[Adopted 10-21-2002 by Ord. No. 02035]
The purpose of this ordinance is to:
(1)
Provide for the franchising and regulation of cable television systems
within the Town of Suamico; and
(2)
Provide for the payment of a fee and other valuable consideration
to the Town for the use of Town streets and other public rights-of-way
in the construction and operation of cable television systems, and
to compensate the Town for costs associated therewith; and
(3)
Provide for the development of cable television as a means to improve
communication between and among the citizens and the Public Institutions
of the Town; and
(4)
Provide remedies and prescribe penalties for violation of this ordinance
and the franchise(s) granted hereunder.
For the purpose of this ordinance, the following terms, phrases,
words and their derivations shall have the meaning given herein, unless
the context clearly indicates that another meaning is intended. 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 the words in the singular number include the plural number.
The word "shall" is always mandatory.
The person, department or agency designated by the Town Board
to act in matters related to cable television. In the absence of any
specific designation by Town Board, the Town chairperson or his/her
designate shall act as the Agency.
A facility, consisting of a set of closed transmission paths
and associated signal generation, reception and control equipment
that is designed to provide cable service over the public rights-of-way
which include video programming and which is provided to multiple
subscribers within a community, but such a term does not include:
A facility that serves only to retransmit the television signals
of one or more television broadcast stations;
A facility that serves subscribers without using any public
right-of-way;
A facility of a common carrier which is subject, in whole or
in part, to the provisions of federal law, except that such facility
shall be considered a cable system [other than for purposes of Section
621 (c) of the Cable Communications Policy Act of 1984 (as it may
hereinafter be modified or amended)] to the extent such facility is
used in the transmission of video programming directly to subscribers;
or
Any facilities of any electric utility used solely for operating
its electric utility systems.
A portion of the electro-magnetic spectrum, capable of carrying
a video signal.
An electronic device, which converts signals to a frequency
not susceptible to interference within the television receiver of
a subscriber; and with an appropriate channel selector also permits
a subscriber to view all signals delivered at designated dial locations.
The present federal agency of that name as constituted by
the Communications Act of 1934, or any successor agency created by
the United States Congress.
An initial authorization or renewal thereof (including a renewal of an authorization, which has been granted pursuant to Section 13.04(5) of this ordinance issued by the franchising authority.
That portion of the Town for which a franchise is granted
under the authority of this ordinance. If not otherwise stated in
the franchise, the Franchise Area shall be the corporate limits of
the Town.
The Town of Suamico.
The natural person, partnership; domestic or foreign corporation,
association, joint venture, or organization of any kind granted a
franchise by the Board under this ordinance and its lawful and approved
successor, transferee or assignee.
All cable service receipts collected directly from customers
from the operation or use of all or part of a cable television system
franchised pursuant to this ordinance by the Grantee and its subsidiaries
including, but not limited to, revenue from Basic, Standard, premium
services, pay-per-view, optional service monthly fees, converter rentals
and connection fees. This shall not include any taxes on services
furnished by the Grantee herein imposed directly on any subscriber
or user by the state, local or other governmental unit and collected
by the Grantee on behalf of said governmental unit or separate revenues
of affiliates of a parent company not attributable to the parent company's
local cable operation.
An individual, partnership, association, joint stock company,
trust, corporation, or governmental entity.
The surface, the air space above the surface, and the area
below the surface of any public street, highway, lane, path, alley,
sidewalk, boulevard, drive bridge, tunnel, park, parkways, waterways,
or other public rights-of-way including public utility easements or
rights-of-way, and any temporary or permanent fixtures or improvements
located thereon now or hereafter held by the Town which shall entitle
the Town and the Grantee to the use thereof for the purpose of installing
and maintaining the Grantee's Cable Television System.
The distribution to subscribers of signals over the cable
television system, which the FCC authorizes the Grantee to carry.
All state accredited public educational institutions, including
elementary and secondary schools, and other education institutions
where the Town and Grantee jointly agree to provide service.
That it is readily available from two or more supply sources,
is able to perform the intended functions as demonstrated in a similar
community, and is economically feasible.
Any person who pays for the regular subscriber services and/or
any one or more of such other services as may be provided by the grantee's
cable television system and does not further distribute such service(s).
The Town Board of the Town of Suamico.
A person or organization utilizing a system channel or system
equipment and facilities for purposes of production and/or transmission
of materials, as contrasted with receipt thereof in a subscriber capacity.
(1)
Requirement of a Franchise. No person, firm, company, corporation
or association shall construct, install, maintain or operate a cable
television system within the Town, or within any other public property
of the Town, unless a franchise has first been obtained pursuant to
the provisions of this ordinance, and unless such franchise is in
full force and effect. Such franchise shall not take the place of
any other license or permit which may be legally required of the Grantee
in order to conduct such a business, or construct or install buildings,
structures, facilities or equipment within the Town.
(2)
Franchise Applications.
(a)
After receiving applications for a franchise, the Town, after
considering the legal, financial, technical and character qualifications
of the applicants, may grant one or more nonexclusive franchise creating
a right to construct and operate a cable television system within
the public ways of the Town. Franchise(s) may be granted to the applicant(s),
which in the Town's judgment may best serve the public interest;
provided, however, no provision of this ordinance shall be deemed
or construed as to require the Town to grant a franchise.
(b)
The application for an initial cable television franchise shall
be submitted to the Town Board or its designee, on a written application
form furnished by the town, and in accordance with procedures and
schedules established by the Town. The application form may request
facts and information the Town deems appropriate.
(c)
After passage of this ordinance, the Town shall grant no cable
operator a franchise in which terms and conditions differ materially
from those set forth in this ordinance. In the event that the Town
grants a non-identical franchise to another cable operator, Grantee
shall have the right to comply instead with any less stringent terms
and conditions of the subsequent franchise and to receive other appropriate
adjustments in the event there is no economically reasonable way for
the Grantee to reduce its franchise requirements to less stringent
levels.
(1)
Franchise Term and Non-Exclusivity. The term of an original franchise
shall not be more than 15 years from the date the franchise is accepted
by the Grantee. The term of a renewed franchise shall be no more than
15 years. No franchise granted pursuant shall be deemed to reserve
the right to grant other franchises to use and occupy the public rights-of-way
of the Town for cable television pursuant to the provisions of this
ordinance.
