[HISTORY: Adopted by the Village Board of the Village of Cottage Grove 7-15-1985. Amendments noted where applicable.]
This chapter shall be known and may be cited as the "Village of Cottage Grove CATV Franchise Enabling Ordinance."
No person, firm, company, corporation or association shall construct, install, maintain or operate within any public street in the Village, or within any other public property of the Village, any equipment or facilities for the distribution of television signals or radio signals or other intelligences either analog or digital over a broadband information network subscriber unless a franchise authorizing the use of the streets or properties or areas has first been obtained pursuant to the provisions of this chapter, and unless such franchise is in full force and effect.
Any franchise granted hereunder shall be a privilege to be held for the benefit of the public by the parties.
The Village shall have the right to award one or more nonexclusive franchises within its jurisdiction from a date certain for an initial term not to exceed 15 years.
Said franchise shall be construed to authorize the right and privilege to construct, erect, operate, and maintain in, upon, along, across, above, over, and under the streets, alleys, public ways and through easements and public places now laid out or dedicated, and all extension thereof and additions thereto, in the Village, poles, wires, cables, and underground conduits, manholes, and other conductors and fixtures necessary for the maintenance and operation in the Village of a cable communications system.
In the event that any such easement is used, the cable operator shall ensure:
That the safety, functioning, and appearance of the property and the convenience and safety of other persons not be adversely affected by the installation or construction of facilities necessary for a cable system;
That the cost of the installation, construction, operation, or removal of such facilities be borne by the cable operator or subscribers or a combination of both; and
That the owner of the property be justly compensated by the cable operator for any damages caused by the installation, construction, operation or removal of such facilities by the cable operator.
The grantee shall, at all times during the life of the franchise, be subject to the lawful exercise of the police power by the Village and to such reasonable regulations as the Village shall hereafter provide. The Village may from time to time add to, modify or delete provisions of this chapter as it deems necessary in the exercise of its regulatory powers, provided that such additions or revisions are reasonable and do not place an undue financial burden on the grantee. Such additions or revisions shall be made only after public hearing of which the grantee shall have received written notice at least 30 days prior to such hearing.
For the purpose of this chapter, the following terms, phrases, and words and their derivations shall apply:
- ADDITIONAL SERVICE
- A subscriber service provided by the grantee for which a special charge is made based on program or service content or time of usage.
- BASIC SERVICE
- Any service tier which includes the retransmission of local broadcast signals, including all tiers of subscriber service 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 the subscribers.
- The Village Board of Cottage Grove.
- CABLE CHANNEL OR CHANNEL
- A portion of the electromagnetic frequency spectrum which
is used in a cable system and which is capable of delivering a television
channel (as television channel is defined by the Federal Communications
Commission by regulation).[Amended 3-19-2001 by Ord. No. 01-2001]
- CABLE COMMUNICATIONS SYSTEM
- Any system which receives and amplifies signals broadcast by one or more television and/or radio stations and which transmits programming originated by the system itself or by another party, and distributes such signals and programming by wire, cable, microwave, satellite, or other means to persons who subscribe to such service.
- CABLE OPERATOR
- Any person or group of persons:
- A. The one-way transmission to subscribers of video programming, or other programming service.
- B. Subscriber interaction, if any, which is required for the selection of such video programming or other programming service.
- C. A facility, consisting of a set of closed transmission paths and associated signal generation, reception and control equipment, that is designed to provide cable service which includes video programming and which is provided to multiple subscribers within a community; but such term does not include:
- (1) A facility that serves only to retransmit the television signals of one or more television broadcast stations;
- (2) A facility that serves only subscribers in one or more multiple-unit dwellings under common ownership, control or management, unless such facility or facilities use any public right-of-way;
- (3) A facility of a common carrier which is subject, in whole or in part, to the provisions of Title II of the Act, except that such facility shall be considered as a cable system [other than for purposes of Section 621(c)] to the extent such facility is used in transmission of video programming directly to subscribers; or
- (4) Any facilities of any electric utility used solely for operating its electric utility system.
- COMMENCE OPERATION
- Operation shall be considered commenced when sufficient distribution facilities have been placed in use to offer full network service to at least 25% of the inhabitants of the Village.
- Operation shall be considered completed when sufficient distribution facilities have been placed in use to offer full network service to 100% of the inhabitants in the initial area.
