[HISTORY: Adopted by the Village Board of the Village of Black Earth 4-7-1998
(Ch. 22 of the 1990 Code). Amendments noted where applicable.]
The purpose of this chapter is to authorize the Village of Black Earth
to grant a nonexclusive franchise to one or more grantees to install, maintain,
and operate within the Village a cable television system for the distribution
of television signals, frequency-modulated radio signals and any other electronic
signals capable of being transmitted on a coaxial or fiber optic network,
including data transmission and closed circuit television programs, provided
that the grantee conforms to the conditions, limitations, and requirements
of this chapter.
This chapter shall be known and may be cited as the "Black Earth Cable
Television Franchise Ordinance of 1997."
For the purpose of this chapter, the following terms, phrases, words
and their derivations shall have the meaning given herein. When not inconsistent
with the context, words used in the present tense include the future, words
in the plural number include the singular number, and words in the singular
number include the plural number.
Any service tier which includes, at a minimum, all signals of domestic
television broadcast stations provided to any subscriber (except a signal
secondarily transmitted by satellite carrier beyond the local service area
of such station), any public, educational, and governmental programming required
by the franchise, and any additional video programming signals or service
added to the tier by the grantee.
Title VI of the Communications Act of 1934, as amended, 47 U.S.C.
§ 151 et seq., and all other provisions of the Cable Communications
Policy Act of 1984, P.L. No. 98-549, the Cable Television Consumer Protection
and Competition Act of 1992, P.L. No. 102-385, and the Telecommunications
Act of 1997, P.L. No. 104-104.
Any person or group of persons who or which provides cable service
over a cable system and directly or through one or more affiliates owns a
significant interest in such cable system or who or which otherwise controls
or is responsible for, through any arrangement, the management and operation
of such cable system.
The one-way transmission to subscribers of video programming or other
programming service and subscriber interaction, if any, which is required
for the selection or use of such video programming or other programming service.
Any facility owned by a cable operator consisting of a set of closed
transmission paths and associated signal generation, reception, and control
equipment that is designed to provide cable service which includes video programming
and which is provided to multiple subscribers within a community, but such
term does not include:
A facility that serves only to retransmit the television signals of
one or more television broadcast stations;
A facility that serves subscribers without using any public right-of-way;
A facility of a common carrier which is subject, in whole or in part,
to the provisions of Title II of the Communications Act of 1934, as amended,
except that such facility shall be considered a cable system to the extent
such facility is used in the transmission of video programming directly to
subscribers, unless the extent of such use is solely to provide interactive
on-demand services;
An open video system that complies with Section 653 of the Cable Act,
including any amendments thereto; or
Any facilities of any electric utility used solely for operating its
electric utility systems.
A portion of the electromagnetic frequency spectrum which is used
in a cable system and which is capable of delivering a television channel
(as "television channel" is defined in FCC regulations).
The power or authority to direct or cause the direction of the management
and policies of the grantee.
An electronic device that will shift any television channel(s) from
one to another within the UHF or VHF frequency spectrum.
A building or that part of a building used as a home or residence.
Any video programming provided over a cable system, regardless of
service tier, including installation or rental of equipment used for the receipt
of such video programming, other than:
Video programming carried on the basic service tier;
Video programming offered on a pay-per-channel or pay-per-program basis;
or
A combination of multiple channels of pay-per-channel or pay-per-program
video programming offered on a multiplexed or time-shifted basis so long as
the combined service consists of commonly identified video programming and
is not bundled with any regulated tier of service.
The Federal Communications Commission, its designee, or any successor
thereto.
An initial authorization or renewal thereof issued by the Village,
as franchising authority, to a grantee to construct or operate a cable system.
A contractual agreement entered into between the Village and any
grantee hereunder which is enforceable by the Village and said grantee and
which sets forth the rights and obligations between the Village and said grantee
in connection with the franchise.
Any tax, fee, or assessment the Village imposes on the grantee solely
because of the grantee's status as such. The term "franchise fee" does
not include:
Any tax, fee, or assessment of general applicability (including any
such tax for or assessment imposed on both utilities and cable operators or
their services, but not including a tax, fee or assessment which is unduly
discriminatory against the grantee);
Capital costs which are required by the franchise to be incurred by
the grantee for educational or governmental access facilities;
Requirements or charges incidental to the awarding or enforcing of the
franchise, including payments for bonds, security funds, letters of credit,
insurance, indemnification, penalties, or liquidated damages; or
Any fee imposed under Title 17, United States Code.
A person to whom a franchise under this chapter is granted and the
lawful successors or assigns of such person.
Any and all revenues derived directly or indirectly by a grantee,
its affiliates, subsidiaries, parents, or any person in which the grantee
has a financial interest from or in connection with the operation of the cable
system pursuant to this chapter. Further, annual gross revenues include compensation,
in whatever form, derived from all cable services, cable operations, and cable-relaxed
activities within the franchise area, including but not limited to:
Revenues from subscriber rates, pay television, premium channels, service
tiers, service clusters, institutional networks, on-air advertising, installations,
reconnections, or similar fees;
Rebates or commissions received from travel, home shopping or similar
services or commercial access; and
Any and all compensation from all ancillary cable services, cable operations,
and cable-related activities within the franchise area.
Those hours during which similar businesses in the Village are open
to service customers. In all cases, "normal business hours" must include some
evening hours at least one night per week and some weekend hours.
Those service conditions which are within the control of the cable
operator. Those conditions which are not within the control of the cable operator
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 cable operator
include, but are not limited to, special promotions, pay-per-view events,
rate increases, regular peak or seasonal demand periods, and maintenance or
upgrade of the cable system.
Any natural person or any association, firm, partnership, joint-stock
company, limited liability company, joint venture, corporation, or other legally
recognized entity, private or public, whether for-profit or not-for-profit.
Channel capacity designated for public, educational, or governmental
use and the facilities and equipment for the use of such channel capacity.
A category of cable service or other services provided by a cable
operator and for which a separate rate is charged by the cable operator.
The surface of and space above and below any public street, road,
highway, freeway, lane, alley, court, sidewalk, parkway or drive, or any public
right-of-way, now or hereafter existing as such within the Village.
Any person legally receiving any service provided by a grantee pursuant
to this chapter.
Programming provided by, or generally considered comparable to, programming
provided by a television broadcast station.
The Village of Black Earth, Wisconsin, or any duly appointed designee
thereof, including but not limited to the Village Board and all the area within
the territorial limits of the Village and its future corporate boundaries.
The present governing body of the Village or any successors to the
legislative power of said body or any duly appointed designee thereof.
A.
Grant. In the event the Village shall grant to a grantee
or renew a nonexclusive, revocable franchise to construct, operate, maintain
and reconstruct a cable system within the franchise area, said franchise shall
constitute both a right and an obligation to provide the service of a cable
system as required by this chapter and by the terms of the franchise agreement.
B.
Franchise required. Subject to federal and state law,
no cable operator shall be allowed to occupy or use the streets within the
incorporated limits of the Village without a franchise granted in accordance
with the provisions of this chapter.
C.
Franchise nonexclusive. Any franchise granted under this
chapter shall be revocable and nonexclusive. The Village reserves the right
to grant a similar franchise to any person at any time.
D.
Revisions. Any franchise granted under this chapter is
hereby made subject to any revisions of this chapter and the general ordinances
of the Village, provided that such revisions do not materially and adversely
alter the grantee's obligations or impair the grantee's rights set
out in any franchise agreement.
E.
Term. The term of any new or renewal franchise granted
under this chapter shall be established in the franchise agreement; provided,
however, that in no event shall any franchise granted under this chapter exceed
the term of 15 years.
F.
Mortgage or pledge of system. Nothing in this chapter
shall be deemed to prohibit a grantee from mortgaging or pledging of its system
or any part thereof. However, any such mortgage or pledge shall be subject
to and subordinate to the right of the Village under this chapter, any franchise
agreement or applicable laws.
G.
Previous rights abandoned. The franchise
shall be in lieu of any and all other rights, privileges, powers, immunities,
and authorities owned, possessed, controlled or exercisable by the grantee
or any successor pertaining to the construction, operation, maintenance or
reconstruction of a cable system in the Village. The acceptance of the franchise
shall operate, as between the grantee and the Village, as an abandonment of
any and all of such rights, privileges, powers, immunities and authorities
within the Village. All construction, operation, maintenance and reconstruction
by the grantee of any cable system in the Village shall be under this chapter
and the franchise agreement and not under any other right, privilege, power,
immunity or authority.
H.
