City of Creve Coeur, MO
St. Louis County
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Table of Contents
Table of Contents
Cross Reference — Licenses, permits and miscellaneous business regulations, ch. 605.

Section 640.010 Telecommunication Providers Requiring Franchises in The City.

[R.O. 2008 §12-1; Ord. No. 2071, §7-24-2000]
A. 
Telecommunications Provider Defined. "Telecommunications provider" means any person or entity who owns, leases, constructs, operates, uses or maintains any facilities, cable wires, fibers, devices or equipment of any type whatsoever that is used to provide telecommunication services when such facilities, cable, wires, fibers, devices or equipment are located in, under or over the streets, rights-of-way of the City, whether such telecommunication services originate, terminate or pass through the City.
B. 
Franchise Required. No person shall use or occupy the streets or rights-of-way of the City as a telecommunications provider or construct, use, lease, own, operate or maintain equipment in the streets or rights-of-way that are used to provide telecommunications services, without first obtaining a franchise or revocable permit granted in accordance with the provisions of this Chapter and Article XII of the City Charter.

Section 640.020 General Provisions.

[R.O. 2008 §12-16; Ord. No. 1740 §1, 9-26-1995]
A. 
Title. This Article shall be known and may be cited as the "Cable Communications Regulatory Code".
B. 
Purpose. The City finds that further development of cable systems has the potential to be of great benefit to the City and its residents and businesses. Cable technology is rapidly changing and cable plays an essential role as part of the City's basic infrastructure. Cable systems extensively make use of scarce and valuable public rights-of-ways in a manner different from the way in which the general public uses them and in a manner reserved primarily for those who provide services to the public, such as utility companies. A cable company currently typically faces very limited competition; thus, the grant of a franchise has the effect of giving the holder extensive economic benefits and places the holder in a position of public trust. Because of these facts, the City finds that public convenience, safety and general welfare can best be served by establishing regulatory powers vested in the City or such persons as the City so designates to protect the public and to ensure that any franchise granted is operated in the public interest. In light of the foregoing, the following goals, among others, underlie the provisions set forth in this Article:
1. 
Cable service should be available to as many City residents and businesses as possible and provide the widest possible diversity of information sources and services to the public.
2. 
A cable system should be capable of accommodating both present and reasonably foreseeable future cable-related needs of the community.
3. 
A cable system should be constructed and maintained during a franchise term so that changes in technology may be integrated to the maximum extent possible into existing system facilities, taking into account all relevant factors including costs.
4. 
A cable system should grow and develop and be responsive to the needs and interests of the community.
The City intends that all provisions set forth in this Article be construed to serve the public interest and the foregoing public purposes and that any franchise issued pursuant to this Article be construed to include the foregoing findings and public purposes as integral parts thereof.
C. 
Existing Franchise And Agreements. To the extent permitted by law, this Article shall apply to franchises and other agreements in effect at the time of adoption of this Article. Ordinance 952, as amended, is hereby repealed.

Section 640.030 Definitions and Word Usage.

[R.O. 2008 §12-17; Ord. No. 1740 §2, 9-26-1995; Ord. No. 1810 §1, 8-12-1996; Ord. No. 3038 §1(a — c), 2-14-2005]
For the purposes of this Article, the following terms, phrases, words and abbreviations shall have the meanings given herein, unless otherwise expressly stated. When not inconsistent with the context, words used in the present tense include the future tense and vice versa, words in the plural number include the singular number and vice versa and the masculine gender includes the feminine gender and vice versa. The words "shall" and "will" are mandatory and "may" is permissive. Unless otherwise expressly stated or clearly contrary to the context, terms, phrases, words and abbreviations not defined herein shall be given the meaning set forth in Title 47 of the United States Code, Chapter 5, Subchapter V-A, 47 U.S.C. Sections 521 et seq., as amended, and regulations issued pursuant thereto and, if not defined therein, their common and ordinary meaning. For convenience, Federal definitions are set forth in the glossary to this Article, which glossary may be revised by the City Attorney to reflect subsequent changes in Federal law without the need for an amendment of this Article. For further convenience, the first (1st) letter of terms, phrases, words and abbreviations defined in this Article or by Federal law have been capitalized, but an inadvertent failure to capitalize such letter shall not affect meaning.
CABLE ACT
Title 47 of the United States Code, Chapter 5, Subchapter V-A, 47 U.S.C. Sections 521 et seq., as amended from time to time.
CITY
The City of Creve Coeur, Missouri, and its agencies, departments, agents and employees acting within their respective areas of authority.
CITY COUNCIL OR COUNCIL
The Governing Body of the City.
FCC
The Federal Communications Commission, its designee or any successor governmental entity thereto.
FRANCHISE AGREEMENT
A contract entered into in accordance with the provisions of this Article between the City and a franchisee that sets forth, subject to this Article, the terms and conditions under which a franchise will be exercised.
FRANCHISE AREA
The area of the City that a franchisee is authorized to serve by its franchise agreement.
FRANCHISE TRANSFER
1. 
Any transaction in which: (a) any ownership or other right, title or interest of more than ten percent (10%) in a franchisee or its cable system is transferred, sold, assigned, leased, sublet, mortgaged or otherwise disposed of or encumbered directly or indirectly, voluntarily or by foreclosure or other involuntary means, in whole or in part; or (b) there is any change in or substitution of or acquisition or transfer of control of the franchisee or any person which has more than a ten percent (10%) interest in a franchisee or has responsibility for or control over a franchisee's operations or over the system; or (c) the rights or obligations held by the franchisee under the franchise are transferred, directly or indirectly, to another person.
2. 
The legal or practical ability to direct the affairs of another person, either directly or indirectly, whether by contractual agreement, majority ownership interest, any lesser ownership interest or in any other manner.
3. 
A rebuttable presumption that a change, acquisition or transfer of control has occurred shall arise upon the acquisition or accumulation of a ten percent (10%) or larger ownership interest by any person or group of persons acting in concert, none of whom already have more than a fifty percent (50%) ownership interest, alone or collectively.
4. 
Notwithstanding the foregoing, "franchise transfer" does not include:
a. 
Disposition or replacement of worn out or obsolete equipment, property or facilities in the normal course of operating a cable system, including the renewal or extension of equipment or property leases and contracts; or
b. 
Acquisition, transfer, sale or other disposition of leases, licenses, easements and other interests in real property in the normal course of operating a cable system and not involving the relinquishment of any right or power affecting the franchisee's ability to provide services in whole or in part; or
c. 
Pledge or mortgage of a franchisee's assets to a financial institution in return for sums necessary to construct or operate (or both) the cable system, provided that such pledge or mortgage and related agreements obligate and limit such financial institution as follows: any foreclosure or exercise of lien over the franchise or facilities shall only be by assumption of control over the entire cable system; prior to assumption of control, the institution shall notify the City that it or a designee acceptable to the City will take control of and operate the system and shall submit a plan for such operation insuring continued service and compliance with this Article and all franchise obligations during the term the institution exercises such control; and the institution shall not exercise control for longer than one (1) year unless extended by the City for good cause and shall prior to the expiration of such period (as extended) obtain the City's approval of a franchise transfer for the remaining term of the franchise or award of a new franchise to another qualified person pursuant to this Article; or
d. 
Assignment of the franchise to another entity wholly owned by the franchisee or the owners of the franchisee, provided an owner of the franchisee has guaranteed its obligations under the franchise agreement and the assignment does not affect such guaranty and the franchisee and guarantor(s) provide signed written notice of such assignment at least thirty (30) days in advance which demonstrates the conditions of this exception have been satisfied.
FRANCHISEE
A person that has been granted a franchise by the City in accordance with this Article.
GROSS REVENUES
Any and all cash, credits, property or other consideration of any kind or nature, received directly or indirectly, by a franchisee or its affiliates or any person, arising from, attributable to or in any way derived from the operation of a cable system to provide cable services, including the studios and other facilities associated therewith, within the City. "Gross revenues" include, by way of illustration and not limitation, monthly fees charged subscribers for any basic, optional, premium, per-channel, per-program or other service; installation, disconnection, reconnection and change-in-service fees; leased channel fees; late fees and processing fees; fees or payments received from programmers for carriage of programming on the system (which does not include contributions to joint marketing efforts); revenues from rentals or sales of converters or other equipment; studio rental and production fees; advertising revenues; revenues from program guides; and revenues from home shopping and bank-at-home channels. "Gross revenues" shall not include any franchise fees hereunder or any taxes on services furnished by a franchisee or other person which are imposed directly on any subscriber or user by the United States, the State, the City or other governmental unit and which are collected by a franchisee or other person on behalf of said governmental unit. "Gross revenues" shall not include revenues of another person to the extent already included in the "gross revenues" of one (1) person hereunder or any proceeds from the sale or exchange of the system. "Gross revenues" shall not include revenues for goods and services which are not provided over the system, even if such goods and services are ordered using the system. In the event a person receives revenues for operations within and without the City of which no specific portion can be attributed to operations in the City, "gross revenues" with respect to such revenues shall mean the portion thereof derived by multiplying such revenues by a fraction, the numerator of which is the number of subscribers in the City and the denominator of which is the total number of subscribers in the area generating such revenues. Franchise fees are based on "gross revenues" as provided in Section 640.110. Gross revenues shall only include revenues to the extent franchise fees thereon can legally be passed on to the subscribers.
NORMAL BUSINESS HOURS
8:00 A.M. to 5:00 P.M. Monday through Friday.
NORMAL OPERATING CONDITIONS
Those service conditions that are within the control of a franchisee. Conditions that are not within the control of a franchisee include, but are not limited to, natural disasters, civil disturbances, vandalism, public works projects of which advance notice is not provided, power outages in excess of two (2) hours in length, telephone network outages and severe or unusual weather conditions. Conditions that are within the control of a franchisee include, but are not limited to, special promotions, rate increases, regular peak or seasonal demand periods, maintenance or upgrade of the cable system and power outages of two (2) hours or less in length.
PERSON
An individual, partnership, limited liability corporation or partnership, association, joint stock company, trust, organization, corporation or other entity or any lawful successor thereto or transferee thereof, but such term does not include the City.
PUBLIC RIGHTS-OF-WAY
The surface, the air space above the surface and the area below the surface of any public street, highway, lane, path, alley, sidewalk, boulevard, drive, bridge, tunnel, park, parkway, waterway, easement or similar property in which the City now or hereafter holds any property interest, which, consistent with the purposes for which it was dedicated, may be used for the purpose of installing and maintaining a cable system. No reference herein, or in any franchise agreement, to a "public right-of-way" shall be deemed to be a representation or guarantee by the City that its interest or other right to control the use of such property is sufficient to permit its use for such purposes and a franchisee shall be deemed to gain only those rights to use as are properly in the City and as the City may have the undisputed right and power to give.
RFP
Stands for request for proposal.
SALE
Any sale, exchange or barter transaction.
SERVICE INTERRUPTION
The loss of picture or sound on one (1) or more cable channels.
SUBSCRIBER
Any person who legally receives any cable service delivered over a cable system and the City in its capacity as a recipient of such service.
USER
A person utilizing part or all of a cable system for purposes of producing or transmitting video programming or other programming services as contrasted with the receipt thereof in the capacity of a subscriber.

Section 640.040 Grant of Franchise.

[R.O. 2008 §12-18; Ord. No. 1740 §3, 9-26-1995; Ord. No. 1810 §1, 8-12-1996]
A. 
Grant Of Franchise. The City may grant one (1) or more cable television franchises containing such provisions as are reasonably necessary to protect the public interest and each such franchise shall be awarded in accordance with and subject to the provisions of this Article. This Article may be amended from time to time and in no event shall this Article be considered a contract between the City and a franchisee such that the City would be prohibited from amending any provision hereof; provided, no such amendment shall in any way impair any contract right or increase obligations of a franchisee under an outstanding and effective franchise except in the lawful exercise of the City's Police power.
B. 
Franchise Required.
1. 
No person may construct, operate or maintain a cable system or provide cable service over a cable system within the City without a franchise granted by the City authorizing such activity. No person may be granted a franchise without having entered into a franchise agreement with the City pursuant to this Article. For the purpose of this provision, the operation of part or all of a cable system within the City means the use or occupancy by facilities of public right-of-way within the City whether or not any subscriber within the City is served. A system shall be deemed as using or occupying public rights-of-way even though such use or occupancy is solely by reason of use of distribution facilities furnished by a telephone or other company pursuant to tariff or contract. A system shall not be deemed as operating within the City even though service is offered or rendered to one (1) or more subscribers within the City, if no public right-of-way is used or occupied. The location within the City of a microwave or similar relay, interconnection or program origination facility not involving the use or occupancy of public rights-of-way shall not be deemed operation within the City. In all respects, franchise agreements shall be issued so as to provide equal protection under the law and to prevent unlawful disparate treatment of persons which operate or construct cable systems or provide cable services over a cable system.
2. 
To the extent a common carrier (or any other person) is providing video programming to subscribers using radio communications, such common carrier (or other person) must obtain a franchise as required pursuant to this Article but shall not be subject to requirements imposed by the Cable Act through this Article. To the extent a common carrier is providing transmission of video programming on a common carrier basis, such common carrier must obtain a franchise as required pursuant to this Chapter but shall not be subject to requirements imposed by the Cable Act through this Article (but this Section shall not affect the treatment of a facility of a common carrier as a cable system). To the extent a common carrier (or any other person) is providing video programming by means of an open video system pursuant to certification approved by the FCC, such common carrier (or other person) need not obtain a franchise pursuant to this Article but shall be subject to requirements imposed by the Cable Act through this Article as permitted by Federal law and shall pay to the City fees on gross revenues for the provision of cable service equal to and in lieu of the franchise fee imposed hereunder on cable operators in accordance with the provisions of this Article. To the extent that a common carrier is providing video programming to its subscribers in a manner other than that described above in this Subsection, such common carrier must obtain a franchise as required pursuant to this Chapter and shall be subject to requirements imposed by the Cable Act through this Article.
C. 
Length Of Franchise. No franchise shall initially be granted for a period of more than twenty (20) years or less than four (4) years, except that a franchisee may apply for renewal or extension pursuant to this Article.
D. 
Franchise Characteristics.
1. 
A franchise authorizes use of public rights-of-way for installing, operating and maintaining cables, wires, lines, optical fiber, underground conduit and other devices necessary and appurtenant to the operation of a cable system to provide cable service within a franchise area, but does not expressly or implicitly authorize a franchisee to provide service to or install a cable system on private property without owner consent through eminent domain or otherwise (except for use of compatible easements pursuant to and consistent with Section 621 of the Cable Act, 47 U.S.C. Section 541(a)(2)) or to use publicly or privately owned poles, ducts or conduits without a separate agreement with the owners.
2. 
A franchise shall not mean or include any franchise, license or permit for the privilege of transacting and carrying on a business within the City as generally required by the ordinances and laws of the City other than this Cable Communications Regulatory Code or for attaching devices to poles or other structures, whether owned by the City or other person or for excavating or performing other work in or along public rights-of-way. A franchise shall not confer any authority to provide telecommunications services or any other communications services besides cable services. A franchise shall not confer any implicit rights other than those mandated by Federal, State or local law.
3. 
A franchise is non-exclusive and will not explicitly or implicitly: preclude the issuance of other franchises to operate cable systems within the City; affect the City's right to authorize use of public rights-of-way by other persons to operate cable systems or for other purposes as it determines appropriate; or affect the City's right to itself construct, operate or maintain a cable system, with or without a franchise.
4. 
Once a franchise agreement has been accepted and executed by the City and a franchisee, such franchise agreement shall constitute a valid and enforceable contract between the franchisee and the City and the terms, conditions and provisions of such franchise agreement, subject to this Article and all other duly enacted and applicable laws, shall define the rights and obligations of the franchisee and the City relating to the franchise.
5. 
All privileges prescribed by a franchise shall be subordinate to any prior lawful occupancy of the public rights-of-way and the City reserves the right to reasonably designate where a franchisee's facilities are to be placed within the public rights-of-way through its generally applicable permit procedures without materially adding to the obligations of the franchisee.
6. 
A franchise shall be a privilege that is in the public trust and personal to the original franchisee. No franchise transfer shall occur without the prior written consent of the City upon application made by the franchisee pursuant to this Article and the franchise agreement, which consent shall not be unreasonably withheld and any purported franchise transfer made without application and prior written consent shall be void and shall be cause for the City to revoke the franchise agreement.
E. 
Franchisee Subject To Other Laws, Police Power.
1. 
A franchisee shall at all times be subject to and shall comply with all applicable Federal, State and local laws, including this Article. A franchisee shall at all times be subject to all lawful exercise of the Police power of the City including, but not limited to, all rights the City may have under 47 U.S.C. Section 552, all powers regarding zoning, supervision of construction, assurance of equal employment opportunities, control of public rights-of-way and consumer protection.
2. 
No course of dealing between a franchisee and the City, or any delay on the part of the City in exercising any rights hereunder, shall operate as a waiver of any such rights of the City or acquiescence in the actions of a franchisee in contravention of such rights except to the extent expressly waived in writing or expressly provided for in a franchise agreement.
3. 
The City shall have full authority to regulate cable systems, franchisees and franchises as may now or hereafter be lawfully permissible. Except where rights are expressly waived by a franchise agreement, they are reserved, whether or not expressly enumerated.
F. 
Interpretation Of Franchise Terms.
1. 
In the event of a conflict between this Article and a franchise agreement, the provisions of the franchise agreement control except where the conflict arises from the lawful exercise of the City's Police power.
2. 
The provisions of this Article and a franchise agreement will be liberally construed in accordance with generally accepted rules of contract construction and to promote the public interest.
G. 
Operation Of A Cable System Without A Franchise. Any person who occupies public rights-of-way for the purpose of operating or constructing a cable system or provides cable service over a cable system and who does not hold a valid franchise from the City shall be subject to all requirements of this Article including, but not limited to, its provisions regarding construction and technical standards and franchise fees. In its discretion, the City at any time may, by ordinance: require such person to enter into a franchise agreement within thirty (30) days of receipt of a written notice to such person from the City that a franchise agreement is required; require such person to remove its property and restore the affected area to a condition satisfactory to the City within such time period; grant a revocable permit to operate for a period not to exceed two (2) years provided such period begins on the expiration date of a franchise previously issued to such person; direct municipal personnel to remove the property and restore the affected area to a condition satisfactory to the City and charge the person the costs therefor, including by placing a lien on the person's property as provided in connection with abating nuisances; or take any other action it is entitled to take under applicable law. In no event shall a franchise be created unless it is issued by ordinance of the City pursuant to this Article and subject to a written franchise agreement.
H. 
Acts At Franchisee's Expense. Any act that a franchisee is or may be required to perform under this Article, a franchise agreement or applicable law shall be performed at the franchisee's expense, without reimbursement by the City, unless expressly provided to the contrary in this Article, the franchise agreement or applicable law.
I. 
Eminent Domain. Nothing herein shall be deemed or construed to impair or affect, in any way or to any extent, the City's power of eminent domain.
J. 
Exclusive Contracts And Anti-Competitive Acts Prohibited.
1. 
No franchisee or other multi-channel video programming distributor shall enter into or enforce an exclusive contract for the provision of cable service or other multi-channel video programming with any person or demand the exclusive right to serve a person or location as a condition of extending service to that or any other person or location.
2. 
No franchisee or other multi-channel video programming distributor shall engage in acts that have the purpose or effect of limiting competition for the provision of cable service or services similar to cable service in the City, except for such actions as are expressly authorized by law.

Section 640.050 Applications For Grant, Renewal, Modification or Transfer of Franchises.

[R.O. 2008 §12-19; Ord. No. 1740 §4, 9-26-1995; Ord. No. 1810 §1, 8-12-1996; Ord. No. 3038 §1(d — h), 2-14-2005]
A. 
Written Application.
1. 
A written application shall be filed with the City Clerk for: grant of an initial franchise; renewal of a franchise under 47 U.S.C. Section 546(a) — (g) or Section 546(h); modification of a franchise agreement; or franchise transfer. An applicant shall demonstrate in its application compliance with all requirements of this Article and all applicable laws.
2. 
To be acceptable for filing, a signed original of the application shall be submitted together with ten (10) copies. The application must be accompanied by the required filing fees, conform to any applicable request for proposals and contain all required information. All applications shall include the names, addresses and telephone numbers of persons authorized to act on behalf of the applicant with respect to the application.
3. 
All filed applications shall be made available by the City Clerk for public inspection. Each filed application shall be reviewed promptly by the City for completeness.
B. 
Application For Grant Of A Franchise, Other Than A Cable Act Renewal Franchise.
1. 
Upon receipt of an application for a franchise other than a Cable Act renewal franchise, the City Council may commence a proceeding to identify the future cable-related needs and interests of the community. Upon completion of that proceeding or after receipt of the application if no such proceeding is commenced, the City Council shall either evaluate the application or issue a RFP, which shall be mailed to the applicant and made reasonably available to any other interested person. The procedures, instructions and requirements set forth in a RFP shall be followed by each applicant as if set forth and required herein. The City may seek additional information from any applicant and establish deadlines for the submission of such information. If the City issues a RFP, it shall evaluate all timely responses.
2. 
In evaluating an application for a franchise including a response to a RFP, the City shall consider, among other things, the following factors:
a. 
The extent to which the applicant substantially complied with the applicable law and the material terms of any franchises in other communities.
b. 
Whether the quality of the applicant's service under any franchises in other communities, including signal quality, response to customer complaints, billing practices and the like, was reasonable in light of the needs and interests of the communities served.
c. 
Whether there is adequate assurance that the applicant has the financial, technical and legal qualifications to provide cable service in the City.
d. 
Whether the application satisfies any minimum requirements established by the City and is otherwise reasonably likely to meet the future cable-related needs and interests of the community, taking into account the cost of meeting such needs and interests.
e. 
Whether there is adequate assurance the applicant will provide suitable public, educational and governmental access facilities.
f. 
Whether issuance of a franchise is warranted and in the public interest considering the immediate and future effect on the public rights-of-way that would be used by the cable system, including the extent to which installation or maintenance as planned would require replacement of property or involve disruption of property, public services or use of the public rights-of-way.
g. 
Whether the applicant or an affiliate of the applicant owns or controls any other cable system in the City or whether grant of the application may eliminate or reduce competition in the delivery of cable service in the City.
3. 
If the City Council finds that it is in the public interest to issue a franchise considering the factors set forth above, the City shall prepare a final written franchise agreement under this Article that incorporates, as appropriate, the commitments made by the applicant and establish a deadline for the applicant to sign it and submit it for approval. If the applicant signs the franchise agreement and timely submits it for approval, the City shall issue a franchise by ordinance adopted no less than thirty (30) days after the filing of the original application.
4. 
If the City Council denies a franchise, it will issue a written decision explaining why the franchise was denied.
5. 
Prior to deciding whether or not to issue a franchise, the City Council shall hold a public hearing; however, the City may reject without hearing any application that is incomplete or fails to respond fully to a RFP.
6. 
This Article is not intended and shall not be interpreted to grant standing to challenge the issuance of a franchise to another person or to limit such standing.
C. 
Application For Grant Of A Cable Act Franchise Renewal. Applications for franchise renewal under the Cable Act shall be received and reviewed in a manner consistent with Section 626 of the Cable Act, 47 U.S.C. Section 546. If neither a franchisee nor the City activates in a timely manner, or can activate, the renewal process set forth in 47 U.S.C. Section 546(a) — (g) (including, for example, if the provisions are repealed) and except as to applications submitted pursuant to 47 U.S.C. Section 546(h), the provisions of Subsection (B) of this Section shall apply and a renewal request shall be evaluated using the same criteria as any other request for a franchise. The following requirements shall apply to renewal requests properly submitted pursuant to the Cable Act:
1. 
Renewal request.
a. 
If the provisions of 47 U.S.C. Section 546(a) — (g) are properly invoked, the City Council shall, in accordance with the time limits of the Cable Act, commence and complete a proceeding to review the applicant's performance under the franchise during the then current franchise term and to identify future cable-related community needs and interests. Upon completion of the proceeding, the City Council may issue a RFP. The City Council or its designee shall establish deadlines and procedures for responding to the RFP, may seek additional information from the applicant and shall establish deadlines for the submission of such additional information. Alternatively, an applicant can submit a proposal for renewal on its own initiative.
b. 
Following receipt of renewal proposals (and such additional information as may be provided in response to requests), the City Council will provide prompt public notice of such proposals and thereafter either determine that the franchise should be renewed or make a preliminary assessment that the franchise should not be renewed. This determination shall be made in accordance with the time limits established by the Cable Act, including sufficient time to comply with the following procedures.
c. 
If the City Council preliminarily determines that the franchise should not be renewed, which determination can be made by resolution, and the applicant that submitted the renewal proposal notifies the City Clerk in writing within twenty (20) days after receipt of the preliminary determination that it wishes to pursue any rights to an administrative proceeding it has under the Cable Act, then, if required, the City Council shall commence an administrative proceeding after providing prompt public notice thereof in accordance with the Cable Act. The City may also commence such a proceeding on its own initiative if it so chooses.
d. 
If the City Council decides to grant renewal, which decision shall be made by resolution, the City shall prepare a final written franchise agreement that incorporates, as appropriate, the commitments made by the applicant in the renewal proposal and establish a deadline for the applicant to sign it and submit it for approval. If the applicant signs the franchise agreement and timely submits it for approval, the City shall issue a franchise by ordinance. If the franchise agreement is not so accepted and approved within the time limits established by 47 U.S.C. Section 546(c)(1) and the City, renewal shall thereupon be deemed preliminarily denied and if the applicant notifies the City Clerk in writing within twenty (20) days after the expiration of the time limit established by 47 U.S.C. Section 546(c)(1) that it wishes to pursue any rights to an administrative proceeding it has under the Cable Act, then, if required, the City Council shall commence an administrative proceeding after providing prompt public notice thereof in accordance with the Cable Act. The City may also commence such a proceeding on its own initiative if it so chooses.
2. 
If an administrative proceeding is commenced pursuant to 47 U.S.C. Section 546(c), the applicant's renewal proposal shall be evaluated considering such matters as may be considered consistent with Federal law. The following procedures shall apply:
a. 
The City Council shall, by resolution, appoint an administrative hearing officer or officers (referred to hereafter as "hearing officer"). The City Council may appoint itself or one (1) or more of its members as hearing officer or any other qualified person consistent with the Cable Act and other applicable law.
b. 
The hearing officer shall establish a schedule for proceeding which allows for written discovery (requests for admissions, production of documents and interrogatory responses), production of evidence and subpoenaing and cross-examination of witnesses. Depositions shall not be permitted unless the party requesting the deposition shows that written discovery and hearing subpoenas will not provide it an adequate opportunity to require the production of evidence necessary to present its case. The hearing officer shall have the authority to require the production of evidence as the interests of justice may require, including to require the production of evidence by the applicant that submitted the renewal proposal and any affiliate of such applicant. The hearing officer shall not prohibit discovery on the ground that evidence sought is proprietary or involves business secrets, but rather shall issue protective orders which allow reasonable and necessary discovery without making such information available to competitors. Any order of the hearing officer may be enforced by imposing appropriate sanctions in the administrative hearing or by action of the City Council.
c. 
The hearing officer may conduct a prehearing conference and establish appropriate prehearing orders. The City and the applicant shall be the only parties. The City may have special counsel to represent its interests at the hearing so that the City Attorney may advise the City Council as it makes its decision.
d. 
The hearing officer may require the City and the applicant to submit prepared written testimony prior to the hearing. Unless the parties agree otherwise, the applicant shall present evidence first (1st), the City shall present evidence second (2nd) and the applicant shall be allowed the opportunity to present rebuttal evidence. Any reports or the transcript or summary of any proceedings conducted pursuant to 47 U.S.C. Section 546(a) shall for purposes of the administrative hearing be regarded no differently than any other evidence. The City and the applicant must be afforded full procedural protection regarding evidence related to these proceedings, including the right to refute any evidence introduced in these proceedings or sought to be introduced by the other party. Both shall have the opportunity to submit additional evidence related to issues raised in the proceeding conducted pursuant to 47 U.S.C. Section 546(a).
e. 
There shall be a transcribed proceeding during which each party will be allowed to present testimony (live or written if so required) and cross-examine the witnesses of the other party.
f. 
Following completion of any hearing, the hearing officer shall require the parties to submit proposed findings of fact with respect to the matters that the City Council is entitled to consider in determining whether renewal ought to be granted. Based on the record of the hearing, the hearing officer shall then prepare written findings with respect to those matters and submit those findings, including a decision and the reasons therefor, to the City Council and to the parties (unless the hearing officer is the City Council, in which case the written findings shall constitute the final decision of the City).
g. 
If the hearing officer is not the City Council, the parties shall have thirty (30) days from the date the findings are submitted to the City Council to file exceptions to those findings. The City Council shall thereafter issue a written decision granting or denying the application for renewal, consistent with the requirements of the Cable Act, based on the record of such proceeding, stating the reason for the decision. A copy of the final decision of the City Council shall be provided to the parties.
h. 
The proceeding shall be conducted with due speed. Any decision to renew a franchise shall be made by ordinance enacted no less than thirty (30) days after the filing of the application and subsequent to preparation of a written franchise agreement consistent with the decision by the City and signature thereof by the applicant.
i. 
In conducting the proceeding and except as inconsistent with the foregoing, the hearing officer will follow the Missouri Administrative Procedures Act, as amended. The hearing officer may request that the City Council adopt additional reasonable and necessary procedures and requirements by resolution.
3. 
This Section does not prohibit any franchisee from submitting or the City from considering an informal renewal application pursuant to 47 U.S.C. Section 546(h), which application may be granted or denied in accordance with the provisions of 47 U.S.C. Section 546(h). A franchisee's written request to commence informal renewal proceedings pursuant to 47 U.S.C. 546(h) shall qualify as an informal renewal application and franchisee shall only be required to provide the information itemized in Section 640.050(D) to the extent specifically requested by the City, unless the formal renewal process is subsequently invoked. If such an informal renewal application is granted, including during the course of formal renewal proceedings, then the steps specified in Subsections (C)(1) and (C)(2) of this Section need not be taken, notwithstanding the provisions of those Subsections. However, the City will provide the public with adequate notice before making a decision on such an application and will make any decision to renew by ordinance enacted no less than thirty (30) days after the filing of the application and subsequent to the preparation of a written franchise agreement by the City and signature thereof by the applicant.
4. 
The provisions of this Article shall be read and applied so that they are consistent with Section 626 of the Cable Act, 47 U.S.C. Section 546, as amended.
D. 
Contents Of Franchise And Renewal Applications. A RFP for the grant of a franchise, including for a franchise renewal, shall require and any application submitted shall contain, at a minimum, the following information:
1. 
Name and address of the applicant and identification of the ownership and control of the applicant including: the names and addresses of all persons with more than a ten percent (10%) ownership interest in the applicant and all persons in control of the applicant and/or the operations or system of the applicant; and any other business affiliation and cable system ownership interest of each named person.
2. 
A demonstration of the applicant's technical ability to construct and/or operate the proposed or existing cable system, including identification of key personnel and their cable television experience.
3. 
A demonstration of the applicant's legal qualifications to construct and/or operate the proposed or existing cable system including, but not limited to, a demonstration that the applicant meets the following criteria:
a. 
The applicant has not had any cable television franchise validly revoked by any franchising authority within three (3) years preceding the submission of the application. If any revocation action is pending, it must be identified and explained.
b. 
The applicant has the necessary authority under Missouri law to operate a cable system.
c. 
The applicant has authority to hold the franchise as a matter of Federal law. An applicant must have, or show that it is qualified to obtain, any necessary Federal franchises or waivers required to operate the proposed or existing cable system.
d. 
The applicant and its key personnel have not, at any time during the ten (10) years preceding the submission of the application, been convicted of any criminal act or omission or civil violation of such character that the applicant cannot be relied upon to comply substantially with its lawful obligations under applicable law, including obligations under consumer protection laws and laws prohibiting anti-competitive acts, fraud, racketeering or other similar conduct. These criteria can be met by submission of a statement that there are no convictions or by submission of a list reflecting that all convictions are of a minor nature.
e. 
The applicant has not filed materially misleading information in its application or intentionally withheld information that the applicant lawfully is required to provide.
f. 
No elected official or employee of the City holds a controlling interest in the applicant or an affiliate of the applicant or has received any promise of such an interest or has received any gratuity, commission, percentage, brokerage or contingency fee or other compensation for issuance or renewal of a franchise or promise thereof.
4. 
A statement prepared by a certified public accountant regarding the applicant's financial ability to complete any proposed construction and to operate the proposed or existing cable system.
5. 
A description of the applicant's prior experience in cable system ownership, construction and operation and identification of communities in which the applicant or any of its affiliates have, or have had, a cable franchise or franchise or any interest therein.
6. 
Identification of the area of the City to be served by the proposed cable system, including a description of the proposed franchise area's boundaries.
7. 
A detailed description of existing and any proposed physical facilities, including channel capacity, technical design, performance characteristics, headend and access facilities.
8. 
A description of any promised construction including an estimate of plant mileage and its location; the proposed construction schedule.
9. 
A description, where appropriate, of how services will be converted from existing facilities to new facilities.
10. 
A demonstration of how the applicant will reasonably meet the future cable-related needs and interests of the community, including descriptions of how the applicant will meet or disagrees with the needs described in any recent community needs assessment conducted by or for the City.
11. 
A description of public, educational and governmental access facilities to be provided.
12. 
If the applicant proposes to provide cable service to an area already served by an existing franchisee, the identification of the area where the over build would occur, the potential subscriber density in the area that would encompass the over build and the ability of the public rights-of-way and other property that would be used by the applicant to accommodate an additional system.
13. 
Any other information as may be reasonably necessary to demonstrate compliance with the requirements of this Article.
14. 
Information that the City may reasonably request of the applicant that is relevant to the City's consideration of the application.
15. 
An affidavit or declaration of the applicant or authorized representative certifying the truth, accuracy and completeness of the information in the application, acknowledging the enforceability of application commitments upon acceptance through the granting of a franchise and certifying that the application is consistent with all Federal, State and local laws.
16. 
Applicants for renewals may refer to prior applications as long as they submit such updated information as required to make the application current.
E. 
Application For Modification Of A Franchise.
1. 
An application for modification of a franchise agreement shall include, at minimum, the following information:
a. 
The specific modification requested;
b. 
The justification for the requested modification, including the impact of the requested modification on subscribers and others and the financial impact on the applicant if the modification is approved or disapproved, demonstrated through, among other things, submission of financial pro forma covering the period of time in which the modification would be in effect if approved, including a statement of projected gross revenues and income;
c. 
A statement whether the modification is sought pursuant to Section 625 of the Cable Act, 47 U.S.C. Section 545 and, if so, a demonstration that the requested modification meets the standards set forth in 47 U.S.C. Section 545;
d. 
Any other information that the applicant believes is necessary for the City to make an informed determination on the application for modification; and
e. 
An affidavit or declaration of the applicant or authorized officer certifying the truth, accuracy and completeness of the information in the application, acknowledging the enforceability of application commitments upon acceptance through the granting of the modification and certifying that the application is consistent with all Federal, State and local laws.
2. 
If the request for modification is subject to 47 U.S.C. Section 545, the City Council will conduct its review and make its decision in conformity with that Statute. If the request for modification is not subject to 47 U.S.C. Section 545, the City Council will conduct its review and make its decision by ordinance enacted no less than thirty (30) days after the application is filed, subsequent to preparation of a modified written franchise agreement by the City and signature thereof by the applicant.
3. 
An extension of a franchise term by less than four (4) years shall constitute a modification. An extension of a franchise term by four (4) years or more shall be processed through formal or informal renewal procedures.
F. 
Franchise Transfers.
1. 
City approval required. No franchise transfer shall occur without prior written application to and written approval of the City Council by ordinance enacted after a public hearing and only then upon such terms and conditions as the City Council reasonably deems necessary and proper. Approval shall not be unreasonably withheld. Any purported franchise transfer made without such prior approval shall be void and shall be cause for the City to revoke the franchise agreement. A grant of a franchise involves personal credit, trust and confidence in the franchisee and franchise transfer without the prior written approval of the City Council shall be considered to impair the City's assurance of due performance. The granting of approval for a franchise transfer in one (1) instance shall not render unnecessary approval of any subsequent franchise transfer.
2. 
Application.
a. 
The franchisee shall promptly notify the City Clerk in writing of any proposed franchise transfer. If any franchise transfer should take place without prior notice to the City, the franchisee will promptly notify the City Clerk in writing that such a franchise transfer has occurred.
b. 
At least one hundred twenty (120) calendar days prior to the contemplated effective date of a franchise transfer, the franchisee shall submit to the City Clerk an application for approval of the franchise transfer. Such an application shall provide information on the proposed transaction, including details on the legal, financial, technical and other qualifications of the transferee, any waivers required from the City under applicable law and on the potential impact of the franchise transfer on subscriber rates and service. At a minimum, unless waived by the City, the following information must be included in the application:
(1) 
All information and forms required under Federal law;
(2) 
All information described in Subsections (D)(15, 9, 11, 1315) of this Section, regarding the transferee instead of the applicant and regarding the franchise transfer rather than initial or renewal franchise;
(3) 
A description of any business relationships or transactions of any kind, past, present or anticipated, between the franchisee or its owners or affiliates and the transferee or its owners or affiliates, other than the proposed transaction;
(4) 
Any contracts, financing documents or other documents that relate to the proposed transaction and all documents, schedules, exhibits or the like referred to therein;
(5) 
A description of the sources and amounts of the funds to be used in the proposed transaction, indicating how the debt-equity ratio of the system will change in the course of the transaction; what entities will be liable for repayment of any debt incurred; what interest, payment schedule and other terms or conditions will apply to any debt financing; any debt coverages or financial ratios any potential transferees will be required to maintain over the franchise term if the proposed transaction is approved; what financial resources would be available to the system under the control of the proposed transferee;
(6) 
Any other information necessary to provide a complete and accurate understanding of the financial position of the system before and after the proposed franchise transfer, including, but not limited to, projected income statements and cash flow statements, including capital investments, for at least five (5) years after the proposed franchise transfer, assuming the franchise transfer is approved, stating specifically what assumptions are being made with respect to any rebuild or upgrade of the system;
(7) 
A statement that the franchisee is in compliance with its franchise obligations over the term of the franchise or specific descriptions of any non-compliance of which the franchisee or any potential transferee is aware.
c. 
For the purposes of determining whether it shall consent to a franchise transfer, the City Council and its agents may inquire into the legal, technical and financial qualifications of the prospective transferee as may be allowed by law and such other matters as the City Council may deem necessary to determine whether the franchise transfer is in the public interest and should be approved or denied. The franchisee and any prospective transferees shall assist the City Council in any such inquiry and if they fail to reasonably cooperate, the request for approval of franchise transfer may be denied. Proprietary information shall be protected from disclosure to competitors to the extent permitted by law.
3. 
Determination by City.
a. 
In making a determination as to whether to grant, deny or grant subject to conditions an application for approval of a franchise transfer, the City Council shall consider the legal, financial and technical qualifications of the transferee to operate the system; whether any required waivers under applicable law are in the best interests of the public; whether the franchisee is in compliance with its franchise agreement and this Section and, if not, the proposed transferee's commitment to cure such non-compliance; and whether operation by the transferee on approval of the franchise transfer would adversely affect the City's interest under this Section, the franchise agreement, other applicable law or the public interest or make it less likely that the future cable-related needs and interests of the community would be satisfied.
b. 
The City shall make its determination in accordance with any time limits imposed by Federal law, including under 47 U.S.C. Section 537(e).
c. 
Any purported franchise transfer made without the City Council's prior written approval shall be void and shall make a franchise subject to revocation at the City Council's sole discretion and make any other remedies available to the City under the franchise or other applicable law. Acceptance of filing of an application for approval of a franchise transfer later than one hundred twenty (120) days before the purported effective date of the franchise transfer shall not validate the transaction or excuse the late filing and in such an instance the City shall retain the right to make its decision regarding such a franchise transfer within one hundred twenty (120) days unless action is required sooner by law.
4. 
Transferee's agreement. No application for approval of a franchise transfer shall be granted unless and until the proposed transferee submits an agreement in writing that it will abide by and accept all terms of this Article and the franchise agreement and that it will assume the obligations and liabilities, known and unknown, of the previous franchisee under this Article and the franchise agreement for all purposes, including renewal, unless the City Council approves a modification of the franchise agreement pursuant to Section 640.050(E) in conjunction with its approval of the franchise transfer, in which case the proposed transferee's agreement shall refer to the franchise agreement as so modified.
5. 
Approval does not constitute waiver. Approval by the City Council of a franchise transfer does not constitute a waiver or release of any of the rights of the City under this Article or a franchise agreement, whether arising before or after the date of the franchise transfer; however, upon approval of a franchise transfer, the former franchisee shall be released from prospective liability under the franchise.
G. 
Filing Fees And Deposits. To be acceptable for filing, an application under this Section shall be accompanied by a filing fee in the following amounts to cover the City's internal administrative costs incidental to the franchising process:
1. 
For an initial franchise: $1,000.00.
2. 
For renewal of a franchise under 47 U.S.C. Section 546(a) — (g): $1,000.00.
3. 
For renewal of a franchise under 47 U.S.C. Section 546(h): $500.00.
4. 
For modification of a franchise agreement: $500.00.
5. 
For approval of a franchise transfer: $500.00.
H. 
Public Proceedings. An applicant shall be notified of any public proceedings held in connection with the evaluation of its application and shall be given an opportunity to be heard thereat. Notice of all public proceedings of the City shall be published and posted in accordance with its usual practices.
I. 
Intergovernmental Cooperation. By resolution of the City Council, any part or all of the process established by this Section 640.050 may be conducted in concert with other political subdivisions served or to be served by the applicant.

Section 640.060 Construction Provisions.

[R.O. 2008 §12-20; Ord. No. 1740 §5, 9-26-1995; Ord. No. 1810 §1, 8-12-1996; Ord. No. 3038 §1(i — l), 2-14-2005]
A. 
System Construction Schedule. Every franchise agreement shall specify the construction schedule that will apply to any required construction, upgrade or rebuild of the cable system. Failure on the part of a franchisee to commence and diligently pursue such requirements and complete the matters set forth in its franchise agreement or to comply with the system design and construction plan submitted to the City, including by providing the equipment specified (or its equivalent) and by following generally accepted installation practices (except insofar as those plans or practices, if carried out, would result in construction of a system which could not meet requirements of Federal, State or local law; and except for such minor modifications as are typical in the industry), shall be grounds for revocation of its franchise under and pursuant to the terms of Section 640.040(E); provided however, that the City Council in its discretion may extend the time for the completion of construction and installation for additional periods by resolution in the event a franchisee, acting in good faith, experiences delays by reason of circumstances beyond its control and requests such an extension in writing. A franchisee's failure to comply with provisions of the construction plan approved by the City Council shall also be grounds for imposition of penalties pursuant to Section 640.040(H).
B. 
Construction Procedures.
1. 
A franchisee shall construct, operate and maintain the cable system subject to the supervision of all of the authorities of the City who have jurisdiction in such matters and in compliance with all laws, ordinances, departmental rules and regulations affecting the system.
2. 
The system and all parts thereof, shall be subject to periodic inspection by the City.
3. 
No construction, reconstruction or relocation of the system or any part thereof within the public rights-of-way shall be commenced until written permits have been obtained from the proper City Officials. In any permit so issued, such officials may impose such conditions and regulations as a condition of the granting of the permit as are reasonably necessary for the purpose of protecting any structures or facilities in the public rights-of-way and for the proper restoration of such public rights-of-way and structures and facilities and for the protection of the public and the continuity of pedestrian and vehicular traffic.
4. 
The City Council may by resolution or ordinance, from time to time, issue such reasonable rules and regulations concerning the construction, operation and maintenance of the system as are consistent with the provisions of this Article and franchises issued pursuant to this Article.
C. 
Construction Standards.
1. 
The construction, operation, maintenance and repair of a cable system shall be in accordance with all applicable Sections of the Occupational Safety and Health Act of 1970, the National Electrical Safety Code, the National Electric Code, National Cable Television Association Standards of Good Engineering Practices; Obstruction Marking and Lighting, Federal Aviation Administration; Construction, Marking and Lighting of Antenna Structures, Federal Communications Commission Rules Part 17; AT&T Manual of Construction Procedures (Blue Book); franchisee's construction procedures manual; other Federal, State or local laws and regulations that may apply to the operation, construction, maintenance or repair of a cable system, including, without limitation, local zoning and construction codes and laws and accepted industry practices, all as hereafter may be amended or adopted. In the event of a conflict among codes and standards, the most stringent code or standard shall apply (except insofar as that code or standard, if followed, would result in a system that could not meet requirements of Federal, State or local law). The City may adopt additional reasonable standards as required to ensure that work continues to be performed in an orderly and workmanlike manner or to reflect changes in standards which may occur over a franchise term.
2. 
All wires, cable lines and other transmission lines, equipment and structures shall be installed and located to cause minimum interference with the rights and convenience of property owners, including the City.
3. 
All electronic equipment shall be of good and durable quality.
4. 
Without limiting the foregoing, antennae and their supporting structures (towers) shall be designed in accordance with the uniform Building Code and Electronics Industry Association RS-22A Specifications, as amended, and shall be painted, lighted, erected and maintained in accordance with all applicable rules and regulations of the Federal Aviation Administration and all other applicable Federal, State or local laws, codes and regulations, all as hereafter may be amended or adopted.
5. 
Without limiting the foregoing, all of a franchisee's plant and equipment, including, but not limited to, the antennae site, headend and distribution system, towers, house connections, structures, poles, wires, cable, coaxial cable, fiber optic cable, fixtures and apparatuses, shall be installed, located, erected, constructed, reconstructed, replaced, removed, repaired, maintained and operated in accordance with good engineering practices, performed by experienced and properly trained maintenance and construction personnel so as not to endanger any person or property or to unreasonably interfere in any manner with the public rights-of-way or legal rights of any property owner, including the City, or unnecessarily hinder or obstruct pedestrian or vehicular traffic.
6. 
All safety practices required by law shall be used during construction, maintenance and repair of a cable system. A franchisee shall install and maintain in use commonly accepted methods and devices to prevent failures and accidents that are likely to cause damage, injury or nuisance to the public.
7. 
Any and all public rights-of-way, public property or private property disturbed or damaged during the construction, repair, replacement, relocation, operation, maintenance or construction of a system shall be repaired or replaced by the franchisee within a reasonable time specified by the City.
8. 
A franchisee shall, by a reasonable time specified by the City, protect, support, temporarily disconnect, relocate or remove discrete portions of its property when required by the City by reason of traffic conditions; public safety; public right-of-way construction; public right-of-way maintenance or repair (including resurfacing or widening); change of public right-of-way grade; construction, installation or repair of sewers, drains, water pipes, power lines, signal lines, tracks or any other type of government-owned communications system, public work or improvement or any government-owned utility; public right-of-way vacation; or for any other purpose where the convenience of the City would be reasonably served thereby; provided however, that the franchisee may abandon any property in place if approved by the City in writing and, provided further, that the franchisee shall not be required to make permanent changes in its facilities to accommodate the installation of another cable system, nor should it be required to make temporary changes solely to disrupt its business or otherwise provide an unfair advantage to a competitor. No action hereunder shall be deemed a taking of the property of a franchisee and a franchisee shall not be entitled to any compensation for such action. No location of any pole or wire-holding structure of a franchisee shall be a vested interest.
9. 
If any action under the preceding paragraph is reasonably required to accommodate the construction, operation or repair of the facilities of another person that is authorized to use the public rights-of-way, a franchisee shall, after thirty (30) days' advance written notice, take action to effect the necessary changes requested. The franchisee shall be reimbursed by such other person for costs reasonably incurred in taking such action. The City Council may resolve disputes as to responsibility for costs associated with the removal, relaying or relocation of facilities as among entities authorized to install facilities in the public rights-of-way if the parties are unable to do so themselves and if the matter is not governed by a valid contract between the parties.
10. 
In the event of an emergency or where a cable system creates or is contributing to an imminent danger to health, safety or property, the City may remove, relay or relocate the pertinent parts of that cable system without prior notice. No charge shall be made by franchisee against the City for restoration and repair.
11. 
A franchisee shall, on the request of the City or any person holding a permit issued by the City, temporarily raise or lower its wires to permit the moving of buildings or oversized vehicles. The expense of such temporary removal or raising or lowering of wires shall be paid by the person requesting same and the franchisee shall have the authority to require such payment in advance, except in the case where the request is made by the City on its own behalf, in which case no such payment shall be required. The franchisee shall be given not less than forty-eight (48) hours' advance notice to arrange for such temporary wire changes unless the City Council has declared an emergency.
12. 
A franchisee shall have the authority to trim trees that overhang a public right-of-way of the City so as to prevent the branches of such trees from coming in contact with the wires and cables of the franchisee, at its own expense subject to the supervision and direction of the City. Trimming of trees on private property shall require written permission of the property owner. All cut materials shall be properly disposed.
13. 
A franchisee shall use, with the owner's permission, existing underground conduits or overhead utility facilities whenever feasible and may not erect poles in public rights-of-way without the express written permission of the City Council, which permission shall not be unreasonably withheld. Copies of agreements for use of conduits or other facilities shall be filed with the City Clerk as required by a franchise agreement or upon City request, provided proprietary information may be deleted in the filed version subject to City inspection of the deleted information at franchisee's reasonably designated premises.
14. 
Trunk, feeder and drop cable may be constructed overhead where poles exist and electric, cable television or telephone lines are overhead, but where no overhead lines exist, all trunk, feeder and drop cable shall be constructed underground. Whenever and wherever all electric lines and telephone lines are moved from overhead to underground placement, all cable system cables shall be similarly moved and the cost of movement of its cable shall be solely the obligation of the franchisee. In cases of new construction or property development where utilities are to be placed underground, on request of franchisee the developer or property owner shall give a franchisee reasonable notice of the particular date on which open trenching will be available to franchisee for installation of conduit, pedestals and/or vaults and laterals to be provided at the franchisee's expense. The franchisee shall also provide specifications as needed for trenching. Costs of trenching and easements required to bring facilities within the development shall be borne by the developer or property owner; except that if the franchisee fails to install its conduit, pedestals and/or vaults and laterals within five (5) working days of the date the trenches are available as designated in the notice given by the developer or property owner, then should the trenches be closed after the five (5) day period, the cost of new trenching is to be borne by the franchisee.
15. 
The City shall have the right to install and maintain free of charge upon any poles or within any conduit owned by a franchisee any wire and pole fixtures that do not unreasonably interfere with the cable system operations of the franchisee.
16. 
Prior to construction or rebuild of a cable system, a franchisee shall first submit to the City Council for approval a concise description of the cable system proposed to be erected or installed, including engineering drawings, if required by the City Council, together with a map and plans indicating the proposed location of all such facilities and obtain written approval from the City Council, which approval shall not be unreasonably withheld.
17. 
Any contractor or subcontractor used for work or construction, installation, operation, maintenance or repair of system equipment must be properly licensed under laws of the State and all applicable local ordinances and each contractor or subcontractor shall have the same obligations with respect to its work as a franchisee would have under the franchise agreement and applicable laws if the work were performed by the franchisee. The franchisee must ensure that contractors, subcontractors and all employees who will perform work for it are trained and experienced. The franchisee shall be responsible for ensuring that the work of contractors and subcontractors is performed consistent with the franchise and applicable law, shall be fully responsible for all acts or omissions of contractors or subcontractors, shall be responsible for promptly correcting acts or omissions by any contractor or subcontractor and shall implement a quality control program to ensure that the work is properly performed.
18. 
Upon failure of a franchisee to commence, pursue or complete any work required by law or by the provisions of this Article to be done in any street within the time prescribed and to the reasonable satisfaction of the City, the City may, at its option, after thirty (30) days' notice to franchisee, cause such work to be done and the franchisee shall pay to the City the cost thereof in the itemized amounts reported by the City to franchisee within thirty (30) days after receipt of such itemized report.
19. 
The franchisee shall make no paving cuts or curb cuts except after written permission has been given by the City, which permission shall not unreasonably be withheld.
20. 
The franchisee shall install in conduit all cable passing under any major roadway.
D. 
Area Served. A franchisee shall build and maintain its system so that within a reasonable period of time, as established by the franchise, it is able to provide service to all households desiring service located within the franchise area without any construction charges (other than standard connection charges and drop charges as indicated in Subsection (E)(2)). A franchisee must build and maintain its system so that it can extend service to households desiring service located outside the franchise area in accordance with Subsection (E)(1) through (4). Connections to commercial customers shall be governed by Subsection (E)(5).
E. 
Line Extension Requirements.
1. 
Areas outside franchise area.
a. 
For areas within the City limits but outside the franchise area, including areas annexed after the effective date of its franchise, a franchisee shall, upon request of the City Council, extend its trunk and distribution system to serve households desiring service without any construction charge (other than standard connection charges and drop charges as indicated in Subsection (E)(2)), unless the franchisee demonstrates to the City Council's satisfaction evidenced by written decision that circumstances justify a specific charge, where: the number of potential subscribers to be passed by such extension is equal to or greater than twenty-five (25) potential households per cable mile measured from the point on the system where such extension would originate.
b. 
In the event that the requirements set forth in the foregoing paragraph (a) are not met, the franchisee shall, on request of the City Council, extend its cable system based upon the following cost-sharing formula. The franchisee shall contribute an amount equal to the construction costs per mile multiplied by the length of the extension in miles, multiplied by a fraction where the numerator equals the number of potential households per cable mile at the time of the request and the denominator equals twenty-five (25). Households requesting service as of the completion of construction can be required to bear the remainder of the total construction costs on a pro rata basis.
The "construction costs" are defined as the actual turnkey cost to construct the entire extension including lines, materials, electronics, pole make-ready charges and labor, but not the cost of drops except as provided below. If the franchisee proposes to require a household requesting extension to make a contribution in aid of extension, it must:
(1) 
Notify the City Council in advance;
(2) 
Send the City Council a copy of the invoice showing the amount actually charged each household requesting extension; and
(3) 
Within thirty (30) days of completion of the extension, furnish proof of the total cost of the extension and make any appropriate refunds if the total cost is less than the amounts charged in advance of construction. At the end of each calendar year, the franchisee must calculate the amount any contributing person would have paid based on the number of persons served at that time and pay back the difference between the amount actually collected from that person and the amount which would then be owed. The franchisee shall report such calculations and refunds to the City Clerk by the end of January of the following year.
2. 
Installation of drops. Except as Federal rate regulations may otherwise require, the franchisee shall not assess any additional cost for service drops of one hundred twenty-five (125) feet or less unless the franchisee demonstrates to the City Council's satisfaction, evidenced by written decision, that circumstances justify a specific charge. Where a drop exceeds one hundred twenty-five (125) feet in length, a franchisee may charge the subscriber for the difference between franchisee's actual costs associated with installing a one hundred twenty-five (125) foot drop and the franchisee's actual cost of installing the longer drop, provided that drop length shall be the shorter of:
a. 
The actual length of installed drop; or
b. 
The shortest practicable distance to the point where the franchisee would be required to extend its distribution system.
3. 
Location of drops. Except as Federal rate regulations may otherwise require, in any area where a franchisee would be entitled to install a drop above ground, the franchisee will provide the subscriber the option to have the drop installed underground, but may charge the subscriber the difference between the actual cost of the above ground installation and the actual cost of the underground installation.
4. 
Time for extension. A franchisee must extend service to any person who requests it within seven (7) days of the request within the franchise area or where service can be provided by activating or installing a drop within one hundred twenty-five (125) feet of the existing distribution system.
5. 
Reasonable costs of connection. Because existing conditions can vary dramatically, franchisee may in its discretion require commercial customers to pay all reasonable costs of connection (including time and materials) in excess of the average cost of connection for residential services.
F. 
System Tests And Inspections.
1. 
Tests. A franchisee shall perform the following tests to demonstrate compliance with the requirements of the franchise and other performance standards established by Federal law. All tests shall be conducted in accordance with Federal rules and in accordance with the most recent edition of NCTA's "Recommended Practices for Measurements on Cable Television Systems", or if no recent edition exists, such other appropriate manual as the parties may designate.
a. 
Preconstruction quality control on cable and equipment. A franchisee shall perform preconstruction quality tests on system components. In case of passive components, this will include testing a significant sample of devices to verify compliance with manufacturer's specifications.
(1) 
All trunk and distribution cable shall be sweep-tested on the reels to verify compliance with manufacturer's specifications for frequency response and loss.
(2) 
All trunk and distribution amplifiers shall be bench-tested to verify compliance with manufacturer's specifications.
(3) 
No component shall be used in the system which fails to meet manufacturer's specifications. A franchisee shall maintain in the metropolitan St. Louis area records of all preconstruction tests, which the City may inspect during normal business hours on reasonable notice.
b. 
Acceptance tests. A franchisee shall perform acceptance tests prior to subscriber connection. The tests shall demonstrate that the system components are operating as expected. The test results shall be submitted to the City Clerk for review by the City. The franchisee shall have the obligation, without further notice from City, to take corrective action if any system components are not operating as expected. Unless the City determines test results are not adequate to demonstrate system compliance with the standards described above and objects within three (3) working days of receipt of the test results, the portion of the system covered by the tests will be deemed approved for subscriber connection.
c. 
Continuing tests.
(1) 
The franchisee shall select locations at the extremities of the system to install equipment to establish sufficient permanent test points in accordance with Federal law and sound engineering practices. The franchisee shall perform proof of performance tests at these locations at least once every six (6) months through the life of the franchise except as Federal law otherwise limits its obligation and at other times and points where complaints indicate tests are warranted. The tests shall demonstrate system compliance with technical specifications established pursuant to franchise or other applicable law. If the City requests to witness the tests, it shall be notified in writing delivered to the City Clerk at least forty-eight (48) hours in advance of any testing.
(2) 
A written report of all test results shall be filed with the City Clerk within thirty (30) days of each test. If the location fails to meet performance specifications, the franchisee, without requirement of additional notice or request from City, shall take corrective action, retest the location and advise the City of the action taken and results achieved by writing filed with the City Clerk. The City shall have the option of witnessing such follow-up tests and shall be notified in writing delivered to the City Clerk at least forty-eight (48) hours in advance of any such follow-up testing.
(3) 
At any time after commencement of service to subscribers the City may require additional tests, full or partial repeat tests, different test procedures or tests involving a specific subscriber's terminal. Requests for such additional tests will be made on the basis of complaints received or other evidence indicating an unresolved controversy or significant non-compliance and such tests will be limited to the particular matter in controversy. The City may conduct such tests independently on three (3) days' advance notice to franchisee. The City will endeavor to so arrange its requests for such special tests so as to minimize hardship or inconvenience to the franchisee and the subscriber(s).
d. 
All reports of test results shall include executive summaries.
e. 
Test procedures used in verification of the performance criteria set forth herein, if not as set forth in Section 76.609, Subpart K of the FCC rules and regulations, shall be in accordance with good engineering practice and shall be fully described in an attachment to the annual certificate filed with the City.
f. 
To the extent that the report of measurements as required above may be combined with any reports of measurements required by the FCC or other regulatory agencies, the City shall accept such combined reports, provided that all standards and measurements herein or hereafter established by the City are satisfied.
2. 
Inspections. The City may conduct inspections of the system, including to assess compliance with the construction and installation practices manuals and design plans. The franchisee shall be notified in writing of any violations found during the course of inspections. The franchisee must bring violations into compliance within thirty (30) days of the date notice of violation is given and must submit a report to the City Clerk describing the steps taken to bring itself into compliance. Inspection does not relieve the franchisee of its obligation to build in compliance with all provisions of the franchise.
G. 
Use Of Public Property.
1. 
Should the grades or boundaries of the public rights-of-way which the franchisee is authorized to use and occupy be changed at any time during the term of the franchise granted, the franchisee shall, if necessary, at its own cost and expense, relocate or change its system so as to conform with the new grades or boundaries.
2. 
Any alteration to the existing water mains, sewerage or drainage system or to any City, State or other public structures or facilities in the public rights-of-way required on account of the construction of the system in the public rights-of-way shall be made at the sole cost and expense of the franchisee. During any work of constructing, operating or maintaining of the system, the franchisee shall also, at its own cost and expense, protect any and all existing structures and facilities belonging to the City and any other person. All work performed by the franchisee pursuant to this Section shall be done in such reasonable manner prescribed by the City or other officials having jurisdiction thereover.
H. 
Interference With Public Projects. Nothing in this Article shall be in preference or hindrance to the right of the City and any board, authority, commission or public service corporation to perform or carry on any public works or public improvements of any description.
I. 
Publicizing Proposed Construction Work. Unless not possible due to emergency circumstances, franchisee shall publicize proposed construction work at least ten (10) days prior to commencement of that work by causing written notice of such construction work to be delivered to the City Clerk. In addition, unless not possible due to emergency circumstances, before entering onto any person's property, a franchisee shall contact the property owner or occupant at least one (1) day in advance. If a franchisee must enter a private building, it must have permission of the owner or occupant.
J. 
System Maintenance.
1. 
Interruptions to be minimized. A franchisee shall schedule maintenance so that activities likely to result in an interruption of service are performed during periods of minimum subscriber use of the system.
2. 
Maintenance practices. In addition to its other obligations, a franchisee shall (a) use replacement components of good and durable quality, with characteristics better or equal to replaced equipment; and (b) follow the more stringent of maintenance standards specified in the franchise agreement, cable televisions industry maintenance standards or franchisee's maintenance standards.
K. 
Continuity Of Service.
1. 
It shall be the right of all persons in a franchisee's franchise area to receive all available services from the franchisee as long as their financial and other obligations to the franchisee are satisfied and subject to reasonable construction standards and schedules and subject to availability of legal access to the location.
2. 
A franchisee shall make every reasonable effort to provide all subscribers with continuous uninterrupted service. At the City's request, a franchisee shall operate its system for a temporary period under a revocable permit granted expressly by ordinance or tacitly following the termination of its franchise or franchise transfer as necessary to maintain service to subscribers and shall cooperate with the City to assure an orderly transition from it to another franchisee or system operator (the "transition period"). The transition period shall be no longer than the reasonable period required for another franchisee to commence service and shall not be longer than two (2) years. During the transition period, the franchisee shall continue to be obligated to comply with the terms and conditions of its franchise agreement and applicable laws and regulations and will thereupon continue to receive operating revenues during such transition period.

