Village of Stratford, WI Cable Television

Any person directly or indirectly owning, controlling or holding with power to vote 10% or more of the outstanding voting securities of the franchisee;

Any person 10% or more of whose outstanding voting securities are directly or indirectly owned, controlled or held with power to vote by the franchisee;

Any person directly or indirectly controlling, controlled by, or under common control with the franchisee;

Any officer, director, partner, copartner or employee of the franchisee;

If the franchise is an investment company, any investment adviser thereof or any member of an advisory board thereof; and

If the franchisee is an unincorporated investment company not having a board of directors, the depositor thereof.

AGENCY

Any department of Village government.

BASIC SERVICE

The complement of programming and services distributed by the cable communications system to all subscriber terminals to all locations within the Village for a basic monthly charge and includes:

Television broadcast signals required to be carried under federal or local law;

Community communications;

Programming or services on channels designated for special purposes by the Village Board and incorporated in any franchise agreement; and

CABLE COMMUNICATIONS SYSTEM

Any other services or programming at the option of the franchisee as set forth in the franchise agreement; provided, however, that subscription programming shall not be considered part of basic service.

BOARD

The Village Board of the Village of Stratford.

BOOK VALUE

The original cost of the cable communications system less book depreciation and exclusive of the value of the franchise as certified by a certified public accountant selected by the Village Board.

CABLECASTING

Transmission of programming, exclusive of live broadcast signals and community communications, via the cable communications system to subscribers.

A nonbroadcast facility consisting of a set of transmission paths with associated signal generation, reception and control equipment, under common ownership and control, which distributes or is designed to distribute to subscribers the signal of one or more television broadcast stations.

CHANNEL

A frequency band which is capable of carrying a standard broadcast audio-video television signal.

CHANNEL LESSEE

A person leasing a cable channel for the presentation and distribution of video-audio programs or other video-audio communications over a cable channel for a specified fee.

COMMITTEE

The Village judiciary and regulatory committee established by the Village Board to act as an advisory body to it on matters pertaining to cable communications.

COMMUNITY ACCESS

Programming, exclusive of broadcasting signals, produced by persons, organizations or institutions other than the franchisee at designated centers or otherwise for cablecast over any designated community access channels.

DISCRETE SERVICES

Services available on the cable communications system which may be provided to subscribers on an individual and/or group basis and which may be particular to that subscriber and/or group and not available system-wide. Discrete services are cable communications services which are delivered by means of a technically segregated signal.

DOWNSTREAM CHANNEL

A channel through which an electronic or other signal, originated or converted at the head end or subhead ends, may be transmitted to and received at the location of the subscriber's receiver.

FAIR MARKET VALUE

That price which a seller, dealing at arm's length, ready and willing to sell and not compelled to sell, would accept for the cable communications system when offered by a buyer, ready and willing but not compelled to buy, exclusive of the value of the franchise.

FCC

The Federal Communications Commission or its legally appointed successor.

FRANCHISE

The right granted through a contractual agreement between the Village and a person by which the Village authorizes such person to erect, construct, reconstruct, operate, dismantle, test, use and maintain a cable communications system in the Village. Any franchise awarded by an agreement in accordance with the provisions of this chapter shall be a nonexclusive franchise.

FRANCHISEE

The person or its legal successor in interest who executes an agreement in accordance with the provisions of this chapter for the erection, construction, reconstruction, operation, maintenance, dismantling, testing, repair and use of a cable communications system in the Village and who obtains appropriate waivers from the FCC to do the same and who otherwise complies with the requirements of federal law.

FRANCHISEE ORIGINATION

Programming, exclusive of broadcast signals and community communications, carried on a cable communications system over one or more channels and subject to the exclusive contract of the franchisee, including but not limited to leased channels.

HEAD END

Electronic equipment, including, inter alia, antennas, preamplifiers, frequency converters, demodulators, modulators and related equipment, used to amplify, filter and/or convert television signals for distribution over the cable communications system's channels, including antenna tower, satellite earth stations, and any building housing any of the above equipment.

INCEPTION OF SERVICE

Providing service to a subscriber in any separately programmable area.

LAW

Any federal or state constitution or statute or local resolution or ordinance, including but not limited to those of the Village, and all rules and regulations promulgated pursuant to any of the same, now existing or hereafter adopted or amended and interpretations of the same by a court of competent jurisdiction.

LEASED CHANNEL

A channel leased by the franchisee to permit the presentation and distribution of video-audio programs or other video-audio communications over a cable channel for a specified fee.

PARENT CORPORATION

Any corporation, other than the franchisee, in an unbroken chain of corporations ending with the franchisee if, at the time of the execution of the franchise agreement, each of the corporations other than the franchisee owns stock comprising 50% or more total combined voting power of all classes of stock in one of the other corporations in such chain.

PERSON

Includes individual natural persons, firms, partnerships, joint ventures, societies, organizations, clubs, associations, trustees, trusts, corporations, companies or organizations of any kind, or any officers, agents, employees, factors of any kind of person representative of the above, in any capacity, acting either for himself/herself or for any other person, under either personal appointment or pursuant to law. Whenever used in any clause prescribing a penalty, the term "person" as applied to partnerships or associations includes the partners or members thereof and, if applied to corporations, the officers thereof. "Person" shall not include a municipal corporation.

SINGLE DROP

The connection between the cable communications system and the subscriber's location and receiver therein.

STREET

Any area established for vehicular use or the entire width between the boundary lines of every way publicly maintained when any part thereof is open for public purposes. "Street" includes, but is not limited to, highway, avenue, road, alley, right-of-way, lane, boulevard, concourse, bridge, tunnel, parks, parkways, waterways, docks, overheads, wharves and piers.

SUBSCRIBER

A person who connected to any signal or service provided or distributed by the cable communications system.

SUBSCRIPTION PROGRAMMING

Programming for which a per program, per channel, per day, per time period or other per unit charge is made.

SUBSIDIARY CORPORATION

Any corporations, other than the franchisee, in an unbroken chain of corporations beginning with the franchisee if, at the time of the execution of the franchise agreement, each of the corporations other than the last corporation in the unbroken chain owns stock comprising 50% or more of the total combined voting power of all classes of stock in one of the other corporations in such chain.

TOTAL LOCAL REVENUES

All cash, credits to the extent not passed on to customers, property of any kind or nature or other consideration whatsoever in any form arising from or attributable to the sale or exchange of cable communications services by the franchisee within the Village or in any way derived from the operation of its cable communications system, including but not limited to any interconnection between its system in the Village and any system within the Village, or the sale, exchange or cablecast of any programming developed on or for community communications channels of the franchisee's system. Such sum shall not include any sales, service, occupation or other excise tax to the extent that such taxes are charged separately from normal service charges and are remitted by the franchisee directly to the taxing authority.

UPSTREAM CHANNEL

A channel through which television signals emanating from a subscriber's location and/or the location of any other entity except the main transmitting facility of the franchisee are transmitted via the cable communications system to the system head end or other appropriate point.

USER

A person utilizing a cable communications channel and/or production facilities for purposes of production and/or transmission of electronic or other signals as opposed to receipt thereof as a subscriber.

VILLAGE

The Village of Stratford.

VILLAGE CLERK

The Clerk of the Village.

The singular includes the plural, and the plural includes the singular. Words used in the past or present tense include the future.

Unless otherwise provided in this chapter and unless the context or the manifest intent of the Board clearly indicates otherwise, terms, phrases, words and their derivations not defined in this chapter shall have the meanings ascribed to them in the rules and regulations of the FCC.

Any word not specifically defined shall be construed according to its common usage, unless the context or the manifest intent of the Village Board clearly indicates otherwise.

§ 222-3 Service of notice.

All notices required to be given to the Village under any provision of this chapter shall be deemed served when delivered by hand in writing to the Village Clerk's office during normal business hours.

All notices required to be given to the franchisee under any provision of this chapter shall be deemed served:

When delivered by hand in writing to the person designated in the agreement awarding a franchise made in accordance with the provisions of this chapter; or

When regularly mailed to the person so designated.

