[HISTORY: Adopted by the Common Council of the City of Rice Lake 3-28-2000
by Ord. No. 00-5. This ordinance also repealed former Ch.
A262, Cable Television Franchise, adopted as Title 9, Chapter 4 of the Code
of Ordinances. The cable television franchise agreement; Exhibit A, City Buildings
and Schools to Receive Free Service; and Exhibit B, Origination Points, which
were appended to Ord. No. 00-5, are on file and available
for review at the city offices. Amendments noted where applicable.]
The purpose of this chapter is to authorize the City of Rice Lake to
grant a nonexclusive franchise to one or more grantees to construct, operate
and maintain within the city a cable television system for the distribution
of television signals, frequency-modulated radio signals and any other electronic
signals capable of being transmitted on a coaxial or fiber optic network,
including data transmission and closed circuit television programs, provided
that the grantee conforms to the conditions, limitations and requirements
of this chapter.
This chapter shall be known and may be cited as the "City of Rice Lake
Cable Television franchise Ordinance."
For the purpose of this chapter, the following terms, phrases, words
and their derivations shall have the meanings given herein. When not inconsistent
with the context, words used in the present tense include the future, words
in the plural number include the singular number and words in the singular
number include the plural number.
Any service tier which includes, at a minimum, all signals of domestic
television broadcast stations provided to any subscriber (except a signal
secondarily transmitted by satellite carrier beyond the local service area
of such station), any public, educational and governmental programming required
by the franchise and any additional video programming signals or service added
to the tier by the grantee.
Title VI of the Communications Act of 1934, as amended, 47 U.S.C.
§ 151 et seq., and all other provisions of the Cable Communications
Policy Act of 1984, Pub. L. No. 98-549, the Cable Television Consumer Protection
and Competition Act of 1992, Pub. L. No. 102-385, the Telecommunications Act
of 1996, Pub. L. No. 104-104, and any amendments thereto.
Any person or group of persons who provides cable service over a
cable system and directly or through one or more affiliates owns a significant
interest in such a cable system or who otherwise controls or is responsible
for, through any arrangement, the management and operation of such a cable
system.
The one-way transmission to subscribers of video programming or other
programming service; and subscriber interaction, if any, which is required
for the selection or use of such video programming or other programming service.
Any facility owned by a grantee consisting of a set of closed transmission
paths and associated signal generation, reception and control equipment that
is designed to provide cable service which includes video programming and
which is provided to multiple subscribers within the franchise area, but such
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 Title II of the Communications Act of 1934, as amended,
except that such facility shall be considered a cable system to the extent
such facility is used in the transmission of video programming directly to
subscribers, unless the extent of such use is solely to provide interactive
on-demand services;
An open video system that complies with Section 653 of the Cable Act,
including any amendments thereto; or
Any facilities of any electric utility used solely for operating its
electric utility systems.
A portion of the electromagnetic frequency spectrum, or any other
means of transmission (including, without limitation, optical fibers or any
other means now available or that may become available), which is capable
of carrying a video signal, an audio signal, a voice signal or a data signal
or any other electronic signal.
The City of Rice Lake, Wisconsin, its officers, employees and departments
or any duly appointed designee thereof, including, but not limited to, the
Common Council and the Rice Lake Cable Commission, and the area within the
territorial limits of the city and any area subsequently added thereto by
annexation or otherwise.
The present governing body of the city or any successors to the legislative
power of said body or any duly appointed designee thereof.
The power or authority to direct or cause the direction of the management
and policies of the grantee.
An electronic device that will shift any television channel(s) from
one to another within the UHF or VHF frequency spectrum.
A building or that part of a building used as a home or residence.
Any video programming provided over a cable system, regardless of
service tier, including installation or rental of equipment used for the receipt
of such video programming, other than:
Video programming carried on the basic service tier;
Video programming offered on a pay-per-channel or pay-per-program basis;
or
A combination of multiple channels of pay-per-channel or pay-per-program
video programming offered on a multiplexed or time-shifted basis so long as
the combined service consists of commonly identified video programming and
is not bundled with any regulated tier of service.
The Federal Communications Commission, its designee, or any successor
thereto.
An initial authorization, or renewal thereof issued by the city,
as franchising authority, to a cable operator to construct, operate and maintain
a cable system.
A contractual agreement entered into between the city and any grantee
hereunder which is enforceable by the city and said grantee and which sets
forth the rights and obligations between the city and said grantee in connection
with the franchise.[1]
Any tax, fee or assessment the city imposes on the grantee solely
because of the grantee's status as such. The term "franchise fee" does
not include:
Any tax, fee or assessment of general applicability (including any such
tax for or assessment imposed on both utilities and cable operators or their
services, but not including a tax, fee or assessment which is unduly discriminatory
against the grantee);
Capital costs which are required by the franchise to be incurred by
grantee for PEG access facilities;
Requirements or charges incidental to the awarding or enforcing of the
franchise, including payments for bonds, security funds, letters of credit,
insurance, indemnification, penalties or liquidated damages; or
Any fee imposed under Title 17, United States Code.
A person to whom a franchise under this chapter is granted and the
lawful successors or assigns of such person.
Any and all revenues derived directly or indirectly by a grantee,
its affiliates, subsidiaries, parents or any person in which the grantee has
a financial interest from or in connection with the operation of the cable
system pursuant to this chapter. "Gross revenues" includes compensation in
whatever form, derived from all cable services, cable operations and cable-related
activities within the franchise area, including, but not limited to:
Revenues from subscriber rates, pay television, premium channels, service
tiers, service clusters, the provision of Internet access, institutional networks,
on-air advertising, installations, reconnections, franchise fees or similar
fees;
Rebates or commissions received from travel, home shopping or similar
services, or leased access; and
Any, and all, compensation from all ancillary cable services, cable
operations and cable-related activities within the franchise area.
Effective January 1, 2003, gross revenues shall not, however, include
the franchise fee charged to subscribers presently at 5% of gross receipts.
Therefore, a fee upon the franchise fee shall not be required to be paid by
the franchisee (or its subscribers).
[Added 2-10-2004 by Ord. No. 04-02]
All areas in the city having at least 20 dwelling units per strand
mile.
Those hours during which similar businesses in the city are open
to serve customers. In all cases, "normal business hours" must include some
evening hours at least one night per week and some weekend hours.
Those service conditions which are within the control of the grantee.
Those conditions which are not within the control of the grantee 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 grantee 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.
Any natural person or any association, firm, partnership, joint-stock
company, limited liability company, joint venture, corporation or other legally
recognized entity, private or public, whether for-profit or not-for-profit.
Channel capacity designated for public, educational or governmental
use and the facilities and equipment for the use of such channel capacity.
Information that a cable operator makes available to all subscribers
generally.
The physical reconstruction of a cable television system, often involving
the replacement of amplifiers, power supplies, passive devices and sometimes
the cable, strand, hardware and subscriber drops.
A category of cable service or other services provided by a cable
operator and for which a separate rate is charged by the cable operator.
The surface of and space above and below any public street, road,
highway, freeway, lane, alley, court, parkway or drive, or any public right-of-way,
now or hereafter existing as such within the city.
Any person legally receiving any cable service provided by a grantee
pursuant to this chapter.
A major cable system improvement that usually includes replacing
active components, and in some cases passive components, to expand the system's
channel capacity. An upgrade is generally not as involved as a rebuild.
Programming provided by, or generally considered comparable to, programming
provided by a television broadcast station.
[1]
Editor's Note: The cable television franchise agreement, along
with Exhibit A, City Buildings and Schools to Receive Free Service, and Exhibit
B, Origination Points, are on file and available for review at city offices.
A.Â
Grant. In the event the city shall grant to a grantee
or renew a nonexclusive, revocable franchise to construct, operate and maintain
a cable system within the franchise area, such franchise shall constitute
both a right and an obligation to provide the cable service as required by
this chapter and by the terms of the franchise agreement.
B.Â
Franchise required. Subject to federal and state law,
no person shall be allowed to commence construction of a cable system or to
otherwise occupy or use the streets within the incorporated limits of the
City of Rice Lake to offer cable service without first obtaining a franchise
granted in accordance with the provisions of this chapter.
C.Â
Franchise nonexclusive. Any franchise granted under this
chapter shall, pursuant to the terms and conditions of this chapter, be revocable
and nonexclusive. The city reserves the right to grant additional franchises
to any person at any time.
D.Â
Revisions. Any franchise granted under this chapter is
hereby made subject to any revisions of this chapter and the general ordinances
of the city, provided that such revisions do not materially and adversely
alter the grantee's obligations or impair the grantee's rights set
out in any franchise agreement.
E.Â
Term. The term of any initial or renewed franchise granted
under this chapter shall be established in the franchise agreement. In no
event, however, shall any franchise granted under this chapter exceed the
term of 15 years.
F.Â
Mortgage or pledge of system. Nothing in this chapter
shall be deemed to prohibit a grantee from mortgaging or pledging of its system
or any part thereof. However, any such mortgage or pledge shall be subject
to and subordinate to the right of the city under this chapter, any franchise
agreement or applicable laws.
G.Â
Previous rights abandoned. The franchise shall be in
lieu of any and all other rights, privileges, powers, immunities and authorities
owned, possessed, controlled or exercisable by the grantee or any successor
pertaining to the construction, operation, maintenance, upgrading or reconstruction
of a cable system in the city. The acceptance of the franchise shall operate,
as between the grantee and the city, as an abandonment of any and all of such
rights, privileges, powers, immunities and authorities within the city. All
construction, operation, maintenance and reconstruction by the grantee of
any cable system in the city shall be under this chapter and the franchise
agreement and not under any other right, privilege, power, immunity or authority.
H.Â
Subject to city's police power/other regulatory
agencies' rules and regulations. The grantee shall at all times during
the life of the franchise be subject to all lawful exercise of the police
power by the city and other duly authorized regulatory state and federal bodies
and shall comply with any and all codes which the city has adopted or shall
adopt applying to the public generally and to other grantees.
