[HISTORY: Adopted by the Village Board of the Village of Shorewood
as Ch. 10, Art. 13 of the 1986 Code. Amendments noted where applicable.]
This chapter shall be known and may be cited as the "Shorewood Cable
Television Ordinance," hereinafter "this chapter."
For the purpose of this chapter the following terms, phrases, words
and their derivations shall have the meaning given herein. The word "may"
is permissive; the word "shall" is mandatory.
Any subscriber tier provided by the grantee which includes the delivery
of local broadcast stations and public, educational and governmental access
channels. The basic service does not include optional program and satellite
service tiers, a la carte services, or per-channel, per-program, or auxiliary
services for which a separate charge is made. However, the grantee may include
other satellite signals on the basic tier.
A system of antennas, cables, wires, lines, towers, wave guides,
or other conductors, converters, equipment or facilities designed and constructed
for the purpose of producing, receiving, transmitting, amplifying and distributing
audio, video, and other forms of electronic, electrical or optical signals,
which includes cable television service and which is located in the Village.
The definition shall not include any such facility that serves or will serve
only subscribers in one or more multiple-unit dwellings under common ownership,
control or management and which does not use Village rights-of-way.
A signaling path provided by a cable communications system to transmit
signals of any type from a subscriber terminal to another point in the cable
communications system.
Actual working control or ownership of a system in whatever manner
exercised. A rebuttable presumption of the existence of control or a controlling
interest shall arise from the beneficial ownership, directly or indirectly,
by any person or entity (except underwriters during the period in which they
are offering securities to the public) of 10% or more of a cable system or
the franchise under which the system is operated. A change in the control
or controlling interest of an entity which has control or a controlling interest
in a grantee shall constitute a change in the control or controlling interest
of the system under the same criteria. "Control" or "controlling interest"
as used herein may be held simultaneously by more than one person or entity.
An electronic device which converts signals to a frequency not susceptible
to interference within the television receiver of a subscriber and by an appropriate
channel selector also permits a subscriber to view more than 12 channels delivered
by the system at designated converter dial locations.
The Federal Communications Commission and any legally appointed,
designated or elected agent or successor.
Any agreement granting a grantee a franchise under § 235-3 hereof.
A person or entity to whom or which a franchise under this chapter
is granted by the Village, along with the lawful successors or assigns of
such person or entity.
All revenue collected directly or indirectly by the grantee from
the provision of cable service within the Village, including but not limited
to basic subscriber service monthly fees, pay cable fees, installation and
reconnection fees, franchise fees, leased channel fees, converter rentals,
program guides, studio rental, production equipment personnel fees, late fees,
downgrade fees, revenue from the sale, exchange, use or cable cast of any
programming developed on the system for community or institutional use, advertising,
and any value (at retail price levels) of any nonmonetary remuneration received
by the grantee in consideration of the performance of advertising or any other
service of the system; provided, however, that this shall not include any
taxes on services furnished by the grantee herein imposed directly upon any
subscriber or user by the state, local or other governmental unit and collected
by the grantee on behalf of the governmental unit. Subject to applicable federal
law, the term "gross revenues" includes revenues attributed to franchise fees
and revenues collected directly or indirectly from other ancillary telecommunications
services (such as, but not limited to, point-to-point telecommunications,
point-to-point multipoint telecommunications, data transmissions, etc.), but
only to the extent that all other providers of such telecommunications services
in the Village are subject to the same compensation requirements of the Village.
All areas in the Village having at least 20 dwelling units per street
mile.
The connection of the system from feeder cable to subscribers' terminals.
Observing a communications signal, or the absence of a signal, where
the observer is neither the subscriber nor the programmer, whether the signal
is observed by visual or electronic means, for any purpose whatsoever; provided
that "monitoring" shall not include system-wide, non-individually-addressed
sweeps of the system for purposes of verifying system integrity, controlling
return path transmissions, or billing for pay services.
Those hours during which similar businesses in the Village are open
to serve customers. In all cases, normal business hours shall include some
evening hours at least one night per week and/or some weekend hours.
Those service conditions which are within the control of the 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.
The loss of either picture or sound or both for a single or multiple
subscribers.
The surface of and all rights-of-way and the space above and below
any public street, road, highway, freeway, lane, path, public way or place,
sidewalk, alley, court, boulevard, parkway, drive or easement now or hereafter
held by the Village for the purpose of public travel and shall include other
easements or rights-of-way as shall be now held or hereafter held by the Village
which shall, within their proper use and meaning, entitle the grantee to the
use thereof for the purposes of installing poles, wires, cable, conductors,
ducts, conduits, vaults, manholes, amplifiers, appliances, attachments, and
other property as may be ordinarily necessary and pertinent to a telecommunications
system.
Any person, firm, corporation, or association lawfully receiving
basic and/or any additional service from the grantee.
A party utilizing a cable television system channel for purposes
of production or transmission of material to subscribers, as contrasted with
receipt thereof in a subscriber capacity.
The Village of Shorewood, Wisconsin.
Any franchise granted by the Village pursuant to § 66.0149,
Wis. Stats., shall grant to the grantee the right and privilege to erect,
construct, operate and maintain in, upon, and along, across, above, over and
under the streets now in existence and as may be created or established during
its term any poles, wires, cable, underground conduits, manholes, and other
television conductors and fixtures necessary for the maintenance and operation
of a cable system, subject to all other provisions of the Village Code.
A.
Upon adoption of any franchise agreement and execution
thereof by the grantee, the grantee agrees to be bound by all the terms and
conditions contained herein.
B.
Any grantee also agrees to provide all services specifically
set forth in its application and to provide cable television service within
the confines of the Village, and by its acceptance of the franchise the grantee
specifically grants and agrees that its application is thereby incorporated
by reference and made a part of the franchise. In the event of a conflict
between such proposals and the provisions of this chapter, that provision
which provides the greatest benefit to the Village, in the opinion of the
Village, shall prevail.
Any franchise is for the present territorial limits of the Village and
for any area henceforth added thereto during the term of the franchise.
The franchise and the rights, privileges and authority granted shall
take effect and be in force as set forth in the franchise agreement and shall
continue in force and effect for a term of no longer than 15 years, provided
that within 15 days after the date of final passage of the franchise the grantee
shall file with the Village its unconditional acceptance of the franchise
and promise to comply with and abide by all its provisions, terms and conditions.
Such acceptance and promise shall be in writing duly executed and sworn to
by or on behalf of the grantee before a notary public or other officer authorized
by law to administer oaths. Such franchise shall be nonexclusive and revocable.
A.
Current federal statutory process:
(1)
The Village may, on its own initiative, during the six-month
period which begins with the 36th month before the franchise expiration, commence
a proceeding which affords the public in the Village appropriate notice and
participation for the purpose of identifying the future cable-related community
needs and interests and reviewing the performance of the grantee under the
franchise. If the grantee submits, during such six-month period, a written
renewal notice requesting the commencement of such proceeding, the Village
shall commence such proceeding not later than six months after the date such
notice is submitted.
(2)
Upon completion of the proceeding under Subsection A(1) above, the grantee may, on its own initiative or at the request of the Village, submit a proposal for renewal. The Village may establish a date by which such proposal shall be submitted.
(3)
Upon submittal by the grantee of a proposal to the Village
for the renewal of the franchise, the Village shall provide prompt, public
notice of such proposal and renew the franchise or issue a preliminary assessment
that the franchise should not be renewed and, at the request of the grantee
or on its own initiative, commence an administrative proceeding, after providing
prompt, public notice of such proceeding.
(4)
The Village shall consider in any administrative proceeding
whether:
(a)
The grantee has substantially complied with material terms of
the existing franchise and with applicable law;
(b)
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 reasonable in the light of community needs;
(c)
The grantee has the financial, legal and technical ability to
provide the services, facilities and equipment as set forth in the grantee's
proposal; and
(d)
The grantee's proposal is reasonable to meet the future cable-related
community needs and interests, taking into account the costs of meeting such
needs and interests.
(5)
In any proceeding under Subsection A(4) above, the grantee shall be afforded fair opportunity for full participation, including the right to introduce evidence [including evidence related to issues raised in the proceedings under Subsection A(1) above], to require the production of evidence and to question witnesses. A transcript shall be made of any such proceeding.
(6)
At the completion of a proceeding under Subsection (A)(4)
above, the Village shall issue a written decision granting or denying the
proposal for renewal based upon the record of such proceeding and transmit
a copy of such decision to the grantee. Such decision shall state the reasons
therefor.
