in any later recognized, consolidated, enlarged or reincorporated
form.
The present governing body of the City or any future body
constituting the legislative body of the City.
Any person or entity receiving and paying for any purpose
the services of a grantee herein.
A person or entity to whom or which a franchise under this
chapter is granted by the Common Council and the lawful successors
or assigns of such person or entity.
Any revenue, derived directly or indirectly by a grantee,
its affiliates, parents and any persons or entities in which a grantee
has a financial interest of 5% or more from or in connection with
the operation of a Colby cable system, including, but not limited
to, basic subscriber service monthly fees, pay cable fees and installation
and reconnect fees revenues. The term does not include any taxes on
service furnished by grantee and imposed directly upon any subscriber
or used by the state, City or other governmental unit and collected
by grantee on behalf of said governmental unit.
The surface of and space above and below any public street,
road, highway, freeway, lane, alley, court, sidewalk, parkway or drive,
now or hereafter existing as such within the City.
A.
A grantee shall have the right to apply to the City for renewal or
extension of the franchise. The City shall grant such renewal or extension
application unless it finds that:
(1)
The grantee has not substantially complied with the material terms
of this chapter and with applicable law, or its officers have been
convicted of a felony;
(2)
The legal, technical or financial qualifications of the grantee are
inadequate to provide the service proposed by it;
(3)
The service and facilities to be provided by the grantee are not
reasonable in light of the community need for and cost of such services
and facilities;
(4)
The service quality of the cable system has not been reasonable in
light of the community needs; or
(5)
The proposals contained in the renewal application are otherwise
unreasonable.
B.
A grantee must file for renewal at least 30 months before the expiration
of the franchise. The City must consider the renewal application and
conduct any proceedings necessary to adequately consider the application;
and may not request, accept or consider any other franchise application
until the grantee's application is denied or approved.
C.
The City shall negotiate in good faith with the grantee regarding
the franchise renewal within 60 days after the completion of proceedings,
and shall make a preliminary decision on granting or denying renewal
within four months after receipt of an application. If the City denies
an application, it must notify the grantee by written statement, within
seven days after its decision, of the reasons for the denial.
D.
The grantee, if adversely affected or aggrieved by a decision of
the City made pursuant to this section, may appeal such decision in
any court of competent jurisdiction. The franchise shall remain in
effect pending the completion of such appeal.
E.
Both the City and grantee shall comply with all the provisions of
Section 626 of the Cable Communication Policy Act of 1984 regarding
renewal procedures. In the event that the Act changes, the City shall
conduct renewal procedures in accordance with then applicable law.
Should a grantee's franchise be terminated or expire and there
is no judicial or administrative review of the termination or expiration
taking place, the grantee shall, within 90 days of termination or
expiration, begin removal of all property owned by the grantee and
placed on a public right-of-way unless permitted by the City to abandon
said property to a purchaser.
A.
All of the rights and privileges and all the obligations, duties
and liabilities created by this chapter shall pass to and be binding
upon the successors of the City and the successors and assigns of
any grantee; and the same shall not be assigned or transferred without
the written approval of the City hereunder, which approval shall not
be unreasonably withheld without a showing of good cause; provided,
however, that this section shall not prevent the assignment or pledge
of a franchise or system by a grantee as security for debt without
such approval; and provided further that transfers or assignments
of a franchise between any parent and subsidiary corporation or between
entities of which at least 51% of the beneficial ownership is held
by the grantee or any parent corporation shall be permitted without
the prior approval of the City. The sale, transfer or assignment of
a material portion of the tangible assets of a grantee to an unrelated
third party shall be considered an assignment subject to the provisions
of this section.
B.
The parties to the sale or transfer of a franchise shall make a written
request to the City for its approval of a sale or transfer of the
franchise.
C.
The City shall reply in writing within 30 days of the request and
shall indicate approval of the request or its determination that a
public hearing is necessary due to potential adverse effect on the
franchise subscribers.
D.
If a public hearing is deemed necessary, the City shall conduct such
hearing within 30 days of such determination, and notice of any such
hearing shall be given 14 days prior to the hearing by publishing
notice thereof once in a newspaper of general circulation in the area
being served by the franchise. The notice shall contain the date,
time and place of the hearing and shall briefly state the substance
of the action to be considered by the City.
E.
Within 30 days after the public hearing, the City shall approve or
deny, in writing, the sale or transfer request.
F.
The parties to the sale or transfer of a franchise only, without
the inclusion of a cable communications system in which at least substantial
construction has commenced, shall establish that the sale or transfer
of a franchise only will be in the public interest.
