093_SB1345

 
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 1        AN ACT concerning municipalities.

 2        Be  it  enacted  by  the People of the State of Illinois,
 3    represented in the General Assembly:

 4        Section 5.  The Illinois Municipal  Code  is  amended  by
 5    changing Section 11-42-11 as follows:

 6        (65 ILCS 5/11-42-11) (from Ch. 24, par. 11-42-11)
 7        Sec.  11-42-11.   Community  antenna  television systems;
 8    satellite transmitted television programming.
 9        (a)  The corporate authorities of each  municipality  may
10    license,  franchise  and  tax  the  business  of  operating a
11    community antenna television system as  hereinafter  defined.
12    In  municipalities  with less than 2,000,000 inhabitants, the
13    corporate authorities may, under  the  limited  circumstances
14    set  forth  in  this  Section,  own  (or lease as lessee) and
15    operate a community antenna television system; provided  that
16    a  municipality may not acquire, construct, own, or operate a
17    community antenna television system for the use or benefit of
18    private consumers or users, and may not charge a fee for that
19    consumption  or  use,  unless  the  proposition  to  acquire,
20    construct, own, or operate a cable antenna television  system
21    has  been  submitted  to  and approved by the electors of the
22    municipality  in  accordance  with  subsection  (f).   Before
23    acquiring,   constructing,   or  commencing  operation  of  a
24    community antenna television system, the  municipality  shall
25    comply with the following:
26             (1)  Give written notice to the owner or operator of
27        any  other community antenna television system franchised
28        to serve all or any portion of the territorial area to be
29        served by the municipality's community antenna television
30        system, specifying the date, time, and place at which the
31        municipality shall conduct public  hearings  to  consider
 
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 1        and  determine  whether  the municipality should acquire,
 2        construct, or commence operation of a  community  antenna
 3        television   system.    The   public  hearings  shall  be
 4        conducted at least 14 days after this notice is given.
 5             (2)  Publish a notice of the hearing in  2  or  more
 6        newspapers   published  in  the  county,  city,  village,
 7        incorporated town, or town, as the case may be.  If there
 8        is no such newspaper, then notice shall be  published  in
 9        any  2  or  more  newspapers  published in the county and
10        having a general circulation  throughout  the  community.
11        The  public  hearings shall be conducted at least 14 days
12        after this notice is given.
13             (3)  Conduct a public hearing to determine the means
14        by which construction, maintenance, and operation of  the
15        system will be financed, including whether the use of tax
16        revenues or other fees will be required.
17        (b)  The  words  "community  antenna  television  system"
18    shall  mean  any facility which is constructed in whole or in
19    part in, on, under or over any highway or other public  place
20    and  which  is  operated  to  perform for hire the service of
21    receiving and amplifying the signals broadcast by one or more
22    television stations and redistributing such signals by  wire,
23    cable  or  other means to members of the public who subscribe
24    to such  service;  except  that  such  definition  shall  not
25    include   (i)  any  system  which  serves  fewer  than  fifty
26    subscribers,  or  (ii)  any  system  which  serves  only  the
27    residents of one or more  apartment  dwellings  under  common
28    ownership,    control    or    management,   and   commercial
29    establishments located on the premises of such dwellings.
30        (c)  The  authority  hereby  granted  does  not   include
31    authority  to  license,  franchise or tax telephone companies
32    subject to jurisdiction of the Illinois  Commerce  Commission
33    or  the  Federal Communications Commission in connection with
34    the  furnishing  of  circuits,  wires,  cables,   and   other
 