(7)
Any denial of a proposal for renewal that has been submitted in compliance with the procedures set forth above shall be based on one or more adverse findings made with respect to the factors described at Subsection A(4)(a) through (d) above pursuant to the record of the proceeding under said subsection. The Village may not base a denial of renewal on a failure to substantially comply with the material terms of the franchise or on events considered under Subsection A(4)(b) above unless the Village has provided the grantee with notice and the opportunity to cure or in any case in which it is documented that the Village has waived its right to object.
(8)
The grantee may appeal any final decision or failure of the Village to act in accordance with the procedural requirements of this section. The court shall grant appropriate relief if the court finds that any action of the Village is not in compliance with the procedural requirements of this section or, in the event of a final decision of the Village denying the renewal proposal, the grantee has demonstrated that the adverse finding of the Village with respect to each of the factors described in Subsection A(4)(a) through (d) on which the denial is based is not supported by a preponderance of the evidence, based on the record of the administrative proceeding.
B.
Franchise renewal in the event of change in federal law:
A franchise may be renewed by the Village upon application of the grantee
pursuant to the procedure established in this section and in accordance with
the then applicable law.
(1)
At least 24 months prior to the expiration of the franchise,
the grantee shall inform the Village in writing of its intent to seek renewal
of the franchise.
(2)
The grantee shall submit a proposal for renewal which
demonstrates that:
(a)
It has been and continues to be in substantial compliance
with the terms, conditions, and limitations of this chapter and its franchise;
(b)
Its system has been installed, constructed, maintained
and operated in accordance with the accepted standards of the industry and
this chapter and its franchise;
(c)
It has the legal, technical, financial, and other qualifications
to continue to maintain and operate its system and to extend the same as the
state of the art progresses so as to assure its subscribers high-quality service;
and
(d)
It has made a good faith effort to provide services and
facilities which accommodate the demonstrated needs of the community as may
be reasonably ascertained by the Village.
(3)
After giving public notice, the Village shall proceed
to determine whether the grantee has satisfactorily performed its obligations
under the franchise. To determine satisfactory performance, the Village shall
consider technical developments and performance of the system, programming,
other services offered, cost of services, and any other particular requirements
set in this chapter; shall consider the grantee's reports made to the Village
and the Federal Communication Commission; may require the grantee to make
available specified records, documents, and information for this purpose;
and may inquire specifically whether the grantee will supply services sufficient
to meet community needs and interests. Industry performance on a national
basis shall also be considered. Provision shall be made for public comment.
(4)
The Village shall then prepare any amendments to this
chapter that it believes necessary.
(5)
If the Village finds the grantee's performance satisfactory,
and finds the grantee's technical, legal, and financial abilities acceptable,
and finds that the grantee's renewal proposal meets the future cable-related
needs of the Village, a new franchise shall be granted pursuant to this chapter
as amended for a period to be determined.
(6)
If the grantee is determined by the Village to have performed
unsatisfactorily, new applicants may be sought and evaluated and a franchise
award shall be made by the Village according to franchising procedures adopted
by the Village.
A.
Nothing in this chapter shall be construed as an abrogation
by the Village of any of its police powers. In accepting this franchise, the
grantee shall acknowledge that its rights hereunder are subject to the police
power of the Village to adopt and enforce general ordinances necessary to
the safety and welfare of the public and shall agree to comply with all applicable
general laws and ordinances enacted by the Village pursuant to such power.
B.
Any conflict between the provisions of this chapter and
any other present or future lawful exercise of the Village's police powers
shall be resolved in favor of the latter, except that any such exercise that
is not of general application in the jurisdiction, or applies exclusively
to the grantee or cable television system which contains provisions inconsistent
with this franchise, shall prevail only if upon such exercise the Village
finds an emergency exists constituting a danger to health, safety, property
or general welfare of the Village or such exercise is mandated by law.
No cable television system shall be allowed to occupy or use the streets,
i.e. rights-of-way, for system installation and maintenance purposes, of the
Village or be allowed to operate without a franchise.
The Village shall have the right, during the life of this franchise,
to install and maintain free of charge upon the poles of the grantee any wire
or pole fixtures that do not unreasonably interfere with the cable television
system operations of the grantee. The Village shall indemnify and hold harmless
the grantee from any claim that might arise due to or as a result of the Village's
use.
Costs to be borne by the grantee shall include any requirements or charges
incidental to the awarding or enforcing of the initial franchise, but shall
not be limited to all costs of publications of notices prior to any public
meeting provided for pursuant to the franchise, and any costs not covered
by application fees, incurred by the Village in its study, preparation of
proposal documents, evaluation of all applications, and examinations of the
applicants' qualifications.
All notices from the grantee to the Village pursuant to this chapter
shall be to the Village Manager's office. The grantee shall maintain with
the Village, throughout the term of this franchise, an address for service
of notices by mail. The grantee shall maintain a central office to address
any issues relating to operating under this chapter.
A.
Within 60 days after the award of the initial franchise,
the grantee shall deposit with the Village one of the following: an irrevocable
letter of credit from a financial institution, a security deposit, or a performance
bond, in the amount of $50,000 (collectively, the "security"). The form and
content of the security shall be approved by the Village Attorney. The security
shall be used to insure the faithful performance of the grantee of all provisions
of this franchise; compliance with all orders, permits and directions of any
agency, commission, board, department, division, or office of the Village
having jurisdiction over its acts or defaults under this franchise; and the
payment by the grantee of any claims, liens, and taxes due the Village which
arise by reason of the construction, operation or maintenance of the system.
C.
If the grantee fails to pay to the Village any compensation
within the time fixed herein or fails, after 60 days' notice, to pay to the
Village any taxes due and unpaid or fails to repay the Village, within 15
days, any damages, costs or expenses which the Village is compelled to pay
by reason of any act or default of the grantee in connection with this franchise
or fails, after 60 days' notice of such failure by the Village, to comply
with any provision of this franchise which the Village reasonably determines
can be remedied by demand on the security, the Village may immediately request
payment of the amount thereof, with interest and any penalties, from the security.
Upon such request for payment, the Village shall notify the grantee of the
amount and date thereof.
D.
The rights reserved to the Village with respect to the
security are in addition to all other rights of the Village, whether reserved
by the franchise or authorized by law, and no action, proceeding or exercise
of a right under this section with respect to the security shall affect any
other right the Village may have.
E.
The security shall contain the following endorsement:
"It is hereby understood and agreed that this letter of credit, performance
bond or security deposit may not be canceled by the surety nor the intention
not to renew be stated by the surety until 30 days after receipt by the Village,
by registered mail, of a written notice of such intention to cancel or not
to renew."
F.
Receipt of the thirty-day notice shall be construed as
a default granting the Village the right to call on the security.
G.
The Village, at any time during the term of this chapter,
may waive the grantee's requirement to maintain the security. The invitation
to waive the requirement can be initiated by the Village or grantee.
A.
Within 30 days after the award of this franchise, the
grantee shall file with the Village a construction bond in the amount of not
less than 50% of costs to install the system contained in the new application
in favor of the Village. This bond shall be maintained throughout the construction
period and until such time as determined by the Village, unless otherwise
specified in a franchise agreement.
B.
If the grantee fails to comply with any law, ordinance or resolution governing the franchise, or fails to well and truly observe, fulfill and perform each term and condition of the franchise, as it relates to the conditions relative to the construction of the system, including the franchise agreement which is incorporated herein by reference, there shall be recoverable jointly and severally, from the principal and surety of the bond, any damages or loss suffered by the Village as a result, including the full amount of any compensation, indemnification, or cost of removal or abandonment of any property of the grantee, plus a reasonable allowance for attorney fees, including the Village's legal staff, and costs, up to the full amount of the bond. This section shall be an additional remedy for any and all violations outlined in § 235-13.
C.
The Village may, upon completion of construction of the
service area, waive or reduce the requirement of the grantee to maintain the
bond. However, the Village may require a construction bond to be posted by
the grantee for any construction subsequent to the completion of the initial
service area, in a reasonable amount and upon such terms as determined by
the Village.
D.
The bond shall contain the following endorsement: "It
is hereby understood and agreed that this bond may not be canceled by the
surety nor the intention not to renew be stated by the surety until 30 days
after receipt by the Village, by registered mail, of a written notice of such
intent to cancel and not to renew." Upon receipt of a thirty-day notice, this
shall be construed as default granting the Village the right to call in the
bond.
E.
The Village, at any time during the term of this chapter,
may waive the grantee's requirement to maintain a construction bond. The invitation
to waive the requirement can be initiated by the Village or grantee.
A.
The grantee shall maintain and by its acceptance of the
franchise specifically agrees that it will maintain throughout the term of
the franchise liability insurance insuring the Village and the grantee in
the minimum amount of:
B.
