[HISTORY: Adopted by the Common Council of the City of New Berlin 1-9-2001
by Ord. No. 2125. Amendments noted where applicable.]
This chapter shall be known and may be cited as the "City of New Berlin
Cable Television Ordinance," hereinafter "this chapter."
A.Â
BASIC SERVICE
CABLE SYSTEM or SYSTEM or CABLE TELEVISION SYSTEM
CITY
CLASS IV CHANNEL
CONTROL and/or CONTROLLING INTEREST
CONVERTER
FCC
FRANCHISE or FRANCHISE AGREEMENT
GRANTEE
GROSS REVENUES
INITIAL SERVICE AREA
INSTALLATION
MONITORING
NORMAL BUSINESS HOURS
NORMAL OPERATING CONDITIONS
SERVICE INTERRUPTION AND/OR OUTAGES
STREET
SUBSCRIBER
USER
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 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 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 New Berlin, 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 person or entity (except underwriters during 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 than 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.
Any agreement granting a grantee a franchise under § 88-3 hereof.
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 the 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.
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 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).
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 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, wires, 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, corporation or association lawfully receiving basic
and/or any additional service from the grantee.
Any franchise granted by the city pursuant to § 66.0419, Wis.
Stats., shall, subject to all federal, state and local rules, regulations
and ordinances, 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.Â
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.Â
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 nonexclusive and revocable.
A.Â
Current federal statutory process.
(1)Â
The city may, on its own initiative, during the six-month
period which begins with the 36th month before the franchise expiration, commence
a proceeding which affords the public in the city appropriate notice and participation
for the purpose of identifying the future cable-related community needs and
interests and 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)Â
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)Â
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)Â
The city shall consider in any administrative proceeding
whether:
(a)Â
The grantee has substantially complied with material
terms of the existing franchise and with applicable law;
(b)Â
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)Â
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)Â
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)Â
In any proceeding under Subsection A(4) above, 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)Â
At the completion of a proceeding under Subsection A(4) above, 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 therefor.
(7)Â
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) above pursuant to the record of the proceeding under said subsection. 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)(b) above 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)Â
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 any action of the city is not in compliance with the procedural requirements of this section or, 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.Â
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)Â
At least 24 months prior to the expiration of the franchise,
the grantee shall inform the city in writing of its intent to seek renewal
of the franchise.
(2)Â
The grantee shall submit a proposal for renewal which
demonstrates that:
(a)Â
It has been and continues to be in substantial compliance
with the terms, conditions and limitations of this chapter and its franchise;
(b)Â
Its system has been installed, constructed, maintained
and operated in accordance with the accepted standards of the industry and
this chapter and its franchise;
(c)Â
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)Â
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)Â
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; shall consider the grantee's reports made to the
city and the Federal Communications 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)Â
The city shall then prepare any amendments to this chapter
that it believes necessary.
(5)Â
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 chapter
as amended for a period to be determined.
(6)Â
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.Â
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 the 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.Â
Any conflict between the provisions of this chapter 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 system 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 of notices prior to any public
meeting provided for pursuant to the 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 chapter shall
be to the City Clerk'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 chapter.
A.Â
Within 60 days after the award of the initial franchise,
the grantee shall deposit with the city one of: an irrevocable letter of credit
from a financial institution; a security deposit; or a performance bond, in
the amount of $50,000 (collectively, the "security"). The form and content
of the security shall be approved by the City Attorney. The security 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.Â
If the grantee fails to pay to the city any compensation
within the time fixed herein or fails after 60 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 60 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 security, the city may immediately request payment
of the amount thereof, with interest and any penalties, from the security.
Upon such request for payment, the city shall notify the grantee of the amount
and date thereof.
D.Â
The rights reserved to the city with respect to the security
are in addition to all other rights of the city, whether reserved by the franchise
or authorized by law, and no action, proceeding or exercise of a right under
this subsection with respect to the security shall affect any other right
the city may have.
E.Â
The security shall contain the following endorsement:
"It is hereby understood and agreed that this letter of credit, performance
bond 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.Â
Receipt of the thirty-day notice shall be construed as
a default granting the city the right to call on the security.
G.Â
The city, at any time during the term of this chapter,
may waive the grantee's requirement to maintain the security. The invitation
to waive the requirement can be initiated by the city or grantee.
A.Â
Within 30 days after the award of this franchise, the
grantee shall file with the city a construction 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.Â
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 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 § 88-13.
C.Â
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 construction bond to be posted by the
grantee for any construction subsequent to the completion of the initial service
area, in a reasonable amount and upon such terms as determined by the city.
