[HISTORY: Adopted by the City Council of the City of South
Milwaukee 6-18-1996 by Ord. No.
1644. Amendments noted where applicable.]
This chapter shall be known and may be cited as the "South Milwaukee
Cable Television Franchise Ordinance, hereinafter "Franchise," or
"Ordinance."
For the purpose of this chapter the following terms, phrases,
words and their derivations shall have the meaning given herein:
Any subscriber tier provided by the Grantee which includes
the delivery of local broadcast stations, and public, educational
and governmental access channels. The Basic service does not include
optional program and satellite service tiers, a la carte services,
per channel, per program, or auxiliary services for which a separate
charge is made. However, Grantee may include other satellite signals
on the Basic tier.
A system of antennas, cables, wires, lines, towers, wave
guides, or other conductors, converters, equipment or facilities,
designed and constructed for the purpose of producing, receiving,
transmitting, amplifying and distributing, audio, video, and other
forms of electronic, electrical or optical signals, which includes
cable television service and which is located in the City. The definition
shall not include any such facility that serves or will serve only
subscribers in one or more multiple unit dwellings under common ownership,
control or management, and which does not use City rights-of-way.
The City of South Milwaukee, Wisconsin.
A signaling path provided by a cable communications system
to transmit signals of any type from a subscriber terminal to another
point in the cable communications system.
Actual working control or ownership of a System in whatever
manner exercised. A rebuttable presumption of the existence of control
or a controlling interest shall arise from the beneficial ownership,
directly or indirectly, by any the period in which they are offering
securities to the public) of 10% or more of a Cable System or the
Franchise under which the System is operated. A change in the control
or controlling interest of an Entity which has control or a controlling
interest in a Grantee shall constitute a change in the control or
controlling interest of the System under the same criteria. Control
or controlling interest as used herein may be held simultaneously
by more than one Person or Entity.
An electronic device which converts signals to a frequency
not susceptible to interference within the television receiver of
a subscriber, and by an appropriate channel selector also permits
a subscriber to view more that 12 channels delivered by the system
at designated converter dial locations.
The Federal Communications Commission and any legally appointed,
designated or elected agent or successor.
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.
All revenue collected directly or indirectly by the Grantee,
from the provision of cable service within the City including but
not limited to, basic subscriber service monthly fees, pay cable fees,
installation and reconnection fees, franchise fees, leased channel
fees, converter rentals, program guides, studio rental, production
equipment, personnel fees, late fees, downgrade fees, revenue from
the sale, exchange, use or cable cast of any programming developed
on the system for community or institutional use, advertising, and
any value (at retail price levels) of any non-monetary remuneration
received by Grantee in consideration of the performance of advertising
or any other service of the system; provided, however, that this shall
not include any taxes on services furnished by the Grantee herein
imposed directly upon any subscriber or user by the state, local or
other governmental unit and collected by the Grantee on behalf of
the governmental unit. Subject to applicable federal law, the term
Gross Revenues includes revenues attributed to franchise fees and
revenues collected directly or indirectly from other ancillary telecommunications
services (such as but not limited to, point-to-point telecommunications,
point-to-point multipoint telecommunications, data transmissions,
etc.) but only to the extent that all other providers of such telecommunications
services in the City are subject to the same compensation requirements
of the City.
All areas in the City having at least 20 dwelling units per
street mile.
The connection of the system from feeder cable to subscribers'
terminals.
Is permissive.
Observing a communications signal, or the absence of a signal,
where the observer is neither the subscriber nor the programmer, whether
the signal is observed by visual or electronic means, for any purpose
whatsoever; provided monitoring shall not include system wide, non-individually
addressed sweeps of the system for purposes of verifying system integrity,
controlling return paths transmissions, or billing for pay services.
As applied to the grantee, shall mean those hours during
which similar businesses in the City are open to serve customers.
In all cases, Normal Business Hours shall include some evening hours
at least one night per week, and/or some weekend hours.
Those service conditions which are within the control of
the Grantee. Those conditions which are not within the control of
the Grantee 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 Grantee 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.
The loss of either picture or sound or both for a single
or multiple subscriber(s).
Is mandatory.
The surface of and all right-of-way and the space above and
below any public street, road, highway, freeway, lane, path, public
way or place, sidewalk, alley, court, boulevard, parkway, drive or
easement now or hereafter held by the City for the purpose of public
travel and shall include other easements or rights-of-way as shall
be now held or hereafter held by the City which shall, within their
proper use and meaning entitle the Grantee to the use thereof for
the purposes of installing poles, wire, cable, conductors, ducts,
conduits, vaults, manholes, amplifiers, appliances, attachments, and
other property as may be ordinarily necessary and pertinent to a telecommunications
system.
Any person, firm, Grantee, corporation, or association lawfully
receiving Basic and/or any additional service from Grantee.
A party utilizing a cable television system channel for purposes
of production or transmission of material to subscribers, as contrasted
with receipt thereof in a subscriber capacity.
Any franchise granted by the City pursuant to Wis. Stats., § 66.082,
shall grant to the Grantee the right and privilege to erect, construct,
operate and maintain in, upon, and along, across, above, over and
under the streets, now in existence and as may be created or established
during its terms; any poles, wires, cable, underground conduits, manholes,
and other television conductors and fixtures necessary for the maintenance
and operation of a Cable System.
A.
Upon adoption of any franchise agreement and execution thereof by
the Grantee, the Grantee agrees to be bound by all the terms and conditions
contained herein.
B.
Any Grantee also agrees to provide all services specifically set
forth in its application if any and to provide cable television service
within the confines of the City; and by its acceptance of the franchise,
the Grantee specifically grants and agrees that its application is
thereby incorporated by reference and made a part of the franchise.
In the event of a conflict between such proposals and the provisions
of this chapter, that provision which provides the greatest benefit
to the City, in the opinion of the City, shall prevail.
Any franchise is for the present territorial limits of the City
and for any area henceforth added thereto during the term of the franchise.
The franchise and the rights, privileges and authority granted
shall take effect and be in force as set forth in the Franchise Agreement
and shall continue in force and effect for a term of no longer than
15 years, provided that within 15 days after the date of final passage
of the franchise the Grantee shall file with the City its unconditional
acceptance of the franchise and promise to comply with and abide by
all its provisions, terms and conditions. Such acceptance and promise
shall be in writing duly executed and sworn to, by, or on behalf of
the Grantee before a notary public or other officer authorized by
law to administer oaths. Such franchise shall be non-exclusive and
revocable.
A.
Current federal statutory process:
(1)
The City may, on its own initiative, during the six-month period
which begins with the 36 months before the Franchise expiration, commence
a proceeding which affords the public in the City appropriate notice
and participation for the purpose of: (A) identifying the future cable-related
community needs and interests and (B) reviewing the performance of
the Grantee under the Franchise. If the Grantee submits, during such
six-month period, a written renewal notice requesting the commencement
of such proceeding, the City shall commence such proceeding not later
than six months after the date such notice is submitted.
(2)
Upon completion of the proceeding under Subsection A(1) above, the Grantee may, on its own initiative or at the request of the City, submit a proposal for renewal. The City may establish a date by which such proposal shall be submitted.
(3)
Upon submittal by the Grantee of a proposal to the City for the renewal
of the franchise, the City shall provide prompt, public notice of
such proposal and renew the Franchise or issue a preliminary assessment
that the Franchise should not be renewed, and at the request of the
Grantee or on its own initiative, commence an administrative proceeding,
after providing prompt, public notice of such proceeding.
(4)
The City shall consider in any administrative proceeding whether:
(a)
The Grantee has substantially complied with material terms of
the existing Franchise and with applicable law;
(b)
The quality of the Grantee's service, including signal
quality, response to consumer complaints and billing practices, but
without regard to the mix or quality of cable services or other services
provided over the System, has been reasonable in the light of community
needs;
(c)
The Grantee has the financial, legal and technical ability to
provide the services, facilities and equipment as set forth in the
Grantee's proposal; and
(d)
The Grantee's proposal is reasonable to meet the future
cable-related community needs and interests, taking into account the
costs of meeting such needs and interests.
(5)
In any proceeding under Subsection A(4), the Grantee shall be afforded adequate notice and the Grantee and the City, or its designee, shall be afforded fair opportunity for full participation, including the right to introduce evidence [including evidence related to issues raised in the proceedings under Subsection A(1) above], to require the production of evidence and to question witnesses. A transcript shall be made of any such proceeding.
(6)
At the completion of a proceeding under Subsection A(4), the City shall issue a written decision granting or denying the proposal for renewal based upon the record of such proceeding and transmit a copy of such decision to the Grantee. Such decision shall state the reasons therefore.
(7)
Any denial of a proposal for renewal that has been submitted in compliance with the procedures set forth above, shall be based on one or more adverse findings made with respect to the factors described at Subsection A(4)(a) through (d) pursuant to the record of the proceeding under said paragraph. The City may not base a denial of renewal on a failure to substantially comply with the material terms of the Franchise or on events considered under Subsection A(4)(a) unless the City has provided the Grantee with notice and the opportunity to cure or in any case in which it is documented that the City has waived its right to object.
(8)
The Grantee may appeal any final decision or failure of the City
to act in accordance with the procedural requirements of this section.
The court shall grant appropriate relief if the court finds that:
(a)
Any action of the City is not in compliance with the procedural
requirements of this Section; or
(b)
In the event of a final decision of the City denying the renewal proposal, the Grantee has demonstrated that the adverse finding of the City with respect to each of the factors described in Subsection A(4)(a) through (d) on which the denial is based is not supported by a preponderance of the evidence, based on the record of the administrative proceeding.
B.
Franchise renewal in the event of change in federal law. A franchise
may be renewed by the City upon application of the Grantee pursuant
to the procedure established in this section, and in accordance with
the then applicable law.
(1)
At least 24 months prior to the expiration of the franchise, the
Grantee shall inform the City in writing of its intention to renew
or allow Franchise to end.
(2)
The Grantee shall submit a proposal for renewal which demonstrates:
(a)
That it has been and continues to be in substantial compliance
with the terms, conditions, and limitations of this Ordinance and
its franchise;
(b)
That its system has been installed, constructed, maintained
and operated in accordance with the accepted standards of the industry,
and this Ordinance and its franchise;
(c)
That it has the legal, technical, financial, and other qualifications
to continue to maintain and operate its system, and to extend the
same as the state of the art progresses so as to assure its Subscribers
high quality service; and
(d)
That it has made a good faith effort to provide services and
facilities which accommodate the demonstrated needs of the community
as may be reasonably ascertained by the City.
(3)
After giving public notice, the City shall proceed to determine whether
the Grantee has satisfactorily performed its obligations under the
franchise. To determine satisfactory performance, the City shall consider
technical developments and performance of the system, programming
other services offered, cost of services, and any other particular
requirements set in this chapter; also, the City shall consider the
Grantee's reports made to the City and the Federal Communication
Commission; may require the Grantee to make available specified records,
documents, and information for this purpose, and may inquire specifically
whether the Grantee will supply services sufficient to meet community
needs and interests; industry performance on a national basis shall
also be considered. Provision shall be made for public comment.
(4)
The City shall then prepare any amendments to this Ordinance that
it believes necessary.
(5)
If the City finds the Grantee's performance satisfactory, and
finds the Grantee's technical, legal, and financial abilities,
acceptable, and finds the Grantee's renewal proposal meets the
future cable-related needs of the City, a new franchise shall be granted
pursuant to this Ordinance as amended for a period to be determined.
(6)
If the Grantee is determined by the City to have performed unsatisfactorily,
new applicants may be sought and evaluated and a franchise award shall
be made by the City according to franchising procedures adopted by
the City.
A.
In accepting this franchise, the Grantee shall acknowledge that its
rights hereunder are subject to the police power of the City to adopt
and enforce general ordinances necessary to safety and welfare of
the public; and shall agree to comply with all applicable general
laws and ordinances enacted by the City pursuant to such power.
B.
Any conflict between the provisions of this ordinance and any other
present or future lawful exercise of the City's police powers
shall be resolved in favor of the latter, except that any such exercise
that is not of general application in the jurisdiction, or applies
exclusively to the Grantee or cable television systems which contains
provisions inconsistent with this franchise, shall prevail only if
upon such exercise the City finds an emergency exists constituting
a danger to health, safety, property or general welfare or such exercise
is mandated by law.
No cable television system shall be allowed to occupy or use
the streets, i.e. rights-of-way, for system installation and maintenance
purposes, of the City or be allowed to operate without a franchise.
The City shall have the right, during the life of this franchise,
to install and maintain free of charge upon the poles of the Grantee
any wire or pole fixtures that do not unreasonably interfere with
the cable television system operations of the Grantee. The City shall
indemnify and hold harmless the Grantee from any claim that might
arise due to or as a result of the City's use.
Costs to be borne by the Grantee shall include any requirements
or charges incidental to the awarding or enforcing of the initial
franchise, but shall not be limited to, all costs of publications
or notices prior to any public meeting provided for pursuant to this
franchise, and any costs not covered by application fees, incurred
by the City in its study, preparation of proposal documents, evaluation
of all applications, and examinations of the applicants' qualifications.
All notices from the Grantee to the City pursuant to this Ordinance
shall be to the City Administrator's Office. The Grantee shall
maintain with the City, throughout the term of this franchise, an
address for service of notices by mail. The Grantee shall maintain
a central office to address any issues relating to operating under
this cable television ordinance.
A.
Within 15 days after the award of the initial franchise, the Grantee
shall deposit with the City either an irrevocable letter of credit
from a financial institution or a security deposit in the amount of
$50,000 with the form to be established by the City. The form and
content of such letter of credit or security deposit shall be approved
by the City Attorney. These instruments shall be used to insure the
faithful performance of the Grantee of all provisions of this Franchise;
and compliance with all orders, permits and directions of any agency,
commission, board, department, division, or office of the City having
jurisdiction over its acts or defaults under this franchise, and the
payment by the Grantee of any claims, liens, and taxes due the City
which arise by reason of the construction, operation or maintenance
of the system.
C.
If the Grantee fails to pay to the City any compensation within the
time fixed herein; or fails after 15 days' notice to pay to the
City any taxes due and unpaid; or fails to repay the City within 15
days, any damages, costs or expenses which the City is compelled to
pay by reason of any act or default of the Grantee in connection with
this franchise, or fails, after three days' notice of such failure
by the City to comply with any provision of this franchise which the
City reasonably determines can be remedied by demand on the letter
of credit or security deposit, the City may immediately request payment
of the amount thereof, with interest and any penalties, from the letter
of credit or security deposit. Upon such request for payment, the
City shall notify the Grantee of the amount and date thereof.
D.
The rights reserved to the City with respect to the letter of credit
are in addition to all other rights of the City, whether reserved
by this franchise or authorized by law, and no action, proceeding
or exercise of a right with respect to such letter of credit shall
affect any other right the City may have.
E.
The letter of credit shall contain the following endorsement: "It
is hereby understood and agreed that this letter of credit or security
deposit may not be canceled by the surety nor the intention not to
renew be stated by the surety until 30 days after receipt by the City,
by registered mail, of a written notice of such intention to cancel
or not to renew."
F.
Upon receipt of the thirty-day notice, this shall be construed as
a default granting the City the right to call on the bank for either
the security deposit or letter of credit.
G.
The City at any time during the term of this Ordinance, may waive
Grantee's requirement to maintain a letter of credit or security
deposit. The invitation to waive the requirement can be initiated
by the City or Grantee.
A.
Within 30 days after the award of this franchise, the initial Grantee
shall file with the City a performance bond in the amount of not less
than 50% of costs to install the system contained in the new application
in favor of the City. This bond shall be maintained throughout the
construction period and until such time as determined by the City,
unless otherwise specified in a Franchise Agreement.
B.
If the Grantee fails to comply with any law, ordinance or resolution governing the franchise, or fails to well and truly observe, fulfill and perform each term and condition of the franchise, as it relates to the conditions relative to the construction of the system, including the Franchise Agreement which is incorporated herein by reference, there shall be recoverable jointly and severally, from the principal and surety of the bond, any damages or loss suffered by the City as a result, including the full amount of any compensation, indemnification, or cost of removal or abandonment of any property of the Grantee, plus a reasonable allowance for attorney's fees, including the City's legal staff, and costs, up to the full amount of the bond. This section shall be an additional remedy for any and all violations outlined in § 30.13.
C.
The City may, upon completion of construction of the service area,
waive or reduce the requirement of the Grantee to maintain the bond.
However, the City may require a performance bond to be posted by the
Grantee for any construction subsequent to the completion of the initial
service areas, in a reasonable amount and upon such terms as determined
by the City.
D.
The bond shall contain the following endorsement: "It is hereby understood
and agreed that this bond may not be canceled by the surety nor the
intention not to renew by stated by the surety until 30 days after
receipt by the City, by registered mail, a written notice of such
intent to cancel and not to renew." Upon receipt of a thirty-day notice,
this shall be construed as default granting the City the right to
call in the bond.
E.
The City at any time during the term of this Ordinance may, waive
Grantee's requirement to maintain a performance bond. The invitation
to waive the requirement can be initiated by the City or Grantee.
A.
