Sec.
32-51. Authority; findings; intent.
(a) Pursuant to applicable federal and state law, the village
is authorized to grant one or more nonexclusive franchises to construct,
operate, maintain and reconstruct cable television systems within
the village limits.
(b) The village council finds that the development of cable television
and communications systems has the potential of having great benefit
and impact upon the residents of the village. Because of the complex
and rapidly changing technology associated with cable television,
the village council further finds that the public convenience, safety
and general welfare can best be served by establishing regulatory
powers which should be vested in the village or such persons as the
village may designate.
(c) It is the intent of this division and subsequent amendments
to provide for, and specify the means to attain, the best possible
cable television service to the public, and any franchises issued
pursuant to this division shall be deemed to include such intent as
an integral finding thereof.
(Ord. No. 186, art. II, § 23.31, 11-16-1993)
Sec.
32-52. Definitions.
The following words, terms and phrases, when used in this division,
shall have the meanings ascribed to them in this section, except where
the context clearly indicates a different meaning. Words used in the
present tense include the future; words in the plural number include
the singular number; and words in the singular number include the
plural number. Words not defined in this section shall be given their
common and ordinary meaning.
- Affiliate,
when used in relation to any person, means another person who
owns or controls, is owned or controlled by, or is under common
ownership or control with, such person.
- Basic
cable service means any service tier which includes the retransmission
of local television broadcast signals and educational and governmental
access signals.
- Cable
operator means any person, or group of persons, who:
(1) Provides cable service over a cable system and, directly
or through one or more affiliates, owns a significant interest in
such cable system; or
(2) Otherwise controls or is responsible for, through any arrangement,
the management and operation of such cable system.
- Cable
service means the total of the following:
(1) The one-way transmission to subscribers of video programming
or other programming service; and
(2) Subscriber interaction, if any, which is required for the
selection of such video programming or other programming service.
- Cable
television system, system, cable communication system and cable
system means a facility consisting of a set of closed transmission
paths and associate signal generation, reception and control equipment
that is designed to provide cable service, which may include video
programming, data transmission and other services, and which is
provided to multiple subscribers within the village, but such term
does not include:
(1) A facility that serves only to transmit television signals
of one or more television broadcast stations;
(2) A facility that serves only subscribers in one or more
multiple unit dwellings under common ownership, control or management,
unless such facility uses any public rights-of-way;
(3) A facility of a common carrier, except that such facility shall
be considered a cable system to the extent such facility is used
in the transmission of video programming directly to subscribers;
or
(4) Any facilities of any electric utility used solely for
operating its electric utility system.
- Channel
and cable channel mean a portion of the electromagnet frequency
spectrum which is used in a cable system, which is capable of delivering
a television channel as defined by the Federal
- Communications
Commission (FCC).
- Educational
or government access facilities, EG access facilities and public
facilities mean the total of the following:
(1) Channel capacity designated for public, educational or
government use; and
(2) Facilities and equipment for the use of such channel capacity.
- Federal
agency means any agency of the United States, including the
FCC or any successor agency or commission.
- Franchise
means an initial authorization, or renewal thereof, issued by the
village council, whether such authorization is designated as a franchise,
permit, license, resolution, contract, certificate, agreement or
otherwise, which authorizes the construction and/or operation of
a cable system.
- Franchise
agreement means a franchise grant ordinance or a contractual
agreement, containing the specific provisions of the franchise granted,
including references, specifications, requirements and other related
matters.
- Franchise
fee means any fee or assessment of any kind imposed by a franchising
authority or other governmental entity on a grantee or cable subscriber,
or both, solely because of their status as such. Such term does
not include:
(1) 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 cable operators or cable
subscribers;
(2) Capital costs which are required by the franchise to be
incurred by the grantee;
(3) Requirements or charges incidental to the awarding or enforcing
of the franchise, including payments for bonds, security funds,
letters of credit, insurance, indemnification, penalties or liquidated
damages; or
(4) Any fee imposed under title 17, United States Code.
- Grantee
means any person receiving a franchise pursuant to this division
and under the granting franchise ordinance or agreement, and its
lawful successor, transferee or assignee.
- Grantor
and village mean the Village of Grosse Pointe Shores, as represented
by the village council or any delegate acting within the scope of
its jurisdiction.
- Gross
annual receipts means the annual gross receipts received by
a grantee from all sources of operations of the cable television
system within the village utilizing the public streets and rights-of-way
for which a franchise is required in order to deliver such cable
service, including, but not limited to, subscriber revenues, installation
charges, pay channel revenues, leased channel revenues, home shopping
program revenues, rental or leased equipment rentals, advertising
revenues, and any and all other revenues, even if separately identified
or accounted for by the grantee as franchise or other license fees,
excluding refundable deposits, rebates or credits.
- Initial
service area means the area of the village which will receive
service initially, as set forth in any franchise agreement.
- Installation
means the connection of the system to subscribers' terminals, and
the provision of service.
- Service
area and franchise area mean the entire geographic area within
the village as constituted, unless otherwise specified in the franchise
granting ordinance or agreement.
- Service
tier means a category of cable service or other services provided
by a grantee and for which a separate rate is charged by the grantee.
- Street
means each of the following, which are dedicated to the public,
and maintained under public authority or by others, and located
within the village limits:
(1) Streets;
(2) Roadways;
(3) Highways;
(4) Avenues;
(5) Lanes;
(6) Alleys;
(7) Sidewalks;
(8) Easements;
(9) Rights-of-way; and
(10) Similar public property and areas that the grantor shall
permit to be included within this definition from time to time.
- Subscriber
means any person who or which elects to subscribe to, for any
purpose, a service provided by the grantee by means of or in connection
with the cable system, and who pays the charges for such service.
- Television
local broadcast signals means signals receivable in the metropolitan
Detroit area, including, but not limited to, such signals on channels
2, 4, 7, 9, 20, 50, 56 and 62.
- Video
programming means programming provided by, or generally considered
comparable to programming provided by, a television broadcast station.
(Ord.
No. 186, art. II, § 23.32, 11-16-1993; Ord. No. 188, § 23.32(O),
5-24-1994)
Cross references: Definitions generally, § 1-2.
Sec.
32-53. Franchise to install and operate.
The purposes of a franchise granted by the village under the provisions
of this division shall be to:
(1) Engage in the business of providing cable television service,
and such other services as may be permitted by applicable law, to
subscribers within the designated service area.
(2) Erect, install, construct, repair, rebuild, reconstruct,
replace and maintain cable lines, related electronic equipment, supporting
structures, appurtenances and other property in connection with the
operation of the cable system in, on, over, under, upon, along and
across streets or other public places within the designated service
area.
(3) Maintain and operate the franchise properties for the origination,
reception, transmission, amplification and distribution of television
and radio signals and the delivery of cable services.
(4) Offer subscribers optional services on a per program or per
channel basis (pay cable). The grantee shall not, however, program
or in any way display obscene material such as X-rated motion pictures.
Further, upon request, the grantee will provide a parental control
device which allows parents to lock out both audio and video from
pay television programming.
(5) Provide and maintain a permanently installed automatic start
engine generator and transfer switch system at the headend, which
generator system will be automatically exercised weekly to confirm
readiness status and will automatically provide power in the event
of commercial power failure within the headend.
(6)Set forth obligations of a grantee under the franchise.
(Ord. No. 186, art. II, § 23.33, 11-16-1993)
Sec.
32-54. Franchise required; contents of agreement.
(a) It shall be unlawful for any person to construct, install
or operate a cable television system within any public street in the
village without a properly granted franchise awarded pursuant to the
provisions of this division.
(b) In addition to the matters required elsewhere in this division
to be included in the franchise agreement, the franchise agreement
shall contain the following express representations of the franchisee
that it:
(1) Accepts
and agrees to all of the provisions of this division.
(2) Recognizes the right of the village to amend this division,
provided that no amendment shall alter any expressed provision of
the franchise granted before the effective date of the amendment.
(3) Recognizes and agrees that it may be considered as a franchisee
for the purposes of this division.
(4) Recognizes and agrees that no franchise shall be exclusive.
(5) Recognizes and agrees that the franchise may be revocable
at the will of the village for any violation by the franchisee of
the provisions for this division or the franchise agreement, or
for the franchisee's failure to perform adequately under the franchise
agreement, as provided in this division and the franchise agreement.
(c) The
franchise agreement shall set forth the specific standards which the
franchisee must maintain in respect to signal quality requirements
and technical standards of construction, operation and maintenance
of the system, including provisions for system upgrade, to assure
that the grantee's cable system continues to reflect the general cable
industry state-of-the-art throughout the term of the franchise.
(d) The franchise agreement shall contain such further conditions
or provisions as may be included in the request for proposal and/or
negotiated between the village council and the franchisee, except
that no such conditions or provisions shall be such as to conflict
with any provisions of this division or any other law.
(Ord. No. 186, art. II, § 23.34, 11-16-1993)
Sec.
32-55. Term; renewal.
(a) A franchise granted under this division shall be for a term
established in the franchise agreement, commencing on the grantor's
adoption of an ordinance or resolution authorizing the franchise.
(b) A franchise granted under this division may be renewed upon
application of the grantee pursuant to the provisions of applicable
state and federal law and this division.
(Ord. No. 186, art. II, § 23.35, 11-16-1993)
Sec.
32-56. Territory.
Any franchise shall be valid within all the territorial limits of
the village, and within any area added to the village during the term
of the franchise, unless otherwise specified in the franchise granting
ordinance or agreement.
(Ord. No. 186, art. II, § 23.36, 11-16-1993)
Sec.
32-57. Construction; rules and regulations; amendments.
(a) This division shall be construed in a manner consistent with all
applicable federal and state laws. Whenever any duly authorized federal
or state agency shall exercise any paramount jurisdiction over any
specific provisions of this division, such paramount jurisdiction
shall preempt or preclude the exercise of like jurisdiction by the
village.
(b) If the state or federal government has discontinued or discontinues
preemption in any area of cable communications over which it formerly
exercised or currently exercises jurisdiction in a manner so as to
expand rather than limit municipal regulatory authority, the grantor
may, if it so elects, adopt rules and regulations in such areas to
the extent permitted by law. No such rules and regulations or other
rules and regulations of the grantor shall apply to any franchise
issued pursuant to this division prior to their adoption to the extent
precluded by the express terms of the franchise agreement. The grantor
may regulate rates and charges as provided under applicable law.
(c) This division and any rules or regulations as may be promulgated
from time to time, to the extent permitted in subsection (b) of this
section, shall apply to all franchises granted or renewed after the
effective date of the ordinance from which this division is derived.
(d) The village may amend this division, except that no amendment
shall alter any provision of any franchise granted before the effective
date of the amendment.
(Ord. No. 186, art. II, § 23.37, 11-16-1993)
Sec.
32-58. Transferability.
(a) The grantee shall not sell, transfer, lease, assign, sublet
or dispose of, or otherwise convey in any manner, in whole or in part,
either by forced or involuntary sale or ordinary sale, contract, consolidation
or otherwise, the franchise, or any of the rights or privileges granted
in such franchise, without the prior consent of the village council,
and then only upon such terms and conditions as may be prescribed
by the council. Consideration of any such transaction shall not be
unreasonably denied or delayed. Any attempt to sell, transfer, lease,
assign or otherwise dispose of the franchise without the consent of
the council shall be null and void. The granting of a security interest
in any assets of the grantee, or any mortgage or other hypothecation,
shall not be considered a transfer for the purposes of this section.
(b) The requirements of subsection (a) of this section shall
apply to any change in control of the grantee. The definition of the
term "any change in control of the grantee" shall be set
forth in the applicable franchise agreement.
(c)The grantee shall notify the grantor, in writing, of any foreclosure
or any other judicial sale of all or a substantial part of the franchise
property of the grantee or upon the termination of any lease or interest
covering all or a substantial part of the franchise property. Such
notification shall be considered by the grantor as notice that a change
in control of ownership of the franchise has taken place, and the
provisions under this section governing the consent of the grantor
to such change in control of ownership shall apply.
(d) For the purpose of determining whether it shall consent to
such change, transfer or acquisition of control, the grantor may inquire
into the qualifications of the prospective transferee or controlling
party, and the grantee shall assist the grantor in such inquiry. In
seeking the grantor's consent to any change of ownership or control,
the grantee shall have the responsibility of ensuring that the transferee
completes an application in a form and substance reasonably satisfactory
to the grantor, which application shall include, but not be limited
to, the information required under 32-63(1)--(8). An application shall
be submitted to the grantor not less than 90 days prior to the date
of transfer. The transferee shall be required to establish that it
possesses the qualifications and financial and technical capability
to operate and maintain the system and comply with all franchise requirements
for the remainder of the term of the franchise. The grantor shall
transfer and assign the rights and obligations of such franchise if,
after considering the legal, financial, character and technical quality
of the applicant and determining that they are satisfactory, and the
grantor finds that such transfer is acceptable. In no event shall
a transfer of ownership or control be approved without the successor
in interest becoming a signatory to the franchise agreement. The consent
of the grantor shall not be unreasonably delayed or denied.
(e) Any financial institution having a pledge of the grantee
or its assets for the advancement of money for the construction and/or
operation of the franchise shall have the right to notify the grantor
that it, or its designee satisfactory to the grantor, shall take control
of and operate the cable television system, in the event of a default
of the grantee's financial obligations. Further, such financial institution
shall also submit a plan for such operation within 30 days of assuming
such control that will ensure continued service and compliance with
all franchise requirements during the term the financial institution
exercises control over the system. The financial institution shall
not exercise control over the system for a period exceeding one year
unless such period of time is extended by the grantor, in its discretion,
and during such period of time, the financial institution shall have
the right to petition the grantor to transfer the franchise to another
grantee.
(f) Upon transfer, the grantee shall reimburse
the grantor for all of the grantor's reasonable processing and review
expenses in connection with a transfer of the franchise or of control
of the franchise, including, but not limited to, costs of administrative
review, financial, legal and technical evaluation of the proposed
transferee, consultants, including technical and legal experts and
all reasonable costs incurred by such experts, notice and publication
costs and document preparation expenses.
(Ord. No. 186, art. II, § 23.38, 11-16-1993)
Sec.
32-59. Geographical coverage.
(a) The grantee shall design, construct and maintain the cable
television system to have the capability to pass every dwelling unit
in the village, as well as in designated areas of the village park
and marina area (subject to technical capability) as may be set forth
in the franchise agreement.
(b) After service has been established by activating trunk and/or
distribution cables for any service area, the grantee shall provide
service to any requesting subscriber within the service area within
30 days from the date of request for such service, provided that the
grantee is able to secure all rights-of-way necessary to extend service
to such subscriber within such 30-day period on reasonable terms and
conditions.
(Ord. No. 186, art. II, § 23.39, 11-16-1993)
Sec.
32-60. Nonexclusivity.
Any franchise granted shall be nonexclusive. The grantor specifically
reserves the right to grant, at any time, such additional franchises
for a cable television system, or any component thereof, as it deems
appropriate, subject to applicable state and federal law; provided,
however, that no franchise shall be granted on terms materially less
burdensome or more favorable than any other franchise granted under
this division.
(Ord. No. 186, art. II, § 23.40, 11-16-1993)
Sec.
32-61. Multiple franchises.
(a) The grantor may grant any number of franchises on a village
or limited area basis. The grantor may limit the number of franchises
granted, based upon, but not necessarily limited to, the requirements
of applicable law and specific local considerations, such as the:
(1) Capacity
of the public rights-of-way to accommodate multiple coaxial cables
in addition to the cables, conduits and pipes of the utility systems,
such as electrical power, telephone, gas and sewerage.
(2) Benefits that may accrue to cable subscribers as a result
of cable system competition, such as lower rates and improved service.
(3) Disadvantages that may result from cable system competition,
such as the requirement for multiple pedestals on residents' property,
and the disruption arising from numerous excavations of the rights-of-way.
(b) Each
grantee awarded a franchise to serve the entire village shall offer
service to all residences in the village, in accordance with construction
and service schedules mutually agreed upon between the grantor and
grantee, and consistent with applicable law.
(c) Developers of new residential housing with underground utilities
shall provide conduit to accommodate cables for at least two cable
systems in accordance with the provisions of section 32-69(m).
(d) The grantor may require that any new grantee be responsible
for its own underground trenching and the costs associated therewith,
if, in the grantor's opinion, the rights-of-way in any particular
area cannot feasibly and reasonably accommodate additional cables.
(Ord. No. 186, art. II, § 23.41, 11-16-1993)
Sec.
32-62. Application required; fees.
(a) Any person desiring an initial franchise for a cable television
system shall file an application with the village.
(b) A reasonable nonrefundable application fee established by
the village shall accompany the application to cover all costs associated
with processing and reviewing the application, including, but not
limited to, costs of administrative review, financial, legal and technical
evaluation of the applicant, consultants, including technical and
legal experts, and all costs incurred by such experts, notice and
publication requirements with respect to the consideration of the
application and document preparation expenses. If such costs exceed
the application fee, the selected applicant shall pay the difference
to the village within 30 days following receipt of an itemized statement
of such costs.
(Ord. No. 186, art. II, § 23.42, 11-16-1993)
Sec.
32-63. Application contents.
An application for an initial franchise for a cable television system
shall contain the following, where applicable:
(1) A statement as to the proposed franchise and service area;
(2) A resume of the prior history of the applicant, including
the expertise of the applicant in the cable television field;
(3) A list of the partners, general and limited, of the applicant,
if a partnership, or the percentage of stock owned or controlled by
each stockholder, if a corporation;
(4) A list of officers, directors and managing employees of the applicant,
together with a description of the background of each such person;
(5) The names and addresses of any parent or subsidiary of the
applicant or any other business entity owning or controlling the applicant,
in whole or in part, or owned or controlled, in whole or in part,
by the applicant;
(6) A current financial statement of the applicant, verified
by an audit of a certified public accountant, or otherwise certified
to be true, complete and correct to the reasonable satisfaction of
the village;
(7) The proposed construction and service schedule;
(8) Any reasonable additional information that the village deems
applicable.
(Ord. No. 186, art. II, § 23.43, 11-16-1993)
Sec.
32-64. Consideration of initial applications.
(a) Upon receipt of any application for an initial franchise,
the village manager shall prepare a report and make recommendations
to the village council regarding such application. In preparing such
report and making such recommendations, the village manager shall
consider the following criteria, among other things:
(1) Service
priorities. The system capability, in terms of no cost or low cost
telecasting production facilities and service available to municipal
and educational institutions, community groups and individuals;
system provisions for two-way communications; and the maximum total
channels provided by the system.
(2) Installation plan. An installation plan that would provide
the flexibility needed to adjust to new developments, maintenance
practices and services that would be available to the subscriber
and the community upon initial activation and throughout the duration
of the franchise.
(3) Rate schedule. Applicants with the most reasonable or favorable
installation and subscriber rate schedule.
(4) Financial soundness. The evidence which the applicant has
provided regarding the applicant's:
a. Financial
ability to assure completion of initial construction as called
for in the application and franchise agreement within 18 months
of the effective date of the franchise;
b. Ability to obtain all necessary and required permits and
authorizations from the federal, state and local governments;
c. Ability to sustain and enhance a fiscally sound system
throughout the duration of the franchise;
d. Ability to obtain all necessary and required insurance,
performance bonds and to establish a security fund, all as specified
in this division, should the applicant be awarded the franchise.
Evidence of current financial capability shall include, but not
be limited to, the most recent three years' audited or reviewed
financial statements of the applicant and of any parent entities.
To permit the evaluation required by this subsection (a), a copy
of the most recently published annual report and 10-K report shall
be submitted if the applicant is, or is a subsidiary of, a publicly
held company.
(5) Demonstrated
operation experience. Demonstrated experience in operating a cable
communications system under a city or county franchise. To permit
evaluation under this subsection, the applicant shall submit all
evidence of the applicant's experience in operating a cable communications
system under a city or county franchise.
(6) Technical standards. The extent to which the system will meet
or exceed all of the then applicable technical standards and specifications
as set forth by the FCC or other appropriate federal or state agency
or industry standards.
(7) Pay cable services. The extent to which the system offers
at least alternate levels of pay cable services for the purpose
of providing a pay cable channel that would offer full service pay
cable programming and a distinct pay cable channel that would offer
a minipay package designed and marketed for general audience and
family viewing.
(8) Interconnection plan. The extent to which the system includes
a firm timetable for active interconnection with other political
subdivisions in the Detroit standard metropolitan statistical area.
(9) Innovative technology. The extent to which the system offers
system technology sufficiently flexible and progressive to adapt
to new services. Particular emphasis will be placed upon applications
that submit a plan for implementing at least the following services:
a. Home
security;
b. Energy management;
c. Meter reading;
d. Home computer for entertainment, educational, business
or personal purposes;
e. Two-way computer data transmission and traffic signalization.
(b) A
public hearing shall be set prior to any initial franchise grant,
at a time and date approved by the council. Within 30 days after the
close of the hearing, the council shall make a decision based upon
the evidence received at the hearing as to whether or not the franchise
should be granted, and, if the franchise is granted, the conditions
to which the franchise is subject. The council may grant one or more
franchises, or may decline to grant any franchise.
(Ord. No. 186, art. II, § 23.44, 11-16-1993)
Sec.
32-65. Renewals.
Franchise renewals shall be in accordance with applicable law, including,
but not limited to, the cable communications policy act of 1984 and
the 1992 cable act. The grantor and grantee, by mutual consent, may
enter into renewal negotiations at any time during the term of the
franchise. Upon mutual execution of a franchise renewal agreement,
the grantee shall pay the grantor for out-of-pocket charges incidental
to the franchise renewal award, including legal fees and consultants'
fees, not to exceed any maximum specified in the agreement.
(Ord. No. 186, art. II, § 23.45, 11-16-1993)
Sec.
32-66. Minimum consumer protection and service standards.
(a) Except as otherwise provided in the franchise agreement,
the grantee shall maintain a local office to provide the necessary
facilities, equipment and personnel to comply with the following consumer
protection and service standards under normal conditions of operations,
excluding periods of system outage and monthly billing cycles:
(1) Sufficient
toll-free telephone line capacity during normal business hours to
assure that a minimum of 90 percent of all calls will be answered
before the fourth ring and 90 percent of all callers for service
will not be required to wait more than 30 seconds before being connected
to a service representative.
(2) Emergency telephone line capacity on a 24-hour basis, including
weekends and holidays.
(3) A local business and service office open during normal
business hours, at least eight hours daily, and at least four hours
weekly on evenings or weekends, and adequately staffed to accept
subscriber payments and respond to service requests and complaints.
(4) An emergency system maintenance and repair staff which
is capable of responding to and repairing major system malfunctions
on a 24-hour-per-day basis.
(5) An installation staff which is capable of installing service
to any subscriber within seven days after receipt of a request for
service in all areas where trunk and feeder cable have been activated.
At the subscriber's request, the grantee shall schedule all appointments
with subscribers for installation of service within a specified
four-hour time period.
(b) The
grantee shall render efficient service, make repairs promptly and
interrupt service only for good cause and for the shortest time possible.
Scheduled interruptions, insofar as possible, shall be preceded by
a notice, and shall occur during a period of minimum use of the cable
system, preferably between the hours of 12:00 midnight and 6:00 a.m.
(c) The grantee shall maintain a written log, or an equivalent
stored in computer memory and capable of access and reproduction in
printed form, for all service interruptions and requests for service
that result in a service call.
(d) (1) The grantee shall maintain a repair
force of technicians who are capable of responding, under normal conditions,
to subscriber requests for service within the following time frames:
a. System
outage. Within two hours, including weekends, of receiving subscriber
calls or requests for service which, by number, identify a system
outage of sound or picture of one or more channels, affecting at
least ten percent of the subscribers of the system.
b. Isolated outage. Within 24 hours, including weekends, of
receiving a request for service identifying an isolated outage of
sound or picture for one or more channels.
c. Inferior signal quality. Within 48 hours, including weekends,
of receiving a request for service identifying a problem concerning
picture or sound quality.
(2) The
grantee shall be deemed to have responded to a request for service
under the provisions of this section when a technician arrives at
the service location and begins work on the problem. If the subscriber
shall not be home when a technician arrives, the technician shall
leave written notification of his arrival. Three successive subscriber
failures to be present at an appointed time shall excuse the grantee
of the duty to further respond until the grantee shall again be contacted
by the subscriber.
