[HISTORY: Adopted by the Common Council of the City of Jefferson 8-6-2002
by Ord. No. 7-02 as Ch. 21 of the 2002 Code. Amendments noted
where applicable.]
This chapter shall be known and may be cited as the "Cable Television
Franchise Ordinance."
This chapter allows the City of Jefferson to grant to a franchise grantee,
its successors and assigns a nonexclusive license to install, maintain and
operate a cable television system for the distribution of television signals,
frequency-modulated radio signals and any other electronic signals capable
of being transmitted over a fiber-optic and/or coaxial cable network and closed
circuit television programs for a term not to exceed 15 years, provided that
the franchise grantee conforms to the conditions, limitations and requirements
of this chapter. This chapter may be amended from time to time by the City
through the enactment of amendments thereto.
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.
Coaxial and/or fiber-optic cables, wave guides or other conductors
and equipment for providing television or other services by cable or through
its facilities as herein contemplated, and including closed circuit special
event programs and educational television.
The City of Jefferson, County of Jefferson, State of Wisconsin, in
its present incorporated form or in any later recognized, consolidated, enlarged
or reincorporated form.
The present governing body of the City or any future body constituting
the legislative body of the City.
A person or entity to whom or to which a franchise under this chapter
is granted by the City, along with the lawful successors or assigns of such
person or entity.
Any revenue derived directly or indirectly by a grantee, its affiliates,
subsidiaries, parents and any persons or entities in which a grantee has a
financial interest of 5% or more from or in connection with the operation
of a Jefferson cable system, including but not limited to basic or extended
basic subscriber service monthly fees, pay cable fees, and installation and
reconnection fees. The term does not include any taxes on services furnished
by a grantee and imposed directly upon any subscriber or used by the City,
state or other governmental unit and collected by a grantee on behalf of said
governmental unit.
Those hours during which most similar businesses in the City are
open to serve customers.
Those conditions affecting service within the control of the grantee.
Those conditions presumed to be outside normal operating conditions include
natural disasters, human-caused disasters and civil disturbances, power or
telephone outages, and severe or unusual weather conditions where such condition
limits the grantee's ability to provide service. Those conditions presumed
to be within normal operating conditions include special promotions, pay-per-view
events, rate increases, regular peak or seasonal demand periods and maintenance,
rebuild or upgrade of the cable system.
The surface of and space above and below any public street, road,
highway, freeway, lane, alley, court, sidewalk, parkway or drive now or hereafter
existing as such within the City.
Any person or entity legally receiving for any purpose the services
of a grantee herein.
A.
To the extent applicable, federal law shall govern the
procedures and standards for renewal of any franchise awarded pursuant to
this chapter.
B.
To the extent federal law is not applicable, the City
shall, in its sole judgment and discretion, have the right to grant or deny
renewal, provided that, at a minimum, the grantee provides written notice
of its intent to seek renewal at least 30 months but no more than 36 months
prior to the expiration of the applicable franchise term.
A.
A franchise granted under this chapter may be terminated
by the City for just cause, which may include but not be limited to a material
breach of the provisions of this chapter or a franchise agreement issued under
this chapter or other violation of local, state or federal law. The City shall
not terminate a franchise without notice to the grantee, reasonable opportunity
to cure, and a public proceeding offering the grantee and other interested
parties the opportunity to comment.
B.
Should a grantee's franchise be terminated or expire
and there is no judicial or administrative review of the termination or expiration
taking place, the grantee shall begin removal, within 90 days of termination
or expiration, of all property owned by the grantee and placed on a public
right-of-way, unless permitted by the City to abandon said property to the
City or to a purchaser.
C.
In the event that a franchise has been terminated or
has expired, the City shall have options, to the extent then permitted by
law, to purchase the tangible assets of the grantee's cable television system
previously governed by the franchise at its fair market value which shall
be determined by a bona fide offer to purchase the system, to assign such
rights to purchase, or to require removal of all the grantee's property located
within the public ways of the City at the grantee's expense. Such an option
must be exercised within one year from the date of the termination or expiration
of the franchise, the entry of a final judgment by a court reviewing the question
of the termination or expiration, or the entry of a final order upon appeal
of the same, whichever is later.
All of the rights and privileges and all the obligations, duties and
liabilities created by this chapter shall pass to and be binding upon the
successors of the City and the successors and assigns of a grantee. The franchise
shall not be assigned or transferred by the grantee without the written approval
of the City hereunder, which approval shall not be unreasonably withheld without
a showing of good cause; provided, however, that this section shall not prevent
the assignment or pledge of a franchise or system by a grantee as security
for debt without such approval, and provided further that transfers or assignments
of a franchise between any parent and subsidiary corporation or between entities
of which at least 51% of the beneficial ownership is held by the grantee or
any parent corporation shall be permitted without the prior approval of the
City. The sale, transfer or assignment of a material portion of the tangible
assets of a grantee to an unrelated third party shall be considered an assignment
subject to the provisions of this section.
A.
The parties to the sale or transfer of a franchise shall
make a written request to the City for its approval of a sale or transfer
of the franchise.
B.
The City shall reply in writing within 30 days of the
request with a written notification of any information it needs to evaluate
the request. Within 30 days of such information being provided, the City shall
indicate approval of the request or its determination that a public hearing
is necessary.
C.
If a public hearing is deemed necessary pursuant to Subsection B, the City shall conduct such hearing within 30 days of such determination. Notice of any such hearing shall be given at least 14 days prior to the hearing by publishing notice thereof once in a newspaper of general circulation in the area being served by the franchise. The notice shall contain the date, time and place of the hearing and shall briefly state the substance of the action to be considered by the City.
D.
Within 60 days after the public hearing, the City shall
approve or deny the sale or transfer request and notify the grantee in writing
of its decision.
E.
The parties to the sale or transfer of a franchise only,
without the inclusion of a cable communications system in which at least substantial
construction has commenced, shall establish that the sale or transfer of a
franchise only will be in the public interest.
F.
The new holder of a sold or transferred franchise shall,
within 30 days of the sale or transfer, file with the City 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. The
new holder shall within the same period file with the City any and all required
bonds, proofs of insurance and certifications and accept in writing all responsibilities
relating to the cable franchise and system.
A franchise granted under this chapter is for the present territorial
limits of the City of Jefferson. For any households or areas existing or added
to the franchise territory during the term of the franchise, service shall
be extended within one year wherever density reaches 20 dwelling units per
plant mile.
A.
No monitoring of any authorized terminal connected to
the system shall take place without specific written authorization by the
user of the terminal in question on each occasion and written notice to the
City, except as may be required for normal maintenance of the system.
B.
A grantee shall not, except as required by governmental
action, provide any data concerning specific subscribers or users or their
use of subscriber services without first securing written authorization from
the subscribers or users as required in the Cable Communications Policy Act
of 1984.
C.
Subscribers and users 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 cable system shall be operated to comply with or exceed all guidelines
and standards set by the Federal Communications Commission (FCC) for signal
quality and leakage. The City reserves the right to test the system or any
part thereof and independently measure the signal quality. The grantee shall
provide reasonable access to its facilities and any assistance necessary for
such testing. The system shall comply at all times with the applicable National
Electrical Code of the National Fire Protection Association.
A grantee shall manage all of its operations in accordance with the
policy of totally open books and records vis-a-vis the City. The authorized
officers or agents of the City shall have the right to inspect, upon notice,
during normal business hours, all books, records, maps, plans, financial statements,
service complaint logs, performance test results, records of request for service
and other like materials of the grantee that relate to the operation of the
franchise.
A.
A grantee shall be required to provide a minimum of two
locations within the City and open during normal business hours to receive
customer payments.
B.
The grantee shall provide access to a local or toll-free
telephone number for programming questions and service requests. The number
shall be either staffed or provided with answering capabilities 24 hours a
day.