(2)
Notice to the Grantee. Except as otherwise provided in this ordinance,
the Board shall not meet to take any final action involving the review,
renewal revocation or termination of the Grantee's franchise
unless the Town has:
(3)
Modification of Franchise Obligations. The provisions of Section
625 of the Cable Communications Policy Act of 1984 (as it may hereinafter
be modified or amended) are adopted by reference and made a part of
this ordinance with the same force and effect as though set forth
herein.
(4)
Performance Evaluation Session.
(a)
The Town Board and the Grantee may hold annual performance evaluation
sessions. All such evaluation sessions shall be open to the public
and shall be advertised to the public with a Class 2 notice as specified
in the State Statutes. The Town shall notify the Grantee, in writing,
at least 60 days in advance, of each of the specified performance
evaluation sessions. In addition, either party may request a special
evaluation session.
(b)
All evaluation sessions shall be open to the public and published by the Town Board in a newspaper of general circulation in accordance with the notice requirements of Section 13.04(2) of this ordinance. Grantee shall notify subscribers of all evaluation sessions by announcement on at least one appropriate channel on the system.
(c)
Topics which may be discussed at any scheduled or special evaluation
session may include, but not be limited to, franchise fees, penalties,
applications of new technologies, services provided, programming offered,
customer complaints, judicial and FCC rulings, line extension policies
and Grantee or Town rules.
(d)
During a review and evaluation by the Town Board, the Grantee
shall fully cooperate with the Town Board. Grantee may be requested
to provide information, as prepared by Grantee in the ordinary course
of business, necessary to ascertain Grantee's compliance with
natural terms of franchise.
(5)
Franchise Renewal. Renewal of this franchise shall be governed by
applicable local, State and/or Federal Law.
(6)
Franchise Revocation Procedures.
(a)
Whenever a Grantee shall refuse, neglect or willfully fail to
construct, operate or maintain its cable television system or to provide
service to its subscribers in substantial accordance with the terms
of this ordinance and the franchise, or to comply with the condition
of occupancy of any public ways, or to make required extensions of
service, or in any applicable rule or regulation, or practices any
proven fraud or deceit upon the Town or its subscribers, or fails
to pay timely franchise fees or other payments, such as real estate
or personal property taxes due to the Town, or if a Grantee becomes
insolvent, or unable to or unwilling to pay its uncontested debts,
or is adjudged bankrupt or seeks relief under uncontested debts or
under the bankruptcy laws, then the franchise may be subject to revocation
pursuant to existing rules of the Board.
(b)
In the event the Town believes that grounds for revocation exist
or have existed, the Town shall notify a Grantee, in writing, setting
forth the nature and facts of such noncompliance. If, within 60 days
following such written notification, the Grantee has not furnished
reasonably satisfactory evidence that corrective action has been taken
or is being actively and expeditiously pursued, or that the alleged
violations did not occur, or that the alleged violations were beyond
the Grantee's control, the Town shall thereupon refer the matter
to the Town Board. Upon good cause shown as determined by the Board,
the Grantee shall receive an extension of the sixty-day time limit
contained herein.
(c)
The Board shall not revoke a franchise pursuant to Section 13.04(6)(a) of this ordinance until it has given notice to the Grantee that it proposes to take such an action and the grounds therefore. In any revocation hearing held by the Town Board, both the Grantee and the Town shall be afforded fair opportunity for full participation, including the right to introduce evidence and to question witnesses. The revocation hearing shall be conducted pursuant to Wisconsin Rules of Evidence and a transcript of proceeding shall be made. Grantee shall have the right to appeal an adverse decision to a Court of competent jurisdiction.
(d)
A Grantee shall not be subject to the sanctions of this section
for any act or omission wherein such act or omission was beyond the
Grantee's control. An act or omission shall not be deemed to
be beyond the Grantee's control if committed, omitted, or caused
by a corporation or other business entity, which holds a controlling
interest in the Grantee, whether held directly or indirectly. Further,
the inability of a Grantee to obtain financing, for whatever reason,
shall not be an act or omission, which is "beyond the Grantee's
control".
(e)
The termination of a Grantee's rights under a franchise
shall in no way affect any other rights the Town or Grantee may have
under the franchise or under any provision of law.
(f)
Upon lawful revocation of the franchise, Grantee shall be required to remove all aerial equipment or at its option to transfer, by sale or lease, its cable system to a third party within six months of the Board's notification of revocation, subject to Section 13.04(9), Transfer of Franchise provisions.
(7)
Franchise Fee.
(a)
The Grantee, in consideration of the privilege granted under
the franchise for the operation of a cable television system and associated
services provided over the same cable network within the public rights-of-way
of the Town and the expense of regulation pursuant to the franchise
incurred by the Town shall pay to the Town _____% of its annual gross
revenues during the period of its operation under the franchise; or
the maximum amount as may be set from time to time by controlling
Federal or State Law, if such maximum is less than 5%.
(b)
Grantee shall pay franchise fees to the Town quarterly, for
the preceding quarter as of March 31, June 30, Sept 30 and December
31 of each year, Each payment is due and payable within 45 days after
quarter end. Each payment shall be accompanied by a report of gross
revenues received during the three-month period.
(c)
The Town shall have the right consistent with the provisions
of this ordinance, to inspect the Grantee's cable revenue records,
the right of audit and the re-computation of any amounts determined
to be payable under this ordinance. Any additional amount due the
Town as a result of the audit shall be paid within 30 days following
written notice to the Grantee by the Town, which notice shall include
a copy of the audit report.
(d)
In the event that any franchise payment or recomputed amount
is not made on or before the applicable dates heretofore specified,
interest shall be charged from said due date at the rate of 1% per
month.
(8)
Insurance; Bonds; Indemnity.
(a)
Upon the granting of a franchise and within 30 days following the filing of the acceptance required under Section 13.07 of this ordinance and at all times during the term of the franchise, including the time for removal of facilities or management as a trustee as provided for herein; the Grantee shall provide the Town with a Certificate of Insurance, which names the Town of Suamico as an additional insured evidencing:
1.
A comprehensive general liability policy indemnifying, defending,
and saving harmless the Town, its officers, boards, commissions, agents
or employees from any or all third-party claims for loss or damage
for personal injury, death and property damage occasioned by the operations
of the Grantee under this franchise in the minimal amount of $3,000,000
per occurrence, combined single limit, for bodily injury and/or property
damage.
