[HISTORY: Adopted by the Common Council of
the City of Franklin 8-5-1997 by Ord. No. 97-1461 as Sec. 13.21 of the
1997 Code. Amendments noted where applicable.]
This chapter shall be known and may be cited
as the "Franklin Telecommunications Franchise Ordinance," hereinafter
"this chapter."
A.
BASIC SERVICE
CABLE SYSTEM OR SYSTEM OR CABLE TELEVISION SYSTEM
CITY
CLASS IV CHANNEL
CONTROL AND/OR CONTROLLING INTEREST
CONVERTER
FCC
FRANCHISE
GRANTEE
GROSS REVENUE
INITIAL SERVICE AREA
INSTALLATION
MONITORING
NORMAL BUSINESS HOURS
NORMAL OPERATION CONDITIONS
SERVICE INTERRUPTION AND/OR OUTAGES
STREET
SUBSCRIBER
USER
Definitions. As used in this chapter, the following
terms shall have the meanings indicated:
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, 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 and/or other conductors, converters, equipment or facilities,
designed and constructed for the purpose of producing, receiving,
transmitting, amplifying and distributing audio, video and/or other
forms of electronic, electrical or optical signals, which includes
cable television service and which is located in the City. This definition
does not include any such facility which only serves or only will
serve subscribers in one or more multiple unit dwellings under common
ownership, control or management and which does not use any City rights-of-way.
The City of Franklin, Wisconsin.
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 a television receiver of a
subscriber and by an appropriate channel selector permits a television
receiver of a subscriber to televise or depict for viewing by a subscriber
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.
The rights and privileges granted by the City, under an agreement
(hereinafter "franchise agreement") incorporating the terms and provisions
of this chapter with a Grantee, to construct, maintain or operate
a cable system in the City.
A person or entity to whom or which a franchise agreement
under this chapter is awarded by the City, 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 City, including but
not limited to basic subscriber service monthly fees, pay cable fees,
installation and reconnection fees, franchise fees, leased channel
fees, converter rentals, program guides, studio rental, production
equipment, personnel fees, late fees, downgrade fees, revenue from
the sale, exchange, use or cable cast of any programming developed
on the system for community or institutional use, advertising fees,
any value (at retail price levels) of any non-monetary remuneration
received by the Grantee in consideration of the performance of advertising
or any other service of the system, and such other revenues to the
maximum permitted by law; provided, however, that gross revenue shall
not include any local, state or federal taxes, denominated as a tax
by statute or ordinance, upon services furnished by the Grantee to
subscribers in the City, which are imposed directly upon any such
subscriber and collected by the Grantee on behalf of and for full
payment to the governmental unit imposing such tax. 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, including but not limited
to point-to-point telecommunications, point-to-point multipoint telecommunications
and data transmissions, but only to the extent that all other providers
of such telecommunications services in the City are subject to the
same compensation requirements of the City.
All areas in the City 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 does not mean system-wide, non-individually
addressed sweeps of the system for purposes of verifying system integrity,
controlling return paths transmissions or billing for pay services.
As applied to the Grantee, those hours during which similar
businesses in the City are open and operating to serve customers.
In all cases, normal business hours shall include some evening hours
at least one weeknight per week and/or some weekend hours.
Those service conditions which are within the control of
the Grantee. Those conditions which are not within the control of
the Grantee include, but are not limited to, natural disasters, civil
disturbances, power outages, telephone network outages and severe
or unusual weather conditions. Those conditions which are ordinarily
within the control of the Grantee include, but are not limited to,
special promotions, pay-per-view events, rate increases, regular peak
or seasonal demand periods and maintenance or upgrade of the cable
system.
The loss of either picture or sound or both for a single
or multiple subscriber(s).
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 City 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 City which shall, within their
proper use and meaning, entitle the Grantee to the use thereof for
the purposes of installing poles, wires, cable, conductors, ducts,
conduits, vaults, manholes, amplifiers, appliances, attachments and
other property as may be ordinarily necessary and pertinent to a telecommunications
system.
Any person, firm, Grantee, corporation, partnership or association
lawfully receiving basic and/or any additional or other service from
a Grantee.
A party utilizing a cable television system channel for purposes
of production or transmission of material to subscribers, as contrasted
with the receipt thereof in a subscriber capacity.
B.
Word usage. "May" is permissive; "shall" is mandatory.
[Amended 3-5-2002 by Ord. No. 2002-1708]
Any franchise granted by the City pursuant to
a franchise agreement incorporating the terms and provisions of this
chapter, as authorized by § 66.0419, Wis. Stats., shall
grant to the Grantee under the franchise agreement, the rights and
privileges to erect, construct, install, 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 the term of such franchise
agreement: any poles, wires, cable, underground conduits, manholes
and other television conductors and fixtures necessary for the maintenance
and operation of a cable system.
A.
Upon adoption of any franchise agreement and execution
thereof by the Grantee, the Grantee agrees to be bound by all the
terms and conditions contained herein.
B.
Any Grantee also agrees to provide all services specifically
set forth in its application, if any, and to provide cable television
service within the confines of the City; and by its acceptance of
its cable franchise application, the Grantee specifically grants and
agrees that its application, if any, is thereby incorporated by reference
and made a part of the franchise agreement. In the event of a conflict
between the elements of the application and the provisions of this
chapter, that term or provision which provides the greatest benefit
to the City or its residential subscribers, as determined in the sole
discretion of the City, shall control.
Any franchise granted by the City shall be effective
for all areas within and shall extend to the City municipal boundaries
as they may exist from time to time during the term of the franchise
agreement.
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 Grantee's receipt from the City of a franchise agreement, executed
by duly authorized officials of the City before a notary public, the
Grantee executes before a notary public or other officer authorized
by law to administer oaths and delivers such executed franchise agreement
to the City. Such franchise shall be nonexclusive and revocable.
A.
Current federal statutory process:
(1)
The City 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 City 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 City shall commence such proceeding not later
than six months after the date such notice is submitted.
(2)
Upon completion of the proceeding under Subsection A(1) above, the Grantee may, on its own initiative, or shall, at the request of the City, submit a proposal for renewal. The City may establish a date by which such proposal shall be submitted.
(3)
Upon submittal by the Grantee of a proposal to the
City for the renewal of the franchise, the City shall provide prompt,
public notice of such proposal and renew the franchise or issue a
preliminary assessment that the franchise should not be renewed, and
at the request of the Grantee or on its own initiative, commence an
administrative proceeding, after providing prompt, public notice of
such proceeding.
(4)
The City shall consider in any administrative proceeding
whether:
(a)
The Grantee has substantially complied with material
terms of the existing franchise and with applicable law;
(b)
The quality of the Grantee's service, including signal
quality, response to consumer complaints and billing practices, but
without regard to the mix or quality of cable services or other services
provided over the system, has been reasonable in the light of community
needs;
(c)
The Grantee has the financial, legal and technical
ability to provide the services, facilities and equipment as set forth
in the Grantee's proposal; and
(d)
The Grantee's proposal is reasonable to meet the future
cable-related community needs and interests, taking into account the
costs of meeting such needs and interests.
(5)
In any proceeding under Subsection A(4), the Grantee shall be afforded adequate notice, and the Grantee and the City, 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(1) above], to require the production of evidence and to question witnesses. A transcript shall be made of any such proceeding.
(6)
At the completion of a proceeding under Subsection A(4) above, the City shall issue a written decision granting or denying the proposal for renewal based upon the record of such proceeding and transmit a copy of such decision to the Grantee. Such decision shall state the reasons therefor.
(7)
Any denial of a proposal for renewal that has been submitted in compliance with the procedures set forth above shall be based on one or more adverse findings made with respect to the factors described in Subsection A(4)(a) through (d) above, pursuant to the record of the proceeding under said subsection. The City may not base a denial of renewal on a failure to substantially comply with the material terms of the franchise agreement or on events considered under Subsection A(4)(b) above, unless the City has provided the Grantee with notice and the opportunity to cure or in any case in which it is documented that the City has waived its right to object.
