[HISTORY: Adopted by the Village Board of the Village of Osceola
5-8-2001 by Ord. No. 01-06.[1] Amendments noted where applicable.]
[1]
Editor's Note: This ordinance also repealed former Ch. 98, Cable Television,
adopted 8-10-1993 by Ord. No. 7-93 as Ch. 19 of the 1993 Code, as amended
1-12-1999 by Ord. No. 99-01.
This chapter shall be known and may be cited as the "Osceola Cable Television
Franchise Ordinance," hereinafter "franchise" or "ordinance."
For the purpose of this chapter, the following terms, phrases,
words and their derivations shall have the meaning given herein:
All subscriber services provided by the grantee in one or more service
tiers, which includes the delivery of local broadcast stations, and public,
educational and government access channels. Basic service does not include
optional program and satellite service tiers, a la carte services, per channel,
per program, or auxiliary services for which a separate charge is made. However,
grantee may include other satellite signals on the basic service tier.
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 subscribers without using 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 this Act, except that such facility shall
be considered 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.
A signaling path provided by a cable communications system to transmit
signals of any type from a subscriber terminal to another point in the cable
communications system.
Actual working control or ownership of a system in whatever manner
exercised. A rebuttable presumption of the existence of control or a controlling
interest shall arise from the ownership, directly or indirectly, by any person
or legal entity (except underwriters during the period in which they are offering
securities to the public) of 40% or more of a cable system or the franchise
under which the system is operated. A change in the control or controlling
interest of a legal entity which has control or a controlling interest in
a grantee shall constitute a change in the control or controlling interest
of the system under the same criteria. control or controlling interest as
used herein may be held simultaneously by more than one person or legal entity.
An electronic device which converts signals to a frequency not susceptible
to interference within the television receiver of a subscriber, and by an
appropriate channel selector also permits a subscriber to view more than 12
channels delivered by the system at designated converter dial locations.
Any building or part of a building that is used as a home or residence.
The Federal Communications Commission and any legally appointed,
designated or elected agent or successor.
An initial authorization, or renewal thereof, issued by the Village,
as the franchising authority, to a grantee to construct or operate a cable
system.
A contractual agreement entered into between the Village and any
grantee hereunder that is enforceable by the Village and by the grantee and
which sets forth the rights and obligations between the Village and the grantee
in connection with the franchise.
A person or legal entity to whom or to which a franchise under this
chapter is granted by the Village, along with the lawful successors or assigns
of such person or entity.
All revenue collected by the grantee arising from or attributable
to the provision of cable service by the grantee within the Village, including,
but not limited to: periodic fees charged subscribers for any basic, optional,
premium, per-channel or per-program service; franchise fees; installation
and reconnection fees; leased channel fees; converter rentals and/or sales;
program guide revenues; late or administrative fees; upgrade, downgrade or
other change-in-service fees; local advertising revenues; revenues from home
shopping; revenues from the sale, exchange, use or cable cast of any programming
developed on the system for community or institutional use; provided, however,
that this shall not include any taxes on services furnished by the grantee
herein imposed directly upon any subscriber or user by the state, local or
other governmental unit and collected by the grantee on behalf of the governmental
unit.
All areas in the Village having a density of at least 40 dwelling
units per street mile.
The connection of the system from feeder cable to a subscriber's
terminal.
Local and regional advertising revenues derived from the sale of
locally and regionally inserted advertising, except such advertising sold
by or through grantee's national representative firm.
Is permissive.
Observing a communications signal, or the absence of a signal, where
the observer is neither the subscriber nor the programmer, whether the signal
is observed by visual or electronic means, for any purpose whatsoever, provided
monitoring shall not include system-wide, nonindividually addressed sweeps
of the system for purposes of verifying system integrity, controlling return
paths transmissions, or verification of billing for premium or other services.
As applied to the grantee, those hours during which similar businesses
in the Village are open to serve customers. In all cases, Normal Business
Hours must include some evening hours at least one night per week and/or some
weekend hours.
Those service conditions that are within the control of the grantee.
Those conditions that are not within the control of the grantee include, but
are not limited to, natural disasters, civil disturbances, power outages,
telephone network outages, and severe or unusual weather conditions. Those
conditions which are ordinarily within the control of the grantee include,
but are not limited to, special promotions, pay-per-view events, rate increases,
regular peak or seasonal demand periods, and maintenance or upgrade of the
cable system.
Any natural person or any association, firm, partnership, joint-stock
company, limited liability company, joint venture, corporation, or other legally
recognized entity, private or public, whether for profit or not for profit.
Is mandatory.
The loss of either picture or sound or both for a single or multiple
subscriber(s).
The surface of and all rights-of-way and the space above and below
any public street, road, highway, freeway, lane, path, public way or place,
sidewalk, alley, court, boulevard, parkway, drive or easement now or hereafter
held by the Village for the purpose of public travel and shall include other
easements or rights-of-way as shall be now held or hereafter held by the Village
which shall, within their proper use and meaning, entitle the grantee to the
use thereof for the purposes of installing poles, wires, cable, conductors,
ducts, conduits, vaults, manholes, amplifiers, appliances, attachments, and
other property as may be ordinarily necessary and pertinent to a cable television
system.
Any person(s), firm, grantee, corporation or other legal entity,
or association lawfully receiving any service provided by a grantee pursuant
to this chapter.
A party utilizing a cable television system channel for purposes
of production or transmission of material to subscribers, as contrasted with
receipt thereof in a subscriber capacity.
The Village of Osceola, Wisconsin.
Any franchise granted by the Village pursuant to W.S.A. s. 66.082 shall
grant to the grantee the right and privilege to erect, construct, operate
and maintain in, upon, along, across, above, over and under the streets now
in existence and as may be created or established during the term of the franchise
any poles, wires, cable, underground conduits, manholes, and other television
conductors and fixtures necessary for the maintenance and operation of a cable
system.
A.
Upon adoption of any franchise agreement and execution
thereof by the grantee, the grantee agrees to be bound by all the terms and
conditions contained herein.
B.
Any grantee also agrees to provide all services specifically
set forth in its application and to provide cable television service within
the confines of the Village; and by its acceptance of the franchise, the grantee
specifically grants and agrees that its application is thereby incorporated
by reference and made a part of the franchise.
Any franchise is for the legally incorporated territorial limits of
the Village and for any area henceforth added thereto during the term of the
franchise.
Any franchise and the rights, privileges and authority granted under
this chapter shall take effect and be in force from and after final Village
approval thereof, as provided by law, and shall continue in force and effect
for a term of no longer than 15 years, provided that, within 45 days after
the date of final Village approval of the franchise, the grantee shall file
with the Village its unconditional acceptance of the franchise and promise
to comply with and abide by all its provisions, terms and conditions. Such
acceptance and promise shall be in writing duly executed. Such franchise shall
be nonexclusive and revocable.
A.
Current federal procedures and standards pursuant to
47 U.S.C. § 546 shall govern the renewal of any franchise awarded
under this chapter.
B.
In the event that any or all of the applicable provisions
of federal law are repealed or otherwise modified, the following relevant
section(s) shall apply:
(1)
At least 24 months prior to the expiration of the franchise,
the grantee shall inform the Village in writing of its intent to seek renewal
of the franchise.
(2)
The grantee shall submit a proposal for renewal that
demonstrates:
(a)
That it has been and continues to be in substantial compliance
with the terms, conditions, and limitations of this chapter and its franchise;
(b)
That its system has been installed, constructed, maintained
and operated in accordance with the FCC and this chapter and its franchise;
(c)
That it has the legal, technical and financial qualifications
to continue to maintain and operate its system; and
(d)
That it has made a good faith effort to provide services
and facilities which accommodate the demonstrated needs of the community,
taking into account the cost of meeting such needs.
(3)
After giving public notice, the Village shall proceed
to determine whether the grantee has satisfactorily performed its obligations
under the franchise. To determine satisfactory performance, the Village shall
consider technical developments and performance of the system, cost of services,
and any other particular requirements set forth in this chapter. The Village
shall also consider the grantee's reports made to the Village and to the FCC,
and the Village may require the grantee to make available specified records,
documents, and information for this purpose, and may inquire specifically
whether the grantee will supply services sufficient to meet future community
needs and interest, taking into account the cost of meeting such needs. Industry
performance on a national basis shall also be considered. Provisions shall
be made for public comment with adequate prior notice of at least 10 days.
(4)
grantee shall be entitled to the same due process rights
included in Section 626 (47 U.S.C. § 546).
(5)
The Village shall then prepare any amendments to this
chapter that it believes necessary.
(6)
If the Village finds the grantee's performance satisfactory,
and finds the grantee's technical, legal, and financial abilities acceptable,
and finds the grantee's renewal proposal meets the future cable-related needs
of the Village, taking into account the cost of meeting such needs, a new
franchise shall be granted pursuant to this chapter, as amended, for a period
to be determined.
(7)
If the grantee is determined by the Village to have performed
unsatisfactorily, new applicants may be sought and evaluated, and a franchise
award shall be made by the Village according to franchising procedures adopted
by the Village.
A.
In accepting a franchise, the grantee acknowledges that
its rights thereunder are subject to the police power of the Village to adopt
and enforce general ordinances necessary to the safety and welfare of the
public; and it agrees to comply with all applicable general laws and ordinances
enacted by the Village pursuant to such power.
B.
Any conflict between the provisions of a franchise and
any other current or future lawful exercise of the Village's police powers
shall be resolved in favor of the latter, except that any such exercise that
is not of general application in the jurisdiction or applies exclusively to
the grantee or cable television systems which contains provisions inconsistent
with this chapter shall prevail only if upon such exercise the Village finds
a danger to health, safety, property or general welfare or if such exercise
is mandated by law.
No cable television system shall be allowed to operate or to occupy
or use the streets for system installation and maintenance purposes without
a franchise.
The Village shall have the right to install and maintain upon the poles
of the grantee at a charge equal to grantee's costs any wire or pole fixtures
that do not unreasonably interfere with the cable television system operations,
including future plans, of the grantee. The Village shall indemnify and hold
harmless the grantee from any claim that might arise due to or as a result
of the Village's use.
Costs to be borne by a grantee shall include any requirements or charges
incidental to the awarding or enforcing of its initial franchise but shall
not be limited to all costs of publications of notices prior to any public
meeting provided for pursuant to this chapter and any costs not covered by
application fees incurred by the Village in its study, preparation of proposal
documents, evaluation of all applications, and examinations of the applicant's
qualifications.
All notices from the grantee to the Village pursuant to any franchise
shall be to the Village Clerk. The grantee shall maintain with the Village,
throughout the term of the franchise, an address for service of notices by
mail. The grantee shall maintain a central office to address any issues relating
to operating under this cable television ordinance.
A.
Within 60 days after the award of an initial or renewal franchise, the grantee shall deposit with the Village a bond in the amount of $5,000, with the form to be established by the Village. The form and content of such bond shall be approved by the Village Attorney. This instrument shall be used to ensure the faithful performance of the grantee of all provisions of this chapter and to ensure compliance with all orders, permits and directions of any agency, commission, board, department, division, or office of the Village having jurisdiction over its acts or defaults under this chapter and to ensure the payment by the grantee of any damages assessed against the grantee under § 98-46 of this chapter or any claims, liens, and taxes due the Village which arise by reason of the construction, operation or maintenance of the system.
B.
The bond shall be maintained at the amount established in § 98-13A for the entire term of the franchise, even if amounts have to be withdrawn pursuant to this chapter.
C.
If the grantee fails to pay to the Village any amounts
owed under the franchise agreement, that is not on appeal to the court of
proper jurisdiction, within the time fixed herein, or fails after 15 days'
notice to pay to the Village any taxes due and unpaid, or fails to repay the
Village within 15 days any damages, costs or expenses which the Village is
compelled to pay by reason of any act or default of the grantee in connection
with the franchise, or fails, after three days' notice of such failure by
the grantee to pay to the Village any amounts owed under the franchise agreement,
that is not on appeal to the court of proper jurisdiction, within the time
fixed herein, the Village shall have the right to demand payment from the
bond unless grantee provides appropriate assurance that a replacement bond
will be presented before the expiration of the thirty-day period. Assurance
shall be determined by the Village at its sole discretion. This section shall
not apply if the Village and grantee agree that a bond is no longer required
or if the bond is, by agreement between the Village and grantee, in the process
of being reduced.
D.
The rights reserved to the Village with respect to the
bond are in addition to all other rights of the Village, whether reserved
by the franchise or authorized by law, and no action, proceeding or exercise
of a right with respect to such letter of credit shall affect any other right
the Village may have,
E.
The bond shall contain an endorsement agreeing that the
bond may not be canceled by the surety nor the intention not to renew be stated
by the surety until thirty days after receipt by the Village, by registered
mail, of written notice of such intent to cancel or not renew.
F.
In the event the Village receives a thirty-day notice
from a surety, it shall have the right to demand payment from the bond unless
grantee provides appropriate assurance that a replacement bond will be presented
before the expiration of the thirty-day period. Assurances shall be determined
by the Village at its sole discretion. This section shall not apply if the
Village and grantee agree that a bond is no longer required or if the bond
is, by agreement between the Village and grantee, in the process of being
reduced.
G.
The Village may, at any time during the term of this
chapter, waive the grantee's requirement to maintain a bond. The waiver of
the requirement may be initiated by the Village or may be requested by the
grantee.
A.
Within 60 days after the award of an initial or renewal
franchise, the grantee shall file with the Village a performance bond in the
amount of not less than $50,000 in favor of the Village. This bond shall be
maintained throughout the construction period and until such time as determined
by the Village, unless otherwise specified in the franchise agreement.
B.
If the grantee fails to comply with any law, ordinance or resolution governing the franchise, or fails to observe, fulfill and perform each term and condition of the franchise as it relates to the conditions relative to the construction of the system, including the franchise agreement that is incorporated herein by reference, there shall be recoverable jointly and severally, from the principal and surety of the bond, any damages or losses suffered by the Village, including the full amount of any compensation, indemnification, or cost of removal or abandonment of any property of the grantee, plus a reasonable allowance for attorney's fees, including the Village's legal staff, and costs, up to the full amount of the bond. This section shall be an additional remedy for any and all violations outlined in § 98-13.
C.
The Village shall, upon completion of construction of
the service area, waive the requirement of the grantee to maintain the bond.
However, the Village may require a performance bond to be posted by the grantee
for any construction subsequent to the completion of the initial service areas,
in a reasonable amount not to exceed $50,000 and upon such terms as determined
by the Village.
D.
The bond shall contain an endorsement stating that the
bond may not be canceled by the surety nor the intention not to renew be stated
by the surety until 30 days after receipt by the Village, by registered mail,
of a written notice of such intent to cancel and not to renew.
E.
Upon receipt of a thirty-day notice, and following a
thirty-day period to cure, this shall be construed as default granting the
Village the right to demand payment on the bond.
F.
The Village, at any time during the term of this chapter,
may waive grantee's requirement to maintain a performance bond. The waiver
of the requirement can be initiated by the Village or the grantee.
A.
The grantee shall maintain and by its acceptance of the
franchise specifically agrees that it will maintain throughout the term of
the franchise liability insurance insuring the Village and the grantee in
the minimum amount of:
B.
The certificate of insurance obtained by the grantee
in compliance with this section shall be filed and maintained with the Village
during the term of the franchise. The grantee shall immediately advise the
Village Attorney of any litigation that may develop that would affect this
insurance.
C.
Neither the provisions of this section nor any damages
recovered by the Village thereunder shall be construed to or limit the liability
of the grantee under any franchise issued hereunder.
A.
Disclaimer of liability. The Village shall not at any
time be liable for injury or damage occurring to any person or property from
any cause whatsoever arising out of the construction, maintenance, repair,
use, operation, condition or dismantling of the grantee's cable television
system or due to the act or omission of any person or legal entity other than
the Village or those persons or legal entities for which the Village is legally
liable as a matter of law.
B.
Indemnification. The grantee shall, at its sole cost
and expense, indemnify and hold harmless the Village, its respective officers,
boards, departments, commissions and employees (hereinafter referred to as
"Indemnitee") from and against:
(1)
Any and all liabilities, obligations, damages, penalties,
claims, liens, costs, charges, losses and expenses (including, without limitation,
reasonable fees and expenses of attorneys, expert witnesses and consultants)
which may be imposed upon, incurred by or asserted against the indemnitees
by reason of any act or omission of the grantee, its personnel, employees,
agents, contractors or subcontractors resulting in personal injury, bodily
injury, sickness, disease or death to any person or damage to, loss of or
destruction of tangible or intangible property, libel, slander, invasion of
privacy and unauthorized use of any trademark, trade name, copyright, patent,
service mark or any other right of any person, corporation or other legal
entity which may arise out of or be in any way connected with the construction,
installation, operation, maintenance or condition of the cable television
system caused by grantee, its subcontractors or agents or the grantee's failure
to comply with any federal, state or local law.
(2)
Any and all liabilities, obligations, damages, penalties,
claims, liens, costs, charges, losses and expenses (including, without limitation,
reasonable fees and expenses of attorneys, expert witnesses and consultants)
imposed upon indemnitees by reason of any claim or lien arising out of work,
labor, materials or supplies provided or supplied to grantee, its contractors
or subcontractors for the installation, construction, operation or maintenance
of the cable television system. Upon written request by the Village, such
claim or lien shall be discharged or bonded within 15 days following such
request.
(3)
Any and all liabilities, obligations, damages, penalties,
claims, liens, costs, charges, losses and expenses (including, without limitation,
reasonable fees and expenses of attorneys, expert witnesses and consultants)
which may be imposed upon, incurred by or asserted against the indemnitee
by reason of any financing or securities offering by grantee or its affiliates
for violations of the common law or any laws, statutes or regulations of the
State of Wisconsin or of the United States, including those of the Federal
Securities and Exchange Commission, whether by the grantee or otherwise; excluding
therefrom, however, claims which are based upon and arise out of information
supplied by the Village to the grantee in writing and included in the offering
materials with the express written approval of the Village prior to the offering.
C.
Assumption of risk.
(1)
The grantee undertakes and assumes for its officers,
directors, agents, contractors and subcontractors and employees all risk of
dangerous conditions, if any, on or about any Village-owned or controlled
property, including public rights-of-way, and the grantee hereby agrees to
indemnify and hold harmless the indemnitee against and from any claim asserted
or liability imposed upon the indemnitee for personal injury or property damage
to any person arising out of the installation, operation, maintenance or condition
of the cable television system or the grantee's failure to comply with any
federal, state or local law.
(2)
The Village shall hold grantee harmless for any damages
resulting from the negligence or misconduct of the Grantor or its officials,
boards, departments, commissions or employees.
D.
Defense of indemnitee. In the event any action or proceeding
shall be brought against any or all of the indemnitee by reason of any matter
for which the indemnitee are indemnified hereunder, the grantee shall, upon
notice from any of the indemnitee, at the grantee's sole cost and expense,
defend the same; provided further, however, that the grantee shall not admit
liability in any such matter on behalf of the indemnitee without the written
consent of the Village Attorney or the Village Attorney's designee.
E.
Notice, cooperation and expenses. The Village shall give
the grantee reasonably prompt notice of the making of any claim or the commencement
of any action, suit or other proceeding covered by the provisions of this
section. Nothing herein shall be deemed to prevent the Village from cooperating
with the grantee and participating in the defense of any litigation by the
Village's own counsel at the Village's own expense. No recovery by the Village
of any sum under the bond shall be any limitation upon the liability of the
grantee to the Village under the terms of this section, except that any sum
so received by the Village shall be deducted from any recovery which the Village
might have against the grantee under the terms of this section.
F.
Nonwaiver of statutory limits. Nothing in this chapter
is intended to express or imply a waiver by the Village of statutory provisions,
privileges or immunities of any kind or nature as set forth in W.S.A. s. 893.80
et. seq., including the limits of liability of the Village.
A.
The grantee shall not deny service, deny access, or otherwise
discriminate against subscribers, channel users, or general citizens on the
basis of race, color, religion, national origin, income, sex, marital status,
sexual preference or age. The grantee shall comply at all times with all other
applicable federal, state and local laws and regulations and all executive
and administrative orders relating to nondiscrimination which are hereby incorporated
and made part of this chapter by reference.
B.
The grantee shall strictly adhere to the equal employment
opportunity requirements of the Federal Communications Commission and of state
and local governments, and as amended from time to time.
C.
The grantee shall, at all times, comply with the privacy
requirements of state and federal law.
D.
The grantee is required to make all services available
to all residential dwellings throughout the service area located in areas
having a density of at least 40 dwelling units per street mile.
Minimum public notice of any public meeting relating to the franchise
shall be governed by the provisions of the State Open Meetings Law, and shall
be on at least one channel of the grantee's system between the hours of 7:00
p.m. and 9:00 p.m. for five consecutive days prior to the meeting.
The grantee shall provide cable television service throughout the entire
franchise area pursuant to the provisions of the franchise and shall keep
a record for at least three years of all requests for service received by
the grantee. This record shall be available for public inspection at the local
office of the grantee during regular office hours.
A.
New construction timetable.
(1)
Within two years from the date of the award of an initial
franchise, the grantee must make cable television service available to every
dwelling unit within the initial service area.
(a)
The grantee must make cable television service available
to at least 20% of the dwelling units within the initial service area within
six months from the date of the award of the franchise.
(b)
The grantee must make cable television service available
to at least 50 percent of the dwelling units within the initial service area
within one year from the date of the award of the franchise.
(2)
The grantee, in its application, may propose a timetable
of construction which will make cable television service available in the
initial service area sooner than the above minimum requirements, in which
case said schedule will be made part of the franchise agreement and will be
binding upon the grantee.
(4)
In special circumstances, the Village may waive 100%
completion within the two-year time frame, provided substantial completion
is accomplished within the allotted time frame, substantial completion to
be not less than 95%. Justification for less than 100% must be submitted subject
to the approval of the Village.
B.
Line extensions.
(1)
In areas of the franchise territory not included in the
initial service areas, a grantee shall be required to extend its system pursuant
to the following requirements:
(a)
No customer shall be refused service arbitrarily. Grantee
is hereby authorized to extend the cable system as necessary within the Village.
To expedite the process of extending the cable system into a new subdivision,
the Village will forward to the grantee an approved engineering plan of each
project. Subject to the density requirements, the grantee shall commence the
design and construction process upon receipt of the final engineering plan.
Upon notification from the Village that the first home in the project has
been approved for a building permit, the grantee shall have a maximum of three
months, weather permitting, to complete the construction/activation process
within the applicable project phase.
(b)
The grantee shall extend and make cable television service
available to every dwelling unit in all unserved, developing areas having
at least 40 dwelling units per street mile, as measured from the existing
system from which service can be provided.
(c)
The grantee shall extend and make cable television service
available to any isolated resident outside the initial service area requesting
connection at the standard connection charge, if the connection to the isolated
resident would require no more than a standard one-hundred-fifty-foot drop
line.
(2)
Early extension. In areas not meeting the requirements
for mandatory extension of service, the grantee shall provide, upon the request
of a potential subscriber desiring service, an estimate of the grantee's costs
required to extend service to the subscriber. The grantee shall then extend
service upon request of the potential subscriber. The grantee may require
advance payment or assurance of payment satisfactory to the grantee. In the
event the area reaches the density required for mandatory extension within
two years, such payments shall be refunded to the subscriber upon request.
(3)
New development undergrounding. In cases of new construction
or property development where utilities are to be placed underground, the
developer or property owner shall give the grantee reasonable notice of such
construction or development, and of the particular date on which open trenching
will be available for the grantee's installation of conduit, pedestals and/or
vaults, and laterals. The grantee shall also provide specifications as needed
for trenching. Costs of trenching and easements required to bring service
to the development shall be borne by the developer or property owner; except
that if the grantee fails to install its conduit, pedestals and/or vaults,
and laterals within five working days of the date the trenches are available,
as designated in the notice given by the developer or property owner, then,
should the trenches be closed after the five-day period, the cost of new trenching
is to be borne by the grantee. Except for the notice of the particular date
on which trenching will be available to the grantee, any notice provided to
the grantee by the Village of a preliminary plat request shall satisfy the
requirement of reasonable notice if sent to the local general manager of the
grantee prior to approval of the preliminary plat request.
C.
Special agreements. Nothing herein shall be construed to prevent the grantee from serving areas within the legally incorporated boundaries of the Village not covered under this section upon agreement with developers, property owners, residents, or businesses, provided that 5% of the gross revenues from those areas are paid to the Village as franchise fees under § 98-27.
D.
A grantee may propose a line extension policy that will
result in serving more residents of the Village than as required above, in
which case the grantee's policy will be incorporated into the franchise agreement
and will be binding on the grantee.
A.
Compliance with construction and technical standards.
The grantee shall construct, install, operate and maintain its system in a
manner consistent with all laws, ordinances, construction standards, governmental
requirements, and FCC technical standards. In addition, the grantee shall
provide the Village, upon request, a written report of the results of the
grantee's annual proof of performance tests conducted pursuant to Federal
Communications Commission standards and requirements.
B.
Additional specifications.
(1)
Construction, installation and maintenance of the cable
television system shall be performed in an orderly and workmanlike manner.
All cables and wires shall be installed, where possible, parallel with electric
and telephone lines. Multiple cable configurations shall be arranged in parallel
and bundled with due respect for engineering considerations.
(3)
In any event, the system shall not endanger or interfere
with the safety of persons or property in the franchise area or other areas
where the grantee may have equipment located.
(4)
Any antenna structure used in the system shall comply
with construction, marking, and lighting of antenna structure required by
the United States Department of Transportation.
(5)
All working facilities and conditions used during construction,
installation and maintenance of the cable television system shall comply with
the standards of the Occupational Safety and Health Administration.
(6)
Radio frequency (RF) leakage shall be checked at reception
locations for emergency radio services to prove no interference signal combinations
are possible. Stray radiation shall be measured adjacent to any proposed aeronautical
navigation radio sites to prove no interference to airborne navigational reception
in the normal flight patterns. FCC rules and regulations shall govern.
(7)
The grantee shall maintain equipment capable of providing
standby power for headend, transportation and trunk amplifiers for a minimum
of two hours.
(8)
In all areas of the Village where all cables, wires and
other like facilities of public utilities are placed underground, the grantee
shall place its cables, wires and other like facilities underground. When
all public utilities relocate their facilities from pole to underground, the
cable operator must concurrently do so.
A.
Interference with persons and improvements. The grantee's
system, poles, wires and appurtenances shall be located, erected and maintained
so that none of its facilities shall endanger or interfere with the lives
of persons or interfere with the rights or reasonable health, safety or welfare
of property owners who adjoin any of the streets and public ways, or interfere
with any improvements the Village may make, or hinder or obstruct the free
use of the streets, alleys, bridges, easements or public property.
B.
Restoration to prior condition. In case of any disturbance
of pavement, sidewalk, landscaping, driveway or other surfacing, the grantee
shall, at its own cost and expense and in a manner approved by the Village,
replace and restore all paving, sidewalk, driveway, landscaping, or surface
of any street or alley disturbed in as good condition as before the work was
commenced and in accordance with standards for such work set by the Village.
After 30 days if restoration measures are not performed to the reasonable
satisfaction of the Village, the Village may undertake remedial restoration
activities, such activities to be performed at the grantee's cost.
C.
Erection, removal and common uses of poles.
(1)
No poles or other wire-holding structures shall be erected
by the grantee without prior approval of the Village with regard to location,
height, types, 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 whenever the Village determines that the public health, safety
or welfare would be enhanced thereby.
(2)
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 may require the
grantee to use such poles and structures if it determines that the public
health, safety or welfare would be enhanced thereby and the terms of the use
available to the grantee are just and reasonable.
(3)
Where the Village desires to make use of the poles or
other wire-holding structures of the grantee and the use will not unduly interfere
with the grantee's operations, the Village may require the grantee to permit
such use for reasonable consideration and terms.
D.
Relocation of facilities. If at any time during the period
of the franchise the Village shall lawfully elect to alter or change the grade
of any street, alley or other public ways, the grantee, upon reasonable notice
by the Village, shall remove or relocate as necessary its poles, wires, cables,
underground conduits, manholes and other fixtures at its own expense.
E.
Cooperation with building movers. The grantee shall,
at 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.
Expenses of such temporary removal, raising or lowering of wires shall be
paid by the person making the request, and the grantee shall have the authority
to require such payment in advance. The grantee shall be given at least 10
days' advance notice to arrange for such temporary wire changes.
F.
Tree trimming. The grantee shall not remove any tree
or trim any portion of any tree within any public street as defined herein
without the prior consent of the Village, except in an emergency situation.
The grantee shall provide notice to any affected residents at the same time
that the grantee applies to the Village for consent to perform tree trimming.
The Village shall have the right to do the trimming requested by the grantee
at the cost of the grantee. Regardless of who performs the work requested
by the grantee, the grantee shall be responsible, shall defend and hold Village
harmless from any and all damages to any tree as a result of grantee's trimming
or to the property surrounding any tree, whether such tree is trimmed or removed.
G.
Road cuts. The grantee shall not use road cuts for the
laying of cable or wires without the prior approval of the Village. In the
absence of such approval, the grantee shall utilize auguring.
A.
The grantee shall maintain all parts of the system in
good condition throughout the entire franchise period.
B.
Upon the reasonable request for service by any person
located within the franchise territory, the grantee shall, within 30 days,
furnish the requested service to such person within terms of the line extension
policy. A request for service shall be unreasonable for the purpose of this
subsection if no distribution line capable of servicing that person's block
has been installed.
C.
Temporary service drops.
(1)
The grantee shall put forth every effort to bury temporary
drops within 25 days after placement. Any delays for any other reason than
listed will be communicated to the Village. The following delays will be found
understandable and within the course of doing business: weather, ground conditions,
street bores, system redesign requirements and any other unusual obstacle,
such as obstructive landscaping that is created by the customer.
(2)
The grantee shall provide reports to the Village, upon
request, on the number of drops pending.
D.
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 system use.
E.
The grantee shall not allow its cable or other operations
to interfere with television reception of subscribers or persons not served
by the grantee, nor shall the system interfere with, obstruct or hinder in
any manner the operation of the various utilities serving the customers within
the confines of the Village, nor shall other utilities interfere with the
grantee's system.
A.
Nothing in this chapter shall be construed to prohibit
the enforcement of any federal, state or local law or regulation concerning
customer service or consumer protection that imposes customer service standards
or consumer protection requirements that exceed the customer service standards
set out in this chapter or that address matters not addressed in this chapter.
B.
The grantee shall maintain a local or toll-free telephone
access line which is available to its subscribers and shall have knowledgeable,
qualified representatives available to respond to customer telephone inquiries
regarding repairs 24 hours per day, seven days per week.
C.
Under normal operating conditions, telephone answer time,
including wait time and the time required to transfer the call, shall not
exceed 30 seconds. This standard shall be met no less than 90% of the time
as measured on a quarterly basis.
D.
Under normal operating conditions, the customer will
receive a busy signal less than 3% of the total time that the office is open
for business.
E.
A centrally located customer service center will be open
for walk-in customer transactions a minimum of eight hours per day Monday
through Friday, unless there is a need to modify those hours because of the
location or customers served. The grantee and Village by mutual consent shall
establish supplemental hours on weekdays and weekends as fits the needs of
the community.
F.
Under normal operating conditions, each of the following
standards will be met no less than 95% of the time as measured on an annual
basis:
(1)
Standard installations will be performed within seven
business days after an order has been placed. A standard installation is one
that is within 150 feet of the existing system.
(2)
Excluding those situations that are beyond its control,
the grantee will respond to any service interruption promptly and in no event
later than 24 hours from the time of initial notification. All other regular
service requests will be responded to within 36 hours during the normal work
week for that system. The appointment window alternatives for installations,
service calls and other installation activities will be: morning or afternoon,
not to exceed a four-hour window during normal business hours for the system,
or at a time that is mutually acceptable. The grantee shall schedule supplemental
hours during which appointments can be scheduled based on the needs of the
community. If at any time an installer or technician is running late, an attempt
to contact the customer will be made and the appointment rescheduled as necessary
at a time that is convenient to the customer.
G.
Subscriber credit for outages. Upon service interruption
of a subscriber's cable service, the following shall apply:
(1)
For service interruptions of more than four hours and
up to four days, the grantee shall provide, at the subscriber's request, a
credit of 1/30 of one month's fees for affected services for each twenty-four-hour
period service is interrupted for four or more hours for any subscriber, with
the exception of subscribers disconnected because of nonpayment or excessive
signal leakage.
(2)
For interruptions of seven days or more in one month,
the grantee shall provide, at the subscriber's request, a full month's credit
for affected services for all affected subscribers.
H.
The grantee shall provide written information for each
of the following areas at the time of installation and at any future time
upon the request of the customer:
I.
Bills will be clear, concise and understandable, with
all charges for cable services itemized.
J.
Credits will be issued promptly, but no later than the
customer's next billing cycle following the resolution of the request and
the return of the equipment by the grantee if service has been terminated.
K.
The grantee shall notify customers a minimum of 30 days
in advance of any rate or channel change.
L.
The grantee shall maintain and operate its network in
accordance with the rules and regulations incorporated herein or as may be
promulgated by Federal Communications Commission, the United States Congress,
or the State of Wisconsin.
M.
The grantee shall continue, through the term of the franchise, to maintain the technical standards and quality of service set forth in this chapter. Should the Village 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. Failure to make such improvements within three months of such resolution will constitute a breach of a condition for which penalties contained in § 98-46 are applicable.
N.
The grantee shall keep a monthly service log that indicates
the nature of each service complaint received in the last 24 months, the date
and time each complaint was received, the disposition of each complaint, and
the time and date thereof. This log shall be made available for periodic inspection
by the Village.
A.
It shall be the right of all subscribers to continue
receiving service as long as their financial and other obligations to the
grantee are honored. If the grantee elects to over build, rebuild, modify
or sell the system, or the Village gives notice of intent to terminate or
fails to renew the franchise, the grantee shall act so as to ensure that all
subscribers receive continuous, uninterrupted service regardless of the circumstances.
B.
If there is a change of franchise, or if a new operator
acquires the system, the grantee shall cooperate with the Village, new franchisee
or new operator to maintain continuity of service to all subscribers.
C.
If the grantee fails to operate the system for seven
consecutive days without prior approval of the Village or without just cause,
the Village may, at its option, operate the system or designate an operator
until such time as the grantee restores service under conditions acceptable
to the Village or a permanent operator is selected. If the Village is required
to fulfill this obligation for the grantee, the grantee shall reimburse the
Village for all reasonable costs or damages in excess of revenues from the
system received by the Village that are the result of the grantee's failure
to perform.
A.
The Village Board or its designee has primary responsibility
for the continuing administration of the franchise and implementation of complaint
procedures.
B.
During the terms of the franchise and any renewal thereof,
the grantee shall maintain a central office, designated by the grantee, for
the purpose of receiving and resolving all complaints regarding the quality
of service, equipment malfunctions, and similar matters. The office must be
reachable by a local and/or toll-free telephone call to receive complaints
regarding quality of service, equipment functions and similar matters. The
grantee will make good faith efforts to arrange for one or more payment locations
in a central location where customers may pay bills or drop off equipment.
C.
As subscribers are connected or reconnected to the system,
the grantee shall, by appropriate means, such as a card or brochure, furnish
information concerning the procedures for making inquiries or complaints,
including the name, address and local telephone number of the employee or
employees or agent to whom such inquiries or complaints are to be addressed.
D.
When there have been similar complaints made, or where
there exists other evidence which, in the judgment of the Village, casts doubt
on the reliability or quality of cable service, the Village shall have the
right and authority to require the grantee to test, analyze and report on
the performance of the system. The grantee shall fully cooperate with the
Village in performing such testing and shall prepare results and a report,
if requested, within 30 days after notice. Such report shall include the following
information:
(1)
The nature of the complaint or problem that precipitated
the special tests;
(2)
The system component(s) tested;
(3)
The equipment used and procedures employed in testing;
(4)
The method, if any, in which such complaint or problem
was resolved;
(5)
Any other information pertinent to the tests and analysis
which may be required.
E.
The Village may require that tests be supervised, at
the grantee's expense, unless results are found to be in compliance by an
independent professional engineer or equivalent of the Village's choice. The
engineer shall sign all records of special tests and forward to the Village
such records with a report interpreting the results of the tests and recommending
actions to be taken.
F.
The Village's rights under this section shall be limited
to requiring tests, analysis and reports covering specific subjects and characteristics
based on complaints or other evidence when and under such circumstances as
the Village has reasonable grounds to believe that the complaints or other
evidence require that tests be performed to protect the public against substandard
cable service.
The grantee shall have the authority to promulgate such rules, regulations,
terms and conditions governing the conduct of its business as shall be reasonably
necessary to enable the grantee to exercise its rights and perform its obligations
under the franchise and to assure uninterrupted service to each and all of
its customers; provided, however, that such rules, regulations, terms and
conditions shall not be in conflict with the provisions hereof or applicable
state and federal laws, rules and regulations.
A.
A grantee shall pay to the Village a franchise fee in
the amount designated in the franchise agreement. Unless otherwise specified
in the franchise agreement, such franchise fee shall be 5% of the grantee's
gross revenues.
B.
The franchise fee payment shall be in addition to any
other tax or payment owed to the Village by the grantee and shall not be construed
as payment in lieu of municipal property taxes or other state, county or local
taxes.
C.
The franchise fee and any other costs or penalties assessed
shall be payable quarterly on a calendar year basis to the Village within
45 days of the end of each quarter. The grantee shall also file a complete
and accurate verified statement of all gross revenues as previously defined
within 45 days of the end of each quarter.
D.
The Village shall have the right to inspect the grantee's
income records and to audit and recompute any amounts determined to be payable
under this chapter; provided, however, that such audit shall take place within
60 months following the close of each of the grantee's fiscal years that are
the subject of the audit. Any additional amount due the Village as a result
of an audit shall be paid within 30 days following written notice to the grantee
by the Village, which shall include a copy of the audit report.
E.
If any franchise fee payment or recomputed amount, cost
or penalty is not made on or before the applicable dates heretofore specified,
interest shall be charged from such date at an annual rate of 12%. The grantee
shall reimburse the Village for any additional expenses and costs incurred
by the Village by reason of the delinquent payment(s), including, but not
limited to, attorney's fees, consultant fees and audit fees.
A.
A franchise shall not be assigned or transferred, either
in whole or in part, or leased or sublet in any manner, nor shall title thereto,
either legal or equitable, or any right, interest or property therein pass
to or vest in any person without the prior written consent of the Village.
The grantee may, however, transfer or assign the franchise to a wholly owned
subsidiary of the grantee and such subsidiary may transfer or assign the franchise
back to the grantee without such consent, providing that such assignment is
without any release of liability of the grantee. Any proposed assignee must
show legal, technical and financial responsibility as determined by the Village
and must agree to comply with all provisions of the franchise. The Village
shall have 120 days to act upon any request for approval of a sale or transfer
submitted in writing that contains or is accompanied by all such information
as is required in accordance with FCC regulations and by the Village. The
Village shall be deemed to have consented to a proposed transfer or assignment
if its refusal to consent (including the reasons therefor) is not communicated
in writing to the grantee within 120 days following receipt of written notice,
together with all necessary information as to the effect of the proposed transfer
or assignment upon the public, unless the requesting party and the Village
agree to an extension of time. The Village shall not unreasonably withhold
consent to a proposed transfer.
B.
The grantee shall promptly notify the Village of any
actual or proposed change in, or transfer of, or acquisition by any other
party of control of the grantee. The word "control" as used herein is not
limited to major stockholders but includes actual working control in whatever
manner exercised. A rebuttable presumption that a transfer of control has
occurred shall arise upon the acquisition or accumulation by any person or
group of persons of 40% of the voting shares of the grantee. Every change,
transfer or acquisition of control of the grantee shall make the franchise
subject to cancellation unless and until the Village shall have consented
thereto, which consent shall not be unreasonably withheld. For the purpose
of determining whether it shall consent to such change, transfer or acquisition
of control, the Village may inquire into the legal, technical, financial and
other qualifications of the prospective controlling party, and the grantee
shall assist the Village in such inquiry.
C.
The consent or approval of the Village to any transfer
of the grantee shall not constitute a waiver or release of the rights of the
Village in and to the streets, and any transfer shall, by its terms, be expressly
subordinate to the terms and conditions of the franchise.
D.
In the absence of extraordinary circumstances, the Village
shall not be required to approve any transfer or assignment of a new franchise
prior to substantial completion of construction of the proposed system.
E.
In no event shall a transfer of ownership or control
be approved without the successor(s) in interest agreeing in writing to abide
by the terms and conditions of the franchise agreement.
A.
The grantee shall fully cooperate in making available
at reasonable times, and the Village shall have the right to inspect at the
grantee's office, upon reasonable notice and where reasonably necessary for
the enforcement of the franchise, books, records, maps, plans and other like
materials of the grantee applicable to the cable television system at any
time during normal business hours.
B.
Unless prohibited by law, rule or regulation, the following
records and/or reports are to be made available to the Village upon request,
but no more frequently than on an annual basis if so mutually agreed upon
by the grantee and the Village:
(1)
A yearly review and resolution or progress report submitted
by the grantee to the Village;
(2)
Periodic preventive maintenance reports;
(3)
Copies of FCC Form 395-A (or successor form) or any supplemental
forms related to equal opportunity or fair contracting policies;
(4)
Subscriber inquiry/complaint resolution data (but not
including names or addresses) and the right to review documentation concerning
these inquiries and/or complaints periodically;
(5)
Periodic construction update reports including, where
appropriate, the submission of strand maps.
Copies of all petitions, applications, communications and reports submitted
by the grantee to the Federal Communications Commission, to the Securities
and Exchange Commission, or to any other federal or state regulatory commission
or agency having jurisdiction in respect to any matters affecting cable television
operations authorized pursuant to the franchise or received from such agencies
shall be provided to the Village upon request.
The grantee shall file annually with the Village no later than 120 days
after the end of the grantee's fiscal year a copy of a gross revenues statement
certified by an officer of the grantee.
At the expiration of the term for which the franchise is granted or
when any renewal is denied, or upon its termination as provided herein, the
grantee shall forthwith, upon written notice by the Village, remove at its
own expense all aerial portions of the cable television system from all streets
and public property within the Village within six months. If the grantee fails
to do so within six months, the Village may perform the work at the grantee's
expense. Upon such notice of removal, a bond shall be furnished by the grantee
in an amount sufficient to cover this expense.
A.
The cable television system shall have a minimum channel
capacity of 77 channels.
B.
The grantee shall provide the following:
(1)
At least one specially designated channel for use by
local education authorities;
(2)
At least one specially designated channel for local governmental
uses;
(3)
If required by the franchise agreement, an institutional
network (I-Net) of cable, optical, electrical or electronic equipment, including
cable television systems, used for the purpose of transmitting two-way video
signals interconnecting designated entities to be determined by the Village.
The cost of such network will be borne by the Village as negotiated between
the grantee and the Village. Such network may be provided as needed by utilizing
capacity on the system.
(4)
Provided, however, these uses may be combined on one or more channels until such time as additional channels become necessary in the opinion of the Village. Studios and associated production equipment will be located in a mutually agreed upon site to meet the need for educational and local governmental access as noted in Subsection B(1), (2) and (3). Financial and technical support and replacement and maintenance of equipment of this facility shall be separately incorporated into the franchise by agreement.
C.
The grantee shall incorporate into its cable television
system the capacity to permit the Village, in times of emergency, to override
by remote control the audio, video and/or text of all channels simultaneously,
which the grantee may lawfully override. The grantee shall provide emergency
broadcast capacity pursuant to FCC rules. The grantee shall cooperate with
the Village in the use and operation of the emergency alert override system.
A.
In addition to the inherent powers of the Village to
regulate and control any cable television franchise, and those powers expressly
reserved by the Village or agreed to and provided for herein, the right and
power is hereby reserved by the Village to promulgate such additional regulations
as it shall find necessary in the exercise of its lawful powers and furtherance
of the terms and conditions of the franchise; provided, however, that such
rules, regulations, terms and conditions shall not be in conflict with the
provisions hereof or applicable state and federal laws, rules and regulations
and do not appreciably increase the burdens or appreciably impair the rights
of the grantee under the franchise agreement.
B.
The Village may also adopt such regulations at the request
of grantee upon application.
A.
The Village and the grantee may hold scheduled performance
evaluation sessions within 30 days of the third and sixth anniversary dates
of the grantee's award or renewal of the franchise and as may be required
by federal and state law. All such evaluation sessions shall be open to the
public.
B.
Special evaluation sessions may be held at any time during
the term of the franchise at the request of the Village or the grantee.
C.
All evaluation sessions shall be open to the public and
announced in a newspaper of general circulation in accordance with legal notice.
The grantee shall notify its subscribers of all evaluation sessions by announcements
on at least one channel of its system between the hours of 7:00 p.m. and 9:00
p.m. for five consecutive days preceding each session.
D.
Topics which may be discussed at any scheduled or special
evaluation session may include, but are not limited to: service rate structures;
franchise fee, penalties, free or discounted services; application of new
technologies; system performance; services provided; programming offered;
customer complaints; privacy; amendments to this chapter; judicial and FCC
rulings; line extension policies; and grantee or Village rules. The Village
acknowledges that, pursuant to federal law, it does not have jurisdiction
nor enforcement rights over all the standards and services mentioned above,
including programming and the application of all new technologies under a
cable television franchise. Nothing in this subsection shall be construed
as requiring the renegotiation of the cable franchise agreement.
E.
Members of the general public may add topics either by
working through the negotiating parties or by presenting a petition. If such
a petition bears the valid signatures of 50 or more residents of the Village,
the proposed topic or topics shall be added to the list of topics to be discussed
at the evaluation session.
Pursuant to the cable television Consumer Protection and Competition
Act of 1992, if the Village is currently certified to regulate the basic service
rates charged by grantee, it may, under these rules, require the grantee to
obtain approval from the Village for a rate increase for any change to the
rates for basic service. Should federal or state law permit further rate regulation
beyond basic service, the Village may, if certified, assume such rate regulation
and adopt appropriate procedures for such regulation.
A.
Pursuant to § 98-47, in addition to all other rights and powers retained by the Village under this chapter or otherwise, the Village reserves the right to forfeit and terminate the franchise and all rights and privileges of the grantee hereunder in the event of a substantial breach of its terms and conditions following the required thirty-day period to cure. A substantial breach by the grantee shall include, but shall not be limited to the following:
(1)
Violation of any material provision of the franchise
or any material rule, order, regulation or determination of the Village made
pursuant to the franchise;
(2)
Attempt to evade any material provision of the franchise
or to practice any fraud or deceit upon the Village or its subscribers or
customers;
(4)
Failure to provide the services promised in the grantee's initial application as incorporated herein by § 98-4;
(5)
Failure to restore service after 168 consecutive hours
of interrupted service, except when approval of such interruption is obtained
from the Village; or
(6)
Material misrepresentation of fact in the application
for or negotiation of the franchise.
B.
The foregoing shall not constitute a major breach if
the violation occurs but is without fault of the grantee or occurs as a result
of circumstances beyond its control. The grantee shall not be excused by mere
economic hardship nor by misfeasance or malfeasance of its directors, officers
or employees.
C.
The Village may make a written demand that the grantee
comply with any such provision, rule, order or determination under or pursuant
to the franchise. If the violation by the grantee continues for a period of
30 days following such written demand without written proof that the corrective
action has been taken or is being actively and expeditiously pursued, the
Village may place the issue of termination of the franchise before the Village
Board. The Village shall cause to be served upon the grantee, at least 20
days prior to the date of such meeting, a written notice of intent to request
such termination and the time and place of the meeting. Public notice shall
be given of the meeting and the issue(s) which the Board is to consider.
D.
The Village Board shall hear and consider the issue(s)
and shall hear any person interested therein and shall determine in its discretion
whether or not any violation by the grantee has occurred.
E.
If the Village Board determines that the violation by
the grantee was the fault of the grantee and within its control, the Board
may, by resolution, declare that the franchise of the grantee shall be forfeited
and terminated unless there is compliance within such period as the Board
may fix, such period to not be less than 30 days; provided, however, that
no opportunity for compliance need be granted for fraud or material misrepresentation.
F.
The issue of forfeiture and termination shall automatically
be placed upon the Board agenda at the expiration of the time set by it for
compliance. The Board may then terminate the franchise forthwith upon finding
that the grantee has failed to achieve compliance or it may further extend
the period, at its discretion.
Upon the foreclosure or other judicial sale of all or a substantial
part of the system, or upon the termination of any lease covering all or a
substantial part of the system, the grantee shall notify the Village of such
fact, and such notification shall be treated as a notification that a change
in control of the grantee has taken place, and the provisions of the franchise
governing the consent of the Village to such change in control of the grantee
shall apply.
Federal regulations as per 47 U.S.C. § 537 shall apply to
approval of transfer issues and the right of acquisition by the Village.
The Village shall have the right to cancel a franchise 120 days after
the appointment of a receiver or trustee to take over and conduct the business
of the grantee, unless such receivership or trusteeship shall have been vacated
prior to the expiration of 120 days, or unless:
A.
Within 120 days after his/her election or appointment,
such receiver or trustee shall have fully complied with all the provisions
of this chapter and remedied all defaults thereunder; and
B.
Such receiver or trustee, within the 120 days, shall
have executed an agreement, duly approved by the court having jurisdiction
in the premises, whereby such receiver or trustee assumes and agrees to be
bound by each and every provision of this chapter and the franchise granted
to the grantee.
A.
Notwithstanding any other provisions of the franchise
to the contrary, the grantee shall at all times comply with all laws and regulations
of the state and federal government or any administrative agencies thereof;
provided, however, if any such state or federal law or regulation shall require
the grantee to perform any service or shall permit the grantee to perform
any service or shall prohibit the grantee from performing any service in conflict
with the terms of the franchise or of any law or regulation of the Village,
then, as soon as possible following knowledge thereof, the grantee shall notify
the Village of the point of conflict believed to exist between such regulation
or law and the laws or regulations of the Village or the franchise.
B.
If the Village determines that a material provision of
this chapter is affected by any subsequent action of the state or federal
government, the Village and the grantee shall negotiate to modify any of the
provisions herein to such reasonable extent as may be necessary to carry out
the full intent and purpose of this chapter.
C.
If any section, sentence, paragraph, term, or provision
hereof is determined to be illegal, invalid or unconstitutional by any court
of competent jurisdiction thereof, such determination shall have no effect
on the validity of any other section, sentence, paragraph, term or provision
hereof, all of which will remain in full force and effect for the term of
the franchise or any renewal or renewals thereof.
A.
Interference with cable service prohibited. Neither the
owner of any multiple-unit residential dwelling nor his agent or representative
shall interfere with the right of any tenant or lawful resident thereof to
receive cable television service, cable installation or maintenance from a
cable television grantee regulated by and lawfully operating under a valid
and existing franchise issued by the Village.
B.
Penalties and charges to tenants for service prohibited.
Neither the owner or any multiple-unit residential dwelling nor his agent
or representative shall penalize, charge or surcharge a tenant or resident
or forfeit or threaten to forfeit any right of such tenant or resident or
discriminate in any way against such tenant or resident who requests or receives
cable television service from a grantee operating under a valid and existing
cable television franchise issued by the Village.
C.
Reselling service prohibited. No person shall resell,
without the expressed written consent of the grantee, any cable service, program
or signal transmitted by a cable television grantee under a franchise issued
by the Village.
D.
Protection of property permitted. Nothing in this chapter
shall prohibit a person from requiring that cable television system facilities
conform to laws and regulations and reasonable conditions necessary to protect
safety, functioning, appearance and value of premises or the convenience and
safety of persons or property.
A.
All bids received by the Village from the applicants
for an initial franchise will become the sole property of the Village.
B.
The Village reserves the right to reject any and all
bids and waive informalities and/or technicalities where the best interest
of the Village may be served.
C.
All questions regarding the meaning or intent of this
chapter or application documents shall be submitted to the Village in writing.
Replies will be issued by addenda mailed or delivered to all parties recorded
by the Village as having received the application documents. The Village reserves
the right to make extensions of time for receiving bids as it deems necessary.
Questions received less than 14 days prior to the date for the opening of
bids will not be answered. Only replies to questions by written addenda will
be binding. All bids must contain an acknowledgment of receipt of all addenda.
D.
Bids must be sealed and submitted at the time and place
indicated in the application documents for the public opening. Bids may be
modified at any time prior to the opening of the bids, provided that any modifications
must be duly executed in the manner that the applicant's bid must be executed.
No bid shall be opened or inspected before the public opening.
E.
Before submitting a bid, each applicant must:
(1)
Examine this chapter and the application documents thoroughly;
(2)
Familiarize himself/herself with local conditions that
may in any manner affect performance under the franchise;
(3)
Familiarize himself/herself with federal, state and local
laws, ordinances, rules and regulations affecting performance under the franchise;
and
(4)
Carefully correlate the bid with the requirements of
this chapter and the application documents.
F.
The Village may make such investigations as it deems
necessary to determine the ability of an applicant to perform under the franchise,
and the applicant shall furnish to the Village all such information and data
for this purpose as the Village may request. The Village reserves the right
to reject any bid if the evidence submitted by, or investigation of, such
applicant fails to satisfy the Village that such applicant is properly qualified
to carry out the obligations of the franchise and to complete the work contemplated
therein. Conditional bids will not be accepted.
G.
All bids received shall be placed in a secure depository
approved by the Village and shall not be opened nor inspected prior to the
public opening.
A.
No initial franchise will be granted to any applicant
unless all requirements and demands of the Village regarding financial, contractual,
shareholder and system disclosure have been met.
B.
Applicants, including all shareholders and parties with
any interest in the applicant, shall fully disclose all agreements and undertakings,
whether written or oral or implied, with any person, firm, group, association
or corporation with respect to the franchise and the proposed cable television
system. The grantee of a franchise shall disclose all other contracts to the
Village as the contracts are made. This section shall include, but not be
limited to, any agreements between local applicants and national companies.
C.
Applicants, including all shareholders and parties with
any interest in the applicant, shall submit all requested information as provided
by the terms of this chapter or the application documents, which are incorporated
herein by reference. The requested information must be complete and verified
as true by the applicant.
D.
Applicants, including all shareholders and parties with
any interest in the applicant, shall disclose the numbers of shares of stock,
and the holders thereof, and shall include the amount of consideration for
each share of stock and the nature of the consideration.
E.
Applicants, including all shareholders and parties with
any interest in the applicant, shall disclose any information required by
the application documents regarding other cable systems in which they hold
an interest of any nature, including, but not limited to, the following:
(1)
Locations of all other franchises and the dates of award
for each location;
(2)
Estimated construction costs and estimated completion
dates for each system;
(3)
Estimated number of miles of construction and number
of miles completed in each system as of the date of this application; and
(4)
Date for completion of construction as promised in the
application for each system.
F.
Applicants, including all shareholders and parties with
any interest in the applicant, shall disclose any information required by
the application documents regarding pending applications for other cable systems,
including, but not limited to, the following:
For the violation of any of the following provisions of this chapter, damages shall be chargeable to the bond in § 98-13, letter of credit or corporate guarantee in lieu of bond, whichever applies, as follows, and the Village may determine the amount of the forfeiture for other violations that are not specified in a sum not to exceed $250 for each violation, with each day constituting a separate violation:
A.
Failure to furnish, maintain or offer all cable services to any potential subscriber within the Village pursuant to § 98-20 herein upon order of the Village: $250 per day, per violation, for each day that such failure occurs or continues up to a maximum of $1,000;
B.
Failure to obtain or file evidence of required insurance,
construction bond, performance bond, or other required financial security:
$250 per day, per violation, for each day such failure occurs or continues
up to a maximum of $1,000;
D.
Failure to comply with applicable construction, operation,
or maintenance standards: $250 per day, per violation up to a maximum of $1,000;
E.
Failure to comply with a rate decision or refund order:
$500 per day, per violation, for each day such a violation occurs or continues
up to a maximum of $1,000.
G.
Any other violations of a franchise agreement to be determined
by the Grantor in a public hearing but not specifically noted in this section
shall not exceed $250 per day, per violation, up to a maximum of $1,000.
A.
Whenever the Village believes that the grantee has violated
one or more terms, conditions or provisions of the franchise, and wishes to
impose penalties, a written notice shall be given to the grantee informing
it of such alleged violation or liability. The written notice shall describe
in reasonable detail the specific violation so as to afford the grantee an
opportunity to remedy the violation. The grantee shall have 30 days subsequent
to receipt of the notice in which to correct the violation before the Village
may impose penalties unless the violation is of such a nature so as to require
more than 30 days and the grantee proceeds diligently within the 30 days to
correct the violation. In any case where the violation is not cured within
30 days of notice from the Village, or such other time as the grantee and
the Village may mutually agree to, the Village may proceed to impose liquidated
damages.
B.
The grantee may, within 10 days of receipt of notice,
notify the Village that there is a dispute as to whether a violation or failure
has, in fact, occurred. Such notice by the grantee to the Village shall specify
with particularity the matters disputed by the grantee and shall stay the
running of the thirty-day cure period pending Board decision as required below.
The Board shall hear the grantee's dispute. grantee must be given at least
five days' notice of the hearing. At the hearing, the grantee shall be entitled
to the right to present evidence and the right to be represented by counsel.
After the hearing, the Village shall provide grantee a copy of its action,
along with supporting documents. In the event the Village upholds the finding
of a violation, the grantee shall have 15 days subsequent, or such other time
period as the grantee and the Village mutually agree, to correct the violation.
C.
The rights reserved to the Village under this section
are in addition to all other rights of the Village, whether reserved by this
chapter or authorized by law or equity, and no action, proceeding or exercise
of a right with respect to penalties shall affect any other right the Village
may have.
The grantee shall not be held in default under, or in noncompliance
with, the provisions of the franchise, nor suffer any enforcement or penalty
relating to noncompliance or default, including termination, cancellation
or revocation of the franchise, where such noncompliance or alleged defaults
occurred or were caused by strike, riot, war, earthquake, flood, tidal wave,
severe weather conditions or other catastrophic act of nature, labor disputes,
inability to obtain necessary contract labor or materials, governmental, administrative
or judicial order or regulation or other event that is reasonably beyond the
grantee's ability to anticipate and control and that makes performance impossible.
