[HISTORY: Adopted by the Town Board of the
Town of Hudson 3-27-1991. Amendments noted where applicable.]
As used in this chapter, the following terms
shall have the meanings indicated:
Service other than service provided by the grantee to the
subscriber on a monthly basis and for which subscriber pays a set
fee.
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.
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 town.
A frequency band 6 MHz in width within which a standard television
broadcast signal is delivered by cable to a subscriber terminal.
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 10% of the dwelling units located within
the initial service areas.
A signaling path provided by a cable television system to
transmit signals of any type to specified subscriber terminals with
the cable television system.
The Federal Communications Commission and any legally appointed
or elected successor.
The town or the areas within the limits of the town.
Includes all charges imposed for a franchise, whether the
object is regulation, revenue or one-time reimbursement of costs incurred
by the town in the award of this franchise.
Any person, firm, company, corporation or association to
whom a franchise is granted by the Town Board of the town hereunder
and the lawful successor or assigns of such persons, firm, company,
corporation or association.
Any and all compensation for cable television service provided
to the subscriber, including pay television service, but excluding
any and all tax on said revenue, including sales tax and excluding
installation charges.
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.
The provision of notice of contemplated action delivered
at least 72 hours prior to such action. Such notice must be given
during business hours of the affected parties.
Includes all streets, roadways, highways, antennas, lanes,
alleys, courts, places, squares, curbs, sidewalks, easements, right-of-way
or other public ways in the town 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.
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 75% of the dwelling
units reasonably in the franchise area.
The Town of Hudson or the area within the limits of the Town
of Hudson.
The Town Board for the Town of Hudson and any legally appointed
or elected successor or agency thereof.
A.Â
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 which
have been or may hereafter be dedicated and open to public use in
the town, towers, antennas, poles, cables, electronic equipment, and
other network appurtenances necessary for the operation of a Broadband
Telecommunication Network. Existing facilities shall be utilized wherever
reasonable, but the grantee shall have the right upon application
to the town to set poles or other equipment on facilities constructed
by applicant, and said town will not unreasonably refuse permission
for said construction, however, a nonproliferation of poles policy
for aesthetic purpose shall be considered.
B.Â
The town 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
of public utilities.
C.Â
Any future
franchises shall be granted in accordance with § 66.0420,
Wis. Stats.
[Added 12-7-2021 by Ord. No. 2021-3]
A.Â
The Town Board may grant a franchise for the operation
of a Broadband Telecommunication Network system under the provisions
of this chapter to any grantee after a review of the legal, character,
financial, technical and other qualifications as determined by said
Town Board and the adequacy and feasibility of the grantee's construction
arrangements. Determinations by the Town Board regarding such qualifications
shall be made and determined as part of the full public proceeding
including a public hearing before the Town Board prior to the grant
of any franchise.
B.Â
Any person seeking a future franchise hereunder shall
do so in accordance with § 66.0420, Wis. Stats.
[Amended 12-7-2021 by Ord. No. 2021-3]
D.Â
The grantee of any franchise hereunder shall within
30 days of the granting of said franchise acknowledge in writing that:
(1)Â
Grantee accepts the award of the franchise.
(2)Â
Grantee acknowledges that it has not been induced
to enter into this franchise by any understanding or promise or other
statement, whether verbal or written, by or on behalf of the town
concerning any term of condition of this franchise that is not included
in this chapter.
(3)Â
Grantee acknowledges by the acceptance of this chapter
and the franchise awarded hereunder that it has carefully read its
terms and conditions and that it is willing and does accept all the
obligations of such terms and conditions and further agrees that it
will not set up, as against the town, the claim that any provision
of this as originally adopted and any franchise granted hereunder
is unreasonable, arbitrary, invalid or void.
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
sections of this chapter or other sections of the town's ordinances:
A.Â
Cables, wires and other equipment in connection with
such system shall only be installed and operated on or under the public
rights-of-way upon the poles, or in underground conduit and equipment
of the existing utilities within the town and their successors or
assigns, where conduits exist and where space in installed conduits
is available, at competitive prices. Installation of any additional
poles, conduit or other equipment for the installation of cables,
wires and other overhead equipment and underground equipment in public
rights-of-way in connection with said system shall be subject to the
authorization of the Town Board or its designated representative.
In reaching a decision as to additional poles, the suggestions, if
any, of the utility companies servicing or planning to serve such
area may be considered. Underground installation shall always be preferred;
provided, however, the grantee may construct its plant aerial so long
as there is one utility aerial.
