§ 34-21. General provisions.

(a)

Limits on grantee's recourse.

(1)

The grantee, by accepting the franchise, acknowledges that it has not been induced to accept same by any promise, verbal or written, by or on behalf of the city or by any third person regarding any term or condition of this chapter of the franchise not expressed therein. The grantee further pledges that no promise or inducement, oral or written, has been made to any city employee or official regarding receipt of the cable television franchise.

(2)

Acceptance of the chapter shall not be construed as a waiver of the grantee of any existing or future right to challenge the legality of any provision of this article. Nothing herein or in grantee's acceptance may be construed to deny the grantee the right to judicial review of any action or threatened action by the city arising out of this article.

(b)

Compliance with state and federal law. The grantee shall, at all times, comply with all laws of the state and federal government and the rules and regulations of any federal or state administrative agency; provided, however, this subsection shall not be construed to require the city to make an initial determination of any such violation. The grantee and city acknowledge that this article may be superseded by other state or federal laws, statutes, or regulations.

(c)

Special license. The city reserves the right to issue a license, easement or other permit to anyone other than the grantee to permit that person to traverse any portion of the grantee's franchise area within the city in order to provide service outside the city. Such license or easement, absent a grant of franchise in accordance with this article, shall not authorize nor permit said person to provide a cable television service of any nature to any home or place of business within the city, nor to render any service or connect any subscriber within the city to the grantee's cable television system.

(d)

Conflict. In case of conflict or ambiguity between this article, the franchise and the grantee's franchise formal application, the grantee and the city agree that the article shall prevail.

(e)

Failure to enforce franchise. The grantee shall not be excused from complying with any of the terms and conditions of this article or the franchise by any failure of the city, upon performance or to seek grantee's compliance with any one or more of such terms or conditions.

(f)

Rights reserved to grantor. The city hereby expressly reserves the following rights:

(1)

To exercise its governmental powers, now or hereafter, to the full extent that such powers may be vested in or granted to the city.

(2)

To adopt, in addition to the provisions contained herein and in the franchise and in any existing applicable ordinances, such additional reasonable regulations of general applicability as it shall find necessary in the exercise of its police power.

(3)

The grantee at all times in the installation, maintenance and operation of the cable television system shall be subject to the terms and conditions of city ordinances of general applicability and to the lawful exercise of the police power of the city; provided, however that no subsequent municipal actions shall in any way abrogate the rights granted to the grantee herein.

(g)

Employment requirement. The grantee shall not refuse to hire, nor discharge from employment, nor discriminate against any person regarding compensation, terms, conditions or privileges of employment without regard to race, religion, color, sex, or national origin. The grantee shall take continuous, positive actions through the affirmative action program to ensure fulfillment of this commitment as it relates to the following:

(1)

Recruitment, advertising, or solicitation for employment;

(2)

Hiring; placement upgrading, or promotion;

(3)

Treatment during employment; rates of pay, benefits, or other forms of compensation;

(4)

Selection for training and educational opportunities;

(5)

Tuition assistance; job eliminations;

(6)

Social and recreational programs; and

(7)

Demotions and terminations.

The grantee shall also ensure that promotional decisions are in accordance with equal opportunity principles by imposing only valid, job-related requirements for promotion opportunities.

(h)

Time of the essence for agreements. Whenever this article or the franchise sets forth any time for any act to be performed by, or on the behalf of the grantee, such time shall be deemed of the essence and the grantee's failure to perform within the reasonable time allotted shall be sufficient grounds for the city to invoke the remedies available under the terms and conditions of this article and the franchise agreement.

(i)

Acceptance. This article and the franchise agreement with their terms and conditions shall be accepted by the grantee by written instrument filed with the city within 30 days after the granting of the franchise, unless said period is extended by the common council at its sole discretion.

(j)

Publication costs. The grantee shall assume the cost of publication of this article and the franchise agreement, as such publication is required by law and such is payable 30 days after an invoice for the amount is provided by the city.

(k)

Landlord/tenant relations.

(1)

Interference with cable service prohibited. Neither the owner of any multiple unit residential dwelling nor his agent or representative shall interfere with the right of any tenant or lawful resident thereof, to receive cable television service, cable regulated by and lawfully operating under a valid and existing cable television franchise issued by the city.

(2)

Gratuities and payment to permit service prohibited. Neither the owner of any multiple-unit residential dwelling nor his agent or representative shall ask, demand or receive any payment, service or gratuity in any form as a condition for permitting or cooperating with the installation of a cable communications service to the dwelling unit occupied by a tenant or resident requesting service.

(3)

Penalties and charges to tenants for service prohibited. Neither the owner of any multiple-unit residential dwelling nor his agent or representative shall knowingly penalize, charge or surcharge a tenant or resident, or discriminate in any way against such tenant or resident who requests or receives cable communications service from a grantee operating under a valid and existing cable communication franchise issued by the city.

