[HISTORY: Adopted by the Village Board of the Village of Waterford 11-9-1998 by Ord. No. 368. Amendments noted where applicable.]
This chapter shall be known and cited as the "Village of Waterford's Cable Communications Franchise Ordinance." Within this document it shall also be referred to as "this franchise" or "the franchise."
For purposes of this franchise, the following terms, phrases, words and their derivations shall have the meaning given herein. When not inconsistent with the context, words used in the present tense include the future tense, words in the plural number include the singular number and words in the singular number include the plural number. The words "shall" and "will" are mandatory and "may" is permissive. Words not defined shall be given their common and ordinary meaning.
- BASIC SERVICE
- That service tier which includes the retransmission of local television broadcast signals.
- CABLE COMMUNICATIONS SYSTEM or SYSTEM
- A facility consisting of a set of closed transmission paths associated signal generation, reception, and control equipment that is designed to provide cable services and which is provided to multiple subscribers within the Village. Such term does not include:
- A. A facility that serves only to retransmit the television signals of one or more television broadcast stations;
- B. A facility that serves only subscribers in one or more multiple-unit dwellings under common ownership, control, or management, unless such facility or facilities uses any public right-of-way;
- C. A facility of a common carrier which is subject, in whole or in part, to the provisions of Title II of the Communications Act of 1934, except that such facility shall be considered a cable system to the extent such facility is used in the retransmission of video programming directly to subscribers; or
- D. Any facilities of any electric utility used solely for operating its electric utility systems.
- The Federal Communications Commissions or any successor thereto, having jurisdiction over cable television.
- FORCE MAJEURE
- Acts of God; employment strike(s); acts of public enemies; orders of any government entity of the United States of America or of the state or any of their departments, agencies, political subdivisions; epidemics; landslides; lightning; earthquakes; fires; tornadoes; storms; floods; washouts; droughts; civil disturbances; explosions; partial or entire failure of utilities or any other cause or event not reasonably within the control of the disabled party.
- Time Warner Cable of Southeastern Wisconsin, LP, a subsidiary of Time Warner Entertainment Company, LP, its agents, lawful successors, transferees or assignees.
- GROSS REVENUES
- All service fees, installation charges, and all other fees or charges collected from the provision of cable services to subscribers of the system. Gross revenues shall not include (1) excise taxes; or (2) sales taxes or any other taxes or fees, including the franchise fee, which are imposed on the grantee or any subscriber by any governmental unit and collected by the grantee for such governmental unit.
- Any corporation, partnership, proprietorship or organization authorized to do business in the state or any natural person.
- PUBLIC PROPERTY
- Any real property other than a street owned by any governmental unit.
- The State of Wisconsin.
- The surface of and the space above and below any street, road highway, freeway, lane, path, way, alley, court, sidewalk, boulevard, parkway, drive, or any public easement or right-of-way now or hereafter held by the Village which shall entitle grantee to the use thereof for the purpose of installing or transmitting over poles, wires, cables, conductors, ducts, confluents, vaults, manholes, amplifiers, appliances, attachments and other property as may be ordinarily necessary and pertinent to a system.
- The Village of Waterford, as the same now or in the future may exist.
For the purposes of constructing, operating and maintaining a system in the Village, grantee may erect, install, construct, repair, replace, relocate, reconstruct and retain in, on, over, under, upon, across and along the streets, including over public rights-of-way and through easements, within the Village such lines, cables, conductors, ducts, conduits, vaults, manholes, amplifiers, appliances, pedestals, attachments and other operating equipment as are necessary and pertinent to the operation of the system.
This franchise is granted pursuant to the terms and conditions contained herein. Such terms and conditions shall be subordinate to all applicable provisions of state and federal laws, rules and regulations.
Grantee's rights are subject to the police powers of the Village to adopt and enforce ordinances necessary to the health, safety and welfare of the public that are not otherwise inconsistent with the terms and conditions of this franchise. Grantee shall comply all applicable general laws and ordinances enacted by the Village pursuant to that power.
This franchise is granted for the territorial boundary of the Village. In the event of annexation by the Village, any new territory shall become part of the area covered.
