[HISTORY: Adopted by the Common Council of the City of Brodhead
as Title 9, Ch. 3, of the 1997 Code. Amendments noted where applicable.]
This chapter shall be known and may be cited as the "Cable Television
Franchise Ordinance."
This chapter allows the City of Brodhead to grant to a franchise
grantee, its successors and assigns a nonexclusive license to install,
maintain and operate a cable television system for the distribution
of television signals, frequency-modulated radio signals and any other
electronic signals capable of being transmitted over a fiber-optic
and/or coaxial cable network and closed-circuit television programs
for a term not to exceed 15 years, provided that the franchise grantee
conforms to the conditions, limitations and requirements of this chapter.
This chapter may be amended from time to time by the City through
the enactment of amendments thereto.
For the purpose of this chapter, the following terms, phrases,
words and their derivations shall have the meanings given herein.
When not inconsistent with the context, words used in the present
tense include the future, words in the plural number include the singular
number, and words in the singular number include the plural number.
Coaxial and/or fiber-optic cables, wave guides or other conductors
and equipment for providing television or other services by cable
or through its facilities as herein contemplated, and including closed-circuit
special event programs and educational television.
The City of Brodhead, Counties of Green and Rock, State of
Wisconsin, in its present incorporated form or in any later recognized,
consolidated, enlarged or reincorporated form.[1]
The present governing body of the City or any future body
constituting the legislative body of the City.
A license to install, maintain and operate a cable television
system for the distribution of television signals, frequency-modulated
radio signals and any other electronic signals.
The existing corporate limits of the City of Brodhead.
A person or entity to whom or which a franchise under this
chapter is granted by the City, along with the lawful successors or
assigns of such person or entity.
Any revenue, derived directly or indirectly by a grantee,
its affiliates, subsidiaries, parents and any persons or entities
in which a grantee has a financial interest of 5% or more, from or
in connection with the operation of a broadband cable system, including,
but not limited to, basic or extended basic subscriber service monthly
fees, pay cable fees, installation and reconnection fees. The term
does not include any taxes on services furnished by a grantee and
imposed directly upon any subscriber or used by the City, state or
other governmental unit and collected by a grantee on behalf of said
governmental unit.
Those hours during which most similar businesses in the City
are open to serve customers, plus at least one night per week until
8:00 p.m. and at least four hours on the weekend.
Those conditions affecting service within the control of
the grantee. Those conditions presumed to be outside normal operating
conditions include natural disasters, human-caused disasters and civil
disturbances, power or telephone outages, and severe or unusual weather
conditions where such condition limits the grantee's ability
to provide service. Those conditions presumed to be within normal
operating conditions include special promotions, pay-per-view events,
rate increases, regular peak or seasonal demand periods and maintenance,
rebuild or upgrade of the cable system.
The surface of and space above and below any public street,
road, highway, freeway, lane, alley, court, sidewalk, parkway or drive,
now or hereafter existing as such within the City.
Any person or entity legally receiving for any purpose the
services of a grantee herein.
A.
To the extent applicable, federal law shall govern the procedures
and standards for renewal of any franchise awarded pursuant to this
chapter.
B.
To the extent federal law is not applicable, the City shall, in its
sole judgment and discretion, have the right to grant or deny renewal,
provided that, at a minimum, the grantee provides written notice of
its intent to seek renewal at least 30 months but no more than 36
months prior to the expiration of the applicable franchise term.
A.
A franchise granted under this chapter may be terminated by the City
for just cause, which may include, but not be limited to, a material
breach of the provisions of this chapter, a franchise agreement issued
under this chapter, or other violation of local, state or federal
law. The City shall not terminate a franchise without notice to the
grantee, reasonable opportunity to cure, and a public proceeding offering
the grantee and other interested parties the opportunity to comment.
B.
Should a grantee's franchise be terminated or expire and there
is no judicial or administrative review of the termination or expiration
taking place, the grantee shall begin removal, within 90 days of termination
or expiration, of all property owned by the grantee and placed on
a public right-of-way, unless permitted by the City to abandon said
property to the City or to a purchaser.
C.
