Chapter 15 - Cable TV
15.01 GRANT OF FRANCHISE.
There is granted to TCI Cablevision of Wisconsin, Inc. (TCI), with offices at 5723 Tokay Boulevard, Madison, Wisconsin, 53703, a non exclusive franchise to install, maintain and operate a cable television system for the distribution of television signals, frequency modulated radio signals, closed circuit television programs, data transmissions and any and all additional services which are now or may be commonly associated with the cable television industry in the future. The term of this grant is for fifteen (15) years. TCI is the holder of cable television franchises in the municipalities, villages and towns contiguous to the Town of Dunkirk. TCI is a joint venture consisting of the principals that own TCI Cablevision of Wisconsin, Inc., the cable television operation in Madison, Wisconsin. It is the purpose and intent of this franchise to grant TCI Cablevision of Wisconsin, Inc. the authority to extend and operate its cable television system in the Town of Dunkirk such that said system is, subject to economic realities, similar in all material respects regarding programming service, rates and technological capacity to TCI Cablevision of Wisconsin, Inc.'s systems operating in the surrounding communities. The Town of Dunkirk recognizes that in certain instances, for economic reasons, it may not be economically feasible for the cable television system to be extended to all residents of the Town of Dunkirk, in which case the extension of service shall be subject to the extension policy of TCI Cablevision of Wisconsin, Inc. attached and marked Exhibit A to this ordinance.
15.02 DEFINITIONS.
The following words and phrases, whenever used in this chapter shall be construed as defined in this section unless from the context a different meaning is intended or unless a different meaning is specifically defined and more particularly directed to the use of such word or phrase:
1. "Additional Service."
Any subscriber service provided by the grantee for which a special charge is made in addition to the regular monthly charge paid by all subscribers.
2. "Annual Gross Subscriber Revenues ."
All monthly service revenues received by the grantee in connection with the operation of the Cable System in the Town of Dunkirk, including revenues from data transmission and per program charges.
3. “Basic Subscriber Service.”
Subscriber services provided by the grantee, including the delivery of broadcast signals and programming originated over the cable system, covered by the regular monthly charge paid by all subscribers.
4. “Board.”
The duly elected Town Board of the Town of Dunkirk or other future governing body of said entity. A system of antennas and other receiving equipment, cables, wires, lines, towers, waveguides, laser beams or any other conductors, converters, equipment or facilities, designed or constructed for the purpose of producing, receiving, amplifying and distributing by audio, video and other forms of electronic or electrical signals to and/or from locations in and outside the Town of Dunkirk.
5. "Full Network Services,"
All ”basic services " and "additional services" offered by the grantee.
6. “Grantee."
TCI Cablevision of Wisconsin, Inc.
7. ”Subscriber.”
A purchaser of any service delivered by grantee pursuant to this franchise,. and "subscriber" shall also include all persons who are not required to pay any fee, but receive any service delivered by grantee pursuant to this franchise.
8. “Substantially Completed”
Construction will be considered substantially completed when sufficient distribution facilities have been installed so as to permit the offering of "basic subscriber service” to at least eighty percent (80%) of the dwelling units in each of the initial service areas.
9. “Town.”
Town of Dunkirk.
15.03 FRANCHISE EXPIRATION AND CANCELLATION.
1. The Town may revoke any franchise granted hereunder and rescind all rights and privileges associated therewith subject to Subparagraph B herein upon the occurrence of one of the following events.
a. Failure of the grantee to pay all fees due the Town provided that said fees are not the subject of a legal dispute.
b. An unauthorized failure of the grantee to provide services to existing subscribers for a period of 30 days.
c. Failure of the grantee to have substantially completed construction of the cable system within the initial service area within the time provided in this ordinance.
d. Other material or substantial breach of any term or condition of this ordinance.
2. In the event the Board determines it is in the public interest to terminate the cable television franchise, the Board shall give the grantee sixty (60) days written notice of its intention to terminate and stipulate the cause. If during the sixty (60) day period, the cause shall be cured, the notice and right to terminate shall be null and void. The grantee shall, in any event, be given an opportunity to be heard before the Board regarding termination and the grantee shall be afforded all due process rights regarding termination. In the event of termination, the Board shall provide a written summary of its reasons for termination and said decision shall be subject to judicial review.
15.04 TRANSFER OF CONTROL.
No transfer of effective ownership or control of the cable system may take place, whether by forced or voluntary sale, or any other form of disposition, without prior notice to and approval by the Board. The Board shall grant approval so long as it has received adequate assurance that the succeeding franchise holder will comply with this ordinance and provide adequate service and performance. For purposes of this section, a “transfer of effective ownership or control" shall be taken to mean and include the acquisition, within any consecutive period of twelve (12) months, of more than thirty percent (30%) interest in the grantee's voting stock, franchise rights, physical system, or substantially all of the property used in the conduct of the business by any person or group of persons acting in concert who before that period did not enjoy such interest or representation. Such definition shall not include the disposition of facilities or equipment no longer required in the conduct of the business or a pledge or mortgage or similar instrument transferring conditional ownership of all or part of the system's assets to a lender or creditor in the ordinary course of business.
15.05 FRANCHISE TERRITORY AND EXTENSION OF SERVICE.
1. The initial service area to be covered by the franchise is particularly described as follows: That area presently being provided with cable television service subject to the line extension policy attached and marked Exhibit A to this ordinance.
2. The grantee shall have substantially completed construction within the initial service area within fifteen (15) months of the effective date of the franchise.
3. The grantee shall be required to extend its service into any part of the Town of Dunkirk pursuant to the attached extension policy. Where the density is less than as set forth in said policy, extensions shall be required only when subscribers desiring the grantee's services shall agree to bear the cost of the materials and labor necessary to construct the extension.
4. The grantee shall be allowed to furnish service to areas outside the initial service area provided, however, that the construction or provision of services to such other areas does not prohibit, impede or delay the substantial completion date of the system within the initial service area.
15.06 SUBSCRIBER PRIVACY.
No monitoring of any terminal connected to the system shall take place without specific written authorization by the user of the terminal in question.
15.07 TECHNICAL STANDARDS AND COMPLAINTS.
1. Grantee shall maintain a cable television system of equal technological capability and in compliance with all technological standards similar to the systems in surrounding environs to the Town of Dunkirk. The purpose and intent of this provision is to require the grantee to maintain its cable television system in the same manner in which it is operating in surrounding communities. This shall include, but not be limited to, compliance with all Federal Communications Commission technological standards. The Town of Dunkirk recognizes that the system serving the Town of Dunkirk is an extension of the cable television system serving the surrounding franchise areas and that grantee cannot provide additional technological capabilities or maintain higher technical standards than as in the surrounding communities.
2. The full network service as provided by the grantee to subscribers in the Town of Dunkirk shall, subject to copyright, program charges and delivery costs, consist of the same program format and content provided by the grantee to surrounding cable television systems for equivalent services.
3. Grantee shall keep a record of complaints received for a period of one year after receipt of said complaints and shall make available to the Board, upon request, a compilation of such complaints showing when received and the general nature of the complaints.
15.08 RATES,
1. The Town of Dunkirk shall not exercise rate-making authority over any services of grantee, including but not limited to the basic rates charged for basic services, provided however, that the rates charged by grantee shall not at any time exceed the rates charged subscribers in the City of Stoughton for similar services.
2. The grantee shall be allowed to charge up to Twenty five Dollars ($25.00) per installation charge. It is understood that the grantee may, from time to time, waive the installation charge for purposes of marketing.
15.09 GRANTEE'S USE OF TOWN RIGHTS.
Upon acceptance of this franchise, Grantee is hereby granted the right to erect, maintain, and operate in the streets, alleys and utility easements of the Town of Dunkirk and other public places a cable system. The poles used for such distribution shall be those erected or used by the local utilities. The grantee may erect its own poles where necessary after first obtaining permission from the Board.
15.10 METHOD OF INSTALLATION.
1. All installations made by the grantee shall be made in good, substantial, safe condition and maintained in such condition at all times and shall be made in accordance with all applicable rules and regulations, included in the rules and regulations of the utility company owning any poles utilized by the grantee. The grantee shall make no excavations in the streets, alleys and public places without first procuring a written permit from the Town Engineer or other authorized representative of the Town, and all work of such kind shall be done so as to meet the approval of the Town's Engineer or other person authorized by the Town to approve such work.
2. The grantee's transmission and distribution system poles, wires and appurtenances shall be located, erected and maintained so as not to interfere with the lives or safety of persons, or to interfere with improvements the Town may deem proper to make, or to unnecessarily hinder or obstruct the free use of the streets, alleys, bridges or other public property.
3. Grantee shall restore all areas of construction and/or excavation to the condition existing prior to the beginning of construction and/or excavation.
15.11 AUTHORITY TO TRIM TREES.
The grantee shall have the authority to trim trees upon any overhanging streets, alleys, sidewalks and other public places of the Town, so as to prevent the branches of such trees from coming in contact with the wires and cables of the company.
15.12 INDEMNITY.
1. The grantee shall indemnify, defend and save the Town and its agents and employees harmless from all claims, damages; losses and expenses, including attorney's fees, sustained by the Town on account of any suit, judgment execution, claim or demand whatsoever arising out of the installation, operation, maintenance, repair use or removal of the cable system, except for such claims, damages, losses and expenses, including attorney's fees, which are attributable in part or in whole to acts of the Town or its agents.
2. The grantee shall maintain throughout the term of the franchise a general comprehensive liability insurance policy naming as an additional insured the Town, its officers, boards, commissions, agents and employees, in a company approved by the Town, protecting the Town and its agencies and employees against liability for loss or damage for personal injury, death or property damage, occasioned by the operations of grantee under the franchise granted hereunder, in the amounts of One Million Dollars ($1,000,000.00) for bodily injury or death to anyone person within the limit, however, of Three Million Dollars $3,000,000.00) for bodily injury or death resulting from anyone accident, and Five Hundred Thousand Dollars ($500,000.00) for property damage resulting from anyone accident.
3. The insurance policy shall contain an endorsement stating that the policy is extended to cover the liability assumed by the grantee under the terms of this ordinance and shall further contain the following endorsement:
It is hereby understood and agreed that this policy may not be cancelled nor the amount of coverage thereof reduced until thirty (30) days after receipt by the Town Clerk by registered mail of a written notice of such intent to cancel or reduce the coverage.
15.13 FEES.
The grantee shall pay to the Town an annual fee in the amount of three percent (3%) of the annual gross subscriber revenues as defined herein.
15.14 JOINT USE.
The grantee shall grant to the Town, free of expense, joint use of any and all poles owned by it for any proper municipal purposes, insofar as it may be done without interfering with the free use and enjoyment of the grantee's own wires and fixtures, and the Town shall hold the grantee harmless from any and all actions, causes of action, or damage caused by the placing of the Town's wires or appurtenances upon the poles of the grantee. Proper regard shall be given to all existing safety rules governing construction and maintenance in effect at the time of construction.
15.15 UNAUTHORIZED CONNECTIONS OR MODIFICATIONS
1. It shall be unlawful for any firm, person, group, company, corporation or governmental body or agency, without the expressed written consent of the grantee, to make or possess any connection, extension or diversion, whether physically. acoustically, inductively, electronically or otherwise, with or to any segment of the cable system for any purpose whatsoever.
2. 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 the cable system for any purpose whatsoever.
3. Any person violating this section shall be subject to a forfeiture of up to Five Hundred Dollars ($500.00) per occurrence and may be required to pay for any damages resulting from said violation. Each continuing day of the violation shall be considered a separate occurrence.
15.16 SEVERABILITY.
Should any word, phrase) clause, sentence, paragraph or portion of this ordinance and franchise be declared to be invalid by a Court of competent jurisdiction, such adjudication shall not affect the validity of this ordinance and franchise as a whole, but shall only affect the portion thereof declared to be invalid; and the Town hereby expressly states and declares that it would nonetheless have passed this ordinance and granted this franchise had it known that any such word, phrase, clause, sentence, paragraph or portion of said franchise were invalid.
15.17 COMPLIANCE TO LAWS, RULES AND REGULATIONS
In the event any valid law, rule or regulation of any governing authority or agency having jurisdiction, including but not limited to, the Federal Communications Commission, contravenes the provisions of this ordinance subsequent to its adoption, then the provisions hereof shall be superseded to the extent that the provisions hereof are in conflict with any such law, rule or regulation.
15.18 PROTECTION OF NONSUBSCRIBERS.
Grantee shall at all times keep its cables and other appurtenances used for transmitting signals protected in such a manner that there will be no interference with communications signals received by persons not subscribing to grantee1s service.
15.19 CONFLICT WITH OTHER ORDINANCES.
Should any other ordinance or part thereof be in conflict with the provisions of this ordinance, this ordinance shall prevail insofar as it applies to a Cable Communications Systems Franchise granted to TCI Cablevision of Wisconsin, Inc.
LINE EXTENSION POLICY
There are two categories of line extensions; distribution system extensions and service drop extensions.
DISTRIBUTION SYSTEM EXTENSION.
The distribution system is defined to include all trunk cable, feeder cable, directional taps, amplifiers and line equipment necessary to provide points of connection with service drops. Normally, the distribution system is located on public streets, alleys, roads and back lot lines so that it may be extended to other applicants. It may also be located on easements granted by the property owner.
Complete Channel TV CO.’s policy in determining the feasibility of an extension of the distribution system is that the cable distribution system will be extended beyond the present plant configuration at such time as a minimum of 35 applicants per mile of extension have petitioned the company for cable service. The extension of the distribution system will be at no cost to the subscribers. The individual installations will be subject to the then existing installation rate and the service drop extension policy.
SERVICE DROP EXTENSION.
A service drop is defined as the cable or cables between the distribution pedestal or pole and the point of attachment to the applicants receiver. Service drop extensions will be provided at prescribed installation rates to the subscriber if the subscriber resides within 300 feet of the legally accessible route or path to the subscriber from the distribution system and if the installation does not involve unusual connection circumstances. Subscribers located in excess of 300 feet from the distribution system will be charged Complete Channel TV CO.’s time and materials for installation of the service to that subscriber.
The following are examples of unusual connection circumstances which will require a charge back to subscriber for cost and materials (See Section 31.18(1)(c) of the Broadband Telecommunications Ordinance):
1. If it is necessary to bore or cut a patch through or under roads, driveways, parking lots or other inaccessible areas, there will be a charge for the time and materials of said construction. This will also include the construction of conduits and/or manholes.
2. If it is necessary to remove or replace concrete, such as sidewalks, there will be a charge for time and materials.
3. Whenever amplifiers or line extenders are needed to serve the subscriber, there will be a charge for the installation and cost of said amplifiers or line extenders.
4. If it is necessary to build aerial plant because of the inaccessibility of the subscriber, there will be a charge for the time and materials of said construction.
5. If it is necessary to install or construct underground extension plant, as distinguished from underground drops, there will be a charge for the cost of construction.
6. If it is necessary to cross a railroad crossing or obtain an easement for said crossing, the cost of the easement or crossing will be charged back to the subscriber.
The above examples are examples of unusual connection charges which will be charged back to the subscriber whether or not he or she is within 300 feet of the distribution system.
