text:
[Ord. 6189, 9/19/1995]
WHEREAS, the City of West Allis is a legally organized municipality which has the power to regulate cable television within its boundaries through the means of a franchise, in accordance with sec. 66.082 of the Wisconsin Statutes, the Communications Act of 1934, as amended by the Cable Communications Policy Act of 1984 (P.L. 98-549), and the Cable Television Consumer Protection And Competition Act of 1992 (P.L. 102-835), as now or hereinafter amended; and,
WHEREAS, the City of West Allis has served as a cable television franchisor since August 25, 1980, and;
WHEREAS, through its cable television franchising powers, the City of West Allis is committed to protecting its corporate interests, as well as the interests of citizens and subscribers, and;
WHEREAS, in recognition of the changing technology, services, operations, legal environment, financial aspects and community needs and interests related to cable television and related telecommunications, it is necessary for the City of West Allis to revise its cable television franchise.
Title. This ordinance shall be known as the "City of West Allis Cable Ordinance."
Purposes. The purposes of this Ordinance are:
[Ord. 6400, (amending S. 15.042(A)(C)(D)), 10/6/1998]
To enable the City of West Allis to franchise and regulate cable television systems and Video Communications Systems operating within its corporate boundaries.
To enable and implement municipal policies and procedures regarding cable television services and operations.
To establish standards and procedures which support the immediate and future development of cable television, Video Communications System and cable-based telecommunications systems within the City of West Allis.
To ensure that franchise grantees operating cable television, Video Communications System and cable-based telecommunications systems are understanding of community needs and interests, and that the community is served by a cable system embodying the highest quality of cable television signal transmission possible.
To protect the public welfare and public interest through the establishment of consumer protection provisions as they concern cable system construction, maintenance and general operation.
To establish cable television as a means of encouraging communications by and between the citizens of West Allis, their institutions, businesses, organizations and neighboring communities.
To allow for the payment of fees and other consideration of value to the City for the use of municipal property, right-of-ways, easements and other public lands by the cable system operator in his construction, operation and maintenance of the cable system, and to compensate the City of West Allis for costs directly attributable and incidental to the award, implementation and enforcement of any and all cable television franchises.
To provide for remedies and ordain penalties for violations of this Ordinance and for the cable television and cable-based telecommunications systems granted hereunder.
To enable the regulation of rates and fees charged by a cable system franchise grantee operating under the provisions of this Ordinance and in accordance with FCC rules and regulations.
Legislative Authority. This Ordinance shall be governed by the Communications Act of 1934, as amended; the Cable Communication Policy Act of 1984; and, the Cable Television Consumer Protection and Competition Act of 1992, as now or hereinafter amended. This Ordinance shall also be governed by the provisions of secs. 66.082, et seq., of the Wisconsin Statutes, as now or hereinafter may be amended.
[Ord. 6400 (amend), 10/6/1998]
For the purposes of this Section, the following phrases, terms, words and their derivations shall have the meaning as stated herein. When not inconsistent with the context, words in the present tense shall include the future, words indicating a plural number shall include the singular number and words in the singular number include the plural number. The words "shall" and "will" are mandatory and not directory. The word "may" is permissive. Words not defined shall be given their common and ordinary meaning. Unless a section provides otherwise, references to statutory enactments shall include any and all amendments thereto and any successor provisions. The definitions of all capitalized words defined herein shall be controlled by this ordinance and all other capitalized words utilized in this Ordinance that have not been defined herein shall have the meaning ascribed to them in the Cable Act. For the purpose of a Franchise Agreement granted subject to this Ordinance, the terms in the Franchise Agreement shall prevail where there is a conflict between the Ordinance and the Cable Act. Where the Franchise Agreement is silent, the terms of this Ordinance and the Cable Act shall control.
ACT. The Communications Act of 1934, the Cable Communications Policy Act of 1984 as amended by the Cable Consumer Protection and Competition Act of 1992 (47 USC 521, et. seq.), as now or hereinafter amended.
ADDITIONAL SERVICE. A subscriber service provided by the Grantee for which a special charge is made, based on program or service content, time or spectrum space usage.
BASIC SERVICE. Consists of all signals carried in fulfillment of the provisions of Sections 614 and 615 of the Communications Act of 1934, as amended, any public, educational and governmental access programming required by the franchise of the cable system to be provided to subscribers, and any signal of any television broadcast station that is provided by the Cable Operator to any subscriber, except a signal which is secondarily transmitted by a satellite carrier beyond the local service area of such station. Basic Service may also include any additional video programming signals or services provided by the Cable Operator to the basic service tier.
CABLE-BASED COMMUNICATIONS. Consists of signals transmitting voice or data which utilize or rely upon coaxial or fiber optic lines, headend equipment, amplifiers, satellite uplink or downlinks, microwave links, earth stations, or other means of electronic transmission in order to bring or send such signals to and from points within the corporate limits of the City.
CABLE OPERATOR. Any person or persons, including corporations, partnerships and joint ventures, who provide cable programming services through means of a cable system and who own a significant interest in the cable system, or any person or persons, who manage, control, coordinate or direct the operations of a cable system.
CABLE SYSTEM. A system of antennas, cables, wires, lines, towers, waveguides, laser beams, satellite uplinks, microwave links or other conductors, converters, amplifiers, headend equipment, master controls, earth stations, equipment and facilities, designed, wired and constructed for the purpose of producing, receiving, transmitting, amplifying, storing, processing or distributing by coaxial cable, fiberoptics, fiber distributed data interference (FDDI), microwave or other means, audio, video and other related forms of electronic or electrical signals within the City, other than those communication units which are solely wired on private property. A cable system shall also mean a facility, as described above, which is located within the corporate limits of the City, regardless of the location of the headend feeding, such system is located within the corporate limits of the City.
CHANNEL. A band of frequencies carrying a width of six (6) megahertz wide in the electromagnetic spectrum, or of a width to be specified in the future, which constitutes the acceptable standard for definition of a channel, which is capable of carrying audio, video, voice, data and encrypted information signals.
CITY. The City of West Allis, State of Wisconsin, its officers and employees, unless otherwise specifically designated, and all the area within the territorial limits of the City, its future corporate boundaries, and including any area over which the City exercises its jurisdiction.
COMMON COUNCIL. The governing body of the City or any successors to the legislative powers of said body.
CONVERTER. A device which may be provided by the Cable Operator to subscribers for the purpose of changing the frequency of midband, superband or hyperband signals to a suitable channel or channels, which the television receiver is able to deliver at designated dial locations.
DOWNSTREAM CHANNEL. A channel which is transmitted in a direction from the headend to the subscriber's television set.
DWELLING UNIT. A single-family or multiple-family residential, commercial or industrial place of occupancy.
EDUCATIONAL ACCESS CHANNEL. A channel or channels set aside and so designated for the use of schools and related educational institutions, including facilities and equipment for the use of such channel, as specified by the franchising authority.
FCC. The Federal Communications Commission and any legally constituted regulatory body or agency or successor.
FRANCHISE. The nonexclusive right and privilege granted through the authority of a franchise agreement between the City and any grantee hereunder, which allows the grantee to own, operate, construct, reconstruct, dismantle, test, use and maintain a cable system within the corporate boundaries of the City, or within specified areas of the City.
FRANCHISE AGREEMENT. The document which sets forth specific terms, conditions, provisions and stipulations negotiated between the Franchising Authority and the Cable Operator for the purpose of allowing the Cable Operator to construct, erect, operate and maintain his Cable System and its related services within the City of West Allis. The use of the term "Franchise" shall not invalidate either the term of "Franchise Agreement" or "Franchise Ordinance."
FRANCHISE AREA. The area within the corporate boundaries or jurisdiction of the City of West Allis, which is subject to the terms and conditions granted under the City's cable television franchise.
FRANCHISE FEE. Includes any assessment imposed herein by the City on a grantee solely because of its status as a grantee. The term "Franchise Fee" does not include any tax, fee or assessment of general applicability (including any such tax, fee or assessment imposed on both utilities and cable operators or their services), but not including a tax, fee or assessment, which is unduly discriminatory against the grantee or cable subscribers; capital costs which are required by the franchise to be incurred by grantee for the establishment and operation of public, educational or governmental access facilities; requirements or charges incidental to the awarding or enforcing of the franchise, including payments for professional, legal or technical assistance, bonds, security funds, letters of credit, insurance, indemnification, penalties or liquidated damages; any fee imposed under Title 17, U.S. Code.
FRANCHISE PAYMENT. Includes all charges imposed for a franchise whether the object be regulation revenue or one time reimbursement of costs incurred by the City in the award of this franchise.
FRANCHISING AUTHORITY. The Municipal Authority of the City of West Allis or its Mayor, or his designee, or any of its designated municipal officers or staff having responsibility over the supervision of the City's cable television franchise.
FULL SYSTEM SERVICE. All basic service and additional services, as herein defined, which are offered by the Grantee.
GOVERNMENTAL ACCESS CHANNEL. A channel or channels set aside and so designated for the use of units of local government, including facilities and equipment for the use of such channel, as specified by the franchising authority.
GRANTEE. Any person or persons, including corporations, partnerships, associations, joint ventures or organizations of any type and its agents, representatives, employees, subsidiaries, assignees, transferees or lawful successors, having any rights, powers, privileges, duties, liabilities or obligations under this Section, and also includes all persons having or claiming any title to or interest in the cable system, whether by reason of the franchise itself directly or by interest in a subsidiary, parent or affiliate company, association or organization, or by any subcontract, transfer, assignment, management agreement or operating agreement or an approved assignment or transfer resulting from a foreclosure of a mortgage security agreement or whether otherwise arising or created.
GRANTOR. The City of West Allis, Wisconsin.
GROSS REVENUES. All cash, credits, real property of any kind or nature or other consideration derived directly or indirectly by a grantee, its affiliates, subsidiaries, transferrees, assignees or any other person in which the grantee has a financial interest, arising from or attributable to the sale or exchange of cable services by the Grantee within the City or in any way derived from the operation of its system, including, but not limited to, monthly fees charged subscribers for basic service, monthly fees charged subscribers for any optional service; monthly fees charged subscribers for any tier of service other than basic service; installation, disconnection and re-connection fees; leased channel fees; fees, payments or other consideration received from programmers; converter rentals or sales; studio rental, all fees received from commercial production contracts; advertising revenues; revenues from home shopping channels; the sale, exchange or cablecast of any programming developed on or for community service channels or institutional users of the cable system; and, revenues from cable-based communications, which rely upon a nexus with the cable system. This sum shall be the basis for computing the fee imposed, pursuant to Section 15.151 hereof. This sum shall not include any taxes on services furnished by the grantee, which are levied directly upon any subscriber or user by the State of Wisconsin, Milwaukee County, Wisconsin, the City or any other unit of government, which is collected by Grantee on behalf of such governmental unit, or revenue derived from a similar service that is regulated exclusively at the state or federal level, when said service is a common carrier or utility service not subject to regulation.
HEADEND. The control center of a cable television system, where incoming signals are amplified, converted, processed and combined into a common cable, along with any origination cablecasting, for transmission to subscribers. Headend usually includes antennas, preamplifiers, frequency converters, demodulators, processors and other related equipment.
INSTALLATION. The connection between subscriber drop cable to subscribers' terminals.
INSTITUTIONAL NETWORK. The network of cables of frequencies upstream that connects schools, government agencies and similar institutions to the cable system headend for retransmission downstream to the subscriber network or to a network dedicated specifically for the private use of institutional network subscribers.
INTERACTIVE SYSTEM. A two (2) way cable system that has the capability to provide a subscriber with the ability to enter commands or responses on an in-home terminal and general responses or stimuli at a remote location.
INTERCONNECT. The physical connection of two (2) or more cable systems or a cable system and a communications company facility.
LEASED ACCESS CHANNEL. A cable television channel or channels, including input facilities and equipment, specifically designated for public, non-profit or private entity broadcasting, which is provided by means of a lease arrangement for cablecast airtime between the Cable Operator and the Lessee. Shall include, without limitation, all use, pursuant to Section 612 of the Act (47 USC 532).
LOCAL ORIGINATION CHANNEL. A channel providing programs that are produced by the Cable Operator rather than those received by television broadcast stations or pay channel distributors.
MODIFICATION AGREEMENT. Any agreement of modification and amendment to the franchise agreement entered into and between the grantee and the City and made a part of the franchise agreement.
MULTICHANNEL VIDEO PROVIDER. Shall mean any communication system distributing video programming to subscribers which use all or part of a municipal right-of-way in order to distribute said video programming, or which distribute such programming to subscribers over the lines of a common carrier which are located in all or part of a municipal right-of-way. [Ord. 6400, 10/6/1998]
ORDINANCE. The City of West Allis Cable Ordinance, as may be amended from time to time.
PERSON. Any individual, firm, corporation, company, partnership, association, joint venture, trust or organization of any kind and the lawful trustee, successor, transferee, assignee or personal representative thereof.
PUBLIC ACCESS CHANNEL. A cable television channel or channels specifically designated as a non-commercial public access channel available on a first-come, non-discriminatory basis, including facilities and equipment for such use. Shall include, without limitation, all use pursuant to Sections 611 and 612 of the Act (47 USC 531, 47 USC 532).
PUBLIC WAY. The surface and the space above and below the surface of any public street, road, highway, lane, path, alley, court, boulevard, drive, avenue, parkway, driveway, bridge, conduit, tunnel, park, square, waterways, utility easements or other public right-of-way now or hereafter held by the City, which shall entitle the City and the grantee to the use thereof for the purpose of erecting, installing and maintaining the grantee's cable system.
SCHOOLS. Any public or private elementary school, secondary schools, junior college or university, which conducts classes or provides instruction services which has been granted a certificate of recognition by the State of Wisconsin.
SHALL AND MUST. Each is mandatory.
SUBSCRIBER. Any person, firm, company, corporation or association, who legally receives one or more of the services provided by the grantee's cable system under the schedule of charges filed with and approved by the City, and does not further distribute such services.
SUBSCRIBER DROP. A cable which connects the tap or coupler of a feeder cable to subscriber's premises and television set.
UPSTREAM CHANNEL. A channel which is transmitted in a direction from the subscriber's television set to the headend.
VIDEO COMMUNICATIONS SYSTEM. Shall mean any communication system including any multichannel video provider transmitting signals to subscribers which is not a Cable System, as defined herein, or an Open Video System, as described by Section 651 and 653 of the Telecommunications Act of 1996 as now or here after amended, and by applicable FCC regulations. [Ord. 6400, 10/6/1998]
VIDEO-ON-DEMAND. A tier of services which allows the subscriber to select movies or other video programming from the cable operator's selection library by means of telephone contact or other interactive device.
Franchise Required. No Person, firm, company, corporation, joint venture, partnership, trust, organization or association of any kind including Multichannel Video Provider shall construct, install, maintain or operate a cable television or cable communications system within the City of West Allis or within any right-of-way or other public property of the City, unless a Franchise has first been granted by the City, pursuant to the provisions of this Ordinance, and unless such franchise is in full force and effect. Such Franchise shall not take the place of any other license or permit which may be legally required of the Grantee in order to conduct such a business.
[Ord. 6400, amend, 10/6/1998]
Franchise Term. The term of any new Franchise and all rights, privileges, obligations and restrictions pertaining thereto shall be as established in the Franchise Agreement between the Grantee and the City, unless terminated sooner, as hereinafter provided.
Non-Exclusivity of Franchise. Any Franchise granted by the City under the terms and conditions of this Ordinance shall be non-exclusive. The City specifically reserves the right to grant, at any time, such additional Franchises for a cable television system to use and occupy the public ways of the City for cable television, cable-based telecommunications or any other purpose, as the City deems appropriate.
Franchise Area. The City may grant a Franchise for the area within the corporate boundaries of the City, or any defined section of the City. The Franchise Agreement shall indicate the specific boundaries for the Franchise Area.
Obligation to Provide Services. Upon issuance of a non-exclusive, revocable Franchise by the City for construction, installation, maintenance and operation of a Cable System or any Video Communications System within a designated Franchise Area, Grantee shall be obligated to provide the services of a Cable System or any Video Communications System, as required herein, and by the terms and conditions of the Franchise Agreement.
[Ord. 6400, amend, 10/6/1998]
Personnel. Grantee shall give reasonable consideration for hiring West Allis residents in connection with providing operation and services of the Cable System.
Subject to Other Regulatory Agencies Rules and Regulations. Grantee shall, at all times during the life of the Franchise, be subject to all lawful exercise of the police power of the City and other duly authorized regulatory State and Federal bodies and shall comply with any and all ordinances which the City has adopted or shall adopt applying to the public generally and to other Grantees. Grantee shall maintain and operate the Cable System or any Video Communications System in accordance with the rules and regulations of the FCC, the State of Wisconsin and/or the City, as are applicable or may be promulgated.
[Ord. 6400, amend, 10/6/1998]
Franchise Applications. The Common Council shall require the submissions of applications for a Franchise under this Ordinance. Initial applications for a Franchise shall include at a minimum:
A clear and precise description of the identity of the applicant, including, but not limited to, the name of the applicant, the address of the applicant, a description of the type of business entity which characterizes the applicant, a statement of those persons who hold ownership of more than five percent (5%) of the stock of the business entity of the applicant, a description of the major activities of the business entity of the applicant, and an affidavit or other like document stating the compliance of the business entity of the applicant with all applicable federal, state and local laws applicable thereto.