I.Â
Pole/conduit use agreements required. The franchise shall
not relieve the grantee of any obligation involved in obtaining pole- or conduit-use
agreements from any person, including the city, who maintains poles or conduits
in the streets of the City of Rice Lake, whenever the grantee finds it necessary
to make use of such poles or conduits.
J.Â
No right of property. Anything contained herein to the
contrary notwithstanding, the franchise shall not impart to the grantee any
right of property in or on city-owned property.
K.Â
Use of grantee's facilities. To the extent the grantee
has the legal right to allow the city or any one of its departments to use
the grantee's facilities, the grantee agrees that the city and its departments
shall have the right to install and maintain, free of charge, upon the poles
and within the underground pipes and conduits of the grantee, any wires and
fixtures desired by the city or its departments to the extent that and so
long as such installation and maintenance does not interfere with the existing
and future operations of the grantee.
L.Â
Franchise binding. Anything contained herein to the contrary
notwithstanding, all provisions of this chapter shall be binding upon the
grantee, its successors, lessees or assignees.
A.Â
Application. All applicants for a franchise under this
chapter shall prepare and file a written application with the city in such
form as the city shall designate.
B.Â
Franchise renewal applicants. All applicants seeking
to renew a franchise under this chapter shall seek such renewal in accordance
with the Cable Act.
C.Â
Review of application. Upon receipt of an application
under this chapter, the city shall review the same and make the application
available for public inspection at such places as the city shall designate.
A decision shall be made on the application by the city after evaluation thereof.
The city may grant one or more franchises or may decline to grant any franchise.
A.Â
Renewal request. The city shall determine whether to
renew a franchise granted under this chapter in the event that the grantee
files a written request for such a renewal. Unless otherwise provided by the
Cable Act, the grantee shall submit such a request at least 30, but no sooner
than 36, months before the expiration of the franchise. At the time of such
request, the city may revise this chapter, reevaluate the needs of the community
for cable service and review the performance of the grantee. The city shall
conduct any proceedings necessary to consider the renewal request.
B.Â
Renewal criteria where cable act applies. To the extent
applicable, the Cable Act shall govern the procedures and standards for renewal
of any franchise awarded pursuant to this chapter. Accordingly, the city shall
renew or extend a franchise unless it finds that:
(1)Â
The grantee has not substantially complied with the material
terms of this chapter or the franchise agreement, or with applicable law;
(2)Â
The quality of the grantee's service, including
signal quality, response to consumer complaints and billing practices, but
without regard to the mix or quality of cable services or other services provided
over the system, has been unreasonable in light of community needs;
(3)Â
The grantee lacks the legal, technical or financial ability
to provide the services, facilities and equipment it proposes to provide;
or
(4)Â
The grantee's proposal does not reasonably meet
future cable-related community needs and interests, taking into account the
cost of meeting such needs and interests.
C.Â
Renewal where cable act does not apply. To the extent
that the Cable Act is not applicable, the city in its sole discretion and
judgment shall have the right to grant, deny or conditionally grant renewal
of a franchise, provided that the city shall not unreasonably refuse to renew
the franchise or unreasonably condition the renewal. The conditions the city
may place on its approval shall include, but are not limited to, remedy of
historical or existing violations of the franchise agreement or this chapter;
payment of all fees, penalties and liquidated damages owed by the grantee
at the time of the renewal; acceptance of any updated ordinance; and acceptance
of any updated franchise agreement.
A.Â
City's right to revoke and grounds therefor. In
addition to all other rights which the city has pursuant to law or equity,
the city reserves the right to revoke, terminate or cancel any franchise granted
under this chapter, in the event that one or more of the following occur,
each of which shall be deemed a material breach of the franchise:
(1)Â
The grantee violates any material provision of this chapter
or its franchise agreement with the city; or
(2)Â
The grantee violates any state or federal law applicable
to the grantee's operation within the city; or
(3)Â
The grantee practices any fraud or deceit upon the city
or a subscriber; or
(4)Â
The grantee ceases to provide service over the cable
system for a period exceeding 14 days for any reason within the grantee's
control or abandons the management and/or operation of the system; or
(5)Â
The grantee materially misrepresents a fact in the application
for or negotiation of, or renegotiations of, or renewal of, its franchise;
or
(6)Â
The grantee fails to provide or maintain the insurance
required under this chapter.
B.Â
Notice and opportunity to cure prior to revocation. In
the event that the city determines that the grantee has committed a material
breach of the franchise, the city may make a written demand on the grantee
that the grantee cure such breach and inform the grantee that continued breach
may be cause for revocation. If the breach is not cured within 30 days following
such demand, or such other longer time as the city in its sole discretion
may allow, the city may revoke the grantee's franchise and terminate
the franchise agreement pursuant to the revocation procedures set out in § 262-8.
The city shall not revoke any franchise granted under this chapter without
giving the grantee an opportunity to cure any breach that may be cause for
revocation, provided that the breach is one that can be cured.
C.Â
Notice and opportunity for hearing. The city shall not
revoke any franchise without giving the grantee reasonable notice and opportunity
for a public hearing before the Common Council. At such public hearing, the
grantee shall have the right to examine witnesses under oath and give testimony.
D.Â
Revocation resolution. In the event that the city determines to revoke a grantee's franchise under this section, the city shall, by resolution, declare that the grantee's franchise is terminated and may declare, to the extent applicable, any letters of credit, security funds and bonds forfeited and shall undertake the revocation procedures set out in § A262-8.
A.Â
Removal of facilities/continued operation. In the event that a grantee's franchise is revoked, expires or is otherwise terminated, the city may order the grantee to remove its facilities from the franchise area within 90 days of the date of such order, or the city may require the grantee to continue operating its cable system for a period not to exceed 24 months as indicated in Subsection D below.
B.Â
Restoration of property. In removing its facilities from
the franchise area, the grantee shall refill, at its own expense, any excavation
it makes and shall leave all public ways and streets in as good condition
as that prevailing prior to the grantee's removal of its facilities without
affecting the electrical or telephone cables, wires or attachments of any
other persons. The grantee's insurance, indemnity obligations, performance
bond(s), letter(s) of credit and security fund(s) required by this chapter
and by the franchise agreement shall continue in full force and effect during
the period of removal and until full compliance by the grantee with the terms
and conditions of this section.
C.Â
Restoration by city/reimbursement of costs. If the grantee fails to complete any work required by Subsections A and/or B above, or any other work required by the city within 30 days after receipt of written notice, and to the satisfaction of the city, the city may cause such work to be done and the grantee shall reimburse the city for the cost thereof within 30 days after receipt of an itemized list of such costs, or the city may recover such costs through the letter of credit, security fund or bonds provided by the grantee. The city shall be permitted to seek legal and equitable relief to enforce the provisions of this section.
D.Â
Extended operation. Subject to federal, state and local
law, upon either the expiration or revocation of a franchise, the city may
require the grantee to continue to operate the cable system for a defined
period of time not to exceed 24 months from the date of such expiration or
revocation. The grantee shall, as trustee for its successor in interest, continue
to operate the cable system under the terms and conditions of this chapter
and the franchise agreement and to provide the regular cable service and any
of the other services that may be provided at that time.
A.Â
Lesser remedies. Nothing shall prohibit the city from invoking lesser remedies than revocation for violations of the provisions of this chapter or the franchise agreement, including imposing liquidated damages as set out in Subsection B below.
B.Â
Liquidated damages.
(1)Â
If, after notice to the grantee and opportunity to cure,
the Cable Commission determines that the grantee has failed to perform any
material obligation under this chapter or the franchise agreement, or fails
to do so in a timely manner, the Commission may, at its option and in its
sole discretion, assess liquidated damages against the grantee up to the amounts
set forth below:
(a)Â
For failure to comply with any of the customer service standards adopted by the city in this chapter (including those standards set out in §§ A262-19 and 262-30) or set out in the franchise agreement, the grantee shall pay to the city the sum of $100 per day for each standard violated for each day the grantee fails to comply with such standard.
(b)Â
For failure to furnish, maintain or offer cable services to any potential subscriber within the franchise area in accordance with § A262-13 of this chapter or upon order of the city, the grantee shall pay to the city the sum of $100 per day for each day such failure occurs or continues.
(c)Â
For failure to obtain or file evidence of required insurance
or other required financial security, the grantee shall pay to the city the
sum of $150 per day for each day the grantee fails to comply.
(d)Â
For failure to provide access to data, documents, records,
information or reports to the city as required in this chapter, the grantee
shall pay to the city the sum of $125 per day for each day such failure occurs
or continues.
(e)Â
For failure to comply with applicable construction, operation
or maintenance standards, the grantee shall pay to the city the sum of $150
per day for each day such failure occurs or continues.
(f)Â
For failure to comply with a rate decision or refund
order issued by the city, the grantee shall pay to the city the sum of $250
for any such occurrence.
(g)Â
For failure to comply with any of the provisions of this chapter or the franchise agreement for which the assessment of liquidated damages is not otherwise specifically provided pursuant to this Subsection B, the grantee shall pay to the city the sum of $125 per day for each day such failure occurs or continues.
(h)Â
For delay in initial construction, rebuild or upgrade
of the cable system, unless the city approves the delay, the grantee shall
pay to the city $250 per day for each day such delay occurs or continues.
(i)Â
Each failure to perform any provision of this chapter
or the franchise agreement shall be considered a separate violation.
(j)Â
The franchise agreement may provide for liquidated damages
for additional violations of the franchise.
