[HISTORY: Adopted by the Village Board of the Village of Argyle 12-7-2005 as Title 9, Ch. 4, of the 2005 Village Code. Amendments noted where applicable.]
This franchise ordinance shall be known and cited as the "Cable Communications Franchise."
For the purposes of this franchise, the following terms, phrases, words, and their derivations shall have the meaning given herein. When not inconsistent with the context, words in the singular number include the plural number. The word "shall" is always mandatory and not merely directory. The word "may" is directory and discretionary and not mandatory:
- BASIC CABLE SERVICE
- Any service tier which includes the lawful retransmission of local television broadcast signals and any public, educational, and governmental access programming required by the franchise to be carried on the basic tier. "Basic cable service," as defined herein, shall not be inconsistent with 47 U.S.C. § 543(b)(7) (1993).
- CABLE COMMUNICATIONS SERVICE
- The provision of television reception, communications and/or entertainment services distributed over a cable communications system. This definition shall not include telecommunications services regulated pursuant to federal and state law as may be amended from time to time.
- CABLE COMMUNICATIONS SYSTEM ("SYSTEM")
- A system of antennas, cables, wires, lines, towers, waveguides, or other conductors, converters, equipment or facilities located in the Village, and designed and constructed for the purpose of producing, receiving, transmitting, amplifying or distributing audio, video, and other forms of electronic signals in the Village. "System," as defined herein, shall not be inconsistent with the definition as set forth in 47 U.S.C. § 522(6) (1993).
- CABLE PROGRAMMING SERVICE
- Any video programming provided over a cable system, regardless of service tier, including installation or rental of equipment used for the receipt of such video programming, other than ["Cable programming service," as defined herein, shall not be inconsistent with the definition as set forth in 47 U.S.C. § 543(1)(2) (1993) and 47 CFR 76.901(b)(1993)]:
- An electronic device which converts signals to a frequency acceptable to a television receiver of a subscriber and by an appropriate selector permits a subscriber to view all cable communications services which the subscriber is lawfully authorized to receive.
- The cable that connects the ground block on the subscriber's residence to the nearest feeder cable of the system.
- The Federal Communications Commission and any legally appointed, designated or elected agent or successor.
- Originally Triax Midwest Associates, L.P., now Mediacom LLC, its agents and employees, lawful successors, transferees or assignees.
- GROSS REVENUES
- All revenue received from cable service directly by the grantee from the operation of its system within the Village. The term "gross revenues" shall not include franchise fees, installation, advertising revenues, late fees, any fees itemized and passed through as a result of franchise imposed requirements or any taxes or fees on services furnished by grantee imposed directly on any subscriber or user by any municipality, state, or other governmental unit and collected by grantee for such governmental unit.
- The connection of the system from feeder cable to the point of connection, including standard installations and custom installations.
- LOCKOUT DEVICE
- An optional mechanical or electrical accessory to a subscriber's terminal which inhibits the viewing of a certain program, certain channel, or certain channels provided by way of the cable communication system.
- PAY TELEVISION
- The delivery over the system of pay-per-channel or pay-per-program audio-visual signals to subscribers for a fee or charge, in addition to the charge for basic cable service or cable programming services.
- Any person, firm, partnership, association, corporation, company, or other legal entity.
- STANDARD INSTALLATION
- Any residential installation which can be completed using a drop of 150 feet or less.
- The surface of, and the space above and below, any public street, road, highway, freeway, lane, alley, path, court, sidewalk, parkway, or drive, or any easement or right-of-way now or hereafter held by the Village.
- Any person who lawfully receives cable service. In the case of multiple office buildings or multiple dwelling units, the "subscriber" means the lessee, tenant or occupant.
- The Village of Argyle, a municipal corporation in the State of Wisconsin, acting by and through its Village Board.
- VILLAGE BOARD
- The Village of Argyle, Wisconsin, Village Board.
Franchise required. It shall be unlawful for any person to construct, operate or maintain a cable communications system in the Village, unless such person or the person for whom such action is being taken shall have first obtained and shall currently hold a valid franchise ordinance. It shall also be unlawful for any person to provide cable service in the Village unless such person shall have first obtained and shall currently hold a valid franchise ordinance. All cable communications franchises granted by the Village shall contain the same substantive terms and conditions.