G.
A grantee, upon transfer, shall within 60 days thereafter file with
the City a copy of the deed, agreement or other written instrument
evidencing such sale, transfer of ownership or control or lease, certified
and sworn to as correct by the grantee.
Any franchise is for the present territorial limits of the City
of Colby. For any area henceforth added thereto during the term of
the franchise, service shall be extended wherever household density
reaches 30 homes per plant mile, including interconnecting trunks.
A.
A grantee shall not, except as required by governmental action, provide
any data concerning specific subscribers or users to their use of
subscriber services without notification to the subscriber or users.
B.
Subscribers and users shall retain the right to deactivate their
terminals, but shall continue to be responsible for charges until
the grantee is notified to terminate service.
A.
The cable system shall be operated to comply with all guidelines
and standards set by the FCC for signal quality and leakage upon proper
notification. The City reserves the right to test the system and independently
measure the signal quality. The system shall comply at all times with
the applicable National Electrical Code of the National Fire Protection
Association.
B.
The City may inspect all construction or installation work during
such construction or installation, or at any time after the completion
thereof, in order to ensure compliance with the provisions of this
chapter and all other governing ordinances.
Any grantee shall manage all of its operations in accordance
with the policy of totally open books and records vis-a-vis the City.
The authorized officers of the City shall have the right to inspect,
upon notice, during normal business hours all books, records, maps,
plans and service complaint logs of the grantee that relate to the
operation of the franchise.
The grantee shall maintain resources sufficient and near enough
to the franchise territory to provide the necessary facilities, equipment
and personnel to comply with this section and other provisions of
this chapter, as follows:
A.
Service standards. The grantee shall render efficient service, make
repairs promptly and interrupt service between the hours of 7:00 a.m.
and 1:00 a.m. only for good cause and for the shortest possible time.
Service may be interrupted between 1:00 a.m. and 7:00 a.m. for routine
testing, maintenance and repair, except on nights commencing on Saturday
and Sunday and on holidays. Scheduled or predictable service interruptions,
except for weekly routine maintenance, insofar as possible, shall
be preceded by notice, which may be provided across the cable system.
The interruptions shall occur during periods of minimum use of the
system to the extent practicable. The grantee shall maintain a written
log or an equivalent capable of access and reproduction of all service
interruptions and requests for service, which log shall be available
for inspection during the franchise period.
B.
Telephone lines. The grantee shall provide local toll-free or collect call telephone access to its subscribers within the franchise territory. Any calls should be answered by a customer service representative during normal business hours; calls outside this period may be answered by an automated response mechanism, but such calls should be processed by a grantee's representative within 12 hours. The grantee shall provide sufficient telephone answering capacity that customer calls are answered on average within 30 seconds 90% of the time; and that customers receive a busy signal no more than 3% of the time. Violations of these standards shall be subject to penalties under the provisions of § 211-31.
C.
Installation. The grantee shall complete requests for subscriber
installations within seven business days of order placement when the
installation is within 150 feet of the existing cable system. Installation
requests required to be honored under this chapter beyond the 150-foot
standard must be completed within 14 days. If the grantee fails to
meet these standards, the grantee shall provide the subscriber with
a free month of the requested service. The grantee may request that
the City toll these periods for reasonable circumstances beyond its
control.
D.
Repair standards. The grantee shall maintain a repair force capable,
under normal operating circumstances, of responding to service interruption
and degradation complaints made during normal business hours within
four hours. For complaints made outside normal business hours, the grantee
must respond within 18 hours. For the purpose of this subsection,
"response" shall mean at a minimum contacting the subscriber by telephone
or in person. Where a grantee misses either of these deadlines, the
grantee must provide the subscriber with one free month's service.
The grantee may request that the City toll the repair period for reasonable
circumstances beyond its control.
E.
Service call scheduling. When the grantee needs to arrange a service
appointment at a subscriber's location, the grantee must offer the
subscriber a service window not to exceed four hours in duration.
Grantee may not cancel a service window without the subscriber's consent.
Where a grantee misses a service window, grantee must provide the
subscriber with one free month's service. The grantee may request
that the City toll the service call period for reasonable circumstances
beyond its control.
Upon request by the City, the grantee shall, as part of the
acceptance of a franchise, provide a complete written description
or map of the cable system in the City of Colby. Such written description
or map shall be updated as additions or changes are made.
A.