(3) The grantee shall not charge for the repair or replacement
of defective equipment provided by the grantee to subscribers.
(e) Unless excused, the grantee shall determine the nature of
the problem within 48 hours of beginning work and resolve all cable
system related problems within five business days unless technically
infeasible.
(f) Upon ten days' notice, the grantee shall establish its compliance
with any or all of the standards required in subsections (a)--(e)
of this section. The grantee shall provide, in written form, sufficient
documentation to permit the grantor to verify such compliance.
(g) A repeated and verifiable pattern of noncompliance with the
consumer protection standards of subsections (a)--(e) of this section,
after the grantee's receipt of due notice and an opportunity to cure
the condition, may be deemed a material breach of the franchise agreement.
(h) The grantee shall establish written procedures for receiving,
acting upon and resolving subscriber complaints without intervention
by the grantor. The written procedures shall prescribe the manner
in which a subscriber may submit a complaint, either orally or in
writing, specifying the subscriber's grounds for dissatisfaction.
The grantee shall file a copy of the procedures set forth in this
section with the grantor.
(i) The grantor shall have the right to review the grantee's
response to subscriber complaints at any reasonable time in order
to determine the grantee's compliance with the franchise requirements.
(j) It shall be the right of all subscribers to continue receiving
service insofar as their financial and other obligations to the grantee
are honored. If the grantee elects to rebuild, modify or sell the
system, or the grantor gives notice of intent to terminate or not
to renew the franchise, the grantee shall act so as to ensure that
all subscribers receive service as long as the franchise remains in
force. In the event of a change of control of the grantee, or if a
new operator acquires the system, the original grantee shall cooperate
with the grantor, new grantee or operator in maintaining continuity
of service to all subscribers. During such period, the grantee shall
be entitled to the revenues for any period during which it operates
the system.
(k) If the grantee fails to operate the system for seven consecutive
days without prior approval or subsequent excusal by the grantor,
the grantor may, at its sole option, operate the system or designate
an operator until such time as the grantee restores service under
conditions acceptable to the grantor or a permanent operator is selected.
If the grantor should fulfill such obligation for the grantee, then,
during such period as the grantor fulfills such obligation, the grantor
shall be entitled to collect all revenues from the system, and the
grantee shall indemnify the grantor against any damages the grantor
may suffer as a result of such failure to operate.
(l) All officers, agents or employees of the grantee, or its
contractors or subcontractors who come in contact with members of
the public, shall wear on their outer clothing a photo identification
card in a form approved by the grantor. The grantee shall account
for all identification cards at all times. Every vehicle of the grantee
or its major subcontractors shall be clearly identified as working
for the grantee.
(Ord. No. 186, art. II, § 23.46, 11-16-1993)
Sec.
32-67. Establishment of additional service standards.
Additional service standards and standards governing consumer protection
and response by the grantee to subscriber complaints not less stringent
than the standards provided for in this division may be established
in the franchise agreement, and the grantee shall comply with such
standards in the operation of the cable television system. In addition,
any national or local service standards that may be adopted in the
future by federal or state law, which provide a higher level of protection
for subscribers than are currently required, may be deemed adopted
and incorporated in this division by reference after review and discussion
by the grantor and the grantee. A verified and continuing pattern
of noncompliance may be deemed a material breach of the franchise.
(Ord. No. 186, art. II, § 23.47, 11-16-1993)
Sec.
32-68. Fees; annual statement; delinquent payments.
(a) Following the issuance and acceptance of the franchise, the grantee
shall pay to the grantor a franchise fee in the amount set forth in
the franchise agreement, based on gross annual receipts as defined
in section 32-52.
(b) On an annual basis, within 90 days of the close of the calendar
year, the grantor shall be furnished with a statement, which is either
audited and certified by an independent certified public accountant
or certified by an officer of the grantee, reflecting the total gross
annual receipts and all payments, deductions and computations for
the period covered by the payment. Upon ten days' prior written notice,
the grantor shall have the right to conduct an independent audit of
the grantee's records, in accordance with generally accepted accounting
procedures, and if such audit indicates a franchise fee underpayment
of two percent or more, the grantee shall assume all reasonable costs
of such audit. Franchise fee payments shall be made in accordance
with the schedule indicated in the franchise agreement.
(c) Except as otherwise provided by law, no acceptance of any
payment by the grantor shall be construed as a release or an accord
and satisfaction of any claim the grantor may have for further or
additional sums payable as a franchise fee under this division or
for the performance of any other obligation of the grantee.
(d) If any franchise payment or recomputed amount is not made
on or before the date specified in the franchise agreement, and the
grantee has failed to cure such default pursuant to section 32-86
or as otherwise provided in this division, then the grantee shall
pay additional compensation as follows:
(1) An
interest charge, computed from such due date, at an annual rate
equal to the prime lending rate of the National Bank of Detroit,
plus two percent, during the period for which payment was due; and
(2) If the payment is late by 45 days or more, interest as
set forth in subsection (d)(1) of this section, and a sum of money
equal to five percent of the amount due shall be paid in order to
defray the additional expenses and costs incurred by the grantor
by reason of the delinquent payment.
(Ord.
No. 186, art. II, § 23.48, 11-16-1993)
Sec.
32-69. Design and construction requirements.
(a) The grantee shall not construct any cable system facilities
until the grantee has secured the necessary permits from the grantor
or other cognizant public agencies.
(b) The grantee shall construct its cable system using material
of good and durable quality, and all work involved in the construction,
installation, maintenance and repair of the cable system shall be
performed in a safe, thorough and reliable manner. Any village property
damaged or destroyed shall be promptly repaired or replaced by the
grantee and restored to a serviceable condition.
(c) The grantee's system, poles, wires and appurtenances shall
be located, erected and maintained so that none of its facilities
shall endanger or interfere with the lives of persons or any improvements
the grantor may deem proper to make, or unnecessarily hinder or obstruct
the free use of the streets, alleys, bridges, easements or public
property.
(d) However, if the grantor shall annex further territory as
authorized by law, then, subject to the terms of this division, the
grantee shall extend energized trunk cable to the remaining portions
of the grantor annexed within an acceptable time after such annexation,
unless additional time is granted by the village council upon request
of the grantee for good cause shown.
(e) All transmission and distribution structures, lines and equipment
erected by the grantee within the village shall be located so as to
cause minimum interference with the proper use of streets, alleys
or other public ways and places.
(f) In case of any disturbance of pavement, sidewalk, driveway
or other surfacing, the grantee shall, at its own cost and expense
and in a manner approved by the grantor, replace and restore all paving,
sidewalk, driveways or other surfaces of any disturbed street or alley,
in as good a condition as before such work was commenced.
(g) The grantee shall not place poles or other fixtures where
they will interfere with any gas, electric or telephone fixture, water
hydrant or main. All such poles or other fixtures placed in any street
shall be placed at the outer edge of the sidewalk and inside the curbline,
and such poles or other fixtures placed in alleys shall be placed
close to the line of the lot abutting on such alley, and then such
placement shall be in such a manner as not to interfere with the travel
on such streets, alleys and public ways.
(h) Upon the request of any person holding a building moving
permit issued by the grantor, the grantee shall temporarily raise
or lower its wires to permit the moving of buildings. The expense
of such temporary removal, raising or lowering of wires shall be paid
by the person requesting such temporary removal, raising or lower
of wires, and the grantee shall have the authority to require such
payment in advance. The grantee shall be given no less than 48 hours'
advance notice to arrange for such temporary wire changes.
(i) The grantee shall have the authority to trim trees upon and
overhanging streets, alleys, sidewalks and public places of the village
so as to prevent the branches of such trees from coming in contact
with the wires and cables of the grantee. All such trimming is to
be done under the supervision and direction of the grantor and at
the expense of the grantee.
(j) Upon request and without charge, the grantee shall provide
all nonpremium services to any municipal buildings owned and operated
by the village and to any certified public, private and parochial
educational facilities. Such requirement shall include only an energized
cable to such building, and the cost of any internal wiring shall
be borne by the institution.
(k) In the areas of the village where transmission lines or distribution
facilities of the public utilities providing telephone and electric
power service are underground, the grantee likewise shall construct,
operate and maintain its transmission and distribution facilities
underground in such areas.
