[HISTORY: Adopted by the Common Council of
the City of St. Francis as §§ 13.03 and 13.10 of the
1981 Code. Amendments noted where applicable.]
[Amended 7-1-2008 by Ord. No. 1259; 9-4-2012 by Ord. No. 1324]
As used in this chapter, the following terms
shall have the meanings indicated:
Any individual, partnership, corporation or association who
or which shall have filed a written application for a franchise under
this chapter as herein provided.
Any system whose function is to receive and amplify the broadcast
signals of one or more television and radio stations or to provide
signals for additional closed circuit programming and to redistribute
such signals to members of the public who subscribe to such service
or to whom redistribution of such signals is required by this chapter
by means of wires, cables, conduit, microwaves, satellites, or other
means.
The City of St. Francis.
The governing body of the City or any successors to the legislative
powers of said body. It shall include any person or persons designated
by the Council to act on its behalf.
Any applicant receiving the grant of any franchise hereunder
and shall include any lawful successor to the interest of a grantee
when consent to such succession has been granted by the Council.
All compensation received by the grantee, its affiliates
or subsidiaries from and in connection with the operation of the cable
communication system in the City, as that term is defined by the FCC
or a court of competent jurisdiction, and shall include compensation
in whatever form, exchange or otherwise, from all sources, including,
without limitation, revenues from advertising, channel leasing, data
transmission and per-program charges, in addition to the subscribers'
regular monthly payments.
The provision of notice of contemplated action delivered
at least 48 hours prior to such action.
A recipient of cable communication system service.
No individual, partnership, corporation or association
shall install, maintain or operate a cable communication system, or
solicit subscriptions for the same, without first having applied for
and obtained a franchise from the City in accordance with this chapter,
and any failure to secure such a franchise prior to the commencement
of operations or the soliciting of any subscription from any subscriber
for such service shall be deemed a violation of this chapter and shall
subject the violator to a forfeiture of $50 to $100 for the first
subscriber obtained or potential subscriber solicited and $100 to
$200 for each subsequent subscription or solicitation. This chapter
in no way limits the City as to other remedies available through state
or federal courts or administrative agencies.
No individual, partnership, corporation or association
shall use the streets for or in connection with a cable communication
system except as may be specifically permitted by the Council. No
cable or other equipment or device installed in, over or under the
streets under a franchise granted under this chapter shall be used
for any purpose except for a cable communication system as herein
defined or other services described in the application of the grantee
or approved by the Council.
The application for a franchise shall be submitted
to the Council in writing and shall contain the following:
A.
Individuals, partnerships and corporations.
(1)
For individuals. The applicant's name, address, occupation
and principal place of business.
(2)
For partnerships. The applicant partnership's name,
business, and principal place of business, along with names, addresses,
occupations, and principal place of business of each of the partners.
(3)
For corporations (or associations). The applicant
corporation's name, principal business and principal place of business;
the state of incorporation; the names and addresses of the officers
and directors; the name and address of its registered agent; the number
of shareholders, including names and residences of shareholders holding,
controlling or having a beneficial interest in more than 10% of the
outstanding shares, identifying their interests, along with a statement
indicating any intention on change of said interests during the term
of the franchise. If the corporation is a foreign corporation, a certificate
of authority to transact business in this state shall accompany the
application.
B.
A statement as to any other cable communication systems
owned or operated by or in which the applicant has any interest. Such
statement shall list by name and address each and every municipality
in the United States in which the applicant operates a cable communication
system or has been granted a franchise so to do, the date of granting
of the franchise and length of operation, if any.
C.
A detailed explanation of the nature, extent and scope
of operation of the proposed system (including any present legal,
financial, technical or other qualifying matter which may in any way
relate to the ability of the applicant to perform the proposed system).
D.
A complete, sworn financial statement of the applicant.
E.
The estimated cost of installing the system.
F.
The method of financing the system.
G.
A listing of channels which the applicant will provide
and the type of program or service to be provided on each channel.
H.
A schedule of the applicant's rates for installation,
monthly service charges and any other charges to subscribers, together
with a proposed rental or service agreement with subscribers which
details the rights and obligations of subscribers to the system. The
schedule of proposed rates shall also indicate that there shall be
no charge made to a subscriber for the removal of service.
I.
A list of equipment to be used in the total system
together with specifications therefor. The applicant will agree that
the Council may require review of adequacy of equipment by a third-party
qualified consultant whose fee shall be paid by the applicant.
J.
The estimated construction schedule.
K.
A statement that the applicant will abide by and conform
to all of the provisions of this chapter and amendments thereto and
that the applicant will pay at the time required any franchise fees
herein prescribed.