A.
A Jefferson cable system shall be at least 78 NTSC channels
in bandwidth or their digital equivalent when newly built, rebuilt or significantly
upgraded.
B.
A grantee shall, upon request of the City, provide a
complete written description of the cable system in the City of Jefferson.
Such written description shall be updated as substantial changes are made.
A.
Rates charged by a grantee for service hereunder shall
be fair and reasonable. Before any service is sold to any customer, the grantee
shall file with the City Clerk/Treasurer its schedule of rates for installation,
monthly service charges and any other charges related to the operation of
the cable system, together with a statement of the rights and obligations
of subscribers.
B.
Subsequent additions or amendments to rates and service
charges shall likewise be filed with the City Clerk/Treasurer at least 30
days before the same become effective.
C.
The City reserves the option to regulate rates for cable
service, should such power be allowed under federal and state law.
A.
Use. All transmission and distribution structures, lines
and equipment erected by a grantee within the City shall be so located as
not to cause interference with the proper use of streets, alleys and other
public ways and places and not to cause interference with the rights of or
reasonable convenience of property owners who adjoin any of the streets, alleys
or other public ways and places.
B.
Restoration. In case of any disturbance of pavement,
sidewalk, driveway or other surfacing, the grantee shall first give notice
to the Director of Public Works/Engineer of any contemplated disturbances
of pavement, sidewalk, driveway or other surfacing and shall, at its own cost
and expense and in a manner approved by the Director of Public Works/Engineer,
replace and restore all pavement, sidewalk, driveway or other surface of any
street or alley disturbed in as good condition as before such work commenced.
The grantee shall otherwise comply with City ordinances relating to street
openings.
C.
Relocation. If at any time during a franchise the City shall elect to alter or change the location or grade of any street, alley or other public way, the grantee, upon 72 hours' notice by the City, shall remove, relay and relocate its poles, wires, cables, underground conduits, manholes and other fixtures at its own expense. If any construction by the grantee is in violation of the provisions of Subsection A, the grantee shall likewise, upon reasonable notice by the City, remove, relay and relocate its property in such a manner as to remedy such violation at its own expense.
D.
Placement of fixtures. The grantee shall not place poles
or other fixtures where the same will interfere with any gas, electric, telephone
or other fixture, water hydrant or main. All such poles or other
fixtures placed in any street shall be placed between the outer edge of sidewalk
and the curbline where such boundaries exist, and those placed in alleys shall
be placed close to the line of the lot abutting on such alley in such a manner
as not to interfere with the usual travel on the streets, alleys and public
ways. However, nothing in this chapter shall prohibit the use by the grantee
of existing public utility poles where practical, provided that mutually satisfactory
rental agreements can be entered into with the grantee.
E.
Underground service. The grantee shall install underground
service in areas where electric and phone services are underground. Unless
a greater depth is required, the minimum depth for underground cable service
at the time of initial installation shall be 12 inches. The grantee shall
undertake to minimize disruption to a subscriber's property when installing
underground service.
F.
Temporary removal of wire for building moving. A 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 expenses of such temporary raising or lowering of the wires
shall be paid by the person requesting the same, and the grantee may require
such payment in advance. The grantee shall be given advance notice of at least
five working days to arrange for such temporary wire changes.
G.
Tree trimming. The grantee, to the same extent that the
City has such authority, may trim trees that overhang streets, alleys, sidewalks
and public places of the City so as to prevent the branches of such trees
from coming in contact with the wires and cables of the grantee. The grantee
must apply to the City for a no-fee permit before trimming trees.
A.
Indemnification. The grantee shall defend and save the
City and its agents and employees harmless from all claims, damages, losses,
and expenses, including attorney fees, sustained by the City on account of
any suit, judgment, execution, claim or demand whatsoever arising out of:
B.
Notification and filing. The City shall notify the grantee
within 10 days after the presentation of any claim or demand, either by suit
or otherwise, made against the City on the part of the grantee. The grantee
shall furnish to the City, before any franchise becomes effective, satisfactory
evidence in writing that the grantee has in force and will maintain in force
during the term of the franchise public liability insurance.
C.
Liability insurance.
(1)
A grantee shall maintain throughout the term of the permit
a general comprehensive liability insurance policy naming as additional insured
the City, its officers, councils, commissions, agents and employees, in a
company approved by the City and in a form satisfactory to the City Attorney.
The policy shall protect the City and its agencies and employees against liability
for loss or damage for personal injury, death or property damage occasioned
by the operations of grantee under any franchise granted hereunder, in the
amounts of $1,000,000 for bodily injury or death to any one person, with the
limit however of $2,000,000 for bodily injury or death resulting from any
one accident and $1,000,000 for property damage resulting from any one accident.
The City shall be named as an additional insured under such insurance and
a copy of the current in-force policy shall be deposited with the City Administrator.
(2)
On every third year anniversary of the granting of a
cable franchise, the City shall have the power to reasonably increase the
amount of liability insurance required, and the grantee shall have 60 days
after notification to file proof of such increased coverage.
A.
Bond. During the construction or substantial rebuild
of a cable system, the grantee shall file with the City a performance bond
in the amount of $50,000. The bond shall be released when the grantee certifies
to the City that the construction or substantial rebuild is complete and the
City accepts such certification as proven.
B.
Security fund. At the time a franchise is accepted, the grantee shall file with the City and maintain through the term of the franchise a bond or a cash fund in the amount of $5,000 as a common security fund for the faithful performance by the grantee of all the provisions of the franchise. Provision shall be made to permit the City to withdraw funds from the security fund pursuant to Subsection C. The grantee shall not use the security fund for other purposes and shall not assign, pledge or otherwise use this security fund as security for any purpose. Within 10 days after notice to it that any amount has been withdrawn by the City from the security fund pursuant to this section, the grantee shall replenish the bond to the required amount.
C.
Failure to comply. Any violation by a grantee, its vendor,
lessee or successor of the provisions of a franchise or any material portion
or portions thereof, or the failure promptly to perform any of the provisions
thereof, shall, after 30 days' written notice and opportunity to cure is given
to the grantee, cause the grantee to be fined up to $100 a day from the security
fund until proper correction is made. The City also reserves the right to
forfeit the franchise and cancel all rights hereunder. A grantee is not responsible
for failure to provide adequate service when that failure is caused by acts
of God, strikes, governmental or military action, or other conditions beyond
its control, including the unavailability of material or parts.
A.
Franchise fee payment. As compensation for permission
to use the streets and public ways of the City for the construction, operation,
maintenance, modification, and reconstruction of a cable system, and for the
City's costs in establishing a regulatory program for a grantee, the grantee
shall pay to the City each year an amount equal to 5% of the grantee's annual
gross revenues.
B.
Payment schedule; estimated payments; late payments.
The franchise fee shall be paid on a quarterly basis according to the following
schedule: revenues for January through March shall be reflected in a May 15
payment; revenues for April through June shall be reflected in an August 15
payment; revenues for July through September shall be reflected in a November
15 payment; and revenues for October through December shall be reflected in
a February 15 payment.
(1)
The grantee may make estimated payments for the first
three quarters of a calendar year, provided that no estimated quarterly payment
is less than 25% of the previous year's total annual payment and that any
discrepancy between the estimated quarterly payments and the total owed for
the calendar year is corrected by the February 15 payment.
(2)
The grantee shall pay to the City a late payment fee
of 1.5% per month or portion thereof for any late franchise fee payments.
C.
Annual report. No later than April 15 of each year, the
grantee shall present to the City a report of system finances for the previous
year, which shall include gross revenues from all sources and detail of the
amount contributed by each revenue component within the franchise territory.
In addition, upon request of the City the grantee shall present to the City
an audited, consolidated financial statement showing operating expenses, net
income and an end-of-year balance sheet.
