[Ord. 368, 6-6-1994]
(A)
Continental Cablevision has been operating a cable communications
system pursuant this chapter, as amended, expiring June 18, 1997.
The City intends, by the adoption of ordinance 368 codified herein,
to authorize Continental Cablevision the continued operation of a
CATV system, in the City, pursuant to the provisions of this ordinance
368 which shall become effective on September 1, 1994.
(B)
Insofar as the state has delegated to the City the authority to grant
a franchise for CATV system operation within the City's territorial
boundaries, the City hereby exercises its authority to grant a nonexclusive
franchise permitting the operation of a cable system within the City.
[Ord. 368, 6-6-1994]
This chapter shall be known and may be cited as the LINCOLN
CABLE FRANCHISE ORDINANCE FOR CONTINENTAL CABLEVISION OF ILLINOIS,
INC.
[Ord. 368, 6-6-1994]
For the purpose of this chapter the following terms, phrases,
words, abbreviations and their derivations shall have the meaning
herein given. When not inconsistent with the context, words used in
the present tense include the future tense, words in the plural number
include the singular number, and words in the singular number include
the plural number.
Any service tier which includes the retransmission of local
television broadcast signals.
A system of antennas, cables, wires, lines, fiber optic cables,
towers, waveguides or other conductors, converters, equipment or facilities,
used for distributing video programming to home subscribers, and/or
producing, receiving, amplifying, storing, processing or distributing
audio, video, digital or other forms of electrical signals to, from
and between subscribers and other users.
A cable communications system as hereinafter defined.
The City of Lincoln, Illinois.
Continental Cablevision of Illinois, Inc., and its authorized
successors, transferees or assignees.
The City Council of Lincoln, Illinois.
The City of Lincoln, Illinois, and subsequent annexations
and additions thereto.
All revenues received by the company for cable service including,
but not limited to, basic service, cable programming service as defined
by the federal communications commission, pay channels, pay per view
programming, converter fees, local advertising revenues, publications,
and revenue derived from sale of time on leased channels. This would
not include sales, excise or other taxes, franchise fees or other
assessments collected for governmental authorities; bad debt expense;
subscriber deposits; copyright fees; and, installation and disconnection
charges.
The Mayor of Lincoln, Illinois.
Any person, firm, partnership, association, corporation,
company or organization of any kind.
All property owned, installed or used by the company in the
conduct of a CATV business in the franchise area.
Any real property owned by the City other than a street.
The surface of and the space above and below any public street,
right of way, road, highway, freeway, bridge, lane, path, alley, court,
sidewalk, parkway, drive, communication or utility easement, on or
hereafter existing as such within the franchise area.
Any person or entity who subscribes to a service provided
by the company by means of the system.
A category of CATV service provided by the company and for
which a separate rate is charged by the company.
[Ord. 368, 6-6-1994]
(A)
Whereas the City has approved the legal, character, financial, technical
and other qualifications of the company and the adequacy and feasibility
of the company's construction arrangements as part of a full
public proceeding affording due process, there is hereby granted by
the City to the company the right and privilege to continue to engage
in the business of operating and providing a CATV system in the City
and for that purpose to erect, install, construct, repair, replace,
reconstruct, maintain and retain in, on, over, under, upon, across
and along any street and public property, now laid out or dedicated
and all extensions thereof and additions thereto in the franchise
area such poles, wires, cables, conductors, ducts, conduits, vaults,
manholes, amplifiers, appliances, attachments and other property as
may be necessary and appurtenant to the CATV system; and in addition,
so to use, operate and provide similar facilities or properties rented
or leased from other persons, including but not limited to any public
utility or other grantee franchised or permitted to do business in
the City.
(B)
The City, in granting such rights and privileges to the company to
engage in the business of operating and providing a CATV system in
the City, shall grant to the company all access to premises privileges,
pursuant to all applicable local, state and federal laws.
(C)
Neither this agreement nor any of the company's rights or obligations
hereunder shall be assigned or otherwise transferred without the prior
written consent of the City, which shall not be unreasonably withheld,
but the obligations of the company shall not be released because of
such assignment. Consent of the City shall not, however, be required
for a transfer to a parent, subsidiary or affiliate of the company;
provided, however, the obligations of the company shall not be released
because of any such assignment to a parent, subsidiary or affiliate.
