(A)
ADDITIONAL AND AUXILIARY SERVICE — Service other than
service provided by the Grantee to the subscriber on a monthly basis
and for which the subscriber pays a set fee.
(B)
BASIC SERVICE — Subscriber services provided by the Grantee,
including the delivery of broadcast signals and programming originated
over the cable system, covered by the regular monthly charge paid
by all subscribers.
(C)
BROADBAND TELECOMMUNICATIONS NETWORK (BTN) (hereinafter referred
to as "System") — Any network of cables, optical, electrical,
or electronic equipment, including cable television systems, used
for the purpose of transmission of electrical impulses of television,
radio and other intelligences, either analog or digital for sale or
use by the inhabitants of the Town.
(D)
CABLE TELEVISION CHANNEL — A frequency band 6MHz in width within which a standard television broadcast
signal is delivered by cable to a subscriber terminal.
(E)
TOWN — The Town of Somers.
(F)
COMMENCE OPERATION — Shall mean that the operation will
be considered to have commenced when sufficient distribution facilities
have been installed so as to permit the offering of cable service
to at least 25% of the dwelling units located within the designated
"service areas".
(G)
TOWN BOARD (BOARD) — The Town Board of the Town of Somers.
(H)
DISCRETE CABLE TELEVISION CHANNEL — A signaling path provided
by a cable television system to transmit signals of any type to specified
subscriber terminals with the cable television system.
(I)
FCC — The Federal Communications Commission and any legally
appointed or elected successor.
(J)
FRANCHISE AREA — The Town or the areas within the limits
of the Town as they now exist or as they may change in the future
as the result of annexation.
(K)
GRANTEE — Any person, firm, company, corporation or association
to whom a franchise is granted by the Town Board of the Town hereunder
and the lawful successor or assigns of such persons, firm, company,
corporation or association.
(L)
HEADEND — The land, electronic processing equipment, antennas,
tower, building and other appurtenances normally associated, with
and located at the starting point of a Broadband Telecommuniciations
Network, excluding the studio.
(M)
REASONABLE NOTICE — The provision of notice of contemplated
action delivered at least 72 hours prior to such action.
(N)
STREET — All streets, roadways, highways, antennas, lanes,
alleys, courts, places, squares, curbs, sidewalks, easements, right-of-way
or other public ways in the Town which have been or may hereafter
be dedicated and open to the public use, or such other public property
as designated by law.
(O)
SUBSCRIBER — A purchaser of any service delivered by Grantee
pursuant to this franchise, and "subscriber" shall also include all
persons who are not required to pay any fee, but receive any service
delivered by Grantee pursuant to this franchise.
(P)
SUBSTANTIALLY COMPLETED — Operation will be considered
substantially completed when sufficient distribution facilities have
been installed so as to permit the offering of "full network service"
to at least 90% of the dwelling units in the area proposed to be served.
(A)
The franchise granted hereunder shall give to the Grantee the
right and privilege to construct, erect, operate, modify and maintain,
in, upon, along, across over and under streets [as defined in § 19.01(N)
herein], which have been or may hereafter be dedicated and open to
public use in the Town; towers, antennas, poles, cables, electronic
equipment and other network appurtenances necessary for the operation
of a Broadband Telecommunications Network in the Town utilizing wherever
possible existing facilities with the right upon application to the
designated Town Official, to set poles or other equipment on facilities
constructed by applicant. And said designated Town Official will not
unreasonably refuse permission for said construction. However, a non-proliferation
of poles policy for aesthetic purposes shall be considered. Where
existing utility service for telephone and electrical service is underground,
cable lines shall also be underground in that area.
(B)
The Town shall require all developers of future subdivisions,
when making provisions for or restrictions of utilities in the subdivision
plat to include cable television services. It is intended by this
paragraph to include cable television services in the same class as
public utilities.
The Grantee shall be subject to the following restrictions and
conditions with regard to the operation of the System, which conditions
and restrictions shall be in addition to any other subsections of
this Section or other Sections of the Municipal Code.