- FEDERAL AGENCY
- Any agency of the United States, including the Federal Communications
Commission.[Amended 3-19-2001 by Ord. No. 01-2001]
- An initial authorization or renewal thereof (including renewal of an authorization which has been granted subject to Section 626) issued by a franchising authority, whether such authorization is designated as a franchise, permit, license, resolution, contract, certificate, agreement or otherwise, which authorizes the construction or operation of a cable system.
- FRANCHISE FEE
- Includes any tax, fee, or assessment of any kind imposed by a franchising authority or other governmental entity on a cable operator or cable subscriber, or both, solely because of their status as such.
- FULL NETWORK SERVICE
- All basic and additional services offered by the grantee.
- Any person, firm, company, corporation, association or governmental entity to whom a franchise is granted by the Village Board hereunder and the lawful successor assignee of the same.
- GROSS REVENUE
- Any and all compensations in whatever form, exchange or otherwise, derived from the provision of all cable services in the Village.
- INITIAL SERVICE AREA
- Any dwelling currently in existence as of the date that the franchise is granted in the Village.
- The use of the title of any office, employee or officer shall mean such officer, employee, or office of the Village unless otherwise specifically designated.
- An individual, partnership, association, joint stock company, trust, corporation, or governmental entity.
- SERVICE TIER
- A category of cable service or other services provided by a cable operator and for which a separate rate is charged by the cable operator.
- Any state, or political subdivision, or agency thereof.
- All streets, highways, avenues, lanes, alleys, courts, places, squares, curbs, sidewalks or other public ways in the Village which have been or may hereafter be dedicated and open to public use, or such other public property so designated in any law of the state.
- Any person, firm, company, corporation, or association receiving reception service from the grantee.
- Village of Cottage Grove in its present form or as it may be changed by annexation.
In order to provide for a maximum degree of flexibility in the franchise, which covers a field that is relatively new and rapidly changing and which probably will see many regulatory, technical, financial, marketing, and legal changes during the term of the franchise, and to help achieve a continued advanced and modern system for the Village of Cottage Grove, the following terms and conditions are part of the franchise granted:
Each year during the month of March at the regular or special Village Board meeting the Village and the grantee at the Village's option shall meet to discuss application of new technologies, system performances, services provided, programming offered, customer complaints, privacy and human rights, amendments to this chapter, undergrounding progress and judicial and FCC rulings. The parties may renegotiate any of the above provisions at that time. The local and corporate grantee shall provide year-end financial statements and operating statements for review by the Village Board. The Village is to receive a copy of any report required to be filed with any regulatory agency having jurisdiction.
Board members, administrative personnel, the public or the grantee may add further topics to the list recited in Subsection A(1).
It is the intent of the Village of Cottage Grove to consider extension of the franchise during the six-month period which begins with the 12th month before the franchise expiration as outlined in Section 626 of the Act.
The Village Board may cancel the franchise granted by this chapter, or provide for its termination at a date prior to expiration date of the franchise at any time upon a finding, made after 30 days' notice of proposed cancellation or reduction in duration and public hearing, that the grantee has failed to cure one or more of the following defects during a sixty-day period following written notice by the Village Clerk to the grantee of such defect:
Material breach, whether by act or omission, of any term or condition of the chapter, or the franchise agreement; or
Insolvency of the grantee, or inability or unwillingness of the grantee to pay its just debts when they accrue, or application by the grantee for adjudication as a bankrupt, or the filing of a voluntary assignment for the benefit of creditor, or if a judgment, tax warrant or tax lien remains unsatisfied for a period of six months.
Failure to complete the system within one year as defined in the definition section would also be cause for cancellation.
In the event any of the above-mentioned defects are caused by equipment failure or the grantee's inability to obtain certain equipment for reasons beyond the grantee's control, then the grantee shall be allowed an additional 60 days beyond the date of receiving the necessary equipment before there is deemed a ground for termination.
Termination or forfeiture of the franchise shall in no way affect the rights of the Village under the franchise or any provision of the law.
In the period between expiration or cancellation of the franchise and the transfer of the cable system as provided in this chapter, the grantee shall continue to provide service to the public as if its franchise were still in effect, but in the capacity of a trustee for its successor in interest.
No transfer of effective ownership or control of the cable system may take place, whether by forced or voluntary sale, lease mortgage, assignment, encumbrance or any other form of disposition, without prior notice to and approved by the Village Board. Refusal to approve must be related to the grantee's future service and performance; otherwise approval shall not be unreasonably withheld. The notice shall include full identifying particulars of the proposed transaction. For purposes of the section, a "transfer of effective ownership or control" shall be taken to mean and include the acquisition, within any consecutive period of 36 months, of more than 30% interest in the grantee's voting stock, franchise, plant, equipment, or other property used in the conduct of business, or more than 30% representation on the grantee's Board of Directors, by any person or group of parsons acting in concert who before that period did not enjoy such interest or representation more than 1/3 of the partners leaving a partnership. Such definition shall not include the disposition of facilities or equipment no longer required in the conduct of the business or a pledge or mortgage or similar instrument transferring conditional ownership of all or part of the system's assets to a lender or creditor in the ordinary course of business so long as the lender or creditor does not thereby acquire the right to control the system's operations.
If a renewal of a franchise held by a cable operator is denied and the franchising authority acquires ownership of the cable system or effects a transfer of ownership of the system to another person, any such acquisition or transfer shall be:
At fair market value, determined on the basis of the cable system valued as a going concern but with no value allocated to the franchise itself.
In the case of any franchise existing on the effective date of this chapter, at a price determined in accordance with the franchise if such franchise contains provisions applicable to such an acquisition or transfer.
If a franchise held by a cable operator is revoked for cause and the franchising authority acquires ownership of the cable system or effects a transfer of ownership of the system to another person, any such acquisition or transfer shall be:
Anything contained herein to the contrary notwithstanding all provisions of this chapter and any franchise granted hereto shall be binding upon the grantee and its successors, lessees or assigns.
The grantee shall provide its service to all areas within the limits of the Village as outlined in the Definition of Initial Service Area dated July 10, 1985, and attached hereto as if fully set forth as Exhibit B subject to its extension policy for unusual or lengthy installations. The grantee's extension policy shall be filed at the time of acceptance of the franchise for approval by the Village Board. The Village Board shall act upon the extension policy within 30 days after filing with the Village Board. In the event that the grantee is requested to extend its system beyond 500 feet beyond its main cable, the grantee shall be allowed to recover its costs in making same. In the event said subscriber is not willing to pay same the grantee shall not be required to either extend the system or make the installation.
Editor's Note: Exhibit B is on file in the Village Clerk's office.
The grantee shall not deny cable service to any group of potential residential cable subscribers because of the income of the residents of the local area in which such group resides.
No monitoring of any terminal connected to the system shall take place without either specific written authorization by the user of the terminal in question on each occasion or written notice to the Village Board.
The grantee shall not, except as required by governmental action, provide any data concerning specific subscribers or users or their use of its services without first securing the Village Board's written authorization for the provision of such data.
Section 631 of the Act relating to protection of subscriber privacy is incorporated herein as if fully set forth.
A franchising authority may require, as part of a franchise (including a franchise renewal, subject to Section 626 of the Act) provisions for enforcement of:
Nothing in this chapter shall be construed to prohibit any state or any franchising authority from enacting or enforcing any consumer protection law to the extent not inconsistent with this chapter.
The grantee shall at all times keep its cables and other appurtenances used for transmitting signals shielded in such a manner that there will be no interference with signals received by private receiver's sets owned by persons not subscribing to the grantee's service.
The grantee's operations shall conform to the technical standards set by the federal government. The grantee shall maintain on file consistent with the rules of the federal government all testing results which shall be open to inspection by the Village Board. The grantee shall, upon request, inform the Village of any audit by an employee of the federal government together with the name(s) of the employee(s) who conduct such audit. The grantee shall perform all tests required by the federal government which are now in effect or which may be required in the future.
The grantee shall keep a record of complaints received and shall make available to the Village, upon request, a compilation of such complaints showing when received and the general nature of the complaint. Individual names will not be used, but it shall be possible to ascertain the action taken to satisfy the complainant.
The grantee shall, as part of the acceptance of the franchise, provide a complete description of the cable system in the Village of Cottage Grove, including the possibility of two-way capability. Such description shall be updated as additions or changes are made.