The Grantee shall maintain and by its acceptance of the franchise
specifically agrees that it will maintain throughout the term of the
franchise, liability insurance insuring the City and the Grantee in
the minimum amount of:
B.
The certificate of insurance obtained by the Grantee in compliance
with this section must be approved by the City Attorney and such certificate
of insurance, along with written evidence of payment of required premiums,
shall be filed and maintained with the City during the term of the
franchise, and may be changed from time to time to reflect changing
liability limits. The Grantee shall immediately advise the City Attorney
of any litigation that may develop that would affect this insurance.
C.
Neither the provisions of this section nor any damages recovered
by the City thereunder, shall be construed to or limit the liability
of the Grantee under any franchise issued hereunder or for damages.
D.
All insurance policies maintained pursuant to this franchise shall
contain the following endorsement: "It is hereby understood and agreed
that this insurance policy may not be canceled by the surety nor the
intention not to renew be stated by the surety until 30 days after
receipt by the City, by registered mail, a written notice of such
intention to cancel or not to renew."
A.
Disclaimer of liability. The City shall not at any time be liable
for injury or damage occurring to any Person or property from any
cause whatsoever arising out of the construction, maintenance, repair,
use, operation, condition or dismantling of the Grantee's Telecommunication
System and due to the act or omission of any Person or entity other
than the City or those Persons or entities for which the City is legally
liable as a matter of law.
B.
Indemnification. The Grantee shall, at its sole cost and expense,
indemnify and hold harmless the City, all associated, affiliated,
allied and subsidiary entitles of the City, now existing or hereinafter
created, and their respective officers, boards, commissions, employees,
agents, attorneys, and contractors (hereinafter referred to as "Indemnities"),
from and against:
(1)
Any and all liability, obligation, damages, penalties, claims, liens,
costs, charges, losses and expenses (including, without limitation,
reasonable fees and expenses of attorneys, expert witnesses and consultants),
which may be imposed upon, incurred by or be asserted against the
Indemnities by reason of any act or omission of the Grantee, its personnel,
employees, agents, contractors or subcontractors, resulting in person
injury, bodily injury, sickness, disease or death to any Person or
damage to, loss of or destruction of tangible or intangible property,
libel, slander, invasion or privacy and unauthorized use of any trademark,
tradename, copyright, patent, service mark or any other right of any
Person, firm or corporation, which may arise out of or be in any way
connected with the construction, installation, operation, maintenance
or condition of the Telecommunications System caused by Grantee, it
subcontractors or agents or the Grantee's failure to comply with
any Federal, State or local statute, ordinance or regulation.
(2)
Any and all liability, obligations, damages, penalties, claims, liens,
costs, charges, losses and expenses (including, without limitation,
reasonable fees and expenses of attorneys, expert witnesses and other
consultants), which is imposed upon, incurred by or asserted against
the indemnities by reason of any claim or lien arising out of work,
labor, materials or supplies provided or supplied to the Grantee,
its contractors or subcontractors, for the installation, construction,
operation or maintenance of the Telecommunications System cased by
Grantee, its subcontractors or agents and, upon the written request
of the City shall cause such claim or lien to be discharged or bonded
within 15 days following such request.
(3)
Any and all liability, obligation, damages, penalties, claims, liens,
costs, charges, losses and expenses (including, without limitation,
reasonable fees and expenses of attorneys, expert witnesses and consultants),
which may be imposed upon, incurred by or be asserted against the
Indemnities by reason of any financing or securities offering by Grantee
or its Affiliates for violations of the common law or any laws, statutes,
or regulations of the State of Wisconsin or United States, including
those of the Federal Securities and Exchange Commission, whether by
the Grantee or otherwise; excluding therefrom, however, claims which
are solely based upon and shall arise out of information supplied
by the City to the Grantee in writing and included in the offering
materials with the express written approval of the City prior to the
offering.
C.
Assumption of risk. The Grantee undertakes and assumes for its officers,
agents, contractors and subcontractors and employees, all risk of
dangerous conditions, if any, on or about any City owned or controlled
property, including Public Rights-of-Way, and the Grantee hereby agrees
to indemnify and hold harmless the Indemnities against and from any
claim asserted or liability imposed upon the Indemnities for personal
injury or property damage to any Person arising out of the installation,
operation, maintenance or condition of the Telecommunications System
or the Grantee's failure to comply with any federal, state or
local statute, ordinance or regulation.
D.
Defense of indemnities. In the event any action or proceeding shall
be brought against the Indemnities by reason of any matter for which
the indemnities are indemnified hereunder, the Grantee shall, upon
notice from any of the Indemnities, at the Grantee's sole cost
and expense, resist and defend the same with legal counsel mutually
acceptable to the City Attorney of the City of South Milwaukee and
Grantee provided further, however, that the Grantee shall not admit
liability in any such matter on behalf of the Indemnities without
the written consent of the Corporation counsel of the City of South
Milwaukee or City Attorney's designee.
E.
Notice cooperation and expenses. The City shall give the Grantee
prompt notice of the making of any claim or the commencement of any
action, suit or other proceeding covered by the provisions of this
Section. Nothing herein shall be deemed to prevent the City from cooperating
with Grantee and participating in the defense of any litigation by
the City's own counsel. The Grantee shall pay all reasonable
expenses incurred by the City in defending itself with regard to any
such actions, suits or proceedings. These expenses shall include all
out-of-pocket expenses such as attorney fees and shall also include
the reasonable value of any services rendered by or on behalf of the
City Attorney if such service is determined necessary and appropriate
by the City Attorney and the actual expense of the City's agents,
employees or expert witnesses, and disbursements and liabilities assumed
by the City in connection with such suits, actions or proceedings.
No recovery by the City of any sum under the Letter of Credit shall
be any limitation upon the liability of the Grantee to the City under
the terms of this Section, except that any sum so received by the
City shall be deducted from any recovery which the City might have
against the Grantee under the terms of this Section.
F.
Nonwaiver of statutory limits. Nothing in this agreement is intended
to express or imply a waiver of the statutory provisions, of any kind
or nature, as set forth in Wis. Stats., § 893.80 et seq.,
including the limits of liability of the City as exists presently
or may be increased from time to time by the legislature.
A.
The Grantee shall not deny service, deny access, or other wise discriminate
against subscribers, channel users, or general citizens on the basis
of race, color, religion, national origin, income or sex. The Grantee
shall comply at all times with all other applicable federal, state
and local laws and regulations and all executive and administrative
orders relating to nondiscrimination which are hereby incorporated
and made part of this chapter by reference.
B.
The Grantee shall strictly adhere to the equal employment opportunity
requirements of the Federal Communications Commission, state and local
regulations, and as amended from time to time.
C.
The Grantee shall, at all times, comply with the privacy requirements
of State and federal law.
D.
Grantee is required to make all services available to all residential
dwellings throughout the service area.
The Grantee shall provide cable communications service throughout
the entire franchise area pursuant to the provisions of this franchise
and shall keep a record for at least three years of all requests for
service received by the Grantee. This record shall be available for
public inspection at the local office of the Grantee during regular
office hours.
A.
New construction timetable:
(1)
Within two years from the date of the award of the initial franchise,
the Grantee must make cable television service available to every
dwelling unit within the initial service area.
(a)
The Grantee must make cable television service available to
at least 20% of the dwelling units within the initial service area
within six months from the date of the award of the franchise.
(b)
The Grantee must make cable television service available to
at least 50% of the dwelling units within the initial service area
within one year from the date of the award of the franchise.
(2)
The Grantee, in its application if any, may propose a timetable of
construction which will make cable television service available in
the initial service area sooner than the above minimum requirements,
in which case the said schedule will be made part of the franchise
agreement, and will be binding upon the Grantee.
(4)
In special circumstances the City can waive 100% completion within
the two-year time frame provided substantial completion is accomplished
within allotted time frame, substantial completion construed to be
not less than 95% and justification for less than 100% must be submitted
subject to the satisfaction of the City.
B.
Line extensions.
(1)
In areas of the franchise territory not included in the initial service
areas, the Grantee shall be required to extend its system pursuant
to the following requirements:
(a)
No customer shall be refused service arbitrarily. Grantee is
hereby authorized to extend the Cable System as necessary within the
City. To expedite the process of extending the Cable System into a
new subdivision, the City will forward to the Grantee an approved
engineering plan of each project. Subject to the density requirements,
the Grantee shall commence the design and construction process upon
receipt of the final engineering plan. Upon notification from the
City that the first home in the project has been approved for building
permit, the Grantee shall have a maximum of three months to complete
the construction/activation process within the project phase.
(b)
The Grantee must extend and make cable television service available
to every dwelling unit in all unserved, developing areas having at
least 20 dwelling units planned per street mile, as measured from
the existing system, and shall extend its system simultaneously with
the installation of utility lines.
(c)
The Grantee must extend and make cable television service available
to any isolated resident outside the initial service area requesting
connection at the standard connection charge, if the connection to
the isolated resident would require no more than a standard one-hundred
seventy-five-foot drop line.
(2)
Early extension. In areas not meeting the requirements for mandatory
extension of service, the Grantee shall provide, upon the request
of a potential subscriber desiring service, an estimate of the costs
required to extend service to the subscriber. The Grantee shall then
extend service upon request of the potential subscriber. The Grantee
may require advance payment or assurance of payment satisfactory to
the Grantee. The amount paid by subscribers for early extensions shall
be nonrefundable, and in the event the area subsequently reaches the
density required for mandatory extension, such payments shall be treated
as consideration for early extension.
(3)
New development under grounding. In cases of new construction or
property development where utilities are to be placed underground,
the developer or property owner shall give the Grantee reasonable
notice of such construction or development, and of the particular
date on which open trenching will be available for the Grantee's
installation of conduit, pedestal and/or vaults, and laterals to be
provided at the Grantee's expense. The Grantee shall also provide
specifications as needed for trenching. Costs of trenching and easements
required to bring service to the development shall be borne by the
developer or property owner; except that if the Grantee fails to install
its conduit, pedestals and/or vaults, and laterals within five working
days of the date the trenches are available, as designated in the
notice given by the developer or property owner, then should the trenches
be closed after the five-day period, the cost of new trenching is
to be borne by the Grantee. Except for the notice of the particular
date on which trenching will be available to the Grantee, any notice
provided for the Grantee by the City of a preliminary plat request
shall satisfy the requirement of reasonable notice if sent to the
local general manager or system engineer of the Grantee prior to approval
of the preliminary plat request.
C.
Special agreements. Nothing herein shall be construed to prevent the Grantee from serving areas not covered under this section upon agreement with developers, property owners, or residents provided that 5% of those gross revenue are paid to the City as franchise fees under § 30.27.
(1)
The Grantee, in its application, may propose a line extension policy
which will result in serving more residents of the City than as required
above, in which case the Grantee's policy will be incorporated
into the franchise agreement, and will be binding on the Grantee.
A.
Compliance with construction and technical standards. The Grantee
shall construct, install, operate and maintain its system in a manner
consistent with all laws, ordinances, construction standards, governmental
requirements, and FCC technical standards. In addition, the Grantee
shall provide the City, upon request, with a written report of the
results of the Grantee's annual proof of performance tests conducted
pursuant to Federal Communications Commission standards and requirements.
B.
Additional specifications.
(1)
Construction, installation and maintenance of the cable television
system shall be performed in an orderly and workmanlike manner. All
cables and wires shall be installed, where possible, parallel with
electric and telephone lines. Multiple cable configurations shall
be arranged in parallel and bundled with due respect for engineering
considerations.
(3)
In any event, the System shall not endanger or interfere with the
safety of persons or property in the franchise area or other areas
where the Grantee may have equipment located.
(4)
Any antenna structure used in the system shall comply with construction,
marking, and lighting of antenna structure, required by the United
States Department of Transportation.
(5)
All working facilities and conditions used during construction, installation
and maintenance of the cable television system shall comply with the
standards of the Occupational Safety and Health Administration.
(6)
Radio Frequency (RF) leakage shall be checked at reception locations
for emergency radio services to prove no interference signal combinations
are possible. Stray radiation shall be measured adjacent to any proposed
aeronautical navigation radio sites to prove no interference to airborne
navigational reception in the normal flight patterns. FCC rules and
regulations shall govern.
(7)
The Grantee shall maintain equipment capable of providing standby
power for headend and transport system for a minimum of two hours.
(8)
In all areas of the City where the cables, wires, and other like
facilities of public utilities are placed underground, the Grantee
shall place its cables, wires, or other like facilities underground.
When public utilities relocate their facilities from pole to underground,
the cable operator must concurrently do so.
A.
Interference with persons and improvements. The Grantee's system,
poles, wires and appurtenances shall be located, erected and maintained
so that none of its facilities shall endanger or interfere with the
lives of persons or interfere with the rights or reasonable convenience
of property owners who adjoin any of the streets and public ways,
or interfere with any improvements the City may deem proper to make,
or unnecessarily hinder or obstruct the free use of the streets, alleys,
bridges, easements or public property.
B.
Restoration to prior condition. In case of any disturbance of pavement,
sidewalk, landscaping, driveway or other surfacing, the Grantee shall,
at its own cost and expense and in a manner approved by the City,
replace and restore all paving, sidewalk, driveway, landscaping, or
surface of any street or alley disturbed, in as good condition as
before the work was commenced and in accordance with standards for
such work set by the City.
C.
Erection, removal and common uses of poles:
(1)
No poles or other wire-holding structures shall be erected by the
Grantee without prior approval of the City with regard to location,
height, types, and any other pertinent aspect. However, no location
of any pole or wire-holding structure of the Grantee shall be a vested
interest and such poles or structures shall be removed or modified
by the Grantee at its own expense whenever the City determines that
the public convenience would be enhanced thereby.
(2)
Where poles or other wire-holding structures already existing for
use in serving the City are available for use by the Grantee, but
it does not make arrangements for such use, the City may require the
Grantee to use such poles and structures if it determines that the
public convenience would be enhanced thereby and the terms of the
use available to the Grantee are just and reasonable.
(3)
In the absence of any governing federal or state statute, where the
City or a public utility serving the City desires to make use of the
poles or other wire-holding structures of the Grantee, but agreement
thereof with the Grantee cannot be reached, the City may require the
Grantee to permit such use for such consideration and upon such terms
as the City shall determine to be just and reasonable, if the City
determines that the use would enhance the public convenience and would
not unduly interfere with the Grantee's operations.
D.
Relocation of the facilities. If at any time during the period of
this franchise the City shall lawfully elect to alter, or change the
grade of any street, alley or other public ways, the Grantee, upon
reasonable notice by the City, shall remove or relocate as necessary
its poles, wires, cables, underground conduits, manholes and other
fixtures at its own expense unless the utilities are compensated,
in which case the Grantee shall be similarly compensated.
E.
Cooperation with building movers. The 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 removal, raising or lowering of wires
shall be paid by the person requesting the same, and the Grantee shall
have the authority to require such payment in advance. The Grantee
shall be given not less than 48 hours' advance notice to arrange
for such temporary wire changes.
F.
Tree trimming. The Grantee shall not remove any tree or trim any
portion, either above, at or below ground level, of any tree within
any public place without the prior consent of the City. The City shall
have the right to do the trimming requested by the Grantee at the
cost of the Grantee. Regardless of who performs the work requested
by the Grantee, the Grantee shall be responsible, shall defend and
hold City harmless for any and all damages to any tree as a result
of trimming, or to the land surrounding any tree, whether such tree
is trimmed or removed.
A.
The Grantee shall put, keep and maintain all parts of the system
in good condition throughout the entire franchise period.
B.
Upon the reasonable request for service by any person located within
the franchise territory, the Grantee shall, within 30 days, furnish
the requested service to such person within terms of the line extension
policy. A request for service shall be unreasonable for the purpose
of this subsection if no trunk line installation capable of servicing
that person's block has as yet been installed.
C.
The Grantee shall render efficient service, make repairs promptly,
and interrupt service only for good cause and for the shortest time
possible. Such interruptions, insofar as possible, shall be preceded
by notice and shall occur during periods of minimum system use.
D.
The Grantee shall not allow its cable or other operations to interfere
with television reception of subscribers or persons not served by
the Grantee, nor shall the system interfere with, obstruct or hinder
in any manner the operation of the various utilities serving the residents
within the confines of the City nor shall other utilities interfere
with the Grantee's system.
E.
The Grantee shall have knowledgeable, qualified Grantee representatives
available to respond to customer telephone inquires 24 hours per day
and seven days per week.
F.
Under normal operating conditions, telephone answer time, including
wait time and the time required to transfer the call, shall not exceed
30 seconds. This standard shall be met no less than 90% of the time
as measured on an annual basis.
G.
Under normal operating conditions, the customer will receive a busy
signal less than 3% of the total time that the office is open for
business.
H.
Standard installations will be performed within seven business days
after an order has been placed. A standard installation is one that
is within 175 feet of the existing system.
I.
Excluding those situations which are beyond its control, the Grantee
will respond to any Service Interruption promptly and in no event
later than 24 hours from the time of initial notification. All other
regular service requests will be responded to within 36 hours during
the normal work week for that system. The appointment window alternatives
for installations, service calls and other installation activities
will be: "morning"; or "afternoon"; not to exceed a four-hour "window"
during normal business hours for the system, or at a time that is
mutually acceptable. The Grantee will schedule supplemental hours
during which appointments can be scheduled based on the needs of the
community. If at any time an installer or technician is running late,
an attempt to contact the customer will be made and the appointment
rescheduled as necessary at a time that is convenient to the customer.
J.
Customer service centers and bill payment locations will be open
for walk-in customer transactions a minimum of eight hours a day Monday
through Friday, unless there is a need to modify those hours because
of the location or customers served. The Grantee and City by mutual
consent will establish supplemental hours on weekdays and weekends
if it would fit the needs of the community.
K.
Subscriber credit for outages:
(1)
Upon Service Interruption and/or Outages of subscriber's cable
service, the following shall apply:
(a)
For Service Interruptions and/or Outages of over four hours
and up to seven days, the Grantee shall provide, at the Subscriber's
request, a credit of 1/30 on one month's fees for affected Services
for each twenty-four-hour period service is interrupted for four or
more hours for any single subscriber, with the exception of subscribers
disconnected because of non-payment or excessive signal leakage.
(b)
For Service Interruptions and/or Outages of seven days or more
in one month, the Grantee shall provide, at the subscriber's
request, a full month's credit for affected services for all
affected subscribers.
L.
The Grantee will provide written information in each of the following
areas at the time of installation and at any future time upon the
request of the customer:
M.
Bills will be clear, concise and understandable, with all cable services
itemized.
N.
Credits will be issued promptly, but no later than the customer's
next billing cycle following the resolution of the request and the
return of the equipment by the Grantee if service has been terminated.
O.
Customers will be notified a minimum of 30 days in advance of any
rate or channel change, provided that the change is within the control
of the Grantee.
P.
The Grantee shall maintain and operate its network in accordance
with the rules and regulations as are incorporated herein or may be
promulgated by the Federal Communication Commissions, the United States
Congress, or the State of Wisconsin.
Q.
The Grantee shall continue, through the term of the franchise, to maintain the technical standards and quality of service set forth in this chapter. Should the City find, by resolution, that the Grantee has failed to maintain these technical standards and quality of service, Grantee shall be required to implement a plan for resolution. Failure to make such improvements within three months of such resolution will constitute a breach of a condition for which penalties contained in § 30.46 are applicable.
R.
The Grantee shall keep a monthly service log which will indicate
the nature of each service complaint received in the last 24 months,
the date and time it was received, the disposition of said complaint,
and the time and date thereof. This log shall be made available for
periodic inspection by the City.
A.
It shall be the right of all subscribers to continue receiving service
insofar as their financial and other obligations to the Grantee are
honored. If the Grantee elects to over build, rebuild, modify or sell
the system, or the City gives notice of intent to terminate or fails
to renew this franchise, the Grantee shall act so as to ensure that
all subscribers receive continuous, uninterrupted services regardless
of the circumstances.
B.
If there is a change of franchise, or if a new operator acquires
the system, the Grantee shall cooperate with the City, new franchisee
or operator in maintaining continuity of service to all subscribers.
During such period, the Grantee shall be entitled to the revenues
for any period during which it operates the system, and shall be entitled
to reasonable costs for its services until it no longer operates the
system.
C.
If the Grantee fails to operate the system for seven consecutive
days without prior approval of the City or without just cause, the
City may, at its option, operate the system or designate an operator
until such time as the Grantee restores service under conditions acceptable
to the City of a permanent operator is selected. If the City is required
to fulfill this obligation for the Grantee, the Grantee shall reimburse
the City for all reasonable costs or damages in excess of revenues
from the system received by the City that are the result of the Grantee's
failure to perform.
A.
The Mayor is designated as having primary responsibility for the
continuing administration of the franchise and implementation of complaint
procedures.
B.
During the terms of this franchise, and any renewal thereof, the
Grantee shall maintain a central office for the purpose of receiving
and resolving all complaints regarding the quality of service, equipment
malfunctions, and similar matters. The office must be reachable by
a local, toll-free telephone call to receive complaints regarding
quality of service, equipmental functions and similar matters. The
Grantee will use its good faith efforts to arrange for one or more
payment locations in a central location where customers can pay bills
or conduct other business activities.
C.
As subscribers are connected or reconnected to the system, the Grantee
shall, by appropriate means, such as a card or brochure, furnish information
concerning the procedures for making inquiries or complaints, including
the name, address and local telephone number of the employee or employees
or agent to whom such inquiries or complaints are to be addressed.
D.
When there have been similar complaints made, or where there exists
other evidence, which, in the judgment of the City, casts doubt on
the reliability or quality of cable service, the City shall have the
right and authority to require the grantee to test, analyze and report
on the performance of the system. The Grantee shall fully cooperate
with the City in performing such testing and shall prepare results
and a report, if requested, within 30 days after notice. Such report
shall include the following information:
(1)
The nature of the complaint or problem which precipitated the special
tests;
(2)
What system component was tested;
(3)
The equipment used and procedures employed in testing;
(4)
The method, if any, in which such complaint or problem was resolved;
(5)
Any other information pertinent to the tests and analysis which may
be required.
E.
The City may require that tests be supervised, by an independent
professional engineer or equivalent of the City's choice. The
engineer should sign all records of special tests and forward to the
City such records with a report interpreting the results of the tests
and recommending actions to be taken. Should such a test prove that
the Grantee failed to meet the technical standard, the Grantee shall
bear the cost of the test. If the test should prove that the Grantee
met the technical standards, the City shall bear the costs of the
test.
F.
The City's right under this section shall be limited to requiring
tests, analysis and reports covering specific subjects and characteristics
based on complaints or other evidence when and under such circumstances
as the City has reasonable grounds to believe that the complaints
or other evidence require that tests be performed to protect the public
against substandard cable service.
The Grantee shall have the authority to promulgate such rules,
regulations, terms and conditions governing the conduct of its business
as shall be reasonable necessary to enable the Grantee to exercise
its rights and perform its obligations under this franchise, and to
assure an uninterrupted service to each and all of its customers;
provided, however, that such rules, regulations, terms and conditions
shall not be in conflict with the provisions hereof or applicable
state and federal laws, rules and regulations.
A.
For the reason that the streets of the City to be used by the Grantee
in the operation of its system within the boundaries of the City are
valuable public properties acquired and maintained by the City at
great expense to its taxpayers, and that the grant to the Grantee
to the streets is a valuable property right without which the Grantee
would be required to invest substantial capital in right-of-way costs
and acquisitions, the Grantee shall pay to the City an amount equal
to 5% of the Grantee's Gross Annual revenue from the operations
of the Grantee within the confines of the City or contract area. If
the statutory 5% limitation on franchise fees is raised or the federal
statute deletes the franchise fee limitation entirely, then the franchise
fee may be subject to renegotiation.
B.
This payment shall be in addition to any other tax or payment owed
to the City by the Grantee.
C.
The franchise fee and any other costs or penalties assessed shall
be payable quarterly on a calendar year basis to the City and the
Grantee shall file a complete and accurate verified statement of all
gross receipts as previously defined within 45 days after the quarter
as established between the City and the Grantee.
D.
The City shall have the right to inspect the Grantee's income
records and the right to audit and to recompute any amounts determined
to be payable under this chapter; provided, however, that such audit
shall take place within 24 months following the close of each of the
Grantee's fiscal years. Any additional amount due to the City
as a result of the audit shall be paid within 30 days following written
notice to the Grantee by the City which notice shall include a copy
of the audit report.
E.
If any franchise payment or recomputed amount, cost or penalty, is
not made on or before the applicable dates heretofore specified, interest
shall be charged daily from such date at the legal maximum rate charged
by the U.S. Internal Revenue Service for late tax payments and the
Grantee shall reimburse the City for any additional expenses and costs
incurred by the City by reason of the delinquent payment(s).
A.
Except as may be provided in a franchise agreement, this franchise
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 without the prior written consent of
the City. The Grantee may, however, transfer or assign the franchise
to a wholly owned subsidiary of the Grantee and such subsidiary may
transfer or assign the franchise back to the Grantee without such
consent, providing that such assignment is without any release of
liability of the Grantee. The proposed assignee must show financial
responsibility as determined by the City and must agree to comply
with all provisions of the franchise. The City shall have 120 days
to act upon any request for approval of such a sale or transfer submitted
in writing that contains or is accompanied by such information as
is required in accordance with FCC regulations and by the City of
South Milwaukee. The City shall be deemed to have consented to a proposed
transfer or assignment if its refusal to consent is not communicated
in writing to the Grantee within 120 days following receipt of written
notice and the necessary information as to the effect of the proposed
transfer or assignment upon the public unless the requesting party
and the City agree to an extension of time. The City shall not unreasonably
withhold such consent to the proposed transfer.
B.
Except as may be provided in a franchise agreement, the Grantee shall
promptly notify the City of any actual or proposed change in, or transfer
of, or acquisition by any other party of, control of the Grantee.
The word "control" as used herein is not limited to major stockholders
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 Grantee. Every change,
transfer or acquisition of control of the Grantee shall make the franchise
subject to cancellation unless and until the City shall have consented
thereto, which consent will not be unreasonably withheld. For the
purpose of determining whether it shall consent to such change, transfer
or acquisition of control, the City may inquire into the qualification
of the prospective controlling party, and the Grantee shall assist
the City in such inquiry.
C.
The consent or approval of the City to any transfer of the Grantee
shall not constitute a waiver or release of the rights of the City
in and to the streets, and any transfer shall by its terms, be expressly
subordinate to the terms and conditions of this franchise.
D.
In the absence of extraordinary circumstances, the City will not
approve any transfer or assignment of an initial franchise prior to
substantial completion of construction of the proposed system.
E.
In no event shall a transfer of ownership or control be approved
without successor in interest becoming a signatory to this franchise
agreement.
A.
The Grantee shall fully cooperate in making available at reasonable
times, and the City shall have the right to inspect, where reasonable
necessary to the enforcement of the franchise, books, records, maps,
plans and other like materials of the Grantee applicable to the cable
television system, at any time during normal business hours; provided
where volume and convenience necessitate, the Grantee may require
inspection to take place on the Grantee premises.
B.
The following records and/or reports are to be made available to
the City upon request, but no more frequently than on an annual basis
if so unless mutually agreed upon by the Grantee and the City:
(1)
A quarterly review and resolution or progress report submitted by
the Grantee to the City;
(2)
Periodic preventive maintenance reports;
(3)
Any copies of FCC Form 395-A (or successor form) or any supplemental
forms related to equal opportunity or fair contracting policies;
(4)
Subscriber inquiry/complaint resolution data and the right to review
documentation concerning these inquiries and/or complaints periodically;
(5)
Periodic construction update reports, including where appropriate
the submission of as-built maps.
Copies of all petitions, applications, communications, and reports
either submitted by the Grantee to the Federal Communications Commission,
Securities and Exchange Commission, or any other federal or state
regulatory commission or agency having jurisdiction in respect to
any matters affecting cable television operations authorized pursuant
to the franchise or received from such agencies shall be provided
to the City upon request.
A.
The Grantee shall file annually with the City no later than 120 days
after the end of the Grantee's fiscal year, a copy of a gross
revenues statement certified by an officer of the Grantee.
At the expiration of the terms for which this franchise is granted
and any renewal denied, or upon its termination as provided herein,
the Grantee shall forthwith, upon notice by the City, remove at its
own expense all designated portions of the cable television system
from all streets and public property within the City. If the Grantee
fails to do so, the City may perform the work at the Grantee's
expense. Upon such notice of removal, a bond shall be furnished by
the Grantee in an amount sufficient to cover this expense.
A.
The cable television system shall have a minimum channel capacity
of 77 channels and at least 750 MHz of bandwidth available for future
use.
B.
Such system shall maintain a plant having the technical capacity
for "two-way" communications.
C.
The Grantee shall maintain the following:
(1)
At least one specially-designated, noncommercial public access channel
available on a first-come, nondiscriminatory basis.
(2)
At least one specially-designated channel for use by local educational
authorities.
(3)
At least one specially-designated channel for local governmental
uses.
(4)
At least one specially-designated channel for leased access uses.
(5)
Provided, however, these uses may be combined on one or more channels
until such time as additional channels become necessary in the opinion
of the City. Financial and technical support, replacement and maintenance
of equipment of this facility shall be separately incorporated into
a Franchise Agreement.
(6)
An Institutional Network (I-Net) of cable, optical, electrical or
electronic equipment, used for the purpose of transmitting two-way
telecommunications signals interconnecting designated entities as
set forth in the Franchise Agreement and mutually agreed to by the
Grantee and the Grantor. Such Institutional Network may be provided
as needed by utilizing capacity on the subscriber System.
D.
The Grantee shall incorporate into its cable television system the
capacity which will permit the City, in times of emergency, to override,
by remote control, the audio of all channels simultaneously which
the Grantee may lawfully override. The Grantee shall provide emergency
broadcast capacity pursuant to FCC rules. The Grantee shall cooperated
with the City in the use and operation of the emergency alert override
system.
E.
Interconnection.
(1)
The Grantee may be required to interconnect its system with other
adjacent cable television systems for the purpose of sharing public,
educational, and governmental access programming. Such interconnection
shall be made within a reasonable time limit to be established by
the City.
(2)
Interconnection procedure. Upon receiving the directive of the City
to interconnect, the franchise shall immediately initiate negotiations
with the other affected system or systems in order that all costs
may be shared equally among cable companies for both construction
and operation of the interconnection link.
(3)
Relief. The franchise may be granted reasonable extensions of time
to interconnect or the City may rescind its order to interconnect
upon petition by the franchisee to the City. The City shall grant
the request if it finds that the franchisee has negotiated in good
faith and has failed to obtain an approval from the operator or franchising
authority of system to be interconnected, or the cost of the interconnection
would cause an unreasonable or unacceptable increase in subscriber
rates.
(4)
Cooperation required. The Grantee shall cooperate with any interconnection
corporation, regional interconnection authority or City, county, state
and federal regulatory agency which may be hereafter established for
the purpose of regulating, financing, or otherwise providing for the
interconnection of cable systems beyond the boundaries of the City.
(5)
Initial technical requirements to assure future interconnection capability:
(a)
All cable systems receiving franchises to operate within the
City shall use the standard frequency allocations for television signals.
(b)
All cable systems are required to use signal processors at the
headend for each television signal.
(c)
The City also urges franchisees to provide local origination
equipment that is compatible throughout the area so that video cassettes
or videotapes can be shared by various systems.
(d)
Grantee shall provide such additional services and facilities
as are contained in its application, if any.
A.
In addition to the inherent powers of the City to regulate and control
this cable television franchise, and those powers expressly reserved
by the City, or agreed to and provided for herein, the right and power
is hereby reserved by the City to promulgate such additional regulations
as it shall find necessary in the exercise of its lawful powers and
furtherance of the terms and conditions of this franchise; provided,
however, that such rules, regulations, terms and conditions shall
not be in conflict with the provisions hereof or applicable state
and federal laws, rules and regulations.
B.
The City may also adopt such regulations at the request of Grantee
upon application.
A.
The City and the Grantee may hold scheduled performance evaluation
sessions within 30 days of the third, sixth, and twelfth anniversary
dates of the Grantee's award or renewal of the franchise and
as may be required by federal and state law. All such evaluation sessions
shall be open to the public.
B.
Special evaluation sessions may be held at any time during the term
of the franchise at the request of the City or the Grantee.
C.
All evaluation sessions shall be open to the public and announced
in a newspaper of general circulation in accordance with legal notice.
The Grantee shall notify its subscribers of all evaluation sessions
by announcements on a least one channel of its system between the
hours of 7:00 p.m. and 9:00 p.m., for five consecutive days preceding
each session.
D.
Topics which may be discussed at any scheduled or special evaluation
session may include, but not be limited to, service rate structures;
franchise fee, penalties, free or discounted services; application
of new technologies; system performance; services provided; programming
offered; customer complaints, privacy; amendments to this ordinance;
judicial and FCC rulings; line extension policies; and Grantee or
City rules.
E.
Members of the general public may add topics either by working through
the negotiating parties or by presenting a petition. If such a petition
bears the valid signatures of 50 or more residents of the City, the
proposed topic or topics shall be added to the list of topics to be
discussed at the evaluation session.
Pursuant to federal statute, the City of South Milwaukee is
eligible to become certified to regulate the Basic Service rates charged
by Grantee. Under these rules, Grantee would be required to obtain
approval from the City for a rate increase for any change to the rates
for Basic Service. Should Federal or State law permit further rate
regulation beyond the Basic Service, the City of South Milwaukee may
assume such rate regulation and adopt appropriate procedures for such
regulation.
A.
In addition to all other rights and powers retained by the City under
this franchise or otherwise, the City reserves the right to forfeit
and terminate the franchise and all rights and privileges of the Grantee
hereunder in the event of a substantial breach of its terms and conditions.
A substantial breach by the Grantee shall include, but shall not be
limited to the following:
(1)
Violation of any material provision of the franchise or any material
rule, order, regulation or determination of the City made pursuant
to the franchise;
(2)
Attempt to evade any material provision of the franchise or practice
any fraud or deceit upon the City or its subscribers or customers;
(4)
Failure to provide the services promised in the Grantee's application
if any as incorporated herein by § 30.4;
(5)
Failure to restore service after 96 consecutive hours of interrupted
service, except when approval of such interruption is obtained from
the City; or
(6)
Material misrepresentation of fact in the application for or negotiation
of the franchise.
B.
The foregoing shall not constitute a major breach if the violation
occurs but is without fault of the Grantee or occurs as a result of
circumstances beyond its control. The Grantee shall not be excused
by mere economic hardship nor by misfeasance or malfeasance of its
directors, officers or employees.
C.
The City may make a written demand that the Grantee comply with any
such provision, rule, order or determination under or pursuant to
this franchise. If the violation by the Grantee continues for a period
of 30 days following such written demand without written proof that
the corrective action has been taken or is being actively and expeditiously
pursued, the City may place the issue of termination of the franchise
before the City Council. The City shall cause to be served upon the
Grantee, at least 20 days prior to the date of such meeting, a written
notice of intent to request such termination and the time and place
of the meeting.
D.
The City Council shall hear and consider the issue(s) and shall hear
any person interested therein and shall determine in its discretion
whether or not any violation by the Grantee has occurred.
E.
If the City Council shall determine the violation by the Grantee
was the fault of the Grantee and within its control, the Council may,
by resolution declare that the franchise of the Grantee shall be forfeited
and terminated unless there is compliance within such period as the
Council may fix, such period shall not be less than 60 days, provided
no opportunity for compliance need be granted for fraud or misrepresentation.
F.
The issue of forfeiture and termination shall automatically be placed
upon the Council agenda at the expiration of the time set by it for
compliance. The Council then may terminate the franchise forthwith
upon finding that the Grantee has failed to achieve compliance or
may further extend the period, in its discretion.
Upon the foreclosure or other judicial sale of all or a substantial
part of the system, or upon the termination of any lease covering
all or a substantial part of the system, the Grantee shall notify
the City of such fact, and such notification shall be treated as a
notification that a change in control of the Grantee has taken place,
and the provisions of this franchise governing the consent of the
City to such change in control of the Grantee shall apply.
A.
Federal regulations as per U.S.C. § 537 shall apply to the right of acquisition by the City. In the event that the relevant federal regulations are repealed, the guidelines specified in Subsection B below shall apply.
B.
Upon the expiration of the term of the franchise and denial of any
renewal or upon any other termination thereof as provided herein the
City at its election and upon the payment to the Grantee of a price
equal to the fair market value shall have the right to purchase and
take over the System upon resolution by the City Council. If the City
has denied the Grantee's petition for renewal of its franchise
as provided by § 30.7, the City must exercise its option
to purchase the system within 60 days of the denial of renewal and
at least six months prior to the end of the franchise. Nothing shall
prohibit the Grantee in the event of the election of the City to purchase
the system from requesting the court to set a reasonable bond of the
City to secure the purchase price. The Grantee shall execute such
warranty deeds and other instruments as may be necessary.
The City shall have the right to cancel this franchise 120 days
after the appointment of a receiver, or trustee, to take over and
conduct the business of the Grantee, whether in receivership, reorganization,
bankruptcy or other action or proceeding, unless such receivership
or trusteeship shall have been vacated prior to the expiration of
120 days, or unless:
A.
Within 120 days after his/her election or appointment, such receiver
or trustee shall have fully complied with all the provisions of this
chapter and remedied all defaults thereunder; and
B.
Such receiver or trustee, within the 120 days, shall have executed
an agreement, duly approved by the court having jurisdiction in the
premises, whereby such receiver or trustee assumes and agrees to be
bound by each and every provision of this chapter and the franchise
granted to the Grantee.
A.
Notwithstanding any other provisions of this franchise to the contrary,
the Grantee shall at all times comply with all laws and regulations
of the state and federal government or any administrative agencies
thereof; provided, however, if any such state or federal law or regulation
shall require the Grantee to perform any service, or shall permit
the Grantee to perform any service, or shall prohibit the Grantee
from performing any service, in conflict with the terms of this franchise
or of any law or regulation of the City, then as soon as possible
following knowledge thereof, the Grantee shall notify the City of
the point of conflict believed to exist between such regulation or
law and the laws or regulations of the City or this franchise.
B.
If the City determines that a material provision of this chapter
is affected by any subsequent action of the state or federal government,
the City and the Grantee shall negotiate to modify any of the provisions
herein to such reasonable extent as may be necessary to carry out
the full intent and purpose of this agreement.
A.
Interference with cable service prohibited. Neither the owner of
any multiple unit residential dwelling nor his agent or representative
shall interfere with the right of any tenant or lawful resident thereof
to receive cable communication service, cable installation or maintenance
from a cable communication Grantee regulated by and lawfully operating
under a valid and existing franchise issued by the City.
B.
Gratuities and payments to permit service prohibited. Neither the
owner of any multiple unit residential dwelling nor his agent or representative
shall ask, demand or receive any payment, service or gratuity in any
form as a condition for permitting or cooperating with the installation
of a cable communication service to the dwelling unit occupied by
a tenant or resident requesting service.
C.
Penalties and charges to tenants for service prohibited. Neither
the owner or any multiple unit residential dwelling nor his agent
or representative shall penalize, charge or surcharge a tenant or
resident or forfeit or threaten to forfeit any right of such tenant
or resident, or discriminate in any way against such tenant or resident
who requests or receives cable communication service from a Grantee
operating under a valid and existing cable communication franchise
issued by the City.
D.
Reselling service prohibited. No person shall resell, without the
expressed, written consent of both the Grantee and the City, any cable
service, program or signal transmitted by a cable communication Grantee
under a franchise issued by the City.
E.
Protection of property permitted. Nothing in this chapter shall prohibit
a person from requiring that cable communication system facilities
conform to laws and regulations and reasonable conditions necessary
to protect safety, functioning, appearance and value of premises or
the convenience and safety or persons or property.
F.
Risks assumed by grantee. Nothing in this chapter shall prohibit
a person from requiring a Grantee from agreeing to indemnify the owner,
or his agents or representatives for damages or from liability for
damages caused by the installation, operation, maintenance or removal
of cable communication facilities.
A.
All bids received by the City from the applicants for an initial
franchise will become the sole property of the City.
B.
The City reserves the right to reject any and all bids and waive
informalities and/or technicalities where the best interest of the
City may be served.
C.
All questions regarding the meaning or intent of this chapter or
application documents shall be submitted to the City in writing. Replies
will be issued by addenda mailed or delivered to all parties recorded
by the City as having received the application documents. The City
reserves the right to make extensions of time for receiving bids as
it deems necessary. Questions received less than 14 days prior to
the date for the opening of bids will not be answered. Only replies
to questions by written addenda will be binding. All bids must contain
an acknowledgment of receipt of all addenda.
D.
Bids must be sealed, and submitted at the time and place indicated
in the application documents for the public opening. Bids may be modified
at any time prior to the opening of the bids, provided that any modifications
must be duly executed in the manner that the applicant's bid
must be executed. No bid shall be opened or inspected before the public
opening.
E.
Before submitting a bid, each applicant must:
(1)
Examine this chapter and the application documents thoroughly;
(2)
Familiarize himself/herself with local conditions that may in any
manner affect performance under the franchise;
(3)
Familiarize himself/herself with federal, state and local laws, ordinances,
rules and regulations affecting performance under the franchise; and
(4)
Carefully correlate the bid with the requirements of this chapter
and the application documents.
F.
The City may make such investigations as it deems necessary to determine
the ability of the applicant to perform under the franchise, and the
applicant shall furnish to the City all such information and data
for this purpose as the City may request. The City reserves the right
to reject any bid if the evidence submitted by, or investigation of,
such applicant fails to satisfy the City that such applicant is properly
qualified to carry out the obligations of the franchise and to complete
the work contemplated therein. Conditional bids will not be accepted.
G.
All bids received shall be placed in a secure depository approved
by the City and not opened nor inspected prior to the public opening.
A.
No initial franchise will be granted to any applicant unless all
requirements and demands of the City regarding financial, contractual,
shareholder and system disclosure have been met.
B.
Applicants, including all shareholders and parties with any interest
in the applicant, shall fully disclose all agreements and undertakings,
whether written or oral, or implied with any person, firm, group,
association or corporation with respect to this franchise and the
proposed cable television system. The Grantee of this franchise shall
disclose all other contracts to the City as the contracts are made.
This section shall include, but not be limited to, any agreements
between local applicants and national companies.
C.
Applicants, including all shareholders and parties with any interest
in the applicant, shall submit all requested information as provided
by the terms of this chapter or the application documents, which are
incorporated herein by reference. The requested information must be
complete and verified as true by the applicant.
D.
Applicants, including all shareholders and parties with any interest
in the applicant, shall disclose the numbers of shares of stock, and
the holders thereof, and shall include the amount of consideration
for each share of stock and the nature of the consideration.
E.
Applicants, including all shareholders and parties with any interest
in the applicant, shall disclose any information required by the application
documents regarding other cable systems in which they hold an interest
of any nature, including, but not limited to, the following:
(1)
Locations of all other franchises and the dates of award for each
location;
(2)
Estimated construction costs and estimated completion dates for each
system;
(3)
Estimated number of miles of construction and number of miles completed
in each system as of the date of this application; and
(4)
Date for completion of construction as promised in the application
for each system.
F.
Applicants, including all shareholders and parties with any interest
in the application, shall disclose any information required by the
application documents regarding pending applications for other cable
systems, including but not limited to, the following:
A.
No person may intentionally do any of the following:
(1)
Obtain or attempt to obtain cable television service from a company
by trick, artifice, deception, use of an illegal device or illegal
decoder or other fraudulent means with the intent to deprive that
company of any or all lawful compensation for rendering each type
of service obtained. The intent required for a violation of this paragraph
may be inferred from the presence on the property and in the actual
possession of the defendant of a device not authorized by the cable
television company, the major purpose of which is to permit reception
of cable services without payment. This inference is rebutted if the
defendant demonstrates that he or she purchased that device for a
legitimate use.
(2)
Give technical assistance or instruction to any person in obtaining
or attempting to obtain any cable television service without payment
of all lawful compensation to the company providing the service. This
paragraph does not apply if the defendant demonstrates that the technical
assistance or instruction was given or the installation of the connection,
descrambler or receiving device was for a legitimate use.
(3)
Make or maintain a connection, whether physical, electrical, mechanical,
acoustical or by other means, with any cables, wires, components or
other devices used for the distribution of cable television services
for the purpose of distributing cable television service to any other
dwelling unit without authority from a cable television company.
(4)
Make or maintain a connection, whether physical, electrical, mechanical,
acoustical or by other means, with any cables, wires, components or
other devices used for the distribution of cable television services
for the purpose of obtaining cable television service without payment
of all lawful compensation to the company providing the service. The
intent required for a violation of this paragraph may be inferred
from proof that the cable service to the defendant's residence
or business was connected under a service agreement with the defendant
and has been disconnected by the cable television company and that
thereafter there exists in fact a connection to the cable system at
the defendant's residence or business.
(5)
Make or maintain any modification or alteration to any device installed
with the authorization of a cable television company for the purpose
of intercepting or receiving any program or other service carried
by that company which that person is not authorized by that company
to receive. The intent required for a violation of this paragraph
may be inferred from proof that, as a matter of standard procedure,
the cable television company places written warning labels on its
converters or decodes explaining the tampering with the device is
a violation of law and the converter or decoder is found to have been
tampered with, altered or modified so as to allow the reception or
interception of programming carried by the cable television company
without authority to do so. The trier of fact may also infer that
a converter or decoder has been altered or modified from proof that
the cable television company, as a matter of standard procedure, seals
the converters or decoders with a label or mechanical device, that
the seal was shown to the customer upon delivery of the decoder and
that the seal has been removed or broken. The inferences under this
paragraph are rebutted if the cable television company cannot demonstrate
that the intact seal was shown to the customer.
(6)
Possess without authority any device or printed circuit board designed to receive from a cable television system any cable television programming or services offered for sale over that cable television system, whether or not the programming or services are encoded, filtered, scrambled or otherwise made unintelligible, or perform or facilitate the performance of any of the acts under Subsection A(1) through (5) with the intent that device or printed circuit be used to receive that cable television company's services without payment. Intent to violate this paragraph for direct or indirect commercial advantage or private financial gain may be inferred from proof of the existence on the property and in the actual possession of the defendant of a device if the totality of circumstances, including quantities or volumes, indicates possession for resale.
(7)
Manufactures, import into this state, distribute, publish, advertise,
sell, lease or offer for sale or lease any device, printed circuit
board or any plan or kit for a device or for a printed circuit designed
to receive the cable television programming or services offered for
sale over a cable television system from a cable television system,
whether or not the programming or services are encoded, filtered,
scrambled or otherwise made unintelligible, with the intent that the
device, printed circuit, plan or kit be used for the reception of
that company's services without payment. The intent required
for a violation of this paragraph may be inferred from proof that
the defendant has sold, leased or offered for sale or lease any device,
printed circuit board, plan or kit for a device or for a printed circuit
board in violation of this paragraph and during the course of the
transaction for sale or lease the defendant expressly states or implies
to the buyer that the product will enable the buyer to obtain cable
television service without charge.
B.
Civil liability for theft of telecommunications service (including
cable television service.)
(1)
Any person who incurs injury as a result of a violation of § 30.45 may bring a civil action against the person who committed the violation.
(2)
If the person who incurs the loss prevails against a person who committed the violation willfully and for the purpose of commercial advantage or prevails against a person who has committed more than one violation of § 30.45, the court shall grant the prevailing party all the following:
(b)
Actual damages.
(c)
Any profits of the violators that are attributable to the violation and that are not taken into account in determining the amount of actual damages under Subsection B(2)(b).
(d)
Notwithstanding the limitations under § 799.25 or
814.04, Wis. Stats., costs, disbursement and reasonable attorney fees.
(3)
If damages under Subsection B(2)(c) are requested, the party who incurred the injury shall have the burden of proving the violator's gross revenue and the violator's deductible expenses and the elements of profit attributable to factors other than the violation.
(4)
In addition to other remedies available under this section, the courts
may grant the injured party a temporary or permanent injunction.
For the violation of any of the following provisions of this
franchise, penalties shall be chargeable to the letter of credit or
performance bond as applicable as follows and the City may determine
the amount of the fine for other violations which are not specified
in a sum not to exceed $500 for each violation, with each day constituting
as separate violation.
A.
Failure to furnish, maintain, or offer all cable services to any
potential Subscriber within the City upon order of the City: $200
per day, per violation, for each day that such failure occurs or continues;
B.
Failure to obtain or file evidence of required insurance, construction
bond, performance bond, or other required financial security: $200
per day, per violation, for each day such failure occurs or continues;
D.
Failure to comply with applicable construction, operation, or maintenance
standards: $300 per day, pre violation.
E.
Failure to comply with a rate decision or refund order: $500 per
day, per violation, for each day such a violation occurs or continues.
Grantor may impose any or all of the above enumerated measures against
Grantee, which shall be in addition to any and all other legal or
equitable remedies it has under the Franchise or under any applicable
law.
G.
Any other violations of this franchise agreement to be determined
by the Grantor in a public hearing but not specifically noted in this
section shall not exceed $500 per day, per violation.
A.
Whenever the City believes that the Grantee has violated one or more
terms, conditions or provisions of this Franchise, and wishes to impose
penalties, a written notice shall be given to the Grantee informing
it of such alleged violation or liability. The written notice shall
describe in reasonable detail the specific violation so as to afford
the Grantee an opportunity to remedy the violation. The Grantee shall
have 30 days subsequent to receipt of the notice in which to correct
the violation before the City may impose penalties unless the violation
is of such a nature so as to require more than 30 days and the Grantee
proceeds diligently within the 30 days to correct the violation, or
as promptly as possible thereafter to correct the violation. In any
case where the violation is not cured within 60 days of notice from
the City, or such other time as the Grantee and the City may mutually
agree to, the City may proceed to impose liquidated damages.
B.
The Grantee, may within 10 days of receipt of notice, notify the
City that there is a dispute as to whether a violation or failure
has, in fact, occurred. Such notice by the Grantee to the City shall
specify with particularity the matters disputed by the Grantee and
shall stay the running of the thirty-day cure period pending the Council
decision as required below. The Council shall hear the Grantee's
dispute. Grantee must be given at least five days' notice of
the hearing. At the hearing, the Grantee shall be entitled to the
right to present evidence and the right to be represented by counsel.
After the hearing, the City shall provide Grantee a copy of its action,
along with supporting documents. In the event the City upholds the
finding of a violation, the Grantee shall have 30 days subsequent,
or such other time period as the Grantee and the City mutually agree,
to such determination to correct the alleged violation before penalties
may be imposed.
C.
The rights reserved to the City under this section are in addition
to all other rights of the City whether reserved by this franchise
or authorized by law or equity, and no action, proceeding or exercise
of a right with respect to penalties shall affect any other right
the City may have.
D.
The City shall stay or waive the imposition of any penalty set forth
above upon a finding that any failure or delay is a result of an act
of Nature or due to circumstances beyond the reasonable control of
the Grantee.