CHAPTER 22
CABLE TELEVISION
| 22.01 | Definitions |
| 22.02 | Authority |
| 22.03 | Franchise Territory |
| 22.04 | Service and Extension of Service |
| 22.05 | Duration of Franchise |
| 22.06 | Commencement and Completion of Construction |
| 22.07 | Distribution of Service |
| 22.08 | Transfer of Control |
| 22.09 | Rates |
| 22.10 | Rate Changes |
| 22.11 | Fees |
| 22.12 | Broadband Cable Communications Service |
| 22.13 | Grantee's Application Incorporated |
| 22.14 | Installation and Location of System |
| 22.15 | Indemnification, Insurance and Performance Bond |
| 22.16 | Service Standards |
| 22.17 | Subscriber Privacy Maintained |
| 22.18 | Complaint Procedure |
| 22.19 | Enforcement |
| 22.20 | Preferential or Discriminatory Practice Prohibited |
| 22.21 | Modification of Chapter |
22.01 DEFINITIONS.
For purposes of this chapter, the following words and phrases shall have the meanings indicated:
CABLECASTING. Programming carried on a cable system, exclusive of broadcast signals, whether originated by the cable operator or any other party.
CABLE COMMITTEE. A local committee consisting of 3 residents of the Village to be appointed by the Village President with the approval of the Village Board.
CABLE COMMUNICATIONS SYSTEM. Any system which receives and amplifies signals broadcast by one or more television or radio stations and which transmits programming originated by the system or by another party and distributes such signals and programming by wire, cable, microwave, satellite or other means to persons who subscribe to such service.
VILLAGE. The Village of Palmyra in its present incorporated form or as it may be changed by annexation.
COMMERCIAL SUBSCRIBER. A commercial business which receives cable services for the purpose of providing cable service for transient residents other than homes and apartment buildings, and is billed for and receives the service on a bulk rate basis.
BOARD. The Village Board of the Village of Palmyra.
GRANTEE. Midway Cablevision, a wholly owned subsidiary of Combined Cable Corporation.
GROSS SUBSCRIBER REVENUES. Any and all compensation, in whatever form, exchange or otherwise, derived from the providing of cable services to subscribers.
REASONABLE NOTICE. At least 5 business days' notice, which notice in the case of the grantee may be personally delivered to the street address or mailed to the mailing address of the grantee as the same is on file with the Village Clerk. Notice will be effective upon filing.
SUBSCRIBER. A recipient of cable television service.
22.02 AUTHORITY.
(1) There is granted by the franchising authority to the grantee the right and privilege to construct, erect, operate and maintain in, upon, along, across, above, over and under the streets, alleys, public ways and public places now laid out or dedicated and all extensions thereof in the Village, poles, wires, cables, underground conduits, manholes and other cable conductors and fixtures necessary for the maintenance and operation in the Village of a cable communications system to be used for the sale and distribution of cable services to the residents of the Village. The cable service shall include, but not be limited to, the carriage of television and radio signals and any cablecasting programming.
(2) The grantee shall, at all times during the operation of this franchise, be subject to all lawful exercise of the police power as may be hereafter provided by the franchising authority.
22.03 FRANCHISE TERRITORY.
(1) The franchise is for the present territorial limits of the Village and for any area added thereto during the term of this franchise.
| Density | Maximum Charge Above Normal Monthly Service Rate |
| 30-40 homes per running mile | 20% |
| 20-29 homes per running mile | 35% |
| 10-19 homes per running mile | 50% |
| 1-09 homes per running mile | 50% |
(5) Grantee shall not be required to serve apartment buildings and trailer parks if landlord prohibits grantee access by charging unreasonable fees or placing unreasonable construction restrictions on the grantee.
22.05 DURATION OF FRANCHISE.
(1) The duration of the rights, privileges and authorizations hereby granted shall be 15 years from the date hereof.