Plans and specifications relating to all aspects of the applicant's proposed Cable System or any Video Communications System, as are applicable to the building and zoning laws of the City.
[Ord. 6400, amend, 10/6/1998]
A map or maps of a scale of not less than one (1) inch equaling one thousand (1,000) feet showing the precise geographic area for which applicant seeks a Franchise (Franchise Area).
Projected financial pro forma for system revenue, expenditures, debt servicing and operation for a period of no less than ten (10) years and evidence of financial responsibility in the form specified by this Ordinance.
Written documentation of financial support, including letters of loan commitment from a financial institution for issuance of any loans, bonds, notes or other related instruments to the Applicant for the purpose of financing the costs of Cable System or any Video Communications System construction or operation.
[Ord. 6400, amend, 10/6/1998]
A non-refundable application fee shall be paid to the City in an amount to be determined by the Common Council by Resolution to cover the costs of initial application review, as to form only, and which may be used by the Franchising Authority solely to offset direct expenses incurred in the evaluation and awarding of the Franchise sought by said application issued pursuant to this Ordinance.
Detailed plans and specifications for the Cable System, which is proposed by the applicant, showing the routing of trunk and feeder cables reflected by the maps provided, pursuant to Section 3.4 C, and a schedule for Cable System or any Video Communications System construction.
[Ord. 6400, amend, 10/6/1998]
A statement of applicant's technical service and repair capabilities within the City, and customer service operations for the community.
A listing of all franchises wholly or partially owned by the applicant or applicant's business entity within the State of Wisconsin, and date of expiration for each such franchise.
A statement by the applicant indicating if a franchise held by the applicant or applicant's business entity has been revoked or denied renewal. Such statement shall also include representations that the owners, partners, operating officers, principals or principal stockholders owning more than five percent (5%) of the applicant's business entity, have not been convicted of a crime or have been placed under investigation or indictment for alleged illegal or improper activities by any state investigative agency or federal investigative or regulatory agency, including, but not limited to, the U.S. Department of Justice, Federal Communications Commission, Securities and Exchange Commission or the Federal Trade Commission.
Any information or facts requested by the Franchising Authority, which are not included in the above subsections, that are pertinent and appropriate to the evaluation and awarding of a cable television or cable-based telecommunications Franchise.
Regulatory Board Established. The License and Health Committee of the Common Council is hereby designated and established as a Cable Television System Regulatory Board.
Powers and Duties of the Regulatory Board. The duties of the Regulatory Board shall be as follows:
Resolving disputes or disagreements between Subscribers and the Grantee after investigation, should the Subscriber and the Grantee not first be able to resolve their dispute or disagreement, in which case, both parties shall submit to the Regulatory Board a written report of their respective positions with regard to the dispute or disagreement and the steps taken to resolve the matter.
Reviewing and auditing reports submitted to the City, as required by this Ordinance, and such other correspondence, as submitted to the City, concerning the operation of the Cable System or any Video Communications System, so as to insure that the necessary reports are completed and filed, pursuant to the terms of this Ordinance and the Franchise Agreement.
[Ord. 6400, amend, 10/6/1998]
Reviewing the rules set by the Grantee under the provisions of this Ordinance and the Franchise Agreement.
Assuring that all tariffs, rates and rules pertinent to the operation of the Cable System or any Video Communications System in the City are made available for inspection by the public at reasonable hours and upon reasonable request.
[Ord. 6400, amend, 10/6/1998]
Reviewing rates and recommending any rate changes to the Common Council, as provided under this Ordinance.
Reviewing of the planning and development of production and programming on dedicated access channels.
Conferring with the Grantee and advising on the interconnection of the City's Cable System with other cable and telecommunications systems.
Soliciting, reviewing and providing recommendations to the Common Council to insure compliance with this Subchapter.
Establish and administer rules and regulations governing the allocation and operation of channels for the Institutional Network.
Such other duties as the Common Council may assign.
Regulatory Board Jurisdiction and Procedures.
The continuing regulatory jurisdiction of the City shall be exercised through the Regulatory Board. The Board shall have the responsibilities and duties, as set forth in this Section and the Sections hereinabove.
The Regulatory Board shall first consider any inquiry or proceeding requiring Common Council action to be taken in regard to the Cable System or Franchise, whether upon application or request by the Grantee or any other party on its own motion and shall submit such consideration, together with the Board's recommendation to the Common Council. Items required for action by the Common Council, as referred to the Common Council by the Regulatory Board, shall be taken only after public notice of said proposed action, inquiry or proceeding is published in the official newspaper having general circulation and a copy of said notice is served upon the Grantee. The Grantee shall have an opportunity to respond at the hearing and/or in writing. Members of the public shall have an opportunity to respond or comment in writing on the proposed action and appear at said proceeding or hearing; however, such proceeding or hearing shall be set no later than ninety (90) days after notice to the Grantee and the Common Council shall act upon this proceeding within one hundred eighty (180) days of the notice of the proceeding or hearing, unless such time is extended by agreement between the City and the Grantee.
The public notice required by this Section shall state clearly the action or proposed action to be taken, the time provided for response, including response by the public, the person or persons in authority to whom such responses shall be addressed and such other procedures as may be specified by the Common Council. If a hearing is to be held, the public notice shall give the date, location and time of such hearing and items required for hearing. The Grantee is a necessary party to any hearing conducted in regard to its operations.
The Grantee shall not be excused from complying with any of the terms and conditions of the Franchise by any failure of the City upon one or more occasions to insist upon or to seek compliance with any such terms or conditions.
The cost of any successful litigation incurred by the City to enforce provisions of this Section, or in relation to the Franchise, shall be reimbursed to the City by Grantee. Such costs shall include, but not be limited to, filing fees, costs of deposition, discovery and expert witnesses, all other expenses of suit and reasonable attorney's fee.
Community Communications Corporation Support. Grantee shall assist in supporting a non-profit local programming corporation known as the West Allis Community Communications Corporation (WACCC). Said support shall include, but not be limited to, financial, technical, maintenance, capital and in-kind support. Said support shall be used by the WACCC for the purpose of corporate operations and for production and cablecasting of programming.
Oversight by City of Community Communications Corporation. The City shall be granted oversight responsibilities of aspects of the operation of the Community Communications Corporation. These oversight responsibilities shall include, but not be limited to, review of budget documents, financial records and short and long-range plans, including goals, objectives and proposed activities.
Notice to Franchisee. Except as provided in Section 15.101 of this Ordinance, the City shall not take any final action with regard to the evaluation, modification, renewal, revocation or termination of the Grantee's Franchise, unless the City has:
Provided Grantee with notice and opportunity to cure any Franchise violation or take any curative action thereto;
Called a meeting for the purpose of taking such action, as specified above;
Complied with the Public Notice provisions of the Wisconsin Open Meetings Law; (secs. 19.83 of the Wisconsin Statutes, et. seq.)
Advised the Grantee, in writing, by either certified United States Mail or delivery by hand, at least fourteen (14) days prior to such meeting, as to its time, place and purpose;
Published a notice at least once, ten (10) days before the meeting in the West Allis Star; and,
The Grantee and any interested Person are given an opportunity to be heard at such meeting.
Application Required. The Franchising Authority shall require Grantee to file a letter of application, in such form as Grantee deems appropriate, for modification of the Franchise Agreement.
The Franchising Authority shall review such application for modification, based on the terms and conditions set forth by Section 625 of the Cable Communications Policy Act of 1984, as now or hereinafter amended, or any successor provision. The Franchising Authority may, based upon the findings of its review, approve Grantee's request for modification.
Justification, Commercial Impracticability. The application for modification to the Franchise Agreement shall state Grantee's justifications for such proposed modifications. Grantee shall indicate within such justifications any projected technical, financial and service impacts, which such proposed modifications intend to remedy. Where Grantee has indicated commercial impracticability as a justification for modification, Grantee shall show any changes in conditions arising since the enactment of the Franchise Agreement; that such change in conditions was not foreseeable at the time of enactment of the Franchise Agreement; and, that such change in conditions was beyond the control of the Operator. The burden of proof to justify a claim of commercial impracticability shall be borne by the Grantee.
Modification of Public, Educational, and Governmental Access. The City may prohibit award of any proposed modification to the Franchise pertaining to provision of services relating to Public, Educational or Governmental Access.
Negotiations. If, upon the Franchising Authority's completion of review of the application for modification of the Franchise, the Franchising Authority has not made a final determination regarding the merit of the requested modifications, the Grantee may request negotiations with the Franchising Authority for modification of service requirements, in accordance with Section 625 of the Cable Communications Policy Act of 1984, as now or hereinafter amended. Franchising Authority shall permit such negotiations to proceed only in such cases where the Grantee agrees to maintain mix, quality and level of services originally required by the Franchise at the time in which it was granted. Franchising Authority and Grantee shall have one hundred twenty (120) calendar days to negotiate and approve such modifications, unless Grantee and Franchising Authority agree to an extension of time.
Procedures for Approval or Denial.
Upon receipt of the request for modifications by the Grantee, the Franchising Authority shall indicate its decision to the Common Council to grant or deny Grantee's request for modifications within one hundred twenty (120) days of its receipt of the modification request. Grantee and Franchising Authority may mutually agree to extend said one hundred twenty (120) day time period. The Franchising Authority shall state its decision for approval or denial of the request for modifications at a public meeting of the Common Council. No modifications to the Franchise shall be approved without the express approval of the Common Council.
If the Franchising Authority or the Common Council deny the Grantee's request for modifications, the Grantee may commence an action for judicial review of the Franchising Authority's determination, in accordance with the process set forth in Sections 625(b)(2) and (b)(3) of the Cable Communications Policy Act of 1984, as now or hereinafter amended, or any successor provision.
Costs Incurred With Modification or Transfers of Franchises.
Upon the application or notice of modification request by a Grantee, the Franchising Authority shall prepare an estimate of its costs to consider the modification. The costs may include, but shall not be limited to, reasonable fees for any or all of the following professionals: an attorney, an accountant, an engineer, municipal staff and other professionals with expertise or training relating to the modification. The Franchising Authority shall provide to the Grantee the estimate of fees and costs within thirty (30) days of the Grantee's application or notice.
The Grantee may appeal the Franchising Authority's estimate to the appropriate City official to initiate the modification request based upon the estimated expenses or withdraw the modification request. In no event shall the liability for actual costs and fees exceed the estimate by ten percent (10%) and in no event shall the Grantee's liability for the payment of fees and expenses exceed fifty percent (50%) of the preceding year's Franchise Fee payment. The fifty percent (50%) figure is intended as an agreed-upon cap to the expenses by the parties and not a claim against the Franchise Fee by the Grantee.
Should the Franchising Authority initiate a request for modification of the Franchise, each party shall bear their own costs and fees.
The City shall recover from the buyer, transferee, delegee or assignee, the reasonable direct costs incurred in the consideration of the Grantee's request for purchase, transfer, delegation or assignment of the Franchise. Such costs may include, but shall not be limited to, the fees for professionals with expertise or training, as may be needed by the Franchising Authority in its evaluation.
Schedule for Evaluation. The Franchising Authority shall evaluate performance of the Grantee for purposes of determining compliance with the Ordinance and Agreement and to provide for consideration of technological changes in the state of the art of cable television and Cable-Based Communications. The Franchising Authority and the Grantee shall hold performance evaluation sessions within ninety (90) days of the third anniversary of the Grantee's award of the Franchise, every two (2) years thereafter on the anniversary date, and at least nine (9) months prior to the expiration of the Franchise, and as required by State and Federal law. Evaluation meetings shall be open to the public. Franchising Authority shall be responsible for notifying the Grantee, in writing, at least sixty (60) days in advance, of each of the specified performance evaluation sessions.
The Franchising Authority may hold special evaluation sessions at any time during the term of the Franchise at the request of the Franchising Authority or the Grantee.
Information Required of Grantee for Evaluation. Upon request by the Franchising Authority during the evaluation of Grantee's performance, Grantee shall cooperate fully with the Franchising Authority and provide such documents, records, schedules, logs, reports, memoranda, ledgers and other pertinent information which the Franchising Authority may request in order that a reasonable review of the Grantee's system operations can be performed. The City may inquire in particular whether the Grantee is supplying at a level and variety of services equivalent to those being generally offered at the time in the industry in comparable market situations.
[Ord. 6400, amend, 10/6/1998]
Topics for Discussion During the Evaluation Process. Topics which may be discussed during the evaluation process or at evaluation sessions shall include, but not be limited to, the following: Service rate structures, free services, discounted services, Franchise Fees, penalties, applications of new technologies, repair and maintenance services, billing procedures, service provided by Customer Service Representatives, system performance, programming offered, programming desired by Subscribers, Subscriber complaints, rights of privacy, above and below-ground extension of cables and equipment, modifications to the Franchise, rulings of the Federal Communications Commission, Federal and State Courts of Law and Grantee or City rules. Franchising Authority shall provide Grantee with a listing of topics for discussion fourteen (14) calendar days prior to the date of a scheduled evaluation session.
Public Notice. Franchise evaluation sessions and meetings shall be conducted in accordance with the Wisconsin Open Meetings Law and shall be in accordance with provisions established in Section 15.08 above.
In addition to the notice provision of Section 15.08 hereof, Grantee shall:
Be obligated to notify its Subscribers of all evaluation meetings or sessions on a local origination channel on the system no less than two (2) times between the hours of ten o'clock (10:00) A.M. and ten o'clock (10:00) P.M. for four (4) weeks prior to the week preceding the scheduled evaluation meeting or session, and five (5) times between the hours of five o'clock (5:00) P.M. and ten o'clock (10:00) P.M. for seven (7) consecutive days preceding the meeting or session; or,
Grantee may also give notice of scheduled Franchise evaluation meetings or sessions through an insert included with the billing statement or a notice printed on the billing statement.
Franchise Evaluation - Cable System Testing. In the event that the evaluation of the Grantee's performance under the Franchise reveals evidence indicating questions concerning performance of the Cable System, the Franchising Authority may require the Grantee to conduct physical, electrical and electronic tests and assessments to locate the source of system deficiencies and to specify remedies to correct such deficiencies. The Grantee shall fully cooperate with the Franchising Authority in performing such testing and shall prepare results and a report, if requested, within thirty (30) days after such written notice. Such report shall include the following:
[Ord. 6400, amend, 10/6/1998]
A statement of the problem, complaint or suspected deficiency which prompted the need for testing and assessment;
The system component or components that were tested;
Date, place and time where such testing took place;
Equipment used in the testing and procedures employed to carry out such tests or assessments;
Methods used to remedy identified problems or deficiencies and the status of resolution of such problems or deficiencies;
Any additional information regarding said testing or assessment which may be required.
The Franchising Authority may utilize an independent consultant with experience and knowledge of cable television systems engineering, who has no affiliation with the Grantee, to supervise Grantee in conducting tests and assessments of the cable system. The engineer shall sign all records of tests and assessments conducted upon the Cable System, develop a report based on the findings of such tests and assessments and provide the Common Council with a report interpreting the results of the tests and assessments, to include recommendations of actions which would remedy problems or deficiencies uncovered during the course of such testing and assessments. Where said testing determines that problems, deficiencies or violations of the Franchise exist, Franchising Authority shall provide Grantee with notice of said problems, deficiencies or Franchise violations and provide an appropriate time period for the Grantee to cure said problem, deficiency or violation.
The Franchising Authority's rights under this Section shall be limited to requiring tests, assessments and reports concerning subjects and characteristics based on complaints, suspected deficiencies or other evidence, when and under such circumstances as the Franchising Authority has reasonable grounds to believe that such complaints, suspected deficiencies or other evidence require that tests be performed to protect Cable System or any Video Communications System Subscribers against substandard cable service.
Costs Related to Franchise Performance Evaluation. The costs of conducting Franchise Performance Evaluation sessions shall be equally divided between the Franchising Authority and the Grantee, as stated within the Franchise Agreement. Such costs may include, but not be limited to, staff time and resources, reasonable fees for professional cable television consultants, engineering personnel, accountants and legal assistance.
[Ord. 6400, amend, 10/6/1998]
Where testing of the Cable System or any Video Communications System has been conducted by the Grantee and a consultant selected by the Franchising Authority, and it is the opinion of the Franchising Authority that such testing and assessment be conducted a second time, such costs shall be borne by the Franchising Authority. If the results of such repeated tests and assessments indicate that Grantee did not follow proper testing procedures, as prescribed by the FCC or the cable industry, or indicated that faults uncovered by repeated tests and assessments were caused by the Grantee, then the costs of such repeated tests and supervisory consulting shall be borne by the Grantee.
Initiation of Proceedings by Franchising Authority. The Franchising Authority may, at its discretion, commence renewal proceedings during the six (6) month period beginning with the thirty-sixth (36th) month before the expiration date of the Franchise. Should the Franchising Authority seek to initiate renewal proceedings, the Franchising Authority shall notify the Grantee, in writing, with delivery by certified United States Mail, its desire to commence proceedings, which affords the public residing in the Franchise Area the opportunity to identify future cable-related needs and interests, and to review the performance of the Grantee during the Franchise term. Said notification shall not be made any later than the end of the thirtieth (30th) month prior to the expiration date of the Franchise.
Initiation of Proceedings by Grantee. Unless a request for Franchise renewal proceedings is initiated by the Franchising Authority, the Grantee shall be responsible for providing notification, in writing, to the Franchising Authority, delivered by certified United States Mail, that it requests consideration of renewal of the Franchise. Such notification shall be sent no sooner than the beginning of the thirty-sixth (36th) month prior to the expiration date of the Franchise and not any later than the end of the thirtieth (30th) month prior to the expiration date of the Franchise to preserve the Grantee's formal renewal rights under Section 626 of the Cable Communications Policy Act, as now or hereinafter amended. This Section shall not prohibit the Grantee from requesting Franchise renewal before the beginning of the thirty-sixth (36th) month prior to the expiration date of the Franchise, nor shall this Section prohibit the Franchising Authority and Grantee from engaging in an informal renewal process.
Application Fee for Renewal. The Grantee shall provide to the Franchising Authority, with the request to initiate Franchise renewal proceedings, a non-refundable fee to be determined by the Common Council by Resolution, which shall be applied by the Franchising Authority to solely defray costs incurred by the Franchising Authority in initiating renewal procedures, as outlined by Section 626 of the Cable Communications Policy Act of 1984, as now or hereinafter amended, or any successor provision.
Review Proceedings.
[Ord. 6400, amend S. 15.114(C)(D)(E), 10/6/1998]
The Franchising Authority shall conduct a series of public meetings and hearings, which shall address the following objectives:
If the Grantee has formally requested consideration of renewal of the Franchise in accordance with the conditions established in Section 15.112, such public meetings and hearings shall be commenced not later than six (6) months after such notice of request has been submitted to the Franchising Authority.
During the course of such meetings and hearings, the Franchising Authority shall receive comments and testimony from the public with regard to the performance of the Cable System or any Video Communications System, and the extent to which community cable-related needs and interests were met. At any time during these proceedings, the Franchising Authority may determine whether or not the Grantee was in reasonable compliance with the requirements set forth in the Franchise Ordinance or Agreement. The Franchising Authority may also seek outside independent evaluations of the physical state of the Cable System and of the payment of Franchise Fees, in accordance with the terms and conditions of the Franchise Agreement, as a part of its overall assessment of the performance of the Grantee.
Upon completion of the public meetings and hearings which have been called by the Franchising Authority, the Franchising Authority shall request the Grantee to respond to a Request For Proposal for renewal of the Franchise by a specified date. Grantee shall cause the proposal to the delivered to the Franchising Authority by certified United States Mail with a number of copies of the proposal to be provided, as set forth in the Request For Proposal.
The proposal submitted by the Grantee shall, to the extent allowed by Section 624 of the Cable Communication Policy Act of 1984, as now or hereinafter amended, or any successor provision, provide such material, as required by the Franchising Authority, including, but not limited to, System improvements, services to be provided and technical specifications to be met.
Upon receipt of the proposal, the Franchising Authority shall provide notice to the public that the proposal has been received and that a copy of the proposal shall be available for public review at City Hall.
The Franchising Authority shall, during the one hundred twenty (120) day period from the date of the receipt of Grantee's proposal, determine whether the Franchise shall be renewed, or if a preliminary assessment shall be made which would deny Grantee's request for renewal of the Franchise. The Franchising Authority shall take into consideration the extent to which it believes the Grantee to be in substantial compliance with the terms and conditions of the existing Ordinance and Agreement and the degree to which Grantee has addressed cable-related community needs and interests for the present and future in its proposal. Based on its review during the one hundred twenty (120) day period, Franchising Authority shall decide whether to renew the Franchise and enter into negotiations with Grantee to determine terms and conditions for a new Franchise Agreement.
Should the Franchising Authority issue a preliminary assessment that the Franchise should not be renewed, the Franchising Authority shall commence an administrative proceeding, subject to the notice provisions, as set forth hereinabove. Such administrative proceeding shall be subject to the procedures and criteria, as established by Section 626 of the Cable Communications Policy Act of 1984, as now or hereinafter amended, or any successor provision.
Notwithstanding any provision of this section, the Common Council may suspend, by majority vote at a regularly scheduled meeting, the renewal provisions contained herein, and direct the Mayor, or a Committee to be appointed by the Mayor, or any other City officer, independent contractor or employee, to negotiate the terms and conditions of a renewal Franchise Agreement with the Grantee. Such suspension of renewal provisions shall be subject to such terms, conditions and limitations, as the Common Council may impose at the time of adoption of said Resolution, and the Act.
Consent Required.
[Ord. 6400, amend, 10/6/1998]
Except as provided for in Section 617(e) of the Cable Act (47 CFR 537), and in Subsection B hereof, no Cable System or integral portion or element of such system, or any other real or integral property, which is a part of said system, shall be sold, transferred, mortgaged, pledged, leased, sublet, sold and leased back, or otherwise encumbered for any purpose whatsoever, nor shall title thereto, either legal or equitable, or any right or interest therein, pass through transfer, assignment or delegation, to any party other than to an affiliate without the prior written consent of the City expressed by a resolution of the Common Council and then only under such conditions as the Common Council may establish. Such consent shall not be withheld by the City without showing of cause. In the absence of extraordinary circumstances, the City shall not approve transfer, delegation or assignment of ownership of the Cable System or any Video Communications System prior to substantial completion of construction or reconstruction of the proposed system.
In the event that Grantee seeks to mortgage, hypothecate, pledge, grant a security interest in or otherwise encumber the Cable System or any Video Communications System or any portion thereof for collateral to secure any indebtedness, this Ordinance shall not be deemed to permit the Grantee to grant any such interest in the Franchise to any lender or lenders holding the Cable System or any Video Communications System as debt collateral. The Grantee shall be permitted to mortgage, hypothecate, grant a security interest in, or otherwise encumber any other assets constituting all or part of the Cable System or any Video Communications System, upon the terms and conditions set forth hereinafter. Any instrument granting such an interest shall provide that prior to any foreclosure contemplated by said lender or lenders on any Cable System or any Video Communications System mortgage or security interest, the lender or lenders shall give no less than thirty (30) days prior notice to the Franchising Authority in advance of any action of foreclosure. Said instruments shall also acknowledge the right of the City to acquire the assets of the system, pursuant to this Ordinance. Upon foreclosure, the lender or lenders shall notify the Franchising Authority of the firm, firms, persons, parties, partnerships or corporations that will operate the Cable System or any Video Communications System, on behalf of the lender or lenders, and said firm, firms, persons, parties, partnerships or corporations shall be automatically granted an interim Franchise, not to exceed one hundred eighty (180) days in length, to operate the Cable System or any Video Communications System. Said interim Franchise shall not be renewable or extendable.
Standards for Review. No such sale, transfer, delegation or assignment shall be approved, unless the proposed buyer, transferee, delegee or assignee is found by the Franchising Authority to possess the legal, financial, and technical capacities and experience reasonably deemed necessary by the Franchising Authority in order to hold a Franchise.
Notice of Sale, Transfer, Delegation, or Assignment by Grantee. In the event of a proposed sale, transfer, delegation or assignment of ownership of more than five percent (5%) of the ownership of the Cable System or any Video Communications System to a Person or group of Persons, as defined herein, none of whom owned or controlled five percent (5%) or more of such right of control, singularly or collectively, on the effective date of this Ordinance, Grantee shall, prior to such proposed sale, transfer, delegation or assignment, file with the City Clerk FCC Form 394 or its successor form. Franchising Authority and Grantee shall have one hundred twenty (120) calendar days from the date of the filing of the FCC 394 form to review said FCC 394 form, unless Grantee and Franchising Authority agree to an extension of time.
[Ord. 6400, amend, 10/6/1998]
Period of Review. Upon notification by the Grantee of a proposed sale, transfer, delegation or assignment of ownership of the Cable System or any Video Communications System, the Franchising Authority shall have one hundred twenty (120) days from the date of receipt of such notice to act upon any request for approval of such sale, transfer, delegation or assignment, that contains or is accompanied by such information as is required by the Franchising Authority, in accordance with this Ordinance, and as required by the FCC, in accordance with its regulations. If the Franchising Authority fails to render a final decision on the request within one hundred twenty (120) days, such request shall be deemed granted, unless the requesting party and the Franchising Authority agree to an extension of time. Such additional time for review shall be allowed, upon agreement of a specific extension period by the Franchising Authority and the Grantee. In the event that there is a finding or pending proceeding against the Grantee pertaining to a Franchise violation, such finding or proceeding must be concluded prior to review of said request.
[Ord. 6400, amend, 10/6/1998]
Payment Required. No such approval of any agreement to sell, transfer, delegate or assign shall be granted by the Franchising Authority, unless all moneys accruing to the City, as of the date of sale, transfer, delegation or assignment, whether by way of fees, penalties, damages, or otherwise, have first been paid in full, or is guaranteed to be paid, out of the consideration received by the buyer, transferor, delegator or assignor for such transaction.
Information Required. Upon the filing of FCC Form 394 or its successor or within 15 days of the Commencement of an intent to sell, transfer, delegate, or assign the Cable System or Video Communications System, the proposed buyer, transferee, delegee or assignee of the Cable System shall file with the City Clerk the following information for the Common Council to review:
[Ord. 6400, (amend S. 15.126(C)(D)(J)(L)(M)), 10/6/1998]
Listing of proposed buyer, transferee, delegatee or assignee, and the names of principals, investors and shareholders with an interest of more than five percent (5%) in the entity which seeks to obtain the Franchise.
A description of ownership qualifications.
A description of the Cable System or any Video Communications System operation experience.
A description of qualifications regarding character of the Person or group of Persons seeking control of the Cable System or any Video Communications System through this request.
Corporate or business formation documents.
Financing documents, including a bank commitment letter or, if proposed buyer, transferee, delegee or assignee is a limited partnership, then copies of proposed prospectus agreement or offering circular, including a completed S-1 Form, or its successor form, as required by the U.S. Securities and Exchange Commission.
Historical financial statements, including balance sheets and Profit and Loss Statements, for three (3) prior years.
Pro Forma financial statements, including growth and revenue projections, income statements, sources and uses of funds, anticipated capital expenditures, depreciation schedules and justifications, charges for proposed services, new-build commitments, rebuild commitments, service penetration rates, cash flow analyses and balance sheets.
Itemizations of Franchise modifications being requested or which will be expected for the life of the Franchise and a statement that no other Franchise modifications are currently requested.
A statement indicating technical capacity, legal qualifications and financial capability under all applicable local and state laws to own and operate a cable television system or any Video Communications System.
A time frame and basis for such time frame proposed to conclude sale, transfer, delegation or assignment and any proposed refinancing or restructuring of debt.
No such sale, transfer, delegation or assignment shall be approved, unless the proposed buyer, transferee, delegee or assignee shall have agreed in writing to comply with all of the provisions of the West Allis Cable Ordinance [this Subchapter], as amended, as well as the applicable Franchise Agreement.
Any additional information pertaining to the proposed transaction, as may be reasonably required by the City.
No such sale, transfer, delegation or assignment shall be approved, unless the proposed buyer, transferee, delegee or assignee shall have agreed in writing to comply with all of the provisions of the West Allis Cable Ordinance (this Subchapter), as amended, as well as the applicable Franchise Agreement.
Any additional information pertaining to the proposed transaction, as may be reasonably required by the City.
Acceptance of Transition. Upon approval of any sale, transfer, delegation or assignment of the Franchise, Grantee shall notify the City, by certified United States Mail, of its acceptance of the terms and conditions of the Franchise Ordinance and Franchise Agreement.
Reservation of Rights of City.
The City reserves the right, during the review process, as stated in Section 15.123, to request modifications to the Franchise Agreement that the City deems necessary to address the cable-related needs and interests of the community.
The City reserves the right to negotiate any term and condition of the Franchise before any final decision to approve the sale, transfer, delegation or assignment of the Franchise from the Grantee to another Person or group of Persons is approved by the City, in accordance with Section 15.124 of this Ordinance.
Exceptions to this Section. This section shall not apply to any sale, transfer, delegation or assignment to one or more purchasers, transferees, delegees or assignees, who are controlled by, controlling or under common control with the seller, transferor, delegator or assignor. This section shall not apply to those proposed sales, transfers, delegations or assignments of ownership of a Cable System, which are specifically excepted by the provisions of Section 617 of the Communications Act of 1934, as now or hereinafter amended, or its successor provision.
[Ord. 6400, amend, 10/6/1998]
Rights Not Waived. The consent of the City to any sale, transfer, lease, trust, mortgage or other instrument of hypothecation shall not constitute a waiver or release of any rights of the City under this Ordinance and the Franchise.
Rejection of Buyer, Transferee, Delegee, or Assignee. In the event that the Franchising Authority rejects the application for transfer of the Franchise Agreement to a proposed buyer, transferee, delegee or assignee, the Grantee may sell, transfer, delegate or assign its rights under the Franchise Agreement, notwithstanding said rejection, except that the Grantee shall remain obligated to perform, cause the performance of or guarantee the performance of all obligations of the buyer, transferee, delegee or assignee so identified.
Causes for Revocation. The Franchise may be revoked and all rights and privileges afforded to Grantee herein and within the Franchise may be revoked in the event that Grantee commits any or all of the following infractions:
[Ord. 6400, amend S. 15.131(G)(J), 10/6/1998]
Fails to complete construction or reconstruction of the Cable System, as specified by the Franchise;
Fails to provide or maintain, in full force and effect, the performance bond and liability and indemnification coverages, as required by this Ordinance or the Franchise Agreement.
Breaches or violates any material provision of this Ordinance or other valid and enforceable ordinances or regulations of the City;
Practices fraud or deception upon the City, its elected officials, employees, agents or its citizens, which actions may include any attempt to willfully evade or avoid any of the provisions of this Ordinance;
If a petition is filed by or against the Grantee under the Bankruptcy Act, or any other insolvency or creditors' rights law, State or Federal, and the Grantee shall fail to have said petition dismissed, or if Grantee declares bankruptcy, has a receiver appointed for it, makes an assignment for the benefit of creditors or has any of its property sold under execution or other legal process or seized by creditors;
If a receiver, trustee or liquidator of the Grantee is applied for or appointed for all or part of its assets.
Selling, transferring or delegating any portion of the Cable System or any Video Communications System to another Person or group of Persons without first complying with the approval process for such sale, transfer or delegation provided for in Section 15.12 hereof.
Failure to pay Franchise Fees or any other moneys required for payment by the Grantee, as a part of the terms and conditions of this Ordinance or the Franchise.
Failure to provide services as called for in this Ordinance or in the Franchise.
With respect to the Cable System or any Video Communications System within the Franchise Area or any Cable System or any Video Communications System connected to the Headend affecting the Cable System or any Video Communications System, three (3) violations by the Grantee of any orders, rulings or judgments of any local, state or federal regulatory agency or body within any consecutive twelve (12) month period, unless the Grantee is legally contesting the legality or applicability of any such orders, rulings or judgments.
Failure to receive the necessary FCC authorization within a reasonable period of time, unless such cause is directly attributable to an action or condition imposed by the City.
Notice, Time to Correct and Hearing. In the event that the Franchising Authority believes that grounds for revocation exist or have existed, the Franchising Authority may notify the Grantee, in writing, setting forth the nature and facts of such noncompliance. If, within sixty (60) days following such written notification, the Grantee has not furnished reasonably satisfactory evidence that corrective action has been taken or is being actively and expeditiously pursued, or that alleged violations did not occur, or that the alleged violations were beyond the Grantee's direct control. The Franchising Authority may, following notice of the grounds for revocation, pursuant to Section 15.104 of this Ordinance, and the holding of a public hearing with the Common Council, revoke a Franchise, pursuant to Section 15.131 of this Ordinance.
Option of City to Acquire Cable System.
In the event that a Franchise has been revoked by the City, the City shall, to the extent then permitted by existing law, have the option to acquire at an equitable price or fair market value, all the assets of the Grantee's operations within the City. The City may exercise the option granted herein to purchase the Cable System, including, but not limited to, all physical assets comprising the system of equipment, fixtures and related material necessary for operation of the Cable System, including all or any portion of any such physical assets located, which are integral to the operation of the Cable System outside of the corporate limits of the City, all books and records, private easements and assignable contracts. Unless some later date is agreed to by the Grantee, the City shall exercise such option within one year from the date of the revocation of the Franchise or the entry of the final judgment by a court reviewing the question of the City's revocation, or the entry of a final order upon appeal of same. Upon determination by the City that it intends to purchase the assets of the Grantee's Cable System, the City shall notify the Grantee, by certified United States Mail, of its desire and intent to acquire the assets of the Cable System from the Grantee.
In the event the determination of fair market value cannot be negotiated or determined, said value shall be determined by an impartial arbitration procedure, pursuant to Chapter 788 of the Wisconsin Statutes, wherein the Grantee and the City shall each choose an arbitrator and the arbitrators chosen shall choose the third, and the valuation determined by said arbitrators shall be considered the fair market value at which the system shall be offered to the City. The determination of the value of the system shall be decreased by the amount of any damages sustained by the City in connection with revocation or expiration, including without limitation, payment made by the City to another person or entity to operate the Cable System for a temporary period after revocation. The cost of the arbitration procedure shall be shared equally by the City and Grantee.
The City shall have ninety (90) days to exercise the right of first refusal to purchase the Cable System, said ninety (90) days commencing on the date the fair market value of the Cable System is determined either through negotiation or the arbitration procedure. In the event that the City determines not to exercise its right of first refusal, it shall not unreasonably refuse to renew or grant a cable television franchise during a reasonable interim period. While transfer of the Cable System and Franchise is being negotiated, arranged or ordered, the Grantee may be required to continue service to the public, unless, for reasons beyond the control of the Grantee, said operation will be economically unfeasible for the Grantee.