§ 222-4 No liability or warranty.

This chapter shall not be construed to create or hold the Village responsible or liable for any damage to persons or property by reason of any inspection or reinspection authorized in this chapter or failure to inspect or reinspect, nor shall the issuance of any permit or license or the approval or disapproval of any equipment authorized in this chapter or any agreement executed pursuant to this chapter constitute any representation, guarantee or warranty of any kind by, or create any liability upon, the Village or any official, agent or employee thereof.

§ 222-5 Length of franchise.

Any franchise awarded by the Village by an agreement in accordance with this chapter shall be a nonexclusive franchise for the use of the streets, public ways or public places within the Village for a negotiated term of not more than 15 years for the erection, construction, reconstruction, operation, maintenance, dismantling, testing and use of a cable communications system.

§ 222-6 Judiciary and regulatory committee.

The judiciary and regulatory committee shall have the following specific functions. It shall:

Advise the Board regarding general policy relating to the services provided to subscribers and to users by the franchisee.

Advise the Board regarding the operation and use of any community communications channels with a view towards maximizing the diversity of programs and services to subscribers and users.

Report to the Board on matters which may constitute a violation of this chapter.

Request comments and encourage suggestions regarding cable communications.

Advise the Board on proposed transfer of the cable communications activities.

Perform such other functions as the Board may direct.

§ 222-7 Franchise territory.

Any agreement awarding a franchise to operate a cable communications system in accordance with this chapter shall apply to its operation throughout the limits of the Village.

The franchisee shall endeavor to offer cable communications service to all serviceable residents of the Village. The term "serviceable residents" shall be construed to mean all residents who are currently passed by an activated cable plant or those that are in an area where residential density reaches 25 homes per plant mile. To the extent that the franchisee intends not to provide service to any specific area, street, building or other location, the franchisee shall designate them and clearly indicate in its proposal to enter into an agreement awarding a franchise in accordance with this chapter the technical, legal or economic reason for its inability to provide service in the enumerated locations. The franchisee shall file a copy of its extension policy for approval by the Board.

The right is specifically reserved to the Board to grant variances to the franchise territory portion of this chapter for reasonable cause.

The franchisee shall commence operation of its cable communications system within six months of the date of the execution of any agreement awarding a franchise in accordance with this chapter. For purposes of this subsection, operation shall be deemed to have commenced with the retransmission and simplification of television signals on a regular basis to residences or other structures.

Upon a request for service from any person residing in the Village, the franchisee shall, within 60 days of such request, furnish the requested service; provided, however, that the location to be serviced is within the construction guidelines of this section and §§ 222-8 and 222-9 of this chapter.

The committee may extend, in writing, the time period for the performance of any act required under this section and §§ 222-8 and 222-9 of this chapter.

§ 222-8 Construction.

In the event that the franchisee asserts that any of the occurrences listed in § 222-29A of this chapter has taken place, the franchisee shall notify the committee within five days of any expected reasonable delay in complying with the construction schedule in this chapter. If the committee determines that such events in fact have occurred, the franchisee's delay shall not be deemed to be a violation of this chapter. Otherwise, it shall be deemed a material breach of any agreement awarding a franchise in accordance with this chapter and shall subject the franchisee to the provisions of § 222-29 of this chapter and to all of the penalties and remedies prescribed in such agreement as well as all other remedies, both legal and equitable, which are available to the Village.

Within six months of the date of execution of any agreement awarding a franchise in accordance with this chapter, the franchisee shall offer to install, make operational and render cable communications services to all serviceable residents within the Village in accordance with this chapter and any agreement awarding a franchise in accordance with this chapter.

The franchisee shall apply to the FCC for all waivers and otherwise comply fully with FCC regulations and federal law within 30 days of the execution of any agreement awarding a franchise in accordance with this chapter. The franchisee shall apply for all other permits required to commence construction or operate its cable communications system within 30 days of the receipt of notification by the Commission to do so. Failure to apply for such waivers or permits and to comply with federal law within the time specified in this chapter shall be deemed to be a violation of this chapter and a material breach of any agreement awarding a franchise in accordance with this chapter and shall subject the franchisee to the procedure in § 222-29 of this chapter and to all penalties and remedies prescribed in such agreement as well as all other remedies, both legal and equitable, which are available to the Village.

§ 222-9 Installation and extension of service.

The franchisee shall extend cable to new developments and subdivision and to other areas, including but not limited to blocks or streets, simultaneously with the installation of electric power and telephone utility facilities, subject to the extension policy.

In all cases where new developments and subdivision are to be constructed and to be served in whole or in part by both underground power and telephone utilities, the owner or developer of such areas shall provide the franchisee the trench, backfill and all necessary substructures for television cables in order that the franchisee may install all necessary electronic cable communications facilities. In no event shall such undergrounding be at any cost or expense to the Village.

Failure to install cable in accordance with the construction timetable as provided in §§ 222-7 and 222-8 of this chapter, or to extend cable within 90 days of a subscriber's request for service to new developments, subdivision or other areas in instances controlled by Subsections A and B of this section, shall constitute a violation of this chapter and a material breach of any agreement awarding a franchise in accordance with this chapter and shall subject the franchisee to the provisions of § 222-29 and to all the penalties and remedies prescribed in such agreement as well as all other remedies, both legal and equitable, which are available to the Village. Continued failure to install or extend cable communications service during any subsequent ninety-day period shall constitute a separate violation and breach and shall subject the franchisee to the remedies provided hereinbefore.

Basic service and such cable communications service as may be provided for by any agreement awarding a franchise in accordance with this chapter shall be made available to individual dwellings, residences, including apartment, condominium, cooperative or association buildings, institutions, organizations, businesses and all other entities within the limits of the Village, as the same now or in the future may exist, in accordance with the provisions of §§ 222-7E and 222-8B and all laws governing rights of property and privacy.

Multiple dwellings.

An owner or operator of an apartment, condominium, nursing home, hospital, mobile home park or another multiple-dwelling housing facility in which other persons reside may require:

Installation to conform to reasonable conditions necessary to protect the safety, appearance and functioning of the premises.

The cable operator, occupant or tenant to agree to indemnify the owner or operator for any damages caused by the installation, operation or removal of such facilities.

The cable operator shall notify the owner or operator of intent to install cable television service, and the cable operator shall thereafter coordinate such installation during reasonable business hours.

A person may not request or accept payment in any form for permitting cable services on his or her property or premises and may not discriminate in rental charges or otherwise between tenants or occupants who receive cable services and those who do not. This subsection shall not prohibit single-point billing.

Neither a cable operator nor an owner of property may take actions which would diminish or interfere with the privilege of the owner, tenant or other occupant of the owner's building to use or avail himself or herself of master or individual antenna equipment or cable services.

The franchisee shall provide, upon request, at no charge, within the franchise area, one connection for basic service to Village buildings, as the Village may hereafter designate. Such buildings must be owned, operated and used only for Village purposes. The Village reserves the right at its expense to extend service to as many areas within such buildings as it deems desirable without payment of any additional fee to the franchisee. All such extensions, however, shall be accomplished in such a way so as not to affect the technical integrity of the telecommunications network.

Residential installation, including multiple drops, shall be offered as the feeder line passes the dwelling unit as the feeder line is activated.

All installation other than residential shall be initially confined to a single drop at the port as requested by subscribers and shall occur as the feeder line passes the dwelling unit as the feeder line is activated.

All the franchisee's cable equipment shall be removed within a reasonable time, such time not to exceed one month, from a subscriber's property at the subscriber's request.

Where such removal interferes with the provision of cable communications services to another subscriber, it shall be the obligation of the subscriber so affected to secure a legal agreement which will enable the franchisee to provide the subscriber the cable communications service the subscriber desires.

Where attachment to or use of a nonsubscriber's property is necessary for the provision of cable communications services to a subscriber, it shall be the obligation of such subscriber to secure a legal agreement which will enable the franchisee to provide the subscriber the cable communications service the subscriber desires.