The certificate of insurance obtained by the grantee
in compliance with this section must be approved by the Village Attorney,
and such certificate of insurance, along with written evidence of payment
of required premiums, shall be filed and maintained with the Village during
the term of the franchise and may be changed from time to time to reflect
changing liability limits. The grantee shall immediately advise the Village
Attorney of any litigation that may develop that would affect this insurance.
C.
Neither the provisions of this section nor any damages
recovered by the Village thereunder shall be construed to or limit the liability
of the grantee under any franchise issued hereunder or for damages.
D.
All insurance policies maintained pursuant to this franchise
shall contain the following endorsement: "It is hereby understood and agreed
that this insurance policy may not be canceled by the surety nor the intention
not to renew be stated by the surety until 30 days after receipt by the Village,
by registered mail, of a written notice of such intention to cancel or not
to renew."
A.
Disclaimer of liability. The Village shall not at any
time be liable for injury or damage occurring to any person or property from
any cause whatsoever arising out of the construction, maintenance, repair,
use, operation, condition or dismantling of the grantee's system and due to
the act or omission of any person or entity other than the Village or those
persons or entities for whom or which the Village is legally liable as a matter
of law.
B.
Indemnification. The grantee shall, at its sole cost
and expense, indemnify and hold harmless the Village, all associated, affiliated,
allied and subsidiary entities of the Village, now existing or hereinafter
created, and their respective officers, boards, commissions, employees, agents,
attorneys, and contractors (hereinafter referred to as "indemnities") from
and against:
(1)
Any and all liability, obligation, damages, penalties,
claims, liens, costs, charges, losses and expenses (including, without limitation,
reasonable fees and expenses of attorneys, expert witnesses and consultants)
which may be imposed upon, incurred by or be asserted against the indemnities
by reason of any act or omission of the grantee, its personnel, employees,
agents, contractors or subcontractors resulting in personal injury, bodily
injury, sickness, disease or death to any person or damage to, loss of or
destruction of tangible or intangible property, libel, slander, invasion of
privacy and unauthorized use of any trademark, trade name, copyright, patent,
service mark or any other right of any person, firm or corporation which may
arise out of or be in any way connected with the construction, installation,
operation, maintenance or condition of the system caused by the grantee, its
subcontractors or agents or the grantee's failure to comply with any federal,
state or local statute, ordinance or regulation.
(2)
Any and all liabilities, obligations, damages, penalties,
claims, liens, costs, charges, losses and expenses (including, without limitation,
reasonable fees and expenses of attorneys, expert witnesses and other consultants)
which are imposed upon, incurred by or asserted against the indemnities by
reason of any claim or lien arising out of work, labor, materials or supplies
provided or supplied to the grantee, its contractors or subcontractors for
the installation, construction, operation or maintenance of the system caused
by the grantee, its subcontractors or agents and, upon the written request
of the Commission, shall cause such claim or lien to be discharged or bonded
within 15 days following such request.
(3)
Any and all liability, obligation, damages, penalties,
claims, liens, costs, charges, losses and expenses (including, without limitation,
reasonable fees and expenses of attorneys, expert witnesses and consultants)
which may be imposed upon, incurred by or be asserted against the indemnities
by reason of any financing or securities offering by the grantee or its affiliates
for violations of the common law or any laws, statutes, or regulations of
the State of Wisconsin or United States, including those of the Federal Securities
and Exchange Commission, whether by the grantee or otherwise, excluding therefrom,
however, claims which are solely based upon and shall arise solely out of
information supplied by the Village to the grantee in writing and included
in the offering materials with the express written approval of the Village
prior to the offering.
C.
Assumption of risk. The grantee undertakes and assumes
for its officers, agents, contractors and subcontractors and employees all
risk of dangerous conditions, if any, on or about any Village-owned or -controlled
property, including public rights-of-way, and the grantee hereby agrees to
indemnify and hold harmless the indemnities against and from any claim asserted
or liability imposed upon the indemnities for personal injury or property
damage to any person arising out of the installation, operation, maintenance
or condition of the system or the grantee's failure to comply with any federal,
state or local statute, ordinance or regulation.
D.
Defense of indemnities. In the event that any action
or proceeding shall be brought against the indemnities by reason of any matter
for which the indemnities are indemnified hereunder, the grantee shall, upon
notice from any of the indemnities, at the grantee's sole cost and expense,
resist and defend the same with legal counsel mutually acceptable to the Village
Attorney and grantee; provided further, however, that the grantee shall not
admit liability in any such matter on behalf of the indemnities without the
written consent of the Village Attorney or his designee.
E.
Notice, cooperation and expenses. The Village shall give
the grantee prompt notice of the making of any claim or the commencement of
any action, suit or other proceeding covered by the provisions of this section.
Nothing herein shall be deemed to prevent the Village from cooperating with
the grantee and participating in the defense of any litigation by the Village's
own counsel. The grantee shall pay all reasonable expenses incurred by the
Village in defending itself with regard to any such actions, suits or proceedings.
These expenses shall include all out-of-pocket expenses, such as attorney
fees, and shall also include the reasonable value of any services rendered
by or on behalf of the Village Attorney, if such service is determined necessary
and appropriate by the Village Attorney, and the actual expenses of the Village's
agents, employees or expert witnesses, and disbursements and liabilities assumed
by the Village in connection with such suits, actions or proceedings. No recovery
by the Village of any sum under the security shall be any limitation upon
the liability of the grantee to the Village under the terms of this section,
except that any sum so received by the Village shall be deducted from any
recovery which the Village might have against the grantee under the terms
of this section.
F.
Nonwaiver of statutory limits. Nothing in this chapter
or any franchise agreement is intended to express or imply a waiver of the
statutory provisions, of any kind or nature, as set forth in Wisconsin Statutes,
including § 893.80 et seq., and the limits of liability of the Village
as exist presently or as may be amended from time to time by the Legislature.
A.
The grantee shall not deny service, deny access, or otherwise
discriminate against subscribers, channel users, or general citizens on the
basis of race, color, religion, national origin, income or sex. The grantee
shall comply at all times with 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.
B.
The grantee shall strictly adhere to the equal employment
opportunity requirements of the Federal Communications Commission, state and
local regulations, and as amended from time to time.
C.
The grantee shall, at all times, comply with the privacy
requirements of state and federal law.
D.
The grantee is required to make all services available
to all residential dwellings throughout the initial service area.
Public meetings for the purposes of this chapter shall be open to the
public and noticed pursuant to law.
The grantee shall provide cable communications service throughout the
entire franchise area pursuant to the provisions of this franchise and shall
keep a record for at least two years of all written requests for service received
by the grantee. This record shall be available for public inspection at the
local office of the grantee during regular office hours.
A.
New construction timetable.
(1)
Within two years from the date of the award of the initial
franchise, the grantee must make cable television service available to every
dwelling unit within the initial service area.
(a)
The grantee must make cable television service available
to at least 20% of the dwelling units within the initial service area within
six months from the date of the award of the franchise.
(b)
The grantee must make cable television service available
to at least 50% of the dwelling units within the initial service area within
one year from the date of the award of the franchise.
(2)
The grantee, in its application, if any, 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 said schedule will be made part of the franchise agreement and
will be binding upon the grantee.
(4)
In special circumstances the Village can waive one-hundred-percent
completion within the two-year time frame, provided that substantial completion
is accomplished within the allotted time frame, "substantial completion" construed
to be not less than 95%, and justification for less than 100% must be submitted
subject to the satisfaction of the Village.
B.
Line extensions:
(1)
In areas of the franchise territory not included in the
initial service area, the grantee shall be required to extend its system pursuant
to the following requirements:
(a)
No customer shall be refused service arbitrarily. The
grantee is hereby authorized to extend the cable system as necessary within
the Village. To expedite the process of extending the cable system into a
new subdivision, the Village will forward to the grantee an approved engineering
plan of each project. Subject to the density requirements, the grantee shall
commence the design and construction process upon receipt of the final engineering
plan. Upon notification from the Village that the first home in the project
has been approved for building permit, the grantee shall have a maximum of
three months to complete the construction/activation process within the project
phase.
(b)
The grantee must extend and make cable television service
available to every dwelling unit in all unserved, developing areas having
at least 20 dwelling units planned per street mile, as measured from the existing
system, and shall extend its system simultaneously with the installation of
utility lines.
(c)
The grantee must extend and make cable television service
available to any isolated resident outside the initial service area requesting
connection at the standard connection charge, if the connection to the isolated
resident would require no more than a standard drop line of 175 feet.