All rates and charges shall be established by a grantee; provided,
however, the City reserves its right to the maximum extent possible
to regulate the rates of a grantee, as permitted by federal and state
law, regulation or rule. In the event, after the effective date of
this chapter, any federal or state law, regulation or rule is at any
time changed, modified, amended or repealed so as to allow for increased
authority of the City to regulate a grantee's rates, the City shall
be permitted to do so to the maximum extent possible.
B.
A grantee shall provide the City with a rate schedule of the grantee's
charges at the time of grantee's acceptance of a franchise. Subsequent
additions or amendments to rates and service charges shall be filed
with the City at least 30 days prior to the implementation of the
addition or amendment. The grantee shall give subscribers at least
30 days' advance written notice before instituting a rate increase.
C.
Pending such modification, amendment or repeal of current federal and state laws regarding regulation of a grantee's rates, the following procedure in Subsection D shall apply, to the extent permitted by law.
D.
At the time this chapter is being adopted, the Federal Communications
Commission (FCC) has developed rules whereby municipalities are given
the limited right to regulate rates for basic cable service. A grantee
shall not increase its basic cable service rates without giving the
Common Council written notice of any proposed basic cable service
rate increase at least 30 days prior to the effective date of such
increase. The Common Council may deny the grantee such increase based
upon the procedures and standards to be developed by the Federal Communications
Commission. In the event the City would certify to the FCC to regulate
the basic service rate and at the discretion of the Common Council,
the Common Council may schedule a public hearing to determine whether
the grantee's proposed basic rate increase should be granted. Grantee
will cooperate fully with the Common Council in connection with such
proceedings and, upon request, supply to the Common Council, within
20 days, any additional information as may be reasonably required
for determining whether the proposed increase should be granted, provided
such disclosure will not violate any applicable law, confidentiality
obligation or contract to which the grantee is a party. A grantee
shall be permitted to participate in the public hearing and present
its case for the proposed rate increase. Should the Common Council
fail to deny the proposed rate increase prior to its taking effect,
but determines within 30 days of the effective date of the increase
that the increase should be denied or modified under the standards
to be developed by the Federal Communications Commission, then the
previous basic rate charge shall be the effective basic cable service
rate charge from the first day of the month following the Common Council's
action. Nothing contained herein shall prevent the grantee from challenging
before any court of appropriate jurisdiction that the action of the
Common Council in denying the basic cable service rate increase is
arbitrary and capricious and/or violates applicable law.
A.
All transmission and distribution structures, lines and equipment
erected by a grantee within the City shall be so located as not to
cause interference with the proper use of streets, alleys and other
public ways and places, and not cause interference with the rights
of or reasonable convenience of property owners who adjoin any of
the streets, alleys or other public ways and places.
B.
In case of any disturbance of pavement, sidewalk, driveway or other
surfacing, the grantee shall first give notice to the Director of
Public Works of any contemplated disturbances of pavement, sidewalk,
driveway or other surfacing, and shall, at its own cost and expense
and in a manner approved by the Director of Public Works, replace
and restore all pavement, sidewalk, driveway or other surface of any
street or alley disturbed in as good a condition as before such work
commenced. The grantee shall otherwise comply with City ordinances
relating to street openings.
C.
If, at any time during the period of a franchise, the City shall elect to alter or change the location or grade of any street, alley or other public way, the grantee, upon reasonable notice by the City, shall remove, relay and relocate its poles, wires, cables, underground conduits, manholes and other fixtures at its own expense. If any construction by the grantee is in violation of the provisions of Subsection A of this section, the grantee shall likewise, upon reasonable notice by the City, remove, relay and relocate its property in such a manner as to remedy such violation at its own expense.
D.
The grantee shall not place poles or other fixtures where the same
will interfere with any existing gas, electric, telephone or other
fixture, water hydrant or main. All such poles or other fixtures placed
in any street shall be placed between the outer edge of the sidewalk
and curbline, and those placed in alleys shall be placed close to
the line of the lot abutting on such alley in such a manner as not
to interfere with the usual travel on the streets, alleys and public
ways. However, nothing in this chapter shall prohibit the use by the
grantee of existing public utility poles where practical.
E.
A grantee shall, on the request of any person holding a building
moving permit issued by the City, temporarily raise or lower its wires
to permit the moving of buildings. The expenses of such temporary
raising or lowering of the wires shall be paid by the person requesting
the same, and the grantee may require such payment in advance. The
grantee shall be given, not less than 72 hours in advance, notice
to arrange for such temporary wire changes.
F.