This franchise shall commence upon the effective date of this chapter and shall expire 15 years thereafter unless renewed, revoked or terminated sooner as herein provided.
The franchise granted herein is nonexclusive. The Village specifically reserves the right to grant, at any time, one or more additional franchises for a system in accordance with state and federal law; provided, however, no such future franchise shall be granted on terms more favorable or less burdensome than those contained herein. In the event a future franchise is granted on terms more favorable or less burdensome than those contained herein, then this franchise shall be deemed amended as of the effective date of the future franchise to incorporate the more favorable or less burdensome term(s) or condition(s) herein.
All notices or demands required to be given under this franchise shall be deemed to be given when delivered personally to the persons designated below or upon the date actually received as evidenced by registered or certified mail receipt addressed as follows:
Such addresses may be changed by either party upon notice to the other party given as provided in this section.
Any and all streets or public property or private property which is disturbed or damaged during the construction, repair, replacement, relocation, operation, maintenance or reconstruction of the system shall be promptly repaired by grantee to a condition as good as that prevailing prior to grantee's work.
Subject to the Village's approval, the grantee shall have the right to erect and maintain its own poles at locations as it may find necessary for the proper construction and maintenance of the cable communications system. Approval shall be procured by the grantee from the proper Village department providing for the erection of these poles.
The grantee's transmission and distribution system poles, wires, appurtenances, shall be located, erected, and maintained, so as not to endanger or interfere with the lives of persons or to interfere with any improvements the Village may deem proper to make or to unnecessarily hinder or obstruct the free use of the streets, alleys, bridges, sidewalks, or other public property. Removal or relocation of poles or equipment when necessary to avoid such interference shall be at the grantee's expense.
Construction and maintenance of the system shall be performed in an orderly and workmanlike manner. Grantee shall at all times comply with the National Electrical Safety Code and such applicable ordinances and regulations of the Village affecting electrical and structural installations which may be presently in effect or changed by future ordinance.
All installations of cable distribution facilities shall be of a permanent nature, durable, installed in accordance with good engineering practice, and of such sufficient height to comply with all existing Village regulations, ordinances, and state laws, so as not to interfere with the right of the public or individual property owner and shall not interfere unduly with the travel and use of public places by the public during the construction, repair, or removal thereof, and shall not unduly obstruct or impede traffic.
The grantee shall maintain its system so that cables, wires, poles and other facilities shall conform to the pattern of the existing public utility cables, wires, poles and other facilities, subject to the right of the Village to require relocation, either overhead or underground, of such cables, wires, poles and other facilities when the Village determines that such relocation is necessary and in the public interest but not for arbitrary and capricious reasons. Any such relocation shall be at the grantee's expense unless the utilities are compensated for such relocation, in which case the grantee shall be similarly compensated.
The grantee shall maintain its system so that poles, and other structures of public utilities which are available shall be used to the extent practicable to minimize interference with travel. Before placing or setting new poles, the grantee shall file notice of such intention with the Village and specify the location, height, and dimensions, of the poles and notify affected residents whose property may be disturbed. The construction shall not be commenced until the specifications have been submitted to the appropriate Village agency and the grantee has received its written approval, which shall not be unreasonably withheld or delayed.
Whenever, by reason of the construction, repair, maintenance, relocation, widening, raising, lowering of the grade, or vacation of any street by the Village or by the location or manner of construction, reconstruction, maintenance or repair of any public property, structure or facility by the Village, or any public improvement, municipally owned or operated utility services or pursuant to any plan adopted by the Village, or any public improvement, municipally owned or operated utility services or pursuant to any plan adopted by the Village for rehabilitating any section of the Village, it shall be deemed necessary by the Village for the grantee to move, relocate, change, alter or modify any of its facilities or structures, such change, relocation, alteration or modification shall be promptly made by the grantee. Any such relocation shall be at the grantee's expense unless the utilities are compensated for such relocation, in which case the grantee shall be similarly compensated. In the event the grantee, after such notice, fails or refuses to commence, pursue or complete such relocation work within a reasonable time, the Village shall have the authority, but not the obligation, to remove or abate such structures or facilities and to require the grantee to pay to the Village the cost of such relocation, alteration, or modification. If the grantee fails to complete in a timely manner any relocation requested by the Village and the Village incurs any costs resulting from such delay, the grantee shall be liable to the Village for such costs.
