[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.
- FCC
- 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.
- GRANTEE
- 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.
- HEADEND
- 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.
- STREET
- 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.
- SUBSCRIBER
- 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.
- SYSTEM
- See "broadband telecommunications network (BTN)."
- VILLAGE
- The Village of Pleasant Prairie.
- VILLAGE BOARD
- The Village Board of the Village of Pleasant Prairie.
A.
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.
B.
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.
C.
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.
A.
Conditions on street occupancy.
(1)
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.
(2)
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.
(3)
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.
(4)
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.
(5)
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.
(6)
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.
(7)
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.
(8)
Erection, removal and common user of poles.
(a)
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.
(b)
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.
(c)
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.
B.
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.
C.
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.
D.
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.
E.
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.
F.
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.
A.
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.
B.
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.
A.
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.
B.
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.
C.
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.
A.
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.
B.
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:
C.
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.
D.
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.
A.
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.
B.
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.
A.
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:
(1)
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.
(2)
Becomes insolvent, unable or unwilling to pay its debts,
or is adjudged a bankrupt.
(3)
Attempts to evade any of the provisions of this franchise
or practices any fraud or deceit upon the Village;
(4)
Fails to begin or complete construction under this franchise
by the date negotiated between the Village and the grantee.
B.
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.
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.
B.
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.
C.
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.
A.
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.
B.
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.
C.
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:
D.
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:
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"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."
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E.
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.
F.
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.
A.
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.
B.
Production, transmission and limiting failures. The grantee
shall, in addition:
(1)
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.
(2)
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.
(3)
Limit failures to a minimum by locating and correcting
malfunctions promptly, but in no event longer than 48 hours after notice.
C.
Operation and maintenance of system.
(1)
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.
(2)
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.
A.
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.
B.
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.
A.
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.
B.
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.
C.
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.
A.
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.
B.
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.
C.
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:
A.
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.
B.
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.