(2)Â
This provision for assessment of liquidated damages is
intended to be separate and apart from the city's right to enforce the
provisions of any construction or performance bonds or other security or guaranties
required in the franchise agreement, and is intended to be in addition to
any other remedies the city may have. By execution of a franchise agreement
pursuant to this chapter, the grantee acknowledges that the amounts of actual
damages for the grantee's failure to perform will be difficult or impossible
to ascertain; that the liquidated damages set forth in this section are a
reasonable approximation of actual damages; and that this section is intended
to provide compensation to the city.
C.Â
Opportunity to cure prior to imposition of liquidated damages. Prior to assessing liquidated damages against the grantee as provided in this section, the city shall make a written demand on the grantee that the grantee cure its failure to perform any material obligation under this chapter or the franchise agreement and inform the grantee that its continued failure may result in the assessment of liquidated damages. If the grantee's failure to perform is not cured to the satisfaction of the city within 10 days following such demand, the city may impose liquidated damages on the grantee pursuant to Subsection B. The city shall extend the cure period beyond 10 days in the event that the grantee is proceeding in good faith with due diligence to cure its failure to perform but is unable to do so within 10 days.
D.Â
Opportunity for hearing. The grantee may contest any
assessment of liquidated damages at a hearing before the Cable Commission,
at which hearing the grantee shall have the right to examine witnesses under
oath and give testimony. The request for a hearing does not relieve the grantee
of its obligation to pay to the city the assessed liquidated damages. Within
60 days after the hearing, the Cable Commission shall issue a written decision
regarding the reasonableness of the challenged assessment. In the event the
Cable Commission determines that the assessment paid by the grantee to the
city was unreasonable in whole or in part, the city shall promptly return
to the grantee any part of the paid assessment determined to be unreasonable
by the Cable Commission. Nothing in this section prevents the grantee from
appealing the Cable Commission's decision to a court of competent jurisdiction
if the grantee believes that the assessment is unreasonable.
A.Â
City's rights to purchase system. In the event the city revokes the grantee's franchise for cause or denies the renewal of the grantee's franchise pursuant to § A262-6 of this chapter, the city shall first have the option to purchase the grantee's system as set forth in this section.
B.Â
Purchase price. In the event the city revokes the grantee's
franchise for cause, the city may purchase the system for an equitable price.
"Equitable price" means fair market value adjusted downward for the harm to
the City or subscribers, if any, resulting from the grantee's breach
of its franchise agreement or violation of this chapter, and as further adjusted
to account for other equitable factors that may be considered consistent with
47 U.S.C. § 547. In the event the city denies renewal of the franchise,
the purchase price for the system shall, consistent with 47 U.S.C. § 547,
be based on the fair market value of the system, determined on the basis of
the system as a going concern but with no value allocated to the franchise
itself. The purchase price for the system shall be decreased by the amount
of any and all damages sustained by the city in connection with the revocation
or nonrenewal, including, without limitation, payment made by the city to
another person or entity to operate the system for a temporary period after
revocation or nonrenewal.
C.Â
Valuation procedures. Within 45 days of revocation or nonrenewal of the grantee's franchise, the city shall give written notice to the grantee if the city wishes to proceed with the valuation of the grantee's system. Upon such notice, the city and the grantee shall, with due diligence and in good faith, seek to negotiate the purchase price for the system as defined in Subsection B. If the city and the grantee cannot agree on the determination of the purchase price as defined in Subsection B of this section within 60 days, such purchase price shall be determined by an impartial appraisal procedure which may be enforced pursuant to W.S.A. ch. 778. Under the impartial appraisal procedure, the grantee and the city shall then each choose an appraiser, within 30 days, and the appraisers chosen shall promptly choose a third appraiser. The purchase price shall be determined according to Subsection B of this section and shall be the purchase price agreed upon by any two of the three appraisers. The cost of the appraisal procedure shall be shared equally by the city and the grantee.
D.Â
Transfer to city. Within 60 days of the determination of the purchase price pursuant to Subsection C, the city shall give written notice to the grantee if the city elects to exercise its option to purchase. Upon such exercise of the city's option to purchase the grantee's system, the grantee shall, immediately upon payment of the purchase price by the city, transfer to the city possession and legal title to all system facilities and property, both real and personal, free from any and all liens and encumbrances not agreed to be assumed by the city in lieu of a portion of the purchase price; and the grantee shall execute such warranty deeds or other instruments of conveyance to the city as shall be necessary or reasonably requested by the city to effectuate this transfer.
A.Â
Consent prior to transfer of franchise. Any franchise
granted under this chapter shall be a privilege to be held for the benefit
of the public. Any franchise so granted and any cable system subject to this
chapter cannot, in any event, be sold, transferred, leased, assigned or disposed
of by any method, including but not limited to forced or voluntary sale, merger
or consolidation, either in whole or in part, without the prior written consent
of the city expressed by resolution of the Common Council, and then only under
such reasonable conditions as the Common Council may establish. Such consent
of the city shall not be unreasonably withheld. Prior consent shall not be
required when transferring the franchise between wholly-owned subsidiaries
of the same entity nor for the replacement of components of the cable system
in the course of ordinary maintenance and day-to-day operation.
B.Â
Consent to change of control. The grantee shall promptly
notify the city of any proposed change or transfer or acquisition by any other
party of control of the grantee. The word "control" as used in this section
means the possession, directly or indirectly, of the power to direct or cause
the direction of the management and policies of a person, whether through
the ownership of voting shares, by contract, by common management or otherwise.
A rebuttable presumption that a transfer of control has occurred shall arise
upon the acquisition or accumulation by any person or group of persons of
20% or more of the voting shares of the grantee. Every change, transfer or
acquisition of control of the grantee shall make the franchise subject to
cancellation unless and until the city consents in writing thereto, as expressed
by resolution of the Common Council. Such consent shall not be unreasonably
withheld and shall be under such reasonable conditions as the Common Council
may establish. For the purpose of determining whether it shall consent to
such change, transfer or acquisition of control, the city may inquire into
the qualifications of the prospective controlling party, and the grantee shall
assist the city in any such inquiry.
C.Â
Franchise agreement. In no event shall a transfer of
the franchise or change of control be approved without the successor in interest
becoming a signatory to any franchise agreement between the city and the grantee.
D.Â
Application for consent/procedures.
(1)Â
In seeking the city's consent to any transfer of
the franchise or change in control, the grantee shall submit an application
for such consent to the city and shall submit to the city such additional
documents and information as the city may request. Such application shall
include all information and forms required under federal law or the equivalent
of such forms if no longer required by federal law.
(2)Â
The city shall have 120 days from the date of submission of a complete and accurate application (such as an FCC Form 394) to act upon any such application for consent. If the city fails to act upon the application within 120 days of receipt of the complete application, including such documents as the city may request under this Subsection D, the application shall be deemed consented to unless the city and the grantee otherwise agree to an extension of time.
E.Â
Effect of city's consent. The consent or approval
of the city to any transfer of the franchise or change in control of the grantee
shall not constitute a waiver or release of the rights of the city in and
to the streets, and any such transfer or change of control shall, by its terms,
be expressly subject to the terms and conditions of any franchise. The grantee
shall not be released from its obligations under this chapter and the franchise
agreement without the express written consent of the city.
F.Â
Transfer document to be filed with city. A grantee, upon
transfer of the franchise or change in control of the grantee, shall within
60 days thereafter file with the city a copy of the deed, agreement or other
written instrument evidencing such sale, transfer of ownership or control
or lease, certified and sworn to as correct by the grantee.
A grantee's franchise area shall be for the territorial limits
of the City of Rice Lake as they exist at the time the franchise is granted
and for any area subsequently added to the city by annexation or otherwise
during the term of the franchise.
A.Â
Service to initial service area. Within two years from the date of the award of an initial franchise, the grantee must make cable television service available to every dwelling unit within the initial service area, subject to the density requirement of 20 dwelling units per strand mile. Thereafter, the grantee must extend service according to Subsections C, D and E below.
B.Â
New construction timetable.
(1)Â
Within six months from the date of the award of an initial
franchise, the grantee shall make cable television service available to at
least 20% of the dwelling units within the initial service area. Within one
year from the date of the award of the initial franchise, the grantee must
make cable television service available to at least 50% of the dwelling units
within the initial service area.
(2)Â
In its application for an initial franchise, the prospective
grantee may propose a timetable of construction which will make cable television
service available in the initial service area sooner than the above minimum
requirements, in which case such schedule shall be made part of the franchise
agreement.
(3)Â
Any delay beyond the terms of the timetable set out in
this provision or the franchise agreement, unless specifically approved by
the city in writing, shall be considered a material breach of the franchise.
C.Â
Mandatory extension of service. The grantee shall, at
its expense, extend its system to provide cable service to all residents of:
(1)Â
All areas of the city with a minimum density of 20 dwelling
units per strand mile; or
(2)Â
All newly annexed areas of the city not served at the
time of annexation by the grantee with a minimum density of 20 dwelling units
per strand mile; or
(3)Â
Any dwelling unit within the franchise area and within
300 feet of existing cable plant.
D.Â
Nonmandatory extension of service. In areas not meeting the requirements for mandatory extension of service under Subsection C, the grantee shall provide to any potential subscriber desiring service an estimate of the cost to extend service to the potential subscriber. The grantee shall extend service upon request of the potential subscriber. The grantee shall cooperate with the potential subscriber in reaching a cost-sharing agreement, which shall provide that the grantee will pay 100% of the cost of the first 300 feet of the extension and that the grantee will pay 60% and the potential subscriber 40 percent of the cost of the next 300 feet of the extension, up to a maximum of 600 feet. For that part of an extension that is longer than 600 feet, the grantee may charge the potential subscriber for the grantee's actual cost of that portion of the extension. Any amount paid by a subscriber for an extension under this subsection shall be refundable to that subscriber in the event the area subsequently meets the requirements for mandatory extension under Subsection C within one year. In no event shall the amount of the refund exceed the amount paid by the subscriber for the extension.