(l) In the areas of the village where the grantee's cables are
located on the above the ground transmission or distribution facilities
of the public utility providing telephone or electric power service,
and if the facilities of both such public utilities subsequently are
placed underground, then the grantee likewise shall reconstruct, operate
and maintain its transmission and distribution facilities underground,
at the grantee's cost. Certain equipment of the grantee, such as pedestals,
amplifiers and power supplies, which normally are placed above the
ground, may continue to remain in above the ground enclosures, unless
otherwise provided in the franchise agreement.
(m) In the event of multiple franchises desiring to serve new
residential developments in which the electric power and telephone
utilities are underground, the following procedure shall apply with
respect to access to, and utilization of, underground easements:
(1) The
developer shall be responsible for contacting and surveying all
franchise cable operators to ascertain which operators desire to
provide cable television service to the development. The developer
may establish a reasonable deadline to receive cable operator responses.
The final development map shall indicate the cable operators that
have agreed to serve the development.
(2) If one or two cable operators wish to provide service,
they shall be accommodated in the joint utilities trench on a nondiscriminatory
shared cost basis. If fewer than two operators indicate interest,
the developer shall provide conduit to accommodate two sets of cable
television cables and dedicate to the village any initially unoccupied
conduit. The developer shall be entitled to recover the costs of
such initially unoccupied conduit if the grantor subsequently leases
or sells occupancy or use rights to any grantee.
(3) The developer shall provide at least ten working days'
notice of the date that utility trenches will be open to the cable
operators that have agreed to serve the development. When the trenches
are open, cable operators shall have two working days to begin the
installation of their cables, and five working days after beginning
such installation to complete the installation.
(4) The final development map shall not be approved until the
developer submits evidence that it has:
a. Notified
each grantee that underground utility trenches are to be open
as of an estimated date, and each grantee will be allowed access
to such trenches, including trenches from proposed streets to
individual homes or home sites, on specified nondiscriminatory
terms and conditions; and
b. Received a written notification from each grantee that
the grantee intends to install its facilities during the open
trench period on the specified terms and conditions, or such other
terms and conditions as are mutually agreeable to the developer
and the grantee, or has received no reply from a grantee within
ten days after notification to such grantee, in which case, the
grantee will be deemed to have waived its opportunity to install
its facilities during the open trench period.
(5) Sharing
of the joint utilities trench shall be subject to compliance with
state regulatory agency and utility standards. If such compliance
is not possible, the developer shall provide a separate trench for
the cable television cables, with the entire cost shared among the
participating operators. With the concurrence of the developer,
the affected utilities and the cable operators alternative installation
procedures, such as the use of deeper trenches, may be utilized,
subject to applicable law and approval of the village.
(6) Any cable operator wishing to serve an area where the trenches
have been closed shall be responsible for its own trenching and
associated costs.
(7) If more than one franchise is awarded, the village reserves
the right to limit the number of drop cables and/or pedestals per
residence, or to require that the drop cables and/or pedestals be
utilized only by the cable operator selected by the resident to
provide service.
(8) The village reserves the right to grant an encroachment
permit to a cable franchisee applicant to install conduit and/or
cable in anticipation of the granting of a franchise. Such installations
shall be at the applicant's risk, with no recourse against the village
if the pending franchise application is not granted. The village
may require an applicant to provide a separate trench for its conduit
and/or cable, at the applicant's cost. The construction of such
separate trench, if provided, shall be coordinated with, and subject
to, the developer's overall construction schedule.
(Ord.
No. 186, art. II, § 23.49, 11-16-1993)
Sec.
32-70. Technical standards.
(a) The grantee shall construct, install, operate and maintain
its system in a manner consistent with all applicable laws, ordinances,
construction standards, governmental requirements, FCC technical standards,
National Electrical Safety Code, ordinances and regulations set forth
by the grantor and/or any other local, state or federal agencies and
any detailed standards set forth in its franchise agreement. In addition,
the grantee shall provide to the grantor, upon request, a written
report of the results of the grantee's periodic proof of performance
tests conducted pursuant to FCC and franchise standards and guidelines.
(b) Repeated and verified failure to maintain specified technical
standards shall constitute a material breach of the franchise.
(c) Upon request, the grantee shall provide the grantor with
a detailed map of its distribution system within the village, showing,
among other things, the location of all cables, wires, conduit, and
underground and aboveground equipment of any sort which is part of
the grantee's transmission system. Such information shall be updated
any time additions, alternatives or deletions are made to the system,
and shall be promptly provided to the village in the form of a revised
map.
(Ord. No. 186, art. II, § 23.50, 11-16-1993)
Sec.
32-71. Indemnification.
(a) Except as provided in subsection (e) of this section, the
grantee, at its sole cost, shall indemnify and defend the grantor,
its officers, boards, commissions and employees and hold them harmless
from and against all claims, liabilities and expenses, including reasonable
attorneys fees, and all actions for damages:
(1) To
persons or property, arising out of omissions of the grantee, its
agents, employees, contractors or technical manager or the employees
of the technical manager;
(2) To persons or property, or caused by the installation of
the cable system or by the grantee, its agents, employees, contractors
or technical manager or the employees of the technical manager in
the operation, maintenance or ownership of the cable system;
(3) Arising out of any claim for the invasion of the right
of privacy; defamation of any person, firm or corporation; violation
or infringement of any copyright, trademark, trade name, service
mark or patent, or of any other right of any person, firm or corporation,
excluding claims arising out of, or relating to, the grantor's programming,
other governmental programming and educational programming; and
(4) Arising out of the grantee's failure to comply with the
provisions of any federal, state or local law, ordinance or regulation
applicable to the grantee in its business under the franchise.
(b) The
indemnification obligation set forth in this section is not limited
in any way by a limitation on the amount or type of damages or compensation
payable by or for the grantee under workers' compensation, disability
or other employee benefit acts, acceptance of insurance certificates
required under the franchise agreement or the terms, applicability
or limitations of any insurance held by the grantee.
(c) The grantor does not, and shall not, waive any rights against
the grantee which it may have by reason of such indemnification because
of the acceptance by the grantor, or the deposit with the grantor
by the grantee, of any of the insurance policies described in this
division.
(d) The indemnification by the grantee shall apply to all damages
and claims for damages of any kind suffered by reason of any of the
operations referred to in this section, regardless of whether or not
such insurance policies shall have been determined to be applicable
to any of such damages or claims for damages. The grantor shall also
have the benefit of any other indemnification or any insurance provision
contained in the franchise agreement.
(e) The grantee shall not be required to indemnify the grantor
for negligence or misconduct on the part of the grantor or its officials,
boards, commissions, agents or employees (referred to in this subsection
as "such acts"). The grantor shall hold the grantee harmless
from any damages resulting from any such acts of the grantor or its
officials, boards, commissions, agents or employees in utilizing any
EG access channels, equipment or facilities and for any such acts
committed by the grantor in connection with work performed by the
grantor and permitted by the franchise agreement on or adjacent to
the cable system.
(Ord. No. 188, § I, 5-24-1994)
Sec.
32-72. Insurance.
(a) On or before commencement of franchise operations,
the grantee shall obtain policies of liability, workers' compensation
and property insurance from companies authorized to transact business
in the state.
(b) The policy of liability insurance shall:
(1)
Be issued to the grantee and name the grantor, its
officers, agents and employees as additional insureds;
(2) Indemnify for all liability for personal
and bodily injury, death and damage to property arising from activities
conducted and premises used pursuant to this division by providing
coverage for such injuries, death and damages, including, but not
limited to:
a.
Negligent acts or omissions of the grantee and its
agents, contractors, servants and employees committed in the conduct
of franchise operations; and/or
b. Use of motor vehicles;
(3)
Provide a combined single limit for comprehensive general
liability and comprehensive automobile liability insurance in the
amount provided for in the franchise agreement. Such insurance policy
shall be subject to review and approval of the grantor's legal counsel;
and
(4) Be noncancellable without 30 days' prior
written notice of such cancellation directed to the grantor.
(c)
The policy of workers' compensation insurance shall:
(1)
Have been previously approved by the state insurance
commissioner as to substance and form;
(2) Cover all employees of the grantee who, in
the course and scope of their employment, are to conduct the franchise
operations; and
(3) Provide for every benefit and payment conferred
by the labor code of the state upon an injured employee, including
vocational rehabilitation and death benefits.