(A)
Cables, wires and other equipment in connection with such System
shall only be installed and operated on or under the public rights
of way upon the poles, or in underground conduit and equipment of
the existing utilities within the Town and their successors, or assigns,
where conduits exist and where space in installed conduits is available.
Installation of any additional poles, conduit or other equipment for
the installation of cables, wires, or other overhead equipment and
underground equipment in public rights-of-way in connection with the
said System shall be subject to the authorization of the Town Board
or its designated representative. In reaching a decision as to such
additional poles or equipment, the suggestions, if any, of the utility
companies servicing or planning to serve such area may be considered.
Underground installation shall always be preferred, provided however
the Grantee may construct its plant aerial so long as there is one
utility aerial.
(B)
Such wires, cables and other underground or overhead equipment
shall be located as may be required of telephone companies or power
lines by the Public Service Commission of Wisconsin. All equipment
shall be grounded in the same manner as required by the State of Wisconsin
Electrical Code for electrical services existing on the date of installation
of any equipment.
(C)
The Grantee shall pay all costs incurred by the Town in the
event of the necessity of restoration of the public rights-of-way
as a result of the Grantee's construction of its System or its
operation. The grantee and the Town shall coordinate the restoration
of the public rights-of-way if it becomes necessary for the Grantee
to open or otherwise disturb said public rights-of-way. The grantee
will also pay all costs incurred by the Town in regards to the regulation
of the cable television system, if any.
(D)
The Grantee shall, at its own expense, protect, support, temporarily
or permanently disconnect, relocate in the same public right-of-way,
or remove from a public right-of-way, any property owned or used by
the Grantee if required by the Town for reasons 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 and tracts or any other type of structures
or improvements by governmental agencies when acting in a governmental
capacity. The Town shall provide the Grantee notice of its intention
to make changes which might otherwise cause Grantee expense pursuant
to this paragraph and the Grantee shall have an opportunity to comment.
(E)
The Grantee shall, upon the request of any person holding a
building moving permit issued by the Town, temporarily raise or lower
its lines or disconnect or take them down to permit the moving of
buildings. The expense of such removal, raising or lowering of wires
shall be paid by the person requesting the same, and the Grantee shall
be given not less than three working days' advance notice to
arrange for such temporary wire changes.
(F)
All installations by the Grantee of cables and incidental equipment
shall comply in all respects with all laws, ordinances, rules and
regulations of the Federal Communications Commission, the State of
Wisconsin or any agency or department thereof, and of the Town or
any agency or department thereof, now or hereafter in effect.
(G)
The Grantee shall provide and maintain its equipment in such
condition and of such quality so that none of its service will adversely
affect radio and television reception.
(H)
Installation and maintenance of equipment shall be such that
standard color signals shall be transmitted with reasonable and acceptable
fidelity to all subscribers.
(I)
The Grantee shall not directly or indirectly require or solicit
of any subscriber the patronage of any designated person or company
engaged in the servicing, sale or repair of television receivers.
The foregoing shall not apply to the repair or adjustment of equipment
which is part of the System of the Grantee. Nothing in this paragraph
shall preclude Grantee from advertising or selling any merchandise
or services.
(J)
The Grantee shall submit to inspections by duly authorized personnel
of the Town and shall make available to such inspectors or duly authorized
personnel its facilities and equipment wherever situated. The Town
reserves the right to enact reasonable regulations regarding the installation
and maintenance of the facilities of the Grantee.
(K)
The Grantee shall have the authority to trim trees upon and
overhanging public rights-of-way of the Town so as to prevent the
branches of such trees from coming in contact with the wires and cables
of the Grantee, except that at the option of the Town, such trimming
may be done by it or under its supervision and direction.