E.Â
New subdivisions. In a new subdivision where utility
and cable facilities are to be placed underground, the following shall apply:
(1)Â
The city will forward to the grantee an approved plat
plan of each development as soon as such plan has been approved. The grantee
shall commence the design and construction process upon receipt of the plan.
(2)Â
The city shall give the grantee at least 30 days advance
written notice of the approximate date on which open trenching will be available
for the grantee's installation of conduit, pedestals and/or vaults, and
laterals to be provided at the grantee's expense. The city shall give
the grantee no less than three days' advance notice of the actual date
on which open trenching will be available. The grantee shall provide specifications
as needed for trenching and shall place its facilities in the trenches on
the date specified by the city. Costs of trenching and easements required
to bring cable service to the new subdivision shall be nondiscriminatory and
shall be paid by the grantee.
F.Â
Special agreements. Nothing in this chapter shall be construed to prevent the grantee from serving areas not covered under this section upon agreement with developers, property owners or residents, provided that 5% of the gross revenues derived from such service within the franchise area is returned to the city as required under § A262-18 of this chapter.
A.Â
Effective date. Any franchise awarded under this chapter shall take effect and be in force 30 days following the Common Council's approval of a franchise agreement between the grantee and the city, provided that, within those 30 days, the grantee accepts the franchise pursuant to Subsection B.
B.Â
Acceptance. To accept a franchise granted under this
chapter, a grantee shall furnish to the city all of the following:
(1)Â
A notarized statement by the grantee of its acceptance
of the franchise;
(2)Â
Evidence of insurance as required by this chapter;
(3)Â
All bonds in the amounts required by the franchise agreement;
and
(4)Â
All letters of credit/security fund(s) in the amounts
required by the franchise agreement.
C.Â
Statement of acceptance. The grantee's statement
of acceptance shall include a certification that the grantee agrees to the
following:
(1)Â
Grantee to have no recourse. The grantee shall have no
recourse whatsoever against the city for any loss, cost, expense or damage
arising out of any provision or requirement of this chapter or its regulation
or from the city's exercise of its authority to grant additional franchises.
(2)Â
Acceptance of power and authority of city. The grantee
expressly acknowledges that in accepting the franchise it has relied upon
its own investigation and understanding of the power and authority of the
city to grant this franchise.
(3)Â
Inducements not offered. The grantee acknowledges by
acceptance of the franchise that it has not been induced to enter into this
franchise by any understanding or promise or other statement, whether verbal
or written, by or on behalf of the city concerning any term or condition of
this franchise that is not included in this chapter.
(4)Â
Grantee accepts terms of franchise. The grantee acknowledges
by the acceptance of the franchise that it has carefully read its terms and
conditions and it is willing to and does accept all the obligations of such
terms and conditions and further agrees that it will not set up as against
the city the claim that any provision of this chapter as adopted, is unreasonable,
arbitrary, invalid or void, but shall be required to accept the validity of
the terms and conditions of the franchise in their entirety.
A.Â
City reserves right of rate regulation. Except as otherwise provided in Subsection B, below, the grantee shall establish rates for its services which shall be applied on a nondiscriminatory basis in the franchise area, unless otherwise allowed under 47 U.S.C. § 543(d). Pursuant to federal law, the city reserves the right to assume regulation of rates paid by cable subscribers; such rate regulation shall be performed by the Common Council in accordance with FCC Rules and Regulations, Part 76, Subpart N. As specified by the FCC's Rules (Part 76, Subpart N), such rate regulation shall cover basic service rates and customer premises installations and equipment rates (including charges for, but not limited to, converter boxes, remote control units, connections for additional television receivers and other cable home wiring). The city reserves the right to further regulate rates pursuant to any additional powers granted it by either the FCC or federal or state law.
B.Â
Notice of certification. In the event that the city assumes
rate regulatory powers, the city shall notify the grantee of the city's
FCC certification. Upon receipt of such notification by the grantee, basic
service rate regulation shall become effective.
C.Â
Service disconnection. Except as otherwise allowed by
federal law, the grantee shall not charge a subscriber for the disconnection
of any installation or outlet. In disconnecting subscribers, the grantee shall
comply with W.S.A. s. 100.209(2), and any amendments thereto. The city may
assess penalties or liquidated damages for violation of this section. This
section shall not prevent a grantee from refusing service to any person because
of the grantee's prior accounts with that person which remain due and
owing.
A.Â
Discriminatory practices prohibited.
(1)Â
A grantee shall not refuse cable television service or
otherwise discriminate against any person or organization who requests such
service on the basis of race, color, religion, national origin, creed or sex.
A grantee shall not, as to rates, charges, service facilities, rules, regulations
or in any other respect, make or grant any unreasonable preference or advantage,
nor subject any person to any prejudice or disadvantage. The grantee shall
comply at all times with the Cable Act and all other applicable federal, state
and local laws and regulations and all executive and administrative orders
relating to nondiscrimination which are hereby incorporated and made part
of this chapter by reference.
(2)Â
This section shall not be deemed to prohibit promotional
rates for service introductions or temporary promotional discounts. This section
does not preclude a grantee from offering special services or rates to senior
citizens or services to commercial subscribers at rates different from those
charged residential subscribers, which shall include, but not be limited to,
charges for installation on a time-and-material basis. The grantee may also
enter into separate contracts with multiple-dwelling unit buildings and may
charge discounted rates for services based upon single point billing or other
contractual considerations.
B.Â
Fairness and equal access. A grantee's system shall
be operated in a manner consistent with the principles of fairness and equal
access to its facilities, equipment, channels, studios and other services
for all citizens, businesses, public agencies or other entities having a legitimate
use for the system, and no one shall be arbitrarily excluded from its use.
Allocation of use of such facilities shall be made according to the rules
or decisions of regulatory agencies affecting the same.
C.Â
Equal employment. A grantee shall strictly adhere to
the equal employment opportunity requirements of federal, state and local
laws and regulations in effect on the date of the franchise grant, and as
amended from time to time.
D.Â
Discontinuation of service. If a subscriber fails to
pay any proper fee or charge for any service provided by the grantee, the
grantee may discontinue said service, provided that the unpaid bill is at
least 45 days past due and the subscriber has been given at least 10 business
days' prior notice of the intention to discontinue service. If the grantee
receives payment of all outstanding fees and charges, including any late charges,
before any service has been discontinued, then the grantee shall not discontinue
said service. After any service has been discontinued, upon request of the
subscriber accompanied by payment in full of all fees or charges due the grantee
and the payment of an appropriate reconnection charge, if any, the grantee
shall promptly reinstate said service. Subscribers shall retain the right
to deactivate their terminals, but shall continue to be responsible for charges
until the grantee is notified to terminate service. The subscriber shall not
be charged any fee for the cancellation or downgrading of cable service, except
in accordance with applicable FCC regulations.
E.Â
Rights of residents.
(1)Â
An owner or operator of an apartment building, condominium,
nursing home, mobile home park or any other rental facility may not interfere
with or charge a fee for the installation of cable system facilities for the
use of a lessee of said property or premises, except that such owner or operator
may require:
(a)Â
Installation to conform to reasonable conditions necessary
to protect the safety, appearance and functioning of the premises;
(b)Â
The grantee, occupant or tenant to pay for the installation,
operation or removal of such facilities; and
(c)Â
The grantee, occupant or tenant to agree to indemnify
the owner or operator for any damages caused by the installation, operation
or removal of such facilities.
(2)Â
It shall be unlawful for the grantee to compensate or
offer to compensate any person, or for any person to demand or receive compensation
from the grantee, for the placement upon the premises of such person of grantee's
facilities necessary to connect such person's premises to the distribution
lines of grantee to provide cable service to said premises.
(3)Â
Except where there is a bulk rate agreement between a
landlord and the grantee, a landlord may not discriminate in the amount of
rent charged to tenants or occupants who receive cable service and those who
do not.
Upon the grant of an initial franchise, the grantee shall reimburse
the city for all reasonable costs, including but not limited to attorney and
consultant fees, incurred by the city relating to the grant of the franchise.
The amount of the reimbursement shall be agreed to by the city and the grantee
and set out in the franchise agreement.
A.Â
Franchise fee. A grantee shall pay to the city a franchise
fee in the amount designated in the franchise agreement. Such franchise fee
shall not be less than 5% of the grantee's gross revenues, or such other
maximum amount as allowed by law. In the event that a change in either state
or federal law would allow the city to increase the franchise fee above 5%
of the grantee's gross revenues, the grantee shall not be liable for
such increase until the city shall give grantee written notice of such change
in the law. The franchise fee payment shall be in addition to any other payment
owed to the city by the grantee and shall not be construed as payment in lieu
of municipal property taxes or other state, county or local taxes.
B.Â
Payment schedule. The franchise fee shall be paid on
a quarterly basis according to the following schedule: revenues for January
through March shall be reflected in a May 15th payment; revenues for April
through June shall be reflected in an August 15th payment; revenues for July
through September shall be reflected in a November 15th payment; and revenues
for October through December shall be reflected in a February 15th payment.
Unless otherwise specified in the franchise agreement, the payment period
shall commence as of the effective date of the franchise or any renewal date.
C.Â
Financial statement to be provided by grantee. Each franchise
fee payment shall be accompanied by a financial statement showing the total
amount of the gross revenues and all payments, deductions and computations
for the period covered by the franchise fee payment. Such statement shall
also indicate the amount of revenue derived from each category of service
or revenue source (e.g., basic service, extended basic service, premium channels,
equipment rental, advertising, home shopping, etc.). With each February 15th
payment, the grantee shall furnish to the city an audited statement certified
by an independent certified public accountant, stating the total amount of
gross revenues and all payments, deductions and computations for the preceding
calendar year. The city shall have the right to conduct an independent audit
of the grantee's records, and if such audit indicates a franchise fee
underpayment of 5% or more, the grantee shall assume all reasonable costs
of such audit.
