[HISTORY: Adopted by the Village Board of the Village of New Glarus
1-18-2000 by Ord. No. 99-14 as Title 9, Ch. 4 of the 2000 Code. Amendments
noted where applicable.]
GENERAL REFERENCES
Streets and sidewalks — See Ch. 262.
This chapter shall be known and may be cited as the "Cable Television
Franchise Ordinance."
This chapter allows the Village of New Glarus to grant to a franchise
grantee, its successors and assignees, 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 Village through the enactment of amendments thereto.
For the purpose of this chapter, the following terms, phrases, words
and their derivations shall have the meanings 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.
A 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.
The existing corporate limits of the Village of New Glarus.
A person or entity to whom or which a franchise under this chapter
is granted by the Village, along with the lawful successors or assignees 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 New Glarus cable system including, but not limited to, basic or extended
basic subscriber service monthly fees, pay cable fees, installation and fees.
The term does not include any taxes on services furnished by a grantee and
imposed directly upon any subscriber or used by the Village, 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 Village are
open to serve customers, plus at least one night per week until 8:00 p.m.
and at least four hours on the weekend.
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 conditions
limit 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 the 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 Village.
Any person or entity legally receiving for any purpose the services
of a grantee herein.
The Village of New Glarus, County of Green, State of Wisconsin, in
its present incorporated form or in any later recognized, consolidated, enlarged
or reincorporated form.
The present governing body of the Village or any future body constituting
the legislative body of the Village.
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 Village
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 Village 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 Village 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 Village to abandon said property to
the Village or to a purchaser.
A.
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 Village and the successors and assignees of the
grantee. The franchise shall not be assigned or transferred by the grantee
without the written approval of the Village 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 Village. 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.
B.
The parties to the sale or transfer of a franchise shall
make a written request to the Village for its approval of a sale or transfer
of the franchise.
C.
The Village shall reply in writing within 30 days of
the request with a written notification of any information it needs to evaluate
the request unless both parties agree that more time may be granted. Within
30 days of such information being provided, the Village shall indicate approval
of the request or its determination that a public hearing is necessary.
D.
If a public hearing is deemed necessary pursuant to Subsection B, the Village shall conduct such hearing within 30 days of such determination. Notice of 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 areas 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 Village.
E.
Within 60 days after the public hearing, the Village
shall approve or deny the sale or transfer request and notify the grantee
in writing of its decision.
F.
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 to the Village of New Glarus that
the sale or transfer of a franchise only will be in the public interest.
G.
The new holder of a sold or transferred franchise shall,
within 30 days of the sale or transfer, 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. The new holder shall within the same period file with the Village
any and all required bonds, proofs of insurance and certifications and accept
in writing all responsibilities relating to the cable franchise and system.
The franchise territory shall be the corporate limits of the Village
of New Glarus.
A.
The grantee shall extend cable service therein to new
subdivisions or other land divisions within the Village of New Glarus when
either of the two following criteria are met:
(1)
When there exists a density of 20 homes per plant mile
or portion thereof measured from the nearest existing plant from which service
can be reasonably provided.
(2)
When the subdivision or other land division is within
300 feet of existing cable plant and the grantee has a reasonable opportunity
to install cable facilities at the time other utilities such as electricity
and telephone are installed. In this context, the grantee shall be deemed
to have reasonable opportunity when given sufficient notice to acquire the
necessary materials for the installation and when the grantee is not unfairly
discriminated against by the developer and/or other utility companies involved
with respect to cost sharing on the project.
B.
For residents requesting service which does not meet
the criteria set forth in Subsection (1) and (2) above, the grantee shall
reasonably cooperate with such residents in reaching a cost-sharing agreement
providing that the grantee pay the cost of the first 300 feet and 60% of the
cost of the extension beyond 300 feet up to a maximum of 600 feet and the
resident pay 40% of the cost. Beyond 600 feet, the resident shall pay the
actual cost of extending the grantee's plant.
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
Village, 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 FCC for signal quality and leakage. The Village 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 Village. The authorized
officers or agents of the Village 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 location convenient
to the Village 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 New Glarus cable system shall be at least 550 MHZ or
at least 77 channels in bandwidth when newly rebuilt or significantly upgraded.
B.
A grantee shall, upon request of the Village, provide
a complete written description of the cable system in the Village of New Glarus.
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 Village 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 Village Clerk-Treasurer at least
30 days before the same become effective.
C.
The Village 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 the grantee within the Village 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 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, 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 the Village ordinances relating to street openings.
C.
Relocation. If at any time during a franchise the Village shall elect to alter or change the location or grade of any street, alley or other public way, the grantee shall remove, relay and relocate its poles, wires, cables, underground conduits, manholes and other fixtures at its own expense. The Village shall notify the grantee of potential Village changes affecting the grantee's facilities as soon as plans allow, and give the grantee at least 30 days' advance notification for nonemergency relocations. If any construction by the grantee is in violation of the provisions of Subsection A, the grantee shall likewise, upon reasonable notice by the Village, 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 or water hydrant or main. All such poles or other fixtures
placed in any street shall be placed between the outer edge of the sidewalk
and the curbline where such boundaries exist; 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 street, alleys and public
ways. However, nothing in this chapter shall prohibit the use by the grantee
of existing public utility poles where practical, providing mutual satisfactory
rental agreements can be entered into with the owner.