B.Â
Such wires, cables and other underground or overhead
equipment shall be located as may be required of telephone companies
or power lines by the Public Service Commission of Wisconsin. All
equipment shall be grounded in the same manner as required by the
State of Wisconsin Electrical Code for electrical services existing
on the date of the installation of any equipment.
C.Â
The grantee shall pay all costs incurred by the town
in the event of the necessity of restoration of the public rights-of-way
as a result of the grantee's construction of its system or its operation.
The grantee and the town shall coordinate the restoration of the public
rights-of-way if it becomes necessary for the grantee to open or otherwise
disturb said public rights-of-way.
D.Â
The grantee shall, at its own expense, protect, support,
temporarily or permanently disconnect, relocate in the same public
right-of-way, or remove from any public right-of-way, any property
owned or used by the grantee if required by the town 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 of any other
type of structures or governmental agencies when acting in a governmental
capacity. The town shall provide the grantee reasonable notice of
its intention to make changes which might otherwise cause grantee
expense pursuant to this subsection and the grantee shall have an
opportunity to comment.
E.Â
The grantee shall, upon the request of any person
holding a building moving permit issued by the town, temporarily raise
or lower its lines or disconnect or take them down to permit the moving
of buildings. The expense of such removal, raising or lowering of
wires shall be paid by the person requesting the same, and the grantee
shall be given not less than three working days' advance notice to
arrange for such temporary wire changes.
F.Â
All installations by the grantee of cables and incidental
equipment shall comply in all respects with all laws, ordinances,
rules and regulations of the Federal Communications Commission, the
State of Wisconsin or any agency or department thereof and of the
town or any agency or department thereof, now or hereafter in effect.
G.Â
The grantee shall provide and maintain its equipment
in such condition and of such quality so that none of its service
will adversely affect radio and television reception.
H.Â
Installation and maintenance of equipment shall be
such that standard color signals shall be transmitted with reasonable
and acceptable fidelity to all subscribers. (Refer to current industry
standards.)
I.Â
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 in part of the system of the grantee.
J.Â
The grantee shall submit to inspections by duly authorized
personnel of the town and shall make available to such inspectors
or duly authorized personnel its facilities and equipment wherever
situated. The town reserves the right to enact reasonable regulations
regarding the installation and maintenance of the facilities of the
grantee, but in no case shall they be more restrictive than existing
FCC and National Electric Safety Codes dictate.
K.Â
The grantee shall have the authority to trim trees
upon and overhanging public rights-of-way of the town 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 town, such
trimming may be done by it or under its supervision and direction,
at grantee's expense.
L.Â
The facilities used by the grantee shall have a minimum
capacity of 42 channels.
M.Â
The grantee shall provide, upon construction of the
cable system, an as-built construction drawing.
N.Â
The grantee shall provide at a minimum the following
required channel composite of local interest: public information,
education, time/weather, emergency alert, and local programming.
In the case of any emergency or disaster, the
grantee shall, upon request of the Town Board, make available its
facilities to the town for emergency use during the emergency or disaster.
If the town wishes to operate a Civil Emergency Alert System on a
plan that is mutually acceptable to the town, and grantor provides
grantee with the necessary equipment for such system, grantee will
permit the system to be used on the cable system.
[Amended 12-7-2021 by Ord. No. 2021-3]
This franchise may be transferred, assigned or sold only with
the written consent of the Town 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 and in accordance with § 66.0420,
Wis. Stats. The franchisee shall notify the Town Board at least 30
days before a proposed transfer, assignment, or sale is to take effect.
Such a notice must be in the form of a written request to the Town
Clerk, stating the reason(s) 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 Town
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 said transfer, assignment or sale. This
provision shall not apply to either the mortgage or hypothecation
of the system in respect to any mortgages or the remedies therein.
A.Â
The term of this franchise shall be for a period of
15 years and shall be in full force and effect for said term subject
to the provisions of this chapter and thereafter in accordance with
§ 66.0420, Wis. Stats.
[Amended 12-7-2021 by Ord. No. 2021-3]
B.Â
Every one year, during the term of this franchise,
during the month of June, at a regular or special Town Board Meeting,
the town 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 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.Â
At the 12th year of the franchise, or if mutually agreed by the town and the grantee during one of the review and renegotiations described in Subsection B above, the town and the grantee shall consider extension of this franchise for five to 10 additional years at the discretion of the Board. The purpose of this provision is to allow for maximum flexibility in the financial planning on the part of the grantee, and for the town in anticipating future services. It is further the purpose of this provision to encourage the town to examine the grantee's performance and to plan for the future in providing cable television service as well as to reward the satisfactory performance of the grantee. The town may at any time reward the grantee for satisfactory performance by the extension of the franchise for five-year increments. This authority is granted so as to provide incentive to the grantee for satisfactory performance and maximum service.
Should the 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 overhead property
owned by him and placed on a public right-of-way unless permitted
by the town to abandon said property in place or transfer said property
to a purchaser.
[1]
Editor's Note: Former § 27-9, Completion of construction
and extension of system, was repealed 12-7-2021 by Ord. No. 2021-3.
The maximum initial rates which may be charged
by the grantee to subscribers for basic service shall be those rates
as set forth in the grantee's application. Said rates shall remain
the maximum rates for the first 12 months of operation of the system.
For the purpose of determining the twelve-month period under this
section, the operation shall be deemed to have commenced at such time
the first bill is received by a subscriber. In the event of a rate
increase of the basic service, the grantee shall provide the subscribers
a thirty-day notice of such increase. Said notice shall be forwarded
to the Town Clerk of the town with supporting data for said increase.
There shall be no further regulation after the twelve-month period.
A.Â
The town reserves the right to terminate any franchise
granted hereunder and rescind all rights and privileges associated
therewith in the event of:
(1)Â
Noncompliance by the grantee with any material provision
of this chapter or of any supplemental written agreement entered into
by and between the town and grantee.
(2)Â
The grantee becomes insolvent, enters into receivership
or liquidation, files an application for bankruptcy or for composition
of creditors, is unable or unwilling to pay his debts as they mature
or is in financial difficulty of sufficient consequence so as to jeopardize
the continued operation of the network.
(3)Â
Violation by the grantee of any Federal Communications
Commission order or ruling or the order or ruling of any other governmental
body having jurisdiction over the grantee unless the grantee is lawfully
contesting the legality or applicability of such order.
B.Â
In the event that the town shall decide to terminate
for cause a franchise granted hereunder, it shall give the grantee
90 days' written notice of its intention to terminate and stipulate
the cause. If during the ninety-day period the cause shall be cured
to the satisfaction of the town, the town may, at its discretion,
declare the notice to be null and void. In any event before a franchise
may be terminated the grantee must be provided with an opportunity
to be heard before the Town Board.
C.Â
Should the grantee's franchise be terminated or expire,
the grantee shall promptly remove all property owned by him and placed
on a public right-of-way unless permitted by the town to abandon said
property in place or to transfer said property to a purchaser previously
approved by the town. In the event of any such removal, the grantee
shall restore the public right-of-way to a condition satisfactory
to the town. Upon abandonment, which shall only be done as the town
directs, the grantee shall transfer ownership of all such abandoned
property to the town and submit to the town an instrument in writing,
subject to the approval of the Town Board, effecting said transfer.
[Amended 10-1-2019 by Ord. No. 27-12]
A.Â
The grantee shall pay to the Town a franchise fee of 2% of the grantee's
gross subscriber revenues from the operation of the cable communication
system within the Town limits. Said annual sum shall be paid as provided
in § 27-123B below. Beginning on January 1, 2020, the franchise
fee shall be reduced to 1.5%. Beginning on January 1, 2021, the franchise
fee shall be reduced to 1%.
B.Â
Fees provided under this § 27-12 shall be paid by the service provider to the Town on a quarterly calendar year basis. All fees are due and payable within 45 days of the end of each quarter. Grantee shall provide the Town with quarterly and annual statements of income supporting the fee remitted. Upon request, grantee will furnish Town its current tax statement in order to verify the fees paid by subscribers.
A.Â
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.Â
The grantee shall continue, throughout the term of
the franchise, to maintain the technical standards and quality of
service set forth in this chapter. Should the Town Board reasonably
find, by resolution, that the grantee has failed to maintain these
technical standards and quality of service, and should it by resolution
specifically enumerate improvements to be made, the grantee shall
make such improvements.
C.Â
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 said record for a period of two
years. Said record shall be available to the town upon reasonable
notice for review. A tollfree number shall be maintained for subscriber
service.
A.Â
The grantee shall maintain and by his acceptance of
any franchise granted hereunder agrees that he will maintain throughout
the term of the franchise, a general comprehensive liability insurance
policy against 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 $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 accident, and $500,000
for property damage resulting from any one accident.
B.Â
Indemnification of town in franchise operation. It
shall be expressly understood and agreed by and between the town and
any grantee hereunder that the grantee shall save the town and its
agents and employees harmless from and against all claims, damages,
losses and expenses, including attorney's fees sustained by the town
on account of any suit judgment, execution, claim or demand whatsoever
arising out of but not limited to copyright infringements and all
other damages arising out of the installation, operation or maintenance
of the Broadband Telecommunications Network authorized herein, whether
or not any act or omission complained of is authorized, allowed or
prohibited by this chapter and any franchise granted hereunder. This
provision shall not apply to acts of the Town, its agents or employees.
C.Â
The insurance policies mentioned in Subsection A 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 endorsement:
|
It is hereby understood and agreed that this
policy may not be canceled nor the amount of coverage thereof reduced
until 30 days after receipt by the Town Clerk by registered mail of
a written notice of such intent to cancel or reduce the coverage.
|
D.Â
The grantee shall maintain, and by his acceptance
of any franchise granted hereunder agrees that he will maintain throughout
the term of the franchise a faithful performance bond running to the
town, with at least two good and sufficient sureties approved by the
Town Board, in the penal sum of $20,000 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 hereof shall be
forfeited to the town as liquidated damages. The bond shall contain
the following endorsement:
|
It is hereby understood and agreed that this
bond may not be canceled nor the intention not to renew be stated
until 30 days after receipt by the Clerk by registered mail of a written
notice of such intent to cancel or not renew.
|
E.Â
All bonds, policies of insurance or certified copies
thereof and written evidence of payment of required premiums shall
be filed and maintained with the Town Clerk and Treasurer during the
term of any franchise granted hereunder.
The technical standards including measurements
of the construction and systems to be operated in the town shall comply
with the minimum standards established by the Federal Communications
Commission.
The grantee shall comply with all conditions imposed by Federal Communications Commission and by the State of Wisconsin. Failure to obtain any required licenses or to comply with all such conditions shall be grounds to revoke the franchise under the procedure of § 27-11 without liability assigned to the town.
A.Â
Use of data from subscriber. A grantee, town, 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
to 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.Â
Subscriber data. The township or a grantee or any
person shall not, without prior written valid authorization from the
Town Board, provide any data identifying designated subscribers.
In addition to the procedures in § 27-21, the following shall be in effect:
A.Â
After notice and hearing the town may fine the grantee
if grantee fails to provide the service specified in this chapter
or any applicable government regulation. 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.Â
Upon total interruption of service, except for acts
of God, strikes, governmental or military action, or with express
prior permission of the town, the following shall apply:
(1)Â
Subscriber will receive a rebate of one day's service
for each twenty-four-hour period after the first 48 hours that the
subscriber has experienced total system outage.
C.Â
If grantee violates any provision of this chapter,
it shall forfeit, together with the costs of prosecution, a sum of
not less than $50 nor more than $500 for each violation.
The grantee shall provide a free one-time connection
to one Town Board designated building and/or facility which is passed
by the cable. The franchising authority shall pay for all wiring within
said building or facilities in excess of one hookup.
A.Â
Unauthorized connections prohibited. It shall be unlawful
for any firm, person, group, company, corporation or governmental
body or agency, without the expressed consent of the grantee, to make
any connection, extension or division, whether physically, acoustically,
inductively, electronically or otherwise, with or to any segment of
the grantee's cable system. It shall further be illegal for any firm,
person, group, company, corporation or governmental body or agency,
without the expressed consent of the grantee to 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.
[Amended 4-2-2001 by Ord. No. 04-02-01]
B.Â
Unauthorized sale. It shall be unlawful for any firm, person, group, company, corporation or governmental body or agency to sell or solicit for sale any facilities, devices, or appurtenances used for the purpose of any or all acts unlawful as prohibited by Subsection A above.
C.Â
Removal or destruction prohibited. It shall be unlawful
for any firm, person, group, company, corporation, or governmental
body or agency to willfully interfere, tamper, remove, obstruct or
damage any part, segment or content of a franchise Broadband Telecommunications
Network for any purpose whatsoever.
D.Â
Violation. Any firm, person, group, company, corporation,
or governmental body or agency convicted of violation of this section
shall for each offense forfeit a sum of not less than $100 nor more
than $500, together with costs of such prosecution. Violation of this
section shall be considered a separate offense for each twenty-four-hour
period the violation continues following notification or discovery.
The township 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 town 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 unlawful prejudice or disadvantage.
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 in the event that the Federal Communications Commission declares
any subsection invalid, then such subsection or subsections shall
be renegotiated by the town and the grantee.
[Amended 12-7-2021 by Ord. No. 2021-3]
A.Â
Any cable television franchise granted by the Town Board shall be
pursuant to this chapter and in accordance with § 66.0420,
Wis. Stats.