D.Â
Interest on delinquent payments. If any payment is not
made as required, interest on the amount due shall accrue from the date of
the required submittal at an annual rate of 12%. The grantee shall pay an
additional compensation to the city if the payment is late by 45 days or more.
Such additional compensation shall be equal to an additional 6% per annum
in order to defray those additional expenses and costs incurred by the city
by reason of the delinquent payment.
E.Â
Acceptance by the city. No acceptance of any payment
by the city shall be construed as a release or as an accord and satisfaction
of any claim the city may have for further or additional sums payable as a
franchise fee under this chapter or for the performance of any other obligation
of the grantee.
F.Â
Alternative fee basis. In the event the franchise fee
payment established under this chapter is ruled unconstitutional or unenforceable,
the city may impose and collect an equivalent charge on any legally permissible
basis, provided that such charge does not exceed the previously allowed limit
on franchise fee payments.
A.Â
Additional standards may be imposed. Nothing in this
chapter shall be construed to prohibit the grantee and city from agreeing
to exceed the customer service standards set out in this chapter or the establishment
or enforcement of any state or local law or regulation concerning customer
service or consumer protection that imposes customer service standards or
consumer protection requirements that exceed the customer service standards
set out in this chapter or address matters not addressed in this chapter.
B.Â
Local office. The grantee shall maintain a local office
within the boundaries of the city with sufficient staff to accept payments,
adjust bills, respond to repair, installation or other service calls, distribute
or receive converter boxes, remote control units or other related equipment,
and receive complaints. The local office shall be open to the general public
during normal business hours. In addition, the grantee may, at its option,
provide subscribers with bill payment facilities through retail, financial
or other commercial institutions located within the boundaries of the city.
The grantee may also, at its option, provide secured collection boxes for
receipt of bill payments.
C.Â
Telephone availability.
(1)Â
The grantee shall 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. Trained representatives of the grantee will be available
to respond to customer telephone inquiries during normal business hours. 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 representative
of the grantee on the next business day.
(2)Â
Under normal operating conditions, telephone answer time
by a customer representative, including wait time, shall not exceed 30 seconds
when the connection is made. If the call needs to be transferred, transfer
time shall not exceed 30 seconds. These standards shall be met no less than
90% of the time under normal operating conditions, measured on a quarterly
basis.
(3)Â
The grantee shall not be required to acquire equipment
or perform surveys to measure compliance with the telephone answering standards
above unless an historical record of complaints indicates a clear failure
to comply.
(4)Â
Under normal operating conditions, the customer will
receive a busy signal less than 3% of the time.
D.Â
Installations, outages and service calls. Under normal
operating conditions, each of the following four standards shall be met by
the grantee no less than 95% of the time measured on a quarterly basis:
(1)Â
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.
(2)Â
Excluding conditions beyond the control of the grantee,
the grantee shall begin working on service interruptions promptly and in no
event later than 24 hours after the interruption becomes known to the grantee.
The grantee must begin actions to correct other service problems the next
business day after receiving notification of the service problem.
(3)Â
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 grantee may schedule service calls and other installation activities
outside of normal business hours for the express convenience of the customer.)
(4)Â
The grantee may not cancel an appointment with a customer
after the close of business on the business day prior to the scheduled appointment.
If the grantee's representative is running late for an appointment with
a customer and will not be able to keep the appointment as scheduled, the
customer will be contacted. The appointment will be rescheduled, as necessary,
at a time which is convenient for the customer.
E.Â
Repair standards.
(1)Â
The grantee shall maintain a repair force of technicians
who, under normal operating conditions, are capable of responding to subscriber
requests for service within the following time frames:
(a)Â
System service interruption. Under normal operating conditions,
within two hours, including weekends, of receiving subscribers' calls
which by number identify a system service interruption of sound or picture
on one or more channels, affecting all the subscribers of the system or an
interruption of all services to 2% of all subscribers.
(b)Â
Isolated service interruption. Within 24 hours, including
weekends, of receiving requests for service identifying an isolated service
interruption (less than 2% of subscribers) of sound or picture for one or
more channels. This standard shall be met no less than 95% of the time, measured
on a quarterly basis.
(c)Â
Inferior reception quality. Within 48 hours, including
weekends, of receiving a request for service identifying a problem concerning
picture or sound quality.
(2)Â
The grantee shall be deemed to have responded to a request
for service under the provisions of this section when a technician arrives
at the service location or contacts the customer by telephone and begins work
on the problem. In the case of a subscriber not being home when the technician
arrives, response shall be deemed to have taken place if the technician leaves
written notification of arrival.
F.Â
Notification of service interruption to Cable Director.
The grantee shall promptly notify the Cable Director, in writing, or, if appropriate,
by oral communication, of any significant interruption in the operation of
the system. For the purposes of this section, a "significant interruption
in the operation of the system" shall mean any interruption of sound or picture
on one or more channels of a duration of at least 24 hours to at least 5%
of the subscribers.
G.Â
Subscriber credit for service interruptions. The grantee
shall provide a credit to subscribers for service interruptions in accordance
with W.S.A. s. 100.209(b), and any amendments thereto.
A.Â
Standards. The grantee's system shall be constructed
and operated so as to meet those technical and performance standards set out
in the franchise agreement and as required by the FCC's rules and regulations
relating to cable television systems and found in 47 C.F.R. §§ 76.601
to 76.618, as amended, from time to time.
B.Â
Tests and compliance procedures. Within 60 days after
the award of the franchise, the grantee shall submit a detailed test plan
describing the methods and schedules for testing its system on an ongoing
basis to determine compliance with this chapter and the franchise agreement.
The test plan shall be subject to the approval of the Rice Lake Cable Commission,
which approval shall not be unreasonably withheld. The tests for basic cable
service shall be performed at intervals of no greater than 12 months. The
tests may be witnessed by representatives of the Cable Commission, and the
grantee shall submit written test reports to the Cable Commission. If 10%
or more of the locations tested fail to meet the performance standards, the
grantee shall be required to indicate what corrective measures have been taken,
and the entire test shall be repeated. grantee's failure to take corrective
measures within 30 days after the initial tests are performed may be considered
a material breach of the franchise.
C.Â
Additional testing. At any time after commencement of
service to subscribers, the Cable Commission may require the grantee to perform
additional tests, full or partial repeat tests, or tests involving service
to a specific subscriber. Such additional tests will be made on the basis
of complaints received or other evidence indicating an unresolved controversy
or significant noncompliance with the technical standards established in this
chapter or the franchise agreement.
A.Â
Compliance with safety codes. All construction practices
shall be in accordance with all applicable sections of the Occupational Safety
and Health Act of 1970 and any amendments thereto as well as all state and
local codes where applicable.
B.Â
Compliance with electrical codes. All installation of
electronic equipment shall be of a permanent nature, durable, installed and
maintained in accordance with the applicable sections of the then-current
edition of the National Electric Safety Code and all state and local codes
where applicable.
C.Â
Compliance with aviation requirements. Antennas and their
supporting structures (towers) shall be painted, lighted, erected and maintained
in accordance with all applicable rules and regulations of the Federal Aeronautical
Administration and all other applicable federal, state or local laws, codes
and regulations governing the erection and operation of supporting structures
or television towers.
A.Â
Approval of proposed construction.
(1)Â
Prior to construction, reconstruction, upgrade or rebuild
of the grantee's system or any other construction work costing $50,000
or more, other than routine repairs, the grantee shall, in each case, file
its plans for such work with the city and shall not commence any such work
until it receives written approval of its plans from the city. Applications
for approval of construction shall be in a form provided by the city. The
city shall not unreasonably withhold its approval. Upon the city's request,
the grantee shall provide written progress reports to the city until the work
is completed.
(2)Â
The right of construction, including easements, is not
implied except on locations where the city has the authority to grant such
rights and easements and then only in conformity with the provisions of this
chapter. All other rights of construction, including easements, shall be the
responsibility of the grantee.
B.Â
City's right of inspection. During the life of any
franchise granted under this chapter, the city may inspect and supervise all
construction and installation work performed subject to the provision of this
chapter and the franchise agreement to ensure compliance with the terms of
this chapter and the franchise agreement.
C.Â
Excavation permits. The grantee shall not open or disturb
the surface of any street, sidewalk, driveway or public place for any purpose
without first having obtained all necessary permits.
D.Â
Use of existing poles or conduits. Nothing in this chapter
shall authorize the grantee to erect and maintain in the city new poles where
existing poles are servicing the area. The grantee shall seek and obtain permission
from the city before erecting any new poles, underground conduit or appurtenances
where none exist at the time the grantee seeks to install or expand its system.
E.Â
Method of installation.
(1)Â
All wires, cables, amplifiers and other property of the
grantee shall be constructed and installed in an orderly and workmanlike manner.
All cables and wires shall be installed parallel with existing telephone and
electric wires whenever possible. Multiple cable configurations shall be arranged
in parallel and bundled, with due respect for engineering and safety considerations.
(2)Â
All installations shall be underground in those areas
of the city where public utilities providing telephone and electric service
are underground at the time of installation.
(3)Â
In areas where telephone or electric utility facilities
are aboveground, the grantee shall place its facilities underground without
additional cost to the city or to the residents of the city (other than as
may be reflected in rates charged to subscribers) at such time as such telephone
and electric facilities are required to be placed underground by the city
or are placed underground. The city shall give grantee at least six months,
prior notice of any construction to place telephone or electric facilities
underground.
Upon reasonable notice by the city, the grantee shall demonstrate compliance
with any or all of the standards and requirements imposed by this chapter.
The grantee shall provide sufficiently detailed information to permit the
city to readily verify the extent of compliance.