Where the City has elected to purchase ownership of the assets of the Grantee's operations in the Franchise Area, the City shall, unless the Grantee shall agree to some other terms, pay, in cash to the Grantee, the price of such assets. Title to the Cable System or its designated assets shall pass to the Grantor upon such payment.
Option of City to Require Sale of Cable System. In the event that a Franchise has been revoked by the City, the City shall, to the extent then permitted by existing State and Federal law, require sale of the cable system, at the fair market value determined on the basis of the Cable System valued as a going concern, but with no value allocated to the Franchise itself by Grantee to a successor Person or group of Persons, who, upon approval of the City under the provisions of Section 15.08, as stated hereinabove, shall be granted a Franchise to operate a Cable System within the Franchise Area.
Removal of Cable System Plant and Equipment. If, upon revocation of Grantee's Franchise, the City does not elect to purchase the Cable System, and no sale of the Cable System is made to a successor grantee, then the City shall require that Grantee terminate and dismantle the Cable System, including its wiring, equipment, Headend facilities, if located within the City limits, and related appurtenances. Upon completion of termination and dismantling of the Cable System, Grantee shall, upon direction by City, restore any property, public or private, to the condition in which it existed prior to erection or construction of the Cable System, including any improvements made to such property subsequent to construction of the system. Restoring of City property, including all Public Ways, as defined herein, easements, parks, parkways and other public lands, shall be in accordance with the directions and specifications of the City and all applicable laws. Grantee shall restore said Public Ways and properties at its expense.
Revocation of Multichannel Video System Franchise. In the event that the Franchise of a Multichannel Video Provider has been revoked, and said Provider does not own system plant located in municipal right-of-way, said Multichannel Video Provider shall cease operations no later than forty (40) days after written notice of a final order of revocation has been sent by the City.
[Ord. 6400, 10/6/1998]
Lesser Sanctions. Nothing shall prohibit the City from imposing lesser sanctions or censures than revocation for violations of provisions of this Ordinance, including the shortening of the Franchise term (not to exceed five (5) years) for substantial or repeated violations.
[Ord. 6400, 10/6/1998]
Continued Provision of Service. In the event of revocation of the Franchise, expiration of the Franchise or transfer of the Franchise between the existing grantee and a successor grantee, the existing Grantee shall continue to provide cable service to its Subscribers in the same manner and with the same programming, customer service and repair capabilities as it provided prior to the change in status of the Franchise. The right of Grantee to operate the Cable System or any Video Communications System in the event of revocation, expiration or transfer of the Franchise shall be considered by the Franchising Authority to be granted on basis not to exceed six (6) months or until the transfer or sale of the Franchise to a successor Grantee is completed and approved by the City or the Cable System or any Video Communications System plant is removed, pursuant to Section 15.135 hereof.
[Ord. 6400, 10/6/1998]
Consent Required for Changes in Service. After the filing of FCC Form 394, as provided for in Section 15.123, Grantee shall not:
Initiate any changes in the physical Cable System plant, other than routine repairs and maintenance without the express consent of the City;
If the Grantee changes its video programming services, Grantee shall provide the Franchising Authority with thirty (30) days advance written notice of any change in Channel assignment or in the video programming service provided over any such Channel and inform Subscribers via written notice that comments on programming and channel position changes are being recorded by a designated office of the City. Grantee may, upon thirty (30) days advance notice to the Franchising Authority, rearrange, replace or remove a particular cable service required by the Franchise if:
Such service is no longer available to the Grantee; or,
Such service is available to the Grantee only upon the payment of a royalty required under Section 801(b)(2) of Title 17, United States Code, which the Grantee can document as being substantially in excess of the amount of such payment required on the date of the Grantee's offer to provide such service and has not been specifically compensated for through a rate increase or other adjustment; and,
Gross Revenues obtained by the Cable System are decreased, Grantee shall be required to obtain the express consent for such changes by the Franchising Authority prior to implementation of any or all proposed changes of this nature.
Amount, Payment and Required Information. During the term of each Franchise, Grantee shall pay to City an amount equal to the maximum percent per year of Grantee's annual gross revenue permitted by law. The maximum percent shall be determined annually on September 1 of each year. In the event of a change in the maximum percent to be paid, such change shall become effective on the succeeding January 1.
Franchise Fees shall be paid monthly and delivered to the City Clerk either by hand or by certified United States Mail. Grantee shall file within fifteen (15) days after the expiration of the prior month, a written statement signed by the Comptroller of the Grantee identifying in detail the sources and amounts of gross revenues received by Grantee during the preceding month for which payment is made. Such sources and amounts shall include, but not be limited to, the following items:
Revenues from basic services.
Revenues from expanded Basic Services.
Revenues from Interactive, Pay-Per-View and Video-On-Demand services.
Revenues from Premium Channel services.
Revenues from Installations, disconnections, trip charges and other repair services.
Revenues from Converter boxes, remote control units and other related equipment.
Revenues from advertising sources and published materials.
Revenues from Home Shopping Channels.
Revenues from specific service tiers.
Revenues from Leased Access Channels, studio and studio equipment rentals.
Revenues from Cable-Based Communications, including cable modems and Internet access fees.
[Ord. 6400, amend, 10/6/1998]
Credits for bad debts.
Credits for refunds.
The statement shall include information regarding the aggregate number of Subscribers on each service tier, including an aggregate number for all premium Channels, with no single service individually identified, the rate charged for each tier, the number of total Subscribers, the total number of newly connected Subscribers and the total number of disconnected Subscribers.
Filing of Annual Report Required.
The Grantee shall file within ninety (90) days following the conclusion of the Grantee's fiscal year, two (2) copies of an annual report prepared and audited, at Grantee's expense, by an independent Certified Public Accountant, clearly showing the yearly total gross revenues. Said report shall be prepared according to generally accepted accounting standards by the Financial Accounting Standards Board (FASB). If Grantee is a publicly-held corporation, Grantee shall also include the report to its stockholders.
Said annual report shall contain a listing of all of its directors, officers and shareholders who own directly or indirectly, at least five percent (5%) of the stock in the corporation of which the Grantee is an entity. If the Grantee is held by a partnership, the annual report shall contain a list of partners who control a stake of at least five percent (5%) of the interest in the partnership.
In the event that the Grantee is a publicly-traded stock company, the filing by the Grantee with the Franchising Authority of a copy of the Annual Report to stockholders shall constitute compliance with the provisions of this Section.
Said annual report shall also include an income statement identifying revenues, expenses and income applicable to its operations under said Franchise during the fiscal year or fraction thereof.
Audit of Franchise Fees. The Franchising Authority shall have the right to inspect Grantee's income records, worksheets, notes, journals, ledgers and other such appropriate and relevant financial records. The Franchising Authority shall have the right of audit and agreed upon procedures and the right to require recomputation of any amounts determined to be payable under this Section. The Franchising Authority shall provide Grantee with no less than thirty (30) calendar days notice of the Franchising Authority's intent to conduct an inspection of Grantee's financial records. Grantee shall comply with the request of the Franchising Authority and make available all such records, as are reasonably required, at a location which the Franchising Authority has agreed to. In the event that certain necessary records or documents cannot be made available at the location agreed to by the Franchising Authority, Franchising Authority may, at its option, send its designee to the location where Grantee has stored such records. The Grantee shall pay for all reasonable travel expenses incurred by the Franchising Authority or its designee.
Any additional amount due as a result of such audit or agreed upon procedures shall be paid within thirty (30) days following written notice to the Grantee by the Franchising Authority, which notice shall include a copy of the audit report or agreed upon procedures report. The cost of said audit or agreed-upon procedures shall be borne by the Grantee if it is properly determined by an independent auditor chosen by the Franchising Authority and Grantee that the Grantee's annual payment due to the City for the preceding year is increased by more than five percent (5%); otherwise, such costs shall be borne by the Franchising Authority.
Delinquency Charge. In the event that any Franchise payment or recomputed amount is not made on or before the applicable dates heretofore specified, interest shall accrue from the date of the required submittal at a monthly rate of one and one-half percent (1-1/2%).
Deduction of Sales Taxes. Sales taxes or other taxes levied directly on a per-subscription basis and collected by the Grantee shall be deducted from the local annual gross revenues before computation of sums due the City is made.
Statement Due Upon Expiration or Revocation. In the event that the Franchise is revoked or expires, Grantee shall file with the Franchising Authority, within thirty (30) days of such revocation or expiration, a statement clearly indicating the Gross Revenues received by Grantee since the end of the previous fiscal quarter. Grantee shall pay the Franchise Fees for the period from the end of the previous fiscal quarter prior to revocation or expiration, to the date upon which final transfer or sale of the system occurs within thirty (30) days of the date of final transfer or sale. Grantee shall submit such documentation with the final Franchise Fee payment, as is set forth in Section 15.151 hereinabove. Grantee shall not be responsible for payment of Franchise Fees from the date upon which services provided by the Grantee have ceased.
Rights of Recomputation. No acceptance of any payment by the City shall be construed as a release or as an accord and satisfaction of any claim the City may have for further or additional sums payable as a franchise fee under this Section or for the performance of any other obligation of the Grantee.
No Limitation of Liability. Nothing in this Franchise shall be construed to limit the liability of Grantee for all applicable federal, state and local taxes. Payment of the Franchise Fee by Grantee to City shall not be considered in the nature of a tax or assessment, but shall be in addition to any and all taxes and assessments which are now or hereinafter required to be paid by any law to the City.
Requirement to Maintain Specific Books and Records. Grantee shall maintain all records pertaining to the operation of the Cable System or any Video Communications System in a manner specific to the Franchise Area. Grantee shall not maintain its only records concerning the Cable System or any Video Communications System within the Franchise Area in aggregate form which commingles such records with those of Cable Systems or any Video Communications System in other communities to the extent that Grantee's records for the Franchise Area cannot be separately distinguished. All records pertaining to Subscribers, Cable System or any Video Communications System operations and finances of the Grantee shall be maintained in a local office or a regional office that is no more than one hundred (100) miles from the corporate offices of the City.
Records and Books Stored at Remote Locations. Where Grantee is unable to locate books and records specific to the Franchise Area at a location which is either within the City of West Allis or within the one hundred (100) mile restriction, Grantee may locate such books and records at a remote location which is set forth by Grantee with the provision that in the event that the Franchising Authority, or its designee, requests to inspect such records, Franchising Authority shall provide no less than seven (7) calendar days notice to Grantee to inspect such records. Grantee shall pay for all reasonable travel expenses incurred by all personnel of the Franchising Authority, or its designee.
Records Required of Grantee. Grantee shall maintain records regarding certain aspects of its operations, including, but not limited to: Subscriber telephone calls and abandonment rates, Subscriber complaints regarding delivery and reception of cable service, Subscriber Installations and disconnections, partial and total system outages and their causes, Cumulative Leakage Index (CLI) testing records, Headend equipment proof-of-performance certificates and equipment testing results in accordance with FCC technical standards, notifications of rate or fee increases, rules, regulations and conditions established for the construction, operation, administration and maintenance of the Cable System or any Video Communications System, and other such records which are relevant to assessment of Grantee's performance under the Franchise Agreement and this Ordinance.
[Ord. 6400, amend, 10/6/1998]
Records to be Provided to City. Grantee shall provide the Franchising Authority with the following records:
Grantee shall file annually with the City Clerk not later than three (3) months after the end of its fiscal year during which it accepted this Franchise and within three (3) months after the end of each subsequent fiscal year, two (2) copies of a total facilities report, setting forth the total physical miles of plant installed or in operation during the fiscal year and a map showing the location of same.
Grantee shall provide the Franchising Authority with a quarterly summary of system outages and requests for repairs. Said reports shall indicate the date upon which the outage occurred, the area within the Franchise Area which was affected, the duration and cause of the outage and the date and time of resolution.
Grantee shall file, bi-annually with the Franchising Authority a copy of its Proof-of-Performance and Cumulative Leakage Index reports conducted in compliance with FCC Technical Standards for Cable Television Systems under 47 CFR 76.600, Subpart K, et. seq.
Grantee shall file a monthly summary of complaints tendered by Subscribers to the Grantee. Such summary record shall include the number of complaints received, an identification of the substance of the complaint, the method or methods by which the complaint was resolved and the date of resolution. Grantee shall also provide the Franchising Authority with a monthly report on telephone statistics for all telephone lines serving the Franchise Area. Said reports shall contain the number of calls received per day from the Franchise Area, abandoned calls, the time for which any Subscriber call was placed on hold and the rate at which callers received a busy signal.
Grantee shall provide the Franchising Authority with an annual listing of all reports, petitions, applications and correspondence generated from its local office filed with the FCC, which are not a part of Grantee's public inspection file, the United States Federal Trade Commission, or any other federal agency which has jurisdiction over the operation of Grantee's Cable System or any Video Communications System. Such listing shall be filed with the Franchising Authority no later than thirty (30) days following the close of the calendar year. The Franchising Authority may request a copy of any of the documents referred hereto at such time that it determines that such documents would be of benefit to the City's understanding of the operation of the Cable System or any Video Communications System.
[Ord. 6400, amend, 10/6/1998]
Grantee shall file annually with the City Clerk not later than three (3) months after the end of each subsequent fiscal year, a copy of the following supplemental information:
If a nonpublic corporation, a list of all current shareholders and bondholders, both of record or beneficial. If a public corporation, a list of all shareholders who individually or as a concerted group hold five percent (5%) or more of the voting stock of the corporation.
A current list of all Grantee's officers and directors, including addresses and telephone numbers.
Copies of all pertinent agreements or contracts, except programming and confidential agreements that specifically prohibit disclosure, and including pole use agreements entered into by Grantee during the fiscal year in the conduct of its business under a franchise granted hereunder.
The names and both business and residential addresses and phone numbers of the Cable System or any Video Communications System resident manager and engineer.
[Ord. 6400, amend, 10/6/1998]
Two (2) copies of all types of Subscriber agreements. Copies of individual Subscribers' agreements are not to be filed with the City.
Copies of all rules and regulations promulgated by the Grantee during the fiscal year in the conduct of its business, in accordance with this Ordinance.
A copy of the annual report(s) of the parent firm(s) which own an interest of more than five percent (5%) or more of the voting stock of the Grantee and such other annual report(s) of subsidiaries or divisions of the parent firm(s), as the City deems necessary.
The City and Grantee shall collect and disclose Subscriber information within the limitations established by Section 631 of the Cable Communications Policy Act of 1984, as or now hereinafter amended, or any successor provision.
Grantee shall simultaneously file with the City a copy of each petition, application and communications, which it transmits to or receives from any Federal, State or other regulatory commission or agency having competent jurisdiction to regulate its operations in West Allis.
[Ord. 6400, amend, 10/6/1998]
Such reports, as required under this Section, must be available to the public in the office of the Franchising Authority during normal business hours. Subscribers shall be notified of the availability of such reports.
Records of subscriber lists and statistical data not otherwise required by this Section shall be made available only upon a determination by the City that such records are material to the City's regulatory program.
Duration of Maintenance of Records. Grantee shall maintain the following records for the amount of time as specified hereunder:
Government Franchise reports shall be maintained for the life of the Franchise.
Public files, as required by the FCC, shall be kept for no less than five (5) years.
Cash receipt logs, signal leakage measurement logs, complaint call logs and telephone activity reports shall be kept for no less than three (3) years.
All other reports required herein and not set forth in this Section shall be maintained by Grantee for a period of no less than the life of the Franchise.
Channel Capacity and Activation. Grantee shall operate a Cable System having a capacity of, at minimum, seven hundred fifty MegaHertz (750 MHz), with expansion capability on a single cable trunk, which is capable of providing seventy-five (75) NTSC uncompressed video programming Channels transmitted without means of digital compression. Said system shall be constructed with fiber optic cabling in a topology of Fiber-to-the-Feeder or Fiber-to-the-Node. Said system shall be configured to support at least three hundred (300) digitally-compressed Channels capable of transmitting audio, video and data signals. Grantee shall provide the Franchise Authority with a timetable for implementation of said capacity within six (6) months of the enactment of the Franchise Agreement. Grantee shall employ and activate said seventy-five (75) non-digitally compressed Channels within eighteen (18) months from the enactment of the Franchise Agreement. Grantee shall employ and activate said digitally-compressed Channel capacity not later than three (3) years from the date of enactment of the Franchise Agreement.
Service Requirements and Continuous Operation. Grantee shall design said Cable System or any Video Communications System with the capability to provide two (2) way Interactive System programming, Upstream Channel and Downstream Channel capacity, digital radio and FM radio services, and access Channels. Services shall also include capability to retransmit stereo audio signals of commercial AM and FM radio stations and stereo audio signals carried on video broadcast and cablecast programming. Grantee shall also operate and maintain said Cable System or any Video Communications System, in a manner which will enable continuous twenty-four (24) hour operation of all services, as required herein.
[Ord. 6400, amend, 10/6/1998]
Pay-Per-View, Interactive System and Video-On-Demand Services. The Grantee's Cable System or any Video Communications System shall have the capacity to provide Pay-Per-View cable television services to cable Subscribers. The Cable System or any Video Communications System shall be compatible with Interactive System and Video-On-Demand services.
[Ord. 6400, amend, 10/6/1998]
FCC Technical Requirements.
