[HISTORY: Adopted by the Village Board of the Village of Westfield as Title 5, Ch. 2 of the 1985 Code. Amendments noted where applicable.]
For the purpose of this chapter, the following terms, phrases and words and their derivations shall have the meaning specified herein. When not inconsistent with the context, words used in the present tense include the future, and words in the singular number include words in the plural number.
BASIC SERVICE
All subscribed services provided by the grantee, including the delivery of broadcast signals and programming originated over the cable system, covered by the regular monthly charge paid by all subscribers.
BOARD
The Village Board of the Village of Westfield and any legally appointed or elected successor or agency.
COMMENCEMENT AND COMPLETION OF CONSTRUCTION
Within 30 days of the date of the award of this franchise, the grantee must undertake the necessary steps to secure authorization to operate from the appropriate governmental agencies regulating cable service. If authorization to operate is not received within 12 months of the date of franchise, the franchise may be cancelled at the option of the Village. The grantee shall begin construction immediately upon receiving said authorization and shall provide cable service to at least 100% of the franchise area within 18 months.
COMMUNITY ANTENNA TELEVISION AND AUDIO COMMUNICATIONS SYSTEM
Any network of cables and optical, electrical or electronic equipment, including cable television systems, used for the purpose of transmission of electrical impulses of television, radio and other intelligences, either analog or digital, for sale or use by the inhabitants of the Village of Westfield.
GRANTEE
The party or parties to which a franchise under this chapter is granted by the Board and its or their lawful successors and assigns.
GROSS REVENUES
Any and all compensation, in whatever form, exchange or otherwise, derived from the provision of all cable services in the Village.
SUBSCRIBER
A recipient of cable television service.
VILLAGE
The Village of Westfield, its officers and employees, unless otherwise specifically designated, the area within the territorial Village limits of the Village and such territory presently outside the Village limits over which the Village may assume jurisdiction or control by virtue of annexation.
A. 
Franchise required. No person, firm, company, corporation or association shall construct, install, maintain or operate within any public street in the Village or within any other public property of the Village any equipment or facilities for the distribution of television signals or radio signals or other intelligences, either analog or digital, over a community antenna television and audio communications system to any subscriber unless a franchise authorizing the use of the street or properties or areas has first been obtained pursuant to the provisions of this chapter and unless such franchise is in full force and effect.
B. 
Review of qualifications. Specific permission to operate a community antenna television and audio communications system under the provisions of this chapter may be granted by the Village Board to any grantee after a review of the legal, character, financial and technical qualifications and the adequacy and feasibility of the grantee's construction arrangements and after the Village Board has approved the grantee's qualifications as a part of a public proceeding affording due process.
C. 
Duration of franchise. Upon filing by the grantee of the proper acceptance, the bond and the required insurance, the franchise shall take effect as provided in § 231-7 and shall continue in full force and effect for a term of 15 years.
D. 
Quinquennial franchise review.
(1) 
On or about the fifth and 10th anniversaries of the effective date of the franchise, the Village will schedule a public meeting or meetings with the grantee to review the franchise performance, plans and prospects. The Village may require the grantee to make available specified records, documents, and information for this purpose and may inquire in particular whether the grantee is supplying a level and variety of services equivalent to those being generally offered at that time in the industry in comparable market situations.
(2) 
The Village shall first confer with the grantee regarding modifications in the franchise which might impose additional obligations on the grantee, and the grantee may in turn seek to negotiate relaxations in any requirement previously imposed on it which is subsequently shown to be impractical.
(3) 
Within 30 days of the conclusions of such negotiations, the Village may direct the grantee to show cause why specified terms and conditions should not be incorporated into the franchise and the grantee may similarly file with the Village a written request that specified obligations of its franchise be removed or relaxed. The Board will order changes in the franchised rights and obligations of the grantee only if it finds from all available evidence that such changes will not impair the economic viability of the system or degrade the attractiveness of the system's service to present and potential subscribers.
E. 
Review of franchise prior to expiration.
(1) 
Public meeting to be scheduled. At least six months prior to the expiration of the franchise, the Village shall schedule a public meeting or meetings with the grantee to review the performance of the grantee, including the results of the previous franchise reviews. The Village may require the grantee to make available specified records, documents and information for this purpose and may inquire in particular whether the grantee is supplying a level and variety of services equivalent to those being generally offered at that time in the industry in comparable market situations.
(2) 
Determination on reissue. The Village shall, within 30 days of the conclusion of such meetings, provide a determination as to whether a community antenna television and audio communications system franchise or franchises will be reissued. In making said decision, the Village shall consider the technical, financial and programming performance of the franchise holder and specifically with relation to any and all applications, promises or agreements made or entered into by the franchise holder and its performance of said applications, promises or agreements. In the event the Village determines not to reissue the franchise or franchises for reasons other than a material breach of the franchise or for causes unrelated to the performance thereunder, it shall be so stated for purposes of § 231-8C. The Village shall establish public proceedings leading to a final decision and such public proceedings shall include but not be limited to a public hearing providing opportunity for the public and applicant(s) for the reissued franchise to appear.
A. 
Franchise nonexclusive. Any franchise granted hereunder by the Village of Westfield shall not be exclusive and the Village reserves the right to grant a similar franchise to any person, firm, company, corporation or association at any time.
B. 
