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90_SB1366
65 ILCS 5/11-42-11 from Ch. 24, par. 11-42-11
Amends the Illinois Municipal Code. Provides that the
franchising authority may grant additional cable television
franchises under more favorable and less burdensome (now
different) terms and conditions than those of existing
franchises, in which event the authority shall renegotiate
with each (now the) existing franchise. Provides that if the
terms of an existing franchise are modified, the existing
franchisee is not required (unless it agrees) to make an
additional payment to the authority, engage in additional
construction, or modify its system. Provides that the
inclusion by the additional franchisee of an additional or
different system or design shall not be considered in
determining competitive advantage over another franchise.
LRB9008779PTsb
LRB9008779PTsb
1 AN ACT to amend the Illinois Municipal Code by changing
2 Section 11-42-11.
3 Be it enacted by the People of the State of Illinois,
4 represented in the General Assembly:
5 Section 5. The Illinois Municipal Code is amended by
6 changing Section 11-42-11 as follows:
7 (65 ILCS 5/11-42-11) (from Ch. 24, par. 11-42-11)
8 Sec. 11-42-11. Community antenna television systems;
9 satellite transmitted television programming.
10 (a) The corporate authorities of each municipality may
11 license, franchise and tax the business of operating a
12 community antenna television system as hereinafter defined.
13 In municipalities with less than 2,000,000 inhabitants, the
14 corporate authorities may own (or lease as lessee) and
15 operate a community antenna television system. Before
16 acquiring, constructing, or commencing operation of a
17 community antenna television system, the municipality shall
18 comply with the following:
19 (1) Give written notice to the owner or operator of
20 any other community antenna television system franchised
21 to serve all or any portion of the territorial area to be
22 served by the municipality's community antenna television
23 system, specifying the date, time, and place at which the
24 municipality shall conduct public hearings to consider
25 and determine whether the municipality should acquire,
26 construct, or commence operation of a community antenna
27 television system. The public hearings shall be
28 conducted at least 14 days after this notice is given.
29 (2) Publish a notice of the hearing in 2 or more
30 newspapers published in the county, city, village,
31 incorporated town, or town, as the case may be. If there
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1 is no such newspaper, then notice shall be published in
2 any 2 or more newspapers published in the county and
3 having a general circulation throughout the community.
4 The public hearings shall be conducted at least 14 days
5 after this notice is given.
6 (3) Conduct a public hearing to determine the means
7 by which construction, maintenance, and operation of the
8 system will be financed, including whether the use of tax
9 revenues or other fees will be required.
10 (b) The words "community antenna television system"
11 shall mean any facility which is constructed in whole or in
12 part in, on, under or over any highway or other public place
13 and which is operated to perform for hire the service of
14 receiving and amplifying the signals broadcast by one or more
15 television stations and redistributing such signals by wire,
16 cable or other means to members of the public who subscribe
17 to such service; except that such definition shall not
18 include (i) any system which serves fewer than fifty
19 subscribers, or (ii) any system which serves only the
20 residents of one or more apartment dwellings under common
21 ownership, control or management, and commercial
22 establishments located on the premises of such dwellings.
23 (c) The authority hereby granted does not include
24 authority to license, franchise or tax telephone companies
25 subject to jurisdiction of the Illinois Commerce Commission
26 or the Federal Communications Commission in connection with
27 the furnishing of circuits, wires, cables, and other
28 facilities to the operator of a community antenna television
29 system.
30 The corporate authorities of each municipality may, in
31 the course of franchising such community antenna television
32 system, grant to such franchisee the authority and the right
33 and permission to use all public streets, rights of way,
34 alleys, ways for public service facilities, parks,
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1 playgrounds, school grounds, or other public grounds, in
2 which such municipality may have an interest, for the
3 construction, installation, operation, maintenance,
4 alteration, addition, extension or improvement of a community
5 antenna television system.
6 Any charge imposed by a community antenna television
7 system franchised pursuant to this Section for the raising or
8 removal of cables or lines to permit passage on, to or from a
9 street shall not exceed the reasonable costs of work
10 reasonably necessary to safely permit such passage. Pursuant
11 to subsections (h) and (i) of Section 6 of Article VII of the
12 Constitution of the State of Illinois, the General Assembly
13 declares the regulation of charges which may be imposed by
14 community antenna television systems for the raising or
15 removal of cables or lines to permit passage on, to or from
16 streets is a power or function to be exercised exclusively by
17 the State and not to be exercised or performed concurrently
18 with the State by any unit of local government, including any
19 home rule unit.