Grantee shall, at minimum, comply with the cable television technical standards, as set forth by the FCC, effective July 1, 1992, as now or hereafter amended, as contained in Title 47, Section 76, et. seq., of the United States Code of Federal Regulations. Nothing contained in this Ordinance shall prohibit Grantee from adopting technical standards which exceed those approved by the FCC. In the event that Grantee adopts any technical standard which exceeds that approved by the FCC, such standard shall be incorporated in the Franchise Agreement. Should the Grantee seek release from any technical standard exceeding that approved by the FCC, it may do so no less than three (3) months after the filing of a notice to the Franchising Authority indicating Grantee's desire for specific relief from such technical standard and the reasons therefor. The Franchising Authority shall not unreasonably withhold or deny approval for Grantee's request for such specific relief. Grantee shall provide to the Franchising Authority within thirty (30) days after the end of the calendar year, written reports of the Grantee's bi-annual proof of performance tests conducted, pursuant to FCC standards and requirements.
If allowed by applicable law the City reserves the right to adopt such technical standards which exceed those enacted by the FCC. Technical standards adopted by the City shall be amended to this Ordinance.
[Ord. 6400, amend, 10/6/1998]
Adherence to Electrical and Safety Codes. The construction, installation, activation, re-activation and operation of any portion of Grantee's signal origination or signal processing or signal distribution system and equipment, including, but not limited to, the towers, antennae, Headend, studio, trunk and distribution system, drops and fixed or portable equipment located on or off Subscriber-occupied property, shall comply with all applicable requirements of each of the following publications:
National Electrical Code published by the National Fire Protection Association (currently ANSI/NFPA 70-1993 and replaced by subsequently adopted editions);
National Electrical Safety Code published by the Institute of Electrical and Electronics Engineers, Inc., (currently ANSI C2-1993 and replaced by subsequently adopted editions).
Grantee shall at all times comply with all other appropriate federal, state and local regulations and codes and other ordinances of the City.
Parental Lock-Out Device. The Grantee's Cable System or any Video Communications System shall include remote control and Converter box devices, which have the capacity to enable the Subscriber to lock out a single Channel or multiple Channels at the choice of the Subscriber. Grantee may impose a reasonable charge for parental lockout capacity or installation of such capacity on a remote control device or Converter box.
[Ord. 6400, amend, 10/6/1998]
Auxiliary Power. The Grantee's Cable System or any Video Communications System shall be equipped with sources of auxiliary power at the Headend and along cable trunk line amplifiers for the purpose of continuation of service in the event of repairs, maintenance, power interruptions or power outages, in accordance with Grantee's design.
[Ord. 6400, amend, 10/6/1998]
Grounding of System Equipment and Service Connections. Grantee shall properly ground all cable wiring and service connections, in accordance with the most current version of the National Electrical Safety Code and the National Electrical Code. Grantee shall also comply with any local ordinance pertaining to the establishment of electrical grounding standards and with any additional grounding standards established by electric or telephone companies, if Grantee has arranged to lease pole space from said companies. If Grantee has erected wiring and related appurtenances upon poles owned by private parties other than electric or telephone companies, Grantee shall comply with safety provisions established by the National Electrical Code.
Emergency Override.
[Ord. 6400, amend S. 15.179(A)(C), 10/6/1998]
Grantee shall configure the Cable System or any Video Communications System to enable carriage of audio emergency override cablecasting over all Channels of the Cable System, in accordance with FCC regulations. Said emergency override capability shall be designed to allow the Mayor of West Allis, or his designee, to activate the emergency override upon declaration of a public emergency.
Upon requirement by the FCC to participate in the Emergency Broadcast System, Grantee shall provide notification to the City within thirty (30) calendar days of receipt of such notification from the FCC, and shall provide its procedures for emergency broadcast to the City.
Emergency override services shall be provided to public, private and parochial schools, government buildings and local institutions connected to the Cable System or any Video Communications System, as well as residential subscribers, at no charge.
Interference with Non-Subscriber and Public Safety Transmissions. Grantee shall operate the Cable System or any Video Communications System in a manner which will not create signal transmission interference with reception of audio or off-air television broadcast signals received by Persons not subscribing to cable television. Said Cable System shall not transmit signals which create interference with cellular, microwave or portable telephone signal transmission, amateur radio signal transmission and radio signal communications transmitted by public safety units of the City of West Allis, Milwaukee County or the State of Wisconsin.
[Ord. 6400, amend, 10/6/1998]
System Testing. Grantee shall comply with all Cable System or any Video Communications System testing regulations as specified in Title 47, Section 76, Subpart K, of the Code of Federal Regulations. Regardless of the total number of tests mandated by the FCC or other federal rules applying to this system, Grantee offers and Franchising Authority agrees that Grantee shall perform inspection of no less than six (6) test points within the Franchise Area each time Grantee conducts FCC mandated proof-of-performance testing. No less than one (1) test point shall be at a widely scattered end of the longest cascade within the City.
[Ord. 6400, amend, 10/6/1998]
Service Interruptions. The Grantee may interrupt service when necessary to cable Subscribers for the purposes of alteration, maintenance, repair or emergencies. Grantee shall create such interruptions at such time as will cause the least amount of inconvenience to its Subscribers and, unless such interruption is unforeseen and immediately necessary, it shall give reasonable notice thereof to the affected Subscribers.
New Equipment. All equipment shall be new and unused and the total Cable System or any Video Communications System shall contain no factory rebuilt or refurbished components. This shall not be construed as a prohibition against the use or integration of existing telecommunication equipment and facilities when such shall not materially degrade the performance standards for the Cable System.
[Ord. 6400, amend, 10/6/1998]
Antenna Switch/Removal of Antenna. The Grantee, upon request of any Subscriber, may provide and install, at a reasonable charge, a switching device so as to permit a Subscriber to continue to utilize his own television antenna, if he so chooses. Grantee shall not require the removal, or offer to remove or provide any inducements for removal of any potential or existing Subscriber's antenna, as a condition of provision of service.
Signal Degradation. Grantee shall configure the Cable System or any Video Communications System to transmit signals to Subscribers' television sets in all portions of the Franchise Area which are not materially degraded by visual or audible distortion and interference. Grantee shall not be in violation of this Section of the Ordinance if, upon complaint of picture or sound degradation by a Subscriber, it is determined that the Subscriber's television set is not in good working order, or if the cause for said picture or sound degradation is found to be beyond the control of the Grantee.
[Ord. 6400, amend, 10/6/1998]
Technical Assistance. Upon the Franchising Authority's determination, based on a reasonable belief, the Franchising Authority may choose to engage a qualified technical consultant to aid the Franchising Authority in conducting oversight of the technical aspects of the Grantee's Cable System or any Video Communications System. The Franchising Authority may obtain the services for the technical consultant for a specific amount of time to be dedicated for said oversight and inspection. Grantee shall assume the expenses incurred by the Franchising Authority for said technical consulting services, if a deficiency is found. In the event that no deficiency is found, Franchising Authority shall pay said consulting expenses.
[Ord. 6400, amend, 10/6/1998]
Reporting Requirements. Upon acceptance of the Franchise, Grantee shall, within ninety (90) days, file such documents, as are required for all necessary local, state, and federal licenses, permits and authorizations, as required for the operation of the Cable System or any Video Communications System. Grantee shall submit monthly reports to the Mayor of the City of West Allis on progress in receiving such permits, licenses and authorizations, until all have been received by the Grantee. Failure to pursue all necessary steps to secure the aforementioned documents with due diligence shall constitute a substantial violation of this Section.
[Ord. 6400, amend, 10/6/1998]
Upgrading of Facilities, Equipment and Service. Grantee shall upgrade its facilities, equipment and service, as the demands of Subscribers dictate, so that the Cable System or any Video Communications System is as advanced as the current state of technology with field-proven equipment will allow. Changes in facilities and equipment involving a substantive upgrade of the Cable System shall be subject to consideration and approval by the Regulatory Board.
[Ord. 6400, amend, 10/6/1998]
Construction/Upgrade Schedule.
Franchise applications shall include a schedule for construction or, in the case of a Franchise which is being considered for renewal, a schedule for upgrade, including a timetable for commencement or enhancement of cable services to Subscribers. Said schedule shall be incorporated into the Franchise Agreement and shall be enforceable to the Grantee under the provisions of this Ordinance.
Within one hundred twenty (120) days after acceptance of a Franchise, Grantee shall furnish the Franchising Authority with a copy of preliminary engineering drawings and an operating construction schedule, setting forth target dates by area for construction activity. If substantial changes become necessary, Grantee shall modify such drawings and schedule to accurately reflect any substantial changes.
Grantee shall furnish the Franchising Authority progress reports on construction or upgrade of the Cable System or any Video Communications System at intervals not to exceed thirty (30) days. Said progress reports shall, at a minimum, include a map which clearly indicates the portions of the Franchise Area where Subscriber service is available. Said report shall indicate the time when construction will be completed and when service will be activated.
[Ord. 6400, amend, 10/6/1998]
As-Built Drawings Required. Grantee shall provide the Franchising Authority with As-Built drawings, as the system is constructed or upgraded, no later than one hundred eighty (180) days from the date of acceptance of the Franchise. As a complement to said As-Built drawings, Grantee shall provide a map indicating the location of the Cable System or any Video Communications System lines and equipment installed or in use throughout the Franchise Area on an official map issued by the City of West Allis City Clerk's Office.
[Ord. 6400, amend, 10/6/1998]
Authority For Use Of Public Ways. For the purposes of operating and maintaining a Cable System or any Video Communications System within the Franchise Area, Grantee may erect, install, construct, repair, replace, reconstruct and retain in, on, over, under, across and along the streets and Public Ways within such City lines, cables, conduits, vaults, manholes, amplifiers, appliances, pedestals, attachments and other property and equipment, as are necessary and appurtenant to the operation of the Cable System or any Video Communications System, provided that all applicable permits are applied for and granted, all fees paid and all other City codes and ordinances otherwise complied with. No rights hereunder may be transferred by Grantee to any other entity other than the Grantee's subcontractors.
[Ord. 6400, amend, 10/6/1998]
Compliance With Construction Standards. Grantee shall design, engineer, construct, install, operate and maintain its system in a manner which follows construction standards and technical standards, as established by local, state or federal laws, ordinances or regulations. Grantee shall adhere to any such construction and technical standards, which were submitted as a part of the application for Franchise and for Franchise renewal. Construction, Installation and maintenance of the Cable System or any Video Communications System shall be performed by the Grantee in a workmanlike manner, in accordance with current construction, engineering, electrical and other related technical standards. Where possible, cables and wires shall be buried underground and within the same easement as electric and telephone utility wiring. Cabling, amplifiers and related appurtenances which are connected overhead on utility poles shall be erected and maintained, in accordance with National Electrical Code and National Electrical Safety Code requirements, as referenced herein. With respect to any cables, wires and other like facilities constructed and installed by Grantee aboveground, Grantee shall, at its sole expense, reconstruct and reinstall cables, wires or other facilities underground, pursuant to any project under which the cables, wires or other facilities of all like utilities are placed underground within an area.
[Ord. 6400, amend, 10/6/1998]
Right of City to Examine Plans and Inspect Construction. Prior to construction, upgrade, installation or erection of towers, poles, conduits or fixtures related to the operation or maintenance of the Cable System or any Video Communications System, Grantee shall submit plans and maps detailing proposed facility construction, upgrade, installation or erection to the City Engineer for his examination. Upon approval by the City Engineer, Grantee may proceed with implementation of its proposed plans and activities. The City shall not unreasonably withhold such approval of Grantee's plans. Notwithstanding such approval, City shall have the right to inspect all construction or installation work performed, subject to the provisions of local laws and ordinances.
[Ord. 6400, amend, 10/6/1998]
Antennas and Towers. Antenna supporting structures (towers) shall comply with the following regulations set forth and currently in effect:
Rules and Regulations of the Federal Communications Commission pertaining to antennas and towers found in 47 CFR 76, et. seq., and 47 CFR 78, et. seq.
Obstruction Marking and Lighting, A 70/7460-IE, Federal Aviation Administration.
Federal Communications Commission Rules, Part 17, Construction, Marking and Lighting of Antenna Structures.
NCTA Standards of Good Engineering Practices, NCTA 008-0477, Electronics Industry Association Standard RS-222C, Structural Standards for Steel Towers and Antenna Supporting Structures.
Antenna supporting structures (towers) shall be painted, lighted, erected and maintained, in accordance with all applicable rules and regulations of the State Aeronautics Board governing the erection and operation of supporting structures or television towers, and all other local state codes or regulations.
Erection of Poles, Conduits or Other Wire-Holding Structures.
The Franchise shall not relieve the Grantee of any obligation involved in obtaining pole, conduit or other wire-holding structure use agreements from the gas, electric and telephone companies, or others maintaining poles, conduits or other wire-holding structures in the streets of the City, whenever the Grantee finds it necessary to make use of said poles, conduits or wire-holding structures.
No Franchise shall be deemed to expressly or impliedly authorize the Grantee to construct or install poles, conduits or wire-holding structures within streets for the purpose of placing cables, lines, wires or otherwise, without the prior approval of the City. Such consent shall be given upon such terms and conditions as the City may prescribe, which shall include a requirement that the Grantee perform, at its sole expense, all tree trimming required to maintain the poles clear of obstructions. Consent shall not be unreasonably withheld, but shall be subject to reasonable and necessary limitations to protect public health, safety and welfare.
With respect to any poles, conduits or wire-holding structures which Grantee is authorized to construct or install within Public Ways, a public utility serving the City may, if denied the privilege of utilizing such poles, conduits or wire-holding structures by the Grantee, apply for such permission to the City. If the City finds that such use would enhance the public convenience and would not unduly interfere with Grantee's operations, the City may authorize such use, subject to such terms and conditions as the City deems appropriate. Such authorization shall include the condition that the public utility pay to Grantee any and all actual and necessary costs incurred in permitting such use. Subsections A and B shall not apply to any poles, conduits or wire-holding structures installed prior to the effective date of this Ordinance.
Contractor Qualifications.
[Ord. 6400, amend, 10/6/1998]
Any contractor performing work for Grantee with respect to construction, upgrade, installation, repair or maintenance of the Cable System or any Video Communications System, shall be properly and currently licensed under laws of the State of Wisconsin, and under ordinances of the City of West Allis.
Grantee shall, where possible, give preference for employing local licensed contractors for construction, upgrade, installation, repair and maintenance of the Cable System or any Video Communications System.
Safety Compliance. Grantee shall comply with the standards of the Occupational Safety and Health Administration, as now or hereinafter amended, or by any successor provisions, and standards established by the Wisconsin Department of Labor or, where applicable, by the City in maintaining its operational facilities, working conditions and work procedures utilized as a part of the construction, upgrade, installation, repair and maintenance of the Cable System or any Video Communications System.
[Ord. 6400, amend, 10/6/1998]
Permits Required. No construction, upgrade or relocation of the Cable System or any Video Communications System or its components within the Public Ways of the City shall be initiated without approval by means of permit issued by the City. In issuing such permit, the City may, at its option, impose such conditions, restrictions or regulations, as are needed for protection of public property, private property, buildings, structures and public utilities, for maintaining the safety of the public, and the unimpeded flow of traffic by pedestrians and vehicles. Upon receipt of such permit, Grantee shall provide the City fourteen (14) days notice prior to the start of construction; however, such notice may be waived by the Mayor in the event that construction, upgrade or relocation of the Cable System or any Video Communications System, or its components, is necessitated by emergency conditions.
[Ord. 6400, amend, 10/6/1998]
Facilities Not to be Hazardous or Interfere. All wires, conduits, cable and other property and facilities of the Grantee shall be so located, constructed, installed and maintained as to not endanger or unnecessarily interfere with the usual and customary trade, traffic and travel upon the streets and public places of the City. Grantee shall keep and maintain all its property in good condition, order and repair. The City reserves the right hereunder to inspect and examine at any reasonable time and upon reasonable notice the property owned or used, in part, or in whole by the Grantee.
The Grantee shall keep accurate maps and records of all its facilities and shall furnish copies of such maps and records, as requested by the City under this Ordinance. The Grantee shall not place poles or other equipment where they will interfere with the rights or reasonable convenience of adjoining property owners or with any gas, electric or telephone fixtures, or with any water hydrants or mains. All poles or other fixtures placed in a Public Way shall be placed in the right-of-way between the Public Way and the property, as specified by the City.
Movement of Buildings or Other Structures. Grantee shall, upon request by any Person holding a building moving permit or other approval by the City, temporarily remove, raise or lower its wires to permit the movement of buildings or other structures. The expense of such removal, raising or lowering shall be paid by the Person requesting same, and Grantee shall be authorized to receive such payment in advance. Grantee shall be given not less than ten (10) days written notice of any move contemplated to arrange for such temporary wire changes.
Method of Installation. All wires, cables, amplifiers and other property shall be constructed and installed in an orderly and workmanlike manner. All cables and wires shall be installed parallel with existing telephone and electric wires wherever possible. Multiple cable configurations shall be arranged in parallel and bundled together with proper lashing or conduit, with due respect for engineering and safety consideration.
Authority to Trim Trees. Grantee shall have the authority to trim trees upon and overhanging Public Ways and other public places of the City so as to prevent the branches of such trees from coming into contact with the wires and cables of the Grantee. All trimming is to be done under the supervision and direction of the City after the explicit, prior written notification and approval of the City, at the expense of the Grantee. The Grantee may contract for such services; however, any firm or individual so retained shall receive City approval prior to commencing such activity.