L.
Such additional detailed information which the Council
may require.
M.
A proposal fee as provided by the current fee schedule
on file with the City Clerk shall accompany the proposal. Said application
fee shall be nonrefundable. Said fee shall become part of the general
fund of the City.
A.
The Council, after a public hearing or hearings, may
grant a nonexclusive franchise to an applicant, thereafter referred
to as "grantee," for a period of 15 years from the date the franchise
is awarded for the right and privilege to install, operate and maintain
a system in the City under the restrictions and conditions of this
chapter. No property right in this franchise shall vest in the grantee,
and such franchise shall not be construed to create any right beyond
that set forth in this chapter.
B.
A franchise approval fee as provided by the current
fee schedule on file with the City Clerk shall be paid by the grantee
to the City within 10 days after the granting of the franchise to
the grantee to offset the reasonable costs of Municipal Attorney or
legal consulting fees plus any administrative costs incurred by the
City.
C.
No transfer of control of the cable communication
system shall take place, whether by forced or voluntary sale, lease,
assignment, or any other form of disposition, without prior notice
to and approval by the Council after submission of an application
by the transferee.
D.
None of the rights and privileges or the delegations,
duties or liabilities created by this franchise may be transferred
or assigned, either voluntarily or involuntarily, by the grantee without
prior approval by the Council after submission of an application by
the proposed transferee or assignee.
E.
The grantee shall not assign, mortgage, pledge, hypothecate
or otherwise encumber the franchise or all or any part of the cable,
wires or other equipment located within the City, nor permit the same
to occur, nor permit a prior assignment, mortgage, pledge, hypothecation
or encumbrance to continue, without prior notice to and approval by
the Council.
F.
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 immediately 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 section governing
the consent of the Council to such change in control of the grantee
shall apply.
G.
The grantee shall, at all times during the operation
of this franchise, be subject to all lawful exercise of the police
power as may be hereafter provided by the City or the Council.
H.
Cable communication system service shall be made available
to the entire City in accordance with the construction timetable.
J.
Where there is a physical impracticality for the franchisee
to connect to a building in the City of St. Francis, the City may
grant an additional franchise to another cable television operator,
by ordinance, permitting installation and, if desired, waving certain
conditions of this Code.
A.
This franchise may be renewed by the Council upon
application of the grantee pursuant to the procedure established in
this section and in accordance with the then applicable law.
B.
At least 18 months prior to the expiration of the
franchise, the grantee shall inform the Council in writing of its
intent to seek renewal of the franchise.
C.
After giving public notice, the Council 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 matters relevant to the operation and performance by
the grantee. The Council shall consider the grantee's annual reports
made to the City and the FCC and industry performance on a national
basis. Provision shall be made for public comment.
D.
A four-month period shall be provided to determine
the grantee's eligibility for renewal.
E.
The Council shall then prepare within two months of
the expiration of that period any amendments to this chapter that
it believes necessary.
F.
If the Council finds the grantee's performance satisfactory
a new franchise may be granted pursuant to this chapter as amended
for a period of 10 years.
G.
In the event that the grantee is determined by the
Council to have performed unsatisfactorily, new applicants shall be
sought and evaluated and a franchise award shall be made by the Council
according to franchising procedures adopted by the Council.
A grantee shall be subject to the following
restrictions and conditions with regard to the operation of the system,
which conditions and restrictions shall be in addition to any other
sections of this chapter or other sections of this Code:
A.
Cable, wires, and other equipment in connection with
such system shall only be installed and operated on or under the streets
upon the poles or in underground conduit and equipment of the existing
utilities within the City where conduits exist and where space in
installed conduits is available. Installation of any additional poles,
conduit or other equipment for the installation of cable, wires and
other overhead equipment and underground equipment in streets in connection
with said system shall not be authorized and is expressly forbidden
except as such additional authorization may be secured by the special
permission of the Council; provided, however, that in no event may
installation of poles be authorized along a public street. In reaching
a decision as to such additional poles or equipment, the suggestions,
if any, of the public utility company or companies servicing or planning
to serve such area may be considered. Installation over or on private
property shall be subject to prior utility easement and prior notification
by mail or personal service to the appropriate utility company and
property owners. The grantee shall obtain, at its own expense, any
additional necessary easements or rights-of-way which shall become
part of the franchise and shall vest no property rights or things
of value in such grantee whatsoever but shall inure to the benefit
of the City.
B.
Such wires, cables and other underground or overhead equipment shall be located as may be required of telephone companies or power lines by the Public Service Commission of Wisconsin. All equipment shall be grounded in the same manner as required by Chapter 237, Electrical Standards, of this Code for electrical services.