A.Â
Complaints to grantee. A grantee shall establish written
procedures for receiving, acting upon and resolving subscriber complaints
without intervention by the city. The procedures shall prescribe the manner
in which a subscriber may submit a complaint, either orally or in writing,
to the grantee. At the conclusion of the grantee's investigation of a
subscriber complaint, but in no event more than 10 days after receiving the
complaint, grantee shall notify the subscriber of the results of the investigation
and its proposed action or resolution, if any. The grantee shall also notify
the subscriber of the subscriber's right to file a complaint with the
city in the event the subscriber is dissatisfied with the grantee's decision.
The city appoints the Cable Director as its agent to receive inquiries or
complaints about the grantee's operations.
B.Â
Complaints to the city. A subscriber who is dissatisfied
with the grantee's proposed decision shall be entitled to have the complaint
reviewed by the city. The subscriber shall initiate the review by making a
verbal or written complaint to and by filing the grantee's decision,
if any, with the Cable Director. The Cable Director or designee shall notify
the grantee of the subscriber's complaint. The subscriber shall present
its complaint to the Cable Director within 20 days of receipt of the grantee's
decision or, if no grantee decision has been provided, within 30 days after
filing the original complaint with grantee. The Cable Commission may extend
these time limits for reasonable cause.
C.Â
Review by the city. The city shall determine, upon a
review of a subscriber complaint and the grantee's decision, if any,
whether further action is warranted. In the event the city does not initiate
further proceedings within 30 days of the filing of the complaint, the grantee's
proposed action or resolution shall be final. If the city decides to initiate
further investigation, the city shall require the grantee and the subscriber
to submit, within 10 days of notice thereof, a statement of the facts and
arguments in support of their respective positions. The city shall issue a
written decision within 30 days of receipt of the statements or, if a hearing
is requested, within 30 days of the conclusion of the hearing, setting forth
the basis of the decision.
D.Â
Remedies for violations. The city may, as a part of a
subscriber complaint decision issued by the city under the provisions of this
chapter, impose penalties or liquidated damages on the grantee. Penalties
or liquidated damages may be imposed only if the city finds that the grantee
has arbitrarily refused or failed without reasonable justification to comply
with the provisions of this section.
A.Â
Complaint file. A grantee shall keep an accurate and
comprehensive file of any and all complaints regarding the cable system. A
grantee shall establish a procedure to remedy complaints quickly and reasonably
to the satisfaction of the city. A grantee shall keep complete records of
its actions in response to all complaints for a period of three years. The
grantee shall make a copy of its complaint file available to the city at any
time upon request.
B.Â
Service request log and summary. The grantee shall maintain
a log and summary of all subscriber service requests, identifying the number
and nature of the requests and their disposition for a period of three years.
The grantee shall make a copy of such log and summaries available to the city
at any time upon request.
C.Â
Outage log and summary. A grantee shall maintain a log
and summary of all major service outages for a period of three years. For
the purposes of this subsection, a "major service outage" shall mean any interruption
of sound or picture on one or more channels of a duration of at least 24 hours
to at least two subscribers. The grantee shall make a copy of such log and
summaries available to the city at any time upon request.
A.Â
Use of streets. For the purpose of constructing, operating
and maintaining a cable system in the city, a grantee may erect, install,
construct, repair, replace, relocate, reconstruct and retain in, on, over,
under, upon, across and along the streets within the city such lines, cables,
conductors, ducts, conduits, vaults, manholes, amplifiers, appliances, pedestals,
attachments and other property and equipment as are necessary and appurtenant
to the operation of the grantee's system, provided that the grantee obtains
all the necessary pole- or conduit-use agreements (including any such agreements
with the Rice Lake Municipal Utilities) and that the grantee applies for and
obtains all applicable permits and otherwise fully complies with this chapter
and all other applicable city codes and ordinances, including any comprehensive
rights-of-way use ordinance the city may adopt.
B.Â
Noninterference; notice. The grantee shall construct,
maintain and operate its system so as not to interfere with other uses of
the streets. The grantee shall individually notify all residents directly
affected by the proposed work at least five business days prior to the commencement
of such work.
A.Â
Facilities not to be hazardous or interfere.
(1)Â
All wires, conduits, cables and other property and facilities
of the grantee shall be so located, constructed, installed and maintained
as not to endanger any person or unnecessarily interfere with the usual and
customary trade, traffic and travel upon the streets and public places of
the city.
(2)Â
The grantee shall keep and maintain all its property
in good condition, order and repair. The city reserves the right to inspect
and examine at any reasonable time and upon reasonable notice the property
owned or used, in part or in whole, by the grantee.
(3)Â
The grantee shall keep accurate maps and records of all
its facilities and furnish copies of such maps and records when requested
by the city.
(4)Â
The grantee shall not place poles or other equipment
where they will interfere with the rights or reasonable convenience of adjoining
property owners or with any gas, electric or telephone fixtures or with any
water hydrants or mains. All poles or other fixtures placed in a street shall
be placed in the right-of-way between the roadway and the property, as specified
by the city.
B.Â
Restoration and reimbursement.
(1)Â
In the event of disturbance of any street or private
property by the grantee, it shall, at its own expense and in a manner approved
by the city and the owner, replace and restore such street or private property
in as good a condition as before the work causing such disturbance was done.
(2)Â
If the grantee fails to perform such replacement or restoration,
the city or the owner shall have the right to do so at the sole expense of
the grantee. The grantee shall make payment to the city or owner for such
replacement or restoration immediately upon demand. All requests for replacement
or restoring of such streets or private property as may have been disturbed
must be in writing to the grantee.
C.Â
Emergency removal of facilities. If, at any time, in
case of fire or disaster in the city, it shall become necessary in the reasonable
judgment of the city to cut or move any of the wires, cables, amplifiers,
appliances or appurtenances thereto of the grantee, such cutting or moving
may be done and any repairs rendered necessary thereby shall be made by the
grantee, at its sole expense.
D.Â
Changes required by public improvements. The grantee
shall, at its expense, protect, support, temporarily disconnect, relocate
in the same street or other public place, or remove from the street or other
public place, any property of the grantee when required by the city by reason
of traffic conditions, public safety, street vacation, street construction,
change or establishment of street grade, installation of sewers, drains, water
pipes, city-owned power or signal lines and tracts or any other type of structure
or improvement by public agencies.
E.Â
Requests for removal or change. 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 such building. The expense of such
temporary removal, raising or lowering the wires shall be paid by the person
requesting the same, and the grantee shall have the authority to require such
payment in advance. The grantee shall be given notice not less than nine business
days prior to any move contemplated to arrange for temporary wire changes.
F.Â
Authority to trim trees. The grantee shall have the authority
to trim trees upon and overhanging streets, alleys, sidewalks and other public
places of the city so as to prevent the branches of such trees from coming
in contact with the wires and cables of the grantee. all trimming is to be
done under the supervision and direction of the city after the explicit, prior
written notification and approval of the city and at the expense of the grantee.
A.Â
Services provided. A grantee shall provide, at a minimum,
the services required to be provided by state and federal law and as agreed
to by the city and the grantee in the franchise agreement. The grantee shall
not reduce its services without prior notification to and approval by the
city.
B.Â
Public educational and government (PEG) access channel.
A grantee shall provide PEG access channels, services and support as required
by the city in the franchise agreement. All grantees shall be required to
provide substantially equal services and support either through actual monetary
contributions or in-kind contributions, all in the reasonable determination
of the city. The nature and scope of services to be provided shall be relevant
to the city's determination of equivalency between and among grantees.
C.Â
Cable channel for commercial use. The grantee shall designate
channel capacity for commercial use as required by the Cable Act and applicable
law.
A.Â
Use of data from subscribers. A grantee, the city or
any other 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 written authorization from each subscriber
so affected.
B.Â
Subscriber data. The city, the grantee or any person
shall not, without prior written valid authorization from each subscriber
so affected, provide any data identifying or designating subscribers. Any
data so authorized will be made available to the authorizing subscriber in
an understandable fashion.
D.Â
Applicability. The provisions of this section shall not
apply to any monitoring for cable system integrity or to verify billing accuracy.
A.Â
Operating policies.
(1)Â
The grantee 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:
(a)Â
Products and services offered;
(b)Â
Prices and options for programming services and conditions
of subscription to programming and other services;
(c)Â
Installation and service maintenance policies;
(d)Â
Instructions on how to use the cable services;
(e)Â
Channel positions of programming carried on the cable
system; and
(f)Â
The procedures for billing and making inquiries or complaints
(including the name, address and local telephone number of the employee or
employees or agent to whom such inquiries or complaints are to be addressed)
and also furnish information concerning the city office responsible for administration
of the franchise, including the name and telephone number of the office.
(2)Â
The written information shall also include a description
of the grantee's business hours, legal holidays and procedures for responding
to inquiries after normal business hours.
(3)Â
The grantee shall provide all subscribers and the city
with written notice no less than 30 days prior to any proposed change in any
of the areas listed in this subsection.
B.Â
Rates, programming service and channel position. The
grantee shall provide the city and subscribers with written notice of any
changes in rates, programming services or channel position at least 30 days
prior to implementing such change(s). Such notice shall state the precise
amount of any rate change and briefly explain in readily understandable fashion
the cause of the rate change (e.g., inflation, changes in external costs or
the addition/deletion of channels). When the change involves the addition
or deletion of channels, each channel added or deleted must be separately
identified. Notices to subscribers shall inform them of their right to file
complaints about changes in cable programming service tier rates and services,
shall state that the subscriber may file the complaint within 90 days of the
effective date of the rate change and shall provide the address and telephone
number of the Cable Director. Notwithstanding any other provision of this
chapter, the grantee shall not be required to provide prior notice of any
rate change that is the result of a regulatory fee, franchise fee or any other
fee, tax, assessment or charge of any kind imposed by the city or any federal
or state agency on the transaction between the grantee and the subscriber.
C.Â
Billing. Bills shall be clear, concise, understandable
and shall include the grantee's toll free or collect telephone number
for subscriber use. Bills shall be fully itemized, with itemizations including,
but not limited to, basic and premium service charges and equipment charges.