Removal of Vegetation. Grantee shall not remove any tree, shrub, plant or vegetation on public property without first receiving written permission from the City. Any such work shall be performed at Grantee's expense and shall be subject to supervision by the City. Any cutting or removal of trees, shrubs, plants or vegetation on private property by Grantee shall not be performed without first receiving the written permission of the property owner.
Grantee shall be responsible for, shall indemnify, defend and hold harmless the City, its officers, agents and employees from and against any and all damages arising out of or resulting from the removal, trimming, mutilation or of any injury to any tree or trees proximately caused by the Grantee or its officers, agents, employees, contractors or subcontractors.
Restoration of Property.
[Ord. 6400, amend S.15.1818(A), 10/6/1998]
Upon completion of construction, upgrade, installation, maintenance or repair of components of the Cable System or any Video Communications System on public or private property, Grantee shall, at its own expense, substantially restore said property to its original condition in a workmanlike and professional manner. In the event that said property is not restored to its original condition, the property owner shall have the right to restore said property and to assess the expense of restoration to the Grantee. Payment to the City or owner for such replacement or restoration shall be immediate, upon demand, by the Grantee. All requests for replacement or restoring of such Public Ways or private property must be in writing to the Grantee.
Where areas of grass have been disturbed, Grantee shall replace said affected grassy areas with sod, as soon as is feasible. Grantee shall be responsible for the initial maintenance of the sod, including watering and fertilization, and shall inform the property owner, in writing, of the proper care of the sodding and the owner's responsibility for ongoing maintenance of the sod. In the event that the sodded grass dies before the end of the first season, Grantee shall replace the sodded grass at his expense.
In the event that a Subscriber requests Grantee to remove cable home wiring from Subscriber's residence, Grantee shall pay for any damage caused by installation or removal of wiring, except that, Grantee shall not be responsible for repairing damage to exterior or interior walls, floors, paneling or siding. Grantee shall comply with the provisions of 47 CFR 76.802, concerning the disposition of cable home wiring.
Street Occupancy.
Grantee's Cable System or any Video Communications System, including its poles, lines, equipment, structures and appurtenances shall be so located as to cause minimum interference with the proper use of streets and other Public Ways and the rights and reasonable conveniences of property owners who adjoin any of said streets or Public Ways. Grantee's Cable System or any Video Communications System shall not obstruct or interfere with the installation of any electric, telephone, gas, water or sewer facilities located within the City. The location of any portion of the Cable System or any Video Communications System, as described in this section, shall be placed as to not endanger or interfere with the health, safety or lives of Persons, and shall not interfere with improvements which the City of West Allis, Milwaukee County or the State of Wisconsin may deem proper to make.
[Ord. 6400, amend, 10/6/1998]
In case of disturbance of any street or public way, Grantee shall, at its sole cost and expense, and in a manner approved by the City, replace and restore such area in as good as a condition as before the work involving such disturbance was done.
Aerial cable, which is placed over streets or public ways, shall be hanged at a height which is in accordance with the National Electrical Safety Code, as referred to herein.
Underground cable shall be buried at depths for trunk and feeder cable and service drops, in accordance with guidelines established by the National Electrical Safety Code, as referred to herein.
Protection of Facilities. Nothing contained in this Section shall relieve any person, company or corporation from liability arising out of the failure to exercise reasonable care to avoid injuring the Grantee's facilities while performing any work connected with grading, regrading or changing the line of any public way or public place or with the construction or reconstruction of any sewer or water system.
Notice of City Improvements. The City shall give the Grantee reasonable notice of plans for improvements of public ways where paving or resurfacing of a permanent nature is involved. The notice shall contain the character and nature of the improvements, the streets upon which the improvements are to be made, the extent of the improvements and the work schedule for the project. The notice shall give the Grantee sufficient time to make any additions, alterations or repairs to its facilities, as it deems necessary, in advance of the actual commencement of the work, so as to permit the Grantee to maintain continuity of service.
Emergency Removal of Plant. If, at any time, in case of fire or disaster in the City, it shall become necessary in the reasonable judgment of the City to cut or move any of the wires, cables, amplifiers, appliances or appurtenances thereto of the Grantee, such cutting or moving may be done and any repairs rendered necessary thereby shall be made by the Grantee, at its sole expense, provided that such repairs are not necessitated by negligent act of the City, in which case, cost for repairs shall be borne by the City.
Alternate Routing of Plant. In the event continued use of a Public Way is denied to the Grantee by the City for any reason, Grantee will make every reasonable effort to provide service over alternate routes.
Construction Bond.
Upon grant of a Franchise upon which initial construction of a cable system is proposed, Grantee shall file and maintain with the City a construction bond in an amount and manner so specified in the Franchise Agreement.
Upon grant of a Franchise upon which upgrade of the Cable System or any Video Communications System is proposed, Grantee shall file and maintain with the City a labor and material bond in an amount so specified in the Franchise Agreement in such form, as the City may determine.
[Ord. 6400, amend, 10/6/1998]
For any period of time other than reconstruction of the Cable System, an annual blanket bond in the amount of Fifteen Thousand Dollars ($15,000) shall be filed and maintained with the City. Such blanket bond is to cover any excavation, demolition or cutting into by Grantee any street or public way in the City for that calendar year, in such form as the City may determine.
Construction Delays. At such time where Grantee is delayed in completing the construction of the Cable System, or in providing service to Dwelling Units, businesses, public buildings, institutions, schools or other properties, and such delay is beyond the physical or administrative control of the Grantee, Grantee shall notify the Franchising Authority of said delay within ten (10) calendar days from the occurrence of the delay, and shall indicate the cause or causes for the delay. Upon receipt of notification by the Grantee of the delay of service, the Franchising Authority and the Grantee shall agree to establish a date by which the delay shall end and construction or service shall resume. In the event that the delay continues beyond the control of Grantee, and extends beyond the agreed-upon date, the Franchising Authority and the Grantee may agree to establish a new date for resumption of construction or service. Delays in construction or service which extend beyond a final date agreed upon by Grantee and the Franchising Authority shall constitute a violation of the Franchise.
Failures of Performance. In the case of a failure to perform within the material provisions of this Section, Franchising Authority shall consider such failures to perform as a material violation of the Franchise. The Franchising Authority shall provide Grantee with reasonable notice and opportunity to cure such violations; however, if Grantee fails to cure such violations after reasonable notice and opportunity have been provided, Franchising Authority may, at its option, consider Grantee to be in default of Franchise and initiate Franchise revocation proceedings, as described herein.
Grantee, shall at its sole expense, fully indemnify, defend and hold harmless the City of West Allis, the officers, agents and employees thereof, from and against any and all claims, suits, actions, liability and judgments for damages or otherwise:
For actual or alleged injury to Persons or property, including loss of use of property due to an occurrence, whether or not such property is physically damaged or destroyed, in any way arising out of or through or alleged to arise out of or through acts or omissions of Grantee or its officers, agents, employees or contractors or those to which acts or omissions of Grantee or its officers, agents, employees or contractors to the extent to which they contribute;
Arising out of or alleged to arise out of any claim for damages for Grantee's invasion of the right of privacy, defamation of any Person, firm or corporation, or violation or infringement of any copyright, trademark, trade name, service mark or patent or of any other right of any Person, firm, or corporation.
Arising out of or alleged to arise out of Grantee's failure to comply with provisions of any statute, regulation or ordinance of the United States, State of Wisconsin, Milwaukee County or City of West Allis, applicable to Grantee in its business.
Nothing herein shall be deemed to prevent the parties indemnified and held harmless herein from participating in defense of any litigation by their own counsel at their sole expense. Such participation shall not, under any circumstances, relieve Grantee from its duties of defense against liability or of paying any judgment entered against such indemnified party.
Grantee shall obtain, effective from the date of execution of the Franchise Agreement and thereafter maintain in full force and effect throughout the term of the Agreement and any extension thereof, an acceptable policy or policies of general comprehensive liability insurance, products/completed operations liability insurance, personal injury liability insurance, owners and contractors protected liability insurance, broad form property damage insurance, contractual liability insurance, automobile liability (owned, non-owned and hired automobiles), workers compensation and employers liability. Said policy or policies shall name the City of West Allis as an additional named insured and, in their capacity as such, City's officers, Boards, Commissions, agents and employees. Grantee and said City and officers shall be named as co-insureds and the policy or policies shall contain cross-liability endorsements. Policies of insurance shall be in the minimum single limit amount of ten million dollars ($10,000,000) per occurrence. Said insurance policy or policies shall ensure against the types of liabilities covered by indemnification and hold harmless provisions stated herein.
A copy of Certificates of Insurance identifying the policy or policies, coverages and named insureds and naming the City as an additional named insured shall be sent to City, as provided for in the Franchise Agreement, and a certificate of insurance shall be sent to City no later than ninety (90) days after the start of Grantee's succeeding policy year.
All policies of insurance required hereunder must be underwritten by sureties qualified to do business in the State of Wisconsin and must be rated not lower than "B+" by Best Insurance Rating Services.
The City shall retain the right to re-examine insurance policy coverage limits and where necessary, after consultation with the Grantee, increase the coverage limits during the life of the Franchise Agreement or any extension thereto.
Notice of Cancellation or Reduction in Coverage. The insurance policies mentioned above shall contain an endorsement stating that the policies are extended to cover the liability assumed by the Grantee under the terms of this Section and shall contain the following endorsement:
It is hereby understood and agreed that this policy may not be canceled nor the amount of coverage therefor reduced until thirty (30) days after receipt by the City Clerk by registered United States mail of two (2) copies of a written notice of such intent to cancel or reduce the coverage.
Evidence of Insurance Filed With City Clerk. All certificates of insurance or certified copies thereof and written evidence of payment of required premiums shall be filed and maintained with the City Clerk during the term of the Franchise or any renewal thereof.
Line Extension to Residences. Unless a Franchise Agreement provides otherwise, a Grantee must make cable service available to every unserved structure within the Franchise service area. Where the Franchise service area is the entire City, the Grantee shall extend service to any annexed areas according to the following schedule:
For areas of territory annexed to the City of five (5) acres or more, the Grantee shall extend service to such areas within twelve (12) months of the date of annexation; or,
For those areas of less than five (5) acres, the Grantee shall extend service to such annexed areas within six (6) months of the date of annexation; provided, however, the Grantee is not required to extend service in areas where the cable would pass fewer than twenty (20) homes per cable mile.
Line Extension to Businesses. Grantee shall make available the services of the Cable System or any Video Communications System to local businesses. Where a building housing one or more businesses, or multiple buildings housing businesses, are not contiguous to residential Dwelling Units, Grantee shall provide service to such building or buildings, if they are located one hundred twenty-five (125) feet or less from a terminating point along a trunk or feeder of the Cable System. If said building or buildings are located more than one hundred twenty-five (125) feet from a terminating point along a Cable System or where applicable a Video Communications System trunk line or feeder, Grantee may voluntarily provide service to a business or businesses for an amount not to exceed the cost of construction of said portion of the system. In the event that Grantee should provide service to other businesses or residential Dwelling Units extending from the system constructed for the initial business unit or units, Grantee shall refund fifty percent (50%) of the sum charged to the initial business unit or units within six (6) months of initial provision of service to other businesses or residential dwelling units.
[Ord. 6400, amend, 10/6/1998]
Uniformity of Rates. Rates for cable service and charges for equipment necessary for the reception of cable service shall be uniform throughout the Franchise Area, except as specified in Sections 15.2112 and 15.2113. Grantee may establish different rates for tiers of programming and may establish a rate schedule appropriate to commercial enterprises, which differ from such rates provided to residential dwelling units. Grantee may also establish separate rates for Subscribers residing in congregate dwelling units for which bulk billing rates may be established.
Non-Discrimination In Application of Rates, Fees and Services. The Grantee shall not discriminate against individuals in the assessment, levy, charge, imposition or collection of rates, fees and the provision of cable services on the basis of race, creed, color, religion, national origin, age, gender, marital or veteran status or disability.
Filing of Rate Schedule With City. Grantee shall file a full schedule of all Subscriber and user rates and all other fees or charges, including, but not limited to, pay-per-view services, leased access charges, published advertising rates, late fees, Installation fees, trip and repair charges, disconnect fees, reconnect fees, additional outlet charges, name changes, VCR hookups, service upgrades, swaps of pay services, installation of A/B switches, cable guide subscriptions and burial of drop cables. Said schedule shall be filed at such time as changes are announced by Grantee in the levels of rates, fees or other charges.
Universal Service. Grantee shall install, connect and provide universal service without charge to all residences in the City, except to those residences where the offer to provide this service is refused.
Unusual Connections Charges. Grantee may make a charge to Subscribers for installation and connection to its system, in addition to those charges referred in Section 15.213 hereto, where unusual circumstances exist, such as, but not limited to, remote or relatively inaccessible Subscriber locations or for an antenna switching device.
No Considerations Beyond Schedule. Grantee shall receive no consideration whatsoever for or in connection with a service to its Subscribers, other than what may have been filed with the City, in accordance with the provisions of Section 15.213.
Promotional Campaigns. The Grantee may reduce, suspend or waive Installation fees or rates for programming in a non-discriminatory manner for the purpose of marketing cable services through promotional campaigns as a means of attracting Subscribers or users.
Refusal of Service. Grantee may refuse to provide service to any person because of due or owing accounts between such person and the Grantee.
Rates For Devices Serving Disabled Subscribers. Rates for equipment or devices serving Subscribers experiencing visual impairment, hearing impairment or ambulatory impairment disabilities shall be charged to disabled Subscribers at the same cost as that charged to other non-disabled cable service Subscribers. Grantee may offer the disabled Subscriber the option to purchase said device or equipment at the Grantee's cost, plus actual cost of delivery.
Reservation of Rights to Regulate Cable Services.
The Franchising Authority reserves the right to regulate rates for Basic Service and equipment of the Grantee as allowed by the FCC. The Franchising Authority shall notify the Grantee of its intention to file a request for certification with the FCC. Upon receipt of said certification, the Franchising Authority shall adopt, by separate ordinance, in accordance with Title 47, Section 76.910, of the Code of Federal Regulations, such regulations consistent with the FCC regulations governing the basic tier of cable service.
The Franchising Authority shall, within one hundred twenty (120) days of the effective date of certification:
Exercise its rights to regulate basic cable rates and provide reasonable opportunity for consideration of the views of interested parties;
Notify the cable operator that the Franchising Authority has been certified to regulate basic cable rates; and,
Adopt regulations as required by Title 47, Section 76.910(e)(1), of the Code of Federal Regulations.
The Franchising Authority may review the Grantee's schedule of rates, fees or charges upon submission of said fees, rates and charges on the proper forms provided by the FCC, on its own motion. The Franchising Authority shall submit its recommendations regarding the reasonableness and proper calculations of such fees, rates and charges, to the Regulatory Board and the Common Council. In accordance with the regulations of the FCC, the Common Council may reduce such fees, rates or charges, or let stand the proposed fees, rates or charges of the Grantee. Such reduction or approval of proposed rates shall be expressed by a resolution adopted for the purpose and no change in the Grantee's schedule of fees, rates or charges shall be effective without the prior action of the Franchising Authority, Regulatory Board and the Common Council, as expressed in said resolution. No such resolution shall be adopted without prior public notice and opportunity for all interested parties to be heard, subject to the procedures set forth in this Ordinance.
In addition, for the purpose of determining the reasonableness of Grantee's fees, rates or charges, all such information shall be made available to the Franchising Authority.
If during the term of any Franchise or renewal thereof granted hereunder, the Grantee is required to refund Subscribers based upon review of rates and equipment and maintenance charges, as allowed under Title 47, Section 76.910, of the Code of Federal Regulations, or, if the cost of operation to the Grantee is reduced as the result of an order of any Federal, State or local regulatory body having competent jurisdiction, the Grantee shall pass on to its Subscribers on a prorated basis any such savings or reduced costs on a basis to be determined by the Common Council.
Grantee shall provide written notification to the Franchising Authority of any changes received in regulatory fees payable to it by any other agency having regulatory jurisdiction over the Grantee.
City's Right to Impose and Collect Taxes, Fees or Assessments.
The City shall reserve the right to impose and collect a municipal occupation tax on Grantee's business of transmitting messages by means of radio magnetic waves, electricity or fiber optics, as allowed by sec. 77.52(a)12. of the Wisconsin Statutes. Said occupation tax shall not exceed an amount of five percent (5%) of the gross receipts of Grantee's business operations originating within the corporate limits of the City.
The City shall reserve the right to impose and collect user fees or assessments consistent with State and Federal law from the Grantee. Prior to the authorization of said user fee or assessment, the method of collection and the payment of the collected user fee or assessment, shall be determined jointly between the City and the Grantee.
Rate Discounts. The Grantee may offer discounts in rates to senior citizens and persons who are economically disadvantaged, in accordance with Section 623(e)(1) of the provisions of the Cable Television Consumer Protection and Competition Act of 1992, as referenced in Title 47, Section 543, of the United States Code of Federal Regulations.
Senior Citizen Discount. Grantee shall provide a seventeen percent (17%) discount on its Basic Service and all security services, if applicable, exclusive of installation cost. This discount shall not apply to any installation fee. For purposes of this discount, a senior citizen is defined as a cable Subscriber who is sixty (60) years of age or older.
