Chapter 5.65


5.65.010    Cable television.

5.65.020    Definitions.

5.65.030    Franchise.

5.65.040    Uses permitted by franchise.

5.65.050    Franchise application and acceptance.

5.65.060    Approval of application.

5.65.070    Renewals and extensions.

5.65.080    Duration, termination, and forfeiture.

5.65.090    Acceptance of franchise.

5.65.100    Rights of residents.

5.65.110    Tampering with cable equipment.

5.65.120    Effective date of franchise.

5.65.010 Cable television.

Whereas the Town of East Troy has had in existence a cable television ordinance, and whereas Wisconsin State Statutes regarding cable franchises and licensing have changed, the Town of East Troy’s existing cable television ordinance shall remain in full force and effect, unless the provisions thereof are inconsistent with the new laws as found in 2007 Assembly Bill 207. (Ord. 2010-17 § 2. 2008 code § 8.17)

5.65.020 Definitions.

Unless otherwise indicated in this chapter, the following terms have the following meaning:

“Additional service” means service provided by a cable operator other than a basic service.

“Basic service” means the simultaneous delivery by a cable operator to television receivers of those broadcast and nonbroadcast television channels. Basic service does not include any additional or add-on services.

“Cable operator” or “cable system operator” means any person or persons, or an agent or employee thereof, that provides basic services cable service, or telecommunications service over a cable system, or that directly or indirectly owns a significant interest in any cable system, or that otherwise controls or is responsible for, through any arrangement, the management and operation of such a cable system.

“Cable subscriber” means any person or entity receiving for any purpose the cable service of a cable operator.

“Cable system” means a facility or combination of facilities under the ownership or control of any person or persons which consists of a primary control center used to receive and retransmit, or to originate broadband telecommunications service over one or more coaxial cables, or closed transmission media, from the primary control center to the point of reception at the premises of a cable subscriber, but such term does not include:

1.    A facility or combination of facilities that serves only to retransmit the television signals of television broadcast stations;

2.    A facility or combination of facilities that serves only subscribers in one or more multiple unit dwellings under common ownership, control, or management; or

3.    A common carrier under current, or as amended, federal statutes whenever such carrier transmits broadband telecommunications services other than basic service or cable service.

“Franchise” means a nonexclusive permit, license ordinance, resolution, right-of-way, contract, certificate, agreement, or similar authorization issued by the Board which authorizes the provisions of basic service, cable service, or telecommunication service by a cable operator in the Town of East Troy.

“Franchisee” means the person, firm, or corporation to whom or to which a franchise, under this chapter, is granted by the Board, and the lawful successor or assignee of said persons, firm, or corporation.

“Service area” means the incorporated area in this Town in which a franchisee is authorized pursuant to this chapter to construct, maintain and operate a cable system.

“Town” and “Board” means the Town of East Troy and its Town Board of Supervisors. (2008 code § 8.17(1))

5.65.030 Franchise.

1.    Nonexclusive franchises to construct, operate and maintain cable systems within all or any portion of the incorporated area of the Town may be granted by the Board to any persons, firms, or corporations, whether operating under existing franchises or not, who or which offered to furnish and provide such systems under and pursuant to the terms and provisions of the franchise agreement.

2.    No provisions of this chapter shall be deemed or construed to require the granting of a franchise when in the opinion of the Board it is in the public interest to restrict the number of franchises to one or more for a proposed service area or not to grant any franchises for a proposed service area. Neither the granting of any nonexclusive franchise hereunder nor any of the provisions contained herein shall be construed to prevent the Town from granting any identical or similar, nonexclusive franchise to any person, firm or corporation within all or any portion of the Town. (2008 code § 8.17(2))

5.65.040 Uses permitted by franchise.

1.    Any franchise granted pursuant to the provisions of this chapter shall authorize and permit the franchisee to engage in the business of operating and providing a cable system in the Town and for that purpose to erect, install, construct, repair, replace, reconstruct, maintain and retain in, on, over, under, upon, across, and along any public street where the Town’s interest therein will support the granting of franchise, such poles, wires, cables, conductors, ducts, conduits, vaults, manholes, amplifiers, appliances, attachments and other property as may be necessary and appurtenant to the cable systems; in addition, to use, operate, and provide similar facilities or properties rented or leased from other persons, firms or corporations, including but not limited to any public utility or other franchisee permitted to do business in the Town. Any property used by the franchise shall be returned to its original condition within 30 days of completion of the franchisee’s construction.

2.    The granting of a franchise pursuant to this chapter shall not be construed as permission or a franchise to enter on, occupy, or otherwise utilize private property without the express consent of the owner or agent in possession thereof. (2008 code § 8.17(3))

5.65.050 Franchise application and acceptance.

1.    An application for a franchise hereunder shall be in writing and accompanied by a payment to the Town of East Troy in the amount of $100.00 to reimburse it for expenses incurred in connection with processing the application and shall contain the following information:

a.    The name and address of the applicant. If the applicant is a partnership, the name and address of each partner shall also be set forth. If the applicant is a corporation, the application shall also state the names and addresses of its directors, main offices, major stockholders and associates and names and addresses of parent and subsidiary companies.

b.    A statement and description of the cable system proposed to be constructed, installed, maintained or operated by the applicant; the proposed location of such system and its various components; the manner in which the applicant proposes to construct, install, maintain and operate the same; and, particularly, the extent and manner in which the existing or future poles or other facilities of other public utilities will be used for such system.

c.    A map specifically showing and delineating the proposed service area or areas within which applicant proposes to provide cable services and for which a franchise is requested.

d.    A statement or schedule in a form approved by the Town of proposed rates and charges to subscribers for installation and services and a copy of proposed service agreement, if any, between the franchisee and its subscribers shall accompany the application. For unusual circumstances, such as underground cable required, or more than 150 feet of distance from cable to connection of service to subscribers, an additional charge over that normally charged for installation as specified in the applicant’s proposal may be charged, with easements to be supplied by subscribers. For remote, relatively inaccessible subscribers within the Town, service may be made available on the basis of cost of materials, labor and easements, if required by the franchisee.

e.    A copy of a letter authorizing or acknowledging the right of the applicant to the use of facilities of any public utility, such as poles, lines or conduits.

f.    A statement setting forth all agreements and understandings whether written, oral or implied, existing between the applicant, any person, firm or corporation with respect to the proposed franchise or the proposed cable system operation. If a franchise is granted to a person, firm or corporation posing as a front or as a representative of another person, firm or corporation, and such information is not disclosed in the original application, such franchise shall be deemed void and of no force and effect whatsoever.

g.    A financial statement prepared by a certified public accountant or public accountant satisfactory to the Board, showing applicant’s financial status and his financial ability to complete the construction or installation of the proposed cable system.

h.    The Board may, at any time, demand, and applicant shall provide, such supplementary, additional or other information as the Board may deem reasonable and necessary to determine whether the requested franchise shall be granted.

2.    The Board may, by advertisement or any other means, solicit and call for offers and applications for cable system franchises, and may determine and fix any date upon or after which the same shall be received by the Town, or the date before which the same must be received, or the date after which the same shall not be received, and may make any other determination or specify any other times, terms, conditions, or limitations respecting the solicitation, calling for, making and receiving of such offers and applications, in addition to the information required pursuant to ETMC 5.65.070; provided, that the Board shall not be required to solicit or call for such offers or applications and may receive or refuse to receive any of the same solicited, called for, or otherwise as the Board may elect. (2008 code § 8.17(4))

5.65.060 Approval of application.

Upon consideration of any such application, the Board may refuse to grant the requested franchise or the Board may by resolution, grant a franchise for a cable system to any such applicant as may appear from said application to be in the Board’s opinion best qualified to render proper and efficient cable system service to television viewers and subscribers in the proposed service area. The Board’s decision in this matter will be final. If favorably considered, the application submitted shall constitute and form part of the franchise as granted. (2008 code § 8.17(5))

5.65.070 Renewals and extensions.

1.    In any case in which a cable system operator submits an application to the Board for a renewal or other extension of such operator’s franchise authorization, the Board shall not deny such renewal or other extension unless it finds that:

a.    The cable system operator has not substantially complied with the material terms of such franchise and with applicable law;

b.    There has been a material change in the legal, technical or financial qualifications of the cable system operator that would substantially impair the continued provision of the service by such operator;

c.    The facilities to be provided by such operator, including facilities for governmental access, are unreasonable in light of the clearly demonstrated community need for and economic feasibility of such facility;

d.    The signal delivered by the cable system in the control of the cable system operator has not generally met technical standards as established by the FCC; or

e.    The proposals contained in the renewal application are otherwise unreasonable.

2.    A cable systems operator must file for renewal at least 24 months before the expiration of the franchise. The Board:

a.    Must consider the renewal within 90 days of submission of the application and conduct any proceedings necessary to adequately consider the application; and

b.    During the 90-day period in subsection (2)(a) of this section, may not request, accept, or consider any other franchise application until the incumbent franchise application is denied or approved.

3.    The Board shall:

a.    Negotiate in good faith with any cable system operator regarding franchise renewal within 30 days after the completion of proceedings pursuant to subsection (2) of this section; and

b.    Make a final decision based on substantial evidence on granting or denying renewal within 12 months after receipt of an application;

c.    In the case of denial of application:

i.    Not make the final decision for at least seven months from the date of receipt of the application; and

ii.    Notify the applicant by written statement within seven days after the final decision of the reasons for the denial.

4.    Any renewal applicant adversely affected or aggrieved by a final decision of the board made pursuant to subsection (3) of this section, or by failure of the franchising authority to act in accordance with subsection (3) of this section, may obtain a de novo review of such final decision in any court of competent jurisdiction. (2008 code § 8.17(6))

5.65.080 Duration, termination, and forfeiture.

1.    No franchise granted by the Board shall be for a term longer than 25 years following the date of acceptance of such franchise by the franchisee. Any franchise may be renewed at the pleasure of the Board, as specified in ETMC 5.65.070 pertaining to renewals and extensions.

2.    Any material neglect, failure or refusal to comply with any terms or conditions of this chapter or the franchise agreement during the term of a franchise, which term or condition is in the franchisee’s reasonable power to control, continuing for more than 30 days, and after hearing upon such a question, may in the Board’s discretion, create a forfeiture of the franchise in addition to such other penalties which may be provided. If the terms of compliance and a time allotted for the same cannot be mutually agreed upon by the Town and the franchisee, the matters shall be submitted to the American Arbitration Association whose rulings shall be binding. If franchisee does not comply with the mutually agreed upon determinations or arbitration rulings and this Board declares its franchise forfeited, franchisee shall remove its equipment from the streets within the Town within one year after receipt of written notice of the Board’s declaration that the franchise has been forfeited. (2008 code § 8.17(7))

5.65.090 Acceptance of franchise.

Within 30 days after the date of the resolution awarding a franchise or within such extended period of time as the Board in its discretion may authorize, the franchisee shall file with the Town Clerk his written acceptance, in form satisfactory to the Town Attorney, together with any bonds or insurance policy required under the franchise agreement, and his agreement to be bound by and to comply with and do all things required of him by the franchise agreement. Such acceptance and agreement shall be acknowledged by the franchisee before a notary public and shall in form and content be satisfactory to and approved by the Town Attorney. (2008 code § 8.17(8))

5.65.100 Rights of residents.

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

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

b.    The grantee, occupant or tenant to pay for the installation, operation, or removal of such facilities.

c.    The grantee, occupant or tenant to agree to indemnify the owner or operator for any damages caused by the installation, operation or removal of such facilities.

2.    It shall be unlawful for the grantee to reimburse or offer to reimburse any person, or for any person to demand or receive reimbursement from the grantee, for placement upon the premises of such person of grantee’s facilities necessary to connect such person’s premises for the distribution lines of grantee to provide CATV service to said premises.

3.    A landlord may not discriminate in the amount of rent charged to tenants or occupants who receive cable services and to those who do not. (2008 code § 8.17(9))

5.65.110 Tampering with cable equipment.

A person who willfully or maliciously damages, or causes to be damaged, any wire, cable, conduit, apparatus, or equipment of the grantee, or commits any act with intent to cause damage to any wire, cable, conduit, apparatus or equipment of the grantee, or who taps, tampers with, or connects any wire or device to a wire, cable, conduit or equipment of the grantee with intent to obtain a signal or impulse therefrom without authorization from the grantee, shall be subject to a forfeiture of not more than $500.00 as determined by the court and shall be liable in a civil action for three times the actual amount of damages sustained thereby, but this subsection shall not prevent a public utility from removing, disconnecting or otherwise rendering inoperable any of the grantee’s apparatus or equipment attached or in any way connected to such public utility’s facilities, if done for reasonable cause, and provided the grantee has been given proper notice by said utility. (2008 code § 8.17(10))

5.65.120 Effective date of franchise.

No franchise granted pursuant to the provisions of this chapter shall become effective unless and until the resolution granting same has become effective. (2008 code § 8.17(11))