Notwithstanding anything herein to the contrary, the successor to
the company shall be obligated by the terms and conditions of this
agreement.
[Ord. 368, 6-6-1994]
(A)
The license granted herein and the right to use and occupy said streets
and public property for the purpose herein set forth, shall not be
exclusive, and the City reserves the right to grant the same use in
said streets and public property to any other person on the same terms
and conditions.
(B)
In the event that the City permits another CATV system to operate
within the City on terms more favorable than those extended to the
company, such more favorable terms shall be applicable to the company.
[Ord. 368, 6-6-1994]
(A)
This franchise and rights herein granted shall take effect and be
in full force from and after the date of acceptance by the company,
and shall continue in full force and effect for a term of 25 years
beginning September 1, 1994.
(B)
The franchise may be renewed for an additional 25 years upon such
terms and conditions as may be mutually agreed between the parties,
all in accordance with the substantive and procedural requirements
of any laws, statutes or regulations then applicable to the renewal
of a CATV franchise.
[Ord. 368, 6-6-1994]
(A)
All transmission and distribution structures, lines and equipment
erected by the company within the franchise area shall be so located
as to cause minimum interference with the proper use of streets and
public property, and to cause minimum interference with the rights
and reasonable convenience of property owners who adjoin any of the
streets and public property. The CATV system shall be constructed
and operated in compliance with all local, state and national construction
and electrical codes and shall be kept current with new codes. The
company shall install and maintain its wires, cables, fixtures and
other equipment in such manner that they will not interfere with any
installations of the City or of any public utility serving the City.
Whenever practical and possible, the system shall utilize existing
poles and easements. All poles and conduit installed within the franchise
area shall be made available for attachment or use by the company,
at just and reasonable rates applied to public utilities under the
formula presently established in 47 USC Section 244, now or as amended
from time to time.
(B)
In case of disturbance of any street or public property, the company
shall, at its own cost and expense, and in a manner approved by the
City, replace and restore such street or public property in as good
a condition as before the work involving such disturbance was done
and in accordance with the prevailing ordinances.
(C)
In the maintenance and operation of the CATV system, and in the course
of new construction or additions to its facilities, the company shall
proceed so as to cause the least possible inconvenience to the general
public. Any opening or obstruction in the street or public property
made by the company shall be guarded and protected at all times by
the placement of adequate safety devices, which shall be clearly designated
by red warning lights, consistent with the Illinois department of
transportation requirements.
(D)
If at any time during the period of the franchise, the City shall
lawfully elect to alter or change the grade of any street or public
property, the company, 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.
(E)
Any poles or other fixtures placed in any street or public property
by the company shall be placed in such manner as not to interfere
with the usual travel on such public way.
(F)
The company shall, on the request of any person holding the necessary
permits, temporarily raise or lower its wires to permit the moving
of buildings. The expense of such temporary removal or raising or
lowering of wires shall be paid by the person requesting the same,
and the company shall have the authority to require such payment,
in advance. The company shall be given not less than 48 hours'
advance notice to arrange for such temporary wire changes.
(G)
The company shall have the authority, subject to the jurisdiction
of the City, to trim trees upon and overhanging streets and public
property of the franchise area so as to prevent the branches of such
trees from coming in contact with the wires and cables of the company.
Such trimming shall be done in a reasonable and minimal manner.
(H)
In all sections of the franchise area where all cables, wires or
other like facilities of public utilities are placed underground,
the company shall place its cables, wires or other like facilities
underground to the maximum extent that existing technology reasonably
permits the company to do so.
(I)
The company shall at its expense, protect, support, temporarily disconnect,
relocate in the same street or public property, or remove from the
street or public property, any property of the company when reasonably
required by the City by reason of traffic conditions, public safety,
street vacation, freeway and street construction, change or establishment
of street grade, installation of sewers, drains, water pipes, power
lines, signal lines and tracks or any other type of structures or
improvements by public agencies; provided, however, that the company
shall in all such cases have the privilege and be subject to the obligation
to abandon any property of the company in place.