Franchise amendable. The scope of any franchise granted hereunder shall be deemed amendable from time to time to allow the grantee to innovate and implement new services and developments; provided, however, that no such services or developments shall be implemented without the expressed prior approval of the Village Board.
C. 
Privileges must be specified. No privilege or exemption shall be inferred from the granting of any franchise unless it is specifically prescribed. Nothing in this chapter shall be deemed to require the granting of a franchise when in the opinion of the Board it would not be in the public interest to do so.
D. 
Authority granted. Any franchise granted hereunder shall give to the grantee the right and privilege to construct, erect, operate, modify and maintain, in, upon, along, above, over and under streets which have been or may hereafter be dedicated and open to public use in the Village, towers, antennas, poles, cables, electronic equipment and other network appurtenances necessary for the operation of a community antenna television and audio communications system in the Village.
E. 
Consent prior to transfer of franchise. Any franchise granted hereunder shall be a privilege to be held for the benefit of the public by the grantee. Said franchise cannot in any event be sold, transferred, leased, assigned or disposed of in whole or part, either by forced or voluntary sale, merger, consolidation, mortgage, trust, receivership, or any other means, without the prior consent of the Village expressed by a Board resolution and then only under such conditions as the Board may establish. Such consent shall not be withheld by the Village without showing of cause.
F. 
Mortgage or pledge of network. Nothing in this section shall be deemed to prohibit the mortgage or the pledge of the network or any part thereof. However, any such mortgage or pledge shall be subject to and subordinate to the right of the Village under this franchise or applicable laws.
G. 
Previous rights abandoned. A franchise granted hereunder shall be in lieu of any and all other rights, privileges, powers, immunities, and authorities owned, possessed, controlled, or exercisable by a grantee or any successor pertaining to the construction, operation, or maintenance of a cable communications system in the Village. The acceptance of a franchise shall operate, as between the grantee and the Village, as an abandonment of any and all such rights, privileges, powers, immunities and authorities within the Village. All construction, operation and maintenance by the grantee of any cable system in the Village shall be under the franchise and not under any other right, privilege, power, immunity, or authority.
H. 
Subject to other regulatory agencies, rules or regulations. The grantee shall at all times during the life of any franchise granted hereunder 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 ordinances which the Village has adopted or shall adopt applying to the public generally and to other grantees.
I. 
No right of property. Anything contained hereto to the contrary notwithstanding, the award of any franchise hereunder shall not impart to the grantee any right of property in or on Village-owned property.
J. 
Franchise binding. Anything contained herein to the contrary notwithstanding, all provisions of this chapter and any franchise granted pursuant thereto shall be binding upon the grantee, its successors, lessees, or assigns.
A. 
Operations to be in accordance with rules. The grantee shall maintain and operate its community antenna television and audio communications system in accordance with the rules and regulations of the FCC, the State of Wisconsin and/or the Village as are incorporated herein or may be promulgated.
B. 
Interruption of service: notification. The grantee, whenever it is necessary to interrupt service over the community antenna television and audio communications system for the purpose of network maintenance, alteration or repair, shall do so at such time as will cause the least amount of inconvenience to the subscribers, and unless such interruption is unforeseen and immediately necessary, the grantee shall give reasonable notice thereof to the affected subscribers.
C. 
Service records. The grantee shall at all times make and keep at the office maintained by the grantee in the Village of Westfield a log of all complaints and interruptions or degradation of service received or experienced for a period of five years or the number of years required by the FCC. The records maintained above shall also include the complaint response time and service restoral period and shall be continuously open to inspection, examination or audit by any duly authorized representative of the Village.
D. 
Grantee rules and regulations. The grantee shall have the authority to promulgate such rules, regulations, terms and conditions governing the conduct of its business as shall be reasonable and necessary to enable the grantee to exercise its rights and perform its obligations under this chapter and any franchise granted hereunder.
(1) 
Rules to be in conformance with other regulations. None of such rules, regulations, terms and conditions promulgated under this Subsection D shall be in conflict with the provisions hereof or the laws of the state, or the rules and regulations of the FCC, or any rules and regulations promulgated by the Village in the exercise of its regulatory authority granted hereunder.
(2) 
All rules to be filed with the Village. Two copies of all rules, regulations, terms and conditions promulgated under this Subsection D, together with any amendments, additions or deletions thereto, shall be kept currently on file with the Village Clerk-Treasurer and another copy thereof shall be maintained for public inspection during normal business hours at the grantee's office in the Village of Westfield. No such rules, regulations, terms, conditions or amendments, additions or deletions thereto shall take effect unless and until so filed and maintained.
E. 
Subscribers' antennas. The community antenna television and audio communications system will be designed, engineered and maintained by the grantee so as not to interfere with the television reception of residents of the Village who do not subscribe to its services. Neither the Village nor the grantee shall require the removal, or offer to remove, or provide any inducement for removal, of any potential or existing subscriber's antenna as a condition of provision of services.
F. 
Sale or service of television receivers. Neither the grantee during the period of the franchise nor any of its affiliated, subsidiary or parent organizations, officers or directors or stockholders holding 5% or more of outstanding stock of the grantee shall, within the corporate limits of the Village or within 10 miles in any direction, directly or indirectly engage in the retail sale, renting, leasing or repairing of radio or television receivers or their appurtenances, nor shall they require any subscriber to utilize the services of any specific television/radio service business for the repair or maintenance of the subscriber's receivers, either radio or television.
G. 
Antenna switch. The grantee, upon request from any subscriber, shall install a switching device so as to permit a subscriber to continue to utilize his or her own television antenna as he or she chooses. The switch to be provided shall have a minimum of 50 db isolation. The subscriber shall pay the cost of the switch not to exceed the actual cost to the grantee.
A. 
Right of amendment reserved to Village. The Village may from time to time add to, modify or delete provisions of this chapter as it shall deem necessary in the exercise of its regulatory powers, provided that such additions or revisions shall be made only after a public hearing for which the grantee shall have received written notice at least 30 days prior to such hearing.
B. 
No impairment of Village's rights. Nothing in this section shall in any way or to any extent be construed to waive, modify or abridge the Village's right of eminent domain.
C. 
Grantee agrees to Village's rights. The Village reserves every right and power which is required to be reserved or provided by an ordinance of the Village, and the grantee by its acceptance of the franchise agrees to be bound thereby and to comply with any action or requirements of the Village in its exercise of such rights or powers which have been or will be enacted or established.
D. 
Village's right of intervention. The Village shall have the right to intervene and the grantee specifically agrees by its acceptance of the franchise not to oppose such intervention by the Village in any suit or proceeding to which the grantee is a party.
E. 
Powers of the Village. Neither the granting of any franchise nor any provision governing the franchise shall constitute a waiver or bar to the exercise of any governmental right or power of the Village.
F. 
Village's transfer of functions. Any right or power in or duty imposed upon any elected official, officer, employee, department or board of the Village shall be subject to transfer by the Village.
G. 
Village's right of inspection. The Village reserves the right during the life of any franchise granted hereunder to inspect and supervise all construction or installation work performed subject to the provisions of this section and to perform network measurements to ensure compliance with the terms of this chapter.
H. 
Village's right of network installation. The Village reserves the right during the life of any franchise granted hereunder to install and maintain free of charge upon or in the poles and conduits of the grantee any wire and pole fixtures necessary for municipal networks on the condition that such installation and maintenance thereof do not interfere with the operations of the grantee.
Applications for a franchise hereunder shall be filed with the Village Clerk-Treasurer or his appointee, in accordance with the filing instructions promulgated by the Village, and shall contain the following written information and provisions:
A. 
Filing fee. The sum as set by the Village Board shall be paid at the time of an applicant's request for application information; thereafter costs related to the application investigation to a maximum of $225 shall be due and payable upon receipt of a statement rendered by the Village.
B. 
Name and address of applicant. The name and business address of the applicant, date of application and signature of the applicant or appropriate corporate officer(s).
C. 
Description of proposed operation. A general description of the applicant's proposed operation, including but not limited to business; operating staff; maintenance and procedures beyond those required in the ordinance; management and marketing staff complement and procedures; and, if available, the rules of operation for public access.
D. 
Signal carriage. A statement of the television and radio services to be provided, including both off-the-air and locally originated signals.
E. 
Special services. A statement setting forth a description of the automated services proposed as well as a description of the production facilities to be made available by the grantee for the public, municipal and educational channels required to be made available by the provisions of this section and the FCC.
F. 
Programming assistance. A statement establishing any additional funding, facilities, equipment or personnel beyond those required elsewhere to be designated to effect and promote local programming development. It is understood that the foregoing will be available without charge to all on a fair and nondiscriminatory basis and may be used by the grantee as well. Such funding and services will be contingent upon a special showing, where required, that the proposed uses are consistent with the regulatory program of the FCC.
G. 
Schedule of charges. A statement of the applicant's proposed rates and charges as set forth in § 231-14 hereunder.
H. 
Corporate organization. A statement detailing the corporate organization of the applicant, if any, including the names and addresses of its officers and directors and the number of shares held by each officer and director.
I. 
Stockholders. A statement identifying the number of authorized and outstanding shares of applicant stock, including a current list of the names and current addresses of its shareholders holding 5% or more of the applicant's outstanding stock.
J. 
Intra-company relationships. A statement describing all intra-company relationships of the applicant, including parent, subsidiary or affiliated companies.
K. 
Agreements and understandings. A statement setting forth all agreements and understandings, whether written or oral, existing between the applicant and any other person, firm, group or corporation with respect to any franchise awarded hereunder and the conduct of the operation thereof existing at the time of proposal submittal.
L. 
Financial statement. If the applicant is a going business concern, an audited financial statement for the two previous fiscal years shall be submitted. If the applicant is a new business entity, it shall submit a Dunn and Bradstreet report.
M. 
Financial support. Suitable written evidence from a recognized financial institution, addressed both to the applicant and the Village, advising that the applicant's financial ability and planned operation have been analyzed by the institution and that the financing institution is prepared to make the required funds available to the applicant if it is awarded a franchise. If the operation is to be internally financed, a board resolution shall be supplied authorizing the obtainment and expenditure of such funds as are required to construct, install and operate the community antenna television and audio communications system contemplated hereunder.
N. 
Technical description. A technical description of the type of system proposed by the applicant, including but not limited to system configuration (i.e., hub and dual cable), system capacity, and two-way capability.
O. 