Bills shall also clearly delineate all activity during the billing period,
including optional charges, rebates and credits. In case of a billing dispute,
the grantee shall respond to a written complaint from a subscriber within
30 days. Refund checks will be issued promptly, and no later than either the
customer's next billing cycle following resolution of the request or
30 days, whichever is earlier; or the return of the equipment supplied by
the grantee if service is terminated. Credits for service shall be issued
no later than the customer's next billing cycle following the determination
that a credit is warranted.
D.Â
Copies to the city. Copies of all notices provided to
subscribers pursuant to this section shall be filed concurrently with the
City Clerk.
The overall quality of service provided by a grantee to subscribers
may be subject to evaluation by the city, at least annually. In addition,
the city may evaluate the quality of service at any time, based on subscriber
complaints received by the grantee and the city, and the grantee's response
to those complaints. Upon determining that service quality is inadequate,
the city may order the grantee to cure the inadequacies. The grantee shall
commence corrective action within 30 days after receipt of written notice
of such order. Failure to do so shall be deemed to be a material breach of
the franchise and subject to the remedies prescribed in this chapter. The
city may use the performance bond, letter or credit, and/or security fund
provided for in this chapter to remedy any such franchise breach.
The city shall have the right to inspect, upon 24 hours' written
notice, at any time during normal business hours at the grantee's nearest
regional office, all books, records, maps, plans, financial statements, all
logs required under this chapter, performance test results, record of requests
for service and other like materials of the grantee relating to the operation
of the cable system within the franchise area. If any such books or records
are not kept in the regional office, and if the city shall determine that
an examination of such records is necessary or appropriate to the performance
of any of the city's duties, then the grantee shall make such records
available locally on 10 business days' notice. When requested by the
grantee and to the extent allowed by law, the city shall treat as confidential
proprietary information or trade secrets obtained by the city during such
inspection; the city shall make such information available only to those persons
who must have access to the information to perform their duties on behalf
of the city.
A.Â
Annual submissions to the city. The grantee shall submit
to the city with each February 15th franchise fee payment a written annual
report which shall include the following information:
(1)Â
A summary of the previous year's activities in development
of the cable system, including but not limited to services begun or discontinued
during the reporting year, and the number of subscribers for each class of
service;
(2)Â
A gross revenues statement submitted in a form approved
by the city and reflecting the total amount of the gross revenues and all
payments, deductions and computations for the previous calendar year. Such
statement shall also indicate the amount of revenue derived from each category
of service or revenue source (e.g., basic service, extended basic service,
premium channels, equipment rental, advertising, home shopping, etc.);
(3)Â
A statement of projected construction, if any, for the
next two years; and
(4)Â
Accurate copies of maps and/or plats of the location
and general description of all existing and proposed installations of the
grantee over, upon or under the streets of the city.
B.Â
Submissions to the city on request. The grantee shall
notify the city each February 15th that the following information is available,
and, upon the city's request, the grantee shall submit to the city a
written report which shall include:
(1)Â
A list of grantee's officers, members of its board
of directors and other principals of grantee, including addresses;
(2)Â
A list of stockholders or other equity investors holding
5% or more of the voting interest in the grantee and its parent, subsidiary
and affiliated corporations and other entities, if any, unless the parent
is a public corporation whose annual reports are publicly available;
(3)Â
The names and business addresses and phone numbers of
the local resident manager and engineer;
(4)Â
Copies of all rules, regulations, policies and procedures
promulgated by the grantee during the fiscal year in the operation of the
cable system; and
(5)Â
A copy of each form of subscriber contract used by grantee.
C.Â
Other submissions. Copies of all petitions, applications
and communications submitted by the grantee to the FCC, Securities and Exchange
Commission or any other federal or state regulatory commission or agency having
jurisdiction in respect to any matter affecting the operation of the grantee's
cable system within the franchise area shall also be submitted simultaneously
to the city.
D.Â
Records to be kept on file. All records required by this
section shall be kept on file by the grantee for the applicable periods under
federal and state law.
E.Â
Open records requests. To the extent allowed by law, the city shall treat as confidential the information submitted by a grantee to the city pursuant to §§ A262-33A and A262-18C. In the event the city receives a request under the Wisconsin Open Records Law, W.S.A. s. § 19.21 et seq., for release of records containing such information, the city will weigh the competing interests involved and determine whether permitting inspection of the records would result in harm to the public interest which outweighs the legislative policy recognizing the public interest in allowing inspection. The city will undertake such analysis unless the requested records are exempted from disclosure under applicable law. Upon completing the analysis, the city will determine whether the records will be released. The city will give notice of its decision to release the records to the grantee and will allow a reasonable time for the grantee to appeal the decision to release the records. If the city denies the records request, the city will state a specific public policy reason for the denial.
A.Â
Performance bond. Within 30 days after the award of the
franchise, the grantee shall furnish and file with the city a performance
and payment bond, together with such other security as is approved by the
city. The bond shall be in the amount specified in the franchise agreement
and shall be with an entity and in a form acceptable to the city. The bond
shall be conditioned upon the faithful performance by the grantee of all terms
and conditions of the franchise granted under this chapter. The rights reserved
to the city with respect to the bond or other security are in addition to
all other rights the city may have under this chapter or any other law.
B.Â
Construction bond. Prior to undertaking any construction work costing $50,000 or more relating to the franchise granted under this chapter, the grantee shall file with the city a construction bond in the amount specified in the franchise agreement in favor of the city and any other person who may claim damages as a result of the breach of any duty by the grantee assured by said bond. Such construction bond shall be in a form approved by the city and issued by a company approved by the city. In no event shall the amount of such construction bond be construed to limit the liability of the grantee for damages. The city may waive this requirement or permit consolidation of the construction bond with the performance bond specified above in Subsection A.
Within 30 days after the award of the franchise, the grantee shall deliver
to the city an irrevocable and unconditional letter of credit or other security
fund (hereinafter "letter of credit") acceptable to the city, in form and
substance acceptable to the City Attorney, from or in a bank approved by the
city, in an amount established in the franchise agreement. The letter of credit
shall provide that funds will be paid to the city, upon written demand of
the city, and in an amount solely determined by the city for payment of penalties
or liquidated damages charged pursuant to this chapter, for any monies owed
by the grantee pursuant to its obligations under this chapter or the franchise
agreement, or for any damages incurred as a result of any acts or omissions
by grantee pursuant thereto.
The grantee shall give prior notice to the city specifying the names
and addresses of any entity, other than the grantee, that, within one calendar
year, will perform construction services within the streets valued at $10,000
or more relating to the franchise; provided, however, that all provisions
of the franchise remain the responsibility of the grantee. All provisions
of any franchise shall apply to any subcontractor or others performing any
work or services pursuant to the provisions of the franchise. Nothing in this
section shall be construed as allowing the transfer of any rights or responsibilities
of the grantee without written approval of the city.
A.Â
Extent of indemnification.
(1)Â
The grantee shall, by acceptance of any franchise granted
under this chapter, indemnify, defend and hold harmless the city, its officers,
council members, board members, commissioners, agents and employees ("indemnified
parties") from any and all covered claims, which shall include all of the
following: claims, suits, judgments for damages or other relief, costs and
reasonable attorneys fees in any way existing out of or through or alleged
to arise out of or through:
(a)Â
The acts of the city in granting a franchise;
(b)Â
The acts or omissions of the grantee, its servants, employees
or agents, including, but not limited to, any failure or refusal by the grantee,
its servants, employees or agents to comply with any obligation or duty imposed
on the grantee by this chapter or the franchise agreement; or
(c)Â
The grantee's exercise of any right or privilege
granted or permitted by this chapter or the franchise agreement; or
(d)Â
The release, threatened release by the grantee's
facilities or the storage by the grantee of any hazardous wastes or hazardous
substances on, under or adjacent to the streets. "Hazardous substances" shall
be interpreted broadly to mean any substance or material designated or defined
as hazardous or toxic waste, hazardous or toxic material, hazardous or toxic
or radioactive substance, or other similar term by used by any federal, state
or local laws, regulations or rules now or hereafter in effect, including
any amendments.
(2)Â
Such indemnification shall include, but not be limited
to, all claims arising in tort, contract, infringements of copyright, violations
of statutes, ordinances or regulations or otherwise.
B.Â
Notification of claims. The city shall notify the grantee
within 20 business days after the presentation of any covered claim, either
by suit or otherwise, made against the city. The city's failure to so
notify the grantee does not relieve the grantee of its obligation under this
section, unless the grantee is materially prejudiced by such failure.
C.Â
Defense of claims. In the event any covered claim arises,
the city or any other indemnified party shall tender the defense thereof to
the grantee. Defense of any such claim shall be by counsel reasonably acceptable
to the city or other indemnified party; provided, however, that in the event
the city determines that its interests cannot be represented in good faith
by the grantee, the grantee shall pay all expenses (including reasonable attorney's
fees) incurred by the city in defending itself. grantee shall not agree to
any settlement of claims that affects the city without the city's approval.
D.Â
City's negligence. The grantee shall not be required
to indemnify the city for negligence or willful misconduct on the part of
the city's officials, or its council members, board members, commissioners,
agents or employees.
A.Â
Liability insurance. The grantee shall maintain throughout
the term of the franchise, and any extensions thereto, the insurance policies
described below, which shall be written on an occurrence basis. Such policies
shall name as an additional insured the city, its officers, council members,
board members, commissioners, agents and employees, shall be primary to any
insurance carried by the city and shall be obtained from a company or companies
approved by the city and in a form satisfactory to the city. Such policies
shall be as follows:
(1)Â
Comprehensive general liability insurance. General comprehensive
liability insurance containing the following coverages: premises/operations;
products/completed operations; broad form property damage; contractual liability;
coverage for explosion, collapse and underground hazards; and pollution control
liability. The policy shall include limits of not less than $1,000,000 for
bodily injury (including death) and property damage for each occurrence of
not less than $2,000,000 in the aggregate.