Grant of franchise. This franchise is granted pursuant to the terms and conditions contained herein.
Grant of nonexclusive authority.
The grantee shall have the right and privilege to construct, erect, operate, and maintain in, upon, along, across, above, over and under the streets, alleys, public ways and public places now laid out or dedicated and all extensions thereof, and additions thereto in the Village, poles, wires, cables, underground conduits, manholes, and other television conductors and fixtures necessary for the maintenance and operation in the Village of a cable communications system as herein defined.
This franchise shall be nonexclusive, and the Village reserves the right to grant a similar use of said streets, alleys, public ways and places, to any person at any time during the period of this franchise; provided, however, that any additional franchises granted shall contain the same substantive terms and conditions as this franchise.
Franchise term. The franchise shall be in effect until March 1, 2014, and this lease agreement/franchise shall automatically renew for successive one-year terms unless either party notifies the other of its intention to terminate the agreement/franchise with written notice 60 days prior to the expiration of each respective term. Notwithstanding the foregoing, grantee may terminate this franchise at any time with 60 days' prior written notice.
Previous franchises. Upon acceptance by grantee as required herein, this franchise shall supersede and replace any previous ordinance or agreement granting a franchise to grantee to own, operate and maintain a cable communications system within the Village. Ordinance No. 2-83 is hereby expressly repealed.
Rules of grantee. The grantee shall have the authority to promulgate such rules, regulations, terms and conditions governing the conduct of its business as shall be reasonably necessary to enable said grantee to exercise its rights and perform its obligations under this franchise.
Territorial area involved. This franchise is granted for the corporate boundaries of the Village, as it exists from time to time. In the event of annexation by the Village, or as development occurs, any new territory shall become part of the area covered; provided, however, that grantee shall not be required to extend service beyond its present system boundaries unless there is a minimum of 45 homes per cable mile. Access to cable service shall not be denied to any group of potential residential cable subscribers because of the income of the residents of the area in which such group resides. Grantee shall be given a reasonable period of time to construct and activate cable plant to service annexed or newly developed areas.
Written notice. All notices, reports or demands required to be given in writing under this franchise shall be deemed to be given when delivered personally to any officer of grantee or the Village Clerk-Treasurer of this franchise or 48 hours after it is deposited in the U.S. Mail in a sealed envelope, with registered or certified mail postage prepaid thereon, addressed to the party to whom notice is being given, as follows. (Note: Such addresses may be changed by either party upon notice to the other party given as provided in this section)
If to the Village: Village of Argyle, Milwaukee Street, P.O. Box 246, Argyle, WI 53537.
If to the grantee: Triax Midwest Associates, L.P., 212 15th Avenue NE, Suite 2010, Waseca, MN 56093, Attn: Director of Operations.
With copies to. Larkin, Hoffman, Daly and Lindgren, LTD., 1500 Norwest Financial Center, 7900 Xerxes Avenue South, Bloomington, MN 55431.
Drops to public buildings.
Complimentary service. Grantee shall provide installation of one cable drop, one cable outlet, and monthly basic cable service without charge to the following institutions:
Additional drops. Additional drops and/or outlets in any of the above locations will be provided by grantee at the cost of grantee's time and material. Alternately, at the institution's request, said institution may add outlets at its own expense, as long as such installation meets grantee's standards and provided that any fees for cable services are paid. Nothing herein shall be construed as requiring grantee to extend the system to serve additional institutions as may be designated by the Village. Grantee shall have one year from the date of the Village Board's designation of additional institution(s) to complete construction of the drop and outlet.
Construction codes and permits.
Grantee shall obtain all necessary permits from the Village before commencing any construction upgrade or extension of the system, including the opening or disturbance of any street or private or public property within the Village.
The Village shall have the right to inspect all construction or installation work performed pursuant to the provisions of the franchise and to make such tests at its own expense as it shall find necessary to ensure compliance with the terms of the franchise and applicable provisions of local, state and federal law.