(J)
The City shall have the reasonable right to make additional use for
any public or municipal purpose, of any poles or conduits controlled
or maintained exclusively by or for the company in any street or public
property, provided such use by the City does not interfere with the
use by the company. The City shall indemnify and hold harmless the
company against and from any and all claims, demands, causes of action,
actions, suits, proceedings, damages, costs or liabilities of every
kind and nature whatsoever arising out of such use of company's
poles or conduits.
[Ord. 368, 6-6-1994]
(A)
The company shall at all times take reasonable precautions for preventing
failures and accidents which are likely to cause damage or injury
to the public, to employees of the company and to public or private
property.
(B)
All lines, equipment and facilities within the franchise area shall
at all times be kept and maintained in a safe and suitable condition
and in good order and repair.
[Ord. 368, 6-6-1994]
(A)
No person within 150 feet of the company's facilities shall
be arbitrarily refused service.
(B)
Whenever it shall receive a request for service from at least 10
households (which intend to become immediate subscribers) within 1,320
feet of its trunk cable, the company shall extend its system to such
subscribers at no cost to the subscribers for system extension other
than the usual connection fees and monthly subscription fees for all
subscribers; provided that such extension is technically and physically
feasible. The 1,320 feet shall be measured in extension length of
the company's cable required for service located within the street
or public property and shall not include length of necessary service
drop to the subscriber's home or premises.
(C)
No person in the company's service area shall be arbitrarily
refused service. However, for unusual circumstances, such as requirement
for underground cable, or more than 150 feet of distance from distribution
cable to connection of service to subscribers, or a density of less
than 10 subscribers per 1,320 feet of cable system, in order that
existing subscribers shall not be unfairly burdened, service may be
made available on the basis of a nonrefundable capital contribution
including cost of materials, labor and easements.
[Ord. 368, 6-6-1994]
(A)
The company agrees to maintain its CATV system in conformity with
the generally accepted state of the art technology for such systems
of comparable size and age to the system serving the City.
(B)
The company shall allocate one channel to be shared by local origination
(cablecasting) in full color and programmed to meet the needs and
interests of the area community; government access for use by local
government; educational access for use by local educational authorities;
and public access for use by anyone in the community on a first come,
first serve basis. Upon completion of a cable system rebuild and expansion
of channel capacity and as additional utilization requires, the company
shall make available, as permitted by channel capacity and technical
limitations, one additional access channel for the provision of public,
educational and governmental access television.
(C)
To enhance and improve the overall technical and picture quality
of its CATV system, the company plans to rebuild the system by no
later than December 31, 1994. Such a rebuild will increase the system's
bandwidth to a minimum of 550 MHz, supplying capacity for 78 channels.
The system will be designed to meet or exceed all FCC rules and regulations
regarding technical standards and will be built with addressability
or comparable technology. The company shall notify the City prior
to the beginning of construction along with a report of the system
rebuild. The company shall provide progress reports of the rebuild,
at the City's request.
(D)
The company shall design and construct the CATV system to provide
for an audio override of all channels during emergencies or disasters,
whereby a designee of the City approved by the company may introduce
an audio message on all channels of the CATV system simultaneously.
(E)
The company shall make available to its subscribers a signal scrambling
device capable of rendering cable service inaccessible or accessible,
subject to the subscriber's discretion.
(F)
To better educate and inform its subscribers, the company shall continue,
at its own expense, to cablecast the meetings of the full Council
as part of the company's commitment to local origination programming.
(G)
The company shall provide audio services.
[Ord. 368, 6-6-1994]
(A)
The company shall operate and maintain its CATV system in full compliance
with the standards set forth by the federal communications commission.
Procedures for testing the technical capacity of the system shall
conform with the standards applied to CATV systems by the federal
communications commission.
(B)
Whenever it is necessary to shut off or interrupt service for the
purpose of making repairs, installations or adjustments, the company
shall do so at such times as will cause the least amount of inconvenience
to its customers, and unless such interruption is of short duration
or is unforeseen and immediately necessary, it shall give reasonable
notice thereof to its customers.