(2)Â
Worker's compensation and employers' liability
insurance. Workers' compensation insurance in compliance with the laws
of Wisconsin and with the laws of each state having jurisdiction over each
employee and employers' liability insurance with a limit of liability
no less than $100,000 each accident.
(3)Â
Comprehensive automobile liability. Comprehensive automobile
liability, including owned, nonowned and hired vehicles, with limits of not
less than $1,000,000 for bodily injury (including death) and $1,000,000 for
property damage for each occurrence.
(4)Â
Umbrella liability. Umbrella liability coverage in excess
of employers' liability, comprehensive general liability and comprehensive
automobile liability insurance required in this section. Limits of liability
not less than $8,000,000, each occurrence, $8,000,000 aggregate.
B.Â
Notice of cancellation or reduction of coverage. The
insurance policies mentioned above shall contain an endorsement stating that
the policies are extended to cover the liability assumed by the grantee under
the terms of this chapter and the franchise agreement and shall contain the
following endorsement:
|
It is hereby understood and agreed that this policy may not be canceled
nor the amount of coverage thereof reduced until 30 days after receipt by
the City Clerk by registered mail of two copies of a written notice of such
intent to cancel or reduce the coverage.
|
C.Â
Evidence of insurance filed with City Clerk. All policies
of insurance or certified copies thereof and written evidence of payment of
required premiums shall be filed and maintained with the City Clerk during
the term of the franchise or any renewal thereof.
D.Â
City's right to revise insurance requirements. The
city reserves the right to revise the insurance requirements stated in this
chapter at any time during the term of any franchise granted under this chapter.
E.Â
No waiver of performance bond. Neither the provisions
of this chapter nor any insurance accepted by the city pursuant hereto, nor
any damages recovered by the city thereunder, shall be construed to excuse
faithful performance by the grantee or limit the liability of the grantee
under this franchise or for damages, either to the full amount of the bond
or otherwise.
A grantee shall provide one basic service and one extended basic service
outlet without charge to all city buildings and schools designated by the
city in the franchise agreement, provided that such designated locations are
located within 300 feet of existing cable plant and are used for municipal
or educational purposes. The grantee may charge for any excess footage in
making installations beyond 300 feet in accordance with applicable law and
regulation. Additional outlets in any of the above locations, or such locations
designated by the city, will be provided by the grantee at the cost of the
grantee's time and materials (actual cost). Alternatively, the city or
school may add additional outlets at its own expense.
A grantee shall at all times keep its cables and other appurtenances
used for transmitting signals shielded in such a manner that there will be
no interference with signals received by radios or televisions not connected
to the grantee's service.
A grantee may promulgate such rules, regulations, terms and conditions
governing the conduct of its business as shall be reasonably necessary to
enable the grantee to exercise its rights and perform its obligations under
the franchise and to assure uninterrupted service to all its subscribers.
However, such rules, regulations, terms and conditions shall not be in conflict
with the provisions of this chapter, the franchise agreement or state or federal
law.
A.Â
Interconnection required. When required under the franchise
agreement, a grantee shall interconnect its system with any or all other systems
located in the city for PEG purposes upon the directive of the city according
to the procedures set out in this section. Interconnection of systems may
be done by direct cable connection, microwave link, satellite or other appropriate
methods. Interconnection may be required for one or more PEG channels. Any
connection whatsoever of the grantee's system with any other system shall
not relieve the grantee of any of its obligations under this chapter or the
franchise agreement.
B.Â
Shared costs of interconnection. Upon receiving the directive
from the city to interconnect, the grantee shall immediately initiate negotiations
with the other affected system or systems in order that costs may be shared
equally by the grantees for both the construction and operation of the interconnection
link.
C.Â
Extension/suspension of interconnect order. A grantee
may be granted reasonable extensions of time to interconnect or the city may
suspend any order it may have issued to interconnect upon petition by the
grantee to the city if the city finds that the grantee has negotiated in good
faith and has failed to obtain agreement from the system owner of the proposed
interconnection, or has demonstrated that interconnection is technically unfeasible.
D.Â
Procedure. Once the city directs a grantee to interconnect,
the grantee is under an obligation to interconnect promptly. The grantee shall
have 60 days to reach an agreement on the terms of interconnection and to
submit that agreement to the city. In the event that the parties to the agreement
fail to submit that agreement, either may submit its interconnection proposal
to the city. The city, after public hearing, may establish the interconnection
requirements, and the parties shall promptly interconnect in accordance with
the city's direction. However, nothing in this section prevents either
party from appealing the city's order to a court of competent jurisdiction
if the party believes that it is unreasonable.
A.Â
Continuing regulatory jurisdiction. The Common Council
shall have continuing regulatory jurisdiction and supervision over the operation
and enforcement of this franchise and may, in the exercise of its police powers,
from time to time adopt such reasonable rules and regulations as it may deem
necessary. The continuing regulatory jurisdiction of the Common Council may
be delegated to and exercised by the Cable Television Commission and/or the
Cable Director.
B.Â
Cable Commission. The Cable Television Commission shall
consist of seven members appointed by the Mayor, and subject to confirmation
by the Common Council. One Commissioner shall be an Alderperson of the Common
Council who shall serve as the Commission's Secretary. The remainder
of the members shall be selected from citizens at large.
C.Â
Term of office. The Commissioners who are first appointed
shall be designated by the Mayor to serve for terms of one, two and three
years, respectively, from the date of their appointment. Thereafter, the term
of office shall be three years. A Commissioner shall hold office until his
or her successor has been appointed and has qualified. Vacancies shall be
filled for the unexpired term in the same manner as other appointments. The
Alderperson shall be annually appointed by the Mayor to a one-year term. All
terms shall commence on May 1 of the year of appointment.
D.Â
Duties of the Cable Commission. The duties of the Cable
Television Commission shall be as follows:
(1)Â
Identify the future cable-related needs and interests
of the community and review the performance of the cable operator under the
franchise during the current franchise term.
(2)Â
Negotiate franchise agreements with prospective and existing
grantees.
(3)Â
Meet at least quarterly to ensure that the needs of subscribers
are met under the terms of this chapter and the franchise agreement.
(4)Â
Regulate the activities and duties of the Cable Director.
(5)Â
Approve the Cable Television Commission annual budget.
(6)Â
Recommend to the Common Council all matters of legislation
and regulation concerning franchises granted pursuant to this chapter.
(7)Â
Resolve subscriber complaints or disputes between subscribers and a grantee which have been submitted to the Cable Director pursuant to § A262-24 of this chapter.
(8)Â
Review the reports and records submitted to the city
by a grantee as required under this chapter and such other correspondence
as submitted concerning the operation of the cable system so as to ensure
that the necessary reports are completed, submitted and fulfilled pursuant
to the terms of this chapter.
(9)Â
Administer the liquidated damages established in § A262-9B of this chapter to ensure the grantee's compliance with this chapter and the franchise agreement.
(10)Â
Carry out such other duties as the Common Council may
assign.
E.Â
Cable Director. There shall be one city employee designated
by the Cable Commission to hold the position of Cable Director.
F.Â
Duties of the Cable Director. The Cable Director shall
be charged with the following duties:
(1)Â
Receive and investigate such complaints, disputes and disagreements as may be directed or referred to the city between a subscriber and a grantee pursuant to § A262-24 of this chapter.
(2)Â
Report and present recommendations on complaints, disputes or disagreements after investigation to the Cable Television Commission for the issuance of a finding or the scheduling of a hearing as provided by § A262-24 of this chapter.
(3)Â
Confer with the grantee and advise on the interconnection
of the grantee's cable system with other cable systems.
(4)Â
Carry out such other duties as the Common Council and/or
Cable Television Commission may assign.
A.Â
Compliance with laws, rules and regulations. In the event
that any valid law, rule or regulation of any governing authority or agency
having jurisdiction, including but not limited to the FCC, contravenes the
provisions of this chapter subsequent to its adoption, the provisions hereof
shall be superseded by any such valid law, rule or regulation to the extent
that the provisions hereof are in conflict with and contrary to any such law,
rule or regulation.
B.Â
Severability. Should any word, phrase, clause, sentence,
paragraph or portion of this chapter or a franchise be declared to be invalid
by a court of competent jurisdiction, such adjudication shall not affect the
validity of this chapter and the franchise as a whole, but shall only affect
the portion thereof declared to be invalid; and the Common Council hereby
expressly states and declares that it would nonetheless have passed this chapter
and granted the franchise had it known that any such word, phrase, clause,
sentence, paragraph or portion of said chapter or franchise were invalid.
C.Â
Waiver or exemption. The city reserves the right to waive
provisions of this chapter or exempt a grantee from meeting provisions of
this chapter, if the city determines that such waiver or exemption is in the
public interest.
D.Â
Nonenforcement. Subject to the provisions of the Cable
Act, a grantee shall not be relieved of any obligation to comply with any
of the provisions of this chapter, the franchise agreement or any rule, regulation,
requirement or directive promulgated by the city by reason of any failure
of the city or its officers, agents or employees to enforce prompt compliance
nor shall such be considered a waiver thereof.
E.Â
Force majeure. Any delay, preemption or other failure
to provide cable service and to perform other duties contained in this chapter
and the franchise agreement by the grantee caused by factors beyond the grantee's
control, such as acts of God, labor disputes, nondelivery by program suppliers,
war, riots, government order or regulation, shall not result in a breach of
the terms of this chapter or the franchise agreement. The grantee shall exercise
reasonable efforts to cure promptly any such delays and the cause thereof,
and performance under the terms of this chapter and the franchise agreement
shall be excused by the city for the period of time during which such factors
continue.