Nothing in this chapter shall be construed as a representation, promise or guarantee by the Village that any permit or other authorization required under any Village law for the construction or installation of a cable communications system shall be issued.

§ 222-10 Customer service.

Cable system office hours and telephone availability.

The cable operator will maintain a local, toll-free or collect call telephone access line which will be available to its subscribers 24 hours a day, seven days a week.

Trained company representatives will be available to respond to customer telephone inquiries during normal business hours.

After normal business hours, the access line may be answered by a service or an automated response system, including an answering machine. Inquiries received after normal business hours must be responded to by a trained company representative on the next business day.

Under normal operating conditions, telephone answer time by a customer representative, including wait time, shall not exceed 30 seconds when the connection is made. If the call needs to be transferred, transfer time shall not exceed 30 seconds. These standards shall be met no less than 90% of the time under normal operating conditions, measured on a quarterly basis.

The operator will not be required to acquire equipment or perform surveys to measure compliance with the telephone answering standards above unless an historical record of complaints indicates a clear failure to comply.

Under normal operating conditions, the customer will receive a busy signal less than 3% of the time.

Communications between cable operators and cable subscribers.

Notifications to subscribers.

The cable operator shall provide written information on each of the following areas at the time of installation of service, at least annually to all subscribers, and at any time upon request:

Products and services offered;

[2]

Prices and options for programming services and conditions of subscription to programming and other services;

[3]

Installation and service maintenance policies;

[4]

Instructions on how to use the cable service;

[5]

Channel positions to programming carried on the system; and

[6]

Billing and complaint procedures, including the address and telephone number of the local franchise authority's cable office.

Customers will be notified of any changes in rates, programming services or channel positions as soon as possible through announcements on the cable system and in writing. Notice must be given to subscribers a minimum of 30 days in advance of such change if the change is within the control of the cable operator. In addition, the cable operator shall notify subscribers 30 days in advance of any significant changes in the other information required by the preceding subsection.

Billing.

Bills will be clear, concise and understandable. Bills must be fully itemized, with itemizations including, but not limited to, basic and premium service charges and equipment charges. Bills will also clearly delineate all activity during the billing period, including optional charges, rebates and credits.

In case of a billing dispute, the cable operator must respond to a written complaint from a subscriber within 30 days.

Refunds. Refund checks will be issued promptly, but no later than either:

The customer's next billing cycle following resolution of the request or 30 days, whichever is earlier; or

The return of the equipment supplied by the cable operator if service is terminated.

Credits. Credits for service will be issued no later than the customer's next billing cycle following the determination that a credit is warranted.

§ 222-11 Service standards.

Installations, outages and service calls. Under normal operating conditions, each of the following four standards will be met no less than 95% of the time measured on a quarterly basis:

Standard installations will be performed within seven business days after an order has been placed. Standard installations are those that are located up to 125 feet from the existing distribution system.

Excluding conditions beyond the control of the operator, the cable operator will begin working on service interruptions promptly and in no event later than 24 hours after the interruption becomes known. The cable operator must begin actions to correct other service problems the next business day after notification of the service problem.

The appointment window alternatives for installations, service calls, and other installation activities will be either a specific time or, at maximum, a four-hour time block during normal business hours. (The operator may schedule service calls and other installation activities outside of normal business hours for the express convenience of the customer.)

An operator may not cancel an appointment with a customer after the close of business on the business day prior to the scheduled appointment.

If a cable operator representative is running late for an appointment with a customer and will not be able to keep the appointment as scheduled, the customer will be contacted. The appointment will be rescheduled, as necessary, at a time which is convenient for the customer.

Normal operating conditions. The term "normal operating conditions" means those service conditions which are within the control of the cable operator. Those conditions which are not within the control of the cable operator include, but are not limited to, natural disasters, civil disturbances, power outages, telephone network outages, and severe or unusual weather conditions. Those conditions which are ordinarily within the control of the cable operator include, but are not limited to, special promotions, pay-per-view events, rate increases, regular peak or seasonal demand periods, and maintenance or upgrade of the cable system.

Service interruption. The term "service interruption" means the loss of picture or sound on one or more cable channels.

§ 222-12 Channels to be provided.

The cable system, as a part of any conglomerate of commonly owned and technically integrated cable television systems having subscribers, or any system having subscribers which is not part of such a system conglomerate, shall comply with the following requirements respecting the number and designation of access channels:

Each such system shall, to the extent of its available activated channel capability, comply with the following requirements:

Public access channel. Each such system shall maintain at least one specially designated, noncommercial public access channel available on a first-come nondiscriminatory basis.

Educational access channel. Each such system shall maintain at least one specially designated channel for use by local educational authorities. Educational authorities shall include but shall not be limited to Stratford Junior and Senior High Schools.

Local government access channel. Each such system shall maintain at least one specially designed channel for local government uses.

Until such time as there is demand for each channel full time for its designated use, public, educational, government and leased access channel programming may be combined on one or more cable channels. To the extent time is available therefor, access channels may also be used for other broadcast services.

Each such system shall, in any case, maintain at least one full channel for shared access programming; provided, however, that, in the case of systems in operation on the effective date of this chapter, if insufficient activated channel capability is available to provide one full channel for shared access programming, it shall provide whatever portions of channels are available for such purposes. Each such system in meeting its access obligations shall make reasonable efforts in programming its bandwidth to avoid the displacement of access service.

Each such system shall make available all other unused channels on an as-needed basis up to the maximum allowed by FCC rules, in addition to those which are part of the system's activated channel capability, for the purposes specified in Subsection A(1) of this section; provided, however, that in making available such additional channels, the system operator shall be under no obligation to install converters.

Equipment requirement. Each such system shall have available equipment for local production and presentation of cablecast programs other than automated services and permit its use for the production and presentation of public access programs. No such system shall enter into any contract, arrangement or lease for use of its cablecasting equipment for a substantial portion of time for public access programming.

Program content control. Each such system shall have no control over the content of access cablecast programs; however, this limitation shall not prevent it from taking appropriate steps to ensure compliance with the operating rules described in Subsection B(4) of this section.

Assessment of cost.

The channels described in Subsection A of this section shall be made available free of charge until five years after the system first offers channel time for such cablecasting purposes, except educational and government channels.

One of the public access channels described in Subsection A of this section shall always be made available without charge.

Charges for equipment, personnel and production of public access programming shall be reasonable and consistent with the goal of affording users a low-cost means of television access. No charges shall be made for live public access programs not exceeding five minutes in length.

Operating rules.

The cable system shall promulgate and publish for review by the appropriate regulatory authorities its rules and regulations for the use of the public access channel. The rules shall specifically provide for first-come nondiscriminatory access. The cable system shall maintain a log of public access use for a period of two years. The cable system shall keep confidential the names and addresses of all persons requesting use of or using the channel.

The cable system shall in conjunction with the educational authorities draft and promulgate rules of operation for the use of the educational access channel. These rules shall be reviewed with the appropriate regulatory authorities. The cable system shall maintain a log of the use of the channel for a period of two years.

The cable system shall promulgate and publish rules regarding the use of the leased channel. The cable system shall maintain a log of the use of the channel for a period of two years. The names and addresses of all persons or groups requesting use or using the channel shall be kept confidential.

(d)

All operating rules governing the access channel shall be filed with the Village and shall be available for public inspection.

The franchisee shall make available its facilities for an emergency override audio alert whereby a designee of the Village, in times of crisis, may introduce an audio message on all telecommunications networks on appropriate channels simultaneously.

§ 222-13 Technical performance and standards.

All performances and technical standards governing construction, reconstruction, installation, operation, testing, use, maintenance and dismantling of the cable communications system provided for in this chapter shall be in accordance with all applicable FCC and other federal, state and local laws and regulations; provided, however, that the Village may require such standards as it deems necessary unless specifically prevented from doing so by law.

§ 222-14 Local regulatory framework.

