[HISTORY: Adopted by the Village Board of the Village of Pleasant Prairie 5-2-1988 as Ch. 22 of the 1988 Code. Amendments noted where applicable.]
As used in this chapter, the following terms shall have the meanings indicated.
- BROADBAND TELECOMMUNICATIONS NETWORK (BTN)
- Any network of cables, optical, electrical or electronic equipment, including cable television systems, used for the purpose of transmission of electrical impulses of television, radio and other intelligences, either analog or digital, for sale or use by the inhabitants of the Village.
- CHANNEL, CABLE TELEVISION
- A frequency bank 6 MHz in width within which a standard television broadcast signal is delivered by cable to a subscriber terminal.
- CHANNEL, DISCRETE CABLE TELEVISION
- A signaling path provided by a cable television system to transmit signals of any type to specified subscriber terminals within the cable television system.
- COMMENCE OPERATION
- The operation will be considered to have commenced when sufficient distribution facilities have been installed so as to permit the offering of cable service to at least 25% of the dwelling units located within the designated service areas.
- The Federal Communications Commission and any legally appointed or elected successor.
- FRANCHISE AREA
- The Village or the areas within the limits of the Village as they now exist or as they may change in the future as the result of annexation.
- Any nonexclusive person, firm, company, corporation or association to whom a franchise is granted by the Village Board of the Village hereunder, and the lawful successor or assigns of such persons, firm, company, corporation or association.
- The land, electronic processing equipment, antennas, tower, building and other appurtenances normally associated with and located at the starting point of a broadband telecommunications network, excluding the studio.
- REASONABLE NOTICE
- The provision of notice of contemplated action delivered at least 72 hours prior to such action.
- SERVICE, ADDITIONAL
- Service other than service provided by the grantee to the subscriber on a monthly basis and for which the subscriber pays a set fee.
- SERVICE, AUXILIARY
- See "service, additional."
- SERVICE, BASIC
- Subscriber services provided by the grantee, including the delivery of broadcast signals and programming originated over the cable system, covered by the regular monthly charge paid by all subscribers.
- Includes all streets, roadways, highways, avenues, lanes, alleys, courts, places, squares, curbs, sidewalks, easements, rights-of-way or other public ways in the Village which have been or may hereafter be dedicated and open to the public use, or such other public property as designated by law.
- A purchaser of any service delivered by grantee pursuant to this franchise, and "subscriber" shall also include all persons who are not required to pay any fee but receive any service delivered by grantee pursuant to this franchise.
- SUBSTANTIALLY COMPLETED
- Operation will be considered substantially completed when sufficient distribution facilities have been installed so as to permit the offering of full network service to at least 95% of the dwelling units in the area proposed to be serviced.
- See "broadband telecommunications network (BTN)."
- The Village of Pleasant Prairie.
- VILLAGE BOARD
- The Village Board of the Village of Pleasant Prairie.
The franchise granted hereunder shall give to the grantee the right and privilege to construct, erect, operate, modify and maintain, in, upon, along, across, over and under streets (as defined in § 143-1 herein), which have been or may hereafter be dedicated and open to public use in the Village, towers, antennas, poles, cables, underground conduits, manholes, electronic equipment and other network appurtenances necessary for the operation in the Village of a broadband telecommunications network, utilizing wherever possible existing facilities, with the right upon application to the designated Village official to set poles or other equipment on facilities constructed by the applicant. Any such designated Village official will not unreasonably refuse permission for such construction. However, a nonproliferation of poles policy for aesthetic purposes shall be considered. Where existing utility service for telephone and electrical service is underground, cable lines shall also be underground in that area.
The Village shall require all developers of future subdivisions, when making provisions for or restrictions of utilities in the subdivision plat, to include cable television services. It is intended by this subsection to include cable television services in the same class as public utilities. The fact that cable television services are classed as public utilities under this chapter shall not prevent any owner of any residential, commercial, industrial or other structure from refusing to approve or permit the grantee from installing any wires, antennas or equipment of any type or from physically occupying such owner's property in any fashion, even if cable service is requested by such owner's tenant or tenants.
The right to use and occupy such streets, as set forth above, shall not be exclusive and the Village reserves the right to grant a similar use of such streets to any person at any time during the period of this franchise.
The 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 subsections of this section or other sections of this Code.
Conditions on street occupancy.
Interference. All transmissions and distribution structures, lines and equipment erected by the grantee within the Village shall be so located as to cause minimum interference with the proper use of streets, alleys and other public ways and places and to cause minimum interference with the rights and reasonable convenience of property owners who join any of the streets, alleys or other public ways and places. Cables, wires and other equipment in connection with the system shall only be installed and operated on or under the public right-of-way, upon poles or in underground conduit and equipment of the existing utilities within the Village, and their successors or assigns, where conduits exist and space in installed conduits is available. Installation of any additional poles, conduit or other equipment for the installation of cables, wires or other overhead equipment and underground equipment in the public rights-of-way in connection with the system shall be subject to authorization of the Village Board or its designated representative. In reaching a decision as to such additional poles or equipment, the suggestions, if any, of the utility companies servicing or planning to service such area may be considered by the Village Board or its designated representative. Underground installation shall always be preferred.
Restoration. In case of disturbance of any street, sidewalk, alley, public way or paved area, the grantee shall, at its own cost and expense and in a manner approved by the Village Superintendent of Streets or other appropriate office, replace and restore such street, sidewalk, alley, public way or paved area in as good a condition as before the work involved in such disturbance was done. The grantee will also pay all cost incurred by the Village in regards to the regulation of the cable television system, if any.
Removal. The grantee shall, at its own expense, protect, support, temporarily or permanently disconnect, relocate in the same public right-of-way, or remove from a public right-of-way, any property owned or used by the grantee, if required by the Village for reasons of traffic conditions, public safety, street vacation, freeway and street construction, change or establishment of street grade, installation of sewers, drains, water pipes, power lines and tracts, or any other type of structure or improvements by governmental agencies when acting in a governmental capacity. The Village shall provide the grantee notice of its intention to make changes which might otherwise cause grantee expense, pursuant to this section, and the grantee shall have an opportunity to comment.
Poles or other fixtures. Any poles or other fixtures placed in any public way by the licensee shall be placed in such manner as not to interfere with the usual travel on such public way.
Moving buildings. The grantee shall, on the request of any person holding a building moving permit issued by the Village, temporarily raise or lower its wires to permit the moving of buildings. The expense of such temporary removal or 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 three working days' advance notice to arrange for such temporary changes.
Tree trimming. The grantee shall have the authority to trim trees overhanging upon any streets, alleys, sidewalks and public ways and places of the Village 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 Village, such trimming may be done by it or under its supervision and direction at the expense of the grantee.
Cable, wires or other like facilities to be underground. In all sections of the Village where the cables, wires or other like facilities of public utilities are placed underground, the grantee shall place its cables, wires or other like facilities underground to the maximum extent that existing technology reasonably permits the grantee to do so.
Erection, removal and common user of poles.
No poles or other wire-holding structures shall be erected by the grantee without prior approval of the Village Board with regard to location, height, type 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 wherever the Village Board determines that the public convenience would be enhanced thereby.
Where poles or other wire-holding structures already existing for use in serving the Village are available for use by the grantee, but it does not make arrangements for such use, the Village Board may require the grantee to use such poles and structures if it determines that public convenience would be enhanced thereby and the terms of the use available to the grantee are just and reasonable.
Where the Village or a public utility service desires to make use of the poles or other wire-holding structures of the grantee, but agreement with the grantee cannot be reached, the Village Board may require the grantee to permit such use for such consideration and upon such terms as the Board shall determine to be just and reasonable, if the Board determines that the use would enhance the public convenience and would not unduly interfere with the grantee's operations.
Compliance. 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 or any agency or department thereof, and of the Village or any agency or department thereof, now or hereafter in effect.
Condition of equipment. 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.
Color signals. Installation and maintenance of equipment shall be such that standard color signals shall be transmitted with reasonable and acceptable fidelity to all subscribers. When the signals the grantee distributes are received in color, they shall be distributed in color where technically feasible.
Television receivers. The grantee shall not directly or indirectly require or solicit of any subscriber the patronage of any designated person or company engaged in the servicing, sale or repair of television receivers. The foregoing shall not apply to the repair or adjustment of equipment which is part of the system of the grantee. Nothing in this subsection shall preclude grantee from advertising or selling any merchandise or services.
Inspections. The grantee shall submit to inspections by duly authorized personnel of the Village and shall make available to such inspectors or duly authorized personnel its facilities and equipment wherever situated. The Village reserves the right to enact reasonable regulations regarding the installation and maintenance of the facilities of the grantee.
The grantee shall, at all times during the life of this franchise, be subject to all lawful exercise of the police power by the Village and to such reasonable regulation as the Village shall hereafter provide.
This franchise may be transferred, assigned or sold only with the written consent of the Village Board and approved only if the transferee, assignee or purchaser agrees in writing to be subject to all the terms and conditions of this chapter. The franchise shall notify the Village Board at least 30 days before a proposed transfer, assignment or sale is to take effect.