(2)
Early extension. In areas not meeting the requirements
for mandatory extension of service, the grantee shall provide, upon the request
of a potential subscriber desiring service, an estimate of the costs required
to extend service to the subscriber. The grantee shall then extend service
upon request of the potential subscriber. The grantee may require advance
payment or assurance of payment satisfactory to the grantee. The amount paid
by subscribers for early extensions shall be nonrefundable, and in the event
that the area subsequently reaches the density required for mandatory extension,
such payments shall be treated as consideration for early extension.
(3)
New development. In cases of new construction or property
development where utilities are to be placed underground, the developer or
property owner shall give the grantee reasonable notice of such construction
or development and of the particular 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 grantee shall also
provide specifications as needed for trenching. Costs of trenching and easements
required to bring service to the development shall be borne by the developer
or property owner, except that if the grantee fails to install its conduit,
pedestals and/or vaults, and laterals within five working days of the date
the trenches are available, as designated in the notice given by the developer
or property owner, then should the trenches be closed after the five-day period,
the cost of new trenching is to be borne by the grantee. Except for the notice
of the particular date on which trenching will be available to the grantee,
any notice provided to the grantee by the Village of a preliminary plat request
shall satisfy the requirement of reasonable notice if sent to the local general
manager or system engineer of the grantee prior to approval of the preliminary
plat request.
C.
Special agreements. Nothing herein 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 those gross revenues is paid to the Village as franchise fees under § 235-27.
(1)
The grantee, in its application, may propose a line extension
policy which will result in serving more residents of the Village than as
required above, in which case the grantee's policy will be incorporated into
the franchise agreement and will be binding on the grantee.
A.
Compliance with construction and technical standards.
The grantee shall construct, install, operate and maintain its system in a
manner consistent with all laws, ordinances, construction standards, governmental
requirements, and FCC technical standards. In addition, the grantee shall
provide the Village, upon request, with a written report of the results of
the grantee's annual proof of performance tests conducted pursuant to Federal
Communications Commission standards and requirements.
B.
Additional specifications.
(1)
Construction, installation and maintenance of the cable
television system shall be performed in an orderly and workmanlike manner.
All cables and wires shall be installed, where possible, parallel with electric
and telephone lines. Multiple cable configurations shall be arranged in parallel
and bundled with due respect for engineering considerations.
(3)
In any event, the system shall not endanger or interfere
with the safety of persons or property in the franchise area or other areas
where the grantee may have equipment located.
(4)
Any antenna structure used in the system shall comply
with construction, marking, and lighting of antenna structures required by
the United States Department of Transportation and the Shorewood ordinances.
(5)
All working facilities and conditions used during construction,
installation and maintenance of the cable television system shall comply with
the standards of the Occupational Safety and Health Administration.
(6)
RF leakage shall be checked at reception locations for
emergency radio services to prove no interference signal combinations are
possible. Stray radiation shall be measured adjacent to any proposed aeronautical
navigation radio sites to prove no interference to airborne navigational reception
in the normal flight patterns. Federal Communications Commission rules and
regulations shall govern.
(7)
The grantee shall maintain equipment capable of providing
standby power for head end and transport system for a minimum of two hours.
(8)
In all areas of the Village where the cables, wires,
and other like facilities of public utilities are placed underground, the
grantee shall place its cables, wires, or other like facilities underground.
When public utilities relocate their facilities from pole to underground,
the grantee must concurrently do so.
A.
Interference with persons and improvements. The grantee's
system, poles, wires and appurtenances shall be located, erected and maintained
so that none of its facilities shall endanger or interfere with the lives
of persons or interfere with the rights or reasonable convenience of property
owners who adjoin any of the streets and public ways, or interfere with any
improvements the Village may deem proper to make, or unnecessarily hinder
or obstruct the free use of the streets, alleys, bridges, easements or public
property.
B.
Restoration to prior condition. In case of any disturbance
of pavement, sidewalk, landscaping, driveway or other surfacing by the grantee,
the grantee shall, at its own cost and expense and in a manner approved by
the Village, replace and restore all paving, sidewalk, driveway, landscaping,
or surface of any street or alley disturbed in as good condition as before
the work was commenced and in accordance with standards for such work set
by the Village.
C.
Erection, removal and common uses of poles.
(1)
No poles or other wire-holding structures shall be erected
by the grantee without prior approval of the Village with regard to location,
height, types, and any other pertinent aspect. However, no location of any
pole or wire-holding structure of the grantee shall be a vested interest,
and such poles or structures shall be removed or modified by the grantee at
its own expense whenever the Village determines that the public convenience
would be enhanced thereby.
(2)
Where poles or other wire-holding structures already
existing for use in serving the Village are available for use by the grantee
but it does not make arrangements for such use, the Village may require the
grantee to use such poles and structures if it determines that the public
convenience would be enhanced thereby and the terms of the use available to
the grantee are just and reasonable.
(3)
In the absence of any governing federal or state statute,
where the Village or a public utility serving the Village desires to make
use of the poles or other wire-holding structures of the grantee but agreement
thereof with the grantee cannot be reached, the Village may require the grantee
to permit such use for such consideration and upon such terms as the Village
shall determine to be just and reasonable, if the Village determines that
the use would enhance the public convenience and would not unduly interfere
with the grantee's operations.
D.
Relocation of the facilities. If at any time during the
period of this franchise the Village shall lawfully elect to alter or change
the grade of any street, alley or other public ways, the grantee, upon reasonable
notice by the Village, shall remove or relocate as necessary its poles, wires,
cables, underground conduits, manholes and other fixtures at its own expense,
unless the utilities are compensated, in which case the grantee shall be similarly
compensated.
E.
Cooperation with building movers. The grantee shall,
on the request of any person holding a building moving permit issued by the
Village, temporarily raise or lower its wires to permit the moving of buildings.
The expense of such temporary removal, raising or lowering of 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 not
less than 48 hours' advance notice to arrange for such temporary wire changes.
F.
Tree trimming. Except in the case of an emergency, the
grantee shall not remove any tree or trim any portion, either above, at or
below ground level, of any tree within any public place without the prior
consent of the Village. The Village shall have the right to do the trimming
requested by the grantee at the cost of the grantee. Regardless of who performs
the work requested by the grantee, the grantee shall be responsible and shall
defend and hold the Village harmless for any and all damages to any tree as
a result of trimming, or to the land surrounding any tree, whether such tree
is trimmed or removed.
A.
The grantee shall put, keep and maintain all parts of
the system in good condition throughout the entire franchise period.
B.
Upon the reasonable request for service by any person
located within the initial service area, the grantee shall, within 30 days,
furnish the requested service to such person the within terms of the line
extension policy. A request for service shall be unreasonable for the purpose
of this subsection if no trunk line installation capable of servicing that
person's block has as yet been installed.
C.
The grantee shall render efficient service, make repairs
promptly, and interrupt service only for good cause and for the shortest time
possible. Such interruptions, insofar as possible, shall be preceded by notice
and shall occur during periods of minimum system use.
D.
The grantee shall not allow its cable or other operations
to interfere with television reception of subscribers or persons not served
by the grantee, nor shall the system interfere with, obstruct or hinder in
any manner the operation of the various utilities serving the residents within
the confines of the Village, nor shall other utilities interfere with the
grantee's system.
E.
The grantee shall have knowledgeable, qualified grantee
representatives available to respond to customer telephone inquiries 24 hours
per day and seven days per week.
F.
Under normal operating conditions, telephone answer time,
including wait time and the time required to transfer the call, shall not
exceed 30 seconds. This standard shall be met no less than 90% of the time
as measured on an annual basis.
G.
Under normal operating conditions, the customer will
receive a busy signal less than 3% of the total time that the office is open
for business.
H.
Standard installations will be performed within seven
business days after an order has been placed. A standard installation is one
that is within 175 feet of the existing system.
I.
Excluding those situations which are beyond its control,
the grantee will respond to any service interruption promptly and in no event
later than 24 hours from the time of initial notification. All other regular
service requests will be responded to within 36 hours during the normal workweek
for that system. The appointment window alternatives for installations, service
calls and other installation activities will be morning or afternoon, not
to exceed a four-hour window during normal business hours for the system,
or at a time that is mutually acceptable. The grantee will schedule supplemental
hours during which appointments can be scheduled based on the needs of the
community. If at any time an installer or technician is running late, an attempt
to contact the customer will be made and the appointment rescheduled as necessary
at a time that is convenient to the customer.
J.