The Village Board expressly reserves the right and shall be allowed by franchisee to amend this chapter or any other ordinances of the Village at any time.

The committee shall have the following powers and duties:

Mediating disputes or disagreements between a subscriber and the franchisee at either's request, following investigation.

Reviewing and auditing all reports and filings submitted by the franchisee to the FCC and to the Village pursuant to this chapter.

Submitting regulations regarding the construction, reconstruction, operation, maintenance, dismantling, testing or use of the cable communications system established pursuant to an agreement awarding a franchise in accordance with this chapter to the committee for promulgation.

Reviewing all rules and regulations promulgated by the franchisee or the Village regarding community communications and basic services in order to ensure compliance by the franchisee.

Assuring that all rates and rules pertinent to the operation of the cable communications system in accordance with this chapter are available for inspection by the general public during normal business hours. Copies of such rates, rules and regulations, which are declared to be documents of public record, shall be made available by the committee to those who request the same on a cost per copy basis.

Conferring and coordinating with the franchisee on the interconnection of the cable communications system created in accordance with this chapter with any communications system, not limited to a cable communications system, whatsoever both within and without the Village.

(7)

Developing funding proposals and administering any grant funds obtained by the Village for the ongoing development of the cable communications system to be constructed and operated in accordance with this chapter.

(8)

Retaining consultants' services as authorized by the Board in order to ascertain the best use of public facilities and channels of the system and for other consulting services.

(9)

Reporting to the Board at the Board's request.

(10)

Performing any other duties assigned under the provisions of this chapter and other legislation hereafter enacted by the Board or such other duties as the Village President assigns.

(11)

Reviewing all changes in technology to be implemented no less than 90 days prior to installation.

(12)

Requesting proposals no less than 24 months prior to the expiration date of any cable franchise contract.

The franchise fee will be utilized as directed by the committee.

§ 222-15 Selection of franchisee.

It shall be unlawful for any person to commence or engage in the business of constructing or operating a cable communications system within the Village without having been awarded and having duly executed an agreement awarding a franchise in accordance with this chapter.

Any person submitting a proposal to enter into an agreement for the award of a franchise in accordance with this chapter shall provide all information required by this chapter and such other information as may be solicited in the request for proposals or otherwise required. Each proposal shall be responsive to the questions soliciting the information and shall substantially and materially supply all of the information so solicited. The failure, neglect, or refusal to provide any of such information shall render a proposal invalid and it shall be given no consideration unless such failure or neglect is unintentional and such information is not provided upon 30 days' written notice.

§ 222-16 Bonds.

Proposed bond. Each applicant for a franchise under this chapter shall submit a proposal bond in a form acceptable to the Village Clerk or a certified check on a bank that is a member of the Federal Deposit Insurance Corporation, payable to the order of the Village in the amount of $15,000.

Performance bond. A franchisee shall maintain, and by its acceptance of any franchise granted under this chapter agrees that it will maintain through the term of the franchise, or any renewal or extension thereof, a faithful performance bond running to the Village, with at least two good and sufficient sureties and other financial guaranties approved by the Village Clerk, in the penal sum total of $15,000 conditioned upon the faithful performance of the franchisee and upon the further condition that in the event the franchisee shall fail to comply with any law, ordinance or regulation governing the franchise, there shall be recoverable jointly and severally from the principal and surety of the bond any damages or loss suffered by the Village as a result, including the full amount of any compensation, indemnification or cost of removal or abandonment of any property of the franchisee, plus a reasonable allowance for attorney fees and costs, up to the full amount of the bond. The bond shall contain the following endorsement: "It is hereby understood and agreed that this bond may not be canceled nor the intention not to renew be stated until 30 days after receipt by the Village Clerk by registered mail of two copies of a written notice of such intent to cancel or not renew."

Forfeit of proposal bond. Should the applicant fail or refuse to accept a franchise under this chapter or fail or refuse to furnish the performance bond as set forth in this chapter within 30 days after written notification of the award of a franchise by the Village, said applicant will be considered to have abandoned its proposal and the Village shall enforce the proposal bond in accordance with its terms or retain the proceeds of the certified check.

Return of proposal bond. Proposal bonds or certified checks received in lieu thereof from applicants whose proposals are not accepted by the Village or successful applicants unless forfeited shall be returned to the applicant as soon as the successful applicant is determined.

Bond evidence to be filed with the 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 Clerk during the term of any franchise granted under this chapter, or any renewal thereof.

§ 222-17 Franchise fee.

There shall be a franchise fee paid to the Village in an amount equal to 3% of the franchisee's annual gross income derived from the operation of the cable system. The fee shall be collected as directed by the committee.

To verify gross revenues and for other reasons deemed necessary by the Village, reports, audits, books, records and/or anything else which the Village deems helpful and which is not inconsistent with federal law shall be provided to the Village by the franchisee, in forms approved by the committee.

Each of such reports shall contain a notarized verification by the chief financial officer or his agent of the franchisee, and such reports may at the option of the Village be verified annually by an independent certified public accountant selected by the Village.

The acceptance of any payment required under this chapter by the Village shall not be construed as an acknowledgment that the amount paid is the correct amount due, nor shall such acceptance of payment be construed as a release of any claim which the Village may have for additional sums due and payable.

All fee payments shall be subject to audit by the Village Treasurer and to assessment or refund if the payment is found to be in error.

In the event that an audit results in an assessment by and an additional payment to the Village, such additional payment shall be subject to interest at the rate of 18% per year and to a penalty of 18% per year, which shall be due and payable immediately.

The Board shall have the authority to waive all or any portion of the fee for any period of time it wishes.

The franchisee shall, upon request, install without charge, and provide and maintain for the entire term of the franchise agreement, a single drop and basic service to the Village Hall.

Any person submitting a proposal to enter into an agreement for the award of a franchise may offer to the Village any consideration that it wishes.

Failure to comply strictly with this section shall be deemed to be a violation of this chapter and a material breach of the agreement awarding a franchise in accordance with this chapter and shall subject the franchisee to the provisions of § 222-29 of this chapter and to all penalties and remedies prescribed in the agreement as well as all other remedies, both legal and equitable, which are available to the Village.

Nothing in this chapter shall be construed to limit the liability of the franchisee for all applicable federal, state and local taxes, including, inter alia, applicable local charges and/or local assessments and/or local taxes.

§ 222-18 Transfer or sale of franchise.

In the event that the franchise is not renewed for reasons other than the material breach of the franchise or reasons unrelated to the performance of the franchise holder or upon receipt of an application for assignment of the franchise, the franchisee shall first offer the telecommunications network for sale to the Village at a fair and just market value, which value shall include the fair market value of the system as a going concern, including the franchise itself and the rights and privileges granted by the Village.

When a franchise is not renewed pursuant to the provisions of § 222-28 of this chapter because of a material breach of the franchise, the franchisee shall first offer the telecommunications network for sale to the Village at a fair and just market value, which value shall not include any value for the franchise itself or for any of the rights or privileges granted by the Village.

In the event fair market value becomes an issue and the determination of fair market value cannot be negotiated or determined, the value shall be determined by an impartial appraisal procedure wherein the franchisee and the Village shall each choose an appraiser and the valuation determined by the appraisers shall be considered the fair market value at which the system shall be offered to the Village. The cost of the appraisal shall be shared equally by the Village.

The Village shall have 90 days to exercise the right of first refusal to purchase the network, the 90 days commencing on the day the fair market value of the system is determined either through negotiation or the arbitration procedure. If the Village does not exercise its option to purchase and the telecommunications network is not sold to another operator which has obtained a franchise from the Village in a reasonable time, the grantee, upon request by the Village, shall promptly remove all its plant. If the Village determines not to exercise its right of first refusal, it shall not unreasonably refuse to renew or grant a cable television franchise during a reasonable interim period. While transfer of the system and franchise is being negotiated, arranged or ordered, the franchisee may be required to continue service to the public unless for reason beyond the control of the franchisee the operation will be economically infeasible to the franchisee.