C.
In case it becomes necessary for the grantee to open
or otherwise disturb any streets, the grantee shall first secure a
permit from the City Engineer. The charge for restoring the premises
to its original condition shall be determined by the fee schedule
of the City or as reasonably established by the City Engineer. The
grantee shall pay the charge therefor to the City in advance of the
work. The work of restoring the street shall be performed by the City.
As an alternative regarding restoration, the City may allow the grantee
to restore the street, provided that prior approval is granted by
the City and inspection and approval of the restoration are given
by the City. In the event that such advance payment is insufficient
to cover the cost plus reasonable administrative expenses, the grantee
shall pay such additional amount; if too much, it shall be refunded.
D.
The grantee shall, at its own expense, protect, support,
temporarily or permanently disconnect, relocate in the same street,
or remove from any street any property owned or used by the grantee
when required by the City Engineer by reason of traffic conditions,
public safety, street vacation, freeway and street construction, change
or establishment of street grade, or installation of sewers, drains,
water pipes, power lines and tracks or any other type of structures
or improvements by governmental agencies when acting in a governmental
or proprietary capacity or any other structures or public improvements.
E.
The grantee shall, upon the request of any person
having a building moving permit issued by the City, temporarily raise
or lower its lines or disconnect or take them down to permit the moving
of buildings. The expense of such removal, raising, or lowering of
wires shall be paid by the person requesting the same, and the grantee
shall be given not less than 48 hours' advance notice to arrange for
such temporary wire changes. The City shall not be responsible for
any changes incurred by reason of moving such buildings.
F.
All installations by the grantee of cables and incidental
equipment shall comply in all respects with all laws, ordinances,
rules and regulations of the Federal Communications Commission, the
State of Wisconsin, or any agency or department thereof, and of the
City or any agency or department thereof, now or hereafter in effect.
G.
The grantee shall provide and maintain its equipment
in such condition and of such quality so that none of its service
will adversely affect radio and television reception.
H.
Installation and maintenance of equipment shall be
such that standard color signals shall be transmitted with high-quality
fidelity to any subscriber consistent with FCC standards or any higher
utility standards possible in the industry, at the City's option.
For this purpose, the grantee shall make available to the City such
monitoring devices and test panels, at a location determined by the
City, so shall enable the City to assure high-quality fidelity transmission
to the subscriber.
I.
The grantee shall not either directly or indirectly
engage in the servicing or repair of television receivers in the City
nor directly or indirectly require of any subscriber the patronage
of any designated person or company engaged in such service or repair
business. The foregoing shall not apply to the repair or adjustment
of equipment which is part of the system of the grantee.
J.
The grantee shall submit to inspections by duly authorized
personnel of the City and shall make available to such inspectors
or duly authorized personnel its facilities and equipment. The City
reserves the right to enact reasonable regulations regarding the installation
and maintenance of the facilities of the grantee.
K.
The City shall have the right, during the life of
this franchise, free of charge, where serial construction exists,
to maintain upon the poles of the grantee within the City limits wire
and pole fixtures necessary for a police and fire alarm system, such
wires and fixtures to be constructed and maintained to the satisfaction
of the grantee and in accordance with its specifications.
L.
The City in its use and maintenance of such wires
and fixtures shall at all times comply with the rules and regulations
of the grantee so that there may be a minimum danger of contact or
conflict between the wires and fixtures of the grantee and the wires
and fixtures used by the City.
M.
The grantee, subject to prior approval of the City
Engineer, shall have the authority to trim trees upon and overhanging
streets of the City so as to prevent the branches of such trees from
coming in contact with the wires and cables of the grantee, except
that, at the option of the City, such trimming may be done by it or
under its supervision and direction at the expense of the grantee.
As to trees on private property, subscriber written permission must
be obtained.
N.
In all areas of the City where the cables, wires,
or other like facilities of public utilities are not placed underground,
the grantee shall place its cables, wires or other like facilities
underground. In all areas of the City where cables, wires, or other
like facilities of public utilities are in the future placed underground,
the grantee shall at such time place its cables, wires, or other facilities
underground. Unless otherwise determined by the Council upon termination
of its franchise by revocation, nonrenewal or any other event the
grantee shall remove or cause to be removed its plant, structures
and equipment.
O.