20 The municipality may, upon written request by the
21 franchisee of a community antenna television system, exercise
22 its right of eminent domain solely for the purpose of
23 granting an easement right no greater than 8 feet in width,
24 extending no greater than 8 feet from any lot line for the
25 purpose of extending cable across any parcel of property in
26 the manner provided by the law of eminent domain, provided,
27 however, such franchisee deposits with the municipality
28 sufficient security to pay all costs incurred by the
29 municipality in the exercise of its right of eminent domain.
30 (d) The General Assembly finds and declares that
31 satellite-transmitted television programming should be
32 available to those who desire to subscribe to such
33 programming and that decoding devices should be obtainable at
34 reasonable prices by those who are unable to obtain
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1 satellite-transmitted television programming through duly
2 franchised community antenna television systems.
3 In any instance in which a person is unable to obtain
4 satellite-transmitted television programming through a duly
5 franchised community antenna television system either because
6 the municipality and county in which such person resides has
7 not granted a franchise to operate and maintain a community
8 antenna television system, or because the duly franchised
9 community antenna television system operator does not make
10 cable television services available to such person, any
11 programming company that delivers satellite-transmitted
12 television programming in scrambled or encrypted form shall
13 ensure that devices for description of such programming are
14 made available to such person, through the local community
15 antenna television operator or directly, for purchase or
16 lease at prices reasonably related to the cost of manufacture
17 and distribution of such devices.
18 (e) The General Assembly finds and declares that, in
19 order to ensure that community antenna television services
20 are provided in an orderly, competitive and economically
21 sound manner, the best interests of the public will be served
22 by the establishment of certain minimum standards and
23 procedures for the granting of additional cable television
24 franchises.
25 Subject to the provisions of this subsection, the
26 authority granted under subsection (a) hereof shall include
27 the authority to license, franchise and tax more than one
28 cable operator to provide community antenna television
29 services within the corporate limits of a single franchising
30 authority. For purposes of this subsection (e), the term:
31 (i) "Existing cable television franchise" means a
32 community antenna television franchise granted by a
33 municipality which is in use at the time such
34 municipality receives an application or request by
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1 another cable operator for a franchise to provide cable
2 antenna television services within all or any portion of
3 the territorial area which is or may be served under the
4 existing cable television franchise.
5 (ii) "Additional cable television franchise" means
6 a franchise pursuant to which community antenna
7 television services may be provided within the
8 territorial areas, or any portion thereof, which may be
9 served under an existing cable television franchise.
10 (iii) "Franchising Authority" is defined as that
11 term is defined under Section 602(9) of the Cable
12 Communications Policy Act of 1984, Public Law 98-549, but
13 does not include any municipality with a population of
14 1,000,000 or more.
15 (iv) "Cable operator" is defined as that term is
16 defined under Section 602(4) of the Cable Communications
17 Policy Act of 1984, Public Law 98-549.
18 Before granting an additional cable television franchise,
19 the franchising authority shall:
20 (1) Give written notice to the owner or operator of
21 any other community antenna television system franchised
22 to serve all or any portion of the territorial area to be
23 served by such additional cable television franchise,
24 identifying the applicant for such additional franchise
25 and specifying the date, time and place at which the
26 franchising authority shall conduct public hearings to
27 consider and determine whether such additional cable
28 television franchise should be granted.
29 (2) Conduct a public hearing to determine the
30 public need for such additional cable television
31 franchise, the capacity of public rights-of-way to
32 accommodate such additional community antenna television
33 services, the potential disruption to existing users of
34 public rights-of-way to be used by such additional
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1 franchise applicant to complete construction and to
2 provide cable television services within the proposed
3 franchise area, the long term economic impact of such
4 additional cable television system within the community,
5 and such other factors as the franchising authority shall
6 deem appropriate.
7 (3) Determine, based upon the foregoing factors,
8 whether it is in the best interest of the municipality to
9 grant such additional cable television franchise.
10 (4) If the franchising authority shall determine
11 that it is in the best interest of the municipality to do
12 so, it may grant the additional cable television
13 franchise. Except as provided in paragraph (5) of this
14 subsection (e), no such additional cable television
15 franchise shall be granted under terms or conditions more
16 favorable or less burdensome to the applicant than those
17 required under the existing cable television franchise,
18 including but not limited to terms and conditions
19 pertaining to the territorial extent of the franchise,
20 system design, technical performance standards,
21 construction schedules, performance bonds, standards for
22 construction and installation of cable television
23 facilities, service to subscribers, public educational
24 and governmental access channels and programming,
25 production assistance, liability and indemnification, and
26 franchise fees.
27 (5) Unless an the existing cable television
28 franchise provides that any additional cable television
29 franchise shall be subject to the same terms or
30 substantially equivalent terms and conditions as those of
31 the existing cable television franchise, the franchising
32 authority may grant an additional cable television
33 franchise under different terms and conditions more
34 favorable and less burdensome than those of an the
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1 existing franchise, in which event the franchising
2 authority shall enter into good faith negotiations with
3 each the existing franchisee and shall, within 120 days
4 after the effective date of the additional cable
5 television franchise, modify the existing cable
6 television franchises franchise in such a manner and to
7 the extent necessary to ensure that neither an the
8 existing cable television franchise nor the additional
9 cable television franchise, each considered in its
10 entirety, provides a competitive advantage over the
11 other, provided that prior to modifying any the existing
12 cable television franchise, the franchising authority
13 shall have conducted a public hearing to consider the
14 proposed modification. No modification in the terms and
15 conditions of an the existing cable television franchise
16 shall oblige the existing cable television franchisee
17 except to the extent agreed to by such franchisee (1) to
18 make any additional payment to the franchising authority,
19 including the payment of any additional franchise fee,
20 (2) to engage in any additional construction of the
21 existing cable television system or, (3) to modify the
22 specifications or design of the existing cable television
23 system; and the inclusion by the additional franchisee of
24 an additional cable television system or different system
25 specifications or design of the factors identified in
26 items (2) and (3) shall not be considered in determining
27 whether a either franchise considered in its entirety,
28 has a competitive advantage over another franchise the
29 other except to the extent that the additional franchisee
30 provides additional video or data services or the
31 equipment or facilities necessary to generate and or
32 carry such service. No modification in the terms and
33 conditions of an the existing cable television franchise
34 shall be made if the existing cable television franchisee
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1 elects to continue to operate under all terms and
2 conditions of the existing franchise.
3 If within the 120 day period the franchising
4 authority and an the existing cable television franchisee
5 are unable to reach agreement on modifications to the
6 existing cable television franchise, then the franchising
7 authority shall modify the existing cable television
8 franchise, effective 45 days thereafter, in a manner, and
9 only to the extent, that the terms and conditions of the
10 existing cable television franchise shall no longer
11 impose any duty or obligation on the existing franchisee
12 which is not also imposed under the additional cable
13 television franchise; however, if by the modification the
14 existing cable television franchisee is relieved of
15 duties or obligations not imposed under the additional
16 cable television franchise, then within the same 45 days
17 and following a public hearing concerning modification of
18 the additional cable television franchise within that 45
19 day period, the franchising authority shall modify the
20 additional cable television franchise to the extent
21 necessary to insure that neither the existing cable
22 television franchise nor the additional cable television
23 franchise, each considered in its entirety, shall have a
24 competitive advantage over the other.
25 No municipality shall be subject to suit for damages
26 based upon the municipality's determination to grant or its
27 refusal to grant an additional cable television franchise,
28 provided that a public hearing as herein provided has been
29 held and the franchising authority has determined that it is
30 in the best interest of the municipality to grant or refuse
31 to grant such additional franchise, as the case may be.
32 It is declared to be the law of this State, pursuant to
33 paragraphs (h) and (i) of Section 6 of Article VII of the
34 Illinois Constitution, that the establishment of minimum
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1 standards and procedures for the granting of additional cable
2 television franchises by municipalities with a population
3 less than 1,000,000 as provided in this subsection (e) is an
4 exclusive State power and function that may not be exercised
5 concurrently by a home rule unit.
6 (Source: P.A. 89-657, eff. 8-14-96; 90-285, eff. 7-31-97.)