Rates for basic subscriber service shall be subject to the regulation and approval of the Village Board. It is understood that the initial rate for basic service will be frozen for two years after the commencement of operation.
The grantee shall be allowed to charge an installation charge. It is understood that the grantee may, from time to time, waive the installation charge for purposes of marketing.
The grantee is hereby given authority and approval to, from time to time, discount the basic subscriber charge; provided, however, there is valid economic reason, such as a prepayment or guaranty of subscribers but provided further that said discount does not in any way discriminate against or favor any one class of subscribers in the Village of Cottage Grove.
All proposed rates and charges of the grantee, including commercial rates, multiple-dwelling rates, and pay programming rates, shall be filed with the Village Board and shall not be effective until 30 days after approval of the Village Board.
The Village Board shall act on all rate request changes by the grantee including rates for installation within 30 days of receipt of a written request by the grantee, which request shall be directed to the Village Clerk. The grantee shall provide whatever financial information is requested by the Village in support of its application. In the event the Village does not act upon the rate request, it shall be deemed approved 30 days after the first meeting subsequent to the written request being filed by the grantee.
The grantee, upon acceptance of the franchise, is hereby granted the right to erect, maintain, and operate in the streets, alleys, and utility easements of the Village of Cottage Grove and other public places a cable system. The poles used for such distribution shall be those erected or used by local utilities. The grantee may erect its own poles if the Village's permission is first obtained.
All installations made by the grantee shall be made in good, substantial, safe condition and maintained in such condition at all times. The grantee shall make no excavations in the streets, alleys, and public places without first procuring a written permit from the Village Engineer or other authorized representative of the Village, and all work of such kind shall be done under the supervision of the Village authorities and so as to meet the approval of the Village authorities.
The grantee's transmission and distribution system poles, wires and appurtenances shall be located, erected, and maintained so as not to interfere with the lives or safety of persons, or to interfere with new improvements the Village may deem proper to make, or to unnecessarily hinder or obstruct the free use of the streets, alleys, bridges, or other public property. Removal of poles to avoid such interference will be at the grantee's expense.
Nothing in this chapter or any franchise granted hereunder shall relieve the grantee of the obligation of placing network facilities underground in areas presently served or to be served in the future by underground electric utility facilities. The grantee shall abide by the requirements of the Village in regard to the installation or relocation of such service facilities.
All land shall be promptly restored to the condition which existed prior to the beginning of construction and/or excavation.
The grantee shall utilize the easements of other public utilities when possible for said use and the landowner's consent is required by said utility easement. All easements required from subscribers or nonsubscribers shall be on a standard form supplied by the company and approved by the Village Board or Village Attorney.
In areas where either telephone or electric utility facilities are above ground at the time of installation, the grantee may install its service above ground. However, when those facilities are placed underground, the grantee shall likewise place its service underground.
Authority to trim trees. The grantee shall have the authority to trim trees upon and overhanging streets, alleys, sidewalks, and other public 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. All trimming is to be done under the supervision and direction of the Village after explicit prior written notification to the Village and the property owner, and written approval from the Village. The grantee may contract for such services, however, any firm or individual so retained shall receive Village approval prior to commencing such activity.
Indemnification. All grantees shall defend and save the Village and its agents and employees harmless from all claims, damages, losses and expenses, including attorney's fees, sustained by the Village on account of any suit, judgment, execution, claim or demand whatsoever arising out of:
The enactment of this chapter and the award of a permit hereunder, except as may arise from the process or action or selection of a grantee for award of a permit as provided herein.
The installation, operation, or maintenance of the cable communication system except for acts of the Village, its agents or employees, unless said acts are the request of and under the direction or supervision of the grantee.
Liability insurance. All grantees shall maintain throughout the term of the permit a general comprehensive liability insurance policy naming as the additional insured the Village, its officers, boards, commissions, agents, and employees, in a company approved by the Village Board and in a form satisfactory to the Village Attorney, protecting the Village and its agencies and employees against liability for loss or damage for bodily injury, death or property damage, occasioned by the operations of the grantee under any franchise granted hereunder, in the amounts of $500,000 for bodily injury or death to any one person within the limit; however, of $1,000,000 for bodily injury or death resulting from any one occurrence; and $500,000 for property damage resulting from any one occurrence.
The grantee shall pay to the Village of Cottage Grove annually in February an amount equal to 5% of the grantee's gross revenues from full network service from the previous year.
[Amended 6-4-2007 by Ord. No. 08-2007]
For purposes of this section, the twelve-month period shall be the twelve-month calendar period. Nothing in this subsection shall prohibit a franchising authority and a cable operator from agreeing that franchise fees which lawfully could be collected for any such twelve-month period shall be paid on a prepaid or deferred basis; except that the sum of the fees paid during the term of franchise may not exceed the amount, including the time value of money, which would have lawfully been collected if such fees had been paid per annum.
A cable operator may pass through to subscribers the amount of any increase in a franchise fee unless the franchising authority demonstrates that the rate structure specified in the franchise reflects all costs of franchise fees and so notifies the cable operator in writing.
In any court action under Subsection C the franchising authority shall demonstrate that the rate structure reflects all costs of the franchise fees.
Any cable operator shall pass through to subscribers the amount of any decrease in a franchise fee.
A cable operator may designate that portion of a subscriber's bill attributable to the franchise fee as a separate item on the bill.
Editor's Note: Fees are now set by resolution of the Village Board. The current fee resolution is on file in the office of the Village Clerk.
The grantee shall grant to the Village, free of expense, joint use of any and all poles owned by it for any proper municipal purposes, insofar as it may be done without interfering with the free use and enjoyment of the company's own wires and fixtures, and the Village shall hold the grantee harmless from any and all actions, causes of action, or damage caused by the placing of the Village's wires, or appurtenances upon the poles of the company. Proper regard shall be given to all existing safety rules governing construction and maintenance in effect at the time of construction.
During the term of the franchise, the grantee shall provide free basic service to any and all schools, whether private, public, or parochial, all churches, fire stations, EMS building and the Municipal Hall within the area of the franchise if requested by same. The grantee may charge for unusual installation costs.
Unauthorized connections prohibited. It shall be unlawful for any firm, person, group, company, corporation, or government body or agency, without the expressed consent of the grantee, to make or possess any connection, extension, or division, whether physically, acoustically, inductively, electronically, or otherwise, with or to any segment of a cable communications system for any purpose whatsoever.
Removal or destruction prohibited. It shall be unlawful for any firm, person, group, company, corporation, or government body or agency to willfully interfere, tamper, remove, obstruct, or damage any part, segment or content of a cable communications system for any purpose whatsoever.
Fine. The Village may fine the person violating this section up to $500 per occurrence. Each continuing day of the violation shall be considered a separate occurrence.
In the event this franchise terminates and neither the Village nor anyone else purchases the grantee's cable system, the grantee shall remove its cables, wires, and appliances from the streets, alleys, public ways, and places within the Village, except any underground cables, appliances, or other appurtenances.
The franchise shall take effect and be in force for 15 years commencing with the date of award of the franchise to the grantee, subject to its passage by the Village Board and the acceptance of its terms in writing by the grantee or its assigns.
In the event that the grantee fails to provide the service specified in this chapter, the Village Board may, following notice and hearing, reduce any or all of the subscriber rates to reflect such reduction in service.
In the event that the grantee shall fail to comply with any of the provisions of this chapter, the grantee shall be subject to a penalty in an amount not to exceed $500, plus costs of prosecution. Each day in which the grantee remains in violation of the provisions of this chapter shall be deemed to be a separate violation of this chapter.
Upon interruption of service, without express prior permission of the Village, the following rates shall apply:
Notwithstanding the foregoing, in the event that any reduction or interruption of service, or any violation of the provisions of this chapter, shall be the result of acts of God, strikes, government or military action, or other conditions beyond the control of the grantee, including the lack of material or parts, the grantee shall not be deemed to be in violation of this chapter and subject to the provisions of this section until such conditions have ceased.
[Amended 2-17-2003 by Ord. No. 01-2003; 11-17-2003 by Ord. No. 13-2003]
The Village Board hereby creates the Public Relations Committee as described in § 12-3 of the Village of Cottage Grove Code of Ordinances.
The franchise shall be amended to incorporate all amendments to the statutes, rules, and regulations of the federal government. Any provision herein in conflict with or preempted by said rules and regulations or statutes shall be superseded.