If for any reason the franchisee is required to terminate its franchise and remove its plant, structures, etc., then in removing its plant, structures and equipment the franchisee shall refill at its own expense any excavation that shall be made by it and shall leave all public ways and places in as good condition as that prevailing prior to the company's removal of its equipment and appliances without affecting the electric and telephone cables, wires or attachments. The Village shall inspect and approve the restoration after removal. Liability insurance and indemnity and the performance bond shall continue in full force and effect during the period of removal.

§ 222-19 Obscenity.

The franchisee and all other persons using or making use of the cable communications system shall comply in all respects with all federal, state and local laws regarding obscenity.

Failure of the franchisee to comply strictly with this section insofar as required by law shall be deemed to be a violation of this chapter and a material breach of the agreement awarding a franchise in accordance with this chapter and shall subject the franchisee to the provisions of § 222-29 of this chapter and to all penalties and remedies prescribed in the agreement as well as all other remedies, both legal and equitable, which are available to the Village.

§ 222-20 Indemnity and insurance.

The Village shall not at any time be liable for any injury or damage occurring to a person or property from any cause whatsoever arising from the use, operation or condition of the franchisee's cable communications system.

The franchisee shall indemnify, save and hold harmless and defend the Village from all liens, charges, claims, including but not limited to libel, slander, invasion of privacy and unauthorized use of any trademark, trade name or service mark, demands, suits, actions, fines, penalties, losses, costs, including but not limited to legal fees and court costs, judgments, injuries, liabilities or damages, in law or equity, of any and every kind and nature whatsoever, except when caused by or arising out of any negligence of the Village, its officers, servants, agents, employees or contractors, or otherwise, arising out of or in any way connected with the installation, operation, maintenance or condition of the franchisee's cable communications system.

The franchisee shall obtain and keep in force and effect during the entire term of any agreement awarding a franchise in accordance with this chapter or any extension thereof insurance coverage in a minimum amount of $2,000,000 insuring the above indemnification requirements for the benefit of the Village. The franchisee shall deliver to the Village on the date of execution of any agreement awarding a franchise in accordance with this chapter a policy of insurance duly executed by the officers or authorized representatives of a responsible and nonassessable insurance company evidencing this coverage for the benefit of the Village, which policy of insurance shall be noncancellable and provide for at least 90 days' prior written notice to the Village of the insurer's intention not to renew such policy or to cancel, replace or materially alter or change the same, such notice to be given as provided in § 222-4 of this chapter.

The franchisee shall obtain, effective from the date of execution of any agreement awarding a franchise in accordance with this chapter, and shall keep in force and effect during the entire term of such agreement or any extension thereof, a policy of comprehensive general liability insurance, duly executed by the officers or authorized representative of a responsible and nonassessable insurance company evidencing the following minimum coverages for the benefit of the Village as an additional insured, which insurance shall be noncancellable except upon 90 days' prior written notice to the Village, such notice to be given in accordance with § 222-3 of this chapter.

Minimum limits shall be as follows:

Bodily injury, including death: $1,000,000 each occurrence; $2,000,000 aggregate.

Property damage: $1,000,000 each occurrence; $2,000,000 aggregate.

A copy of such policy shall be delivered to the Village upon the execution of such agreement.

At least 90 days' prior written notice shall be given to the Village of the insurer's intention not to renew such policy or not to replace the same or materially to alter or change the same, such notice to be given in accordance with § 222-3 of this chapter. All premiums on such policy shall be at the expense of the franchisee. None of the provisions of this chapter or of any insurance policy required by the Village under this chapter, nor the receipt of any proceeds recovered by the Village under any such policy, nor any term or condition of any agreement awarding a franchise in accordance with this chapter, shall be construed to excuse the franchisee from the faithful performance of its obligation or limit its liability under any of the provisions of this chapter or of any agreement awarding a franchise in accordance with this chapter.

The franchisee shall obtain, effective from the date of execution of any agreement awarding a franchise in accordance with this chapter, and shall keep in full force and effect during the entire term of such agreement or any extension thereof physical damage insurance covering losses arising in respect of the following realty and personalty incident to the franchisee's cable communications system: all buildings, offices, studios or other realty and the equipment contained therein, the head end and subhead ends, the transmission tower, and all earth stations and all vehicles. No physical damage insurance shall be required for trunk, distribution, feeder or associated drop lines, converters or amplifiers. For the initial five years of the term of any franchise agreement, the amount of such physical damage insurance shall not be less than the replacement value of the property required to be covered in this chapter, subject to a deductible established in the franchise agreement. For each succeeding calendar year during the term of the franchise agreement, or any extension thereof, such physical damage insurance shall be in such amounts as the committee shall reasonably determine to be adequate to provide the replacement value of the property required to be covered in this chapter, subject to such deductible amount as the committee may determine to be reasonable for any loss arising from and all damage to or destruction of the property insured. Each policy of physical damage insurance shall name the Village as an additional insured, as its interest may appear. For purposes of this chapter "physical damage insurance" means insurance covering loss arising from fire, lightning, windstorm, hail, snow, explosion, riot and civil commotion, smoke and such other perils as are customarily covered by extended coverage insurance, including vandalism and malicious mischief. The policy of insurance required under this subsection shall be noncancellable except upon 90 days' prior written notice to the Village, such notice to be given in accordance with § 222-3 of this chapter. At least 90 days' prior written notice shall be given to the Village of the insurer's intention not to renew such policy or not to replace or materially to alter or change the same, such notice to be given in accordance with § 222-3.

With respect to each policy of insurance required to be obtained and kept in force by the franchisee and described in this section, the franchisee shall be solely responsible for the payment of premiums due for the insurance thereunder. The franchisee shall furnish written proof of the payment of such premiums to the Village on or before the due date.

No policy of insurance required under the provisions of this section shall be replaced, renewed, canceled or materially changed or altered in any way except upon the express written authorization of the Village. No change shall be authorized which would violate the provisions of this section or which would materially affect the protection such policies afford the Village.

The unauthorized cancellation, replacement, renewal or material change of any policy of insurance required under this section shall subject the franchisee to the provisions of § 222-29 of this chapter and shall be deemed a material breach of any agreement awarding a franchise in accordance with this chapter and shall subject the franchisee to all penalties and remedies prescribed therein and to all other remedies, legal or equitable, which are available to the Village.

At any time any policy of insurance required under this chapter is replaced, renewed or intended by the insurer not to be renewed or replaced or materially altered or changed, with or without the express written authorization of the Village, the franchisee shall obtain and furnish to the Village, within five days of such action, such policy, or copies of such policy, as the case may be, or the insurer's notification of its intent not to renew or replace such policy.

§ 222-21 Rates.

The Board reserves the right to regulate rates as allowed by law.

The franchisee shall file with the Village on December 31 of each year a full schedule of all subscriber and user rates and all other charges, including but not limited to pay television and discrete services, made in connection with the cable communications system. All rates shall be published and on file in the office of the Village Clerk.

Nothing in this chapter shall be construed to prohibit the reduction or waiving of charges.

The franchisee may require all subscribers to pay for basic service not more than two months in advance. The franchisee shall require no other advancement of payment for basic service; provided, however, that nothing in this chapter shall be construed to prohibit an advancement of payment for installation of cable communications services.

In the event that a subscriber fails to pay a properly due and owing fee or charge, the franchisee may disconnect the subscriber's service outlet, upon giving at least 10 days' written notice thereof.

The franchisee shall establish and conform to the following policy regarding refunds to subscribers and users:

If the franchisee collects a deposit or advance charge on any service or equipment requested by a subscriber or user, the franchisee shall provide such service or equipment within 30 days of the collection of the deposit or charge or it shall refund such deposit or charge within five days thereafter unless other arrangements are agreed upon in writing between the franchisee and its customer.

Nothing in this chapter shall be construed to relieve the franchisee of any responsibility to subscribers or users under any contractual agreements into which it enters with them.