This franchise may be transferred, assigned or sold only with
the written consent of the Town Board and approved only if the transferee,
assignee or purchaser agrees in writing to be subject to all the terms
and conditions of this Ordinance. The franchisee shall notify the
Town Board at least 30 days before a proposed transfer, assignment
or sale is to take effect. Such a notice must be in the form of a
written request to the Town Clerk, stating the reasons why such an
assignment is necessary and/or advisable and detailing the expected
changes in the operation of the System. Information as to the legal,
character, financial capability, technical and other qualifications
of the party or parties to whom the franchise is to be transferred,
assigned or sold, or by whom the same is to be operated, shall also
be provided. This section shall apply to any transfer, assignment,
or sale of greater than 25% of the ownership, operation or management
of the franchise. The Town Bard shall not withhold approval or consent
regarding the transfer, assignment or sale, without cause and unless
it is shown that the operation or management of the System will be
affected to the detriment of the public by approving said transfer,
assignment or sale. The provision shall not apply to either the mortgage
or hypothecation of the System in respect to any mortgages or the
remedies therein.
(A)
The term of this franchise shall be for a period of 15 years
and shall be in full force and effect for said term subject to the
provisions of this Ordinance.
(B)
Every two years, during the term of this franchise, during the
month of January, at a regular or special Town board Meeting, the
Town and the Grantee, at either party's option, may meet to discuss
application of new technologies, system performances, services provided,
programming offered, customer complaints, and judicial and FCC ruling
affecting the operation of the System. The parties shall compare the
services offered by Grantee to those of other stand-alone systems
in similar market situations, and if then appropriate, the parties
may re-negotiate any of the above provisions, provided that such changes
do not adversely affect economic viability of the franchise or adversely
affect programming and maintenance services to the subscribers.
(C)
At the twelfth year of the franchise, or if mutually agreed
by the Town and the Grantee during one of the review and renegotiations
described in Subsection (B) above, the Town and the Grantee shall
consider extension of this franchise for 15 additional years. The
purpose of this provision is to allow for maximum flexibility in the
financial planning on the part of the Grantee, and for the Town in
anticipating future services. It is further the purpose of this provision
to encourage the Town to examine the Grantee's performance and
to plan for the future in providing cable television service as well
as to reward the future in providing cable television service as well
as to reward the satisfactory performance of the Grantee. The Town
may at any time reward the Grantee for satisfactory performance by
the extension of the franchise for five year increments. This authority
is granted so as to provide incentive to the Grantee for satisfactory
performance and maximum service.
Should the Grantee's franchise be terminated or expire
and there is no judicial or administrative review of the termination
or expiration taking place, the Grantee shall begin removal within
90 days of termination or expiration all property owned by him and
placed on a public right-of-way unless permitted by the Town to abandon
said property in place or transfer said property to a purchaser.
(A)
The Grantee shall initiate construction and installation of
the broadband telecommunications network within six months of receiving
necessary authority from the Federal Communications Commission including
microwave licenses and a Certificate of Compliance and within 12 months
the Grantee shall commence operations. The Grantee shall have substantially
completed construction within the time periods set forth in any franchise
grant hereunder.
(B)
The Town may in its discretion extend the time for Grantee,
acting in good faith, to perform any act required hereunder. The time
for performance shall be extended or excused, as the cause may be,
for any period during which grantee demonstrates to the satisfaction
of the Town Board that Grantee is being subjected to delay or interruption
due to any of the following circumstances if reasonably beyond his
control:
(C)
Line extensions or installations beyond 150 feet will be paid
for by the subscriber at the Grantee's cost. It is intended by
this paragraph to protect the Grantee and the subscribers from subsidizing
unreasonable extensions.
(D)
The Grantee shall be allowed to furnish service from the head
end to other areas than the Town, provided however that the construction
or provision of services to areas other than the Town does not prohibit,
impede or delay the substantial completion date of the System in the
Town. If any such program service provided to said areas shall be
in any manner superior to the program service provided within the
Town, then such program service shall be provided to the Town.
The maximum initial rates which may be charged by the Grantee
to subscribers shall be those rates as set forth in the Grantee's
application. In the event of a rate increase of the basic service,
the Grantee shall provide the subscribers a thirty-day notice of such
increase. Said notice shall be forwarded to the Town Clerk of the
Town with supporting data for said increase.