[Ord. 368, 6-6-1994]
(A)
The company shall maintain a business office which subscribers may
telephone during regular business hours without incurring added message
or toll charges, so that CATV maintenance service shall be promptly
available. Should a subscriber have an unresolved complaint regarding
the quality of cable service, equipment malfunctions or similar matters,
the subscriber shall be entitled to file his complaint with the City
Clerk and thereafter to meet jointly with a representative designated
by the Mayor and Council and a representative of the company within
30 days to fully discuss and resolve such matter.
(B)
The company shall adhere to all general operating requirements as
set forth by the federal communications commission under Section 76.309
of Title 47 CFR, part 76, subpart H, of the FCC rules.
[Ord. 368, 6-6-1994]
(A)
The company shall have the right to charge and collect compensation
from all subscribers to whom it shall furnish services on its CATV
system. The rate schedule to be charged customers shall be kept on
file with the City Clerk at all times and no change in such schedule
shall be made without first filing the changed schedule with the City
Clerk 30 days prior to the effective date.
(B)
The company, however, may: 1) conduct promotional campaigns in which
rates are discounted or waived; 2) make special contracts for nonprofit
charitable, educational, governmental and religious organizations;
and, 3) offer bulk rate discounts on multiple-unit dwellings, hotels,
motels or similar institutions.
(C)
To the extent permitted by applicable federal law, the City may regulate
the rates for the provision of services provided over the company's
CATV system to cable subscribers.
(D)
If the City assumes rate regulation, then it shall do so in accordance
with all applicable federal laws.
[Ord. 368, 6-6-1994]
The company shall pay to the City, within 45 days after the
close of each calendar quarter, a 5% franchise fee based on "gross
subscriber revenues" as defined herein for cable television operations
in the City for the preceding calendar quarter. No other fee, charge
or consideration shall be imposed. The company shall provide a quarterly
summary report verified by an officer of the company showing its gross
subscriber revenues received during the preceding quarter, and upon
written request by the City, provide access to the records and books
and accounts of the company as may be necessary to verify the accuracy
of said report. The 5% franchise fee based upon gross subscriber revenues
shall be effective for all quarters commencing after September 1,
1994.
[Ord. 368, 6-6-1994]
(A)
The company shall at all times protect and hold harmless the City
from all claims, actions, suits, liability, loss, expense or damages
of every kind and description, including investigation costs, court
costs and attorney fees which may accrue to be suffered or claimed
by any person or persons arising out of the negligence of the company
in the ownership, construction, repair, replacement, maintenance and
operation of said CATV system and by reason of any license, copyright,
property right or patent of any article or system used in the construction
or use of said system. The City shall give the company prompt notice
of any such claims, actions, suits, without limitation, in writing.
The company shall also indemnify and hold the City harmless from all
claims, actions, suits, liability, loss, expense or damages of every
kind and nature, including court costs and attorney fees which may
accrue to or be suffered or claimed by any person or persons for any
alleged violation of the antitrusts laws of the United States of America
or any civil rights action which may be brought against the City arising
out of the grant of any franchise under this chapter or as amended
from time to time.
(B)
The company shall maintain in full force and effect during the life
of any franchise, public liability insurance in a solvent insurance
company authorized to do business in the state, at no less than in
the following amounts:
1.
$200,000 property damage in any one accident;
2.
$500,000 for personal injury to any one person;
3.
$1,000,000 for personal injury in any one accident.
|
Provided, that all such insurance may contain reasonable deductible
provisions not to exceed $25,000 for any type of coverage, and provided
further, the City may require that any and all investigation of claims
made by any person against the City arising out of any use or misuse
of privileges granted to the company hereunder shall be made by, or
at the expense of, the company or its insurer.
|
[Ord. 368, 6-6-1994]
Upon expiration of the franchise, and any renewal thereof, the
company may have and it is hereby granted, the right to enter upon
the streets and public property of the City for the purpose of removing
therefrom any or all of its property and otherwise. In so removing
said property, the company shall refill, at its own expense, any excavation
that shall be made by it, and shall leave said streets and public
property in as nearly as possible as good condition as that prevailing
prior to the company's removal of its property.
[Ord. 368, 6-6-1994]
It shall be the policy of the City to liberally amend this franchise
upon application of the company, when necessary to enable the company
to take advantage of any developments in the field of transmission
of video, audio, digital and data signals, which will afford it an
opportunity to more effectively, efficiently and/or economically serve
its customers.