Subject to other regulatory agencies' rules and
regulations. The grantee shall at all times during the life of the franchise
be subject to all lawful exercise of the police power by the Village and other
duly authorized regulatory state and federal bodies and shall comply with
any and all codes which the Village has adopted or shall adopt applying to
the public generally and to other grantees.
I.
Pole use agreements required. The franchise shall not
relieve the grantee of any obligation involved in obtaining pole or conduit
use agreements from the gas, electric and telephone companies or others maintaining
poles or conduits in the streets of the Village, whenever the grantee finds
it necessary to make use of such poles or conduits.
J.
No right of property. Anything contained herein to the
contrary notwithstanding, the franchise shall not impart to the grantee any
right of property in or on Village-owned property.
K.
Use of grantee's facilities. The Village shall have
the right to install and maintain, free of charge, upon the poles and within
the underground pipes and conduits of the grantee, any wires and fixtures
desired by the Village to the extent that such installation and maintenance
do not interfere with existing and future operations of the grantee.
L.
Franchise binding. Anything contained herein to the contrary
notwithstanding, all provisions of this chapter shall be binding upon the
grantee, its successors, lessees or assignees.
A.
Application. All applicants for a franchise under this
chapter shall prepare and file a written application with the Village in such
form as the Village shall designate.
B.
Franchise renewal applicants. All applicants seeking
to renew a franchise under this chapter shall seek such renewal in accordance
with the Cable Act.
C.
Review of application. Upon receipt of an application
under this chapter, the Village shall review the same and make the application
available for public inspection at such places as the Village shall designate.
A decision shall be made on the application by the Village after evaluation
thereof. The Village may grant one or more franchises or may decline to grant
any franchise.
A.
Renewal request. The Village shall determine whether
to renew a franchise granted under this chapter in the event that the grantee
files a written request for such a renewal. The grantee shall submit such
a request at least 30 but no sooner than 36 months before the expiration of
the franchise. At the time of such request, the Village may revise this chapter,
reevaluate the needs of the community for cable service, and review the performance
of the grantee. The Village shall conduct any proceedings necessary to consider
the renewal request.
B.
Renewal criteria where Cable Act applies. To the extent
applicable, the Cable Act shall govern the procedures and standards for renewal
of any franchise awarded pursuant to this chapter. Accordingly, the Village
shall renew or extend a franchise unless it finds that:
(1)
The grantee has not substantially complied with the material
terms of this chapter, the franchise agreement, or with applicable law, or
its officers have been convicted of a felony;
(2)
The quality of the grantee's service, including
signal quality, response to consumer complaints, and billing practices, but
without regard to the mix or quality of cable services or other services provided
over the system, has been unreasonable in light of community needs;
(3)
The grantee lacks the legal, technical, or financial
ability to provide the services, facilities, and equipment it proposes to
provide;
(4)
The service, facilities, and equipment the grantee proposes
to provide are unreasonable in light of the community need for and cost of
such services, facilities, and equipment; or
(5)
The proposals contained in the renewal application are
otherwise unreasonable.
C.
Renewal where Cable Act does not apply. To the extent
that the Cable Act is not applicable, the Village in its sole discretion and
judgment shall have the right to grant, deny or conditionally grant renewal
of a franchise, provided that the Village shall not unreasonably refuse to
renew the franchise or unreasonably condition the renewal. The conditions
the Village may place on its approval shall include, but are not limited to,
remedy of historical or existing violations of the franchise or ordinance,
payment of all fees and penalties owed by the grantee at the time of the renewal,
acceptance of any updated ordinance, and acceptance of any updated franchise
agreement.
A.
Village's right to revoke and grounds therefor.
In addition to all other rights which the Village has pursuant to law or equity,
the Village reserves the right to revoke, terminate or cancel any franchise
granted under this chapter, in the event that one or more of the following
occur, each of which shall be deemed a material breach of the franchise:
(1)
The grantee violates any material provision of this franchise
or its franchise agreement with the Village;
(2)
The grantee violates any state or federal law applicable
to the grantee's operation within the Village;
(3)
The grantee practices any fraud or deceit upon the Village
or a subscriber;
(4)
The grantee becomes insolvent or unable or unwilling
to pay its debts or is adjudged as bankrupt;
(5)
The grantee ceases to provide service over the cable
system for a period exceeding 14 days for any reason within the grantee's
control or abandons the management and/or operation of the system; or
(6)
The grantee materially misrepresents a fact in the application
for or negotiation of, or renegotiation of, or renewal of, its franchise.
B.
Notice and opportunity to cure prior to revocation. In the event that the Village determines that the grantee has committed a material breach of the franchise, the Village may make a written demand on the grantee that the grantee cure such breach and inform the grantee that continued breach may be cause for revocation. If the breach is not cured to the satisfaction of the Village within 30 days following such demand, the Village may revoke the grantee's franchise and terminate the franchise agreement pursuant to the revocation procedures set out in § 120-8.
C.
Notice and opportunity for hearing. The Village shall
not revoke any franchise without giving the grantee reasonable notice and
opportunity for a public hearing before the Village Board.
D.
Revocation resolution. In the event that the Village determines to revoke a grantee's franchise under this section, the Village shall, by resolution, declare that the grantee's franchise is terminated and any security fund and bonds forfeited and shall undertake the revocation procedures set out in § 120-8.
A.
Removal of facilities/continued operation. In the event that a grantee's franchise is revoked, expires, or is otherwise terminated, the Village may order the grantee to remove its facilities from the franchise area within 90 days of the date of such order, or the Village may require the grantee to continue operating its cable system for a period not to exceed 24 months as indicated in Subsection D below.
B.
Restoration of property. In removing its facilities from
the franchise area, the grantee shall refill, at its own expense, any excavation
it makes and shall leave all public ways and places in as good condition as
that prevailing prior to the grantee's removal of its facilities, without
affecting the electrical or telephone cables, wires, or attachments. The grantee's
insurance, indemnity obligations, performance bond(s) and security fund(s)
required by this chapter and by the franchise agreement shall continue in
full force and effect during the period of removal and until full compliance
by the grantee with the terms and conditions of this section.
C.
Restoration by Village; reimbursement of costs. If the grantee fails to complete any work required by Subsections A and B above or any other work required by the Village within 30 days after receipt of written notice and to the satisfaction of the Village, the Village may cause such work to be done and the grantee shall reimburse the Village for the cost thereof within 30 days after receipt of an itemized list of such costs, or the Village may recover such costs through the security fund or bonds provided by the grantee. The Village shall be permitted to seek legal and equitable relief to enforce the provisions of this section.
D.
Extended operation. Subject to federal, state and local
law, upon either the expiration or revocation of a franchise, the Village
may require the grantee to continue to operate the cable system for a defined
period of time not to exceed 24 months from the date of such expiration or
revocation. The grantee shall, as trustee for its successor in interest, continue
to operate the cable system under the terms and conditions of this chapter
and the franchise agreement and to provide the regular cable service and any
of the other services that may be provided at that time.
A.
Lesser remedies. Nothing shall prohibit the Village from invoking lesser remedies than revocation for violations of the provisions of this chapter or the franchise agreement, including imposing monetary damages as set out in Subsection C below.
B.
Notice and opportunity to cure prior to imposition of monetary damages. In the event that the Village determines that the grantee has failed to perform any material obligation under this chapter or the franchise agreement, the Village may make a written demand on the grantee that the grantee cure such breach and inform the grantee that continued breach may be cause for the imposition of monetary damages. If the breach is not cured to the satisfaction of the Village within 30 days following such demand, the Village may impose monetary damages on the grantee as set out in Subsection C.
C.
Monetary damages. If after notice to the grantee and opportunity for hearing the Village determines that the grantee has failed to perform any material obligation under this chapter or the franchise agreement, or fails to do so in a timely manner, the Village may, at its option, and in its sole discretion, assess monetary damages against the grantee as provided in this Subsection C. This provision for assessment of damages is intended to be separate and apart from the Village's right to enforce the provisions of the construction and performance bonds provided for in this chapter and is intended to be in addition to any other remedies. This provision is intended to provide compensation to the Village for actual damages.
(1)
For failure to comply with any of the customer service
standards adopted by the Village in this chapter or set out in the franchise
agreement, the grantee shall pay to the Village the sum of $200 for each day
the grantee fails to comply.
(2)
For failure to furnish, maintain, or offer cable services to any potential subscriber within the territorial limits of the Village in accordance with § 120-13 of this chapter or upon order of the Village, the grantee shall pay to the Village the sum of $200 for any such occurrence.
(3)
For failure to obtain or file evidence of required insurance
or other required financial security, the grantee shall pay to the Village
the sum of $300 for any such occurrence.