(A)
The Town reserves the right to revoke any franchise granted
hereunder for just cause and with proper notice and rescind all rights
and privileges associated therewith in the event of noncompliance
by the Grantee with any material provisions of the Ordinance.
(B)
In the event that the Town shall decide to terminate for cause
a franchise granted hereunder, it shall give the Grantee 90 days'
written notice of its intention to terminate and state the cause.
If during the ninety-day period the cause shall be cured to the satisfaction
of the Town, the Town shall declare the notice to be null and void.
In any event before a franchise may be terminated, the Grantee must
be provided with an opportunity to be heard before the Town Board.
(A)
The Cable Communications System permitted to be installed and
operated hereunder shall be operated in conformance with the FCC's
Technical Standards 47 CFR § 76.601 et seq.
(B)
The Grantee shall continue, throughout the term of the franchise,
to maintain the technical standards and quality of service set forth
in this Section. Should the Town Board pass a resolution finding that
the Grantee has failed to maintain these technical standards and quality
of service, it shall enumerate the improvements to be made and the
Grantee shall make such improvements.
(C)
The Cable System shall carry and deliver to all subscribers
all of the signals as provided in the Grantee's application.
Grantee shall investigate all complaints within 24 hours of
their receipt and shall in good faith attempt to resolve them within
48 hours after notice. Grantee shall maintain a record of each complaint
and shall maintain said record for a period of two years. After said
two-year period, said records shall be made available to the Town
which may thereafter retain said records.
(A)
The Grantee shall maintain and by his acceptance of any franchise
granted hereunder agrees that he will maintain throughout the term
of the franchise, a general comprehensive liability insurance policy
against liability for loss or damage for personal injury, death or
property damage, occasioned by the operations of Grantee under any
franchise granted hereunder, in the amounts of (a) $1,000,000 for
bodily injury or death to any one person, within the limit, and (b)
$1,000 for property damage resulting from any one accident.
(B)
Indemnification of Town in Franchise Operation. It shall be
expressly understood and agreed by and between the Town and any Grantee
hereunder that the Grantee shall save the Town and its agents and
employees harmless from and against all claims, damages, losses and
expenses, including attorney's fees sustained by the Town on
account of any suit, judgment, execution, claim or demand whatsoever
arising out of but not limited to copyright infringements and all
other damages arising out of the installation, operation or maintenance
of the Broadband Telecommuniciations Network authorized herein, whether
or not any act or omission complained of is authorized, allowed or
prohibited by this Ordinance and any franchise granted hereunder.
This provision shall not apply to acts of the Town, its agents or
employees.
(C)
The insurance policies mentioned in Subsection (1) above shall
be obtained from the same company and shall contain an endorsement
stating that the policies are extended to cover the liability assumed
by the grantee under the terms of this Ordinance and shall contain
the following endorsement:
"It is hereby understood and agreed that this policy may not
be cancelled nor the amount of coverage thereof reduced until 30 days
after receipt by the Town Clerk by registered mail of a written notice
of such intent to cancel or reduce the coverage."
(D)
The Grantee shall maintain, and by its acceptance of any franchise
granted hereunder agrees, that it will maintain throughout the period
of initial construction a faithful, performance bond running to be
the Town in the penal sum of $25,000 conditioned that the Grantee
shall well and truly observe, fulfill and perform each term and condition
of this Ordinance and any franchise granted hereunder and that in
case of any breach of condition of the bond, the amount thereof shall
be forfeited to the Town as liquidated damages.
Upon completion of the initial construction phase of the physical
plant the Grantee will so inform the Town Board, advising them therein
that the bond of faithful performance is being eliminated.
The technical standards including measurements of the construction
and Systems to be operated by the Town shall meet or exceed the minimum
standards established by the Federal Communications Commission so
as to provide all subscribers with a signal free of audible or visible
noise and distortion.