(8)
The Grantee may appeal any final decision or failure of the City 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 City is not in compliance with the procedural requirements of this section; or in the event of a final decision of the City denying the renewal proposal, the Grantee has demonstrated that the adverse finding of the City with respect to each of the factors described in Subsection A(4)(a) through (d) above on which the denial is based is not supported by a preponderance of the evidence, based on the record of the administrative proceeding.
B.
Franchise renewal in the event of change in federal
law. In the event of an amendment or repeal of 47 U.S.C. 546 et seq.,
a franchise agreement may be renewed by the City upon application
of the Grantee pursuant to and in accordance with any then applicable
law which mandates different procedures. In the absence of such mandatory
applicable law, a franchise agreement may be renewed as follows:
(1)
At least 24 months prior to the expiration of the
franchise agreement, the Grantee shall inform the City, in writing,
of its intent to seek renewal of the franchise agreement.
(2)
Concurrent with the Grantee's notification of intent
to renew, the Grantee shall submit to the City a proposal for renewal
which demonstrates:
(a)
That it has been and continues to be in substantial
compliance with the terms, conditions and limitations of this chapter
and its franchise agreement;
(b)
That its system has been installed, constructed, maintained
and operated in accordance with the accepted standards of the industry,
and this chapter and its franchise agreement;
(c)
That 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)
That 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 City.
(3)
After giving public notice, the City shall proceed
to determine whether the Grantee has satisfactorily performed its
obligations under the franchise agreement. To determine satisfactory
performance, the City 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 and the
franchise agreement; also, the City shall consider the Grantee's reports
made to the City 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;
and shall consider the Grantee's performance compared to the industry
performance on a national basis. Provision shall be made for public
comment.
(4)
The City shall then prepare any amendments to this
section that it considers reasonable.
(5)
If the City finds the Grantee's performance satisfactory,
and finds the Grantee's technical, legal and financial abilities acceptable,
and finds the Grantee's renewal proposal meets the future cable-related
needs of the City, a new franchise agreement shall be granted pursuant
to this section, as amended, for a period to be determined.
(6)
If the Grantee is determined by the City to have performed
unsatisfactorily, as governed by applicable state and federal law,
new applicants may be sought and evaluated, and a franchise award
shall be made by the City according to franchising procedures adopted
by the City.
A.
In accepting a franchise agreement, the Grantee shall
acknowledge that its rights thereunder are subject to the police power
of the City to adopt and enforce general ordinances necessary for
the safety and welfare of the public; and the Grantee shall agree
to comply with all applicable general laws and ordinances enacted
by the City pursuant to such power.
B.
Any conflict between the provisions of this section
and any other present or future lawful exercise of the City's police
powers shall be resolved in favor of the latter, except that any such
exercise that is not of general application in the City, or applies
exclusively to the Grantee, which contains provisions inconsistent
with the franchise agreement, shall prevail only if upon such exercise
the City 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 City streets for system installation and maintenance
purposes or be allowed to operate in the City without a franchise
agreement.
The City shall have the right, during the term
of the franchise agreement, 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 City shall indemnify and hold harmless the Grantee
from any claim that might arise due to or as a result of the City's
aforesaid wire installation or pole fixture use.
Costs to be borne by an initial Grantee shall
include any requirements or charges incidental to the awarding or
enforcing of an initial franchise, but shall not be limited to all
costs of publications of notices prior to any public meeting provided
for pursuant to this franchise, and any costs not covered by application
fees incurred by the City in its study, preparation of proposal documents,
evaluation of all applications and examinations of the applicants'
qualifications.
All notices from the Grantee to the City pertaining
to the franchise agreement or cable system shall be to the City Administrator's
office. The Grantee shall maintain with the City, throughout the term
of the franchise agreement, an address for service of notices by mail.
The Grantee shall maintain a central office to address any issues
relating to the Grantee's construction, maintenance, operation and
administration of the system and its products and services, which
office address shall be the designated address of the Grantee for
the receipt of all notices and process by the Grantee.
A.
Within 15 days after the award of the initial franchise,
the Grantee shall deposit with the City either an irrevocable letter
of credit from a financial institution or a security deposit in the
amount of $50,000. The form and content of such letter of credit or
security deposit shall be approved by the City Attorney. The letter
of credit or security deposit shall be used by the City to ensure
the faithful performance of an initial Grantee of all provisions of
this chapter and initial franchise agreements and the compliance by
the Grantee with all orders, permits and rules of any agency, commission,
board, department, division or office of the City having jurisdiction
over its acts or defaults under this chapter and the initial franchise
agreement, and the payment by the Grantee of any claims, liens and
taxes due the City which arise by reason of the construction, operation
or maintenance of the system.
B.
The letter of credit or security deposit, as required of an initial Grantee, shall be "evergreen" and maintained at the $50,000 amount for the entire term of the initial franchise agreement. If amounts are withdrawn by the City pursuant to § 96-11 or Subsection A of this section, the initial Grantee shall replenish the letter of credit or security deposit with an amount equal to the amount of the withdrawal within 15 days of such withdrawal.
C.
If the Grantee fails to pay to the City any franchise
fees or costs within the time fixed herein; or fails after 15 days'
notice to pay to the City any taxes due and unpaid; or fails to repay
the City within 15 days any damages, costs or expenses which the City
is compelled to pay by reason of any act or default of the Grantee
in connection with this chapter or the franchise agreement; or fails,
after three days' notice by the City of such failure to comply with
any provision of this section or the franchise agreement which the
City reasonably determines can be remedied by demand on the letter
of credit or security deposit, the City may immediately request payment
of the amount thereof, with interest and any penalties, from the letter
of credit or security deposit. Upon such request for payment, the
City shall notify the Grantee of the amount and date thereof. The
letter of credit or security deposit instrument tendered by an initial
Grantee shall specify that the City may draw upon the written statement
of the City Administrator specifying the amount to be withdrawn and
the purpose for such draw.
D.
The rights reserved to the City with respect to the
letter of credit are in addition to all other rights of the City,
whether reserved by this section or authorized by law, and no action,
proceeding or exercise of a right with respect to such letter of credit
shall affect any other right the City may have.
A.
Concurrent with its required delivery to the City
of an executed franchise agreement, the initial Grantee shall file
with the City a performance bond for the benefit of the City in the
amount of not less than 50% of the reasonably estimated cost to install
the system components contemplated to be installed in the new application
or franchise agreement. This bond shall be maintained in full force
and effect until all such contemplated installation is complete. The
form and content of such bond shall be approved by the City Attorney
and shall be incorporated into any franchise agreement.
B.
If the initial 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 this chapter or the franchise agreement, as it relates to the conditions relative to the construction of the system, there shall be recoverable, jointly and severally, from the principal and surety of the bond, any damages or loss suffered by the City as a result thereof, 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 City's legal staff, and costs, up to the full amount of the bond. To the extent allowed by law, the performance bond shall also provide additional security to the City for the faithful performance by the initial Grantee of all initial Grantee's obligations specified to be secured by a letter of credit or security deposit under § 96-13 of this chapter.
C.
The City may, upon completion of construction of the
system, agree to reduce the required amount of the bond. However,
the City may require an increased performance bond to be posted by
an initial Grantee for any construction subsequent to the completion
of the initial contemplated system installation, in a reasonable amount
and upon such terms as determined by the City.
D.