2.
A comprehensive general liability policy indemnifying, defending
and saving harmless the Town, its officers, boards, commissions, agents
and employees from and against all claims by any person whosoever
for property damage occasioned by the operation of Grantee under the
franchise herein granted, or alleged to have been so caused or occurred,
with a minimum liability of $3,000,000 for bodily injury, personal
injury or death of one or more persons or property damage in any one
occurrence.
3.
A workers' compensation and employers liability policy
must carry coverage for Statutory Workers' Compensation and employers
liability insurance with limits of liability as follows: Bodily injury
by Accident $100,000 each accident; bodily injury by Disease $500,000
Policy Limit; Bodily injury by Disease $200,000 Each Employee. The
policy must include the following coverage: occupational disease,
sickness and death; broad from All States Endorsement; and coverage
for any liability or claim that may be incurred under U.S. Longshoremen's
and Harbor Worker's Act, Admiralty (Jones) Act, and Federal Employee
Liability Act.
4.
A construction bond for all franchise construction running to the Town with good and sufficient surety approved by the Town in the amount specified in the franchise, or if no amount is specified therein, then in the sum of $250,000, conditioned upon the faithful performance and discharge of the obligations imposed by the ordinance and the franchise awarded hereunder from the date thereof, including, but not limited to, faithful compliance with the construction timetable proposed by the Grantee in its application as incorporated into the franchise, unless appropriate extension is approved by the Town Board. When regular subscriber service is available to more than 90% of the occupied dwelling units within the franchise area, as described in Section 13.06(1) of this ordinance, as certified by the Board, the bond requirement shall be removed. The Town's right to recover under the bond shall be in addition to any other rights retained by the Town under this ordinance and other applicable law.
(b)
The bond and all insurance policies called for herein shall
be issued by companies licensed to do business within the State of
Wisconsin, and shall be in a form satisfactory to the Town Attorney
and shall require 30 days' written notice of any cancellation
to both the Town and the Grantee. The Grantee shall, in the event
of any such cancellation notice, obtain, pay all premiums for, and
file with the Town written evidence of the issuance of replacement
bond or insurance certificates within 30 days following receipt by
the Town or the Grantee of any notice of cancellation.
(c)
The Grantee shall, at its sole cost and expense, indemnify,
defend and hold harmless the Town, its officials, boards, commissions,
consultants, agents and employees against any and all claims, suits,
causes of action, proceedings, and judgments for damage arising out
of copyright infringements and damages arising out of any failure
by Grantee to secure consents from the owners, authorized distributors,
or licenses of programs to be delivered by the Grantee's cable
system whether or not any act or omission complained of is authorized,
allowed, or prohibited by the franchise. Indemnified expenses shall
include, but not be limited to, all out-of-pocket expenses, such as
attorney fees, and shall also include the reasonable value of any
services rendered by the Town Attorney or his/her assistants, or any
consultants, agents and employees of the Town.
(9)
Transfer of Franchise. Under this paragraph, a transfer of franchise
is presumed to occur if 40% or more of the ownership interest is transferred.
(a)
A franchise granted under this ordinance shall be a privilege to be held in personal trust by the Grantee. Except as stated in Section 13.04(9)(c) of this ordinance it shall not be assigned, transferred, sold or disposed of by voluntary sale, sale and leaseback, merger, consolidation or otherwise by forced or involuntary sales, without prior consent of the Town. Such approval shall not be unreasonably withheld, i.e., in exercising the foregoing approval authority, the Town may reasonably consider the qualifications of the proposed purchaser to fulfill the lawful terms and conditions of this ordinance, but may not impose any additional terms or conditions as a prerequisite to approval. The proposed assignee agrees to comply with all the provisions of this ordinance and the franchise and reasonable amendments thereto, and must be able to provide proof of legal, technical, financial and character qualifications as determined by the Board.
(b)
Any sale, transfer or assignment authorized by the Board shall
occur according to normal business practices and be filed with the
Town.
(c)
Franchise Transfers.
1.
Grantee shall give the Town at least 90 days advance written
notice of Grantee's intention to transfer ownership or control
of a cable television system. During the term of a franchise agreement,
Grantee may not transfer ownership or control of a cable television
system without the approval of the Town. The Town may not unreasonably
withhold approval of an ownership transfer or a transfer of control
without good cause. If a hearing is necessary to determine if a transfer
may have an adverse effect, the Town may schedule a hearing to take
place within 45 days after the date on which the Town receives the
notice. If the Town withholds approval of an ownership transfer or
a transfer of control, the Town shall state its objections to the
transfer in writing within 60 days after the date on which the Town
receives the notice. Under this paragraph, a transfer of control is
presumed to occur if 40% or more of the ownership interest in a cable
television system is transferred.
2.
If between 10% and 40% of the ownership interest in a cable
television system is transferred, the cable operator shall inform
the municipality that authorized its franchise of the transfer in
writing within 30 days after the date of transfer.
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Notwithstanding anything to the contrary, this Section shall
not apply if the transfer or assignment is to an entity controlling,
controlled by or under common control of the Grantee.
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(d)
The consent of the Town Board to any sale, transfer, lease,
trust, mortgage or other instrument of hypothecation shall not constitute
waiver or release of any of the rights of the Town under this ordinance
or the franchise.
(10)
Records to Be Kept. Upon written request by the Town, the Grantee
will file any or all of the following annual records for the previous
calendar year. Such request will allow 60 days following receipt of
the request for the Grantee to file the records requested, such timing
to be extended 30 days upon reasonable written request by the Grantee.
(a)
Total end-of-year subscribers by service level.
(b)
Copies of subscriber agreements, handbooks, or other subscriber
communication materials requested.
(c)
Facilities report of total miles and new construction miles.
(d)
Any federal government filings as designated by the Town, which
are relevant to administration of the franchise.
(e)
Subscriber service call summary.
(f)
Subscriber complaint summary.
(g)
Annual report of the company, if a public corporation. If a
non-public corporation, a list of all current shareholders.
(h)
The names and addresses of all officers and directors of the
Grantee.
(i)
Names and addresses and phone numbers of Grantee's managerial
and engineering personnel available for emergency contact during off
hours.