Repair of streets and property. Any and all streets or public property or private property which are disturbed or damaged during the construction, repair, replacement, relocation, operation, maintenance or reconstruction of the system shall be promptly and fully restored by the grantee, at its expense, to a condition as good as that prevailing prior to the grantee's work.
Building movers. The grantee shall, on request of any person holding a moving permit issued by the Village, temporarily move its wires or fixtures to permit the moving of buildings, with the expense of such temporary removal to be paid by the person requesting the same, and the grantee shall be given not less than 10 days' advance notice to arrange for such temporary changes.
Tree trimming. The grantee shall have the authority to trim any trees upon and overhanging the streets, alleys, sidewalks, or public easements of the Village so as to prevent the branches of such trees from coming in contact with the wires and cables of the grantee.
No waiver. Nothing contained in this franchise shall relieve any person from liability arising out of the failure to exercise reasonable care to avoid injuring grantee's facilities.
Undergrounding of cable.
In all areas of the Village where all other utility lines are placed underground, grantee shall construct and install its cables, wires and other facilities underground.
In any area of the Village where one or more public utilities are aerial, grantee may construct and install its cables, wires and other facilities from the same pole with the consent of the owner of the pole.
Safety requirements. The grantee shall at all times employ ordinary and reasonable care and shall install and maintain in use nothing less than commonly accepted methods and devices for preventing failures and accidents which are likely to cause damage, injuries or nuisances to the public.
Technical standards. The technical standards used in the operation of the system shall comply, at a minimum, with the technical standards promulgated by the FCC relating to cable communications systems pursuant to the Federal Communications Commission's rules and regulations and found in Title 47, §§ 76.601 to 76.617.
Lockout device. Upon the request of a subscriber, grantee shall provide by sale or lease a lockout device.
Subscriber inquiries. Grantee shall have a publicly listed toll-free telephone number and be operated so as to receive subscriber complaints and requests on a twenty-four-hour-a-day, seven-days-a-week basis.
Refund policy. In the event a subscriber establishes or terminates service and receives less than a full month's service, grantee shall prorate the monthly rate on the basis of the number of days in the period for which service was rendered to the number of days in the billing.
Grantee shall pay to the Village a franchise fee in an annual amount equal to 3% of its annual gross revenues.
Payments due the Village under this provision shall be payable annually. The payment shall be made within 90 days of the end of grantee's fiscal year together with a brief report showing the basis for the computation.
Upon request, grantee shall file, with its acceptance of this franchise and at all times thereafter, maintain in full force and effect at its sole expense, a comprehensive general liability insurance policy coverage, in protection of the Village in its capacity as such. The policies of insurance shall be in the sum of not less than $1,000,000 for personal injury or death of any one person, and $3,000,000 for personal injury or death of two or more persons in any one occurrence, $1,000,000 for property damage to any one person and $3,000,000 for property damage resulting from any one act or occurrence.
The policy or policies of insurance shall be maintained by grantee in full force and effect during the entire term of the franchise. Each policy of insurance shall contain a statement on its face that the insurer will not cancel the policy or fail to renew the policy, whether for nonpayment of premium or otherwise, and whether at the request of grantee or for other reasons, except after 30 days' advance written notice has been provided to the Village.
Village's right to revoke. In addition to all other rights which the Village has pursuant to law or equity, the Village reserves the right to revoke, terminate or cancel this franchise and all rights and privileges pertaining thereto if, after the hearing required by Subsection B below, it is determined that:
Procedures for revocation.
The Village shall provide grantee with written notice of a cause for revocation and the intent to revoke and shall allow grantee 60 days subsequent to receipt of the notice in which to correct the violation or to provide adequate assurance of performance in compliance with the franchise. Together with the notice required herein, the Village shall provide grantee with written findings of fact which are the basis of the revocation.
Grantee shall be provided the right to a public hearing affording due process before the Village Board prior to revocation, which public hearing shall follow the sixty-day notice provided in Subsection A(1) above. The Village shall provide grantee with written notice of its decision, together with written findings of fact supplementing said decision.
After the public hearing and upon written determination by the Village to revoke the franchise, grantee may appeal said decision with an appropriate state or federal court or agency.