Section 640.070 System Facilities, Equipment and Services.

[R.O. 2008 §12-21; Ord. No. 1740 §6, 9-26-1995; Ord. No. 3038 §1(m — n), 2-14-2005]
A. 
Compliance With Franchise Agreement. In addition to satisfying such requirements as may be established through the application process and incorporated in its franchise agreement including, but not limited to, those pertaining to public, educational and governmental access facilities, every franchisee shall comply with the conditions set forth in this Section, except as prohibited by Federal law.
B. 
Full Service To Municipal Buildings. A franchisee shall, on request of the City, install, at no charge, at least one (1) service outlet at all City-occupied buildings, public libraries and all primary and secondary education public and private schools within the franchise area and shall install and charge only its reasonable costs for any additional service outlets requested for such locations, so long as such additional installations will not interfere with the quality and operation of the franchisee's system or signal thereon and the quality and manner of installation of such additional outlets shall have been approved by the franchisee (which approval shall not be unreasonably withheld) and shall comply with all City, State and Federal laws and regulations. The franchisee shall provide basic cable service and expanded basic cable service to all outlets in such buildings free of charge. A franchise may specify other requirements regarding the availability of facilities for municipal use. Use of such facilities shall comply with applicable law.
C. 
Cable Channels For Commercial Use, Local Commercial Television Signals And Non-Commercial Educational Television. A franchisee shall designate channel capacity for commercial and non-commercial use by persons unaffiliated with the franchisee as required by Federal law, consistent with the principle of fairness and equal accessibility to all persons and the City to the extent they have a legitimate use for such capacity.
D. 
Technical Standards.
1. 
Any cable system within the City shall meet or exceed the technical standards set forth in 47 C.F.R. Section 76.601 et seq., and any other applicable Federal technical standards, including any such reasonable standards as hereafter may be amended or adopted by the City Council in a manner consistent with Federal law.
2. 
A franchisee shall use equipment generally used in high-quality, reliable, modern systems of similar design, including, but not limited to, back-up power supplies at the fiber nodes and headends capable of providing power to the system for a minimum of two (2) hours in the event of an electrical outage, plus adequate portable generators to cover longer outages. The obligation to provide back-up power supplies requires the franchisee to install equipment that will:
a. 
Cut in automatically on failure of commercial utility AC power;
b. 
Revert automatically to commercial power when it is restored; and
c. 
Prevent the standby power source from powering a "dead" utility line. In addition, the design and construction of a system shall include modulators, antennae, amplifiers and other electronics that permit and are capable of passing through the signal received at the headend with minimal alteration or deterioration.
E. 
Interconnection.
1. 
A franchisee shall design its system so that it may be interconnected with any or all other systems or similar communications systems in the area. Interconnection of systems may be made by direct cable connection, microwave link, satellite or other appropriate methods.
2. 
Upon receiving the directive of the City Council to interconnect, the franchisee shall immediately initiate negotiations with the other affected system or systems so that costs may be shared proportionately for both construction and operation of the interconnection link.
3. 
The City Council may in writing grant reasonable extensions of time to interconnect or rescind its request to interconnect upon its own initiative or upon petition by the franchisee to the City Council. The City Council shall rescind the request if it finds that the franchisee has negotiated in good faith and the cost of interconnection would cause an unreasonable increase in subscriber rates.
4. 
No interconnection shall take place without prior written approval of the City Council. A franchisee seeking approval for interconnection shall demonstrate that all signals to be interconnected will comply with FCC technical standards for all classes of signals and will result in no more than a low level of distortion.
5. 
The franchisee shall cooperate with any interconnection corporation, regional interconnection authority or State or Federal regulatory agency which may be established for the purpose of regulating, facilitating, financing or otherwise providing for the interconnection of communications systems beyond the boundaries of the City.
F. 
Integration Of Advancements In Technology. A franchise agreement may require a franchisee to periodically upgrade its cable system to integrate advancements in technology as may be necessary to meet the needs and interests of the community in light of the costs thereof and/or to submit periodic reports on cable technology and competition to the City Clerk.
G. 
System Design Review Process. In addition to any requirements included in a franchise agreement, at least sixty (60) days prior to the date construction of any rebuild is scheduled to commence, the franchisee shall provide the City Clerk with notice that a detailed system design and construction plan is available for review by the City at a specific office of the franchisee located in the metropolitan St. Louis area, which shall include at least the following elements but only to the extent such elements are present in the system design:
1. 
Design type, trunk and feeder design and number and location of hubs or nodes.
2. 
Distribution system — cable, fiber and equipment to be used.
3. 
Plans for standby power.
4. 
Longest amplifier cascade in system (number of amplifiers, number of miles, type of cable/fiber).
5. 
Design maps and tree trunk maps for the system. The system design will be shown on maps of industry standard scale using standard symbols and shall depict all electronic and physical features of the cable plant. The City may review the plan and, within thirty (30) days of the date the plan is made available for City review, submit comments to the franchisee. Within fifteen (15) days of receipt of the comments, the franchisee shall notify the City Clerk that a revised plan is available for review by the City at a specific office located in the metropolitan St. Louis area, either incorporating the comments or explaining why the comments were not included. The City's review does not excuse any non-performance under a franchise agreement, this Article or other applicable law.
H. 
Emergency Alert System. A franchisee shall comply with 47 U.S.C. Section 544(g) and all regulations issued pursuant thereto.

Section 640.080 Operation and Reporting Provisions.

[R.O. 2008 §12-22; Ord. No. 1740 §7, 9-26-1995; Ord. No. 1810 §1, 8-12-1996; Ord. No. 3038 §1(o), 2-14-2005]
A. 
Open Books And Records.
1. 
Subject to the provisions herein, the City shall have the right to inspect and copy at any time during normal business hours at an office of the franchisee located in the metropolitan St. Louis area all books, receipts, maps, plans, financial statements, contracts, service complaint logs, performance test results, records of requests for service, computer records, codes, programs and disks or other storage media and other like material which are reasonably necessary to monitor compliance with the terms of this Chapter, a franchise agreement or applicable law, except such records as are privileged or protected from disclosure under applicable law. The franchisee is responsible for collecting the information and producing it at the location specified above and by accepting its franchise it affirms that it can and will do so. The franchisee will make suitable copying equipment available to the City and will bear the cost of such copying, which cost is not a franchise fee and falls within one (1) or more of the exceptions of 47 U.S.C. Section 542(g)(2).
2. 
A franchisee shall maintain sufficient financial records governing its operations in the franchise area to document accurate payment of franchise fees.
3. 
All such information received by the City shall remain confidential insofar as permitted by the Missouri Open Meetings Law and other applicable State and Federal law.
4. 
The franchisee shall maintain a file of records open to public inspection in accordance with applicable FCC rules and regulations.
B. 
Communication With Regulatory Agencies. A franchisee shall file with the City Clerk copies of all reports required by and certifications issued by the FCC, including, but not limited to, any proof of performance tests and results, equal employment opportunity reports and also all petitions, applications and communications of all types regarding the cable system or a group of cable systems of which the franchisee's cable system is a part, submitted or received by the franchisee, an affiliate or any other person on behalf of the franchisee, either to or from the FCC, the Securities and Exchange Commission or any other Federal or State regulatory commission or agency having jurisdiction over any matter affecting operation of the franchisee's system. This material shall be submitted to the City Clerk at the time it is filed or within thirty (30) days of the date it is received. Public access to such reports received by the City Clerk shall not be denied.
C. 
Reports.
1. 
Written report to be filed. No later than ninety (90) days after the end of its fiscal year, a franchisee shall file a written report with the City Clerk, which shall include:
a. 
A summary of the previous year's activities in development of the cable system including, but not limited to, descriptions of services begun or dropped, the number of subscribers gained or lost for each category of service, the number of pay units sold, the amount collected annually from other users of the system and the character and extent of the services rendered to such users;
b. 
A summary of written and other recorded service calls, identifying both the number and nature of the calls received and an explanation of the causes and dispositions of such calls, including response time;
c. 
An annual financial report from the previous year;
d. 
A report showing the number of outages and service degradations for the prior year and identifying separately each planned outage, the time it occurred, its duration and the estimated area and number of subscribers affected; each unplanned outage or service degradation, the time it occurred, its estimated duration and the estimated area and the number of subscribers affected; and the total hours of outages and service degradations as a percentage of total hours of cable system operation;
e. 
An ownership report, indicating all persons who at any time during the preceding year did control or benefit from an interest in the franchise of ten percent (10%) or more;
f. 
A list of key employees of the franchisee;
g. 
A summary report on the system's technical tests and measurements;
h. 
Such other information as the City Council may reasonably direct;
i. 
To the extent there has been no change since the preceding annual report, that fact may be noted in lieu of an additional report.
2. 
Opinion survey report. The franchisee shall submit to the City Clerk the results of any opinion survey conducted, within thirty (30) days of completion of the survey.
3. 
Special reports. Franchisees shall deliver the following special reports to the City Clerk:
a. 
The franchisee shall submit quarterly construction reports for any construction that may be specified in the franchise. The franchisee must submit updated strand and trench maps within thirty (30) days of the completion of system construction in any geographic area. The maps shall be developed on the basis of post-construction inspection by the franchisee and construction personnel to assess compliance with system design. Further, the City may inspect as-built system design maps at franchisee's reasonably designated premises. Any departures from design must be indicated on the as-built maps, to assist the City in assessing compliance with obligations under franchise.
b. 
Copies of any notice of deficiency, forfeiture or other document issued by any State or Federal agency instituting any investigation or civil or criminal proceeding regarding the cable system, the franchisee or any affiliate of the franchisee, to the extent the same may affect or bear on operations in the City. This material shall be submitted to the City Clerk at the time it is filed or within thirty (30) days of the date it is received.
c. 
Copies of any request for protection under bankruptcy laws or any judgment related to a declaration of bankruptcy by the franchisee or by any person that owns or controls the franchisee directly or indirectly. This material shall be submitted to the City Clerk at the time it is filed or within thirty (30) days of the date it is received.
d. 
Technical tests required by the City as specified in this Article and the franchise agreement shall be submitted to the City Clerk within thirty (30) days after completion of such tests.
e. 
Franchisee shall keep on file with the City Clerk its current schedule of charges.
4. 
General reports. Each franchisee shall prepare and furnish to the City Clerk, at the times and in the form prescribed by the City Council, such reports with respect to its operation, affairs, transactions or property as may be reasonably necessary or appropriate to the performance of any of the rights, functions or duties of the City in connection with this Article.
D. 
Records Required.
1. 
A franchisee shall at all times maintain at an office within the metropolitan St. Louis area:
a. 
Records of all written or recorded complaints received. The term "complaints", as used herein and throughout this Article, refers to complaints about any aspect of the cable system or franchisee's operations including, without limitation, complaints about employee courtesy.
b. 
A full and complete set of plans, records and "as built" maps showing the exact location of all system equipment installed or in use in the City, exclusive of subscriber service drops.
c. 
Records of outages indicating date, duration, area and the estimated number of subscribers affected, type of outage and cause.
d. 
Records of service calls for repair and maintenance indicating the date and time of the service call, the date of acknowledgment and date and time service was scheduled (if it was scheduled) and the date and time service was provided and (if different) the date and time the problem was solved.
e. 
Records of installation/reconnection and requests for service extension indicating date of request, date of acknowledgment and the date and time service was extended.
f. 
A public file showing its plan and timetable for any construction regarding the cable system.
g. 
All rules, regulations, terms and conditions adopted for conduct of franchisee's business.
2. 
The City Council may require retention of additional information, records and documents from time to time as may be reasonably necessary or appropriate to the performance of any of the rights, functions or duties of the City in connection with this Article.
E. 
Performance Evaluation.
1. 
A franchise may require specific performance review sessions. The City Council may, at its discretion, hold additional performance evaluation sessions, but not more frequently than once every three (3) years except as otherwise agreed to by franchisee. All such evaluation sessions shall be open to the public and announced in a newspaper of general circulation. Franchisee shall be notified by mail.
2. 
Topics that may be discussed at any evaluation session may include, but are not limited to, system performance and construction, franchisee compliance with this Article and a franchise agreement, customer service and complaint response, subscriber privacy, services provided, programming offered, service rate structures, franchise fees, penalties, free or discounted services, applications of new technologies, judicial and FCC filings and line extensions.
3. 
During the review and evaluation by the City, a franchisee shall fully cooperate with the City and shall promptly provide such information and documents as the City may need to reasonably perform its review.
F. 
Voluminous Materials. If any books, records, maps or plans or other requested documents are too voluminous or for security reasons cannot be moved, then a franchisee may request that the inspection take place at some other location outside the metropolitan St. Louis area, provided that the franchisee must pay all reasonable travel expenses incurred by the City in inspecting those documents or having those documents inspected by its designee. Any payments made by the franchisee hereunder are not a franchise fee and fall within one (1) or more of the exceptions in 47 U.S.C. Section 542(g)(2).
G. 
Retention Of Records — Relation To Privacy Rights. Each franchisee shall take all steps required, if any, to ensure that it is able to provide the City all information which must be provided or may be reasonably requested under this Article or a franchise agreement, including by providing appropriate subscriber privacy notices. Nothing in this Section shall be read to require a franchisee to violate 47 U.S.C. Section 551.

Section 640.090 Consumer Protection and Customer Service Provisions.

[R.O. 2008 §12-23; Ord. No. 1740 §8, 9-26-1995; Ord. No. 1810 §1, 8-12-1996; Ord. No. 3038 §1(p — s), 2-14-2005]
A. 
Telephone And Office Availability.
1. 
Each franchisee shall maintain an office at a convenient location to subscribers, not necessarily within the franchise area, that shall be open during normal business hours to allow subscribers to request service, pay bills and conduct other business. Each franchisee shall perform service calls, installations and disconnects at least during normal business hours, provided that a franchisee shall respond to outages twenty-four (24) hours a day, seven (7) days a week. Outage reports should be addressed within twenty-four (24) hours. Each franchisee shall establish a publicly listed local toll-free telephone number. The phone must be answered by customer service representatives at least during normal business hours for the purpose of receiving requests for service, inquiries and complaints from subscribers; after those hours a franchisee shall arrange for the phone to be answered so that customers can register complaints and report service problems on a twenty-four (24) hour per day, seven (7) day per week basis and so that the franchisee can respond to service outages as required herein.
2. 
Under normal operating conditions, telephone answering time shall not exceed thirty (30) seconds and the time to transfer the call to a customer service representative (including hold time) shall not exceed an additional thirty (30) seconds. Under normal operating conditions a customer will receive a busy signal less than three percent (3%) of the time. These standards shall be met ninety percent (90%) of the time, measured quarterly. When the business office is closed, an answering machine or service capable of receiving and recording service complaints and inquiries shall be employed. The after hours answering service shall comply with the same telephone answer time standard set forth in this Section. Upon request by the City, franchisee shall supply information demonstrating that it is meeting the standards set forth herein.
3. 
A franchisee must hire sufficient staff so that it can adequately respond to customer inquiries, complaints and requests for service in its office, over the phone and at the subscriber's residence.
B. 
Scheduling Work.
1. 
All appointments for service, installation or disconnection shall be specified by date. Each franchisee shall specify a specific time at which the work shall be done or offer a choice of time blocks, which shall not exceed four (4) hours in length, unless the subscriber agrees to a longer period of time. Franchisee may also, upon request, offer service installation calls outside normal business hours for the express convenience of the customer. If at any time an installer or technician believes it impossible to make a scheduled appointment time, an attempt to contact the customer will be made prior to the time of appointment and the appointment rescheduled at a time convenient to the customer.
2. 
Subscribers who have experienced two (2) missed appointments due to the fault of a franchisee shall receive installation free of charge, if the appointment was for installation. If an installation was to have been provided free of charge or for other appointments, the subscriber shall receive a fifty percent (50%) discount on one (1) month of basic cable service tier or its equivalent, not to exceed twenty dollars ($20.00).
3. 
With regard to mobility-limited customers, upon subscriber request, each franchisee shall arrange for pickup and/or replacement of converters or other franchisee equipment at the subscriber's address or by a satisfactory equivalent (such as the provision of a postage-prepaid mailer).
4. 
Under normal operating conditions, requests for service, repair and maintenance must be acknowledged by a trained customer service representative within twenty-four (24) hours or prior to the end of the next business day, whichever is earlier. A franchisee shall respond to all other inquiries (including billing inquiries) within five (5) business days of the inquiry or complaint.
5. 
Under normal operating conditions, installations made within one hundred twenty-five (125) feet of the existing distribution system shall be completed within seven (7) business days after the order is placed. Repairs and maintenance for service interruptions and other customer-location repairs must be completed within twenty-four (24) hours or if it is not possible to be complete such work within twenty-four (24) hours, then work must have commenced within such time period and be diligently continued thereafter until completed. Work on all other requests for service on franchisee's facilities must be begun by the next business day after notification of the problem and must be completed within three (3) days from the date of the initial request, except installation requests, provided that a franchisee shall complete the work in the shortest time possible where, for reasons beyond the franchisee's control, the work could not be completed in those time periods even with the exercise of all due diligence; the failure of a franchisee to hire sufficient staff or to properly train its staff shall not justify a franchisee's failure to comply with this provision. Except as Federal law permits, no charge shall be made to the subscriber for this service, unless required due to damage caused by a subscriber.
6. 
Franchisee shall not cancel a service or installation appointment with a customer after the close of business on the business day preceding the appointment.
7. 
The standards of paragraphs (4) and (5) of this Subsection shall be met at least ninety-five percent (95%) of the time, measured on a quarterly basis.
C. 
Notice To Subscribers.
1. 
A franchisee shall provide in writing to each subscriber at the time cable service is installed and at least annually thereafter the following information:
a. 
Products and services offered;
b. 
Prices and options for programming services and conditions of subscription to programming and other services;
c. 
Installation and service maintenance policies;
d. 
Instructions on how to use the cable service;
e. 
Channel positions of programming carried on the system; and
f. 
Billing and complaint procedures, including the address and telephone number of the local franchise authority's cable office; and
g. 
Refund and credit procedures
2. 
Upon request, copies of the materials specified in the preceding Subsection (C)(1) shall be provided to the City. Franchisee shall provide all subscribers and the City at least thirty (30) days' notice of any significant changes in the information required to be provided by this Section. Such notice shall be in writing and by announcement on the system.
3. 
All franchisee promotional materials, announcements and advertising of residential cable service to subscribers and the general public, where price information is listed in any manner, shall clearly and accurately disclose price terms. In the case of pay-per-view or pay-per-event programming, all promotional materials must clearly and accurately disclose price terms and in the case of telephone orders, a franchisee shall take appropriate steps to ensure that the customer service representatives clearly and accurately disclose price terms to potential customers in advance of taking the order.
4. 
Each franchisee shall maintain a public file containing all notices provided to subscribers under these customer service standards, as well as all written promotional offers made to subscribers.
D. 
Interruptions Of Service. A franchisee may intentionally interrupt service on the cable system only for good cause and for the shortest time possible and, except in emergency situations, only after a minimum of forty-eight (48) hours' prior notice to subscribers and the City of the anticipated service interruption; provided however, that planned maintenance that occurs between the hours of 12:00 Midnight and 6:00 A.M. shall not require such notice to subscribers, so long as notice to the City is given no less than twenty-four (24) hours prior to such an anticipated service interruption.
E. 
Billing.
1. 
A franchisee's first (1st) billing statement after a new installation or service change shall be prorated as appropriate and shall reflect any security deposit.
2. 
A franchisee's billing statement must be clear, concise and understandable, must itemize each category of service and equipment provided to the subscriber and must state clearly the charge for such category of service. A franchisee's billing statement must comply with applicable State and Federal law.
3. 
A franchisee's billing statement must show a specific payment due date not earlier than the fifteenth (15th) day of the month (or equivalent period) in which the service being billed is rendered. Any balance not received within fifteen (15) days after the due date may be assessed a reasonable processing charge based on costs and/or a late fee. Late fees shall not exceed three-fourth of one percent (0.75%) per month.
4. 
A franchisee must notify the subscriber that he/she can remit payment in person at the franchisee's office(s) and inform the subscriber of the address of the office(s).
5. 
Subscribers shall not be charged a processing fee or late fee or be otherwise penalized for any failure by a franchisee, including failure to timely or correctly bill the subscriber or failure to properly credit the subscriber for a payment timely made.
6. 
On request, the account of any subscriber shall be credited a prorated share of the monthly charge for the service if said subscriber is without service or if service is substantially impaired for any reason for a period exceeding four (4) hours during any twenty-four (24) hour period, except where it can be documented that a subscriber seeks a refund for an outage or impairment which that subscriber caused or in the case of a planned outage occurring between the hours of 12:00 Midnight and 6:00 A.M. of which the City received the required prior notice.
7. 
Franchisee shall respond to all written billing complaints from subscribers within thirty (30) days.
8. 
Refund checks to subscribers shall be issued no later than the subscriber's next billing cycle following resolution of the refund request or the date of return of all equipment to franchisee, if service has been terminated.
9. 
Credits for service shall be issued no later than the subscriber's next billing cycle after the determination that the credit is warranted.
F. 
Disconnection/Downgrades.
1. 
A subscriber may terminate service at any time.
2. 
A franchisee shall promptly disconnect or downgrade any subscriber who so requests by giving at least one (1) day notice and reasonably cooperating with the franchisee regarding the removal of the franchisee's equipment from the subscriber's location. No charge may be imposed for any voluntary disconnection and downgrade charges must comply with the requirements or Federal law. No charge may be imposed by any franchisee for any cable service delivered after the requested date of disconnection.
3. 
A subscriber may be asked, but not required, to disconnect a franchisee's equipment and return it to the nearest business office.
4. 
Any security deposit and/or other funds due the subscriber shall be refunded on disconnected accounts after the equipment has been recovered by the franchisee. The refund process shall take a maximum of thirty (30) days from the date disconnection was requested to the date the customer receives the refund.
5. 
If a subscriber fails to pay a monthly subscriber or other fee or charge, a franchisee may disconnect the subscriber's service outlet; however, such disconnection shall not be effected until after thirty (30) days from the due date. If the subscriber pays all amounts due, including late charges, before the date scheduled for disconnection, the franchisee shall not disconnect service. After disconnection, upon payment by the subscriber in full of all fees or charges due, including the payment of the reconnection charge, if any, and any reasonable security deposit, the franchisee shall promptly reinstate service on request.
6. 
A franchisee may immediately disconnect a subscriber if the subscriber is damaging or destroying the franchisee's cable system or equipment. After disconnection, the franchisee shall restore service after the subscriber provides adequate assurance that it has ceased the practices that led to disconnection and paid all proper fees and charges, including any reconnect fees and amounts owed the franchisee for damage to its cable system or equipment and any reasonable security deposit.
7. 
A franchisee may also disconnect a subscriber that causes signal leakage in excess of Federal limits. It may do so without notice, provided that the franchisee shall immediately notify the subscriber of the problem and, once the problem is corrected, reconnect the subscriber.
8. 
Except as Federal law may otherwise provide, a franchisee may remove its property from a subscriber's premises within sixty (60) days of the termination of service, voluntarily or involuntarily. If a franchisee fails to remove its property in that period, the property shall be deemed abandoned.
G. 
Changes In Service.
1. 
Before a franchisee unilaterally alters the service it provides to a class of subscribers, it must provide the City and each affected subscriber thirty (30) days' written notice by any reasonable means at its sole discretion, explain the substance and full effect of the alteration and provide the subscriber the right within the thirty (30) day period following notice to opt to receive any combination of services offered by franchisee. Except as Federal law otherwise provides, subscribers may not be required to pay any charge (other than the regular service fee), including an upgrade or downgrade charge, in order to receive the services selected. No charge may be made for any service or product that the subscriber has not affirmatively indicated it wishes to receive. Payment of the regular monthly bill does not in and of itself constitute such an affirmative indication.
2. 
If a franchisee plans to provide a premium channel without charge to subscribers who do not subscribe to such premium channel, the franchisee shall, not later than thirty (30) days before such premium channel is provided without charge, notify all subscribers in writing by any reasonable means at its sole discretion of its plans including the time period involved, notify all subscribers they have a right to request that the premium channel be blocked and block the premium channel upon the request of a subscriber. For purposes of this Section, the phrase "premium channel" shall mean any pay service offered on a per-channel or per-program basis which offers movies rated by the Motion Picture Association of America as X, NC-17 or R.
H. 
Deposits. A franchisee may require a reasonable, non-discriminatory deposit on equipment provided to subscribers. Deposits shall be placed in an interest-bearing account and the franchisee shall return the deposit upon return of the equipment, plus interest earned to the date repayment is made to the subscriber, less any deduction for damages to the equipment or unpaid charges.
I. 
Subscriber Control. A franchisee shall comply with all applicable laws regarding subscriber ability to block audio and/or video signals.

Section 640.100 Rate Regulation.

[R.O. 2008 §12-24; Ord. No. 1740 §9, 9-26-1995]
The City reserves the right to regulate service and equipment rates to the maximum degree permitted by applicable State and Federal law. Each franchisee shall comply with all such regulation provisions that the City may adopt and all Federal laws regarding rates. Failure to comply shall constitute a material violation of a franchise.

Section 640.110 Franchise Fee.

[R.O. 2008 §12-25; Ord. No. 1740 §10, 9-26-1995; Ord. No. 1810 §1, 8-12-1996; Ord. No. 3038 §1(t), 2-14-2005]
A. 
Requirement. A franchisee and any other person providing cable service over a cable system shall pay the City franchise fees which may be passed on to subscribers as provided by law. Every franchise agreement shall specify the amounts a franchisee is initially required to pay as a percentage of gross revenues, but if the specified amount is less than the maximum or if the maximum amount permitted increases, the City may increase it to any amount up to the maximum allowed by law after ninety (90) days' notice to the franchisee, so long as the increase may by law be passed on to subscribers.
B. 
Not A Tax Or In Lieu Of Any Other Tax Or Fee.
1. 
The franchise fee is not a tax, license or fee subject to any requirement of voter approval, but rather is a rental charge for special and individualized use of public property.
2. 
The franchise fee is in addition to all other fees and all taxes and payments that a franchisee or other person may be required to pay under any Federal, State or local law, including any applicable property and amusement taxes, except to the extent that such fees, taxes or assessments are a franchise fee under 47 U.S.C. Section 542.
C. 
Payments.
1. 
The franchise fees and any other costs or penalties assessed by the City against a franchisee or any other person shall be paid quarterly to the City and shall commence as of the effective date of a franchise. The City shall be furnished at the time of each payment with a statement certified by the franchisee's or other person's respective financial representative or an independent certified public accountant reflecting the total amount of gross revenues for the payment period. Payments shall be made to the City no later than forty-five (45) days following the end of each calendar quarter.
2. 
In the event any franchise fee or other payment is not made on or before the date specified herein, the franchisee and any other person shall pay interest charges computed from such due date at an annual rate equal to the commercial prime interest rate of the City's primary depository bank during the period such unpaid amount is owed, plus two percent (2%) of the amount due to defray the City's additional expenses by reason of the delinquency.
D. 
No Accord Or Satisfaction. No acceptance of any payment by the City shall be construed as a release or an accord and satisfaction of any claim the City may have for further or additional sums payable as franchise fees under this Chapter or for the performance of any other obligation of a franchisee or other person.
E. 
Audit.
1. 
The City shall have the right to inspect all reasonably necessary records and the right to audit and to recompute any amounts determined to be payable under this Chapter. The franchisee shall be responsible for providing the records to the City at an office located within the metropolitan St. Louis area. Such records shall be maintained for at least five (5) years. The City's audit expenses shall be borne by the franchisee if the franchise fees paid during the audit period are less than ninety-five percent (95%) of the amount owed according to the audit. Any additional amounts due to the City as a result of the audit shall be paid within thirty (30) days following written notice to the franchisee by the City of the underpayment, which notice shall include a copy of the audit report, or within thirty (30) days following resolution of any dispute regarding such notice, whichever is later. If recomputation results in additional revenue to be paid to the City, such amount shall be subject to interest as specified in Subsection (C)(2) above. All costs incurred by a franchisee hereunder are not franchise fees and fall within one (1) or more of the exceptions set forth in 47 U.S.C. Section 542(g)(2) and shall not be passed on to the subscribers in any form.
2. 
A franchisee shall maintain its fiscal and financial records and have all relevant fiscal and financial records maintained by others on its behalf in such a manner as to enable the City to determine the cost of assets of the franchisee which are used in providing services within the City and to determine gross revenues.
3. 
A franchisee shall report on a quarterly basis to the City Clerk the name and address of each and every person providing telecommunications and other communications services over the cable system for which charges are assessed to subscribers but not received by the franchisee, as well as all such services being provided by the franchisee in addition to cable services unless franchisee already has a separate written franchise or license from the City to provide such other services.
F. 
Audit.
1. 
The City shall have the right to inspect all reasonably necessary records and the right to audit and to recompute any amounts determined to be payable under this Chapter. The franchisee shall be responsible for providing the records to the City at an office located within the metropolitan St. Louis area. Such records shall be maintained for at least five (5) years. The City's audit expenses shall be borne by the franchisee if the franchise fees paid during the audit period are less than ninety-eight percent (98%) of the amount owed according to the audit. Any additional amounts due to the City as a result of the audit shall be paid within thirty (30) days following written notice to the franchisee by the City of the underpayment, which notice shall include a copy of the audit report. If recomputation results in additional revenue to be paid to the City, such amount shall be subject to interest as specified in Subsection (C)(2) of this Section. All costs incurred by a franchisee hereunder are not franchise fees and fall within one (1) or more of the exceptions set forth in 47 U.S.C. Section 542(g)(2) and shall not be passed on to the subscribers in any form.
2. 
A franchisee shall maintain its fiscal and financial records and have all relevant fiscal and financial records maintained by others on its behalf in such a manner as to enable the City to determine the cost of assets of the franchisee which are used in providing services within the City and to determine gross revenues.
3. 
A franchisee shall report on a quarterly basis to the City Clerk the name and address of each and every person providing telecommunications and other communications services over the cable system for which charges are assessed to subscribers but not received by the franchisee, as well as all such services being provided by the franchisee in addition to cable services unless franchisee already has a separate written franchise or license from the City to provide such other services.