(j)
A listing of all current prices for all cable services offered.
(1)
All charges to subscribers shall be consistent with a schedule of
fees as established by the Grantee for particular service levels.
Changes in the basic service fee schedule shall not take effect until
at least 30 days after notification of same to the Town.
(2)
The Grantee shall not, with regard to service, discriminate or grant
any preference or advantage to any person based on race, creed or
religion; provided, however, that the Grantee may establish different
service levels for different classes of subscribers, provided that
the Grantee not discriminate between any subscribers of the same class.
(3)
The Grantee shall be required to apprise in writing each new subscriber
of all applicable fees and charges for providing cable television
service.
(4)
Except as may be otherwise provided, a subscriber shall have the
right to have its service disconnected without charge; such disconnection
shall be made as soon as practicable and in no case more than 30 days
following notice to the Grantee of same and, if requested, shall remove
all of Grantee's equipment from the subscriber' property.
No Grantee shall enter into any agreement with a subscriber, which
imposes any charge for service following disconnection, except for
unreturned equipment and reconnection and subsequent monthly or periodic
charges and payment on any delinquent account, and those charges shall
be no greater than charges for new customers. This section shall not
prevent a Grantee from refusing service to any person because the
Grantee's prior accounts with that person remain due and owing.
(5)
Except as may be otherwise provided, a Grantee may offer service,
which requires advance payment of periodic service charge for more
than one year in advance subject to the conditions, contained in this
paragraph. A customer shall have the right, at any time, to have his/her
service disconnected with a refund of unused service charges paid
to the customer within 30 days from the date of service disconnection.
(1)
Franchise Areas.
(a)
Grantee will offer services to all occupied residential dwellings
without discrimination, in all areas within the Town, not otherwise
wired for cable service and in all annexed areas not otherwise wired
for cable service, provided, however, that area has a minimum of 30
occupied residential dwellings per cable mile as measured from the
nearest point of existing useable cable trunk.
(b)
Grantee must extend and make cable television service available
to any isolated resident within the franchise area requesting connection
at the standard connection charge, if the connection to the isolated
resident would require no more than a standard 125-foot aerial or
buried drop line.
(c)
With respect to requests for connection requiring an aerial
or buried drop in excess of 125 feet, any residential dwelling unit
located within 250 feet of the nearest usable tap (i.e., the connection
point for customer drops) may request a connection to the cable system.
For any non-standard installation, the Grantee may charge the cost
of time and materials. Charges for installation will be provided to
the resident prior to installation.
(2)
Systems Description and Service.
(a)
Minimum general design specifications shall be as follows: the
system will include all necessary electronic equipment, power supplies,
connectors, and other parts, components and equipment necessary to
provide a system with the frequency range of 50 to 750 MHZ.
(b)
The franchise is required by the FCC to meet certain technical
standards. If the FCC should delete its technical standards, the Town
hereby reserves the right to amend this ordinance to incorporate similar
standards and every franchise granted pursuant to this ordinance shall
be subject to such reserved power whether or not expressly so conditioned.
(c)
Grantee shall provide, without charge within the franchise area,
one service outlet activated for basic and standard service to each
Fire Station, Elementary, Middle and High School, Police Station,
Town Building, Town Hall Office and Public Library; however, if it
is necessary to extend cable plant more than 200 feet solely to provide
service to any such school or public building, except the Town Office,
the Town or other such building owner shall have the option either
of paying Grantee's direct costs for such extension in excess
of 200 feet, or of releasing Grantee from the obligation to provide
service to such building. Furthermore, Grantee shall be permitted
to recover, from any public building owner entitled to free basic
and Standard service, the direct cost of installing, when requested
to do so, more than one outlets, or concealed inside wiring, or a
service outlet requiring more than 200 feet of drop cable; provided,
however that the Grantee shall not charge for the provision of regular
basic and expanded Standard subscriber service to the additional service
outlets once installed. If an underground drop is required, the Town
or the School must provide conduit connectivity between the edge of
the property and the entry for the cable into the building.
(d)
At the request of the subscriber, a Grantee shall provide a
device capable of locking out any premium programming video and audio
signals.
(e)
Applications for a franchise or a franchise renewal shall to
the extent provided in Sec. 611 and Sec. 626, Cable communications
Policy Act of 1984, include proposals for the use of a local government
channel.
A local government access channel shall be made available for
the use of the Town free of charge on a shared, non-dedicated, space-available
basis with the City of Green Bay having priority over other users.
In the event that Grantor determines that it would like to construct
a return path to deliver live programming on the government access
channel, Grantor will be responsible for any related costs.
(3)
Operational Requirements and Records.
(a)
Grantee shall construct, operate and maintain the cable television
system in full compliance with the rules and regulations, including
applicable amendments, of the FCC and all other applicable federal,
state or local laws and regulations, including the latest editions
of the National Electrical Safety code and the National Fire Protection
Association National Electrical Code.
(b)
The cable television system and all its parts shall be subject
to inspection by the Town, and the Town hereby reserves the right
to review a Grantee's construction plans prior to the commencement
of construction.
(c)
Grantee will comply with the customer service standards set
forth below.
(4)
Cable system office hours and telephone availability.
(a)
The cable operator will maintain a local, toll-free or collect
call telephone access line which will be available to its subscribers
24 hours a day, seven days a week.
(b)
Trained company representatives will be available to respond
to customer telephone inquiries during normal business hours.
(c)
After normal business hours, the access line may be answered
by a service or an automated response system, including an answering
machine. Inquiries received after normal business hours must be responded
to by a trained company representative on the next business day.
(d)
Under normal operating conditions, telephone answer time by
a customer representative, including wait time shall not exceed 30
seconds when the connection is made. These standards shall be met
no less than 90% of the time under normal operating conditions, measured
on a quarterly basis.
(e)
The operator may be required to acquire equipment or perform
surveys to measure compliance with the telephone answering standards
above if a historical record of complaints indicates a clear failure
to comply.
(f)
Under normal operating conditions, the customer will receive
a busy signal less than 3% of the time.
(g)
Customer service center and bill payment locations will be open
at least during normal business hours and will be located within the
greater Green Bay area.
(5)
Installation, Outages and Service Calls.
(a)
Rights.
1.