The grantee shall, upon request of any person holding a building moving permit or permit to move oversize loads issued by the Village, temporarily raise or lower its wires to permit the moving of buildings or oversize loads. The expense of such temporary removal or raising or lowering of the wires shall be paid by the person requesting the same, and grantee shall have the authority to require such payment in advance. The grantee shall be given not less than 72 hours' advance notice to arrange for such temporary changes.
The grantee shall have the authority to trim trees upon and overhanging the streets of the Village so as to prevent the branches of such trees from coming in contact with the grantee's wires and cables.
The grantee shall, at its sole cost and expense, indemnify, defend and hold harmless the Village, its officers, boards, commissions, agents and employees, against and from any and all claims, demands, causes of actions, suits, proceedings, damages, liabilities and judgments of every kind arising out of or due to the grantee's construction or operation of the system in the Village, including but not limited to damages for injury or death or damages to property, real or personal, and against all liabilities to others and against all loss, cost and expense, resulting or arising out of any of the same.
The grantee shall, at the sole risk and expense of the grantee, upon demand of the Village, appear in and defend any and all suits, actions, or other legal proceedings, whether judicial, quasi-judicial, administrative, or otherwise brought or instituted or had by third persons or duly constituted authorities, against or affecting the Village, its officers, boards, commission, agents, or employees, arising out of or due to the grantee's construction or operation of the system in the Village.
The grantee shall pay and satisfy and shall cause to be paid and satisfied any judgment, decree, order, directive, or demand, rendered made or issued, against the grantee, the Village, its officers, boards, commissions, agents or employees, for the foregoing; and such indemnity shall exist and continue without reference to or limitation by the amount of any bond, policy of insurance, deposit, undertaking or other assurance required hereunder or otherwise.
In order for the Village to assert its rights to be indemnified, defend and held harmless, the Village must:
Promptly notify grantee of any claim or legal proceeding which gives rise to such right;
Afford grantee the opportunity to participate in and fully control any compromise, settlement, resolution or disposition of such claim or proceeding; and
Fully cooperate in the defense of such claim and make available to grantee all such information under its control relating thereto.
All work undertaken in connection with the construction, reconstruction, maintenance, operation or repair of the grantee's system shall be subject to and governed by all present laws, rules and regulations of the Village, the state and the United States of America, including the FCC and any other federal agency having jurisdiction.
Prior to implementing any rate increase for basic, standard or premium service, grantee shall give the following notices:
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 municipality and the grantee in the minimum amount of:
Upon request of the Village, grantee shall furnish to the Village satisfactory evidence that an insurance policy has been obtained and is in full force and effect.
The grantee shall construct, operate and maintain its system according to the specifications of the FCC.
The grantee's system shall be designed and rated for twenty-four-hour-a-day continuous operation.
The grantee shall at all times employ a reasonable standard of care to prevent failures or accidents which are likely to cause damages, injuries or nuisances to the public.
The grantee shall render efficient service, make repairs within a forty-eight-hour business-day cycle if access to the customer's house is available during that time period, and interrupt service only for good cause and for the shortest times possible. Insofar as possible, such interruptions shall be preceded by notice and shall occur during periods of minimum use of the system.
The grantee shall provide a parental control device capability for a reasonable charge, upon request, to any subscriber.
During the term of this franchise, the grantee shall maintain a local or toll-free telephone number for the purpose of receiving and resolving all complaints regarding the quality of service, equipment malfunctions, billing inquiries and similar matters. The grantee shall provide trained personnel to receive and process telephone and in-person calls concerning service problems during normal business hours. Outside of normal business hours, the grantee may provide a telephone answering service or an automated telephone answering system to receive telephone calls concerning service problems. No later than 30 months after acceptance of the franchise by grantee, the grantee will have qualified representatives available to respond to customer telephone inquiries 24 hours a day and seven days a week.
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 where such inquiries or complaints are to be addressed.
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 the system, the Village shall have the right and authority to require that the grantee 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 five days' notice. Such report shall include the following information:
The nature of the complaint or problem which precipitated the special tests.