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 1    facilities  to the operator of a community antenna television
 2    system.
 3        The corporate authorities of each  municipality  may,  in
 4    the  course  of franchising such community antenna television
 5    system, grant to such franchisee the authority and the  right
 6    and  permission  to  use  all  public streets, rights of way,
 7    alleys,  ways   for   public   service   facilities,   parks,
 8    playgrounds,  school  grounds,  or  other  public grounds, in
 9    which  such  municipality  may  have  an  interest,  for  the
10    construction,    installation,    operation,     maintenance,
11    alteration, addition, extension or improvement of a community
12    antenna television system.
13        Any  charge  imposed  by  a  community antenna television
14    system franchised pursuant to this Section for the raising or
15    removal of cables or lines to permit passage on, to or from a
16    street  shall  not  exceed  the  reasonable  costs  of   work
17    reasonably necessary to safely permit such passage.  Pursuant
18    to subsections (h) and (i) of Section 6 of Article VII of the
19    Constitution  of  the State of Illinois, the General Assembly
20    declares the regulation of charges which may  be  imposed  by
21    community  antenna  television  systems  for  the  raising or
22    removal of cables or lines to permit passage on, to  or  from
23    streets is a power or function to be exercised exclusively by
24    the  State  and not to be exercised or performed concurrently
25    with the State by any unit of local government, including any
26    home rule unit.
27        The  municipality  may,  upon  written  request  by   the
28    franchisee of a community antenna television system, exercise
29    its  right  of  eminent  domain  solely  for  the  purpose of
30    granting an easement right no greater than 8 feet  in  width,
31    extending  no  greater  than 8 feet from any lot line for the
32    purpose of extending cable across any parcel of  property  in
33    the  manner  provided by the law of eminent domain, provided,
34    however,  such  franchisee  deposits  with  the  municipality
 
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 1    sufficient  security  to  pay  all  costs  incurred  by   the
 2    municipality in the exercise of its right of eminent domain.
 3        If  any  franchise  agreement  or  ordinance  requires  a
 4    community  antenna  television  franchisee  to  set  aside or
 5    otherwise provide channel capacity for  public,  educational,
 6    or  government  programming,  then the franchise agreement or
 7    ordinance shall be subject to  all  applicable  federal  laws
 8    relating  to  the  provision  of this programming. Beyond the
 9    franchise  fees  otherwise  payable,  the  community  antenna
10    television  franchisee  shall  not  be  required  to  pay  or
11    reimburse the franchising authority or any  other  party  for
12    the costs or expenses incurred in providing this programming,
13    regardless  of  whether  the  channel  capacity  for  public,
14    educational,  or  governmental programming is required by the
15    franchising authority  or  is  provided  voluntarily  by  the
16    franchisee.   Any  operating  costs paid by the franchisee in
17    connection with the  provision  of  public,  educational,  or
18    government programming shall be deductible from the franchise
19    fees otherwise payable.
20        (d)  The   General   Assembly  finds  and  declares  that
21    satellite-transmitted  television   programming   should   be
22    available   to   those   who  desire  to  subscribe  to  such
23    programming and that decoding devices should be obtainable at
24    reasonable  prices  by  those  who  are  unable   to   obtain
25    satellite-transmitted  television  programming  through  duly
26    franchised community antenna television systems.
27        In  any  instance  in  which a person is unable to obtain
28    satellite-transmitted television programming through  a  duly
29    franchised community antenna television system either because
30    the  municipality and county in which such person resides has
31    not granted a franchise to operate and maintain  a  community
32    antenna  television  system,  or  because the duly franchised
33    community antenna television system operator  does  not  make
34    cable  television  services  available  to  such  person, any
 
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 1    programming  company  that   delivers   satellite-transmitted
 2    television  programming  in scrambled or encrypted form shall
 3    ensure that devices for description of such  programming  are
 4    made  available  to  such person, through the local community
 5    antenna television operator  or  directly,  for  purchase  or
 6    lease at prices reasonably related to the cost of manufacture
 7    and distribution of such devices.
 8        (e)  The  General  Assembly  finds  and declares that, in
 9    order to ensure that community  antenna  television  services
10    are  provided  in  an  orderly,  competitive and economically
11    sound manner, the best interests of the public will be served
12    by  the  establishment  of  certain  minimum  standards   and
13    procedures  for  the  granting of additional cable television
14    franchises.
15        Subject  to  the  provisions  of  this  subsection,   the
16    authority  granted  under subsection (a) hereof shall include
17    the authority to license, franchise and  tax  more  than  one
18    cable   operator  to  provide  community  antenna  television
19    services within the corporate limits of a single  franchising
20    authority.  For purposes of this subsection (e), the term:
21             (i)  "Existing  cable  television franchise" means a
22        community  antenna  television  franchise  granted  by  a
23        municipality  which  is  in  use   at   the   time   such
24        municipality   receives  an  application  or  request  by
25        another cable operator for a franchise to  provide  cable
26        antenna  television services within all or any portion of
27        the territorial area which is or may be served under  the
28        existing cable television franchise.
29             (ii)  "Additional  cable television franchise" means
30        a  franchise  pursuant   to   which   community   antenna
31        television   services   may   be   provided   within  the
32        territorial areas, or any portion thereof, which  may  be
33        served under an existing cable television franchise.
34             (iii)  "Franchising  Authority"  is  defined as that
 