In the event that a franchise has been terminated or has expired,
the City shall have options, to the extent then permitted by law,
to purchase the tangible assets of the grantee's cable television
system previously governed by the franchise at its fair market value,
which may be determined by a bona fide offer to purchase the system,
to assign such rights to purchase, or to require removal of all grantee's
property located within the public ways of the City at the grantee's
expense. Such an option must be exercised within one year from the
date of the termination or expiration of the franchise, the entry
of a final judgment by a court reviewing the question of the termination
or expiration, or the entry of a final order upon appeal of the same,
whichever is later.
All of the rights and privileges and all the obligations, duties
and liabilities created by this chapter shall pass to and be binding
upon the successors of the City and the successors and assigns of
the grantee. The franchise shall not be assigned or transferred by
the grantee without the written approval of the City hereunder, which
approval shall not be unreasonably withheld without a showing of good
cause; provided, however, that this section shall not prevent the
assignment or pledge of a franchise or system by a grantee as security
for debt without such approval; and provided, further, that transfers
or assignments of a franchise between any parent and subsidiary corporation
or between entities of which at least 51% of the beneficial ownership
is held by the grantee or any parent corporation shall be permitted
without the prior approval of the City. The sale, transfer or assignment
of a material portion of the tangible assets of a grantee to an unrelated
third party shall be considered an assignment subject to the provisions
of this section.
A.
The parties to the sale or transfer of a franchise shall make a written
request to the City for its approval of a sale or transfer of the
franchise.
B.
The City shall reply in writing within 30 days of the request with
a written notification of any information it needs to evaluate the
request, unless both parties agree that more time may be granted.
Within 30 days of such information being provided, the City shall
indicate approval of the request or its determination that a public
hearing is necessary.
C.
If a public hearing is deemed necessary pursuant to Subsection B, the City shall conduct such hearing within 30 days of such determination. Notice of any such hearing shall be given at least 14 days prior to the hearing by publishing notice thereof once in a newspaper of general circulation in the areas being served by the franchise. The notice shall contain the date, time and place of the hearing and shall briefly state the substance of the action to be considered by the City.
D.
Within 60 days after the public hearing, the City shall approve or
deny the sale or transfer request and notify the grantee in writing
of its decision.
E.
The parties to the sale or transfer of a franchise only, without
the inclusion of a cable communications system in which at least substantial
construction has commenced, shall establish to the satisfaction of
the City of Brodhead that the sale or transfer of a franchise only
will be in the public interest.[1]
F.
The new holder of a sold or transferred franchise shall, within 30
days of the sale or transfer, file with the City a copy of the deed,
agreement or other written instrument evidencing such sale, transfer
of ownership or control or lease, certified and sworn to as correct
by the grantee. The new holder shall, within the same period, file
with the City any and all required bonds, proofs of insurance and
certifications, and accept in writing all responsibilities relating
to the cable franchise and system.
A.
The franchise territory shall be the corporate limits of the City
of Brodhead. The grantee shall extend cable service therein to new
subdivisions or other land divisions within the City of Brodhead when
either of the two following criteria are met:
(1)
When there exists a density of 20 homes per plant mile or portion
thereof measured from the nearest existing plant from which service
can be reasonably provided; or
(2)
When the subdivision or other land division is within 300 feet of
an existing cable plant and the grantee has a reasonable opportunity
to install cable facilities at the time other utilities such as electricity
and telephone are installed. In this context, the grantee shall be
deemed to have reasonable opportunity when given sufficient notice
to acquire the necessary materials for the installation and when the
grantee is not unfairly discriminated against by the developer and/or
other utility companies involved with respect to cost sharing on the
project.
B.
For residents requesting service which does not meet the criteria set forth in Subsection A(1) and (2) above, the grantee shall reasonably cooperate with such residents in reaching a cost-sharing agreement providing that the grantee pay the cost of the first 300 feet and 60% of the cost of the extension beyond 300 feet, up to a maximum of 600 feet, and the residents pay 40% of the cost. Beyond 600 feet, the resident shall pay the actual cost of extending grantee's plant.
A.
No monitoring of any authorized terminal connected to the system
shall take place without specific written authorization by the user
of the terminal in question on each occasion and written notice to
the City, except as may be required for normal maintenance of the
system.
B.
A grantee shall not, except as required by governmental action, provide
any data concerning specific subscribers or users or their use of
subscriber services without first securing written authorization from
the subscribers or users as required in the Cable Communications Policy
Act of 1984.
C.
Subscribers and users shall retain the right to deactivate their
terminals, but shall continue to be responsible for charges until
the grantee is notified to terminate service.
The cable system shall be operated to comply with or exceed
all guidelines and standards set by the FCC for signal quality and
leakage. The City reserves the right to test the system or any part
thereof and independently measure the signal quality. The grantee
shall provide reasonable access to its facilities and any assistance
necessary for such testing. The system shall comply at all times with
the applicable National Electrical Code of the National Fire Protection
Association.
A grantee shall manage all of its operations in accordance with
the policy of totally open books and records vis-a-vis the City. The
authorized officers or agents of the City shall have the right to
inspect, upon notice, during normal business hours all books, records,
maps, plans, financial statements, service complaint logs, performance
test results, records of request for service and other like materials
of the grantee that relate to the operation of the franchise.
A.
A grantee shall be required to provide a location convenient to the
City open during normal business hours to receive customer payments.
B.
The grantee shall provide access to a local or toll-free telephone
number for programming questions and service requests. The number
shall be either staffed or provided with answering capabilities 24
hours a day.
A.
A broadband cable system shall be at least 450 MHZ in bandwidth when
newly built, rebuilt or significantly upgraded.
B.
A grantee shall, upon request of the City, provide a complete written
description of the cable system in the City of Brodhead. Such written
description shall be updated as substantial changes are made.
A.
Rates charged by a grantee for service hereunder shall be fair and
reasonable. Before any service is sold to any customer, the grantee
shall file with the City Clerk its schedule of rates for installation,
monthly service charges and any other charges related to the operation
of the cable system, together with a statement of the rights and obligations
of subscribers.
B.
Subsequent additions or amendments to rates and service charges shall
likewise be filed with the City Clerk at least 30 days before the
same become effective.
C.
The City reserves the option to regulate rates for cable service,
should such power be allowed under federal and state law.
A.
Use. All transmission and distribution structures, lines and equipment
erected by a grantee within the City shall be so located as not to
cause interference with the proper use of streets, alleys and other
public ways and places, and not to cause interference with the rights
of or reasonable convenience of property owners who adjoin any of
the streets, alleys or other public ways and places.
B.
Restoration. In case of any disturbance of pavement, sidewalk, driveway
or other surfacing, the grantee shall first give notice to the Director
of Public Works of any contemplated disturbances of pavement sidewalk,
driveway or other surfacing, and shall, at its own cost and expense
and in a manner approved by the Director of Public Works, replace
and restore all pavement, sidewalk, driveway or other surface of any
street or alley disturbed in as good condition as before such work
commenced. The grantee shall otherwise comply with City ordinances
relating to street openings.
C.
Relocation. If, at any time during a franchise, the City shall elect to alter or change the location or grade of any street, alley or other public way, the grantee shall remove, relay and relocate its poles, wires, cables, underground conduits, manholes and other fixtures at its own expense. The City shall notify the grantee of potential City changes affecting grantee's facilities as soon as plans allow, and give the grantee at least 30 days' advance notification for nonemergency relocations. If any construction by the grantee is in violation of the provisions of Subsection A, the grantee will likewise, upon reasonable notice by the City, remove, relay and relocate its property in such a manner as to remedy such violation at its own expense.
D.
Placement of fixtures. Cables, wires and other equipment in connection
with such system shall only be installed and operated on or under
the public rights-of-way upon the poles or in underground conduit
and equipment of the existing utilities within the City and their
successors, or assigns, where conduits exist and where space in installed
conduits is available. Installation of any additional poles, conduit
or other equipment for the installation of cables, wires, and other
overhead equipment and underground equipment in public rights-of-way
in connection with the said system shall be subject to the authorization
of the Common Council or its designated representative. In reaching
a decision as to such additional poles or equipment, the suggestions,
if any, of the utility companies servicing or planning to serve such
area may be considered. Underground installations shall always be
preferred; provided, however, the grantee may construct its plant
aerial so long as there is one utility aerial.
E.
Underground service. The grantee shall install underground service
in areas where electric and phone services are underground. Unless
a greater depth is required, the minimum depth for underground cable
service at the time of initial installation shall be 12 inches.
F.
Temporary removal of wire for building moving. A grantee shall, on
the request of any person holding a building moving permit issued
by the City, temporarily raise or lower its wires to permit the moving
of buildings. The expense of such temporary raising or lowering of
the wires shall be paid by the person requesting the same, and the
grantee may require such payment in advance. The grantee shall be
given notification at the time a building moving permit is issued
by the City, in no case receiving less than five working days' advance
notice to arrange for such temporary wire changes.
G.
Tree trimming. The grantee, to the same extent that the City has
such authority, may trim trees that overhang streets, alleys, sidewalks
and public places of the City so as to prevent the branches of such
trees from coming in contact with the wires and cables of the grantee.
The grantee must apply to the City for a no-fee permit before trimming
trees.
A.
Indemnification. The grantee shall defend and save the City and its
agents and employees harmless from all claims, damages, losses, and
expenses, including attorneys' fees, sustained by the City on
account of any suit, judgment, execution, claim or demand whatsoever
arising out of:
B.
Notification and filing. The grantee shall furnish to the City, before
any franchise becomes effective, satisfactory evidence in writing
that the grantee has in force and will maintain in force during the
term of the franchise public liability insurance. The City shall notify
the grantee within 10 days after the presentation of any claim or
demand, either by suit or otherwise, made against the City on the
part of the grantee.
C.
Liability insurance.
(1)
A grantee shall maintain throughout the term of the permit a general
comprehensive liability insurance policy naming as additional insured
the City, its officers, councils, commissions, agents and employees,
in a company approved by the City and in a form satisfactory to the
City Attorney. The policy shall protect the City and its agencies
and employees against liability for loss or damage for personal injury,
death or property damage occasioned by the operations of the grantee
under any franchise granted hereunder, in the amounts of $1,000,000
for bodily injury or death to any one person, with the limit, however,
of $2,000,000 for bodily injury or death resulting from any one accident;
and $1,000,000 for property damage resulting from any one accident.
The City shall be named as an additional insured under such insurance,
and a copy of the current in-force policy shall be deposited with
the City Clerk.
(2)
On every third-year anniversary of the granting of a cable franchise,
the City shall have the power to reasonably increase the amount of
liability insurance required, and the grantee shall have 60 days after
notification to file proof of such increased coverage.
A.
Bond. During the construction or substantial rebuild of a cable system,
the grantee shall file with the City a performance bond in the amount
of $50,000. The bond shall be released when the grantee certifies
to the City that the construction or substantial rebuild is complete,
and the City accepts such certification as proven.
B.
Failure to comply. Any violation by a grantee, its vendor, lessee
or successor of the provisions of a franchise or any material portion
or portions thereof, or the failure promptly to perform any of the
provisions thereof shall after 30 days' written notice and opportunity
to cure is given to the grantee, causes the grantee to be fined up
to $100 a day, commencing after said thirty-day notice period, from
the security fund until proper correction is made. The City also reserves
the right to terminate the franchise and cancel all rights hereunder.
A grantee is not responsible for failure to provide adequate service
when that failure is caused by acts of God, strikes, governmental
or military action, or other conditions beyond its control, including
the unavailability of material or parts.
A.
Franchise fee payment. As compensation in accordance with federal
law, the grantee shall pay to the City each year an amount equal to
5% of the grantee's annual gross revenues.
B.
Payment schedule; estimated payments; late payments. The franchise
fee shall be paid annually, due no later than April 15 of each year.
C.
Annual report. No later than April 15 of each year, the grantee shall
present to the City a report of system finances for the previous year,
which shall include gross revenues from all sources and detail of
the amount contributed by each revenue component within the franchise
territory. In addition, upon request of the City, the grantee shall
present to the City an audited, consolidated financial statement showing
operating expenses, net income and an end-of-year balance sheet.
D.
Acceptance not considered release. No acceptance of any payment by
the City shall be construed as a release or as an accord and satisfaction
of any claim the City may have for further or additional sums payable
as a franchise fee or for the performance of any other obligation
of the grantee.
A.
The City hereby reserves the right to adopt, in addition to the provisions
contained in this chapter and existing applicable ordinances, such
additional regulations as it shall find necessary in the exercise
of its police powers. Such regulations, by ordinance or otherwise,
shall be reasonable and not be in substantial conflict with the rights
granted in this chapter and not be in conflict with the laws of the
state.
B.
The City may, during the term of a franchise, free of charge where
aerial construction exists, maintain upon the poles of the grantee
within the City limits wire and pole fixtures necessary for a police
and fire alarm system, such wires and fixtures to be constructed and
maintained to the satisfaction of the grantee and in accordance with
its specifications.
C.
The City may inspect all construction or installation work during
such construction or installation, or at any time after completion
thereof, in order to insure compliance with the provisions of this
chapter and all other governing ordinances.
A.
During a franchise, a grantee shall provide one free outlet and allow
distribution within that building in accordance with FCC rules for
basic and expanded basic cable service to each municipally owned or
leased building passed by the cable system and used substantially
for municipal purposes, as well as to any and all schools, whether
private or public, within the franchise territory.
B.
The grantee shall be required to provide one dedicated, noncommercial
access channel, including wiring and insertion equipment needed to
connect to the cable system, but not equipment needed to allow the
generation or playback of programming.
C.
Upon 270 days' notice by the City, the grantee shall, at the
option of the City, be required to add an additional access channel,
including wiring and insertion equipment needed to connect to the
cable system, at a location chosen by the City, passed by the cable
system and within the franchise territory.
D.
The City shall have sole authority to administer the community access
channels unless it chooses to delegate such authority. A grantee shall
not be responsible for the equipment or operating costs for community
access channels, except as provided for in a franchise agreement.
Should any word, phrase, clause, sentence, paragraph or portion
of this chapter and or a franchise thereunder be declared to be invalid
by a court of competent jurisdiction, such adjudication shall not
affect the validity of this chapter and or the franchise as a whole,
but shall only affect the portion thereof declared to be invalid,
and the City hereby expressly states and declares that it would nonetheless
have passed this chapter and or granted the franchise had it known
that any such word, phrase, clause, sentence, paragraph or portion
of said chapter and or franchise were invalid.
A franchise granted under this chapter shall be effective upon
written acceptance of the franchise being filed with the Clerk of
the City. The filing must take place within 30 days of the granting
of the franchise being made by the City.
This chapter and a franchise granted hereunder may be amended
to incorporate amendments to the statutes, rules and regulations of
the federal government as they are promulgated by the federal government.
Any provision therein in conflict with or preempted by said rules,
regulations or statutes shall be superseded.
A grantee shall at all times keep its cables and other appurtenances
used for transmitting signals shielded in such a manner that there
will be no interference with signals received by radios or televisions
not connected to the grantee's service.
A grantee may promulgate such rules, regulations, terms and
conditions governing the conduct of its business as shall be reasonably
necessary to enable the grantee to exercise its rights and perform
its obligations under the franchise and to assure uninterrupted service
to all its subscribers. However, such rules, regulations, terms and
conditions shall not be in conflict with the provisions of this chapter
or the laws of the state.
By the adoption of this chapter, the City expressly waives all objections it has or may have to the legal rights of the grantee to attach its cables, equipment and transmission lines to the poles of the City, pursuant to an agreement with the City per § 209-14D herein.
A.
A grantee shall have no recourse whatsoever against the City for
any loss, cost or expense or damage arising out of any provisions
or requirements of a franchise or because of the enforcement thereof
by the City or for the failure of the City to have authority to grant
all or any part of the franchise.
B.
The grantee expressly acknowledges that in accepting a franchise
it does so relying on its own investigation and understanding of the
power and authority of the City to grant the franchise.
C.
By accepting a franchise, a grantee acknowledges that it has not
been induced to enter into the franchise by any understanding or promise
or other statement, whether verbal or written, by or on behalf of
the City or by any other third person concerning any term or condition
of the franchise not expressed herein.
D.
The grantee further acknowledges by acceptance of the franchise that
it has carefully read the terms and conditions hereof and is willing
to and does accept all the risks of the meeting of such terms and
conditions.