Customer service centers and bill payment locations will
be open for walk-in customer transactions a minimum of eight hours a day Monday
through Friday, unless there is a need to modify those hours because of the
location or customers served. The grantee and Village by mutual consent will
establish supplemental hours on weekdays and weekends if it would fit the
needs of the community.
K.
Subscriber credit for outages. Upon service interruption
and/or outages of subscriber's cable service, the following shall apply:
(1)
For service interruptions and/or outages of over four
hours and up to even days, the grantee shall provide, at the subscriber's
written request, credit of 1/30 of one month's fees for affected services
for each twenty-four-hour period service is interrupted for four or more hours
for any single subscriber, with the exception of subscribers disconnected
because of nonpayment or excessive signal leakage.
(2)
For service interruptions and/or outages of seven days
or more in one month, the grantee shall provide, at the subscriber's written
request, a full month's credit for affected services for all affected subscribers.
L.
The grantee will provide written information in each
of the following areas at the time of installation and at any future time
upon the request of a subscriber:
M.
Bills will be clear, concise and understandable, with
all cable services itemized.
N.
Credits will be issued promptly, but no later than the
subscriber's next billing cycle following the resolution of the request and
the return of the equipment by the grantee if service has been terminated.
O.
Subscribers will be notified a minimum of 30 days in
advance of any rate or channel change, provided that the change is within
the control of the grantee.
P.
The grantee shall maintain and operate its network in
accordance with the rules and regulations as are incorporated herein or as
may be promulgated by the Federal Communication Commissions, the United States
Congress, or the State of Wisconsin.
Q.
The grantee shall continue, through the term of the franchise, to maintain the technical standards and quality of service set forth in this chapter. Should the Village find, by resolution, that the grantee has failed to maintain these technical standards and quality of service, the grantee shall be required to implement a plan for resolution. Failure to make such improvements within three months of such resolution will constitute a breach of a condition for which penalties contained in § 235-46 are applicable.
R.
The grantee shall keep a monthly service log which will
indicate the nature of each service complaint for which a work order is generated
or which is received in writing, received in the last 24 months, the date
and time it was received, the disposition of said complaint, and the time
and date thereof. This log shall be made available for periodic inspection
by the Village.
A.
It shall be the right of all subscribers to continue
receiving service insofar as their financial and other obligations to the
grantee are honored. If the grantee elects to overbuild, rebuild, modify or
sell the system, or the Village gives notice of intent to terminate or fails
to renew this franchise, the grantee shall act so as to ensure that all subscribers
receive continuous, uninterrupted service regardless of the circumstances.
B.
If there is a change of franchise, or if a new operator
acquires the system, the grantee shall cooperate with the Village, new franchisee
or operator in maintaining continuity of service to all subscribers. During
such period, the grantee shall be entitled to the revenues for any period
during which it operates the system and shall be entitled to reasonable costs
for its services until it no longer operates the system.
C.
If the grantee fails to operate the system for seven
consecutive days without prior approval of the Village or without just cause,
the Village may, at its option, operate the system or designate an operator
until such time as the grantee restores service under conditions acceptable
to the Village or a permanent operator is selected. If the Village is required
to fulfill this obligation for the grantee, the grantee shall reimburse the
Village for all reasonable costs or damages in excess of revenues from the
system received by the Village that are the result of the grantee's failure
to perform.
A.
The Village Manager is designated as having primary responsibility
for the continuing administration of the franchise and implementation of complaint
procedures.
B.
During the terms of the franchise, and any renewal thereof,
the grantee shall maintain a central office for the purpose of receiving and
resolving all complaints regarding the quality of service, equipment malfunctions,
and similar matters. The office must be reachable by a local, toll-free telephone
call to receive complaints regarding quality of service, equipment malfunctions
and similar matters. The grantee will use its good faith efforts to arrange
for one or more payment locations in a central location where subscribers
can pay bills or conduct other business activities.
C.
As subscribers are connected or reconnected to the system,
the grantee shall, by appropriate means, such as a card or brochure, furnish
information concerning the procedures for 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.
D.
When there have been similar complaints made, or where
there exists other evidence which, in the judgment of the Village, casts doubt
on the reliability or quality of cable service, the Village shall have the
right and authority to require the grantee to test, analyze and report on
the performance of the system. The grantee shall fully cooperate with the
Village in performing such testing and shall prepare results and a report,
if requested, within 30 days after notice. Such report shall include the following
information:
(1)
The nature of the complaint or problem which precipitated
the special tests.
(2)
What system component was tested.
(3)
The equipment used and procedures employed in testing.
(4)
The method, if any, in which such complaint or problem
was resolved.
(5)
Any other information pertinent to the tests and analysis
which may be required.
E.
The Village may require that tests be supervised by an
independent professional engineer or equivalent of the Village's choice. The
engineer should sign all records of special tests and forward to the Village
such records with a report interpreting the results of the tests and recommending
actions to be taken. Should such a test prove that the grantee failed to meet
the technical standard, the grantee shall bear the cost of the test. If the
test should prove that the grantee met the technical standards, the Village
shall bear the cost of the test.
F.
The Village's right under this section shall be limited
to requiring tests, analysis and reports covering specific subjects and characteristics
based on complaints or other evidence when and under such circumstances as
the Village has reasonable grounds to believe that the complaints or other
evidence requires that tests be performed to protect the public against substandard
cable service.
The grantee shall have the authority to promulgate such rules, regulations,
terms and conditions governing the conduct of its business as shall be reasonably
necessary to enable the grantee to exercise its rights and perform its obligations
under this franchise and to assure an uninterrupted service to each and all
of its customers; provided, however, that such rules, regulations, terms and
conditions shall not be in conflict with the provisions hereof or applicable
state and federal laws, rules and regulations.
A.
Since the streets of the Village to be used by the grantee
in the operation of its system within the boundaries of the Village are valuable
public properties acquired and maintained by the Village at great expense
to its taxpayers, and since the grant to the grantee to the streets is a valuable
property right without which the grantee would be required to invest substantial
capital in right-of-way costs and acquisitions, the grantee shall pay to the
Village an amount equal to 5% of the grantee's gross revenues from the operations
of the grantee within the confines of the Village or contract area. If the
statutory five-percent limitation on franchise fees is raised or the federal
statute deletes the franchise fee limitation entirely, then the franchise
fee may be subject to renegotiation.
B.
The franchise fee shall be in addition to any other tax
or payment owed to the Village by the grantee.
C.
The franchise fee and any other costs or penalties assessed
shall be payable quarterly on a calendar-year basis to the Village within
45 days after the end of each calendar quarter. The grantee shall file a complete
and accurate verified statement of gross revenues in such form as established
between the Village and the grantee.
D.
The Village shall have the right to inspect the grantee's
books and records and the right to audit and to recompute any amounts determined
to be payable under this chapter for any calendar year; provided, however,
that any such audit shall take place within 24 months following the close
of a particular calendar year. Any additional amount due to the Village as
a result of the audit shall be paid within 30 days following written notice
to the grantee by the Village, which notice shall include a copy of the audit
report.
E.
If any franchise payment or recomputed amount, cost or
penalty is not made on or before the applicable dates heretofore specified,
interest shall be charged daily from such date at the legal maximum rate charged
by the United States Internal Revenue Service for late tax payments, and the
grantee shall reimburse the Village for any additional expenses and costs
incurred by the Village by reason of the delinquent payment(s).
A.
Except as may be provided in a franchise agreement, a
franchise shall not be assigned or transferred, either in whole or in part,
or leased, sublet or mortgaged in any manner, nor shall title thereto, either
legal or equitable, or any right, interest or property therein pass to or
vest in any person without the prior written consent of the Village. The grantee
may, however, transfer or assign the franchise to a wholly owned subsidiary
of the grantee and such subsidiary may transfer or assign the franchise back
to the grantee without such consent, provided that such assignment is without
any release of liability of the grantee. The proposed assignee must show financial
responsibility as determined by the Village and must agree to comply with
all provisions of the franchise. The Village shall have 120 days to act upon
any request for approval of such a sale or transfer submitted in writing that
contains or is accompanied by such information as is required in accordance
with FCC regulations and by the Village. The Village shall be deemed to have
consented to a proposed transfer or assignment if its refusal to consent is
not communicated in writing to the grantee within 120 days following receipt
of written notice and the necessary information as to the effect of the proposed
transfer or assignment upon the public, unless the requesting party and the
Village agree to an extension of time. The Village shall not unreasonably
withhold such consent to the proposed transfer.
B.