A cable operator shall repair cable service within 72 hours
after a subscriber reports a service interruption or requests the
repair if the service interruption is not the result of a natural
disaster.
2.
Upon notification by a subscriber of a service interruption,
a cable operator shall give the subscriber a credit for one day of
cable service if cable service is interrupted for more than four hours
in one day and the interruption is caused by the cable operator.
3.
Upon notification by a subscriber of a service interruption,
a cable operator shall give the subscriber a credit for each hour
that cable service is interrupted if cable service is interrupted
for more than four hours in one day and the interruption is not caused
by the cable operator.
(b)
Standards.
1.
Under normal operating conditions, each of the following four
standards will be met no less than 95% of the time measured on a quarterly
basis.
2.
Standard installations will be performed within seven business
days after an order has been placed. "Standard" installations are
those that are located up to 125 feet from the existing distribution
system.
3.
Excluding conditions beyond the control of the operator, the
cable operator will begin working on "service interruptions" promptly
and in no event later than 24 hours after the interruption becomes
known. The cable operator must begin actions to correct other service
problems the next business day after notification of the service problem.
4.
The "appointment window" alternatives for installations, service
calls, and other installation activities will be either a specific
time or, at maximum, a four-hour time block during normal business
hours. (The operator may schedule service calls and other installation
activities outside of normal business hours for the express convenience
of the customer.)
5.
An operator may not cancel an appointment with a customer after
the close of business on the business day prior to the scheduled appointment.
6.
If a cable operator representative is running late for an appointment
with a customer and will not be able to keep the appointment, the
customer will be contacted. The appointment will reschedule, as necessary,
at a time, which is convenient for the customer.
(6)
Communications Between Cable Operators and Cable Subscribers.
(a)
The cable operator shall provide written information on each
of the following areas at the time of installation of service, at
least annually to all subscribers, and at any time upon request: products
and services offered; prices and options for programming services
and conditions of subscription to programming and other services;
installation and service maintenance policies; instructions on how
to use the cable service; channel positions of programming carried
on system; and billing and complaint procedures, including the address
and telephone number of the local franchise authority's cable
office.
(b)
Customers will be notified in writing of any changes in rates,
programming services or channel positions as soon as possible. Notice
must be given to subscribers a minimum of 30 days in advance of such
changes if the change is within the control of the cable operator.
In addition, the cable operator shall notify subscribers 30 days in
advance of any significant changes in the other information required
by the preceding paragraph.
(7)
Billing.
(a)
Bills will be clear, concise and understandable. Bills must
be fully itemized, with itemizations including, but not limited to,
basic and premium service charges and equipment charges. Bills will
also clearly delineate all activity during the billing period, including
optional charges, rebates and credits.
(b)
In case of a billing dispute, the cable operator must respond
to a written complaint from a subscriber within 30 days.
(d)
Credit. Credits for service will be issued no later than the
customer's next billing cycle following the determination that
a credit is warranted.
(8)
NORMAL BUSINESS HOURS
NORMAL OPERATING CONDITIONS
SERVICE INTERRUPTION
(a)
(b)
Definitions:
Those hours during which most similar businesses in the community
are open to serve customers. In all cases, "normal business hours"
must include some evening hours at least one night per week and/or
some weekend hours.
Those service conditions, which are within the control of
the cable operator. Those conditions, which are not within the control
of the cable operator, include, but are not limited to, natural disasters,
civil disturbances, power outages, telephone network outages, and
severe or unusual weather conditions. Those conditions, which are
ordinarily within the control of the cable operator include, but are
not limited to, special promotions, pay-per-view events, rate increases,
regular peak or seasonal demand periods, and maintenance or upgrade
of the cable system.
The loss of picture or sound on one or more cable channels.
Grantee shall exercise its best effort to design, construct,
operate and maintain the system at all times so that signals carried
are delivered to subscribers without material degradation in quality
(within the limitations imposed by the technical state-of-the-art).
Copies of all correspondence, petitions, reports, applications
and other documents sent to or received by Grantee from federal or
state agencies, which allege or contend any material violation of
federal or state regulations shall simultaneously be furnished by
the Grantee to the Town.
(9)
Service, Adjustment and Complaint Procedure.
(a)
Except for circumstances beyond the Grantee's control,
such as acts of God, weather, wars, riots and civil disturbances,
the Grantee shall establish a maintenance service capable of locating
and correcting major system malfunctions promptly. Said maintenance
service shall be available at all hours to correct such major system
malfunctions affecting a number of subscribers.
(b)
A listed local telephone number shall be made available to subscribers
for service calls at any time of the day or night. Investigative action
shall be initiated reasonably promptly in response to all service
calls, other than major outages. Corrective action shall be completed
as promptly as practicable. Appropriate records shall be made of service
calls showing when and what corrective action was completed. Upon
request, copies of such records shall be made available to the Town
on an annual basis for auditing purposes. These records will be maintained
for a minimum of two years.
(c)
The Grantee shall furnish each subscriber; at the time service
is installed, written instructions that clearly set forth procedures
for placing a service call or requesting an adjustment. Said instructions
shall also include the name, address and telephone number of the Town
and a reminder that the subscriber can call or write for information,
regarding terms and conditions of the Grantee's franchise if
the Grantee fails to respond to the subscriber's request for
installation, service or adjustment within a reasonable period of
time.
(d)
In the event a subscriber does not obtain a satisfactory response
or resolution to his/her request for service or an adjustment within
a reasonable period of time, he/she may advise the Town in writing
of his/her dissatisfaction; and the Town shall have the authority
to investigate the matter and order corrective action as may be appropriate.
(e)
The Grantee shall interrupt system service after 7:00 a.m. and
before 1:00 a.m. of the following day only with good cause and for
the shortest time possible and, whenever possible, only after cablecasting
notice of service interruption at least 24 hours in advance of the
service interruption. Service may be interrupted between 1:00 a.m.
and 7:00 a.m. for routine testing, maintenance and repair on any day
except Saturday or Sunday, or a holiday. The service interruptions
described herein do not include what is commonly referred to as "sweeping".
(10)
Use of Streets and Other Public Property. The authority granted above
is expressly conditioned upon compliance with the provisions of this
ordinance including, but not limited to the following regulations:
(a)
Approval of Construction and Inspection.
1.