In removing its plant, structures and equipment, the grantee shall refill, at its own expense, any excavation that shall be made by it and shall leave all public ways and places in as good condition as that prevailing prior to the company's removal of its equipment and appliances, without affecting the electric or telephone cables, wires or attachments. Such obligations shall be met by the grantee within 12 months of the date of revocation, termination or other future date fixed by the Council. Any property not so removed shall be deemed abandoned and the City may dispose of such property as it sees fit. Any cost for such removal or disposal incurred by the City shall be reimbursed by the grantee. The Council shall inspect and approve the condition of the public ways and public places and wires, cables, attachments and poles after removal. Liability insurance and indemnity required to be provided under § 205-13 shall continue in full force and effect during the period of removal. The period of removal shall end only after inspection of the removal results and upon issuance of an approval of the grantee's removal results by the Council. The grantee shall provide a performance bond in an amount to be set by the Council to insure payment for such removal. The Council may require grantee to continue operating for a period of 12 months from the date of any determination to revoke or not review.
P.
In the event of a failure by the grantee to complete
any work required above or any work required by City law or ordinance
within the time established and to the satisfaction of the City, the
City may cause such work to be done, and the grantee shall reimburse
the City the costs thereof within 30 days after receipt of an itemized
list of such costs.
Q.
It shall be the right of all subscribers to receive
all available services insofar as their financial and other obligations
to the grantee are honored. In the event that the grantee elects to
overbuild, rebuild, modify, or sell the system or the Council 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.
R.
The grantee may be required to interconnect its system
with any other compatible broadband communication facility. Such interconnection
shall be made within the time limit established by the Council. The
interconnection shall, at the Council's discretion, be accomplished
according to the method and technical standards determined by the
Council, in a manner consistent with applicable FCC standards.
S.
The grantee shall provide a full color local origination/access
production facility within the City limits at such locations approved
by the Council. The grantee shall submit its plan for this studio
to the Council for approval. This production facility shall be made
available to persons and organizations using the public access educational
government channels on the grantee's cable system, subject to reasonable
rules and regulations to be established by the Council. The grantee
shall provide reasonable technical programming assistance to persons
and organizations using the production facility.
[Amended 9-4-2012 by Ord. No. 1324]
T.
If the Council determines not to reissue the franchise
for reasons other than a material breach of the franchise or reasons
unrelated to the performance of the franchise holder or upon receipt
of an application for assignment of the franchise or upon change of
de facto control, the grantee shall first offer the system for sale
to the City at a fair and just market value, which value shall include
the fair market value of the system as a going concern, including
the franchise itself and the rights and privileges granted by the
City.
(1)
When the franchise is revoked or expires and is not
renewed because of a material breach of the franchise, the grantee
shall first offer the system for sale to the City at a fair and just
market value, which value shall not include any value for the franchise
itself or for any of the rights or privileges granted by the City.
(2)
In the event that the determination of fair market
value cannot be negotiated or determined, said value shall be determined
by an impartial arbitration procedure pursuant to Ch. 788, Wis. Stats.,
wherein the grantee and the City shall each choose an arbitrator and
the arbitrators chosen shall choose the third, and the valuation determined
by said arbitrators shall be considered the fair market value at which
the system will be offered to the City. The determination of the value
of the system shall be decreased by the amount of any damages sustained
by the City in connection with revocation or expiration, including,
without limitation, payment made by the City to another person or
entity to operate the system for a temporary period after revocation.
The cost of the arbitration procedure shall be shared equally by the
City and the grantee.
(3)
The City shall have 90 days to exercise the right
of first refusal to purchase the system, said 90 days commencing on
the day the fair market value of the system is determined either through
negotiation or the arbitration procedure. If the City does not exercise
its option to purchase and the system is not sold to another operator
who has obtained a franchise from the City in a reasonable period
of time, the grantee, upon request by the City, shall promptly remove
all its plant, structures and equipment; provided, however, that in
the event the City determines not to exercise its right of first refusal
it shall not unreasonably refuse to renew or grant a cable television
franchise during a reasonable interim period. While transfer of the
system and franchise is being negotiated, arranged or ordered, the
grantee may be required to continue service to the public unless for
reasons beyond the control of the grantee said operation will be economically
unfeasible to the grantee.
A.
The maximum rates which may be charged by the grantee
to subscribers shall be those rates as set forth in the grantee's
application. Said rates shall remain the maximum rates for the first
two years of operation of the system. For the purpose of determining
the two-year time period under this subsection, the operation shall
be deemed to have commenced one year after the date of award of the
franchise or at such time as construction necessary to make cable
system service available to 50% of the homes in the City has been
completed, whichever shall first occur. Completion of construction
shall include not only the required installation of equipment but
shall be interpreted to require the satisfactory receipt of all signals
by subscribers.
B.