A.
A grantee shall give prior notice to the City specifying the names
and addresses of any entity, other than the grantee, that performs
substantial services pursuant to the franchise; provided, however,
that all provisions of the franchise remain the responsibility of
the grantee. All personnel of the grantee or its subcontractors shall
carry and display, if requested, a photo ID identifying themselves
as representatives of the grantee when performing services at subscriber
locations in the City.
B.
All provisions of a franchise shall apply to any subcontractor or
others performing any work or services pursuant to the provisions
of the franchise.
Grantee agrees by acceptance of a franchise that it will not
at any time set up against the City in a claim or proceeding any condition
or term of the franchise as unreasonable, arbitrary or void or that
the City had no power or authority to make such term or condition,
but shall be required to accept the validity of the terms and conditions
of the franchise in their entirety.
The grantee shall maintain resources sufficient and near enough
to the franchise territory to provide the necessary facilities, equipment
and personnel to comply with this section and other provisions of
this chapter.
A.
Service standards. The grantee shall render efficient service, make
repairs promptly and interrupt service between the hours of 7:00 a.m.
and 1:00 a.m. only for good cause and for the shortest possible time.
Service may be interrupted between 1:00 a.m. and 7:00 a.m. for routine
testing, maintenance and repair, except on nights commencing on Saturday
and Sunday and on holidays. Scheduled or predictable service interruptions,
except for weekly routine maintenance, insofar as possible shall be
preceded by notice, which may be provided across the cable system.
The interruptions shall occur during periods of minimum use of the
system to the extent practicable. The grantee shall maintain a written
log or an equivalent capable of access and reproduction of all service
interruptions and requests for service, which log shall be available
for City inspection during the franchise period.
B.
Telephone lines. The grantee shall provide local toll-free or collect call telephone access to its subscribers within the franchise territory. Any calls should be answered by a customer service representative during normal business hours; calls outside this period may be answered by an automated response mechanism, but such calls should be processed by a grantee's representative within 12 hours. The grantee shall provide sufficient phone answering capacity that customer calls are answered on average within 30 seconds 90% of the time, and that customers receive a busy signal no more than 3% of the time. Violations of these standards shall be subject to penalties under provisions of § 209-16.
C.
Installation. The grantee shall complete requests for subscriber
installations within seven business days of order placement when the
installation is within 150 feet of the existing cable system. Installation
requests required to be honored under this chapter beyond the one-hundred-fifty-foot
standard must be completed within 14 days. If the grantee fails to
meet these standards, the grantee shall provide the subscriber with
a free month of the requested service. The grantee may request the
City toll these periods for reasonable circumstances beyond its control.
D.
Repair standards. The grantee shall maintain a repair force capable,
under normal operating circumstances, of responding to service interruption
and degradation complaints made during normal business hours within
four hours. For complaints made outside normal business hours, the
grantee must respond within 16 hours. For the purpose of this subsection,
"response" shall mean at a minimum contacting the subscriber by phone
or in person. Where a grantee misses either of these deadlines, the
grantee must provide the subscriber with one free month's service.
The grantee may request the City toll the repair period for reasonable
circumstances beyond its control.
E.
Service call scheduling. When the grantee needs to arrange a service
appointment at a subscriber's location, the grantee must offer
the subscriber a service window not to exceed four hours in duration.
The grantee may not cancel a service window without the subscriber's
consent. Where a grantee misses a service window, grantee must provide
the subscriber with one free month's service. The grantee may
request the City toll the service call period for reasonable circumstances
beyond its control.
F.
Service interruptions and significant degradation. When the grantee
has failed to provide a subscriber with appropriate service due to
service outage or significant audio or video degradation not due to
the subscriber's equipment or action, the subscriber may request
a rebate of any fees paid for the affected service(s) under the following
schedule, and the grantee must provide such rebates. For the purposes
of this section, the outage or degradation period shall begin when
the subscriber provides notice to the grantee of the outage or degradation.
The City shall waive or modify the rebate provisions for reasonable
circumstances beyond the control of the grantee. Outages for initial
construction, upgrading and normal maintenance shall be exempt from
this section.