Grantee, prior to the commencement of any construction or installation
of any facilities within the public streets, easement, or other public
property shall submit to the Town Administrator or designee a complete
set of plans and specifications, in a form to be approved by the Town
Administrator or designee, detailing the proposed construction and
installation. No such construction or installation may commence until
the Town Administrator or designee has granted written approval of
said plans and specifications.
2.
The Town shall have the right to inspect and supervise all construction
or installation work performed in, under, upon, over, or through any
street, easement or other public property. If, in the opinion of the
Town Administrator or designee, such inspection requires such additional
time of that department so that the same cannot be adequately provided
by existing staff, the Town Administrator or designee may petition
the Town Board to hire such additional employees as may be necessary
to provide adequate inspection.
(b)
Use of Existing Poles or Conduits.
1.
Nothing in this ordinance or any franchise granted hereunder
shall authorize the Grantee to erect and maintain in the Town any
new poles where existing poles of other companies or utilities are
servicing a geographic area. The Grantee shall apply to the Town Administrator
or designee for permission to erect any new poles, underground conduit
or appurtenances where none exist at the time the Grantee seeks to
install its network.
2.
Any franchise granted hereunder shall not relieve the Grantee
of any obligation involved in obtaining pole or conduit use agreements
from the utility companies or other persons maintaining poles or conduits
within any street or other public property, whenever the Grantee finds
it necessary to make use of said poles or conduits.
3.
In the event that the Grantee has its facilities located upon
poles or in conduits owned by other persons and the pole or conduit
is removed, relocated or abandoned, the Grantee may be required to
remove its facilities and provide services in another approved method.
(c)
Underground Facilities. The Grantee shall be required to install
its facilities underground in any location where other utilities are
underground and in other locations where deemed necessary and directed
by the Town Administrator or designee. In determining where Grantee's
facilities shall be installed underground, the Town Administrator
or designee shall not unreasonably require such installation and shall
limit such installation only to those situations where it is likely
that other utilities will be transferring their facilities underground
and in cases where the public health, safety and general welfare so
require. Any determination of the Town Administrator or designee hereunder
which adversely affects the rights of the Grantee may be appealed
to the Town Board. The determination of that Board regarding the necessity
for underground installation shall be final.
(d)
Excavation Permits and Street Obstruction Permit. The Grantee
shall not open or disturb the surface of any street in the Town for
any reason without first having obtained the permits required by the
Code of Ordinances of the Town of Suamico.
(e)
Facilities Not to Be Hazardous or Interfere. All installations
of equipment shall be of a permanent nature, durable, and installed
in accordance with good engineering practice, sufficient to comply
with all existing Town of Suamico regulations, and state laws so as
not to interfere in any manner with the right of the public or individual
property owner, and shall not interfere with the travel and use of
public places by the public, and during the construction, repair or
removal thereof, shall not obstruct or impede traffic unnecessarily
or unreasonably interfere with the use or enjoyment of private property
adjacent thereto. The Town Administrator or designee shall make inspection
to enforce the provisions of this section. Failure to comply with
reasonable orders of the Town Administrator or designee shall be cause
for notice of violation.
(f)
Restoration. In the event of disturbance of any street by Grantee,
it shall, at its own expense and in a manner approved by the Town
Administrator or designee, replace and restore such street in as good
a condition as before the work causing such disturbance was done.
(g)
Notice of Town Improvements. The Town reserves the right upon
reasonable notice to require the Grantee at its expense to protect,
support, temporarily disconnect, relocate or remove from Town's
streets any property of the Grantee by reason of traffic conditions,
public safety, street construction or vacation, change or establishment
of street grade, installation of sewers, storm sewers, culvert pipes,
drains, water pipes, power or communication lines, tracks or other
types of structure or improvements by governmental agencies or any
other structures of public improvements. Reasonable notice for this
provision of the ordinance shall be construed to mean that at least
30 days prior to such improvements. At any time after the expiration
of the thirty-day period, the Town may require action hereunder upon
two additional business days' notice.
(h)
Temporary Removal of Wire or Cable for Building Moving. The
Grantee shall, on the request of any person holding a building-moving
permit, temporarily raise or lower its wires to permit the moving
of said building. The persons requesting the same shall pay the expense
of such temporary removal, raising or lowering of wires, and the Grantee
shall have the authority to require such payment in advance. The Grantee
shall be given not less than 48 hours' written notice of any
move contemplated to arrange for temporary wire changes.
(i)
Reimbursement. In the event the Grantee fails to perform any
such work detailed in Section 13.06(5)(f), (g), and (h) of this ordinance
within the time provided for notice as contained therein, the Town
shall have the right to perform said work or enter into appropriate
contracts to have said work done at the sole expense of the Grantee.
(j)
Authority to Trim Trees. The Grantee shall have the authority
to trim trees upon and overhanging street so as to prevent the branches
of such trees from coming in contact with the wires and cable of the
company. All trimming is to be done under the supervision and direction
of the Director of Public Works after the explicit prior written notification
and approval of the Town and at the expense of the Grantee. The Grantee
may contract for such services; however, any firm or individual so
retained shall receive Town approval prior to commencing such activity.
(k)
Town's Right of Network Installation. The Town reserves
the right, during the life of any franchise granted hereunder, to
install and maintain upon or in the poles and conduits of the Grantee
any wire and pole fixtures necessary for municipal networks on the
condition that such installation and maintenance therefore does not
interfere with the operation of the Grantee.
(l)
Alternate Routing of Plant. In the event continued use of a
street is denied to the Grantee by the Town for any reason, the Grantee
will make every reasonable effort to provide service over alternate
routes.
(m)
Plant Records. The Grantee shall furnish the Town Administrator
or designee upon completing of construction, maps, specification,
and staking sheets, showing all locations of the Grantee's facilities.
Upon any change as to construction and removals, the Grantee shall
provide the Town Administrator or designee new and revised construction
sheet for the Town's records, except for individual subscriber
connecting wires or cables.
(n)
Construction and Installation - Obtaining Necessary Permits.
Within 90 days after acceptance of any franchise, the Grantee shall
proceed with due diligence and obtain all necessary permits and authorizations
which are required in the conduct of its business, including, but
not limited to, authorization to commence operation upon the filing
of a registration statement with the FCC, or other federal authorization,
microwave carrier licenses, any other permits, licenses and authorizations
to be granted duly constituted regulatory agencies having jurisdiction
over the operation of CATV systems or associated microwave transmission
facilities. Any utility joint use attachment shall be obtained within
90 days after acceptance of any franchise.
