[HISTORY: Adopted by the Village Board of
the Village of Elm Grove 11-8-1999. Amendments noted where applicable.]
This chapter shall be known and may be cited
as the "Elm Grove Cable Television Franchise Ordinance," hereinafter
"franchise" or "chapter."
A.Â
BASIC SERVICE
CABLE SYSTEM OR SYSTEM OR CABLE TELEVISION SYSTEM
CLASS IV CHANNEL
CONTROL AND/OR CONTROLLING INTEREST
CONVERTER
FCC
GRANTEE
GROSS REVENUES
(1)Â
(2)Â
INITIAL SERVICE AREA
INSTALLATION
MONITORING
NORMAL BUSINESS HOURS
NORMAL OPERATING CONDITIONS
SERVICE INTERRUPTION AND/OR OUTAGES
STREET
SUBSCRIBER
USER
VILLAGE
For the purpose of this chapter the following terms,
phrases, words and their derivations shall have the meaning given
herein:
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 are 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 buildings 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 which 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.
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, leased channel
fees, converter rentals, program guides, studio rental, production
equipment, personnel fees, late fees, downgrade fees, revenue from
the sale, exchange, use or cablecast 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.
As applied to the grantee, shall mean 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
subscriber 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 purpose 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, grantee, 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 Elm Grove, Wisconsin.
B.Â
"May" is permissive. "Shall" is mandatory.
Any franchise granted by the village pursuant
to § 66.082, 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.
A.Â
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.Â
Any grantee also agrees to provide all services specifically
set forth in its letter of application, if any, 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.Â
Current federal statutory process.
(1)Â
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)Â
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)Â
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)Â
The village shall consider in any administrative proceeding
whether:
(a)Â
The grantee has substantially complied with
material terms of the existing franchise and with applicable law;
(b)Â
The quality of the grantee's service, including
signal quality, response to consumer complaints and billing practices,
but without regard to the mix or quality of cable services or other
services provided over the system, has been reasonable in the light
of community needs;
(c)Â
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)Â
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)Â
In any administrative proceeding described in Subsection A(4), the grantee shall be afforded adequate notice and the grantee and the village, or its designee, 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(4) above], to require the production of evidence and to question witnesses. A transcript shall be made of any such proceeding at the expense of the grantee.
(6)Â
At the completion of a proceeding under Subsection A(4), 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)Â
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) 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) unless the village has provided the grantee with notice and the opportunity to cure within 30 days, unless an alternate timetable has been mutually established in writing between the village and the grantee, or in any case in which it is documented that the village has waived its right to object.
(8)Â
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.Â
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)Â
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)Â
The grantee shall submit a proposal for renewal which
demonstrates that:
(a)Â
It has been and continues to be in substantial
compliance with the terms, conditions and limitations of this chapter
and its franchise;
(b)Â
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)Â
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)Â
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)Â
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. Also, the
village 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)Â
The village shall then prepare any amendments to this
chapter that it believes necessary.
(5)Â
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)Â
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.Â
By accepting a franchise, the grantee acknowledges
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.Â
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
that 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 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 granted under this chapter.
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.
[Amended 4-22-2008]
Costs to be borne by the grantee shall include
any requirements or charges incidental to awarding or enforcing an
initial franchise under this chapter but shall not be limited to all
costs of posting of notices prior to any public meeting provided for
pursuant to this 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. An advance deposit of funds for this purpose
may be required by the village.
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.Â
Within 30 days after the award of a franchise under
this chapter, the initial grantee shall file with the village a performance
bond in the amount of $25,000. 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.Â
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 attorneys' fees, including
the village's Attorney, and costs, up to the full amount of the bond.
C.Â
The village may, upon completion of construction of
the service area pursuant to the application, waive or reduce the
requirement of the grantee to maintain the bond. However, the village
may require a performance bond to be posted by the grantee for any
construction subsequent to the completion of the initial service areas,
in a reasonable amount and upon such terms as determined by the village.
D.Â
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.Â
The village, at any time during the term of this chapter,
may waive the grantee's requirement to maintain a performance bond.
The invitation to waive the requirement can be initiated by the village
or grantee.
A.Â
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.Â
The certificate of insurance obtained by the grantee
in compliance with this section is subject to the approval of 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.Â
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.Â
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.Â
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 telecommunication 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.Â
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)Â
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 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 cable 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)Â
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 cable 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)Â
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 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.Â
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 village-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
cable system or the grantee's failure to comply with any federal,
state or local statute, ordinance or regulation.
D.Â
Defense of indemnities. In the event 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 of the Village of Elm Grove and
the 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 of the Village of Elm
Grove or Village Attorney's designee.