Except as may be provided in a franchise agreement, the
grantee shall promptly notify the Village of any actual or proposed change
in, or transfer of, or acquisition by any other party of, control or controlling
interest of the grantee. The word "control" as used herein is not limited
to major stockholders but includes actual working control in whatever manner
exercised. 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 10% 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 Village shall have consented thereto,
which consent will not be unreasonably withheld. For the purpose of determining
whether it shall consent to such change, transfer or acquisition of control,
the Village may inquire into the qualification of the prospective controlling
party, and the grantee shall assist the Village in such inquiry.
C.
The consent or approval of the Village to any transfer
of the grantee shall not constitute a waiver or release of the rights of the
Village in and to the streets, and any transfer shall, by its terms, be expressly
subordinate to the terms and conditions of this franchise.
D.
In the absence of extraordinary circumstances, the Village
will not approve any transfer or assignment of an initial franchise prior
to substantial completion of construction of the proposed system.
E.
In no event shall a transfer of ownership or control
or an assignment of the franchise be approved without the successor in interest
or the assignee becoming a signatory to the franchise agreement.
A.
The grantee shall fully cooperate in making available
at reasonable times, and the Village shall have the right to inspect, where
reasonably necessary to the enforcement of the franchise, books, records,
maps, plans and other like materials of the grantee applicable to the system,
at any time during normal business hours, provided that where volume and convenience
necessitate, the grantee may require inspection to take place on the grantee's
premises.
B.
The following records and/or reports are to be made available
to the Village upon request, but no more frequently than once on an annual
basis unless mutually agreed upon by the grantee and the Village:
(1)
A quarterly review and resolution or progress report
submitted by the grantee to the Village.
(2)
Periodic preventive maintenance reports.
(3)
Any copies of FCC Form 395-A (or successor form) or any
supplemental forms related to equal opportunity or fair contracting policies.
(4)
Subscriber inquiry/complaint resolution data and the
right to review documentation concerning these inquiries and/or complaints
periodically.
(5)
Periodic construction update reports, including where
appropriate the submission of as-built maps.
Copies of all petitions, applications, communications and reports either
submitted by the grantee to the Federal Communications Commission, Securities
and Exchange Commission, or any other federal or state regulatory commission
or agency having jurisdiction in respect to any matters affecting the system
authorized pursuant to the franchise or received from such agencies shall
be provided to the Village upon request.
The grantee shall file annually with the Village, no later than 120
days after the end of the grantee's fiscal year, a copy of a gross revenues
statement certified by an officer of the grantee.
At the expiration of the terms for which a franchise is granted and
any renewal denied, or upon its termination as provided herein, the grantee
shall forthwith, upon notice by the Village, remove at its own expense all
designated portions of the cable television system from all streets and public
property within the Village. If the grantee fails to do so, the Village may
perform the work at the grantee's expense. Upon such notice of removal, a
bond shall be furnished by the grantee in an amount sufficient to cover this
expense.
A.
The cable television system shall have a minimum channel
capacity of 77 channels and at least 750 MHz of bandwidth available for future
use.
B.
Such system shall maintain a plant having the technical
capacity for two-way communications.
C.
The grantee shall maintain the following: at least one
specially designated, noncommercial public access channel available on a first-come,
nondiscriminatory basis; at least one specially designated channel for use
by local educational authorities; at least one specially designated channel
for local governmental uses; and at least one specially designated channel
for leased access uses; provided, however, that these uses may be combined
on one or more channels until such time as additional channels become necessary
in the opinion of the Village. Financial and technical support, replacement
and maintenance of equipment of this facility shall be separately incorporated
into a franchise agreement. The grantee shall maintain an institutional network
(I-Net) of cable, optical, electrical or electronic equipment, used for the
purpose of transmitting two-way telecommunications signals interconnecting
designated entities as set forth in the franchise agreement and mutually agreed
to by the grantee and the grantor. Such institutional network may be provided
as needed by utilizing capacity on the system.
D.
The grantee shall incorporate into the system the capacity
which will permit the Village, in times of local emergency, to override by
remote control the audio of all channels simultaneously which the grantee
may lawfully override or to place a crawl on all such channels. The grantee
shall provide emergency broadcast capacity pursuant to FCC rules. The grantee
shall cooperate with the Village in the use and operation of the emergency
alert override system.
E.
The grantee may be required to interconnect its system
with other adjacent cable television systems for the purpose of sharing public,
educational, and governmental access programming. Such interconnection shall
be made within a reasonable time limit to be established by the Village.
(1)
Interconnection procedure. Upon receiving the directive
of the Village to interconnect, the grantee shall immediately initiate negotiations
with the other affected system or systems in order that all costs may be shared
equally among cable companies for both construction and operation of the interconnection
link.
(2)
Relief. The grantee may be granted reasonable extensions
of time to interconnect or the Village may rescind its order to interconnect
upon petition by the grantee to the Village. The Village shall grant the request
if it finds that the grantee has negotiated in good faith and has failed to
obtain an approval from the operator or franchising authority of the system
to be interconnected, or the cost of the interconnection would cause an unreasonable
or unacceptable increase in subscriber rates.
(3)
Cooperation required. The grantee shall cooperate with
any interconnection corporation, regional interconnection authority or Village,
county, state and federal regulatory agency which may be hereafter established
for the purpose of regulating, financing, or otherwise providing for the interconnection
of cable systems beyond the boundaries of the Village.
(4)
Initial technical requirements to assure future interconnection
capability.
(a)
All systems receiving franchises to operate within the
Village shall use the standard frequency allocations for television signals.
(b)
All systems are required to use signal processors at
the head end for each television signal.
(c)
The Village also urges grantees to provide local origination
equipment that is compatible throughout the area so that videocassettes or
videotapes can be shared by various systems.
(d)
A grantee shall provide such additional services and
facilities as are contained in its application, if any.
A.
In addition to the inherent powers of the Village to
regulate and control a cable television franchise, and those powers expressly
reserved by the Village, or agreed to and provided for herein, the right and
power is hereby reserved by the Village to promulgate such additional regulations
as it shall find necessary in the exercise of its lawful powers and furtherance
of the terms and conditions of this chapter; provided, however, that such
rules, regulations, terms and conditions shall not be in conflict with the
provisions hereof or applicable state and federal laws, rules and regulations.
B.
The Village may also adopt such regulations at the request
of grantee upon application.
A.
The Village and the grantee may hold scheduled performance
evaluation sessions within 30 days of the third, sixth, and 12th anniversary
dates of the grantee's award or renewal of the franchise and as may be required
by federal and state law. All such evaluation sessions shall be open to the
public.
B.
Special evaluation sessions may be held at any time during
the term of the franchise at the request of the Village or the grantee.
C.
All evaluation sessions shall be open to the public and
noticed pursuant to law. The grantee shall notify its subscribers of all evaluation
sessions by announcements on at least one channel of its system between the
hours of 7:00 p.m. and 9:00 p.m. for five consecutive days preceding each
session.
D.
Topics which may be discussed at any scheduled or special
evaluation session may include, but not be limited to, service rate structures;
franchise fees; penalties; free or discounted services; application of new
technologies; system performance; services provided; programming offered;
customer complaints; privacy; amendments to this chapter; judicial and FCC
rulings; line extension policies; and grantee or Village rules.
E.
Members of the general public may add topics either by
working through the Village or grantee or by presenting a petition. If such
a petition bears the valid signatures of 50 or more residents of the Village,
the proposed topic or topics shall be added to the list of topics to be discussed
at the evaluation session.
Pursuant to the Cable Television Consumer Protection and Competition
Act of 1992, the Village is currently certified to regulate the basic service
rates charged by the grantee. Under these rules, the grantee is required to
obtain approval from the Village for a rate increase for any change to the
rates for basic service. Should federal or state law permit further rate regulation
beyond the basic service, the Village may assume such rate regulation and
adopt appropriate procedures for such regulation.
A.
In addition to all other rights and powers retained by
the Village under this chapter or otherwise, the Village reserves the right
to forfeit and terminate the franchise and all rights and privileges of the
grantee thereunder in the event of a substantial breach of its terms and conditions.
A substantial breach by the grantee shall include but shall not be limited
to the following:
(1)
Violation of any material provision of this chapter or
the franchise or any material rule, order, regulation or determination of
the Village made pursuant to the franchise;
(2)
Attempt to evade any material provision of this chapter
or the franchise or practice any fraud or deceit upon the Village or its subscribers;
(3)
Failure to begin or complete system construction or system extension as provided under § 235-20;
(4)
Failure to provide the services promised in the grantee's application, if any, as incorporated herein by § 235-4;
(5)
Failure to restore service after 96 consecutive hours
of interrupted service, except when approval of such interruption is obtained
from the Village; or
(6)
Material misrepresentation of fact in the application
for or negotiation of the franchise.