(d)
The policy of property insurance shall provide fire insurance,
with extended coverage, on the franchise property used by the grantee
in the conduct of franchise operations in an amount adequate to enable
the grantee to resume franchise operations following the occurrence
of any risk covered by the insurance.
(e) Prior to commencement of franchise operations,
the grantee shall file with the grantor either certified copies of
the insurance policies or a certificate of insurance for each of the
required policies executed by the company issuing the policy or a
broker authorized to issue such certificate, certifying that the policy
is in force and providing the following information with respect to
such policy:
(1)
Policy number;
(2) Dates upon which the policy will become effective
and expire;
(3) Names of the named insureds and any additional
insured required by this division or the franchise agreement;
(4) Subject of the insurance;
(5) Type of coverage provided by the insurance;
and
(6) Amount or limit of coverage provided by the
insurance.
(f)
The conduct of franchise operations shall not commence
until the grantee has complied with the provisions of this section.
(g) If the grantee fails to maintain any of the
insurance policies in full force and effect, upon 48 hours' notice
to the grantee, the grantor shall have the right to procure the required
insurance and recover the cost thereof from the grantee. The grantor
shall also have the right to suspend the franchise during any period
that the grantee fails to maintain the policies in full force and
effect. In order to account for increases in consumer prices, the
grantor shall have the right to order the grantee to increase the
amounts of the insurance provided in the franchise agreement no more
than once during any five-year period. Such order may be made by the
grantor after conducting a duly noticed public hearing. Increases
in insurance coverage shall be based upon current prudent business
practices of similar enterprises involving the same or similar risks.
(Ord. No. 186, art. II, § 23.52, 11-16-1993)
Sec.
32-73. Required records; right of inspection.
(a) The grantee shall at all times maintain:
(1)
A record of all service calls and interruptions or
degradation of service experienced in the preceding two years, provided
that such complaints result in, or require, a service call.
(2) A full and complete set of plans, records
and as-built maps showing the locations of the cable television
system installed or in use in the village, exclusive of subscriber
service drops and equipment provided in subscriber's homes.
(3) If requested by the grantor, a summary of
service calls, identifying the number, general nature and disposition
of such calls, on a monthly basis. A summary of such service calls
shall be submitted to the grantor within 30 days following any request
by the grantor, in a form reasonably acceptable to the grantor.
(b)
From time to time, the grantor may impose reasonable
requests for additional information, records and documents, provided,
such requests reasonably relate to the scope of the village's rights
under this division or the grantee's franchise agreement.
(c) Upon reasonable notice, and during normal business
hours, the grantee shall permit examination by any duly authorized
representatives of the grantor, of all franchise property and facilities,
together with any appurtenant property and facilities of the grantee
situated within or without the village, and all records relating to
the franchise, provided, such examinations are necessary to enable
the grantor to carry out its regulatory responsibilities under this
division or the franchise agreement. The grantee shall have the right
to be present at any such examination.
(Ord. No. 186, art. II, § 23.53, 11-16-1993)
Sec.
32-74. Annual reports.
Within 90 days after the end of the calendar year, the grantee shall
submit a written annual report to the grantor, if requested, with
respect to the preceding calendar year, in a form approved by the
grantor, including, but not limited to, the following information:
(1) A summary of the previous year's (or in the case of the initial
reporting year, the initial year's) activities in the development
of the cable system, including, but not limited to, services begun
or discontinued during the reporting year;
(2) A list of the grantee's officers, members of its board of
directors and other principals of the grantee;
(3) A list of stockholders or other equity investors holding
five percent or more of the voting interest in the grantee;
(4) An indication of any residence in the grantee's service area
where service is not available, and a schedule for providing such
service;
(5) Information as to the number of homes passed, subscribers
and additional television outlets, and basic and pay subscribers;
(6) Any other information relevant to franchise regulation which
the grantor shall reasonably request, and which is relevant to its
regulatory responsibilities.
(Ord. No. 186, art. II, § 23.54, 11-16-1993)
Sec.
32-75. Copies of federal, state and local communications.
(a) The grantee shall submit to the grantor copies of all pleadings,
applications and reports submitted by the grantee to, as well as copies
of all decisions, correspondence and actions by, any federal, state
or local court, regulatory agency or other governmental body, which
are nonroutine in nature and which will materially affect the grantee's
cable television operations within the franchise area. The grantee
shall simultaneously submit such documents to the grantor with their
submission to such court, agency and/or body, or within five days
after the receipt thereof from such court, agency and/or body. Information
submitted to the grantor which is otherwise confidential by law, and
designated as such by the grantee, shall be retained in confidence
by the grantor and its authorized agents and shall not be made available
for public inspection.
(b) Notwithstanding subsection (a) of this section, the grantee
shall have no obligation to provide copies of documents to the grantor
which contain trade secrets of the grantee or which are otherwise
of a confidential or proprietary nature to the grantee unless the
grantee receives satisfactory assurances from the grantor that such
information can and will be held in strictest confidence by the grantor.
To the extent possible, the grantee will provide the grantor with
summaries of any required documents, or copies thereof, with trade
secrets and proprietary matters deleted. The burden of proof shall
be on the grantee to establish the confidential nature of any information
submitted.
(Ord. No. 186, art. II, § 23.55, 11-16-1993)
Sec.
32-76. Public reports.
If the grantee is publicly held, a copy of each of the grantee's and
its parent's annual and other periodic reports shall be submitted
to the grantor within 45 days of the issuance of such reports.
(Ord. No. 186, art. II, § 23.56, 11-16-1993)
Sec.
32-77. Subscriber satisfaction surveys.
Upon the request of the grantor, but not more than once annually,
the grantee shall conduct a subscriber satisfaction survey pertaining
to quality of service, which may be transmitted to subscribers in
the grantee's invoice for cable services. The form and content of
such survey shall be reasonably acceptable to the grantor. The cost
of such survey shall be borne by the grantee.
(Ord. No. 186, art. II, § 23.57, 11-16-1993)
Sec.
32-78. Privacy report.
Upon the grantor's request, but not more than once annually, the grantee
shall submit to the grantor a report indicating the degree of compliance
with the provisions contained in section 32-93 and all steps taken
to assure that the privacy rights of individuals have been protected.
(Ord. No. 186, art. II, § 23.58, 11-16-1993)
Sec.
32-79. Availability of reports and records for public inspection;
responsibility for expense; failure to file; false information.
(a) All reports required under this division, except reports
required by law to be kept confidential, shall be available for public
inspection in the grantor's offices during normal business hours.
(b) All reports and records required under this division shall
be furnished at the sole expense of the grantee, except as otherwise
provided in this division or the franchise agreement.
(c) The willful refusal, failure or neglect of the grantee to
file any of the reports required as, and when, due under this division
may be deemed a material breach of the franchise agreement if such
reports are not provided to the grantor within 90 days after a written
request for such reports, and may subject the grantee to all remedies,
legal or equitable, which are available to the grantor under the franchise
or otherwise.
(d) Any materially false or misleading statement or representation
knowingly and willfully made by the grantee in any report required
under this division or the franchise agreement may be deemed a material
breach of the franchise, and may subject the grantee to all remedies,
legal or equitable, which are available to the grantor.
(Ord. No. 186, art. II, § 23.59, 11-16-1993)
Sec.
32-80. Annual review of system performance and quality of service.
(a) Each year throughout the term of the franchise, if requested
by the grantor, the grantor and the grantee shall meet publicly to
review system performance and quality of service.
(b) The various reports required pursuant to this division, results
of technical performance tests, record of subscriber complaints and
the grantee's response to complaints, and the information acquired
in any subscriber surveys shall be utilized as the basis for review.
In addition, any subscriber may submit comments or complaints, orally
or in writing, during the review meetings, and such comments or complaints
shall be considered. Within 30 days after conclusion of the system
performance review meeting, the grantor may issue findings with respect
to the cable system's franchise compliance and quality of service.
(c) If the grantor determines that the grantee is not in compliance
with the requirements of this division or the grantee's franchise,
the grantor may direct the grantee to correct the areas of noncompliance
in accordance with the procedures contained in the franchise agreement.