E.Â
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 letter of credit 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.Â
Nonwaiver of statutory limits. Nothing in this agreement
is intended to express or imply a waiver of the statutory provisions,
of any kind or nature, as set forth in § 893.80 et seq.,
Wis. Stats., including the limits of liability of the village as exist
presently or may be modified from time to time by the legislature.
A.Â
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.Â
The grantee shall strictly adhere to the equal employment
opportunity requirements of federal, state and local regulations and
as amended from time to time.
C.Â
The grantee shall, at all times, comply with the privacy
requirements of state and federal law.
D.Â
The grantee is required to make all services available
to all residential dwellings throughout the service area.
[Amended 4-22-2008]
Minimum public notice of any public meeting
relating to this franchise shall be by posting at least 24 hours prior
to the meeting.
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 three years
of all 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.Â
New construction timetable.
(1)Â
Within two years from the date of the award of initial
franchise, the grantee must make cable television service available
to every dwelling unit within the initial service area.
(a)Â
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)Â
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)Â
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)Â
In special circumstances, the village can waive one-hundred-percent
completion within the two-year time frame, provided 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.Â
Line extensions.
(1)Â
In areas of the franchise territory not included in
the initial service areas, the grantee shall be required to extend
its system pursuant to the following requirements:
(a)Â
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 a building permit, the grantee shall have a maximum of three months
to complete the construction/activation process within the project
phase.
(b)Â
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)Â
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)Â
Early extension.
(a)Â
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 the area subsequently reaches the
density required for mandatory extension, such payments shall be treated
as consideration for early extension.
(b)Â
Line extension policy. All residents who request cable television service in the village not currently serviceable to the existing cable plant will be forwarded to the grantee's engineering department. The grantee will prepare a cost estimate based on the remaining actual construction footage and the current year's actual cost of materials and labor using the formula provided in Appendix A of this chapter.
(3)Â
New development underground. 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.Â
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 3% of those gross revenues is paid to the village as a franchise fee under § 116-26.
(1)Â
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.Â
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.Â
Additional specifications.
(1)Â
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
to electric and telephone lines. Multiple cable configurations shall
be arranged in parallel and bundled with due respect for engineering
considerations.
(2)Â
The grantee shall at all times comply with:
(3)Â
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)Â
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.
(5)Â
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)Â
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. FCC rules and
regulations shall govern.
(7)Â
The grantee shall maintain equipment capable of providing
standby power for head end and transport system for a minimum of two
hours.
(8)Â
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 cable operator must concurrently do so.
A.Â
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.Â
Restoration to prior condition. In case of any disturbance
of pavement, sidewalk, landscaping, driveway or other surfacing, 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.Â
Erection, removal and uses of poles, antennas or wire-holding
structures:
(1)Â
No poles, antennas or 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, antennas 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)Â
Where poles, antennas or 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)Â
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.Â
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.Â
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.Â
Tree trimming. 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.Â
The grantee shall put, keep and maintain all parts
of the system in good condition throughout the entire franchise period.
B.Â
Upon the reasonable request for service by any person
located within the franchise territory, the grantee shall, within
30 days, furnish the requested service to such person 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.Â
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.Â
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.Â
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.Â
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.Â
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.Â
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.Â
Excluding those situations constituting acts of God
which are beyond its control, the grantee will restore any service
interruption promptly and in no event later than 24 hours from the
time of initial notification of interruption of service. All other
regular service requests will be provided 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.Â
Customer service centers and bill payment locations
will be located in the Milwaukee metropolitan area and 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.Â
Subscriber credit for outages. Upon service interruption
and/or outages of subscribers' cable service, the following shall
apply:
(1)Â
For service interruptions and/or outages of over four
hours and up to seven days, the grantee shall provide, at the subscriber's
request, a 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)Â
For service interruptions and/or outages of seven
days or more in one month, the grantee shall provide, at the subscriber's
request, a full month's credit for affected services for all affected
subscribers.
L.Â
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 the customer:
M.Â
Bills will be clear, concise and understandable, with
all cable services itemized.
N.Â
Credits will be issued promptly, but no later than
the customer'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.Â
Customers 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.Â
The grantee shall maintain and operate its network
in accordance with the rules and regulations as are incorporated herein
or may be promulgated by the Federal Communications Commission, the
United States Congress or the State of Wisconsin.
Q.Â
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 § 116-44 are applicable.
R.Â
The grantee shall keep a monthly service log which
will indicate the nature of each service complaint 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.Â
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.Â
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.Â
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.Â
The Village Manager is designated as having primary
responsibility for the continuing administration of the franchise
and implementation of complaint procedures.
B.Â
During the terms of this 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 functions and similar matters.
The grantee will use its good faith efforts to arrange for one or
more payment locations in a central location where customers can pay
bills or conduct other business activities.