Categories of Service to be Provided. Grantee shall provide on the Cable System or any Video Communications System all Over-the-Air broadcast stations required to be carried by federal law or FCC regulations. Grantee shall provide a wide range and diversity of programming for Subscribers residing within the Franchise Area. Categories of programming comparable in quality, mix and level to be provided by Grantee to Subscribers shall include, but not be limited to the following:
[Ord. 6400, amend, 10/6/1998]
Local, regional, national and international news programs.
Local, regional and national sports and sporting events.
Local, regional and national weather.
Religious programming.
Music video and concert programs.
Educational programming.
Public affairs programming.
Classic and contemporary movies.
General entertainment programming.
Cultural and literary-related programming.
Pay-Per-View events programming, including sporting events, concerts and movies.
Children's programming.
Financial and business-related programming.
Health programming.
Senior Citizen programming.
Electronic program guide.
Community Service programming.
Over-the-Air Broadcast stations, including those Wisconsin commercial, non-satellite broadcast television stations serving West Allis and the metropolitan Milwaukee area, and including those television broadcast signals and additional broadcast signals which are in accordance with Title 47, Part 76, Section 76.63, of the of Federal Regulations pertaining to FCC rules and regulations.
Universal Service Channels. Grantee shall provide a minimum of twelve (12) channels for universal service. This service shall be offered on a continuing basis to all households within the City at no charge. Grantee shall provide the following programming as part of the universal service:
Local Origination.
Public Access.
Educational Access.
Governmental Access.
Metro Milwaukee Regional Orientation.
Senior Citizen Programming.
Time and Weather.
Job Information.
Master Cable Channel Guide/Radio Access.
No reduction or cessation of programming for universal service shall be permitted without the consent of the Regulatory Board. Grantee shall consider all recommendations from the Regulatory Board with regard to general types of programming for the universal service.
Obscene Programming. Grantee and all other Persons, as defined herein, using or making use of the cable system shall comply with all federal, state and local laws and regulations concerning the cablecasting of obscene or indecent programming.
Local Origination Programming. The Grantee shall provide Local Origination programming on an appropriate amount of bandwidth or channel space as determined in the Franchise Agreement. Such Local Origination programming shall provide Cable System Subscribers within the Franchise Area information, including advertising, concerning West Allis and the metropolitan Milwaukee region. The Grantee shall prepare programming about West Allis and its residents as well as provide programming exchanges with other cable systems within the metropolitan Milwaukee region.
FM Signal Carriage. Grantee shall carry the FM radio stations whose normal broadcast ranges fall within the City limits. Such stations shall be carried in stereo, where applicable.
Allocation of Channel Space. Grantee shall dedicate an amount of uncompressed Channel space at a level of six megahertz (6 Mhz) per each PEG channel for the allocation of Public Access, Educational and Governmental programming. Said amount of dedicated uncompressed Channel space shall be negotiated between Franchising Authority and Grantee and specified in the Franchise Agreement.
Use of PEG Facilities. Use of facilities for Public, Educational and Governmental Access upon the cable system shall be made available, as provided herein, under the conditions and in the manner provided by rules required hereinbelow, in connection with the production of that Public, Educational and Governmental access programming cablecast upon the system. Each Grantee shall establish reasonable rules and procedures that are designed to promote the utilization of such Public, Educational and Governmental Access programming upon the system and subject to the approval of the Franchising Authority, which approval shall not be unreasonably withheld, whereby the Grantee shall accept and cablecast such Public, Educational and Governmental Access programming upon the system, as shall be provided to the Grantee by all Persons and entities.
[Ord. 6400, amend, 10/6/1998]
The Grantee shall allow all Persons and entities desiring to cablecast Public, Educational or Governmental broadcasting to produce such programming upon and electronically interface directly with the Cable System or any Video Communications System of the Grantee, so as to effectively cablecast the Public, Educational or Governmental Access programming.
In determining the decision to cablecast said programming deriving from Public, Educational or Governmental Access, Grantee shall comply with all applicable laws and regulations established by the FCC concerning programming content. Grantee shall assist Public, Educational and Governmental Access users with identification of programming resources which may benefit said users or their respective audiences.
PEG facilities shall be operated in a manner consistent with the principles of fairness and equal accessibility of its facilities, equipment, channels, studios and other services to citizens, businesses, public agencies or other entities having a legitimate use for PEG facilities; and, no one shall be arbitrarily excluded from their use; allocation of use of said facilities shall be made according to the rules or decisions of regulatory agencies affecting the same, and where such rules are not effective to resolve a dispute between conflicting users or potential users, the matter shall be submitted for resolution by the Regulatory Board.
Public Access Channel Designation.
Public Access Channel space shall be made available to the West Allis Community Communications Corporation (WACCC), residents, organizations and institutions of West Allis. The facilities and equipment serving this Channel shall be made available to access users on a first-come, first-served basis or, where necessary, by a scheduled time for use on a reservation basis. The Grantee shall not discriminate against any user in the scheduling or use of Public Access facilities or equipment.
Where Grantee provides studio facilities, it may establish rules and regulations governing the use of the studio, its equipment, staff or related resources. The Grantee may require the placement of a reasonable cash or credit deposit as a condition for the use of its studio equipment or, in lieu of said deposit, Grantee may require that users of access studio equipment present evidence of liability insurance covering the access user in the event of damage to said studio equipment. Grantee may also charge a reasonable fee for the reproduction of programming produced and completed by access users. Grantee may charge a reasonable fee for videotape necessary for the production or reproduction of access programming.
Educational Access Channel Designation.
Educational Access Channel space shall be made available to educational institutions serving the City of West Allis at no charge to such institutions. Local educational institutions may develop rules and regulations for the use of Educational Access Channel space. Upon the request of an educational institution user of the Channel, Grantee shall provide educational programming available through cable operators or their consortiums, and assist said institutions with implementing curricula associated with such programming. Where charges or fees are required for such programming, the user shall be responsible for the payment of such charges or fees.
Upon the request of two (2) or more educational institutions serving the City of West Allis for an interactive cable television linkage between said institutions, Grantee shall work with said institutions in establishing an interactive network utilizing the Educational Access Channel to serve said institutions.
Governmental Access Channel Designation.
Governmental Access Channel space shall be reserved for the use of the City of West Allis, Milwaukee County and any other unit of local government which provides services to all or any portion of the City of West Allis.
Governmental Access Channel space shall be available to the City of West Allis for its exclusive use twenty-four (24) hours a day. Grantee shall not levy a charge for the use of Governmental Access Channel space. Grantee shall provide to the City such devices necessary for text and graphics insertion and modulation. Grantee shall provide training and technical assistance in the usage of such devices and shall replace such equipment, at no charge to the City, at such time when the devices can no longer perform after maintenance and repair.
Access Facilities.
Grantee shall provide access studio facilities and related television equipment for production and editing. Said equipment shall also enable cablecasting and playback of live and taped access programming, including automated playback.
Grantee shall provide portable camera and production equipment, including a mobile production vehicle unit, for the cablecasting of live programming from remote locations.
Access facilities shall be made accessible to disabled persons, as required by the Americans With Disabilities Act. Where necessary, Grantee shall provide any disabled access user with such accommodations which will enable said user to fully utilize studio facilities and equipment.
Access Programming Training. Grantee shall provide training to users of the access Channels, the studio and its equipment and facilities. Grantee shall provide a defined training curriculum and may base its training schedule on the level of demand by potential access users. Grantee may establish appropriate rules and regulations governing training of access users.
Access Facilities and Services In Lieu of Requirements Herein.
Grantee shall have the option of providing to the City, in lieu of the requirements for provision of studio facilities, equipment or other related services required under this Ordinance, with the exception of Channel space, a sum of moneys for the provision of Public, Educational and Governmental Access programming, which may be determined within the Franchise Agreement.
Where more than one Franchise Area exists or more than one Grantee serves any portion of or all of the City of West Allis, all Grantees may have the option of providing equal contributions toward the constructing, equipping, staffing and implementing of shared access studio facilities. All Grantees may also share in the costs of providing training and purchasing of programming, where necessary.
Leased Access Channel Space. Grantee shall make available Channel space for leased access programming. Said Channel space shall be specified in the Franchise Agreement. The Grantee shall establish operating rules for Leased Access Channel space, which shall be filed with the Franchising Authority prior to activation. With respect to the content of leased access programming, Grantee shall adhere to all applicable FCC regulations. Grantee shall set forth a rate schedule and shall file said schedule with the Franchising Authority on an annual basis. Grantee shall promulgate rules permitting public inspection of records of Persons requesting access time. Such records shall be retained on file by the Grantee for a period of three (3) years.
Communications To Subscribers. Grantee shall provide, at the time of Installation, at least annually, when there is a change to information provided Subscribers, and upon request by a Subscriber, information concerning the following:
Products and services offered;
Prices for programming services and conditions of subscription to programming and other services;
Installation and service maintenance policies;
Instructions on how to use the cable service;
Channel positions of programming carried on the system;
Billing and complaint procedures, including the address and telephone number of the Franchising Authority.
Notification of Changes in Rates, Programming, or Channel Positions. Grantee shall notify Subscribers of any increases in rates, changes in programming services or Channel positions, as soon as possible. Notice must be given to the Franchising Authority at a minimum of forty-five (45) days in advance and to subscribers at a minimum of thirty (30) days in advance of such changes, if the change is within the control of the cable operator. In addition, the cable operator shall notify the City and subscribers thirty (30) days in advance of any significant changes in the other information required in Section 15.241.
Customer Service Facilities.
Grantee shall maintain a customer service facility within the boundaries of the City of West Allis with the capacity to accept payments, adjust bills, respond to repair, installation or other service calls, distribute or receive Converter boxes, remote control units or other related equipment, and receive complaints.
Said customer service facility shall be open to the general public at least a minimum of forty-four (44) hours per week. Of that time, there shall be a minimum of four (4) hours on Saturday between 9:00 AM and 5:00 PM., and at least one (1) day per week in which the office is open between 8:00 AM to 10 AM, and one day (1) per week in which the office is open between 5:00 PM and 7:00 PM.
Grantee may, at its option, provide Subscribers with bill payment facilities through retail, financial or other commercial institutions located within the boundaries of the City of West Allis. Grantee may, at its option, provide secured collection boxes for receipt of bill payments.
Fairness and Accessibility to Subscribers and the Public. Grantee's customer services shall be operated in a manner consistent with the principles of fairness and equal accessibility of its facilities and other services to all citizens, businesses, public agencies or other entities having a legitimate use for the Cable System or any Video Communications System and Grantee's facilities; and, no one shall be arbitrarily excluded from their use; allocation of use of said facilities shall be made according to the rules or decisions of regulatory agencies affecting the same and, where such rules are not effective to resolve a dispute between conflicting users or potential users, the matter shall be submitted for resolution by the Regulatory Board.
[Ord. 6400, amend, 10/6/1998]
Telephone Service.
Grantee shall maintain a local, toll-free, telephone access line which is available to Subscribers twenty-four (24) hours per day, seven (7) days per week. Said telephone service shall be staffed by trained customer service representatives who shall be available to respond to customer telephone inquiries during Grantee's hours of business operation, as determined by the provisions of Section 15.243(B).
After the hours of Grantee's business operation, the telephone access line shall be answered either by, at Grantee's option, a service or automated response system. With the exception of requests for restoring cable service in the event of an outage, inquiries received after Grantee's hours of business operation shall be forwarded and responded to by a customer service representative of Grantee on the next business day.
Grantee shall, under normal operating conditions, answer telephones staffed by customer service representatives, or through a service or automated response system, within thirty (30) seconds, including wait time, from when the connection is made. If the call needs to be transferred, transfer time shall not exceed ninety (90) seconds. These standards stated herein shall be met no less than ninety percent (90%) of the time as measured on a monthly basis under normal operating conditions. Grantee shall follow the definition for normal operating conditions, as established by the FCC under Code of Federal Regulations Title 47, Section 76.309(c)(4)(ii).
Grantee shall, under normal operating conditions, assure that the customer obtain a busy signal no more than three percent (3%) of the time, as measured on a monthly basis.
Incoming telephone calls from Subscribers to the Grantee shall not exceed an abandonment rate of five percent (5%), as measured on a quarterly basis.
Service and Repair Calls.
[Ord. 6400, amend S. 15.246(A)(D)(E), 10/6/1998]
Grantee shall establish a maintenance service capable of identifying, locating and correcting system malfunctions in an expeditious manner. Said service shall be available on a twenty-four (24) hour basis, seven (7) days per week, to restore service of the Cable System or any Video Communications System to Subscribers in the event of significant deficiencies or failure of the Cable System or any Video Communications System.
Grantee shall provide to Subscribers a listed local or toll-free telephone number for service and repair calls. The telephone number may be the same as that required by Section 15.245(A).
Excluding conditions beyond the control of the Grantee, Grantee shall begin working on complaints, requests and interruptions to cable service promptly and, in no event shall the response time for calls received subsequent to 12:00 PM exceed twenty-four (24) hours. The Grantee shall begin action to correct other service problems within four (4) hours, if received by 12:00 PM, or not later than the next business day after notification of service problems, if the call is received after 12:00 PM.
Grantee shall immediately initiate corrective action for any outage affecting three (3) or more Subscribers who receive services from the same trunk or feeder line. Restoration of the Cable System or any Video Communications System from a condition of outage shall be completed as promptly as is feasibly possible, but in no situation longer than twenty-four (24) hours after notice without the express authorization of the City.
An outage affecting three (3) or more Subscribers in a multi-family dwelling served from the same Cable System or any Video Communications System tap shall be corrected in the same manner as stated hereinabove.
For each repair, service, installation and installation-related activity call, the Grantee shall establish either a specific time for an appointment with the customer or specify, at maximum, a four (4) hour time block during the Grantee's hours of operations. The Grantee may, at its discretion, schedule service calls and other Installation or Installation-related activities outside of its usual hours of operations for the express convenience of the customer.
Grantee, or its agents or designees, shall not cancel an appointment with a customer after the close of business on the business day prior to the appointment.
Upon completion of the service call, Installation or Installation-related activity, the customer shall receive a report of the service call. Grantee may send this report by United States mail within fourteen (14) days of the service date if the customer is not present at the time of the service call.
A representative of the Grantee shall contact a customer in the event that a service repair technician or other representative of the Grantee is running late for an appointment and will be unable to keep the scheduled appointment time. Grantee or his representative shall reschedule the appointment, as necessary, at a time which is convenient to the customer.
The standards promulgated in Sections 15.245(A) through (J) shall be met no less than ninety-five percent (95%) of the time measured on a quarterly basis.
Credits for Missed Service Appointments. The Grantee shall issue a credit equal to one day of service if the Grantee's technician is unable to make a scheduled service call appointment or is unable to complete a scheduled service call due to a late arrival. This Section shall not limit or prohibit Grantee from providing other credits or refunds for missed service appointments in excess of those described hereinabove as a part of its corporate policy or participation in a promotional activity which pertains to the provision of on-time service appointments.
Identification of Customer Service Representatives and Technicians.
Upon telephone contact by a customer, customer service representatives of the Grantee shall identify themselves by name. Technicians representing the Grantee or his subcontractors shall wear a company identification badge prominently displayed on the outermost clothing of the technician or subcontractor.
Technicians of the Grantee and his subcontractors shall identify vehicles used for technical service with the name of the Grantee or subcontractor of the Grantee. Vehicles belonging to the subcontractor shall also be identified with the Grantee's name. The type of identification need not be of a permanent nature.
Billing Practices.
The Grantee shall send Subscribers a monthly statement indicating a date for payment due.
The Grantee shall send bills that are clear, concise and understandable. Such bills must be fully itemized, with itemizations, including, but not limited to, basic and premium service charges and equipment charges. Bills will also clearly delineate all activity during the billing period, including optional charges, rebates and credits.
All statements shall clearly indicate a date showing when the bill was sent and shall clearly indicate a telephone number for billing inquiries and adjustments.
All statements shall clearly denote the dates of service for which the Subscriber is being billed.
The Grantee shall issue the Subscriber a credit for the loss of four (4) continuous hours of service. Credits shall be applied to the Subscriber's monthly bill. Loss of service shall include, but not be limited to, loss of cable audio or video service from the cable to the Subscriber's television set, converter box failure or failure of similar devices which provide cable service to the Subscriber's television set. Credit adjustments shall be made no later than one (1) billing cycle following the determination that a credit is warranted.
The Grantee shall issue the Subscriber a refund, if any is due, upon termination of cable service and return of rental equipment for the reception of cable signals. The Grantee shall refund the Subscriber in the form of a refund check. Refund checks shall be issued promptly, but no later than either the customer's next billing cycle following resolution of the request, or thirty (30) days, whichever is earlier, or the return of the equipment supplied by the Grantee if service is terminated.
Past due billing statements or past due notices shall be delivered in the same manner and method as the Subscriber billing statement. The Grantee may, at its discretion, send past due notices more frequently to the Subscriber than the regular Subscriber statement.
The Grantee shall be prohibited from engaging in negative option billing, as so defined in Section 623(f) of the Cable Consumer Protection and Competition Act of 1992 (47 CFR 543).
Equipment and Service Deposits.
The Grantee may assess a reasonable deposit for the acquisition of cable service by a Subscriber and for the rental of converter box, remote control and related equipment necessary for the reception or interdiction of cable service to the Subscriber's television set. Grantee shall receive no deposit, advance payment or penalty from any Subscriber or potential Subscriber for services other than those which are specified in Section 15.213 herein.
Upon the termination of cable service by the Subscriber and return of converter boxes, remote control units and related equipment, in reasonable condition, deposits for said service and equipment shall be returned to the Subscriber at the time when the equipment supplied by the Grantee is returned.
If the Subscriber has placed a deposit for cable services and related equipment in an amount exceeding one hundred dollars ($100), the Grantee shall place the deposit in an interest-bearing account and refund the deposit and interest upon termination of cable service and return of the equipment, in reasonable operating condition.
Deposits for Installation of service shall be returned to the Subscriber within thirty (30) days, or cancellation of service.
Grantee shall refund to any Subscriber of less than thirty (30) days an amount equal to the installation and connection charge paid by such Subscriber, in accordance with the then existing schedule of charges due to:
Grantee's failure to render service to such Subscriber of a type and quality provided for herein;
If service to a Subscriber is terminated by the Grantee without good cause; or,
If the Grantee ceases to operate the Cable System or any Video Communications System authorized herein for any reason except for termination or expiration of the Franchise.
[Ord. 6400, amend, 10/6/1998]
Under the terms of this Section, the Grantee shall be required to refund the monthly charge on a prorated basis for interruption of service.
Subscriber Complaint Procedure.
Upon receipt by the Grantee of a complaint by phone or in writing, the Grantee shall document said complaint and, where necessary, investigate or reply to the Subscriber's complaint within twenty-four (24) hours of receipt of said complaint.
If the Grantee's response to the complaint is not satisfactory to the complainant, the complainant shall be referred to the Grantee's appropriate management personnel for further assistance. Grantee's management shall make a good faith effort to reach resolution of the complaint in a manner satisfactory to the complainant within forty-eight (48) hours of referral of said complaint. If Grantee's management cannot resolve the complaint to the satisfaction of the complainant, Grantee shall provide the name, address and telephone number of appropriate management staff at the next level of operations, to include area, regional or national offices.
[Ord. 6400, amend, 10/6/1998]
Grantee shall respond in writing to written Subscriber complaints within fourteen (14) calendar days of receipt of said complaint. The Grantee shall make a good faith effort to resolve such complaints within a reasonable period of time, such period of time not to exceed forty-five (45) calendar days after receipt of such correspondence. Complaints which have not been satisfactorily resolved may be brought to the attention of the Franchising Authority by a citizen, Subscriber or by the Grantee upon expiration of the forty-five (45) day period.
Installation of Service.
Standard Installations will be performed within five (5) business days after an order has been placed. Standard Installations shall be those that are located up to one hundred twenty-five (125) feet from the existing Cable System or any Video Communications System.
[Ord. 6400, amend, 10/6/1998]
Where the Grantee has received a request for a non-standard Installation, which shall include, but not be limited to, those Installations which are located more than one hundred twenty-five (125) feet from the existing distribution system, or an Installation that does not meet general specifications of a standard Installation as a result of the requirements of the Subscriber, the Grantee shall provide said non-standard Installation within seventy-five (75) calendar days of the receipt of the request, provided that the Grantee has applied for and received all necessary permits, approvals and/or licenses prior to the scheduled date of Installation.
Where Installation is to take place in a single-family or multi-family housing unit, subdivision, commercial building or condominium association building or common area, the Grantee shall be required to receive approval of construction plans for wiring of Subscriber Drop cable and rights of entry onto the premises prior to the start of installation work. In the event that the Grantee must use an easement for transmission of cable service to a Subscriber on property owned by a condominium association, Grantee shall secure said easement in accordance with all applicable local and state laws and regulations.
Temporary Subscriber Drops shall be buried within ninety (90) days of the date of installation, unless the Grantee receives permission from the City to postpone burial.
Service Disconnection.
A Subscriber shall have the ability to disconnect his service at any time at no charge. The Grantee shall disconnect the Subscriber's service within forty-eight (48) hours of notification to the Grantee of the request for disconnection.
A Subscriber shall not be disconnected if the status of his account is in dispute and notice is given by the Subscriber to the Grantee, in writing, that the status of his account is in dispute, and the Grantee and the Subscriber are working to resolve the amount in dispute. If no resolution is reached within sixty (60) days, Grantee may disconnect the Subscriber.
Authority to Investigate Subscriber Complaints. The Franchising Authority shall have the authority to investigate complaints tendered by Subscribers upon notification to the Franchising Authority either by telephone or in writing. The Franchising Authority shall keep a documented record of all complaints. Complaints received by the Franchising Authority shall be forwarded to the Grantee. Upon completion of investigation of a Subscriber complaint, the Franchising Authority shall have the authority to order the Grantee to correct any error, deficiency or violation of the Franchise Agreement or this Ordinance found in the course of such investigation. The Franchising Authority shall have the authority to require the Grantee to develop procedures for resolution of complaints, as a condition of the Franchise Agreement, and to require the Grantee to review and amend such procedures from time to time, if necessary.
Promotional Materials. Grantee shall file with the Franchising Authority a copy of all local, regional, statewide or national promotions, which it offers to Subscribers, not later than the date of mailing to Subscribers.
Service to Public Facilities. As provided for in the Franchise Agreement:
[Ord. 6400, amend S. 15.251(B)(C), 10/6/1998]
The Grantee shall provide Subscriber cable connections to all schools, government buildings and public institutions used for municipal purposes.
Grantee shall provide, at no charge, an adequate number of Cable System or any Video Communications System outlets to each floor of each public, private and parochial school building, in a manner that will allow for cable television reception in classrooms designated by each school, and for provision of reception in non-public areas of each school, as so designated by each school. If, upon request, a school desires installation of a number of outlets beyond the number initially installed, Grantee may charge each school for up to fifty percent (50%) of the actual cost for labor and materials necessary for providing adequate Cable System wiring.
Grantee shall provide an adequate number of Cable System or any Video Communications System outlets at the City Hall, School buildings, government buildings and public institutions designated by the City in the Franchise Agreement. Grantee shall provide all Cable System or any Video Communications System connections free of charge; however, Grantee may charge the City for the labor and materials cost of any nonstandard Installation, as defined herein, to any City building.
Grantee shall provide equipment for providing live cablecasting of programming from school buildings or government buildings and other public institutions. In lieu of the provision of equipment, Grantee may provide a sum of moneys, equivalent to the cost of cablecasting equipment, to the School District and the City for the purchase of cablecasting equipment.
Unlawful Use of Equipment, Devices, Computer Hardware and Software. It shall be unlawful for any person to install, attach, wire, program or connect or to cause to be installed, attached, wired, programmed or connected, any equipment, device or computer hardware or software, which enables the use of cable television signals transmitted by the Grantee without compensation to the Grantee for said cable television signals.
Removal or Destruction Prohibited. It shall be unlawful for any firm, person, group, company, corporation or government body or agency to willfully interfere, tamper, remove, obstruct or damage any part, segment or content of a franchised Cable System or any Video Communications System for any purpose whatsoever.
[Ord. 6400, amend, 10/6/1998]
Reselling Service Prohibited. No person receiving, within the Franchise Area, any cable service, program or signal transmitted by any Grantee operating under a Franchise issued by the Franchising Authority shall resell such service, program or signal without the expressed written consent of the Grantee.
Sale or Service of Television Receivers Prohibited. Neither the Grantee during the period of the Franchise, nor any of its affiliated, subsidiary, parent organizations, officers, directors or stockholders holding five percent (5%) or more of outstanding stock of the Grantee, shall, within the corporate limits of the City or within ten (10) miles in any direction, directly or indirectly, engage in the retail sale, renting, leasing or repairing of radio or television receivers or their appurtenances, nor shall they require any Subscriber to utilize the services of any specific television/radio business for the repair or maintenance of the Subscriber's receivers, either radio or television.
No provision of this Ordinance shall be deemed to bar or otherwise limit the right of the City to seek or obtain judicial relief from a violation of any provision of the Franchise or any rule, regulation, requirement or directive promulgated thereunder. Neither the existence of other remedies identified in this Ordinance nor the exercise thereof shall be deemed to bar or otherwise limit the right of the City to recover monetary damages, except, where liquidated damages are otherwise prescribed, for such violation by the Grantee or judicial enforcement of the Grantee's obligations by means of specific performance, injunction relief or mandate, or any other remedy available contractually, at law or in equity.
Unless otherwise provided, any person convicted of violating any provision of this Ordinance or any rule or regulation promulgated hereunder shall, upon conviction, be subject to a fine not to exceed five hundred dollars ($500) for each offense. Each day of a continuing violation shall constitute a separate and distinct offense.
By acceptance of the Franchise, each Grantee shall agree that failure to comply with any time and performance requirements, as stipulated in this Ordinance and the Franchise Agreement, will result in damage to the City, and that it may be impracticable to determine the actual amount of such damage in the event of delay or nonperformance; therefore, the applicable Franchise Agreement shall include provisions for liquidated damages to be paid by the Grantee, in amounts set forth in the applicable Franchise Agreement and chargeable to a security fund therein created.
If the City concludes that a Grantee is liable for contractual penalties pursuant to this Section, it shall issue to Grantee, by certified United States mail, a notice of intention to assess contractual penalties. The notice shall set forth the basis for the assessment and shall inform the Grantee that contractual penalties will be assessed from the date of the notice, unless the assessment notice is appealed for hearing before the Common Council and the Common Council rules that the violation did not occur or that an extension of time or other relief should be granted. A Grantee desiring a hearing before the Common Council shall send a written notice of appeal by certified United States mail to the City within fifteen (15) calendar days of the date on which the City sent the notice of intention to assess contractual penalties. Such notice of appeal shall contain a brief statement of Grantee's basis for appeal.
The hearing on Grantee's behalf shall be within forty (40) calendar days of the date on which the City sent the notice of intention to assess contractual penalties. Unless the Common Council indicates to the contrary, said contractual penalties shall be assessed beginning with the date on which the City sent the notice of the intention to assess contractual penalties and continuing thereafter, until such time as the violation ceases, as determined by the City.
Unless otherwise stated in this Ordinance or in the Franchise Agreement, the Grantee shall comply with the terms and conditions of the Ordinance or Franchise Agreement, upon notification by the Franchising Authority or upon Grantee's discovery:
For technical, repair, maintenance or other servicing of field or Headend equipment provisions, within two (2) calendar days;
For customer service, consumer protection and related violations, within three (3) calendar days;
For document filing and reports, within seven (7) calendar days;
For construction provisions, within ten (10) calendar days;
For other provisions not stated in this Section, a reasonable time period, as determined by the Franchising Authority, not to exceed forty-five (45) calendar days.
The Grantee shall designate a person within its management structure who shall have the authority to receive and respond to notifications sent by the Franchising Authority of Franchise violations, Subscriber complaints or other concerns relating to the Franchise.
In such cases where the Franchising Authority corresponds, in writing, its belief of a Franchise violation, its receipt of Subscriber complaints or other concerns related to the Franchise, the Franchising Authority shall indicate any action that it believes is in violation of the Franchise, shall state the applicable Ordinance and Franchise Agreement sections, shall set forth a period for compliance and notify any action to be taken, if the Grantee does not comply, including applicable penalties.
Upon notification of a Franchise violation by the Franchising Authority, the Grantee may immediately comply with the request of the Franchising Authority;
Seek an alternative remedy which will achieve compliance that the Franchising Authority finds allowable; or,
Grantee may appeal the violation to the Common Council at a regularly scheduled Common Council meeting.
Subject to the provisions of this Ordinance, a Grantee shall not be relieved of its obligations to comply with any of the rules, regulations, requirements or directives, as stated within this Ordinance or the Franchise Agreement, by reason of any failure of the City or its officers, agents or employees to enforce prompt compliance, nor shall such be considered a waiver thereof.
Nothing in this Ordinance or in any Franchise Agreement shall be construed as an abrogation by the City of any of its police powers.
The Grantee shall comply with all applicable local and state laws, rules and regulations concerning consumer privacy and shall fully comply with federal laws concerning consumer privacy, as expressed in Section 631, et. seq., of the Communications Policy Act of 1934, as or hereinafter amended (47 CFR 551), or any successor provision.
If, during the term of this Franchise, Grantee receives refunds of any compulsory copyright or retransmission payments made for television or radio signals, it shall, without delay, notify the Franchising Authority, recommend a plan for flow-through of the refunds to its Subscribers and retain such refunds pending order of the Franchising Authority. After considering the plan submitted by the Grantee, the Franchising Authority may order the flow-through of the refunds to the Grantee's Subscribers in a fair and equitable manner.
The Grantee shall assume any reasonable cost of publication of the notice of the Franchise, as such publication is required by law, and such is payable upon the Grantee's acceptance of Franchise.
The Grantee shall not refuse to hire, nor discharge from employment, nor discriminate against any person regarding compensation, terms, conditions or privileges of employment because of age, sex, race, color, creed, religion, national origin, marital or veterans status, disability or any other legally protected status. Grantee shall take affirmative action to insure that employees are treated fairly and equally during employment, without regard to their age, sex, race, color, creed, national origin, marital or veterans status or disability.
The Grantee shall take affirmative action to disseminate information concerning the availability of its services to minority, female and disabled groups and other under-represented groups. This provision shall not be deemed to prohibit promotional campaigns to stimulate subscription to the Grantee's services or other legitimate uses thereof.
[Ord. 6400, amend, 10/6/1998]
The Grantee will comply with equal employment opportunity requirements, as stated in Section 634, et. seq., of the Communications Act of 1934, as now or hereinafter amended, or any successor provision, and with applicable Wisconsin Statutes.
Grantee shall have the authority to promulgate such rules, regulations, terms and conditions of its business, as shall be reasonably necessary to enable it to exercise its rights and perform its services under this Ordinance and the rules of the FCC, and to assure uninterrupted service to each and all of its Subscribers. None of such rules, regulations, terms and conditions promulgated under this Section shall be in conflict with the provisions hereof or the laws of the State of Wisconsin, or the rules and regulations of the FCC, or any successor agency, or any rules and regulations promulgated by the City in the exercise of its regulatory authority. Such rules and regulations shall not be deemed to have the force of law. Two (2) copies of such rules and regulations, together with any amendments, shall be kept currently on file with the Franchising Authority and another copy thereof shall be maintained for public inspection during normal business hours at Grantee's office in the City. No rules, regulations, terms, conditions or amendments, deletions or additions thereto shall take effect unless and until so filed and maintained.
A Grantee or other person may not be excused from complying with any of the terms and conditions of this Ordinance or a Franchise Agreement by any failure of the Franchising Authority, upon one or more occasions, to require compliance or performance.
The Franchising Authority may, on its own motion or at the request of an applicant or Grantee for good cause shown, waive any requirement of this Ordinance.
The Grantee agrees, by the acceptance of the Franchise, to accept the validity of the terms and condition of this Ordinance and the Franchise in their entirety and that it will not, at any time, proceed against the Franchising Authority in any claim or proceeding challenging any term or provision of this Ordinance or the Franchise as unreasonable, arbitrary or void, or that the Franchising Authority did not have the authority to impose such term or condition.
Whenever any provision of this Ordinance or the Franchise Agreement shall set forth any time for any act to be performed by a Grantee, such time shall be deemed to be of the essence and the Grantee's failure to perform within the time allotted shall, in all cases, be sufficient grounds for the Franchising Authority to invoke an appropriate remedy or penalty, including the possible revocation of the Franchise Agreement.
Except as provided in Section 15.1825 hereof, whenever a period of time is provided for in this Ordinance or the Franchise Agreement, for either the City or the Grantee to do or perform any act or obligation, neither party shall be liable for any delays due to war, riot, insurrection, rebellion, strike, lockout, unavoidable casualty or damage to personnel, materials or equipment, fire, flood, storm, earthquake, tornado, orders of a court of competent jurisdiction, any act of God, failure of a utility provider to provide pole attachments on reasonable terms or conditions therefor, or any cause beyond the control of said party. In such event, said time period shall be extended for the amount of time said party is so delayed. An act or omission shall not be deemed to be beyond a Grantee's control if committed, omitted or caused by a corporation or other business entity which holds a controlling interest in the Grantee, whether directly or indirectly. Further, the failure of a Grantee to obtain financing, or to pay any money due from it to any person, including the City, for whatever reason, shall not be an act or omission which is beyond the control of the Grantee.
The City may, from time to time, add to, modify or delete provisions of this Ordinance, as it shall deem necessary in the exercise of its regulatory powers, provided that such additions or revisions are reasonable and do not place an undue financial burden on the Grantee. Such addition or revision shall be made only after a public hearing for which the Grantee has received written notice at least thirty (30) days prior to such hearing.
Nothing herein shall be deemed or construed to impair or affect, in any way to any extent, the right of the City to acquire the property of the Grantee through the exercise of the right of eminent domain, at a fair and just value, which shall not include any amount for the Franchise itself or for any of the rights or privileges granted, and nothing shall be construed to contract away or modify or abridge, either for a term or in perpetuity, the City's right to eminent domain.
Any right, power or duty of the Mayor, the Regulatory Board and Common Council of the City of West Allis, the agency or any official of the City under this Ordinance may be transferred or delegated by ordinance, resolution or other appropriate action of the City to an appropriate officer, employee or Department of the City, or any legal authority created for the purpose of regulating the operation and development of the cable television system.
The provisions of this Ordinance are severable and, if any provision or application is held to be illegal, unconstitutional or invalid, such holding shall not affect the remaining provisions. It is the legislative intent of the City that the Ordinance would have been adopted if such illegal provision had not been included or any illegal application had not been made.
Neither the City nor the Grantee waive or release rights bestowed on either party by virtue of law or statute.