Thereafter, no increase in rates shall be allowed
unless 90 days' written notice shall first be given by the grantee
to the City Clerk and the Council. The Council shall hold a mandatory
public hearing or hearings to consider said proposed rate increase
and the grantee shall receive written notification thereof. In the
event that the Council takes no action to either grant or deny the
proposed rate increase within the ninety-day period, the proposed
increase shall be deemed approved and the grantee may increase the
rates effective at the end of the ninety-day period unless by the
agreement of the Council and the grantee that period is extended.
C.
The Council, however, retains the right to act upon
such request for an increase in rates. In such event, a public hearing
shall be mandatory. In addition, the Council shall request the grantee
to present a petition for rate increase. Said petition for rate increase
shall include a list of other municipalities being served by the grantee
and the rates in effect in each one and the following reports, which
shall reflect the operation of the City system only:
(1)
Balance sheet.
(2)
Income statement.
(3)
Cash flow statement.
(4)
Statement of sources and application of funds.
(5)
Detailed supporting schedules of expenses, income,
assets, and other items as may be required.
(6)
Statement of current and projected subscribers and
penetration.
(7)
Other information requested by the Council which may
relate to the necessity for the rate increase.
D.
The grantee's accounting records applicable to the
City system shall be available for inspection by the City at all reasonable
times. The City shall have access to records of financial transactions
for the purpose of verifying burden rates or other indirect costs
prorated to the City operation. The documents listed above shall include
sufficient detail and/or footnotes as may be necessary to provide
the City with the information needed to make accurate determinations
as to the financial condition of the system. All financial statements
shall be certified as accurate by an officer of the grantee. The City
may do all things necessary to ensure completeness and accuracy. All
City costs of inspection and verification shall be promptly reimbursed
to the City upon demand.
E.
After consideration of the information supplied and
after public hearing, the Council, in its sole discretion, may approve
the rate increase, deny the rate increase, or, if more than one type
of rate is requested to be increased, approve the increase in part
and deny the increase in part. The criteria for the Council's decision
in such matter shall be the establishment of rates which are fair
and reasonable to both the grantee and its subscribers and shall be
generally defined as the minimum rates necessary to meet all applicable
costs of service, including fair return on all invested capital, assuming
efficient and economical management. Fair return on invested capital,
as used herein, shall be the equivalent of fair return on invested
capital as calculated by the Public Service Commission of Wisconsin
for privately owned electric and telephone utility companies in the
Milwaukee County area.
A.
For the purpose of and for the expenses incurred by
the City for the regulation of the cable communications system by
the City, the grantee shall pay to the City an amount equal to the
maximum percentage permitted by law of the grantee's gross revenues
from the operations of the cable communications system in the incorporated
area of the City during the calendar year. Such fund shall be retained
in a separate account to be designated as the "Cable Regulatory Fund."
Said maximum is currently 5%. In the event that there is no such maximum
permitted by law or the present maximum is abandoned, the parties
shall agree upon a rate. If no agreement is reached within 120 days
of elimination of the maximum, the subject shall be resolved by arbitration
procedures set forth in Ch. 788, Wis. Stats., or its successor. The
annual sum shall be payable 1/2 thereof at the end of each semiannual
period. The semiannual anniversary shall be the last day of June and
the last day of December of each year, and each semiannual payment
shall be paid within 60 days thereafter.
B.
The grantee shall also file within 120 days following
the conclusion of each fiscal year of the grantee an annual report
prepared and audited by an independent certified public accountant
showing the yearly total gross revenues and payments to the City and
any further relevant financial information in regard to the grantee
as may be required by the Council.
[Amended 9-4-2012 by Ord. No. 1324]
C.
The City shall have the right to inspect the grantee's
income records and the right to audit and to recompute any amounts
determined to be payable under this chapter; provided, however, that
such audit shall take place within 12 months following the close of
each of the grantee's fiscal years. Any additional amount due to the
City as result of the audit shall be paid within the 30 days following
written notice to the grantee by the City, which notice shall include
a copy of the audit report.
D.
In the event that any franchise payment, recomputed
amount or other payment is not made on or before the applicable dates
heretofore specified, interest shall be charged from such date at
the rate of 2% above the local prime rate.
E.
Payments of compensation made by the grantee to the
City pursuant to the provisions of this chapter shall not be considered
in the nature of a tax but shall be in addition to any and all taxes
which are now or hereafter required to be paid by any law of the United
States, the State of Wisconsin, the County of Milwaukee or the City.
A.
The cable communications system permitted to be installed
and operated hereunder shall be operated in conformance with the FCC's
technical standards, 47 CFR 76.601 et seq.
(1)
The system shall be capable of delivering all National
Television Systems Committee color and monochrome standard signals,
developed and presented to the Federal Communication Commission on
July 21, 1953, to standard Electronic Industries Association approved
television receivers without noticeable degradation.