C.Â
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.Â
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)Â
The nature of the complaint or problem which precipitated
the special tests;
(2)Â
What system component was tested;
(3)Â
The equipment used and procedures employed in testing;
(4)Â
The method, if any, in which such complaint or problem
was resolved; and
(5)Â
Any other information pertinent to the tests and analysis
which may be required.
E.Â
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.Â
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.Â
For the reason that 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 that 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 3% of the grantee's gross annual revenue
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.Â
This payment shall be in addition to any other tax
or payment owed to the village by the grantee.
C.Â
The franchise fee and any other costs or penalties
assessed shall be payable quarterly on a calendar year basis to the
village, and the grantee shall file a complete and accurate verified
statement of all gross receipts as previously defined within 45 days
after the quarter as established between the village and the grantee.
D.Â
The village shall have the right to inspect the grantee's
income records and the right to audit and to recompute any amounts
determined to be payable under this chapter; provided, however, that
such audit shall take place within 24 months following the close of
each of the grantee's fiscal years. 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.Â
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.Â
Except as may be provided in a franchise agreement,
this 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.
(1)Â
The proposed assignee must show financial responsibility
as determined by the village and must agree to comply with all provisions
of the franchise.
(2)Â
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 of Elm Grove. 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.Â
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
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.Â
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
chapter.
D.Â
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.Â
In no event shall a transfer of ownership or control
be approved without the successor in interest becoming a signatory
to this franchise agreement.
A.Â
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 cable television 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
in the Milwaukee metro area.
B.Â
The following records and/or reports are to be made
available to the village upon request, but no more frequently than
on an annual basis unless mutually agreed upon by the grantee and
the village:
(1)Â
A quarterly review and resolution or progress report
submitted by the grantee to the village.
(2)Â
Periodic preventive maintenance reports.
(3)Â
Any copies of FCC Form 395-A (or successor form) or
any supplemental forms related to equal opportunity or fair contracting
policies.
(4)Â
Subscriber inquiry/complaint resolution data and the
right to review documentation concerning these inquiries and/or complaints
periodically.
(5)Â
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 cable television operations 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 this
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.Â
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.Â
Such system shall maintain a plant having the technical
capacity for two-way communications.
C.Â
The grantee shall maintain the following:
(1)Â
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 and
replacement and maintenance of equipment of this facility shall be
separately incorporated into a franchise agreement.
(2)Â
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 subscriber system.
D.Â
Interconnection.
(1)Â
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.
(2)Â
Interconnection procedure. Upon receiving the directive
of the village to interconnect, the franchisee 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.
(3)Â
Relief. The franchisee may be granted reasonable extensions
of time to interconnect or the village may rescind its order to interconnect
upon petition by the franchisee to the village. The village shall
grant the request if it finds that the franchisee 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 that
the cost of the interconnection would cause an unreasonable or unacceptable
increase in subscriber rates.
(4)Â
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.
(5)Â
Initial technical requirements to assure future interconnection
capability.
(a)Â
All cable systems receiving franchises to operate
within the village shall use the standard frequency allocations for
television signals.
(b)Â
All cable systems are required to use signal
processors at the head end for each television signal.
(c)Â
The village also urges franchisees to provide
local origination equipment that is compatible throughout the area
so that videocassettes or videotapes can be shared by various systems.
(d)Â
The grantee shall provide such additional services
and facilities as are contained in its application, if any.
A.Â
In addition to the inherent powers of the village
to regulate and control this 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 in furtherance of the terms
and conditions of this franchise; 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.Â
The village may also adopt such regulations at the
request of grantee upon application.
A.Â
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.Â
Additional evaluation sessions may be held at any
time during the term of the franchise at the request of the village
or the grantee.
C.Â
All evaluation sessions shall be open to the public
and announced in a newspaper of general circulation in accordance
with legal notice. 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.Â
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.Â
Members of the general public may add topics either
by working through the negotiating parties 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 of Elm Grove is currently
not certified to regulate the basic service rates charged by the grantee.
Should federal or state law permit further rate regulation beyond
the basic service, the Village of Elm Grove shall assume such rate
regulation and adopt appropriate procedures for such regulation.
A.Â
In addition to all other rights and powers retained
by the village under this franchise or otherwise, the village reserves
the right to terminate the franchise and all rights and privileges
of the grantee hereunder 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)Â
Violation of any material provision of the franchise
or any material rule, order, regulation or determination of the village
made pursuant to the franchise;
(2)Â
Attempt to evade any material provision of the franchise
or practice any fraud or deceit upon the village or its subscribers
or customers;
(3)Â
Failure to begin or complete system construction or system extension as provided under § 116-19;
(4)Â
Failure to provide the services promised in the grantee's application, if any, as incorporated herein by § 116-4;
(5)Â
Failure to restore service after 96 consecutive hours
of interrupted service, except when approval of such interruption
is obtained from the village; or
(6)Â
Material misrepresentation of fact in the application
for or negotiation of the franchise.