Such a notice shall be in the form of a written request to the Village Clerk, stating the reasons why such an assignment is necessary and/or advisable, and detailing the expected changes in the operation of the system. Information as to the legal, character, financial capability, technical and other qualifications of the party or parties to whom the franchise is to be transferred, assigned or sold, or by whom the same is to be operated, shall also be provided. This section shall apply to any transfer, assignment or sale of greater than 25% of the ownership, operation or management of the franchise. The Village Board shall not withhold approval or consent regarding the transfer, assignment or sale, without cause and unless it is shown that the operation or management of the system will be affected to the detriment of the public by approving such transfer, assignment or sale. The provisions shall not apply to either the mortgage or hypothecation of the system in respect to any mortgages or the remedies therein.
The term of a franchise shall be for a period of 15 years and shall be in full force and effect for such term, subject to the provisions of this chapter.
Every two years during the term of a franchise, during the month of January, at a regular or special Village Board meeting, the Village and the grantee, at either party's option, may meet to discuss application of new technologies, system performances, services provided, programming offered, customer complaints and judicial and FCC rulings affecting the operation of the system. The parties shall compare the services offered by a grantee to those of other stand-alone systems in similar market situations and, if then appropriate, the parties may renegotiate any of the above provisions, provided that such changes do not adversely affect economic viability of the franchise or adversely affect programming and maintenance services to the subscribers.
At the 12th year of the franchise, or if mutually agreed by the Village and a grantee during one of the review and renegotiations described in Subsection B above, the Village and the grantee shall consider extension of a franchise for 15 additional years. The purpose of this provision is to allow for maximum flexibility in the financial planning on the part of a grantee and for the Village in anticipating future services. It is further the purpose of this provision to encourage the Village to examine a grantee's performance and to plan for the future in providing cable television service as well as-to reward the satisfactory performance of a grantee. The Village may, at any time, reward a grantee for satisfactory performance by the extension of the franchise for five-year increments. This authority is granted so as to provide incentive to a grantee for satisfactory performance and maximum service.
Should a grantee's franchise be terminated or expire and there is no judicial or administrative review of the termination or expiration taking place, the grantee shall begin removal within 90 days of termination or expiration all property owned by him and placed on a public right-of-way unless permitted by the Village to abandon such property in place or transfer such property to a purchaser.
Grantee shall initiate construction and installation of the broadband telecommunications network within six months of receiving necessary authority from the Federal Communications Commission, including microwave licenses and a certificate of compliance, and within 12 months the grantee shall commence operations. The grantee shall have substantially completed construction within the time periods set forth in any franchise hereunder.
The Village may, in its discretion, extend the time for grantee, acting in good faith, to perform any act required hereunder. The time for performance shall be extended or excused, as the case may be, for any period during which grantee demonstrates to the satisfaction of the Village Board that grantee is being subjected to delay or interruption due to any of the following circumstances, if reasonably beyond his control:
Line extensions or installations beyond 150 feet will be paid for by the subscriber at the grantee's cost. It is the intent of this subsection to protect a grantee and the subscribers from subsidizing unreasonable extensions.
The grantee shall be allowed to furnish service from the headend to other areas in the Village; provided, however, that the construction or provision of services to areas other than the Village does not prohibit, impede or delay the substantial completion date of the system in the Village. If any such program service provided to such areas shall be in any manner superior to the program service provided within the Village, then such program service shall be provided to the Village.
The maximum initial rates which may be charged by a grantee to subscribers shall be those rates as set forth in the grantee's application. In the event of a rate increase of the basic service, the grantee shall provide the subscribers a thirty-day notice of such increase. Such notice shall be forwarded to the Village Administrator with supporting data for such increase. In no event shall the rates exceed those charged to residents of the City of Kenosha.
The rates and charges for television and radio signals distributed hereunder shall be fair and reasonable and no higher than necessary to meet a fair return on the original cost, less depreciation, of the properties devoted to such service.
By its acceptance of this franchise, the grantee specifically grants and agrees that its rates and charges to its subscribers for television and radio signals shall be fair and reasonable and no higher than necessary to meet all its necessary costs of service (assuming efficient and economical management), including a fair return on the original cost, less depreciation, of its properties devoted to such service.
In addition to all rights and powers pertaining to the Village by virtue of this franchise or otherwise, the Village reserves the right to terminate and cancel this franchise and all rights and privileges of the grantee hereunder if the grantee:
Violates any provision of this franchise or any rule, order or determination of the Village or Village Board made pursuant to this franchise, except where such violation, other than Subsection A(2) below, is without fault or through excusable neglect.
