HomeMy WebLinkAbout509.docDECEMBER 27, 2000
DECEMBER 12, 2000
00-499
00-509
PENDING
RESOLUTION
(CARRIED 5-1P LOST
LAID OVER
WITHDRAWN
PURPOSE:
INITIATED BY:
PRELIMINARY DETERMINATION NOT TO RENEW THE
FRANCHISE OF TIME-WARNER ENTERTAINMENT COMPANY,
L.P. TO OPERATE A CABLE SYSTEM IN OSHKOSH
CITY ADMINISTRATION
WHEREAS, on January 22, 1987 the City of Oshkosh, Wisconsin ("City")
passed and adopted Ordinance No. 455 granting a cable television franchise
("Franchise") to Time Warner Entertainment Company, L.P. ("Time Warner"); and
WHEREAS, the Franchise is set to expire on December 31, 2000; and
WHEREAS, Time Warner has requested that the City renew its Franchise; and
WHEREAS, the City has commenced renewal procedures in compliance with 47
U.S.C. § 546; and
WHEREAS, the City and Time Warner initially engaged in informal renewal
negotiations pursuant to 47 U.S.C. § 546(h) but were unable to arrive at mutually
acceptable terms; and
WHEREAS, the City issued a Cable Television Franchise Renewal Formal
Needs Assessment ("Needs Assessment") on August 16, 2000; and
WHEREAS, the City established September 29, 2000 as a deadline for Time
Warner's response to the Needs Assessment; and
WHEREAS, on September 29, 2000 Time Warner submitted to the City its
Formal Proposal in response to the Needs Assessment ("Proposal"); and
WHEREAS, pursuant to 47 U.S.C. § 546(c) the City has four (4) months from
September 29, 2000 within which to either renew Time Warner's Franchise or issue a
preliminary assessment that the Franchise should not be renewed; and
WHEREAS, the City has carefully reviewed Time Warner's Proposal and has
determined a number of areas where the Proposal fails to meet the future cable-related
community needs and interests taking into account the cost of meeting such needs and
interests; and
WHEREAS, the City has published a notice in the Oshkosh Northwestern
notifying the public that the proposal of Time-Warner has been received and was placed
on file for public inspection in the City Clerk's office, and that written public comments
may be submitted to the City Clerk on or before 4:00 P.M. this date, or that public
comment may be made directly to the Common Council at its regularly scheduled
meeting this date; and
WHEREAS, the City Administration has prepared an analysis of Time Warner's
Proposal attached hereto as Exhibit A identifying with particularity whether Time
Warner's Proposal is acceptable or unacceptable as it relates to the City's Needs
Assessment; and
WHEREAS, the Common Council, having carefully considered all public
comment including that contained within the Needs Assessment and the attached
analysis,
NOW, THEREFORE, BE IT RESOLVED by the Common Council of the City of
Oshkosh, Wisconsin, as follows:
Findings of Fact
1. Each of the above recitals is hereby incorporated as a finding of fact by the City.
Time Warner's Proposal fails to meet the City's future cable-related community
needs and interests taking into account the cost of meeting such needs and
interests.
The basis for the City's preliminary assessment that Time Warner's Proposal fails
to meet the City's identified needs and interests is set forth in Exhibit A attached
hereto and incorporated by reference.
The Council will provide Time Warner an opportunity to respond to this resolution
and shall thereafter establish a timeline for the commencement of an
administrative hearing pursuant to 47 U.S.C. § 546(c).
The City administration will establish a timeline for the commencement of an
administrative hearing on or before thirty days from the date of passage of this
resolution, unless extended by mutual agreement and as may be permitted by
applicable law.
At the administrative hearing, the Council will ensure that Time Warner is
afforded a fair opportunity for full participation including the right to introduce
evidence, to require the production of evidence and to question witnesses.
The City hereby reserves all of its rights under applicable law to similarly
introduce evidence, require the production of evidence and to question witnesses
at an administrative hearing.
The City shall ensure that a transcript of the administrative hearing shall be made
and a written decision following completion of the administrative hearing shall be
issued granting or denying Time Warner's Proposal based on the record of the
proceeding.
The City finds that its actions are appropriate and reasonable in light of the
mandates contained in federal law including 47 U.S.C. § 546.
BE IT FURTHER RESOLVED that the proper City officials are authorized and
directed to provide a certified copy of this resolution to Time-Warner.
PASSED AND ADOPTED this
day of December, 2000:
CITY OF OSHKOSH, WISCONSIN
ATTEST:
Pamela R. Ubrig, City Clerk
By:
Jon C. Dell'Antonia, Mayor
Certification
I, Pamela R. Ubrig, City Clerk for the City of Oshkosh, Wisconsin the custodian of
its records, do hereby certify the above is a true and exact copy of a Resolution passed,
adopted, and approved by the City Council of said City on December__, 2000.
Dated: December __, 2000
(city seal)
By:
Pamela R. Ubrig, City Clerk
Exhibit A
Analysis of Time Warner Cable's Proposal
To the City of Oshkosh
CABLE COMMUNICATIONS REGULATORY ORDINANCE
OSHKOSH, WISCONSIN
Pa,qe 2 Section 7-2(13) Definitions
Time Warner's Proposal:
(13) "Gross revenues" means all cash, or other consideration derived from the operation of
the cable system to provide cable services in the city by (a) the franchisee; (b) any cable operator of the
cable system; or (c) only to the extent necessary to prevent evasion, their affiliates, subsidiaries, parent
and any person in which the franchisee has a financial interest, that are not cable operators but that are
performing the normal functions and responsibilities of a cable operator in the citF_. This definition is
intended to be read to reach as broadly as possible to encompass all revenues, subject to only to the
limitations imposed by federal or state law. Therefore, "gross revenues" would include, by way of
example but not limitation, the following receipts:
(a) basic subscriber service monthly fees;
(b) optional service monthly fees;
(c) installation and reconnection fees;
(d) leased channel fees;
(e) converter rentals;
(f) advertising revenues; and
(g) all recoveries of bad debts previously written off and revenues from the sale or
assignment of bad debts.
Gross revenues shall not include any amount collected by the franchisee from subscribers for
PEG purposes (as hereinafter defined) or the revenues of any Person where such revenues have been
included in Franchisee's revenues.
This sum shall be the basis for computing the fee imposed pursuant to Oshkosh Cable Code,
Section 7-34. Gross revenues shall not include any taxes on services furnished by franchisee which are
imposed upon any subscriber or user by the state, city or other governmental unit and collected by
franchisee on behalf of said governmental unit (a franchise fee is not such a tax).
City's Determination:
Time Warner's proposal is unacceptable. The sentence that Time Warner has proposed to add to this
definition is confusing and poorly worded. The City is uncertain what impact this sentence will have on
the definition and cannot agree to language which may result in a significant reduction in franchise fee
payments. The other changes proposed by Time Warner to this definition are acceptable.
Pa,qe 2 Section 7-2(14) Definitions
Time Warner's Proposal:
(14) "Minority" shall mean citizens or lawful permanent residents of the United States, defined
for the purposes of this article to include Asian, Black, Hispanic and Native Amedcan men and women.
~Vl,~ ,,~ l/l/l/Vi /L~ ~1 V~ ,,,~,,,~1~,1,~ ~,1~,, V~ ~L~VI,~,I~ VII L,I~ V~,~ VI L,I~ ,,,~,V,~, ~ ~,~,,,, L/I~L ,1~
City's Determination:
Time Warner's proposal is acceptable.
PaRe 3 Section 7-2(16) Definitions
Time Warner's Proposal:
(16) "Normal operating conditions" include those service conditions which are within the
control of the franchisee. These include, but are not limited to, special promotions, pay-per-view events,
rate increases, regular peak or seasonal demand periods, and maintenance or upgrade of the cable
system. Conditions which are not within the control of the franchisee include, but are not limited to,
natural disasters, civil disturbances, power outages, telephone network outages, and severe or unusual
weather out of*he ordinary for the a,~a conditions.
City's Determination:
Time Warner's proposal is acceptable.
PaRe 3 Section 7-2(17) Definitions
Time Warner's Proposal:
(17) "Person" includes any individual, partnership, association, limited liability company or
partnership, corporation, legal entity or organization of any kind. ~/~..,,v,,v.v, ........... .w~ ,,,; ...... ~,,~ ~,~.~ .....
City's Determination:
Time Warner's proposal is unacceptable. Elimination of the final two sentences of this definition creates
confusion as to how this term is to be interpreted in the context of the Ordinance. Moreover, the "City" is
specifically excluded from the definition "Person" and therefore Time Warner's elimination of the final
sentence is unacceptable.
PaRe 3 Section 7-2(19) Definitions
Time Warner's Proposal:
(19) "Public, educational or government access" or "PEG assess" use means the use of the
cable system for non-commercial, not for profit purposes by members of the public, educational
institutions and representatives of governments to transmit information to subscribers generally or to
specific recipients via channels designated for such access use in a franchise agreement over franchisee-
provided channels.
City's Determination:
Time Warner's proposal is unacceptable. While the City agrees the general purpose of public,
educational, and governmental access channels should be for "non-commercial, non-profit use," the City
often will provide acknowledgements for businesses that sponsor or underwrite local programming.
These acknowledgments are similar to the sponsorship information provided by the public broadcasting
system which are shown every half-hour on PBS. While the City does not believe this constitutes
commercial or for profit programming, the language inserted by Time Warner raises a question regarding
whether this ongoing activity would remain permissible.
PaRe 3 Section 7-2(20) Definitions.
Time Warner's Proposal:
(20) "Rights-of-way." The term "rights-of-way" refers to city rights-of-way, alleys, roads,
easements, and other city-owned property primarily dedicated to, designed for or actually and customarily
used for vehicular or pedestrian travel or any easement the franchisee is authorized to use by federal law.
~!tern~tive is
City's Determination:
Time Warner's proposal is unacceptable. The City has defined the term "rights-of-way" in a very precise
manner to clarify exactly what portion of the City Time Warner has permission to use to install it's wires
and facilities. By eliminating the final two sentences of this definition, Time Warner is attempting to
greatly expand the area which it presently uses to distribute its cable system and would leave the City
virtually powerless in its attempt to responsibly oversee and administer the distribution of facilities
throughout the City.
PaRe 4 Section 7-2(23) Definitions
Time Warner's Proposal:
(23) "Two-way capability" means the ability to receive and transmit signals from a subscriber
terminal to ether-ce#~ the headend of i~ the system.
City's Determination:
Time Warner's proposal is unacceptable. This phrase is used in the text of the Ordinance and the
Franchise Agreement to clarify the transmission of signals from various City facilities to a PEG access
facility and then on to Time Warner's headend for cablecast over the system. By changing this definition,
there is no way for the City to maintain control over the PEG access channels and rather would be
dependent on Time Warner to handle all playback obligations for the PEG access channels. The City
does not believe this is Time Warner's intention, however, this would be the result of Time Warner's
proposed modification.
PaRe 5 Section 7-3¢2)¢i) Findinqs and purpose
Time Warner's Proposal:
(i) Assure that all cable companies providing facilities or services within the city
comply with the generally applicable ordinances, rules, and regulations of the city;
City's Determination:
Time Warner's proposal is unacceptable. Please see comments to Section 1 of Time Warner's proposal
to the Franchise Agreement.
PaRe 5_ Section 7-4(2) Franchise aRreement
Time Warner's Proposal:
(2) Relationship of franchise and franchise agreement to laws. Each franchise issued
by the City is subject to, and franchisee must exercise all rights granted to it in accordance with, its
franchise agreement and applicable federal and state law, including this chapter.
City's Determination:
Time Warner's proposal is unacceptable. Time Warner has limited "applicable law" to only state and
federal law. Conspicuously absent is "local law" which suggests Time Warner is not agreeing to comply
with the City's code.
PaRe 5_ Section 7-4(3) Franchise a,qreement
Time Warner's Proposal:
(3) Nature of franchise agreements. Each franchise agreement is a contract, subject to
the City's exercise of its police ~ powers. A franchise agreement shall not confer any rights upon
the franchisee or limitations upon the City other than as expressly provided therein. Subject to the
exercise of the City's police ~ powers, in the case of any conflict between the express terms of a
franchise agreement and the express terms of this chapter, the franchise agreement shall govern. A
franchisee, by entering into a franchise agreement, does not waive its rights to challenge the lawfulness
of any particular enactment after the date the franchise is issued, including on the grounds that a
particular enactment is an unconstitutional impairment of contractual rights.
City's Determination:
Time Warner's proposal is unacceptable. Time Warner is attempting to limit the City's authority by
modifying the reference to solely "police powers" to the exclusion of any and all other powers which the
City may possess under state and federal law. Given that the document in question is the City's own
Regulatory Ordinance, there can be no rationale for why the City would wish to reduce any rights it may
possess under state and federal law.
PaRe 6 Section 7-5 Policy of innovation
Time Warner's Proposal:
Recognizing the fluid and expanding state of the development of communications technology and
uses, it is the policy of the city to strongly encourage experimentation and innovation in the development
of cable system technology uses, services, programming and techniques that will be of general benefit to
the community; provided that all such experiments and innovations shall be subject to the rules of the
FCC and any other federal, state and ~tenerafty applicable city laws and regulations.
City's Determination:
Time Warner's proposal is unacceptable. See Section 7-3(2)(i) above.
PaRe 6 Section 7-7(2) Franchise required
Time Warner's Proposal:
(2) Franchise nonexclusive. Any franchise granted pursuant to this chapter by the city shall
not be exclusive, and the city specifically reserves the right to grant other franchises to any persons or to
authorize itself, consistent with all applicable laws, to provide cable services.
System Authorizations.
In the event that the City issues a Cable Service Franchise to a third party cable
operator for the purpose of operating a cable system in pubfic rights-of-way or
enters into an agreement with a person to provide an Open Video System in the
City, the material terms of such F~-acmhise Agreement, considered as a whole,
shaft not be subst~nti~!!y more favorable or subst~nti~!!y less burdensome than
the Franchise issued to Franchisee hereunder, in cases where the City has4he
v,w,"~"or ,~,~"'~o~ ~,,,o,,*~"r~*,,,v, ,,, ,~*" is not proscribed by federal or state law from impese
imposing such terms and conditions. The City is not required to undertake any
litigation to secure Franchisee's rights under this Section 2(e).
Notwithstanding the foregoing, if the City constructs a cable system and provides
Cable Service as a cable operator to residential dwelling units throughout a
substantial portion of the City of Oshkosh, it will do so under conditions that are
not subst~nti~!!y more favorable or subst~nti~!!y less burdensome than those
imposed upon Franchisee. However, this Section does not require the City to
obtain a Franchise unless otherwise required by applicable law. ~
~ It is understood that the City's construction of an Institutional
Network, and the provision of services via an Institutional Network does not
constitute constructing a cable system and providing Cable Service as a cable
operator.
City's Determination:
Time Warner's proposal is unacceptable. See comments at Section 2(e) of the Franchise Agreement.
Time Warner has attempted to remove language from the Franchise Agreement and place it in the
Regulatory Ordinance, which would create a level playing field. Despite the fact that no level-playing
requirement is contained in state or federal law, the City has offered to Time Warner a generous level
playing field requirement within the Franchise Agreement. Time Warner has proposed to substantially
expand upon this level playing field requirement by applying it to open video system operators over which
the City has limited authority under federal law. Moreover, by including this language in the Regulatory
Ordinance it becomes difficult if not impossible for the City to determine how to implement such
requirements. Assuming the City has multiple cable operators in place and another cable operator seeks
a Franchise within the City, how is the standard to be measured? Given that these Franchises will have
been adopted at different points in time, presumably with different system specifications, how is the City
to comply with such a requirement?
PaRe 7 Section 7-7(3) Franchise required
Time Warner's Proposal:
(3) Franchise binding. All provisions of this chapter and any franchise agreement shall be
binding upon the franchisee, its successors, lessees, or assignees.
City's Determination:
Time Warner's Proposal is unacceptable. By striking the word "lessees" presumably Time Warner would
be able to lease its cable system to a third party which would no longer be subject to this chapter or the
Franchise Agreement.
PaRe 9 Section 7-11(1) Geo,qraphic ~ of the system
Time Warner's Proposal:
(1) Annexation. Upon the annexation of any additional land area by the City, if the annexed
area is not currently served by a cable operator it will be subject to the other provisions of this Section 7-
11. If the annexed area is served by a cable operator, franchisee has the option to extend cable plant to
the newly annexed area if franchisee determines that it is economically feasible to do so. Upon the
annexation of any additional land area by the City, the annexed area shall be subject to all the terms of
this Ordinance and applicable franchise agreements immediately upon sixty (60) days of written
notification by the City to a franchisee of the annexation, including a list of specific addresses-by4he-C#y.
A cable operator whose cable system passes homes in an annexed area shall not extend its system
beyond those homes which it passes at the time the annexation occurs unless it otherwise obtains a
franchise from the City.
City's Determination:
Time Warner's proposal is unacceptable. Time Warner has attempted to create an additional burden on
the City to provide advance written notification including specific names and addresses of all the annexed
property. Time Warner's obligation is to serve the annexed areas subject to the line extension criteria
contained within Section 7-11 (2). Any additional burden on the City is inappropriate and unnecessary.
Pa.qe 9 Section 7-11(2) Geo,qraphic ~ of the system
Time Warner's Proposal:
(2) Line Extension. A franchisee shall construct and operate its cable system so as to
provide service to all parts of the City its franchise a,~a as provided in the franchise agreement and
having a density of at least fifteen (15) residential dwelling units per cable half-mile of system measured
from the end of the existing cable plant or where eight (8) residential dwelling units per street half-mile
agree to subscribe to cable service for at least one year. In addition, all areas which reach such density
at any time during the franchise term shall be provided service upon reaching the minimum density.
Where the density is less than that specified above, the franchisee shall inform persons requesting
service of the possibility of paying for the line extension within a reasonable timeframe. The charge of the
extension for each person requesting service shall not exceed a pro rata share of the actual cost of
extending the service. If, for example, the density in an area were three (3) residential units per half mile,
franchisee would pay one-fifth (1/5) of the costs of the extension and persons agreeing to take service
would pay the remaining four-fifths. In all cases where new residential developments and subdivision are
to be construed to be served in whole or in part by underground power and telephone utilities, the owner
or developer of such areas shall provide reasonable notice to the franchisee of the availability of trenches,
backfill and specifications of all necessary substructures in order that the franchisee may install all
necessary cable facilities. In no event shall such underground line extensions be at any cost or expense
to the city.
City's Determination:
Time Warner's proposal is acceptable.
Pa.qe 9 Section 7-11{3){a) Geo,qraphic coveraqe of the system
Time Warner's Proposal:
(3) Installations.
(a) Subject to the above-described minimum density any residential dwelling unit located within
one-hundred and twenty-five (125) feet of the nearest tap (i.e. the connection point for subscriber
drops) on the franchisee's system whether located in the pubfic right-of-way or other location shall
be connected to the Cable System at not charge other than the standard installation charge. The
franchisee shall upon request by any potential subscriber residing in the City beyond the 125-foot
limit, extend service to such subscriber provided that the subscriber shall pay the net additional
extension costs. All measurements must be made in a manner most favorable to the person
....... *~ ...... ~ consistent with good engineering practice. For any non-standard installation,
the franchisee shall provide the subscriber with an estimate of all charges within a reasonable
amount of time. This section does not apply to the introduction of new products and services
when a franchisee is utilizing a phased introduction.
City's Determination:
Time Warner's proposal is acceptable.