(4)
For failure to provide access to data documents, records
or reports to the Village as required by this chapter, the grantee shall pay
to the Village the sum of $100 for any such occurrence.
(5)
For failure to comply with applicable construction, operation,
or maintenance standards, the grantee shall pay to the Village the sum of
$300 for any such occurrence.
(6)
For failure to comply with a rate decision or refund
order issued by the Village, the grantee shall pay to the Village the sum
of $500 for any such occurrence.
A.
Purchase of system by Village on revocation. If the Village
revokes the franchise for cause, the grantee shall first offer the system
for sale to the Village at an equitable price under the following procedures:
(1)
If the determination of an equitable price cannot be
negotiated or determined by the Village and the grantee, the price shall be
determined by an impartial appraisal procedure pursuant to Ch. 788, Wis. Stats.,
wherein the grantee and the Village shall each choose an appraiser and the
appraisers chosen shall choose a third appraiser and the price determined
by such appraisers shall be considered the equitable price at which the system
will be offered to the Village. The determination of the price of the system
shall be decreased by the amount of any and all damages sustained by the Village
in connection with revocation, including, without limitation, payment made
by the Village to another person or entity to operate the system for a temporary
period after revocation. The cost of the appraisal procedure shall be shared
equally by the Village and the grantee.
(2)
The Village shall have 90 days commencing on the day
the equitable price of the system is determined either through negotiation
or the appraisal procedure to exercise its option to purchase. If the Village
does not exercise its option to purchase and the system is not sold to another
operator who has obtained a franchise from the Village, the grantee, upon
request by the Village, shall promptly remove all its facilities from the
franchise area. While transfer of the system and franchise is being negotiated,
arranged or ordered, the grantee may be required to continue service to the
public.
B.
Purchase of system by Village on nonrenewal. If the Village
determines not to renew a grantee's franchise, the grantee shall first
offer the system for sale to the Village at fair market value, determined
on the basis of the system valued as a going concern but with no value allocated
to the franchise itself. The following procedures shall be followed:
(1)
If the determination of fair market value cannot be negotiated
or determined, the value shall be determined by an impartial appraisal procedure
pursuant to Ch. 788, Wis. Stats., wherein the grantee and the Village shall
each choose an appraiser and the appraisers chosen shall choose a third appraiser
and the valuation determined by such appraisers shall be considered the fair
market value at which the system will be offered to the Village. The determination
of the value of the system shall be decreased by the amount of any damages
sustained by the Village in connection with nonrenewal, including, without
limitation, payment made by the Village to another person or entity to operate
the system for a temporary period after nonrenewal. The cost of the appraisal
procedure shall be shared equally by the Village and the grantee.
(2)
The Village shall have 90 days commencing on the day
the fair market value of the system is determined either through negotiation
or the appraisal procedure to exercise its option to purchase. If the Village
does not exercise its option to purchase and the system is not sold to another
operator who has obtained a franchise from the Village, the grantee, upon
request by the Village, shall promptly remove all its facilities. While transfer
of the system and franchise is being negotiated, arranged or ordered, the
grantee may be required to continue service to the public.
A.
Transfer of franchise. Any franchise granted under this
chapter shall be a privilege to be held for the benefit of the public. Any
franchise so granted cannot, in any event, be sold, transferred, leased, assigned
or disposed of by any method, including but not limited to forced or voluntary
sale, merger, or consolidation, either in whole or in part, without the prior
written consent of the Village, and then only under such reasonable conditions
as the Village may establish. Such consent as required by the Village shall
be given or denied no later than 120 days following such request and shall
not be unreasonably withheld. Prior consent shall not be required when transferring
the franchise between wholly owned subsidiaries of the same entity.
B.
Notice to Village on twenty-percent change of ownership
or control. A grantee shall promptly notify the Village in writing of any
proposed change in, or transfer of, control of the grantee. For the purpose
of this subsection, a change in, or transfer of, control shall occur on the
acquisition or transfer by any person of 20% or more of the beneficial ownership
interest in the grantee.
C.
Consent of Village required on fifty-one-percent change
of ownership or control. In the event that any person or group of persons
acquires or transfers 51% or more of the beneficial ownership interest in
the grantee, the grantee's franchise shall be subject to cancellation
unless and until the Village shall have consented in writing to the acquisition
or transfer. The Village shall give or deny consent no later than 120 days
after receiving written notice of the acquisition or transfer. The Village's
consent shall not be unreasonably withheld. For the purpose of determining
whether it shall consent to such change, transfer or acquisition of control,
the Village may inquire into the qualifications of the prospective controlling
party, and the grantee shall assist the Village in any such inquiry.
D.
Grantee's responsibility. In seeking the Village's
consent to any change in ownership or control, the grantee shall have the
responsibility to do the following:
(1)
To show to the Village's satisfaction whether the
proposed purchaser, transferee, or assignee (the "proposed transferee"), which
in the case of a corporation shall include all directors and all persons having
a legal or equitable interest of 51% or more of the voting stock:
(a)
Has ever been convicted of a felony or is presently under
an indictment, investigation or complaint charging a felony;
(b)
Has ever had a judgment in an action for fraud, deceit
or misrepresentation entered against it, her, him, or them by any court of
competent jurisdiction; or
(c)
Has pending any legal claim, lawsuit or administrative
proceeding arising out of or involving a cable system.
(2)
To establish to the Village's satisfaction the financial
solvency of the proposed transferee by submitting all current financial data
for the proposed transferee which the grantee was required to submit in its
franchise application, and such other data as the Village may request, where
the same shall be audited, certified and qualified by a certified public accountant.
(3)
To establish to the Village's satisfaction that
the legal, financial and technical capability of the proposed transferee is
such as shall enable it to maintain and operate the cable system for the remaining
term of the franchise under the existing franchise terms.
E.
Effect of Village's consent to transfer. The consent
or approval of the Village to any transfer by the grantee shall not constitute
a waiver or release of the rights of the Village in and to the streets, and
any transfer shall by its terms be expressly subject to the terms and conditions
of any franchise. The grantee shall not be released from its obligations under
this chapter and the franchise agreement without the express written consent
of the Village.
F.
Transfer document to be filed with Village. A grantee,
upon transfer, shall within 60 days thereafter file with the Village a copy
of the deed, agreement or other written instrument evidencing such sale, transfer
of ownership or control or lease, certified and sworn to as correct by the
grantee.
G.
Village's right to purchase system. The Village
shall be entitled to a right of first refusal of any written offer to purchase
the grantee's system, which offer the grantee has accepted subject to
the Village's rights under this chapter. The price to be paid by the
Village shall be the price of such offer on the same terms and conditions
as such offer. The Village shall notify the grantee of its decision to purchase
within 90 days of the Village's receipt from the grantee of a copy of
the offer.
A grantee's franchise area shall be the territorial limits of the
Village of Black Earth as they may exist now and in the future.
A.
Developed areas. In developed areas of the Village, the
grantee shall, on request of a potential subscriber, extend service to the
potential subscriber pursuant to the following requirements:
(1)
Without regard to density of dwelling units, the grantee
shall extend and make cable television service available to any dwelling unit
within 300 feet of existing cable plant.
(2)
Where the dwelling unit is not within 300 feet of existing
cable plant, the grantee shall provide to any potential subscriber desiring
service an estimate of the cost to extend service to the potential subscriber.
The grantee and the potential subscriber shall share the cost of the extension
as follows: the grantee shall pay 100% of the cost of the first 300 feet of
the extension and shall pay 60% and the potential subscriber 40% of the cost
of the next 300 feet of the extension, up to a maximum of 600 feet. For that
part of an extension that is longer than 600 feet, the grantee may charge
the potential subscriber for the grantee's actual cost of that portion
of the extension. Within one year, any amount paid by a subscriber for an
extension under this subsection shall be refundable to that subscriber in
the event the area subsequently reaches a density level of 17 dwelling units
per strand mile. In no event shall the amount of the refund exceed the amount
paid by the subscriber for the extension.
B.
New subdivisions/newly developed areas. The grantee shall,
at its expense, extend its system so that cable service is available in all
new subdivisions or newly developed areas in the Village. The Village may
waive this requirement on a project basis on good cause shown by the grantee.
(1)
In a new subdivision or developing area where utility
and cable facilities are to be above ground, the Village will forward to the
grantee an approved engineering plan of each project. The grantee shall commence
the design and construction process upon receipt of the plan. Upon notification
from the Village that the first home in the project has been approved for
a building permit, the grantee shall have three months to complete construction,
unless the Village agrees to extend this time period.
(2)
In a new subdivision or developing area where utility
and cable facilities are to be placed underground, the Village shall give
the grantee at least 30 days' advance written notice of the 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 provide specifications as needed for trenching
and shall place its facilities in the trenches on the date specified in the
notice. Costs of trenching and easements required to bring cable service to
the new subdivision shall be nondiscriminatory and shall be paid by the grantee.
C.
Special agreements. Nothing in this chapter shall be construed to prevent the grantee from serving areas not covered under this section upon agreement with developers, property owners, or residents, provided that 3% of the gross revenues derived from such service within the franchise area are returned to the Village as required under § 120-18 of this chapter.
A.
Effective date. Any franchise awarded under this chapter shall take effect 30 days after the effective date of the franchise agreement between the Village and the grantee, provided that the grantee has accepted the franchise pursuant to Subsection B.
B.
Acceptance. To accept a franchise granted under this
chapter, a grantee must file any required bonds, funds and proof of insurance,
as well as written notice of acceptance, with the Village Administrator.
C.
Written notice of acceptance. The grantee's written
notice of acceptance shall include a certification that the grantee agrees
to the following:
(1)
Grantee to have no recourse. The grantee shall have no
recourse whatsoever against the Village for any loss, cost, expense or damage
arising out of any provision or requirement of this chapter or its regulation
or from the Village's exercise of its authority to grant additional franchises.
(2)
Acceptance of power and authority of Village. The grantee
expressly acknowledges that in accepting the franchise it has relied upon
its own investigation and understanding of the power and authority of the
Village to grant this franchise.
(3)
Inducements not offered. The grantee acknowledges by
acceptance of the franchise that it has not been induced to enter into this
franchise by any understanding or promise or other statement, whether verbal
or written, by or on behalf of the Village concerning any term or condition
of this franchise that is not included in this chapter.
(4)
Grantee accepts terms of franchise. The grantee acknowledges
by the acceptance of the franchise that it has carefully read its terms and
conditions and it is willing to and does accept all the obligations of such
terms and conditions and further agrees that it will not set up as against
the Village the claim that any provision of this chapter, as adopted, is unreasonable,
arbitrary, invalid or void, but shall be required to accept the validity of
the terms and conditions of the franchise in their entirety.
A.
Village reserves right of rate regulation. Except as otherwise provided in Subsection B below, the grantee shall establish rates for its services which shall be applied on a nondiscriminatory basis in the franchise area. Pursuant to federal law, the Village reserves the right to assume regulation of rates paid by cable subscribers; such rate regulation shall be performed by the Village Board in accordance with FCC Rules and Regulations Part 76, Subpart N. As specified by the FCC's Rules (Part 76, Subpart N), such rate regulation shall cover basic service rates and customer premises installations and equipment rates (including charges for, but not limited to, converter boxes, remote control units, connections for additional television receivers and other cable home wiring). The Village reserves the right to further regulate rates pursuant to any additional powers granted to it by either the FCC or federal or state law.
B.
Service disconnection. A subscriber shall have the right
to have its service disconnected without charge, except for actual costs incurred
by the grantee or other charges that are allowable under FCC regulations,
which shall include the removal of any equipment owned by the grantee from
the subscriber's residence. Such disconnection shall be made as soon
as practicable and in no case later than 30 days following written notice
to the grantee of the same. No grantee shall enter into any agreement with
a subscriber which imposes any charge following disconnection of service,
except for reconnection and subsequent monthly or periodic charges, and those
charges shall be no greater than charges for new customers. This section shall
not prevent a grantee from refusing service to any person because of the grantee's
prior accounts with that person which remain due and owing.
A.
Discriminatory practices prohibited.
(1)
A grantee shall not refuse cable television service or
otherwise discriminate against any person or organization who or which requests
such service on the basis of race, color, religion, national origin, creed
or sex. A grantee shall not, as to rates, charges, service facilities, rules,
regulations or in any other respect, make or grant any unreasonable preference
or advantage, nor subject any person to any prejudice or disadvantage. The
grantee shall comply at all times with the Cable Act and all other applicable
federal, state and local laws and regulations, and all executive and administrative
orders relating to nondiscrimination which are hereby incorporated and made
part of this chapter by reference.
(2)
This section shall not be deemed to prohibit promotional
rates for service introductions or temporary promotional discounts. This section
does not preclude a grantee from offering special services or rates to senior
citizens or services to commercial subscribers at rates different from those
charged residential subscribers, which shall include, but not be limited to,
charges for installation on a time and materials basis. The grantee may also
enter into separate contracts with multiple dwelling unit buildings and may
charge discounted rates for services based upon single point billing or other
contractual considerations.
B.
Fairness and equal access. A grantee's system shall
be operated in a manner consistent with the principles of fairness and equal
access to its facilities, equipment, channels, studios and other services
for all citizens, businesses, public agencies or other entities having a legitimate
use for the system and no one shall be arbitrarily excluded from its use.
Allocation of use of such facilities shall be made according to the rules
or decisions of regulatory agencies affecting the same, and where such rules
or decisions are not effective to resolve a dispute between conflicting users
or potential users, the matter shall be submitted for resolution by the Village.
C.
Equal employment. A grantee shall strictly adhere to
the equal employment opportunity requirements of federal, state and local
laws and regulations in effect on the date of the franchise grant and as amended
from time to time.
D.
Discontinuation of service. If a subscriber fails to
pay any proper fee or charge for any service provided by the grantee, the
grantee may discontinue said service, provided that the unpaid bill is at
least 45 days past due and the subscriber has been given at least 10 business
days' prior notice of the intention to discontinue service. If the grantee
receives payment of all outstanding fees and charges, including any late charges,
before any service has been discontinued, then the grantee shall not discontinue
said service. After any service has been discontinued, upon request of the
subscriber accompanied by payment in full of all fees or charges due the grantee
and the payment of an appropriate reconnection charge, if any, the grantee
shall promptly reinstate said service. Subscribers shall retain the right
to deactivate their terminals but shall continue to be responsible for charges
until the grantee is notified to terminate service. The subscriber shall not
be charged any fee for the cancellation or downgrading of cable service, except
in accordance with applicable FCC regulations.
E.
Rights of residents.
(1)
An owner or operator of an apartment building, condominium,
nursing home, mobile home park, or any other rental facility may not interfere
with or charge a fee for the installation of cable system facilities for the
use of a lessee of said property or premises, except that such owner or operator
may require:
(a)
Installation to conform to reasonable conditions necessary
to protect the safety, appearance and functioning of the premises;
(b)
The grantee, occupant, or tenant to pay for the installation,
operation, or removal of such facilities; and
(c)
The grantee, occupant, or tenant to agree to indemnify
the owner or operator for any damages caused by the installation, operation
or removal of such facilities.
(2)
It shall be unlawful for the grantee to compensate or
offer to compensate any person, or for any person to demand or receive compensation
from the grantee, for the placement upon the premises of such person of the
grantee's facilities necessary to connect such person's premises
to the distribution lines of the grantee to provide cable service to said
premises.
(3)
Except where there is a bulk rate agreement between a
landlord and the grantee, a landlord may not discriminate in the amount of
rent charged to tenants or occupants who receive cable service and those who
do not.
Upon the grant of a new franchise, the grantee shall reimburse the Village
for all reasonable costs, including but not limited to attorney and consultant
fees, incurred by the Village relating to the grant of the new franchise.
A.
Annual franchise fee. A grantee shall pay to the Village
an annual franchise fee in the amount designated in the franchise agreement.
Such franchise fee shall not be less than 5% of the grantee's annual
gross revenues, or such other maximum amount as allowed by law. In the event
that a change in either state or federal law would allow the Village to increase
the franchise fee above 5% of the grantee's annual gross revenues, the
grantee shall not be liable for such increase until the Village shall give
the grantee written notice of such change in the law. The franchise fee payment
shall be in addition to any other payment owed to the Village by the grantee
and shall not be construed as payment in lieu of municipal property taxes
or other state, county or local taxes.
B.
Payment schedule. The franchise fee shall be paid on
the annual anniversary date of the passage of this agreement (March 15).
C.
Financial statement to be provided by grantee. By March
15 of each year of this agreement, a grantee shall furnish to the Village
an audited statement reflecting the total amount of the gross revenues and
all payments, deductions and computations for the period covered by the franchise
fee payment. The Village shall have the right to conduct an independent audit
of the grantee's records, and if such audit indicates a franchise fee
underpayment of 5% or more, the grantee shall assume all reasonable costs
of such audit.
D.
Interest on delinquent payments. If any payment is not
made as required, interest on the amount due shall accrue from the date of
the required submittal at an annual rate of 12%. The grantee shall pay an
additional compensation to the Village if the payment is late by 45 days or
more. Such additional compensation shall be equal to an additional 6% per
annum in order to defray those additional expenses and costs incurred by the
Village by reason of the delinquent payment.
E.
Acceptance by the Village. No acceptance of any payment
by the Village shall be construed as a release or as an accord and satisfaction
of any claim the Village may have for further or additional sums payable as
a franchise fee under this chapter or for the performance of any other obligation
of the grantee.
F.
Alternative fee basis. In the event the franchise fee
payment established under this chapter is ruled unconstitutional or unenforceable,
the Village may impose and collect an equivalent charge on any legally permissible
basis, provided that such charge does not exceed the previously allowed limit
on franchise fee payments.
A.
Additional standards may be imposed. Nothing in this
chapter shall be construed to prohibit the grantee and Village from agreeing
to exceed the customer service standards set out in this chapter or the establishment
or enforcement of any state or local law or regulation concerning customer
service or consumer protection that imposes customer service standards or
consumer protection requirements that exceed the customer service standards
set out in this chapter or address matters not addressed in this chapter.
B.
Local payment location. The grantee shall maintain a
local Black Earth payment location which shall be open during normal business
hours. This payment location shall accept subscriber payments.
C.
Telephone availability.
(1)
The grantee shall maintain a local, toll-free or collect
call telephone access line which will be available to its subscribers 24 hours
a day, seven days a week. Trained representatives of the grantee will be available
to respond to customer telephone inquiries during normal business hours. After
normal business hours, the access line may be answered by a service or an
automated response system, including an answering machine. Inquiries received
after normal business hours must be responded to by a trained representative
of the grantee on the next business day.
(2)
Under normal operating conditions, telephone answer time
by a customer representative, including wait time, shall not exceed 30 seconds
when the connection is made. If the call needs to be transferred, transfer
time shall not exceed 30 seconds. These standards shall be met no less than
90% of the time under normal operating conditions, measured on a quarterly
basis.
(3)
The grantee shall not be required to acquire equipment
or perform surveys to measure compliance with the telephone answering standards
above unless an historical record of complaints indicates a clear failure
to comply.
(4)
Under normal operating conditions, the customer will
receive a busy signal less than 3% of the time.
D.
Installations, outages and service calls. Under normal
operating conditions, each of the following four standards shall be met by
the grantee no less than 95% of the time measured on a quarterly basis:
(1)
Standard installations will be performed within seven
business days after an order has been placed. "Standard" installations are
those that are located up to 150 feet from the existing distribution system.
(2)
Excluding conditions beyond the control of the grantee,
the grantee shall begin working on service interruptions promptly and in no
event later than 24 hours after the interruption becomes known to the grantee.
The grantee must begin actions to correct other service problems the next
business day after receiving notification of the service problem.
(3)
The appointment window alternatives for installations,
service calls, and other installation activities will be either a specific
time or, at maximum, a four-hour time block during normal business hours.
(The grantee may schedule service calls and other installation activities
outside of normal business hours for the express convenience of the customer.)
(4)
The grantee may not cancel an appointment with a customer
after the close of business on the business day prior to the scheduled appointment.
If the grantee's representative is running late for an appointment with
a customer and will not be able to keep the appointment as scheduled, the
customer will be contacted. The appointment will be rescheduled, as necessary,
at a time which is convenient for the customer.
E.
Repair standards.
(1)
The grantee shall maintain a repair force of technicians
who, under normal operating conditions, are capable of responding to subscriber
requests for service within the following time frames:
(a)
System service interruption. Under normal operating conditions,
within two hours, including weekends, of receiving subscribers' calls
which by number identify a system service interruption of sound or picture
on one or more channels affecting all the subscribers of the system or an
interruption of all services to 2% of all subscribers.
(b)
Isolated service interruption. Within 24 hours, including
weekends, of receiving requests for service identifying an isolated service
interruption (less than 2% of subscribers) of sound or picture for one or
more channels. This standard shall be met no less than 95% of the time, measured
on a quarterly basis.
(c)
Inferior reception quality. Within 48 hours, including
weekends, of receiving a request for service identifying a problem concerning
picture or sound quality.
(2)
The grantee shall be deemed to have responded to a request
for service under the provisions of this section when a technician arrives
at the service location or contacts the customer by telephone and begins work
on the problem. In the case of a subscriber not being home when the technician
arrives, response shall be deemed to have taken place if the technician leaves
written notification of arrival.
F.
Notification of service interruption to Village Administrator.
The grantee shall promptly notify the Village Administrator, in writing or,
if appropriate, by oral communication, of any significant interruption in
the operation of the system. For the purpose of this subsection, "significant
interruption in the operation of the system" shall mean any interruption of
sound or picture on one or more channels of a duration of at least 24 hours
to at least 5% of the subscribers.
G.
Subscriber credit for service interruptions. Upon service
interruptions of the subscriber's cable service, the following shall
apply:
(1)
For service interruptions of over four hours and up to
seven days, the grantee shall provide a credit to the subscriber of 1/30 of
one month's fee for affected service for each twenty-four-hour period
service is interrupted for four or more hours.
(2)
For service interruptions of seven days or more in one
month, the grantee shall provide a credit based on the hourly rate the subscriber
pays for all monthly service and the number of hours of the service interruption.
H.
Upgrading of facilities and service. The grantee shall
upgrade its facilities and service as subscribers' demands dictate so
that its system is as advanced as the current state of technology with field-proven
equipment will allow.
A.
Standards. The grantee's system shall be constructed
and operated so as to meet those technical and performance standards required
by the FCC's rules and regulations relating to cable television systems
and found in 47 CFR §§ 76.601 to 76.618, as amended, from time
to time.
B.
Tests and compliance procedures. Within 60 days after
the effective date of the franchise agreement, the grantee shall, upon the
Village's request, submit a detailed test plan describing the methods
and schedules for testing its system on an ongoing basis to determine compliance
with this chapter and the franchise agreement. The test plan shall be subject
to the approval of the Village, which approval shall not be unreasonably withheld.
The tests for basic cable service shall be performed at intervals of no greater
than 12 months. The tests may be witnessed by representatives of the Village,
and the grantee shall submit written test reports to the Village. If more
than 10% of the locations tested fail to meet the performance standards, the
grantee shall be required to indicate what corrective measures have been taken
and the entire test shall be repeated. The grantee's failure to take
corrective measures within 30 days after the initial tests are performed may
be considered a breach of the franchise.
C.
Additional testing. At any time after commencement of
service to subscribers, the Village may require the grantee to perform additional
tests, full or partial repeat tests, or tests involving service to a specific
subscriber. Such additional tests will be made on the basis of complaints
received or other evidence indicating an unresolved controversy or significant
noncompliance with the FCC's technical standards.
A.
Compliance with safety codes. All construction practices
shall be in accordance with all applicable sections of the Occupational Safety
and Health Act of 1970 and any amendments thereto as well as state and local
codes where applicable.
B.
Compliance with electrical codes. All installation of
electronic equipment shall be of a permanent nature, durable, installed and
maintained in accordance with the applicable sections of the then-current
edition of the National Electric Safety Code and all state and local codes
where applicable.
C.
Compliance with aviation requirements. Antennas and their
supporting structures (towers) shall be painted, lighted, erected and maintained
in accordance with all applicable rules and regulations of the Federal Aeronautical
Administration and all other applicable federal, state, or local laws, codes
and regulations governing the erection and operation of supporting structures
or television towers.
A.
Approval of proposed construction.
(1)
The grantee shall first obtain the Village's approval
prior to commencing construction on the streets, alleys, public grounds or
places of the Village. Applications for approval of construction shall be
in a form provided by the Village.
(2)
The right of construction, including easements, is not
implied except on locations where the Village has the authority to grant such
rights and easements and then only in conformity with the provisions of this
chapter. All other rights of construction, including easements, shall be the
responsibility of the grantee.
B.
Excavation permits. The grantee shall not open or disturb
the surface of any street, sidewalk, driveway, or public place for any purpose
without first having obtained all necessary permits.
C.
Use of existing poles or conduits. Nothing in this chapter
shall authorize the grantee to erect and maintain in the Village new poles
where existing poles are servicing the area. The grantee shall seek and obtain
permission from the Village before erecting any new poles, underground conduits
or appurtenances where none exist at the time the grantee seeks to install
or expand its system.
D.
Method of installation.
(1)
All wires, cables, amplifiers and other property of the
grantee shall be constructed and installed in an orderly and workmanlike manner.
All cables and wires shall be installed parallel with existing telephone and
electric wires whenever possible. Multiple cable configurations shall be arranged
in parallel and bundled with due respect for engineering and safety considerations.
(2)
All installations shall be underground in those areas
of the Village where public utilities providing telephone and electric service
are underground at the time of installation.
(3)
In areas where telephone or electric utility facilities
are above ground, the grantee shall place its facilities underground without
additional cost to the Village or to the residents of the Village (other than
as may be reflected in rates charged to subscribers) at such time as such
telephone and electric facilities are required to be placed underground by
the Village or are placed underground. The Village shall give grantee at least
six months' prior notice of any construction to place telephone or electric
facilities underground.
Upon reasonable notice by the Village, the grantee shall demonstrate
compliance with any or all of the standards and requirements imposed by this
chapter. The grantee shall provide sufficiently detailed information to permit
the Village to verify readily the extent of compliance.
A.
Complaints to grantee. A grantee shall establish written
procedures for receiving, acting upon and resolving subscriber complaints
without intervention by the Village. The procedures shall prescribe the manner
in which a subscriber may submit a complaint, either orally or in writing,
to the grantee. At the conclusion of the grantee's investigation of a
subscriber complaint, but in no event more than 10 days after receiving the
complaint, the grantee shall notify the subscriber of the results of the investigation
and its proposed action or resolution, if any. The grantee shall also notify
the subscriber of the subscriber's right to file a complaint with the
Village in the event the subscriber is dissatisfied with the grantee's
decision. The Village appoints the Village Administrator as its agent to receive
inquiries or complaints about the grantee's operations.
B.
Complaints to the Village. A subscriber who is dissatisfied
with the grantee's proposed decision shall be entitled to have the complaint
reviewed by the Village. The subscriber shall initiate the review by filing
a complaint, together with the grantee's decision, if any, with the Village
and by the Village notifying the grantee of the filing. The subscriber shall
make such filing and notification within 20 days of receipt of the grantee's
decision or, if no grantee decision has been provided, within 30 days after
filing the original complaint with the grantee. The Village may extend these
time limits for reasonable cause.
C.
Review by the Village. The Village shall determine, upon
a review of a subscriber complaint and the grantee's decision, if any,
whether further action is warranted. In the event the Village does not initiate
further proceeding within 15 days of the filing of the complaint, the grantee's
proposed action or resolution shall be final. If the Village decides to initiate
further investigation, the Village shall require the grantee and the subscriber
to submit, within 10 days of notice thereof, a statement of the facts and
arguments in support of their respective positions. The Village shall issue
a written decision within 15 days of receipt of the statements or, if a hearing
is requested, within 15 days of the conclusion of the hearing, setting forth
the basis of the decision.
D.
Remedies for violations. The Village may, as a part of
a subscriber complaint decision issued by the Village under the provision
of this chapter, impose monetary damages on the grantee. Damages may be imposed
only if the Village finds that the grantee has arbitrarily refused or failed
without reasonable justification to comply with the provisions of this section.
A.
Complaint file. A grantee shall keep an accurate and
comprehensive file of any and all complaints regarding the cable system. A
grantee shall establish a procedure to remedy complaints quickly and reasonably
to the satisfaction of the Village. A grantee shall keep complete records
of its actions in response to all complaints for a period of three years.
The grantee shall make a copy of its complaint file available to the Village
upon request.
B.
Service request log and summary. The grantee shall maintain
a log and summary of all subscriber service requests, identifying the number
and nature of the requests and their disposition for a period of three years.
A copy of such log and summaries shall be made available to the Village upon
request.
C.
Outage log and summary. A grantee shall maintain a log
and summary of all major service outages for a period of three years. For
the purposes of this subsection, "major service outage" shall mean any interruption
of sound or picture on one or more channels of a duration of at least 24 hours
to at least two subscribers. A copy of such log and summaries shall be made
available to the Village upon request.
A.
Use of streets. For the purpose of constructing, operating,
and maintaining a cable system in the Village, a grantee may erect, install,
construct, repair, replace, relocate, reconstruct and retain in, on, over,
under, upon, across and along the streets within the Village such lines, cables,
conductors, ducts, conduits, vaults, manholes, amplifiers, appliances, pedestals,
attachments and other property and equipment as are necessary and appurtenant
to the operation of the grantee's system, provided that the grantee applies
for and obtains all applicable permits and otherwise complies with this chapter
and all other Village codes and ordinances.
B.
Filing of plans with the Village. Prior to construction,
reconstruction, upgrade, rebuild or any other major modification or change
of the grantee's system, other than routine repairs, the grantee shall,
in each case, file its plans for such work with the Village and shall not
commence any such work until it receives written approval of its plans from
the Village. The Village shall not unreasonably withhold its approval. Upon
the Village's request, the grantee shall provide written progress reports
to the Village until the work is completed.
C.
Noninterference/notice. The grantee shall construct,
maintain, and operate its system so as not to interfere with other uses of
the streets. The grantee shall individually notify all residents directly
affected by the proposed work at least five business days prior to the commencement
of such work.
A.
Facilities not to be hazardous or interfere.
(1)
All wires, conduits, cables and other property and facilities
of the grantee shall be so located, constructed, installed and maintained
so as not to endanger any person or unnecessarily interfere with the usual
and customary trade, traffic and travel upon the streets and public places
of the Village.
(2)
The grantee shall keep and maintain all its property
in good condition, order and repair. The Village reserves the right to inspect
and examine at any reasonable time and upon reasonable notice the property
owned or used, in part or in whole, by the grantee.
(3)
The grantee shall keep accurate maps and records of all
its facilities and furnish copies of such maps and records when requested
by the Village.
(4)
The grantee shall not place poles or other equipment
where they will interfere with the rights or reasonable convenience of adjoining
property owners, or with any gas, electric or telephone fixtures, or with
any water hydrants or mains. All poles or other fixtures placed in a street
shall be placed in the right-of-way between the roadway and the property,
as specified by the Village.
B.
Restoration and reimbursement.
(1)
In the event of disturbance of any street or private
property by the grantee, it shall, at its own expense and in a manner approved
by the Village and the owner, replace and restore such street or private property
in as good a condition as before the work causing such disturbance was done.
(2)
If the grantee fails to perform such replacement or restoration,
the Village or the owner shall have the right to do so at the sole expense
of the grantee. The grantee shall make payment to the Village or owner for
such replacement or restoration immediately upon demand. All requests for
replacement or restoring of such streets or private property as may have been
disturbed must be in writing to the grantee.
C.
Emergency removal of facilities. If at any time, in case
of fire or disaster in the Village, it shall become necessary in the reasonable
judgment of the Village to cut or move any of the wires, cables, amplifiers,
appliances or appurtenances thereto of the grantee, such cutting or moving
may be done and any repairs rendered necessary thereby shall be made by the
grantee at its sole expense.
D.
Changes required by public improvements. The grantee
shall, at its expense, protect, support, temporarily disconnect, relocate
in the same street or other public place, or remove from the street or other
public place any property of the grantee when required by the Village by reason
of traffic conditions, public safety, street vacation, street construction,
change or establishment of street grade, or installation of sewers, drains,
water pipes, Village-owned power or signal lines, and tracts or any other
type of structure or improvement by public agencies.
E.
Requests for removal or change. The grantee shall, on
the request of any person holding a building moving permit, temporarily raise
or lower its wires to permit the moving of such building. The expense of such
temporary removal, raising or lowering of the wires shall be paid by the person
requesting the same, and the grantee shall have the authority to require such
payment in advance. The grantee shall be given notice not less than nine business
days prior to any move contemplated to arrange for temporary wire changes.
F.
Authority to trim trees. The grantee shall have the authority
to trim trees upon and overhanging streets, alleys, sidewalks, and other public
places of the Village so as to prevent the branches of such trees from coming
in contact with the wires and cables of the grantee. All trimming is to be
done under the supervision and direction of the Village after the explicit,
prior written notification and approval of the Village and at the expense
of the grantee.
A.
Basic cable service. The grantee shall provide basic
cable service, which shall include any service tier which includes the retransmission
of local television signals, to all subscribers at the established monthly
subscription rates.
B.
Public educational and government (PEG) access channel.
The grantee shall provide at least two channels for use by the Village for
PEG purposes. The grantee shall not charge for this installation or for monthly
service, but internal wiring shall be the responsibility of the organization
receiving the service.
C.
Shared channel. The grantee shall provide the local high
school and the Village a shared channel with the ability to cablecast television
programming to all cable taps in the Village. The grantee shall not charge
for this service but it is understood that the School District and the Village
shall be responsible for providing their own origination equipment.
D.
Cable channel for commercial use. The grantee shall designate
channel capacity for commercial use as required by the Cable Act and applicable
law.
E.
System upgrade. The grantee agrees to upgrade its cable
system in the Village within 36 months after the effective date of a new franchise.
The updated system shall have a minimum bandwidth capacity of 450 MHz with
a capacity minimum of 54 channels. At the time of the system upgrade, the
grantee shall provide any modifications in equipment and wiring needed to
make existing PEG access facilities compatible with any upgraded system. The
grantee also agrees to perform future cable system upgrades as new technology
become economically feasible.
A.
Use of data from subscribers. A grantee, the Village
or any other person shall not initiate or use any form, procedure or device
for procuring information or data from cable subscribers' terminals by
use of the cable system without prior written authorization from each subscriber
so affected.
B.
Subscriber data. The Village, the grantee or any person
shall not, without prior written valid authorization from each subscriber
so affected, provide any data identifying or designating subscribers. Any
data so authorized will be made available to the authorizing subscriber in
understandable fashion.
D.
The provisions of this section shall not apply to any
monitoring for cable system integrity or to verify billing accuracy.
A.
Operating policies. The grantee shall provide written
information on each of the following areas at the time of installation of
service, at least annually to all subscribers, and at any time upon request:
products and services offered; prices and options for programming services
and conditions of subscription to programming and other services; installation
and service maintenance policies; instructions on how to use the cable services;
channel positions of programming carried on the cable system; and the procedures
for billing and making inquiries or complaints (including the name, address
and local telephone number of the employee or employees or agent to whom such
inquiries or complaints are to be addressed) and also furnish information
concerning the Village office responsible for administration of the franchise,
including the name and telephone number of the office. The written information
shall also include a description of the grantee's business hours, legal
holidays and procedures for responding to inquiries after normal business
hours. The grantee shall provide all subscribers and the Village with written
notice no less than 30 days prior to any proposed change in any of the areas
listed in this subsection.
B.
Rates, programming service and channel position. The
grantee shall provide the Village and subscribers with written notice of any
changes in rates, programming services, or channel position at least 30 days
prior to implementing such change(s). Such notice shall state the precise
amount of any rate change and briefly explain in readily understandable fashion
the cause of the rate change (e.g., inflation, changes in external costs or
the addition/deletion of channels). When the change involves the addition
or deletion of channels, each channel added or deleted must be separately
identified. Notices to subscribers shall inform them of their right to file
complaints about changes in cable programming service tier rates and services,
shall state that the subscriber may file the complaint within 90 days of the
effective date of the rate change, and shall provide the address and telephone
number of the Village Administrator. Notwithstanding any other provision of
this chapter, the grantee shall not be required to provide prior notice of
any rate change that is the result of a regulatory fee or any other fee, tax,
assessment or charge of any kind imposed by the Village or any federal or
state agency on the transaction between the grantee and the subscriber.
C.
Billing. Bills shall be clear, concise, understandable
and shall include the grantee's toll-free or collect telephone number
for subscriber use. Bills shall be fully itemized, with itemizations including
but not limited to basic and premium service charges and equipment charges.
Bills shall also clearly delineate all activity during the billing period,
including optional charges, rebates and credits. In case of a billing dispute,
the grantee shall respond to a written complaint from a subscriber within
30 days. Refund checks will be issued promptly and no later than either the
next billing cycle following resolution of the request or 30 days, whichever
is earlier, or the return of the equipment supplied by the grantee if service
is terminated. Credits for service shall be issued no later than the customer's
next billing cycle following the determination that a credit is warranted.
D.
Copies to the Village. Copies of all notices provided
to subscribers shall be filed concurrently with the Village.
The overall quality of service provided by a grantee to subscribers
may be subject to evaluation by the Village at least annually. In addition,
the Village may evaluate the quality of service at any time, based on subscriber
complaints received by the grantee and the Village and the grantee's
response to those complaints. Upon determining that service quality is inadequate,
the Village may order the grantee to cure the inadequacies. The grantee shall
commence corrective action within 30 days after receipt of written notice
of such order. Failure to do so shall be deemed to be a material breach of
the franchise and subject to the remedies prescribed in this chapter. The
Village may use the performance bond and/or security fund provided for in
this chapter to remedy any such franchise breach.
The Village shall have the right to inspect, upon 24 hours' written
notice, at any time during normal business hours at the grantee's regional
office, all books, records, maps, plans, financial statements, all logs required
under this chapter, performance test results, records of requests for service
and other like materials of the grantee relating to the operation of the franchise.
If any such books or records are not kept in the regional office, and if the
Village shall determine that an examination of such records is necessary or
appropriate to the performance of any of the Village's duties, then the
grantee shall make such records available locally on 10 business days'
notice. When requested by the grantee and to the extent allowed by law, the
Village shall treat as confidential proprietary information or trade secrets
obtained by the Village during such inspection; the Village shall make such
information available only to those persons who must have access to the information
to perform their duties on behalf of the Village.
A.
Annual submissions to the Village. The grantee shall
submit to the Village with each March 15 franchise fee payment a written annual
report which shall include the following information:
B.
Submissions to the Village on request. Upon the Village's
request, the grantee shall submit to the Village a written report which shall
include the following information:
(1)
A list of the grantee's officers, members of its
board of directors, and other principals of the grantee;
(2)
A list of stockholders or other equity investors holding
5% or more of the voting interest in the grantee and its parent, subsidiary
and affiliated corporations and other entities, if any, unless the parent
is a public corporation whose annual reports are publicly available;
(3)
A statement of projected construction, if any, for the
next two years; and
(4)
Accurate copies of maps and/or plats of the locations
and character of all existing and proposed installations of the grantee over,
upon or under the streets of the Village.
C.
Other submissions. Copies of all petitions, applications
and communications submitted by the grantee to the FCC, Securities and Exchange
Commission or any other federal or state regulatory commission or agency having
jurisdiction in respect to any matter affecting cable operation within the
franchise area shall also be submitted simultaneously to the Village.
D.
Records to be kept on file. All records required by this
section shall be kept on file by the grantee for the applicable periods under
federal and state law.
A.
Performance bond required for new franchises. At the
time a new franchise is granted, the grantee shall furnish and file with the
Village a performance and payment bond, or a performance and payment bond
together with such other security as is approved by the Village. The bond
shall be in the amount of $5,000 and shall run to the Village, which may be
entitled to damages as a result of any occurrence in the operation of or termination
of the cable system operated under this chapter and the franchise agreement.
The bond shall be conditioned upon the faithful performance of the grantee
of all terms and conditions of the franchise granted under this chapter. The
rights reserved to the Village with respect to the bond or other security
are in addition to all other rights the Village may have under this chapter
or any other law.
B.
Performance bond for renewed franchise. At the time a
franchise is renewed, the Village may require the grantee to furnish and file
with the Village a performance and payment bond, or a performance and payment
bond together with such other security as is approved by the Village. The
bond shall be in the amount specified in the franchise agreement and shall
run to the Village, which may be entitled to damages as a result of any occurrence
in the operation of or termination of the cable system operated under this
chapter and the franchise agreement. The bond shall be conditioned upon the
faithful performance of the grantee of all terms and conditions of the franchise
granted under this chapter. The rights reserved to the Village with respect
to the bond or other security are in addition to all other rights the Village
may have under this chapter or any other law.
C.
Construction bond. Prior to undertaking any construction work costing $50,000 or more relating to the franchise granted under this chapter, the grantee shall file with the Village a construction bond in the amount specified in the franchise agreement in favor of the Village and any other person who may claim damages as a result of the breach of any duty by the grantee assured by said bond. Such construction bond shall be in the form approved by the Village and issued by a company approved by the Village. In no event shall the amount of such construction bond be construed to limit the liability of the grantee for damages. The Village may waive this requirement or permit consolidation of the construction bond with the performance bond specified above in Subsection A.
The Village may require the grantee to deposit into a bank account established
by the Village, and maintain on deposit through the term of this franchise,
the sum specified in the franchise agreement as security for the grantee's
faithful performance of all of its obligations under this chapter and the
franchise agreement and for the payment by the grantee of any claims, liens,
taxes and fees due to the Village which arise by reason of the construction,
operation, or maintenance of the grantee's system.
The grantee shall give prior notice to the Village specifying the names
and addresses of any entity, other than the grantee, that, within one calendar
year, will perform services valued at $10,000 or more relating to the franchise;
provided, however, that all provisions of the franchise remain the responsibility
of the grantee. All provisions of any franchise shall apply to any subcontractor
or others performing any work or services pursuant to the provisions of the
franchise. Nothing in this section shall be construed as allowing the transfer
of any rights or responsibilities of the grantee without written approval
of the Village.
A.
Extent of indemnity.
