[HISTORY: Adopted by the Village Board of
the Village of Cottage Grove 7-15-1985. Amendments noted where applicable.]
A.
This chapter shall be known and may be cited as the
"Village of Cottage Grove CATV Franchise Enabling Ordinance."
A.
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.
B.
Any franchise granted hereunder shall be a privilege
to be held for the benefit of the public by the parties.
A.
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.
B.
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.
C.
In the event that any such easement is used, the cable
operator shall ensure:
(1)
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;
(2)
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
(3)
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:
A subscriber service provided by the grantee for which a
special charge is made based on program or service content or time
of usage.
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.
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]
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.
Any person or group of persons:
The one-way transmission to subscribers of video
programming, or other programming service.
Subscriber interaction, if any, which is required
for the selection of such video programming or other programming service.
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:
A facility that serves only to retransmit the
television signals of one or more television broadcast stations;
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;
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
Any facilities of any electric utility used
solely for operating its electric utility system.
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.
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.
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.
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.
Any and all compensations in whatever form, exchange or otherwise,
derived from the provision of all cable services in the Village.
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.
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.
A.
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:
(1)
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.
(2)
Board members, administrative personnel, the public or the grantee may add further topics to the list recited in Subsection A(1).
(3)
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.
A.
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:
(1)
Material breach, whether by act or omission, of any
term or condition of the chapter, or the franchise agreement; or
(2)
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.
(3)
Failure to complete the system within one year as
defined in the definition section would also be cause for cancellation.
B.
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.
C.
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.
D.
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.
A.
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.
B.
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:
(1)
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.
(2)
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.
(3)
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:
(4)
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.
A.
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[1] 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.
[1]
Editor's Note: Exhibit B is on file in the
Village Clerk's office.
B.
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.
A.
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.
B.
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.
C.
Section 631 of the Act relating to protection of subscriber
privacy is incorporated herein as if fully set forth.
A.
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:
C.
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.
A.
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.
B.
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.
A.
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.
B.
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.
C.
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.
D.
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.
E.
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.
A.
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.
B.
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.
C.
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.
D.
All land shall be promptly restored to the condition
which existed prior to the beginning of construction and/or excavation.
E.
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.
F.
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.
G.
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.
A.
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:
(1)
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.
(2)
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.
B.
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.
A.
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]
B.
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.
C.
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.
D.
In any court action under Subsection C the franchising authority shall demonstrate that the rate structure reflects all costs of the franchise fees.
E.
Any cable operator shall pass through to subscribers
the amount of any decrease in a franchise fee.
F.
A cable operator may designate that portion of a subscriber's
bill attributable to the franchise fee as a separate item on the bill.
[1]
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.
A.
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.
B.
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.
C.
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.
A.
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.
B.
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.
C.
Upon interruption of service, without express prior
permission of the Village, the following rates shall apply:
D.
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.
[1]
Editor's Note: Former § 136-26, Creation of Public
Relations Committee, as amended 2-17-2003 by Ord. No. 01-2003, and
11-17-2003 by Ord. No. 13-2003, was repealed 3-7-2022 by Ord. No.
02-2022.
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.