PaRe 1._~0 Section 7-11¢3)¢b) GeoRraphic coveraqe of the system
Time Warner's Proposal:
~.,i,~ , ..... i .... credit equ3! to ,h~ ~h .... ¢ .... ,o.~o.~ i~o+~ll~+i~ For any instaflation that
is not a fme inst~#~tion or ~ standard instaflafion, the franchisee shaft prowde the subscriber with
a wriflen estimate of afl charges within seven days of a request by the subscriber. Failure to
comply will subject franchisee to appropriate enforcement actions. This section does not apply to
the introduction of new products and se~ices when franchisee is utilizing a phased introduction.
City's Determination:
Time Warner's proposal is unacceptable. The City is entitled, pursuant to 47 C.F.R. § 76.309(b), to
establish and enforce regulations that impose customer service requirements that exceed, or address
matters not addressed by, the FCC customer service obligations. The language, which Time Warner
proposes to delete from this paragraph, eliminates a legitimate customer service regulation, which the
City has determined a need to include within the Regulatory Ordinance.
PaRe 1._~0 Section 7-13(1) Conditions of riRhts-of-way occupancy
Time Warner's Proposal:
(1) Written approval. A franchisee shall first obtain the written approval of the city engineer
prior to commencing construction on the rights-of-way and public places of the city. Approval shall be in
accordance with relevant Charter and Code provisions and administrative regulations, which approval
shall not be unreasonably withheld. The franchisee shall notify the city at least ten (10) days prior to the
commencement of any construction in any rights-of-way. The franchisee shall not open or disturb the
surface of any rights-of-way or public place for any purpose without first having obtained a permit to do
so, applicable to all entities conductinq work in the city fights of way, in the manner provided by law. All
excavation shall be coordinated with other utility excavation or construction made known to franchisee by
the city so as to minimize disruption to the public.
City's Determination:
Time Warner's proposal is unacceptable. Time Warner has attempted to limit the application of this
requirement by mandating that Time Warner would be subject to such requirements only if the
requirement were also applicable to "all entities" conducting work in the City's rights-of-way. The State of
Wisconsin has a Public Service Commission ("PSC") in place to assist in the regulation of utility providers
such as gas, electric and telephone. Cable television operators such as Time Warner have specifically
fought to avoid classification as a "utility" before the State PSC. However, it appears Time Warner
desires equal treatment with utilities when it is convenient or may present more favorable options for
deployment of their system. This is impermissible to the City. In addition, Time Warner has attempted to
create an additional burden on the City by requiring that the City notify Time Warner of other utility
excavation or construction as opposed to Time Warner working with other utility providers to coordinate
excavation and construction.
PaRe 10
Time Warner's
(2)
Section 7-13(2) Conditions of riRhts-of-way occupancy
Proposal:
Use of existing poles or conduits.
(a) The franchisee shaft utilize existing poles, conduits and other facilities whenever
possible and shaft not construct or install any new, different or additional poles, conduits or other
facilities whether on public propertyv, ...... v,, ,.,,.~.v,.,;,,o*"~ ........ ~..,,v~'~ ,., ~,.~,..,~,, until the written approval of
the city is obtained which approval shaft not be unreasonably withheld. No location or any pole or
wire-holding structure of the franchisee shall be a vested interest, and such poles or structures
shall be removed or modified by the franchisee at its own expense whenever the city determines
that the public convenience would be enhanced thereby. If the city reimburses or compensates
another entity for the removal or modification of any poles or structures, franchisee shall be
similarly reimbursed or compensated.
(b) The facilities of the franchisee shall be installed underground in those areas of
the city where existing telephone and electric services are both underground at the time of
construction by the franchisee. In areas where either telephone or electric utility facilities are
installed aerially at the time of system construction, the franchisee may install its facilities aerially;
however, at such time as all t¢~ existing aerial facilities are placed underground, the franchisee
shall likewise place its facilities underground pt so!e cost to the franchisee. If the city reimburses
or compensates another entity for the removal or modification of any poles or structures,
franchisee shall be similarly reimbursed or compensated.
City's Determination:
Time Warner's proposal is unacceptable. Time Warner has attempted to impose a new standard of
review on the City's approval process. The City desires to maintain the standard of review generally
applicable to municipal decisions rather than modify the standard. The City finds acceptable Time
Warner's proposal that it be reimbursed to the extent other utilities are reimbursed, however, the City
objects to the revisions contained in subparagraph (b) of this section as it relates to underground facilities.
Time Warner has proposed to modify this section my eliminating the phrase "at sole cost of the
Franchisee". This elimination raises the question of who will pay for such underground construction and if
not the Franchisee.
Pa.qe 1.~1 Section 7-13(7) Conditions of ri,qhts-of-way occupancy
Time Warner's Proposal:
(7) Tree Trimming. The franchisee shall have the authority to trim trees on pubfic rights-of-
way at its own expense as may be necessary to protect its wires and facilities, subject to supervision and
direction by the city. Trimming of trees on private property shall require consent of the property owner.
Any trimming of trees by the franchisee in the rights-of-way and pubfic ways shall be subject to such
~teneral regulation as the city manager or other authorized official may estabfish to protect the pubfic
health, safety and convenience.
City's Determination:
Time Warner's proposal is acceptable, however, the City is not familiar with a "general regulation" as
opposed to a "regulation." Since this section refers to tree trimming, the City cannot anticipate any
problem with Time Warner's proposed revision as we would expect all right-of-way users to comply with
the City's tree trimming requirements.
Pa.qe 12 Section 7-13(9) Conditions of ri,qhts-of-way occupancy
Time Warner's Proposal:
(9) Installation records. Each franchisee shall keep accurate installation records of the
location of all facilities in the rights-of-way and pubfic ways and furnish them to the city upon request. A
franchisee shall cooperate with the city to furnish such information in an electronic mapping format
compatible with the then-current city electronic mapping format to the extent feasible without the
requirement of Franchisee to incur additional cost, alternatively, the City may request printed maps.
Upon completion of new or relocation construction of underground facilities in the rights-of-way and pubfic
ways, the franchisee shall provide the city with installation records in an electronic format compatible with
the then-current city electronic mapping format to the extent feasible without the requirement of
Franchisee to incur additional cost showing the location of the underground and above ground facilities o~_r
the City may request printed maps.
City's Determination:
Time Warner's proposal is unacceptable. The City's language required cooperation between the City and
Time Warner to provide electronic mapping of Time Warner's system. Time Warner has modified this
section so that the City could never expect maps in electronic format because Time Warner would always
have the option to argue that it would incur "additional costs" to comply with the requirement. Under that
scenario, the City would be limited to printed maps in an era when the City is attempting to utilize
computer technology to streamline its right-of-way oversight and management and reduce system
disruptions by improving communication and information distribution among all right-of-way users.
Pa.qe 1_~3 Section 7-13(12) Conditions of ri,qhts-of-way occupancy
Time Warner's Proposal: (12) Permits.
(a) The franchisee agrees to obtain a permit, if generally applicable, as required by
the city for other right of way users prior to removing, abandoning, relocating or reconstructing, if
necessary, any portion of its facilities. Notwithstanding the foregoing, the city understands and
acknowledges there may be instances when the franchisee is required to make repairs, in
compliance with federal or state laws, that are of an emergency nature. The franchisee will notify
the city prior to such repairs, if practicable, and will obtain the necessary permits in a reasonable
time after notification to the city.
(b) Reimbursement paid through the permitting process is separate, and in addition
to, any other fees included in the franchise, provided however, that permitting fees are nominal in
nature and appficable to all other parties utilizing the city's right of ways.
(c) The city may issue reasonable non-discriminatorv_ policy guidelines to all
franchisees to establish procedures for determining how to control issuance of engineering
permits to multiple franchisees for the use of the same rights-of-way for their facilities. The
franchisee shall cooperate with the city in establishing such policy and comply with the
procedures established by the city manager or his designee to coordinate the issuance of multiple
engineering permits in the same right-of-way segments.
City's Determination:
Time Warner's proposal is acceptable.
Pa.qe 1_~3 Section 7-13(14) Conditions of ri,qhts-of-way occupancy
Time Warner's Proposal:
(14) Relocation delays.
(a) If franchisee's relocation effort unreasonably delays construction of a public
project, beyond time allowed under this ordinance, causing the city to be liable for out-of-pocket
delay damages to a non-municipal entity, the franchisee shall reimburse the city for those
documented damages attributable to the delay created by the franchisee. In the event the
franchisee should dispute the amount of damages attributable to the franchisee, the matter shall
be referred to the city engineer for a decision. In the event that franchisee disagrees with the city
engineer's decision, the matter shall be submitted to the city manager or the city manager's
designee for determination, whose decision shall be final and binding upon franchisee as a matter
of city review, but nothing herein waives any right of appeal to the courts.
(b) In the event the city becomes aware of a potential delay involving the
franchisee's facilities, the city shall promptly notify the franchisee in writinq_ of this potential delay.
City's Determination:
Time Warner's proposal is unacceptable. Time Warner has modified this section to prevent the City from
seeking any damages related to its own costs and expenses. It is entirely possible and probable, that the
City would incur significant internal costs and expenses associated with relocation delays. Any limitation
on the City's ability to recoup those damages is unacceptable. The balance of Time Warner's changes to
this subparagraph is acceptable.
PaRe 14 Section 7-13(17) Conditions of ri,qhts-of-way occupancy
Time Warner's Proposal:
(17) Colocation. To maximize public and employee safety, to minimize visual clutter of aerial
plant, and to minimize the amount of trenching and excavation in and along city rights-of-way and
sidewalks for underground plant, franchisee shall make every commercially reasonable efforts to co-
locate compatible facilities within the rights-of-way subject to the engineering requirements of the owners
of utility poles and other facilities provided franchisee is even advance reasonable notice of such aerial
relocation, trenchinq and/or evacuation, is also in the process of up~tradin~t/rebuildinq or extendinq its
facilities, and is reimbursed for the incremental cost thereof..
City's Determination:
Time Warner's proposal is unacceptable. Time Warner has modified this section so as to render any
hope of co-location impossible. The City is now faced with increased demand for its rights-of-way.
Multiple telecommunications providers already occupy the City's rights-of-way and many more are
expected in the years to come. In addition, the City anticipates one or more additional cable television
operators will install facilities in the rights-of-way to compete head to head with Time Warner. Under Time
Warner's revisions the City would be prevented from seeking co-location in an effort to minimize right-of-
way disruption and congestion which will no doubt reduce the esthetic quality of the community.
PaRe 15 Section 7-15 Cable system desiqn
Time Warner's Proposal:
(3) PEG channels. In addition to the other services proposed by applicants, the city shall
place significant emphasis on the provision of PEG channels, facilities and related considerations. Such
areas include but are not limited to the following: channel(s) for non-commercial, not for profit,
government usage, educational usage (public and nonprofit schools, colleges and universities), and
public access. Applicants are strongly encouraged to investigate the needs and desires of potential users
and to offer such community services as are technologically and economically feasible.
City's Determination:
Time Warner's proposal is unacceptable. Please see Section 7-2(19) above.
PaRe 18 Section 7-19(1-2) Construction and technical standards
Time Warner's Proposal:
(1) Compliance With construction codes.
(a) Construction practices shaft be in accordance with aft applicable provisions of the
Occupational Safety and Health Act of 1970 and any amendments thereto as weft as aft
applicable laws, rules and regulations of the state and the-e#y aft ~tenerafty applicable city
re~tulations, including but not limited to electrical wiring necessary to the operation of city
functions, including but not limited to traffic-control signalization, right-of-way lighting, fire lines
and communications lines.
(b) Aft installation of electronic equipment shaft be of a permanent nature, durable
and installed in accordance with the applicable provisions of the current editions of the National
Electrical Safety Code as published by the Institute of Electrical and Electronics Engineers, the
National Electrical Code of the National Fire Protection Association, and aft state and local codes
where appficable.
(c) Antenna supporting structures (towers) shaft be painted, lighted, erected and
maintained in accordance with aft applicable rules and regulations of the United States
Department of Transportation and aft other applicable laws, rules and regulations of the state and
the-e#y and generally applicable city regulations.
(2) Performance standards. The system shaft be installed, maintained and operated in
accordance with the highest accepted standards of the industry. The franchisee shaft design and
construct the system so as to meet the following minimum standards:
(a) The cable system should be capable of continuous twenty-four (24) hour daily
operation without severe material degradation of signal except during extremely inclement
weather, and immediately following extraordinary storms which adversely affect utility services or
which damage major system components.
(b) The cable system should be capable of operating over an outdoor temperature
range of 0 degrees F to +135 degrees F and over variation in supply voltages from 105 to 130
volts AC without catastrophic failure or irreversible performance changes.
City's Determination:
Time Warner's proposal is acceptable.
Pa.qe 18 Section 7-19(3) Construction and technical standards.
Time Warner's Proposal:
(3) Technical Standards. Except as otherwise provided in federal law, each cable system
shall be designed, installed and operated so as to comply with all applicable technical standards, codes,
and regulations as promulgated by the FCC and other federal7 and state and !oc~! authorities. In this
regard, 47 C.F.R. section 76.60, relating to technical standards (including but not limited to performance
monitoring and measurements), shaft apply in full and is hereby incorporated herein by this reference,
except as preempted by federal law. Aft other applicable state or ci!y laws, rules or regulations relating to
technical standards and operation of the system as may be enacted or promulgated from time to time
shaft apply and govern the installation and operation of the system to the extent such laws, rules or
regulations are not preempted by federal regulation.
City's Determination:
Time Warner's proposal is unacceptable. Time Warner has eliminated any local regulation of technical
standards. While the City recognizes that federal law presently addresses the technical standards with
respect to cable television operators, the City is also well aware of the many changes that have occurred
in federal law, particularly with respect to cable television technical standards dating back to 1970. The
language included within this provision of the Regulatory Ordinance is simply intended to preserve the
City's right to promulgate regulations as may be permitted now and in the future. Time Warner's revision
would eliminate this possibility.
Pa.qe 1._~9 Section 7-20 (1-2) Customer service standards
Time Warner's Proposal:
(1) Office and phone service.
(a) The franchisee shaft maintain an office in the city which shaft be open and staffed
during normal business hours. The franchisee shall have a local, toll free telephone number and
be so operated that complaints and requests for repairs may be received twenty-four (24) hours
per day, each day of the year. Franchisee's personnel at the local office shall, at a minimum, be
able to provide billing and customer service information, and provide for equipment drop-off.
(b) Trained company representatives will be available to respond to telephone
inquiries twelve (12) hours per day Monday through Friday and eight (8) hours on Saturday. At
all other times, the access line may be answered by a service or an automated response system,
including an answering machine. Inquiries received by franchisee's answering service or
automated response system must be responded to by a trained company representative on the
next business day.
(c) Under normal operating conditions, telephone answer time by a customer
representative, including wait time, shall not exceed thirty (30) seconds from when the connection
is made. If the call needs to be transferred, transfer time shall not exceed thirty (30) seconds.
Callers will receive a busy signal less than three (3) percent of the time. Calls wi!! be lost or
o~o~ ,~oo ,~o~ ,~r~ /~ ...... * ~ *~ *;-"~ These standards shall be met no less than
ninety (90) percent of the time, measured on a quarterly basis.
(d) Customer service center and bill payment locations will be open at least during
normal business hours and will be conveniently located. A franchisee may use an agent such as
a bank or other business to receive bill payment from cable customers during and outside of
normal business hours. Such an arrangement, however, will not relieve the franchisee of its
obligation to have its own bill payment location open at least during normal business hours.
(e) Failure to meet these standards shall subject franchisee to the enforcement
provisions of this ordinance at Section 7-24.
(2) Notification requirements.
(a) The franchisee shall provide written information on each of the following areas at
the time of installation of service; at least annually to all subscribers; and at any time upon
request of a subscriber or potential subscriber. A current version of the information will be
provided to the city upon request, and automatically whenever the material provided to
subscribers or potential subscribers changes. The notice provided must provide information
specific to Oshkosh. However, nothing prevents the company from complying with this section by
sending a national notice and a separate notice that provides detail concerning local procedures,
so long as the two are consistent.
(i) Products and services offered;
(ii) Prices and options for programming services and conditions of
subscription to programming and other services. In order that subscribers are fully
apprised of the charges they may incur, franchisee shall note that advertised rates are
subject to additional taxes and fees;
(iii) Installation and service maintenance policies, including, when applicable,
information regarding the subscriber's home wiring rights and information describing
ownership of internal wiring during the period service is provided;
(iv) Instructions on how to use the cable service;
(v) Channel positions of programming carried on the system;
(vi) Billing and complaint procedures, including address and telephone
number of the city's cable office. Such notification shall be either a separate document
which may be included with a billing statement or included on the portion of the monthly
bill that is to be retained by the subscriber;
(vii) The availability of a parental control device;
(vi#)
privacy;
Franchisee's practices and procedures for protecting against invasions of
(ix) The address and telephone number of franchisee's office to which
complaints may be reported;
(x) When appficable, franchisee's community unit identifier as specified by the FCC;
(xi) Subscribers' rights to obtain refunds or credits from the franchisee and
the steps that must be taken to obtain the refunds and credits.
(b) At any time a subscriber's services are substantially changed due to action by
franchisee, franchisee shall send the following appropriate notice about the chanqes to:
(i) Products and services offered;
(ii) Prices and options for programming services and conditions of
subscription to programming and other services. In order that subscribers are fully
apprised of the charges they may incur, franchisee shall note that advertised rates are
subject to additional taxes and fees;
(iii) Channel positions of programming carried on the system;
(iv) Subscribers' rights to downgrade or to disconnect.
(c) Customers will be notified of any changes in rates, programming services, or
channel positions as soon as possible unless otherwise expressly provided by federal law.
Notice must be given to subscribers a minimum of thirty (30) days in advance of such changes if
the change is within the control of the franchisee. In addition, the franchisee shall notify
subscribers thirty (30) days in advance of any significant changes in the other information
required by the preceding paragraph in writing. Notices of changes of programming services
and/or channel locations shall include a concise description of the new programming service and
the specific channel position of that programming service. In addition, should the channel
position be affected by the introduction of a new service, such information must also be included
in the notice.
The city shall be notified of any change in rates, programming services, channel position
or poficy at least thirty (30) days in advance of such change by letter delivered to the
te!ecommunic~tions ~dministr~tor city, except where such notification is impossible because the
change is beyond the control of franchisee or any affiliate, in which case the notice must be given
as quickly as possible. As part of this notice, franchisee will tell the city how notice will be
provided to subscribers and provide a copy of the notice that will be given to subscribers, or if the
precise notice is not available, franchisee will provide the text of the notice.
(d) Notice to subscribers must be reasonable.
(e) Every notice of termination of service shall include all of the following information:
(i) the name and address of the subscriber whose account is delinquent;
(ii) current account balance;
service; and
the date by which payment is required in order to avoid termination of
(iv) the telephone number of ~ of franchisee who can provide
additional information and handle complaints or initiate an investigation concerning the
service and charges in question.
(f) Franchisee shaft at aft times comply with Wisconsin Administrative Code Section
123. 04, Subscription Changes, with respect to additional subscription modifications.
City's Determination:
Time Warner's proposal is acceptable.
PaRe 22 Section 7-20(3)(c) Customer service standards
Time Warner's Proposal:
(3) Service calls and response time. Under normal operating conditions, each of the
following standards will be met no less than ninety-five (95) percent of the time, as measured on a
quarterly basis:
(c) For non-standard residential installations service must be provided within forty-
five (45) days, subject to local weather conditions and desiqn requirements, of the date the person
requesting service agrees to pay the charges associated with the installation. Nothing in this Section 7-
20 permits a franchisee to charge for extending service in an area where the franchisee is required to
provide service pursuant to Section 7-11.