(o)
Construction and Installation. Within 90 days after obtaining
all necessary permits, licenses and authorizations, including right
of access to poles and conduits, Grantee shall commence construction
and installation of the cable television system. Within 180 days after
the commencement of construction and installation of the system, Grantee
shall proceed to render service to subscribers, and the completion
of the installation and construction shall be pursued with reasonable
diligence thereafter and in conformity with the proposal submitted
by any franchisee.
(p)
Easement Not Implied. The right of construction, including easements,
is not implied, except on locations where the Town has the authority
to grant such rights and easements, and then only in conformity with
the provisions of the Chapter. All other rights of construction, including
easements, shall be the responsibility of the operator.
(11)
Construction Schedule and Reports.
(a)
Upon accepting the franchise, Grantee shall, within 60 days,
file the documents required to obtain all necessary federal, state
and local licenses, permits and authorizations required for the conduct
of its business and shall submit monthly reports to the Town on progress
in this respect until all such documents are in hand. Failure of the
Grantee to pursue all necessary steps to secure the aforementioned
authorizations with due diligence shall constitute a substantial violation
of this ordinance.
(b)
The Grantee shall commence construction of the cable system
within 12 months after receiving all necessary permits, authorizations
and licenses, and shall complete construction of the system in the
franchise area and offer and be capable of delivering cable television
service in full accordance with this ordinance and the franchise granted
hereunder to subscribers in not less than 20% of the occupied dwelling
units in the franchise area within 24 months after commencing construction,
and shall be capable of delivering service to the remaining 80% of
the occupied dwelling units in the franchise area in the succeeding
twenty-four-month period thereafter, or such lesser periods as shall
be specified in the franchise. Notwithstanding the foregoing, failure
of the Grantee for any reason to commence construction within 24 months
of the date of acceptance of the franchise shall be grounds for revocation
of the franchise. For the purpose of this section, construction shall
be deemed to have commenced when the first aerial strand cable has
been attached to a pole or the first underground trench has been opened.
(c)
Franchise applications shall include a timetable showing the
percentage of occupied dwelling units within the Primary Service Area
that will be capable of receiving cable television service each year
of construction. Said timetable shall be incorporated into the franchise
and shall be enforceable as to the Grantee under the provision of
this ordinance.
(d)
Each Grantee shall fill all requests for cable service, once
facilities are in place consistent with the foregoing schedule of
service, within 30 days after the date of each request. A record of
all service requests shall be kept for at least once a year and shall
be available for public inspection at the local office of the Grantee
during regular office hours with reasonable advance notice.
(e)
Within three months after accepting the franchise, Grantee shall
furnish the Town a complete construction schedule and map setting
forth target dates by areas for commencement of service to subscribers.
The schedule and map shall be updated whenever the substantial changes
become necessary.
(f)
Every three months after the start of construction, Grantee
shall furnish the Town a report on progress of construction until
complete. The report shall include a map that clearly defines the
areas wherein regular subscriber service is available.
(12)
Protection of Privacy. The provisions of Section 134.42 of the Wisconsin
Statutes, exclusive of any provisions thereof relating to the penalty
to be imposed or the punishment for violation of said statute, are
hereby adopted and made a part of this section by reference. A violation
of any such provision shall be a violation of this section.
(1)
Limits on Grantee's Recourse.
(a)
The Grantee, by accepting the franchise, acknowledges that it
has not been induced to accept same by any promise, verbal or written,
by or on behalf of the Town or by any third person regarding any term
or condition of this ordinance of the franchise not expressed therein.
The Grantee further pledges that no promise or inducement, oral or
written, has been made to any Town employee or official regarding
receipt of the cable television franchise.
(b)
Acceptance of the ordinance shall not be construed as a waiver
of the Grantee of any existing or future right to challenge the legality
of any provision of this ordinance. Nothing herein or in Grantee's
acceptance may be construed to deny the Grantee the right to judicial
review of any action or threatened action by the Town arising out
of this ordinance.
(2)
Compliance with State and Federal Law. The Grantee shall, at all
times, comply with all laws of the state and federal government and
the rules and regulations of any federal or state administrative agency;
provided, however, this section shall not be construed to require
the Town to make an initial determination of any such violation. Grantee
and Town acknowledge that other state or federal laws, statutes or
regulation, may supersede this ordinance.
(3)
Special License. The Town reserves the right to issue a license,
easement or other permit to anyone other than the Grantee to permit
that person to traverse any portion of the Grantee's franchise
area within the Town in order provide service outside the Town. Such
license or easement, absent a grant of franchise in accordance with
this ordinance, shall not authorize nor permit said person to provide
a cable television service of any nature to any home or place of business
within the Town nor to render any service or connect any subscriber
within the Town to the Grantee's cable television system.
(4)
Conflict. In case of conflict or ambiguity between this ordinance,
the franchise and the Grantee's franchise application the Grantee
and the Town agree that the franchise shall prevail.
(5)
Failure to Enforce Franchise. The Grantee shall not be excused from
complying with any of the terms and conditions of this ordinance or
the franchise by any failure of the Town, upon performance or to seek
Grantee's compliance with any one or more of such terms or conditions.
(6)
Rights Reserved to Grantor. The Town hereby expressly reserves the
following rights:
(a)
To exercise its governmental powers, now or hereafter, to the
full extent that such powers may be vested in or granted to the Town.
(b)
To adopt, in addition to the provisions contained herein and
in the franchise agreement and in any existing applicable ordinance,
any such additional regulations of general applicability as it shall
deem necessary in the exercise of its police power.
(c)
The Grantee at all times in the installation, maintenance and
operation of the cable television system shall be subject to the terms
and conditions of Town ordinances of general applicability and to
the lawful exercise of the police power of the Town provided, however,
no subsequent municipal actions shall in any way abrogate the rights
granted to the Grantee herein.
(7)
Employment Requirement. The Grantee shall not refuse to neither hire,
nor discharge from employment, nor discriminate against any person
regarding compensation, terms, conditions or privileges of employment
without regard to race, religion, color, sex, or national origin.