[Ord. 368, 6-6-1994]
(A)
When not otherwise prescribed herein, all matters herein required
to be filed with the City shall be filed with the City Clerk.
(B)
The company shall assume the cost of publication of this franchise
if such publication is required by law. A bill for publication costs
shall be presented to the company by the City Clerk upon the company's
filing of acceptance and shall be paid at that time.
(C)
The company further agrees to provide, without charge, one cable
outlet and service to each educational and local governmental facility
located within 150 feet of the company's facilities. Such cable
service shall include all CATV programming except for nonadvertiser
supported programming offered on a per channel or per program basis.
The installation of such outlets shall not require special equipment
or extraordinary materials. If more than one outlet is requested at
any of the said facilities, the company shall install the same at
the cost of time and material only. In no event will there be a monthly
service charge of said facilities, unless a request is made for per
channel or per program services, or other auxiliary services, to the
extent that the company is allowed under its contract with the programming
suppliers.
[Ord. 368, 6-6-1994]
(A)
During the term of a franchise, the company may need to request from
the Council modifications of the franchise ordinance. Any required
modification request by the company not related to equipment, facilities
and services issues must be submitted to the Council in writing. Upon
a written request by the company for a modification of the franchise
ordinance, the City shall have 120 days within which to render a decision
approving or disapproving the modification request. If such a decision
is not rendered within 120 days of the written request, such request
will be deemed approved.
(B)
If a modification request is made by the company on matters involving
issues related to the company's equipment, facilities and services,
the City shall follow all procedures as set forth under Section 625
of the cable communications policy act of 1984, or as amended from
time to time.
(C)
As a result of rapid changes in the regulatory, technical, financial,
marketing and legal environment of cable communications, which requires
cable operators to construct CATV systems which meet the needs and
interest of the community, the following evaluation efforts are agreed
upon between the City and the company, as follows:
1.
Evaluation sessions may be conducted within 30 days of the 10th,
16th and 22 anniversary of this franchise agreement. All evaluation
sessions shall be open to the public and notice of the sessions shall
be published in the local newspaper. Topics which may be discussed
at the evaluation session may include, but are not limited to, new
technology, system performance, service, complaints, programming,
FCC rules and regulations, and any other topic deemed relevant.
2.
To determine subscriber satisfaction of the company and its CATV
system and services, the company shall provide to the City, beginning
in the sixth year of this franchise agreement and every even numbered
year thereafter, a subscriber satisfaction survey, conducted by a
reputable research company.
3.
If, after the public evaluation session, the City determines that
there exists a reasonable community need and/or interest in additional
channel capacity and/or upgraded facilities or technology, the City
may make such a request to the company by written notification. Within
120 days after receipt of the request, the company shall either agree
to the requested changes or notify the City that such changes are
not warranted under the generally accepted technological industry
standards.
4.
In the event that the company notifies the City that the requested
changes are unwarranted, the City may commission a study to be conducted
by an independent consultant with knowledge and expertise in cable
communications.
5.
The consultant shall submit a report to the City as to the feasibility
of increasing channel capability and/or upgraded facilities or technology,
taking into consideration the cost, the reasonable economic return
to the company, the generally accepted state of the art technology
for such systems of comparable size and age, and the balance of the
franchise term.
6.
Upon receiving the report of the consultant, the City may still reserve
the right to request the company to increase channel capacity and/or
upgrade facilities and technology. In the event the company refuses,
the City may pursue such legal or equitable remedies as may be available.
[Ord. 368, 6-6-1994]
(A)
The company shall at all times during the life of this franchise
be subject to all lawful exercise of the police power by the City.
The City reserves the right to adopt from time to time, in addition
to the provisions herein contained, such ordinances as may be deemed
necessary to the exercise of police power. Such regulation shall be
reasonable and not destructive to the rights herein granted and not
in conflict with the laws of the state or other local laws or regulations.