City's Determination:
Time Warner's proposal is acceptable.
PaRe 2:2 Section 7-20¢3)¢f-c~) Customer service standards
Time Warner's Proposal:
(f) If franchisee's representative is running late for an appointment with a subscriber
and will not be able to keep the appointment as scheduled, franchisee will make an effort to
contact the person directly. If, however, the person is unavailable at the time the contact attempt
is made, franchisee will attempt a second contact at least one more time during the previously
agreed upon appointment window. The appointment will be rescheduled, as necessary, at a time
which is convenient for the customer. This later contact is an independent obligation and will not
necessarily excuse a missed appointment Con!acting *~ ..........
Excluding conditions beyond the control of the franchisee, the franchisee ~ift
begin ~orking on "se~ice interruptions" promptly and in no event later than ~enty-four (24) hours
after the interruption becomes known to the franchisee. The franchisee must begin actions to
correct other se~ice problems the next business day after notification of the se~ice problem.
Merely acknowledging the existence of the problem does not satisfy this requirement.
~ Excluding conditions beyond Franchisee's control, Franchisee shall begin to ~ork
on se~ice interruptions no later than t~enty-four (24) hours a~er such interruption becomes
known.
City's Determination:
Time Warner's proposal is unacceptable. Please see Section 7-11 (3) above.
Pa,qe 2_~3 Section 7-20(5) Customer service standards
Time Warner's Proposal:
(5) Refunds, credit and rebates. Each franchisee shall establish a policy for providing
refunds, credits or rebates to customers for missed appointments or failure to perform timely installations.
poficy shaft at aft times comply with Wisconsin Statutes Section 134.42.
City's Determination:
Time Warner's proposal is acceptable.
Pa,qe 2.~4 Section 7-20¢7)¢e) Customer service standards
Time Warner's Proposal:
(7) Bills and Billing Disputes.
(e) Upon request of the City, subscriber bills from franchisee shaft include the
address, and telephone number of the City. The City will provide the required information to
franchisee on an annual basis by January 1, or as needed.
City's Determination:
Time Warner's proposal is acceptable.
Pa,qe 24 Section 7-20¢7)¢f) Customer service standards
Time Warner's Proposal:
(f) Franchisee shall forward all regulatory billing inserts affecting rates, policies and
procedures and copies of all other mailings required by law or franchise to subscribers to the City prior to
the time they are provided to subscribers. Copies of notices to subscribers must be forwarded to the
telecommunications administrator to determine compliance pursuant to applicable law.
City's Determination:
Time Warner's proposal is unacceptable. Please see Section 7-11 (3) above.
Pa,qe 24 Section 7-20¢7)¢c~) Customer service standards
Time Warner's Proposal:
(g) It is franchisee's obligation to pick up any equipment upon termination of any
service if franchisee initially defivered the equipment to the subscriber. Any charges imposed for
pick-up of such equipment shall not exceed the charge permitted under applicable federal law fer
City's Determination:
Time Warner's proposal is acceptable.
Pa,qe 2.~4 Section 7-20(10) Customer service standards
Time Warner's Proposal:
(10) Deposits, refunds, and credits.
(a) Franchisee may require refundable deposits for service or equipment. Upon
termination of service for any reason, subscribers will be entitled to receive a refund or credit
against amounts owed to franchisee equal to the deposit.
On aft deposits, franchisee shaft ~ pay simple interest at a rate of one half
(!/2%) ...... ,~ /~o/_ ........ ~ in accordance with applicable federal or state law. e,,~
(b) Refund checks will be issued within thirty (30) days following the resolution of the
event giving rise to the refund or the next billing cycle.
(c) Credits for service will be issued no later than 30 days after the event giving rise
to a credit or the subscriber's next billing cycle following the determination that a credit is
warranted, whichever occurs first or the return of equipment supplied by the cable operator if
service is terminated.
City's Determination:
Time Warner's proposal is unacceptable. Please see Section 7-11 (3) above. Time Warner's
modification suggests there may be clarification of this issue in state or federal law. The City is not aware
of any state or federal law that clarifies whether any interest should be paid on deposits mandated by
Franchisee. To the extent a deposit is mandated by Time Warner, it is not clear whether Time Warner will
remit any interest to the payer of the deposit and if so, at what interest rate. Furthermore, Time Warner
has eliminated the language, which helps to clarify what remedy is available, if Time Warner should fail to
remit refund checks within thirty days (30) following resolution of a billing issue.
Pa.qe 2_~5 Section 7-20(11) Customer service standards
Time Warner's Proposal:
(11) Rates, fees, and charges.
(a) Franchisee shaft not, except to the extent permitted by law, impose any fee or
charge on any subscriber for service calls to said subscriber's premises to perform any repair or
maintenance work related to franchisee-instafted equipment necessary to receive service, except
for any such work which was necessitated solely by .... ~'~""* ......... ~,' an act or omission of
said subscriber.
(b) Franchisee shaft be entitled to recover a reasonable fee for aft checks returned
due to insufficient funds.
City's Determination:
Time Warner's proposal is acceptable.
Pa,qe 26 Section 7-20(13) Customer service standards
Time Warner's Proposal:
(13) Rights reserved by city. City reserves the-~ whatever rights it may have to establish
additional, reasonable subscriber service standards from time to time, as may be necessary.
City's Determination:
Time Warner's proposal is unacceptable. Time Warner has once again attempted to limit the City's
reservation of rights despite the fact that there is clear federal authority at 47 CFR § 76.309 allowing the
City to establish additional customer service obligations.
Pa,qe 2.~6 Section 7-21(1) Rates
Time Warner's Proposal:
(1) Regulation. The city may regulate rates except to the extent f~ehibited permitted by
state and federal law.
City's Determination:
Time Warner's proposal is unacceptable. Time Warner has attempted to modify this provision to limit the
City's ability to regulate rates in accordance with state and federal law. This provision was drafted by the
City to reserve its rights to regulate rates unless "prohibited" by state or federal law. By changing the
word "prohibited" to "permitted" Time Warner is attempting to shift a burden onto the City to identify
specific authorization. Often, federal and state law may be changed to simply exclude a prohibition
leaving open the right of the City fulfill a regulatory function.
Pa,qe 2.~6 Section 7-21(2) Rates
Time Warner's Proposal:
(2) Rate filings. Each franchisee shall file with the city an up-to-date rate schedule of all
subscriber rates, fees and charges for all cable services and products provided, which schedule shall be
on file in the City at all times. Any ~,",d~,,o~ r,, ..... yr,, ,v,~,~'~* .... ~ specie! r~!es ,v,~"r revenues received from institutions,
motels, hotels, inns, multiple-family dwelling units (referred to below as "MDU" rates), shaft be made
available for inspection promptly upon the city's request for verification of franchise fee payments.
Franchisee shaft file any revised rate schedule with the City in accordance with the requirements of Sec.
7-20.
City's Determination:
Time Warner's proposal is unacceptable. How is the City to verify the accuracy of revenues received
from multiple dwelling units if it cannot determine what rates were being assessed to such units?
Pa,qe 26 Section 7-21(3) Rates
Time Warner's Proposal:
(3) Nondiscrimination. The system shall be operated in a manner consistent with the
principles of fairness and equal accessibility of facilities, equipment, channels, studios and other services
to all residents having a legitimate use for the system; and no one shall be arbitrarily excluded from its
use. Except as may be permitted or not prohibited by applicable law, the franchisee shall not discriminate
in the assessment, levy, charge, imposition or coftection of rates, fees or charges.
City's Determination:
Time Warner's proposal is acceptable. The City notes with interest, however, Time Warner's suggested
revision particularly as it relates to the comments above with respect to Section 7-21 (1) where Time
Warner appears to believe there is a significant difference between laws which "permit" and/or "do not
prohibit" a regulatory function.
PaRe 2._[7 Section 7-22(1) Reports
Time Warner's Proposal:
(1) Annual reports. Upon sixty (60) days advance written notice, on or before March 31 of
each year during the term of the franchise agreement, the franchisee shall submit a written report to the
~ .... ~ ..... ,,,,r~,., City. The reports shall be submitted in accordance with forms attached hereto as
annual reports shaft be prepared in accordance with the general business practices of a franchisee and
shaft contain at least the following information regarding the previous calendar yeac
(a) A summary of activities in the development of the system, including but not
limited to services begun or discontinued, total number of subscribers, homes passed,
subscribers added or discontinued~,o~,~ ,vv, ....... ,,,,~¢~¢-o*¢~-,,v,r,,,,v,,, aft per the provisions of this chapter
and the franchise agreement.
(b) A summary by category of complaints, identifying the number and nature of
complaints and their dispositions.
(c) A statement of known projected construction for the next construction schedule.
(d) A copy of the franchisee's annual shareholder report and those of its parents and
subsidiaries, if applieable prepared in the ordinary course of business.
(e) A full schedule of aft subscriber and user rates, fees and charges for aft cable
services provided.
(f) A copy of subscriber ac~14~ser agreements used by the franchisee.
City's Determination:
Time Warner's proposal is unacceptable. Time Warner has modified this section to require the creation of
a new exhibit, which will presumably include the form of an annual report. The City had drafted this
provision to allow for comment by interested parties prior to the creation of a reporting format but had
specifically identified six criteria that would be included within the report. Since Time Warner has
proposed no specific reporting form, the original language of this section should remain unchanged.
In addition, Time Warner's proposed revisions to subparagraph (d) of this section are unacceptable. In
particular, Time Warner assumes that the only company that will ever hold the Franchise will be a
corporation with a shareholders report. It is entirely possible that Time Warner may sell its system to
another entity or that a third-party may seek to compete against Time Warner utilizing a different
corporate structure. It is important to recognize that a Regulatory Ordinance must govern all cable
operators, which may operate a system in town, not just Time Warner. Therefore, Time Warner's
proposed revision to this subsection is unacceptable.
Pa,qe 2._[7 Section 7-22(2) Reports
Time Warner's Proposal:
(2) Quarterly Reports. Upon request, within forty-five (45) days of the end of each calendar
quarter, each franchisee shall submit a written report to the licensing authority. The reports shall be
submitted in accordance with forms attached hereto as Exhibit ....... '~ ~',, *~" *"~ ........ ~"o*~""o
~dministr~tor. The quarterly reports shaft be prepared in accordance with the general business practices
of a franchisee and shaft contain the following information:
(a) A report showing the percenta~te of calls answered within thirty (30) seconds as
..... ~*o ~¢ *~ *~ .... *o*~o*~o specified in the customer service standards in Section 7-20.
(b) The percentage of time standard and non standard instaflafions (125' to
residences) were completed within the time required by 7-11 and 7-20.
(c) The total number of complaints received for the quarter and the number of
complaints by type of complaint.
(d) The total number of outages. An outage is defined as a loss of audio or video er
~""~°~ .... * ~¢ °"~ ..... ~ affecting multiple subscribers.
(f) A fist of afl services offered by the franchisee, ;~,,~; ........... ~ ..... ; ....
provided that, after the initial filing, subsequent filings need only identify new services and
changes in services offered.
City's Determination:
Time Warner's proposal is unacceptable. Please see the comments in Section 7-22 (1) above. In
addition, Time Warner has modified subsection (a) to eliminate the provision of any telephone statistics
evidencing the percentages to be reported on a quarterly basis. To the extent Time Warner is willing and
able to identify a percentage of calls answered within thirty (30) seconds, it does not appear
unreasonable to request the statistics on which the percentage is based. The balance of Time Warner's
proposed revisions to this subparagraph are acceptable.
Pa,qe 2._~8 Section 7-22(3) Reports
Time Warner's Proposal:
(3) Reports to others. Upon written request of the City, the franchisee shall file promptly
with the city a copy of any document the franchisee ~ filed with the FCC, the Securities and Exchange
Commission or any other regulatory agency with jurisdiction pertaining to the system. To the extent that
City's Determination:
Time Warner's proposal is unacceptable. Time Warner has eliminated the final two sentences of this
subsection that would allow for the City to suspend the requirement of Time Warner to file copies of
reports with the City or to simply file a list of documents as opposed to actual copies which may prove
quite voluminous. The City is perplexed as to why Time Warner has modified this section so as to
mandate that the City "must" receive copies of all documents which Time Warner submits to various
regulatory agencies.
Pa,qe 28 Section 7-22(4) Reports
Time Warner's Proposal:
(4) Material misrepresentations. Any intentional material misrepresentation made by the
franchisee in any report required by this section shall subject the franchisee to the penalty provisions of
this chapter and shall subject the franchisee to all remedies available to the city by law.
City's Determination:
Time Warner's proposal is unacceptable. To the extent Time Warner makes a material misrepresentation
to the City it should be subject to the penalty provisions of the Regulatory Ordinance. Time Warner's
attempt to modify this section by suggesting that only "intentional" material misrepresentations would be
subject to penalty is unacceptable.
PaRe 2._~8 Section 7-22(5) Reports
Time Warner's Proposal:
(5) Access to books and records.
(a) The city may inspect and copy books and records of the franchisee that are
reasonably necessary te the enforcement ef to ascertain franchisee's compfiance with any
provision of this ordinance or the franchise agreement te the cenduct ef pe~erm~nce ev~!u~tien
provision~,~ ~,,~,~~~ ,~,,.~ .... Without limiting the foregoing, a franchisee shall provide the city
access to complaint data to enable the city to fully investigate subscriber complaints. Books and
records shall be produced to the city for inspection at City Haft or at such other mutually agreed
upon location. The city will not unreasonably refuse a request that it inspect documents at the
franchisee's facilities. Provided, however, that nothing in this Chapter shall be read to require the
franchisee to violate any provision of federal or state law relating to customer privacy or to waive
its right to claim that any information requested is proprietary. Information requested shall be
made available for inspection within 14 business days of a request therefor, which period shall be
subject to extension for good cause shown where no harm will result to the pubfic interest from
the delay.
jurisdiction e~oining the request.
(c) A franchisee may not refuse to produce books and records on the ground that such
books and records contain proprietary information. However, all proprietary information received by the
city from a franchisee and clearly marked as such shall not be publicly disclosed insofar as permitted by
Wisconsin Statutes and other applicable law. The city will notify a franchisee if any third party seeks
access to any document that is marked confidential, and the city will withhold releasing the document for
the maximum period permitted by law to permit the franchisee to seek court protection against the release
of the requested documents.
City's Determination:
Time Warner's proposal is unacceptable. Time Warner's revisions are an attempt to reduce the City's
ability to review Time Warner's books and records to verify compliance with Franchise obligations. This
section represents a fundamental verification and enforcement right of the City and Time Warner's
modifications call into question precisely what information Time Warner may be willing to make available
to the City.
PaRe 2._~9 Section 7-23(1) Performance evaluation sessions
Time Warner's Proposal:
(1) Procedure.
(a) Upon sixty (60) days written notice, the city may commence a regularly
scheduled review session any time after the second anniversary date of the execution of the
franchise agreement and subsequently every three (3) years thereafter. All review sessions shall
be open to the public.
(b) Upon sixty (60) days written notice, the city may hold special review sessions at
acb,-time on specific issues relevant to the system. All such review sessions shall be open to the
public and shall be advertised, if possible. Either the city or the franchisee may select additional
topics for discussion at any regular or special review session.
(c) The city shall provide for the taking of written minutes and a recording of all
review sessions held.
City's Determination:
Time Warner's proposal is acceptable.
Pa,qe 2._~9 Section 7-23{2) Performance evaluation sessions
Time Warner's Proposal:
(2) Topics. Topics for discussion and review at the regular review sessions may include but
shall not be limited to the following: Regulated rate structure, free or discounted services, application of
new technologies, system performance, services provided, programming, subscriber complaints, user
complaints, rights of privacy, construction progress, community service channel implementation and
utilization, mutually agreed upon amendments to this chapter, undergrounding process and developments
in the law.
City's Determination:
Time Warner's proposal is unacceptable. The City has established two documents to regulate cable
television. The first is the Regulatory Ordinance, the second is a Franchise Agreement. The Franchise
Agreement is essentially a contract entered into between the City and a given cable operator. Time
Warner's revision to this section suggests that the City is unable to amend its own Regulatory Ordinance
unless Time Warner agrees to permit the amendment. Taken together with changes proposed by Time
Warner to the Franchise Agreement at Section 2(j), it is questionable whether Time Warner would agree
to comply with any subsequent amendments to the Regulatory Ordinance. The City is not accustomed to
allowing businesses that it regulates to pick and choose what local laws it may or may not comply with.
For these reasons Time Warner's proposed change is unacceptable.
Pa.qe 3._~0 Section 7-24(4) Renewal, revocation o~r forfeiture of franchise
Time Warner's Proposal:
(4) Effect of termination or forfeiture. Upon termination and non-renewal of the franchise
or forfeiture of a franchise, whether by action of the city as provided above,v,"r ~' .......... ,.~vw~v ~,~ .,,~-",,~, the
franchisee shall be obfigated to cease using the cable system, subject to Section 7-25, for the purposes
authorized by the franchise.
City's Determination:
Time Warner's proposal is unacceptable. To insure consistency with federal law the word "and" in Time
Warner's proposed revision should be changed to "or". See 47 U.S.C § 547.
Pa.qe 3._~0 Section 7-24(5) Renewal, revocation o~r forfeiture of franchise
Time Warner's Proposal:
City's Determination:
Time Warner's proposal is unacceptable. Time Warner has completely stricken this provision which
would allow for cumulative remedies under the Regulatory Ordinance and Franchise Agreement. This is
completely contrary to general principles of municipal law and to practical enforcement of a Franchise
Agreement. For example, the City may seek to enforce the Franchise Agreement by imposing penalties
under the security fund in the Franchise Agreement. To the extent Time Warner chose not to cure the
alleged default, the City may be forced to undertake more serious penalties including revocation of the
franchise in accordance with the due process provisions of the Regulatory Ordinance and Franchise
Agreement. Elimination of this paragraph would call into question the City's ability to undertake such
enforcement and would significantly limit the City's rights hereunder.
PaRe 30 Section 7-24(6) Renewal, revocation o~r forfeiture of franchise
Time Warner's Proposal:
(65_) Right to require dismantling. Upon termination and non-renewal of the franchise or
forfeiture of the franchise and unless franchisee is otherwise permitted to use its system pursuant to state
and federal law, the city may exercise its option to require the franchisee to dismantle the system,-~-. The
franchisee shall, in an expeditious manner, at its own expense and at the direction of the city, restore any
property, pubfic or private, to the condition in which it existed prior to the erection or construction of the
system, including any improvements made to such property subsequent to the construction of the system.
City's Determination:
Time Warner's proposal is unacceptable. Please see comments to Section 7-24 (4) above.
PaRe 3._~0 Section 7-25 Continuity of service
Time Warner's Proposal:
The franchisee shall provide continuous service for the entire term of the franchise agreement to
all subscribers and users in return for timely payment of the established rates, fees and charges. If the
franchisee overbuilds, rebuilds, modifies, or seeks permission to transfer the system; or if the city
revokes, fails to renew, or otherwise terminates the franchise agreement or declares it forfeited in
accordance with the provisions of Section 7-24, or elects to purchase the system as hereinafter provided;
or if for any reason the franchise becomes void, the franchisee shall continue to operate the system in a
normal and orderly manner until an orderly and lawful change of operation is effectuated. This period of
operation shall not exceed thirty-six (30) months from the date of occurrence of any of the above events,
or the date any appeals of the same are finally concluded, whichever is later. During such interim period,
the franchisee shall not make any material, administrative or operational change that would tend to
degrade the quality of service without the express written permission of the city. In addition to providing
grounds for termination, if the franchisee fails to operate the system for ninety-six (90) consecutive hours
without prior approval of the city or fails to continue operation on the occurrence of any of the events
stated in this section, the city shall have the right to operate the system, either directly or through a
designate, until such time as a new operator is selected. If the city is required to fulfill this obligation for
the franchisee, the franchisee shall reimburse the city for any and all costs, fees or damages incurred by
the city.
City's Determination:
Time Warner's proposal is acceptable.
PaRe 32 Section 7-28¢2)¢b) Transfers and assiqnments
Time Warner's Proposal:
(b) any non-confidential or non-proprietary contracts or other documents that
constitute the proposed transaction and all documents, schedules, exhibits, or the like referred to
therein;
City's Determination:
Time Warner's proposal is acceptable, however, the City questions who will determine whether
information is "non-confidential or non-proprietary."
PaRe 32 Section 7-28¢2)¢e) Transfers and assi,qnments
Time Warner's Proposal:
(e) a brief summary of the any proposed transferee's plans regarding line
extensions, p/ant and equipment upgrades, channel capacity, expansion or elimination of
services, and any other changes affecting or enhancing the performance of the cable system.
City's Determination:
Time Warner's proposal is acceptable.
PaRe 3.~2 Section 7-28¢3)¢b) Transfers and assiqnments
Time Warner's Proposal:
(b) the proposed transferee, where there is a transfer of the Franchise, will ~
o ~ro,~,.~ ....,~ .... ~ ..... ~,~ .......,~,~ ........,~,~,~, ,,, ~,,. ,~¢¢,~,.,~ ....... agree to assume the
obligations of the transfer under its franchise. This section does not authorize the City to exercise
authority it does not otherwise have under appficable law.
City's Determination:
Time Warner's proposal is acceptable.
PaRe 3_~3 Section 7-28(4) Transfers and assiqnments
Time Warner's Proposal:
(4) Approval. Any approval will also be subject to a determination by the city that:
the transferee possesses the requisite legal, financial and technical qua/if/cations;
(b) transferee will agree to be bound by afl the conditions of the franchise and to
assume afl the obligations of its predecessor;
(c) any outstanding compfiance and compensation issues will be resolved or
preserved to the s~tisf~ction of by the City; and
(d) the proposed transferee and the current franchisee have provided afl required
information under appficable law so that the city may act on the appfication.
City's Determination:
Time Warner's proposal is unacceptable. Time Warner's proposal suggests that the City is unable to take
into consideration the "public interest" when reviewing a proposed transfer. While presumably a review of
the legal, technical and financial qualifications of the proposed transferee will encompass the majority of
the City's concerns, it is possible that the City may look to the transferee's historical operations in similar
communities in the state or around the country. To the extent this historical operating record suggest an
operator which has failed to comply with Franchise terms, delivers substandard customer service or
related issues, should the City not be able to base its determination on such information? Furthermore, in
subparagraph (c) if Time Warner has an outstanding compliance or compensation issue, why must the
"City" resolve such issues? Is it not the obligation of the cable operator to resolve its compliance and
compensation issues prior to transferring the Franchise?
Pa.qe 33 Section 7-28(5) Transfers and assiqnments
Time Warner's Proposal:
(5) Acceptance. Any proposed transferee shall execute an agreement, in such form as
acceptable to the city attorney, that it will assume and be bound by all of the provisions, terms and
conditions of this chapter and the franchise agreement and any other conditions the Common Council
may have established in granting authorization related to the proposed transferee's leqal, financial or
technical qualifications ~s con!em,,p!~!ed by s,.'b~ec!i9n~ (! ~,).
City's Determination:
Time Warner's proposal is unacceptable. Please see the comments to subsection (4) and above.
Pa.qe 34 Section 7-28(9) Transfers and assiqnments
Time Warner's Proposal:
(9) Notwithstandinq anything herein to the contrarF, no consent of the city shall be required
for any transfer to an entity controlling, controlled by or under the same common control as franchisee.
City's Determination:
Time Warner's proposal is unacceptable. Please see comments to Section 4 of the Franchise
Agreement.
Pa.qe 34 Section 7-30(1) Indemnification and ~ re,qardin,q issuance of franchise
Time Warner's Proposal:
(1) Indemnification. The franchisee shall indemnify, save harmless and defend the city, its
Common Council, appointed boards and commissions, officers and employees, individually and
collectively from all fines, liens, suits, claims, demands, actions, costs of litigation, attorneys' fees,
judgments or liability of any kind (including but not limited to libel, slander, invasion of privacy,
unauthorized use of any trademark, trade name or service mark, copyright infringement, injury, death or
damage to person or property) arising out of or in any way connected with the installation, construction,
operation, maintenance or condition of the system. The franchisee shall assume all risks in the operation
of the system and shall be solely responsible and answerable for any and all accidents or injuries to
persons or property arising out of the performance of the franchise agreement. The amounts and types of
insurance coverage requirements set forth in section 7-31 ("Insurance") shall in no way be construed as
limiting the scope of indemnity set forth in this section.. The city shall give the Franchisee timely written
notice of the making of any claim or the commencement of any action, suit or other proceeding covered
by the indemnity of this Section, where the Franchisee is not a party thereto and franchisee shall assume
on the cit~y's behalf the defense thereof. Franchisee shall not be obligated to provide City with
indemnification for the neqligence or misconduct of the Cit~, its Common Council, appointed board and
commissions, officers, employees, agents or contractors, or for any programming on, or use of, channel
capacity or PEG facilities designated for use by the City for public, educational and governmental
programming, use of the Emergency Alert System or I-Net..
City's Determination:
Time Warner's proposal is acceptable.
Pa.qe 3.~4 Section 7-30¢2)¢a) Indemnification and disputes re,qardin,q issuance of franchise
Time Warner's Proposal:
(2) Disputes regarding issuance of franchise:
(a) Franchisee shall indemnify save harmless and defend the city, its Common
Council, appointed boards and commissions, officers and employees, individually and collectively
from all fines, fiens, suits, claims, demands, actions, out-of-pocket costs of litigation, attorneys'
fees, judgments or liability of any kind arising from the defense of any litigation brought by third
parties challenging the right of the city to issue the franchise under state law. The city shaft give
the Franchisee timely written notice of the making of any claim or the commencement of any
action, suit or other proceeding covered by the indemnity of this Section, where the Franchisee is
not a party thereto. In the event that any such litigation ensues, the city may, but is not required
to, tender the defense of such litigation to franchisee, which shaft then defend the litigation;
provided, however, that if the city tenders such defense to franchisee, franchisee shaft have the
right to retain counsel of its own choice, to settle aft or any part of the litigation on terms
acceptable to franchisee (and o" ,~,,,,,r~.;,,,,,~ ;,, ,~,, ,.,,~,, ,~; .... ,;,,,, ,,~ ,~,, ,.;, ....... ,o~,~,, ,,, ,~,,
;, ,~ ~o,~; .... ~ ,,,;,~ ..... ~ ........... ~ ~;*;'~°*;~" If City elects to provide its own defense,
City shaft cover its own costs of such defense unless otherwise offered by franchisee.
(b) Franchisee shaft assume the risk of, and shaft relinquish any claim against the
city in connection with any final, non-appealable determination by a court of competent
jurisdiction that the city lacked the current statutory authority to issue the franchise.
City must:
In order for the City to assert its ricjht to be indemnified and held harmless, the
1)
Promptly notify Franchisee of any claim or leqal proceeding which gives
rise to such fiqht;
Afford Franchisee the opportunity to participate in and fuftv control any
compromise, settlement, resolution or disposition of such claim or
proceeding' and
Fully cooperate in the defense of such and make available to Franchisee
aft such information under its control relatinq thereto.
City's Determination:
Time Warner's proposal is unacceptable. Time Warner has attempted to limit its indemnification to "out-
of-pocket" costs incurred by the City which significantly limits the recovery of costs which may be incurred
by City staff and the City Attorney's office in such matters. The balance of Time Warner's proposed
revisions to this subsection are acceptable.
Pa,qe 36 Section 7-32 Bondinq
Time Warner's Proposal:
(1) Construction Bond. Within thirty (30) days after written notification of the award of a
franchise by the city that provides for initial construction of the system, the franchisee shaft file with the
city a construction bond for the benefit of the city in the amount of One Hundred and Fifty Thousand
Dollars ($150,000.00) to Five Hundred Thousand Dollars ($500,000.00) as determined by City to be
effective upon the execution of the franchise agreement and conditioned upon completion of system
construction/upgrade. In the event that the franchisee fails to comply with provisions of this chapter
relating to system construction/upgrade, the franchise agreement or other law applicable relating to
system construction/upgrade, then there shaft be recoverable jointly and severally from the principals and
surety any and aft damages or costs suffered or incurred by the city, including but not limited to attorney's
fees and costs of any action or proceeding, and including the full amount of any compensation,
indemnification, cost of removal or abandonment of any property or other costs due and owing the city up
to the full principal amount of such bond. The construction bond shaft be maintained in full as a continuing
obligation during until the City determines system construction or upgrade has been completed pursuant
to aft terms and conditions of this chapter and the Franchise Agreement. The construction bond shaft be
issued by a surety company authorized to do business in the state and shaft be in a form approved by the
city attorney.
(a) The construction bond shaft contain the following endorsement:
It is hereby understood and agreed that this bond may not be canceled by the surety nor
the intention not to renew be stated by the surety until sixty (60) days after receipt by The City of
Oshkosh, by registered mail, of written notice of such intent to cancel or not to renew.
(b) None of the provisions of this section or section 7-33 ("Security Fund"), nor any
damages recovered by the city thereunder, shall be construed to excuse the faithful performance
by or limit the liability of the franchisee.
(2) Return of performance bond. Upon application to the city, the franchisee shaft be
entitled to the return of the performance bond upon completion of system construction/upgrade ~evided
,~r~ ;o ,~ ....... *o*o~;~'~ ~¢o,,~* ......... ~,,~ *~ ~;*,, ~,, *~ f~nchisee; provided that, nothing
herein shall be read to excuse a franchisee from its obligation to have a performance bond.
City's Determination:
Time Warner's proposal is unacceptable. Time Warner has attempted to completely avoid any obligation
to post a construction bond unless the cable operator is undertaking "initial construction of the system."
This is particularly interesting given Time Warner's efforts to ensure a level playing field for all providers
within the City. Presumably, Time Warner desires to be relieved of any financial burden of posting a
construction bond despite the fact that its system occupies every street within the city, yet seeks to
impose such requirements on its competitors. Moreover, Time Warner's proposed revisions of
subparagraph (2) of this section regarding outstanding defaults or monies owed the City is unacceptable
as it circumvents the very purpose of the construction bond which is to provide a source of payment to the
City in the event a Franchisee fails to meet the obligations of the Regulatory Ordinance or any Franchise
granted thereunder.
Pa,qe 37 Section 7-33(1) Security fund
Time Warner's Proposal:
(1) Amount. Within thirty (30) days after written notification of the award of a franchise by
the city, the franchisee shall deposit with the finance director of the city, and maintain on deposit
throughout the term of the franchise agreement, a security fund in the sum of A~ ten thousand
dollars ($25000.00510,000.00) in cash as security for the faithful performance by the franchisee of all
provisions of this chapter and the franchise agreement and compliance with all orders, permits and
directions of any agency or department of the city having jurisdiction over the franchisee's operations. In
lieu of the cash deposit, a franchisee may provide an irrevocable and unconditional twe~ ten
thousand dollar ($2500010,000.00) letter of credit with a local financial institution, in a form acceptable to
the City Attorney. Both the letter of credit and the cash deposit are referred to by the term "security fund"
in subsections (2) - (6).
(a) Withdrawal of funds. Subject to Section 7-34 hereof, within fifteen (15) days
after written notice to the franchisee by the city that the city has withdrawn any amount from the
security fund, the franchisee shaft deposit or pay to the finance director a sum of money sufficient
to restore such security fund to the original amount of ~ ten thousand dollars
($25,000.0010,000.00), or, in the case of a letter of credit, restore the letter of credit to its full
amount.
(b) Upon withdrawal from the security fund, the City shaft in writing notify the
franchisee of the amount and date thereof In the event the security fund is insufficient to pay the
city for any compensation, damage, penalties, costs or expenses owing to the city pursuant to
this chapter or the franchise agreement they may seek payment from Franchisee for any
outstanding amount.
(c) The security fund shaft become the property of the city in the event that a
franchise agreement is terminated by the city by reason of a violation of this chapter or breach of
the franchise agreement pursuant to the provisions of section 7-24("Renewal and Termination").
City's Determination:
Time Warner's proposal is unacceptable. Time Warner has attempted to reduce by more than fifty
percent (50%) the level of the security fund to be required under a Franchise. Time Warner has provided
no rationale for such reduction. The City has established a security fund at the twenty-five thousand
dollar ($25,000) level to provide a source of revenue to be drawn upon in the event a Franchisee fails to
comply with the terms of the Ordinance or any Franchise granted thereunder. Given the scope of
operations which any cable operator will be required to undertake to provide cable service within the City,
the twenty-five thousand dollar ($25,000) security fund is set at an extraordinarily reasonable level should
be maintained.
Pa,qe 38
Time Warner's
(1)
Section 7-34 Enforcement Procedure
Proposal:
In the event City believes that Franchisee has substantially breached or violated any
material provision of this ordinance or a franchise agreement City shall follow the
procedure outlined within this Section. In the case of revocation of a franchise
agreement, the City's action shall also be governed by Section 7-24(2).
(2)
City shaft provide Franchisee written notice of an alleged violation or breach and demand
that Franchisee cure the same within a reasonable time, which shaft not be less than ten
(10) business days after receipt of notice in the case of an alleged failure of the
Franchisee to pay any sum or other amount due the City under this ordinance or any
franchise agreement and thirty (30) days in aft other cases. If Franchisee fails to either
cure the alleged violation or breach within the time prescribed or to commence correction
of the violation or breach within the time prescribed and thereafter diligently pursue
correction of such alleged violation or breach, the City shaft then give written notice of not
less than fourteen (14) business days of a public hearing to be held before the City
Council. Said notice shaft specify the violations or breaches alleged to have occurred. At
the Public Hearing, the Council shaft hear and consider relevant evidence making a
written record thereof and thereafter render written findings and its decision. In the event
the Council finds that a material violation or material breach exists and if the Grantee has
not cured the same in a satisfactory manner or has not diligently commenced to cure
such violation or breach after notice thereof from City and is not diligently proceeding to
fully cure such violation or breach, the Council may revoke and terminate the franchise or
impose any other remedy permitted by the Franchise Agreement or applicable laws.
Franchisee shaft have the right to appeal any decision to a court of competent
jurisdiction.
City's Determination:
Time Warner's proposal is unacceptable. Time Warner has modified this section to create a significantly
higher standard for implementation of the enforcement procedure. The City is not certain what
constitutes a "substantial" breech of a "material" provision. What is the difference between a substantial
breech and a breech? Is there a common understanding of what terms of the Regulatory Ordinance and
Franchise Agreement are "material?" In addition, Time Warner has proposed to add an additional
sentence at the end of this section providing it the right to appeal any decision to a court of competent
jurisdiction. The City believes that appeals of municipal decisions are governed by Wisconsin Statutes at
Chapter 68 and should be conducted in accordance with applicable law.
PaRe 39 Section 7-35(1) Franchise fee
Time Warner's Proposal:
(1) Amount. In addition to any other consideration supporting the award of a franchise by
the city, including but not limited to the granting of the privilege to utilize the rights-of-way of the city
pursuant to this chapter for the purpose of providing cable service, and the franchise agreement to
construct and operate the system, the franchisee shall pay to the city an amount equal to five (5) percent
of gross revenues from the provision of cable services within the city.
City's Determination:
Time Warner's proposal is unacceptable. Given that the Regulatory Ordinance provides for a definition of
"Gross Revenues" Time Warner's proposed addition creates an ambiguity regarding whether the
definition will govern or whether Time Warner's proposed language would govern.
PaRe 39 Section 7-35(4) Franchise fee
Time Warner's Proposal:
(4) Accord and Satisfaction. No acceptance of any payment shall be construed as an
accord that the amount paid is in fact the correct amount, nor shall such acceptance of payment be
construed as a release of any claim the city may have for further or additional sums due and payable.
Within three (3) years of the date of submission of any payment hereunder, the city or its designate shall
have a right to audit all financial records of franchisee reasonably necessary to the determination of
whether Gross Revenues and franchise fees have been accurately computed and paid for such period
upon the giving of reasonable notice and during normal business hours. In the event an audit results in
additional moneys owed the city, interest shall be charged at the rate of one (1) percent per month on the
unpaid balance. If there is a dispute as to whether a particular item of revenue is within the scope of the
term "gross revenues," records will be provided without prejudice to any claim the Franchisee might have
that a franchise fee is not owed on such revenues. Provided that, a franchisee may withhold revenue
records for items that it claims are not "gross revenues" so long as the franchisee (i) provides a certified
statement describing the nature of the revenues contained in the records withheld and (ii) agrees, in its
franchise agreement, to pay all costs, including attorney fees, that the city incurs should the city seek
production of the records and ultimately prevail. Each franchisee shall be required, in accordance with
the terms of its franchise, to pay for any out-of-pocket audit costs where the audit shows the franchisee
~ underpaid the franchise fee due to the city by 5% for any audited period.
City's Determination:
Time Warner's proposal is unacceptable. Wisconsin Statutes at § 893.43 provides for a six (6) year
statute of limitations. Time Warner has proposed a three (3) year statute of limitations presumably in an
attempt to minimize any exposure it may incur for failure to properly pay its franchise fees to the City.
Moreover, Time Warner has modified the final sentence of this subparagraph to eliminate its obligation to
reimburse the City for auditing costs even when the City verifies that Time Warner's franchise fee
payments are inaccurate.
PaRe 40 Section 7-35(5) Franchise fee
Time Warner's Proposal:
(5) Not Franchise Fees. The payment required pursuant to this section shall be in addition
to and not in lieu of any other generally applicable, non-discriminatory tax, fee (including by way of
example and not limitation, permit fees), or payment owed the city by the franchisee pursuant to any
other applicable provisions of this Code or laws of the state, unless the tax, fee or payment is required to
be treated as a franchise fee under 47 U.S.C. §542.
City's Determination:
Time Warner's Proposed changes are unacceptable. The City specifically cited to that portion of Federal
law that defines what are and are not Franchise fees (47 U.S.C. § 542). Time Warner has attempted to
insert language that goes beyond section 542.
PaRe 40 Section 7-36(3) RiRhts reserved to the city
Time Warner's Proposal:
(3) Use of Poles. Subject to applicable federal or state law, the city reserves the right,
during the term of the franchise agreement, to install and utilize for a negotiated charqe, upon the poles
and conduits owned or jointly owned by the franchisee, any wire or pole fixtures required for municipal
purposes, so long as such installation and utilization does not unduly interfere with the operation of the
system and is mutually agreed upon with Franchisee.
City's Determination:
Time Warner's proposal is acceptable.
PaRe 40 Section 7-37 Nondiscrimination and equal ~ opportunitv
Time Warner's Proposal:
(1) Nondiscrimination. Except as provided by applicable law or for failure to comply with
franchisee's terms and conditions for subscription to service, a franchisee shall not deny service, access
or otherwise discriminate against subscribers, users or any resident of the city. The franchisee shall
strictly adhere to the equal employment opportunity requirements of the FCC. The franchisee shall
comply at all times with all other applicable federal, state and generally applicable city laws, rules and
regulations, and all federal and state executive and administrative orders relating to nondiscrimination.
City's Determination:
Time Warner's proposal is acceptable.
PaRe 4_~3 Section 7-39 Cost of consultant
Time Warner's Proposal:
City's Determination:
Time Warner's proposal is unacceptable. Historically, Time Warner has argued that several district court
decisions from around the country support its interpretation that Time Warner should not be required to
reimburse the City for costs over and above the five percent (5%) franchise fee. However, it is important
to note that the City in this Section 7-39 is simply attempting to reserve its rights to seek such
compensation as may be permitted under federal law. Specifically, the paragraph begins "except as
otherwise provided by law..." Moreover, the paragraph includes a sentence, which provides that the City
"hereby reserves its right to pursue reimbursement from Franchisee of consultant fees pursuant to all
applicable law." Clearly this paragraph is simply serving as a reservation of rights given that state and
federal law are subject to interpretation. Moreover, changes may occur in state and federal law, which
permit such reimbursement which the City may then chose to exercise.
Pa.qe 44 Section 7-41(2) Dama,qes
Time Warner's Proposal:
(2) Damages.
(a) For failure to timely file required plans, data or reports pursuant to this chapter
and the franchise agreement--S100. O0 per day.
(b) For failure to timely comply with lawful orders of the city--S200. O0 per day.
(c) For failure to complete construction or commence operations of the portion of the system
that is primarily intended to serve residential subscribers pursuant to this chapter and the franchise
agreement $1. O0 per day for each affected subscriber.
((lb_) For failure to provide the services proposed by the franchisee pursuant to the
provisions of this chapter and incorporated into the franchise agreement, including but not limited
to PEG channel activation and equipment--S500. O0 $100. O0 per day.
(1) For failure to complete construction or commence operations of the
portion of the system that is primarily intended to serve residential subscribers:
up to $500/day, ..... ~"'"' ;~"'"";";o~ .... *~ $ !/d~y ~ ..... ~ o¢¢~,~ o,,~o~;~
(3) For failure to provide any capacity for pubfic, educational, and
governmental use of the System required in this Franchise: up to $250 for each
violation for each day the violation continues;
(4) For failure to maintain a local office as required in Section 160') below:
¢o ~ $100.00 per month;
(5) For violating ~,",y FCC customer service aejc:eejate performance standard
for two consecutive reporting periods: $!,000 $100.00 for v/o/pt/on of the
........... , ,~r;~. if Franchisee violates the same standard in the ~ third
measurement period, $!,2505125.00; ~,,,vvv¢~ ~ $150.00 for the ,,,,,~*~;~ fourth
consecutive measurement period; and~,¢~,, 7~, ~ $175.00 for the ,v,,,,,¢~"~ fifth and
each subsequent consecutive measurement period violation during the term of
this agreement;
(6) For afl other material violations of this agreement or of the Cable
Ordinance for which actual damages may not be ascertainable: $100/day for
each violation for each day the violation continues.
(7) For any violation of any federal, state, or local safety code requirement,
$100/day for any violation for each day the violation continues.
City's Determination:
Time Warner's proposal is unacceptable. Time Warner has substantially modified this damages provision
greatly reducing the level of damages that the City could impose on Time Warner for violations. Most
notably, Time Warner has modified the City's ability to enforce its own customer service standards in
subparagraph (5). In particular, Time Warner has changed subparagraph (5) to reference FCC customer
service standards as opposed to the standards contained within the Regulatory Ordinance. Does this
mean the standards in the Ordinance are unenforceable? Moreover, penalties for violation have been
substantially reduced to between $100 and $175. It is important to recognize that these standards are
measured on a "quarterly" basis and therefore Time Warner could avoid compliance with customer
service standards by simply paying between $100 and $175 per quarter. This would provide the City with
virtually no enforcement capabilities and would render all customer service obligation essentially
meaningless.
PaRe 4_~5 Section 7-42 Penalties
Time Warner's Proposal:
Where this chapter provides alternative penalties or remedies, they shall be cumulative; and
excepting financial penalties, the imposition of one penalty or remedy shall not prevent the imposition of
any other penalty or remedy provided for. Any,.,v, vv,, ........... vv,,.,~,v~;'""'~ ~,"'"' ,,;""o";"""-'.,~,~,,,,~, any provision ~,"~ ,,,,~*~;" chapter
.... ~ ;~; .... ~ ~ .... * .... *~ ~;~/~ ~*~ ~ ~*~ Each day of a continuing violation shall
constitute a separate and distinct offense.
City's Determination:
Time Warner's proposal is unacceptable. Time Warner has proposed to eliminate the sanctions for the
imposition of a penalty leaving in question precisely how the City is to enforce the Regulatory Ordinance
and any Franchise granted thereunder.
CABLE COMMUNICATIONS FRANCHISE AGREEMENT
OSHKOSH, WISCONSIN
PaRe I Section 1. Definitions
Time Warner's Proposal:
Except as otherwise provided herein, the definitions and provisions governing the
interpretation of terms as contained in the Cable Ordinance shall govern this agreement.
References to any City official or office also refer to any official or office that succeeds to
any or all of the responsibilities of the named official or office. References to "laws" or
"applicable laws" include federal, state, and generally applicable local laws and
regulations adopted pursuant to those laws; and unless otherwise stated, include laws
now in effect, as the same may be amended from time to time.
City's Determination:
Time Warner's proposal is unacceptable. The addition of the phrase "generally applicable" suggests that
Time Warner does not have to comply with any local laws and regulations which may be specific to cable
television operators. By way of example, the FCC at 47 C.F.R. § 76.309(b) permits a franchising
authority to enact and enforce consumer protection laws that exceed or address matters not addressed
by the standards set forth by the FCC. To the extent the City chose to exercise this option, Time
Warner's proposed modification of this section may serve to preclude the City's enforcement of such local
law because it is not "generally applicable" and rather would apply only to cable television operators.
Pa,qe 1 Section 1.(d) Books and Records
Time Warner's Proposal:
(d) Books and Records. Any recorded information relating to the Cable System or
its management, including, but not limited to, information regarding its construction,
operation or repair, in whatever form stored, including, but not limited to, computerized
records and programs, paper records, and video or audio-taped records necessary for
the city to determine franchisee's compliance with the material terms of this Aqreement.
City's Determination:
Time Warner's proposal is unacceptable. Time Warner's concept of insuring that the City only solicits
information necessary to determine Time Warner's compliance with the franchise presents no concerns.
However, use of the phrase "material" suggests that there is a limitation on what information the City can
solicit. Who would determine what constitutes a "material" provision of the franchise? This type of
phrase would likely lead to disagreements between the parties each and every time the City attempted to
obtain information to enforce the franchise.
Pa,qe 2 Section 2.(a) Grant of Authority; Term Limits and Reservations
Time Warner's Proposal:
(a) Grant of Authority, Term. City hereby grants to Franchisee, subject to the
terms and conditions of this agreement, the non-exclusive right, privilege, and authority to
construct, operate and repair a Cable System within City limits of City as the same may
be modified from time to time to provide Cable Services. The Franchise shall remain in
effect from the effective date of this grant for a period of ~ fifteen (15) years, to
and through __ __, 20105, unless otherwise terminated by action of City.
Subject to the provisions of this Section 2, the City may amend this agreement so
as to require the Franchisee to upgrade the Cable System to incorporate the State of the Art (the
"State of the Art Option").
The City may not initiate the State of the Art Option at a time when the
Franchisee is subject to effective competition as defined from time to time by federal law.
In order to initiate the State of the Art Option, the City shall first commence a
review of the Cable System. There shall not be more than one (1) such review every two (2)
calendar years. A review may not commence prior to the eiqhth (Sth) or after the twelfth (12th)
anniversary of the Effective Date.
The review described herein shall, at a minimum, take into account the followinq:
characteristics of the existinq Cable System;
the State of the Art;
the additional benefits provided to customers by the State of the
Art;
the marketplace demand for the State of the Art taking into
account any associated rate increase; and
5. any additional factors deemed relevant by the City or the
Franchisee.
I~ after conductinq_ such a review, the City determines that the exercise of the
State of the Art Option may be warranted, the City shaft hold at least two (2) public hearings to
enable the general public and the Franchisee to comment and present additional evidence.
I~ foftowinq such hearings, the City determines that the exercise of the State of
the Art Option is warranted, it may order the State of the Art be implemented ("the Order"). The
Order shaft be in writing and shaft set forth the basis for the City's decision. Upon agreement, the
parties may amend this Franchise accordingly. I~ however, the Franchisee is not wiftinq to
comply with such Order, the Franchisee may, within sixty (60) days after the City's Order:
1) Appeal the City's Order to any court of competent jurisdiction; or
Notify the City pursuant to Section 626 of the Cable Act that it
wishes to commence proceedings to review the Franchise. Such
notice shaft be deemed to shorten the term of the Franchise such
that the Franchise will expire thirty-six (36) months from the date
of the Franchisee's notice. The Franchisee shaft not be deemed
to be in violation of the Order or of the Franchise if such renewal
proceedings are commenced.
If the court finds that the Franchisee has demonstrated the Citv_'s Order is not
supported by a preponderance of the evidence based on the record of the proceedings outlined
above, the court shaft grant appropriate relief.
For purposes of this Section 2, State of the Art means equipment that:
is readily available with reasonable delivery schedules from two
(2) or more sources of supply;
B. has the capability to perform the intended functions
demonstrated within communities with similar characteristics
(including, but not necessarily limited to population, density,
subscriber penetration, etc.) under actual operating conditions
for purposes other than test or experimentation; and
C. can be implemented by the Franchisee in a economically
feasible manner takinq into account economic waste (i.e., early
retirement of assets) and the reasonable likelihood of generating
a reasonable return on the Franchisee's investment when
measured over the then remaining term of the Franchise.
The term "State of the Art does not include equipment and/or facilities associated
with public, educational or governmental access.
City's Determination:
Time Warner's proposal is unacceptable. The City established a need for a ten (10) year franchise and
Time Warner has proposed a fifteen (15) year franchise. The City's entire needs assessment was based
on a term of ten (10) years and specifically took into consideration the fact that the City was not
attempting to force Time Warner to improve or upgrade its cable system in any way. Despite this, Time
Warner has added a lengthy provision to this section that includes a complicated process through which
the City could supposedly compel Time Warner to further upgrade its cable system. This "State of the
Art" provision, however, could only be implemented to the extent Time Warner determines that it is
"economically feasible."
While the City appreciates Time Warner's efforts to insure that its system will remain "State of the Art" the
City trusts that the market place will insure that Time Warner modifies its system as subscriber demand
dictates. The City has not identified any need or interest in entering into a Franchise Agreement which
exceeds ten (10) years. This is particularly true given that the City has focused its entire needs
assessment on identifying its future cable related community needs and interests on a ten (10) year term.
This time period was established to provide a sufficiently long franchise term so that the parties would not
be engaged in a continual franchise renewal and yet the term would not be so lengthy as to prevent the
City from reassessing its cable related needs and interests in a reasonable time period.
PaRe 4 Section 2.(b) Grant of Authority; Term Limits and Reservations
Time Warner's Proposal:
(b) Scope of Franchise. The Franchise is intended to convey limited rights and
interests only as to those City rights-of-way in which City has an actual interest. It is not a
warranty of title or interest in any right-of-way; it does not provide Franchisee any interest in any
particular location within the right-of-way; and it does not confer rights other than as expressly
provided in the grant. The Franchise does not deprive City of any powers, rights, or privileges it
now has or may later acquire in the future to use, perform work on, or to regulate the use of, and
to control City's right-of-way, including without limitation the right to perform work on its roadways,
right-of-way or appurtenant drainage facilities, including but not limited to, constructing, altering,
removing, paving, widening, grading, or excavating. City will give Franchisee at least three (3)
business days notice of any excavating which is likely to damage Franchisee's lines and
appurtenances so that Franchisee may protect its lines and appurtenances from any City work.
City's Determination:
Time Warner's proposal is acceptable.
Pa,qe 4 Section 2.(c) Grant of Authority; Term Limits and Reservations
Time Warner's Proposal:
(c) Exercise of Authority under Franchise. This Franchise only authorizes
Franchisee to engage in Cable Service, as that term is defined in the Federal Cable Act, 47
U.S.C. Sec. 521, et seq., Neither this agreement nor the grant of the Franchise shall be
interpreted to prevent the City from imposing additional conditions, including additional
compensation conditions for use of the Rights of Way should Franchisee provide services other
than Cable Services, all in accordance with applicable federal and state law. However, this
Agreement shall not be read as a concession by Franchisee that it needs authorization to provide
services other than Cable Services.
City's Determination:
Time Warner's proposal is acceptable.
PaRe 4 Section 2.(e) Grant of Authority; Term Limits and Reservations
Time Warner's Proposal:
(e) System Authorizations.
(1) In the event that the City issues a Cable Service Franchise to a third
party cable operator for the purpose of operating a cable system in public
rights-of-way or enters into an agreement with a person to provide an
Open Video System in the City, the material terms of such
Agreement, considered as a whole, shall not be subs!~n!/~!!y more
favorable or sub~!~n!/~!!y less burdensome than the Franchise issued to
Franchisee hereunder, in cases where the City h~ the c!e~r
~,,~,, ~ is not proscribed by federal or state law from
imposin~ such terms and conditions. The City is not required to
unde~ake any litigation to secure Franchisee's rights under this Section
2(e).
(24) Notwithstanding the foregoing, if the City constructs a cable system and
provides Cable Se~ice as a cable operator to residential d~elling un/ts
throughout a substantial potion of the City of Oshkosh, it ~ill do so
under conditions that are not ~ub~t~nt/~#y more favorable or
less burdensome than those imposed upon Franchisee. However, this
Sect/on does not require the City to obtain a Franchise unless othe~ise
required by applicable/a~. ~ +~ ~+,, ~ ....... + .... + ~ ~ ~y~tem
It is understood that the City's construct/on of an Institutional Network,
and the provision of se~ices via an Institutional Network does not
constitute constructing a cable system and providing Cable Se~ice as a
cable operator.
City's Determination:
Time Warner's proposal is unacceptable. Despite the fact that there is no requirement for a "level playing
field" under state or federal law, the City has provided that any franchise which the City may grant to a
franchised competing cable television operator will be on terms no more favorable or less burdensome
than those granted to Time Warner. Time Warner has modified this section to include open video system
("OVS") operators which, pursuant to FCC regulations at 47 C.F.R. § 76.1500-1514, are regulated in a
wholly different manner. The City may not, under federal law, be able to impose the same franchise
terms on an OVS operator as are imposed on Time Warner.
Similarly, the City has no authority to franchise a direct broadcast satellite ("DBS") provider such as direct
TV and yet this does not prevent the City from entering into a franchise with Time Warner. Both DBS and
OVS operators may compete directly with Time Warner for subscribers and yet each is regulated in a
different manner. The City can only agree to a level playing field requirement with respect to other
franchised cable television operators over which the City has the same authority.
PaRe _5 Section 2.(f) Grant of Authority; Term Limits and Reservations
Time Warner's Proposal:
(f) Construction of Agreement. The provisions of this agreement shall be ~
construed te,., ..... v,,,v.v*~ the public interest in accordance with applicable law.
City's Determination:
Time Warner's proposal is acceptable.
PaRe _5 Section 2.{~) Grant of Authority; Term Limits and Reservations
Time Warner's Proposal:
(g) Relation to Other Provisions of Law. This agreement and all rights and
privileges granted under the Franchise are subject to, and the Franchisee must exercise all rights
granted to it in accordance with applicable law, including the Cable Ordinance, over the Franchise
term. However, this agreement is a contract, subject only to the City's exercise of its police and
ether, the exercise of which shall not materially_ alter the terms and conditions thereof and
applicable federal and state law. This agreement does not confer rights or immunities upon the
Franchisee other than as expressly provided herein. Subject to the exercise of the city's police
~ powers, in the case of any conflict between the express terms of this Franchise
Agreement and the express terms of the Cable Ordinance, this Franchise Agreement shall
govern. Franchisee does not waive its rights to challenge the lawfulness of a particular
enactment, including on the grounds that a particular action is an unconstitutional impairment of
contractual rights. The Franchise issued and the Franchise fee paid hereunder are not in lieu of
any other lawfully required generally applicable, non-discriminatory permit, authorization, fee,
charge or tax, unless expressly stated herein.
City's Determination:
Time Warner's proposal is acceptable. With respect to Time Warner's final additions to this paragraph,
the City assumes that Time Warner is agreeing that it will not attempt to offset from franchise fee
payments any permit fees, taxes or other expenses which it may incur in doing business within the City.
PaRe _5 Section 2.(h) Grant of Authority; Term Limits and Reservations
Time Warner's Proposal:
(h) Relation to Prior Franchise. As of the effective date of this Franchise, any
Franchise previously held by Franchisee is superseded and of no further force and effect.
prior c .... ~;~ ~ ..... ~;~ ~o; ....... ~ .... ;,~; ........ ~;~oA~ ~,o,,,,~ ~ ~;~;,o,;~ Franchisee
hereby indemnifies and holds City harmless against any claims, damages, or costs arising as a
result of Franchisee's acts and omissions under the prior Franchise.
City's Determination:
Time Warner's proposal is unacceptable. Time Warner has eliminated a sentence that would insure that,
for example, if Time Warner had failed to pay to the City a portion of franchise fees for a prior year, the
City may still pursue collection of those fees pursuant to the applicable state statute of limitations. By
eliminating this sentence, Time Warner presumably desires to avoid any liability for any outstanding
issues, which may exist under its present franchise.
PaRe _6 Section 2.{i) Grant of Authority; Term Limits and Reservations
Time Warner's Proposal:
0') Effect of Acceptance. By accepting the Franchise, Franchisee: (1)
acknowledges and accepts City's legal right to issue and enforce the Franchise; (2) accepts and
agrees to comply with each and every provision of this Agreement and the Cable Ordinance
,,,,~;,~,,+ +,, c,~,,+;,,,~ o/,~ o,, + ..... '~"'~'~+" adopted contemporaneously herewith; and (3) agrees
that the Franchise was granted pursuant to processes and procedures consistent with applicable
law, and that it will not raise any claim to the contrary.
City's Determination:
Time Warner's proposal is unacceptable. It appears Time Warner is willing to agree to the Franchise
Agreement and the Cable Ordinance to the extent they are adopted simultaneously. If, however, the City
were to amend the Cable Ordinance in the years to come, Time Warner is not agreeing to comply with
such amendments. By way of example, the FCC at 47 C.F.R. § 76.309(b) specifically permits a
franchising authority such as the City to enact and enforce consumer protection laws unless specifically
preempted by FCC regulations. To the extent the City chose to amend its Cable Ordinance at some point
in the future to address certain consumer protection laws as permitted by FCC regulations, Time Warner's
revision suggests that Time Warner will not agree to be subject to such requirements.
PaRe _6 Section 2.(I) Grant of Authority; Term Limits and Reservations
Time Warner's Proposal:
(I) No Recourse. -r,, ,~,~ ,~,,,,~,~, .... ~**'~'~ ~,, ~ .... ~,~ p~.,t, icu!~r in accordance with 47
U.S.C. Section g~4A555(a), Franchisee shaft have no monetary recourse whatsoever against
City or its Common Council, City Clerk, officials, boards, commissions, agents or employees f~:
~ ....... , ,,r ~,o~,~ ,~,~; ..... from the re~tulation of cable service or from a decision of
approval or disapproval with respect to a Brant, renewal, transfer or amendment of a franchise,
except if such loss, costs, expenses, or damages are the result of the sele gross negligence of
the City. The rights of City under this provision are in addition to, and shaft not be read to limit,
any immunities City may enjoy under federal or state law.