(2) The grantee at the adoption of this chapter was also the cable TV franchise holder for the City of Whitewater and was induced to bid on the Palmyra franchise because of the close proximity of both communities. It is the intention of the grantee to service both communities with a common facility. If the grantee shall lose its right to operate the cable TV system in the City of Whitewater, nothing in this chapter shall be construed to require grantee to continue to provide service to the Village.
22.06 COMMENCEMENT AND COMPLETION OF CONSTRUCTION.
Within 90 days of the date of the award of this franchise, the grantee must make application to the appropriate governmental agencies regulating cable television service. If authorization to operate is not received within 12 months of the date of franchise, the franchise may be cancelled at the option of the Village. The grantee shall have completed 100 percent of construction of the system within 12 months from the date of adoption of this chapter, unless prevented by conditions outside of its control or by acts of God.
22.07 DISTRIBUTION OF SERVICE.
An offer of free installation shall be provided to all residents requesting service for a period of 30 days after notice is given by the grantee to the Village Board that the system has been turned on. Thereafter, there shall be no unnecessary or unreasonable delay in furnishing service to a particular resident for a service hookup after receipt of application for service by such resident.
22.08 TRANSFER OF CONTROL.
(1) No transfer of effective ownership or control of the cable system may take place, whether by forced or voluntary sale, lease, mortgage, assignment, encumbrance, creation of subsidiary corporation, or any other form of disposition, without prior notice to and approval by the Board, except as provided in subs. (2) and (3) below. The notice shall include full identifying particulars of the proposed transaction. Such transfer of ownership or control shall not include the disposition of facilities or equipment no longer required in the conduct of the business.
(2) The grantee at the adoption of this chapter was also the cable television franchise holder for the City of Whitewater and was induced to bid on the Village franchise because of the close proximity of both communities. It is the intention of the grantee to service both communities with a common facility. If the grantee decides at some future date to transfer effective ownership or control of both franchises to a single purchaser or transferee, who intends to continue to operate both franchises with the common facility, the transaction shall be called a "true package arrangement." The grantee and all of its subsequent assignees, grantees and transferees may transfer the Village franchise in a true package arrangement with the Whitewater franchise, if the Whitewater Common Council, under the terms of its ordinance, has approved of the transfer and the Village Board, Cable Committee and residents are given notice of the City of Whitewater hearing on the grantee's application for approval and given opportunity to appear and be heard at the City of Whitewater hearing.
(3) The grantee may by pledge or mortgage or similar instrument transfer conditional ownership of all or part of the system's assets to a commercial lending institution to secure a loan or loans, so long as the lender or creditor does not thereby acquire the right to control the system's operations except to the extent necessary in the event of a breach, default or foreclosure under the terms and conditions of the loan documents. However, prior to the execution of any such pledge, mortgage, or similar instrument, the Grantee shall give to the Village Board at least 15 days notice fully identifying the particulars of the proposed transaction; and the Village Board shall, further, be timely furnished with any further information, which it may request, concerning the details of the proposed loan.
(4) If the grantee shall be adjudicated a bankrupt or placed in receivership, the Village Board may, by resolution, declare this franchise forfeited and terminate it.
(5) Grantee agrees that if there is any transfer contemplated as provided in sub. (1), that it will advertise to all potential buyers through publications in appropriate journals.
(6) Any subsequent grantee, assignee or transferee must agree to be bound by the terms of this chapter.
22.09 RATES.
The maximum monthly service and installation rates which may be charged by the grantee to subscribers shall be identical to those in effect in the City of Whitewater.
22.10 RATE CHANGES.
(1) Subscribers shall be subject to the same rate changes approved by the City Council of the City of Whitewater and charged to the subscribers of the cable TV system in the City of Whitewater.
(2) Prior to any public hearing before the Common Council of the City of Whitewater, concerning an application by the Grantee for a change in rates, the grantee shall give notice of such public hearing by publication of notice thereof in the official newspapers of the Village at least once per week for 2 consecutive weeks, the last publication thereof to be at least 10 days before the date of such hearing, however, so long as the grantee continues to operate the Village franchise and the City of Whitewater franchise as a true package arrangement, the percentage fee which the grantee shall pay to the Village shall not exceed the percentage fee paid by the grantee to the City of Whitewater.
(3) The grantee shall submit annually or as otherwise requested upon reasonable notice, a current, audited, financial statement (signed by an officer if grantee is a corporation or by one of the owners thereof if it is not) including profit and loss and all sales and revenues from this franchise area, and any other such operating information as may be requested by the Village. The Village shall be permitted to audit grantee's records, at its own expense, at any time it wishes to do so, consistent with normal and usual accounting practices.
22.11 FEES.
The percentage franchise fee rate provided for herein shall be identical to the percentage franchise fee rate charged by the City of Whitewater.
22.12 BROADBAND CABLE COMMUNICATIONS SERVICE.
(1) The communications system permitted to be installed and operated under the provisions of this chapter shall be operated in conformance with the FCC's Technical Standards, 47 C.F.R. §76.601, et seq.
(2) The grantee shall provide the local school district with the ability to cablecast television programming to all cable taps in the Village. Grantee shall not charge for this service, but it is understood that the school district shall be responsible for providing its own origination equipment beyond the $2,500 that the grantee agreed to provide in its proposal to the Village.
(3) Grantee shall furnish basic monthly service without charge to each Palmyra School District building, including the "greenhouse," located in the Village, including any future school buildings, and to the following locations: The Village Hall, Police Station, Fire Station, and the Village Library. Grantee shall not be charged for either installation or for monthly service, but internal wiring shall be the responsibility of the organization receiving service where more than one normal tap is being installed in each building. If required, the grantee shall provide free use of a converter.
(4) The grantee shall provide a separate cable connecting the Palmyra Elementary and High School. Such cable will have the capability of permitting 2-way communication between the schools.
(5) The grantee shall provide a system having a 35 channel capacity and 2-way capability. The full 35 channel capacity and 2-way capability need not be initially activated to all subscribers but must be built into the system for potential future activation. The system's 2-way capability shall be capable of video and data transmissions.
(6) After the system has been in operation for 2 years, the Cable Committee shall determine whether or not the single local channel is adequate to meet the needs of the Village, and if the Committee determines that the single local channel is not adequate, the Committee may order the grantee to make available another channel for local use and program origination.
(7) If the Village wishes to add additional local channels, i.e., school and community access channels, a possibility exists that these local channels may displace one or more of the channels carrying signals from the City of Whitewater. Grantee agrees to advise grantor on the avoidance of such conflicts.
22.13 GRANTEE'S APPLICATION INCORPORATED.
By its acceptance of the franchise, the grantee specifically grants and agrees that its application is incorporated by reference and made a part of this chapter. In the event of a conflict between proposed service listed in the application and the provisions of this chapter, the grantee and the grantor shall attempt to reach a mutual agreement. In the event that the grantor and the grantee cannot reach a mutual agreement, the grantor and the grantee agree to submit the matter to arbitration. Failure to provide services as promised in the grantee's application as incorporated herein shall be deemed a breach of this chapter to which the provisions of §22.19 shall apply.
22.14 INSTALLATION AND LOCATION OF SYSTEM.
(1) All transmission and distribution structures, lines and equipment erected by the grantee within the Village shall be so located as to cause minimum interference with the rights and reasonable convenience of property owners who join any of the streets.
(2) So far as practical, the poles used for the grantee's distribution system shall be existing utility poles within the Village subject to the reaching of mutually satisfactory rental agreements with the owners thereof, it being the intent of this provision to minimize the number of new or additional poles erected within the Village. In the event that the grantee is unable to reach what it feels is a mutually satisfactory rental agreement to use existing utility poles, the grantee may apply to the Village for permission to install poles of its own.
(3) All annexations to the Village providing for utility easements shall specify cable television in such easements.
(4) In case of disturbance of any street or paved area, the grantee shall at its own cost and expense, and in a manner approved by the Village, replace and restore such street or paved area in as good a condition as before the work involving such disturbance was done.
(5) If at any time during the period of the franchise the Village shall lawfully elect to alter or change the grade of any street, the grantee, upon reasonable notice by the Village, shall remove, relay and relocate its poles, wires, cables, underground conduits, manholes, and other fixtures at its own expense.
(6) If at any time the grantee wishes to make any excavation within the street right-of-way, he must first receive an excavation permit at least 24 hours prior to the commencement of work. This applies to all work except emergency repair. In the case of emergency repair, it shall be necessary to receive an excavation permit on the first working day after the emergency.
(7) The Village reserves the right upon reasonable notice to require the grantee to protect, support, temporarily disconnect, relocate or remove from the Village's streets any property of the grantee by reason of traffic conditions, public safety, street construction or vacation, change or establishment of street grade, installation of sewers, drains, water pipes, power or communications lines, tracks or other types of structure or improvement by governmental agencies or any other structure or public improvement. Reasonable notice for this provision of this chapter shall be construed to mean at least 30 days, except in the case of emergencies where no specific notice period shall be required. The grantee shall have an opportunity to present alternative routes, contest the expense and necessity of the change in its facilities required by this section, and negotiate the shared cost. In no event shall the Village require removal, disconnecting, or relocating of the grantee's facilities without cause and the Village shall consider the grantee's facilities in making its determination.
(8) Any poles or other fixtures placed in or adjacent to any street by the grantee shall be placed in such manner as to comply with all requirements of the Village.
(9) The grantee shall, at the request of any person holding a moving permit issued by the Village, temporarily raise or lower its wires to permit the moving of buildings. The expense of such temporary removal or raising or lowering wires shall be paid by the person requesting the same, and the grantee shall be given not less than 96 hours advance notice to arrange for such temporary wire changes.
(10) The grantee shall have the authority to trim trees upon and overhanging streets of the Village so as to prevent the branches of such trees from coming in contact with the wires and cables of the grantee.
(11) In all sections of the Village where the cables, wires, or other like facilities of public utilities are placed underground, the grantee shall place its cables, wires, or other facilities underground. In areas where existing utility cables are above ground, undergrounding of cable will be required coincident (at the same time) with all other utilities.
(12) The grantee shall be responsible for obtaining its own pole or conduit use agreements from any utility companies or others maintaining poles or conduits throughout the Village, whenever the grantee finds it necessary to make use of such poles or conduits. The Village shall grant to the grantee authority to use public rights-of-way for the installation of its system wherever practicable, but it shall be the responsibility of the grantee to obtain its own easements from all other property owners in the Village when it deems necessary. The easements referred to herein shall be those wherein grantee wishes to cross private property and no utility easement or other public way is available.
(13) At the expiration of the term for which the franchise is granted or upon its termination and cancellation as provided for herein, the Village shall have the right to require the grantee to remove, at its own expense, all portions of the cable television system from all streets within the Village, except the grantee will not be required to remove underground cable and fixtures unless requested by the Village for reasons of health and safety.
22.15 INDEMNIFICATION, INSURANCE AND PERFORMANCE BOND.
(1) REQUIRED.
(a) The grantee shall indemnify and save the Village harmless from all losses sustained by the Village on account of any suit, judgment, execution, claim, damage or demand whatsoever occasioned by grantee or arising out of the grantee's construction, after erection, maintenance, repair of operation of grantee's CATV system in the Village and from any suits, liabilities, obligations for liabilities, obligations for libel, slander, unfair competition, or obligation of suits of any kind or nature whatsoever by a third person, arising out of grantee's exercise on incident to grantee's exercise of the franchise rights herein granted. For this purpose, the grantee, prior to start of construction and thence for the duration of the franchise and all renewals thereof, shall present evidence of carriage of liability insurance covering property damage and public liability from an insurance company or companies qualified to do business in the State. The amounts of such insurance to be carried for liability due to damage to property shall be not less than $500,000 as to any accident and against liability due to injury or death of persons, $500,000 as to any one person and $1,000,000 as to any one accident.
(b) So long as the grantee continues to operate the Whitewater franchise and the Palmyra franchise as a true package arrangement, the grantee need not purchase separate policies for Whitewater and Palmyra, but can provide the above coverage requirements in one policy insuring both the City of Whitewater and the Village. The Village shall notify the grantee within 30 days after the preservation of any claim or demand, either by suit or otherwise made against the Village or account of any negligence or other claim or liability on the part of the franchise. Nothing in this franchise shall be deemed to require grantee to indemnify or hold harmless the grantor for any negligent or criminal conduct of grantor or any antitrust liability of grantor or its assigns.
(2) CERTIFICATE. A certificate evidencing the insurance coverage as herein provided shall be delivered by the grantee to the Village Clerk within 60 days after effective date of this franchise.
(3) BOND. The grantee shall maintain a faithful performance bond running to the Village with a surety authorized to do business as a surety in the State in the penal sum of $10,000 which shall be posted within 60 days after the grant of the franchise, conditioned that the grantee shall well and truly observe, fulfill and perform each condition of this franchise during the commencement of construction of the system and for one full year following the commencement of operation of the system, and that in case of any breach of condition of the bond the amount thereof shall be recoverable from the principal or insurer thereof by the Village for all damages resulting from the failure of the grantee to well and faithfully observe and perform any provision of this franchise as follows:
(a) The satisfactory completion of installation and operation of the system.
(b) The indemnity provided by this section.
(4) ADDITIONAL BOND. If any portion of the bond is forfeited due to the failure on the part of grantee to faithfully perform all the terms and conditions of this license, the grantee shall be required to post additional bond in an amount equal to the forfeiture within 30 days of the date of the forfeiture.
22.16 SERVICE STANDARDS.
(1) The grantee shall establish, construct, operate and maintain the system in accordance with good cable industry standards and in accordance with the highest standards of code of conduct with respect to businesses the size and type of the grantee. The grantee will have available to the public a copy of its standard business operating practices and procedures.
(2) The grantee, throughout the system, shall provide uniform strong signals which are free from distortion and interference.
(3) The grantee shall establish, construct, operate, and maintain the system in accordance with all applicable national, State and local building and safety codes. In the absence of any otherwise applicable building and safety codes, the grantee shall establish, construct, operate and maintain the system in accordance with the most recent addition of the National Electric Safety Code and the National Electrical Code.
(4) The system shall be designed, established, constructed, operated and maintained for 24 hours a day continuous operation.
(5) The system shall produce for receipt on subscribers' receivers, which are in good working order, either monochrome or color pictures (providing the receiver is color capable) that are free from any significant interference, distortion or ghosting which would cause any material degradation of video or audio quality.
(6) The grantee shall not allow its cable or other operations to interfere with television reception of persons not served by the company, nor shall the system interfere with, obstruct or hinder in any manner the operation of the various utilities servicing the residents of the Village. As a condition of the franchise, grantee agrees that neither it nor its agents or subsidiaries or parent companies will engage in the business of the sale, rental or repair of television or radio receivers.
22.17 SUBSCRIBER PRIVACY MAINTAINED.
(1) No monitoring of any terminal connected to the system shall take place without specific written authorization by the user of the terminal in question on each occasion.
(2) If monitoring is to occur, each terminal shall be equipped with a switch by which the user can prevent the monitoring of that terminal notwithstanding any prior agreement.
(3) The grantee shall not, except as required by governmental action, provide any date concerning its subscribers or users or their use of its services without first securing written authorization for the provision of such data from the subscriber involved.
22.18 COMPLAINT PROCEDURE.
(1) The Cable Committee is designated by the Village as having primary responsibility for the continuing administration of the franchise and implementation of complaint procedures, with the Village Clerk being the individual to whom complaints should be referred. Such complaints shall be made in writing. The Cable Committee shall have final authority to settle complaints relative to cable TV service provided by grantee including the right to order necessary correctional work done to resolve such complaint, under the terms and conditions of the franchise.
(2) When there have been repeated similar complaints made or when there exists other evidence, which in the judgment of the Cable Committee casts doubt on the reliability or quality of cable service, the Cable Committee shall have the right and authority to compel the grantee to test, analyze, and report on the performance of the system at its own expense. Such report shall be delivered to the Cable Committee no later than 14 days after the Cable Committee formally notifies the grantee and shall include the following information:
(a) The nature of the complaints which precipitated the special tests; what system component was tested, the equipment used, and procedures employed in the testing;
(b) The results of such tests.
(c) The method in which the complaints were resolved.
(3) Further tests and analyses may, at the grantor's option, be supervised by a professional engineer not on the permanent staff of the company. The cost of such professional engineer shall be born equally by the grantor and the grantee. The engineer shall sign all records of the special tests and forward to the Cable Committee and grantee such records with a report interpreting the results of the tests and recommending actions to be taken by the Village.
(4) The grantee shall maintain a publicly listed toll free telephone number in the Village telephone directory, which telephone shall be answered either personally or by answering service, such complaints and requests for repairs or adjustments may be received on a 24 hour basis.
(5) The grantee shall maintain a repair and maintenance crew capable of responding to subscriber complaints or requests for service within 24 hours after receipt of the complaint or request. If the complaint or request for service was caused by or is the result of a problem with the cable television system itself, no charge shall be made to the subscriber for this service. If such complaint or request for service was not the fault of such cable television system, the grantee shall be permitted to charge the subscriber for such service.
(6) The grantee shall establish procedures for receiving, acting upon, and resolving subscriber complaints. The grantee shall furnish a notice of such procedures to each subscriber at the time of initial subscription to the system.
22.19 ENFORCEMENT.
Any violation by the grantee, its vendee, lessee, or successors of any material provision of this chapter or of any supplemental written agreement entered in by and between the Village and the grantee or the failure to promptly perform any of the provisions thereof, or the incidence of any unreasonable number of subscribers complaints not otherwise satisfactorily resolved as required by the provisions of this franchise, shall after 30 days written notice to the grantee requesting such performance or the resolution of such complaints be cause for a forfeiture of not less than $25 nor more than $250, or for the cancellation of all rights under this franchise. Each day of noncompliance shall constitute a separate violation. In no event shall any action for a forfeiture or cancellation of the rights under this franchise be commenced prior to the grantee receiving at least 30 days prior written notice.
22.20 PREFERENTIAL OR DISCRIMINATORY PRACTICE PROHIBITED.
The grantee shall not, as to rates, changes, 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 prejudice or disadvantage. Such prohibition shall not apply to situations considered by the Village to be in the public interest nor shall it apply to promotional or advertising campaigns or practices temporarily engaged in by the grantee or where rate adjustments are required pursuant to §22.04 (2), (3) and (4).
22.21 MODIFICATION OF CHAPTER.
(1) The Village reserves the right to add, delete, modify, or otherwise change provisions of this chapter whenever it deems the same necessary, which changes shall only be made after reasonable notice to the grantee and a public hearing, notice of which hearing shall be published for 2 consecutive times, the last of which shall be at least 10 days prior to such hearing. Such additions, deletions, modifications or changes shall be reasonable and shall not materially affect the grantee's operation under the franchise nor its income or profits derived therefrom. So long as the grantee continues to operate the City of Whitewater franchise and the Village franchise as a true package arrangement, the Village Board shall not adopt any additions, deletions, modifications, or changes to this chapter which directly conflict with the provisions of the City of Whitewater ordinance.
(2) The grantee may initiate proceedings to change or modify this chapter upon application to the Village, which also shall only be done after the holding of a public hearing as set forth herein.