(Ord. No. 186, art. II, § 23.60, 11-16-1993)
Sec.
32-81. Emergency review of system performance.
When there have been complaints made, or where there exists other
evidence which, in the judgment of the grantor, casts reasonable doubt
on the reliability or quality of cable service to the effect that
the grantee is not in compliance with the requirements of this division
or its franchise, the grantor shall have the right to compel the grantee
to test, analyze and report on the performance of the system in order
to protect the public against substandard cable service. The grantor
may not compel the grantee to provide such tests or reports unless
there is evidence that the grantee has not corrected the problems
in question; at least 12 months have elapsed since the last annual
review was conducted under section 32-80; and the grantor has provided
the grantee with at least 30 days' notice of its intention to exercise
its rights under this section and has provided the grantee with an
opportunity to be heard prior to its exercise of such rights. Such
tests shall be made and the report shall be delivered to the grantor
no later than 30 days after the grantor notifies the grantee that
it is exercising such right, and shall be made at the grantee's sole
cost, provided that, if the grantee is compelled to test and such
test results are in compliance with FCC standards, the grantor shall
bear the reasonable incremental cost of the test. The test report
shall include the following information:
(1) The
nature of the complaints which precipitated the special tests;
(2) What system component was tested;
(3) The equipment used, and procedures employed in such testing;
(4) The results of such tests; and
(5) The method by which such complaints were resolved.
Any other information pertinent to the special tests shall be recorded.
(Ord.
No. 186, art. II, § 23.61, 11-16-1993)
Sec.
32-82. Special evaluation sessions.
Concurrent with any annual review conducted pursuant to section 32-80,
but not more frequently than every three years, the grantor may hold
special evaluation sessions of the cable system's services, in comparison
with such services provided to comparable communities. The grantee
shall be notified of the place, time and date of such sessions and
the topics to be discussed. Such sessions may be open to the public
and advertised in a newspaper of general circulation at least 30 days
before each session. The sessions may include an evaluation of any
services considered relevant to the cable system, the subscribers
and the village. Either the grantor or the grantee may propose items
for discussion or evaluation.
(Ord. No. 186, art. II, § 23.62, 11-16-1993)
Sec.
32-83. Remedies for violations.
If the grantee fails to perform, in a timely manner, any material
obligation required by this division or a franchise granted under
this division, following notice from the grantor and an opportunity
to cure such nonperformance in accordance with the provisions of section
32-86 and the franchise, the grantor may, at its option and sole discretion:
(1) Cure
the violation and recover the actual cost thereof from the security
fund established in section 32-84 if such violation is not cured
within 30 days after written notice to the grantee of the grantor's
intention to cure and draw upon the security fund;
(2) Assess liquidated damages against the grantee in an amount
set forth in the franchise agreement for any such violations;
(3) For repeated and verifiable violations of consumer service
standards of this division or the franchise agreement which have
materially degraded the quality of service, the grantor may request
the grantee to issue rebates or credits to subscribers, in an amount
to be determined by the grantee. Credits shall be reasonably related
to the nature of the degradation in service and measured by the
period of the degradation to provide monetary relief substantially
equal to the reduced quality of service resulting from the grantee's
failure to perform; and/or
(4) Initiate proceedings to revoke the franchise, in accordance
with the provisions of section 32-85.
(Ord.
No. 186, art. II, § 23.63, 11-16-1993)
Sec.
32-84. Security fund.
(a) Within 30 days after a franchise, or renewal thereof, is
executed, the grantor may require the grantee to deposit a sum established
in the franchise agreement into an interest bearing account established
by the grantor and the grantee as a security fund. Such sum shall
be held by a neutral party experienced in acting as an escrow agent,
and shall be maintained on deposit for a term as provided in the franchise
agreement, with any interest payable to the grantee.
(b) The security fund shall be available to the grantor as provided
in section 32-83 to satisfy all claims, liens and/or taxes due the
grantor from the grantee which arise by reason of construction, operation
or maintenance of the system, and to satisfy any actual or liquidated
damages arising out of a franchise breach, subject to the procedures
and amounts designated in the franchise agreement.
(c) The security fund requirements may be satisfied by conveyance
of an irrevocable letter of credit to the grantor or provision of
a corporate surety bond, as may be approved by the grantor.
(Ord. No. 186, art. II, § 23.64, 11-16-1993)
Sec.
32-85. Power of revocation.
(a) The grantor reserves the right to revoke any franchise granted
pursuant to this division and to rescind all rights and privileges
associated with the franchise in the following circumstances, each
of which shall represent a default by the grantee and a material breach
under the franchise grant:
(1) If
the grantee shall default in the performance of its material obligations
under this division or the franchise agreement and shall continue
such default after receipt of due notice and reasonable opportunity
to cure the default;
(2) If the grantee shall fail to provide or maintain in full
force and effect the insurance coverage or security fund as required
in the franchise agreement;
(3) If the grantee shall violate any order or ruling of any
regulatory body having jurisdiction over the grantee relative to
the grantee's franchise, unless such order or ruling is being contested
by the grantee by appropriate proceedings conducted in good faith;
(4) If the grantee practices any fraud or deceit upon the grantor,
as determined by a court of law;
(5) If the grantee persistently fails to remedy defaults for
which lesser penalties have previously been imposed;
(6)If the grantee becomes insolvent, unable or unwilling to pay
its debts or is adjudged bankrupt.
(b) Except
as may otherwise be provided in this section, the termination and
forfeiture of the grantee's franchise shall in no way affect any right
of the grantor to pursue any remedy under this division, the franchise
agreement or any provision of law.
(Ord. No. 186, art. II, § 23.65, 11-16-1993)
Sec.
32-86. Procedure for remedying franchise violations.
Prior to imposing any remedy or other sanction against the grantee
as specified in this division, the grantor shall give the grantee
notice and an opportunity to be heard on the matter, in accordance
with the following procedures:
(1) The
grantor shall first notify the grantee of the violation, in writing,
by personal delivery or registered or certified mail, and demand
correction of such violation within a reasonable time, which shall
not be less than five days in the case of the failure of the grantee
to pay any sum or other amount due the grantor under this division
or the grantee's franchise, and 30 days in all other cases. If the
grantee fails to correct the violation within the time prescribed,
or fails to commence correction of the violation within the time
prescribed and diligently remedy such violation thereafter, the
grantor shall then give written notice not less than 20 days before
a public hearing to be held before the village council regarding
such matter. Such notice shall specify the violations alleged to
have occurred.
(2) At the public hearing, the council shall hear and consider
all relevant evidence, and thereafter render its findings and decision.
(3) If the council finds that the grantee has corrected the
violation or has diligently commenced correction of such violation
after notice thereof from the grantor, and is diligently proceeding
to fully remedy such violation, or that no material violation has
occurred, the proceedings shall terminate and no penalty or other
sanction shall be imposed.
(4) If the council finds that material violations exist and
that the grantee has not corrected the violations in a satisfactory
manner, or has not diligently commenced correction of such violation
after notice thereof from the grantor, and is not diligently proceeding
to fully remedy such violation, the council may impose one or more
of the remedies specified in this section as the council, in its
discretion, deems appropriate under the circumstances.
(5) If the grantor elects to assess liquidated damages pursuant
to the provisions of the franchise agreement, then such election
shall constitute the grantor's exclusive remedy for a period of
30 days. After such period of time, if the grantee remains in noncompliance
with the requirements of this division and/or the franchise agreement,
the grantor may pursue any available remedy.
(Ord.
No. 186, art. II, § 23.66, 11-16-1993)
Sec.
32-87. Force majeure; grantee's inability to perform.
If the grantee's performance of any of the terms, conditions or obligations
required by this division or a franchise granted under this division
is prevented by a cause or event not within the grantee's control,
such inability to perform shall be deemed excused and no penalties
or sanctions shall be imposed as a result thereof; provided, however,
that such inability to perform shall not relieve the grantee from
any potential liability under the obligations imposed by section 32-83(3),
pertaining to refunds and credits for interruptions in service. For
the purpose of this section, the term "causes or events not within
the control of the grantee" includes acts of God, sabotage, riots
or civil disturbances, power failure, loss of utility service, restraints
imposed by order of a governmental agency or court, explosions, acts
of public enemies and natural disasters, such as floods, earthquakes,
landslides and fires, but shall not include financial inability of
the grantee to perform or failure of the grantee to obtain any necessary
permits or licenses from other governmental agencies or the right
to use the facilities of any public utility where such failure is
due to the acts or omissions of the grantee, or the failure of the
grantee to secure supplies, services or equipment necessary for the
installation, operation, maintenance or repair of the cable communications
system where the grantee has failed to exercise reasonable diligence
to secure such supplies, services or equipment.