(2)
The system shall meet all performance criteria over
the ambient temperature range prevailing in the franchise area from
the normal daily minimum temperature in February to the normal daily
maximum temperature in August.
(3)
The grantee shall continue, throughout the term of
the franchise, to maintain the technical standards and quality of
service set forth in this chapter. Should the Council reasonably find
that the grantee has failed to maintain these technical standards
and quality of service, and should it specifically enumerate improvements
to be made, the grantee shall make such improvements.
B.
The system shall be capable of initially delivering
to subscribers a minimum of 20 channels.
C.
The grantee shall carry but not be limited to:
(1)
Milwaukee metropolitan area Channels 4, 6, 10, 12,
18, 24, and 36.
(2)
A minimum of two independent non-area channels.
(3)
The signals of other TV stations pursuant to the present
and future regulations and requirements of the FCC.
(4)
One grantee-controlled and -provided additional fee
channel for special programs and events.
(5)
One access channel for a use to be determined by the
Council with a right reserved to the City to obtain a second access
channel when traffic so dictates. Access channel shall be provided
by the grantee or by the municipal users based upon the provisions
as set forth herein and in the grantee's application.
(6)
Such additional channels, programs and production
equipment as the grantee has included in his application.
D.
The grantee shall:
(1)
Furnish and install a cable service drop or connection
to each school physically located in the City (public, private and
parochial), the Municipal Building, library, and Police and Fire Departments,
at no charge or monthly service fee.
(2)
Provide two-way capability and furnish the necessary
line amplifiers and return modules.
(3)
Provide for program interruption to allow the City
to advise its residents of emergency situations.
A.
Grantee shall maintain a business office and telephone
listing in Milwaukee County for the purpose of receiving inquires
and complains from its customers and the general public. Investigation
and repair personnel shall live within a fifteen-mile radius of the
St. Francis Municipal Building. The grantee shall investigate all
complaints within 48 hours after notice. The grantee shall maintain
records of complaints, including action taken thereon, and shall keep
such records in the local business office. The grantee shall make
the records available to the Council upon request. In no event shall
the grantee remove or destroy such records without prior approval
of the Council.
B.
In the event of the failure by the grantee to resolve
complaints, the Council may review complaints other than those relating
to program content. Failure of the grantee to resolve complaints may
also be cause for revocation of franchise.
C.
In all brochures and other written material, the grantee
shall state the fact that a complaint procedure has been established
and state the mailing address and telephone number of the office handling
inquires and complaints.
D.
When there have been similar complaints made or where
there exists other evidence which, in the judgment of the Council,
casts doubt on the reliability or quality of cable service, the Council
shall have the right and authority to compel the grantee to test,
analyze and report on the performance of the system, at the expense
of the grantee. Such test or tests shall be made, and the results
of such test or tests shall be delivered to the City no later than
14 days after the Council formally notifies the grantee. Such report
shall include the following information: the nature of the complaints
which precipitated the special tests; what system component was tested;
the equipment used and procedures employed in said testing; the results
of such tests; and the method in which such complaints were resolved.
Any other information pertinent to the special test shall be recorded.
[Amended 9-4-2012 by Ord. No. 1324]
(1)
Said tests and analyses shall be supervised by a professional
engineer not on the permanent staff of the grantee. The aforesaid
engineer should sign all records of special tests and forward to the
City such records with a report interpreting the result of the tests
and recommending actions to be taken by the City.
(2)
The City's right under this provision shall be limited
to requiring of tests, analyses, and reports covering specific subjects
and characteristics based on said complaints or other evidence when
and under such circumstances as the City has reasonable grounds to
believe that the complaints or other evidence requires that tests
be performed to protect the public against substandard cable service.
A.
The grantee shall, within 60 days of the date of the
award of the franchise, perform and submit all required registrations
and applications with the appropriate governmental agencies regulating
cable systems.
B.
The grantee shall, within 90 days of the date of the
award of the franchise, furnish to the Council complete plans and
specifications for the construction of its plant and distribution
system for approval by the Council.
C.
The grantee shall, within one year of the approval
of the plans and specifications by the Council, complete the construction
necessary to make cable system service available to at least 50% of
the homes in the City.
D.
The grantee shall, within 18 months of the approval
of the plans and specifications by the Council, complete all of the
construction of its plant and distribution system throughout the City.
G.
At the end of two years (as established under Subsection D) the grantee shall make cable system service available to all residences or commercial establishments within the City within 60 days after the filing of written applications by said potential subscribers for such service and payment of the connection fee.
H.