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.
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 Village, temporarily raise or lower its wires to permit the moving
of buildings. The expense 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 notification at the time
a building moving permit is issued by the Village, in no case receiving less
than five working days' advance notice to arrange for such temporary wire
changes.
G.
Tree trimming. The grantee, to the same extent that the
Village has such authority, may trim trees that overhang streets, alleys,
sidewalks and 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.
The grantee must apply to the electric utility and/or Village Board for a
permit before trimming trees.
A.
Indemnification. The grantee shall defend and save the
Village and its agents and employees harmless from all claims, damages, losses
and expenses, including attorneys' fees, sustained by the Village on account
of any suit, judgment, execution, claim or demand whatsoever arising out of:
B.
Notification and filing. The grantee shall furnish to
the Village, 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. The Village shall notify
the grantee within 10 days after the presentation of any claim or demand,
either by suit or otherwise, made against the Village on the part of the grantee.
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 Village, its officers, boards, commissions, agents and employees, in a
company approved by the Village and in a form satisfactory to the Village
Attorney. The policy shall protect the Village and its agencies and employees
against liability for loss or damage for personal injury, death or property
damage occasioned by the operations of the grantee under any franchise granted
hereunder in the amounts of $1,000,000 for bodily injury or death resulting
from any one accident and $1,000,000 for property damage resulting from any
one accident. The Village shall be named as an additional insured under such
insurance, and a copy of the current in-force policy shall be deposited with
the Village Clerk-Treasurer.
(2)
On every third-year anniversary of the granting of a
cable franchise, the Village shall have the power reasonably to 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 Village a performance bond
in the amount of $50,000. The bond shall be released when the grantee certifies
to the Village that the construction or substantial rebuild is complete and
the Village accepts such certification as proven.
B.
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 per day, commencing
after said thirty-day notice period, from the security fund until proper correction
is made. The Village also reserves the right to terminate 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 in accordance
with federal law, the grantee shall pay to the Village each year an amount
equal to 5% of the grantee's annual gross revenues. The Village reserves the
right to increase the franchise fee at any time during the term of this agreement
to the maximum as may be allowed by law. However, the grantee shall not be
liable for such change until 90 days after receipt of a written request from
the Village to change the franchise fee pursuant to this agreement.
B.
Payment schedule; estimated payments; late payments.
The franchise fee shall be paid quarterly, due no later than the 15th day
of January, April, July and October.
C.
Annual report. No later than April 15 of each year, the
grantee shall present to the Village a report of system finances for the previous
year, which shall include gross revenues from all sources and details of the
amount contributed by each revenue component within the franchise territory.
In addition, upon request of the Village, the grantee shall present to the
Village 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 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 or for the performance of any other obligation
of the grantee.
A.
The Village 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 Village may, during the term of a franchise, free
of charge where aerial construction exists, maintain upon the poles of the
grantee within the Village 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 Village may inspect all construction or installation
work during such construction or installation, or at any time after completion
thereof, in order to insure compliance with the provisions of this chapter
and all other governing ordinances.
A.
During a franchise, a grantee shall provide one free
outlet and allow distribution within that building in accordance with FCC
rules for 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.
The grantee shall be required to provide one dedicated,
noncommercial access channel, including wiring and insertion equipment needed
to connect to the cable system but not equipment needed to allow the generation
or playback of programming.
C.
Upon 270 days' notice by the Village, the grantee shall,
at the option of the Village, be required to add an additional access channel,
including wiring and insertion equipment needed to connect to the cable system,
at a location chosen by the Village, passed by cable system and within the
franchise territory.
D.
The Village 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.
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 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 Village 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 or franchise was invalid.
A franchise granted under this chapter shall be effective upon written
acceptance of the franchise being filed with the Village Clerk-Treasurer.
The filing must take place within 30 days of the granting of the franchise
being made by the Village.
This chapter and a franchise granted hereunder may be amended to incorporate
amendments to the statutes, rules and regulations of the federal government
as they are promulgated by the federal government. Any provision therein 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 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
provision of this chapter or the laws of the state.
By the adoption of this chapter, the Village 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 Village, pursuant to
an agreement.
A grantee shall have no recourse whatsoever against the Village 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 Village, or for
the failure of the Village to have authority to grant all or any part of the
franchise. 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 Village to grant the franchise. 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 Village or by any other third person concerning any
term or condition of the franchise not expressed herein. 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 Village 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 identification identifying themselves as representatives
of the grantee when performing services at subscriber locations in the Village.
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 Village in a claim for proceeding any condition
or term of the franchise as unreasonable, arbitrary or void or that the Village
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 Village 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's representative within 12 hours. The grantee shall provide sufficient phone answering capability so 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. Violations of these standards shall be subject to penalties under provisions of § 127-16B.
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-feet
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 Village to allow temporary
suspension of service during 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 Village to allow temporary suspension of service during the repair period
for reasonable circumstances beyond its control.
E.
Service call scheduling. When the grantee needs to arrange
a 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 Village to allow temporary
suspension of service during 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:
