[HISTORY: Adopted by the Village Board of the Village of Maple Bluff 8-11-1998
(Ch. 18 of the 1986 Code). Amendments noted where applicable.]
This chapter shall be known and may be cited as the "Maple Bluff Cable
Television Franchise Ordinance," hereinafter "this chapter."
For the purpose of this chapter the following terms, phrases, words
and their derivations shall have the meaning given herein. "May" is permissive;
"shall" is mandatory.
All subscriber services provided by the grantee in one or more service
tiers, which includes the delivery of local broadcast stations and public,
educational and government access channels. Basic service does not include
optional program and satellite service tiers, a la carte services, or per-channel,
per-program or auxiliary services for which a separate charge is made. However,
the grantee may include other satellite signals on the basic service tier.
The one-way transmission to subscribers of video programming or other
programming services and subscriber interaction, if any, that is required
for the selection or use of such video programming or other programming services.
A facility consisting of a set of closed transmission paths and associated
signal generation, reception, and control equipment that is designed to provide
cable service which includes video programming and which is provided to multiple
subscribers within a community, but such term does not include:
A facility that serves only to retransmit the television signals of
one or more television broadcast stations;
A facility that serves subscribers without using any public right-of-way;
A facility of a common carrier which is subject, in whole or in part,
to the provisions of 47 U.S.C. §§ 201 to 222, except that the
facility is a cable television system to the extent that the facility is used
in transmission of video programming directly to subscribers; or[1]
Any facilities of any electric utility used solely for operating its
electric utility system.
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 ownership, directly or indirectly, by any person
or legal entity (except underwriters during the period in which they are offering
securities to the public) of 25% or more of a cable system or the franchise
under which the system is operated. A change in the control or controlling
interest of a legal 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 legal
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 than 12 channels delivered
by the system at designated converter dial locations.
Any building or part of a building that is used as a home or residence.
The Federal Communications Commission and any legally appointed,
designated or elected agent or successor.
An initial authorization, or renewal thereof, issued by the Village
as the franchising authority to a grantee to construct or operate a cable
system.
A contractual agreement entered into between the Village and any
grantee hereunder that is enforceable by the Village and by the grantee and
which sets forth the rights and obligations between the Village and the grantee
in connection with the franchise.
A person or legal entity to whom or to which a franchise under this
chapter is granted by the Village, along with the lawful successors or assigns
of such person or entity.
All revenue collected by the grantee arising from or attributable
to the provision of cable service by the grantee within the Village, including
but not limited to periodic fees charged subscribers for any basic, optional,
premium, per-channel or per-program service; franchise fees; installation
and reconnection fees; leased channel fees; converter rentals and/or sales;
program guide revenues; late or administrative fees; upgrade, downgrade or
other change in service fees; local advertising revenues; revenues from home
shopping and bank-at-home channels; and revenues from the sale, exchange,
use or cable cast of any programming developed on the system for community
or institutional use; 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.
All areas in the Village having a density of at least 40 dwelling
units per street mile.
The connection of the system from feeder cable to a subscriber's
terminal.
Local and regional advertising revenues derived from the sale of
locally and regionally inserted advertising, except such advertising sold
by or through the grantee's national representative firm.
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
that "monitoring" shall not include system-wide, non-individually-addressed
sweeps of the system for purposes of verifying system integrity, controlling
return path transmissions, or billing for pay services.
As applied to the grantee, those hours during which similar businesses
in the Village are open to serve customers. In all cases, normal business
hours must include some evening hours at least one night per week and/or some
weekend hours.
Those service conditions that are within the control of the grantee.
Those conditions that 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.
Any natural person or any association, firm, partnership, joint-stock
company, limited liability company, joint venture, corporation, or other legally
recognized entity, private or public, whether for-profit or not-for-profit.
The loss of either picture or sound or both for a single or multiple
subscribers.
The surface of and all rights-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 Village 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 Village
which shall, within their proper use and meaning, entitle the grantee to the
use thereof for the purposes of installing poles, wires, cable, conductors,
ducts, conduits, vaults, manholes, amplifiers, appliances, attachments, and
other property as may be ordinarily necessary and pertinent to a cable television
system.
Any person(s), firm, grantee, corporation or other legal entity or
association lawfully receiving any service provided by a grantee pursuant
to this chapter.
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.
The Village of Maple Bluff, Wisconsin.
Any franchise granted by the Village pursuant to § 66.0419,
Wis. Stats., shall grant to the grantee the right and privilege to erect,
construct, operate and maintain in, upon, along, across, above, over and under
the streets now in existence and as may be created or established during the
term of the franchise 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 and to provide cable television service within
the confines of the Village, 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.
Any franchise is for the legally incorporated territorial limits of
the Village and/or any area henceforth added thereto during the term of the
franchise.
Any franchise and the rights, privileges and authority granted under
this chapter shall take effect and be in force from and after final Village
approval thereof, as provided by law, and shall continue in force and effect
for a term of no longer than 15 years, provided that within 45 days after
the date of final Village approval of the franchise the grantee shall file
with the Village 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 nonexclusive and revocable.
A.
Current federal procedures and standards pursuant to
47 U.S.C. § 546 shall govern the renewal of any franchise awarded
under this chapter.
B.
In the event that any or all of the applicable provisions
of federal law are repealed or otherwise modified, the following relevant
subsection(s) shall apply:
(1)
At least 24 months prior to the expiration of the franchise,
the grantee shall inform the Village in writing of its intent to seek renewal
of the franchise.
(2)
The grantee shall submit a proposal for renewal that
demonstrates that:
(a)
It has been and continues to be in substantial compliance
with the terms, conditions, and limitations of this chapter and its franchise;
(b)
Its system has been installed, constructed, maintained
and operated in accordance with the FCC and this chapter and its franchise;
(c)
It has the legal, technical and financial qualifications
to continue to maintain and operate its system; and
(d)
It has made a good faith effort to provide services and
facilities which accommodate the demonstrated needs of the community, taking
into account the cost of meeting such needs.
(3)
After giving public notice, the Village shall proceed
to determine whether the grantee has satisfactorily performed its obligations
under the franchise. To determine satisfactory performance, the Village shall
consider technical developments and performance of the system, cost of services,
and any other particular requirements set forth in this chapter. The Village
shall also consider the grantee's reports made to the Village and to the FCC,
and the Village 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 future community needs
and interest, taking into account the cost of meeting such needs. Industry
performance on a national basis shall also be considered. Provisions shall
be made for public comment with adequate prior notice of at least 10 days.
(4)
The grantee shall be entitled to the same due process
rights included in Section 626 [47 U.S.C. § 546].
(5)
The Village shall then prepare any amendments to this
chapter that it believes necessary.
(6)
If the Village 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 Village, taking into account the cost of meeting such needs, a new
franchise shall be granted pursuant to this chapter as amended for a period
to be determined.
(7)
If the grantee is determined by the Village to have performed
unsatisfactorily, new applicants may be sought and evaluated and a franchise
award shall be made by the Village according to franchising procedures adopted
by the Village.
A.
In accepting a franchise, the grantee acknowledges that
its rights thereunder are subject to the police power of the Village to adopt
and enforce general ordinances necessary to the safety and welfare of the
public and it agrees to comply with all applicable general laws and ordinances
enacted by the Village pursuant to such power.
B.
Any conflict between the provisions of a franchise and
any other current or future lawful exercise of the Village'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 system which contains provisions inconsistent
with this chapter shall prevail only if upon such exercise the Village finds
a danger to health, safety, property or general welfare or if such exercise
is mandated by law.
No cable television system shall be allowed to operate or to occupy
or use the streets for system installation and maintenance purposes without
a franchise.
The Village shall have the right to install and maintain upon the poles
of the grantee at a charge equal to the grantee's costs any wire or pole fixtures
that do not unreasonably interfere with the cable television system operations,
including future plans, of the grantee. The Village shall indemnify and hold
harmless the grantee from any claim that might arise due to or as a result
of the Village's use.
Costs to be borne by a grantee shall include any requirements or charges
incidental to the awarding or enforcing of its initial franchise but shall
not be limited to all costs of publications of notices prior to any public
meeting provided for pursuant to this chapter and any costs not covered by
application fees incurred by the Village in its study, preparation of proposal
documents, evaluation of all applications, and examinations of the applicant's
qualifications.
All notices from the grantee to the Village pursuant to any franchise
shall be to the Village Clerk-Treasurer. The grantee shall maintain with the
Village, throughout the term of the 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 chapter.
A.
Within 15 days after the award of an initial or renewal
franchise, the grantee shall deposit with the Village either an irrevocable
letter of credit from a financial institution, security deposit, or a corporate
guarantee in lieu of bond in the amount of $5,000 with the form to be established
by the Village. The form and content of such letter of credit or security
deposit shall be approved by the Village Attorney. These instruments shall
be used to ensure the faithful performance of the grantee of all provisions
of this chapter and to ensure compliance with all orders, permits and directions
of any agency, commission, board, department, division, or office of the Village
having jurisdiction over its acts or defaults under this chapter and to ensure
the payment by the grantee of any claims, liens, and taxes due the Village
which arise by reason of the construction, operation or maintenance of the
system.
B.
The letter of credit, security deposit or corporate guarantee in lieu of bond shall be maintained at the amount established in Subsection A for the entire term of the franchise, even if amounts have to be withdrawn pursuant to this chapter.
C.
If the grantee fails to pay to the Village any amount
owed under the franchise agreement, that is not on appeal to the court of
proper jurisdiction, within the time fixed herein or fails after 15 days'
notice to pay to the Village any taxes due and unpaid or fails to repay the
Village within 15 days any damages, costs or expenses which the Village is
compelled to pay by reason of any act or default of the grantee in connection
with the franchise or fails after three days' notice of such failure by the
Village to comply with any provision of the franchise which the Village reasonably
determines can be remedied by demand on the letter of credit, security deposit
or corporate guarantee in lieu of bond, the Village may immediately demand
payment of the amount thereof, with interest and any penalties, from the letter
of credit, security deposit or corporate guarantee in lieu of bond. Upon such
demand for payment, the Village shall notify the grantee of the amount and
date thereof.
D.
The rights reserved to the Village with respect to the
letter of credit are in addition to all other rights of the Village, whether
reserved by the 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 Village may have.
E.
The letter of credit, security deposit or corporate guarantee
in lieu of bond shall contain an endorsement agreeing that the letter of credit,
security deposit or corporate guarantee in lieu of bond 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 Village, by registered mail, of a written notice
of such intention to cancel or not to renew.
F.
In the event the Village receives a thirty-day notice
from a surety, it shall have the right to demand payment from the letter of
credit, security deposit or corporate guarantee in lieu of bond unless the
grantee provides appropriate assurance that a replacement letter of credit,
security deposit or corporate guarantee in lieu of bond will be presented
before the expiration of the thirty-day period. Assurance shall be determined
by the Village at its sole discretion. This section shall not apply if the
Village and the grantee agree that a letter of credit, security deposit or
corporate guarantee in lieu of bond is no longer required or if the letter
of credit, security deposit or corporate guarantee in lieu of bond is, by
agreement between the Village and grantee, in the process of being reduced.
G.
The Village may, at any time during the term of this
chapter, waive the grantee's requirement to maintain a letter of credit, security
deposit or corporate guarantee in lieu of bond. The waiver of the requirement
may be initiated by the Village or may be requested by the grantee.
A.
Within 30 days after the award of an initial or renewal
franchise, the grantee shall file with the Village a performance bond in the
amount of not less 50% of the costs to install or upgrade the system contained
in the application or renewal proposal in favor of the Village. This bond
shall be maintained throughout the construction period and until such time
as determined by the Village, unless otherwise specified in the franchise
agreement.
B.
If the grantee fails to comply with any law, ordinance or resolution governing the franchise or fails to 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 that is incorporated herein by reference, there shall be recoverable jointly and severally, from the principal and surety of the bond, any damages or losses suffered by the Village, 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 fees, including the Village'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 § 96-13.
C.
The Village shall, upon completion of construction of
the service area, waive or reduce the requirement of the grantee to maintain
the bond. However, the Village may require a performance bond to be posted
by the grantee for any construction subsequent to the completion of the initial
service area in a reasonable amount not to exceed the cost of construction
and upon such terms as determined by the Village.
D.
The bond shall contain an endorsement stating that the
bond 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 Village, by registered mail,
of a written notice of such intent to cancel and not to renew.
E.
Upon receipt of a thirty-day notice, and following a
thirty-day period to cure, this shall be construed as default granting the
Village the right to demand payment on the bond.
F.
The Village, at any time during the term of this chapter,
may waive the grantee's requirement to maintain a performance bond. The waiver
of the requirement can be initiated by the Village or the 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 Village and the grantee
in the minimum amount of:
B.
The certificate of insurance obtained by the grantee
in compliance with this section shall be filed and maintained with the Village
during the term of the franchise. The grantee shall immediately advise the
Village 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 Village thereunder shall be construed to or limit the liability
of the grantee under any franchise issued hereunder.
D.
Such insurance policies provided for herein shall name
the grantor, its officers, boards, commissions, and employees as additional
insured and shall be primary to any insurance carried by the grantor and shall
contain an endorsement stating that the 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 Village, by registered mail, of written notice
of such intention to cancel or not to renew.
A.
Disclaimer of liability. The Village 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 cable television
system or due to the act or omission of any person or legal entity other than
the Village or those persons or legal entities for whom or which the Village
is legally liable as a matter of law.
B.
Indemnification. The grantee shall, at its sole cost
and expense, indemnify and hold harmless the Village, its respective officers,
boards, departments, commissions, and employees (hereinafter referred to as
"indemnitees") from and against:
(1)
Any and all liabilities, obligations, 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 asserted against the indemnitees
by reason of any act or omission of the grantee, its personnel, employees,
agents, contractors or subcontractors resulting in personal 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 of
privacy and unauthorized use of any trademark, trade name, copyright, patent,
service mark or any other right of any person, corporation or other legal
entity which may arise out of or be in any way connected with the construction,
installation, operation, maintenance or condition of the cable television
system caused by the grantee, its subcontractors or agents or the grantee's
failure to comply with any federal, state or local law.
(2)
Any and all liabilities, obligations, damages, penalties,
claims, liens, costs, charges, losses and expenses (including, without limitation,
reasonable fees and expenses of attorneys, expert witnesses and consultants)
imposed upon indemnitees 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 cable television system. Upon written request by the Village, such
claim or lien shall be discharged or bonded within 15 days following such
request.
(3)
Any and all liabilities, obligations, 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 asserted against the indemnitees
by reason of any financing or securities offering by the grantee or its affiliates
for violations of the common law or any laws, statutes or regulations of the
State of Wisconsin or of the 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 arise solely out
of information supplied by the Village to the grantee in writing and included
in the offering materials with the express written approval of the Village
prior to the offering.
C.
Assumption of risk.
(1)
The grantee undertakes and assumes for its officers,
directors, agents, contractors and subcontractors and employees all risk of
dangerous conditions, if any, on or about any Village-owned or -controlled
property, including public rights-of-way, and the grantee hereby agrees to
indemnify and hold harmless the indemnitees against and from any claim asserted
or liability imposed upon the indemnitees for personal injury or property
damage to any person arising out of the installation, operation, maintenance
or condition of the cable television system or the grantee's failure to comply
with any federal, state or local law.
(2)
The Village shall hold the grantee harmless for any damages
resulting from the negligence or misconduct of the grantor or its officials,
boards, departments, commissions or employees in utilizing any PEG access
channels, equipment or facilities.
D.
Defense of indemnitees. In the event any action or proceeding
shall be brought against any or all of the indemnitees by reason of any matter
for which the indemnitees are indemnified hereunder, the grantee shall, upon
notice from any of the indemnitees, at the grantee's sole cost and expense,
defend the same; provided further, however, that the grantee shall not admit
liability in any such matter on behalf of the indemnitees without the written
consent of the Village Attorney or the Village Attorney's designee.
E.
Notice, cooperation and expenses. The Village shall give
the grantee reasonably 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 Village from cooperating
with the grantee and participating in the defense of any litigation by the
Village's own counsel at the Village's own expense. No recovery by the Village
of any sum under the letter of credit shall be any limitation upon the liability
of the grantee to the Village under the terms of this section, except that
any sum so received by the Village shall be deducted from any recovery which
the Village might have against the grantee under the terms of this section.
F.
Nonwaiver of statutory limit. Nothing in this chapter
is intended to express or imply a waiver by the Village of statutory provisions,
privileges or immunities of any kind or nature as set forth in § 893.80
et seq., Wis. Stats., including the limits of liability of the Village.
A.
The grantee shall not deny service, deny access, or otherwise
discriminate against subscribers, channel users, or general citizens on the
basis of race, color, religion, national origin, income, sex, marital status,
sexual preference or age. 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 and of state
and local governments 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.
The grantee is required to make all services available
to all residential dwellings throughout the service area located in areas
having a density of at least 40 dwelling units per street mile.
Minimum public notice of any public meeting relating to the franchise
shall be governed by the provisions of the State Open Meetings Law[1] and shall be on at least one channel of the grantee's system between
the hours of 7:00 p.m. and 9:00 p.m. for five consecutive days prior to the
meeting.
[1]
Editor's Note: See § 19.81 et seq., Wis. Stats.
The grantee shall provide cable television service throughout the entire
franchise area pursuant to the provisions of the 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.
Within two years from the date of the award of an initial
franchise, the grantee must make cable television service available to every
dwelling unit within the initial service area.
B.
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.