B.
The foregoing shall not constitute a substantial breach
if the violation occurs but is without fault of the grantee or occurs as a
result of circumstances beyond its control. The grantee shall not be excused
by mere economic hardship nor by misfeasance or malfeasance of
its directors, officers or employees.
C.
The Village may make a written demand that the grantee
comply with any such provision, rule, order or determination under or pursuant
to the franchise. If the violation by the grantee continues for a period of
30 days following such written demand without written proof that the corrective
action has been taken or is being actively and expeditiously pursued, the
Village may place the issue of termination of the franchise before the Village
Board. The Village shall cause to be served upon the grantee, at least 20
days prior to the date of such meeting, a written notice of intent to request
such termination and the time and place of the meeting. Public notice shall
be given of the meeting and the issue(s) which the Board is to consider.
D.
The Village Board shall hear and consider the issue(s)
and shall hear any person interested therein and shall determine in its discretion
whether or not any violation by the grantee has occurred.
E.
If the Village Board shall determine the violation by
the grantee was the fault of the grantee and within its control, the Board
may, by resolution, declare that the franchise of the grantee shall be forfeited
and terminated unless there is compliance within such period as the Board
may fix, such period not to be less than 60 days, provided that no opportunity
for compliance need be granted for fraud or misrepresentation.
F.
The issue of forfeiture and termination shall automatically
be placed upon the Board agenda at the expiration of the time set by it for
compliance. The Board then may terminate the franchise forthwith upon finding
that the grantee has failed to achieve compliance or may further extend the
period, in its discretion.
Upon the foreclosure or other judicial sale of all or a substantial
part of the system, or upon the termination of any lease covering all or a
substantial part of the system, the grantee shall notify the Village of such
fact, and such notification shall be treated as a notification that a change
in control of the grantee has taken place, and the provisions of this chapter
governing the consent of the Village to such change in control of the grantee
shall apply.
A.
Federal regulations as per 47 U.S.C. § 537 shall apply to the right of acquisition by the Village. In the event that the relevant federal regulations are repealed, the guidelines specified in Subsection B below shall apply.
B.
Upon the expiration of the term of the franchise and denial of any renewal or upon any other termination thereof as provided herein, the Village at its election and upon the payment to the grantee of a price equal to the fair market value shall have the right to purchase and take over the system upon resolution by the Village Board. If the Village has denied the grantee's petition for renewal of its franchise as provided by § 235-7, the Village must exercise its option to purchase the system within 60 days of the denial of renewal and at least six months prior to the end of the franchise. Nothing shall prohibit the grantee, in the event of the election of the Village to purchase the system, from requesting the court to set a reasonable bond of the Village to secure the purchase price. The grantee shall execute such warranty deeds and other instruments as may be necessary.
The Village shall have the right to cancel the franchise 120 days after
the appointment of a receiver, or trustee, to take over and conduct the business
of the grantee, whether in receivership, reorganization, bankruptcy or other
action or proceeding, unless such receivership or trusteeship shall have been
vacated prior to the expiration of 120 days or unless:
A.
Within 120 days after his/her election or appointment,
such receiver or trustee shall have fully complied with all the provisions
of this chapter and remedied all defaults there under; and
B.
Such receiver or trustee, within the 120 days, shall have executed
an agreement, duly approved by the court having jurisdiction in the premises,
whereby such receiver or trustee assumes and agrees to be bound by each and
every provision of this chapter and the franchise granted to the grantee.
A.
Notwithstanding any other provisions of this chapter
to the contrary, the grantee shall at all times comply with all laws and regulations
of the state and federal government or any administrative agencies thereof;
provided, however, that if any such state or federal law or regulation shall
require the grantee to perform any service, or shall permit the grantee to
perform any service, or shall prohibit the grantee from performing any service,
in conflict with the terms of this franchise or of any law or regulation of
the Village, then as soon as possible following knowledge thereof, the grantee
shall notify the Village of the point of conflict believed to exist between
such regulation or law and the laws or regulations of the Village or this
franchise.
B.
If the Village determines that a material provision of
this chapter is affected by any subsequent action of the state or federal
government, the Village and the grantee shall negotiate to modify any of the
provisions herein to such reasonable extent as may be necessary to carry out
the full intent and purpose of this agreement.
A.
Interference with cable service prohibited. Neither the
owner of any multiple-unit residential dwelling nor the owner's agent or representative
shall interfere with the right of any tenant or lawful resident thereof to
receive cable communication service, cable installation or maintenance from
a grantee regulated by and lawfully operating under a valid and existing franchise
issued by the Village.
B.
Gratuities and payments to permit service prohibited.
Neither the owner of any multiple-unit residential dwelling nor the owner's
agent or representative shall ask, demand or receive any payment, service
or gratuity in any form as a condition for permitting or cooperating with
the installation of a cable communication service to the dwelling unit occupied
by a tenant or resident requesting service.
C.
Penalties and charges to tenants for service prohibited.
Neither the owner or any multiple-unit residential dwelling nor the owner's
agent or representative shall penalize, charge or surcharge a tenant or resident
or forfeit or threaten to forfeit any right of such tenant or resident or
discriminate in any way against such tenant or resident who requests or receives
cable communication service from a grantee operating under a valid and existing
franchise issued by the Village.
D.
Reselling service prohibited. No person shall resell,
without the expressed, written consent of both the grantee and the Village,
any cable service, program or signal transmitted by a grantee under a franchise
issued by the Village.
E.
Protection of property permitted. Nothing in this chapter
shall prohibit a person from requiring that cable communication system facilities
conform to laws and regulations and reasonable conditions necessary to protect
the safety, functioning, appearance and value of the premises or the convenience
and safety of persons or property.
F.
Risks assumed by grantee. Nothing in this chapter shall
prohibit a person from requiring a grantee to agree to indemnify the owner
or the owner's agents or representatives for damages or from liability for
damages caused by the installation, operation, maintenance or removal of cable
communication facilities.
A.
All bids received by the Village from the applicants
for an initial franchise will become the sole property of the Village.
B.
The Village reserves the right to reject any and all
bids and waive informalities and/or technicalities where the best interest
of the Village may be served.
C.
All questions regarding the meaning or intent of this
chapter or application documents shall be submitted to the Village in writing.
Replies will be issued by addenda mailed or delivered to all parties recorded
by the Village as having received the application documents. The Village reserves
the right to make extensions of time for receiving bids as it deems necessary.
Questions received less than 14 days prior to the date for the opening of
bids will not be answered. Only replies to questions by written addenda will
be binding. All bids must contain an acknowledgment of receipt of all addenda.
D.
Bids must be sealed and submitted at the time and place
indicated in the application documents for the public opening. Bids may be
modified at any time prior to the opening of the bids, provided that any modifications
must be duly executed in the manner that the applicant's bid must be executed.
No bid shall be opened or inspected before the public opening.
E.
Before submitting a bid, each applicant must:
(1)
Examine this chapter and the application documents thoroughly;
(2)
Familiarize himself/herself with local conditions that
may in any manner affect performance under the franchise;
(3)
Familiarize himself/herself with federal, state and local
laws, ordinances, rules and regulations affecting performance under the franchise;
and
(4)
Carefully correlate the bid with the requirements of
this chapter and the application documents.
F.
The Village may make such investigations as it deems
necessary to determine the ability of the applicant to perform under the franchise,
and the applicant shall furnish to the Village all such information and data
for this purpose as the Village may request. The Village reserves the right
to reject any bid if the evidence submitted by, or investigation of, such
applicant fails to satisfy the Village that such applicant is properly qualified
to carry out the obligations of the franchise and to complete the work contemplated
therein. Conditional bids will not be accepted.
G.
All bids received shall be placed in a secure depository
approved by the Village and not opened or inspected prior to the public opening.
A.
No initial franchise will be granted to any applicant
unless all requirements and demands of the Village regarding financial, contractual,
shareholder and system disclosure have been met.
B.
Applicants, including all shareholders and parties with
any interest in the applicant, shall fully disclose all agreements and undertakings,
whether written or oral or implied, with any person, firm, group, association
or corporation with respect to a franchise and the proposed cable television
system. The grantee shall disclose all other contracts to the Village as the
contracts are made. This subsection shall include, but not be limited to,
any agreements between local applicants and national companies.
C.
Applicants, including all shareholders and parties with
any interest in the applicant, shall submit all requested information as provided
by the terms of this chapter or the application documents, which are incorporated
herein by reference. The requested information must be complete and verified
as true by the applicant.
D.