Section 640.120 Insurance — Surety — Indemnification.

[R.O. 2008 §12-26; Ord. No. 1740 §11, 9-26-1995]
A. 
Insurance Required. A franchisee shall maintain and by its acceptance of a franchise specifically agrees that it will maintain, throughout the entire length of the franchise period, at least the following liability insurance coverage insuring the City and the franchisee: Workers' Compensation and employer liability insurance to meet all requirements of Missouri law and comprehensive general liability insurance with respect to the construction, operation and maintenance of the cable system and the conduct of the franchisee's business in the City in the minimum amounts of:
1. 
One million dollars ($1,000,000.00) for property damage resulting from any one (1) accident;
2. 
Five million dollars ($5,000,000.00) for personal bodily injury or death resulting from any one (1) accident; and
3. 
Two million dollars ($2,000,000.00) for all other types of liability.
These insurance requirements shall not be construed to limit the liability of a franchisee for damages under any franchise issued hereunder.
B. 
Qualifications Of Sureties. All insurance policies shall be with sureties qualified to do business in the State of Missouri with an B+7 or better rating of insurance by Best's Key Rating Guide, Property/Casualty Edition and in a form approved by the City.
C. 
Policies Available For Review. All insurance policies shall be available for review by the City and a franchisee shall keep on file with the City certificates of insurance.
D. 
Additional Insured — Prior Notice Of Policy Cancellation. All general liability insurance policies shall name the City, its officers, boards, board members, commissions, commissioners, agents and employees as additional insured and shall further provide that any cancellation or reduction in coverage shall not be effective unless thirty (30) days' prior written notice thereof has been given to the City Clerk. A franchisee shall not cancel any required insurance policy without submission of proof that the franchisee has obtained alternative insurance reasonably satisfactory to the City Council which complies with this Article.
E. 
Failure Constitutes Material Violation. Failure to comply with the insurance requirements set forth in this Section shall constitute a material violation of a franchise.
F. 
Indemnification.
1. 
A franchisee shall, at its sole cost and expense, indemnify, hold harmless and defend the City, its officials, boards, board members, commissions, commissioners, agents and employees against any and all claims, suits, causes of action, proceedings and judgments for damages or equitable relief arising out of the construction, maintenance or operation of its cable system; copyright infringements or a failure by the franchisee to secure consents from the owners, authorized distributors or licensees of programs to be delivered by the cable system; the conduct of the franchisee's business in the City; or in any way arising out of the granting of a franchise or a franchisee's enjoyment or exercise of a franchise granted hereunder, regardless of whether the act or omission complained of is authorized, allowed or prohibited by this Article or a franchise agreement.
2. 
Specifically, but not by way of limitation on the scope of (1) above, a franchisee shall, at its sole cost and expense, fully indemnify, defend and hold harmless the City, and in their capacity as such, the officers, agents and employees thereof, from and against any and all claims, suits, actions, liability and judgments for damages or otherwise subject to Section 638 of the Cable Act, 47 U.S.C. Section 558 arising out of or alleged to arise out of the installation, construction, operation or maintenance of its system including, but not limited to, any claim against the franchisee for invasion of the right of privacy, defamation of any person or the violation or infringement of any copyright, trade mark, trade name, service mark or patent or of any other similar right of any person. This indemnity does not apply to programming carried on any channel set aside for public, educational or government use or channels leased pursuant to 47 U.S.C. Section 532, unless the franchisee was in any respect engaged in determining the editorial content of the program or prescreened the programming for the purported purpose of banning or regulating indecent or obscene programming.
3. 
The indemnity provision includes, but is not limited to, the City's reasonable attorneys' fees incurred in defending against any such claim, suit or proceeding prior to franchisee assuming such defense. The City shall notify a franchisee of claims and suits as soon as practicable, but failure to give such notice shall not relieve a franchisee of its obligations hereunder. Once a franchisee assumes such defense, the City may at its option continue to participate in the defense at its own expense.
4. 
Notwithstanding anything to the contrary contained in this Article, the City shall not be so indemnified or reimbursed in relation to any amounts attributable to the City's own negligence, willful misconduct, intentional or criminal acts, including in the performance of its obligations under this Article or a franchise agreement.

Section 640.130 Performance Guarantees and Remedies.

[R.O. 2008 §12-27; Ord. No. 1740 §12, 9-26-1995; Ord. No. 3038 §1(u), 2-14-2005]
A. 
Security Fund.
1. 
Prior to a franchise becoming effective and on each anniversary date thereafter during the franchise term including the date of termination, the franchisee shall post with the City Clerk sufficient funds to serve as a cash security deposit to be used as a security fund to ensure the franchisee's faithful performance of and compliance with all provisions of this Article, the franchise agreement and other applicable law and compliance with all orders, permits and directions of the City and the payment by the franchisee of any claims, liens, fees or taxes due the City which arise by reason of the construction, operation or maintenance of the system. The amount of the security fund on deposit shall be equal to three percent (3%) of the franchisee's projected annual gross revenues for the upcoming year or, in the instance of the final deposit, three percent (3%) of the actual gross revenues for the preceding year.
2. 
In lieu of a cash security fund, a franchisee may file and maintain with the City Clerk an irrevocable letter of credit with a surety acceptable to the City in the amount specified in the preceding paragraph to serve the same purposes as set forth therein. Said letter of credit shall remain in effect for the full term of the franchise plus an additional six (6) months thereafter or longer if there is any outstanding obligation or default on the part of the franchisee as determined by the City Council. The franchisee and its surety shall be jointly and severally liable under the terms of the letter of credit for the franchisee's failure to ensure its faithful performance of and compliance with all provisions of this Article, the franchise agreement and other applicable law and compliance with all orders, permits and directions of the City and the payment by the franchisee of any claims, liens, fees or taxes due the City which arise by reason of the construction, operation or maintenance of the system. The letter of credit shall provide for thirty (30) days' prior written notice to the City of any intention on the part of the franchisee to cancel, fail to renew or otherwise materially alter its terms. Neither the filing of a letter of credit with the City, nor the receipt of any damages recovered by the City thereunder, shall be construed to excuse unfaithful performance by the franchisee or limit the liability of the franchisee under the terms of its franchise for damages, either to the full amount of the letter of credit or otherwise.
3. 
The rights reserved to the City with respect to the security fund are in addition to all other rights of the City, whether reserved by this Article or authorized by other law or a franchise agreement, and no action, proceeding or exercise of a right with respect to such security fund or letter of credit will affect any other right the City may have.
4. 
The following procedures shall apply to drawing on the security fund and letter of credit:
a. 
If the franchisee fails to make timely payment to the City of any amount due as a result of a franchise, fails to make timely payment to the City of any amounts due under a franchise agreement or applicable law, fails to make timely payment to the City of any taxes due or fails to compensate the City within ten (10) days of written notification that such compensation is due for any damages, costs or expenses the City suffers or incurs by reason of any act or omission of the franchisee in connection with its franchise agreement or the enforcement of its franchise agreement, the City may withdraw the amount thereof, with interest and any penalties, from the security fund or from funds available under the letter of credit.
b. 
Within three (3) days of a withdrawal from the security fund or under the letter of credit, the City shall mail, by certified mail, return receipt requested, written notification of the amount, date and purpose of such withdrawal to the franchisee.
c. 
If at the time of a withdrawal from the security fund and under the letter of credit by the City the amounts available are insufficient to provide the total payment towards which the withdrawal is directed, the balance of such payment shall continue as the obligation of the franchisee to the City until it is paid.
d. 
No later than thirty (30) days after mailing of notification to the franchisee by certified mail, return receipt requested, of a withdrawal under the security fund or letter of credit, the franchisee shall deliver to the City for deposit in the security fund an amount equal to the amount so withdrawn or shall restore the letter of credit. Failure to make timely delivery of such amount to the City or to restore the letter of credit shall constitute a material violation of the franchise.
e. 
Upon termination of the franchise under conditions other than those stipulating forfeiture of the security fund, the balance then remaining in the security fund shall be withdrawn by the City and paid to the franchisee within six (6) months of such termination, provided that there is then no outstanding obligation or default on the part of the franchisee.
5. 
In addition to or in lieu of a security fund or letter of credit, a franchise may require such guarantees as the City deems to be in the public interest.
B. 
Performance Bond.
1. 
Prior to any cable system construction, upgrade or other such work in the public rights-of-way, a franchisee shall establish in the City's favor a performance bond to ensure the franchisee's faithful performance of the construction, upgrade or other work. The amount of such performance bond shall be equal to ten percent (10%) of the total cost of the work unless otherwise specified in the franchise agreement.
2. 
In the event a franchisee subject to such a performance bond fails to complete the cable system construction, upgrade or other work in the public rights-of-way in a safe, timely and competent manner after notice and a reasonable opportunity to cure, there shall be recoverable, jointly and severally from the principal and surety of the bond, any damages or loss suffered by the City as a result, including the full amount of any compensation, indemnification or cost of removal or abandonment of any property of the franchisee or the cost of completing or repairing the system construction, upgrade or other work in the public rights-of-way plus a reasonable allowance for attorneys' fees, up to the full amount of the bond. The City may also recover against the bond any amount recoverable against a security fund where such amount exceeds that available under a security fund.
3. 
Upon completion of the system construction, upgrade or other such work in the public rights-of-way and payment of all construction obligations of the cable system to the satisfaction of the City Council, the City Council shall eliminate the bond after a time appropriate to determine whether the work performed was satisfactory, which time shall be established considering the nature of the work performed.
4. 
The performance bond shall be issued by a surety with an B+7 or better rating of insurance in Best's Key Rating Guide, Property/Casualty Edition; shall be subject to the approval of the City Attorney; and shall contain the following endorsement:
"This bond may not be canceled or allowed to lapse until sixty (60) days after receipt by the City, by certified mail, return receipt requested, of a written notice from the issuer of the bond of intent to cancel or not to renew."
C. 
Failure Constitutes Material Violation. Failure to maintain a required security fund, letter of credit or performance bond shall constitute a material violation of a franchise.
D. 
Remedies. In addition to any other remedies available at law or equity, the City may apply any one (1) or a combination of the following remedies in the event a franchisee violates this Article, its franchise agreement, other applicable ordinances or applicable State or Federal law:
1. 
Revoke the franchise or shorten the term pursuant to the procedures specified in this Article.
2. 
Impose penalties available under Subsection (H) of this Section and other applicable State and local laws for violation of City ordinances.
3. 
In addition to or instead of any other remedy, seek legal or equitable relief from any court of competent jurisdiction.
4. 
Apply any remedy provided for in a franchise agreement, including enforcing provisions, if any.
E. 
Shortening, Revocation Or Termination Of Franchise.
1. 
The City shall have the right to shorten the term of a franchise to a term not less than thirty-one (31) months from the date of the action shortening the franchise term or to revoke the franchise for a franchisee's substantial and ongoing failure to construct, operate or maintain the cable system as required by this Article or a franchise agreement; for defrauding or attempting to defraud the City or subscribers; if the franchisee is declared bankrupt; or for any other substantial and ongoing material violation of this Article or substantial and ongoing material violation of a franchise agreement. To invoke the provisions of this Section, the City Council shall give the franchisee written notice of such intent. If within thirty (30) calendar days following such written notice from the City to the franchisee, the franchisee has not completed corrective action or corrective action is not being actively and expeditiously pursued to the satisfaction of the City Council, the City Council may give written notice to the franchisee of its decision to commence a proceeding to consider shortening the term of or revoking the franchise, stating its reasons; provided that no opportunity to cure shall be afforded in the event the franchisee is declared bankrupt. Revocation for bankruptcy shall be governed by Subsection (E)(3).
2. 
Prior to shortening the term of or revoking a franchise, the City Council shall hold a public hearing, after giving at least fifteen (15) calendar days' notice by posting and publication, at which time the franchisee and the public shall be given an opportunity to be heard. Following the public hearing, the City Council may determine whether to shorten the franchise term or to revoke the franchise based on the information presented at the hearing and other information of record. If the City Council determines to shorten a franchise term or revoke a franchise, it shall make such decision by ordinance setting forth the reasons for its decision. The City may make such decision conditional on a franchisee's failure to resolve outstanding problems or take appropriate steps to resolve such problems within a specific period of time. A copy of such decision shall be provided to the franchisee.
3. 
Any franchise may, at the option of the City Council following a public hearing, be revoked by ordinance one hundred twenty (120) calendar days after an assignment for the benefit of creditors or the appointment of a receiver or trustee to take over the business of the franchisee, whether in a receivership, reorganization, bankruptcy, assignment for the benefit of creditors or other action or proceeding, unless within that one hundred twenty (120) day period:
a. 
Such assignment, receivership or trusteeship has been vacated; or
b. 
Such assignee, receiver or trustee has fully complied with the terms and conditions of this Article and the existing franchise agreement and has executed an agreement, approved by a court of competent jurisdiction, assuming and agreeing to be bound by the terms and conditions of this Article and the existing franchise agreement.
c. 
In the event of foreclosure or other judicial sale of a material portion of the facilities, equipment or property of a franchisee (other than pursuant to a pledge or mortgage which qualified as a exception to the definition of a "franchise transfer" and after which the franchise transfer was ultimately approved), the City Council may revoke the franchise, following a public hearing before the City Council, by serving notice on the franchisee and the successful bidder, in which event the franchise and all rights and privileges of the franchise will be revoked and will terminate thirty (30) calendar days after serving such notice, unless:
(1) 
The City Council has approved the franchise transfer; and
(2) 
The successful bidder has covenanted and agreed with the City to assume and be bound by the terms and conditions of the franchise agreement and this Article.
4. 
If the City Council revokes a franchise, if a franchise expires or if for any other reason a franchisee abandons, terminates or fails to operate or maintain service to its subscribers after notice and reasonable opportunity to cure of at least thirty (30) days, the following procedures and rights are effective:
a. 
The City Council may require the former franchisee to remove its facilities and equipment at the former franchisee's expense. If the former franchisee fails to do so within a reasonable period of time, the City Council may have the removal done at the former franchisee's or surety's expense. In removing its plant, structures and equipment, the franchisee shall refill, at its own expense, any excavation that shall be made by it and shall leave all public ways and places in as good condition as prevailed prior to the franchisee's removal of its equipment and appliances without affecting the electrical or telephone cable wires or attachments. The City shall inspect and approve the condition of the public ways and public places and cables, wires, attachments and poles after removal. The liability, indemnity and insurance as provided herein shall continue in full force and effect during the period of removal and until full compliance by the franchisee with the terms and conditions of this paragraph and this Chapter. In the event of a failure by the franchisee to complete any such work or any other work required by City law or ordinance within the time as may be established and to the reasonable satisfaction of the City, the City may cause such work to be done and the franchisee shall reimburse the City the reasonable cost thereof within thirty (30) days after receipt of an itemized list of such costs.
b. 
At the expiration of the term for which any franchise is granted (if renewal is either not sought or denied), the City, at its election, shall have the right to purchase and take over all or any part of a cable system located within the City upon the payment to the franchisee of a sum equal to the fair market value of the system or the part taken (based on system value as a going concern). In the event of revocation as provided for in this Article, the City, at its election, shall have the right to purchase and take over all or any part of a cable system located within the City upon payment to franchisee of a sum equal to an equitable price for the system or the part taken. If the City elects to purchase only a part of the system, the fair market value shall include both the fair market value of the part purchased together with the diminution in value of the part not purchased. The price for the cable system or the part taken shall not include, and the franchisee shall not receive, anything for the value allocated to the franchise itself unless such valuation is now or subsequently provided for by the Cable Act or in the franchise itself. Upon the exercise of the option by the City and its service of an official notice of such action upon the franchisee, the franchisee shall immediately transfer to the City possession and title to all of the purchased facilities and property, real and personal, of the cable system with any existing liens and encumbrances (provided the City can require application of purchase price to such liens and encumbrances at closing); and the franchisee shall execute such warranty deeds or other instruments of conveyance to the City as shall be reasonably necessary for this purpose. Each contract entered into by franchisee with reference to its operations under the franchise shall be subject to the exercise of this option by the City.
c. 
If a cable system is abandoned by a franchisee during the franchise term or if the franchisee fails to operate its system in accordance with this Article during any transition period or the franchisee otherwise terminates the franchise, upon decision of the City Council made after providing the franchisee reasonable notice of at least thirty (30) days and an opportunity to be heard, the ownership of all portions of the cable system in public rights-of-way shall revert to the City and the City may sell, assign or transfer all or part of the assets of the system or the City Council, at its option, may operate the system, designate another entity to operate the system temporarily until the franchisee restores service under conditions acceptable to the City or until the franchise is revoked and a new franchisee selected by the City is providing service, seek an injunction requiring the franchisee to continue operations and/or seek to recover all damages sustained as a result of such abandonment or failure to operate. A franchisee retains all rights to contest such actions and all rights to compensation provided by law.
A franchisee shall be deemed to have abandoned its system or failed to operate its system during any transition period, if:
(1) 
The franchisee fails to provide cable service in accordance with its franchise over a substantial portion of the cable system for ninety-six (96) consecutive hours, unless the City Council authorizes a longer interruption of service in writing; or
(2) 
The franchisee, for any period, willfully and without cause refuses to provide cable service in accordance with its franchise over a substantial portion of the cable system.
5. 
Notwithstanding any other provision of this Article, where the City has issued a franchise requiring the completion of construction, system upgrade or other specific obligation by a specified date, failure of the franchisee to complete such construction or upgrade or to comply with such other specific obligations as may be required, within such time limits, as same shall be extended by the City Council for good cause shown by the franchisee, will result in the forfeiture of the franchise upon decision of the City Council made after providing the franchisee with reasonable notice of at least thirty (30) days and an opportunity to be heard.
F. 
Remedies Cumulative. All remedies under this Article and the franchise agreement are cumulative unless otherwise expressly stated. The exercise of one remedy shall not foreclose use of another, nor shall the exercise of a remedy or the payment of penalties relieve a franchisee of its obligations to comply with its franchise. Remedies may be used alone or in combination as permitted by law; in addition, the City may exercise any rights it has at law or equity.
G. 
Relation To Insurance And Indemnity Requirements. Recovery by the City of any amounts under insurance, a performance bond, a security fund or letter of credit or otherwise does not limit a franchisee's duty to indemnify the City in any way; nor shall such recovery relieve a franchisee of its obligations under a franchise, limit the amounts owed to the City or in any respect prevent the City from exercising any other right or remedy it may have.
H. 
Penalties. For violation of provisions of this Article, subject to judicial procedures, penalties shall be chargeable to the franchisee as follows:
1. 
For purportedly transferring the franchise without approval. Five hundred dollars ($500.00) per day for each violation for each day the violation continues;
2. 
For violation of customer service standards. One hundred dollars ($100.00) per violation for each day the violation continues; and
3. 
For all other material violations for which actual damages may not be ascertainable: Five hundred dollars ($500.00) per day for each violation for each day the violation continues.