What system component was tested.
The equipment used and procedures employed in testing.
The method, if any, in which such complaint or problem was resolved.
Any other information pertinent to said tests and analysis which may be required.
The Village may require that tests be monitored by a professional engineer selected by the Village at the Village's expense.
Subscriber credit for outages. Upon service interruption and/or outages of subscriber's cable service, the following shall apply:
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.
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.
The rights granted herein shall not be transferred or assigned by the grantee without written notice to the Village. Such consent shall not be unreasonably withheld. No transfer or assignment shall become effective until the transferee or the assignee has filed with the Village its written acceptance of the terms and conditions of this franchise. Notwithstanding anything to the contrary, no such prior consent shall be required for a transfer or assignment to any entity controlling, controlled by or under the same common control as the grantee.
This franchise shall be renewed in accordance with applicable state and federal law.
In addition to all other rights which Village has pursuant to law or equity, the Village reserves the right to revoke, terminate or cancel this franchise and all rights and privileges pertaining thereto in the event that:
The Village shall notify the grantee of its intention to revoke, terminate or cancel this franchise. The written notice shall describe in reasonable detail the specific violation so as to afford grantee an opportunity to remedy the violation.
Grantee shall have 90 days subsequent to receipt of the notice in which to correct the violation before the Village may formally revoke, terminate or cancel this franchise. Grantee may, within 30 days of receipt of the notice, notify the Village that there is a dispute as to whether a violation has, in fact, occurred. Such notice by grantee to the Village shall stay the ninety-day period described above.
The Village shall hear grantee's dispute and shall determine whether a default or violation by grantee has occurred. In the event the Village shall determine that a default or violation has occurred the Village shall supplement the decision with written findings of fact.
If, after hearing the dispute, grantee has been found to be in default, grantee shall then have 60 days from such a determination to remedy the violation or failure. At any time after that sixty-day period the Village may, by formal action at a public hearing affording reasonable notice and opportunity for grantee to be heard, revoke, terminate or cancel this franchise.
Upon the revocation of this franchise as herein provided, grantee shall remove all of its attachments and wires from poles used as authorized herein.
If by reason of a force majeure any party is unable in whole or in part to carry out its obligations hereunder, that party shall not be deemed to be in violation or default during the continuance of such inability.
Upon request of the Village, grantee shall maintain on file with the Village a true and accurate map or set of maps showing all system equipment installed and in place in streets and other public places.
Residents in those areas with an average density of at least 20 homes per mile, as measured from the nearest point of usable trunk line, shall be provided service upon payment of the standard installation charge and applicable monthly fees; except that installations requiring underground drops or aerial drops in excess of 175 feet shall be considered nonstandard installations to be charged to the subscriber at grantee's actual cost of installation.
It shall be unlawful for any person, without the express consent of the grantee, to make any connection, extension, or division, whether physically, acoustically, inductively, electronically or otherwise, with or to any segment of the system for any purpose whatsoever.
It shall be unlawful for any person to willfully interfere, tamper, remove, obstruct or damage any part, segment or content of the system for any purpose whatsoever.
It shall be unlawful for any person to construct, operate or maintain a system without having first applied for and received a franchise from the Village.
Subject to applicable law, the grantee shall pay to the Village 5.0% of the annual gross revenues. The franchise fee shall be due and payable 45 days after the expiration of the calendar quarter. The Village shall have the right to audit, at reasonable times and places and at its expense, the books and financial records of the grantee to verify franchise fee payments.
The grantee hereby agrees to complete an upgrade of its cable system within 40 months from its acceptance of the franchise. The upgraded system shall have a minimum bandwidth capacity of 750 MHz (forward bandwidth 54 to 750 MHz; reverse bandwidth five to 40 MHz) with 550 MHz initially activated and a minimum of 79 NTSC analog or equivalent downstream video channels initially activated. All system passives, taps, and connectors shall be capable of passing one GHz bandwidth. The Village reserves the right to have an independent engineer or equivalent audit the system to verify completion.