The grantee shall make no material change in the operation
of the system from that approved by the Council in granting the franchise
except upon prior approval by the City. At least two weeks prior to
making a request for a material change in operations, the grantee
shall cause to be published in the official City newspaper prominent
notice of the request, including a description of the nature of the
changes and a concise statement of the reasons therefor.
I.
The grantee shall be required to provide a performance bond in the amount of $50,000 within 10 days after the date of award of the franchise. This bond shall serve as an assurance to the City of St. Francis that the construction of the system shall be completed within the period as designated in Subsection D above.
A.
The grantee shall indemnify and save the City, its
agents and employees harmless from and against all loss, liability,
damage and expenses, including attorney fees, sustained by the City,
its agents and employees on account of any suit, judgment, execution,
claim or demand arising out of the installation, operation or maintenance
of the cable communications system authorized herein, whether or not
any act or omission complained of is authorized, allowed or prohibited
by this chapter and any franchise granted hereunder, including but
not limiting said indemnity to claims for personal injuries, libel,
slander, death or property damages, expenses of investigation and
litigation of claims and suits arising hereunder, and claims based
on copyright violation or infringements or violation of proprietary
rights.
B.
The grantee shall carry and at all times maintain
on file with the City Clerk and at all times keep in force a public
liability policy of insurance insuring such grantee and the City against
any and all liability arising from such installation and/or operation,
with limits of liability of not less than $500,000 for property damage
and $1,000,000 for any one person for personal injury, death, or other
damages attributable to the installation and/or operation of the cable
communication system. Such policies of insurance or certificate thereof
by a company licensed to do business in the State of Wisconsin shall
be filed with the City Clerk prior to the commencement of installation.
Such policy or certificate shall provide that the City shall be notified
30 days in advance of the cancellation or termination of the policy.
The Council reserves the right to approve the policy and to periodically
increase minimum limits of liability based upon inflationary factors
and based upon experience.
C.
The grantee, upon receipt of due notice in writing
from the City, shall defend at its own expense any action or proceeding
against the City in which it is claimed that injury or damage arose
from the grantee's activities or failure to act in the installation,
maintenance or operation of its cable communication system.
The grantee shall comply with all conditions
imposed by the Federal Communications Commission and by the State
of Wisconsin. Failure to obtain any required licenses or to comply
with all such conditions shall be grounds to revoke the franchise
without liability assigned to the City. Copies of all documents pertaining
to the City filed with other government bodies, including but not
limited to the FCC and the State of Wisconsin, shall be furnished
to the City concurrently.
A.
Notice.
[Amended 9-4-2012 by Ord. No. 1324]
(1)
The Council shall have the right to rescind or revoke
the franchise granted upon violation by the grantee of any material
obligation or requirement contained herein, or upon the refusal to
comply with any reasonable request made by the Council concerning
compliance with this chapter, after written notice to the grantee
and continuation of such violation or refusal to comply by the grantee.
An accumulation of violations which if taken alone would not constitute
a violation of a material obligation or requirement may be deemed
a violation of a material obligation or requirement.
(2)
Such written notice to the grantee shall specify precisely
the manner in which the grantee is in violation, but in no event shall
the time period be more than 30 days from the date of receipt of the
notice to the grantee.
B.
The Council may declare this franchise herein granted
to be forfeited and terminated upon the happening or discovery of
any of the following events:
(1)
Grantee adjudicated a bankrupt.
(2)
Grantee becomes insolvent.
(3)
Grantee is placed in receivership.
(4)
Grantee violates the right to privacy of subscribers.
(5)
Grantee fails to meet the construction timetable without
good cause for such failure.
(6)
Grantee practices fraud or deceit upon the City, its
agents, and employees or upon the subscribers.
(7)
Grantee makes material misrepresentations in its application.
(8)
Grantee fails to comply with material requirements
of its application or the municipal ordinances.
(9)
Grantee fails to provide uninterrupted service to
more than 10% of its subscribers for 10 consecutive days or for 30
days in any one calendar year.
C.
The Council may establish or adopt rules and regulations
which provide for fines to be levied against the grantee when, in
the judgment of the hearing body, the grantee has failed to satisfactorily
perform according to the terms of this chapter.
The grantee shall not, as to rates, charges,
service, services facilities, rules, regulations, employment, or in
any other respect, make or grant any undue preference or advantage
to any party nor subject any party to any prejudice or disadvantage
because of race, creed, religion, sex, age, marital status or national
origin. So far as allowed by law, special consideration as to all
items mentioned herein shall be granted to the City, all schools,
and to residents over 60 years of age.