Section 640.140 Rights of Individuals Protected.

[R.O. 2008 §12-28; Ord. No. 1740 §13, 9-26-1995]
A. 
Discriminatory Practices Prohibited.
1. 
A franchisee shall not deny service, deny access or otherwise discriminate against subscribers, users, programmers or residents or businesses in the City on the basis of race, color, religion, national origin, sex or age.
2. 
A franchisee shall not unreasonably discriminate among similarly situated persons or take any retaliatory action against a person because of that person's exercise of any right it may have under Federal, State or local law, nor may the franchisee require a person to waive such rights as a condition of providing service.
3. 
A franchisee shall not deny access to cable service or levy different rates and charges on any group of potential residential cable subscribers because of the income of the residents of the local area in which such group resides.
4. 
A franchisee is prohibited from unreasonably discriminating in its rates or charges or from granting undue preferences to any subscriber, potential subscriber or group of subscribers or potential subscribers; provided however, that a franchisee may offer temporary, bona fide promotional discounts in order to attract or maintain subscribers, so long as such discounts are offered on a non-discriminatory basis to similar classes of subscribers throughout the City; and a franchisee may offer reasonable discounts for senior citizens or the economically disadvantaged, discounts or customer specific pricing for bulk rate customers and such other discounts as it is expressly entitled to provide under Federal law, if such discounts are applied in a uniform and consistent manner. A franchisee shall comply at all times with all applicable Federal, State and City laws and all executive and administrative orders relating to non-discrimination.
B. 
Equal Employment Opportunity. A franchisee shall not refuse to employ, discharge from employment or discriminate against any person in compensation or in terms, conditions or privileges of employment because of race, color, religion, national origin, sex or age. A franchisee shall comply with all Federal, State and local laws and regulations governing equal employment opportunities, as the same may be from time to time amended, including, but not limited to, 47 U.S.C. Section 554.
C. 
Subscriber Privacy. A franchisee shall at all times abide by and protect the privacy of all subscribers pursuant to the provisions of Section 631 of the Cable Act, 47 U.S.C. Section 551. A franchisee shall not condition subscriber service on the subscriber's grant of permission to disclose information which, pursuant to Federal or State law, cannot be disclosed without the subscriber's explicit consent.

Section 640.150 Miscellaneous Provisions.

[R.O. 2008 §12-29; Ord. No. 1740 §14, 9-26-1995; Ord. No.1810 §1, 8-12-96; Ord. No. 3038 §1(v — w), 2-14-2005]
A. 
Compliance With Laws. Each franchisee shall comply with all Federal and State laws, as well as City ordinances, resolutions, rules and regulations heretofore and hereafter adopted or established during the term of its franchise pursuant to the City's Police powers.
B. 
Captions. The captions to Sections throughout this Article are intended solely to facilitate reading and reference to the Sections and provisions of this Article. Such captions shall not affect the meaning or interpretation of this Article.
C. 
No Recourse Against The City. Without limiting such immunities as the City or other persons may have under applicable law including, but not limited to, 47 U.S.C. Section 555a, a franchisee shall have no recourse whatsoever against the City or its officials, members, boards, commissions, agents or employees for any loss, costs, expense, liability or damage arising out of any action undertaken or not undertaken pursuant to a franchise agreement or any provision or requirement of this Article or because of the enforcement of this Article or the City's exercise of its authority pursuant to this Article, a franchise agreement or other applicable law, unless such recourse is expressly authorized by Statute, this Article or other ordinance.
D. 
Rights And Remedies.
1. 
The rights and remedies reserved to the City by this Article are cumulative and shall be in addition to and not in derogation of any other rights and remedies which the City may have with respect to the subject matter of this Article.
2. 
The City hereby reserves to itself the right to intervene in any suit, action or proceeding involving any provision of this Article.
3. 
Specific mention of the materiality of any of the provisions herein is not intended to be exclusive of any others for the purpose of determining whether any failure of compliance hereunder is material and substantial.
4. 
No franchisee shall be relieved of its obligation to comply with any of the provisions of this Article by reason of any failure of the City to enforce prompt compliance. Nor shall any inaction by the City be deemed to waive a provision or render void any provision of this Article.
E. 
Incorporation By Reference. Any franchise granted pursuant to this Article shall by implication include a provision which shall incorporate by reference this Article into such franchise as fully as if copied therein verbatim.
F. 
Force Majeure. A franchisee shall not be deemed in default of provisions of its franchise where performance was hindered by war or riots, civil disturbances, floods or other natural catastrophes beyond the franchisee's control or work delays caused by waiting for utility providers (including cooperatives) to service and monitor their poles to which the franchisee's cable system is attached and a franchise shall not be revoked or a franchisee penalized for such non-compliance, provided that the franchisee takes prompt and diligent steps to bring itself back into compliance and to comply as soon as reasonably possible under the circumstances with its franchise without unduly endangering the health, safety and integrity of the franchisee's employees or property or the health, safety and integrity of the public, public rights-of-way, public property or private property.
G. 
Public Emergency. In the event of a public emergency or disaster as determined by the City acting through such officials as may be available given the emergency conditions, a franchisee immediately shall make the cable system, employees and property, as may be reasonably necessary, available for use by the City or other civil defense or governmental agency designated by the City for the term of such emergency or disaster for emergency purposes. In the event of such use, a franchisee shall waive any claim that such use by the City constitutes a use of eminent domain, provided that the City shall return use of the system, employees and property to the franchisee promptly after the emergency or disaster has ended.
H. 
Connections To System — Use Of Antennae.
1. 
Subscribers shall have the right to attach devices to a franchisee's system to allow them to transmit signals or services for which they have paid to VCRs, receivers and other terminal equipment. Subscribers also shall have the right to use their own remote control devices and converters, inside wire and other similar equipment, subject to market availability and a franchisee shall provide information to subscribers which will allow them to adjust such devices so that they may be used with the franchisee's system.
2. 
A franchisee shall not, as a condition of providing service, require a subscriber or potential subscriber to remove any existing antenna or disconnect an antenna except at the express direction of the subscriber or potential subscriber or prohibit or discourage a subscriber from installing an antenna switch, provided that such equipment and installations are consistent with applicable codes.
3. 
Regardless of changes in technology and equipment, channels, facilities and equipment for public, educational and governmental use will remain accessible to subscribers and users.
I. 
Calculation Of Time. Unless otherwise indicated, when the performance or doing of any act, duty, matter or payment is required under this Chapter or any franchise agreement and a period of time is prescribed and is fixed herein, the time shall be computed so as to exclude the day of the act, event or default after which the designated period of time begins to run and include the last day of the prescribed or fixed period of time, unless it is a Saturday, Sunday or legal holiday, in which event the period runs until the next day which is neither a Saturday, Sunday or legal holiday. If the period is less than seven (7) days, intermediate Saturday, Sunday and legal holidays shall be excluded in the computation. This paragraph shall not apply in the context of obligations which continue on a daily basis, such as the obligation to operate a cable system.
J. 
Severability. If any term, condition or provision of this Article shall, to any extent, be held to be invalid or unenforceable, the remainder hereof shall be valid in all other respects and continue to be effective. In the event of a subsequent change in applicable law so that the provision which had been held invalid is no longer invalid, said provision shall thereupon return to full force and effect without further action by the City and shall thereafter be binding on the franchisee and the City.
K. 
Effective Date. This Article shall become effective at the expiration of fifteen (15) days after adoption by the City Council and the signing therefor by the mayor, pursuant to the provisions of Section 3.11(g) of the City Charter.

Section 640.160 Glossary.

[R.O. 2008 Glossary to Section 640.150; Ord. No. 1810 §1, 8-12-1996; Ord. No. 3038 §1(x — y), 2-14-2005]
As used in this Article, the following terms shall have these meanings:
ACTIVATED CHANNEL
Those channels engineered at the headend of a cable system for the provision of services generally available to residential subscribers of the cable system, regardless of whether such services actually are provided, including any channel designated for public, educational or governmental use.
AFFILIATE
A person that (directly or indirectly) owns or controls, is owned or controlled by or is under common ownership or control with another person. For purposes of this definition, the term "own" means to own an equity interest (or the equivalent thereof) or more than ten percent (10%).
BASIC CABLE SERVICE
Any service tier which includes the retransmission of local television broadcast signals.
CABLE CHANNEL OR CHANNEL
A portion of the electromagnetic frequency spectrum which is used in a cable system and which is capable of delivering a television channel (as television channel is defined by the Federal Communications Commission by regulation).
CABLE OPERATOR
Any person or group of persons:
1. 
Who provides cable service over a cable system and directly or through one (1) or more affiliates owns a significant interest in such cable system; or
2. 
Who otherwise controls or is responsible for, through any arrangement, the management and operation of such a cable system.
CABLE SERVICE
1. 
The one-way transmission to subscribers of:
a. 
Video programming; or
b. 
Other programming service; and
2. 
Subscriber interaction, if any, which is required for the selection of such video programming or other programming service.
CABLE SYSTEM
A facility consisting of a set of closed transmission paths and associated signal generation, reception and control equipment that is designed to provide cable service which includes video programming and which is provided to multiple subscribers within a community, but such term does not include:
1. 
A facility that serves only to retransmit the television signals of one (1) or more television broadcast stations;
2. 
A facility that serves subscribers without using any public right-of-way;
3. 
A facility of a common carrier which is subject, in whole or in part, to the provisions of Subchapter II of Chapter 5 of Title 47 of the United States Code, except that such facility shall be considered a cable system (other than for purposes of Section 541(c) of Title 47 of the United States Code) to the extent such facility is used in the transmission of video programming directly to subscribers, unless the extent of such use is solely to provide interactive on-demand services;
4. 
An open video system that complies with Section 573 of Title 47 of the United States Code; or
5. 
Any facilities of any electric utility used solely for operating its electric utility system.
COMMON CARRIER
Any person engaged as a common carrier for hire, in interstate or foreign communications, by wire or radio or in interstate or foreign radio transmission of energy, except where reference is made to common carriers not subject to this Chapter; but a person engaged in radio broadcasting shall not, insofar as such person is so engaged, be deemed a common carrier.
FEDERAL AGENCY
Any agency of the United States, including the Federal Communications Commission.
FRANCHISE
An initial authorization or renewal thereof (including a renewal of an authorization which has been granted subject to Section 546 of Title 47 of the United States Code) issued by a franchising authority, whether such authorization is designated as a franchise, permit, license, resolution, contract, certificate, agreement or otherwise, which authorizes the construction or operation of a cable system.
INTERACTIVE ON-DEMAND SERVICES
A service providing video programming to subscribers over switched networks on an on-demand, point-to-point basis, but does not include services providing video programming prescheduled by the programming provider.
MULTI-CHANNEL VIDEO PROGRAMMING DISTRIBUTOR
A person such as, but not limited to, a cable operator, multi-channel multi-point distribution service, a direct broadcast satellite service or a television receive-only satellite program distributor, who makes available for purchase, by subscribers or customers, multiple channels of video programming.
OTHER PROGRAMMING SERVICE
Information that a cable operator makes available to all subscribers generally.
1. 
Channel capacity designated for public, educational or governmental use; and
2. 
Facilities and equipment for the use of such channel capacity.
RADIO COMMUNICATION
The transmission by radio of writing, signs, signals, pictures and sounds of all kinds, including all instrumentalities, facilities, apparatus and services (among other things, the receipt, forwarding and delivery of communications) incidental to such transmission.
SERVICE TIER
A category of cable service or other services provided by a cable operator and for which a separate rate is charged by the cable operator.
USABLE ACTIVATED CHANNELS
Activated channels of a cable system, except those channels whose use for the distribution of broadcast signals would conflict with technical and safety regulations as determined by the Federal Communications Commission.
VIDEO PROGRAMMING
Programming provided by or generally considered comparable to programming provided by a television broadcast station.