(Ord. No. 186, art. II, § 23.67, 11-16-1993)
Sec.
32-88. Abandonment or removal of franchise property.
(a) In the event that the use of any property of the grantee
within the franchise area, or a portion thereof, is discontinued for
a continuous period of 12 months, the grantee shall be deemed to have
abandoned the franchise property.
(b) Upon such terms as the grantor may impose, the grantor may
give the grantee permission to abandon, without removing, any system
facility or equipment laid, directly constructed, operated or maintained
under the franchise. Unless such permission is granted or is otherwise
provided in this division, the grantee shall remove all abandoned
above-ground facilities and equipment upon receipt of written notice
from the grantor, and shall restore any affected street or property
to its former state at the time such facilities and equipment were
installed, so as not to impair its usefulness. In removing its plant,
structures and equipment, the grantee shall refill, at its own expense,
any excavation that shall be made by it, and shall leave all public
ways and places in as good a condition as the condition prevailing
prior to such removal, without materially interfering with any electrical
or telephone cable or other utility wires, poles or attachments. The
grantor shall have the right to inspect and approve the condition
of the public ways, public places, cables, wires, attachments and
poles prior to and after removal. The liability, indemnity and insurance
provisions of this division, and the security fund as provided in
section 38-84, shall continue in full force and effect during the
period of removal and until full compliance by the grantee with the
terms and conditions of this section.
(c) Upon abandonment of any franchise property in place, the
grantee, if required by the grantor, shall submit to the grantor an
instrument, satisfactory in form to the grantor, transferring to the
ownership of the franchise property abandoned to the grantor.
(d) At the expiration of the term for which the franchise is
granted, or upon its revocation or earlier expiration, as provided
in this division, in any such case without renewal, extension or transfer,
the grantor shall have the right to require the grantee to remove,
at its own expense, all above-ground portions of the cable television
system from all streets and public ways within the village within
a reasonable period of time, which shall not be less than 180 days.
(e) Notwithstanding anything to the contrary set forth in this
division, the grantee may abandon any underground franchise property
in place as long as it does not materially interfere with the use
of the street or public rights-of-way in which such property is located,
or with the use thereof by any public utility or other cable grantee.
(Ord. No. 186, art. II, § 23.68, 11-16-1993)
Sec.
32-89. Restoration by grantor; reimbursement of costs.
In the event of a failure by the grantee to complete any work required
in this division or other law or ordinance, and if such work is not
completed within 30 days after receipt of written notice thereof from
the grantor or, if more than 30 days are reasonably required therefor,
if the grantee does not commence such work within such 30-day period
and diligently complete the work thereafter (except in cases of emergency
constituting a threat to public health, safety or welfare), the grantor
may cause such work to be done and the grantee shall reimburse the
grantor the costs for such work within 30 days after receipt of an
itemized list of such costs, or the grantor may recover such costs
through the security fund provided by the grantee.
(Ord. No. 186, art. II, § 23.69, 11-16-1993)
Sec.
32-90. Extended operation and continuity of services.
Upon expiration or revocation of the franchise, the grantor shall
have the discretion to permit the grantee to continue to operate the
cable television system for an extended period of time, not to exceed
nine months from the date of such expiration or revocation, unless
such period of time is extended by resolution of the grantor. The
grantor shall continue to operate the system under the terms and conditions
of this division and the franchise and to provide the regular subscriber
service and any and all of the services that may be provided at that
time. It shall be the right of all subscribers to continue to receive
all available services provided that financial and other obligations
to the grantee are honored. The grantee shall use reasonable efforts
to provide continuous, uninterrupted service to its subscribers, including
operation of the system during transition periods following franchise
expiration or termination.
(Ord. No. 186, art. II, § 23.70, 11-16-1993)
Sec.
32-91. Receivership; foreclosure.
(a) A franchise granted under this division shall, at the option
of the grantor, cease and terminate 60 days after appointment of a
receiver or trustee to take over and conduct the business of the grantee,
whether in a receivership, reorganization, bankruptcy or other action
or proceeding, unless such receivership or trusteeship shall have
been vacated prior to the expiration of such 60 days, or unless:
(1) Such
receiver or trustee shall have, within 60 days after their election
or appointment, fully complied with all the terms and provisions
of this division and the franchise granted pursuant to this division,
and the receivership or trustee, within such 60 days, shall have
remedied all the faults under the franchise or provided a plan for
the remedy of such faults which is satisfactory to the grantor;
and
(2) Such receiver or trustee shall, within such 60 days, execute
an agreement, duly approved by the court having jurisdiction in
the premises, whereby such receiver or trustee assumes and agrees
to be bound by each and every term, provision and limitation of
the franchise granted.
(b) In
the case of a foreclosure or other judicial sale of the franchise
property, or any material part thereof, the grantor may serve notice
of termination upon the grantee and the successful bidder at such
sale, in which event, the franchise granted and all rights and privileges
of the grantee under this division shall cease and terminate 30 days
after service of such notice, unless:
(1) The
grantor shall have approved the transfer of the franchise, as, and
in the manner that, this division provides; and
(2) Such successful bidder shall have covenanted and agreed
with the grantor to assume and be bound by all terms and conditions
of the franchise.
(Ord.
No. 186, art. II, § 23.71, 11-16-1993)
Sec.
32-92. Rights reserved to the grantor.
(a) In addition to any rights specifically reserved to the grantor
by this division, the grantor reserves to itself every right and power
which is required to be reserved by a provision of any ordinance or
under the franchise.
(b) The grantor shall have the right to waive any provision of
the franchise, except provisions required by federal or state regulation,
if the grantor determines that it is in the public interest to do
so, and the enforcement of such provision will impose an undue hardship
on the grantee or the subscribers. To be effective, such waiver shall
be evidenced by a statement, in writing, signed by a duly authorized
representative of the grantor. Waiver of any provision in one instance
shall not be deemed a waiver of such provision subsequent to such
instance, nor be deemed a waiver of any other provision of the franchise
unless set forth in the statement.
(Ord. No. 186, art. II, § 23.72, 11-16-1993)
Sec.
32-93. Rights of individuals.
(a) The grantee shall not deny service, deny access or otherwise
discriminate against subscribers, channel users or general citizens
on the basis of race, color, religion, national origin, age or sex.
The grantee shall at all times comply with all other applicable federal,
state and local laws and regulations relating to nondiscrimination.
(b) The grantee shall adhere to the applicable equal employment
opportunity requirements of federal, state and local regulations,
as written or as amended from time to time.
(c) Neither the grantee, nor any person, agency or entity, shall,
without the subscriber's consent, tap, or arrange for the tapping,
of any cable, line, signal input device, or subscriber outlet or receiver
for any purpose, except routine maintenance of the system, detection
of unauthorized service, polling with audience participation, or audience
viewing surveys to support advertising research regarding viewers
where individual viewing behavior cannot be identified.
(d) In the conduct of providing its services, or in pursuit of
any collateral commercial enterprise resulting therefrom, the grantee
shall take reasonable steps to prevent the invasion of a subscriber's
or general citizen's right of privacy or other personal rights through
the use of the system as such rights are delineated or defined by
applicable law. The grantee shall not, without lawful court order
or other applicable valid legal authority, utilize the system's interactive
two-way equipment or capability for unauthorized personal surveillance
of any subscriber or general citizen.
(e) No cable line, wire amplifier, converter or other piece of
equipment owned by the grantee shall be installed by the grantee in
the subscriber's premises, other than in appropriate easements, without
first securing any required consent. If a subscriber requests service,
permission to install such service upon the subscriber's property
shall be presumed.
(f) The grantee, or any of its agents or employees, shall not
sell or otherwise make the following available to any party without
the consent of the subscriber pursuant to state and federal privacy
laws:
