Chapter 38

CABLE TELEVISION

[HISTORY: Adopted by the Village Board of the Village of Holmen 7-14-1994. Amendments noted where applicable.]  

GENERAL REFERENCES

 Streets and sidewalks — See Ch. 159.

  

§ 38-1.  Statement of purpose.

The purpose of this chapter is to provide for the orderly installation and operation of a cable system, hereinafter referred to as "system." 

§ 38-2.  Definitions.

For the purpose of this chapter, the following terms, phrases and words shall have their meaning given herein: 

BOARD — The Village Board of the Village of Holmen.  

CABLE SYSTEM — An arrangement or combination of apparatus whereby video, audio, digital or other forms of electronic or electrical signals capable of being transmitted by co-axial cable or other suitable conductor to subscribing members of the public that may be received at one or more towers, antennas, or other devices. It shall also include transmission over such system of program materials originated by such system.  

FRANCHISE — An authorization issued by the Village of Holmen to construct and operate a cable system.  

GROSS REVENUE — All revenues actually received by the cable system, including revenues received from its affiliates or subsidiaries, from subscribers in connection with the operations of the cable system in the village, including: basic subscribers service fees, pay channel service fees, installation and reconnection fees, converter and remote control rentals, late fees, home shopping fees and other billable subscriber services except those excluded herein. The term does not include advertising revenues, leased channel fees, enhanced telecommunication services revenues, studio rentals, production equipment rentals or any taxes on services provided by a grantee and imposed directly upon any subscriber or used by the state, county or village or other governmental unit and collected by a cable system on behalf of said unit.  

PERSON or APPLICANT — Any person, firm, partnership, association, company or organization of any kind.  

SUBSCRIBERS — Any person receiving for any purpose the cable service, or such other service as may be licensed by the village.  

VILLAGE — The Village of Holmen.  

§ 38-3.  Grant of authority.

A licensee shall have the right and privilege to construct, erect, operate and maintain in, upon, along, across, above, over and under the streets, alleys, public ways and public places now laid out or dedicated and all extensions thereof, and subsequent additions to the village. Poles, wires, cables, underground conduits, manholes and other television conductors and fixtures which are necessary for the maintenance and operation in the village of a cable system are also included. The right to use and occupy said streets, alleys, public ways and places for the purposes herein set forth shall not be exclusive to the licensee during the term of the license. 

§ 38-4.  Compliance with applicable laws and ordinances.

All persons who are granted licenses hereunder shall at all times during the life of the license be subject to all lawful exercises of the police power of the village and to such reasonable regulations as the village by resolution or ordinance provides. The village reserves the right to amend or change any of the provisions of this chapter. In addition such persons shall be subject to all the laws of the state and federal government and all ordinances and resolutions of the village not in conflict herewith. 

§ 38-5.  Application for license.

Any person may install cables for the transmission of television signals and the operation of a cable system and operate such a system after having secured a license from the village, which license shall be applied for in the following manner: 

A.     All persons applying for licenses to operate a cable system shall make written application to the Village Clerk at least 30 days prior to the date in which such person desires to commence operations. If the applicant be an individual, he shall list his name, address, occupation, number of other community antenna systems owned or operated by him and in which he has any interest, and shall include a detailed explanation of the nature, extent and scope of operation of the system in which said applicant proposes to operate and shall further include a complete financial statement of the applicant, and description of the technical characteristics, channel capacity, initial channel carriage and location of distribution plant. 

B.      If the applicant be a partnership or any unincorporated association, the applicant shall state the names of the partners or members. All general and limited partners shall be so set forth. In addition, the application shall contain all the information required by Subsection A above. 

C.     If the applicant be a corporation, the applicant shall list the names and degree of financial interest of each stockholder in said corporation and in addition shall contain all the information required by Subsection A above. 

D.     The application shall be accompanied by cash or a certified check up to the amount of $100 which sum shall be the fee required by any license granted under this section. The application fee shall be returned to the applicant if his application be not granted.   

§ 38-6.  Approval by Village Board.

Upon the filing of an application in proper form with the Village Clerk and upon receipt of the application fee, the Clerk shall refer the applications to the Village Board for issuance or denial. At the Board meeting to which the applicant is first presented, the Board shall cause a Class II notice to be published, setting forth the date of the hearing, the name of the applicant, and a general statement of the purpose of the hearing. All interested persons or their attorney or any citizens of the Village of Holmen may appear in favor of or against said application and be heard at the hearing. The hearing may be adjourned from time to time but the matter must be reported out by the Board within 60 days within the referral of the matter to it. At the next succeeding Board meeting, after the matter has been heard publicly, the Board shall reject or grant the petition and if the petition be granted direct, the Village Clerk shall issue an license to the applicant. 

§ 38-7.  Conditions and restrictions on operation.

Any person granted permission to install cables and equipment for the transmission of television signals in the operation of a cable system within the village shall be subject to the following restrictions and conditions: 

A.     Use of streets. All transmission and distribution structures, lines, and equipment erected by the licensee within the village shall be located on, or in, present distributions systems of the Century Telephone Corporation, the Northern States Power Company, GTE or the Trempealeau Electric Co-op. If it becomes necessary in the operation of the cable system to construct or erect poles or underground installations over and above those owned by the aforementioned public utilities, such poles or underground installations shall be located as to cause minimum interference with the proper use of the streets, alley and other public ways and places, and to cause minimum interference with the rights or reasonable convenience of the property owners who adjoin any of the said streets, alleys or public ways and places, and may only be erected or constructed upon written application to the Village Board, whose decision as to whether or not permission shall be granted and the location of poles shall be final. 

B.      Restoration of streets. In case of any disturbance of pavement, sidewalks, driveways, boulevards, or any other public ground, the licensee shall, at its own cost and expense, and in a manner approved by the Board, replace and restore all paving, sidewalks, driveway or surface of any street or alley disturbed or any boulevard in as good condition as before said work was commenced, and shall maintain the restoration in an approved condition for a period of one year. 

C.     Alteration of streets. In the event at any time during the period the cable system or any other system is licensed under the provisions of this chapter, the village shall elect to alter, or change the grade of any street, alley, or other public way, the licensee, upon reasonable notice by the village, shall remove, relay and relocate its poles, wires, cables, underground conduits, manholes and any other fixtures at its own expense. 

D.     Interference with utilities. Under no circumstances shall the licensee be permitted to place poles or other fixtures where the same will interfere with any gas, electric, or telephone fixtures, water hydrant or main, and all poles or other fixtures permitted to be placed in any street, alley or rights-of-way shall be as prescribed and directed by the Village Board. 

E.      Moving of buildings. The licensee shall, upon the request of any person holding a building-moving permit issued by the village, temporarily raise or lower its lines or disconnect or take down to permit the moving of buildings. The expense of such removal, raising or lowering of wires shall be paid by the person requesting same, and the licensee shall be given not less than 72 hours' advance notice to arrange for such temporary wire changes. 

F.      Installation of cables. Cables shall be installed only on such street or roads and on such poles at such height and such location, in such manner as shall be approved by the Village Board. 

G.     Village's right to use licensee's poles. The Fire Department or any other department of the village shall have the specific right to use any pole placed by any licensee under the terms and conditions of this chapter for the installation of fire alarm cables, wires, or equipment without any charge to the village. 

H.     Forfeiture of franchise. In addition to all other rights and powers pertaining to the village by virtue of this franchise or otherwise, the village reserves the right to terminate and cancel this franchise and all rights and privileges of the licensee hereunder in the event that the licensee: 

(1)    Violates any provision of this franchise or any rule, order or determination of the village made pursuant to this franchise, except where such violation, other than of Subsection H(2) below is without fault or through excusable neglect. 

(2)    Becomes insolvent, unable or unwilling to pay his debt and taxes or is adjudged a bankrupt. 

(3)    Attempts to evade any of the provisions of this franchise or practices any fraud or deceit upon the village or any citizen of the village.   

I.       Service to commerce. As a condition to applicants' retaining any license granted hereunder, applicants shall, within a period of 60 days from date of issuance of any license, initiate best procedures to determine what television signal service will be available and shall inform the Village Clerk at the completion of such tests what signals appear to be reasonably available to residents of the village.   

§ 38-8.  Licensee to promulgate rules.

The licensee shall have the authority to promulgate such rules, regulations, terms, and conditions governing the conduct of its rights and to perform its obligations under this chapter, and to assure uninterrupted service to each and all of its customers. Such rules shall not be in conflict with this or any other ordinance or resolutions of the village or in conflict with any federal or state laws or regulations. Such company rules shall be filed with the Village Clerk and such rules shall be open to public inspection. 

§ 38-9.  Area of service.

The licensee shall provide service within the corporate limits of the village now existing or existing in the future during the term of the license. 

§ 38-10.  Customer rates.

Rates charged by the licensee for service hereunder shall be premised on efficient and economical management, and shall be fair, just and reasonable and designed to defray operating expenses and to provide a fair and reasonable return on investment as measured by other service businesses incurring similar risks and taking into consideration any losses or lack of reasonable return sustained in the preceding operation of the company. All licensees specifically agree that they shall be subject to all authority now or hereafter possessed by the village or any other regulatory body having jurisdiction to fix just, reasonable and compensatory television signal distribution rates. Before any television signal is sold or transmitted to any customer of any licensee, the licensee's schedule of rates shall be filed with the Village Clerk. Subsequent additions or amendments to rates and service charges shall likewise be filed with the Village Clerk at least 30 days before implementation. 

§ 38-11.  Period of license.

A license shall be issued for a maximum term of 10 years and is renewable pursuant to federal law. 

§ 38-12.  Abandonment of service.

The licensee may not abandon his operations and license either formally or informally unless this is done with permission of the Village Board. If the licensee desires to abandon his license and discontinue operations, he must notify the Village Board in writing of his intentions to do so. Upon receipt of notification, the Village Board shall, either at a regular or special meeting after a Class II notice is published, hold a public hearing on said abandonment. The Village Board shall not unreasonably refuse to allow the licensee to abandon his license, and if abandonment is approved, the Board may prescribe reasonable rules for phasing out of operations. 

§ 38-13.  Service standards. 

A.     The licensee shall maintain its service with reasonable standards regarding uniformity of transmission, noise levels, and channel signals voltages. For the purpose of implementing the terms of this section, the licensee shall make available, without charge, test equipment so that the village might perform periodic tests to determine whether such standards are being complied with and shall cooperate with the village, or its official representatives, in conducting such tests. The licensee further agrees to pay such reasonable fees for such tests and for installation inspections as the Village Board may establish. The licensee's distribution systems shall conform to the requirements of the FCC, particularly with respect to freedom from spurious radiation. The antenna and receiving equipment shall be installed and maintained so as to give a reasonable noise-free picture on each channel. The installation and maintenance of equipment shall also be such that no unreasonable intermodulation distortion will occur. The licensee cannot deny access to cable services because of income of the residents of Holmen. The licensee will offer a device to block out unwanted channels to all subscribers. 

B.      The licensee shall, as reasonably as possible, considering the current state of technology, provide clear and uninterrupted service. The licensee shall maintain a La Crosse County business office where the licensee shall provide for a reasonable method of processing and resolving complaints of subscribers and shall keep a record of each subscriber complaint lodged and the resolution, if any, of the problem. This record shall be open to inspection by the Village Board or the Village Clerk at reasonable times during business hours. Complaints shall be handled by the licensee in a courteous and efficient manner at all times. Customers and potential customers shall be able to communicate with the cable system without incurring any long distance toll charges.   

§ 38-14.  Supervision and inspection.

The village and its designee shall have the right to supervise all construction or installation work performed, subject to the provisions of this chapter, and to make such inspections as it shall find necessary to ensure compliance with the ordinances of the village, applicable state laws, the National Electrical Code and regulations of the Federal Communications Commission. 

§ 38-15.  Signing of contract.

Upon the granting of a license, the licensee shall enter into a written agreement incorporating by reference the terms of this chapter. 

§ 38-16.  Indemnification.

The licensee shall indemnify, protect and save harmless the village from and against losses and claims as a result of physical damages to property, and bodily injury or death to persons, including payments made under any workman's compensation law which may arise out of or be caused by the erection, maintenance, presence, use or removal of said attachments on poles within the village, or by any act of the licensee, his agents, or employees. The licensee shall carry insurance to protect the parties hereto from and against all claims, demands, actions, judgments, costs expenses, and liabilities which may arise or result directly or indirectly from or by reason of such loss, injury or damage. The amounts of such insurance against liability due to physical damage to property shall not be less than $1,000,000 as to any one accident and not less than $10,000,000 aggregate in any single policy year; and against liability due to bodily injury or to death of persons not less than $1,000,000 as to any one person and not less than $10,000,000 as to any one accident. The company shall also carry such insurance as it deems necessary to protect it from all claims under any workmen's compensation laws in effect that may be applicable to the company. All insurance required by this agreement shall be and remain in full force and effect for the entire life of the license. Said policy or policies of insurance or a certified copy or copies thereof shall be approved by the Village Attorney and then deposited with and kept on file by the Village Clerk. 

§ 38-17.  Transfer of licenses.

No licensee shall sell, transfer or assign its plant, system, or equipment to another, nor transfer any rights granted under this chapter to another without approval of the Village Board. Any proposed transferee, licensee or assignee must make application for a license as provided for above. The village shall be notified of any change of corporate ownership unless the stock is publicly held. 

§ 38-18.  Severability.

If any change in state or federal law renders any part of this chapter invalid or if any court renders a portion of this chapter invalid, those portions not directly affected by such amendment or decision shall remain in full force and effect, binding upon the village and licensee. If the state or federal governments, by legislation, preempt the field of regulation of cable systems, this chapter shall automatically be repealed and any agreements entered into pursuant to this chapter shall likewise be automatically replaced and rendered null and void. In case of such preemption, the village shall not be responsible for any pecuniary harm caused by such preemption. 

§ 38-19.  Fees. 

A.     In further consideration of the granting of a license under this chapter, the licensee shall pay the following sum to the Village of Holmen: 1.5% of gross revenues per year. Payment shall be made by the licensee on the 15th day of each month after the issuance of the license. No later than May 1 of each year, the cable system shall provide to the village a report of the previous calendar year's gross revenue. Any discrepancy between the previous year's franchise fee paid and the amount verified in the annual report shall be reflected in the June payment. The acceptance of any monthly payment by the cable system to the village shall not be construed as a release or as an accord and satisfaction of any claim the village may have for further or additional sums payable as a franchise fee. The cable system shall pay the village 11/2% interest per month on all due but unpaid franchise fees. 

B.      The village shall have the right to inspect the licensee's records showing the average number of active subscribers the first of each month and the gross subscriber revenues from service in the area governed by the village based upon which its license payments are computed and shall have the right to audit and recomputation of any and all amounts paid under the license.   

§ 38-20.  Subscriber rights. 

A.     No monitoring of any terminal connected to the system shall take place without, on each occasion, except sweeps for the purpose of system integrity, specific written authorization by the user at the terminal in question. A cable system shall not, except as required by governmental action, provide any data concerning specific subscribers or users or their use of subscriber service except in compliance with the Cable Act, provided, however, that it may provide such information to its parent, affiliates, or subsidiaries. 

B.      Subscribers and users shall retain the right to deactivate their terminals, but shall continue to be responsible for charges until the licensee is notified to terminate service. During normal business working hours, the licensee's office must be open and able to accept payments, exchange, or accept return of converters, schedule and conduct service or technician calls, and answer subscriber inquiries. The licensee shall provide subscribers with a local or toll-free line, either staffed or with answering capabilities, which shall be available to subscribers 24 hours a day. 

C.     The licensee shall answer service requests within 24 hours, excluding weekends and holidays. Problems should be rectified within 48 hours or, in case of a dispute, in fewer than 30 days. Upon interruption of a subscriber's cable service for periods in excess of 48 hours, except for acts of God or with express prior permission of the village, the licensee shall rebate to the subscriber that portion of the monthly service charge equal to that portion of the month for which service is interrupted.   

§ 38-21.  Rights of residents. 

A.     An owner or operator of an apartment building, condominium, nursing home, mobile home park, or any other rental facility may not interfere with or charge a fee for the installation of cable system facilities for the use of a lessee of said property or premises, except that such owner or operator may require: 

(1)    Installation to conform to reasonable conditions necessary to protect the safety, appearance, and functioning of the premises. 

(2)    The licensee, occupant, or tenant to pay for the installation, operation, or removal of such facilities. 

(3)    The licensee, occupant, or tenant to agree to indemnify the owner or operator for any damages caused by the installation, operation, or removal of such facilities.   

B.      It shall be unlawful for the licensee to reimburse or offer to reimburse any person, or for any person to demand or receive reimbursement from the licensee, for the placement upon the premises of such person's premises to the distribution lines of the grantee to provide cable service to said premises. A landlord may not discriminate in the amount of rent charged to tenants or occupants who receive cable service and those who do not.   

§ 38-22.  General rights and remedies. 

A.     All rights and remedies given to the village under this chapter, a franchise, and a franchise agreement shall be in addition to and cumulative with each other and with any and all other rights and remedies, existing or implied, now or hereafter available to the village, at law or in equity, and such rights and remedies shall not be exclusive, but each and every right and remedy specifically provided or otherwise existing or given may be exercised from time to time and as often and in such order as may be deemed expedient by the village in its sole judgment and discretion, and the exercise of one or more rights or remedies shall not be deemed a waiver of the right to exercise at the same time or thereafter any other right or remedy nor shall any such delay or omission be construed to be a waiver of or acquiescence to any default. The exercise of any such right or remedy by the village shall not release the licensee from its obligations or any liability under this chapter, a franchise, or a franchise agreement. 

B.      A licensee is not responsible for failure to provide service when that failure is caused by acts of God, strikes, governmental or military action, or other conditions beyond its control including the lack of material or parts. 

C.     The licensee will comply with all requirements of the 1984 and 1992 Cable Acts.