(4)

Reselling service prohibited. No person shall resell, without the expressed written consent of both the grantee and the common council, any cable service, program or signals transmitted by a cable television company operating under a franchise issued by the city.

(5)

Protection of property prohibited. Nothing in this section shall prohibit a person from requiring that cable television system facilities conform to laws and regulations and reasonable conditions necessary to protect safety, functioning, appearance and value of premises, or the convenience and safety of persons or property.

(6)

Risks assumed by grantee. Nothing in this section shall prohibit a person from requiring a grantee to indemnify the owner, or his agents or representatives, for damages or from liability for damages caused by the installation, operation, maintenance or removal of cable television facilities.

(l)

Theft of service. The provisions of Wis. Stats. §§ 943.46 and 943.47, and the provisions of the section 633 of the Cable Communications Policy Act of 1984, as amended by the Cable Television Consumer Protection and Competition Act of 1992, and any other applicable laws, exclusive of any provisions thereof, relating to the penalty to be imposed or the punishment for violation of said statute, are adopted and hereby made a part of this subsection by reference. A violation of any such provision shall be a violation of this subsection. Additionally, this article governs obtaining cable services by fraud.

(m)

Penalties.

(1)

Specified; forfeitures. Notwithstanding any other remedies provided for in this article, or otherwise available under law, the city shall have the power to impose the following forfeitures in the event the grantee violates any provision of this article, the franchise agreement, or any rule or regulation lawfully adopted thereunder:

a.

For failure to submit plans indicating expected dates of construction of various parts of the system; up to $100.00 per week or part thereof.

b.

For failure to commence operations in accordance with herein-stated provisions; up to $100.00 per week or part thereof.

c.

For failure to complete construction and installation of the system within the proper time; up to $100.00 per week or part thereof.

(2)

Offenses. Persons, whether natural or artificial, or commercial entities who violate the following provisions of this chapter hereinbefore deemed unlawful shall be subject to a forfeiture not to exceed $500.00 for each offense:

a.

Willful failure by a grantee to comply with the laws, rules or regulations described in section 34-49(c).

b.

Violation of subscriber's privacy as set forth in section 34-50(7).

c.

Any person interfering with the provision of cable communications service as described in subsections (k)(1), (2), (3), or (4) of this section.

(3)

Procedure for imposition of penalties.

a.

Whenever the city finds the grantee has violated one or more terms, conditions or provisions of this franchise, a written notice shall be given to the grantee informing it of such violations or liability. The written notice shall describe in reasonable detail the specific violation so as to afford the grantee an opportunity to remedy the violation. The grantee shall have 30 days subsequent to receipt of the notice in which to correct the violation. The grantee may, within 15 days of receipt of notice, notify the city that there is a dispute as to whether a violation or failure has, in fact, occurred. Such notice by the grantee to the city shall specify with particularity the matters disputed by the grantee.

b.

The common council shall hear the grantee's dispute at its next regularly or specially scheduled meeting. The common council shall supplement the decision with written findings of fact.

c.

If, after hearing the dispute, the claim is upheld by the common council, the grantee shall have 30 days from such a determination to remedy the violation or failure. At any time after that 30-day period, the common council may assess penalties as listed in subsection (m)(1) and (2) of this section.

(n)

Grantee may promulgate rules. The grantee shall have the authority to promulgate such rules, regulations, terms and conditions of its business as shall be reasonably necessary to enable it to exercise its rights and perform its services under this article and the rules of the FCC, and to ensure uninterrupted service to each and all of its subscribers. Such rules and regulations shall not be deemed to have the force of law.

(o)

Delegation of powers. A delegable right, power or duty of the city or any official of the city under this article may be transferred or delegated by resolution of the common council to an appropriate officer, employee, or department of the city, or any other legal authority.

(p)

CATV committee. There is established a cable television advisory committee known as the CATV committee, appointed by the mayor and confirmed by the common council, to advise the city regarding cable television and related technology, and to promote and develop access to the cable television system for the length of any franchise granted under this chapter. In addition, the CATV committee shall conduct any preliminary inquiry into the grantee's performance under a franchise granted hereunder, and shall advise the common council on any franchise application or renewal. To the extent such oversight is the responsibility of the common council, it is hereby delegated to the CATV committee. Commencing April 8, 2008, the CATV committee shall consist of one member of the common council, three citizen members who hold subscriptions with a grantee under this article appointed for staggered terms: one member for one year, one member for two years and one member for three years and then three-year terms: thereafter, and one shall be appointed based on the recommendation of the Merrill Area Public School District Board of Education and shall serve as a representative of the Merrill Area Public School District. The CATV committee shall meet at such times as its chairperson or the mayor may deem necessary. The city clerk will be responsible for preparation of meeting agendas and minutes.

(Code 1993, § 9-3-9; Ord. No. 04-15, 9-15-2004; Ord. No. 2007-07, § 1, 4-10-2007)