The grantee, to the same extent that the City has such authority,
may trim trees that overhang streets, alleys, sidewalks and public
places of the City so as to prevent the branches of such trees from
coming in contact with the wires and cables of the grantee.
A.
The grantee shall defend and save the City and its agents and employees
harmless from all claims, damages, losses and expenses, including
attorney's fees, sustained by the City on account of any suit, judgment,
execution, claim or demand whatsoever arising out of:
(1)
The enactment of this chapter and granting of a franchise thereunder,
except such claims as may arise from the City's selection of a grantee
to be awarded a franchise pursuant to this chapter.
(2)
The installation, operation or maintenance of the cable system, except
for acts of the City, its agents or employees, unless said acts are
at the request of and under the direction or supervision of the grantee.
B.
The City shall notify the grantee within 10 days after the preservation
of any claim or demand, either by suit or otherwise, made against
the City on the part of the grantee. The grantee shall furnish to
the City, before any franchise becomes effective, satisfactory evidence
in writing that the grantee has in force and will maintain in force
during the term of the franchise public liability insurance.
C.
All grantees shall maintain throughout the term of the permit a general
comprehensive liability insurance policy naming as additional insured
the City, its officers, councils, commissions, agents and employees
in a form satisfactory to the City Attorney. The policy shall protect
the City and its agencies and employees against liability for loss
or damages for personal injury, death or property damage occasioned
by the operations of grantee under any franchise granted hereunder,
in the amounts of 1) $1,000,000 for bodily injury or death to any
one person, with the limit, however, of $2,000,000 for bodily injury
or death resulting from any one accident; and 2) $1,000,000 for property
damage resulting from any one accident. The City shall be named as
an additional insured under such insurance, and a copy of the current
in-force policy shall be deposited with the City Clerk.
Regarding service interruptions and significant service degradation,
when the grantee has failed to provide a subscriber with appropriate
service due to service outage or significant audio or video degradation
not due to the subscriber's equipment or action, the subscriber may
request a rebate of any fees paid for the affected service(s) under
the following schedule, and the grantee must provide such rebates.
For the purposes of this section, the outage or degradation period
shall begin when the subscriber provides notice to the grantee of
the outage or degradation. The City shall waive or modify the rebate
provisions for reasonable circumstances beyond the control of the
grantee. Outages for initial construction, upgrading and normal maintenance
shall be exempt from this section.
A.
A grantee of a franchise hereunder shall pay to the grantor a fee
in an amount equal to 3% of grantee's gross revenues. Such payment
shall commence as of the effective date of the franchise or any renewal
date. The grantor, on an annual basis, shall be furnished a statement
within 120 days of the close of the calendar year, either audited
and certified by an independent certified public accountant or certified
by a financial officer of the grantee, reflecting the total amount
of the revenue and all payments, deductions and computations for the
period covered by the payment. Upon 10 days' prior written notice,
the grantor shall have the right to conduct an independent audit of
the grantee's records, in accordance with generally accepted accounting
principles.
B.
No acceptance of any payment by the grantor shall be construed as
a release or as an accord and satisfaction of any claim the grantor
may have for further or additional sums payable as a franchise fee
under this chapter or for the performance of any other obligations
of the grantee.
C.
The franchise fee shall be paid on an annual basis according to the
following schedule: revenues for January through December shall be
paid by March 31 of each calendar year.
A.
An owner or operator of an apartment building, condominium, nursing
home, mobile home park or any other rental facility may not interfere
with or charge a fee for the installation of cable system facilities
for the use of a lessee of said 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 to agree to indemnify the owner or
operator for any damages caused by the installation, operation or
removal of such facilities.
B.
It shall be unlawful for the grantee to reimburse or offer to reimburse
any person, or for any person to 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 cable service to said
premises.
C.
A landlord may not discriminate in the amount of rent charged to
tenants or occupants who receive cable service and those who do not.
A.
The right is hereby reserved by the City to adopt, in addition to
the provisions contained in this chapter and existing applicable ordinances,
such additional regulations as it shall find necessary in the exercise
of its police powers. Such regulations, by ordinance or otherwise,
shall be reasonable and not in conflict with the rights granted in
this chapter and not in conflict with the laws of the state.
B.
The City may, during the term of a franchise, free of charge where
aerial construction exists, maintain upon the poles of the grantee
within the City limits wire and pole fixtures necessary for a police
and fire alarm system; such wires and fixtures to be constructed and
maintained to the satisfaction of the grantee and in accordance with
its specifications.
During the term of a franchise, the grantee shall provide free
service to municipal buildings used solely for municipal purposes
and all schools, whether private, public or parochial, within the
area of the franchise. The grantee may charge for usual installation
costs.