Applicants, including all shareholders and parties with
any interest in the applicant, shall disclose the numbers of shares of stock,
and the holders thereof, and shall include the amount of consideration for
each share of stock and the nature of the consideration.
E.
Applicants, including all shareholders and parties with
any interest in the applicant, shall disclose any information required by
the application documents regarding other cable systems in which they hold
an interest of any nature, including but not limited to the following:
(1)
Locations of all other franchises and the dates of award
for each location;
(2)
Estimated construction costs and estimated completion
dates for each system;
(3)
Estimated number of miles of construction and number
of miles completed in each system as of the date of this application; and
(4)
Date for completion of construction as promised in the
application for each system.
F.
Applicants, including all shareholders and parties with
any interest in the applicant, shall disclose any information required by
the application documents regarding pending applications for other cable systems,
including but not limited to the following:
A.
No person may intentionally do any of the following:
(1)
Obtain or attempt to obtain cable television service
from a grantee by trick, artifice, deception, use of an illegal device or
illegal decoder or other fraudulent means with the intent to deprive that
grantee of any or all lawful compensation for rendering each type of service
obtained. The intent required for a violation of this subsection may be inferred
from the presence on the property and in the actual possession of the defendant
of a device not authorized by the grantee, the major purpose of which is to
permit reception of cable television services without payment. This inference
is rebutted if the defendant demonstrates that he or she purchased that device
for a legitimate use.
(2)
Give technical assistance or instruction to any person
in obtaining or attempting to obtain any cable television service without
payment of all lawful compensation to the grantee providing that service.
This subsection does not apply if the defendant demonstrates that the technical
assistance or instruction was given or the installation of the connection,
descrambler or receiving device was for a legitimate use.
(3)
Make or maintain a connection, whether physical, electrical,
mechanical, acoustical or by other means, with any cables, wires, components
or other devices used for the distribution of cable television services for
the purpose of distributing cable television service to any other dwelling
unit without authority from a grantee.
(4)
Make or maintain a connection, whether physical, electrical,
mechanical, acoustical or by other means, with any cables, wires, components
or other devices used for the distribution of cable television services for
the purpose of obtaining cable television service without payment of all lawful
compensation to the grantee providing the service. The intent required for
a violation of this subsection may be inferred from proof that the cable service
to the defendant's residence or business was connected under a service agreement
with the grantee and has been disconnected by the grantee and that thereafter
there exists in fact a connection to the system at the defendant's residence
or business.
(5)
Make or maintain any modification or alteration to any
device installed with the authorization of a grantee for the purpose of intercepting
or receiving any program or other service carried by that grantee which that
person is not authorized by that grantee to receive. The intent required for
a violation of this subsection may be interred from proof that, as a matter
of standard procedure, the grantee places written warning labels on its converters
explaining that tampering with the device is a violation of law and the converter
decoder is found to have been tampered with, altered or modified so as to
allow the reception or interception of programming carried by the grantee
without authority to do so. The trier of fact may also infer that a converter
decoder has been altered or modified from proof that the grantee, as a matter
of standard procedure, seals the converters with a label or mechanical device,
that the seal was shown to the customer upon delivery of the decoder and that
the seal has been removed or broken. The inferences under this subsection
are rebutted if the grantee cannot demonstrate that the intact seal was shown
to the customer.
(6)
Possess without authority any device or printed circuit board designed to receive from a system any cable television programming or services offered for sale over that system, whether or not the programming or services are encoded, filtered, scrambled or otherwise made unintelligible, or perform or facilitate the performance of any of the acts under Subsection A(1) to (5) with the intent that the device or printed circuit be used to receive that grantee's services without payment. Intent to violate this subsection for direct or indirect commercial advantage or private financial gain may be inferred from proof of the existence on the property and in the actual possession of the defendant of a device if the totality of circumstances, including quantities or volumes, indicates possession for resale.
(7)
Manufacture, import into this state, distribute, publish,
advertise, sell, lease or offer for sale or lease any device, printed circuit
board or any plan or kit for a device or for a printed circuit designed to
receive the cable television programming or services offered for sale over
a system from the system, whether or not the programming or services are encoded,
filtered, scrambled or otherwise made unintelligible, with the intent that
the device, printed circuit, plan or kit be used for the reception of that
grantee's services without payment. The intent required for a violation of
this subsection may be inferred from proof that the defendant has sold, leased
or offered for sale or lease any device, printed circuit board, plan or kit
for a device or for a printed circuit board in violation of this subsection
and during the course of the transaction for sale or lease the defendant expressly
states or implies to the buyer that the product will enable the buyer to obtain
cable television service without charge.
B.
Civil liability for theft of telecommunications service
(including cable television service).
(1)
Any person who incurs injury as a result of a violation of Subsection A may bring a civil action against the person who committed the violation. Except as provided in Subsection B(2), if the person who incurs the loss prevails, the court shall grant the prevailing party actual damages, costs and disbursement.
(2)
If the person who incurs the loss prevails against a person who committed the violation willfully and for the purpose of commercial advantage or prevails against a person who has committed more than one violation of Subsection A, the court shall grant the prevailing party all the following:
(b)
Actual damages;
(c)
Any profits of the violators that are attributable to the violation and that are not taken into account in determining the amount of actual damages under Subsection B(2)(b);
(d)
Notwithstanding the limitations under § 799.25
or 814.04, Wis. Stats., costs, disbursement and reasonable attorney fees;
(3)
If damages under Subsection B(2)(c) are requested, the party who incurred the injury shall have the burden of proving the violator's gross revenue and the violator's deductible expenses and the elements of profit attributable to factors other than the violation.
(4)
In addition to other remedies available under this section,
the courts may grant the injured party a temporary or permanent injunction.
A.
For the violation of any of the following provisions
of this franchise, penalties shall be chargeable to the security as applicable
as follows, and the Village may determine the amount of the penalty for other
violations which are not specified in a sum not to exceed $500 for each violation,
with each day constituting as separate violation:
(1)
Failure to furnish, maintain, or offer all cable services to
any potential subscriber within the Village upon order of the Village: $200
per day, per violation, for each day that such failure occurs or continues.
(2)
Failure to obtain or file evidence of required insurance, construction
bond, or security: $200 per day, per violation, for each day such failure
occurs or continues.
(4)
Failure to comply with applicable construction, operation, or
maintenance standards: $300 per day, per violation.
(5)
Failure to comply with a rate decision or refund order: $500
per day, per violation, for each day such a violation occurs or continues.
B.
The Village may impose any or all of the above-enumerated
measures against grantee, which shall be in addition to any and all other
legal or equitable remedies it has under the franchise or under any applicable
law.
D.
Any other violations of the franchise agreement to be
determined by the Village in a public hearing but not specifically noted in
this section shall not exceed $500 per day, per violation.
A.
Whenever the Village believes that the grantee has violated
one or more terms, conditions or provisions of this chapter or the franchise
and wishes to impose penalties, a written notice shall be given to the grantee
informing it of such alleged violation or liability. The written notice shall
describe in reasonable detail the specific violation so as to afford the grantee
an opportunity to remedy the violation. The grantee shall have 30 days subsequent
to receipt of the notice in which to correct the violation before the Village
may impose penalties, unless the violation is of such a nature so as to require
more than 30 days and the grantee proceeds diligently within the 30 days to
correct the violation, or as promptly as possible thereafter to correct the
violation. In any case where the violation is not cured within 60 days of
notice from the Village, or such other time as the grantee and the Village
may mutually agree to, the Village may proceed to impose liquidated damages.
B.
The grantee may, within 10 days of receipt of notice,
notify the Village that there is a dispute as to whether a violation or failure
has, in fact, occurred. Such notice by the grantee to the Village shall specify
with particularity the matters disputed by the grantee and shall stay the
running of the thirty-day cure period pending the Village's decision as required
below. The Village shall hear the grantee's dispute. The grantee must be given
at least five days' written notice of the hearing. At the hearing, the grantee
shall be entitled to the right to present evidence and the right to be represented
by counsel. After the hearing, the Village shall provide grantee a copy of
its action, along with supporting documents. In the event that the Village
upholds the finding of a violation, the grantee shall have 30 days subsequent,
or such other time period as the grantee and the Village mutually agree, to
such determination to correct the alleged violation before penalties may be
imposed.
C.
The rights reserved to the Village under this section
are in addition to all other rights of the Village whether reserved by this
franchise or authorized by law or equity, and no action, proceeding or exercise
of a right with respect to penalties shall affect any other right the Village
may have.
D.
The Village shall stay or waive the imposition of any
penalty set forth above upon a finding that any failure or delay is a result
of acts of nature or due to circumstances beyond the reasonable control of
the grantee.