City's Determination:
Time Warner's proposal is acceptable, however, the Time Warner's correction to the citation should be 47
U.S.C. § 555A and the word "arising" should be inserted before the phrase "from the regulation of cable
service..." The City believes these were simply typographical errors omitted from Time Warner's
proposal.
PaRe _6 Section 3.(a) Effect of Chanqes in Law
Time Warner's Proposal:
(a) Severability. In the event that a court or agency or legislature of competent
jurisdiction acts or declares any ~ provision of this Agreement is unenforceable
according to its terms, or otherwise void, said provision shall be considered a separate, distinct,
and independent part of this Agreement, and such holding shall not affect the validity and
enforceability of all other provisions hereof. In the event that a court or agency or legislature of
competent and controlling jurisdiction acts or declares any material provision of this Agreement is
unenforceable according to its terms, or is otherwise void, the parties agree to immediately enter
into negotiations in good faith to restore the relative burdens and benefits of this Agreement,
consistent with applicable law.
City's Determination:
Time Warner's proposal is acceptable.
PaRe 7 Section 4. Transfers.
Time Warner's Proposal:
4. Transfers.
Ail rights granted under the Franchise are for ~ cable services. ~herefer~, The rights
granted under the Franchise may not be transferred, assigned, sub/et or subdivided in any way or through
any mechanism, without the express prior permission of City by ordinance, except as otherwise provided
under the Cable Ordinance, state or federal/aw. It shall be a violation of this agreement to extend the
benefits of this Franchise to any cable operator or to any cable system that is operating within the City but
which has not obtained a Franchise from the City, and Franchisee agrees that it will not enter into any
transaction that would have such an effect. Notwithstanding anything herein or in the Cable Ordinance to
the contrary, no consent or approval by the City shall be required for a transfer to an entity controlling,
control/ed by or under the same common control as Franchisee.
City's Determination:
Time Warner's proposal is unacceptable. The addition of the final sentence by Time Warner may permit
a transfer without review by the City. Cable operators across the country have used similar provisions to
argue that when the entire company is purchased by another entity, that no transfer approval is required
because the franchisee itself and/or its immediate controlling parent is not being changed. To the extent
Time Warner is simply conducting an internal reorganization, it clearly would present no concerns to the
City and approval would be straightforward and immediate. Therefore, the language suggested by Time
Warner is unnecessary and would only lead to confusion.
PaRe 7 Section 5. (a-d) Franchise Fee.
Time Warner's Proposal:
5. Franchise Fee.
(a) Payment to City. As p~H of the fin~nci~! compensation for use of Public Rights-
of-Way for the offering of Cable Services, Franchisee ~ shall pay City a Franchise
fee in an amount equal to five (5) percent of Gross Revenues as defined in the Cable Ordinance
as of the effective date of this Agreement.
(b) Not in Lieu of Any Other Assessments, Tax or Fee. The Franchise fee is in
addition to all other generally applicable, non-discriminatory fees, assessments, taxes or
payments that Franchisee may be required to pay~,,,"'~"r, wv, any ,v~,~,, ~,~,~,~*~*~ ~,~ ,~,~ !~ the City
subject to any limitations set fo~h in 47 U.S.C. ~ 542.
(c) Payments. Franchise fees shaft be paid qua~erly in accordance with the Cable
Ordinance. In the event that a Franchise fee payment or other sum due is not received by the
City on or before the date due, or is underpaid, Franchisee shaft pay in addition to the payment,
or sum due, interest from the due date at ~n ~nnu~! the rate equ~!,~ *~ ,,,~ *~ .... ,,,~,,,,,,,,,,~ ...... ,~,~* ..... ~,,,,,,,~
,,~ ~/~ ..... ~ ~ ......~noz ~¢ ......~ ~*~ ~ !eg~#y specified in the Requlatory Ordinance.
(d) No Accord or Satisfaction. No acceptance of any payment by City shaft be
construed as a release or an accord and satisfaction of any claim City may have for fuRher or
additional undisputed sums payable as a Franchise fee under the Cable Ordinance or for the
pedormance of any other obligation of Franchisee.
City's Determination:
Time Warner's proposal is acceptable.
PaRe 7 Section 5. (e) Franchise Fee.
Time Warner's Proposal:
(e) Payment on Termination. If the Franchise terminates for any reason,
Franchisee shaft file with the City Clerk within ninety (90) calendar days of the date of the
termination, a financia! gross revenues statement, certified by an ~ certified public
accountant, showing the Gross Revenues received by Franchisee since the end of the previous
payment. City reserves the right to satisfy any remaining financial obligations of Franchisee to
City by utilizing the funds available in any security fund or other security provided by Franchisee
pursuant to the terms of the Agreement and the Cable Ordinance.
City's Determination:
Time Warner's proposal is unacceptable. In the event the franchise is terminated, it is appropriate for an
independent certified public accountant to verify the accuracy of franchise fee payments made by Time
Warner to the City. Time Warner's revision would allow its own controller to issue such verification, which
completely avoids the scrutiny of an independent third party review as intended by this section.
Pa.qe 7 Section 5. (f) Franchise Fee.
Time Warner's Proposal:
(f) Disputes. Within three (3) years of the date of submission of any payment
hereunder, tq:he City shall have the right to audit the Books and Records of Franchisee to
determine whether the Franchisee has paid the Franchise fees owed. If there is a dispute as to
whether a particular item of revenue is within the scope of the term "gross revenues," and
Franchisee withholds revenue records on the ground that the revenues are not subject to the
Franchise fee, Franchisee agrees that it will provide a certified statement describing the nature of
the revenues contained in the records withheld o'~'~ ~,,'~ ........ * ...... ' '"'"*" ;'~"~,,'~;'~'~
City's Determination:
Time Warner's proposal is unacceptable. Wisconsin Statutes at § 893.43 provides for a six (6) year
statute of limitations. Time Warner has attempted to include a three (3) year statute of limitations which is
unacceptable. Further, the City offered to allow Time Warner to withhold revenue records it believed
were not subject to the franchise fee but would require Time Warner to pay the City's costs and expenses
if the City ultimately prevailed in a preceding which found that such revenue records were subject to the
franchise fee review. Time Warner has eliminated the reimbursement requirement, which will only
encourage Time Warner to withhold records thereby making it more difficult for the City to verify the
accuracy of franchise fee payments.
Pa.qe 8 Section 6. Notices
Time Warner's Proposal:
6. Notices.
All notices to Franchisee shall be mailed to:
Time Warner Entertainment Company, L.P.
Green Bay D/vision
1001 West Kennedy Avenue
P. 0. Box 145
Kimberly, WI 54136-0145
until Franchisee changes that address by notifying the City Clerk in writing of the new address. A notice
may be mailed to Franchisee by depositing it in the U.S. Mail, first class postage prepaid, or by providing
the notice to Franchisee by overnight delivery service. Notwithstanding any other provision of the Cable
Ordinance, notice a!so may, in addition, be provided to Franchisee by facsimile at the following number:
(920) 831-9172. Franchisee may change this number by providing written notice of a substitute number
to the City Clerk.
Aft notices to City shaft be mailed to: City Clerk
City of Oshkosh
City's Determination:
Time Wamer's proposal is acceptable.
215 Church Avenue
Oshkosh, WI 54901
Pa.qe 8 Section 7. Insurance and Indemnification Requirements.
Time Warner's Proposal:
li+i~o+i~ o~zo~ F~o i~+o ~ liohili+~z ~F o~z I/i~ /i~h~i~ h~+
li+i~o+i~ o~o~ F~o i~+o ~ liohili+~x ~F o~ I/i~ o~ioi~ F~
o,,+~i+~/ ~ ioo,,~ ~
City's Determination:
Time Warner's proposal is unacceptable. Time Warner has proposed to completely eliminate the
insurance and indemnification requirements from the Franchise Agreement presumably because they are
identified within the Regulatory Ordinance. However, given the concern the City has already articulated
with respect to whether Time Warner will agree to comply with the terms of the Regulatory Ordinance is
particularly important that language regarding insurance and indemnification be included within the
Franchise Agreement and that Time Warner specifically sign and accept these obligations. Since these
provisions mirror the obligation of the Regulatory Ordinance there should be no disagreement.
PaRe 10 Section 8. Security Fund and Bond.
Time Warner's Proposal:
8. Security Fund and Bond.
Franchisee shall provide the security fund requirement in Section 7-33 of the Ordinance and the
performance bond required in Section 7-32 of the Ordinance, if applicable.
City's Determination:
Time Warner's proposal is unacceptable. The City maintains the need for a security fund and
performance bond within the Regulatory Ordinance and the phrase "if applicable" is unnecessary and
misleading.
PaRe 1._~0 Section 9. Relationships of Remedies.
Time Warner's Proposal:
9. Relationship of Remedies.
(a) Remedies are Non-exclusive. The remedies provided for in this agreement and
the Cable Ordinance are cumulative and not exclusive; and, excepting financial penalties, the
exercise of one remedy shall not prevent the exercise of another remedy, or the exercise of any
rights of City at law or equity, provided however, cumulative remedies may net exceed the
~ shall not result in double recovery by the City. By way of example and not
limitation, the collection of fiquidated damages by City shall in no respect affect: (1) Compensation owed to subscribers; or
(2) Franchisee's obligation to comply with the provisions of this agreement or
appficable law.
(b) No Election of Remedies. Without limitation, the withdrawal of amounts from
the security fund, or the recovery of amounts under the insurance, indemnity or liquidated
damages provisions of this agreement shall not be construed as any of the following: an election
of remedies; a limit on the liability of Franchisee under the Franchise for damages or otherwise;
or an excuse of faithful performance by Franchisee, except to the extent the same way may result
in double recovery by City.
City's Determination:
Time Warner's proposal is unacceptable. Time Warner has attempted to modify this provision to suggest
that financial penalties may be an exclusive remedy if exercised by the City. The City agrees that
cumulative remedies shall not result in double recovery by the City, but cannot agree that a financial
penalty alone would be an exclusive remedy. Time Warner's remaining proposals to this section are
acceptable.
PaRe 1._~0 Section 10.
Time Warner's Proposal:
10. Non-discrimination.
Non-discrimination.
(a)
(1)
No Discrimination in the Provision of Service.
Franchisee shall comply with all cenerally applicable local, and state and federal
laws and regulations prohibiting discrimination, and any and all other federal and
state laws and regulations prohibiting discrimination in the provision of cable
service or employment. Franchisee shall maintain records and information
necessary to document Franchisee's compliance with these provisions.
Franchisee is specifically prohibited from discriminating among persons or taking
any retaliatory action against a person because of that person's exercise of any
right the person may have under federal, state, or generally applicable local law,
nor may Franchisee require a person to waive such rights as a condition of taking
service.
City's Determination:
Time Warner's proposal is acceptable.
Pa.qe 11 Section 11.(a) Rates.
Time Warner's Proposal:
11. Rates.
(a) Rates and Charges Regulated. City may regulate Franchisee's rates and
charges consistent with applicable federal and state law. The term "regulate" means City may
take any step consistent with applicable federal and state law in order to protect the pubSc
City's Determination:
Time Warner's proposal is acceptable. The City notes with interest, however, that Time Warner has
eliminated language that would prevent it from accessing a "discriminatory" rate on subscribers.
Throughout both the Franchise Agreement and Regulatory Ordinance, Time Warner has emphasized the
importance of being subject only to nondiscriminatory and generally applicable laws and regulations. It
now desires to retain the flexibility to impose discriminatory rates against its own subscribers.
Pa.qe 1.~1 Section 12. Subscriber Service.
Time Warner's Proposal:
12. Subscriber Service.
(a) Franchisee agrees that it will provide the following broad categories of cable
services responsive *~ *~ .... ~o o~ ~* .... *o ~ *~ ........ ~*,, throughout the Franchise term:
Business
Children's
Cultural
Educational
Family
News
Sports
Weather
(b) Franchisee will extend service to Subscribers and potential Subscribers and to
the City in accordance with the requirements of the Cable Ordinance. ~ .... ;'~"'~ ~ .........
(c) Franchisee shall satisfy federal, and state and !oc~! customer service standards
and consumer protection laws, and local customer service standards, as amended during the
Franchise term, in accordance with 7-20 (13) of the Requlatory Ordinance.
City's Determination:
Time Warner's proposal is acceptable. The City notes with interest, however, that Time Warner has not
included any music programming services, nor has it emphasized any state, local or regional news and
information services among the broad categories that it may provide.
Pa.qe 11 Section 13. System Specifications and I-Net.
Time Warner's Proposal:
13. System Specifications and I-Net.
(a) System Specifications.
(1) General system design. Franchisee has constructed a system providing 750
MHz of capacity. ~ The system will have the capability to deliver at
least 7978 channels of video programming services to Subscribers.
(b) Interconnection.
Ir~ o~l~l;~;,~r~ ~,~ ~1~,~ F,~,~,~,~;r~,~ oll ;r~,~,~r~r~,~;,~r~o ,~w;o~;r~,~ ob ,~F h~r~,~ 4 ~l~J~J~ ~;11
At the request of the City, Franchisee shall enter into neqotiations with adjacent cable
systems reqarding interconnectinq PEG channels. Aft decisions reqarding whether to
interconnect and the terms and conditions of any_ such interconnect and the terms and conditions
of any such interconnect shaft be a matter of aqreement between the cable operators involved.
(c) Institutional Network.
2.
3.
4.
5.
7.
~;~ ~oll
~ ~o;~ ~ro~ ~F ~ IA/;~o~ ~,,~/ ~,,~,,o~
The m~in office of the Board of Education.
Grantee's he~d end.
Franchisee will continue to operate, maintain and repair its discrete coaxial institutional
network to be utilized by the City (the "l-Net") Twelve (12) channels on the I-Net will be available
for use by the authorized institutions. The I-Net may only be used for non-commercial municipal
and educational purposes.
Ongoing usage of the I-Net as hereinbefore described will be free of charqe to afl users.
Franchisee will be responsible for maintaininq, troubleshooting and repairing the I-Net to the point
of demarcation, which is generally defined as the entry point of the coaxial network into each
facility. Afl repairs to the I-Net will be scheduled in accordance with Franchisee's standard
service procedures. Franchisee will be responsible for afl necessary inspections and
performance tests of the I-Net. The Users will be responsible for maintenance and repairs of
modulatinq equipment and afl other interface equipment such as computer and video production
equipment used in conjunction with the I-Net connection.
The current locations on the I-Net are identified in Exhibit B. Franchisee will provide new
connections to the I-Net or relocations of the existinq I-Net connections at Cost.
City's Determination:
Time Warner's proposal is acceptable. The City understands that Time Warner's revision to
subparagraph (b) will permit the City to provide direct feeds to other competing cable television operators
which may enter the market. The City, however, remains uncertain what Time Warner means in
subparagraph (c) when it says that it will provide new connections to the I-Net or relocations of the
existing I-Net connections at "Cost." Does this mean that these costs will be passed through to
subscribers over the entire term of the franchise (i.e. ten (10) years)? Will the user sites be forced to
reimburse Time Warner's costs up front? Will there be some shorter period of time over which Time
Warner recoups the cost from subscribers? Within Time Warner's introduction to its formal proposal,
Time Warner specifies that the term "Cost" is defined in accordance with FCC rules. Time Warner goes
on to site to 47 C.F.R. § 76.925 and 76.985. However, numerous questions must still be answered
including what type of profit margin Time Warner will include in its "costs."
Pa.qe 13 Section 15.(a)(1)(A-D) Channels, Facilities, Equipment and Service for Public,
Educational and Governmental Use.
Time Warner's Proposal:
15. Channels, Facilities, Equipment and Services for Public, Educational and Governmental
Use.
(a) General; Definitions.
(1) This Section and Section 16 set out obligations of the Franchisee with respect to
public, educational and government use of its Cable System. For purposes of this Section 15:
(A) The term "Channel" refers to the ~n~!og channel capacity set aside for
public, educational and government (PEG) use delivered to each
subscriber. Each Channel must be capable of transmitting a standard
°"°~"'~ video signal
unFe~on~b~e techn~c~ ~nte~eFence w~th other ch~nne~. Such uses
must be in fu~herance of PEG uses.
(B) The term "Access Center" refers to a facility or facifities listed i~ Exhibit
A ~here public, educational or governmental access signals are
managed and delivered to the Franchisee for downstream transmission
to Subscribers, oF ~ other Acce~
(c)
The term "Access Manager" refers to the entity or entities designated
by the City to manage or co-manage pubfic, educational or government
access channels. The City can be an Access Manager.
The term "Origination Point" refers to a location listed in Exhibit A,
other than an Access Center, where pubfic, educational and/o~r
government access programming is capable of beinq defivered from one
Origination Point to another or the Access Center ~
City's Determination:
Time Warner's proposal is acceptable.
Pa.qe14 Section 15.(a)(1)(E) Channels, Facilities, Equipment and Service for Public,
Educational and Governmental Use.
Time Warner's Proposal:
15. Channels, Facilities, Equipment and Services for Public, Educational and Governmental
Use.
(a) General; Definitions.
(1) This Section and Section 10 set out obligations of the Franchisee with respect to
public, educational and government use of its Cable System. For purposes of this Section 15:
(E) The term "PEG" refers non-commercial, not-for-profit to "public,
educational and governmental" programming.
City's Determination:
Time Warner's proposal is acceptable. However, the City understands that this will in no way limit the
ability of the City to give credit to sponsorships and underwriters of various local PEG access
programming. The City is not aware of any specific state or federal statute that limits PEG to
"noncommercial, not for profit" programming but is comfortable proceeding with this restriction given the
above exception. This scenario is similar to PBS broadcast stations which provide acknowledgments of
individuals and entities that support programming on the channel.
Pa.qel.~4 Section 15.(c)(1) Channels, Facilities, Equipment and Service for Public,
Educational and Governmental Use.
Time Warner's Proposal:
(c) Responsibilities of the Parties with Respect to the PEG Portion of the Cable
System.
(1) Generally; Access Managers. In addition to managing the Channels, the Access
Managers are responsible for:
(A) delivering signals to the Franchisee at Origination Points and at the
Access Center to the input of the devices that process the signals
(modulating or encoding them) (referred to as the "Upstream Delivery
Points") so that they can be carried on PEG Channel(s) of the Cable
System; and receiving signals from the Franchisee at the Access Center
(B) controlling the routing of signals to the appropriate PEG channels;
(C) providing and maintaining the studios and equipment used to produce
PEG programming.
City's Determination:
Time Wamer's proposal is acceptable.
Pa,qe 1._~5
Section 15.¢c)¢2)¢A) Channels, Facilities, Equipment and Service for Public,
Educational and Governmental Use.
Time Warner's Proposal:
(c) Responsibilities of the Parties with Respect to the PEG Portion of the Cable
System.
(2) Generally, Franchisee. In addition to its other PEG obligations, the Franchisee
is responsible for:
(A) * ..... ~**~'~'~ distributinq signals ~r~
Upstream~,,,~,~ ...... between Origination Points ,~ *~ ~,,,,~,,~,,, ~ ...... * .... DeSvery
Points to Subscribers without material degradation and maintaining afl
the cable distribution system lines,
~ required to do so. In accordance with applicable FCC
standards, the Franchisee will transmit the primary video and
accompanying audio potion of the signal in its entirety
~¢ ,~ .... ~' ~'~-',~-~ ~-* .... ' so that the PEG Access Managers can
take full advantage of the channels rese~ed for PEG use. The City shall
be responsible for the purchase and maintenance of all end user
equipment necessary to transmit siqnals, includinq but not limited to,
modulators and demodulators.
City's Determination:
Time Warner's proposal is unacceptable. Time Warner has modified this requirement to impose a burden
on the City to purchase and maintain all end user equipment including modulators and demodulators.
The City's needs assessment did not take into consideration any additional costs for transmitting the
signal from the origination points back to Time Warner's headend. Historically, Time Warner has
absorbed these costs and expenses. Moreover in Section 15(c)(6), Time Warner appears to have agreed
to provide modulators and demodulators.
Pa,qe 1._~5
Section 15.¢c)¢2)¢B) Channels, Facilities, Equipment and Service for Public,
Educational and Governmental Use.
Time Warner's Proposal:
(c) Responsibilities of the Parties with Respect to the PEG Portion of the Cable
System.
(2) Generally, Franchisee. In addition to its other PEG obligations, the Franchisee
is responsible for:
(B) Except as otherwise provided in applicable law, none of the funds that
Franchisee is providing under Section 15(0 may be offset against the
cost associated with meeting its responsibilities under Sections 15(a)-(e)
or Section 16.
City's Determination:
Time Warner's proposal is acceptable.
Pa.qe15 Section 15.¢c)¢3) Channels, Facilities, Equipment and Service for Public,
Educational and Governmental Use.
Time Warner's Proposal:
(c) Responsibilities of the Parties with Respect to the PEG Portion of the Cable
System.
(3) Connections to and from Access Centers and Origination Points. In
addition, Franchisee is responsible for the following:
(A) The connections from the Origination Points must be provided and
maintained so that, each Origination Point may at least transmit a single
~,-rc,.- ¢,," '~"*~"'~ video channel /~oo~o~ ,,~ or the digital
equivalent to the ~ to one designated Access Center,
without the aid or assistance of the Franchisee. Provided, however, that
Franchisee need not suppo~ more than ~ one upstream
transmissions from each Origination Point&
The connections to and from each of the Access Centers must be
maintained, and as appropriate, replaced so that at least the foflowing
connections to existin9 locations must be linked to the Access Center:
City of Oshkosh Common Counc# Ch~mbersCity Haft
Winnebago County Board ~ Chambers
Oshkosh Area School District Board Room
Oshkosh No~h High School Gymnasium
Oshkosh West High School Gymnasium
Oshkosh Titan Stadium
Albe~a Kimbafl Auditorium (in ~" ~ ..... *"~' .... ~
Oshkosh Pubfic Library (in ~ ...... * ~*;~ rooms)
(c)
Franchisee shall also provide new drop sites to any of the above
locations that hereafter relocates its meeting rooms, or to additional
locations at Cost.
The connections must support video transmissions in accordance with
FCC s,~ecmca~ions~, ,, , ° ,.,or;,~,,,~_v.~ ,,~ ~ .... *o o,,
TDe Access Genter may ose tDe ~nate~ ~sdwidt~ cDannel available
opstroom on tDo connoctions ~or control si~nols,
City's Determination:
Time Warner's proposal is acceptable. The City reiterates its concerns regarding Time Warner's last
addition to this section which refers to the provision of new drop sites at "Cost." Please see City's
determination regarding Section 13(c) above. The balance of Time Warner's proposal with respect to
15(c)(3)(C) and (D) are acceptable.
Pa.qel.~6 Section 15.(c)(4) Channels, Facilities, Equipment and Service for Public,
Educational and Governmental Use.
Time Warner's Proposal:
System.
(4)
Responsibilities of the Parties with Respect to the PEG Portion of the Cable
Either as part of these connections referred to in Section (4), or separately,
Franchisee must provide free of charge afl basic and cable programming service
tiers on the Cable System to one outlet at the current location of the Access
Centers * .... ~,,, ,~,~,~,, ,~,, a ..... ~.,,,,,,,r ,~,,,.~,~,,o,,,,~ ~,,, ,~ a ..... Center,
along with the devices required to use those basic se~ices and cable
programming semite tiers. ~ ~ ..... ~,,~ ; ........ ;~ ¢~ ,~ ;~, .... ~
City's Determination:
Time Warner's proposal is acceptable.
Pa.qe16 Section 15.¢c)¢5) Channels, Facilities, Equipment and Service for Public,
Educational and Governmental Use.
Time Warner's Proposal:
(c) Responsibilities of the Parties with Respect to the PEG Portion of the Cable
System.
(5) Franchisee m~y be is required to deliver the PEG channels to Subscribers in
accordance with afl federal rules and requlations
City's Determination:
Time Warner's proposal is unacceptable. Time Warner's has eliminated substantially all of this section
which has intended to insure that subscribers would receive the PEG channels without "special expense."
Pa.qe17 Section 15.¢c)¢6) Channels, Facilities, Equipment and Service for Public,
Educational and Governmental Use.
Time Warner's Proposal:
(c) Responsibilities of the Parties with Respect to the PEG Portion of the Cable
System.
Franchisee will provide three (3) sets of modulators and demodulators of
acceptable technical standards to ~ enable carriage of cable signals
between the foflowing sites as designated by the City:
OCA T Facility to ~o~ =~ /~'~"~"~ hub
· '~ ~''~ ~' '"''~''.7/
OCA T Remote switcher to OCA T Facility
Oshkosh Area School District to UWO
UWO Facility to ~o~
UWO Remotes to UWO Facility
City's Determination:
Time Warner's proposal is acceptable. The City notes that this provision conflicts with Time Warner's
proposed revision with respect to Section 15(c)(2)(A) above.
Pa.qe17 Section 15.¢c)¢7) Channels, Facilities, Equipment and Service for Public,
Educational and Governmental Use.
Time Warner's Proposal:
(c) Responsibilities of the Parties with Respect to the PEG Portion of the Cable
System.
(7) If Franchisee modifies its Cable System in a manner that has the effect of
requiring modifications to PEG facilities and equipment, in order to deliver PEG
signals, Franchisee will bear any cost to convert the signals so they are usable
on the system if required by federal or state law.
City's Determination:
Time Warner's proposal is unacceptable. If Time Warner's unilaterally modifies its cable system so as to
require the City to expend significant sums to be able to continue to deliver its PEG access signals, Time
Warner should be responsible for costs incurred by the City. This responsibility should exist whether
required by state or federal law since Time Warner alone is in control of how it designs and operates the
cable system.
Pa.qe17 Section 15.¢c)¢8) Channels, Facilities, Equipment and Service for Public,
Educational and Governmental Use.
Time Warner's Proposal:
(c) Responsibilities of the Parties with Respect to the PEG Portion of the Cable
System.
(8) Franchisee, upon request of an Access Manager, will provide technical
assistance or diagnostic services up to the demarcation point as soo,-, ps
.... ;~,~ ~r,,,~ ,~,~ ,;,~,~ ,,~ receiving ........ * in accordance with its standard
se~ice procedures to determine whether or not the problem with the PEG
signals or Institutional Network is the result of ma~ers for which the Franchisee is
responsible, and if so, Franchisee will take prompt corrective actions ~s soon ~s
.... ~ after determining the problem.
City's Determination:
Time Warner's proposal is acceptable.
Pa.qe17 Section 15.(d)(1) Channels, Facilities, Equipment and Service for Public,
Educational and Governmental Use.
Time Warner's Proposal:
(d) Channels To Each Subscriber.
(1) Number.
Franchisee shall initially provide a minimum of 3 channels for PEG use~_ te~,~ac, h
,S~bsegber two of which shall be located on the Basic tier.
City's Determination:
Time Warner's proposal is acceptable. The City, however, understands that federal law requires that all
PEG access channels must be carried on the basic service tier. See 47 C.F.R. § 76.901(a) and 47
U.S.C. § 522(3).
Pa.qe17 Section 15.¢d)¢2) Channels, Facilities, Equipment and Service for Public,
Educational and Governmental Use.
Time Warner's Proposal:
(d) Channels To Each Subscriber.
(2) Increases in Channels. Franchisee will provide up to one (1)...v ~ .... ~//°~ additional
Channels (in addition to the three (3) that it is required to be provided
immediately and at all times) in accordance with the following criteda.
.~. ~.v~.~... ,,,~,,~ .,,~ ,~,,,,,,,~ .,,,,~ ~, ~,,~ ~,~,~,,, ~,,,~ .~
;~1,,~o o~ ~o~;ol ~o~;~ ~ ~ o~oo ~o~1o ~ F~ "~,,11~;~
o;~,,l~o~,,oh/ ~ oll o~o~ o,,~o~;~o ~ ~ "~,,ol;F;~
o~,o;Io~1~ ~ oll ~,;~o ~F ~ ~o~1 ~1~ ~ ~o~ ~
Whenever the PEG channels are in use for oriqinal locally produced
pro~trammin~t only, and excludinq, without limitation, character-qenerated
pro~trammin~t and repeats, durin~t 75% of the time available on weekdays
(Monday-Friday) between the hours of 7 a.m. and midniqht, for six (6)
consecutive months, and there is demand for use of an additional channel,
franchisee shall then have six months, after receipt of request from the city, in
which to provide the new specially desi~tned access channel, provided that
compliance with the provision for such additional channel shall be sub/ect to
a~treements with respect to channel use then in effect. Such requirement(s) may
be met by makin~t, on a part-time basis, one or more under-utilized channels.
City's Determination:
Time Warner's proposal is unacceptable. Time Warner has reduced the number of additional channels
which may be made available for PEG purposes from two (2) to one (1) and has included criteria which
would be virtually impossible for any PEG access center in the country to meet. Even major network
affiliates would be unable to meet the aggressive criteria inserted by Time Warner within this provision.
Pa.qe18 Section 15.(d)(4) Channels, Facilities, Equipment and Service for Public,
Educational and Governmental Use.
Time Warner's Proposal:
Channels To Each Subscriber.
(4) Location of PEG Channels. The Franchisee will provide any two PEG
Channels on the basic tier throughout the fife of the Franchise, or if4here4s~
~ ~¢ ~°~ ";~ .......... ; ...... ; .... ~ as otherwise provided in
accordance with federal and state law. If channels are selected through a menu
system, the PEG channels shaft be displayed in the same manner as other
channels if reasonably possible. Franchisee shall at--all-times endeavor to
maintain Channel 10 for City use, however, the City recognizes that aft channel
designations are within Franchisee's discretion as permitted by Applicable Law.
City's Determination:
Time Warner's proposal is unacceptable. Within this section, Time Warner commits to provide only two
PEG channels on the basic tier with no mention of the third channel it committed to in Section 15(d)(1).
Moreover, one of the key issues identified by the City within its need assessment was to maintain the
existing PEG channel on Channel 10 unless Time Warner was forced to relocate that channel due to
requirements of state or federal law. The fact that the City has maintained its programming on Channel
10 for the past ten (10) years and has developed significant channel loyalty all weigh in favor of
maintaining this channel on Channel 10.
Pa.qe18 Section 15.(e)(1-2) Channels, Facilities, Equipment and Service for Public,
Educational and Governmental Use.
Time Warner's Proposal:
(e) Encouraging Access Use. t~, oo,;o~,,;~,,~ ;,o ,,~,t;,~o~; ...... ~,,r ~.~o~,,~ 7, Franchisee
agrees that it will do at least the following at no charge:
(1) Publicize O~annels. If reasonabN possiOle, Franchisee will identff~ tDe PEG
(2) Provide Notice of and Publicize Channel Changes. The placement of access
Ghannols will not bo chan~od without ~ 3~ days prior nofico to tDo Git~ and
Access Managers. Franchisee will provide the Cit~ with up to 100 cross channel
spots to pubficize tDe chanqed location of any access channel and one bill
message notification be~r ~!! costs c~used by the Ch~nne! change. !t ~!so
City's Determination:
Time Warner's proposal is unacceptable. Time Warner has modified subparagraph (1) of this section so
that it is no longer is required to include the PEG channels in its channel lineup. In subparagraph (2),
Time Warner has modified this section to provide only thirty (30) days notice of a channel change and a
minimal number of cross channel spots which Time Warner would charge the City to include. This
completely ignores the fact that the City would incur significant expense in any PEG channel relocation
for items such as new letterhead, signage and loss of viewer or loyalty. Furthermore, the City has
incurred considerable time and expense to produce promotional video including advertising inserts and
related programming which it would then be required to completely reproduce. All of these promotional
spots and advertising inserts use the Channel 10 designation and would all be rendered useless with a
channel change. Time Warner proposes to provide no time or opportunity for the City adapt to a channel
change and Time Warner would be able to change channel locations at any time, as many times as it
desires for any reason or no reason.
Pa.qe19 Section 15.¢e)¢3) Channels, Facilities, Equipment and Service for Public,
Educational and Governmental Use.
Time Warner's Proposal:
(e) Encouraging Access Use. ~,, oo,;o~,,;,,,~ ;,o ,,~,~;,~o,; ...... ,~,,r ~,~o~,,,~ 7, Franchisee
agrees that it will do at least the following at no charge:
(3) Public use connections. The Franchisee shaft provide, without charge, one (1)
outlet to ~ cenvenien!!y ~ccessib!e pein*, in each state accredited: (1) pubfic, (2)
private and (3) parochial school, o~ ~o~ nenprefi*, ..... ~*~ ~' ..... ~
eFA/er-sity and each fire station, pofice station, pubfic library branch,~,..,'"¢",,
~'~~ ....... ~* ..... *~ and such other municipally owned facilities ~sed
~ ...... ~o~ ......... as may be designated by the city and that are accessible
,~, ,,,~, ,,~,1~,~, i~,~,1~,~
from Franchisee's cable system by an aerial drop not to exceed 125. Franchisee
must provide free of charge aft PEG, basic and standard/equivalent tier (currently
known as basic and expanded basic) services on the Cable System (premium
and pay-per view services, however aggregated, are not cable programming
service (CPS) tier services nor are a la carte or other optional levels of service
beyond that which is currently known as the basic and CPS tiers or their future
equivalents) to the current public use locations,~,~,,~ °~ ...... ..,.,,~*~ .,,~*~" ~.,~'~",,~'"'o required
* .....*~'"o", ~ ~'oo; ..... ; .....'~ oo*"";*" *; ...... ;""o If more than one (1)
outlet is required at any of said locations, the facility's administrator may seek
bids from qualified persons to perform such multiple work. Any multiple outlet
extensions will be designed and built to the Franchisee's specifications.
Franchisee will not charge for service to these additional outlets other than any
applicable internal wiring costs, but Franchisee may charge for any ~ddi*,ien~!
devices needed to receive the programs e,-, the ~dditien~! cut!ets beyond the
section shaft not be read to require Franchisee to provide a new free outlet to
locations to which it is already providing a free outlet. Notwithstanding the
foregoing, if it is necessary to extend the Franchisee's feeder and drop lines
more than.,,,~hr"" ,,.,,~,~h,,"'~"'~ ~//~nm one hundred twenty-five (125) feet from the end
of Grantee's existing, active cable system solely to provide new service to any of
the above-referred-to facilities, the facility shaft have the option either of paying
the Franchisee's direct costs (time and material) for such extension in excess of
,~ ~,,,~ /~m one hundred twenty-five (125) feet or of releasing the
Franchisee from the obligation to provide service to that facility.
City's Determination:
Time Warner's proposal is unacceptable. While Time Warner has agreed to provide connections to
schools and public facilities within the City, it has limited this requirement to those "accessible" from
Franchisee's cable system by an "aerial drop" not to exceed one hundred twenty-five (125) feet. In many
situations, this condition will completely eliminate this requirement for Time Warner as many schools are
surrounded by athletic fields or public grounds that will exceed the one hundred twenty-five (125) foot
Time Warner imposed limitation. In addition, the requirement that such drops be "aerial" as opposed to
underground, will likely also reduce the number of institutions that are able to take advantage of this
requirement.
Interestingly, within Time Warner's social contract with the FCC, under the heading "service to schools"
Time Warner agreed with the FCC to "provide a cable connection free of charge to all pubic schools in its
franchise areas that are passed by Time Warner systems." Time Warner also agreed within its social
contract to coordinate with local franchising authorities and contractors to wire each of the classrooms in
new or rehabilitated public schools free of charge. The City is uncertain how the proposed modifications
by Time Warner to this section will affect its social contract obligations and what the impact may be to
affected its institutions. In addition, to the extent Time Warner's system design requires, either now or in
the future, a converter box to receive basic or expanded basic tiers, Time Warner has omitted the
requirement to provide such equipment.
Pa.qe20 Section 15.¢f)¢1) Channels, Facilities, Equipment and Service for Public,
Educational and Governmental Use.
Time Warner's Proposal:
(f) Financial Support.
(1)...~.~...~-"""r~. c .... ~; ...... m ........... ,~,~r~,, ~o,.;,. ,,, ,~,~ ~';,,, ,.;,., ..... ,,./¢n ~m
.................. ~ ....... ~ .............._stem. Conditioned upon
the City continuinq to provide fundinq of at least forty percent (40%) of its
franchise fees on an annual basis to support P£G access operations.
Franchisee a~trees to pay on a quarterly basis to the City the followin~t:
(A) Years I throu~th 5, 25 cents per directly billed customer per
month
Years 6 throuqh 10, 28 cents per directly billed customer per
month
Years 11 throuqh 15, 33 cents per directly billed customer per
month
Collection shall commence within sixty (O0) days of execution of
this A~treement and payments shall be made to the City on a
quarterly basis within forty-five (45) days of the close of each
quarter.
OR
A one time capital ~trant in the amount of $685,000 payable
within thirty (30) days of execution of this Aqreement.
Upon request, the City shall provide Franchisee with documentation to evidence its
annual fundinq commitment as outlined above. In the event such documentation fails to
demonstrate to Franchisee's reasonable satisfaction that such level of fundinq has been
maintained, Franchisee shall be entitled to adjust payments on a proportionate basis, or
in the event City elects option (B) above, Franchisee shall be entitled to an equitable
deduction on future franchise fee payments to the City.
City's Determination:
Time Warner's proposal is unacceptable. Time Warner has completely modified this provision by first
imposing a condition that the City expend a minimum of forty percent (40%) of its franchise fees annually
to support PEG access operations. Nothing in state or federal law requires the City to expend any of its
franchise fee revenue on PEG access nor does its permit a cable operator to condition PEG access
support based on an expenditure of franchise fees by the City. See 47 U.S.C. § 531. The City believes
this condition also violates Wisconsin state law by binding future city councils to financial commitments
without recourse.
Time Warner has also presented to two different options which it purports will satisfy the City's PEG
access needs assessment. The City's needs assessment identified a need for $1.2 Million over a ten (10)
year franchise. Time Warner has first taken the franchise term and extended it by fifty percent (50%) to
fifteen (15) years. This has the result of significantly reducing the level of support necessary to meet the
needs identified within the needs assessment. Time Warner has then calculated per subscriber pass-
through amounts to generate support for PEG access. Over a ten (10) year term, the funding level must
be a minimum of fifty-three cents (53¢) per subscriber, per month and then should be adjusted
accordingly for inflation pursuant to a consumer price index or similar standard.
Time Warner's second option is for a lump sum payment of $685,000 that Time Warner suggests
represents the "present day value of $1.2 million over a fifteen (15) year term of the franchise." There are
several incorrect assumptions in Time Warner's calculations: 1) the franchise term is ten (10) years not
fifteen (15) years; and 2) the $1.2 million represents estimates made in the Year 2000 for equipment to be
purchased and used over the next ten years. To assume that one can take the $1.2 million as if it were
representative of a financial need in the Year 2010 then reduce it to a present day value is completely
inaccurate.
Finally, Time Warner suggests that if the City were not to expend forty percent (40%) of its annual
franchise fees on PEG access, Time Warner's obligations would be reduced proportionately and the City
would be required to provide documentation evidencing this fact. As discussed above, Time Warner's
attempt to unilaterally impose a commitment on the City to expend its franchise fees on PEG access is
wholly unsupported by the law and completely contradicts the City's needs assessment. While the City
has historically committed a substantial portion of its general revenue fund to finance PEG access
activities, including the funding of several full time positions, the conditions imposed by Time Warner go
far beyond the City's needs assessment and are unsupported by any state or federal law or regulation.
Pa.qe20 Section 15.¢f)¢2) Channels, Facilities, Equipment and Service for Public,
Educational and Governmental Use.
Time Warner's Proposal:
(f) Financial Support.
~oo~ ,,~ ~ ~,~r~ ~,,~lio~ i~FIo~i~ i~v ~o~ ~o~ ~l~o~h/
o~vi~o+~o +~ ~o,,~ P~i~ I~v
City's Determination:
Time Warner's proposal is unacceptable. Time Warner has eliminated any reference to a consumer price
index to reflect inflation in PEG support.
Paqe 21
Section 15.{Cl) Channels, Facilities, Equipment and Service for Public, Educational
and Governmental Use.
Time Warner's Proposal:
(g) PEG Available Free Of Charge; PEG Support Not A Franchise Fee.
The parties agree that any cost to the Franchisee associated with providing any
support for PEG use required under this Franchise Agreement and payments
made outside this Agreement, if any, shall be cateqorized, itemized, and passed
through to subscribers in accordance with federal law o,,~ not po,~ of the
City's Determination:
Time Warner's proposal is unacceptable. The purpose of this section is to clarify that PEG access
support fees are not to be considered a franchise fee and are not to be offset from franchise fee
payments. This is consistent with 47 U.S.C. § 542(g)(2)(C). Time Warner has redrafted this section to
mandate that any PEG access support fees "must" be itemized and passed through to subscribers in
accordance with federal law. Not only does this change the scope of this section but also it is
inconsistent with federal law that "permits" such pass through but does not "mandate" such pass through.
See 47 C.F.R. § 76.925 and § 76.985 as well as 47 U.S.C. § 542(c)(2).
The City recognizes and respects Time Warner's ability to pass through costs associated with franchise
imposed obligations including those associated with PEG access. However, nothing suggests that such
pass-through must be mandatory. For example, if Time Warner ever sold the cable system to another
cable operator which desired not to specify as a separate line item on subscriber bills amounts to be
passed through in support of PEG access, this provision would prohibit such flexibility and would be
contrary to federal law cited above.
Pa.qe 21 Section 16.(a-b) Construction, Operation and Repair.
Time Warner's Proposal:
16. Construction, Operation and Repair.
As provided in subsections 2(b), (f), and (g), the construction, operation and repair of the
Cable System must be performed in compliance with this agreement and all applicable laws,
rules and permit requirements regarding use of the rights-of-way and public and private property,
as adopted and amended from time to time, including, but not limited to, Section 7-13 of the
Cable Ordinance, which establishes minimum requirements for right-of-way occupancy.
Franchisee's obligations and City's rights under this agreement include, but are not limited to, the
following, all of which must be performed at no expense to the City, except where
provided otherwise under applicable federal or state law:
(a) Use of Public and Private Property; Generally.
(1) The Cable System shall be constructed, operated and repaired so as to
cause minimum interference with the rights and reasonable convenience
of property owners (including the City) and users of the right-of-way and
other public property. Applications for work permits shall not be
inconsistent with other ~ users of the right-of-way and shall be
presented to City Engineer, who may, consistent with generally
applicable permitting requirements, require copies of plans, blueprints,
cross-sections, or further detailing of work to be done. Any work done,
whether by Franchisee, its contractors, or third parties, will include~_
consistent with generally applicable permitting requirements, necessary
paving, patching, grading, and any other necessary repair or restoration
to City rights-of-way. All work shall be done to the satisfaction of City
Engineer in accordance with standards applicable to all Persons utilizinq
the City's rights of way.
(2) All equipment, lines, and appurtenances which are used in the operation,
maintenance, repair or construction of Franchisee's system and which
are located within City's rights-of-way shall be considered to be part of
Franchisee's system and shall be Franchisee's responsibility. All permits
for the operation, maintenance, repair or construction of said system
shaft be applied for and given in the name of Franchisee, who shaft be
responsible for aft work done under the permit regardless of whether the
work is done by Franchisee, its employees or contractors, or by third
parties. To the extent that permit conditions are more stringent than the
provisions of this Franchise, the permit conditions shaft govern, provided
the same standards are applicable to aft Persons utilizinq the City's ri~thts
of way.
Franchisee shaft obtain aft required ~tenerafty appficable permits or
easements before commencing any construction, reconstruction, repair,
maintenance, or other work or property use. Permits for emergency
work shaft be obtained as soon as possible, but in no event later than
one working day after the work is begun.
Aft work authorized and required hereunder shaft be done in a safe,
thorough and workmanlike manner and work in the rights-of-way or on
public property may be subject to the supervision, inspection, approval
and direction of City Engineer. At the time of construction, maintenance
or operation, Franchisee must comply with aft ~tenerafty applicable safety
requirements, rules, and practices and employ aft necessary devices as
required by applicable law and permits during construction, operation
and repair of its Cable System. By way of illustration and not limitation,
Franchisee must comply with the then current edition of City Road
Standards, National Electric Code published by the National Fire
Protection Association (currently ANSI/NFPA 70-1990, and replaced by
subsequently adopted additions); National Electric Safety Code
published by the Institute of Electrical and Electronics Engineers, Inc.
(currently ANSI C2-1990 and replaced by subsequently adopted
additions); and Occupational Safety and Health Administration (OSHA)
Safety and Health Standards, and Wisconsin Revised Statutes. In
addition, aft work shaft be performed in accordance with the National
Cable Television Association Standards of Good Engineering Practices
and Franchisee's Construction Procedures Manual, except as to the
extent the practices described therein are inconsistent with applicable
federal and state law. Aft traffic control shaft be done in compliance with
the current edition of the Manual on Uniform Traffic Control Devices, Part
VI.
Franchisee shaft pay ~tenerafty applicable, non-discriminatory fees
associated with the permitting process, which fees shaft be charged and
billed in accordance with the City's standard permitting procedures.
Use of Poles and Conduits.
(1) Except as the City may direct otherwise in accordance with the Cable
Ordinance or generally applicable provisions of the City Code, where
electrical and telephone utility wiring is instal/ed underground at the time
of initial Cable System construction, or when such wiring is subsequently
p/aced underground, all Cable System lines or wiring and equipment
shall also be p/aced underground Related Cable System equipment
such as pedestals must be p/aced in accordance with code requirements
and underground utility rules as interpreted by the City Engineer. In
areas where both electric and or telephone utility wiring is aerial,
Franchisee may instal/aerial cab/e, except (i) when a property owner or
resident requests underground installation and agrees to bear the
additional cost in excess of aerial installation; and (ii) at such time as all
existing aerial facilities are p/aced underground, Franchisee shall
likewise p/ace its facilities underground at its sole expense. If the City
reimburses any person for such relocation, Franchisee shall be similarly
reimbursed.
(2) Franchisee shall utilize existing po/es wherever possible, and shall not
instal/ and new, different, or additional po/es, except with the express
permission or at the direction of the City Engineer.
(3) The Franchise does not grant, give or convey to Franchisee the right or
privilege to instal/its facilities in any manner on specific utility po/es or
equipment of City or any other person without their permission. City
Engineer may request and shall be provided, consistent with applicable
laws, necessary information regarding pole and/or conduit occupation.
City's Determination:
Time Warner's proposal is acceptable.
Pa.qe 21 Section 16.(c) Construction, Operation and Repair.
Time Warner's Proposal:
16. Construction, Operation and Repair.
As provided in subsections 2(b), (f), and (g), the construction, operation and repair of the Cable
System must be performed in compliance with this agreement and all applicable laws, rules and permit
requirements regarding use of the rights-of-way and public and private property, as adopted and
amended from time to time, including, but not limited to, Section 7-13 of the Cable Ordinance, which
establishes minimum requirements for right-of-way occupancy. Franchisee's obligations and City's rights
under this agreement include, but are not limited to, the following, all of which must be performed at no
expense to the City, except where ey~ provided otherwise under applicable federal or state law:
(c) Repair and Restoration of Property.
(1) Franchisee shall protect public and private property from damage. If
franchise causes damage, Franchisee shall promptly notify the property
owner.
(2) If public or private property is disturbed or damaged by Franchise,
Franchisee shall restore the property to its former or better condition
including necessary paving, patching, grading and other necessary
repair or restoration. Public right-of-way or other City property shall be
restored to its former or better condition, in a manner and within a time
approved by the City Engineer, which approval shall not be unreasonably
withheld. If restoration of public right-of-way or other City property is not
satisfactorily performed within a reasonable time, the City Engineer may,
after prior notice to Franchisee, or without notice where the disturbance
or damage may create a risk to public health or safety, or cause
unreasonable delay or added expense to a public project or activity,
cause the repairs to be made at Franchisee's expense and recover the
cost of those repairs from Franchisee. Within thirty (30) days of receipt
of an itemized list of those costs, including the costs of labor, materials
and equipment, Franchisee shall pay same to City. If suit is brought
upon Franchisee's failure to pay for repair and restoration, and if
judgment in such a suit is entered in favor of City, then Franchisee shall
pay all of City's actual out-of-pocket costs resulting from the non-
payment, ;""',~;"'-' ;"* .... * ~""-'~' *~'~ ~o*'~ *~'~ ~';' ..... presented,
disbursements, attorney's fees and litigation-related costs. Private
property must be restored promptly, considering the nature of the work
that must be performed. It is a violation of this Franchise for Franchisee
to leave cable unburied on the ground for more than the shortest period
required to bury it, weather conditions permitting.
Except in cases of emergency or responses to unplanned system
failures where it is impractical to do so, prior to entering onto private
property to construct, operate or repair its Cable System (unless the
repair or construction can be performed from the right-of-way, without
disrupting the private property), Franchisee shall give the person residing
on or using the property adequate notice that it intends to do any
excavation work on the property, a description of the work it intends to
perform and a name and phone number the person can call to protest or
seek modification of the work. Work shall be done in a manner that
~ minimizes interference with the rights and reasonable
convenience of property owners, residents and users, and that complies
in all respects with federal law requirements. In cases subject to the
exception for prior notice, notice shall be given to the property owner as
soon as practical.
City's Determination:
Time Warner's proposal is unacceptable. In particular, Time Warner has modified the ability of the City to
collect interest that may accrue from the date the City presents a bill for repair or restoration. The other
changes proposed by Time Warner are acceptable.
Pa.qe 24 Section 16.(d) Construction, Operation and Repair.
Time Warner's Proposal:
16. Construction, Operation and Repair.
As provided in subsections 2(b), (f), and (g), the construction, operation and repair of the Cable
System must be performed in compliance with this agreement and all applicable laws, rules and permit
requirements regarding use of the rights-of-way and public and private property, as adopted and
amended from time to time, including, but not limited to, Section 7-13 of the Cable Ordinance, which
establishes minimum requirements for right-of-way occupancy. Franchisee's obligations and City's rights
under this agreement include, but are not limited to, the following, all of which must be performed at no
expense to the City, except where ey~ provided otherwise under applicable federal or state law:
(d) Movement of Cable System for and by City. City may remove, replace, modify
or disconnect Franchisee's facilities and equipment located in the public right-of-way or on any
other City property in the case of fire, disaster, or other emergency, or when a City project or
activity makes the removal, replacement, modification or disconnection necessary for City, and as
further provided in the Cable Ordinance. Except during an emergency, City shall a~
provide reasonable notice to Franchisee prior to taking such action and shall, ',
provide Franchisee with the opportunity to perform such action. Following notice by City,
Franchisee shall remove, replace, modify or disconnect any of its facilities or equipment within
any public right-of-way, or on any other City property by a reasonable deadline specified by the
City. If Franchisee fails to complete this work within said reasonable time period and to City's
satisfaction, City may cause such work to be done and bill the reasonable out-of-pocket cost of
the work to Franchisee. Within thirty (30) days of receipt of an itemized list of those reasonable
out-of-pocket costs, Franchisee shall pay City. Notwithstanding any other provision of this
agreement, City, its officials, officers, employees and agents shall not be liable to Franchisee for
any damage caused as a result of action taken under this subsection. If the City reimburses any
person for such relocation, Franchisee shall be similarly reimbursed.
City's Determination:
Time Warner's proposal is acceptable. The City wishes to note, however, that in the case of an
emergency, the City will use every reasonable effort to provide notice to Time Warner. However, Time
Warner has eliminated language, which would allow the City to react accordingly during an emergency
and may present compliance problems. In reviewing Time Warner's proposed changes to Franchise
Agreement and Regulatory Ordinance, it appears that when the roles are reversed, Time Warner expects
that the City will provide such flexibility for its benefit. In addition, Time Warner has modified this section
further to include only reimbursement of out-of-pocket costs incurred by the City. To the extent the City
utilizes its own staff time and expertise to resolve the problem, Time Warner will not provide such
reimbursement.
Pa.qe 24 Section 16.(f) Construction, Operation and Repair.
Time Warner's Proposal:
16. Construction, Operation and Repair.
As provided in subsections 2(b), (f), and (g), the construction, operation and repair of the Cable
System must be performed in compliance with this agreement and all applicable laws, rules and permit
requirements regarding use of the rights-of-way and public and private property, as adopted and
amended from time to time, including, but not limited to, Section 7-13 of the Cable Ordinance, which
establishes minimum requirements for right-of-way occupancy. Franchisee's obligations and City's rights
under this agreement include, but are not limited to, the following, all of which must be performed at no
expense to the City, except where ey~ provided otherwise under applicable federal or state law:
(f) Movement for Other Permittees. At the request of any person holding a valid
oversize load or similar permit and upon reasonable advance notice, of at least three-~ seven
(7) business days, Franchisee shall temporarily raise, lower or remove its wires as necessary to
permit the moving of a building, vehicle, equipment or other item. The expense of such
temporary changes, including standby time, must be paid by the permit holder, and Franchisee
may require a reasonable deposit of the estimated payment in advance.
City's Determination:
Time Warner's proposal is acceptable.
Pa.qe 25 Section 16.(h) Construction, Operation and Repair.
Time Warner's Proposal:
16. Construction, Operation and Repair.
As provided in subsections 2(b), (f), and (g), the construction, operation and repair of the Cable
System must be performed in compliance with this agreement and all applicable laws, rules and permit
requirements regarding use of the rights-of-way and public and private property, as adopted and
amended from time to time, including, but not limited to, Section 7-13 of the Cable Ordinance, which
establishes minimum requirements for right-of-way occupancy. Franchisee's obligations and City's rights
under this agreement include, but are not limited to, the following, all of which must be performed at no
expense to the City, except where ey~ provided otherwise under applicable federal or state law:
(h) Decisions of City Engineer. Whenever a decision, requirement or approval is
by this agreement to be a determination of the City Engineer, that determination shall not be
arbitrary or unreasonable nor unreasonably delayed and shaft be conclusive upon the parties
hereto, with respect to the City's review of the matter. Franchisee may request that any decision
be reviewed by City Council.
City's Determination:
Time Warner's proposal is unacceptable. Time Warner has attempted to modify the legal standard by
which City decisions are reviewed. The City does not believe it is in either party's best interest to modify
the standards that are generally applicable to municipal decisions in accordance with applicable law.
Pa,qe 2_~5 Section 17. Operation and ~ Provisions.
Time Warner's Proposal:
corrections t~ken for e~ch.
c~lcul~tJon of f~nchJse fees must be retained for the life of the Franchise consistent with
prowded~, ...... ,,,-~ _~A~ !eg~!!y .,,~o~ re~son~b!y requested~,,,~,~, .,*h~,~ ~oA,~._,~ ~;~, ~,,,.,,~ ~, .,*h;°,,~
o~oll ~ ~o~ ~ ~;~ ~o~;o~ ~ ~;~1o~ ~ I I ~ ~ ~ ~o~;o~ o~oll ~ ~o~o;~1~
City's Determination:
Time Warner's proposal is unacceptable. Time Warner has completely eliminated this provision
presumably on the assumption that its already addressed within the Regulatory Ordinance. However,
that is not accurate as many of the requirements in this Section 17 go beyond those contained within the
Regulatory Ordinance. As a result, Time Warner has attempted to reduce its obligations to maintain open
books and records and reduce reporting requirements.
PaRe 27 Section 18.(c) Remedies.
Time Warner's Proposal:
18. Remedies.
(c) Whenever the City finds that Franchisee has afteqedly violated one or more
terms, conditions or provisions of this Franchise or the Cable Ordinance, a written notice shall be
~tiven to Franchisee. The written notice shaft describe in reasonable detail the afteqed violation
so as to afford the Franchisee an opportunity to remedy the violation. Franchise shaft have 30
days subsequent to receipt of the notice in which to correct the violation before the City may
require Franchisee to make payment of penalties. Franchisee may, within 10 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 Franchisee shaft specify with particularity the matters disputed by
Franchisee and shaft stay the runnin~t of the above-described time.
City shaft hear Franchisee's dispute at the next reqularly scheduled or specially
scheduled Council meetinq Franchisee shaft have the ri~tht to subpoena and
cross-examine witnesses. The City shaft determine if Franchisee has committed
a violation and shaft make written findinqs of fact relative to its determination. If a
violation is found Franchisee may petition for reconsideration.
If after hearinq the dispute, the claim is upheld by the City, then Franchisee shaft
have 30 days within which to remedy the violation before the City may require
payment of penalties.
The time for Franchisee to correct any afteged violation shaft be extended by the
City if the necessary action to correct the afteqed violation is of such a nature or
character as to require more than 30 days within which to perform provided
Franchisee commences corrective action within 15 days and thereafter exercises
due dili~lence to correct the violation.
City's Determination:
Time Warner's proposal is unacceptable. In particular, Time Warner's has added a new subparagraph (c)
that is inconsistent with the Cable Ordinance at Section 7-24 and 7-34. This inconsistency will only lead
to confusion in the event the City needs to undertake a revocation or forfeiture proceeding as the parties
will be uncertain exactly which due process provisions should apply.
PaRe 29 Section 20. (b-c) Exercise Riqht to Purchase.
Time Warner's Proposal:
(b) Force Majeure. Franchisee shaft not be deemed in default with provisions of its
Franchise or the Cable Ordinance where performance was rendered impossible by war or riots,
civil disturbances, labor strikes, floods, or other circumstances beyond Franchisee's control, and
the Franchise shaft not be revoked or Franchisee penalized for such noncompliance, provided
that Franchisee takes immediate and diligent steps to bring itself back into compliance and to
comply as soon as possible under the circumstances with its Franchise without unduly
endangering the health or safety of Franchisee's employees or the integrity of its property, or the
health or safety of the public, or the integrity of public right-of-way, public property, or private
property; and only if Franchisee has notified City in writing of the reason or the City should
reasonably have known for the inability within ten (10) business day of Franchisee's discovery of
the reason.
(c) Connections to System; Use of Antennas.
(1)
Subscribers shall have the right to attach devices to Franchisee's System
to allow them to view signals or services when authorized by Franchisee.
Subject to reasonable provisions to prevent signal and service theft,
subscribers also shall have the right to use their own remote control
devices and converters, and other similar equipment and, Franchisee
shall provide a list of compatible equipment upon request in accordance
with applicable federal law.
Franchisee shall not, as a condition of providing service, require a
subscriber or potential subscriber to remove any existing antenna except
at the express direction of the subscriber or potential subscriber, or
prohibit a subscriber from installing an antenna switch, provided that
such equipment and installations are consistent with applicable law.
City's Determination:
Time Warner's proposal is acceptable.