The Grantee shall comply with all conditions imposed by the
Federal Communications Commission and by the State of Wisconsin. Failure
to obtain any required licenses or to comply with all such conditions
shall be grounds to revoke the franchise under the procedure of § 19.09
without liability assigned to the Town.
(A)
Use of Data from Subscriber. The Grantee, its successor or assigns,
Town or any person shall not initiate or use any form, procedure or
device for procuring information or data from cable subscribers'
terminals by use of the cable system, without prior authorization
from each subscriber so affected. Valid authorization shall mean approval
from the subscriber for a period of time not to exceed one year and
shall not have been obtained from the subscriber as a condition of
service.
(B)
Subscriber Data. The Town or a Grantee or any person shall not
without prior written valid authorization from the Town Board, provide
any data identifying designated subscribers.
In addition to the procedures specified in § 19.20,
the following shall be in effect:
(A)
After notice and hearing the Town may fine the Grantee if Grantee
fails to provide the service specified in this Chapter, or any applicable
government regulation. Grantee is not responsible for failure to provide
adequate service which is caused by acts of God, strikes, governmental
or military action, or other conditions beyond its control.
(B)
Upon interruption of service, except for acts of God, strikes,
governmental or military action, or with express prior permission
of the Town, any subscriber whose service is interrupted for more
than 48 consecutive hours shall be entitled to a rebate of the subscriber's
monthly bill prorated on a daily basis for each 24 hour period of
continuously interrupted service.
(C)
If Grantee violates any provision of this Chapter, it shall
forfeit, together with the costs of prosecution, a sum of not less
than $50 nor more than $500 for each violation.
The Grantee shall provide free one-time connection to any governmental
building or facilities passed by the cable.
Grantee shall provide free one-time connection to any public,
private or parochial school or university passed by the cable. Grantee
shall provide connection to one central point, and the school at its
expense may distribute the signal within said facility. The distribution
network must be approved by Grantee to assure signal quality and prevent
signal radiation.
(A)
Unauthorized Connections Prohibited. It shall be unlawful for
any firm, person, group, company, corporation or governmental body
or agency without the express consent of the Grantee, to make any
connection, extension or division, whether physically, acoustically,
inductively, electronically or otherwise, with or to any segment of
the Grantee's cable system. It shall further be illegal for any
firm, person, group, company, corporation or governmental body or
agency without the express consent of the Grantee to possess or receive
any signals or transmissions including specifically the transmission
of messages or programming over the cable system on a pay channel
or pay per program basis.
(B)
Unauthorized Sale. It shall be unlawful for any firm, person,
group, company, corporation or governmental body or agency to sell
or solicit for sale any facilities, devices or appurtenances used
for the purpose of any or all acts unlawful as prohibited by Subsection
(A) above.
(C)
Removal Or Destruction Prohibited. It shall be unlawful for
any firm, person, group, company, corporation or governmental body
or agency to willfully interfere, tamper, remove, obstruct or damage
any part, segment or content of a franchise Broadband Telecommunications
Network for any purpose whatsoever.
(D)
Violation. Any firm, person, group, company, corporation or
governmental body or agency convicted of violation of this section
shall, for each offense, forfeit a sum of not less than $100 nor more
than $500 together with costs of such prosecution. Violation of this
section shall be considered a separate offense for each twenty-four-hour
period the violation continues following notification of discovery.
The Town shall have the right to intervene and the Grantee specifically
agrees by his acceptance of a franchise hereunder not to oppose such
intervention by the Town in any suit or proceeding to which the Grantee
is a party.
Grantee shall not, as to rates, charges, service, service facilities,
rules, regulations, employment, or in any other respect, make or grant
any undue preference or advantage to any party, nor subject any party
to any unlawful prejudice or disadvantage.
If any subsection, sentence, clause or phrase of this Ordinance
is held unconstitutional or otherwise invalid, such infirmity shall
not affect the validity of this Ordinance as a whole, and any portions
in conflict are hereby repealed, provided however, that in the event
the Federal Communications Commission declares any subsection invalid,
then such subsection or subsections shall be renegotiated by the Town
and the Grantee.