D.
Acceptance not considered release. No acceptance of any
payment by the City shall be construed as a release or as an accord and satisfaction
of any claim the City may have for further or additional sums payable as a
franchise fee or for the performance of any other obligation of the grantee.
A.
The City hereby reserves the right to adopt, in addition
to the provisions contained in this chapter and existing applicable ordinances,
such additional regulations as it shall find necessary in the exercise of
its police powers. Such regulations, by ordinance or otherwise, shall be reasonable
and not be in substantial conflict with the rights granted in this chapter
and not be in conflict with the laws of the state.
B.
The City may, during the term of a franchise, free of
charge where aerial construction exists, maintain upon the poles of the grantee
within the City limits wire and pole fixtures necessary for a police and fire
alarm system, such wires and fixtures to be constructed and maintained to
the satisfaction of the grantee and in accordance with its specifications.
C.
The City may inspect all construction or installation
work during such construction or installation, or at any time after completion
thereof, in order to ensure compliance with the provisions of this chapter
and all other governing ordinances.
A.
During a franchise, a grantee shall provide one free
outlet and basic and expanded basic cable service to each municipally owned
or leased building passed by the cable system and used substantially for municipal
purposes, as well as to any and all schools, whether private or public, within
the franchise territory.
B.
Upon 180 days' notice by the City, the grantee shall
be required to provide two dedicated, noncommercial access channels, including
wiring, insertion equipment and the return path needed to connect to the cable
system. Origination shall be from any two locations chosen by the City within
the franchise territory that are passed by the cable system.
C.
The City shall have sole authority to administer the
community access channels unless it chooses to delegate such authority. A
grantee shall not be responsible for the equipment or operating costs for
community access channels, except as provided for in a franchise agreement.
D.
The grantee shall provide the City with an emergency
alert override capacity capable of securely accepting signals from a remote
location and displaying City information on all channels.
Should any word, phrase, clause, sentence, paragraph or portion of this
chapter and/or a franchise thereunder be declared to be invalid by a court
of competent jurisdiction, such adjudication shall not affect the validity
of this chapter and/or the franchise as a whole but shall only affect the
portion thereof declared to be invalid, and the City hereby expressly states
and declares that it would nonetheless have passed this chapter and/or granted
the franchise had it known that any such word, phrase, clause, sentence, paragraph
or portion of said chapter and/or franchise was invalid.
A franchise granted under this chapter shall be effective upon written
acceptance of the franchise being filed with the Clerk/Treasurer of the City.
The filing must take place within 30 days of the offer of the franchise being
made by the City.
This chapter and a franchise granted hereunder may be amended to incorporate
amendments to the statutes and rules and regulations of the federal government
as they are promulgated by the federal government. Any provision herein in
conflict with or preempted by said rules, regulations or statutes shall be
superseded.
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 or the laws of the state.
By the adoption of this chapter, the City expressly waives all objections
it has or may have to the legal rights of the grantee to attach its cables,
equipment and transmission lines to the poles of the City, pursuant to an
agreement.
A.
A grantee shall have no recourse whatsoever against the
City for any loss, cost or expense or damage arising out of any provisions
or requirements of a franchise or because of the enforcement thereof by the
City or for the failure of the City to have authority to grant all or any
part of the franchise.
B.
The grantee expressly acknowledges that in accepting
a franchise it does so relying on its own investigation and understanding
of the power and authority of the City to grant the franchise.
C.
By accepting a franchise, a grantee acknowledges that
it has not been induced to enter into the franchise by any understanding or
promise or other statement, whether verbal or written, by or on behalf of
the City or by any other third person concerning any term or condition of
the franchise not expressed herein.
D.
The grantee further acknowledges by acceptance of the
franchise that it has carefully read the terms and conditions hereof and is
willing to and does accept all the risks of the meeting of such terms and
conditions.
A.