Nothing in this section shall be construed as limiting the franchisee's liability for fines or penalties which may be imposed under this chapter or any agreement awarded in accordance with this chapter for the violation or breach of any of its provisions.

Nothing in this section shall be construed to limit the franchisee's liability for damages because of its failure to provide the service for which the deposit or charge was made.

In the event that a subscriber terminates basic service during the first 12 months of service because of the failure of the franchisee to render the service in accordance with the requirement set forth in this chapter or in any agreement awarded in accordance with this chapter, as determined by the committee, the franchisee shall refund to such subscriber an amount equal to the initial applicable installation or reconnection charge paid by the subscriber. In the event that such subscriber has made an advance payment, the amount so advanced shall be refunded to such subscriber by the franchisee. Nothing in this section shall be construed to relieve the franchisee of any liability established under any agreement awarding a franchise in accordance with this chapter.

In the event that a subscriber terminates basic service prior to the end of a prepaid period, the pro rata portion of any prepaid subscriber fee which represents payment for services which are no longer to be rendered shall be refunded promptly, but in no case more than 30 days after receipt of the request for termination.

The franchisee shall not charge a converter security deposit greater than such converter's actual cost to the franchisee. Any converter security deposit collected by the franchisee shall be returned to the subscriber upon termination of service by the subscriber and return of such converter undamaged, with allowance for reasonable wear and tear, and payment of any outstanding balance due and payable.[1]

Editor's Note: Amended at time of adoption of Code (see Ch. 1, General Provisions, Art. II).

§ 222-22 Police powers.

Nothing in this chapter or in any agreement awarding a franchise in accordance with this chapter shall be construed as an abrogation by the Village of any of its police powers.

§ 222-23 Use of streets and pole attachments.

Before commencing construction of its cable communications system in, above, over, under, across, through or in any way connected with the streets, public ways or public places of the Village, the franchisee shall first obtain the written approval of all appropriate agencies, including but not limited to all Village departments and public utilities. Applications for such approval shall be made in the form prescribed by the appropriate agency.

Upon obtaining such written approval, the franchisee shall give the appropriate agency written notice within a reasonable time of proposed construction, but in no event shall such notice be given less than 10 days before such commencement.

Any person who submits a proposal to enter into an agreement for the award of a franchise in accordance with this chapter shall include therein proposed agreements for the use of utility poles with all utility companies whose poles shall be used in or affected by the construction of the proposed cable communications system, which agreement shall become effective on the date of execution of this agreement awarding a franchise in accordance with this chapter in the event that such person is selected to be the franchisee.

It shall be unlawful for the franchisee or any other person to open or otherwise disturb the surface of any street, sidewalk, driveway, public way or other public place for any purpose whatsoever without obtaining proper approval to do so and after proceeding in the manner prescribed in Subsections A and B of this section. Violation of this section shall subject the franchisee to the provisions of § 222-29 of this chapter and shall be deemed a material breach of the agreement awarding a franchise in accordance with this chapter and shall subject the franchisee to all penalties and remedies prescribed therein and to all other remedies, legal or equitable, which are available to the Village. The franchisee shall restore any street it has disturbed in accordance with the provisions of this Code and shall, at its own cost and expense, restore and replace any other property disturbed, damaged or in any way injured by or on account of its activities to as good as the condition such property was in immediately prior to the disturbance, damage or injury or pay the fair market value of such property to its owner, at the option of the owner.

The franchisee shall, at its own cost and expense, protect, support, temporarily disconnect, relocate in the same street or other public place or remove from such street or other public place any of its property when required to do so by the Village because of street or other public excavation, construction, repair, regrading or grading, traffic conditions, installation of sewers, drains, water pipes, Village-owned power or signal lines, or tracks, vacation or relocation of streets or any other type of structure or improvements of a public agency or any other type of improvement necessary for the public health, safety and welfare.

Nothing in this chapter or any agreement awarding a franchise in accordance with this chapter shall be construed as authorizing the franchisee to erect and maintain new poles in areas serviced by existing poles. The franchisee shall obtain written approval from appropriate agencies, such approval not to be withheld unreasonably, before erecting any new poles or constructing underground conduits where none exist at the time the franchisee seeks to install its cable communications system.[1]

Editor's Note: Amended at time of adoption of Code (see Ch. 1, General Provisions, Art. II).

The franchisee shall maintain all wires, conduits, cables and other real and personal property and facilities in good condition, order and repair.

The franchisee shall keep accurate, complete and current maps and records of its system and facilities and shall furnish as soon as they are available two complete copies of such maps and records to the committee and two complete copies of the maps and records to the Village Department of Public Works. Such maps and records shall be available for inspection by the public during normal business hours.[2]

[2]

Editor's Note: Amended at time of adoption of Code (see Ch. 1, General Provisions, Art. II).

The franchisee shall not place or cause to be placed poles or other equipment in such a manner as to interfere with the rights or reasonable convenience of adjoining property owners or with any gas, electric or telephone utility's fixtures or property, nor shall the franchisee place, or cause to be placed, such poles or equipment in the right-of-way between the cartway and the right-of-way boundary except with the written approval of the appropriate Village agency.

The franchisee shall comply with all FCC rules and regulations governing the construction and installation of cable communications systems. In addition:

All cables and wires shall be installed parallel with existing telephone and electric utility wires whenever possible.

Multiple configurations shall be in parallel arrangement and bundled, in accordance with engineering and safety considerations.

All installations shall be underground in those areas of the Village where both telephone and electric utilities' facilities are underground at the time of the installation of the franchisee's cable communications system.

In areas where either a telephone or electric utility's facilities are above ground at the time of the installation of the franchisee's cable communications system, the franchisee may install its service above ground only upon the condition, which shall be included in any agreement awarding a franchise in accordance with this chapter, that at such time as those facilities are placed underground by the telephone and electric utility companies or are required to be placed underground by the Village, the franchisee shall likewise place its facilities underground at its sole cost and expense, unless other utilities are paid for such costs, in which case the franchisee would be entitled to its pro rata share of such costs.

The Village Department of Public Works may, when it feels it is necessary, notify the franchisee of street improvements where paving, regrading, grading or resurfacing of a permanent nature is involved.[3]

Such notice shall describe the nature and character of the improvements, the streets upon which they shall be made, the extent of the improvements, and the work schedule for the project.

The Village shall allow the franchisee to make additions, alterations or repairs to its facilities in advance of the Village's commencement of such improvements so as to permit the franchisee to maintain continuity of service and so as not to hinder or in any way delay the Village's work.

[3]

Editor's Note: Amended at time of adoption of Code (see Ch. 1, General Provisions, Art. II).

The franchisee shall, at the request of any person holding a permit to move a building, temporarily raise or lower its wires to permit the moving of such building.

Such temporary removal, raising or lowering of wires shall be at the cost and expense of the person requesting the same, and the franchisee shall have the authority to request payment for the same in advance before complying with such request.

Any person making such a request from the franchisee shall give not less than 10 working days' notice of the contemplated move.

Any interruption in service occasioned by the temporary removal, raising or lowering of the franchisee's wires in accordance with this section shall not subject the franchisee to any penalty provided under § 222-31 of this chapter. Any interruption in service occasioned under the provisions of this Subsection L shall be done, as far as is practicable in the opinion of the committee, during nonpeak viewing hours.

The franchisee shall restore any wires moved in accordance with this chapter to the former position as soon as possible after the building is moved.

The franchisee may trim trees or other vegetation owned by the Village to prevent its branches or leaves from touching or otherwise interfering with its wires, cables or other structures.

All trimming or pruning provided for in this chapter shall be done only under the supervision and direction of the appropriate Village agency and only with its prior written approval.

All trimming or pruning shall be at the expense of the franchisee.

The franchisee may contract for such trimming or pruning services with any person approved by the Village prior to the rendering of such services. Any person engaged by the franchisee to provide tree trimming or pruning services shall be deemed for the purposes of this chapter and any agreement made in accordance with this chapter to be an employee of the franchisee when engaged in such activity.