Grantee shall offer, free of charge, two outlets of basic service and standard tier service to all public and private (Grade K-12) schools located within 200 feet of the system and one outlet to each municipal building located within 200 feet of the system and all such buildings and schools as of the acceptance date served by the existing system. For initial connections to schools, both free outlets must be scheduled and installed simultaneously. Service will be made free of charge and as promptly as possible to all such schools and municipal buildings requesting connections. If any internal wiring installation is requested to serve additional outlets in such schools and municipal buildings, it shall be provided at grantee's cost of materials and labor at the applicable hourly service charge at Village's request; provided, however, that such internal wiring will be provided without charge if grantee is able to coordinate with other comparable electrical wiring installation in cases of new construction or substantial rehabilitation of existing schools or municipal buildings. Basic and standard services will be provided to each outlet in such schools and municipal buildings free of any charge.
At the Village's request, the grantee shall initially provide free connection to a local internet access provider for each public and private high school at one location in each school in the Village no later than 12 months prior to the initiation of the system upgrade as specified in § 104-27. Each location will receive:
One measured business grade telephone line.
One 28.8 Kbps. modem.
Upon successful development by grantee's parent corporations, Time Warner Communications and Time Inc., of an on-line internet access service for personal computers, the grantee will provide all schools served by the grantee with a local connection to this on-line service to the extent that it is available on the cable system, including one free modem and one free access to the Time Warner Communications/Time Inc. on-line service. Access to Time Warner's on-line service does not include access to any non-Time Warner commercial services available through Time Warner's on-line service.
The grantee hereby agrees to provide three channels for public, educational and governmental cablecasting. Each channel shall be at least 6 MHz NTSC analog or digital equivalent, be carried on the basic service, and be available to the entire subscriber system serving the Village. Designation of use and operation shall be by the Village.
The grantee agrees to provide the Village with capital support for public, educational, and governmental access equipment and facilities in the amount of $0.15 per customer per month as set forth below. The Village agrees that all amounts paid by the grantee as the "capital contribution" may be added to the price of basic cable service and collected from grantee's subscribers as "external costs," as such term is used in 47 CFR 76.922 as it may from time to time be amended. The collection of capital contribution from grantee's subscribers shall commence on the January 1 following the completion of all requirements in Subsection B below. In addition, all amounts paid as the capital contribution may, at the grantee's discretion, be separately stated on subscribers' bills as permitted in 47 CFR 76.985 as it may from time to time be amended.
Following the completion of the system upgrade in the Village, the grantee will, at the Village's request, make a one-time advance payment calculated at $0.05 per subscriber (based on the subscriber count as of December 31 of the preceding year) times 12 months, times 15 years (or the remaining length of the franchise term) payable to the Village 90 days following the Village's request. If the Village chooses this option, the capital contribution, as defined in Subsection A above, will be reduced to $0.10 per subscriber per month per year for the remaining years of this agreement.
The grantee shall maintain qualified representatives available via a local, toll-free or collect call telephone access line which will be available to its subscribers at a minimum of 10 hours per day Monday through Friday, and eight hours per day on Saturday and Sunday. At other times, grantee may use automated telephone response systems. No later than 30 months after acceptance of the franchise by grantee, the grantee will have qualified representatives available to respond to customer telephone inquiries 24 hours a day and seven days a week.
The grantee shall deliver at the time of acceptance a performance bond of $25,000 to secure performance under this franchise agreement.
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 municipality 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's fees, including the municipality's legal staff, and costs, up to the full amount of the bond.
The municipality may, upon completion of construction of the service area, waive or reduce the requirement of the grantee to maintain the bond. However, the municipality 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 municipality.
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 Municipality, by registered mail, 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 municipality the right to call in the bond.
The municipality, at any time during the term of this chapter, may waive grantee's requirement to maintain a performance bond. The invitation to waive the requirement can be initiated by the municipality or grantee.
If any term, condition or section of this franchise or the application thereof to any person or circumstance shall, to any extent, be held to be invalid or unenforceable, the remainder hereof and the application of such term, condition or section to persons or circumstances other than those as to whom it shall be held invalid or unenforceable shall not be affected thereby, and this franchise and all the terms, conditions and sections hereof shall, in all other respects, continue to be effective and to be complied with.