During the appeal period, the franchise shall remain in full force and effect unless the term thereof sooner expires.
Upon satisfactory correction by grantee of the violation upon which said notice was given as determined, the initial notice shall become void.
Grantee shall comply with the terms of 47 U.S.C. § 551 relating to the protection of subscriber privacy.
Unauthorized connections or modifications prohibited. It shall be unlawful for any firm, person, group, company, corporation, or governmental body or agency, without the express consent of the grantee, to make or possess, or assist anybody in making or possessing, any connection, extension or division, whether physically, acoustically, inductively, electronically or otherwise, with or to any segment of the system.
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, or assist thereof, any part or segment of the system for any purpose whatsoever.
Penalty. Any firm, person, group, company, corporation or governmental body or agency found guilty of violating this section may be fined not less than $20 and the costs of the action nor more than $500 and the costs of the action for each and every subsequent offense. Each continuing day of violation shall be considered a separate occurrence.
Franchise renewal. Any renewal of this franchise shall be done in accordance with applicable federal, state and local laws and regulations.
Amendment of franchise ordinance. Grantee and the Village may agree, from time to time, to amend this franchise. Such written amendments may be made at any time if the Village and grantee agree that such an amendment will be in the public interest or if such an amendment is required due to changes in federal, state or local laws. The Village shall act pursuant to local law pertaining to the ordinance amendment process.
Publication; effective date. This franchise shall be published in accordance with applicable Wisconsin law. The effective date of this franchise shall be the date of acceptance by grantee.
Grantee shall accept this franchise within 60 days of its enactment by the Village Board, unless the time for acceptance is extended by the Village. Such acceptance by the grantee shall be deemed the grant of this franchise for all purposes. Upon acceptance of this franchise, grantee shall be bound by all the terms and conditions contained herein.
Triax Midwest Associates, L.P. ("franchisee") owns, operates and maintains a cable television system ("system") in the Village of Argyle (the "franchise authority"), pursuant to a franchise (the "franchise"), and franchisee is the duly authorized holder of the franchise.
Franchisee and Mediacom LLC are parties to an asset purchase agreement, pursuant to which the system and the franchise will be transferred to Mediacom LLC, a New York limited liability company or any of its affiliates (collectively the "transferee")(the "transfer").
Franchisee and transferee have requested consent by the franchise authority to the transfer in accordance with the requirements of the franchise and have filed an FCC Form 394 with the franchise authority.
The franchise authority has investigated the qualifications of transferee and finds it to be a suitable transferee.
The franchise authority hereby consents to the transfer, all in accordance with the terms of the franchise.
The franchise authority confirms that:
The franchise was properly granted or transferred to franchisee;
The franchise is currently in full force and effect, and will expire on April 22, 2013, subject to options in the franchise, if any, to extend such term;
The franchise supersedes all other agreements between the parties;
The franchise represents the entire understanding of the parties and franchisee has no obligations to the franchise authority other than those specifically stated in the franchise; and
Franchisee is materially in compliance with the provisions of the franchise and there exists no fact or circumstance known to the franchise authority which constitutes or which, with the passage of time or the giving of notice or both, would constitute a material default or breach under the franchise or would allow the franchise authority to cancel or terminate the rights thereunder.
Exempt transfers. Transferee may transfer the franchise or control related thereto to any entity controlling, controlled by, or under common control with transferee. The franchise authority acknowledges that any such transfer does not trigger any right it may have to exercise any first purchase right or other right to acquire the system.
Loan collateral. The franchise authority hereby consents to and approves the assignment, mortgage, pledge or other encumbrance, if any, of the franchise, the system, or assets relating thereto, as collateral for a loan.
Effective date. This section shall be deemed effective upon the date of enactment (June 3, 1999).
The franchise authority releases franchisee, effective upon the closing date, from all obligations and liabilities under the franchise that accrue on and after the closing date, provided that the transferee shall be responsible for any obligations and liabilities under the franchise that accrue on and after the closing date.
This section ("resolution") shall have the force of a continuing agreement with franchisee and transferee, and the franchise authority shall not amend or otherwise alter this resolution without the consent of franchisee and transferee.