The franchisee shall obtain the written permission of the owner of any privately owned tree or other vegetation before it trims or prunes the same.

The franchisee shall comply with all laws concerning Village property.

§ 222-24 Transfers and assignments.

The franchise granted under this chapter shall not be assigned or transferred, either in whole or in part, or leased, sublet or mortgaged in any manner, nor shall title thereto, either legal or equitable, or any right, interest or property therein, pass to or vest in any person, either by the act of the franchisee or by operation of law, without the consent of the Village. The granting, giving or waiving of any one or more such consents shall not render unnecessary any subsequent consent or consents.

The consent or approval of the Village to any assignment, lease, transfer, sublease or mortgage of the franchise granted to the franchisee shall not constitute a waiver or release of the rights of the Village in and to its streets.

The franchisee shall promptly notify the Village of any actual or proposed change in, or transfer of, or acquisition by any other party, of control of the franchisee. The word "control" as used in this subsection is not limited to majority stock ownership but includes actual working control in whatever manner exercised. A rebuttable presumption that a transfer of control has occurred shall arise upon the acquisition or accumulation by any person or group of persons of 10% of the voting shares of the franchisee in any one transaction. Every change, transfer or acquisition of control of the franchisee shall make the franchise subject to cancellation unless and until the Village shall have consented thereto. For the purpose of determining whether it shall consent to such change, transfer or acquisition of control, the Village may inquire into the qualifications of the prospective controlling party, and the franchisee shall assist the Village in any such inquiry. If the Village does not schedule a hearing on the matter within 60 days after notice of the change or proposed change and the filing of a petition requesting its consent, it shall be deemed to have consented. In the event that the Village adopts a resolution denying its consent and such change, transfer or acquisition of control has been effected, the Village may cancel the franchise unless control of the franchisee is restored or the franchisee gains a status which is acceptable to the Village.

Nothing in this section shall be deemed to prohibit a mortgage or pledge of the cable television system, or any part thereof, for financing purposes or otherwise, or prohibit the disposition of facilities or equipment no longer required in the conduct of the business. Any such mortgage, pledge or lease shall be subject and subordinate to the rights of the Village under this chapter or other applicable law.

Any proposed transferee shall execute an agreement in the form and containing the conditions approved by the Village Attorney that it will assume and be bound by all of the provisions, terms and conditions of this chapter and any agreement awarding a franchise in accordance with this chapter and all applicable federal, state and local laws, and further that it shall be primarily liable and obligated under such documents without, however, relieving the franchisee from its obligations to the Village.

No transfer of a franchise shall be made within 13 months of the termination date of the term of the agreement unless the cable operator is actively involved in any franchise renewal or extension.

Nothing in any approval by the Board or execution by the Village President or an authorization of any transfer or assignment of any ownership interest shall be construed to waive or release any rights of the Village in and to the streets, public ways, and public places of the Village or as a release of any of the Village's police powers.

§ 222-25 Breach of agreement.

The occurrence of any of the following listed events shall be deemed a material breach and default of any agreement awarding a franchise and shall subject the franchisee to all penalties and remedies prescribed in the agreement and to all other remedies, legal and equitable, which are available to the Village. The following shall be deemed an unauthorized transfer and assignment under the provisions of this section. The franchisee:

Concealed, removed or permitted to be concealed or removed any part of its property, with intent to hinder, delay or defraud its creditors or any of them, or made or suffered a transfer of any of its property fraudulent under any provisions of law;

Made or suffered a preferential transfer;

Suffered or permitted, while insolvent, any creditor to obtain a lien upon any of its property through legal proceedings or distraint and not having vacated or discharged such lien within 30 days from the date thereof or at least five days before the date set for any sale or other disposition of such property;

Made a general assignment for the benefit of its creditors;

To the extent allowed under U.S.C. Title 11, while insolvent or unable to pay its debts as they mature, procured, permitted or suffered voluntarily or involuntarily the appointment of a receiver or trustee to take charge of its property;

Admitted in writing its inability to pay its debts and its unwillingness to be adjudged a bankrupt, or upon the entry of an order for relief under U.S.C. Title 11, or placement of the franchisee into receivership or the issuance of any order to the franchisee or any of its stockholders by a government agency or court of competent jurisdiction to divest any interest related to the cable communications system under this chapter, or the entry of any judgment against the franchisee's credit unless otherwise prohibited under U.S.C. Title 11; or

(7)

Showed a wilful failure, refusal or neglect to do or comply with any material requirements or limitation contained in this chapter or any material rule or regulation of the Board validly adopted pursuant to this chapter, or any amendment to this chapter.

To the extent authorized under U.S.C. Title 11, the occurrence of an unauthorized transfer or assignment may, at the option of the Village, terminate the agreement and accelerate all of the obligations and rights thereunder, including, inter alia, the right of the Village to purchase the cable communications system at book value or to award a franchise to another person.

Unless otherwise prohibited under U.S.C. Title 11 from and after any of the occurrences enumerated in Subsection A of this section, the franchisee shall not make, execute or enter into any deed, deed of trust, mortgage, contract, conditional sales contract or any loan, lease, pledge, sale, pole agreement or any other agreement or hypothecation concerning any of the facilities or property, real or personal, of the cable communications system without the written approval of the Village Board.[1]

Editor's Note: Amended at time of adoption of Code (see Ch. 1, General Provisions, Art. II).

The franchisee shall execute a security agreement subordinate to primary financing to secure payment of the fee made in accordance with this chapter in the form and containing the conditions approved by the Village Attorney under which the Village shall have a security interest in the equipment, whenever acquired, of the franchisee's cable communications system equipment, whenever acquired, or the franchisee's cable communications system business in the Village, the accounts receivable of the franchisee and the stock, if any, of the franchisee.

The Village shall file or otherwise record as required by law a financing statement to perfect such security interest, and the franchisee shall cooperate fully in furnishing all information, records or other documents requested by the Village to enable it to prepare and file such statement. The security agreement provided for in this chapter shall be executed simultaneously with the agreement awarding a franchise in accordance herewith, and no such agreement shall be of any force or effect unless and until the security agreement is executed as provided in this chapter and the financing statement is filed or otherwise recorded. The Village Attorney shall cause the financing statement to be filed or otherwise recorded as required by law to perfect the Village's interest after the execution of the franchise agreement and security agreement.

§ 222-26 Reports.

On or before March 31 of each year, during the term of any agreement awarding a franchise in accordance with this chapter, the franchisee shall submit a written report to the Village, in a form approved by the Village, including but not limited to the following information:

A summary of the previous year's or, in the case of the initial reporting year, the initial year's activities in development of the cable communications system, including but not limited to services begun or discontinued, total number of subscribers, subscribers added or discontinued during the reporting year, and user participation.

An audited financial statement which will include a statement of income, revenues and operating expenses together with a certified or verified franchise fee calculation setting forth the company's gross revenues generated within the Village for each of the months of the preceding year with any adjustments and, to the extent not shown in the property tax schedule, the original cost of the system retired from service during the previous year, the original cost of the system added to service during the previous year, the total original cost of the system in service and used and useful at the end of the previous year, all other annual capital expenditures, and book depreciation with an attached depreciation schedule.

A current statement of costs of construction by component categories.

A summary of complaints, identifying the number and nature of complaints and their disposition.

A list of officers and members of the board of directors of the franchisee and its parent, subsidiary or affiliated corporations, if any.

A list of its stockholders holding more than 50% of the voting stock of the franchisee or its parent, subsidiary and affiliated corporations, if any.

(7)

A copy of its annual report and those of its parent, subsidiary and affiliated corporations.

(8)

Such other information or reports as the Board or the committee may request, including but not limited to the following special reports:

Any opinion survey reports which identify dissatisfaction among subscribers with cable communications services offered by the franchisee. Surveys required to make such reports shall be conducted in conformance with such requirements, including supervision, as the Village may prescribe.

An annual plant survey report or proof of performance reports filed with the FCC which shall be a complete survey of the franchisee's plant and a full report thereon and which shall be submitted to the Village. The purpose of such report is declared to be to assure the Village that the technical standards of the FCC or the Village, whichever are applicable, are achieved and maintained. Such report shall include, but not be limited to, an appropriate engineering evaluation, including suitable electronic measurements, and shall be conducted in conformance with such requirements, including supervision, as the Village may prescribe.

General reports shall be prepared and furnished to the Village at the time and in the form prescribed. Through these reports the Village shall obtain information concerning the franchisee's operation, business affairs and transactions or property as may be reasonably necessary for the performance of any of the committee's duties. Copies of all reports and documents required by the FCC or other state or federal agencies shall be submitted to the Village and copies shall be available for inspection by the general public at the franchisee's office during regular business hours.

It shall be unlawful for the franchisee to refuse, fail or neglect to file the reports required under this section. The refusal, failure or neglect of the franchisee to file any of the reports required under this section or as the committee may direct shall be deemed a violation of this chapter and shall subject the franchisee to the provisions of § 222-29 of this chapter and shall be deemed a material breach of any agreement awarding a franchise in accordance with this chapter and shall subject the franchisee to all penalties and remedies prescribed therein and to all other remedies, legal or equitable, which are available to the Village.

Any material misrepresentation made knowingly by the franchisee in any report required under this section shall subject the franchisee to the provisions of § 222-29 of this chapter and shall be deemed a material breach of any agreement awarding a franchise in accordance with this chapter and shall subject the franchisee to all penalties and remedies prescribed therein and to all other remedies, legal or equitable, which are available to the Village.

The Village may waive any portion of the documentation at its discretion.

§ 222-27 Review of franchise.

To provide for technological changes in the state of the art of cable communications, to facilitate renewal procedures, to promote the maximum degree of flexibility in the cable communications system and to achieve a continuing, advanced, modern system for the Village, the Village and the franchisee shall comply with the following review provisions:

The committee may, at its option, hold review sessions from time to time. All such review sessions shall be open to the public and notice shall be given by advertisement in a newspaper of general circulation at least one week before each session. In addition, the franchisee shall announce the date and time of each such session on each of at least five days immediately preceding each session at a minimum of six regularly scheduled intervals daily.

Topics for discussion and review at the review sessions shall include, but not be limited to, the following: service, rate structure, free services, application of new technologies, system performance, service provided, programming, subscriber complaints, user complaints, right of privacy, amendments to this chapter, undergrounding process and developments in the law.

Either the Village or the franchisee may select additional topics for discussion at any review session.

Any topic proposed for discussion at any review session by a resident of the Village and supported by a petition bearing the signatures of 100 Village residents shall be included in the list of topics for discussion.

§ 222-28 Renewal procedure.

The procedure for considering the renewal of any agreement awarding a franchise in accordance with this chapter shall be as set forth in 47 U.S.C. § 546, unless a different procedure is mutually agreed upon between the Village and franchisee.

§ 222-29 Termination of franchise.

A franchise may be terminated by a majority vote of the members of the Village Board in the manner provided in this section for any one or more of the following:

The adjudication by a court of competent jurisdiction of a violation by the franchisee of any provision of this chapter or of any rule or regulation promulgated pursuant to this chapter; or

The breach or other failure, refusal or neglect by the franchisee to perform its obligations under the terms and conditions of any agreement awarding a franchise in accordance with this chapter.

The Village President shall notify the franchisee in writing of any complaint filed with the Village Board or of any adjudication by a court of competent jurisdiction of a violation of the franchise ordinance which could be grounds for termination of the franchise. The notification shall contain a copy of any written complaint of any such violation or a copy of a court judgment and shall specify that the Village President, a representative of the franchisee and the complainant (if different from the Village President) may attempt to informally meet and resolve the complaint within 30 days of the receipt by the franchisee of the notice, complaint or judgment.

In the event that the complaint is not resolved informally within 30 days to the satisfaction of the Village President, the latter may cause written charges to be filed with the Village Board specifying the violation and the provisions of the ordinance or franchise agreement to which the alleged violation corresponds.

Following the filing of charges, a copy thereof shall be served by certified mail, return receipt requested, upon the franchisee or its agent. The Village Board shall set a date for hearing not less than 20 days following service of charges. The hearing on the charges shall be before the Village Board and shall be open to the public, and each party may be represented by an attorney and may compel the attendance of witnesses by subpoenas which may be signed by the attorneys and served as are subpoenas under Ch. 885, Wis. Stats. The Village President shall preside at the hearing but shall not be entitled to vote except in the case of a tie. The Village Clerk shall act as secretary of the hearing and shall keep an accurate record of the proceedings. Any party at its own expense may request the testimony be stenographically recorded by a certified court reporter.

If the Board determines that the charges are not sustained, the complaint shall be dismissed. If the Board determines that the charges are sustained, then the Board may declare the agreement awarding a franchise in accordance with this chapter breached or terminated and may pursue any and all remedies available to the Village. Termination of any agreement awarding a franchise in accordance with the provisions of this chapter shall in no way limit the rights of the Village under such an agreement or any remedies, legal or equitable, available to the Village. In addition, the Village Board may do any one of the following:

The Board may authorize the Village to exercise the Village's option provided in § 222-18 of this chapter to purchase a cable communications system from the franchisee;

The Board may authorize the franchisee to transfer the cable communications system in accordance with § 222-24 of this chapter;

The Board may direct the franchisee to dismantle its cable communications system;

The Board may authorize the Village President to solicit proposals for and execute a new agreement awarding a franchise in accordance with this chapter and any amendments to this chapter; or

The Board may determine not to authorize the award of any further franchise.

Review of the Board's final determination shall be as set forth in Ch. 68, Wis. Stats.

§ 222-30 General provisions.

This chapter shall be made to conform in style to any codification of Village ordinances hereinafter adopted by the Board.

Interconnection.

Neither the franchisee nor any other person shall connect or permit the connection of the franchisee's cable communications system electronically or in any other manner whatsoever with any other type of system whatsoever, including but not limited to a cable communications system, without the authorization and the written approval of the committee, upon such conditions as the committee may direct. Such written approval shall not be unreasonably withheld.

If the franchisee connects or permits the connection of its cable communications system in violation of the provisions of Subsection B(1) of this section, the franchisee shall be subject to the provisions of § 222-29 of this chapter and shall be deemed to have materially breached the agreement awarding a franchise in accordance with this chapter. The franchisee shall be subject to all penalties and remedies prescribed therein and to all other remedies, legal or equitable, which are available to the Village.

Any connection whatsoever of the franchisee's cable communications system with any other kind of system, including but not limited to a cable communications system, shall not relieve the franchisee of any of its obligations under this chapter and any agreement awarding a franchise in accordance with this chapter.

This chapter and any agreement made in accordance with this chapter shall in all respects be governed by the laws of the State of Wisconsin.

The Village shall have the authority to reject any and all proposals for any agreement awarding a franchise in accordance with this chapter.

The franchisee shall comply with all federal, state and local laws.

It shall be unlawful for any person to make or use any unauthorized connection, whether physically, electrically or in any other manner, with any part of a cable communications system operated by a franchisee under any agreement in accordance with this chapter for the purpose of enabling anyone to receive or use any signal or service without payment to the franchisee.

The provisions of this chapter are severable, and if any provision or application is held illegal, unconstitutional or invalid, such holding shall not affect the remaining provisions. It is the legislative intent of the Board that this chapter would have been adopted if such illegal provision had not been included or any illegal application had not been made.

§ 222-31 Violations and penalties

Where this chapter provides alternative penalties or remedies, they shall be cumulative, and the imposition of the penalty or remedy shall not prevent the appropriate Village officer from invoking any other penalty or remedy provided for.

Unless otherwise provided, any person specifically (including the franchisee) convicted of violating any provision of this chapter or any rule or regulation promulgated under this chapter shall, upon conviction, be subject to a penalty as provided in § 1-5 of this Code. Each day of a continuing violation shall constitute a separate and distinct offense.[1]