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 1        term  is  defined  under  Section  602(9)  of  the  Cable
 2        Communications Policy Act of 1984, Public Law 98-549, but
 3        does not include any municipality with  a  population  of
 4        1,000,000 or more.
 5             (iv)  "Cable  operator"  is  defined as that term is
 6        defined under Section 602(4) of the Cable  Communications
 7        Policy Act of 1984, Public Law 98-549.
 8        Before granting an additional cable television franchise,
 9    the franchising authority shall:
10             (1)  Give written notice to the owner or operator of
11        any  other community antenna television system franchised
12        to serve all or any portion of the territorial area to be
13        served by such  additional  cable  television  franchise,
14        identifying  the  applicant for such additional franchise
15        and specifying the date, time  and  place  at  which  the
16        franchising  authority  shall  conduct public hearings to
17        consider and  determine  whether  such  additional  cable
18        television franchise should be granted.
19             (2)  Conduct  a  public  hearing  to  determine  the
20        public   need   for   such  additional  cable  television
21        franchise,  the  capacity  of  public  rights-of-way   to
22        accommodate  such additional community antenna television
23        services, the potential disruption to existing  users  of
24        public  rights-of-way  to  be  used  by  such  additional
25        franchise  applicant  to  complete  construction  and  to
26        provide  cable  television  services  within the proposed
27        franchise area, the long term  economic  impact  of  such
28        additional  cable television system within the community,
29        and such other factors as the franchising authority shall
30        deem appropriate.
31             (3)  Determine, based upon  the  foregoing  factors,
32        whether it is in the best interest of the municipality to
33        grant such additional cable television franchise.
34             (4)  If  the  franchising  authority shall determine
 
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 1        that it is in the best interest of the municipality to do
 2        so,  it  may  grant  the  additional   cable   television
 3        franchise.   Except  as provided in paragraph (5) of this
 4        subsection  (e),  no  such  additional  cable  television
 5        franchise shall be granted under terms or conditions more
 6        favorable or less burdensome to the applicant than  those
 7        required  under  the existing cable television franchise,
 8        including  but  not  limited  to  terms  and   conditions
 9        pertaining  to  the  territorial extent of the franchise,
10        system   design,   technical    performance    standards,
11        construction  schedules, performance bonds, standards for
12        construction  and  installation   of   cable   television
13        facilities,  service  to  subscribers, public educational
14        and  governmental  access   channels   and   programming,
15        production assistance, liability and indemnification, and
16        franchise fees.
17             (5)  Unless  the existing cable television franchise
18        provides that any additional cable  television  franchise
19        shall  be  subject  to  the  same  terms or substantially
20        equivalent terms and conditions as those of the  existing
21        cable television franchise, the franchising authority may
22        grant  an  additional  cable  television  franchise under
23        different terms and conditions than those of the existing
24        franchise, in which event the franchising authority shall
25        enter into good  faith  negotiations  with  the  existing
26        franchisee and shall, within 120 days after the effective
27        date of the additional cable television franchise, modify
28        the  existing  cable television franchise in a manner and
29        to the  extent  necessary  to  ensure  that  neither  the
30        existing  cable  television  franchise nor the additional
31        cable  television  franchise,  each  considered  in   its
32        entirety,  provides  a  competitive  advantage  over  the
33        other,  provided  that  prior  to  modifying the existing
34        cable television  franchise,  the  franchising  authority
 
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 1        shall  have  conducted  a  public hearing to consider the
 2        proposed modification.   No modification in the terms and
 3        conditions of the  existing  cable  television  franchise
 4        shall oblige the existing cable television franchisee (1)
 5        to   make  any  additional  payment  to  the  franchising
 6        authority,  including  the  payment  of  any   additional
 7        franchise   fee,   (2)   to   engage  in  any  additional
 8        construction of the existing cable television system  or,
 9        (3)  to  modify  the  specifications  or  design  of  the
10        existing  cable  television  system; and the inclusion of
11        the factors identified in items (2) and (3) shall not  be
12        considered   in   determining  whether  either  franchise
13        considered in its entirety, has a  competitive  advantage
14        over  the  other except to the extent that the additional
15        franchisee provides additional video or data services  or
16        the  equipment or facilities necessary to generate and or
17        carry such service.   No modification in  the  terms  and
18        conditions  of  the  existing  cable television franchise
19        shall be made if the existing cable television franchisee
20        elects  to  continue  to  operate  under  all  terms  and
21        conditions of the existing franchise.
22             If  within  the  120  day  period  the   franchising
23        authority  and  the  existing cable television franchisee
24        are unable to reach agreement  on  modifications  to  the
25        existing cable television franchise, then the franchising
26        authority  shall  modify  the  existing  cable television
27        franchise, effective 45 days thereafter, in a manner, and
28        only to the extent, that the terms and conditions of  the
29        existing  cable  television  franchise  shall  no  longer
30        impose  any duty or obligation on the existing franchisee
31        which is not also  imposed  under  the  additional  cable
32        television franchise; however, if by the modification the
33        existing  cable  television  franchisee  is  relieved  of
34        duties  or  obligations  not imposed under the additional
 
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 1        cable television franchise, then within the same 45  days
 2        and following a public hearing concerning modification of
 3        the  additional cable television franchise within that 45
 4        day period, the franchising authority  shall  modify  the
 5        additional  cable  television  franchise  to  the  extent
 6        necessary  to  insure  that  neither  the  existing cable
 7        television franchise nor the additional cable  television
 8        franchise,  each considered in its entirety, shall have a
 9        competitive advantage over the other.
10        No municipality shall be  subject  to  suit  for  damages
11    based  upon  the municipality's determination to grant or its
12    refusal to grant an additional  cable  television  franchise,
13    provided  that  a  public hearing as herein provided has been
14    held and the franchising authority has determined that it  is
15    in  the  best interest of the municipality to grant or refuse
16    to grant such additional franchise, as the case may be.
17        It is declared to be the law of this State,  pursuant  to
18    paragraphs  (h)  and  (i)  of Section 6 of Article VII of the
19    Illinois Constitution,  that  the  establishment  of  minimum
20    standards and procedures for the granting of additional cable
21    television  franchises  by  municipalities  with a population
22    less than 1,000,000 as provided in this subsection (e) is  an
23    exclusive  State power and function that may not be exercised
24    concurrently by a home rule unit.
25        (f)  No municipality  may  acquire,  construct,  own,  or
26    operate  a  community  antenna  television  system unless the
27    corporate authorities adopt an ordinance.  The ordinance must
28    set forth the action proposed; describe the plant, equipment,
29    and property to be acquired or constructed; and  specifically
30    describe  the  manner in which the construction, acquisition,
31    and operation of the system will be financed.
32        The ordinance may not take effect until the  question  of
33    acquiring,  construction,  owning,  or  operating a community
34    antenna television system has been submitted to the  electors
 
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 1    of  the  municipality at a regular election and approved by a
 2    majority  of  the  electors  voting  on  the  question.   The
 3    corporate authorities must certify the question to the proper
 4    election authority, which must  submit  the  question  at  an
 5    election in accordance with the Election Code.
 6        The  question  must  be  submitted  in  substantially the
 7    following form:
 8             Shall the ordinance authorizing the municipality  to
 9        (insert action authorized by ordinance) take effect?
10    The votes must be recorded as "Yes" or "No".
11        If  a majority of electors voting on the question vote in
12    the affirmative, the ordinance shall take effect.
13        Not more than 30 or less than 15 days before the date  of
14    the   referendum,   the  municipal  clerk  must  publish  the
15    ordinance at least once in one or more  newspapers  published
16    in  the  municipality or, if no newspaper is published in the
17    municipality,  in  one  or   more   newspapers   of   general
18    circulation within the municipality.
19    (Source: P.A. 90-285, eff. 7-31-97; 91-648, eff. 1-1-00.)