The bond shall contain the following endorsement:
"It is hereby understood and agreed that this bond may not be canceled
by the surety nor the intention not to renew be stated by the surety
until 30 days after receipt by the City, by registered mail, of a
written notice of such intent to cancel or to not renew." Upon any
unlawful cancellation or removal of the performance bond without City
consent, the City shall be entitled to avail itself of all remedies
and shall be entitled to the maximum relief available under this section
and pursuant to law against an initial Grantee, including revocation
of the franchise.
E.
The City 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 City
or Grantee.
A.
The Grantee shall maintain, and by its acceptance
of the franchise agreement specifically agrees that it will maintain
throughout the term of the franchise agreement liability insurance,
insuring the City and the Grantee in the minimum amount of:
B.
The certificate of insurance obtained by the Grantee
in compliance with this chapter must be approved by the City Attorney,
and such certificate of insurance, along with written evidence of
payment of required premiums, shall be filed and maintained with the
City at all times during the term of the franchise agreement. The
Grantee shall immediately advise the City Attorney of any litigation
that may develop that would affect this insurance. The per claim and
per occurrence coverage amounts specified in this section shall not
be reduced by amounts paid for other claims or other occurrences.
C.
Neither the provisions of this section nor any damages
recovered by the City against the Grantee for any reason shall be
construed to or limit the liability of the Grantee for any purpose
or claim, other than to the extent Grantee has satisfied such purpose
or claim.
D.
All insurance policies maintained pursuant to this
franchise shall contain the following endorsement: "It is hereby understood
and agreed that this insurance policy may not be canceled by the surety
nor the intention not to renew be stated by the surety until 30 days
after receipt by the City, by registered mail, of a written notice
of such intention to cancel or to not renew." Upon cancellation or
nonrenewal of the insurance coverage without City consent, the City
shall be entitled to avail itself of all remedies and shall be entitled
to the maximum relief available under this section and pursuant to
law against the Grantee, including revocation of the franchise.
A.
Disclaimer of liability. The City shall not at any
time be liable for injury or damage occurring to any person or property
from any cause whatsoever arising out of the construction, maintenance,
repair, use, operation, condition or dismantling of the Grantee's
system and due to the act or omission of any person or entity other
than the City or those persons or entities for which the City is legally
liable as a matter of law.
B.
Indemnification. The Grantee shall, at its sole cost
and expense, defend, indemnify and hold harmless the City, and its
respective officers, boards, commissions, employees, agents, attorneys
and contractors (hereinafter referred to as "Indemnities"), from and
against:
(1)
Any and all liability, obligation, damages, penalties,
claims, liens, costs, charges, losses and expense (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, loss of use 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 Grantee's system or products
or services or agents or the Grantee's failure to comply with any
federal, state or local statute, ordinance, rule, order or regulation.
(2)
Any and all liabilities, obligations, damages penalties,
claims, liens, costs, charges, losses and expenses (including, without
limitation, reasonable fees and expenses of attorneys, expert witnesses
and other consultants), which are imposed upon, incurred by or asserted
against the Indemnities by reason of any claim or lien arising out
of work, labor, materials or supplies provided or supplied to the
Grantee, its contractors or subcontractors, for the installation,
construction, operation or maintenance of the system.
(3)
Any and all liability, obligation, damages, penalties,
claims, liens, costs, charges, losses and expenses (including, without
limitation, reasonable fees and expenses of attorneys, expert witnesses
and consultants), which may be imposed upon, incurred by or be asserted
against the Indemnities by reason of any financing or securities offering
by the Grantee 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.
C.
Assumption of risk. The Grantee undertakes and assumes
for its officers, agents, contractors and subcontractors and employees,
all risk of dangerous conditions, if any, on or about any City owned
or controlled property, including public rights-of-way, and the Grantee
hereby agrees to indemnify, defend and hold harmless the Indemnities
against and from any claim asserted or liability imposed upon the
Indemnities for personal injury or property damage to any person arising
out of the installation, operation, maintenance or condition of the
system or the Grantee's failure to comply with any federal, state
or local statute, ordinance or regulation.
D.
Defense of indemnities. In the event that any action
or proceeding shall be brought against the Indemnities by reason of
any matter for which the indemnities are indemnified hereunder, the
Grantee shall, upon notice from any of the Indemnities, at the Grantee's
sole cost and expense, resist and defend the same with legal counsel
mutually acceptable to the City and Grantee, provided that the Grantee
shall not admit liability in any such matter on behalf of the Indemnities
without the written consent of the City.
E.
Notice cooperation and expenses. The City 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 Subsection D above. Nothing herein shall be deemed to prevent the City from cooperating with the Grantee and participating in the defense of any litigation by the City's own counsel. The Grantee shall pay all reasonable expenses incurred by the City in defending itself with regard to any such actions, suits or proceedings. These expenses shall include all attorney fees and shall also include the actual expenses of the City's agents, employees or expert witnesses, and disbursements and liabilities assumed by the City in connection with such suits, actions or proceedings. No withdrawal by the City of any sum under the letter of credit or security deposit shall limit the liability of the Grantee to the City under the terms of this section, except that any sum so withdrawn by the City shall be deducted from any recovery which the City might have against the Grantee under the terms of this section.
F.
Nonwaiver of statutory limits. Nothing in this agreement
shall be construed to in any way limit or waive the provisions of
§ 893.80, Wis. Stats., as amended from time to time.
A.
The Grantee shall not deny service, deny access or
otherwise discriminate against subscribers, channel users or any person
or entity on the basis of race, color, religion, national or ethnic
origin, income, gender or sexual orientation. The Grantee shall comply
at all times with all applicable federal, state and local laws, statutes,
rules and regulations and all executive and administrative orders
relating to discrimination which are hereby incorporated and made
part of this chapter by reference.
B.
The Grantee shall strictly adhere to the equal employment
opportunity requirements of the Federal Communications Commission,
Equal Employment Opportunity Commission and other applicable federal,
state and local laws and regulations, as amended from time to time.
C.
The Grantee shall, at all times, comply with the privacy
requirements of state and federal law.
D.
Grantee is required to make all services available
to all residential dwellings throughout the initial service area.
Public notice of any public meeting relating
to this chapter or a franchise agreement shall be by publication of
a Class I notice prior to the meeting and by announcement on at least
one channel of the Grantee's system between the hours of 7:00 p.m.
and 9:00 p.m.., for five consecutive days prior to the meeting; provided,
however, the operator's failure to telecast such notice shall not
invalidate any proceedings.
The Grantee shall provide cable communications
service throughout the entire City pursuant to the provisions of this
chapter and the franchise agreement and shall maintain a record of
all requests for service received by the Grantee for at least three
years from the date of any such request. This record shall be available
for public inspection at the local office of the Grantee during normal
business hours.
A.
New construction timetable.
(1)
Within two years from the date of the award of the
initial franchise agreement, the Grantee must make cable television
service available to every dwelling unit within the initial service
area.
(a)
The Grantee must make cable television service
available to at least 20% of the dwelling units within the initial
service area within six months from the date of the award of the initial
franchise agreement.
(b)
The Grantee must make cable television service
available to at least 50% of the dwelling units within the initial
service area within one year from the date of the award of the initial
franchise agreement.
(2)
The Grantee, in its application, if any, may propose
a timetable of construction which will make cable television service
available in the initial service area sooner than the above minimum
requirements, in which case said schedule will be made part of the
franchise agreement and will be binding upon the Grantee.
B.
Line extensions.
(1)
In areas of the City not included in the initial service
areas, the Grantee shall be required to extend its system pursuant
to the following requirements:
(a)
No customer shall be refused service arbitrarily.
The Grantee is hereby authorized to extend the cable system as necessary
within the City. To expedite the process of extending the cable system
into a new subdivision, the City (or developer if requested by the
City) shall forward to the Grantee an approved engineering plan of
each project. Subject to the service extension requirements of this
chapter, the Grantee shall commence the design and construction process
upon receipt of the final engineering plan. Upon notification from
the City or developer that the first home in the project has been
approved for building permit, the Grantee shall have a maximum of
three months to complete the system construction/activation process
within the project phase.