B.Â
The foregoing shall not constitute a major breach
if the violation occurs but is without fault of the grantee or occurs
as a result of circumstances beyond its control or constituting acts
of God which are 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.Â
The village may make a written demand that the grantee
comply with any such provision, rule, order or determination under
or pursuant to this 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.Â
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.Â
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 terminated unless there is compliance within such period
as the Board may fix. Such period shall not be less than 60 days,
provided that no opportunity for compliance need be granted for fraud
or misrepresentation.
F.Â
The issue of 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 franchise governing
the consent of the village to such change in control of the grantee
shall apply.
A.Â
Federal regulations as per 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.Â
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 § 116-7, 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 this
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.Â
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 thereunder; and
B.Â
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.Â
Notwithstanding any other provisions of this franchise
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.Â
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.Â
Interference with cable service prohibited. Neither
the owner of any multiple-unit residential dwelling nor his or her
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 cable communication grantee
regulated by and lawfully operating under a valid and existing franchise
issued by the village.
B.Â
Gratuities and payments to permit service prohibited.
Neither the owner of any multiple-unit residential dwelling nor his
or her agent or representative shall ask, demand or receive any payment,
service or gratuity in any form as a condition for permitting or cooperating
with the installation of a cable communication service to the dwelling
unit occupied by a tenant or resident requesting service.
C.Â
Penalties and charges to tenants for service prohibited.
Neither the owner of any multiple-unit residential dwelling nor his
or her 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 cable communication
franchise issued by the village.
D.Â
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 cable
communication grantee under a franchise issued by the village.
E.Â
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 safety, functioning, appearance and value of
premises or the convenience and safety of persons or property.
F.Â
Risks assumed by grantee. Nothing in this chapter
shall prohibit a person from requiring a grantee from agreeing to
indemnify the owner or his or her agents or representatives for damages
or from liability for damages caused by the installation, operation,
maintenance or removal of cable communication facilities.
A.Â
All bids received by the village from the applicants
for an initial franchise will become the sole property of the village.
B.Â
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.Â
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.Â
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.Â
Before submitting a bid, each applicant must:
(1)Â
Examine this chapter and the application documents
thoroughly;
(2)Â
Familiarize himself/herself with local conditions
that may in any manner affect performance under the franchise;
(3)Â
Familiarize himself/herself with federal, state and
local laws, ordinances, rules and regulations affecting performance
under the franchise; and
(4)Â
Carefully correlate the bid with the requirements
of this chapter and the application documents.
F.Â
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.Â
All bids received shall be placed in a secure depository
approved by the village and not opened nor inspected prior to the
public opening.
A.Â
No 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.Â
Applicants, including all shareholders and parties
with any interest in the applicant, shall:
(1)Â
Fully disclose all agreements and undertakings, whether
written or oral or implied, with any person, firm, group, association
or corporation with respect to this franchise and the proposed cable
television system. The grantee of this franchise shall disclose all
other contracts to the village as the contracts are made. This section
shall include, but not be limited to, any agreements between local
applicants and national companies.
(2)Â
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.
(3)Â
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.
(4)Â
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:
(a)Â
Locations of all other franchises and the dates
of award for each location;
(b)Â
Estimated construction costs and estimated completion
dates for each system;
(c)Â
Estimated number of miles of construction and
number of miles completed in each system as of the date of this application;
and
(d)Â
Date for completion of construction as promised
in the application for each system.
(5)Â
Disclose any information required by the application
documents regarding pending applications for other cable systems,
including but not limited to the following:
A.Â
For the violation of any of the following provisions
of this franchise, penalties shall be chargeable to the letter of
credit or performance bond as applicable as follows, and the village
may determine the amount of the fine 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)Â
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)Â
Failure to obtain or file evidence of required insurance,
construction bond, performance bond or other required financial security:
$200 per day, per violation, for each day such failure occurs or continues.
(4)Â
Failure to comply with applicable construction, operation
or maintenance standards: $300 per day, per violation.
(5)Â
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.Â
The grantor may impose any or all of the above-enumerated
measures against the 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.Â
Any other violations of this franchise agreement to
be determined by the grantor in a public hearing but not specifically
noted in this section shall not exceed $500 per day, per violation.
A.Â
Whenever the village believes that the grantee has
violated one or more terms, conditions or provisions of this 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 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.Â
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
Board decision as required below. The Board shall hear the grantee's
dispute. The grantee must be given at least five days' 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 the grantee a copy of its action,
along with supporting documents. In the event the village upholds
the finding of a violation, the grantee shall have 30 days subsequent
to such determination, or such other time period as the grantee and
the village mutually agree, to correct the alleged violation before
penalties may be imposed.
C.Â
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.Â
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 an acts of nature or due to circumstances beyond the
reasonable control of the grantee.