D.Â
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 be stated by the surety until 30 days
after receipt by the city, by registered mail, of 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.Â
The city, at any time during the term of this chapter,
may waive the grantee's requirement to maintain a construction bond.
The invitation to waive the requirement can be initiated by the city or grantee.
A.Â
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.Â
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.Â
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.Â
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, of a written notice of such intention to cancel or not
to renew."
A.Â
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 whom or which the city is legally liable
as a matter of law.
B.Â
Indemnification. The grantee shall, at its sole cost
and expense, indemnify and hold harmless the city, all associated, affiliated,
allied and subsidiary entities 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)Â
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 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, firm or corporation which may
arise out of or be in any way connected with the construction, installation,
operation, maintenance or condition of the system caused by the grantee, its
subcontractors or agents or the grantee's failure to comply with any
federal, state or local statute, ordinance or regulation.
(2)Â
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 other consultants)
which are 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 system caused
by the grantee, its subcontractors or agents and, upon the written request
of the Commission, shall cause such claim or lien to be discharged or bonded
within 15 days following such request.
(3)Â
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 the 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 solely 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.Â
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 system or the grantee's failure to comply with any
federal, state or local statute, ordinance or regulation.
D.Â
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 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 City Attorney or his designee.
E.Â
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 the
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 expenses 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 security 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.Â
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 § 893.80 et seq., Wis. Stats., including
the limits of liability of the city as exist presently or may be increased
from time to time by the legislature.
A.Â
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 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.Â
The grantee shall strictly adhere to the equal employment
opportunity requirements of the Federal Communications Commission and state
and local regulations and as amended from time to time.
C.Â
The grantee shall, at all times, comply with the privacy
requirements of state and federal law.
D.Â
The grantee is required to make all services available
to all residential dwellings throughout the initial service area.
Minimum public notice of any public meeting relating to this chapter
shall be by publication at least once in a local newspaper of general circulation
at least 10 days prior to the meeting, by posting at City Municipal Center
and by announcement 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.
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 two years of all written 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.Â
New construction timetable.
(1)Â
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)Â
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)Â
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)Â
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 said schedule will be made part of the franchise agreement and
will be binding upon the grantee.
(4)Â
In special circumstances the city can waive one-hundred-percent
completion within the two-year time frame provided substantial completion
is accomplished within the 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.Â
Line extensions.
(1)Â
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)Â
No customer shall be refused service arbitrarily. The
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 developer will be requested to 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 developer that the
first home in the project has been approved for a building permit, the grantee
shall have a maximum of three months to complete the construction/activation
process within the project phase.
(b)Â
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 in the same manner as the utility lines are installed, i.e.,
if utility lines are underground, then cable lines must be underground.
(c)Â
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)Â
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)Â
New development. 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, pedestals 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 to the grantee by the developer of a preliminary
plat request shall satisfy the requirement of reasonable notice if sent to
the local general clerk or system engineer of the grantee prior to approval
of the preliminary plat request.
C.Â
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 revenues are paid to the city as franchise fees under § 88-27.
(1)Â
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.
D.Â
Digital mapping. The grantee shall provide to the city,
in suitable format, all digital mapping data the grantee possesses for property
located within the City of New Berlin.
A.Â
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.Â
Additional specifications.
(1)Â
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.
(2)Â
The grantee shall at all times comply with:
(3)Â
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)Â
Any antenna structure used in the system shall comply
with the construction, marking and lighting of antenna structures required
by the United States Department of Transportation.
(5)Â
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)Â
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)Â
The grantee shall maintain equipment capable of providing
standby power for head end and transport system for a minimum of two hours.
(8)Â
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 grantee,
at its sole cost and expense, must concurrently do so and shall adhere to
all city rules, regulations and ordinances relating thereto.
A.Â
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.Â
Restoration to prior condition. In case of any disturbance
of pavement, sidewalk, landscaping, driveway or other surfacing by the grantee,
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.Â
Erection, removal and common uses of poles.
(1)Â
No poles or other wire-holding structures shall be erected
by the grantee without prior approval of the City Engineering Department 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)Â
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 Engineering Department
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)Â
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.Â
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.Â
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.Â
Tree trimming. Except in the case of an emergency, 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 and shall
defend and hold the 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.Â
The grantee shall put, keep and maintain all parts of
the system in good condition throughout the entire franchise period.
B.Â
Upon the reasonable request for service by any person
located within the initial service area, 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.Â
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.Â
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.Â
The grantee shall have knowledgeable, qualified grantee
representatives available to respond to customer telephone inquiries 24 hours
per day and seven days per week.
F.Â
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.Â
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.Â
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.Â
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 workweek
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.Â
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.Â
Subscriber credit for outages. Upon service interruption
and/or outages of subscribers' cable service, the following shall apply:
(1)Â
For service interruptions and/or outages of over four
hours and up to seven days, the grantee shall provide, at the subscriber's
written request, a credit of 1/30 of 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 nonpayment or excessive signal leakage.
(2)Â
For service interruptions and/or outages of seven days
or more in one month, the grantee shall provide, at the subscriber's
written request, a full month's credit for affected services for all
affected subscribers.
L.Â
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 a subscriber:
M.Â
Bills will be clear, concise and understandable, with
all cable services itemized.
N.Â
Credits will be issued promptly, but no later than the
subscriber'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.Â
Subscribers 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.Â
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 Communications Commission, the United States
Congress or the State of Wisconsin.
Q.Â
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, the 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 § 88-46 are applicable.
R.Â
The grantee shall keep a monthly service log which will
indicate the nature of each service complaint for which a work order is generated
or which is received in writing, 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.Â
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 overbuild, 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 service regardless of the circumstances.
B.Â
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.Â
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 or 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.Â
The City Clerk is designated as having primary responsibility
for the continuing administration of the franchise and implementation of complaint
procedures.
B.Â
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, tollfree telephone
call to receive complaints regarding quality of service, equipment 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 subscribers
can pay bills or conduct other business activities.
C.Â
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.Â
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)Â
The nature of the complaint or problem which precipitated
the special tests;
(2)Â
What system component was tested;
(3)Â
The equipment used and procedures employed in testing;
(4)Â
The method, if any, in which such complaint or problem
was resolved; and
(5)Â
Any other information pertinent to the tests and analysis
which may be required.
E.Â
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 standards, 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 cost of the test.
F.Â
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 reasonably
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.Â
Since 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 since 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 revenues from the operations
of the grantee within the confines of the city or contract area. If the statutory
five-percent 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.Â
This payment shall be in addition to any other tax or
payment owed to the city by the grantee.
C.Â
The franchise fee and any other costs or penalties assessed
shall be payable quarterly on a calendar-year basis to the city within 45
days after the end of each calendar quarter. The grantee shall file a complete
and accurate verified statement of gross revenues in such form as established
between the city and the grantee.
D.Â
The city shall have the right to inspect the grantee's
books and records and the right to audit and to recompute any amounts determined
to be payable under this chapter for any calendar year; provided, however,
that any such audit shall take place within 24 months following the close
of a particular calendar year. 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.Â
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 United States 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.Â
Except as may be provided in a franchise agreement, a
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, provided 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. 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.Â
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 or controlling
interest 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.Â
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.Â
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.Â
In no event shall a transfer of ownership or control
or an assignment of the franchise be approved without the successor in interest
or the assignee becoming a signatory to the franchise agreement.
A.Â
The grantee shall fully cooperate in making available
at reasonable times, and the city shall have the right to inspect, where reasonably
necessary to the enforcement of the franchise, books, records, maps, plans
and other like materials of the grantee applicable to the system, at any time
during normal business hours, provided that where volume and convenience necessitate,
the grantee may require inspection to take place on the grantee's premises.
B.Â
The following records and/or reports are to be made available
to the city upon request, but no more frequently than once on an annual basis
unless mutually agreed upon by the grantee and the city:
(1)Â
A quarterly review and resolution or progress report
submitted by the grantee to the city;
(2)Â
Periodic preventive maintenance reports;
(3)Â
Any copies of FCC Form 395-A (or successor form) or any
supplemental forms related to equal opportunity or fair contracting policies;
(4)Â
Subscriber inquiry/complaint resolution data and the
right to review documentation concerning these inquiries and/or complaints
periodically; and
(5)Â
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 the system
authorized pursuant to the franchise or received from such agencies shall
be provided to the city upon request.
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 term for which a 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.Â
The cable television system shall have a minimum channel
capacity of 77 channels and at least 750 megahertz of bandwidth available
for future use.
B.Â
Such system shall maintain a plant having the technical
capacity for two-way communications.
C.Â
The grantee shall maintain the following:
(1)Â
At least one specially designated, noncommercial public
access channel available on a first-come, nondiscriminatory basis; at least
one specially designated channel for use by local educational authorities;
at least one specially designated channel for local governmental uses; at
least one specially designated channel for leased access uses; provided, however,
that 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 and replacement and maintenance of equipment of this
facility shall be separately incorporated into a franchise agreement.
(2)Â
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 system.
D.Â
The grantee shall incorporate into the system the capacity
which will permit the city, in times of local emergency, to override by remote
control the audio of all channels simultaneously which the grantee may lawfully
override or to place a crawl on all such channels. The grantee shall provide
emergency broadcast capacity pursuant to FCC rules. The grantee shall cooperate
with the city in the use and operation of the emergency alert override system.
E.Â
Interconnection.
(1)Â
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)Â
Interconnection procedure. Upon receiving the directive
of the city to interconnect, the grantee 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)Â
Relief. The grantee may be granted reasonable extensions
of time to interconnect or the city may rescind its order to interconnect
upon petition by the grantee to the city. The city shall grant the request
if it finds that the grantee has negotiated in good faith and has failed to
obtain an approval from the operator or franchising authority of the system
to be interconnected or the cost of the interconnection would cause an unreasonable
or unacceptable increase in subscriber rates.
(4)Â
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)Â
Initial technical requirements to assure future interconnection
capability.
(a)Â
All systems receiving franchises to operate within the
city shall use the standard frequency allocations for television signals.
(b)Â
All systems are required to use signal processors at
the head end for each television signal.
(c)Â
The city also urges grantees to provide local origination
equipment that is compatible throughout the area so that video cassettes or
videotapes can be shared by various systems.
(d)Â
A grantee shall provide such additional services and
facilities as are contained in its application, if any.
A.Â
In addition to the inherent powers of the city to regulate
and control a 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 chapter; 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.Â
The city may also adopt such regulations at the request
of the grantee upon application.
A.Â
The city and the grantee may hold scheduled performance
evaluation sessions within 30 days of the third, sixth and 12th 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.Â
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.Â
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 at 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.Â
Topics which may be discussed at any scheduled or special
evaluation session may include, but not be limited to, service rate structures;
franchise fees; penalties; free or discounted services; application of new
technologies; system performance; services provided; programming offered;
customer complaints; privacy; amendments to this chapter; judicial and FCC
rulings; line extension policies; and grantee or city rules.
E.Â
Members of the general public may add topics either by
working through the city or grantee 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 the Cable Television Consumer Protection and Competition
Act of 1992, the city is currently certified to regulate the basic service
rates charged by the grantee. Under these rules, the grantee is 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 shall assume such rate regulation and adopt
appropriate procedures for such regulation.
A.Â
In addition to all other rights and powers retained by
the city under this chapter or otherwise, the city reserves the right to forfeit
and terminate the franchise and all rights and privileges of the grantee thereunder
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)Â
Violation of any material provision of this chapter or
the franchise or any material rule, order, regulation or determination of
the city made pursuant to the franchise;
(2)Â
Attempt to evade any material provision of this chapter
or the franchise or practice any fraud or deceit upon the city or its subscribers;
(3)Â
Failure to begin or complete system construction or system extension as provided under § 88-20;
(4)Â
Failure to provide the services promised in the grantee's application, if any, as incorporated herein by § 88-4;
(5)Â
Failure to restore service after 96 consecutive hours
of interrupted service, except when approval of such interruption is obtained
from the city; or
(6)Â
Material misrepresentation of fact in the application
for or negotiation of the franchise.
B.Â
The foregoing shall not constitute a substantial 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.Â
The city may make a written demand that the grantee comply
with any such provision, rule, order or determination under or pursuant to
the 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. Public notice shall be given of the
meeting and the issue(s) which the City Council is to consider.[1]
E.Â
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, which period shall not be less than 60 days, provided no opportunity
for compliance need be granted for fraud or misrepresentation.[3]
F.Â
The issue of forfeiture and termination shall automatically
be placed upon the City 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.[4]
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 chapter
governing the consent of the city to such change in control of the grantee
shall apply.
A.Â
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.Â
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 § 88-7, 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.[1]
The city shall have the right to cancel the 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.Â
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.Â
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.Â
Notwithstanding any other provisions of this chapter
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, that 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.Â
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.Â
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 grantee regulated by and lawfully operating under a valid and existing franchise
issued by the city.
B.Â
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.Â
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
franchise issued by the city.
D.Â
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 grantee under a franchise
issued by the city.
E.Â
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 of persons or property.
F.Â
Risks assumed by grantee. Nothing in this chapter shall
prohibit a person from requiring a grantee to agree 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.[1]
A.Â
All bids received by the city from the applicants for
an initial franchise will become the sole property of the city.
B.Â
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.Â
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.Â
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.Â
Before submitting a bid, each applicant must:
(1)Â
Examine this chapter and the application documents thoroughly;
(2)Â
Familiarize himself/herself with local conditions that
may in any manner affect performance under the franchise;
(3)Â
Familiarize himself/herself with federal, state and local
laws, ordinances, rules and regulations affecting performance under the franchise;
and
(4)Â
Carefully correlate the bid with the requirements of
this chapter and the application documents.
F.Â
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.Â
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.Â
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.Â
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 a franchise and the proposed cable television
system. The grantee 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.Â
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.Â
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.Â
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)Â
Locations of all other franchises and the dates of award
for each location;
(2)Â
Estimated construction costs and estimated completion
dates for each system;
(3)Â
Estimated number of miles of construction and number
of miles completed in each system as of the date of this application; and
(4)Â
Date for completion of construction as promised in the
application for each system.
F.Â
Applicants, including all shareholders and parties with
any interest in the applicant, shall disclose any information required by
the application documents regarding pending applications for other cable systems,
including but not limited to the following:
A.Â
No person may intentionally do any of the following:
(1)Â
Obtain or attempt to obtain cable television service
from a grantee by trick, artifice, deception, use of an illegal device or
illegal decoder or other fraudulent means with the intent to deprive that
grantee of any or all lawful compensation for rendering each type of service
obtained. The intent required for a violation of this subsection may be inferred
from the presence on the property and in the actual possession of the defendant
of a device not authorized by the grantee, the major purpose of which is to
permit reception of cable television services without payment. This inference
is rebutted if the defendant demonstrates that he or she purchased that device
for a legitimate use.
(2)Â
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 grantee providing that service.
This subsection 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)Â
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 grantee.
(4)Â
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 grantee providing the service. The intent required for
a violation of this subsection may be inferred from proof that the cable service
to the defendant's residence or business was connected under a service
agreement with the grantee and has been disconnected by the grantee and that
thereafter there exists in fact a connection to the system at the defendant's
residence or business.
(5)Â
Make or maintain any modification or alteration to any
device installed with the authorization of a grantee for the purpose of intercepting
or receiving any program or other service carried by that grantee which that
person is not authorized by that grantee to receive. The intent required for
a violation of this subsection may be interred from proof that, as a matter
of standard procedure, the grantee places written warning labels on its converters
explaining that tampering with the device is a violation of law and the converter
decoder is found to have been tampered with, altered or modified so as to
allow the reception or interception of programming carried by the grantee
without authority to do so. The trier of fact may also infer that a converter
decoder has been altered or modified from proof that the grantee, as a matter
of standard procedure, seals the converters 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 subsection
are rebutted if the grantee cannot demonstrate that the intact seal was shown
to the customer.
(6)Â
Possess without authority any device or printed circuit board designed to receive from a system any cable television programming or services offered for sale over that 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) to (5) with the intent that the device or printed circuit be used to receive that grantee's services without payment. Intent to violate this subsection 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)Â
Manufacture, 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 system from 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
grantee's services without payment. The intent required for a violation
of this subsection 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 subsection
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.Â
Civil liability for theft of telecommunications service
(including cable television service).
(1)Â
Any person who incurs injury as a result of a violation of this § 88-45 may bring a civil action against the person who committed the violation. Except as provided in Subsection B(2), if the person who incurs the loss prevails, the court shall grant the prevailing party actual damages, costs and disbursement.
(2)Â
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 this § 88-45, the court shall grant the prevailing party all the following:
(b)Â
Actual damages;
(c)Â
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)Â
Notwithstanding the limitations under § 799.25
or 814.04, Wis. Stats., costs, disbursement and reasonable attorney fees;
(3)Â
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)Â
In addition to other remedies available under this section,
the court 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 security 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.Â
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.Â
Failure to obtain or file evidence of required insurance,
construction bond or security: $200 per day, per violation, for each day such
failure occurs or continues.
D.Â
Failure to comply with applicable construction, operation
or maintenance standards: $300 per day, per violation.
E.Â
Failure to comply with a rate decision or refund order:
$500 per day, per violation, for each day such a violation occurs or continues.
The city may impose any or all of the above-enumerated measures against the
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.Â
Any other violations of the franchise agreement to be
determined by the city in a public hearing but not specifically noted in this
section shall not exceed $500 per day, per violation.
A.Â
Whenever the city believes that the grantee has violated
one or more terms, conditions or provisions of this chapter or the 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.Â
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 city's decision as
required below. The city shall hear the grantee's dispute. The grantee
must be given at least five days' written 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 the 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 to such determination, or such other time period as
the grantee and the city mutually agree, to correct the alleged violation
before penalties may be imposed.
C.Â
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.Â
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 acts
of nature or due to circumstances beyond the reasonable control of the grantee.