Should any word, phrase, clause, sentence, paragraph or portion
of this chapter and/or a franchise be declared to be invalid by a
court of competent jurisdiction, such adjudication shall not affect
the validity of this chapter and the franchise as a whole, but shall
only affect the portion thereof declared to be invalid; and the Common
Council hereby expressly states and declares that it would nonetheless
have passed this chapter and granted the franchise had it known that
any such word, phrase, clause, sentence, paragraph or portion of said
chapter or franchise was invalid.
Any franchise granted under this chapter shall be effective
upon acceptance of the franchise by both parties within 30 days from
the adoption hereof, and the franchise shall continue in force for
a period of 12 years.
A.
Controversies arising from a grantee's performance under the terms
of this chapter shall be submitted to arbitration. Arbitration shall
not be demanded by any party until such time as that party has served
written notice upon the opposing party, setting forth its proposed
determinations or actions which are to be the subject matter of the
arbitration. Such notice shall be in writing and mailed to the other
party by certified mail, return receipt requested.
B.
In the event of arbitration, the parties shall select the arbitrator;
or if they fail to do so, a Circuit Court Judge shall select the arbitrator.
The expenses of the arbitration and compensation of the arbitrator
shall be borne by the City and the grantee as the award shall provide,
but in no event shall the City or the grantee be obligated to pay
more than 1/2 such expenses and compensation. The arbitration award
shall be binding upon the parties.
This chapter shall be amended to incorporate all amendments
to the statutes, rules and regulations of the federal government as
they are promulgated by the federal government. Any provision herein
in conflict with or preempted by said rules, regulations or statutes
shall be superseded.
A grantee shall at all times keep its cables and other appurtenances
used for transmitting signals shielded in such a manner that there
will be no interference with signals received by radios or televisions
not connected to the grantee's service.
A grantee may 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 all its subscribers. However, such rules, regulations, terms and
conditions shall not be in conflict with the provisions of this chapter
or the laws of the state.
By the adoption of this chapter, the City expressly waives all
objections it has or may have to the legal rights of the grantee to
attach its cables, equipment and transmission lines to the poles of
the City, pursuant to an agreement, or to the poles of the public
utilities and the authority of such public utilities to grant such
right to the grantee.
A grantee shall have no recourse whatsoever against the City
for any loss, cost or expense or damage arising out of any provisions
or requirements of a franchise or because of the enforcement thereof
by the City, or for the failure of the City to have authority to grant
all or any part of the franchise. Grantee expressly acknowledges that
in accepting any franchise it does so relying on its own investigation
and the understanding of the power and authority of the City to grant
the franchise. By accepting a franchise, a grantee acknowledges that
it has not been induced to enter into the franchise by any understanding
or promise or other statement, whether verbal or written, by or on
behalf of the City or by any other third party concerning any terms
or conditions of the franchise not expressed herein. The grantee further
acknowledges by acceptance of the franchise that it has carefully
read the terms and conditions hereof, and is willing to and does accept
all the risks of the meeting of such terms and conditions and agrees
that in the event of any ambiguity therein or in the event of any
dispute over the meaning thereof of the same shall be construed strictly
against the grantee and in favor of the City.
A.
A grantee shall give prior notice to the City specifying the names
and addresses of any entity, other than the grantee, that performs
services pursuant to the franchise; provided, however, that all provisions
of the franchise remain the responsibility of the grantee.
B.
All provisions of any franchise shall apply to any subcontractor
or other party performing any work or services pursuant to the provisions
of the franchise.
Grantee agrees by acceptance of a franchise that it will not
at any time set up against the City in a claim for proceeding any
condition or term of the franchise as unreasonable, arbitrary or void,
or that the City had no proper authority to make such term or condition,
but shall be required to accept the validity of the terms and conditions
of the franchise in their entirety.
A.
It shall be unlawful for any person, firm or corporation to make
any unauthorized connection, whether physically, electrically, acoustically,
inductively or otherwise, with any part of the company's community
antenna system within this City for the purpose of enabling himself/herself
or others to receive any television signal, radio signal, picture,
program or sound, without payment to the company.
B.
It shall be unlawful for any person, without the consent of the company,
to willfully tamper with, remove or injure any cables, wires or equipment
used for distribution of television signals, radio signals, pictures,
programs or sound.
The City shall not grant any overlapping franchise for cable
service within its jurisdiction on terms or conditions more favorable
or less burdensome than those in any existing franchise within the
City.