Technical statement. A statement from the applicant's senior technical staff member or consultant advising that he has reviewed the network description, the network technical requirements, performance measurements, channels to be provided, service standards, construction standards and conditions of street occupancy as set forth in or required by this chapter and that the applicant's planned network and operations thereof will meet all the requirements set forth therein.
P. 
Existing franchises. A statement of existing franchises held by the applicant indicating when the franchises were issued and when the systems were constructed and the present state(s) of the system(s) in each respective governmental unit, together with the name and address and phone number of a responsible governmental official knowledgeable of the applicant.
Q. 
Operating experience. A statement detailing the prior cable television experience of the applicant, including that of the applicant's officers, management and staff to be associated with the proposed operation.
R. 
Franchise renewal information. If an application is for renewal of a franchise, the proposal must include, in addition to the information required in Subsections A through Q above:
(1) 
A summary of the technical, financial and programming history of the network since the granting of the original franchise.
(2) 
A statement and timetable that outlines all proposed changes, expansion or improvements in the system as to services, programming or technical specifications during the forthcoming five-year review period.
S. 
Additional requirements. The application for franchise shall respond specifically, and in sequence, to Subsections A through R of this section and shall be bound separately from any additional information proffered by the applicant. Supplementary, additional or other information that the applicant deems reasonable for consideration may be submitted at the same time as its application but must be separately bound and submitted in the above number of copies. The Village may, at its discretion, consider such additional information as part of the application.
T. 
Supplementation to application. The Village reserves the right to require such supplementary, additional or other information that the Village deems reasonably necessary for its determinations. Such modifications, deletions, additions or amendments to the application shall be considered only if specifically requested by the Village.
A. 
Franchise acceptance procedures. Any franchise awarded hereunder and the rights, privileges and authority granted thereby shall take effect and be in force from and after the 30th day following the award thereof, provided that within the 30 days from the day of such award the grantee shall file with the Village the following:
(1) 
A notarized statement by the grantee of unconditional acceptance of the franchise;
(2) 
A certificate of insurance as set forth in § 231-12F herein;
(3) 
A performance bond in the sum of $25,000 conditioned upon the faithful performance of the franchisee and which bond shall be approved by the Village President. After construction is completed, the bond is not necessary.
(4) 
Written notification of the grantee's location and address for mail and official notifications from the Village.
(5) 
Initial fee as set by the Village Board.
B. 
Effect of failure to comply with franchise procedures. Should the grantee fail to comply with Subsection A above, it shall acquire no rights, privileges or authority under this chapter whatever.
C. 
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 provisions or requirements of this chapter or its regulation or from the Village's exercise of its authority to grant additional franchise hereunder. This shall not include negligent acts of the Village, its agents or employees which are performed outside the regulatory or franchise awarding authority hereunder.
D. 
Acceptance of power and authority of Village. The grantee expressly acknowledges that in accepting any franchise awarded hereunder, it has relied upon its own investigation and understanding of the power and authority of the Village to grant this franchise.
E. 
Inducement not offered. The grantee, by acceptance of any franchise awarded hereunder, acknowledges 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.
F. 
Grantee accepts terms of franchise. The grantee acknowledges by the acceptance of this chapter and the franchise ordinance 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, and any franchise granted hereunder, is unreasonable, arbitrary, invalid or void.
A. 
Sanctions against the grantee. Upon the occurrence of any of the events enumerated in this subsection or other provisions of this chapter, the Village Board may, after hearing, upon 30 days' written notice to the grantee citing the reasons alleged to constitute cause for revocation or lesser sanctions, set a reasonable time in which the grantee must remedy the event bringing rise to evoking the sanction or revocation procedure. If, during the thirty-day period, the event shall be cured to the satisfaction of the Village, the Village may declare the notice to be null and void. If the grantee fails to remedy the event within the time specified, the Board may revoke the franchise or impose lesser sanctions. In any event, before a franchise may be terminated, the grantee must be provided with an opportunity to be heard before the Village Board. No franchise granted under this section shall ever be given any value by any court or other authority, public of private, in any proceeding of any nature or character wherein or whereby the Village shall be a party or affected therein or thereby. Nothing shall prohibit the Village from imposing lesser sanctions than revocations or censures, including either monetary penalties for violations of this chapter or the shortening of the franchise period for substantial and repeated violations or a combination of either. Such action will not be taken until after a full public hearing.
(1) 
If the grantee should default in the performance of any of its obligations under the franchise and fails to cure the default within 30 days after receipt of written notice of the default from the Village.
(2) 
If the grantee should fail to provide or maintain in full force and effect the performance bond and liability and indemnification coverages as required in §§ 231-13 and 231-12, respectively.
(3) 
If a petition is filed by or against the grantee under the Bankruptcy Act, or any other insolvency or creditors' rights law, state or federal, and the grantee shall fail to have it dismissed.
(4) 
If a receiver, trustee or liquidator of the grantee is applied for or appointed for all or part of its assets.
(5) 
If the grantee makes an assignment for the benefit of creditors.
(6) 
If any court of competent jurisdiction, the FCC, or any state regulatory body, by rules, decisions, or other action, determines that any material provision of the franchise documents, including this chapter, is invalid or unenforceable.
(7) 
If the grantee should violate any orders or rulings of any regulatory body having jurisdiction over the grantee, unless the grantee is lawfully contesting the legality or applicability of such order or ruling.
(8) 
If the grantee fails to receive the necessary FCC or state certification, unless such cause is directly attributable to an action or condition imposed by the Village.
B. 
Procedure upon expiration or revocation of franchise. In the event that the Village decides to terminate for cause a franchise granted hereunder, it shall give the grantee 90 days' written notice of its intent to terminate and shall stipulate the cause. If, during the ninety-day period, the cause shall be cured to the satisfaction of the Village, the Village may at its discretion declare the notice to be null and void. In any event, before a franchise may be terminated, the grantee shall be provided with an opportunity to be heard before the Village Board. Should the grantee's franchise be terminated or expired, the grantee shall promptly remove all property within a public right-of-way owned by it unless permitted by the Village to abandon such property in place or to transfer said property to a purchaser previously approved by the Village. In the event of any such removal, the grantee shall restore the public right-of-way to a condition satisfactory to the Village. Upon abandonment, which shall only be done if the Village directs, the grantee shall transfer ownership of all such abandoned property to the Village and submit an instrument in writing approved by the Village Attorney effectuating such transfer. During the interval of a transfer of the grantee's property, the Village may require the grantee to continue service to the public.
C. 
Restoration of property. In removing its plant, structures and equipment, the grantee shall refill, at its own expense, any excavation that shall be made by it and shall leave all public ways and places and private property in as good a condition as that prevailing prior to the company's removal of its equipment and appliances, without affecting the electric or telephone cables, wire or attachments. The Village shall inspect and approve the condition of the public ways and public places and cables, wires, attachments and poles after removal. Liability insurance and indemnity provided in § 231-12 and the performance bond in § 231-13 shall continue in full force and effect during the period of removal.
D. 
Restoration by Village; reimbursement of cost. In the event of a failure by the grantee to complete any work required by Subsection C above or any work required by Village law or ordinance within the time established and to the satisfaction of the Village, the Village may cause such work to be done, and the grantee shall reimburse the Village the costs thereof within 30 days after receipt of an itemized list of such costs or the Village may recover such costs as provided in § 231-13A.
E. 
Expiration; extended operation. Upon the expiration of a franchise, the Village may, by resolution, on its own motion or request of the grantee, require the grantee to operate the franchise for an extended period of time not to exceed six months from the date of any such resolution. All provisions of the franchise shall continue to apply to operations during the extension period. The Village shall serve written notice at the grantee's business office of intent to extend under this section at least 30 days prior to the expiration of the original franchise or any extensions thereof.
A. 
Technical standards. The franchisee hereby agrees to maintain technical standards within the bounds of FCC Technical Standards 47 CFR 76.601 et seq., as they now stand and with future modifications.
B. 
Effecting rule changes. Any rule or regulation or standard as adopted, amended, modified, deleted or otherwise changed by the Board shall become effective upon the 10th day following the adoption of such resolution, unless a longer period shall be otherwise provided in such resolution.
A. 
Annual financial reports required. The grantee shall file annually with the Village Clerk-Treasurer, not later than three months after the end of its fiscal year during which it accepted a franchise hereunder and within three months after the end of each subsequent fiscal year, two copies of:
(1) 
The report to its stockholders;
(2) 
An income statement identifying revenues, expenses and income applicable to its operations under said franchise during the fiscal year or fraction thereof; and
(3) 
A listing of its properties devoted to network operations together with an itemization of its investment in each of such properties on the basis of original cost, less depreciation These reports shall include a balance sheet, listing of substantial liabilities and financing arrangements and such other reasonable information as the Village may request and shall be certified by a certified public accountant.
B. 
Annual facilities report required. The grantee shall file annually with the Village Clerk-Treasurer, not later than three months after the end of its fiscal year during which it accepted a franchise hereunder and within three months after the end of each subsequent fiscal year, two copies of a total facilities report setting forth the total physical miles of plant installed or in operation during the fiscal year and a map showing the location of the same.
C. 
Annual service summary required. The grantee shall, if requested by the Village, provide a summary not later than three months after the end of its fiscal year of all trouble complaints and network downtime received or experienced during the fiscal year. The submitted summary shall include complaint disposition and response time. For the purposes of this provision, copies of a complaint logbook reflecting all such incidents will suffice.
D. 
Public availability of reports. Reports as required under this chapter or other regulation are to be made available to the public upon proper request.
E. 
Village's access to records. The Village reserves the right during the life of any franchise grantee hereunder to have access, upon the giving of reasonable notice, to the grantee's contracts, including, but without limitation, pole agreements, channel leases and easements, engineering plans, accounting and financial data, and service records relating to the operations of the grantee under its franchise.
A. 
Franchising compensation. The grantee of a franchise hereunder shall provide an initial payment to the Village in an amount equal to the direct costs of granting the franchise, which sum shall be due and payable concurrently with the grantee's acceptance of the franchise, to offset the Village's costs in the franchise awarding process.
B. 
Annual franchise payment. The grantee of a franchise hereunder shall pay to the Village an annual fee in an amount equal to 3% of the annual gross subscriber revenues or, if higher, that percentage allowed by the FCC. This 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.
C. 
Method of computation; interest.
(1) 
Sales taxes or other taxes levied directly on a per-subscription basis and collected by the grantee shall be deducted from the local annual gross subscriber revenues before computation of sums due the Village is made. Payments due the Village under the provisions of Subsection B above shall be computed annually and shall be paid within 90 days of the end of grantee's fiscal year. The payment period shall commence as of the effective date of the franchise. The Village shall be furnished a statement with each payment, by a certified public accountant, reflecting the total amounts of annual gross subscriber revenues, and the above charges, deductions and computations, for the annual payment period covered by the payment.
(2) 
In the event that any payment is not made as required, interest on the amount due, as determined from the annual gross subscriber revenues as computed by a certified public accountant, shall accrue from the date of the required submittal at an annual rate of 12%. The percentages designated in this section may be amended no more than once each year by the Village Board, consistent with increased costs for municipal facilities and supervision and applicable rules of other regulatory agencies.
D. 
Rights of recomputation. 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.
A. 
Hold harmless agreement. The grantee shall indemnify and hold harmless the Village, its officers, boards, commissions, agents and employees against and from any and all claims, demands, causes of action, actions, suits, proceedings, damages (including but not limited to damages to Village property and damages arising out of copyright infringements, and damages arising out of any failure by the grantee to secure consents from the owners, authorized distributors or licensees of programs to be delivered by the grantee's cable television system), costs or liabilities (including costs or liabilities of the Village with respect to its employees) of every kind and nature whatsoever, including but not limited to damages for injury or death or damage to person or property, regardless of the merit of any of the same, except when caused by the Village's sole negligence, and against all liability to other, and against any loss, cost, and expense resulting or arising out of any of the same, including reasonable attorney fees, reasonable accountant fees, reasonable expert witness or consultant fees, court costs, reasonable per diem expense, traveling and transportation expense or other provable and reasonable costs or expense arising out of or pertaining to the exercise or the enjoyment of any franchise hereunder by the grantee or the granting thereof by the Village.
B. 
Defense of litigation. The grantee shall, at the sole risk and expense of the grantee, upon demand of the Village made by and through the Village Attorney, appear in and defend any and all suits, actions or other legal proceedings, whether judicial, quasi-judicial, administrative, legislative or otherwise, brought or instituted or had by third persons or duly constituted authorities, against or affecting the Village, its officers, boards, commissions, agents or employees, and arising out of or pertaining to the exercise or the enjoyment of such franchise, or the granting thereof by the Village. The grantee shall pay and satisfy and shall cause to be paid and satisfied any judgment, decree, order, directive or demand rendered, made or issued against the grantee, the Village, its officers, boards, commissions, agents or employees in any of these premises, and such indemnity shall exist and continue without reference to or limitation by the amount of any bond, policy of insurance, deposit, undertaking or other assurance required hereunder, or otherwise, provided that neither the grantee nor the Village shall make or enter into any compromise or settlement of any claim, demand, cause of action, action, suit, or other proceeding without first obtaining the written consent of the other.
C. 
Reimbursement of costs. The grantee shall pay and by its acceptance of any franchise granted hereunder agrees that it will pay all expenses incurred by the Village in defending itself with regard to all damages and penalties mentioned in Subsections A and B above.
D. 
Public liability insurance. The grantee shall maintain and by its acceptance of any franchise granted hereunder agrees that it will maintain throughout the term of the franchise, any extensions thereto, or as required in § 231-8C herein, a general comprehensive liability insurance policy naming as the additional insured the Village of Westfield, its officers, boards, commissions, agents and employees, in a company approved by the Village President and in a form satisfactory to the Village President, protecting the Village and all persons against liability for loss or damage for personal injury, death or property damage occasioned by the operation of the grantee under any franchise granted hereunder in the amounts of $1,000,000 for personal injury or death resulting from any one occurrence and $500,000 for property damage resulting from any one occurrence.
E. 
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 shall contain the following endorsement: "It is hereby understood and agreed that this policy may not be cancelled nor the amount of coverage thereof reduced until 30 days after receipt by the Village President by registered mail of two copies of a written notice of such intent to cancel or reduce the coverage."
F. 
Evidence of insurance filed with Village President. All policies of insurance or certified copies thereof and written evidence of payment of required premiums shall be filed and maintained with the Village President during the terms of any franchise granted hereunder or any renewal thereof.
G. 
No waiver of performance bond. Neither the provisions of this chapter nor any insurance acceptance by the Village pursuant hereto, nor any damages recovered by the Village thereunder, shall be construed to excuse performance by the grantee or limit the liability of the grantee under any franchise issued hereunder or for damages, either to the full amount of the bond or otherwise.
Bond evidence shall be filed with Village. Two copies of all bonds or certified copies thereof and written evidence of payment of required premium shall be filed and maintained with the Village President during the term of any franchise granted hereunder, or any renewal thereof.
A. 
Grantee may establish initial rates and charges for basic service. With the granting of any franchise hereunder, the grantee may fix all rates and charges for the basic service herein defined, such as charges for installation, subscriber rates and service charges for separate classifications of service (e.g., additional connection, etc.). Once established, such rates or charges shall not be changed for a period of two years. Thereafter, rates or charges may be reestablished after due notice.
B. 
Other service charges. Rates and charges for any services, other than the basic service, shall also be filed with the Village Clerk-Treasurer at least 30 days prior to their effective date.
C. 
Preference and prejudice prohibited. Neither the Board nor the grantee shall, as to rates, charges, service, service facilities, rules, regulations or in any other respect, make or grant any preference or advantage to any person, or subject any person to prejudice or disadvantage.
A. 
Establishment. There is established a Cable Television Program Advisory Committee consisting of three persons chosen at large to be representative of the community, all to be appointed by the Village President subject to the approval of the Village Board. The first appointments shall be for a two-year term and thereafter all appointments shall be for three-year terms.
B. 
Advisory Committee duties. The Cable Television Program Advisory Committee shall perform the following functions. It shall:
(1) 
Make recommendations to the grantee of the community antenna television and audio communications system and to the educational and governmental users of the educational and governmental access channels.
(2) 
Ensure that the grantee makes the public access channel available to all residents of the Village on a nondiscriminatory basis.
(3) 
Assure that the operation of the public access channel be free of program censorship and control.
(4) 
Perform such other duties and functions relative to the public access channel.
C. 
Advisory Committee rules and procedures. The Advisory Committee shall have the authority to submit proposed rules and regulations for the conduct of its business to the Village President and Village Board for approval and upon approval shall have the right to hold hearings and make recommendations as to the grantee of the community antenna television and audio communications systems and to the educational and governmental communities on the coordination of the educational and government access channels. All such actions shall only be advisory.
A. 
Network extension across Village boundaries. Before any subscriber located in a community other than the Village of Westfield is allowed to connect to the community antenna television and audio communications system, the grantee shall be capable of furnishing service to a substantially completed system for the Village of Westfield residents, unless a waiver of this section has been granted by the Village Board of the Village of Westfield. A written waiver request must be made 30 days before, requesting an appearance before the Village Board. Such waiver request shall clearly state the potential impact of such occurrence on the operations and finances of the grantee, the costs of such an extension and who is to bear such costs.
B. 
Extension of network within Village boundaries.
(1) 
Conditions of required extension. The grantee shall at its expense extend its community antenna television and audio communications system so as to provide full network service to all residents of:
(a) 
Newly annexed areas of the Village not then served by a community antenna television and audio communications system;
(b) 
New housing areas developed within the Village limits, provided that such area has a minimum density of 19 subscribers per mile; or
(c) 
Any resident dwelling within the Village limits and 300 feet of existing network.
(2) 
Extension policy. The grantee shall file with the Village Clerk-Treasurer two copies of its extension policy for potential subscribers dwelling beyond 300 feet from the nearest point of the existing network but within the Village limits. Such policy must be approved by the Village, and the grantee shall not make, or refuse to make, any extension except as permitted by the approved policy.
A. 
Service response. The grantee shall provide same day service response, seven days a week, for all complaints and requests for repairs or adjustments received prior to 2:00 p.m. each day. In no event shall the response time for calls received subsequent to 2:00 p.m. exceed 27 hours. The grantee shall provide a non-toll telephone number for subscribers to use in reporting service problems.
B. 
Service interruptions and notifications. The grantee, whenever it is necessary to interrupt services over the community antenna television and audio communications system for the purpose of network maintenance, alteration or repair, shall do so at such time as will cause the least amount of inconvenience to its subscribers, and unless such interruption is unforeseen and immediately necessary, it shall give reasonable notice thereof to the affected subscribers.
C. 
Upgrading of facilities, equipment and service. The grantee shall upgrade its facilities, equipment and service as subscribers' demands dictate so that its network is as advanced as the current state of technology with field-proven equipment will allow and is economically feasible.
A. 
Approval of proposed construction. A grantee shall first obtain the approval of the Village 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.
B. 
Excavation permits. A grantee shall not open or disturb the surface of any street, sidewalk, driveway or public place for any purpose without first having obtained a permit to do so in the manner provided by ordinance.
C. 
Changes required by public improvements. A 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, 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.
D. 
Use of existing poles or conduits. Nothing in this chapter or any franchise granted hereunder shall authorize the grantee to erect and maintain in the Village new poles where existing poles are servicing the area. The grantee shall require permission from the Village before erecting any new poles, underground conduit or appurtenances where none exist at the time the grantee seeks to install its network.
E. 
Facilities not to be hazardous or interfere. All wires, conduits, cables, and other property and facilities of the grantee shall be so located, constructed, installed and maintained as not to endanger or unnecessarily interfere with the usual and customary trade, traffic and travel upon the streets and public places of the Village. The grantee shall keep and maintain all its property in good condition, order and repair. The Village reserves the right hereunder 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. The grantee shall keep accurate maps and records of all its facilities and furnish copies of such maps and records as requested by the Village under § 231-10 herein. A 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.
F. 
Method of installation. All wires, cables, amplifiers and other property shall be constructed and installed in an orderly and workmanlike manner. All cables and wires shall be installed parallel with the 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. All installations shall be underground in those areas of the Village where public utilities providing both telephone and electric service are underground at the time of installation. In areas where either telephone or electric utility facilities are aboveground at the time of installation, the grantee may install its service aboveground, provided that at such time as those facilities are required to be placed underground by the Village or are placed underground, the grantee shall likewise place its services underground without additional costs to the Village or to the residents of the Village other than as may be granted under the provisions of § 231-14.
G. 
Protection of facilities. Nothing contained in this section shall relieve any person, company or corporation from liability arising out of the failure to exercise reasonable care to avoid injuring the grantee's facilities while performing any work connected with grading, regrading or changing the line of any street or public place or with the construction or reconstruction of any sewer or water system.
H. 
Notice of Village improvements. The Village shall give the grantee reasonable notice of plans for street improvements where paving or resurfacing of a permanent nature is involved. The notice shall contain the nature and character of the improvements, the streets upon which the improvements are to be made, the extent of the improvements and the work schedule for the project. The notice shall give the grantee sufficient time to make any additions, alterations, or repairs to its facilities as it deems necessary in advance of the actual commencement of the work, so as to permit the grantee to maintain continuity of service.
I. 
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 said building. The expense of such temporary removal, raising or lowering of wires shall be paid by the person requesting the same and the grantee shall have the authority to require such payment in advance. The grantee shall be given not less than 10 working days' notice of any move contemplated to arrange for temporary wire changes.
J. 
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 company. All trimming is to be done under the supervision and direction of the Village after explicit, prior written notification and approval of the Village and at the expense of the grantee. The grantee may contract for such services; however, any firm or individual so retained shall receive Village approval prior to commencing such activity.
K. 
Restoration or reimbursement. 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. In the event that 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. Payment to the Village or owner for such replacement or restoration shall be immediate, upon demand, by the grantee. All requests for replacement or restoring of such streets or private property as may have been disturbed most be in writing to the grantee.
L. 
Office and records in Village. The grantee shall at all times make and keep at the office of the Village Clerk-Treasurer full and complete plans and records showing the exact location of all community antenna television and audio communications system equipment installed or in use in the streets and other public places of the Village. The grantee shall furnish the Village a current map or set of maps, drawn to scale, showing all community antenna television and audio communications system equipment installed and in place in streets and other public places of the Village.
M. 
Emergency removal of plant. 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, provided that such repairs are not necessitated by negligent acts of the Village, in which case cost for repairs shall be borne by the Village.
N. 
Alternate routing of plant. In the event continued use of a street is denied to the grantee by the Village for any reason, the grantee will make every reasonable effort to provide service over alternate routes.
A. 
No prohibition of interconnection. Nothing in this chapter shall be construed so as to prohibit the grantee from interconnecting its network with other similar contiguous networks either in the Village or in other municipalities, counties or states except as the provisions of § 231-16 apply. However, any revenues derived therefrom shall be equitably allocated in the calculation of gross revenues as set forth in § 231-11 herein.
B. 
Study required for interconnection. The grantee shall, if requested by the Village, conduct a technical and economic feasibility study of any interconnection requested by the Village. The study shall be presented to the Village, and in the event that the study shows such interconnection to be feasible, the grantee shall, if so instructed by the Village, accomplish said interconnection. In the event that the study indicates technical feasibility only, the Village may elect, but at its sole discretion, to arrange for compensation to be paid to the grantee, in amount sufficient to assure an economic "break even" by the grantee and so order the interconnection. In the event that the study fails to show technical feasibility the grantee shall have no further responsibility for accomplishing said interconnection until such time as improvements in technology permit such interconnection.
A. 
Unauthorized connections prohibited. It shall be unlawful for any firm, person, group, company, corporation or governmental body or agency, without the expressed consent of the grantee, to make or possess any connection, extension, or division, whether physically, acoustically, inductively, electronically or otherwise, with or to any segment of a franchised community antenna television and audio communications system for any purpose whatsoever, except as provided in § 231-18 herein.
B. 
Removal or destruction prohibited. It shall be unlawful for any firm, person, group, company, corporation or government body or agency to willfully interfere, tamper, remove, obstruct or damage any part, segment or content of a franchised community antenna television and audio communication system for any purpose whatsoever.
C. 
Penalty. Any firm, person, group, company, corporation or governmental body or agency convicted of a violation of this section shall for each offense be subject to a penalty as provided in Chapter 1, § 1-3 of this Code.[1]
[1]
Editor's Note: Amended at time of adoption of Code (see Ch. 1, General Provisions, Art. II).
A. 
Use of data from subscriber. A grantee, the Village or any 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 valid authorization from each subscriber so affected. Valid authorization shall mean written approval from the subscriber and shall not have been obtained from the subscriber as a condition of service. Further, it shall be unlawful for a grantee without such authorization to activate and/or utilize any Class IV cable television channel in any manner from the subscribers' premises. In any case the subscriber shall retain the right to deactivate his or her terminal.
B. 
Subscriber data. The Village or a 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.
C. 
Subscriber agreements. Any agreement or contract such as is necessary for Subsections A and B above shall not be part of any other agreement or contract and shall not be a condition of subscribing to the system.
If any section, subsection, sentence, clause or phrase of this chapter is for any reason held illegal, invalid or unconstitutional or not to comply with the standards and requirements of the FCC or violates its restrictions, as determined by the decision of any court of competent jurisdiction or the FCC, such decision shall not affect the validity of the remaining portions thereof. The Village Board hereby declares that it would have passed this chapter in each section, subsection, sentence, clause and phrase hereof irrespective of the fact that any one or more sections, subsections, sentences, clauses or phrases are declared illegal, invalid or unconstitutional or not to comply with the requirements of the FCC or to be in violation of its restrictions. The invalidity for violation of FCC restrictions or failure to comply with its requirements of any portion of this chapter shall not abate, reduce or otherwise affect any consideration or other obligation required of the grantee of any franchise granted hereunder, and any such portion shall be subject to renegotiation by the grantee and Village Board.