(b)
The Grantee must extend and make cable television
service available to every dwelling unit in all unserved, developing
areas having at least 20 dwelling units planned per street mile, as
measured from the existing system, and shall extend its system simultaneously
with the installation of utility lines.
(c)
The Grantee must extend and make cable television
service available to any isolated resident outside the initial service
area requesting connection at the standard connection charge, if the
connection to the isolated resident would require no more than a standard
one-hundred-seventy-five-foot drop line.
(2)
Early extension. In areas not meeting the requirements
for mandatory extension of service, the Grantee shall provide, within
30 days of the request of a potential subscriber desiring service,
an estimate of the costs required to extend service to the subscriber
and a proposed agreement, in writing, specifying the payment terms
and the time within which service will be made available. The Grantee
shall then extend service upon acceptance of such agreement by the
potential subscriber. The Grantee may require advance payment or assurance
of payment satisfactory to the Grantee. The amount paid by subscribers
for early extensions shall be nonrefundable, and, in the event that
the area subsequently reaches the density required for mandatory extension,
such payments shall be treated as consideration for early extension.
The Grantee shall specify in the aforesaid proposed agreement whether
the Grantee has any specific notice or knowledge that the area may
attain the density required for mandatory extension.
(3)
New development undergrounding. 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 at least 48 hours'
prior notice 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 City or
the developer of a preliminary plat request shall satisfy the requirement
of reasonable notice if sent to the local general manager or system
engineer of the Grantee prior to approval of the preliminary plat
request.
C.
Special agreements. Nothing herein shall be construed to prevent the Grantee from serving areas not covered under this chapter upon agreement with developers, property owners or residents after obtaining any necessary property owner permission, provided that 5% of those gross revenues are paid to the City as franchise fees under § 96-27.
(1)
The Grantee, in its application, may propose a line
extension policy which will result in serving more residents of the
City than as required above, in which case the Grantee's policy will
be incorporated into the franchise agreement and will be binding upon
the Grantee.
A.
Compliance with construction and technical standards.
The Grantee shall construct, install, operate, administer and maintain
its system in compliance with all laws, statutes, rules, orders, ordinances,
construction standards, governmental requirements and FCC technical
standards. In addition, the Grantee shall provide the City, upon request,
with a written report of the results of the Grantee's annual proof
of performance tests conducted pursuant to Federal Communications
Commission standards and requirements.
B.
Additional specifications.
(1)
Construction, installation and maintenance of the
system shall be performed in an orderly and workmanlike manner. All
cables and wires shall be installed, where possible, parallel with
electric and telephone lines. Multiple cable configurations shall
be arranged in parallel and bundled with due respect for engineering
considerations. Prior to any new construction by the Grantee, the
Grantee shall submit a map in digital format showing all proposed
system installations within the public right-of-way or upon public
property to the City Engineer for approval. No new construction or
system installation shall be made unless it is in compliance with
such map as approved in writing by the City Engineer or as amended
in writing by the City Engineer form time to time.
[Amended 4-2-2001 by Ord. No. 2001-1642]
(3)
In any event, the system shall not endanger or interfere
with the safety of persons or property.
(4)
Any antenna structure used in the system shall comply
with the construction, marking and lighting requirements of the United
States Department of Transportation.
(5)
All aspects of the facilities utilized and conditions
provided during construction, installation and maintenance of the
system by the Grantee shall comply with the standards of the Occupational
Safety and Health Administration.
(6)
RF leakage shall be checked forthwith by the Grantee
upon demand by the City or its representative 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 the requirements of this subsection.
(7)
The Grantee shall maintain equipment capable of providing
standby power for headend, transportation and trunk amplifiers and
transport system for a minimum of two hours.
(8)
In all areas of the City where the cables, wires and
other like facilities of public utilities are placed underground,
the Grantee shall place its cables, wires or other like facilities
underground. When public utilities relocate their facilities from
pole to underground, the Grantee shall concurrently relocate its facilities
to underground at its sole cost; provided, however, that if the public
utilities are compensated, in part or in whole, for such relocation
of their facilities, then the Grantee shall be similarly compensated.
A.
Interference with persons and improvements. The Grantee's
system, poles, wires and appurtenances shall be located, erected and
maintained so that none of its facilities shall endanger or interfere
with the lives or safety of persons or interfere with the rights or
reasonable convenience of property owners who adjoin any of the streets
or interfere with any improvements the City may deem proper to make,
or hinder or obstruct the free use of the streets, bridges, easements
or public property.
B.
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 City, replace and restore all paving, sidewalk, driveway, landscaping
or surface of any street or property disturbed in as good condition
as before the work was commenced and in accordance with standards
for such work set by the City.
C.
Erection, removal and common uses of poles.
(1)
No poles or other wire-holding structures shall be
erected by the Grantee without prior approval of the City 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
create any vested right or interest accruing to the Grantee, and such
poles or structures shall be removed or modified by the Grantee at
its own expense whenever the City determines that the public convenience
would be enhanced or served thereby.
(2)
Where poles or other wire-holding structures already
existing and installed by a public utility for use in serving the
City are available for use by the Grantee, but the Grantee does not
make arrangements or obtain permission from the public utility for
such use, the City may require the Grantee to use such poles and structures
if it determines that the public convenience would be enhanced or
served thereby and the terms of the use available to the Grantee are
reasonable.
(3)
In the absence of any governing federal or state statute,
where the City or a public utility serving the City 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 City
may require the Grantee to permit such use for such consideration
and upon such terms as the City shall determine to be just and reasonable,
if the City determines that such use would enhance or serve the public
convenience and would not unduly interfere with the Grantee's operations.
D.
Relocation of system facilities. If at any time during
the period of this franchise agreement the City shall lawfully elect
to in any way alter any street or change the grade of any street,
the Grantee, upon reasonable notice by the City, shall remove or relocate
as necessary its poles, wires, cables, underground conduits, manholes
and other fixtures at its own expense, unless public utilities are
compensated by the City for removing or relocating facilities by such
street alteration project, in which case the Grantee shall be similarly
compensated.
E.
Cooperation with building movers. The Grantee shall,
on the request of any person holding a building moving permit issued
by the City, 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 and shall perform such
service no later than 5 days after such notice, unless extended with
the consent of the requester.
F.
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 City.
The City 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 for,
indemnify, defend and hold the City harmless for any and all damages
to any tree as a result of trimming, or to the land surrounding any
tree, whether such tree is trimmed or removed.
A.
The Grantee shall install, keep and maintain all parts
of the system in good and proper operating condition throughout the
term of the franchise agreement.
B.
Upon a reasonable request for service by any person
located within the City, 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.
The Grantee shall render efficient service, make repairs
promptly and interrupt service only for good cause and for the shortest
time possible. Such interruptions, insofar as possible, shall be preceded
by notice and shall occur during periods of minimum system use.
D.
The Grantee shall not allow its cable or other operations
to interfere with television reception of subscribers or persons not
served by the Grantee, nor shall the system interfere with, obstruct
or hinder in any manner the operation of the various utilities serving
the residents within the City nor shall other utilities interfere
with the Grantee's system.
E.
The Grantee shall have representatives who have been
trained and instructed in the customer service operations and practices
of the Grantee, available to respond to customer telephone inquiries
24 hours per day and 7 days per week.
F.
Under normal operating conditions, the time within
which a Grantee representative shall answer any telephone, 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 a calendar year quarter basis. Such telephone answer
time requirements shall be construed to mean that a telephone shall
be answered by a human being as opposed to any recorded or electronic
answering.
G.
Under normal operating conditions, the customer will
receive a busy signal less than 3% of the time as measured on a calendar
year quarter basis.
H.
Standard installations will be performed within seven
business days after an order has been placed. A standard installation
is one that is within 175 feet of the existing system.
I.
Excluding those circumstances which are beyond its
control, the Grantee shall respond to any service interruption promptly
and in no event later than 24 hours from the time of initial notification.
All other regular service requests will be responded to within 36
hours. The appointment window period alternatives for installations,
service calls and other installation activities shall be either: morning
or afternoon or evening, and no window period established shall exceed
four hours during normal business hours for the system, or at a time
that is mutually agreeable to the customer and Grantee. The Grantee
will make available additional hours during which appointments can
be scheduled based upon the needs of the community or as set forth
in the franchise agreement. If at any time a Grantee installer or
technician is behind schedule, a Grantee representative shall contact
the customer and reschedule the appointment for a time that is convenient
to the customer.
J.
Customer service centers and bill payment locations
will be open for walk-in customer transactions a minimum of eight
hours a day, Monday through Friday, unless there is a need to modify
those hours because of the location or customers served. The Grantee
and City, by mutual consent, will establish supplemental hours on
weekdays and weekends if such additional hours would better fulfill
the needs of the community.
K.
Subscriber credit for outages. Upon service interruption
and/or outages of subscriber's cable service, the following shall
apply:
(1)
For service interruptions and/or outages of over four
hours and up to seven days, the Grantee shall provide, at the subscriber's
request, a credit of 1/30th of one month's fees for affected services
for each twenty-four-hour period service is interrupted for four or
more hours for any single subscriber, with the exception of subscribers
disconnected because of nonpayment or excessive signal leakage.
(2)
For service interruptions and/or outages of seven
days or more in one month, the Grantee shall provide, at the subscriber's
request, a full month's credit for affected services for all affected
subscribers.
(3)
The Grantee shall provide written notice to all customers,
at least once in every twelve-month period, of the Grantee's policies
and procedures.
L.
The Grantee shall provide to each customer written
information at the time of installation and at any future time upon
the request of the customer, describing each of the following:
M.
Bills shall be clear, concise and understandable to
the subscriber, and all cable services charges shall be itemized.
N.
Credits shall be issued promptly, but no later than
the customer's next billing following the occurrence causing the credit,
and, if service has been terminated, the return of the equipment to
the Grantee.
O.
Customers shall be notified a minimum of 30 days in
advance of any customer billing period applicable to any rate increase
or channel change, provided that the change is within the control
of the Grantee.
P.
The Grantee shall maintain and operate the system
in full compliance with the laws, statutes, orders, rules and regulations
of the Federal Communication Commission, the United States Congress
or the State of Wisconsin.
[Amended 12-15-1998 by Ord. No. 98-1526]
Q.
The Grantee shall continue, throughout the term of
the franchise agreement, to maintain the technical standards and quality
of service as set forth in this section.
R.
The Grantee shall keep a monthly service log which
shall 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 to the City upon request.
A.
It shall be the right of all subscribers to continue
receiving service insofar as their financial and other obligations
to the Grantee are honored. If the Grantee elects to overbuild, rebuild,
modify or sell the system, or the City gives notice of intent to terminate
or fails to renew a franchise agreement, the Grantee shall act at
all times so as to ensure that all subscribers receive continuous,
uninterrupted service regardless of the circumstances.
B.
If there is a change of franchise, or if a new operator
acquires the system, the Grantee shall cooperate with the City, new
franchisee or operator in maintaining continuity of service to all
subscribers. During such period, the Grantee shall be entitled to
the revenues for any period during which it operates the system and
shall be entitled to reasonable costs for its services until it no
longer operates the system.
C.
If the Grantee fails to operate the system for seven
consecutive days without prior approval of the City or without just
cause, the City may, at its option, operate the system or designate
an operator until such time as the Grantee restores service under
conditions acceptable to the City or a permanent operator is selected.
If the City so opts, the Grantee shall reimburse the City for all
reasonable costs or damages in excess of revenues from the system
received by the City that are the result of the Grantee's failure
to perform, within 30 days of invoice for the same.
A.
The City Director of Administration is designated
as the City liaison with the Grantee for the purpose of forwarding
to the Grantee any complaints received by the City and monitoring
the Grantee's complaint resolution process, with the assistance of
the City Technology Commission.
[Amended 1-9-2001 by Ord. No. 2001-1630]
B.
During the term of a franchise agreement, 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, tollfree telephone call to receive complaints
regarding quality of service, equipment functions and similar matters.
The Grantee shall arrange for one or more payment locations in or
within a reasonable distance of the City where customers can pay bills
or conduct other system business activities.
C.
Upon subscribers receiving connection or reconnection
to the system, the Grantee shall provide written information describing
the procedures for making inquiries or complaints, including the name,
address and local telephone number of the Grantee representative to
whom such inquiries or complaints are to be addressed.
D.
Upon any similar complaints made which, in the judgment
of the City, casts doubt on the reliability or quality of cable service,
the City 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 City in performing such testing
and shall prepare and deliver results and a report, if requested,
within 30 days after notice. Such report shall include the following
information:
(1)
The nature of the complaint or problem which precipitated
the special tests.
(2)
What system component was tested.
(3)
The equipment used and procedures employed in testing.
(4)
The method by which such complaint or problem was
resolved.
(5)
Any other information pertaining to the tests and
analysis which may be required by the City.
E.
The City may require that tests be supervised by an
independent professional engineer or equivalent of the City's choice.
The engineer shall have access to all records of the Grantee's special
tests and other pertinent information and forward to the City 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 standards required under this chapter or the
franchise agreement, the Grantee shall bear the cost of the test and
the independent engineer/equivalent. If the test should prove that
the Grantee met the technical standards, the City shall bear the cost
of the test and independent engineer/equivalent.
F.
The City's rights under this section shall be limited
to requiring tests, analysis and reports covering specific subjects
and characteristics based upon complaints or other evidence when and
under such circumstances as the City has reasonable grounds to believe
that the complaints or other evidence require 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 franchise agreement, the provisions
hereof or applicable state and federal laws, rules, orders and regulations.
A.
For the reason that the streets of the City to be
used by the Grantee in the operation of its system within the boundaries
of the City are valuable public properties acquired and maintained
by the City 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
City an amount equal to 5% of the Grantee's gross revenues from the
operations of the Grantee within the City, (the "franchise fee") subject
to the terms of this section. If the statutory five-percent limitation
of franchise fees is raised or the federal statute deletes the franchise
fee limitation entirely, then the franchise fee shall be the maximum
allowed by law if the limitation is raised and the franchise fee may
be subject to renegotiation if the limitation is deleted, but such
renegotiation shall not result in a fee less than 5%.
[Amended 4-2-2001 by Ord. No. 2001-1642]
B.
The franchise fee imposed shall be in addition to
any other tax or payment owed to the City by the Grantee.
C.
The franchise fee and any other costs or penalties
assessed shall be payable quarterly on a calendar year basis to the
City, and the Grantee shall file a complete and accurate verified
statement of all gross receipts as previously defined herein within
45 days after the expiration of the calendar quarter.
D.
The City 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 section; 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
City as a result of the audit shall be paid within 30 days following
written notice to the Grantee by the City, which notice shall include
a copy of the audit report.
E.
If any franchise payment or recomputed amount, cost
or penalty is not made on or before the applicable dates heretofore
specified, interest shall accrue on such unpaid amounts, and such
unpaid amounts shall be paid to the City by the Grantee at the rate
of 11/2% per month, or any portion thereof, until paid, and the Grantee
shall reimburse the City for any additional expenses and costs incurred
by the City by reason of the delinquent payment(s).
A.
Except as may be otherwise 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 City. The Grantee may, however, transfer or
assign the franchise to a wholly owned subsidiary of the Grantee,
and such subsidiary may transfer or assign the franchise back to the
Grantee without such consent, provided that such assignment is without
any release of liability of the Grantee. The proposed assignee must
show financial responsibility as determined by the City and must agree
to comply with all provisions of the franchise agreement. The City
shall have 120 days to act upon receipt of any written request for
approval of such a sale or transfer which contains or is accompanied
by such information as is required in accordance with FCC regulations
and by the City of Franklin. The City shall be deemed to have consented
to a proposed transfer or assignment if its written refusal to consent
is not mailed to the Grantee within 120 days following receipt of
a proper request, unless the requesting party and the City agree to
an extension of time. The City shall not unreasonably withhold consent
to the proposed transfer.
B.
Except as may be otherwise provided in a franchise
agreement, the Grantee shall promptly notify the City 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 City 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 City may inquire
into the qualification of the prospective controlling party, and the
Grantee shall assist the City in such inquiry.
C.
The consent or approval of the City to any transfer
of the Grantee shall not constitute a waiver or release of the rights
of the City in and to the streets, and any transfer shall, by its
terms, be expressly subordinate to the terms and conditions of this
chapter and the franchise agreement.
D.
In the absence of extraordinary circumstances, the
City will not approve any transfer or assignment of an initial franchise
prior to substantial completion of construction of the proposed system.
E.
In no event shall a transfer of ownership or control
be approved without the successor in interest becoming a signatory
to this franchise agreement.
A.
The Grantee shall fully cooperate in making available
at reasonable times and the City shall have the right to inspect and
copy, 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 and copying to take place on the
Grantee premises at the City's expense. The Grantee's per-copy charge
to the City shall not be greater than the City's per-copy charge imposed
on the general public at its offices.
B.
The following records and/or reports are to be made
available to the City upon request, but no more frequently than on
an annual basis, unless mutually agreed upon by the Grantee and the
City:
(1)
Quarterly reviews and resolutions or progress reports;
(2)
Periodic preventive maintenance reports;
(3)
Any copies of FCC Form 395-A (or successor form) or
any supplemental forms related to equal opportunity or fair contracting
policies;
(4)
Subscriber inquiry/complaint resolution data; and
(5)
Periodic construction update reports, including 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 City upon request.
The Grantee shall file annually with the City,
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.
Upon termination of a franchise agreement as
provided by this chapter and applicable federal law, or the expiration
and denial of the renewal application as provided by this chapter
and applicable federal law, the Grantee shall forthwith, at the option
of and upon notice by the City, remove at its own expense all designated
portions of the cable television system from all streets and public
property within the City. If the Grantee fails to do so, the City
may perform the work at the Grantee's expense. Upon the receipt of
a notice for removal, a bond shall be furnished by the Grantee to
the City, in an amount sufficient to cover this expense or a letter
of credit or security deposit, and any existing performance bond proceeds
shall be available to and may be withdrawn by the City to the full
extent of their value.
A.
The cable television system shall have a minimum channel
capacity of 77 channels and at least 750 MHZ of bandwidth available
for future use.
B.
The Grantee shall maintain and the system shall include
a plant having the technical capacity for two-way communications.
C.
The Grantee shall maintain the following:
(1)
At least one specially designated, noncommercial public
access channel available on a first-come, nondiscriminatory basis;
(2)
At least one specially designated channel for use
by local educational authorities;
(3)
At least one specially designated channel for local
governmental uses;
(4)
At least one specially-designated channel for leased
access uses; and
(5)
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.
(6)
Provided, however, the above uses may be combined
on one or more channels until such time as additional channels become
necessary in the opinion of the City. Financial and technical support,
replacement and maintenance of studios and associated equipment of
this facility shall be separately incorporated into the franchise
agreement.
D.
The Grantee shall incorporate into its cable television
system the capacity to permit the City, in times of emergency, to
override, by remote control, the audio of all channels simultaneously
which the Grantee may lawfully override. The Grantee shall provide
emergency broadcast capacity pursuant to FCC rules. The Grantee shall
cooperate with the City in the use and operation of the emergency
alert override system.
E.
Interconnection.
(1)
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 City.
(2)
Interconnection procedure. Upon receiving the order
of the City to interconnect, the Grantee shall immediately initiate
negotiations with the other affected system or systems in order that
all costs may be shared equally among cable companies for both construction
and operation of the interconnection link.
(3)
Relief. The Grantee may be granted reasonable extensions
of time to interconnect or the City may rescind its order to interconnect
upon petition by the Grantee to the City. The City shall grant the
request if it finds that the Grantee has negotiated in good faith
and has failed to obtain an approval from the operator or franchising
authority of the system to be interconnected, or the cost of the interconnection
would cause an unreasonable increase in subscriber rates.
(4)
Cooperation required. The Grantee shall cooperate
with any interconnection corporation, regional interconnection authority
or City, local, 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 City.
(5)
Initial technical requirements to assure future interconnection
capability.
(a)
All cable systems receiving franchises to operate
within the City shall use the standard frequency allocations for television
signals.
(b)
All cable systems are required to use signal
processors at the headend for each television signal.
(c)
The Grantee shall provide local origination
equipment that is compatible throughout the area so that video cassettes
or videotapes can be shared by various systems.
(d)
The Grantee shall provide such additional services
and facilities as are contained in its application, if any.
A.
The right and power is hereby reserved by the City
to promulgate such additional regulations as it shall find necessary
in the exercise of its lawful powers and furtherance of the terms
and conditions of this 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.
The City may also adopt such regulations at the request
of the Grantee upon application.
A.
The City and the Grantee may hold scheduled performance
evaluation sessions within 30 days of the third, sixth and 12th anniversary
dates of the Grantee's award or renewal of the franchise and as may
be required by federal and state law. All such evaluation sessions
shall be open to the public.
B.
Special evaluation sessions may be held at any time
during the term of the franchise agreement at the request of the City
or the Grantee.
C.
All evaluation sessions shall be open to the public
and noticed in the City's Official Newspaper. 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. The Grantee's
failure to televise such notice shall not invalidate any proceedings.
D.
Topics which may be discussed at any scheduled or
special evaluation session shall include, but not be limited to, service
rate structures; franchise fee, 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; Grantee
or City rules; and topics raised by members of the public at the session.
Pursuant to the Cable Television Consumer Protection
and Competition Act of 1992, the City of Franklin is currently certified
to regulate the basic service rates charged by the Grantee. Under
these rules, the Grantee is required to obtain approval from the City
for a rate increase for any change to the rates for basic service.
Should any federal or state law permit further rate regulation beyond
the basic service, the City of Franklin may assume such rate regulation
and adopt appropriate procedures for such regulation.
A.
In addition to all other rights and powers retained
by the City under this chapter or otherwise, the City reserves the
right for forfeit and terminate the franchise agreement and all rights
and privileges of the Grantee thereunder in the event of a substantial
breach of its terms and conditions. A substantial breach by the Grantee
shall include, but shall not be limited to the following:
(1)
Violation of any material provision of this chapter
or the franchise agreement or any material rule, order, regulation
or determination of the City made pursuant thereto;
(2)
Any act or omission to evade or circumvent any material
provision of the franchise or practice any fraud or deceit upon the
City or its subscribers or customers;
(3)
The Grantee's failure to begin or complete system construction or system extension as provided under § 96-20;
(4)
The Grantee's failure to provide the services promised in the Grantee's application, if any, as incorporated herein by § 96-4;
(5)
The Grantee's failure to restore service after 96
consecutive hours of service interruption, except when prior approval
of such interruption is obtained from the City; or
(6)
The Grantee's material misrepresentation of fact in
the application for or negotiation of the franchise.
B.
The foregoing shall not constitute a substantial breach
if the violation occurs but is without fault of the Grantee or occurs
as a result of circumstances beyond its control. The Grantee shall
not be excused by mere economic hardship nor by misfeasance or malfeasance
of its directors, officers or employees.
C.
The City may make a written demand that the Grantee
comply with any such provision, rule, order or determination under
or pursuant to this chapter or the franchise agreement. 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 City may place
the issue of termination of the franchise agreement before the City
Council. Upon the consideration of termination, the City 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 seek such termination
and the time and place of the meeting. Class I public notice shall
be given of the meeting and the issue(s) which the Council is to consider.
D.
The City Council shall hear and consider the issue(s)
and shall hear any person interested therein and shall determine in
its discretion whether or not any violation by the Grantee has occurred.
E.
If the City Council shall determine the violation
by the Grantee was the fault of the Grantee and within its control,
the Council may, by resolution, declare that the franchise of the
Grantee shall be forfeited and terminated unless there is compliance
within such period as the Council may fix, and such period shall not
be less than 60 days; provided, however, no opportunity for compliance
need be granted for fraud or misrepresentation.
F.
The issue of forfeiture and termination shall automatically
be placed upon the Council agenda at the expiration of the time set
by it for compliance. The Council 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 City of such fact, and such notification
shall be treated as a notification that a change in control of the
Grantee has taken place, and the provisions of this chapter governing
the consent of the City to such change in control of the Grantee shall
apply.
A.
47 U.S.C. 537 shall apply to the right of acquisition by the City. In the event that the applicable federal regulations are repealed, the guidelines specified in Subsection B below shall apply.
B.
Upon the expiration of the term of the franchise agreement and denial of any renewal, or upon any other termination thereof as provided herein, the City, at its election and upon the payment to the Grantee of a price equal to the then fair market value of the system, shall have the right to purchase and take over the system upon resolution by the City Council. If the City has denied the Grantee's petition for renewal of its franchise as provided by § 96-7, the City 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 City to purchase the system from requesting the court to set a reasonable bond of the City to secure the purchase price. The Grantee shall execute such warranty deeds and other instruments as may be necessary to convey the system.
The City shall have the right to terminate a
franchise agreement 120 days after the appointment of a receiver or
trustee, appointed 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 dismissed prior to the expiration of 120 days, or unless:
A.
Within 120 days after appointment, such receiver or
trustee shall have fully complied with all the provisions of this
chapter and the franchise agreement and remedied all defaults thereunder;
and
B.
Such receiver or trustee, within the 120 days after
appointment, 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 agreement granted to the Grantee.
A.
Notwithstanding any other provisions of this chapter
to the contrary, the Grantee shall at all times comply with all laws
and regulations of the state and federal government or any administrative
agencies thereof; provided, however, 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 City, then as
soon as possible following knowledge thereof, the Grantee shall notify
the City of the point of conflict believed to exist between such regulation
or law and the laws or regulations of the City or this chapter.
B.
If the City determines that a material provision of
this chapter is affected by any subsequent action of the state or
federal government, the City and the Grantee shall negotiate to modify
any of the provisions herein to such reasonable extent as may be necessary
to carry out the full intent and purpose of this agreement.
A.
Interference with cable service prohibited. Neither
the owner of any multiple unit residential dwelling nor the owner's
agent or representative shall interfere with the right of any tenant
or lawful resident thereof to receive cable communication service,
cable installation or maintenance from a cable communication Grantee
regulated by and lawfully operating under a valid and existing franchise
issued by the City.
B.
Gratuities and payments to permit service prohibited.
Neither the owner of any multiple unit residential dwelling nor the
owner's agent or representative shall ask, demand or receive any payment,
service or gratuity in any form as a condition for permitting or cooperating
with the installation of a cable communication service to the dwelling
unit occupied by a tenant or resident requesting service.
C.
Penalties and charges to tenants for service prohibited.
Neither the owner of any multiple unit residential dwelling nor the
owner's agent or representative shall penalize, charge or surcharge
a tenant or resident or forfeit or threaten to forfeit any right of
such tenant or resident or discriminate in any way against such tenant
or resident who requests or receives cable communication service from
a Grantee operating under a valid and existing cable communication
franchise issued by the City.
D.
Reselling service prohibited. No person shall resell,
without the expressed, written consent of both the Grantee and the
City, any cable service, program or signal transmitted by a cable
communication Grantee under a franchise issued by the City.
E.
Protection of property permitted. Nothing in this
chapter shall prohibit a person from requiring that cable communication
system facilities conform to laws and regulations and reasonable conditions
necessary to protect the safety, use, appearance and value of premises
or the convenience and safety of persons or property.
F.
Risks assumed by Grantee. Nothing in this chapter
shall prohibit a person from requiring a Grantee to indemnify the
owner or the owner's agents or representatives for damages or from
liability for damages caused by the installation, operation, maintenance
or removal of cable communication facilities.
A.
All bids received by the City from the applicants
for an initial franchise shall become the sole property of the City.
B.
The City reserves the right to reject any and all
bids and waive informalities and/or technicalities where the best
interests of the City may be served.
C.
All questions regarding the meaning or intent of this
chapter or application documents shall be submitted to the City, in
writing. Replies will be issued by addenda mailed or delivered to
all parties recorded by the City as having received the application
documents. The City reserves the right to make extensions of time
for receiving bids as it deems necessary. Questions received less
than 14 days prior to the date for the opening of bids will not be
answered. Only replies to questions by written addenda will be binding.
All bids must contain an acknowledgment of receipt of all addenda.
D.
Bids must be sealed and submitted at the time and
place indicated in the application documents for the public opening.
Bids may be modified at any time prior to the opening of the bids,
provided that any modifications must be duly executed in the manner
that the applicant's bid must be executed. No bid shall be opened
or inspected before the public opening.
E.
Before submitting a bid, each applicant must:
(1)
Examine this chapter and the application documents
thoroughly;
(2)
Inspect and determine any local conditions that may
in any manner affect performance under the franchise;
(3)
Examine federal, state and local laws, ordinances,
rules and regulations affecting performance under the franchise agreement;
and
(4)
Carefully correlate the bid with the requirements
of this chapter and the application documents.
F.
The City may make such investigations as it deems
necessary to determine the ability of the applicant to perform under
the franchise agreement, and the applicant shall furnish to the City
all such information and data for this purpose as the City may request.
The City reserves the right to reject any bid if the evidence submitted
by or investigation of such applicant fails to satisfy the City that
such applicant is properly qualified to carry out the obligations
of the franchise and to complete the work contemplated therein. Conditional
bids will not be accepted.
G.
All bids received shall be placed in a secure depository
approved by the City and not opened or inspected prior to the public
opening.
A.
No initial franchise will be granted to any applicant
unless all requirements and demands of the City regarding financial,
contractual, shareholder and system disclosure have been met.
B.
Applicants, including all shareholders and parties
with any interest in the applicant, shall fully disclose all agreements
and undertakings, whether written, oral or implied, with any person,
firm, group, association or corporation with respect to the franchise
and the proposed cable television system. The Grantee of the franchise
shall disclose all other contracts to the City as the contracts are
made. This section shall include, but not be limited to, any agreements
between local applicants and national companies.
C.
Applicants, including all shareholders and parties
with any interest in the applicant, shall submit all requested information
as provided by the terms of this chapter or the application documents,
which are incorporated herein by reference. The requested information
must be complete and verified as true by the applicant.
D.
Applicants, including all shareholders and parties
with any interest in the applicant, shall disclose the numbers of
shares of stock, and the holders thereof, and shall include the amount
of consideration for each share of stock and the nature of the consideration.
E.
Applicants, including all shareholders and parties
with any interest in the applicant, shall disclose any information
required by the application documents regarding other cable systems
in which they hold an interest of any nature, including, but not limited
to, the following:
(1)
Locations of all other franchises and the dates of
award for each location;
(2)
Estimated construction costs and estimated completion
dates for each system;
(3)
Estimated number of miles of construction and number
of miles completed in each system as of the date of this application;
and
(4)
Date for completion of construction as promised in
the application for each system.
F.
Applicants, including all shareholders and parties
with any interest in the applicant, shall disclose any information
required by the application documents regarding pending applications
for other cable systems, including but not limited to the following:
A.
No person may intentionally do any of the following:
(1)
Obtain or attempt to obtain cable television service
from a Grantee by trick, artifice, deception, use of an illegal device
or illegal decoder or other fraudulent means with the intent to deprive
that Grantee of any or all lawful compensation for rendering each
type of service obtained. The intent required for a violation of this
subsection may be inferred from the presence on the property and in
the actual possession of the person or entity of a device not authorized
by the Grantee, the major purpose of which is to permit reception
of cable television services without payment. This inference is rebutted
if the alleged violator demonstrates that such person or entity purchased
that device for a legitimate use.
(2)
Give technical assistance or instruction to any person
in obtaining or attempting to obtain any cable television service
without payment of all lawful compensation to the Grantee providing
that service. This subsection does not apply if the alleged violator
demonstrates that the technical assistance or instruction was given
or the installation of the connection, descrambler or receiving device
was for a legitimate use.
(3)
Make or maintain a connection, whether physical, electrical,
mechanical, acoustical or by other means, with any cables, wires,
components or other devices used for the distribution of cable television
services for the purpose of distributing cable television service
to any other dwelling unit without authority from a Grantee.
(4)
Make or maintain a connection, whether physical, electrical,
mechanical, acoustical or by other means, with any cables, wires,
components or other devices used for the distribution of cable television
services for the purpose of obtaining cable television service without
payment of all lawful compensation to the Grantee providing the service.
The intent required for a violation of this subsection may be inferred
from proof that the cable service to the alleged violator's residence
or business was connected under a service agreement with the alleged
violator and has been disconnected by the cable television company
and that thereafter there exists in fact a connection to the cable
system at the alleged violator's residence or business.
(5)
Make or maintain any modification or alteration to
any device installed with the authorization of a Grantee for the purpose
of intercepting or receiving any program or other service carried
by that Grantee which that person is not authorized by that Grantee
to receive. The intent required for a violation of this subsection
may be inferred from proof that, as a matter of standard procedure,
the Grantee places written warning labels on its converters or decoders
explaining that tampering with the device is a violation of law, and
the converter or decoder is found to have been tampered with, altered
or modified so as to allow the reception or interception of programming
carried by the Grantee without authority to do so. The trier of fact
may also infer that a converter or decoder has been altered or modified
from proof that the Grantee, as a matter of standard procedure, seals
the converters or decoders with a label or mechanical device, that
the seal was shown to the customer upon delivery of the decoder and
that the seal has been removed or broken. The inferences under this
subsection are rebutted if the Grantee cannot demonstrate that the
intact seal was shown to the customer.
(6)
Possess without authority any device or printed circuit
board designed to receive from a cable television system any cable
television programming or services offered for sale over that cable
television system, whether or not the programming or services are
encoded, filtered, scrambled or otherwise made unintelligible, or
perform or facilitate the performance of any of the acts under this
subsection with the intent that the device or printed circuit be used
to receive the Grantee's services without payment. Intent to violate
this subsection for direct or indirect commercial advantage or private
financial gain may be inferred from proof of the existence on the
property and in the actual possession of the alleged violator of such
a device, if the totality of circumstances, including quantities or
volumes, indicates possession for resale.
(7)
Manufacture, import into this state, distribute, publish,
advertise, sell, lease or offer for sale or lease any device, printed
circuit board or any plan or kit for a device or for a printed circuit
designed to receive the cable television programming or services offered
for sale over a cable television system from a cable television system,
whether or not the programming or services are encoded, filtered,
scrambled or otherwise made unintelligible, with the intent that the
device, printed circuit, plan or kit be used for the reception of
that Grantee's service without payment. The intent required for a
violation of this subsection may be inferred from proof that the defendant
has sold, leased or offered for sale or lease any device, printed
circuit board, plan or kit for a device or for a printed circuit board
in violation of this subsection, and during the course of the transaction
for sale or lease, the alleged violator expressly states or implies
to the buyer that the product will enable the buyer to obtain cable
television service without charge.
B.
Civil liability for theft of telecommunications service
(including cable television service).
(1)
Any Grantee who sustains a loss as a result of a violation
of this section may bring a civil action against the person who committed
the violation as allowed by law.
(2)
Except as provided in this subsection, if the Grantee
who incurs the loss prevails, the court shall grant the prevailing
party actual damages, costs and disbursements.
(3)
If a Grantee who incurs a loss prevails against a
person or entity who willfully violated any provision of this section
and for the purposes of commercial advantage or against a person or
entity prevails who violated more than one provision of this section,
the court shall grant the Grantee all of the following:
(a)
Except as provided in this subsection, not more
than $10,000;
(b)
Actual damages;
(c)
Any profits of the violators that are attributable
to the violation and that are not taken into account in determining
the amount of actual damages under this subsection;
(d)
Notwithstanding the limitations under § 799.25
or 814.04, Wis. Stats., costs, disbursement and reasonable attorney
fees;
(e)
If the court finds that the violation was committed
willfully and for the purpose of commercial advantage, the court may
increase the amount granted under this subsection not to exceed $50,000;
and
(f)
If the court finds that the violator had no
reason to believe that the violator's action constituted a violation
of this section, the court may reduce the amount granted under this
subsection.
(4)
If damages under this subsection are requested, the
Grantee who incurred the injury and loss shall have the burden of
proving the violator's gross revenue and the violator's deductible
expenses and the elements of profit attributable to factors other
than the violation.
(5)
In addition to other remedies available under this
section, the court may grant the injured Grantee a temporary or permanent
injunction.
Any person or entity violating any term or provision of this chapter shall be subject to the penalties set forth under Chapter 1, General Provisions, § 1-19. Penalties upon conviction of the Grantee shall be chargeable to the letter of credit, security deposit or performance bond. The rights reserved to the City under this chapter are in addition to all other rights of the City, 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 City may have. Notwithstanding § 1-19 of this Code as it pertains to minimum forfeitures, the following offenses shall, upon conviction, carry the following minimum forfeitures:
A.
Failure to furnish, maintain or offer all cable services
to any potential subscriber within the City upon order of the City:
$200 per day.
B.
Failure to obtain or file evidence of required insurance,
construction bond, performance bond or other required financial security:
$200 per day.
D.
Failure to comply with applicable construction, operation
or maintenance standards: $300 per day.
E.
Failure to comply with a rate decision or refund order:
$500 per day.
A.
Whenever the City 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 City may impose penalties,
unless the violation is of such a nature so as to require more than
30 days and the Grantee proceeds diligently within the 30 days to
correct the violation, or as promptly as possible thereafter to correct
the violation. In any case where the violation is not cured within
60 days of notice from the City, or such other time as the Grantee
and the City may mutually agree to, the City may proceed to impose
liquidated damages.
B.
The Grantee may, within 10 days of receipt of notice,
notify the City that there is a dispute as to whether a violation
or failure has, in fact, occurred. Such notice by the Grantee to the
City shall specify with particularity the matters disputed by the
Grantee and shall stay the running of the thirty-day cure period pending
Council decision as required below. The Council 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 City shall provide the Grantee a copy of its action,
along with supporting documents. In the event that the City upholds
the finding of a violation, the Grantee shall have 30 days subsequent,
or such other time period as the Grantee and the City mutually agree,
to correct the alleged violation before penalties may be imposed.
C.
The rights reserved to the City under this section
are in addition to all other rights of the City, 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 City may have.
D.
The City 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 act of nature or due to circumstances beyond the reasonable
control of the Grantee.