The grantee's application shall be deemed incorporated
by reference and made a part of this chapter. In the event of a conflict
between proposed services listed in said application and the provisions
of this chapter, that provision which provides the greatest benefit
to the City, in the opinion of the Council, shall prevail.
The grantee shall not reveal to any third party
any information or data concerning any specific subscriber except
as required by law. Any information or data revealed to third parties
shall be limited to gross data relating to all subscribers, without
identification of individual subscribers; provided, however, that
the grantee may make revelations consistent with activities directly
related to the business of operating a cable communication system,
i.e., mailing of information and billing statements. Upon request
the Council shall be furnished with subscriber information.
A.
The Council and the grantee shall hold scheduled evaluation
sessions within 30 days of the third, fifth, seventh and 10th anniversary
dates of the granting of the franchise. All such evaluation sessions
shall be open to the public and announced in the official City newspaper
of general circulation at least five days before each session.
B.
Special evaluation sessions. Special evaluation sessions
shall be held at any time, at the call of the Council or the grantee,
during the term of the franchise, provided that both the Council and
the grantee shall mutually agree on the time, the place and the topic
to be evaluated. All such evaluation sessions shall be open to the
public and announced in a newspaper of general circulation at least
five days before each session.
C.
Topics to be evaluated.
(1)
The following topics shall be discussed at every scheduled
evaluation session:
(2)
Topics in addition to those listed may be added if
agreed upon by both parties. Members of the general public may add
topics either by working through the negotiating parties or by presenting
a petition. If such petition bears the valid signatures of 50 or more
qualified electors of the City, the proposed topic or topics shall
be added to the list of topics to be discussed at the evaluation session.
[1]
Editor’s Note: Former § 205-20, Cable Regulatory
Commission, was repealed 9-4-2012 by Ord. No. 1324.
Neither the grantee nor any governmental bureau,
department, unit, agency or entity at the federal, state, county or
local level nor any other person or entity shall monitor, or arrange
for the monitoring of, any cable, line, signal input device, or subscriber
outlet or receiver for any purpose whatsoever, except with the permission
of the subscriber or homeowner or as may be agreed upon between the
grantee and the Council or its designee. This chapter shall not prevent
the grantee from undertaking monitoring activities essential to the
operation of the system, i.e., billing, nor shall it prevent the introduction
or additional services agreed upon, i.e., two-way communications and
security systems.
A.
An owner or operator of an apartment building, condominium,
nursing home, or any other rental facility may not interfere with
or charge a fee for the installation of cable facilities for the use
of a lessee of said property or premises, except that such owner or
operator may require:
(1)
Installation to conform to reasonable conditions necessary
to protect the safety, appearance and functioning of the premises.
(2)
The grantee, occupant, or tenant to pay for the installation,
operation or removal of such facilities or the grantee, occupant or
tenant to agree to indemnify the owner or operator for any damages
caused by the installation, operation or removal of such facilities.
B.
It shall be unlawful for the grantee to reimburse
or offer to reimburse any person, or for any person to demand or receive
reimbursement from the grantee, for the placement upon the premises
of such person of the grantee's facilities necessary to connect such
person's premises to the distribution lines of the grantee to provide
cable television service to said premises.
C.
A landlord may not discriminate in the amount of rent
charged to tenants or occupants who receive cable services and to
those who do not.
D.
The grantee may not take actions which would diminish
or interfere with the privilege of any tenant or other occupant of
any such building to use or avail himself of master or individual
antenna equipment.
A.
A person who willfully or maliciously damages or causes
to be damaged any wire, cable, conduit, apparatus or equipment of
the grantee or who commits any act with intent to cause damage to
any wire, cable, conduit, apparatus or equipment of the grantee or
who taps, tampers with, or connects any wire or device to a wire,
cable, conduit or equipment of the grantee with intent to obtain a
signal or impulse from there without authorization of the grantee
shall be subject to a forfeiture as determined by the appropriate
court, but this chapter shall not prevent a public utility from removing,
disconnecting or otherwise rendering inoperable any of grantee's apparatus
or equipment attached or in any way connected to such public utility's
facilities, if done for reasonable cause.
B.
The grantee or its agent shall not, in an action for
slander or for publishing a libel, be held liable in damages for or
on account of any defamatory matter uttered, telecast, cablecast,
or published over the facilities of the grantee by any person whose
utterance, telecast, cablecast, or publication is not, under the provisions
of any law of the United States or any regulation, ruling or order
of the Federal Communications Commission, subject to censorship or
control by the grantee.
Any person who shall violate any provision of this chapter or any regulation, rule or order made hereunder shall be subject to a penalty as provided by § 1-4 of this Code.