(1)
The grantee shall, by acceptance of any franchise granted,
indemnify, defend and hold harmless the Village, its officers, boards, commissions,
agents, and employees from any and all claims, suits, judgments for damages
or other relief, costs and attorney fees in any way existing out of or through
or alleged to arise out of or through:
(a)
The act of the Village in granting the franchise;
(b)
The acts or omissions of the grantee, its servants, employees,
or agents, including but not limited to any failure or refusal by the grantee,
its servants, employees, or agents to comply with any obligation or duty imposed
on the grantee by this chapter or the franchise agreement; or
(c)
The exercise of any right or privilege granted or permitted
by this chapter or the franchise agreement.
(2)
Such indemnification shall include, but not be limited
to, all claims arising in tort, contract, infringements of copyright, violations
of statutes, ordinances or regulations or otherwise.
B.
Notifications of claims. The Village shall notify the
grantee within 10 business days after the presentation of any claim or demand,
either by suit or otherwise, made against the Village.
C.
Defense of claims. In the event any claims shall arise,
the Village or any other indemnified party shall tender the defense thereof
to the grantee. Defense of any such claim shall be by counsel reasonably acceptable
to the Village or other indemnified party; provided, however, that the Village
or other indemnified party in its sole discretion may participate in the defense
of such claims at the grantee's sole expense, and in such event such
participation shall not relieve the grantee from its duty to defend against
liability or to pay any judgment entered against such party. The grantee shall
not agree to any settlement of claims without Village approval.
D.
Village's negligence. The grantee shall not be required
to indemnify the Village for negligence or willful misconduct on the part
of the Village's officials, boards, commissions, agents or employees.
A.
Liability insurance. The grantee shall maintain throughout
the term of the franchise, and any extensions thereto, the insurance policies
described below, which shall be written on an occurrence basis. Such policies
shall name as an additional insured the Village, its officers, boards, commissions,
agents and employees, shall be primary to any insurance carried by the Village,
and shall be obtained from a company or companies approved by the Village
and in a form satisfactory to the Village. Such policies shall be as follows:
(1)
Comprehensive general liability insurance. General comprehensive
liability insurance containing the following coverage: premises/operations;
products/completed operations; broad form property damage; contractual liability
coverage for explosion; collapse and underground hazards; and pollution control
liability. The policy shall include limits of not less than $1,000,000 for
bodily injury (including death) and property damage for each occurrence of
not less than $2,000,000 in the aggregate.
(2)
Workers' compensation. Workers' compensation
insurance in compliance with § 102.31, Wis. Stats., and in compliance
with the laws of each state having jurisdiction over each employee.
(3)
Comprehensive automobile liability. Comprehensive automobile
liability including owned, nonowned, and hired vehicles with limits of not
less than $1,000,000 for bodily injury (including death) and $1,000,000 for
property damage for each occurrence.
(4)
Umbrella liability. Umbrella liability with limits of
not less than $8,000,000 which shall carry the following endorsement: "It
is hereby understood and agreed that despite anything to the contrary where
underlying insurance, as described herein, provides greater protection or
indemnity to the insured than the terms and conditions of this policy, this
insurance shall pay on behalf of the insured the same terms, conditions and
coverage which apply to the basic underlying insurance. Where no such broader
underlying insurance exists, this policy shall pay on behalf of the insured
upon terms and conditions and limitations of the carrier's umbrella excess
policy."
B.
Notice of cancellation or reduction of coverage. The
insurance policies mentioned above shall contain an endorsement stating that
the policies are extended to cover the liability assumed by the grantee under
the terms of this chapter and the franchise agreement and shall contain the
following endorsement: "It is hereby understood and agreed that this policy
may not be canceled nor the amount of coverage thereof reduced until 30 days
after receipt by the Village Administrator by registered mail of two copies
of a written notice of such intent to cancel or reduce the coverage."
C.
Evidence of insurance filed with Village Administrator.
All policies of insurance or certified copies thereof and written evidence
of payment of required premiums shall be filed and maintained with the Village
Administrator during the term of the franchise or any renewal thereof.
D.
Village's right to revise insurance requirements.
The Village reserves the right to revise the insurance requirements stated
in this chapter at any time during the term of any franchise granted under
this chapter.
E.
No waiver of performance bond. Neither the provisions
of this chapter nor any insurance accepted by the Village pursuant hereto,
nor any damages covered by the Village thereunder, shall be construed to excuse
faithful performance by the grantee or limit the liability of the grantee
under this franchise or for damages, either to the full amount of the bond
or otherwise.
During the term of a franchise and upon request by the Village, the
grantee shall provide free basic and extended basic service to any and all
Village buildings used for municipal purposes and to all public and parochial
schools within the franchise area and within 150 feet of existing cable plant.
The grantee may charge for usual installation costs. The Village may extend
service within each building so served as long as such extensions are in compliance
with applicable FCC rules and regulations.
A grantee shall at all times keep its cables and other appurtenances
used for transmitting signals shielded in such a manner that there will be
no interference with signals received by radios or televisions not connected
to the grantee's service.
A grantee may promulgate such rules, regulations, terms and conditions
governing the conduct of its business as shall be reasonably necessary to
enable the grantee to exercise its rights and perform its obligations under
the franchise and to assure uninterrupted service to all its subscribers.
However, such rules, regulations, terms and conditions shall not be in conflict
with the provisions of this chapter, the franchise agreement, or state or
federal law.
A.
No unauthorized use. It shall be unlawful for any person
to make any unauthorized connection, whether physically, electrically, acoustically,
inductively or otherwise, with any part of a grantee's cable system within
the franchise area for the purpose of enabling or receiving any television
signal, radio signal, picture, program or sound without payment to the grantee.
B.
No tampering. It shall be unlawful for any person, without
the grantee's consent, to willfully tamper with, remove or injure any
cables, wires or equipment used by a grantee for distribution of television
signals, radio signals, picture, programs or sound.
C.
Penalties. Any person violating or failing to comply
with the provisions of this section shall be subject to a forfeiture for each
day of violation or failure to comply, not to exceed $300.
A.
Compliance with laws, rules and regulations. In the event
any valid law, rule or regulation of any governing authority or agency having
jurisdiction, including but not limited to the FCC, contravenes the provisions
of this chapter subsequent to its adoption, the provisions hereof shall be
superseded by any such valid law, rule or regulation to the extent that the
provisions hereof are in conflict with and contrary to any such law, rule
or regulation.
B.
Conflicting ordinances repealed. All ordinances or parts
of ordinances in conflict with this chapter are hereby repealed to the extent
of such conflict.
C.
Severability. Should any word, phrase, clause, sentence,
paragraph, or portion of this chapter or a franchise be declared to be invalid
by a court of competent jurisdiction, such adjudication shall not affect the
validity of this chapter and the franchise as a whole but shall only affect
the portion thereof declared to be invalid, and the Village Board hereby expressly
states and declares that it would nonetheless have passed this chapter and
granted the franchise had it known that any such word, phrase, clause, sentence,
paragraph or portion of said chapter or franchise was invalid.
D.
Waiver or exemption. The Village reserves the right to
waive provisions of this chapter or exempt a grantee from meeting provisions
of this chapter if the Village determines that such waiver or exemption is
in the public interest.
E.
Nonenforcement. Subject to the provisions of the Cable
Act, a grantee shall not be relieved of any obligation to comply with any
of the provisions of this chapter, the franchise agreement, or any rule, regulation,
requirement or directive promulgated by the Village by reason of any failure
of the Village or its officers, agents or employees to enforce prompt compliance,
nor shall such be considered a waiver thereof.
F.
Force majeure. Any delay, preemption, or other failure
to provide cable service and to perform other duties contained in this chapter
and the franchise agreement by the grantee caused by factors beyond the grantee's
control, such as acts of nature, labor disputes, nondelivery by program suppliers,
war, riots, or government order or regulation, shall not result in a breach
of the terms of this chapter or the franchise agreement. The grantee shall
exercise reasonable efforts to cure promptly any such delays and the cause
thereof, and performance under the terms of this chapter and franchise agreement
shall be excused by Village for the period of time during which such factors
continue.
G.
Modification of chapter.
(1)
The Village reserves the right to add, delete, modify
or otherwise change provisions of the chapter whenever it deems the same necessary,
which changes shall only be made after reasonable notice to the grantee and
a public hearing, notice of which hearing shall be published three consecutive
times, the last of which shall be a least 10 days prior to such hearing. Such
additions, deletions, modifications or changes shall be reasonable and shall
not materially affect the grantee's operation under the franchise nor
its income or profits derived therefrom.
(2)
The grantee may initiate proceedings to change and modify
this chapter upon application to the Village, which also shall only be done
after the holding of a public hearing as set forth herein.