The Grantee shall take continuous, positive actions through the Affirmative
Action Program to ensure fulfillment of this commitment as it relates
to the following: recruitment, advertising, or solicitation for employment;
hiring, placement upgrading, or promotion; treatment during employment;
rates of pay, benefits, or other forms of compensation; selection
for training and educational opportunities; tuition assistance; job
eliminations; social and recreational programs; and demotions and
terminations. The Grantee shall also ensure that promotional decisions
are in accord with equal opportunity principles by imposing only valid,
job-related requirements for promotional opportunities.
(8)
Time Essence of Agreements. Whenever this ordinance or the franchise
sets forth any time for any act to be performed by or on the behalf
of the Grantee, such time shall be deemed of the essence and the Grantee's
failure to perform within the reasonable time allotted shall be sufficient
grounds for the Town to invoke the remedies available under the terms
and conditions of this ordinance and the franchise.
(9)
Acceptance. This ordinance and the franchise and their terms and
conditions shall be accepted by the Grantee by written instrument
filed with the Town within 30 days after the granting of the franchise,
unless said period is extended by the Town Board at its sole discretion.
(10)
Publication Costs. The Grantee shall assume the cost of publication
of this ordinance and franchise agreement as such publication is required
by law and pay any related publication costs 30 days after an invoice
for the amount is provided by the Town.
(11)
Landlord Tenant Relations.
(a)
Interference with Cable Service Prohibited. Neither the owner
of any multiple unit residential dwelling nor his/her agent or representative
shall interfere with the right of any tenant or lawful resident thereof
to receive cable television service, cable regulated by and lawfully
operating under a valid and existing cable television franchise issued
by the Town.
(b)
Gratuities and Payment to Permit Service Prohibited. Neither
the owner of any multiple unit residential dwelling nor his/her agent
or representative shall ask, demand or receive any payment, service
or gratuity in any form as a condition for permitting or cooperating
with the installation of a cable communications service to the dwelling
unit occupied by a tenant or resident requesting service.
(c)
Penalties and Charges to Tenants for Service Prohibited. Neither
the owner of any multiple unit residential dwelling nor his/her agent
or representative shall knowingly penalize, charge or surcharge a
tenant or resident, or discriminate in any way against such tenant
or resident who requests or receives cable communications service
from a Grantee operating under a valid and existing cable communication
franchise issued by the Town.
(d)
Reselling Service Prohibited. No person shall resell, without
the expressed written consent of both the Grantee and the Town Board,
any cable service, program or signals transmitted by a cable television
company operating under a franchise issued by the town.
(e)
Protection of Property Permitted. Nothing in this section shall
prohibit a person from requiring that cable television system facilities
conform to laws and regulations and reasonable conditions necessary
to protect safety, functioning, appearance and value of premises or
the convenience and safety of persons or property.
(f)
Risks Assumed by Grantee. Nothing in this section shall prohibit
a person from requiring a Grantee to indemnify the owner, or his/her
agents or representatives, for damages or from liability for damages
caused by the installation, operation, maintenance or removal of cable
television facilities.
(12)
Theft of Service. The provisions of Wisconsin Statutes §§ 943.46
and 943.47 and the provisions of the Section 633 of the Cable Communications
Policy Act of 1984, and any other applicable laws, exclusive of any
provisions thereof relating to the penalty to be imposed or the punishment
for violation of said statute, are adopted and hereby made a part
of this section by reference. A violation of any such provision shall
be a violation of this section. Additionally, this code governs obtaining
cable services by fraud.
(13)
Penalties.
(a)
Notwithstanding any other remedies provided for in this ordinance,
or otherwise available under law, the Town shall have the power to
impose the following monetary penalties in the event the Grantee violates
any provision of this ordinance the franchise, or any rule or regulation
lawfully adopted there under:
1.
For failure to submit plans indicating expected dates of construction
of various parts of the system: up to $150 per day.
2.
For failure to commence operation in accordance with herein-stated
provisions: up to $150 per day.
3.
For failure to complete construction and installation of system
within proper time: up to $150 per day.
(b)
Persons, whether natural or artificial, or commercial entities
who violate the following provisions of this ordinance hereinbefore
deemed unlawful shall be subject to a fine not to exceed $400 for
each offense:
1.
Willful failure by a Grantee to comply with the laws, rules or regulations described in Section 13.06(4)(a) of this ordinance.
3.
Any person interfering with the provision of cable communications service as described in Section 13.07(11)(a), (b), (c), or (d) of this ordinance.
(c)
Procedure for Imposition of Penalties.
1.
Whenever the Town finds that Grantee has violated one or more
terms, conditions or provisions of this franchise, a written notice
shall be given to Grantee informing it of such violation or liability.
The written notice shall describe in reasonable detail the specific
violation so as to afford Grantee an opportunity to remedy the violation.
Grantee shall have 30 days subsequent to receipt of the notice in
which to correct the violation. Grantee may, within 15 days of receipt
of notice, notify the Town that there is a dispute as to whether a
violation or failure has, in fact, occurred. Such notice by Grantee
to the Town shall specify with particularity the matters disputed
by Grantee.
2.
The Town shall hear Grantee's dispute at its next regularly
or specially scheduled meeting. The Town shall supplement the decision
with written findings of fact.
3.
If, after hearing the dispute, the claim is upheld by the Town,
Grantee shall have 30 days from such a determination to remedy the
violation or failure. At any time after that thirty-day period, the
Town may assess penalties as listed above.
(14)
Grantee May Promulgate Rules. Grantee shall have the authority to
promulgate such rules, regulations, terms and conditions of its business
as shall be reasonably necessary to enable it to exercise its rights
and perform its services under this ordinance and the rules of the
FCC, and to assure uninterrupted service to each and all of its subscribers.
Such rules and regulations shall not be deemed to have the force of
law.
(15)
Delegation of Powers. A delegable right, power of duty of the Town
or any official of the Town under this ordinance may be transferred
or delegated by resolution of the Town Board to an appropriate officer,
employee, or department of the Town, or any other legal authority.
(16)
Severability. If any section of this ordinance or the franchise,
or any portion thereof, is held invalid or unconstitutional by any
court of competent jurisdiction or administrative agency, such decision
shall not affect the validity of the remaining portions hereof.
(17)
Effective Date. This ordinance shall become effective upon passage.