(B)
If the company fails to abide by the terms and conditions of this
chapter and any other applicable ordinances, the City may issue to
the company a written notice of violation, which notice shall specify
the details of said violation. If the company has not corrected said
violation within 60 days after receipt of the notice of violation,
the City may call a public hearing following adequate notice wherein
the City shall consider whether the company's failure to correct
constitutes a material breach of this chapter or any other applicable
ordinances, and wherein the company shall be afforded an opportunity
to be heard. Thereafter, the City may vote to terminate the company's
franchise, except that:
1.
The company's failure to comply shall not be grounds for termination
of the franchise if said noncompliance is due to inadvertence or to
factors beyond the reasonable control of the company;
2.
The company's failure to comply shall not be grounds for termination
of the franchise if said violation cannot be reasonably remedied satisfactorily
within 60 days. Assuming that the company has undertaken to comply
within 60 days and has notified the City in writing to that effect,
the City shall grant an extension of time sufficient to allow the
company to complete its correction of the violation.
[Ord. 368, 6-6-1994]
(A)
From and after the effective date of this chapter, it shall be unlawful
for any person to construct, install or maintain within any street
or public property of the City, or within any privately owned area
within the City which has not yet become a street or public property
but is designated or delineated as a proposed street or public property
on any tentative subdivision map approved by the City, any equipment
or facilities for distributing any video, audio, digital or data signals
through a CATV system, unless a franchise authorizing such use of
such street or public property has first been obtained on the same
terms and conditions, and unless such franchise is in full force and
effect.
(B)
It shall be unlawful for any person to make any unauthorized connection,
whether physically, electrically, acoustically, inductively or otherwise,
with any part of the franchised CATV system within the City for the
purpose of enabling himself or others to receive any video, audio,
digital or data signals, without payment to the operator of said system.
(C)
It shall be unlawful for any person, without the consent of the owner,
to wilfully tamper with, remove or injure any cables, wires or equipment
used for distribution of video, audio, digital or data signals.
[Ord. 368, 6-6-1994]
Any person violating or failing to comply with any of the provisions of Section 3-13-21 of this chapter shall be guilty of violating or failing to comply with provision of Section 3-13-21 of this chapter and shall be subject to a fine of not more than $200 for each day of the violation or failure to comply, and shall also be subject to penalty provisions contained in all applicable state and federal laws.
[Ord. 368, 6-6-1994]
The company shall have the authority to promulgate such rules,
regulations, terms and conditions governing the conduct of its business
as shall be reasonably necessary to enable the company to exercise
its rights and perform its obligations under this chapter, and to
assure uninterrupted service to each and all of its subscribers. However,
such rules, regulations, terms and conditions shall not be in conflict
with the provisions hereof or applicable state and federal law.
[Ord. 368, 6-6-1994]
If any section, subsection, sentence, clause or phrase of this
chapter is for any reason held illegal, invalid or unconstitutional
by the decision of any court or regulatory body of competent jurisdiction,
such decision shall not affect the validity of the remaining portions
hereof. The Council hereby declares that it would have passed ordinance
368 and each section, subsection, sentence, clause and phrase thereof,
irrespective of the fact that any one or more sections, subsections,
sentences, clauses, or phrases be declared illegal, invalid or unconstitutional.
The invalidity of any portion of this chapter shall not abate, reduce
or otherwise affect any consideration or other obligation required
of the company. All ordinances and parts of ordinances in conflict
with the provisions of this chapter are hereby repealed.
[Ord. 368, 6-6-1994]
The City and the company shall acknowledge and adhere to all
applicable federal rules and regulations, as they relate to cable
communication systems. All ordinances and parts of ordinances in conflict
with provisions of this chapter, the cable communication policy act
of 1984, the cable television consumer protection and competition
act of 1992, rules and regulations established by the federal communications
commission, and any other applicable federal statute related to this
subject, are hereby repealed.
[Ord. 368, 6-6-1994]
The City has conducted a public hearing affording due process
concerning the application for a renewal for an additional 25 years
by Continental Cablevision of Illinois, Inc., and has reviewed the
performance of the company and adequacy of this chapter, as amended.
The City does hereby grant to the company, pursuant to the provisions
of this chapter, a franchise for an additional twenty-five-year period
from and after September 1, 1994. This grant to Continental Cablevision
of Illinois, Inc., is not exclusive, and the City hereby reserves
the right to make a similar grant of franchise to any other company
on the same terms and conditions.