A grantee shall give prior notice to the City specifying
the names and addresses of any entity, other than the grantee, that performs
substantial services pursuant to the franchise; provided, however, that all
provisions of the franchise remain the responsibility of the grantee. All
personnel of the grantee or its subcontractors shall carry and display if
requested a photo ID identifying themselves as representatives of the grantee
when performing services at subscriber locations in the City.
B.
All provisions of a franchise shall apply to any subcontractor
or others performing any work or services pursuant to the provisions of the
franchise.
The grantee agrees by acceptance of a franchise that it will not at
any time set up against the City in a claim or proceeding any condition or
term of the franchise as unreasonable, arbitrary or void, or that the City
had no power or authority to make such term or condition, but shall be required
to accept the validity of the terms and conditions of the franchise in their
entirety.
The grantee shall maintain resources sufficient and near enough to the
franchise territory to provide the necessary facilities, equipment and personnel
to comply with this section and other provisions of this chapter.
A.
Service standards. The grantee shall render efficient
service, make repairs promptly and interrupt service between the hours of
7:00 a.m. and 1:00 a.m. only for good cause and for the shortest possible
time. Service may be interrupted between 1:00 a.m. and 7:00 a.m. for routine
testing, maintenance and repair, except on nights commencing on Saturday and
Sunday and on holidays. Scheduled or predictable service interruptions, except
for weekly routine maintenance, insofar as possible, shall be preceded by
notice, which may be provided across the cable system. The interruptions shall
occur during periods of minimum use of the system to the extent practicable.
The grantee shall maintain a written log or an equivalent capable of access
and reproduction of all service interruptions and requests for service, which
log shall be available for City inspection during the franchise period.
B.
Telephone lines. The grantee shall provide local toll-free or collect call telephone access to its subscribers within the franchise territory. Any calls should be answered by a customer service representative during normal business hours; calls outside this period may be answered by an automated response mechanism, but such calls should be processed by a grantee representative on the next business day. The grantee shall provide sufficient phone answering capacity that customer calls are answered on average within 30 seconds 90% of the time and that customers receive a busy signal no more than 3% of the time 90% of the time on an overall basis. Violations of these standards shall be subject to penalties under provisions of § 126-16.
C.
Installation. The grantee shall complete requests for
subscriber installations within seven business days of order placement when
the installation is within 150 feet of the existing cable system. Installation
requests required to be honored under this chapter beyond the one-hundred-fifty-foot
standard must be completed within 14 days. If the grantee fails to meet these
standards the grantee shall provide the subscriber with a free month of the
requested service. The grantee may request the City toll these periods for
reasonable circumstances beyond its control.
D.
Repair standards. The grantee shall maintain a repair
force capable, under normal operating circumstances, of responding to service
interruption and degradation complaints made during normal business hours
within four hours. For complaints made outside normal business hours, the
grantee must respond within 16 hours. For the purpose of this subsection,
"response" shall mean at a minimum contacting the subscriber by phone or in
person. Where a grantee misses either of these deadlines, the grantee must
provide the subscriber with one free month's service. The grantee may request
the City toll the repair period for reasonable circumstances beyond its control.
E.
Service call scheduling. When the grantee needs to arrange
an service appointment at a subscriber's location, the grantee must offer
the subscriber a service window not to exceed four hours in duration. The
grantee may not cancel a service window without the subscriber's consent.
Where a grantee misses a service window, the grantee must provide the subscriber
with one free month's service. The grantee may request the City toll the service
call period for reasonable circumstances beyond its control.
F.
Service interruptions and significant degradation. When
the grantee has failed to provide a subscriber with appropriate service due
to service outage or significant audio or video degradation not due to the
subscriber's equipment or action, the subscriber may request a rebate of any
fees paid for the affected service(s) under the following schedule, and the
grantee must provide such rebates. For the purposes of this subsection the
outage or degradation period shall begin when the subscriber provides notice
to the grantee of the outage or degradation. The grantee may request the City
waive or modify the rebate provisions for reasonable circumstances beyond
its control.