Becomes insolvent, unable or unwilling to pay its debts, or is adjudged a bankrupt.
Attempts to evade any of the provisions of this franchise or practices any fraud or deceit upon the Village;
Fails to begin or complete construction under this franchise by the date negotiated between the Village and the grantee.
Such termination and cancellation shall be by ordinance duly adopted after 90 days' notice to the grantee and shall, in no way, affect any of the Village's rights under this franchise or any provision of law. In the event that such termination and cancellation depends upon a finding of fact, such finding of fact, as made by the Village Board or its representative, shall be conclusive; provided, however, that before this franchise may be terminated and cancelled under this section, the grantee shall be provided with an opportunity to be heard before the Village Board. If, during such ninety-day period, the cause shall be cured to the satisfaction of the Village, the Village shall repeal such termination ordinance.
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.
The grantee shall continue throughout the term of the franchise to maintain the technical standards and quality of service set forth in this section. Should the Village Board pass a resolution finding that the grantee has failed to maintain those technical standards and quality of service, it shall enumerate the improvements to be made, and the grantee shall make such improvements.
The cable system shall carry and deliver to all subscribers all of the signals as provided in the grantee's application.
Grantee shall investigate all complaints within 24 hours of their receipt and shall, in good faith, attempt to resolve them within 48 hours after notice. Grantee shall maintain a record of each complaint and shall maintain such record for a period of two years. After such two-year period, such records shall be made available to the Village, which may thereafter retain such records.
The grantee shall, and by its acceptance of this franchise specifically agrees that it will, pay all damages and penalties which the Village may legally be required to pay as a result of granting this franchise. These damages and penalties shall include, but shall not be limited to, damages arising out of copyright infringements and all other damages arising out of the installation, operation or maintenance of the CATV system authorized herein, whether or not any act or omission complained of is authorized, allowed or prohibited by this franchise.
The grantee shall, and by its acceptance of this franchise specifically agrees that it will, pay all expenses incurred by the Village in defending itself with regard to all damages and penalties mentioned in Subsection A above. These expenses shall include all out-of-pocket expenses, such as attorneys' fees, and shall also include the reasonable value of any services rendered by the Village Attorney or any employees of the Village.
The grantee shall, and by its acceptance of any franchise granted hereunder specifically agrees that it will, maintain through the term of the franchise a general comprehensive liability insurance policy insuring the Village and grantee with regard to all damages mentioned in Subsection A above and liability for loss or damage for personal injury, death or property damage occasioned by the operations of grantee under any franchise granted hereunder, in the amounts of:
The insurance policies mentioned in Subsection C above shall be obtained from the same company and shall contain an endorsement stating that the policies are extended to cover the liability assumed by the grantee under the terms of this chapter and shall contain the following endorsements:
"It is hereby understood and agreed that this policy may not be cancelled nor the amount of coverage thereof reduced until 30 days after receipt by the Village Clerk by registered mail of a written notice of such intent to cancel or reduce the coverage."
The grantee shall maintain, and by its acceptance of any franchise granted hereunder agrees that it will maintain, throughout the term of this franchise a faithful performance bond running to the Village with at least two good and sufficient sureties approved by the Village in the penal sum of $25,000, conditioned that the grantee shall well and truly observe, fulfill and perform each term and condition of this chapter and any franchise granted hereunder and that, in case of any breach of condition of the bond, the amount thereof shall be recoverable from the principal and sureties thereof by the Village for all damages resulting from the failure of the grantee to sell and faithfully observe and perform any provision of such franchise.
All of the foregoing contracts shall be in form satisfactory to companies authorized to do business in the state, acceptable to the Village Administrator and Village Attorney. Such insurance contracts shall require 30 days' written notice of any cancellation to both the Village and the grantee. Such insurance policy and bond, along with written evidence of payment of required premium, shall be filed and maintained with the Village Clerk during the term of any such franchise.
Technical standards. The technical standards, including measurements of the construction and systems to be operated by the Village, shall meet or exceed the minimum standards established by the Federal Communications Commission.
Production, transmission and limiting failures. The grantee shall, in addition:
Produce a picture that is undistorted, free from ghost images and accompanied with proper sound on typical standard production TV sets in good repair and as good as the state of art allows.
Transmit signals of adequate strength to produce good pictures with good sound at all outlets without causing cross-modulation in cable or interfering with other electrical or electronic systems.
Limit failures to a minimum by locating and correcting malfunctions promptly, but in no event longer than 48 hours after notice.
Operation and maintenance of system.
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 use of the system.
The grantee shall maintain an office in the City of Kenosha or the Village, which shall be open during all usual business hours, have a listed telephone and be so operated that complaints and requests for repairs or adjustments may be received at any time.
In the case of any emergency or disaster, the grantee shall, upon request of the Village Board, make available its facilities to the Village for emergency use during the emergency or disaster period.
The grantee shall comply with all conditions imposed by the Federal Communications Commission and by the state. Failure to obtain any required licenses or to comply with all such conditions shall be grounds to revoke the franchise under the procedure of § 143-10 without liability assigned to the Village.
Use of data from subscriber. The grantee, its successor or assignees, the Village or any person shall not initiate or use any form, procedure or device for procuring information or data from cable subscribers' terminals by use of the cable system without prior authorization from each subscriber so affected. Valid authorization shall mean approval from the subscriber for a period of time not to exceed one year and shall not have been obtained from the subscriber as a condition of service.
Subscriber data. The Village or a grantee, or any person, shall not, without prior written valid authorization from the Village Board, provide any data identifying designated subscribers.
The grantee shall provide connections without charge, as many as needed, to each municipally owned building; fire station; police station; library; public, parochial or private school; and institution of higher learning that is passed by its cable. In no event will there be a monthly service charge at such locations for basic service. Premium pay channels will be charged for at the current monthly rate.
Unauthorized connections prohibited. No firm, person, group, company, corporation or governmental body or agency shall, without the express consent of the grantee, make any connections, extension or division, whether physically, acoustically, inductively, electronically or otherwise, with or to any segment of the grantee's cable system. Further, no firm, person, group, company, corporation or governmental body or agency, shall, without the express consent of the grantee, possess or receive any signals or transmissions, including specifically the transmission of messages or programming over the cable system on a pay channel or pay-per-program basis.
Unauthorized sale. No firm, person, group, company, corporation or governmental body or agency, shall sell or solicit for sale any facilities, devices or appurtenances used for the purpose of any or all lawful acts as prohibited by Subsection A above.
Removal or destruction prohibited. No firm, person, group, company, corporation or government body or agency, shall willfully interfere, tamper, remove, obstruct or damage any part, segment or content of a franchise broadband telecommunications network for any purpose whatsoever.
The Village shall have the right to intervene and the grantee specifically agrees by his acceptance of a franchise hereunder not to oppose such intervention by the Village in any suit or proceeding to which the grantee is a party.
Grantee shall not, as to rates, charges, service, service 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 prohibited prejudice or disadvantage.
Upon termination of service to any subscriber, the grantee shall promptly remove all of its facilities and equipment from the premises of such subscriber upon his request.
The right is hereby reserved to the Village or the Village Board to adopt, in addition to the provisions contained herein and in existing applicable ordinances, such additional regulations as it shall find necessary in the exercise of the police power;, provided that such regulations, by ordinance or otherwise, shall be reasonable and not in conflict with the rights herein granted.
The Village 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 and pole fixtures necessary for a police alarm system, on the condition that such wire and pole fixtures do not interfere with the CATV operations of the grantee.
The Village shall have the right to supervise all construction or installation work performed subject to the provisions of this franchise and make such inspections as it shall find necessary to insure compliance with the terms of this franchise and other pertinent provisions of law.
The grantee agrees to abide by all provisions of this franchise and further agrees that it will not at any future time set up as against the Village or Village Board the claim that the provisions of this franchise are unreasonable, arbitrary or void.
If any subsection, sentence, clause or phrase of this chapter is held unconstitutional or otherwise invalid, such infirmity shall not affect the validity of this chapter as a whole, and any portions in conflict are hereby repealed; provided, however, that if the Federal Communications Commission declares any subsection invalid, then such subsection shall be renegotiated by the Village and the grantee.
Any cable television franchise granted by the Village Board shall be pursuant to this chapter.
In addition to the procedures specified in § 143-19, the following shall be in effect:
After notice and hearing, the grantee may be subject to a forfeiture, as provided in Chapter 1, § 1-4, of this Code, if such grantee fails to provide the service specified in this chapter or any applicable government regulation. The grantee is not responsible for failure to provide adequate service which is caused by acts of God, strikes, governmental or military action or other conditions beyond its control.
Upon interruption of service, except for acts of God, strikes, governmental or military action, or with express prior permission of the Village, any subscriber whose service is interrupted for more than 48 consecutive hours shall be entitled to a rebate of the subscriber's monthly bill prorated on a daily basis for each twenty-four-hour period of continuously interrupted service.